At the very outset, it must be mentioned that in a very significant observation, the Patna High Court in a remarkable, refreshing, recent, robust and rational judgment titled The National Highway Projects in the State of Bihar vs State of Bihar and others in Civil Writ Jurisdiction Case No. 8900 of 2020 and cited in 2022 LiveLaw (Pat) 19 has made it indubitably clear that the right to sanitation has been virtually accepted as a fundamental right like the right to water, the right to health, the right to healthy environment, the right to education and the right to dignity related to right of sanitation.

We thus see that with this, the Bench of Chief Justice Sanjay Karol and Justice S Kumar have also asked the State, National Highways Authority of India, and the Oil Marketing Companies to consider constituting public toilets and public conveniences on highways across the state. The Bench has thus very rightly emphasized upon the obligation on the part of the State in which all stakeholders are included in establishing sufficient facilities for sanitation and personal care on the highways, be it on the petrol pumps or otherwise.

To start with, this brief, brilliant, bold and balanced judgment authored by Chief Justice Sanjay Karol for a Bench of Patna High Court comprising of himself and Justice S Kumar sets the ball rolling by first and foremost putting forth in para 1 that:

Following issues arise for consideration:

1. Whether the failure of the authorities to finalize the setting up of Petrol Pumps leads to a violation of rights vested in travellers?
2. Within the expanding area of Right to Life, does an entitlement of the right to sanitation arise, 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?
    

Quite rightly, the Bench then observes quite forthrightly and succinctly in para 2 noting that:
Our discussion, herein later, in relation to several statutes/orders/guidelines/circulars unmistakably points to the obligation on the part of the State (all stakeholders) in establishing sufficient facilities for sanitation and personal care on the Highways, be it on the Petrol Pumps or otherwise. Even earlier, we had emphasized the need for setting up of such facilities both on the National and the State Highways.

While posing a volley of unsettling questions, the Bench then goes on to elucidate in para 3 stating that:
How would a lactating mother travelling from Kishanganj (farthest District from the capital city of Bihar) to Patna (capital city) feed an infant or ease off herself without any such facilities available on the Highways? How would a patient travelling from Kaimur to Patna, the nearest State Level Hospital, undertake such journey without using such facilities on the Highways? How would, a woman, travelling even in a private transport to a tourist destination, such as Nalanda; Gaya; Madhubani; Bithiharwa; West Champaran; Vikramshila; Tomb of Sher Shah Suri at Sasaram and other places of interest, including different religious places of importance of Hinduism, Buddhism, Jainism, Sikhism, Islam, travel without any amenities in Bihar?

Manersharif at Maner, Patna is an international attraction for people hailing from the Islamic faith; the famous University of Nalanda which occupies an important place in India’s rich and diverse history is also a place often visited by tourist both from within and outside the country. None have thought of having facilities of public concern to such places. It is so unfortunate that in the land of Dr. Bindeshwar Pathak, who revolutionized the public health, hygiene and sanitation concept in India by establishing Sulabh Sauchayalas throughout the country that public toilets and proper sanitation facilities are nowhere to be seen.

Frankly speaking, the Bench then rightly points out in para 4 that:
Unlike women, men shamelessly stand on the Highways to ease off themselves, but a society cannot expect the same from the former and therefore it is an urgent duty upon the State/its instrumentalities to ensure that such needs, which are the very definition of basic needs, are met.

Needless to say, the Bench then states in para 5 that:
Many such questions concerning the lay person and their ease of travel have led us to pass numerous orders. In light of many such pertinent questions, we deem it fit to also issue certain directions.

While setting the record straight, the Bench then is at pains to mention in para 6 that:
It is brought to our notice that despite earlier orders passed by this Court, to make available public conveniences on the Highways, more so the National Highways, and to set up Petrol Pumps having such facilities remains to be achieved. Considerable time has passed since the last order; hence, we are constrained to pass a detailed order, highlighting the obligations upon the State, the need for such conveniences and the socio-economic benefits arising out of the availability of these facilities.

