RIGHT TO WATER-LEGAL AND JUDICIAL APPROACHES

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Prof.Dr. Dilshad Shaik

M.L., M.B.A.;Ph.D. (Law); Professor and Director; Department of Legal Studies; School of Law;

VELS, Pallavaram, Chennai

ABSTRACT

All processes of life are directly or indirectly connected to water1. Human survival is dependent

on mercy of water. The supply of all-important water to the body helps it to perform its duties

perfectly maintaining good health. Water has been used since antiquity as a symbol by which to

express devotion and purity. Some cultures, like the ancient Greeks, went as far as to worship

gods who were thought to live in and command the waters. Whole cities have been built by

considering the location and availability of pure drinking water. Contrary to the past, our recent

developed technological society has become indifferent to this miracle of life. Our natural

heritage rivers, seas and oceans has been exploited, mistreated and contaminated. Our drinking

water today, far from being pure, contains some two hundred deadly commercial chemicals. Add

to that bacteria, viruses, inorganic minerals (making the water hard) and you have a chemical

cocktail that is unsuitable if not deadly for human consumption. By 2050, India’s population is

projected to be 1.69 billion, India’s newest challenge is to figure out how to apportion the water

they have between its industry, its agriculture, and public.

Water remains the fundamental necessity of mankind2. This necessity has turned itself into one of

the basic human rights in India. The right to water and access to adequate sanitation is vital to

human dignity. In spite of the eternal value of water, the development of the right to water

*Dr. Dilshad Shaik, M.L., M.B.A.;Ph.D. (Law); Professor and Director; Department of Legal Studies; School of Law; VELS, Pallavaram, Chennai.

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On July 2010, the UN General Assembly declared safe and clean drinking water, and sanitation, a human right essential to the full enjoyment of life and all other human rights. The resolution was adopted by 122 votes in favour, with none against and 41 abstentions. The resolution called on “States and international organizations to provide financial resources, build capacity and transfer technology, particularly to developing countries, in scaling up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all”. India voted in favour of this resolution.

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and national authorities. There are various government policies that require a serious

re-consideration and questions of its enforcement are often raised with no proper solutions being

provided. In this light, this paper shall throw light on the different water laws prevalent in India

and also judicial approach .The paper shall scan the existing national and international legal

framework available on the issue and shall also thrive to provide remedies. An attempt through

this paper shall be made to identify the core issues in the area for progress of the nation so far as

water laws are concerned.

Key Words: Water, Right, Protection, Legislation, Judiciary

INTRODUCTION

India faces a particularly uncertain water future. By 2050, India’s population is projected to be

1.69 billion, 38 million larger than China’s projected population of 1.31 billion. Due to aggressive

farming, expanding industry, and, of course, their growing population, India’s demand for water

and water consumption has also gone up significantly in the past few decades. Despite all

developments there remain a large number of people who are unable to exercise right to have

access to water. India’s water shortages put the rural poor at an extreme disadvantage3. Many

Indian cities and towns facing the challenges of increasing populations and expansion of urban

areas, direct access to clean, affordable, and reliable drinking water is a significant challenge,

especially to the poor who lives in slums. A per the WHO-UNICEF Joint Monitoring Program’s

Report of April, 2014, only 51% of the urban households have coverage of piped onto premises

supply of drinking water and 46% are covered by other improved sources.

Right to Water under International Law: The right to water is implicitly and explicitly protected as

a human right. The Universal Declaration of Human Rights 1948 (UDHR) recognizes the inherent

dignity and the equal and inalienable rights of all human beings.4 As water is a basic need for

human existence (for drinking, to produce food and for sanitation/health) it can be equated to

the right to life which cannot be secured in the absence of the right to water. The International

3

Accelerated Rural Water Supply Programme (1972) was the first such national level policy framework for water supply in rural areas.

