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Panel Report - Socio-legal Water and Sanitation Dialogue

On May 23, 2021, the Socio-Legal Review, NLSIU, in collaboration with the Rehabilitation Research Initiative, India (‘the RRI’), conducted an online session titled ‘Socio-legal Water and Sanitation Dialogue: India Chapter’. The RRI and the South Asian Sanitation Labour Network have been working for the rehabilitation of sanitation workers and farmers in distress since 2012. The session’s primary goal was to understand the relation between water and sanitation, sanitation infrastructure, labour and behaviour in India. The panel discussed the related crisis from a sociological and legal perspective. Also in attendance were grassroots activists who have been working on the rehabilitation of sanitation workers.

Mr. Prannv Dhawan,[1] the moderator, began the session by screening a short documentary prepared by the RRI on the continued active use of dry latrines in semi-urban and rural areas in India during the pandemic, despite a strict ban over the years.[2] Informal settlements in areas in West Bengal bordering Bangladesh still use dry latrines and hanging toilets, which sanitation workers are forced to clean every day. These are remote areas, often left undocumented in surveys. Corruption at the local level contributes to the lack of innovation and sanitation coverage. India's urban sanitation coverage reports focus on the number of toilets constructed, rather than the evaluation of the utility of this infrastructure, mainly because the government and interested institutions spend enormous amounts of money on construction. This means that the actual usage of toilets is not realistically reflected in the surveys, primarily because it is not combined with local community data. When it comes to sanitary toilets, more than one lakh toilets do not have proper water coverage, and around thirty-three thousand and seven hundred toilets have been completely abandoned during the pandemic. The video also highlighted how legal fixation on open defecation has done nothing to help sanitation workers. The prevalence of dry latrines and poor sanitary toilets in rural areas has been left unaddressed by the law, despite an increase in urban sanitation coverage. The video highlighted the need for the government and institutions to not only pursue immediate measures to abolish these dry latrines but also revisit and survey the sanitary toilets that they have been busy building, especially in rural India. The aim of this session was to understand, from a sociological and legal perspective, the interconnectedness between water and sanitation, sanitation infrastructure, sanitation labour, and sanitation behaviour in India.

Mr Prannv Dhawan also drew attention to the relationship between the growing water crisis and sanitation, and the lack of appropriate governance frameworks to address both, which have historically contributed to the marginalisation of sanitation workers.

I. Sanitation Work and the COVID-19 Pandemic

Dr. Assa Doron[3] began by contextualising the crisis in terms of recent global developments. He considered how the second wave of the COVID-19 pandemic has worsened the situation in India. In most disasters, it is the poor and marginalised who are disproportionately affected, and whose access to capital is severely limited.[4] Further, the struggling healthcare system in India, which all but buckled under pressure during the second wave, has been underfunded for decades, and has suffered from systemic neglect. Its crumbling infrastructure is incapable of addressing the needs of the population.[5] Sanitation infrastructure in India has similarly failed.

Dr. Doron recounted discussions he had had with sanitation workers from his book, ‘Waste of a Nation: Growth and Garbage in India’.[6]The pollution and disease accompanying the uncontrolled waste of an industrialising society ultimately belong to everyone.” He recorded a garbage truck driver remarking, "The problem with waste is that it doesn't wait for anyone.” This applies to the pandemic situation. Particularly, the fact is that social life in India and globally has taken a turn for the worse as many have lost loved ones and jobs. The lives of people have been suspended. Further, many have been forced into the anxious condition of waiting for what remains an unsure future. However, waste does not wait; it has to be removed or treated properly. If not, it festers, rots, and decays. Then, it can become a breeding ground for disease, and for the spreading of toxins which pollute the environment and public spaces.

In this context, waste in sanitation infrastructure needs to be in the headlines. One of the key concerns of his book is the importance of governance, and the importance of the legal and practical challenges that India faces in cleaning up its spaces. Another related key issue is the socio-economic divide, prejudice, and oppression suffered by those dealing with waste, whether it be Dalits, migrants or landless labourers, all of whom are involved in the umbrella category of waste work.[7]

The crisis associated with waste is not new, highlighting the examples of the ‘Great Stink’ in mid-nineteenth century England, and the Surat plague.[8] These affected the rich and the poor alike, and led to quite remarkable changes to the sewage and sanitation systems in these cities.[9] The pandemic can trigger a similar change. However, in the meantime, it is those at the bottom of the waste pyramid who continue to suffer. Dr. Doron highlighted horrifying stories of waste pickers working with no protective gear, exposed to hazardous waste.[10] While the protection given to sanitation workers in law means that manual scavenging is illegal,[11] in practice, septic tanks continue to be filled. Sewage needs to be unclogged, and the drains are as dysfunctional as the latrines. There have also been reports of bodies flowing in the rivers and packed cremation grounds, all of which render these sanitation services more essential than ever, and more exposed than ever.

Sanitation workers are overworked, underpaid, and extremely vulnerable. Dalit and other marginalised communities perform very dangerous, dirty work, and risk not only their lives on a daily basis but also the lives of those in their communities.[12] Yet, the rights and socioeconomic welfare of these sanitation workers are rarely discussed.