Of course, the Bench then rightly points out in para 7 that:
The relevant portion of our order dated 25 March 2021 is extracted below:-

Repeatedly, in our several orders, we have emphasized the need of setting up of places of public conveniences on the National Highways. Also, the need for setting up of Petrol Pumps having such facilities. The Ministry of Petroleum of the National Highway Authority of India have a workable plan providing such facilities, which surely, when implemented in the State of Bihar would not only boost its economy, but also generate employment so as to check migration of the residents of Bihar, seeking employment outside the State. We cannot forget that all arterial roads to East/North-East of India passes through Bihar, which also has an International Border. (Emphasis supplied).

It is worth mentioning that the Bench then mentions in para 46 that:
Access to safe drinking water and adequate sanitation is now firmly recognized as a human right. Target 6.2 under Sustainable Development Goal No.6 reads as under:-

By 2030, achieve access to adequate and equitable sanitation and hygiene for all and end open defecation, paying special attention to the needs of women and girls and those in vulnerable situations

Notably, the Bench then states in para 47 that:
In July of 2010, the United Nations General Assembly explicitly recognized the human right to water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realization of all human rights

Most commendably, the Bench then forthrightly observes in para 60 that:
Given the ever-expanding definition of right to life, citizen of the country are certainly entitled to civic amenities and medical aid, during the course of his/her travel, which he/she undertakes, by whatsoever mode of transport, on the State/National Highways. It clearly emerges from some of the judgments, as referred hereinabove, that right to sanitation has been virtually accepted as fundamental rights like right to water, right to health, right to healthy environment, right to education, and right to dignity directly related to right of sanitation. Bare necessities of life include proper sanitation facilities as the practice of open defecation or a life with polluted drinking water source and environment cannot be considered as a life of dignity as understood in the context of Right to life under the Constitution.

Most forthrightly, the Bench then deems it fit to put forth in para 61 that:
In the background above, this Court is of the definite view that State is under obligation to provide basic amenities to the citizens on the Highways, while ensuring that their right of sanitation/ basic amenities is not defeated. Lack of sanitation on the Highways impacts our environment and it consigns people to the undignified and unsafe practice of open defecation/urination and inefficient waste management, which causes serious health and hygiene issues. Definitely, citizens travelling on the State/National Highways need to be protected from open defecation, untreated waste disposal into streams, and contamination of water supplies, which could be caused by the heavy influx of tourists and lack of proper amenities. After all Bihar is a highly populace State nearly one tenth of Indian live here.

To be sure, the Bench then specifies in para 62 that:
With the nature of obligation on part of the State and the law being enunciated in the terms above, all the three issues raised in the opening paragraph are answered as below.

Be it noted, the Bench then propounds in para 63 that:
Roadways and Highways form an essential part of the national economy as also connectors to different parts of the country. When made available within a State, Amenities serve the State and the country as a whole. Easy travel with all necessities being served is a right vesting in anyone who chooses to travel by such means. Therefore, long stretches of road sans such amenities can be said to be in contravention of such basic rights. The Central Government has issued detailed guidelines, enumerating the various units that would combine to form a fully functioning rest area. Setting up of such areas facilitates a right of easy and comfortable travel among all citizens.

It is worth noting that the Bench then underscores in para 64 stating that, Both economic and social benefits come out of setting up petrol pumps at regular intervals. Economically, the reprehensible practice of black-marketing, although not a product of only difficult access, can be significantly checked by the ease of access. The construction, service and upkeep are sources of long term gainful employment for local youth and socially access to amenities further the goals of Central Government Policies, as discussed above. The lapse of time from the initiation of the process to the setting up of these units, till today, has not been adequately explained by the State. Such unexplained delays take away from the ideals of a welfare State where the prime objective of those in administration is to serve the people in a way that all their needs are met also giving them opportunities to grow. The Authorities must take expedient steps to establish the units that stand approved, furthering the cause of holistic development.

