POSITION OF RIGHT TO WATER IN INDIA by - DINESH KUMAR

POSITION OF RIGHT TO WATER IN INDIA

Authored by - DINESH KUMAR

L L.M. (Human Rights) U G C NET (Law) & (Human Rights)

Research Scholar

Contact no- 9506155988

Email id- dineshkumar15385@gmail.com

Department of Human Rights, School of Legal Studies

Babasaheb Bhimrao Ambedkar (A Central) University

Lucknow, Uttar Pradesh, 226025

Constitutional Provision

            The constitution of India, which is the supreme law of the land, has imposed an obligation to protect the natural environment both on the state and on the citizens. But right to safe and clean water is now here mentioned in the constitution. Nevertheless, on an analysis of various provision of our constitution, we find that right to clean water is implied in the right to wholesome environment.

Article 39 (b) provides that the state shall direct its policy to see “that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good.” The term ‘material resources of the community’ embraces all things, which are capable of producing wealth for the community[1]. In fact, article 39 (b) is a very significant constitutional provision which talks about the distribution of the material resources of the community in such a way as to secure equitable distribution of community resources. The expression “material resources” includes precious element of the nature, that is, ‘water’.

            Another constitution mandate in the shape of Article 47 imposes a duty upon the state ‘to raise the level of nutrition and the standard of living of its people and improve public health’ In Municipal Council, Ratlam v. Vardhichand[2] the Supreme Court observed:

            “The state will realize that article 47 makes it a paramount principle of governance that steps are taken for improvement of public health as amongst its primary duties. The standard of living can only be improved by providing basic amenities to the citizens like employment, shelter and clean and safe water”.

Article 48-A, a specific provision for environment which is added to the Constitution by the 42nd Amendment 1976, expressly directs the State “to protect and improve the environment” the term ‘environment’ includes water. When state strives to preserve and protect the natural resources of water like rivers and ponds, the water will also be saved from pollution and common people can have access to it by proper water management.

            Marching towards the preservation and protection of the natural resources including fresh water, article 51 A (g) of part IV-A, has declared that it shall be the fundamental duty of a citizen of India ‘to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures”. Thus, a citizen has fundamental duty to preserve and protect water resources.

            In Part –III of the constitutional, Article 21 provides that every person has right to life and personal liberty. Similarly, article 14 provides that right to equality is fundamental right of the person. The higher judiciary of India has interpreted article 14 and article 21 in such a liberal and pragmatic manner that, now it is well established that right to clean and wholesome environment which includes the right to access to clean and safe water, is a fundamental right.

            Article 15(2) provide that “the use of wells, tanks, bathing Ghats, roads and place of public resort maintained wholly or partly out of state funds or decided to the use of the general public.

Specific Act

(A) Shore Nuisance (Bombay and Kolaba) Act, 1853

This statute was operative in Bombay and Kolaba only. It authorized the Collector of Land Revenue to issue notice to the party concerned requiring it to remove nuisance anywhere below high watermark or get it abated or removed himself.

(B) Oriental Gas Company Act, 1857

            This Act provided punishment for pollution of water caused by the company.

(C) North India Canal and Drainage Act, 1873

Section 70 (3) of the Act provided that any interference with or alteration in the flow of water in any river or stream, so as to endanger, damage or render less useful any canal or drainage work would be an offence. This entailed the punishment of imprisonment not exceeding three months or a fine not exceeding 50 rupees or both.

(D) Indian Easement Act, 1882

This Act has recognized the doctrine of riparian rights to unpolluted water Section 7 of the Act in illustrations (f) and (h) mentions that every owner has a right to get unpolluted water without material alteration in quantity and temperature. It may be noted that prescriptive right as provided under Section 15 does not recognize the right to pollute water as the water (river, well, sea, underground water) belongs to government which has sovereign right to water.

