Policy as Law: Lessons from Sanitation Interventions in Rural India
The more human rights-based approaches have been mainstreamed, the more we expect legislation to provide means for the implementation of rights framed at a generic level in constitutions or by the higher judiciary. India is no exception, having been at the forefront of the broadening of the gamut of fundamental rights, in particular through an expansive reading of the right to life, for instance, to include a human right to sanitation. Surprisingly, there is no legislation that takes forward the mandate laid out by the courts. Yet, given the increasing policy and political importance of sanitation, the Union government has been pro-active in trying to ensure every person gets access to toilets at home. In rural areas, interventions of the Union government have been through administrative directions that are adopted by the executive and regularly modified over time according to changing policy and political priorities. None of the instruments that have guided the sector over time refer to the right to sanitation. While the link is not made directly, these interventions are in effect the mechanism through which the right is at least in part realised. This is confirmed from two different perspectives on the ground. In rural areas, people make no difference between legislation and administrative directions. What the government implements is de facto the law and is seen as such both by the rights holders and by local government officials. This raises multiple questions in the current context of a very strong push towards ensuring the country is open defecation free by 2019. Right holders are known as beneficiaries and thus not in a position to hold the state accountable for its actions or inactions. Increasingly, rights holders are becoming duty holders, indeed in some cases they are required to build toilets. Further, the realisation of the right includes strong arm measures, such as naming and shaming campaigns at the local level and fines for open defecation. This article explores the multiple issues arising from a fast-evolving context where the clear recognition of human rights is not matched by implementation measures that follow the same logic. This must be looked at both from the point of view of the state and the individuals and communities that are at the receiving end of interventions that are meant to be in their favour.
P. Cullet, ‘Policy as Law: Lessons from Sanitation Interventions in Rural India’, 54 Stanford Journal of International Law (2018), p. 241-58.