More to the point, the Bench then minces no words to hold in para 65 that:
The right to sanitation comes within the expansive and further expanding scope of Article 21 as discussed above. The nature of obligation imposed upon the State is not only that of those upon it by virtue of being a welfare state but also the realization of fundamental rights for every citizen, even more so the rights enshrined within Article 21, which forms the nerve centre of our constitutional consciousness. Equally, the State has also upon its obligations imposed by International law- various Human Rights Instruments and Resolutions to ensure that the basic right of sanitation is available to all, irrespective of any differences in social or economic status.

As we see, the Bench then notes in para 66 that:
In particular reference to women, such an obligation becomes even more pressing and delay in its true realization impedes achieving Sustainable Development Goal No.5, i.e. gender equality, also pulling back all other goals associated therewith.

It cannot be glossed over that the Bench then enunciates in para 67 that:
As quoted above, SDGs, in particular Goal no.6, explicitly recognize sanitation rights. Therefore, the achievement of such access to all persons has in this context multiple advantages in meeting the stipulated targets. The Hon’ble Supreme Court in Citizens for Green Doon & Ors. v. Union of India & Ors. 2021 SCC OnLine SC 1243 Para 31 recognized as under the important position which the sustainable development framework holds in environmental jurisprudence-

The principle of sustainable development is deep-rooted in the jurisprudence of Indian environmental law. It has emerged as a multi-faceted principle, which does not prohibit development, but structures it around what is sustainable. Sustainable development incorporates two related ideas – development which not only ensures equity between the present and the future generations but also development which ensures equity between different sections of society at present.

Furthermore, the Bench then hastens to add in para 68 as a note of caution that, However, before we part with these proceedings, it is essential to note caution in setting up petrol pumps. Regard must be given to the fact that petrol is a product of a conventional source of energy, i.e. crude oil. Therefore, the distribution of said commodity is done so that the paramount consideration of environmental suitability and resource conservation is given due consideration. While sanctioning such projects, the Authorities should keep in mind the entire gamut of effects that such a decision will have and not just those of economic and social benefit.

Most significantly, the Bench then directs in para 69 that:
In furtherance of the above discussions, we find it necessary to issue the following directions:

1. 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. Also ensure that a sample survey for ascertaining the requirement of additional fresh Petrol Pumps/Gas Retail Outlets is carried out at the earliest.
    
2. 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.
    
3. The State, National Highways Authority of India and the Oil Marketing Companies 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. Such facilities should be easily accessible by the ladies walking or driving on the roads.
    
4. 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.
    
5. All toilets be adequately staffed for taking care and maintaining the same with a proper system for the disposal of sanitary napkins.
    
6. 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.
    
7. 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 and initiate action after the proper investigation against units aiding the perpetuation of such practice.
    
8. The Oil Marketing Companies to take steps to verify the continued interest or otherwise of the allottees/proposed allottees. The entire pending process of allotment shall be finalized within the time stipulated in the minutes of the Development Commissioner, Bihar.
    
9. The authorities may consider the development of a mechanism to:
   1. Institute a randomized checking system to ensure facilities and resources’ quality and proper availability.
   2. in consultation with OMCs and furtherance of the Statutory obligation take constructive steps to ensure sustainable use of resources and all other related issues.
   3. Prepare a digital platform furnishing complete information of such places of convenience to the general public with a provision of lodging online remarks.

No doubt, the sum total of all the exhaustive discussion that we have made hereinabove regarding this latest, learned, laudable and landmark judgment is that the Patna High Court has been gracious enough to rightly concede that the right to sanitation has been accepted as a fundamental right. It has ably cited relevant case laws and other important points as we have discussed hereinabove.

It has also very rightly asked the State and NHAI to set up public toilets on highways so that the women especially don’t suffer immeasurably due to its absence as they cannot urinate in open anywhere unlike men. Of course, this extremely commendable, courageous and cogent judgment definitely deserves to be implemented in its entirety!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh