By Anu Mittal, Symbiosis Law School, Noida
Editor’s note: In recent jurisprudence, denial of water has been deemed to imply a denial of right to life. Though not explicitly stated in the Indian Constitution as a Fundamental Right, it has been read into the interpretation to Article 21. The State is duty bound not only to provide adequate drinking water but also to protect water sources from pollution and encroachment. 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. This paper analyses the evolution of jurisprudence regarding the same, and how water has been defined as a ‘social asset’.
The language of ‘rights’ has acquired a centrality in modern thinking that cannot be ignored. In the traditional societies, people might not have needed the language of rights; customs and conventions had the force of law. However, in the legalistic societies of today ‘formal law’ has become more important, and that is why it is important to talk about the ‘right to water’.
Water is the essence of life. Hence, any denial of water would imply a denial of right to life. The right to water it is not enshrined in the Indian Constitution as an explicit Fundamental Right but the Indian Judiciary, both at the state as well as at the centre, has in several judgments interpreted Article 21 of the Constitution to include a right to clean and sufficient water, a right to a decent and well life, a right to live with dignity and with peace, and a right to a humane and healthy environment which would certainly imply a right to water to all the members of the society be it is a human or animal.
Right to water in India
Under fundamental rights in the Constitution of India, Article 21 entitled ‘protection of life and personal liberty’ states that 2 ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’. This has popularly come to be known as Article on ‘right to life’. In view of the scope of this right, environmental, ecological, air and water pollution gets violated in Article 21 of the constitution of India. Further, ‘the entitlement of citizens to receive safe drinking water (potable water) is part of the right to life under Article 21. As early as in 1984 (in Bandhua Mukti Morcha vs. Union of India case), the Supreme Court derived the concept of right to ‘healthy environment’ as part of the ‘right to life’ under Article 21. The Court, in a recent judgment (1 December 2000), had observed that ‘in today’s emerging jurisprudence, environmental rights which encompass a group of collective rights are described as “third generation” rights’. An important ruling of the Indian Supreme Court was the case of A.P. Pollution Control Board II v. Prof. M.V. Nayudu. In this case, the AP government had granted an exemption to a polluting industry and allowed it to be set up near two main reservoirs in Andhra Pradesh – the Himayat Sagar Lake and the Osman Sagar lake, in violation of the Environment Protection Act 1986. The Supreme Court struck down such exemption and held that the “Environment Protection Act and The Water (Prevention and Control of Pollution) Act 1974 did not enable to the State to grant exemption to a particular industry within the area prohibited for location of polluting industries.”
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. Any act of the State that allows pollution of water body ‘must be treated as arbitrary and contrary to public interest and in violation of the right to clean water under Article 21’.
The earlier scenario
Prior to this judgment, the Supreme Court as well as several High Courts in States in India upheld the citizens’ right to have access to clean drinking water as a fundamental right as per Article 21. In Subhash Kumar v State of Bihar (1991), the Supreme Court of 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.
In M.C. Mehta v Kamalnath (1997) the Supreme Court categorically 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 principle of Roman Law ‘salus populi est suprema lex‘ (welfare of the people is paramount law) is the abiding faith in Indian Constitution and the ‘State is assigned a positive role to help people realize their rights and needs’. In State of Karnataka v State of Andhra Pradesh (2000) the Court held that the right to water is a right to life, and thus a fundamental right. In Narmada Bachao Andolan v Union of India (2000) it was held that ‘water is the basic need for the survival of human beings and is part of the right to life and human rights’. The A.P. High Court, while citing several of the abovementioned rulings of the Court, reiterated the responsibility of the State in providing clean drinking water to the citizens in P. R. Subhash Chandran v Government of Andhra Pradesh & Others (2001). Thus, in the Indian Constitution, providing every citizen with adequate clean drinking water and protecting water from getting polluted is a fundamental Directive Principle in the governance of the State as well as a penumbral right under Article 21.
Water as a social asset
The key judicial pronouncements that the right to life in the Constitution means rights to clean water and sanitation as well. Courts have not only termed right to water as a fundamental right but also have defined water as a ‘social asset’.
The following are the key pronouncement made by the Indian courts –
In 2002, the apex court validated the Sardar Sarovar dam project on Narmada in 2000 Interpreting the right to life article as right to water. “Water is the basic need for the survival of human beings and is part of the right to life and human right as enshrined in Article 21 of the Constitution of India and can be served only by providing source of water where there is none.”
In 1990, the Kerala High Court ruling on a groundwater extraction case involving water supply plan for the island of Lakshadweep ruled that government should not extract groundwater impacting the sources in future that in turn violated the Article 21. It ruled: “… the administrative agency cannot be permitted to function in such a manner as to make inroads into the fundamental right under Article 21. The right to life is much more than a right to animal existence and its attributes are manifold, as life itself. A prioritizing of human needs and a new value system has been recognized in these areas. The right to sweet water and the right to free air are attributes of the right to life, for these are the basic elements which sustain life itself.
Apart from expanding the content of the right to life as including the right to water, the court has, in the context of water pollution, mandated the cleaning up of water sources including rivers (M.C. Mehta v. Union of India), and even tanks and wells (Hinch Lal Tiwari v. Kamala Devi).
The court has also applied the ‘precautionary principle’ to prevent the potential pollution of drinking water sources consequent upon the setting up industries in their vicinity. Various judicial pronouncements have recognized that water is a community source which is to be held by the state in public trust in recognition of its duty to respect the principle of inter-generational equity.
