This article is written by Diganth Raj Sehgal, Student, School of Law, Christ University, Bangalore. The author has analysed the Right to water using jurisprudential concepts as well as cases to determine if it is a right and whether it can be a fundamental right under the Constitution of India.
Introduction
Fundamental rights are a group of rights which are guaranteed to all the citizens of the nation by the Constitution of India under Part III. These rights apply universally to all citizens residing in the nation, irrespective of their race, place of birth, religion, caste or gender. These rights are recognized by law as rights requiring a high degree of protection from the government and they cannot be violated by anyone. The obligation of protecting these rights lies on the government or the state. Most of the Fundamental rights provided to the citizens are claimed against the State and its instrumentalities and not against the private bodies.
Water is a natural resource essential for the survival of humans and other life forms. Water is available in abundance on the planet, with around 70% of the surface being covered with it. But the problem arises when we talk about access to and availability of clean water. Clean water is a scarce resource and with the ever rising population, it is imperative to sustainably manage its distribution and use. In the midst of this dilemma, a question arises that whether people have the right to water and if so, what is the nature of this right.
There are three generations of rights, the first generation being Civil and Political rights which serve negatively to protect the individual from excesses of the state. These rights are inherent in their existence. The second generation of human rights are related to equality and are fundamentally Economic, Social, and Cultural in nature. These rights require some infrastructure to be exercised. The third generation of rights are all rights which are not included in the first two generations of rights example Environmental rights. These rights not only require infrastructure but also require the cooperation of the society as a whole.
Right to water would fall in the third generation of right as water is a subject matter of the environment and its preservation and use falls within the scope of these rights. Further, it would also fall under the second generation of rights with respect to its utility and distribution as equity and equality based rights are a part of this generation.
Needless to say, Right to water is a right that requires infrastructure for it to be exercised. If people have a right to water, then the water needs to be conserved and so, for preservation of water, water bodies, glaciers, etc. nations require institutions such as laws governing its use, chemical exposures, treatment of water, waste disposal mechanisms as well as bodies set up to regulate such use. If there is a right to water, then who has this right, how is the right exercisable, what are the remedies if the right is violated and can this right be made available to everybody?
Jurisprudential Background
The corpus juris or the body of legal literature behind water law does not claim that the basis of assigning water rights is the basic need of water for everyone. It also does not claim that giving every person his due in common resources or equitably giving every person what nature has bestowed for the sake of the existence of life is the underlying reason for the existence of such rights. On the contrary, these principles of common law and Roman laws have been overruled by the concepts brought in by the judicial precedents of Indian and other courts.
The Discovery doctrine was given by Blackburn.J. in the Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 Case for analysing the nature of rights which can be claimed over water. It was discussed that the bases on ownership over water could be determined is by determining who discovered it. This is the derivative of the same principle that, whoever discovers a particular land first and is domiciled on it, has a right to it, and to any property (such as water) attached to it.
Further, the Riparian Water Rights doctrine states that those who are close to the water and have access to it, have a right to it. This is basically a way to express the idea of the first come first served principle and in the case of Coffin v. Left Hand Ditch Co., it was discussed that those who have appropriated water first, have a right to it.
It can be observed that water right has been traditionally perceived as a negative, natural claim right, in common law, and not as a positive, statutory entitlement right. The natural claim right has arisen out of recognition of customary laws. Even where the right has been granted through a statute, the courts have recognised the validity of the permits or licenses as basic property rights.
The above justifications for determining the Right to water were set aside when it was determined that any basic fundamental or natural right or duty cannot be based purely on a sociological or political fact and so it must have its basis in some notions of justice. And so, it was iterated that water rights need to be based on concepts of right to life, right to basic needs for survival, right to get an equitable share of what is due from the natural resources or right to development. With this idea, the rights laid out by the common law and Roman law notion were no longer put to use.
Such school of thought also studied the role of the state. The role assigned to the state regarding the acquisition and distribution of water depends a great deal on how the nature of the right is characterized. The complexities of water resource management also bring to light the question that who should be the bearer of these rights, the individuals, groups or the state. Regardless of the ownership of the rights, it is established that the state must necessarily play a role in the large scale management and distribution of water.
The next determinant of the nature of the rights was the Public Trust Doctrine which was established in Mono Lake case in USA as well as further broadened by the environment related public interest litigations in India. This led to the trend to move away from the Riparian and prior appropriation doctrines and abandoned the traditional Roman law beliefs about ‘dominium’ and private property.
This doctrine is, in some sense, a socialist attempt to distribute water equitably to all according to their need. Here, the ‘public’ is the whole nation, which is the owner of the resource that is, in this case, the water. The state holds no ownership over the water and the ownership essentially rests with every citizen of the country. The role of the State is to preserve and conserve this resource and act as a trustee and take due care on behalf of the public. An extension to this is the idea of distributive justice, which employs the trustee or the state with the power to judicially make available this resource to its true owners.
Right to water v. Right to clean water-A Fundamental Right
As seen above, ‘right to water’ falls as an inherent right vested in persons who either acquire that right by ownership of property or in the current scenario more appropriately are vested with an interest in it by means of the state being its trustee. The water that is widely available everywhere is owned by all persons and the public has a right over it, but the water that is clean or suitable to use for drinking and other domestic uses also has certain claims for rights. And though there is a collective right over all the water resource of the country, the availability of water is subject to the distribution of it by the government.
