Right to Sanitation a fundamental right: Patna HC issues directions to Bihar Govt and NHAI to construct “Public toilets” on highways

Patna High Court: Sanitation is personal and private, inextricably linked to human dignity. At the same time, sanitation has an essential public health dimension. A recent judgment by the Division bench of Sanjay Karol CJ and S.Kumar J. observed that the right to sanitation comes within the scope of Article 21 and therefore, directed the State, National Highway Authority of India (NHAI), and Oil Marketing Companies (OMC) to construct public toilets and public conveniences on highways across the state of Bihar.

Issues in question

1. Whether the failure of the authorities to finalize the setting up of Petrol Pumps leads to a violation of the rights of travelers?

2. Within the expanding area of Right to Life, does an entitlement of the right to sanitation arises, more so on the Highway, be it setting up of Petrol Pumps and providing facilities therein or otherwise?

3. What is the nature of obligations imposed upon the State to ensure the availability and upkeep of sanitation facilities on the Highways?


Sanitation facilities

The bench was of the view that the State is under the obligation to provide basic amenities to the citizens on the Highways while ensuring that their basic right to sanitation or basic amenities is not defeated. The bench stated that

“… the right to sanitation comes within the expansive scope of Article 21. The nature of obligation imposed upon the State is not only that of being a welfare state but also the realization of fundamental rights for every citizen, even the rights enshrined within Article 21, which forms the nerve center of our constitutional consciousness.”

Further, the bench noted that the lack of sanitation facilities on the highways has a significant impact on our environment and it encourages people to indulge in the unsafe practice of open defecation/ urination which ultimately causes serious health and hygiene issues.

The bench noted that, in order to provide sanitation access to everyone by achieving multiple targets of United Nation’s Sustainable Development Goals (SDG), the bench laid emphasis on the judgment given by the Supreme Court in Citizens for Green Doon v. Union of India, 2021 SCC OnLine SC 1243 wherein the court recognized the important position of sustainable development framework in environmental jurisprudence.

Setting up of Petrol Pums

The bench observed that Roadways and Highways form an essential part of the national economy as they are the connectors between different parts of the country. Easy travel with all necessities being served is a ‘right’. Setting up petrol pumps at regular intervals helps in achieving both economic and social benefits.

“The lapse of time from the initiation of the process to the setting up of these units, take away the ideals of a welfare State where the prime objective of the administration is to serve the people in a way that all their needs are met, also giving them opportunities to grow.”

Therefore, the court concluded that it is essential to note the caution in setting up petrol pumps as petrol is a product of a conventional source of energy i.e. crude oil. Hence, the distribution of the said commodity should be done in such a way that the paramount consideration of environmental suitability and resource conservation is given due consideration.

Directions issued

In the light of the above analysis, the Bench issued necessary directions to the State, NHAI and OMCs-

• The Chief Secretary, Government of Bihar, to convene a meeting of all stakeholders to examine the best and most efficient way to realize the multifarious benefits arising from the establishment of petrol pumps with equal importance being placed upon economic, social and environmental aspects.

• The Development Commissioner, Government of Bihar, who is already seized of the matter shall take expedient steps in furtherance of the action(s) taken thus far.

• The State, NHAI and the OMCs consider constituting public toilets and public conveniences at places easily identifiable and accessible by the public at large, and in this regard, signboards of “Public Toilets” or “Private Toilets” be displayed at the retail outlets.

• The amenities constructed should be done so, keeping in mind accessibility for persons with disabilities. The State has a responsibility to provide them equitable access to basic amenities while undertaking road travel, in light of the Constitution of India and the various international Human Rights obligations.

• All toilets be adequately staffed for taking care and maintaining the same with a proper system for the disposal of sanitary napkins.

• Authorities may also consider making it necessary/mandatory for all the Dhabas/ Restaurants on the highways to make available public toilets and drinking water facilities for the use of the general public. While granting permission to such establishments, authorities should consider incorporating specific conditions regarding the provision of toilets and restrooms. Also, maintain the same hygiene, failing which their registration/permit is cancelled.

• The State Authorities and corresponding Central Authorities will take expedient steps to check the practice of the black-marketing or open unauthorized sale of petrol/diesel.

• The authorities may consider the development of a mechanism to:-

(a) institute a randomized checking system to ensure facilities and resources’ quality and proper availability.

(b) in consultation with OMCs and furtherance of the Statutory obligation take constructive steps to ensure sustainable use of resources and all other related issues.

(c) Prepare a digital platform furnishing complete information of such places of convenience to the general public with a provision of lodging online remarks.

[National Highway Projects v. State of Bihar, 2022 SCC OnLine Pat 1048, decided on 10-05-2022]

Advocates who appeared in this case :

Mr. P.K. Shahi, Senior Advocate, Amicus Curaie, for the petitioner;

Mr. Anjani Kumar, AAG-4, Mr. Alok Kumar Rahi, AC to AAG-4, for the State of Bihar;

Mr. Kumar Priya Ranjan, Advocate, Mr. Pallav, Advocates, for the Union of India;

Dr. K.N. Singh, ASG, Dr. Maurya Vijay Chandra, Advocate, Mr. Devansh, J.C. to A.S.G., Mr. Sriram Krishna, JC to A.S.G., Mr. Amarjeet, Advocate., Mr. Gaurav Govinda, Advocate., Mr. Gaurav Kumar, Advocate., Ms. Anjali Kumari, Advocates, for the NHAI;

Mr. Sarat Kumar Mishra, Advocate, Mr. Ankit Katriar, Advocate, for the IOCL;

Mr. Siddharth Prasad, Advocate, Mr. Om Prakash Kumar, Advocate, for the BPCL;

Mr. Rajeev Prakash, Advocate, for the HPCL.

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