The Right to Sanitation in India Critical Perspectives
edited by Philippe Cullet, Sujith Koonan, and Lovleen Bhullar
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Tables and Boxes
Abbreviations
AfricaSan African Conference on Sanitation
AMRUT Atal Mission for Rejuvenation and Urban Transformation
ANC African National Congress
APL above poverty line
ATP Aadi Tamilar Pervai
BGML Bharat Gold Mines Limited
BIS Bureau of Indian Standards
BPL below poverty line
BWSSB Bangalore Water Supply and Sewerage Board
CAG Comptroller and Auditor General
CBO community-based organization
CDP Community Development Programme
CEDAW Convention on the Elimination of All Forms of Discrimination against Women, 1979
CERD Committee on the Elimination of Racial Discrimination
CESCR Committee on Economic, Social and Cultural Rights
CLTS community-led total sanitation
CPCB Central Pollution Control Board
Abbreviations
CPHEEO
Central Public Health and Environmental
Engineering Organisation
CPR Centre for Policy Research
CPWD Central Public Works Department
CRC Convention on the Rights of the Child
CRSP Central Rural Sanitation Programme
CSIR Council for Scientific and Industrial Research
DDWS Department of Drinking Water Supply
DFID Department for International Development
DHS Department of Human Settlements (South Africa)
DPME Department of Performance Monitoring and Evaluation (South Africa)
DWA Department of Water Affairs (South Africa)
DWAF Department of Water Affairs and Forestry (South Africa)
EHP Emergency Housing Programme (South Africa)
ELRS Environmental Law Research Society
FBSan Free Basic Sanitation Implementation Strategy (South Africa)
FBW Free Basic Water (South Africa)
FYP Five-Year Plan
GLAAS Global Analysis and Assessment of Sanitation and Drinking Water
GoM Government of Maharashtra
GRIHA Green Rating for Integrated Habitat Assessment
HIMUDA Himachal Pradesh Housing and Urban Development Authority
HUDCO Housing and Urban Development Corporation
IAS Indian Administrative Service
IAY Indira Awas Yojna
ICCPR International Covenant on Civil and Political Rights, 1966
ICDS Integrated Child Development Services
ICESCR International Covenant on Economic, Social and Cultural Rights
IDP internally displaced person
IEC information, education, and communication
IHHL individual household latrine
Abbreviations
ILCS Integrated Low Cost Sanitation Scheme
ILO International Labour Organization
JNNURM Jawaharlal Nehru National Urban Renewal Mission
KUWSDB Karnataka Urban Water Supply and Drainage Board
LATINOSAN Latin American Conference on Sanitation
MCGM Municipal Corporation of Greater Mumbai
MDGs Millennium Development Goals
MHM menstrual hygiene management
MLA member of the legislative assembly
MGNREGA Mahatma Gandhi National Rural Employment Guarantee Act, 2005
MP Member of Parliament
NABARD National Bank for Agriculture and Rural Development
NAC National Advisory Council
NBA Nirmal Bharat Abhiyan
NCERT National Council of Educational Research and Training
NCSK National Commission for Safai Karamcharis
NEP new economic policy
NGP Nirmal Gram Puruskar
NHRC National Human Rights Commission
NITI Aayog National Institution for Transforming India
NRHM National Rural Health Mission
NSLRS National Scheme for Liberation and Rehabilitation of Scavengers and their Dependants
NUSP National Urban Sanitation Policy
O&M operation and maintenance
ODF open defecation free
PCC Pollution Control Committee
PDS Public Distribution System
PHED Public Health Engineering Department
PIL public interest litigation
PPP public–private partnership
PRIs Panchayati Raj institutions
xiv Abbreviations
PSP private sector participation
PUDR People’s Union for Democratic Rights
RTI right to information
SAARC South Asian Association for Regional Cooperation
SACOSAN South Asian Conference on Sanitation
SAICE South African Institution of Civil Engineering
SAP structural adjustment programme
SBM Swachh Bharat Mission
SBM-G Swachh Bharat Mission (Gramin)
SBM-U Swachh Bharat Mission (Urban)
SC scheduled caste
SDGs Sustainable Development Goals
SHG self-help group
SKA Safai Karmachari Andolan
SP Superintendent of Police
SPCB State Pollution Control Board
SSP Slum Sanitation Programme
ST scheduled tribe
TAHDCO Tamil Nadu Adi Dravidar Housing and Development Corporation Limited
TPP Twenty Point Programme
TSC Total Sanitation Campaign
UDHR Universal Declaration of Human Rights, 1948
UISP Upgrading of Informal Settlements Programme (South Africa)
UNDP United Nations Development Programme
UNECE United Nations Economic Commission for Europe
UNICEF United Nations Children’s Fund
UP Uttar Pradesh
VERC Village Education Resource Centre
VIP ventilated improved pit
WHO World Health Organization
WSP Water and Sanitation Programme
Foreword
Usha Ramanathan*
The century turned, and another human right gained recognition. In its early years, sanitation found honourable mention in General Comment No. 15 of the United Nations Committee on Economic, Social and Cultural Rights (CESCR), along with the right to water, which underlined that ‘[o]ver one billion persons lack access to a basic water supply, while several billion do not have access to adequate sanitation, which is the primary cause of water contamination and diseases linked to water’.1 At that point, sanitation was largely seen through the worry of faeces contaminating water. In the decade that followed, the human right to sanitation found itself in the interstices of the right to health, the right to adequate housing, and the right to an adequate standard of living, alongside the right to water.