It must also be noted that water can also be private property. In cases when one digs a well on his property or purchases water or by any other means privatises water, it is no longer in the domain of public resources, but its trade as well as digging of wells and bore wells is regulated by the state.
Right to water being a right which requires infrastructure is difficult to provide to all citizens. So, if it is made a fundamental right, every person is entitled to it and can approach the court for remedy in case such right is not granted to him. Due to this, for a long time, the right to clean water was not included as a fundamental right, but recent judgements of the court have changed this discourse.
Right to life includes creating an environment for people which is safe and where people can grow and live a fulfilling life. This means that they should holistically develop and should be provided with nutrition, clean air, clean water, education, etc. for their survival as well as sustenance. Article 21 of the Constitution of India states that ‘no person shall be deprived of his life or personal liberty except according to the procedure established by law’. This was interpreted by the court to include the entitlement of citizens to receive safe drinking water (potable water) in Bandhua Mukti Morcha vs. Union of India Case where the Petitioner was an ‘an organisation dedicated to the cause of the release of bonded labourers’. By various surveys, it was found that several workmen in these mines were migrant workers from other States in India who were ‘bonded labourers.’ They were living in conditions of extreme poverty. The mine owners did not provide them with shelter, clean drinking water, latrines or medical facilities, etc. due to the same, the petitioner filed a PIL under Article 32 of the Constitution. The Supreme Court, by stating that there is no doubt that pure drinking water is absolutely essential to the health and welfare of the workmen and some authority has to be responsible for providing it, derived the concept of right to ‘healthy environment’ as part of the Right to life.
The Court recently reiterated again that ‘the right to access to clean drinking water is fundamental to life and there is a duty on the state under Article 21 to provide clean drinking water to its citizens’. The State is duty-bound not only to provide adequate drinking water but also to protect water sources from pollution and encroachment. It was held by the court that ‘Any act of the State that allows pollution of water body ‘must be treated as arbitrary and contrary to the public interest and in violation of the right to clean water under Article 21’.
Hohfeldian Analysis
According to Wesley Newcomb Hohfeld, there are eight basic denominations to analyse law which are right, duty, immunity, disability, privilege, no-right, power and liability. These denominations are governed by their interaction with each other, which can be correlatives, contradictions and opposites.
With a right, comes a corresponding duty. This means that if person A has a right, then person B must have a duty towards person A to ensure that he can exercise his right. In the case of Right to water, there needs to be a corresponding duty. As seen through the Public Trust Doctrine, the right resides with the public and so the duty lies with the state.
The state must, therefore, ensure that the public is able to exercise their right that means that the public has access to water and availability to water. In Subhash Kumar v State of Bihar (1991), the Supreme Court held that ‘the right to live includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life’. By this judgement and many others, the court placed a duty on the state to ensure the rights of the citizens were protected.
Further, in M.C. Mehta v Kamalnath (1997) the Supreme Court ruled that the State is not only bound to regulate water supply but should also help realize the right to healthy water and prevent health hazards. The court also discussed how the principle of Roman law ‘salus populi est suprema lex‘ (welfare of the people is paramount law) is the abiding faith in the Indian Constitution. Thereby, the court assigned the state with a positive role to help people realize their rights and needs.
Further, there are also certain statutes which lay down the regulation and rules for handling of the water resources in the country and thereby place a duty on the state to monitor the use of water and its availability in the country.
Enactments
On 28 July 2010, through Resolution 64/292, the United Nations General Assembly explicitly recognized the Human Right to Water and Sanitation and acknowledged that clean drinking water and sanitation are essential to the realisation of all human rights.
Enactments regarding water and resources have been passed in India as well, concerning water supply for drinking purposes, irrigation, and rehabilitation of evacuees affected by the operations of schemes for water resources management. However, none of these laws enumerates an explicit ‘Right to water’. Instead, some of the laws have expressly abolished structured (rights to use a resource) and customary rights. Some of these laws are; Water (Prevention and Control of Pollution) Act, 1974, Provisions of the Environment (Protection) Act, 1986 and the Indian Easements Act, 1882.
Conclusion
Recent developments in right to water include Public Interest Litigations being filed by concerned citizens of the country. PIL is normally resorted to where the rights of a larger public have been violated by state action or inaction. The intention of the judiciary to reinforce the right to pollution-free waters is implicit in the M.C. Mehta case (1988) where the tanning industries located on the banks of the river Ganga were alleged to be polluting the river. The Court issued directions to them to set up effluent plants within six months from the date of the order.
There was also the setting up of the Central Water Commission. The responsibilities of the commission are to initiate, coordinate and furthering in consultation of the State Government concerned, schemes for control, conservation and utilization of water throughout the country and to promote integrated and sustainable development and management of India’s water resources.
The inadequate (or denial of) access to water and sanitation to the poor in India has been going on for a long time even before the advent of economic reforms. This has been happening despite the Supreme Court’s rulings time and again that access to clean drinking water is a fundamental right as part of the right to life in Article 21 of the Indian Constitution.
Right to Water in India is not expressly guaranteed either through the Constitution or any legislation. It is an implied right, asserted through a set of laws which confer a duty upon the state through its various agencies to prevent and control water pollution. Hence, the Right to Clean water is guaranteed under Article 21 of the Constitution of India and no one can be deprived of it. The same has been upheld by the courts in the country who have widened the scope of Article 21 by including the right in it.
