October 19, 2021

Constitutional Framework of State In Enforcing Right To Water

Environmental law

“The earth, the air, the land, and the water are not an inheritance from our forefathers but on loan from our children. So we have to handover to them at least as it was handed over to us.” – Mahatma Gandhi.

Introduction

All the water that will ever be is, right now[1]. Rights on water can be divided into its own types, rights on drinking water, rivers and attached rights, rights on and about routes and trade through International waters. Constitution of India provides under Article 246 that laws on rivers, development and regulation of the same are matters to be decided by parliament and mostly State legislatures. However, when we iterate Right to water, we instantly think of water for everyday use, such as potable (drinking) water.

In water scarce countries of the world such as Kenya, water is not just an essential commodity but also a political tool, it is a mode of manipulation and intrigue. Rural India is not much different. The right to water is an implied right, with jurisprudential undertones. It is as basic as the need to breathe clean, pollution-free air. Clean water is already becoming a scarce resource with the population explosion in a third world country like India. Need of the hour is the determination of the nature of right a citizen has over water, how the State preserves it, if equitable distribution of water is a Fundamental Right[2].

What kind of a right is the right to water?

Under the Easements Act[3], riparian rights are maintained in case of water which means if a person lives adjoining to a river or water body, he has rights to use it. However, the nature of right over water transcends just environmental rights. It also comes under rights regarding equitability and accessibility of it. For the equitable availability of it to all citizens, a single authority should construe regulations over it and facilitate its preservation. The State undertakes this responsibility. If equitable distribution is the norm, undertones of riparian rights fall through. But even then, there exists privatisation of water in forms, when a person digs a borewell in his property or purchases water, then said water becomes private property. It is henceforth accepted that clean water is a Fundamental right and it is implied within the right to life encompassed in Article 21. It is to be noted that there is a collective right over water by the general public which is found in water bodies. However clean water is a fundamental right. There comes the differentiation.

On July 28, 2010, the United Nations General Assembly recognised the Human Right to Water and Sanitation. Indeed, clean potable water and sanitation are extremely essential and needed for upholding of any other right.

Constitutional and other statutory provisions

Under the Constitution of India, right to clean water is enshrined under Article 21 which dictates right to life and personal liberty. It was brought upon by the landmark judgement of Bandhua Mukti Morcha Vs Union of India & Ors.[4] a PIL case where Supreme Court directed the state of Uttar Pradesh to eliminate child labour and provide children access to education and other welfare guidelines. Right to life is inclusive of the ingredients to have and sustain a fulfilling life with at least the basic amenities of clean air, nutrition, clean water, education etc. On the violation of it, a PIL can be filed under Article 32 of the Constitution. The Supreme Court in this case held that right to a healthy environment is part of the Right to Life enshrined in Article 21. It is the duty of the State to uphold this right. In Subhash Kumar Vs State of Bihar[5], the petitioner filed a PIL in the Supreme Court for prevention of pollution of the Bokaro river caused by the discharge of slurry from Tata Iron and Steel Co. The petitioner alleged that the respondents failed to abide by Section 24 of the Water (prevention and Control of pollution) Act, 1978. Even if the PIL was dismissed on the grounds of its credibility and qualifying terms to be considered for the public interest, the Court cursorily reinforced that citizens do have a right to healthy environment.

Any legal provision made and enshrined in a statute is primarily meant for welfare of the people which it alleges to govern and serve. During interpretation of a statute it is always meant to be considered with public welfare in mind. The doctrine of Salus populi est Suprema lex connotes the same. It literally means, welfare of the people is paramount law. In the case of MC Mehta Vs Kamal Nath[6] this doctrine was extensively discussed. Tanning industries on the bank of river Ganga were alleged to be polluting the river. The Supreme Court passed requisite order with direction for setting up of effluent plants within six months of date of order. It also ruled that State should take positive action to ensure availability of clean water and take precautions against health hazards.