There are few who would doubt the value of safe, accessible, and hygienic sanitation. There has been too much silence around sanitation,
* Dr Usha Ramanathan works on the jurisprudence of law and poverty.
1 UN Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water (Arts 11 and 12 of the Covenant) UN Doc. E/C.12/2002/11 (2002), para 1.
and for far too long. Progressive recognition of this right in the international arena has acted as a prompt for states to place sanitation squarely on their agenda. In India, the recognition of the importance of sanitation started earlier, in 1999, with the Total Sanitation Campaign (TSC)—renamed the Nirmal Bharat Abhiyan (NBA)— with the goal of ending open defecation by 2017. In 2014, when a new government was formed at the Centre after the general election, among its early interventions in public policy was the Swachh Bharat Mission (SBM) (Clean India Campaign). The pressure has been building up since then, with the prime minister personally putting his heft behind the campaign with reward and punishment pursuing statistics around an acronym minted in the 2000s: ODF (Open Defecation Free).
It should be axiomatic that one human right ought not to be realized by violating other human rights. Yet, the Indian experience tells us that that is not as obvious as it may seem.
The first public shock about the calamitous effect of prejudice in the context of sanitation is recorded in a 1996 report of the People’s Union for Democratic Rights (PUDR)-Delhi.2 Dilip, a 19-yearold man visiting Delhi to witness the Republic Day celebrations in January 1995, was ‘beaten, kicked and forced to run around and squat by constables of Delhi Police. Dilip collapsed and died on the spot.’3 The provocation: that he was from a nearby slum and appeared to have used the park to defecate. In the ensuing conflict that erupted when the police attempted to remove Dilip’s body, and irate slum dwellers resisted, the police fired, immediately killing three, one more person died subsequently, 16 were injured, and 123 arrested.
In interviews to the press, the Additional Commissioner of Police defended the firing as an ‘inevitable and necessary intervention in a conflict between the “haves” (the residents of Ashok Vihar [a residential colony]) and the “have-nots” (the jhuggi dwellers)—sooner or later this had to happen’.4 The police position on this episode was summed up in the report as follows:
2 People’s Union for Democratic Rights, A Tale of Two Cities: Custodial Death and Police Firing in Ashok Vihar (2nd edition, 1996); available at http://pudr.org/sites/default/files/pdfs/1996%20A%20tale%20of%20 two%20cities-CD-ASHOK%20VIHAR.pdf.
3 People’s Union for Democratic Rights (n 2), 2.
4 People’s Union for Democratic Rights (n 2), 3.
(1) Slums have grown in Delhi.
(2) It is not possible to provide amenities to slum dwellers.
(3) Therefore, tensions are a necessary result.
(4) The police is not responsible for such a situation.
(5) But they are forced to intervene to preserve law and order.5
The PUDR report sets out a telling statistic:
the Slum Wing provides one tap for every hundred jhuggis and one toilet seat for every 25 jhuggis. It admits that one toilet seat ought to be provided for every 7 jhuggis. However, in Shaheed Sukhdev Nagar there are no toilets, for roughly 5,000 families. The Slum Wing cites a combination of factors ‘as cause [including a] lack of space, and the’ reluctance of the railways.6
This incident is teeming with multiple violations of human rights— to dignity and safety while doing what must be done; police brutality; arrest and detention; and the taking away of life itself.
