Excerpts from the End of Mission Statement by Special Rapporteur on the human rights to safe drinking water and sanitation Léo Heller, following his visit to India at the invitation of the government from 27 October to 10 November 2017:
India’s case law on the human rights to water and sanitation are internationally recognized as progressive. While the Indian Constitution does not explicitly stipulate the human rights to drinking water and sanitation, article 21 of the Constitution guarantees the right to life, which has on several occasions been interpreted by the courts to include the right to drinking water. As early as the 1990’s, the Indian judiciary has formally recognized the right to water as derived from the right to life. Most recently, in 2014, the Mumbai High Court held that the slum dwellers who occupied illegal huts cannot be deprived of their fundamental right to water. In another case, in 2014, the Supreme Court affirmed transgender persons’ right to their self-identified gender and directed the Government to provide them separate public toilets.
At the policy level, the Government of India is in the process of implementing several national programmes that aim to improve access to drinking water and sanitation. Notably, the Swachh Bharat Abhiyan (Clean India Mission) was the most frequently discussed topic during my interactions with both the government and civil society. I warmly commend the Prime Minister for his personal motivation and push in building political will from the central government to the most basic unit of administrative body (gram panchayat) and to all persons in India to eliminate open defecation. The main goal of the programme is to end this practice by October 2019 through the massive installation of millions of toilets across the country and an impressive budget. This is a unique effort of a country in the contemporary world to face its challenges related to sanitation in an extremely short time span. Surely, this is a large step towards the progressive realization of the Indian population’s human right to sanitation.
However, through my dialogues and interaction with the several tiers of the Government, civil society and community members, my outlook on the way that water and sanitation services are being provided and scaled up throughout the country became more nuanced. My impression is that policy and programme initiatives in India’s water and sanitation sector, and the related implementation measures, lack a clear and holistic human rights-based approach. The national programmes do not incorporate the human rights to drinking water and sanitation as a whole but rather in a piecemeal manner.
My particular concerns for the gaps in the application of the human rights framework in the Indian water and sanitation sector are illustrated in the following pivotal issues. The aim here is to provide insights on how to introduce a more human rights oriented approach in this sector. The normative content of the human rights to water and sanitation include the following elements: availability, accessibility, acceptability, affordability, quality/safety, privacy and dignity; as well as fundamental human rights principles: right to access to information, participation and remedy, accountability, equality and non-discrimination, progressive realization. In this connection, I would like to reiteratie India’s commitment as a State party to several international human rights treaties7 and India’s support on the rights to water and sanitation at the international level.
“Open defecation free” mustn’t be human rights free
The new paradigm initiated by Clean India Mission has provided considerable impetus to build infrastructure, particularly toilets. On my last day in India, the website of the Clean India Mission showed a striking number of 53 million toilets built in the last 3 years and one month, only in the rural area. During the visit, I had the opportunity to visit some rural communities in Uttar Pradesh, certified as open defecation free, and I was able to see and hear about the significant improvements in their sanitary conditions.
According to the responsible ministries, the protocol to certify an “open defecation free” area (e.g. city, village, ward) is not the same for rural and urban areas. I learned that in some places “open defecation free” certified areas are often not de facto open defecation free. In a certified “open defecation free” village that I visited (Chinhat ward, Naubasta Kalan, Lucknow), some elderly people reported that they continue to practice open defecation for personal preference and comfort. In Mumbai, the local authority identified 118 zones that were used for open defecation and built collective toilets within 500 meters of those areas. Yet, some residents in those zones still choose to defecate in the open due to habitual, cultural and practical reasons. From the human rights perspective, making areas open defecation free is more than checking off the criteria; the status of open defecation free is not “black and white”, but is a gradual achievement in line with the progressive realization of the human right to sanitation.
While some individuals choose to defecate in the open as a matter of preference, I visited areas where open defecation remained the only feasible option. This was particularly true in slums and in rural villages and in resettlements sites, where community toilets were often far away or inexistent. In the non-notified slum Vinaykpuram (Lucknow), all dwellers defecate in the open. In my walk around the slum, I saw no functional community toilets close by and the only one dysfunctional toilet that was built two years ago. In Savda Chevras (Delhi), a resettlement site, I visited a community toilet that had no light or locks. Furthermore, in villages near the Thoubal Dam in Imphal, Manipur, local authorities had only partially constructed some household toilets and while the intended beneficiaries wait for them to be finished they have no choice but to defecate in the open.
