Does the ‘Social’ Construct Reflect in the ‘Legal’ Framework? Interrogating the Legal Framework of Manual Scavenging

Abstract

The Parliament of India outlawed ‘Manual Scavenging’ in 2013. Any engagement of ‘manual’ scavengers attracted legal sanctions. However, scholars argue that the practice is still prevalent. This dichotomy reflects the contrast between the law’s formal nature and its limited adaptability to address the social realities. Law, from a jurisprudential perspective, offers certainty, but is intrinsically bound by rigidity. Such rigidity can obscure diverse factors contributing to discrimination. Hence, origin, nature and processes perpetuating discrimination necessitate holistic considerations. This principle is equally applicable to the legal understanding and regulation of manual scavenging.

The systemic imposition of manual scavenging on certain communities reflects entrenched caste prejudices. Social perceptions of manual scavengers are historically shaped both by social hierarchy and religious prescriptions, constraining individuals within a rigidly defined societal role. While these practices are socially codified, Indian law, through statutes and constitutional mandates, seeks their abolition. This raises a critical question: do legal prohibitions on manual scavenging effectively disrupt traditional hierarchies, or do social and religious norms continue to perpetuate these practices?

The paper examines the social and divine factors leading to the existence of manual scavenging. It then undertakes an analysis of the law on manual scavenging. It critically interrogates whether statutory prohibition, rather than comprehensive elimination, effectively addresses the entrenched caste-based and occupational hierarchies that perpetuate this practice. In the end, the paper proposes measures to strengthen the existing law.