Water is undisputedly indispensable for human existence. Internationally, right to water has been interpreted as right to access water, implying water to be an economic good[1]. This implies that the State is obligated to only provide the means to supply water but it treats water as a commodity that should be ‘affordable to all’. In India, right to drinking water has been recognized as a fundamental right under Article 21 of the Indian Constitution[2]. Although the legislations and administrative policies around water serves as an evidence to prove that water has been an important subject for policy formulations, there is no general consensus on the content of right to drinking water that is the foremost reason for the implementational lacunas of this right. Since the content of this right is not crystallized, the interpretation of the same varies according to changing political and economic context. There are several administrative as well as legislative policies around the same but right to water has not been explicitly recognized by any of these legal instruments. These instruments provide a means for water supply and distribution but do not provide for any legal recourse to enforce this right[3]. This article shall explore how despite the recognition of right to water as a fundamental right in India, the lack of consensus on the content of right to water is responsible for the implementational lacunas that consequently violate the right to water of the citizens of India.
The normative content of right to water was discussed in the General Comment 15 (GC 15). The Committee identified that right to adequate access to water has three facets – availability, quality and accessibility[4]. This article will primarily focus on the aspect of availability and accessibility. Availability deals with continuous and sustainable supply of sufficient water to everyone irrespective of their identity for personal and domestic use and quality under right to access to water requires that water should be fit for consumption. Accessibility of water has three dimensions- physical, economic and non-discriminatory. Water should be easily accessible and no life should be risked in obtaining the same, it should be affordable and there should be no discrimination of the basis of age, gender, class etc.[5] If we were to read the contents of right to access to water into the right to water as a fundamental right in India, the blatant violation this right would become obvious. The Report also addressed State’s responsibility to protect, respect and fulfill right to water[6]. India has recognized right to water as right to drinking water and it is not limited to providing access to water but it still has a long way to go. The recent events that have transpired due to the drought that hit Maharashtra and the mismanagement of water emphasizes upon the necessity to define the contents of the right and also develop a unified framework for managing water issues in India and provide essential legal recourse for enforcing this right.
The right to availability of water refers to the sustainable and continuous supply of sufficient water for the domestic as well as personal purposes. The State is obligated to actively provide for water when people are unable to secure it due to reasons beyond their control[7]. The inability of the State to provide regular supply of water in drought struck villages of Maharashtra violates the right to water of the citizens. The absence of any legal recourse in the statutes legislating on irrigation or for any other purpose does not explicitly recognize right to water as a right and neither does it envisage its contents. Therefore, the prevailing lacuna prevents the enforcement of this right that further weakens it.
Recently, an Al-Jazeera documentary[8] drew attention to the state of Maharashtra that was hit by a drought and the government’s response to protect the right to water of its citizens was inadequate. The government supplied four tankers of water to six villages which is clearly insufficient to sustain the residents. The supply of water by such means was also irregular. The tankers did not turn up to provide water for four to six days. This irregularity forced the villagers to reuse the same water for their domestic as well as personal uses. This sheds light upon how right to water of such villagers were violated since water was not supplied in sufficient quantities and the same water was being recycled for domestic as well as personal purposes. Therefore, standards of personal hygiene and sanitation were also not upheld and the quality of water was also compromised. The villagers also complained of how the government schemes did not provide them with any substantial relief. The schemes and legislations introduced by the government for promoting agriculture were unsuccessful as the farmers never received such benefits. The farmers were forced to move to cities and towns in search of work because the monetary benefits allocated for the victims of the drought never reached them. The absence of any legal mechanism under the statutes to enforce the right provides scope for corruption, consequently, violating right to water. Moreover, the lack of efficient administrative structure to deliver the benefits of the scheme also grossly undermines the right.
The standard of availability of water has not been only violated in villages struck by drought but also in the cities where the urban poor reside. A BBC documentary covering the water crisis in India[9] shed light on the plight of urban-poor of Delhi. They do not receive continuous supply of water either. Most of the water from the tanker ends up getting wasted due to the rush. Since there are no plans for regular supply of water to the slums of Delhi, the residents illegally tap into the pipes that run below their slums to provide water to the more affluent parts of the city.
