Right to Clean Water as a Fundamental Right

Water is one of the most essential natural resources for the survival of life. It is required not only for drinking but also for sanitation, agriculture, and maintaining ecological balance. While about 70% of the Earth’s surface is covered with water, only a small fraction of it is available as clean and drinkable water. With the rise in population, industrialisation, and urbanisation, the availability of safe and clean water has become a serious concern in India.

The Indian Constitution does not expressly mention the right to clean water. However, through judicial interpretation, this right has been recognised as part of the fundamental right to life under Article 21. Over the years, the Supreme Court and High Courts have widened the scope of Article 21 to include various rights necessary for living with dignity, including the right to clean drinking water.

This article discusses the constitutional basis, jurisprudential foundations, judicial decisions, statutory enactments, and international developments relating to the right to clean water as a fundamental right in India.

Constitutional Basis of the Right to Clean Water

Article 21 – Right to Life and Personal Liberty

Article 21 of the Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Supreme Court has interpreted the term “life” to mean more than mere animal existence. It includes the right to live with human dignity, which requires a clean and healthy environment. Since clean drinking water is essential for survival and dignity, it is considered an integral part of Article 21.

Broader Environmental Rights

The right to clean water is not seen in isolation. It forms part of the broader right to a clean environment. Pollution of water bodies, industrial waste discharge, and lack of safe drinking water are treated as violations of the fundamental right to life.

State’s Duty

The Constitution places a duty on the State to ensure that water sources are protected and that citizens receive clean and safe drinking water. Any action or inaction by the State that pollutes or fails to protect water bodies amounts to a violation of Article 21.

Jurisprudential Background

Generations of Rights

The right to water is considered a second-generation right because it requires infrastructure and positive action by the State. At the same time, it is also recognised as a third-generation right as part of environmental and collective rights that require cooperation of the entire society.

Common Law and Roman Law Doctrines

Earlier, rights over water were governed by principles like:

• Discovery Doctrine – whoever first discovered land or water could claim rights over it (as discussed in Milirrpum v Nabalco Pty Ltd).
• Riparian Rights Doctrine – those living near water bodies had the right to use them (Coffin v Left Hand Ditch Co.).
• Prior Appropriation Doctrine – those who first made use of water resources had a stronger claim.

These ideas treated water as private property or a resource for those who first accessed it. However, they were gradually replaced by more equitable doctrines.

Public Trust Doctrine

The Public Trust Doctrine, recognised in India through environmental jurisprudence, states that natural resources like air, water, and forests are held by the State as trustees for the people. The State cannot allow their misuse or destruction. This doctrine shifts ownership of water from individuals to the public as a whole, with the government acting as a trustee.

Distributive Justice

Linked to the Public Trust Doctrine is the idea of distributive justice. It means that resources like water must be distributed equitably to all citizens, and the State has the responsibility to ensure fair access.

Judicial Recognition of Right to Clean Water

The Indian judiciary has played a crucial role in recognising and enforcing the right to clean water.

Bandhua Mukti Morcha v Union of India (1984)

The Supreme Court, in a Bandhua Mukti Morcha case involving bonded labourers, held that clean drinking water, shelter, and medical facilities are essential for a life of dignity. The Court observed that providing pure drinking water is a basic duty of the State under Article 21.

Subhash Kumar v State of Bihar (1991)

The Court declared that the right to life includes the right to enjoyment of pollution-free water and air. If pollution endangers life, citizens can approach the Court under Article 32 for relief.

M.C. Mehta v Kamalnath (1997)

The Court invoked the principle of salus populi est suprema lex (welfare of the people is the supreme law) and emphasised that the State must actively ensure healthy water and prevent hazards to public health.

A.P. Pollution Control Board v Prof. M.V. Nayudu (1999)

The Court highlighted the importance of clean water and the precautionary principle in environmental matters. It stressed that the State has a duty to regulate water resources and ensure that the right to clean water is not compromised.

Other Cases

• In the M.C. Mehta (Ganga Pollution) case (1988), industries polluting the Ganga were directed to install effluent treatment plants.
• In several Public Interest Litigations, courts have reaffirmed that clean drinking water is a fundamental right and the State must prevent encroachment and pollution of water bodies.

Hohfeldian Analysis of the Right to Clean Water

According to the legal theorist Wesley Hohfeld, every right has a corresponding duty. Applying this to water:

• Citizens have a right to clean water.
• The State has a corresponding duty to provide and protect this right.

The duty involves ensuring access, preventing pollution, and creating institutions and infrastructure for water supply and sanitation.

Statutory and International Developments

Indian Laws

Several laws regulate the use and protection of water resources, including:

• Water (Prevention and Control of Pollution) Act, 1974 – provides for prevention and control of water pollution.
• Environment (Protection) Act, 1986 – empowers the government to protect and improve the environment.
• Indian Easements Act, 1882 – recognises certain customary rights related to water.

While these laws do not expressly guarantee a fundamental right to water, they impose duties on the State and authorities to regulate and maintain water quality.

International Recognition

The United Nations General Assembly, through Resolution 64/292 in 2010, recognised the human right to water and sanitation. It declared that clean drinking water is essential for the realisation of all human rights.

India, being a member of the UN, has also acknowledged this principle in its policies and legal framework.

Enforcement and Remedies

Public Interest Litigation (PIL)

Citizens can approach the Supreme Court under Article 32 or High Courts under Article 226 through PILs if the right to clean water is violated. Courts have entertained several PILs related to water pollution, encroachment of water bodies, and failure of authorities to provide safe drinking water.

Role of Judiciary

The judiciary has often stepped in to fill the gaps left by legislative and executive action. By interpreting Article 21 broadly, the courts have ensured that citizens have remedies when their right to clean water is threatened.

State Responsibility

The State is required not only to provide clean water but also to take preventive measures against pollution. Any action of the State that permits pollution or fails to protect water bodies has been declared unconstitutional.

Challenges in Realisation of the Right to Clean Water

• Unequal Access: Rural and marginalised communities often struggle to access clean water.
• Pollution: Industrial discharge, untreated sewage, and chemical contamination continue to pollute rivers and groundwater.
• Over-extraction: Groundwater depletion due to overuse and unregulated bore wells.
• Climate Change: Droughts, floods, and changing rainfall patterns affect water availability.
• Infrastructure Gaps: Inadequate treatment plants, poor distribution networks, and lack of maintenance hinder effective water supply.

Conclusion

The right to clean water has been firmly recognised as part of the fundamental right to life under Article 21 of the Indian Constitution. Through judicial interpretation, especially in cases like Subhash Kumar and M.C. Mehta, this right has gained strong constitutional protection.

While laws like the Water Act and Environment Protection Act provide statutory backing, the larger responsibility lies with the State as trustee of natural resources. The Public Trust Doctrine and the idea of distributive justice ensure that water is treated as a common resource belonging to all citizens.

Thus, the right to clean water is not just a constitutional entitlement but also a moral and social necessity for ensuring dignity, health, and sustainable development in India.