II. Rethinking Law in Water and ante Sanitation Sector Reforms

A. Water, Sanitation, and Judicial Invention

Professor Philippe Cullet[13] started his discussion by highlighting the linkage between the water and sanitation sectors. The sanitation sector does not receive much attention by itself, and is usually discussed in relation to water. This is apparent from the use of acronyms such as WatSan (Water and Sanitation) and WASH (Water, Sanitation and Hygiene). However, this linkage is problematic as there are many water-related issues that are not related to sanitation, such as drinking water. Further, in the sanitation sector, there are other issues such as dry latrines and manual scavenging. In the water sector, the discussion has been framed around water scarcity, which is an environmental understanding of water.[14] This does not mean that there is no practical link between water scarcity and sanitation. One of the primary concerns of sanitation is access to toilets. Addressing this concern involves the installation of toilets that are generally more water-intensive, as they are usually linked to the sewage system. There is also the issue of wastewater disposal, which has come into the limelight after the Swachh Bharat mission.[15]

The structures to deal with water and sanitation are extremely complex. In the Constitution of India, both of these subjects are dealt with at the state level.[16] The union has residuary powers over the subject of water, which deal specifically with inter-state water disputes.[17] Another angle to approach these issues is through the environment sector and environmental law, which has largely been developed at the union level. Hence, both the state and union levels have to be accounted for while discussing the legal aspects of these issues. The judiciary, especially the higher judiciary, also plays a very important role, especially since the fundamental right to water and the fundamental right to sanitation have only been recognised in judicial decisions.[18]

Despite this, there remain various gaps in these sectors that have been addressed through policies. These include the National Water Policies of 1987, 2002, 2012, and 2021.[19] There have been fewer policies in the sanitation sector, such as the National Urban Sanitation Policy of 2008.[20] These policies were formulated at the Union level. Even in terms of implementation, while the mandate rests with the states, practically, the central government issues administrative directions to the states. These administrative directions take the form of guidelines and schemes. The Union government provides financial incentives to the states to adapt these policies, such as the Accelerated Rural Water Supply Programme (1970s-2009) and the National Rural Drinking Water Programme (2009).[21] The two most recent schemes are the Swachh Bharat Mission and the Jal Jeevan Mission. The Swachh Bharat Mission focuses on urban and rural areas, while the Jal Jeevan Mission has focused on rural areas since its inception, and has added its urban component only recently.[22]

Prof. Cullet then discussed the various judicial decisions that deal with the right to water and sanitation. The Constitution does not itself mention either of these. In Subhash Kumar v State of Bihar,[23] the right to enjoy pollution free water and air was read into Article 21 as a part of the right to life. In Hamid Khan v State of Madhya Pradesh,[24] the Court used Article 47, a Directive Principal of State Policy, to hold that the state has the responsibility to improve public health by providing unpolluted drinking water. This decision is significant as it juxtaposes rights with duties. This was brought out more clearly in a Kerala High Court decision, Vishala Kochi Kudivella Samarkhana Samithi v State of Kerala,[25] where the Court held that the government is bound to provide drinking water to the public, as this right includes a duty to provide water on the part of the state. The Kerala High Court decision also leads to the debate between provision and access, where access involves right-holders, typically through the payment of the water they consume.

Prof. Cullet argued that these judicial decisions are limited since they do not provide the content of the right. There is no legislation that clarifies what these rights and duties entail. Further, the court’s interpretation of the right to water has not always been beneficial, as was seen in the Narmada Bachao Andolan case. Here, the Supreme Court used the right to water to justify the building of a dam, without accounting for the negative impact on those who would be displaced by the same.

Elaborating on the first limitation, Professor Cullet noted that there have been quite a few draft legislations that have been proposed at the central and state levels to recognise the right formally.[26] However, none of them have been adopted. Further, the legal debate focusses on quantity, while the policy debate focusses on quality. There are several standards available but none of these are linked to a statutory framework, and are hence not binding on the providers of drinking water. Most of the legal infrastructure that exists is at the municipality and panchayat levels (local self-government). These bodies have the mandate to provide water. However, their laws are not linked to either quantity or quality.

Apart from executive action in the form of policies and schemes, the judicial recognition of rights, and the enactment of policies at the local levels, he also spoke of civil society participation that has shaped the discourse on water and sanitation. Many organisations have campaigns against water privatisation, dam-related campaigns, campaigns to implement government policies, and work that focuses on the diffusion of international policy consensus at a national level.[27]

B. The Inadequacy of Judge-made Rights and Duties

Prof. Cullet remarked that the sector has largely focused on water-based toilets. Further, issues of sanitation are separated from manual scavenging. They are also separated from other issues, such as the violence women face when they defecate in the open. Such instances are considered to belong exclusively to the realm of criminal law, and there is no understanding of their relation to sanitation.

As far as the right to sanitation is concerned, the Indian Constitution doesn’t accord it direct recognition. Nevertheless, since the early 1980s, judicial intervention has culminated in the legal recognition of a (derived) fundamental right to sanitation. In the case of Virendra Gaur v State of Haryana, the Supreme Court of India established a nexus between the right to life under Article 21 and human dignity, while also linking sanitation with clean water, air, and environmental protection.[28] Unfortunately, the right to sanitation has seen negligible enforcement despite being wellenshrined in court verdicts.

On the issue of manual scavenging, untouchability, and sanitation, Prof. Cullet highlighted the presence of an unambiguous legal framework to regulate the same. The framework is rooted in the abolition of untouchability under Article 17 of the Indian Constitution, and is complemented by two central legislations, namely:

1. Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993;

2. Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.

The Safai Karamchari Andolan v Union of India is a significant Supreme Court judgement upholding Article 17 and forbidding the practice of untouchability in all forms.[29]

Unfortunately, the inhumane process of manual scavenging continues to plague Indian society. Prof. Cullen mentioned how there is a dearth of comprehensive state-level or central legislative framework regulating sanitation. The limited and sectoral laws that exist focus primarily on drainage or sewage in urban areas, and postulate the duties of municipal bodies and panchayats in urban and rural areas respectively.[30] Likewise, pollution control and waste management legislations pay little attention to the aspect of sanitation. The right to sanitation has been buttressed to some extent in rural areas via the utilization of policy instruments, such as administrative directions for providing clean drinking water, and most importantly, the Swachh Bharat Mission, which incentivized people to construct toilets and use them instead of contributing to open defecation.

