Blast from the Past: Access to toilet a fundamental right?

World Toilet Day is celebrated on 19th of November of every year and is about taking initiative to ensure that everyone has a safe toilet by 2030. This is part of Sustainable Development Goals (SDG) 6: sanitation and water, created by United Nations, which was launched in 2015.

History of toilets

The word ‘toilet’ is derived from the French word ‘toilette’, which was a little cloth placed on the shoulders while shaving or dressing hair. By the 18th century, the word was used for a room where one dressed themselves. Much later, toilet came to be referred to a fixture in the bathroom. A quick history of the modern-day toilet is thus:

• 2000 BC – Indus valley civilization was the first to have network of sewer system for the toilet holes.
   
• 12th Century – Monks at Portchester Castle built stone chutes leading to the sea. When the tide went in and out it flushed away the sewage.
   
• 1596 – Sir John Harrington (yes, he is related to Kit Harrington, the actor who plays Jon Snow in the famous TV series Game of Thrones) invented a flushing toilet. But the idea failed to catch on.
   
• 1775 – Alexander Cumming patented a flushing lavatory.

Cumming’s 1775 patent for the S-trap that paved way to the foundations for modern flush toilet.

• 1852 – The first modern public lavatory was opened.
   
• 20th and 21st century – Inventions and patents over the latest technology in toilets like space toilet, portable toilet for attachment to wheelchair (US patent no. US3341864A), automatic toilet flushing system and method (US patent no. US7500277B2), etc. Japan is the world leader in building the most hi-tech toilets.

Access to toilets – a fundamental right?

Even with all the technology and innovations, it is sad to know that access to clean toilet which is one of the primary needs of a human being is still not available to millions of people around the world, especially India. As per statistics of World Health Organisation, 2.3 billion people still do not have basic sanitation facilities such as toilets or latrines. In India, according to studies, 30% marginalized women are physically and sexually assaulted to access public toilets and 23% of girls drop out of school every year due to lack of toilets.^[1]

On July 28, 2010, through Resolution 64/292, the United Nations General Assembly recognized the human right to sanitation and acknowledged that it is essential to the understanding of all human rights. India was one among the 52 countries who ratified this resolution.

In LK Koolwal v. State of Haryana,AIR 1988 Raj 2, High Court of Rajasthan upheld that the maintenance of health, preservation of sanitation and the environment falls within the purview of Article 21 of the Constitution as it adversely affects the life of the citizen and amounts to slow poisoning and reducing the life of the citizen because of the hazards created, if not checked.

A similar view was given by the Supreme Court in the case of Virender Gaur v. State of Haryana, (1995) 2 SCC 577 where it held that right to life with human dignity, as provided under Article 21 of the Constitution, encompasses within its ambit sanitation.

Recently, on a PIL filed in the case Milun Saryajani v. Pune Municipal Corporation & Ors., AIR 2016 (NOC) 261 Bom 1 regarding the issues on non-existence and inaccessibility of public utilities for women, the Bombay High Court issued guidelines with orders to Municipal Corporations to have toilets constructed for women around the city.  The Court acknowledged that access to toilets contributes to health and well being of the society which is a fundamental right.

Connecting this fundamental right to the duty of the State, the Himachal Pradesh High Court, in the case CWPIL No.6 of 2017, held that “…this Court is of the definite view that State is under obligation to provide basic amenities to the citizens of the country while ensuring that their right of sanitation is not defeated.” Further, the Court confirmed that right to sanitation cannot be denied as it is a fundamental right.

The other statutes that recognise the rights and duties relating to sanitation are –

1. According to Schedule attached to Section 19 of Right of Children to Free and Compulsory Education Act, 2009, schools must provide toilet facilities for children and separate toilets for girls.
    
2. Under Section 19 of the Factories Act, 1948, it is mandatory for factories to have separate latrines and urinals for men and women.
    
3. According to Section 18 of the Contract Labour (Regulation and Abolition) Act, 1970, it is the duty of every contractor employing contract labour to provide sufficient number of latrines and urinals that are convenient and accessible to the contract labour in the establishment.
    
4. According to the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, it is the duty of the employer to provide sufficient latrine and urinal facilities at work place which can be accessible to the building workers at all times (Section 33).
    
5. Under Section 8 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the government is responsible for ensuring ‘barrier-free environment in public places, workplaces, public utilities, schools and other institutions’ which inevitably includes appropriate facilities at toilets for persons with disabilities.
    
6. The 150 year Sarais Act, 1867 (hotels and lodgings were called sarais during the British rule) Section 7(2) states that the hotels have to compulsorily allow admission to people to use toilets. This scope was widened by the Government of South Delhi which made it mandatory for hotels, dhabas and restaurants to open doors for public to use the toilets with a maximum fee of Rs.5. States like Karnataka and Himachal Pradesh have followed suit. The Central Government considered repealing this law but as of date, it stays in force.

According to the Act, restaurants are out of purview but some State governments have mandated them to follow suit. The biggest resistance of the Act comes from hotel and restaurant owners who do not want to open up their facilities to the general public on the grounds of security, hygiene and maintaining the ambience of their establishment.

Way forward

The Government of India has been taking an active interest in curbing the problem of lack of toilets through the Swachh Bharat initiative. Further, a lot of NGOs like Reaching Hand, Wateraid India, India Sanitation Coalition, etc. are working towards bettering sanitation in India. Ministry of Drinking Water & Sanitation, this year, has announced Swachh Bharat World Toilet Day Contest to identify and award top 10 District Collectors, top 3 State Mission Directors and State Secretary in-charge of sanitation.

World Toilet Day came into existence to remind us of the fact that even in the 21st century, there are millions of people without access to the most basic necessity, the toilets. Let’s hope that with all the recent initiatives, awareness and hopefully with a central law/rules problems of sanitation are flushed down the drain!

DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.

^[1] TNN, 23% girls drop out due to lack of toilets in school of the country, reveals study – Times of India The Times of India (2017), http://timesofindia.indiatimes.com/articleshow/56490444.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (last visited Nov 12, 2018).