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on Civil and Political Rights (ICCPR) 1966 also implicitly recognizes the right to water as an integral

component of the right to life, to an adequate standard of living, to health, to housing and to

food(Art 11), International Covenant on Economic, Social and Cultural Right, 1966) The right to

access to water is explicitly protected under the Convention on the Elimination of all Kinds of

Discrimination against Women (CEDAW) 1979 and the Convention on the Rights of the Child

(CRC) 1989. Article 14 (2)(h) of the CEDAW 1979 provides international protection of right “to

enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and

water supply”. Article 24 of the CRC 1989 also explicitly recognizes right of the child “to combat

disease and malnutrition…through the provision of adequate nutritious foods and clean drinking

water, taking into consideration the dangers and risks of environmental pollution”. International

humanitarian law applicable in armed conflict, in particular, the 1977 Protocol to the Geneva

Convention Relating to the Protection of Victims of Non International Armed Conflict, prohibits

starvation of civilians as a method of war and, accordingly, explicitly protects drinking water

supply systems and irrigation systems. (Art 14), Protocol to the Geneva Convention Relating to

the Protection of Victims of Non International Armed Conflict 1977)

CONSTITUTIONAL AND LEGISLATIVE FRAMEWORKS

Indian Constitution has not mentioned Water as such a fundamental right. The National

Commission that reviewed Indian Constitution recommended in its report the inclusion of a new

right in the form of right to safe drinking water to avoid ambiguity and also to bring clarity by

constitutionalizing the provision. There remains no reason as to why „right to water‟ should not

be included expressly in the Constitution paving a way for a better and guaranteed future to us

and our next generations.

The Constitutional and legislative framework of the water rights regime presents a complex

picture of division of powers and responsibilities as regards to water resources in India. The State

government has the power to make laws in respect of water resources existing in that state

subject to conditions and limitations laid down by Parliament from time to time. The

constitutional authority is bestowed upon the State governments by virtue of entry 175. The plain

reading of Article 262 of the Indian Constitution provides that Parliament may by law provide for

5_{Entry 17 in List II (State List) in Schedule VII which inter alia reads as, “Water, that is to say, water}

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waters of, or in, any Inter-State river or river valley. Further, Sub-Clause (2) of Article 262 also

states that notwithstanding anything in this Constitution, Parliament may by law provide that

neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such

dispute or complaint as is referred to in clause (1). Importance of water rights and also the

apprehensions of the government in dealing with conflicts relating to water. This serves as a tool

in the hands of parliament specifically in the disputes relating to Intra-State or Inter-State Rivers

between the States. Besides this, the parliament also has exclusive power to make any law with

respect to any matter not enumerated in the Concurrent List or State List which is otherwise

known as ‘Residuary Powers’ of the Parliament.6In case of inconsistency between laws made by

the Parliament and laws made by Legislatures of States, the laws made by former shall prevail

courtesy repugnancy solutions provided by the Constitution.7 Thus, wide ranges of law making

powers have been conferred upon the Union government with respect to the regulations and

governance of water management and rights in India.

In India, the constitutional right to access to clean drinking water can be drawn from the right to

food, the right to clean environment and the right to health, all of which have been protected

under Right to Life guaranteed under Article 21 of the constitution. In addition to article 21,

Article 39 (b) of the directive principles of state policy (DPSP), which the Constitution declares to

be non - justifiable, recognizes the principle of equal access to the material resources of the

community.

The fundamental right such as Right to life, Right to food, Right to self-discrimination, Right to

adequate standard of living, Right to Housing, Right to health, Right to take part in cultural life

cannot be fully realized without water. Right to water can be extended not only to mean that

people should not be denied access to water but also that in areas where no access to drinking

water is provided by the State, the constitutional Right to Life guarantee would impose a duty on

the State to positively provide water. To what extent can this right be enforceable, and is it

dependent on state resources. Do water providing agencies have any obligations to citizens

before disconnection of water supply and does the state have a duty to provide basic water

supply even if it does not have sufficient resources all these are issues which demand a clear

answer to protect the right to water.

6

Art. 248 of the Constitution of India

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urge of the Supreme Court and various High Courts to shelter the right to water. There are a

number of judgments by virtue of which the Judiciary in India has expressed their concern from

time to time. In the past few years, courts have delivered many verdicts on the right to safe

drinking water as a fundamental right, predominantly in cases where inadequate water supply to

different cities was legally challenged. The concept of right to “healthy environment” has been

developed as part of the right to life under Article 21 of our Constitution. This concept was first

clearly mentioned in the case of BandhuaMuktiMorcha v. Union of India8 and then continued and

expanded. The Supreme Court protected the right to clean water as part of the right to a healthy

environment in a spate of water pollution cases coming before it from the early nineties onwards.