Finally, Prof. Cullet outlined the challenges encountered in the recognition of liberal fundamental rights, such as the right to clean water, by alluding to the Bombay High Court’s verdict in 2014 in Pani Haq Samiti v Brihan Mumbai Municipal Corporation.[31] Quoting the High Court’s observations, he explained how a citizen residing in illicit structures or slums cannot claim a right to water supply on par with a citizen living in lawfully constructed premises, and that the Municipal Corporation is entitled to charge higher water charges to ‘illegal occupants’ in comparison to law abiding citizens.[32]

In the case of sanitation, Prof. Cullen referred to Chapter XX, Section 175 of the Haryana Panchayati Raj Act, 1994 (as amended in 2015),[33] which mandates the presence of a functional toilet at the residences of candidates contesting the elections for the post of Sarpanch or Panch of a Gram Panchayat, or a member of a Panchayat Samiti or Zila Parishad. He also quoted the Supreme Court verdict in Rajbala v State of Haryana, wherein it was held that one of the fundamental duties of any civic body is the maintenance of sanitation within its jurisdiction.[34] This indicates that the right to sanitation is conditional in character, and an amalgamation of both a right and a duty.

Other challenges plaguing the invigoration of the right to sanitation include the shift from provision to access, which is partially connected with the broader debate on privatisation and the participation of stakeholders and cost recovery. This shift hasn’t been legislatively sanctioned, owing to which the current accountability mechanisms have been neglected in favour of community-level accountability.

On comparing the rights-based approach as against a duty-based approach, Prof. Cullen remarked that policy frameworks are devoid of allusions to rights, and that in the context of sanitation, rights holders are problematically termed as ‘beneficiaries’.[35] The surging emphasis on duties in public discourse, as evidenced in events like the denial of ration to BPL Card Holders in Madhya Pradesh in 2017 due to the lack of toilets in their homes, have diminished the significance of rights.[36] The inchoate condition of the law further exacerbates the lack of accountability on the part of the duty bearer.

In Prof. Cullen’s opinion, the way forward is to work towards the ground-level enforcement of the rights to water and sanitation, since they’ve already been accorded adequate legal recognition by the Indian courts. Additionally, research needs to be conducted on the nexus and distinctions between the two sectors. He concluded by making reference to his books, which provide a more comprehensive analysis on the water law and the right to sanitation in India.[37]

III. Shared Financing

Professor van Dijk continued the discussion.[38] Over the course of his career, he has advocated for the involvement of community-based NGOs and of the private sector in making clean water and proper sanitation available across the country. His previous work on water and sanitation in India covers some of these issues.[39] He helped introduce the ‘Sulabh’ initiative in New Delhi, where people pay a nominal amount of 1 rupee to utilize public toilets, which are regularly maintained and kept hygienic.[40] This model initiative has two very unique aspects.

First, the financing of the construction of toilets is shared among different stakeholders. The Public-Private-Partnership model uses land provided by the Delhi Municipal Corporation to the Sulabh managers for the construction of toilets. This construction was funded via the publicity generated through advertisements for different agencies.

Second, Prof. van Dijk highlighted that this model necessitates a transparent governance structure and the proper collection of consistent funds. He drew this conclusion based on his research in the Ugandan Civil War, which saw the functioning of only those healthcare services that were run by non-governmental organisations. While Prof. van Dijk acknowledged the significance of a rights-based approach to water and sanitation, he also underlined the importance of funds to obtain the same. He cautioned against people taking the recognition of rights for granted, and against fixing unreasonable expectations on the government- an observation he recorded from his work on Tanzania. The government might often lack the resources to arrange the facilities demanded by its citizens, leading to large-scale confusion. Thus, a self-sustaining and adequately financed governance structure should be put in place for the provision of water and sanitation in India. Placing excessive reliance on the government in all probability will not yield positive results, as was evident during the COVID-19 crisis in 2021.

IV. Manual Scavenging and Sanitation

Ms. Arkaja Singh[41] began by acknowledging that the law on manual scavenging is a subset of the larger framework governing sanitation labour. However, she emphasised the importance of talking about the issue of manual scavenging separately. She further emphasised the importance of studying the evolution of the law on manual scavenging as a historical process. She continued with an analysis of the interface of law and sanitation technologies, and what this means for manual scavenging work. Ms. Singh accordingly discussed some functional distinctions and concepts that are useful to better understand the law.

A. Different Types of Sanitation, Manual Scavenging, and Changes in State Policy

First, Ms. Singh discussed the distinction between traditional and modern sanitation systems, and how manual scavenging has taken place in the two forms. She stated that the traditional and historical practice of manual scavenging involved removing human excreta from dry latrines that did not have a flushing system. Instead, manual scavenging in the more modern toilet technologies involves the practice of below-ground scavenging, like septic tanks, sewage blockages, and latrine pits.[42] While the modern below-ground system changed the infrastructure of sanitation technology, it is unfortunate that the practice of manual scavenging did not simultaneously come to an end. In fact, manual scavenging in modern days has changed in more dire ways, as it has become more dangerous by increasing the risk of death.

Second, she went on to discuss another important distinction – between on-site and network sanitation i.e. places which are connected with sewage networks. Ms. Singh stated that most people in the world do not have access to a modern sanitation system, where a flush toilet is linked to a sewage network and sewage plant. She further explained that on-site non-network containment pits are periodically and intermittently evacuated, which can now be done mechanically. Therefore, she stated, this is a safe sanitation mechanism that is also acceptable under legal standards. However, there are problems with all three forms of sanitation – the on-site, historical, and network form, since they all involve problems related to their management and cleaning.

She went on to discuss a related problem regarding the transformation in technologies i.e. the problem with changes in state policy. Due to these policies, people who were earlier involved in the practice of manual scavenging were formally employed in the activity. Instead, today, public work of this sort is more likely to be outsourced for spot jobs. A particular person may be employed for a particular job through a ‘spot contract’. This makes it more difficult to regulate the sector.

