Why has water not become a fundamental right in India?
By Basit Farooq and Muzaffar Razak Magray
“Water is basic need for the survival of human beings and is part of right to life and human rights as enshrined in Article 21 of the Constitution of India.” – Narmada Bachao Andolan v/s Union of India (2000)
Water is an important resource and forms an crucial pillar of any existing society and its economy. The entire flora and fauna depend on water for their survival. The progress of human civilization hence has an indispensable co-relation with the availability, utility and management of the water resources. Apart from existence of life and maintaining the equilibrium of eco-system, water resource management is essential in agricultural production for its indispensability in irrigation, power generation, fisheries and other livelihood activities. Many of us or generally all of us do not realize the importance of protecting this important resource on land, the absence of which would leave everyone destroyed. Every citizen has a responsibility to ensure protection of water: to conserve water and to protect water from getting polluted.
The quantity of fresh water is continuously declining and since the green revolution of the 1960s, we have become more dependent on groundwater instead of surface water. It is therefore important to mention here that more than 1,000 Blocks in India have become water stressed, as identified by the Central Ground Water Board (CGWB) in the the fifth Minor Irrigation Census. The focus is therefore to be kept on ground water than the available surface water. India is the biggest user of ground water. It extracts more ground water than china and the USA, the next two biggest pullers of ground water. The ground water in the country meets more than half the requirement of clean water in the country. The Standing Committee on Water Resources in 2015 found that ground water forms the largest share of India’s agriculture and drinking water supply. About 89 percent of ground water extracted in India is used for irrigation making it the highest category user in the country. Household use comes second with 9 percent share of the extracted ground water, followed by the industry that uses 2 percent of it. The importance of the ground water in India can be cited from the fact that overall 50 percent of urban water requirement and 85 percent of rural domestic need are fulfilled by the ground water. However, this kind of use has caused a reduction in ground water levels in India by 61 percent between 2007 and 2017, according to the report by Central Ground Water Board (CGWB), presented in the Lok Sabha in 2018.
The population of India has equal rights to water and should be provided access to water equally, as is provided in the principle of Public Trust Doctrine. The same principle was recognized by the Supreme Court in the case of M C Mehta v/s Kamal Nath (1997) wherein the Apex Court held that our legal system based on common law includes Public Trust Doctrine as part of jurisprudence. The state is the trustee of all natural resources whereby nature denotes public use and enjoyment. The state as a trustee is under the legal duty to protect all the resources. The doctrine says that resources like air, water, and forests have a great importance to the people as a whole and that it would be unjustified to make unequal distribution of the same. Being the gift of the nature, the resources should be made freely available to everyone irrespective of their status. However, it is estimated that while 80 percent of all households have access to 40 liters of water per day through some source, about only 18 to 20 percent of rural households in India have connections for piped water supply. This adds more to the miseries of people living in abject poverty in rural areas, adding to the mortality rate in rural India. The World Health Organization prescribes 25 liters of water for one person a day to meet all basic hygiene and food needs. It constitutes an important element in the Right to Health as recognized under Article 21 of the Constitution. This also explains the misery of people when they have no water connection in India and to what an extent it poses a threat to the health of people particularly those living in rural areas in the country.
When looked upon from a different perspective, India is still water surplus and receives enough annual rainfall to meet almost all needs. According to the Central Water Commission, India needs a maximum of 3,000 billion cubic metres of water a year, while it receives 4,000 billion cubic metres of rain. But the state must come up with strict measures to ensure that water is distributed equally and that there is fair availability of water to every single individual in the country or at least proper water connection is available in every household. The statistical data with respect to the availability of the ground water shows sharp decline in groundwater volume in the country as indicated by the Central Ground water Board (CGWB). The report suggests the following reasons for the decline: rising population, rapid urbanization, industrialization and inadequate rainfall. But the real problem is that India captures only eight per cent of its annual rainfall, among the lowest in the world. The traditional modes of water capturing in ponds have been lost to the demands of rising population and liberal implementation of town planning rules. India has been also poor in treatment and re-use of household wastewater. About 80 per cent of the water reaching households in India is drained out as waste flow through sewage, which pollutes other water bodies including rivers and land.
