Theme: Illegal Employment

What happens to manual scavengers who have signed an agreement of employment?

If anyone had signed an agreement with manual scavengers to employ them to clean up certain insanitary latrines, this agreement would be considered as having no legal effect. This does not mean that people who had been employed under the agreement will be jobless – the employer has a duty to employ them in another job and pay the same salary at a minimum.

Who is a Manual Scavenger?

Any person who has been employed to handle undecomposed human waste from an insanitary latrine, open drain or pit or railway track is a manual scavenger. The person could have been employed by anyone – say someone from their village or by an agency or contractor. It does not matter if they were given regular employment or engaged on contract basis.

Any person who has been employed to clean human waste and does so with the help of the appropriate protective gear and equipment will not be considered a manual scavenger.

Safai-Karamcharis

Another group of people called ‘safai karamcharis’ (“cleanliness workers”) are also sometimes considered as manual scavengers – however, they usually refer to people working as sweepers or cleaning workers in the municipalities, government or private organisations.

Employing adolescents between 14-18 years

Adolescents are allowed to work in places that do non-hazardous work. These establishments that do non-hazardous work are notified by the government. They are also allowed to work:

  1. In a family business. For example, working in your family jewellery business.
  2. As a child artist. For example, acting in Bollywood movies or in an advertisement.

Adolescents between the age of 14 to 18 are not allowed to work in:

  • Mines or places which use inflammable substances or explosives. For example, a factory which manufactures firecrackers.
  • Industries which use hazardous processes which are provided in another law called the Factories Act, 1948. They include coal, power generation, paper, fertilizer, iron and steel industries, asbestos, etc.

Is building an Insanitary Latrine unlawful?

It is unlawful and an offence under the Manual Scavengers and Their Rehabilitation Act, 2013 for any person, municipality, panchayat or agency to build an insanitary latrine that requires human waste to be removed manually by a person before the waste has properly decomposed.

Local authorities must carry out a survey of insanitary latrines in their area and publish a list of all the identified latrines. The local authorities are responsible for the building and maintenance of these community sanitary latrines and must make sure that they are functional and hygienic.

The punishment for first-time offenders constructing or engaging or employing someone to construct an insanitary latrine is jail time up to one year as well as a fine for up to Rs. 50,000. Second-time offenders can face jail time up to two years and a fine of up to Rs. 1,00,000.

Employing children under 14

It is illegal to employ or allow children under the age of 14 in any form of occupation. Employers, parents or any guardian in charge of a child who allows a child to work in any type of occupation will be punished.

However, there are two exceptions. The Government allows children to work:

If you know of any acts of child labour where the child is below the age of 14, please report the crime.

Who is responsible for Demolishing or Converting an Insanitary latrine?

The person who occupies the property on which an ‘insanitary latrine’ exists has to demolish or convert it. If more than one person owns the property on which the insanitary latrine is built, the costs have to be paid by the owner (if they are one of the occupiers) or equally by all of them.

While the State Government could choose to help occupiers with the conversion process, the occupier cannot use the government’s inaction as an excuse to maintain an insanitary latrine beyond 9 months. In case the occupier does not destroy or convert an insanitary latrine within 9 months, the local authority has to take over after giving a notice of 21 days. The authority can then recover the costs from the occupier.

The punishment for first-time offenders is jail time up to one year as well as a fine for up to Rs.50,000. Second-time offenders can face jail time up to two years and a fine of up to Rs.1,00,000.

Determining age of Child

If you as an employer are unsure if the child is below 14 years or above 14 years of age, then the age of the child will be determined by a medical authority who will look into the following three documents while determining the age:

  • Aadhar card of the child or adolescent.
  • Birth certificate from school, or the matriculation or a certificate from an examination Board.
  • Birth certificate of the child or adolescent given by a corporation or a municipal authority or a panchayat.

When these three documents are absent, then the medical authority will do an ossification test or any other latest age determination test to find out the age of the child.

As an employer, you should have a certificate of age for the child, in case the inspector wants to determine the age of the child. If the inspector finds out that you have not obtained a certificate of age for the child, he will specifically instruct you to obtain it from a medical authority.

Is it legal to employ a Manual Scavenger?

No, it is illegal to employ someone as a manual scavenger in India. It is also unlawful for anyone (including municipalities and panchayats) to employ any person for the cleaning of a sewer or a septic tank without the necessary protective gear.

People who do so face the following repercussions.

Employing someone as a manual scavenger

The punishment for employing a manual scavenger, for a first-time offence is jail time up to one year as well as a fine up to Rs.50,000. If someone commits the offence again, then the punishment is jail time up to two years and a fine up to Rs.1,00,000.

Employing a person for hazardous cleaning of a sewer or a septic tank

The punishment for employing a person for hazardous cleaning of a sewer or septic tank for a first-time offence is jail time up to 2 years and a fine up to Rs. 2,00,000. If someone commits the offence again, then the punishment is jail time is up to 5 years and fine up to Rs. 5,00,000.

A company employing someone as a manual scavenger

When a company commits the offence of manual scavenging, not only will it be considered guilty of the crime, but so will any employees of that company who allowed the offence to take place. This can include directors, managers, secretaries, and other officers of the company.

For more information, visit the website of National Commission for Safai Karamcharis.

Employers Responsibility towards Child Artists

When child artists are being employed for work, there is an obligation on the employer to fill out Form C as given in the Child Labour (Prohibition and Regulation) Act, 1986. The employer by filling the Form C, has to promise to take responsibility in the following manner:

  • Child’s education should not be affected.
  • Child artists who are hired should be protected, given care and protection and full care of their physical and mental health should be looked into.
  • The employer should not violate the legal provisions of the child labour law.
  • The employer should take care of the child’s well being so that no sexual offences are committed.

Application for Permission

The District Magistrate (in the district where the activity is taking places) should give you an undertaking allowing the child to work. The parents or the guardian should also give approval for the work being done by the child. The undertaking will state and ensure:

  • Facilities for the physical and mental health of the child.
  • A nutritional diet of the child.
  • Clean and safe shelter for the child.
  • Compliance with all laws for the protection of children, right to education and protection against sexual offences.

Working Hours

The employer has to take note of the following points:

  • A child cannot be allowed to work for more than five hours in a day.
  • A child cannot be made to work for more than three hours without rest.
  • A child should not be made to work consecutively for more than 27 days.