Recent years have seen a return to this attitude of intolerance, accompanied by public shaming, exclusion, and punishment. The focus has moved away from dignity to shame, and from provision to punishment. Consider these representative incidents:
• On 17 June 2017, newspapers reported that a man had been beaten to death by municipal council employees when ‘he tried to stop them from clicking photographs of women defecating in the open. He was allegedly kicked, punched and beaten with a stick. He died later at a hospital.’7 This happened when the officials were on their morning tour of the area.
• The cruelty takes different forms. In October 2017, an IAS officer in Maharashtra reportedly ‘garlanded and felicitated’ two women labourers while they were returning from defecating in the open.
5 People’s Union for Democratic Rights (n 2), 3.
6 People’s Union for Democratic Rights (n 2), 7–8.
7 HT Correspondent, ‘Rajasthan Offi cials “Photograph Women Defecating in Public”, Lynch Man who Objected’, Hindustan Times (17 June 2017); available at www.hindustantimes.com/india-news/ man-objects-to-civic-officials-taking-photos-of-women-defecating-inopen-is-lynched-to-death/story-bjv71wviSpLGlXtT7SAWuL.html .
He then sent the pictures to the media. The state government ignored demands for action against the officer.8
• The state has acquired a reputation for adopting extreme measures in its keenness to end open defecation. Earlier in the year, the state government of Maharashtra set up what were called ‘Good Morning Squads’ to spot, and crack down on those defecating in the open. As a squad member explained to the reporter: ‘it is necessary to create fear among people relieving themselves in the open. But we normally have to just shout or whistle to get people to run away’.9
• Public shaming, punishing, threatening, and inducing fear have become part of state practice in ridding itself of what it sees as the shame of open defecation. Others imitate these tactics. So, a TV channel started the following campaign:10
Name and Shame Campaign
#EndOpenDefecation
Blow the Whistle on Open Defecation Send in pictures at …
See also, TMM Staff, ‘Hyd Corporator’s Insensitive Selfie, Posts a Pic of Lorry Driver Defecating in Open’, The News Minute (23 January 2018); available at www.thenewsminute.com/article/hyd-corporators-insensitiveselfie-posts-pic-lorry-driver-defecating-open-75233.
8 Express News Service, ‘Solapur Open Defecation Row: IAS Officer Denies “Garlanding” Women to Shame Them’, The Indian Express (9 October 2017); available at http://indianexpress.com/article/india/maharashtra-open-defecation-solapur-ias-officer-denies-garlanding-women-to-shame-them-4881085; HuffPost Staff, ‘Two Women in Maharashtra were “Garlanded” and Photographed for Defecating in the Open’, Huffington Post (8 October 2017); available at www.huffingtonpost.in/2017/10/08/two-women-in-maharashtrawere-garlanded-and-photographed-for-defecating-in-the-open_a_23236271/.
9 Hindustan Times, ‘“Good Morning” Squads to Tackle Open Defecation in Maharashtra’, Hindustan Times (20 May 2017); available at www. hindustantimes.com/mumbai-news/now-good-morning-squads-to-tackleopen-defecation-in-maharashtra/story-w0GMUH9FTMKRAbiN5n5FwL. html.
10 CNN-News18, ‘The Name and Shame Campaign: Time to End Open Defecation’ (2 October 2017); available at www.news18.com/news/india/thename-and-shame-campaign-time-to-end-open-defecation-1533911.html.