There are also certain other statutes laying down rules for the State to facilitate the same. There are statutes to help improve and regulate supply of water for drinking, irrigation, rehabilitation of evacuees affected by the operation of schemes for water resources management. Water (Prevention and Control of Pollution) Act, 1974, Indian Easements Act, 1982, Provisions of Environment (Protection) Act, 1986 are amongst them. The Central Water Commission was set up in 1945 which helps State Governments with schemes for control, preservation of water resources and their distribution throughout the country. It has branches like river management, research branch etc.

Enforcement and opinions

The divide between the ‘have’ and ‘have-not’s is far too wide in a country like India. From the basic amenities like food and water to consumption of luxuries, there is a huge difference between the rich and poor. The privileged have always gotten their way and imposed their will. This is no exception in case of an essential commodity like water. The denial of access to or the lack of availability of water and sanitation to the lower income strata has been going on for a long time, even before the advent of economic reforms. This has been happening despite the several statutes and rulings by the Supreme Court that right to clean water falls under right to life in Article 21.

The main reason for the lack of enforceability of said legislations may not be due to shortcomings of the statutes or even its inclusion in Article 21, but in the fact that right to water is an implied right. None of the laws enacted yet enumerate an explicit right to water. Some, instead, expressly talk about abolishing structured (rights to use a resource) and customary rights. Right to water is not guaranteed either through the Constitution of India or any other legislation.

An implied right is political and civil freedom that is interpreted from the general or specific undertone of a Constitutional provision, but it is not expressly stated directly in the Constitution. Right to water is one such implied right which can only provide guidelines so as to equitable distribution and accessibility of clean water to all as interpreted under Article 21. However, it cannot be directly and bluntly imposed.

This shortcoming has to be done away with if we are to reach positive results in this grave issue of non accessibility of something so basic and so essential to a strata of the general populace. However, to confront a problem, we have to start at the base or foundation of it.

  • We have to change our outlook on how we view the right that is over water. In the entire body of legal literature, humanity has always facilitated well being of the people. And the people deserve much more than just clean water. But at least, the clean water should be provided. Riparian rights are regressive and bordering on juvenile principles like ‘finders keepers’. There should be practical and rational ceilings to amount of privatisation of water.
  • Disposal of wastage and pollution to river water, dispute over water of any river that flows over multiple states[7] and such grave issues should not be left over to state governments and state legislatures. The centre should make more strict guidelines and allot more funds for research of proper and non toxic waste disposal.
  • Models of countries with allocation of water resources should be followed.
  • No individual can flourish without education, so how can a country be expected to do so? More funds should be allocated for research and development on recycling, usage and increasing accessibility of water.
  • Draught prone villages, especially in rural India need alternative sources to obtain water than borewells and ditches holding rainwater. It might sound archaic, but most of rural India is still dependent on these primitive ways.
  • For irrigation and farming purposes, different models should be used. Most of India is still dependent upon rainfall for irrigation which comes in the season of monsoon. It is erratic in nature and becoming even more so on account of climate crisis and global warming.
  • Water comes under environmental laws as well. All of our ecosystem is dependent upon water. Centuries ago, the first civilisations grew near water sources, Egyptian civilisation beside river Nile, Harappa- Mohenjo Daro beside river Indus etc. Conservation of water sources should be our top priority.
  • There should be strict intervention of Centre when squabbling states, fighting over riverine projects forget that at the end of the day citizens are suffering in each of these respective states, citizens of the country who is even unable to provide potable water to them.

Conclusion

These are some visionary long term goals, but in such a populated third world country, we first need to set short term goals to maintain enforceability of the Right to Water.

“Because no matter who we are or where we come from, we’re all entitled to the basic human rights of clean air to breathe, clean water to drink, and healthy land to call home” – Martin Luther King III.


[1] National Geographic

[2] Fundamental Rights, enshrined in Part III of the Constitution are provided to each citizen of the Country and violation of any of them is strictly punishable.

[3] Indian Easements Act, 1882

[4] (1997) 10 SCC 549

[5] 3 1990 SC 533

[6] (1997) 1 SCC 388

[7] Like Cauvery water crisis between Karnataka and Tamil Nadu

Author- Debasrita Choudhury (KLE Law college, Bangalore)

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