The government in an attempt to fulfill the right to water of one section of the country ended up violating the obligation to respect the right to water of the other section. Obligation to respect right to water entails that the government shall not contravene with the enjoyment of the right. The government deprived a section of society of their right to water at the behest of the other section without providing equitable compensation or even substitute to exercise their right. A village in Uttarakhand that had constant supply of clean water was uprooted to build dam on the foothills of Himalaya to supply water to parts of northern India. The people who were displaced do not receive regular supply of water and the quality of water makes it unfit for consumption. Farmers who were uprooted more than twenty years ago have not yet settled and continue to face issues with quality of crops that is produced due to the sub-par quality of water provided for irrigation.
In the above-mentioned examples we see how the attempts by the state to fulfill its obligation to supply water has been inadequate and futile. Moreover, the benefits introduced by the government for the victims of drought to avail do not reach the intended beneficiaries primarily because the content of right to water is not decided to for the government to take appropriate positive actions and hold the government obligated for a particular standard and the actions that the State takes is perpetually inadequate due to the lack of legal recourse for enforcing the entitlement.
Right to accessibility requires that water should be physically, economically accessible. The accessibility of water should not be restrained due to age, gender, class, etc. of a person[10]. This section will primarily be focusing on the economic and non-discriminatory accessibility. Philippe Cullet argues that water should not be interpreted as a need but as a universal entitlement. He argues against treating water as an economic good and suggests that the Indian government should not move away from their position of supplying water for free[11].
The issue of economic inaccessibility emerges from the absence of adequate availability. The documentaries unveiled how the villagers were being subjected to inflated prices of water by private players due to increased demand when the tankers failed to show up for almost a week.
The urban-poor of Delhi are also subjected to a similar problem. Racketeers in Delhi have illegal control over a bore-well that was instituted by the government for free public use. The racketeers control the supply of water to the houses in that locality. They are paid for allowing the supply to the houses of locality. This gives them immense power. India has historically followed the policy of providing free water to it citizens. This policy is inadvertently defeated when private bodies try to profit off the misery of citizens due to the inability of the state to fulfill its obligation of supplying sufficient and constant source of water. Furthermore, the accessibility to water should not be discriminatory. People from every age group, gender, social class should have equitable access to water. For instance, the Al Jazeera documentary begins with highlighting how the hotels in the urban areas continue to have water for their fountains against people in villages who scramble to collect even a bucket of water for their domestic as well personal utilization. The stark differences between the supply of water to different parts of the city on the basis of the class of people residing in certain areas is also highlighted in the BBC documentary. The affluent section of the city has a planned supply of water as opposed to the slum that has to illegally tap into such pipes to collect water. In the Narmada Dam Project, the indigenous people were displaced to build the dam to provide water to other parts of the country. Although, the water from the dam never reached its intended beneficiaries, the indigenous people were yet discriminated against and did not receive adequate compensation for the same. Their right to water was compromised at the behest of other sections of the society[12]. Rajendra Singh, Water Man of Rajasthan highlighted that the cities were consuming too much water that consequently did not leave much for rural areas’ consumption. Therefore, disparity in supply of water that leads to discrimination in exercising the right to accessibility of water.
The documentaries also highlight the plight of the elderly population who are unable to collect water from tankers that visit villages due to their old age and the massive rush that is caused due to the scramble for water. The testimonials by the elderly of the village also reveal that the government has taken so steps to uphold their right to water. They sustain on the charity from the more affluent section of the society.