• A shift has been made from the human right to sanitation to the state’s sense of shame, and ambition to make open defecation history. The lawless lengths which may be reached is evident from newspaper reports which list ways in which punishment is meted out, such as in the case of the state of Rajasthan where:
– Six villagers were arrested in Bhilwara for defecating in the open;
– Subsidized grains were denied under the public distribution system (PDS) to families without toilets in Jhalawar District;
– In Jahazpur sub-division of Bhilwara District, power supply was disconnected in a village where only 19 per cent of households had toilets; and
– In Karauli, women teachers were asked to mark attendance from the field by clicking selfies while they prevented villagers, men and women, from defecating in the open.11
11 Manoj Ahuja, ‘Power Cuts, Ration Cuts, Selfi es with People Pooping in Open: Rajasthan Races against ODF Deadline’, Hindustan Times (2 October 2017); available at www.hindustantimes.com/jaipur/ power-cut-ration-cut-arrests-selfies-with-people-pooping-in-openrajasthan-races-against-odf-deadline/story-3y6Cwcia6gjdIRnEcZc4uN.html . See also Vibha Sharma, ‘South MCD to Penalise People Defecating in Open’, Hindustan Times (20 June 2017); available at www.hindustantimes.com/delhi-news/south-mcd-to-penalise-people-defecating-in-open/story-CQnZqz9gkIQhoZ6DCW3CuL.html ; Aishwarya Krishnan, ‘Twinkle Khanna Trolls Man Openly Defecating & Promotes Akshay Kumar’s Toilet Ek Prem Katha with Th is Hilarious Picture’, IndiaBuzz (19 August 2017); available at www.india.com/ buzz/twinkle-khanna-trolls-man-openly-defecating-promotes-akshaykumars-toilet-ek-prem-katha-with-this-hilarious-picture-2413424/ ; FP Staff , ‘Ranchi Authorities Publicly Shame Open Defecators: State Sponsored Vigilantism could be a Dangerous Idea’, First Post (25 September 2017); available at www.fi rstpost.com/india/ranchi-authorities-publiclyshame-open-defecators-state-sponsored-vigilantism-can-be-a-dangerousidea-4079243.html ; Kelly Kislaya, ‘Ranchi Civic Body Disrobes Th ose Defecating in the Open’, Th e Times of India (25 September 2017); available at https://timesofi ndia.indiatimes.com/city/ranchi/ ranchi-civic-body-disrobes-those-defecating-in-the-open/articleshow/ 60820903.cms .
• In Puducherry, Lt Governor Kiran Bedi tweeted that subsidized rice in the PDS would be given only in villages certified to be ODF.12 Public outrage caused her to backtrack swiftly, while making a pitch for ‘cleanliness’.13
This idea of the ‘clean’ has shifted the focus from the concerns of those below the poverty line to the priorities and prejudices of those wielding power. Law supports none of these actions. Quite to the contrary, the National Food Security Act, 2013 creates statutory entitlements to food, which are thwarted by the imposition of these unsanctioned penalties. Even arrest and detention have been taken out of the idea of the rule of law.
* * *
Illiteracy, indebtedness, and lack of sanitation facilities are among the challenges that rural India struggles with. In the beginning, there was the Central Rural Sanitation Programme (CRSP), run by the state, but with very little community participation. Then, there was the TSC, which was intended to be demand driven and people centred. This was followed by the SBM, which shifted the onus to the individual, with the state providing a grant to be used in building toilets, and demanding immediate compliance.
Sometimes, legislatures have exerted their muscle and enacted disqualifications and exclusions; and the Supreme Court of India has not found that to be a problem. In 2015, the state of Haryana amended its law on contesting elections to the panchayat, disqualifying
• those with educational qualifications lower than that prescribed, • those with arrears of debt to a cooperative,
12 Press Trust of India, Puducherry, ‘Only Defecation-Free Puducherry Villages to Get Free Rice, Says Kiran Bedi’, Hindustan Times (29 April 2018); available at www.hindustantimes.com/india-news/kiran-bedi-saysno-free-rice-for-puducherry-villages-if-not-defecation-free/story-XAT8zub1x9eTWDeobqO64O.html.
13 The Quint, ‘Kiran Bedi Retracts Linking of Free Rice to Clean Villages’, The Quint (28 April 2018); available at www.thequint.com/news/ india/kiran-bedi-says-no-free-rice-to-village-with-open-defecation-garbage.
• those with arrears in payment for electricity, and
• those without functional toilets.14
These are examples of the state being disciplinarian and paternalistic.