Ms. Singh then stated that the moral impetus for the emancipation of manual scavengers has been present since the early 20th century, and is linked significantly to social oppression based on the caste hierarchy.[43] She discussed how the condition of manual scavengers at that time translated into giving them better implements and bathing facilities. Hence, as all committees repeatedly report, there were concerns about implements and bathing facilities. However, there was no concern about their dire working conditions.[44]

B. Legal Developments and Government Initiatives against Manual Scavenging

Ms. Singh then discussed the committees that were established in India for the emancipation of manual scavengers, and the steps taken by the government to do away with the practice. The first committee was established in 1949.[45] Issues regarding their condition gathered momentum in the 1980s, when the government issued the scheme ‘liberation of manual scavengers’.[46] This scheme provided funds to convert dry latrines into pour-flush latrines, and for the rehabilitation of manual scavengers into other areas of employment. In some states like Karnataka and Maharashtra, manual scavenging in some specific forms was banned around this time.[47]

Finally, in 1989, the central government set up a task force to find a way to eliminate manual scavenging.[48] The principle was a two-pronged weapon – converting dry latrines to pour-flush toilets as one prong, and allocating funds for the rehabilitation of manual scavengers as the other. The recommendations of this task force resulted in the Employment of Manual Scavengers and Construction of Dry Latrines Prohibition Act, 1993. Certain other government schemes were also launched towards the two prongs of their attempt. However, it is near impossible to find any proper discussion on what happens once the pour-flush is used to move the excreta into the septic tanks or latrine pits. It is important to note the absence of such discussion.

Ms. Singh went on to discuss the case filed by the Safai Karamchari Andolan in the Supreme Court, alleging the government’s inaction under the Prohibition law.[49] It asked the court to declare manual scavenging an issue of human and fundamental rights, to entirely abolish the practice, and to give specific directions to the government. Following this case, the Supreme Court issued several directions to various government agencies, and called upon them to report on the steps taken so far.[50]

Such cases were filed in the 2000s before several High Courts. In most of these cases, focus was placed on the institutional aspect of manual scavenging. These cases emphasised the oppressive nature of manual scavenging, and resulted in a clear legal principle being laid down that there should be state facilitated compensation in case of death due to manual scavenging.[51] However, the courts have been far less effective in the penal sphere as there have been no convictions for employing someone to perform manual scavenging, even though the same is a crime. Ms. Singh highlighted how the institutional framework to do away with manual scavenging has been limited only to funds and schemes. In some of the High Court cases, there was progress towards fixing institutional responsibility for the whole system of excreta management on the city corporation or the water board authority, in their specific jurisdictions. However, this was lost in the final outcome as the law developed.[52] Promises about rehabilitating manual scavengers concluded at very measly budgetary allocations for training people in running silai centres, driving, etc., and making them capable of self-employment. However, there is no responsibility on the part of the authorities to check if such individuals are actually employed. Hence, the policies have not resulted in any substantial employment and rehabilitation.

Ms. Singh then analysed the 2013 Act, which has expanded the scope of the definition of manual scavenging and established the principle that the term includes both traditional and modern forms. However, there are a lot of questions that still remain unanswered, such as why the penal provisions have never been used. Another unanswered question is about the exact role and obligations of the state.

C. The Disconnect Between Law and Society

The main problem with the law is that there is a certain disconnect between sanitation and manual scavenging, because of which the funds allotted for sanitation infrastructure are not clearly linked with its cleaning and management. This, in turn, leaves sanitation labour deprived of funds. Ms. Singh mentioned that the National Green Tribunal in Delhi has, in several instances, held that Delhi slumdwellers, who have no access to proper waste disposal infrastructure, should also be made to pay the Water Board. It has based its holding on the polluter pays principle with the reasoning that by existing and excreting, the slum-dwellers participate in being polluters of the Yamuna River.[53] This is what law and policy should not do. Law and policy instead need to look at the technology and labour interface much more realistically.

Ms. Singh then quoted from Mr. Ankur Bisen’s book, where he wrote that the Indian state never owned the responsibility of sanitation.[54] Apart from the limited amount of sanitation work that the Indian government undertakes, there is no formal institution or framework of responsibility to take care of waste disposal. In terms of technically feasibility, Ms. Singh explained how it is impractical for most people, especially those living in highly dense locations, to deal with the final disposal of excreta on their premises. They feel that their pits will fill up, and then they would not know what to do with it. The main problem here is that this waste is finally dealt with by Dalit sanitation workers in extremely undignified, unclean, and dangerous ways.

Ms. Singh said that this was the cost of the selective amnesia and blinkered approach to law and technology, which would never be addressed by markets alone. With the Indian state not bearing the responsibility for sanitation, there is an implicit idea that people will be able to take care of it themselves. Relating this to the water supply system, she questioned whether people would be able to take care of their water supply on their own. This is not physically possible. Hence, sanitation must also be thought of on similar grounds, as a broader public problem that needs a public framework.

In her concluding remarks, Ms. Singh said that the question is not really about reorganising the Manual Scavenging Act, which is largely adequate. Instead, there is a need to work with municipal laws, water board acts, building codes, and environment regulations. There is a need to examine how they relate to disposal and the work that is involved in the maintenance and management of sanitation, wastewater disposal, building construction, etc.

V. Rethinking the Law

Mr. Ankur Bisen[55] continued the discussion, focussing on the various solutions to replanning the law on sanitation solutions in India, and the measures with which we can overcome these challenges. While partly subscribing to Professor van Dijk’s view about treating the right to sanitation through an economic lens, he reiterated the need to look at sanitation from a value chain perspective.

A. State Duty and Cost of Delay: The Need for Legislative Urgency

He examined the emergence of the law on manual scavenging, and observed that there have been centuries of condemnation. Society has perceived sanitation from the shoulders of the marginalised. He stated that it is important that the issue of rights comes up, and is secured and delivered as human rights. He then referred to Ms. Singh’s point about the helplessness on the part of the judiciary. They cannot really pass orders on something that does not exist. If the laws are inadequate, one can creatively interpret existing laws, and address certain issues that come to the court. Beyond that, it becomes extremely difficult. He brought up the doctrine of impossibility, which was recently applied by the Supreme Court in addressing the Allahabad High Court’s order pertaining to COVID-19 infrastructure. The Supreme Court opined that it is impossible to implement something that does not exist.[56]

Mr. Bisen argued that this dilemma also exists in sanitation. There are three important factors which need to be reconciled. The first factor is the magnitude of the problem. It is important to recognise that India is among the largest generators of waste in the world. This calls for thinking about new laws because the current laws are not adequate to address it. The second factor is the lack of reference in the minds of the consuming society. While rights serve as an important focal point in drafting laws, the state's expectation of imposing a duty on citizens to keep the city clean is a questionable proposition. If people have never lived in a clean environment and have never experienced clean solutions before, the state cannot expect them to develop a superior reference point and come forward to deliver superior sanitation solutions. Thus, it is the duty of the state to create this superior reference point. The third factor is the cost of delay. He remarked that the concept of sanitation has moved beyond only latrines to the environment as a whole, cross-functional themes in a circular economy, and the different types of waste that is generated, such as hazardous waste, medical waste, plastic waste, etc. Since waste is generated on a massive scale, the cost of delay is significant.