(E) The Factories Act, 1948

This Act has also provisions regarding the disposal of water and effluents of factory. Section 12 of the Act provides that effective arrangements shall be made in every factory for the disposal of water and effluents from them. Section 92 provides punishment for non-observance or non-compliance with sections 12 which is imprisonment for a tem which may extend to two years or fine which may extend to one lakh rupees, or both.

(F) The Criminal Procedure Code, 1973

This act also has some general provision which can cover pollution activities. Section 133 and 144 of the criminal procedure code empowers the district or Executive magistrate to take immediate measures to prevent or abate the noxious activity or public nuisance.  

(G) Indian Penal Code, 1860

The Indian penal code has a chapter on ‘Offences affecting the public health, safety, convenience’ (Chapter xiv). Section 268 defines ‘Public nuisance’ as a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the

Vicinity, or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right.

The section further explains that a common nuisance is not excused on the ground that it causes some convenience or advantage.

 The first act directly dealing with water pollution and having specific provisions is the Indian penal code of 1860 .Section 277 of the code provides:

“Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to five hundred rupees or with both.”

(H) The water (Prevention and Control of Pollution) Act, 1974

The main aim and object of the act of 1974 is ‘to maintain or restore the wholesomeness of water and to prevent, control and abate water pollution’. To achieve these objectives, the act has provided various chapters which are very comprehensive. In view of sub-section 2(e) read with section 17 and 18 of this Act, the fundamental objective of the statute is to provide clean water to citizens. 

Judicial Approach:

Expansion of Article 21

The Stockholm Declaration of the United Nations on Human Environment 1972, Principle I read as:

            Man has the fundamental right to freedom equality and adequate condition of life. In an environment of equality that permits a life of dignity and well being and he bears a solemn responsibility to protect and improve the environment for present and future generations.

            Right to life has been categorically stated under Article 21 of the Constitution as “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

            Chhetriya Pardushan Mukti sangarsh Samiti v State of U.P[3] Clean air and fresh water, necessary for the very survival of life, was explicitly reiterated by the Supreme Court in the case of Subhash kumar v State of Bihar as the fundamental right under Article 21 of the constitution. K.N. Singh,J. observed:

Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.

            The case of Virendra Gaur v State of Haryana[4] is a good example wherein the Supreme Court in very distinct terms emphasized and enunciated the link between pollution free air and water and right to life under Article 21 of the Constitution. The Court observed.

            Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompass within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or action would cause environmental pollution. Environmental, ecological air, water pollution etc should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment.

            In Kinkri Devi v State of Himanchal Pradesh[5], the Himanchal Pradesh High Court while considering the legality of mining operations held that if a balance was not struck between the needs of development and that of protection of the ecology it would result in a violation of citizen’s fundamental rights guaranteed under the Constitution of India. The court further observed that to ensure the attainment of the constitutional goal of protection and improvement of natural wealth and environment the court would intervene effectively by issuing appropriate writs or orders or directions.

            The water management has been pointed out to be the biggest challenge in the opening decades of the present century. And therefore, the High Court of Kerala in the case of F.K. Hussain v Union of India[6], Suggested for the conservation of water resources. The High Court maintained that the executives had onerous responsibility in the matter of providing civic amenities but observed that there must be an effective and wholesome interdisciplinary interaction and the administrative authorities could not be permitted to function in such a manner as to make inroads into the fundamental right under Article 21 of the Constitution. The court further observed:

            The right to sweet and the right to free air are attributes of the right to life for these are the basic elements which sustain the life itself.

            In V. lakshmipathy v state of Karnataka[7], the Karnataka High Court dispensing a writ petition observed that “restoring nature to the natural state” had become a “cause of all the people.’ The preservation of environment is the need of the time. It is a cause of particular concern to the living young generation because the future generation will reap the grim consequences of the failure of the present day failure. The court observed that an onerous obligation which we owed to posterity was clean air, water, greenery and open spaces. These ought to be elevated to the status of birth rights of every citizen.