A large number of enactments regarding water and water based resources have been passed 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 enumerate an explicit ‘right to water’. Instead, some of the laws have expressly abolished structured (rights to use a resource) and customary rights. It is largely clear from the case law that people and communities have had to claim these rights back from the authorities. In addition, the Indian Legal System provides four further legal routes to address water pollution and water quality problems, thus helping to reinstate the rights of people and other living beings to clean and unpolluted waters.
There are basically two main enactments passed by the legislation. They are being listed as follows:
- Prevention and Control of Pollution Act, 1974;
- Provisions of the Environment (Protection) Act, 1986; and
- Indian Easements Act, 1882
Water (Prevention and Control of Pollution) Act, 1974
This is one of the most important of the central laws4 concerning water resources. The idea behind the Water Act is to restore wholesomeness of water, and to ensure that domestic and industrial effluents are not is charged into watercourses without adequate treatment.
This Water Act provides for the constitution of the central and state pollution control boards empowered to carry out a variety of functions which include establishing quality standards, research, planning and investigations to promote cleanliness of streams and wells and to prevent and control pollution of water. No person without obtaining the consent of the state board can establish any industry, etc. which is likely to discharge sewage or trade effluents.
This act empowers state boards to issue directions to any person, officer or authority, including orders to close, prohibit or regulate any industry, operation or process and to stop or regulate the supply of water, electricity or any other service. Parliament initiated a positive economic incentive for controlling water pollution and levy tax on water consumed by certain industries and local authorities.
The Environment (Protection) Act, 1986
The Environment (Protection) Act extends to water quality and the control of water pollution. Section 2(a) of the Act defines the environment to include water and the interrelationship which exists among and between water and human beings, other living creatures, plants, micro-organisms and property. The Act authorizes the Central Government to establish standards for the quality of the environment and for emissions of discharge of environmental pollutants from any source.
This act made industry self-regulatory. Greater industry compliance with environmental laws, disclosure of data on waste generation, adoption of clean technology for pollution prevention, waste minimisation, recycling and utilisation, arrangement for off-site disposal and revealing of data on consumption of water and raw materials are some of the remarkable improvements resulting from this audit regime.
Indian Easements Act, 1882
This Act recognises the right of a riparian owner (someone who owns the land adjoining a river or water stream) to unpolluted waters. A riparian owner has a right to use the water of the stream which flows past his land equally with other riparian owners, and to have the water come to him undiminished in flow, quantity and quality and to go beyond his land without obstruction. Section 7 of the Easement Act provides that every riparian owner has the right to the continued flow of the waters of a natural stream in its natural condition without destruction or unreasonable pollution. The Court in the MC Mehta v Union of India, recognized and revived the doctrine of riparian rights. The court in this case maintained that ‘the petitioner is a riparian owner and is a person interested in protecting the lives of the people who make use of the water flowing in the river Ganga and his right to maintain the petition cannot be disputed. The nuisance caused by the pollution of the river Ganga is a public nuisance, which is wide spread in range and indiscriminate in its effect and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large.’ The case was admitted as a PIL and was filed against the Municipal Corporation.
Public Interest Litigation (PIL)
Most of the cases related to enforcement of peoples’ and communities’ rights to water have been filed in the form of Public Interest Litigations. This form of litigation is different from the conventional form of litigation where normally the conflict is between two private parties. PIL is normally resorted to where the rights of a larger public have been violated by a state action or inaction. In a PIL, any public spirited individual or organisation championing the cause of public can approach the court for the benefit of society and especially for those underprivileged and poor.
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. It was specified that failure to do so would entail closure of business. The Court also issued directions to the Central Government, UP State Pollution Control Board and the District Magistrate. Although this judgment has made no reference to the right to life, the supporting judgment has noted that the pollution of river Ganga is affecting the life, health and ecology of the Indo-Gangetic Plain.
The Central Water Commission
It is a technical organization in the field of water resources in India. It is now being working as a part of Water Resources, Government of India. The responsibilities are to initiate, coordinate and furthering in consultation of the State Government concerned, schemes for control, conservation and utilization of water throughout the country for the purpose of flood control, irrigation, navigation, drinking water supply and water power development. The main aim is 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 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 Constitution of India and no one can be deprived of it. The same has been upheld by the courts around the country.
Edited by Neerja Gurnani
 Ramaswamy R. Iyer, Former Secretary, Ministry of Water Resources, India.
 A.P. Pollution Control Board II v Prof. M.V. Naidu and Others (Civil Appeal Nos. 368-373 of 1999). Cited from John Lee ‘Right to Healthy Environment’, Columbia Journal of Environmental Law, Vol. 25, 2000.
 (2001) 2 SCC 62.
 The Court was dealing with, and prohibited, the setting up of a water polluting industry within 10 km radius of Osmansagar and Himayatsagar, the two water bodies that supply drinking water to Hyderabad city. The Court applied the ‘precautionary principle’ to protect these two water bodies.
 1991 AIR 420, 1991 SCR (1)5.
 (1997)1 SCC 388.
 Narmada Bachao Andolan v. Union of India and Others, Writ Petition (C) No. 319 of 1994.
 2001 (5) ALD 771, 2001 (6) ALT 133
 ILR, 2001: 85-104.
 Narmada Bachao Andolan v. Union of India and Others, Writ Petition (C) No. 319 of 1994.
 A. P. Pollution Control Board v. Prof. M. V. Nayudu, JT2000(Suppl3)SC322.
 A comprehensive scheme of administrative regulation through the permit system of the Water
 Relating to water quality and access to water through its notifications on permissible quality standards, environmental impact assessments, public hearings, etc.;
 MC Mehta v Union of India (Ganga Pollution – Municipality case), AIR 1988 SC 1115.
 MC Mehta v Union of India, AIR 1988 SC 1037.