Right to Water as a Constitutional Right in India: A Panacea to the Existing Woes through Regulating MNC’s Usage of Water By : Kavya H

Right to Water as a Constitutional Right in India: A Panacea to the Existing Woes through Regulating MNC’s Usage of Water

Authored By : Kavya H

Designation: Law Graduate from SDM Law College, Mangalore

Citation method used: Standard Indian Legal Citation (SILC)

Email Id: kavya.haridas17@gmail.com

Phone No.: 9072128781

Postal Address: Vaishakham, Palat Road, Ottapalam, Palakkad, Kerala-679101

RIGHT TO WATER AS A CONSTITUTIONAL RIGHT IN INDIA: A PANACEA TO THE EXISTING WOES THROUGH REGULATING MNCs USAGE OF WATER

-Kavya H

INTRODUCTION

The concept of ‘Right to Water’ has been considered as a basic and human right from time immemorial. However, with the emergence of globalization all over the world, the privatization of water in India became a serious thought of action among the public and has always been in the limelight. It is axiomatic that due to the excessive use of water by the multinational companies, the general public is often being exploited and undermined their right to fair access to water.

We have witnessed various instances wherein the scarcity of water has led to a huge demand for water.[1] The extreme difficulties faced by the public due to the plundering of groundwater by the MNCs with an objective to avail maximum profit[2] can be clearly seen from the Coca-Cola-Pepsi groundwater pollution case.[3] However, this is just one case out of the hundreds of cases occurring in India. Therefore, the need for regulating these multinational companies becomes highly essential in India.

Since this deplorable condition raises specific issues, the two essential questions for consideration for effectively analysing the problem at hand are first, whether recognizing ‘right to water’ as a fundamental right prevents multinational companies from exploiting the public; second,  whether the existing laws in India are effective in regulating the MNCs usage of water.

In this regard, this research paper focuses on the need to regulate the multinational companies’ usage of water in India, thereby indicating the possible solutions to curb this problem. In order to achieve this purpose, the research paper has been divided into three parts. The first part focuses on the importance of granting constitutional status to the right to water for ensuring fair access to water to the public. It concludes by providing the reader with the benefits and importance of considering the right to water as a fundamental right.  The second part analyses the existing water laws in India for regulating MNCs’ usage of water and thereafter aims to bridge the lacuna in the existing provisions. The third part discusses the privatization of water. Here, I emphasize on two important aspects, first, the consequences of the privatization of water; second, the possible suggestions and recommendations for ensuring fair access to water to the public by regulating the MNCs. The paper concludes by providing a brief outlook on all the fundamental elements discussed in all the parts of the paper, thereby emphasizing the need for granting constitutional status to the right to water in order to regulate the MNCs’.

CONSTITUTIONAL STATUS TO RIGHT TO WATER: A KEY TO FAIR ACCESS TO WATER

As the primary objective of this research paper is to emphasize the need for constitutional status to right to water, it is quintessential to examine briefly the reports and analyze the data which indicates the future of groundwater due to the exploitation done by the MNCs. This section of the paper therefore lays down the advantages of implementing the right to water as a fundamental right in the Constitution of India by relating it with the opinion of other scholars.[4]

The data analysis of the NITI Ayog and the Government of India, 2018 depicts that more than twenty cities will face groundwater shortage by 2020.[5] Further, the UN report shows that the demand for water will reach twice by the end of 2030.[6] A comparison between both these reports shows that the demand for water resources would axiomatically outsource the population in the near future.

Various instances in the past, such as the Pepsi-Coca Cola case[7] depict the alarming situation of water scarcity and the extent to which the public is being exploited. The ambiguity is not only in getting fair access to water but is also in getting access to ‘safe water’. It is pertinent to note that various international organizations have declared the right to water as a basic human right.[8] This implies that there has always been a concern about the availability of water to the public. However, two important things that need to be considered in this regard are: Firstly, to what extent can this be enforced, and secondly, does granting a mere human right status to right to water paves way for being equipped with fair access to water for the public.

In India, the three aspects to which the right to water can be associated implicitly are the right to a clean environment[9], the right to food[10], and the right to health[11]. The Supreme Court of India in various instances has declared the right to water as an implicit right under the facet of right to life.[12] Further, the obligation of the State to adhere to certain policies to secure the ownership and control of the material resources and to distribute it for the common good has been mentioned under Article 39(b) of the Constitution of India.[13] However, still, a lot of people pay the maximum for getting adequate water resources.