The amendment was challenged in the Supreme Court of India for adopting arbitrary bases, which had the effect of denying the right to contest to many with socio-economic vulnerability. The intolerance and impatience of the legislature was, however, endorsed by a two-judge bench. Statistics showed that large numbers of people— women, scheduled castes (SCs), scheduled tribes (STs)—would stand disqualified by these amendments. For instance, of the SC population of 21 lakh in Haryana, 11 lakh were men, and 10 lakh women. Of these, 6.3 lakh men and 3.1 lakh women were recorded as being educated. Assuming that all of them were educated to the level demanded by the amendments, at least 68 per cent women and 41 per cent men belonging to the SCs would be rendered ineligible to contest. Yet the Court was unwilling to see that these exclusions were arbitrary.15
In a statement that caused much consternation because of the bias that it revealed, the judge explained why he was sympathetic to these disqualifications: ‘It is only education which gives a human being the power to discriminate between right and wrong, good and bad. Therefore, prescription of an educational qualification is not irrelevant for better administration of the panchayat.’16
It was argued that denying a person the right to contest panchayat elections, and so to become a participant in decisions affecting their lives, because they do not have a functional toilet in their homes, would exclude a large number of the rural poor. This is an unhealthy practice, the Court said, referring to open defecation, and the state has evolved schemes to provide financial assistance to those needing help in building toilets. Poverty is one of the reasons for not having toilets, but open defecation is not practiced only by the poor in rural
14 The Haryana Panchayati Raj Act, 1994 as amended by the Haryana Panchayati Raj (Amendment) Act, 2015, s 175.
15 Rajbala v State of Haryana Writ Petition (Civil) No. 671 of 2015 (Supreme Court of India, 2015) (‘Rajbala’).
16 Rajbala (n 15), para 85.
India. ‘If people still do not have a toilet, it is not because of their poverty but because of their lacking the requisite will’, the Court said, upholding the amendments.17
Illiteracy, debt, and open defecation, all three indicate systemic failure. Yet, the Court readily endorsed the shifting of responsibility to large numbers of the rural poor, who have, over decades, been excluded from basic services, and who would now be cast in the mould of ‘status offenders’.18
Such manifest prejudice against those in poverty is not entirely new. In 2000, the Supreme Court of India was dealing with a public interest litigation (PIL) about solid waste disposal in the four metropolitan cities of Mumbai, Chennai, Kolkata, and Delhi. In the midst of a diatribe against municipal authorities, the municipal employees tasked with cleaning the city, and the industrial and domestic waste being emptied into the river Yamuna, the Court directed its wrath at slums and slum dwellers.19 ‘When a large number of inhabitants live in unauthorised colonies with no proper means of dealing with the domestic effluents, or in slums with no care for hygiene, the problem becomes more complex’,20 the Court said. This was a prelude to launching an attack on the proliferation of slums: ‘The number of slums has multiplied in the last few years by geometric
17 Rajbala (n 15), para 95.
18 Rajbala (n 15). In this case, the judges refused to test the legislation for arbitrariness under Article 14 of the Constitution of India, holding that ‘it is not permissible for this court to declare a state legislation unconstitutional on the grounds that it is arbitrary’. This was expressly overruled in Shayarabano v Union of India Writ Petition (Civil) No. 118 of 2016 (Supreme Court of India, 2017). The Rajbala judgment will have to be revisited, and the legislation tested for arbitrariness. For a treatment of ‘status offenders’, see Usha Ramanathan, ‘Ostensible Poverty, Beggary and the Law’ (2008) XLIII(44) Economic & Political Weekly, 33.
19 Almitra Patel v Union of India Writ Petition (Civil) No. 888 of 1996 (Supreme Court of India, Judgment dated 15 February 2000) (‘Almitra Patel’).
