(Study Material for IPS LCE) Socio Economic Development in India: Human Rights Law In India: Right To Water & 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 litres 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.

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 justiciable 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 water.

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(1981(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 21 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 in dealing with cases with a bearing on the right to water in some form.

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 handpump 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 handpump 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 borewell 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 as a common good and not as a commodity.

Courtesy: Ministry of Information and Broadcasting publication division