In this regard, granting constitutional status to ‘right to water’ ensures protection to individual rights. It further limits the multinational companies’ exploitation of the public. Mere granting of human rights makes the extent of enforcing the rights cumbersome and this can be solved by considering the right to water as a fundamental right.

On the other hand, various research scholars consider granting human rights status to water as adequate and restricts their study from a constitutional perspective.[14] Such objections are raised considering the obligation on part of the state to ensure accessibility of water to each and every citizen of India. 

However, it is pertinent to note that the multinational companies often exploit the public’s right to fair access to water by abundantly using it and extensively polluting it. Further, considering it from a constitutional perspective, this problem can be addressed effectively by considering the right to water as a fundamental right. It thereby puts a constant check on the MNCs’ usage of water and makes it free from the clusters of injustice. Further, it is worth mentioning that the companies have a social responsibility and accountability towards society for ensuring fair access to water. Granting constitutional status thereby reiterates the principle that every organ of the society has the obligation to avail the right to life and health.[15]

By providing the constitutional status to the right to water, it controls the privatization of water by the MNC’s and thereby provides transparency in the operation and usage of water resources. Further, since the people residing near these MNCs face greater difficulties, regulating these MNCs is the need of the hour. 

REGULATING THE MULTINATIONAL COMPANIES THROUGH THE WATER LAWS IN INDIA: BRIDGING THE LACUNA

In India, the management of water resources is divided between the Union and the States.[16] Since most of the powers are exercised by the State, the laws differ from one state to another. Further, upon analyzing various scholarly opinions[17], the four relevant existing legal frameworks which aims to address the problems related to the accessibility of water are, first, The Water (Prevention and Control of Pollution) Act, 1974[18]; second, the Environment (Protection) Act, 1986[19]; third, the actions undertaken by municipalities[20]; fourth, riparian owners common law right for unpolluted water[21]. However, it is pertinent to note that these laws are archaic and have been in existence from the colonial period. Further, the National Water Policy, 2002 does not adequately deal with problems and solutions related to fair access to water to the public. Instead, priority is provided towards the privatization of water.

A thorough analysis of these laws, reveals that the existing water laws in India do not address the issue regarding the MNCs’ water usage. Even the model Bill proposed in 2017[22] for sustainable management of groundwater does not comprehensively deal with the issue of MNCs’ exploitation of water resources and the possible solutions for curbing this exploitation.

Therefore, it could be analyzed that the existing laws in India for regulating the multinational companies’ usage of water are a big question. It is pertinent to note that there are over 1,034 over-exploited units[23] in India and still there is a wide legal lacuna in the existing laws and this primarily affects the rights of the citizens. The reason for this lacuna is that the existing laws are mainly enacted in the colonial period and have lost their substantive existence in the country. As the needs of the people are changing from time to time, implementing a proper regulatory framework through adequate measures is highly essential. Further, it is pertinent to note that the state laws are prevalent in the country and uniform central legislation for regulating the usage of water is still lacking. Further, a thorough analysis makes it clear that the existing laws governing water usage in India do not make mention of the adequate regulation of the multinational companies’ usage of water. This paves way for future exploitation of the public and infringes their access to safe water.

END TO PRIVATIZATION OF WATER: THE WAY FORWARD

It is often unanimously argued that water scarcity which jeopardizes the productivity of society can be put to an end with the privatization of water. Even the government authorities[24], as a possible alternative, transfer the control and management of water resources to the private companies with a view to ensure accessibility of water to the society.[25]  However, it is pertinent to note that the end result of privatization is that water will be treated as a commodity.[26]

The need for bringing an end to water privatization is because the MNCs charge the public at a higher rate for the water collection, purification and distribution systems. This will further lead to increased water tariffs. Irrespective of the economic conditions, the people are often exploited as the MNCs are not accountable to the consumers.[27]