20 Almitra Patel (n 19), 4.
proportions’; for usurping ‘public land … for private use free of cost’. ‘Instead of Slum Clearance’, the Court raged, ‘there is Slum Creation in Delhi’, resulting in increase in density in the city. The authorities must realize, the Court said, that there is a limit to which the population of a city can be increased. Then, in a twist of logic that certainly did not draw from the report of a committee that the Court had set up to study the problem of solid waste disposal, the Court pronounced: ‘It is the garbage and solid waste generated by these slums which require to be dealt with most expeditiously and on the basis of priority’. Amidst these expostulations about slums, the Court made a statement that acquired notoriety: ‘Rewarding an encroacher on public land with free alternative site is like giving a reward to a pickpocket’.21
This was a likening of poverty with criminality, which spoke volumes about judicial bias. What followed heightened the understanding of the Court’s disdain for those in poverty, and its concern that slums and garbage could disrupt the lives of the rest of the denizens. Land for landfill sites was proving hard to find because of the cost of land. ‘One of the reasons for the sites not being available,’ the Court said,
was that land-owning agencies like the Delhi Development Authority or the government of the National Capital Territory of Delhi are demanding market value of the land of more than Rs. 40 lakhs per acre … Keeping Delhi clean is a governmental function … It is the duty of all concerned to see that landfill sites are provided in the interest of public health. Providing of landfill sites is not a commercial venture, which is being undertaken by the MCD. It is as much the duty of the MCD as that of other authorities … to see that sufficient sites for landfills to meet the requirement of Delhi for next twenty years are provided. Not providing the same because the MCD is unable to pay an exorbitant amount is un-understandable. Landfill site has to be provided and it is wholly immaterial which Governmental agency or the local authority has to pay the price for it.22
21 Almitra Patel (n 19), 4.
22 Almitra Patel (n 19), 5.
This judgment marks a definitive shift in reimagining the ‘public’ in ‘public interest’, even as it lays blame and the city’s shame on those too poor to be legal.
* * *
Years before sanitation got its place as a human right, untouchability, caste-based discrimination, and dispensability attributed to a community of persons had fomented a movement. Manual scavenging—a term with a meaning and a practice specific, ironically, to the modern Indian condition23—is a predominantly caste-based occupation, where human excreta is removed manually.
In 1950, Article 17 of the Constitution of India declared untouchability to be an off ence. 24 It was only in 1993 that a law was enacted outlawing manual scavenging and dry latrines. 25 Th e law remained a statement of acknowledgement rather than of intent till, in 2003, a movement for the implementation of the 1993 law, and for the eradication of the practice, took the case to court. It was over a decade later that the Supreme Court of India expressly ruled that manual scavenging is a practice in untouchability, and cannot be constitutionally tolerated. 26 While the case was still in court, and spurred on by movements against manual scavenging around the country, Parliament enacted a further law in 2013 to prohibit manual scavenging, specifi cally recognizing the everyday risk and danger, and alarmingly frequent deaths, of sewer workers, in sewer lines and septic tanks. 27 In 2015, the escalating
23 On the definition of manual scavenging, see Wilson (Chapter 10) and Khanna (Chapter 11) in this volume.
24 Constitution of India, Art. 17 reads ‘Abolition of Untouchability: Untouchability is abolished and its practice in any form is forbidden The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law’.
25 The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993.
26 Safai Karamchari Andolan & Others v Union of India & Others (2014) 11 SCC 224 (Supreme Court of India, 2014).
27 The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.
numbers of deaths of manual scavengers in sewer lines and septic tanks 28 was refl ected in an amendment to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, asserting the caste basis of the practice, and that manual scavenging constitutes an ‘atrocity’.
Despite these developments in law and judicial pronouncements, and the severity of the violations being publicly acknowledged, there is no evidence that this is a matter addressed while pursuing sanitation and ODF campaigns. In November 2017, the mission statement of the Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation set out categorically:
Discrimination against manual scavengers is another concern. … From a human rights perspective, whether individuals are engaged in manual cleaning of open pits, septic tanks or sewer lines, with or without protective gear, in direct contact with excreta—as per the definition in the Act—is not a relevant factor to ascertaining that manual scavenging is a caste-based discrimination.
… I heard from several family members, during meetings in Delhi and Lucknow, a number of relatives (husbands, brothers, and sons) that died during the hard work of emptying latrines or cleaning sewer lines.
… In taking steps forward in the realisation of the right to sanitation, India may involuntarily contribute to violating the fundamental principle of non-discrimination. Particularly given the generationsold practice of imposing sanitary tasks onto the lower castes, the growth in number of toilets raises concerns that manual scavenging will continue to be practiced in a caste-based, discriminatory fashion.