Much however depends upon the individual citizens of the country to protect these natural resources. The constitution of India enshrines Fundamental Duties in part IV A under Article 51A, whereas Article 51A (g) imposes duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. The protection of environment including water is a constitutional duty and also a moral and social duty. The duty to protect environment has more to do with the state for the protection of water as an important constituent of environment requires financial investment and more importantly supervision over the natural resources present in the country. The Directive Principles of State Policy as enshrined in part IV of the Constitution from Articles 36 to 51 impose positive obligations upon the state. Under Article 48A, the state is obliged to protect environment and take necessary measure for the protection of the same. The state has to come up with legislations for the protection of environment including the Water Act of 1974 and the Environment Protection Act of 1986 to ensure protection of water in particular and environment in general. The same legislations however deal with protection of water from pollution as is set out in their object but the Acts nowhere mention provision with respect to conservation of water. The Water Act confers powers upon the central government to constitute a board as mentioned in section 3 of the Act to be called the Central Pollution Control Board (CPCB). The functions of CPCB are conferred under section 16 of the same Act which among other things includes the promotion of cleanliness of streams and wells in different areas of the states. It also enjoins upon the board to collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control, in addition to preparing manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminating information connected therewith. However, one of the important functions of the board is to establish or recognize a laboratory or laboratories to enable the board to perform its functions under this section efficiently, including the analysis of the samples of water from any stream or well or of samples of any sewage or trade effluents.
However, there is a problem with these legislations as these do not mention any provision with respect to conservation of water. Nor is there any provision in it with regard to fair use of ground water. True, that pollution to a larger extent may be reduced due to strict application and adherence of these provisions but the question remains: Does the practical reality reflect the positive outcome of the Act? No. This is because the authorities so specified under the Act do not perform the assigned functions. The condition of the streams, wells and all other water bodies is very ugly and shall continue to be so if not given a serious preference. The authorities hardly do routine tests of quality of water and it is visible from the ground level everywhere. Since these legislations are five decades old, there has to be a new legislation to give effective provisions with regard to the protection and conservation of this important resource. The state as such has failed and is failing continuously to ensure protection to give effect to Directive Principle as specified in Article 48A. While these guidelines are not enforceable in the court of law, the Supreme Court in Minerva Mills v/s Union Of India AIR 1980 SC 1789 held that the Constitution exists on the balance of part III and Part IV. Giving absolute primacy to one over the other will disturb the harmony of the Constitution. It therefore means that the guidelines to the state are to be followed so as to give respect to fundamental rights in letter and spirit. The state by not following the direction as set out in the Directive Principles of State Policy to ensure protection of environment including water is indirectly violating the fundamental right of citizens that is the right to health as recognized under Article 21 of the Constitution. In Bandhua Mukti Morcha v/s Union of India AIR 1984 SC 802 case, it was held “that although the Directive Principle of state policy hold persuasive value, yet they should be duly implemented by the state and it was in this case also that the court had interpreted the dignity and health within the ambit of life and Liberty under Article 21 of the constitution of India.” Therefore, if the state is failing to give effect to the Directive Principles of State Policy, it clearly is violating the fundamental rights of its citizens and is in violation of important provisions of the Constitution of India.
The state must fulfill its duty that availability of proper and safe drinking water to everyone is an obligation imposed upon it by virtue of Article 21 of the Indian constitution. It was held in the case of Narmada Bachao Andolan v/s Union of India (2000) that water is a basic need for the survival of human beings and is part of right to life and human rights as enshrined in Article 21 of the Constitution of India. Again in Vellore Citizen Welfare Forum v/s Union of India case (1997), the Supreme Court held that the constitutional and statutory provisions protect a person’s right to fresh air, clean water and pollution-free environment. The judicial response with respect to protection of water has been vibrant but the state as such has failed in realizing the duties cast upon it. There is scarcity of proper and safe drinking water as 200,000 die each year in India due to inadequate or unsafe water supplies as mentioned in a report of NITI Aayog published in 2018. The question as to who is responsible for these deaths remains to be answered. When seen from a larger perspective, it can be inferred that the State is failing in meeting the requirements. The violation of basic fundamental and human rights can never be justified by any state. Since the issue of water is not a political one, it has never been given primacy by the state.
Basit Farooq and Muzaffar Razak Magray are 5th year students of law at the School of Law, University of Kashmir. They can be mailed at firstname.lastname@example.org or Muzaffarrazak996@gmail.com
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One Response to “Why has water not become a fundamental right in India?”
I hope we humans leave some water for other living things of Earth as Earth is home of millions of living things