However, on the other hand, it is argued that privatization of water aims to ensure accessibility in water quickly and easily. Further, it has been pointed out by various scholars that the privatization of waters helps in acquiring clean water.[28] However, it is pertinent to note that the end result of privatization of water is the illegal and unregulated extraction of water by the MNCs. This in turn leads to the destruction of water bodies and resources. Further, often the quality of water is compromised by the MNCs under the pretext of profit-making. The ecological balance and the environmental impacts of transferring the control of water towards the MNCs will be disastrous. This is clearly evident from the incidents that we have witnessed in the past such as the cases in Andhra Pradesh, Tamil Nadu, and Kerala.[29]

Further, certain scholars opine that people usually prefer to opt for bottled drinking water rather than municipal water.[30] This opinion can be addressed in a two-fold manner. Firstly, the reason for the people to opt for bottled drinking water from MNCs is due to the lack of water resources. Secondly, such a situation is created by the MNCs itself due to over-exploitation of the water resources.

Further, it is pertinent to note that the privatization of water clearly violates the right to life guaranteed under Article 21 of the Constitution of India.[31] It is clearly evident that the privatization of water to a greater extent deprives the public’s access to the right to water and thereby undermines human dignity. Moreover, the honourable Supreme Court of India in various instances has reiterated that the right to access water is a facet under the right to life.[32]

Therefore, it could be inferred that the privatization of water paves the way to the denial of access to water to the people. Collecting money from the public in order to avail water services restricts people’s access to water and the vulnerable section of the society is often affected. Hence, wrapping up the concept of privatization of water by the multinational companies in the absence of a proper regulatory framework is a way forward towards achieving the real aim of acquiring the ‘right to safe water’.

SUGGESTIONS AND RECOMMENDATIONS

The above-mentioned analysis depicts the importance of granting constitutional status to the right to water. However, a challenge associated in this regard is that granting constitutional status to the right to water is clustered with ambiguities in a country like India wherein there is a certain degree of scarcity to water. However, considering the more serious aspect of this is the need for a proper regulatory framework and legislation for regulating the multi-national companies' usage of water. A possible solution to the scarcity of water and providing fair access to water can be achieved by formulating adequate legislation itself. Apart from imposing a corporate social responsibility on the companies, it is high time that a legislative framework is implemented in order to effectively regulate multinational companies. Creating an authority to check the multi-national companies that aim to work for the public and thereby ensuring fair access to water to all the deprived class of people could be an effective step towards achieving the real objective. Further, adopting water management practices such as rainwater harvesting, integrated river basin management, and irrigation are the other possible measures that can be adopted in India.

CONCLUSION

This research paper has attempted to show that first, there is a dire need for regulating the multinational companies’ usage of water; second, along with adopting regulatory frameworks, granting constitutional status to ‘right to water’ proves to be efficient in providing ‘fair access to water’. Given the grave problems faced by the public due to the over-extraction of water resources, it is highly essential to undertake effective measures at the earliest in order to achieve sustainable development and prevent the future fallacious problems that are yet to happen. Further, the privatization of water adopted by the government is not the solution to the existing problem, but the consequences of the privatization need to be looked into effectively.

In the first half of the research paper, the importance of providing constitutional status in order to eliminate the existing injustice has been focussed along with the opinions of various scholars. Later, the inefficiency of the water laws which excludes the regulation of MNC's usage of water and the need for an adequate legislative framework has been emphasized.

Therefore, it is pertinent to note that until the problems associated with the privatization of water are ameliorated by formulating a proper legislative framework and providing constitutional status to the right to water, the current situation of exploiting the public and the water resources in India is here to stay and would further lead to an unsustainable future.

[1] Mesfin M. Mekonnen, Arjen Y. Hoekstra, Four billion people facing severe water scarcity, Science Advances, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4758739/, last seen on 11/11/2020.

[2] Sumedha Mahajan, In Season of Drought, How MNCs Are Plundering Ground Water in India, The Logical India, available at https://thelogicalindian.com/news/in-season-of-drought-how-mncs-are-plundering-ground-water-in-india/, last seen on 10/11/2020.

[3] Earth Talk, Coca-Cola Charged With Groundwater Depletion and Pollution in India, ThoughtCo., available at https://www.thoughtco.com/coca-cola-groundwater-depletion-in-india-1204204, last seen on 10/11/2020.

[4] Vrinda Narain, Water as A Fundamental Right: A Perspective From India, 34 Vermont Law Review 917, 919 (2010).