Putting these three aspects together, Mr. Bisen concluded that the state needs to be at the forefront of the generation of ideas and legislation around sanitation. It needs to accept this responsibility. Owing to these 3 factors, it cannot look to any other solution to wash off its responsibility.

Mr. Bisen drew an analogy to the electricity sector in the 1950s and 1960s, which saw a similar need for legislative and governance frameworks. At the time, there was a lack of equivalents to the current electricity distribution companies and boards. However, the rising need of electricity led to the separation of electricity generation and distribution. This led to establishment of regulatory boards and the development of infrastructure in the industry. He believes that the same thinking needs to be adopted in the context of sanitation. Such an industrial solution is needed considering the significance of the problem. Further, there was a lack of a reference point in the electricity sector in the 1950s - the state could have escaped its responsibility of transporting electricity to every citizen’s home. Nonetheless, this formed an essential part of the industrialising nation and thus demanded an active role of the state. He believes that the same legislative urgency needs to be recognised by the state in the context of sanitation problems.

Other countries have demonstrated the required legislative urgency. Mr. Bisen took the example of Japan in the post-World War II period, when sanitation was a serious issue in the country. Between the 1950s to 2003, Japan brought a number of legislation and amendments, averaging one amendment or one new enactments every 2 years. This demonstrates the legislative urgency recognised by them to address the issue of sanitation, and the important role played by the State in the process. On the basis of these analogies, Mr. Bisen observed that the State needs to be at the centre of this process.

B. Four Recommendations for Future Sanitation Law Reform

Mr. Bisen discussed four areas in which laws related to this issue need to be conceptualised.

The first aspect is the economics of sanitation, which was discussed by Professor van Dijk. Reiterating the importance of economics and the value chain of sanitation, Mr. Bisen stated that laws cannot be made independent of the economics of sanitation. The key issue is the creation of a supply chain, and the development of infrastructure for the disposal of waste. He believes that there can be industrial, non-network, and community-based solutions, among others. A governance framework which respects the economics of sanitation is more important than the specific form of solution adopted, because it will determine the cause of the marginalisation of the profession of sanitation. He states that the profession of sanitation is a scientific process and requires technical expertise. To realise the true economic value of the process, it needs to be transformed from an informal process to a formal one. Sanitation workers need to be respected in society. They must be treated as resource engineers who are paid more than a minimum wage and must be given employment benefits. This can only be achieved through the economics of sanitation.

The second aspect is specificity in law making. He observed that the language used in various laws is extremely binary in nature, and is intentionally kept vague. It also demonstrates the lack of rigour in legislative writing. He stated that such binary statements do not provide the progressive nudge that is needed for the industry to secure formal solutions. He substantiated this by arguing that the law only prohibits people from doing something. This, in turn, prevents people from seeking counter actions from the law. Such a prohibition maintains the informality of the sector and makes it opaque. Another aspect of specificity is the difference in the types of waste generated. E-waste is one such type of waste which has a complex chemistry and mixes with other forms of waste to create hazardous conditions. He mentioned other types of waste which require different kinds of treatment, such as plastic waste, wet-waste and sewage waste. He argued that a single blanket law is insufficient to address the complex nature of such waste.

The third aspect is the importance of interdependence, which was also mentioned by Ms. Singh and other speakers. Mr. Bisen took the example of the Karnataka Government’s project to transport 400 million litres of sewage per day from Bangalore to Kolar and Chikkaballapur. This waste is then treated at an ETP plant and used for agriculture.[57] However, this project also suffers from the problems of government framework that were discussed by Professor van Dijk. A variety of challenges such as funding, infrastructure, user fee, operation, etc. were all left to a single body, which had to improvise and implement the project. Although this project worked, it faced a lot of challenges, such as the purity of the water generated.[58] The farmers protested against the use of this water. This shows how interdependencies are overlooked in drafting solutions. He gave another example of a 2016 government plan to use sewage waste from urban India as compost in rural India to promote organic agriculture.[59] However, this plan did not consider the coming together of organisations like IFFCO or other fertiliser companies.[60] It did not consider the lack of reverse logistics to take this organic fertiliser from urban India to rural India. This shows the lack of interdependency that should have been addressed under this project, and the way in which it has significantly restricted its progress. Mr. Bisen took another example of the building codes in cities that lead to unsanitary outcomes due to the way they are designed. A design, which is supposed to be a solution, instead leads to unsanitary outcomes. He further addressed a similar condition of rental housing in urban India.

He finally observed that the electricity sector should be taken as a reference point. Moreover, waste collection should be delinked from waste disposal. According to him, waste collection involves the collection of waste from individual units such as villages, cities, etc. This is the responsibility of the municipal bodies and the State. Meanwhile, waste disposal is the responsibility of municipal bodies and panchayats. These bodies are underfunded, and do not have the technical capabilities required to address this issue. He compared the Indian situation with countries in Europe and North America that are known as “clean countries”. He observed that these countries have already delinked waste disposal from waste collection. Waste disposal is a federal responsibility where the government only provides infrastructure and industrial assets. The solution beyond this can come from the private sector, the public sector, or can be community based as well. The State must take the responsibility of moving waste from one state to another, and of its import and export. He concluded that such key distinctions in the responsibilities of the State organs in this process needs to be established.

