Mission Statement by Special Rapporteur on Human Rights : 10 November 2017

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http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22375&LangID=E

End of Mission Statement by the Special Rapporteur on the human rights to safe drinking water and sanitation Mr. Leo Heller

Press conference was live-streamed and can be found at:
http://bit.ly/2yMe8qT

As the United Nations Special Rapporteur on the human rights to safe drinking water and sanitation, I address you today at the conclusion of my official visit to India, which I undertook at the invitation of the Government from 27 October to 10 November 2017.

India is a country with historical gaps regarding the access of its population to adequate water and sanitation services. It is reported that 40 per cent of India’s population practiced open defecation in 2015, one of the highest proportions among all countries. The situation of water and sanitation in the country has resulted in a disturbing impact on human health: diarrhoea-related deaths in India attributable to inadequate water, sanitation, and hygiene corresponded to 40 per cent of the total number in all low and middle-income countries in 2012. And, to my surprise, this situation is not explained only by the level of development of the country: the Human Development Index of India is higher than that of dozens of other countries.

In recent years, the efforts of the country in addressing these problems, mainly access to sanitation services, have been recognized as an “unprecedented commitment”.

These circumstances motivated me to undertake this visit to the country in order to identify the main obstacles hindering the full realization of the rights to safe drinking water and sanitation. Firstly, I would like to thank the Government of India for the invitation and organisation of the visit, and for the dialogues that took place. I am grateful to the central, state and local Government representatives that I met and I appreciate the spirit of openness with which I was able to engage with the authorities. During the visit, I also met with various civil society and community organisations, and residents. I would like to thank everyone who took the time to meet with me and who generously shared their personal experiences, testimonies and living conditions with me. Their contributions were vital to the success of this visit. I would also like to thank the United Nations Resident Coordinator’s Office in India for facilitating the visit. (See information about the visit at the end of the statement).

At the outset, I would like to clarify that this statement outlines my preliminary findings and recommendations based on the information gathered prior to and during the visit. My final and more complete report will be presented to the United Nations Human Rights Council at its 39th session in September 2018.

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At the end of this two-week visit in India, my impression of India’s water and sanitation sector and how the Government of India is addressing its human rights obligations regarding the rights to water and sanitation is largely mixed.

My first impression is greatly positive.

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 treaties and India’s support on the rights to water and sanitation at the international level.

1. “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.

Another key concern is related to the level of sanitation services that has been provided in India. Under the Sustainable Development Goals (SDGs), the target and the indicator for universal access to sanitation (target 6.2) adopts the definition of “safely managed services”, meaning that people should use improved sanitation facilities not shared with other households. This requires providing individual households facilities to those who currently rely on community toilets. Applying this concept also indicates the need for improved management of greywater, which commonly flows into open drains in India. This standard will also require an effective faecal sludge management for excreta stored in latrines, as well as a massive increase in wastewater treatment plants for the sewage collected by sewerage systems, mostly in cities.

2. Efforts for water at a slower pace than sanitation

While the Clean India Mission has raised sanitation to the top of the country’s agenda, access to improved water has received less attention. This raises serious concerns: in India, unsafe water is responsible for 68 per cent more diarrhoea deaths than unsafe sanitation.

While India achieved the Millenium Development Goals for sustainable access to safe drinking water, I would like to highlight that the way in which Indian people currently access water services is far from meeting requirements established by the SDG 6.1 target and indicator, namely, through the already mentioned concept of “safely managed service”. This standard requires that water is accessible on premises, meaning that public water points are not considered as “safely managed service”. The concept also states that water should be available when needed, which will require that water in urban and rural areas is provided continuously. Further, “safely managed service” also means that water should be free from faecal contamination and hazardous levels of arsenic and fluoride. In connection with this, the relevant bodies at all levels require appropriate processes to monitor and survey drinking water quality, and to properly remove chemical and microbiological contamination.

