Indian judiciary has been instrumental in expansion of the rights of people. In this spirit, while dealing with a case involving the issues concerned with the marginalized sections of our society, a judge should always keep at the back of his/her mind the constitutional goal of an egalitarian social order. It is in this background that we must look at and scrutinize a judgment delivered by Madras High Court in Mahalakshmi v. State of Tamil Nadu (10 January, 2018).
The case concerned with a plea for regularization of the services of the petitioner and her husband in Anna University College of Engineering, Dindigul, with all service benefits. The petitioner and her husband, belonging to Scheduled Castes, were appointed as sweepers/cleaners. However, the high court used the term “scavengers” in the judgment to describe the nature of their job. It was alleged that the petitioner and her husband were compelled by the principal of the college to come to her house to do domestic works and to clean the toilets in her house and wash the dresses/inner dresses of her husband and children. It was further alleged that when the petitioner and her husband were doing cleaning work in the college, the principal did not give any safety equipments to the scavengers and they were compelled to clean the drains and toilets without following the mandatory requirements under the provisions of the Prohibition of Employment as Manual Scavengers and Rehabilitation Act, 2013. It was also alleged that the principal had scolded the petitioner using her caste name.
The high court rejected their claim of regularization of service. Irrespective of the merits of the claim of regularization, it is the court’s observation about cleaners/sweepers/scavengers, which are disturbing. The court held that since both, the principal and the petitioner, belonged to Scheduled Caste (SC) community, there is no chance of scolding the petitioner using caste names. The court found this complaint made by the petitioner against the principal “an utter falsehood”. The court further held that since the petitioner was serving as a ‘daily rated’ employee and her nature of work is to clean the premises, she cannot exceptionally make a complaint that the principal had compelled her to clean the toilets in her house and wash her dresses and inner dresses of her husband. The court was of the view “when a sweeper/scavenger is employed, he/she has to clean up the toilet also”. The high court imposed a fine of Rs. 25,000/- to be paid by the petitioner to the principal directly for filing a “false” claim.
The broad observations of the high court on scavenging reflect the failure of the high court to understand the social evil of manual scavenging. The court’s view is myopic when it holds that since both the petitioner and the principal belonged to the SC community, there can’t be any caste-based comments. In an incisive analysis, Diane Coffey and Dean Spears have discussed the extreme exploitation, exclusion and humiliation that people from the manual scavengers’ castes have faced for generations: “[M]annual scavengers are considered the lowest-ranking among the Dalit castes. The discrimination they face is generally even worse than that which Dalits from non-scavenging castes face” (Where India Goes, 2017, page 78). The social reality of India is that manual-scavenging castes face discrimination within the Dalit community as well. Their lives reflect exclusion and deprivation. The manual scavengers have different caste names in different parts of the country: Bhangis in Gujarat and Uttar Pradesh, Phakis in Andhra Pradesh and Sikkaliars in Tamil Nadu. A study titled “Manual Scavenging As Social Exclusion: A Case Study” published in Economic & Political Weekly (June 27, 2009) has aptly stated that: “These communities are invariably placed at the bottom of the caste hierarchy as well as dalit sub-caste hierarchy. Refusal to perform such manual task leads to physical abuse and a social boycott”. The study also documents that scavengers face a difficulty in taking up other occupations.
Further, the comments of the high court on the nature of job of a sweeper/cleaner are contrary to the right of an individual to live with dignity, which is implicit in the fundamental rights guaranteed in Part III of the Constitution. By holding that a sweeper/cleaner employed to clean the premises is also bound to clean toilets and dresses and that he/she cannot complain otherwise, the high court has endorsed a form of “forced labour” which is prohibited under Article 23 of the Constitution. In the landmark judgment in PUDR v. Union of India (1982), Justice PN Bhagwati had defined “forced labour” as follows: “Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labour or service is compelled as a result of such ‘force’, it would be ‘forced labour’.” The high court failed to understand this basic understanding of the constitutional provisions. To compel a person, without his/her consent, to clean toilets and wash dresses, even if he/she has entered into a contract to clean premises, is a form of “forced labour” prohibited under Article 23.
The reasoning of the high court only reflects that discriminations have become so common and entrenched in our thinking that nobody finds anything abysmal. The comments and the holding of the high court condemn a section of our own people, who are forced to the “profession” of cleaning, sweeping and scavenging. Such reasoning further reveals that the deprived sections of our society lack support from the institutions of our democracy in living a dignified life.
Anurag Bhaskar is an alumnus of Dr. Ram Manohar Lohiya National Law University, Lucknow. He can be contacted at [email protected] and tweets at @anuragbhaskar_