Women have been a prominent subject around the non-discrimination debate. Historically and even in the present times, it is the women that have to struggle to collect water. Since, household responsibilities fall on them, whether they have to walk miles or climb on tankers to collect water, their right to physical accessibility to water is violated. Walking miles in scorching summers of Rajasthan affects their health. It also violates their right to education as most of their time is spent on collecting water for the household. Thus, accessibility to water is an essential element of right to water. All three facets of accessibility are violated due to mismanagement of water. It was urged in the documentaries to rely on community-based water harvesting to manage the demand for water in rural as well as urban areas. It also emphasized on traditional ways of water harvesting for meeting the necessities of all the sections of society.
The water crisis of India is primarily because of poor development of the right. The lack of general consensus on the contents of right to water and absence of legal mechanisms to enforce the right are primary reasons for its failure. Although, the districts are adopting technology to maintain transparency and accountability, the lacunas in the implementation of schemes and legislative policies continue to raise the issues with respect to right to water. Cullet had also recognized that there were various legislative policies for water uses that were intrinsically inter-connected and called for a uniform legislation governing these issues and crystallizing the rights and obligations of all stakeholders in this Act. When we analyze right to water from a political economy lens, we realize how the implementation of the right varies from economic and social context. The right of the affluent sections of the society tend to receive regular supply of water. In fact, living in the same city but in different localities also affects the implementation of the right, where the wealthy section of the city receives uninterrupted supply to water. Therefore, Cullet suggested to treat water as a universal entitlement as against the narrative of ‘need’. Entitlement should be the guiding force for developing the content of this right. This is because needs treat water as a commodity whereas, entitlement or rights create obligations, which is necessary for upholding right to water[13]. I personally feel that the right is reduced to ornamental value in the light of implementational lacunas- both administrative with respect to schemes as well as lack of judicial mechanism under legislations to enforce this right. Therefore, a rights-based approach along with uniform legal framework will be the first steps towards preventing the gross violation of right to water in India.
[1] See UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment 15: The Right to Water (Arts. 11 and 12 of the Covenant), 20th January 2003, E/C. 12/2002/11, available at: https://www.refworld.org/docid/4538838d11.html
[2] See Vishala Kochi Kudivella Samithi v State of Kerala, 2006 (1) KLT 19. The court held that the government is bound to provide drinking water to the public and that it should be the foremost of duty of the government. Some decisions have linked Article 47 of the Indian Constitution to right to water, as the State’s primary duty to improve public health.
[3] See Videh Upadhyay, Water Rights and ‘New’ Water Laws in India: Emerging Issues and Concerns of the Right Based Perspective, in India Infrastructure Report, 2011 56, 58-63. In this paper, the author argues how the rights with respect to water exists without remedies. He cites the Maharashtra Management of Irrigation System by Farmers Act 2005 and says that there no provision under the Act that allows questioning the Authorities and river basin agencies on the extent of distribution of this entitlement. He states that new legislations in the water and irrigation sector never as a rule create any enforceable right to water for farmers or other water users.
[4] General Comment 15: Right to Water, supra note 1 at 4-5.
[5] Id. at 5-6.
[6]General Comment 15: Right to Water, supra note 1 at 8-9.
[7] Id. at 7.
[8] Inside India’s water crisis: Struggling with drought and dry taps | Talk to Al Jazeera In the Field. 2019. [documentary] India: Al Jazeera, available at: https://www.youtube.com/watch?v=KLjiqWRWQko
[9]BBC Our World India’s Water Crisis. 2013. [documentary] India: British Broadcasting Corporation, available at: https://www.youtube.com/watch?v=jscOuWpw_iU
[10] General Comment 15: Right to Water, supra note 1 at 6.
[11] Phillipe Cullet, Right to Water in India- Plugging Conceptual and Practical Gaps, 17 The International Journal of Human Rights, 56, 65.
[12] Drowned Out. 2002. [documentary] India: Spanner Films.
[13] Cullet, supra note 11, at 71.
ABOUT THE AUTHOR
Aarya Pachisia
Aarya Pachisia is a fourth-year law student pursuing B.A., LL.B. (Hons.) from Jindal Global Law School. She likes to write on legal aspects of environmental as well as technological issues.
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