Now Is The Right Time: Making A Case For Right To Water In India

RITHIKA

India is currently in the midst of a water crisis with nearly 600 million Indians facing high to extreme water stress. Efforts by the government to mitigate the situation is ongoing with the creation of new water ministry (Jal Shakti), water conservation campaign (Jal Jeevan Mission), and renewed thrust to piped water schemes (Har Ghar Jal). But when the situation is dire and it threatens the very existence of life, one cannot help but wonder — is it too little, too late?

Every citizen of India has the right of access to ‘safe drinking water’ as part of ‘Right to Life’ under Article 21 of the Constitution of India. This has also been reiterated by and judicially evolved through judgements of the Supreme Court and various High Courts of the country over the years. (1) The human right to water has also been derived from Article 47 of the Constitution. (2) However, with 84% of households lacking piped water access and 70% of water contaminated, nearly 200,000 Indians die every year due to inadequate access to safe water. Although prevalent in rural and urban areas, the problem remains especially unacknowledged in urban areas where informal settlements do not have any provision to safe and affordable drinking water.

There then arises the question — who is responsible for providing safe drinking water to the 163 million people who are currently bereft of it? The 73rd and 74th Amendment to the Constitution that, recognizing local self-governance, led to the creation of Panchayati Raj Institutions (PRIs) and Urban Local Bodies (ULBs) also obligates them with the responsibility of water supply. Water being a State subject, while its related functions can be handled by water boards/parastatal agencies, the accountability for the service provision must remain with the panchayats/municipalities. As argued by Jayna Kothari (2016), “A human need can be left to market forces to fulfill. But if water is a human right, then the State is responsible for the fulfillment of that right even if it allows private intermediaries to play a role.”

It has also been argued that while the right to safe drinking water has legal precedence, the actual content of the right has not been elaborated upon. Additionally, as argued by Cullet (2017), India has little beyond formal recognition of the right to water since a framework legislation that would provide specificity to this right has never been adopted. This “judicial ambivalence explains why the rights regime in the country tends to be a right without remedies regime.” (3)(Upadhyay, 2011) Hence, mere stating the right to water is not sufficient. In the case of India, along with being fundamental and universal, the right needs to be clearly specifiable. In accordance with the ‘minimum core obligations’ recommendation of the United Nations Committee on Economic, Social and Cultural Rights (UN-CESCR)(4), there ought to be recognition of a certain quantity of water as an inviolable part of the fundamental right to water. Further, the fundamental right to water must be specific to an individual rather than the community/household in order to truly achieve water security for all.

The National Commission in 2002 recommended that a new Article 30D be inserted in the Constitution granting the right to safe drinking water. It was, however, never realized. Now that India faces a potentially water-scarce future, legal provisions safeguarding the basic human rights, especially for the most disadvantaged become extremely important. Without immediate revision to water legislations and in the face of massive drought, the poor and disadvantaged will be the first to have no legal claim over the fundamental human right to water.

Footnotes

(1) Examples of such cases include Wasim Ahmed Khan v. Govt. of AP, 2002; Mukesh Sharma v. Allahabad Nagar Nigam & Ors., 2000; Diwan Singh and another, v. The S.D.M. and other 2000; S.K. Garg v. State of UP. 1999; Gautam Uzir & Anr. v. Gauhati Municipal Corpn. 1999.

(2) Hamid Khan v. State of Madhya Pradesh, AIR 1997 MP 191 (Madhya Pradesh High Court, 1996), para. 6.

(3) A right protects you only insofar as you have a remedy for its violation (Latin: Ubi jus ibi remedium).

(4) Governments, no matter what level of resources are at their disposal, are obligated to make sure that people living under their jurisdiction enjoy at least essential levels of protection of each of their economic, social, and cultural rights.

References

Kothari, J. (2016). The right to water: A constitutional perspective.

Cullet, P. (2017). The Right to Water in Rural India and Drinking Water Policy Reforms.

Upadhyay, V. (2011). Water Rights and the ‘New’ Water Laws in India. India Infrastructure Report, IDFC.