human rights law in india

8/12/2019 Human Rights Law in India

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Human Rights Law In India: Right To Water & Social Justice

The question of a human right is often a chicken and the egg situation. What comes first- the

chicken or the egg? may be analogous to what comes first- the law or the right. The right to water

is one such area where there is no clear answer and there is a need to recognize the right to water

without having to rely on rovisions of black letter law. While the human right to water is being

increasingly recognized in international human rights law! it also needs recognition at the domestic

level.

The States Commitment to Access to Water

There are a number of schemes and imlementing machinery to rovide for safe and accessible

drinking water in "ndia. The #a$iv %andhi &ational 'rinking Water (ission at the institutional level

and the )ccelerated #ural Water *uly +rogramme %uidelines at the olicy level have greatly

contributed to the attention received to access to water issues. The %uidelines secify , litres er

caita er day as a minimum requirement only for the urose of drinking and household needs.

This is divided into the following categories and the amount may increase in cases of cattle in dry

areas. The water must be of adequate quality as well as quantity.

Purpose Quantit

y

Drinking 3

Cooking 5

Bathing 15

Washing utensils &house

7

Ablution 10

The state are not enough. There must be a clear statement of a human right to water so that it

can be claimed as a right rather than a rivilege which the state grants. The question which net

arises is whether there is such a right in "ndia.

The Right to Water in the Constitution of India

(ost claims to human rights are founded on the basis of the fundamental rights chater in the

/onstitution of "ndia as fundamental rights are $usticiable and can be enforced. The +reamble of

the /onstitution is often described as setting u a welfare *tate. While roviding basic needs such

as water would be within the necessary functions of such a state! the 0undamental #ights /hater

is silent about a right to food or water. While the right to life is mentioned 1)rticle 234! the

dimensions of this right are not laid down in detail and water is not mentioned. The only direct

reference made is in the rohibition of discrimination 1)rticle 354 in accessing laces and facilities

for the use of the general ublic including wells.

"n the 'irective +rinciles of *tate +olicy too! there are no direct references to a right to water

although the state is required to work towards raising the standard of living of eole and

imroving ublic health 1)rticle ,64. )lso! since 'irective +rinciles of *tate +olicy are not


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$usticiable! they become difficult to imlement as a matter of right.

The angle from which the /onstitution deals with water is from the angle of division of owers

between the /entre7 8nion! the *tate and after 3992! the :ocal %overnment. Thus while standard

setting on water ollution! insecticides and esticides is with the /entre! interstate water disutes!

irrigation is a *tate sub$ect and so are imortant areas including sources of water such as

groundwater. The :ocal %overnment has the ower to make rovision for water and to make rules

at the local level on use of water. "n this scheme of distribution of owers! there is no mention

made of a right to water.

Deelo!ment of Human Rights Law on Right to Water "# the Judiciar#

The architect of the right to water in "ndia is the $udiciary. (any rights have been brought within

the ambit of the right to life 1)rticle 234 by reading them into the scoe of life . The first landmark

decision was in 0rancis /oralie (ullin v the )dministrator! 8nion Territory of 'elhi139;3124 */#

53igh /ourt stated in )ttakoya Thangal v 8nion of "ndia that the right to sweet

water was art of the right to life as water is necessary for life. This has been reiterated by >igh

/ourts and in many cases the *ureme /ourt as well! in a number of cases dealing with situations

which adversely imacted the quality of drinking water. "n the &armada achao )ndolan case

1124 3 *//


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access to water for domestic use. This was imortant as in many of these households! there was

no adequate source of water. >owever! the location of this handum was a ublic one! ossibly

for ease of access and it was located along the main village road and began to be used by rahmin

households which already had access to rivate water sources. The handum meant to be the

main source of water for the */ community became an additional source for another community.

The roblem of access to water for */ women was left unsolved in ractice! though in theory

action had been taken to rotect their right to water. The adequacy of water quantity was not

addressed for the intended beneficiaries.

The second case deals with a village in West engal where all the ublic handums were found to

contain unsafe and imermissible levels of arsenic. While quantity of water was not an issue!

quality of water used esecially for cooking and drinking needed to be resolved. )ccordingly an

arsenic removal lant was installed. The installation however was close to a >indu temle. The

village had a (uslim minority oulation. (uslim women who tried to access the installation were

denied by >indu women. The roblem was later resolved through alternate disute resolution by

working out a schedule for water use between the two grous of women.

) law on aer therefore is not adequate! though it is a beginning. The imlementation of any law

must also take into account ground level realities with strategies to deal with them.

Challenges to the Human Right to Water

"n addition to ground level social realities! there are a number of develoments esecially

occasioned by liberalization! rivatization! globalization which need to be taken into account and

dealt with. "ncreasingly! access to water is seen as the right of those who can afford it. "t has

become an economic good rather than a social necessity. Water thus belongs to the highest bidder

or who can dig the deeest borewell or urchase the land beneath which the aquifer lies. Water

resources which are not attached to rivate roerty are resumed to belong to the state even if

there are rivate users or communities deendent on the water. The +lachimada case 1+erumatty

%ram +anchayat v *tate of =erala 2,134 =:T B34 challenged this and the aeal is now ending

in the *ureme /ourt. There is a strong move in civil society against the rivatization of the suly

of drinking water esecially in urban areas. +rivatization treats water as a rofit making venture

for a rivate comany as against a duty to be comlied with by the *tate. "t must be rovided by

the *tate! not sold by a comany. (odern water olicy which leans towards contribution by

communities would leave out the oorest who are the most vulnerable and whose human right to

water would be further violated. &ot only would they not be able to access new schemes! eisting

rights they had been eercising to water which was not owned by them may also be at risk.

To conclude! water as a human right must be recognized at all levels beginning with its recognition

in clear terms as a fundamental right under the /onstitution. "f a citizen has a fundamental right

to water! the *tate should have a duty to rovide that water. :aw and olicy must take into

account social realities and community dynamics in the course of their drafting. 0inally! water!


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esecially water for drinking and household needs must be made available freely as a common

good and not as a commodity.

human rights law in india

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