Together with the Clean India Mission, other policy initiatives on ensuring access to water and sanitation in schools have been implemented but have evidently still not met their goals. For example, in 2015, the Department of Human Resources announced that schools should have separate toilets for boys and girls. The Government reports having built separate toilets “in every government school”: 226,000 toilets for boys and 191,000 toilets for girls were apparently constructed from August 2014 to August 2015 under the Swachh Vidyalaya Campaign. Yet, in 2016, only 61.9 per cent of schools have available and useable girls’ toilets (up from 32.9 per cent in 2010 and 55.7 per cent in 2014). Indeed, in Sarthara village (near Lucknow), I visited a school for primary and upper grades composed of 130 students where no functioning toilets are available; two small toilet facilities with 2 urinals and 1 toilet each are being built.
The Clean India Mission does possess an explicit component on Information, Education and Communication (IEC) and the central government—but not all State governments— is apparently spending the expected budget to such activities. Be it due to insufficient financial resources or inadequate methodology adopted for these activities, it is likely that this fundamental aspect of the program is not achieving its desired outcomes: the sustainable and safe usage of toilets.
The results of assessments on sustainability, safety and usage of toilets vary largely and depend on the methodology.
According to surveys conducted in 2016 and 2017 by the Quality Council of India, approximately 91 per cent of toilets that had been built were being used. An assessment conducted by WaterAid suggests a different scenario, highlighting that usage may be susceptible to decreasing very soon without continued efforts to make infrastructure sustainable. In the survey, “only 33 per cent of toilets were deemed sustainably safe (eliminating risks of contamination in the long term); 35 per cent were safe, but would need major upgrades to remain safe in the long term; and 31 per cent were unsafe, creating immediate health hazards”. Indeed, I observed several cases of abandoned or poorly maintained toilets. Toilets may also be installed with doors that do not have locks, which negatively affect users of privacy. Conversely, I observed and heard of several cases where functioning toilets exist in public places but are left locked.
Talking with government officials, community representatives and residents, it became clear to me that open defecation is often an ingrained personal and social practice, and that it can be difficult to persuade people to end this practice. In several States challenges were reported in achieving behaviour change in their communities, particularly for the elderly. At the same time, I met many individuals in villages who enthusiastically explained their satisfaction with the benefits that come with having an individual household toilet. Many, including government officials, expressed doubts that behaviour change can be done in a short time period and would be sustainable in the long term for all those recently “converted” to using toilets.
The Clean India Mission is heavily target- and performance-oriented, with a very short time frame given the scale of its desired outcomes. Implementation of the program involves strong competition at all levels (villages, districts and states).
However, likely as an unintended consequence of the desire to obtain rewards, some aggressive and abusive practices seem to have emerged. In the interest of achieving the targets and obtaining the corresponding rewards, I have received several testimonies that people are being coerced—sometimes through public authorities—to, on the one hand, quickly construct toilets and, on the other, stop practising open defecation. For instance, individuals could have their ration cards revoked, which directly impacts on their right to food. Households with overdue energy bills, hitherto tolerated by the authorities, could have their service cut off. In others cases, individuals defecating in the open are apparently being shamed, harassed or otherwise penalized. In response to such cases, the Ministry of Drinking Water and Sanitation recognized the existence of abuses associated with the Clean India Mission implementation and issued at least two advisories to all local States underlining that such practices must stop. In my view, these abuses require a continuous monitoring and accountability by the several tiers of government for the achievement of open defecation free and, at the same time, upholding the dignity of all persons and without violating other fundamental rights.
Discrimination against manual scavengers is another concern. Through the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act 2013, the Government has made efforts to identify and rehabilitate manual scavengers into different occupations. Having done this exercise, it is widely believed that manual scavenging no longer exists.
Yet, concerns continue to exist. During my interaction with civil society, several surveys identifying the number of manual scavengers were presented to me. There are discrepancies in those numbers, as identified by the Government and surveys by civil society. 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.
During the visit, I met several people that indicated that either themselves, their relatives or neighbours continue to be employed in manual scavenging practice. I met with a number of current manual scavengers in Uttar Pradesh from various districts (Mainpuri, Hardoi, Bareli, Firojabad) who are engaged in manual scavenging. 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, without receiving adequate compensations from the State and having faced much difficulties in filing cases for compensation.
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 generations-old 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. Firstly, communication efforts will have to be extensive and continuous for many years in order for hundreds of millions of people to acquire and assimilate the knowledge of how they function (the first pit is filled with waste, the pit is switched, the first pit is not touched for at least one year, and after that period the waste can be removed safely). Secondly, some studies have indicated that the construction of single pit latrines is actually on the rise across several Indian states, which will require even more unsafe work from manual scavengers.
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