VI. Swachh Bharat Mission and Sanitation

A. Empirical Study on Open Defecation and the Swachh Bharat Mission

Mr. Nazar Khalid[61] shared data from a research study conducted by him between August and December 2018.[62] The study looked at the change in sanitation and open defecation patterns in rural North India after the Swachh Bharat mission (‘SBM’), from 2014-2018. The team visited 11 districts in Bihar, Madhya Pradesh, Rajasthan, and Uttar Pradesh to collect samples for this survey. These areas were important to cover because the four states constitute 40% of the population of India.

From the data collected, as in the above table, the team observed the open defecation behaviour of nearly 9800 people living in around 1500 households. Most of these households had been surveyed in 2014, and were revisited in 2018. Further, from conversations with government officials at the village and block level, the team drew conclusions about the pre-SBM and post-SBM periods, and the SBM’s impact. After analysis, it was apparent that the progress made by the SBM was insufficient, and that open defecation is still prevalent in the aforementioned states.

The data was divided into three categories: raw averages, census weighed, and DHS weighed. In all these estimates the cases of open defecation remained high, ranging from 40% to 57%. The survey was novel in that it measured open defecation on an individual level, unlike the usual practice of considering the entire household as one unit. Instead, in this survey, the surveyors spoke to each member of the household.

Mr. Khalid presented estimates of open defecation in rural north India in 2018 using a table, which showed high rates of open defecation.[63]

He then showed the audience a table which presented the changes in open defecation between 2014 and 2018.

In the focus states, open defecation rates had dropped from 70% to 44%. To understand this change, the Kitagawa-Blinder-Oaxaca Decomposition Method was used to identify changes in both behaviour of individuals and ownership of latrines. Although there are more single pit latrines, twin pit latrines are recommended as they help in better waste management. However, single pit latrines are preferred due to lower costs and high pressure on local governments to declare their areas as ‘open defecation’ free.

B. The Limitations of Coercive Measures and Casteism in the Swachh Bharat Mission

Mr. Khalid then discussed the pressure on government officials to declare their districts Open Defecation Free (‘ODF’). Since there was significant resistance from people to build latrines, the authorities had to resort to coercive measures for the same. These coercive measures are evidenced from posters and signs which provide for various sanctions. These include a fine of 500 rupees or legal action if found defecating in the open, jail under s. 269, 270, and 336 of the Indian Penal Code, as well as denial of ration cards if a latrine is not constructed.[64]

He then referred to the survey conducted to determine the impact of these coercive measures. More than half of sample population were aware of at least one of the three coercive tactics used by government officials. The surveyors also found that Dalits and Adivasis were more likely than other groups to report that their own household had experienced such coercion.[65] He stated that this initiative, instead of challenging the notions of caste impurities, managed to reinforce them. Individuals called ‘Swachhadaris’ were sanctioned by block/village level officials to ensure that latrines were constructed and that open defecation did not take place. Often Swachhadaris were also upper caste individuals. He shared an example of the reinforcement of caste hierarchies where such Swachhadaris listed the names of only Dalit persons.

On the whole, however, coercive measures seem to have worked. Latrine ownership has seen a rise, and open defecation has fallen, due to such coercion.

C. Recommendations for Future Sanitation Programs

Having established the relationship between coercive measures, latrine ownership, and open defecation, Mr. Khalid proceeded to expound on the ways in which future sanitation programs can reduce open defecation without resorting to coercion. He also pointed out that the notions of caste impurity and untouchability remain central to sanitation behaviour in India. For example, people are averse to building smaller latrine pits because they are perceived to require frequent emptying: an activity often associated with caste impurity. In contrast, larger pits do not require emptying as often, and reduce worries of coming in contact with human faeces and/or hiring a manual scavenger.

Through his study, he concluded that the fall in open defecation in India has much to do with coercive measures. As a result, the sustainability of this downward trend is suspect. He referred to a 2017 survey by the Accountability Initiative[66] which found that households that constructed a latrine primarily under pressure from village officials were least likely to use them, as on the day of the survey.[67] Whereas households that constructed latrines due to considerations such as convenience and the lack of open spaces reported the highest likelihood of them being used on the day of the survey.

Mr. Khalid concluded by identifying certain key considerations for any future sanitation policy framework: first, the elimination of coercive tactics; and second, encouragement of latrine use along with messaging that addresses notions of caste impurity.

VII. South Asian Sanitation Labour Network: Notes from the Field

Ms. Pragya Akhilesh,[68] the secretary of the Bhim Safai Karmachari Trade Union, introduced the South Asian Sanitation Labour Network[69] and invited Ranbir Kumar and Jogendra Parihar, India Convenors, to pose questions and to address the panel.

Mr. Kumar shared his experience of organising and mobilising sanitation workers across India, and the impact of their work on the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013. He called attention to the government’s failure in ensuring the dignity of sanitation workers, highlighting that policies such as the Swacch Bharat Abhiyan merely reinforce the oppression of safai-karamcharis along the lines of caste. Dry toilets with shallow pits have been constructed under the aegis of the programme, and require frequent emptying. Mr. Parihar similarly drew attention to the most paralysing of all the shortcomings of the 1993 and 2013 legislations, which is their narrow focus. First, these enactments are limited only to manual scavenging and do not cover other forms of sanitation work, such as the open drain system. Second, as his work in villages in Uttar Pradesh has shown, these laws have not been properly implemented. Where sanitary latrines are constructed, the lack of water supply and supporting infrastructure means that sanitation workers are inevitably forced to revert to the system of manual scavenging.

