Of Manholes and Use of Manual Labour: Courts and State Impunity

Today's Hindu has a no-holds barred piece by Agrima Bhasin on the inhuman working conditions for sewage workers where a tragic combination of caste-inequities, prejudices and state complicity has resulted in frequent fatalities.

Agrima reports:

“Two of the men, Ashok and Chhotu, entered the sewer but did not return. The other two, Rajeshwar and Satish, went in to look for their colleagues. Three of the four men, assaulted by the poisonous rush of gases, lost their lives on the spot. Chhotu survived and was pulled out. Ashok, Rajeshwar and Satish became a statistic alongside other sewage workers like Robert and Shekhar who also died of asphyxiation while unblocking a sewage tank in a private hotel in Chennai in April this year.

The resident electrician at IGNCA had roped in housekeeping staff to unblock the sewer on a Sunday afternoon on the cheap. The four men, all Dalits, were not provided with safety gear. They entered the sewer with only a handkerchief for protection. They were hit by the foul-smelling methane gas and delayed in their escape by the thick muck that lines the sewer. That three out of the four were employees of the IGNCA is a fact that officials-in-charge now unashamedly deny.”

This tragedy is particularly gut-wrenching for the brazen indifference of governmental organisations towards strictures of constitutional courts of the country that it reveals.

Gujarat High Court while adjudicating a Public Interest Litigation filed by Kamdar Swasthya Suraksha Mandal had held in 2006 [Praveen Rashtrapal, I.R.S. v. Chief Officer, Kadi Municipality, (2006) 3 GLR 1809]:

“The sewerage workers are the citizens of this country and they are entitled to enjoy fundamental right as provided in the Constitution of India. It is a cardinal principle of the service jurisprudence that the employer has to take adequate care of the safety and well being of his employee. He cannot expose an employee performing duties which are dangerous in nature and likely to adversely affect his health or life. The employer has to provide him with all the safety measures and if he is not able to make such provision, he has to refrain from asking such employee to discharge these dangerous duties. This is not only a moral obligation on the employer, but it is a mandate given to him by labour's safety- oriented Statutes, like the Factories Act. May be the Bombay Provincial Municipal Corporation Act, the Gujarat Municipalities Act etc., are not having specific provisions like the Factories Act, but then Article 21 of the Constitution of India is always there to protect the employees of local civic bodies and also the contractors whose service are hired by the civic bodies.”

In light of this, the Court further directed:

1. Unless it was absolutely necessary to have sewerage cleaning operations done manually, the civic bodies in the state must, as far as possible, buy cleaning equipments to do the job.
2. The civic bodies are directed to discontinue the practice of engaging contractors for this purpose.
3. Whenever, a sewerage worker is required to enter the manhole before his entry into manhole, proper checking to be made to see that he is not likely to be affected by the poisonous gases.
4. Moreover, he shall be provided with all safety equipments such as oxygen mask, helmet, goggles, gumboots, air blower, safety belt, torch etc. The office on the spot should enforce the workers to abide by the safety Rules and Regulations and to see that he can properly utilize the safety equipments that are given to him.
5. It is found that there is possibility of any kind of accident or presence of poisonous gas is noticed, the worker should not be allowed to go inside the manhole. If the higher authority insists upon worker entering the manhole, such order should be given in writing and in case of any accident, the responsibility would lie on the concerned officer as well as civic body, and it will expose them to civil liability as well as criminal prosecution.
6. Before commencement of the cleaning operation, the officers on the spot should compulsorily do the sampling of the water as well as gas and if it is found that either of it is likely to adversely affect the health of the worker, he should not be allowed to enter the manhole.
7. A small pocket book should be provided to the workers containing information relating to manhole work, preventive measures and the contact numbers of the emergency. They may be impressed upon to follow each and every direction contained in such book.
8. The worker should be given training on the issues relating to health and safety. Training sessions should be held regularly.
9. The Government should form Safety Committees at different levels to monitor the safety measures and to supervise the training programmes. The Committee will be responsible for taking care of the safety aspects of the workers and the preventive measures to be taken.
10. Every civic body shall compulsorily have the periodical medical checkup of the manhole workers. If the worker is found to be suffering from adverse effect of the cleaning operation, he should be immediately transferred to some other department.
11. The civic bodies shall maintain separate manhole department so as to have intensive department-wise monitoring. Such department can be of help in solving problems relating to sewerage workers, especially as their work is involving high-degree risk.
12. The civic bodies shall provide basic facilities and amenities including decent and comfortable accommodation for their better living, eduction of their family members and to give them decent and dignified living.
13. The civic bodies shall compulsorily have such worker insured and to pay the premium, the worker should be availed of various schemes from Social Welfare Department, such as coverage of insurance, payment of compensation, in the event of accident happening, and in the case of death, to give compassionate appointment to the dependent of the deceased worker subject to such candidate passing requisite qualifications for the employment.
14. The aforesaid safety measures as well as service benefits should be made available to them over and above the benefits which are legally permissible to them under various Statutes and various Government beneficial Schemes.