Even in the case of Clean India Mission’s preferred technology for excreta disposal—the twin-pit latrine—it is nevertheless questionable that manual scavenging as a discriminatory practice will be eliminated … [and] some studies have indicated that the construction of single pit latrines is actually on the rise across several
28 In just one year, 2017, the Safai Karmachari Andolan (SKA) recorded 132 deaths of persons sent into sewers.
Indian states, which will require even more unsafe work from manual scavengers.29
These are early years yet when the literature exploring the contours of the human right to sanitation is just beginning to be produced. There is so much to understand: Who is asking for it, what are the costs and who is having to pay for them, what the law is, what courts say, and what aspirations are found among people and among states. This volume marks a moment in the evolution of this human right, as it travels across issues, continents and countries, and concerns. It is empathetic to the importance of the right, as well as to the problems forced by notions of shame; pollution; cleanliness; and experience with exclusion, discrimination, violence, and coercion. This is a good time to take stock of what the right is, and how it can be achieved without putting other rights at risk.
29 United Nations, ‘End of Mission Statement by the Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation Mr Léo Heller’, (10 November 2017); available at www.ohchr.org/EN/NewsEvents/Pages/ DisplayNews.aspx?NewsID=22375&LangID=E.
Acknowledgements
The editors would like to acknowledge all the people who have contributed to the progressive development of this volume.
We would like to thank Jessy Thomas for translating Bezwada Wilson’s interview, and for her extensive contribution to the copyediting of this volume. We would also like to acknowledge the contribution of Arunoday Majumder in shaping Bezwada Wilson’s interview into its chapter form. Finally, we would like to thank Preeti Mohan for preparing and presenting a paper at the workshop in Delhi, which laid the foundation of the chapter on sanitation and state planning. We also thank all the participants of the workshops organized in Delhi and London.
Philippe Cullet gratefully acknowledges the financial support of the Leverhulme Trust through an international academic fellowship, and the institutional support of the Centre for Policy Research (CPR), New Delhi, India and SOAS University of London, UK. Lovleen Bhullar and Sujith Koonan would also like to acknowledge the institutional support of the Environmental Law Research Society (ELRS), New Delhi.
New Delhi, 16 July 2017
Introduction
Philippe Cullet, Sujith Koonan, and Lovleen Bhullar
The right to sanitation has been progressively integrated into the international human rights law framework since the beginning of the century. In India, the recognition of the right itself is not a matter for debate since courts have repeatedly affirmed its existence as a right deriving from the fundamental right to life.1 Key issues arise in the context of the conceptualization and realization of the right and relate to the existence of a law and policy framework for the realization of the right to sanitation for all, the scope of the right, its links with other rights such as health and gender equality, as well as issues of specific relevance in the Indian context, such as manual scavenging and more generally caste-based discrimination and exploitation linked to sanitation work. This book represents the first effort to conceptually engage with the various dimensions of the right to sanitation in India.
India faces a number of sanitation-related issues. While some of these challenges may be common with other countries, for example,
1 For example, Virendra Gaur v State of Haryana (1995) 2 SCC 577 (Supreme Court of India, 1994).
The Right to Sanitation in India. Edited by Philippe Cullet, Sujith Koonan, and Lovleen Bhullar.
© Oxford University Press 2019. Published 2019 by Oxford University Press.
South Africa, and/or form part of the debates at the international level, in various ways the situation in India is either different in terms of the scale of the issues, such as open defecation, or idiosyncratic, as in the case of manual scavenging and, more broadly, the caste-related issues linked to sanitation. This book analyses the right to sanitation in India in the broader international and comparative setting. In a context where sanitation challenges are more severe in India than in many other countries, this book is the first step towards a better understanding of the right to sanitation and its multiple dimensions. This contribution is necessary not only to deepen the context for understanding sanitation in India, but also to provide a point of comparison vis-à-vis other countries and to expand the scope of the debate at the international level.
One of the main contributions of this book is to foster an understanding of the right to sanitation as being much broader than the way in which it is currently recognized in mainstream debates.2 Whereas sanitation interventions often focus on infrastructure development (toilets and sewerage), some of the central questions that arise from a rights perspective are linked to dignity. These may be related, for instance, to issues of privacy arising in the context of open defecation or discrimination against people engaged in sanitation work. This book also highlights a number of other dimensions that have not received sufficient attention from a sanitation perspective, such as environmental dimensions, including water pollution, wastewater treatment, and wastewater reuse that are usually addressed from the water or environmental perspective.