            In D.D. Vyas v Ghaziabad Development Authority[8], the Allahabad high Court directed the Ghaziabad Development Authority to take appropriate steps to achieve the statutory object of sectionring preservation of environment and development of the residential colonies. The High Court observed.

            Right to live is a fundamental right under Article 21 of the Construction and it 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 the 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.

            Kerala high Court in Antony v Commissioner, corporation of Cochin[9] got another opportunity to deliberate upon the issue and observed:

            As regards the contention of the petitioner based on the right to life guaranteed under Article 21 of the Constitution of India it has to be noted that by a catena of decisions of the Supreme Court and the High Court’s the expression ‘life’ occurring in Article 21 is given as expanded meaning and under the expanded meaning, the right to pure drinking water, pollution free air, right to good roads, etc, have all been held to be the face of the right to life guaranteed under Article 21 of the Constitution of India.

The Indian judiciary has shown unprecedented dynamisms by expanding the scope of article 21 by including in its right to wholesome environment. This feat is remarkable insofar as even some of the developed countries have yet to achieve such distinction. It still remains to be seen as to whether a developing country like India can sincerely and effectively allow enforcement of this fundamental right to live in a clean environment, nonetheless such innovative approach would certainly help to prevent further degradation of our environment. This judicial activism was the aftermath of Maneka Gandhi v Union of  India case[10] which opened new frontiers in Article 21 Various High Courts in some cases have observed environmental degradation as violate of the fundamental right to life. Subhash Kumar vs. State of Bihar[11], the apex court explicitly recognized right to wholesome environment included in Article 21 of the Constitution when it held: “Right to live is fundamental right under Art. 21 of the Constitution and it include 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 Art.32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.

Right to life being the most important of all human rights implies the right to life in a healthy environment. Fortunately the higher judiciary in India has interpreted the existing constitutional provisions, viz., the right to life guaranteed under Article 21 to mean and include the right to live in a healthy environment. The courts have intervened by writs, orders and directions in appropriate cases and recognized the constitutional right to a healthy environment.

It is important to note that Indian Constitution has not specifically provided fundamental right to unpolluted water. However, by liberal interpretation of various provisions of Constitution, the apex court and High Courts carve out the right to clean and safe water. Starting from Rural Litigation case where the Supreme Court for the first time, indirectly, recognized the right to clean and healthy environment. It was only in 1991 in Subhash Kumar’s Case; the apex court for the first time enlarged the scope of right to life and easily included the right to enjoyment of pollution free water for full enjoyment of life.

In Chhetriya Mukti Sangharsh Samiti’s case, the Supreme Court came close to almost declaring the right to ‘wholesome environment’ as a part of Article 21 of the Constitution of India” this case was initiated by Public Interest Litigation. It was alleged that certain oil mills and refineries located in the Sarnath area degraded environment and thereby causing a serious health hazard.

The apex court took a step forward in Subhash Kumar’s case where Justice K. N. Singh explicitly observed:

“Right to life is a fundamental right.... it includes the right to enjoyment of pollution free water and air for full enjoyment of life.”

This case was Public Interest Litigation filed against the pollution if the Bokaro River by the sludge/slurry discharged from washers of the Tata Iron and Steel Company Ltd. It was alleged that release of effluents into river results in making the water unfit for drinking purposes and for irrigation.

Though this was the first step by the apex court to declare right to clean water as fundamental human right, earlier the Kerala High Court had declared this right as fundamental in 1990. The court in Attokoya’s case while highlighting the importance of right to life observed that “the right to clean water and right to clean air are attributes of the right to life, for, these are the basic elements, which sustain life itself”.