An important ruling of the Indian Supreme Court was the case of A.P. Pollution Control Board II v.

Prof. M.V. Nayudu.9 In this case, the AP government had granted an exemption to a polluting

industry and allowed it to be set up near two main reservoirs in Andhra Pradesh – the

HimayatSagarlake and the Osman Sagar lake, in violation of the Environment Protection Act 1986.

The Supreme Court struck down such exemption and held that the “Environment Protection Act

and The Water (Prevention and Control of Pollution) Act 1974 did not enable to the State to grant

exemption to a particular industry within the area prohibited for location of polluting industries.

Exercise of such a power in favour of a particular industry must be treated as arbitrary and

contrary to public interest and in violation of the right to clean water under article 21 of the

constitution on India. The Government could not pass such orders of exemption having

dangerous potential, unmindful of the fate of lakhs of citizens of the twin cities to whom drinking

water is supplied from these lakes. Such an order of exemption carelessly passed, ignoring the

‘precautionary principle’ could be catastrophic.” The court referred to India’s participation in the

UNO water conference and held that the right to access to drinking water is fundamental to life

and there is a duty on the State under Article 21 to provide clean drinking water to its citizens.

The Supreme Court also referred to the Narmada BachaoAndolan v. Union of India10 judgment

where Kirpal, J. observed that “Water is the basic need for the survival of human beings and is

part of the right to life and human rights as enshrined in Article 21 of the Constitution of India and

8 _{AIR 1984 SC 802}

9 _{(2001) 2 SCC 62}

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implicit in the right to “life”.

In another judgment of Vellore Citizens' Welfare Forum v. Union of India, 11gave relief to the

victims of water pollution caused by tanneries. In this case, a writ petition was filed against the

large-scale pollution caused by tanneries and other industries in the state of Tamil Nadu. The

petitioners alleged that untreated effluent was being discharged into agricultural fields,

waterways and open land, which ultimately reached the Palar River which was the main source of

water supply to the residents of the area. The effluents had spoiled the physico-chemical

properties of the soil and had contaminated the groundwater by percolation. After carefully

examining the facts of the case, the Supreme Court, while recognizing the common law right of

the people to a clean and healthy environment, awarded compensation to the victims of pollution

on the basis of the ‘precautionary principle’ and the ‘polluter pays principle’. The ‘precautionary

principle’ when applied by the courts to Indian condition means: (i) that environmental measures

taken by the state and the statutory authorities must anticipate, prevent and attack the causes of

environmental degradation; (ii) that where there are threats of serious and irreversible damage,

lack of scientific certainty should not be used as a reason for posting measures to prevent

environmental degradation; and (iii) that the ‘onus of proof’ is on the actor or the

developer/industrialist to show that his action is environmentally benign. By regarding the two

aforementioned principles as part of the environmental law of the country, the Supreme Court

has to some extent conceptualized the common law remedial measures of awarding

compensation to the victims of a tortious action in water pollution cases. Importantly, the

Supreme Court held that “The constitutional and statutory provisions protect a person’s right to

fresh air, clean water and pollution-free environment, but the source of the right is the

inalienable common law right of clean environment.”

The Supreme Court has, in the context of water pollution, mandated the cleaning up of water

sources including rivers,12the coastline13 and even tanks and wells14 The concern over pollution of

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(1996) 5 SCC 647

12

For orders relating to the pollution on the river Ganga, see M.C. Mehta v. Union of India AIR 1988 SC 1037, 1115 and (1997) 2 SCC 411 For an important decision regarding closure of a hotel resort which was polluting the Beas river in Himachal Pradesh, see M.C. Mehta v. Kamal Nath (1997) 1 SCC 388

13 _{S. Jagannath v. Union of India (1997) 2 SCC 87} 14

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directions for clean up by the polluter and restitution of the soil and ground water.15 The court

has also applied the ‘precautionary principle’ to prevent the potential pollution of drinking water

sources consequent upon the setting up industries in their vicinity. The court has recognized that

water is a community source which is to be held by the State in public trust in recognition of its

duty to respect the principle of inter-generational equity. In M.C. Mehta v. Kamal Nath16 the court

declared that ‘our legal system – based on English common law – includes the public trust

doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by

nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore,

running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal

duty to protect the natural resources. These resources meant for public use cannot be converted

into private ownership’.