Situation in India and Challenges
The sanitation situation is particularly worrisome in India. Only six years ago, there were 81.4 crore people without access to sanitation,
2 It follows and builds on a mapping exercise of the law and policy framework brought together in an edited compilation of sanitation-related instruments: Philippe Cullet and Lovleen Bhullar (eds), Sanitation Law and Policy in India: An Introduction to Basic Instruments (Oxford University Press, 2015).
out of which 62.6 crore people practised open defecation, accounting for 59 per cent of the worldwide figures.3 Even worse, these figures do not represent the actual use of toilets. This was, for instance, confirmed in the national Baseline Survey of 2012, which found toilet coverage of rural households at 38.76 per cent, with only 79.42 per cent of these toilets being functional.4
With regard to toilet construction—the main indicator used to identify access to sanitation—there has been a significant increase in the number of structures built over the past few years. Since the launch of the SBM in October 2014, coverage of individual toilets in rural areas has increased from 38.7 per cent to 80.79 per cent.5 As of April 2018, 14 states have been declared open defecation free (ODF). In urban areas, 31 lakh individual toilets and 1.15 lakh community and public toilets have been built. 6 In the states of Gujarat and Andhra Pradesh, all the cities are now ODF. 7
As this book elucidates, toilet construction represents a limited entry point for the realization of the right to sanitation, and various other dimensions of sanitation need to be considered as well. First, there is the issue of toilet destruction. This is very specific to dry latrines. They should all have been replaced decades ago in furtherance of the constitutional prohibition on untouchability, one of the manifestations of which is manual scavenging. Therefore, any remaining dry latrines need to be urgently destroyed. Census 2011
3 WHO/UNICEF, Progress on Drinking Water: 2012 Update (WHO/ UNICEF Joint Monitoring Programme for Water Supply and Sanitation, 2012), 19, 21.
4 Swachh Bharat Mission (Gramin), Baseline Survey 2012, All India Abstract Report; available at http://sbm.gov.in/BLS2012/State.aspx.
5 Government of India, Ministry of Drinking Water and Sanitation, Swachh Bharat Mission (Gramin): All India; available at http://sbm.gov.in/ sbmreport/Home.aspx; 5 April 2018.
6 Swachh Bharat Mission website; available at http://swachhbharatmission. gov.in, 5 April 2018.
7 Note that this is disputed. For example, Sagar, ‘Down the Drain: How the Swachh Bharat Mission is Heading for Failure’ Caravan (May 2017) 31, 34.
found that 7.94 lakh dry latrines were still in use countrywide.8 The number has reduced since then but it has not reached zero yet.9
Second, there is the related issue of manual scavenging. For a long time, it was not addressed as part of sanitation. There are good reasons to address manual scavenging separately since it is intrinsically linked to untouchability and broader social issues. At the same time, manual scavenging represents a system of management of human excreta where certain human beings are in direct contact with human excreta, and thus it is an unavoidable debate in the sanitation sector. Census 2011 identified approximately 13 lakh scavengers, of whom 95 per cent were Dalits and 98 per cent were women.10 However, these figures may not be accurate. The continuance of the practice has been discovered in places where it is declared to have been eradicated.11
Third, the health challenge linked to sanitation is acknowledged but not always clearly integrated into the debate around the right to sanitation. The negative health consequences of inadequate sanitation particularly affect children who are widely exposed to infections transmitted through faeces. This, in turn, is one of the causes of stunting that affects 48 per cent of children under five years of age.12
Fourth, there is an immense environmental challenge linked to sanitation that spans liquid and solid waste management. Untreated or partly treated domestic sewage is the known cause of most water
8 Answer to Lok Sabha Starred Question No: 395 ‘Manual Scavenging’, answered on 5 August 2014.
9 For example, Sarika Malhotra, ‘Swachh Bharat: Undocumented Manual Scavengers Nix Govt’s Success Story’, Hindustan Times (12 April 2017); available at http://www.hindustantimes.com/india-news/swachh-bharatundocumented-manual-scavengers-nix-government-s-success-story/story2lJjCi91xllbEwMw0spvyI.html.
10 R. Ilangovan, ‘Manual Scavenging: Death in the Gutter’, Frontline (31 May 2013), 37.
11 Malhotra (n 9).
12 Robert Chambers and Gregor von Medeazza, ‘Sanitation and Stunting in India: Undernutrition’s Blind Spot’, (2013) XLVIII(25) Economic & Political Weekly 15.