He also highlighted the narrow focus of the laws due to their ignorance of the link between the need for economic security and inter-generational nature of manual scavenging work. There is a need to think more deeply about salaries and the economic remuneration of sanitation workers at the policy level. The current monetary amounts are not only too little to establish security, but are also given out in four tranches. As a result, it is very hard for manual scavengers to make a shift to alternative work. Without financial security, sanitation workers also do not have the capacity to educate their children and prevent them from engaging in manual scavenging as a last resort. Thus, the law fails by limiting its outlook to the mere formal eradication of manual scavenging. By ignoring the financial distress that keeps such work alive, the law ignores the fate of individuals after the state’s limited objective of the ‘eradication’ of manual scavenging is met. He added that there is a need to recognize that manual scavenging will come to an end only with the end of caste-based discrimination. Mr. Parihar also brought to light the failure of NGOs and advocacy groups in asserting the needs of manual scavengers. Their ineffectiveness means that much of their work is superficial.

As the concluding speaker, Mr. Anil recounted his experiences from his work with Water Aid in Bihar.[70] He built on Mr. Parihar’s discussion and highlighted the manner in which caste-based oppression acts as the single most determinative factor in the inter-generational continuation of manual scavenging. The notion that certain communities are meant to exclusively engage in manual scavenging is entrenched in Indian society. As India progresses economically, individuals engaged in manual scavenging are left behind, and remain trapped in such work. Recounting his experiences from Bihar, he explained how manual scavengers are left dependent on the stale food distributed by the village. When they move to other forms of work, like small trade and business, they are ostracised by society and fail to integrate in the village economy on account of being ‘ex-manual scavengers’. The absence of permanent alternative employment means that they do not have the resources to prevent future generations from engaging in such work. In this manner, the economic dependence of manual scavengers on the dominant castes for survival reveals the failings of social security infrastructure in India. Breaking free from manual scavenging then requires more than just economic policies from the state – active engagement is required to deconstruct the inseparable link between caste-based oppression and manual scavenging.



