How to Make Good on the Promise of Water as a Human Right
By Romit Sen and Kamal Vatta
Water, one of the most basic life-sustaining resources, is under stress. A rising population, growing pollution and climate change threaten the availability and quality of water across the world. India, with a population of 1.25 billion and growing, is at the heart of the storm; today the country is staring at a real water crisis.
In recent years, numerous policy discussions have reinforced the urgency of this crisis, as Indian government leaders, businesses, NGOs and citizens call for more efficient and sustainable management of water resources. In these debates, representatives of various groups have argued that the legal provisions on water need to be reformed and strengthened. Advocates of water reform at the country level have called for the creation of a National Water Framework Law that would unify national water policy. Chief ministers from a number of Indian states, however, have strongly opposed the idea of such a law, fearing further bureaucracy and centralization of policy.
The Right Approach to a Human Right
So is the creation of a National Water Framework Law or other stronger national legislation the right approach to creating a more sustainable water regime in India? To answer that question, one has to look at the current constitutional status of water rights in the country.
In 2002, the United Nations officially recognized access to clean, safe water as a human right under international law. While the Indian Constitution does not explicitly recognize such a right, the Supreme Court of India has argued that water should be implicitly included under Article 21, which secures the life and liberty of all persons.
In a landmark judgment in 1991, the Supreme Court stated that “right to life” is a fundamental right under this article, and as such it includes the right to enjoyment of pollution-free water and air.
Since then, even when the Supreme Court has been presented with cases in which environmental protection has appeared to conflict with economic development, the court has strongly affirmed the importance of environmental protection, stating that both environmental protection and development should be thought of as human rights: “Sustainable development is the sine qua non for the maintenance of the symbiotic [relationship] between the rights to environment and development … the concept of sustainable development is to be treated as an integral part of ‘life’ under Article 21.”
Therefore, there is no doubt that the right to water is firmly enshrined as part of India’s constitutional framework, and is thus enforceable through remedies provided under the Constitution.
Meanwhile, Article 246, which delineates which level of government has the power to make specific kinds of laws, delegates the legislating of most water issues to the states, except for shipping and navigation or on inter-state issues; the act provides for the establishment of tribunals to adjudicate water-related conflicts between two or more states. In this context, it’s important to note that in 1956 the Parliament passed the River Boards Act to provide a way for the central government to create boards to advise states on any matters concerning inter-state rivers and to develop ways to regulate these waterways. However, no river boards have ever been created or established, due to the reluctance of states to give control of water policy to the central government.
Need for Enforcement
At a more local level there are specific questions about the rights of individuals to access and use water. Originally, this right was addressed in common law through what was called “riparian rights,” which secured the right of an individual to use water flowing past one’s land and to access it as needed. This theory of law was eventually rejected and replaced with a legal principal based on “public trust doctrine” that recognizes water as a public resource, belonging to all people as a whole. However, public trust doctrine has so far only been applied to surface water and not groundwater, which, as the major source of water for all users—agricultural, industrial and domestic—is at the heart of India’s water crisis. Reforming groundwater law to make the states the custodians of groundwater—in line with the public trust doctrine—is thus crucial.
More broadly, however, we believe that there is little cause to enact new laws to regulate water use, given the implicit constitutional enshrinement of the right to water, and the existing mechanisms for adjudication of interstate disputes. Far more critical is the need to remove bottlenecks in implementation and overlaps across various departments, while improving the institutional capacity and increasing funding for some of the already-existing enforcement institutions (such as the pollution control boards).
As is often said, the problem with environmental legislation in India is enforcement. This problem will not be overcome by the enacting of new laws, but by changes in civil society and community—changes in which every user of water has a role to play.
Romit Sen and Kamal Vatta work as deputy director and director respectively at Centers for International Projects Trust (CIPT), a non-profit trust that was formed to address water- and climate-related challenges in India through research, education, and related activities. The trust works in close alignment with, and with the support of, Columbia University, through the Columbia Water Center of the Earth Institute. To contact the authors: Romit Sen, Deputy Director, Centers for International Projects Trust, K-37, Green Park Main, New Delhi – 110016; email – firstname.lastname@example.org