In HinchLal Tiwari v. Kamala Devi17, the court said ‘It is important to notice that the material

resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature’s bounty.

They need to be protected for a proper and healthy environment which enables people to enjoy a

quality of life which is the essence of the guaranteed right under Article 21 of the Constitution of

India. ’Every citizen’s legal right to “safe drinking water” is recognized under Article 21 of the

Constitution of Indian Courts have delivered a growing body of verdicts on the right to safe

drinking water as a fundamental right in S.K.Garg Vs. State of Uttar Pradesh (2001), the High

Court reiterated the fundamental right to drinking water, stating that the need for a decent and

civilized life included the right to food, water, and decent environment. Right, predominantly in

cases where inadequate water supply to different cities was legally challenged.

GautamUzir&Anr. V. Gauhati Municipal Corp18This was a case related to scarcity of water in the

city of Guwahati. It was argued that the Municipal Corporation is liable for supplying sufficient

bounty. They need to be protected for a proper and healthy environment which enables people to enjoy a quality of life which is the essence of the guaranteed right under article 21 of the Constitution of India.‟

15

In Re: Bhavani River-Shakti Sugars Ltd. (1998) 6 SCC 335. In Indian Council for Enviro-Legal Action v union of india

16_{(1997)1 SCC 388}

17

(2001) 6 SCC 496

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that effective policies could not be adopted due to paucity of funds. The court made clear that

Water, and clean water, is so essential for life.

After initially talking about the right to water in the context of pollution cases, courts have

delivered a growing body of verdicts on the more fundamental concerns of access to drinking

water and on the right to safe drinking water as a fundamental right. The Andhra Pradesh High

Court reiterated this position saying that the right to safe drinking water is a fundamental right

and ‘cannot be denied to citizens even on the ground of paucity of funds’.

In this line of cases in 2006 a Public Interest Litigation (PIL) was decided by the Kerala High Court

ventilating the grievances of the people of West Kochi who had been clamoring for supply of

potable drinking water, for more than three decades. Noting that the petitioners ‘have

approached this Court as a last resort’ the Court held that: We have no hesitation to hold that

failure of the State to provide safe drinking water to the citizens in adequate quantities would

amount to violation of the fundamental right to life enshrined in Article 21 of the Constitution of

India and would be a violation of human rights. Therefore, every Government, which has its

priorities right, should give foremost importance to providing safe drinking water even at the cost

of other development programmes. Nothing shall stand in its way whether it is lack of funds or

other infrastructure. Ways and means have to be found out at all costs with utmost expediency

instead of restricting. In this line of cases in 2006 a Public Interest Litigation (PIL) was decided by

the Kerala High Court ventilating the grievances of the people of West Kochi who had been

clamoring for supply of potable drinking water, for more than three decades. Noting that the

petitioners ‘have approached this Court as a last resort’ the Court held that:

One example from a state law, note the provisions of the Hyderabad Municipal Corporation Act,

1955 which provides that ‘The Corporation shall make adequate provision for the management

and maintenance of all municipal water works and the construction and acquisition of new works

necessary for a sufficient supply of water for public and private purposes’ Section 112 .This

provision is under the head titled ‘Matters to be provided by the Corporation’ as distinguished

from ‘thus it is an ‘obligatory duty’ of the Corporation.

In 2012, a Public Interest Litigation19 was filed by PaniHaqSamiti struggle for access to water by

slum dwellers got a major boost in India with the judgement on December 15th 2014 by a

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that whether homes are deemed ‘legal’ or ‘illegal’ - in upholding Article 21 of the Indian

Constitution - it is the responsibility of the government to provide water to all.

AttakoyaThangal v. Union of India W.P. (Right to clean water as a right to life)

According to petitioners, ground water resources in the coral isles of Lakshadweep are limited.

Potable water is in short supply, and large scale withdrawals with electric or mechanical pumps

can deplete the water sources, causing seepage or intrusion of saline water from the surrounding

Arabian Sea.

Supreme Court in Shri Sachidanand Pandey v. State of West Bengal &Ors20 to highlight the risk in

interfering with nature beyond the degree of tolerance. For every triumph that men make over

nature, she takes her revenge.

