(Sample Material) Study Kit on Current Affairs for UPSC Mains
Polity, Governance and Social Justice: Human Rights Law in
India: Right to Water and Social Justice
The question of a human right is often a chicken and the egg
situation. ‘What comes first- the chicken or the egg?’ may be analogous to what
comes first- the law or the right. The right to water is one such area where
there is no clear’ answer and there is a need to recognize the right to water
without having to rely on provisions of black letter law. While the human right
to water is being increasingly recognized in international human rights law, it
also needs recognition at the domestic level.
The States commitment to access to water
There are a number of schemes and implementing machinery to
provide for safe and accessible drinking water in India. The Rajiv Gandhi
National Drinking Water Mission at the institutional level and the Accelerated
Rural Water Supply Programme Guidelines at the policy level have greatly
contributed to the attention received to access to water issues. The Guidelines
specify 40 Iitres per capita per day as a minimum requirement only for the
purpose of drinking and household needs. This is divided into the following
categories and the amount may increase in cases of cattle in dry areas. The
water must be of adequate quality as well as quantity.
|Washing utensils & house
(Sources: ARWSP Guidelines http:ddws.nic.in/popups/arwsp_pop.htm accessed on
However, schemes and policies of the state are not enough.
There must be a clear statement of a human right to water so that it can be
claimed as a right rather than a privilege which the state grants. The question
which next arises is whether there is such a right in India.
The right to water in the Constitution of India
Most claims to human rights are founded on the basis of the
fundamental rights chapter in the Constitution of India as fundamental rights
are justifiable and can be enforced. The Preamble of the Constitution is often
described as setting up a welfare State. While providing basic needs such as
water would be within the necessary functions of such a state, the Fundamental
Rights Chapter is silent about a right to food or water. While the right to life
is mentioned (Article 21), the dimensions of this right are not laid down in
detail and water is not mentioned. The only direct reference made is in the
prohibition of discrimination (Article 15) in accessing places and facilities
for the use of the general public including wells.
In the Directive Principles of State Policy too, there are no
direct references to a right to water although the state is required to work
towards raising the standard of living of people and improving public health
(Article 47). Also, since Directive Principles of State Policy are not
justiciable, they become difficult to implement as a matter of right.
The angle from which the Constitution deals with water is
from the angle of division of powers between the Centre/Union, the State and
after 1992, the Local Government. Thus while standard setting ‘On water
pollution, insecticides and pesticides is with the Centre, interstate water
disputes, irrigation is a State subject and so are important areas including
sources of water such as groundwater. The Local Government has the power to make
provision for water and to make rules at the local level on use of water. In
this scheme of distribution of powers, there is no mention made of a right to
Development of human rights law on right to water by the judiciary
The architect of the right to water in India is the
judiciary. Many rights have been brought within the ambit of the right to life
(Article 21) by reading them into the scope of life. The first landmark decision
was in Francis Coralie Mullin v the Administrator; Union Territory of Delhi(l981
(2) SCR 516) where the Supreme Court clearly said that the right to life
included the right to live with human dignity. It also made a passing
observation that it also includes the bare necessaries of life. The right to
water was not specifically mentioned.
In 1990, the Kerala High Court stated in Attakoya Thangal v
Union of India that the right to sweet water was part of the right to life as
water is necessary for life. This has been reiterated by High Courts and in many
cases the Supreme Court as well, in a number of cases dealing with situations
which adversely impacted the quality of drinking water. In the Narmada Bachao
Andolan case ((2000) 10 SCC 664) the Supreme Court commented “Water is the basic
need for the survival of human beings and is part of right to life and human
rights as enshrined in Article 2.1 of the Constitution of India and can be
served only by providing source of water where there is none”. It also linked
this right to the recognized human right to water in international law documents
which have provisions relating to access to adequate drinking water.
The Supreme Court has also decided cases which have a bearing
on water quality. These include areas such as. water pollution, building/
construction/ mining which affected the water and so on. It has .also given
directions in the context of natural disasters such as floods and earthquakes.
Thus Courts have been concerned both with the protection of quantity and
“quality ill dealing with cases with a bearing .on the right to water in some
Human Rights Law versus social realities in accessing the right to water
A human right law on right to water, especially drinking
water seems to be fast emerging. However, a law by itself will not work, nor
will programmes for targeted beneficiaries, unless it can be ensured that
everyone benefits from the right in a meaningful way at the ground level. This
is especially true when caste and communal realities are not taken into account.
Two case studies will illustrate this.
The first case deals with the adequacy of water quantity. In
a village in Madhya Pradesh, a handpurnp was set up for the benefit of women
from Scheduled Castes in order to facilitate their access to water for domestic
use. This was important as in many of these households, there was no adequate
source of water. However, the location of this handpump was a public one,
possibly for ease of access and it was located along the main village road and
began to be used by Brahmin households which already had access to private water
sources. The hand pump meant to be the main source of water for the SC community
became an additional source for another community. The problem of access to
water for SC women was left unsolved in practice, though in theory action had
been taken to protect their right to water. The adequacy of water quantity was
not addressed for the intended beneficiaries.
The second case deals with a village in West Bengal where all
the public handpumps were found to contain unsafe and impermissible levels of
arsenic. While quantity of water was not an issue, quality of water used
especially for cooking and drinking needed to be resolved, Accordingly an
arsenic removal plant was installed. The installation however was close to a
Hindu temple. The village had a Muslim minority population. Muslim women who
tried to access the installation were denied by Hindu women. The problem was
later resolved through alternate dispute resolution by working out a schedule
for water use between the two groups of women.
A law on paper therefore is not adequate, though it is a beginning. The
implementation of any law must also take into account ground level realities
with strategies to deal with them.
Challenges to the human right to water
In addition to ground level social realities, there are a
number of developments especially occasioned by liberalization, privatization,
globalization which need to be taken into account and dealt with. Increasingly,
access to water is seen as the right of those who can afford it. It has become
an economic good rather than a social necessity. Water thus belongs to the
highest bidder or who can dig the deepest bore well or purchase the land beneath
which the aquifer lies. Water resources which are not attached to private
property are presumed to belong to the state even if there are private users or
communities dependent on the water. The Plachimada case (Perumatty Gram
Panchayat v State of Kerala 2004(1) KLT 31) challenged this and the appeal is
now pending in the Supreme Court.
There is a strong move in civil society against the
privatization of the supply of drinking water especially in urban areas.
Privatization treats water as a profit making venture for a private company as
against a duty to be complied with by the State. It must be provided by the
State, not sold by a company. Modern water policy which leans towards
contribution by communities would leave out the poorest who are the most
vulnerable and whose human right to water would be further violated. Not only
would they. not be able to access new schemes, existing rights they had been
exercising to water which was not owned by them may also be at risk. To conclude
water as a human right must be recognized at all levels beginning with its
recognition in clear terms as a fundamental right under the Constitution. If a
citizen has a fundamental right to water, the State should have a duty to
provide that water. Law and policy must take into account social realities and
community dynamics in the course of their drafting. Finally, water, especially
water for drinking and household needs must be made available freely 8S a
·common good and not as a commodity.