In 2015, 92 per cent of India population was reported to have access to improved sources of water. When we use the stricter definition adopted under the SDGs, this proportion reduces dramatically: only 49 per cent of the rural population receive water meeting this standard. For the urban areas, 73 per cent of the population have water accessible on premises and 86 per cent have it available when needed.1 No consolidated information for drinking water quality in Indian urban areas are available in the SDG baseline report.

Drinking water quality is a matter of concern. In the country, 85 per cent of rural drinking water supply and 50 per cent of urban drinking water supply come from groundwater sources. Accessing groundwater may be a serious concern in different parts of India, considering the known problems of water contamination by arsenic and fluoride, but also by pathogens. According to the West Bengal Pollution Control Board, 38 per cent of the groundwater in the State is contaminated with arsenic and fluoride. This is a huge problem, because approximately 84 per cent of the rural population in West Bengal depends on groundwater sources for drinking water. Although the central and state governments have been adopting different measures to control this chemical contamination, those measures have not been entirely effective and the problem worryingly persists, causing serious health effects. For instance, I met a man living at Gobindapur village near the Bangladesh border, who was suffering from chronic arsenicosis and who show me the effects of this disease on different parts of his skin. His brother has passed away due to arsenic contamination and his family members also suffer similar negative health impact.

Another key issue related to water quality is faecal contamination. The general state of surface waters in the country, considering the conditions of access to adequate sanitation services, particularly the deficits in wastewater treatment, poses severe threats to a high microbiological standard of the water consumed. The Joint Monitoring Programme WHO/UNICEF, for the Sustainable Development Goals, reports that more than one third of the water consumed by rural populations are contaminated. Different studies are showing doubtful microbiological drinking water quality in different parts of India. One additional relevant remark, related to health risks due to drinking water ingestion, is that many households do not treat water before consumption.

To my understanding, affordability should be treated as an integral part of the indicator’s definition of “safely managed” services. In general, access to water services by the population provided by formal systems in India, including urban population connected to the piped systems, is relatively affordable. However, I have witnessed several situations where users are forced to rely on informal providers who sell water at an extremely higher price than the formal provision. In a resettlement site in Delhi, residents that were not able to collect water from the Delhi Jal Board water tank must rely on Water ATMs, meaning that they must have adequate financial resources to ensure themselves water of an acceptable quality. In Kolkata, informal vendors transport water obtained freely through public taps and charge slums dwellers for the delivery (20 Indian rupees for 20 litres of water). In the informal settlement of Kaula Bunder, Mumbai Port Trust, a so-called “water mafia” operates a highly complex and unsafe network that is illegally sourced from the municipal water network. Although municipal and state authorities denied its existence, I witnessed a web of water mains suspended in the air (so-called “flying pipes”) between the informal settlement’s 7,000 shacks, snaking across the ground and passing through immense heaps of waste to be paid high prices for by its residents.

Just as water and sanitation services go hand in hand, the rights to access improved water and improved sanitation must be addressed as a package. The two services are highly interrelated. For many people that I met during my visit, lacking water is a major impediment to making toilet construction meaningful and to achieving behaviour change in association with open defecation. Notably, the toilet designs promoted by the Government of India in the context of the Clean India Mission—even those requiring low volumes—require water to function. For many people, needing more water can be a considerable hassle that must be worth their added time and effort. In this context, I would like to emphasize that the right to water and the right to sanitation are distinct but integrated rights.

3. Substandard services for people and groups in vulnerable situations

My findings reveal that several determinants have a heightened likelihood of predicting where or why people have lower quality access to adequate water and sanitation services: disability, gender, caste, tribe, place of residence in terms of urban or rural areas, land tenure (especially in urban areas, e.g. residence in formal vs. informal settlements), among others. The ways in which these factors can impact on one’s access are diverse but, importantly, a combination of any of these factors is likely to have a multiplying effect. For example, disabled persons widely suffer from a lack of accessible sanitation infrastructure, but female disabled persons can suffer more, and still more from the added lack of material and social conditions to ensure menstrual hygiene management.

According to a global report1, only 43 per cent of India’s population has access to piped water. In rural areas, where 67.5 per cent of the country’s residents live, access to piped water is only available to 31 per cent of the population (about 270 million people out of the country’s 1.3 billion). Meanwhile, in urban areas it is available to 69 per cent of the population. A similarly stark divide separates access to water on premises in rural vs. urban areas: 49 per cent and 73 per cent, respectively in 2015.1 Not being available on premises, rural populations—most often women and children—are thus far more likely to spend precious time fetching water from surface water, boreholes, tube wells, or in some cases public stand posts and water tankers. As several people reiterated to me during my visit, the cost opportunity associated with collecting water is high for children, as it commonly impacts their time to attend schools, and for women’s rights to equal opportunity. Women are also exposed to violence as a result of this burden; in the hilly districts of the State of Manipur, there have been reports of sexual violence when women go to fetch water.

Scheduled Tribes populations live overwhelmingly in rural areas (90 per cent according to data from the 2011 census). I met with a representative of a Scheduled Tribe population of about 12,000 people living in the Sanjay Gandhi national park near the Borivali district (located about 30 to 40 kilometers from Mumbai). Since neither district nor central government authorities have provided them with water and sanitation services after several years, the population thus has no choice but to defecate in the open and, at times, risks being attacked or even killed by wild animals. “Pani nahi, shouchalay nahi” (no water, no toilet) was the way the representative expressed his concern to me.

Rural populations’ access to water is also affected by large projects that directly or indirectly impact on essential water sources used for drinking, domestic uses or livelihood. In Manipur, I was informed of how large infrastructures (dams, railways, roads and industrial projects) impact water sources of rural villages. In particular, I visited two downstream villages of the Thoubal Multipurpose Dam who no longer relies on the river as their drinking water source, due to the deteriorated water quality, and had to pay for accessing water source of a nearby village.

Another group that falls outside the purview of any government protection are the undocumented population living in the 51 erstwhile Bangladeshi enclaves situated in India and 111 erstwhile Indian enclaves situated in Bangladesh. Since 2015, upon the signing of the Land Boundary Agreement by the Indian and Bangladesh Governments, 922 people are living in three resettlement camps situated in Dinhata, Mekhliganj and Haldibari, in Cooch Behar district of West Bengal. Those people do not possess a toilet within their houses and are forced to defecate in the open. Their access to water is provided through few tube wells that were dug by the government; they mostly do not work and provide water of an inadequate quality. It is important to highlight, in this particular context, the obligation of India to uphold the rights to water and sanitation not only to Indians but also to foreigners who reside in the territory as well as those people who are not documented.

Discriminatory patterns also exist within urban areas in ways that affect several rights in addition to the rights to water and sanitation, such as the right to health, to adequate housing, and to basic dignity.

Access to drinking water and sanitation in informal settlements is concerning in various slums that I visited in Delhi, Lucknow, Kolkata and Mumbai. Like in the case of Mumbai, India’s most populous city, slums are the homes of more than half of the city’s 18 million inhabitants. In this context, it is important to highlight that, in many cases, particular groups (including but not limited to special castes) disproportionately populate slum settlements. In general, adequate access to water and toilets does not exist within most of the slums that were visited.

In fact, the conditions of access to water and sanitation in those areas can differ greatly and can be considerably influenced by the legal recognition of the settlement and land tenure associated to it. “Notified”, or legally recognized settlements, at times receive some sort of services from public authorities (e.g. water tankers providing free water a few times a week), while non-notified settlements are denied any intervention from public water service providers. While some stand posts and boreholes are available within or close to some non-notified settlements, they are not always constructed by the public authorities and it is uncertain if the quality of the water is monitored. In an informal settlement located in Bhim Nagar, Maharashtra Nagar (Mumbai), access to water for a total of 160 houses came from a variety of sources, some closeby (including holes dug in the ground to access poor quality groundwater) and others farther away.

In several cases that I observed, people’s reliance on sources of drinking water outside their premises means that persons of all ages are forced to queue at specific times of the day to fetch water from public taps. Taking advantage of the acute availability, they bath outdoors and collect water in buckets and jugs. Children and elderly people, in particular, physically struggle to carry water back to their households.

Community toilets are often available in small numbers in relation to the number of families that require those facilities. Moreover, according to reports, they are usually not disability-adapted, maladaptive and unaccepting of transgender persons, and lacking adequate facilities for handwashing and for menstrual hygiene management. Moreover, the quality and safety of those facilities is usually very precarious; in some cases, community toilet infrastructure has collapsed while people have been queuing to use them, making them fall into the pits containing excreta and die. Obviously, where infrastructure exists but is not safe and accessible to users, the right to sanitation is not being realized and, in the case of India, open defecation may be unknowingly perpetuated.

During my visit, I received several reports and observed in many cases that public places, including schools, transport hubs and police stations lack sufficient and adequate facilities for water and toilets, affecting India’s large “population on the move”, which includes homeless, street vendors, rickshaw drivers and seasonal migrant workers. Whether homeless or workers, access to water and sanitation in public spaces must be guaranteed by the Government.

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.

SDG 6.2 also requires equitable access and special attention to the needs of women and girls and those in vulnerable situations. To uphold India’s commitment to achieve the SDGs by 2030, the Government of India needs to monitor the progress towards targets 6.1 and 6.2. Moreover, to uphold India’s human rights obligations, it must develop methodologies that take into account the normative contents of the human rights to water and sanitation, and monitor inequalities in access to these services. India must adopt a national consensus on the next steps on water and sanitation policies so that no one is left behind.

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My official visit to India took place at the crucial juncture of India’s rapid progress towards achieving the goal of eliminating open defecation through the Clean India Mission. I would like to take the opportunity to reiterate my praise to the Government of India for the important progress that has been achieved and emphasize that the Clean India Mission, together with all other concurrent activities in the water and sanitation sector, must incorporate a human rights perspective. This will be essential to safeguard the rights of its population and for India to meet the targets of the Agenda 2030. In other words, better access to water and sanitation in India will strongly benefit its population and will help the country to meet the commitments of the 2030 Sustainable Development Agenda.

Two-weeks is not sufficient to fully understand all aspects of the situation of human rights to water and sanitation in a country as big, diverse and complex as India. After the visit, I will gather further information, provide an analysis of and recommendation to the issues that I have mentioned today, together with other issues including but not limited to regulatory framework, privatization, national legislation recognizing the human rights to water and sanitation and disaggregation of monitoring data.

Information about the visit

I met with Government officials at the Union, State and local level: Ministry of External Affairs, Ministry of Finance, Ministry of Drinking Water and Sanitation, Ministry of Urban Development, Ministry of Rural Development, Ministry of Housing and Urban Affairs, Ministry of Health and Family Welfare, Ministry of Railways, National Institute of Transforming India (NITI) Aayog, National Human Rights Commission and National Commission for Women, National Commission for Scheduled Castes, National Commission for Safai Karamacharis, Delhi Jal Board, Government of Uttar Pradesh, Government of Maharashtra, Government of Manipur, Municipal Corporation of Greater Mumbai, and Municipal Corporation of Imphal.

During the visit, I also visited and interacted with communities in Delhi, Sarai Kale Khan (homeless shelter and flyover), Lal Bagh (non-notified slum), Mansarovar Park, Savda Ghevra resettlement site, Mundka Ward; in Lucknow, Uttar Pradesh: Chinhat ward Naubasta Kalan, Daulatpur village, Naubasta Kala village, Sarthara village, Vinaykpuram (slum) and small Jugauli (notified); in Kolkata, West Bengal, Tangra Dhapa and North Tangra; and in Imphal, Manipur, Nungbrang and Leirongthel Villages (downstream villages located near Thoubal Multipurpose Project.