[1] Mr Prannv Dhawan is a V year student at the National Law School of India University, Bangalore. [2] The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993, s 3(b); The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act 2013, s 4, 5. [3] Dr. Assa Doron is Professor of Anthropology & South Asia, Australian National University, Canberra. [4] Stephane Hallegatte, and others, ‘From Poverty to Disaster and Back: a Review of the Literature’ (2020) 4 Economics of Disasters and Climate Change 223 <>. [5]Ashwini Deshpande, ‘The fault line of poor health infrastructure’ (The Hindu, 21 May 2021) <> accessed 9 December 2021; Jagdish Shettigar and Pooja Misra, ‘Wake-up call for India’s Healthcare infrastructure’ (LiveMint, May 25 2021) <> accessed 9 December 2021. [6]Assa Doron and Robin Jeffrey, Waste of a Nation: Garbage and Growth in India (Harvard University Press 2018). [7] Sheeva Dubey and John Murphy, ‘Manual Scavenging in Mumbai: The Systems of Oppression’ [2020] Humanity and Society 1; Subhash Gatade, Silencing Caste, Sanitising Oppression: Understanding Swachh Bharat Abhiyan50(44) (2015) EPW 29. [8] Emily Mann, ‘Story of cities #14: London’s Great Stink heralds a wonder of the industrial world’ (The Guardian, 4 April 2016) <> accessed 9 December 2021; Mohana Basu and Swagata Yadavar, ‘1994 Surat plague has many lessons for India on how to beat coronavirus’ (The Print, 14 March 2020) <> accessed 9 December 2021. [9]‘Chapter 3: Sewage and Society’ in Doron and Jeffrey (n 6). [10] ‘Supreme Court raps government for not giving safety gear to manual scavengers’ (National Herald, 18 September 2019) <> accessed 9 December 2021; Radhika Bordia and Yogesh Pawar, ‘Manual Scavenging has killed 400 Indians since it was banned- and yet nobody has been convicted’ (, 16 April 2021) <> accessed 9 December 2021; Parbhjit Singh, ‘As India Enters Lockdown 4, Delhi’s Sanitation Workers Still Don't Have PPE’ (The Wire, 18 May 2020) <> accessed 9 December 2021. [11]The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act 2013, s 5, 6, 7. [12]Meena Gopal, ‘Ruptures and Reproduction in Caste/Gender/Labour’ (2013) 48(18) Economic and Political Weekly 91. [13] Prof. Philippe Cullet is a Professor of Environmental Law at the SOAS. [14] ‘Goal 6: Ensure access to water and sanitation for all’ (UN Sustainable Development Goals) <> accessed 9 December 2021; ‘Goal 6: Clean Water and sanitation’ (UNDP Seoul Policy Centre for Knowledge Exchange through SDG Partnerships)<> accessed 9 December 2021. [15]Tatjana Schellenberg et al, ‘Wastewater Discharge Standards in the Evolving Context of Urban Sustainability–The Case of India’ (2020) 8 Frontiers in Environmental Science 1 <>. [16]The Constitution of India 1950, sch VII list II entry 6, 17.. [17] ibid sch VII list I entry 56, 97. [18]Subhash Kumar v. State of Bihar (1991) 1 SCC 598 [7]; State of Karnataka v. State of A.P. (Allmati case) (2000) 10 SCC 664 [248]; Narmada Bachao Andolan v. Union of India (2000) 9 SCC 572 [178] (while reiterating that the fundamental right to life); Videh Upadhyay, ‘Water Rights and the ‘New’ Water Laws in India’ in India Infrastructure Report 2011 <>. [19] ‘National Water Policy’ (Central Water Commission) <>; National Water Policy 1987; National Water Policy 2002; National Water Policy 2012; ‘National Water Policy’ (Ministry of Jal Shakti) <> (provides links to the 1987, 2002, and 2012 policies); National Water Policy 2021; Moushumi Gupta, ‘User fees, state-level regulators, fewer dams — what draft National Water Policy proposes’ (The Print, 25 January 2021) <> accessed 9 December 2021. [20] ‘National Urban Sanitation Policy’ (Ministry of Urban Development) <>. [21] Philippe Cullet, ‘New Policy Framework for Rural Drinking Water Supply: Swajaldhara Guidelines’ (2009) 44(50) EPW 47 <>. [22] ‘About us’ (Swachh Bharat) <> accessed 9 December 2021; ‘About’ (Jal Jeevan Mission) <> accessed 9 December 2021. [23] (1991) 1 SCC 598. [24]1996 SCC OnLine MP 287. [25](2006) SCC OnLine Ker 63. [26] National Water Framework Bill 2016; ‘MP drafts right to water law, promises 55 litre/day to each’ (Hindustan Times, 25 February 2020) <,be%20doubled%20for%20repeat%20offenders> accessed 9 December 2021. [27]Strengthening CSO Engagement in water governance: summary report (IUCN Bridge 2018) <>. [28] (1995) 2 SCC 477. [29] (2014) 11 SCC 224. [30]The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act 2013 chapter V. [31] PIL No. 10 of 2012 decided on 15/12/2014. [32] Pani Haq Samiti [18, 21]. [33] The Haryana Panchayati Raj (Amendment) Act 2015. [34] (2016) 2 SCC 445. [35] The Self Employment Scheme for Rehabilitation of Manual Scavengers (SRMS) 2013. [36] Hemender Sharma, ‘Madhya Pradesh: Homeless woman denied ration for not having a toilet’ (India Today, 21 February 2018) <> accessed 9 December 2021; Milind Ghatwai, ‘Madhya Pradesh: Sheopur administration gives rations only to villagers with toilets’ (Indian Express, 25 January 2017) <> accessed 9 December 2021. [37] Philip Cullet, Water Law, Poverty, and Development- Water Sector Reforms in India (OUP 2009). [38] Meine Pieter van Dijk (PhD Economics Free University Amsterdam) is an economist and professor of Water Services Management at UNESCO-IHE Institute for Water Education in Delft. [39] Meine Pieter van Dijk, ‘Sanitation in Developing Countries: Innovative Solutions in a Value Chain Framework’ in Hongyi Sun (ed), Management of Technological Innovation in Developing and Developed Countries (IntechOpen 2012). [40] ‘About Sulabh International Social Service Organisation’ (Sulabh) <> accessed 9 December 2021. [41] Ms. Arkaja Singh is a Fellow at the CPR. [42]‘Manual Scavenging in India’: A National Scourge’ (2019) 11(10) TerraGreen 24, 24<>. [43]Gopal (n 12). [44] S Koonan, ‘Manual Scavenging in India: state apathy, non-implementation of laws and resistance by the community’ [2021] Indian Law Review 149 <>. [45]See ‘Report of the Scavenging Conditions Enquiry Committee’ (Indian Culture) <>. [46] Liberation of Scavengers (ILCS) began from 1980-81; see Pragya Akhilesh, ‘Banning manual scavenging in India: A long, complex passage’ (Down to Earth, 18 September 2020) <>. [47]Cite. [48] Report of the Task Force for Tackling the Problems of Scavengers and Suggesting Measures to Abolish Scavenging with Particular Emphasis on their Rehabilitation (Planning Commission 1990-91) <>. [49] Safai Karamchari Andolan v. Union of India (2014) 11 SCC 224. [50] Vakasha Sachdev, ‘8 Months After SC Order, No Manual Scavenger Data From State Govts’ (The Quint, 29 October 2019) <> accessed 9 December 2021. [51]Praveen Rashtrapal IRS v Chief Officer, Kadi Municipality and others 2006 SCC OnLine Guj 22; A Narayanan v The Chief Secretary, Government of Tamil Nadu 2008 SCC OnLine Mad 858. [52] Arkaja Singh and Aditya Unnikrishnan, ‘Why manual scavengers in India haven’t got their rights despite laws, judiciary intervention’ (The Print, 26 February 2020) <> accessed 9 December 2021. [53] ‘1,500 unauthorised colonies, slums in Delhi major cause of Yamuna pollution: Panel’ (New Indian Express, 25 November 2018) <> accessed 9 December 2021. [54]Ankur Bisen, Wasted: The Messy Story of Sanitation in India, a Manifesto for Change (Pan Macmillan India 2019). [55] Ankur Bisen is a Senior Partner, Consumer, Food and Retail at Technopak Advisors. [56] State of UP v In Re: Inhuman Condition at Quarantine Centres and for Providing Better Treatment to Corona Positive SLP No. 7147/2021 order dated 21-05-2021 <>. [57] Shreehari Paliath and Sachinkumar Rathod, ‘Why domestic wastewater from Bengaluru is being sent to Kolar and Chikkaballapur’ (, 24 November 2019) <> accessed 9 December 2021. [58] Mohit Rao, ‘In Kolar, a parched land in a sea of sewage’ (The Hindu, 13 October 2018) <> accessed 9 December 2021. [59] Mehboob Jeelani, ‘Swachh Bharat: plan to produce power, compost from solid waste’ (The Hindu, 2 October 2015) <> accessed 9 December 2021. [60] Gaurav Vivek Bhatnagar, ‘Government Scheme to Turn Urban Waste to Compost Failed to Make an Impact, Says Parliamentary Panel’ (The Wire, 18 May 2017) <> accessed 9 December 2021. [61] Ph.D. candidate in Demography at University of Pennsylvania; Research Fellow, r.i.c.e . [62] Ashish Gupta and others, ‘Changes in open defecation in rural north India: 2014 – 2018’ (R.I.C.E., 4 January 2019) <> accessed 9 December 2021; Ashish Gupta and others, ‘Revisiting Open Defecation: Evidence from a Panel Survey in Rural North India, 2014–18’ (2020) 55(21) EPW <>. [63] These include averages, census weighted and DHS weighted. [64] Ration is a right under the National Food Security Act 2013. [65] While Dalits were more than twice as likely, Adivasis were almost thrice as likely. [66] Devashish Deshpande and Avani Kapur, Unpacking the Processes of Achieving Open Defecation Free Status: A case study of Udaipur, Rajasthan (Centre for Policy Research 2018) <>. [67] ibid. [68] Ms. Pragya Akhilesh is the National Convener of Rehabilitation Research Initiative, India, and secretary of the Bhim Safai Karmachari Trade Union. [69] Required – short introductory statement to the SASLN. [70] Required – full name and short introductory statement to Mr. Anil.

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