CONCLUSION

Thus, after analyzing the above cases the fundamental right of citizens to have ‘clean’ drinking

water as part of the right to clean environment guaranteed under the right to life under Article

21. By doing so, the court has been protecting only the negative right to not have water sources

polluted. In AP Pollution Control Board Vs. Prof. M. V. Naidu(Retd.)&Others21 the Supreme Court

did mention that all people, whatever their stage of development and their social and economic

conditions, have the right to have access to drinking water in quantum and of a quality equal to

their basic needs.

Water and rivers have dominated the destiny and fortunes of man. There are various government

policies that require a serious re-consideration and questions of its enforcement are often raised

with no proper solutions being provided. The closest that we came to directly incorporating this

right was when the National Commission that reviewed the Constitution recommended in its

report in 2002 that a new Article 30D be inserted in the Constitution thus: ‘Every person shall

have the right—(a) to safe drinking water …’ That recommendation of the National Commission

reiterated what the higher courts have been holding in similar words in the past few years.

Denial of access to water would constitute a prima facie breach of the State's duty to respect

people’s right of access to water. Perhaps water management, will be one of the biggest

challenges in this century. 20_{AIR 1987 S.C. 1109}

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 The prime responsibility to provide safe drinking water is allotted to the State

Government22 _{and further to respective Municipal Corporations.Allocation of more funds}

to corporations and municipalities and appropriate measures must be taken to protect

drought areas.

 The policy to provide free basic water needs to be supplemented with a policy that aims

to rapidly increase access to water infrastructure - especially for the rural poor;

 Local governments, which are often not able to finance the free provision of basic water

prefer disconnection that deprive the resident’s access to water. A water policy

therefore should be properly targeted to meet the needs of the rural poor - a particularly

vulnerable group in society.

 Ground water level must be protected. Safeguards must be evolved to stop withdrawal

of ground water at a cut off level,a methodology has to be evolved for extraction of

ground water.

 Water is a human right23 then the State is responsible for the fulfillment of that right

even if it allows private intermediaries to play a role.

 Restrictions, comprehending the total situation, will be necessary, even in the shape of

statutory regulations. There is a need to impose restrictions and introduce a system of

effective monitoring at all levels.

REFERENCES

1. Cullet, Philippe (2009), Water Law, Poverty, and Development, Oxford University Press. New York,

USA (2011),

2. ‘Evolving Regulatory Framework for Rural Drinking Water’ in IDFC (ed.) India Infrastructure Report

2011, Oxford University Press, New Delhi.

3. Mosse, David (2003), The Rule of Water; Statecraft, Ecology, and Collective Action in South India;

Oxford University Press, New Delhi.

22_{The „new‟ laws of the decade retain many of the required basic features. These include The Karnataka}

Ground Water (Regulationfor protection of sources of drinking water) Act, 1999; The Kerala Ground Water (Control and Regulation) Act, 2002; The Andhra Pradesh Water, Land and TreesAct, 2002; The West Bengal Ground Water Resources(Management, Control and Regulation) Act, 2005; TheHimachal Pradesh Ground Water (Regulation and The Himachal Pradesh Ground Water (Regulationand Control of Development and Management) Act,2005 has some useful additional provisions as well.

23_{On July 28, 2010, the United Nations General Assembly passed Resolution 64/292, which explicitly}

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4. Upadhyay, Videh (2003a), ‘Claiming Water’, Down to Earth, available at http://www.

indiaenvironmentportal. org.

5. The Right to Live is Non-negotiable’,Indian Express, 14 June.

6. Upadhyay, Videh (2005), ‘Save Groundwater or Ground Democracy?’ available at http://www.

indiatogether.

7. ‘Water Law and the Poor’ in NandiniSundar (ed.), Legal Grounds’, Oxford University Press,New

Delhi,2009

8. ‘Canal Irrigation, Water User Associations and Law in India-Emerging Trends in Rights Based

Perspective’, 2010

9. P. Cullet, A. Gowlland-Gualtieri, R. Madhav, and U. Ramanathan (eds) Water Governance in

Motion, Cambridge University Press, New Delhi.

10.

http://indianexpress.com/article/cities/delhi/draw-water-from-atms-for-30-paise-under-delhi-jal-boards-new-initiative/

11. http://www.thehindu.com/news/cities/Delhi/not-many-takers-for-water-

12. http://www.sierraclub.org/cac/water/human_right