Understanding Constitutional Right to Water is very important for the government in management, supply and ownership of water resources. Presently, Right to Water is a derived right through the various judgments of the Courts. Several court judgments have reiterated that drinking water has to be provided to all the citizens by the government as right to life under Article 21 of the Constitution. Till date the government has put in place three National Water Policies as a guiding principle to be followed for the management and distribution of water.
Water is used by agriculture, industry, commercial services and residential sectors. But only access to water intended for personal and domestic use is a human right.
Honouring the right to water in India’s cities is a growing challenge, due to rapid urbanisation as well as citizens’ impatience with the quality of one of the most basic services. Till 2019, only two crore household had tapped water connections, which has increased to about five crore households now. Of course, having a water source within or near one’s home is no guarantee of good quality or even adequate water.
Where basic access has not been achieved, hygiene cannot be assured. Therefore, providing a basic level of access should be the highest priority for the water and health sectors. Significant time and effort goes into acquiring water. This has a lot of opportunity costs associated with it. Water source at a distance from the house cannot assure activities such as washing clothes, bathing, etc. Huge disparities are also observed in the access to drinking water. Hence, to derive public health gains, the accessibility and reach of the water supplied has to be expanded.
Water is an emotive issue in India. With growing population, industrialisation and urbanisation, the demand for water is increasing consistently whereas the total water available remains constant. Conflicts among different users, uses, regions and States are a regular feature now.
Although the right to water is not explicitly protected in the Constitution, it has been interpreted by the courts that the right to life includes the right to safe and sufficient water. For most countries, the lack of explicit reference to a right to water in the national legislation necessitates creativity in enforcing the right through the courts. In many such countries, cases have been brought under environmental or public health legislation or courts have interpreted the right to water under other constitutional rights, such as the right to life or a healthy environment.
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A basic right
The judicial approach to water rights regime in India clearly showcases the urge of the Supreme Court and various high courts to shelter the right to water, thereby, providing basic amenities of life to the poorest of poor. 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 the broad rubric of the 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, recognises the principle of equal access to the material resources of the community.
The right to groundwater in India is seen as following the right to land. The Indian Easements Act, 1882, links groundwater ownership to land ownership and this legal position has remained intact since then. The definition of the right suggests that if your neighbour extracts too much water and lowers the water table, you have the right to prevent him from doing so. Thus, there are limits to an individual’s right to exploit groundwater.
In the international scenario, through Resolution 64/292, on July 28, 2010, the UN General Assembly explicitly recognised the human right to water and sanitation, and acknowledged that clean drinking water and sanitation are essential to the realisation of all human rights. The Resolution calls upon states and international organisations to provide financial resources, capacity-building and technology transfer to help countries, in particular developing countries, to provide safe, clean, accessible and affordable drinking water and sanitation for all.
The scope of water rights and laws in India have been widened and a positive approach has been adopted by the Indian judiciary, reflecting the international norms and standards. The National Commission that reviewed the 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 constitutional provision. A legislation clearly framing the rights and duties of various government and institution for provisioning of water is the need of the hour.
The National water framework law 2016 was a step in the right direction, but unfortunately it lapsed in Parliament and could not see the light of the day. (concluded)
Gopal Krishna Agarwal is President Jaladhikar Foundation & National Spokesperson of BJP; Yuthika Agarwal is Assistant Professor of Economics, Delhi University