This was supplemented by the Order of the Division Bench of Delhi High Court in National Campaign for Dignity and Rights of Sewerage and Allied Workers vs Delhi Jal Board dated 20.8.2008 which directed that:

(a) The medical examination and medical treatment will be given free of charge to sewer workers and the treatment will continue for all such workers found to be suffering from an occupational disease, ailment or accident until the workman is cured or until death.

(b) The services of the sewer workers are not to be terminated, either by the DJB or the contractors engaged by them, during the period of illness and they shall be treated as if on duty and will be paid their wages.

(c) Compensation shall be paid by the DJB and recoverable from the contractors, if permissible in law, to all the workmen suffering from any occupational disease, ailment or accident in accordance with the provisions of the Workmen's Compensation Act, 1923.

(d) The DJB shall pay on the death of any worker, including any contract worker, an immediate ex- gratia solatium of Rs. One lac with liberty to recover the same from contractors, if permissible in law.

(e) The DJB shall pay / ensure payment of all statutory dues such as Provident Fund, Gratuity and Bonus to all the sewer workers, including contract workers, as applicable in law.

(f) The DJB shall provide as soon as possible modern protective equipments to all the sewer workers in consultation with the petitioner organization.

(g) The DJB shall provide soap and oil to all the workmen according to the present quota, but on monthly basis and not at the end of the year.

(h) The DJB shall provide restrooms and canteens, in accordance with the DJB model rules, including therein first-aid facilities, safe drinking water, washing facilities, latrines and urinals, shelters, creches and canteens as set out in the model rules. There are to be provided at what is known as 'stores' which are the places where the workers assemble to give their attendance and from where they depart to their respective work sites.

(i)The DJB shall provide all workman, including contract workmen, with an accident-card-cum- wage-slip as set out in cl. 8 of the C.P.W.D./PWD (DA)/Delhi Jal Board Contractors Labour Regulations (for short "Labour Regulations").

(j) The DJB shall provide all workers, including contract workers, employment cards as set out in cl. 9 of the Labour Regulations and, on termination of services provide the contract workers and others with a service certificate as set out in cl. 10 of the Labour Regulations.

(k) The DJB shall authenticate by signing the payment of wages register for contract workers in terms of cl. 5 of the Labour Regulations.

(l) The DJB is directed to ensure that the ex-gratia payment in case of deaths of sewer workers has been paid to the families of deceased workmen and in case such compensation is not paid, release the same within a period of eight weeks.

(m) NDMC is directed to pay ex gratia payment of Rs. one lac each in respect of the accident of 7th December, 2003 where three persons working under the NDMC contractors died, with liberty to recover the same from the contractor, if permissible in law.

(n) The DJB and NDMC are directed to hold an inquiry into deaths of sewer workers referred to in paragraphs 15 and 16 of the written submission of the petitioner dated 22nd July, 2008 and submit a report to this Court within a period of eight weeks. If it is found that the contract workers in question were working under the contractors employed by NDMC/DJB, ex-gratia compensation of Rs. One lac shall be released forthwith to the families of the victims subject to right of recovery from contractors in accordance with law.

(o) the respondents are directed to place on record the proposals and plans to phase out manual work and replace it with mechanized sewer cleaning, as envisaged by DJB as well as NDMC, which shall be done within three months.”

This was not all. In response to news reports on death of 6 sewage workers in Delhi in the month of March 2009, the Court issued notices to the CEO, DJB and the Vice Chairman, DDA to show cause as why action for contempt should not be initiated against them under the Contempt of Courts Act for violating its earlier and directed DDA and DSIDC to deposit the amount of compensation of Rs.2.5 lacs per worker with the High Court Legal Services Committee (DHCLSC) for being paid to the families of the victims within four weeks.