[5] Ministry of Planning, Government of India, Composite Water Resources Management: Performance of States, available at https://niti.gov.in/sites/default/files/2019-06/Final%20Report%20of%20the%20Research%20Study%20on%20%20Composite%20Water%20Resources%20Management%20Index%20for%20Indian%20States%20conducted%20by%20Dalberg%20Global%20Development%20Advisors%20Pvt.%20Ltd_New%20Delhi.pdf, last seen on 10/11/2020.

[6] Report of the UN Water Development, General Assembly, Sess. 71, U.N. Document (21/03/2020) available at http://www.unwater.org/publications/world-water-development-report-2020/, last seen on 14/11/2020.

[7] Supra 8.

[8] Report of the United Nations Water Conference, United Nations Water Conference, Mar del Plata, March 14-March 25, 1977, E/CONF.70/29, 3, available at http://www.ielrc.org/content/e7701.pdf, last seen on 10/11/2020.

[9] Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

[10] Francis Coralie Mullin v. Union Territory of Delhi, 1981 (1) SCC 608; Chameli Singh v. State of UP., 1996 (2) SCC 549.

[11] Supra 13.

[12] Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664.

[13] Art. 39 (b), the Constitution of India. 

[14] Colin Brown, Priscila Neves-Silva & Léo Heller, The human right to water and sanitation: a new perspective for public policies, 21 Ciência & Saúde Coletiva 661, 666 (2016), available at https://www.scielo.br/scielo.php?script=sci_arttext&pid=S1413-81232016000300661, last seen on 11/11/2020.

[15] Edgar Chen & Sarah A. Altschuller, Corporate Accountability and Human Rights in the Age of Global Water Scarcity, 24 Environmental and Natural Resources Journal 9, 10 (2010).

[16] Art. 262, the Constitution of India.

[17] Ruchi Pant, From Communities’ Hands to MNCs’ BOOTs: A Case Study from India on Right to Water, Rights and Humanity, UK 3, 15 (2003) available at https://www.ircwash.org/sites/default/files/Pant-2003-Communities.pdf, last seen on 14/11/2020.

[18] S. 47, The Water (Prevention and Control of Pollution) Act, 1974.

[19] Ss. 6, 25, The Environment (Protection) Act, 1986.

[20] Amir Cahn & Bipin Pradeep Kumar, The Role of Water in India's Smart Cities, Water World, available at https://www.waterworld.com/international/article/16202026/the-role-of-water-in-indias-smart-cities, last seen on 14/11/2020.

[21] Eric F. Spade, Indian Reserved Water Rights Doctrine and the Groundwater Question, 19 American Indian Law Review 403, 421 (1994).

[22] The Groundwater (Sustainable Management Bill), 2017 (pending).

[23] Supra 10.

[24] Ministry of Water Resources, Government of India, The National Water Policy 2002, available at http://jalshakti-dowr.gov.in/sites/default/files/nwp20025617515534_1.pdf, last seen on 14/11/2020.

[25] M Rezapour, M Zeynali, A Shahvalizade, The Analysis Relationship Between Privatization of Governmental Companies And Economic Value Added, 9 Arabian Journal of Business and Management Review 46, 52 (2014).

[26] A Mukhopadhyay & Bhattacharya, Development and Environmental Issues vis-à-vis Current Perspectives of Human Rights. In: Human rights and the Third World: Issues and Discourses 59 (4th ed., 2011).

[27] Ibid at 66.

[28] G Dwivedi, Rehmat & S Dharmadhikary, Water: Private Limited: Issues in Privatisation, Corporatisation and Commercialisation of Water Sector in India 10 (2nd ed., 2007).

[29] Vijayta Lalwani, As the water crisis deepens, can India afford to leave groundwater unregulated?, Scroll.in, available at  https://scroll.in/article/929433/as-the-water-crisis-deepens-can-india-afford-to-leave-groundwater-unregulated, last seen on 15/11/2020.

[30] Sayan Bhattacharya & Ayantika Banerjee, Water Privatization In Developing Countries: Principles, Implementations And Socio-Economic Consequences, 10 World Scientific News 17, 20 (2015), available at http://www.worldscientificnews.com/wp-content/uploads/2015/06/WSN-10-2015-17-31.pdf, last seen on 14/11/2020.

[31] Art. 21, the Constitution of India.

[32] Supra 17.