When these orders were challenged in the Supreme Court, Justice G. Singhvi observed in Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers (2011) 8 SCC 568 :

“It is the duty of the judicial constituent of the State like its political and executive constituents to protect the rights of every citizen and every individual and ensure that everyone is able to live with dignity. Given the option, no one would like to enter the manhole of sewage system for cleaning purposes, but there are people who are forced to undertake such hazardous jobs with the hope that at the end of the day they will be able to make some money and feed their family. They risk their lives for the comfort of others. Unfortunately, for last few decades, a substantial segment of the urban society has become insensitive to the plight of the poor and downtrodden including those, who, on account of sheer economic compulsions, undertake jobs/works which are inherently dangerous to life. People belonging to this segment do not want to understand why a person is made to enter manhole without safety gears and proper equipments. They look the other way when the body of a worker who dies in the manhole is taken out with the help of ropes and cranes. In this scenario, the Courts are not only entitled but are under Constitutional obligation to take cognizance of the issues relating to the lives of the people who are forced to undertake jobs which are hazardous and dangerous to life.”

The Apex Court not only endorsed the orders of the Delhi High Court but also added for good measure that:

“The High Court could have taken note of the fact that this Court had approved the award of compensation of Rs.10 lacs in 1998 to the victim of rape as also increase in the cost of living and done well to award compensation of atleast Rs.5 lacs to the families of those who died due to negligence of the public authority like the appellant who did not take effective measures for ensuring safety of the sewage workers.”

Yet the use of manual labour for cleaning of manholes and sewer pipes continue unabated. Kamdar Swasthya Suraksha Mandal estimates that around 500 sewer workers die every year in the country. Sadly, as the IGNCA tragedy shows, government agencies have been among the worst offenders that have continued to use manual labour and flout Court orders with impunity. As Professor Baxi had argued, the deeper scrutiny of impoverishment in India reveals a case of regression and not just failure of development.

For more on the state of labourers used for cleaning sewers, check this piece from Tehelka.

A Case for Delinking Poverty Lines and Entitlements and Going Beyond Income?

The recently released Poverty Estimates for 2011-2012 wherein the the Planning Commission of India has claimed that the total numbers of persons below poverty line has declined to 21.9 % has provoked considerable debate and outrage in the media and political circles on the reliability of these figures and the adequacy of the poverty benchmarks followed by the Planning Commission.

The Hindu in an editorial noted that there is some basis for the claims that the the release of these estimates was timed to maximize its utility for the UPA Government. The CPI(M) said the estimates made "a mockery of life and death struggles" of the people. Its sister-party, CPI averred that the Planning Commission was "perpetuating fraud" on poverty line to restore the image and credibility of the UPA government ahead of the 2014. Echoing the Left Parties, BJP charged the government with “making a mockery of the plight of the poor people and misleading them.” [See this report for the reaction of opposition parties]. Curiously, some of the UPA leaders too have not been shy of taking potshots at the Planning Commission Poverty Line.

Joining the debate, N.C. Saxena, Member National Advisory Council has argued that “the present methodology for determining poverty based on consumption expenditure is certainly flawed, and leads to under-reporting of the actual number facing acute deprivation” and that the “current poverty line is too low and could be called the destitution or the starvation line.”

The beleaguered Planning Commission has found support for the Suresh Tendulkar Methodology in T. N. Ninan, columnist for Business Standard, who wrote: “the Tendulkar definition of extreme poverty closely mirrors the poverty line used by 189 members of the United Nations to set the first of eight Millennium Development Goals - which is, to halve the level of poverty between 1990 and 2015 (something which, please note, India has already achieved). The definition of poverty used to set this goal is $1.25 per day. That would be about Rs 75 per day in a straight conversion to rupees at current exchange rates, but works out to about Rs 30 when you take purchasing power parity into account, as you are supposed to. As it happens, the Tendulkar line for rural areas in 2011-12 was Rs 27, and in urban areas Rs 33. So any criticism of the Tendulkar definition of extreme poverty runs smack into what is the internationally accepted definition. For some strange reason, the government finds it hard to point this out.”

This debate, as intense as it has been, has however not emphasised enough on the advisability of linking poverty line and welfare entitlements. Many of the critics of the Planning Commission Estimates, from Harsh Mander to Bharatiya Janata Party, have expressed their fear that the Poverty Line has been pegged on the lower side so as to cap the number of beneficiaries for social welfare schemes and thereby limit social spending by the government. Interestingly, Vivek Dehejia, Professor of Economics at the Carleton University, made the same point while supporting the existing Poverty Line. In a tweet, he noted that “criticisms of the poverty line as being "too low" often miss the point that it's used to target allocations, not as an ethical judgement.” 

Certainly, the Government has a compelling interest in using poverty benchmarks as metric for policy formulation. Yet, an objective definition of poverty cannot solely be a function of public policy. As Amartya Sen argued in Poverty and Famines: An Essay on Entitlement and Deprivation (Oxford: 1999):

“there is clearly a difference between the notion of 'deprivation'and the idea of what should be eliminated by 'policy'. For one thing, policy recommendations must depend on an assessment of feasibilities ('ought implies can'), but to concede that some deprivations cannot be immediately eliminated is not the same thing as conceding that they must not be currently seen as deprivations.” [p. 20]

Therefore, it is imperative that current assessment of poverty in India must be kept separate from governmental policy on identifying 'target groups' for social welfare schemes. The fact that the latter would be contingent upon availability of resources does not imply that the benchmarks used for measuring poverty must also be so qualified. Admittedly, it would be politically difficult for any government in India to admit that their pro-poor schemes exclude a sizable section of persons living under poverty. Nonetheless, such conflation of poverty lines and welfare entitlements has impeded analytical clarity over the utility of poverty lines and also incentivises under-representation of the extent of deprivation in the country by government of the day.

The current debate also points towards the limitations of a benchmark based on income and consumption expenditure. Proponents of the Capability Approach have asserted for long that income is only instrumentally significant and is not valued for its own sake; that its conversion into well being is also contingent on a number of variables including personal heterogeneities, physical environment, social climate and relational perspectives. Thus, an income-centric understanding of poverty cannot capture the true extent of deprivation. As N.C Saxena noted in the above-cited column: “the estimates for the number of poor should be reworked by taking into account their deprivations and living conditions, such as access to basic services, shelter, public health, and education.”

It is not a surprise therefore that Y.K. Alagh, a critical figure in the formulation of the first poverty line in the Seventies, has urged for a complete overhaul of the methodology currently used by the Planning Commission and the relevance of a singular country-wide benchmark for assessing poverty. 

Decline in Poverty Headcount: A Round-up of Responses in the Print Media

The Planning Commission of India, in a press report earlier this week, announced that Poverty in India declined to a record 22% in 2011-12. it claimed that the poverty ration had dropped from 37.2% in 2004-05 to 29.8% in 2009-10.

In response, The Hindu reported that the Ministry of Rural Development is following a methodology, derived from the Socio-Economic and Caste Census, that will place at least 65 % of the population within the ambit of various social protection schemes.

"Economists advising the Ministry of Rural Development have told The Hindu that the exclusion criteria to be derived from the ongoing Socio-Economic and Caste Census are likely to leave out the top 35 per cent of the population while the bottom 65 per cent will be considered BPL."

Tellingly, N.C. Saxena is quoted as saying: “This is a step away from the narrow definition of poverty we have been using, where the line is really what I call a ‘kutta-billi’ line; only cats and dogs can survive on it,”

In another column, in Business Standard, N.C Saxena argues:

"Estimating the scale of poverty with respect to a fixed poverty line - which was Rs 1.63/1.90 per capita per day for rural/urban populations in 1973-74, and since then has remained unchanged after adjusting it for inflation - is still relevant for many purposes, including judging whether the development process is helping the poor and how fast poverty is declining over time. It also helps to assess which states are doing better in poverty eradication."

He also responds to apprehension that the new poverty statistics are going to be used by the govt as a tool to limit social spending:

"Out of about 150 centrally sponsored schemes, only one scheme of old age pension is linked to the below poverty line (BPL) categorisation. Many centrally sponsored schemes, such as the National Rural Employment Guarantee Act, Integrated Child Development Scheme, Mid-day meal, National Rural Health Mission, and Sarva Shiksha Abhiyan, are universal, whereas some others such as the Indira Awas Yojana use a more complex formula. The subsidy on the construction of toilets is also not linked to the household's BPL status. Therefore, reduction in poverty will not reduce the government's obligation to allocate money for the social sector. Civil society's fear on this count is unfounded."

At the same time, he admits that "the estimates for the number of poor should be reworked by taking into account their deprivations and living conditions, such as access to basic services, shelter, public health, and education...The present cut-off is surely too low, it could be called the destitute or starvation line"

His skepticism on poverty lines for social spending is echoed, albeit from the opposite end of the ideological spectrum, by Nitin Pai from Takshashila Foundation who claims that poverty lines cannot be effective instruments for targetting beneficiaries for social welfare schemes:

"What the poverty line is not good for is as a selection tool to identify beneficiaries for entitlements. This is because it is practically impossible to estimate whether a particular person earns more or less than the given poverty line income. This fact is lost on many policymakers and intellectuals—just how does one assess whether a person earns less or more than Rs 33 a day? There are no objective methods to test and verify incomes—no financial records, salary slips, bank accounts and so on. So we are left with self-declaration. However, if people know that those deemed below the poverty line will receive benefits from the government, they are likely to declare themselves poor. To take one example, in 2006, 91% of the families in Karnataka state declared themselves below poverty line."

Another useful resource is Rathis Balakrishnan's summary of different methods adopted in India for bench-marking poverty.