The apex court in Virender Gaur’s case, after reciting, reaffirming and applying principle-1 of the Stockholm Declaration held that “Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including the right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from  p[pollution of air and water, sanitation without which life cannot be enjoyed environmental, ecological, air, water  pollution, etc. should be regarded as amounting to violation of Article 21”. Court further strived to consolidate the right to clean water in Vellore’s case where the court has observed that “the constitutional and statutory provisions protect a person’s right to fresh air, clean water and pollution free environment”. In this case a PIL was directed against the pollution which is being caused by enormous discharge of untreated effluents by the tanneries into agricultural fields, other localities and in Paler River.

The Supreme Court in M.V. Naidu’s case referred to in the Resolution of the UNO passed during the United Nations Water Conference in 1977 to which India is a part and observed that “the right to access to 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 U.N. Water Conference, 1977 resolved unanimously as under: “all people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of  a quality equal to their basic needs.”

Justice Kirpal (as he then was), taking inspiration from above mentioned resolution held in Narmada Bachao’s case that: water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India and can be served by providing source of water where there is none.” In this case an NGO protested against the construction of Sardar Sarovar Dam on the ground that it violates the human rights.

Thus after analyzing the judicial interpretation, in the field of right to clean water it is crystal clear that right to clean water is fundamental right and it is duty of the State to provide access to water to the people of India, so that they could enjoy their basic human rights. The recent observation of a Division Bench of the Rajasthan High Court is also a milestone in the field of clean water that the failure of the State to provide safe drinking water makes the mockery of citizen’s fundamental right to life. Holding further that it was fundamental right of the people to get drinking water, the court has directed the State Government to initiate steps for providing safe water.

F.K. Hussain vs. Union of India[12]

Kerala High Court held that: “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.”

Attakoya Thangal vs.  Union of India[13] The excessive withdrawal of groundwater by the rich farmers in Lakshadweep was controlled by the Kerala High Court. The need for good management of ground water resources was recognized by the Kerala High Court. This was a PIL, filed by the local islanders, seeking to protect fresh water resources on the Lakshdweep islands. The petitioners apprehended that the government scheme to pump out ground water on the island would cause salient intrusions in the fresh water table, which would, in turn, imperil the portable water supply on the island Recognizing the importance of fresh water to the islanders and holding that the right to fresh water was an aspect of the fundamental right to life.

M.C. Mehta v. Union of India (Groundwater Case) [14]

It is a landmark decision the falling levels of groundwater (from 4 meters to 8 meters) in Delhi were complained in this case and appropriate remedy was sought.

The Supreme Court asked NEERI (National Environmental Engineering Research Institute) to investigate and report. The latter recommended for (i) establishing Central Water Resource Management for coordination and implementation of activities on groundwater conservation';' (ii) preparation of medium and long term national use plan of groundwater in relation to agriculture, human settlement, and industrial establishments: (iii) restructuring irrigation practice and cropping pattern to save water; (iv) periodical reviewing of groundwater level and its quality and surface water’s quantity and quality; (v) ensuring minimum flow in rivers to protect vital ecological interests; (vi) increased application of traditional knowledge and method of water conservation; (vi) protecting and augmenting natural and manmade wetlands; (vii) using rain water harvesting methods; (viii) Afforestation in the catchments area with a target of 33% forest cover; and (ix) changing the water rate to discourage waste. The Supreme Court directed the Union Government to constitute Central Groundwater Board and to legally regulate indiscriminate boring and withdrawal of underground water in the country. But legislative incompetence of the Union to bring a national law on the subject and inaction and hesitation of states has obstructed the growth of law.

      Vellore Citizens Welfare Forum V. Union of India[15]

The Apex court held that: “Keeping in view the scenario discussed by us in this judgment, we order and direct as under that – the Central Government shall constitute an authority under Section 3(3) of the Environment (Protection) Act 1986 and shall confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. The authority shall be headed by a retired judge of the High Court and it may have other members preferably in the field of pollution control and environment protection to be appointed by the Central Government. The Central Government s hall confer on the said authority the powers to issue directions under Section 5 of the Environment Act and for taking measures with respect to the matters referred to in Clauses (v), (vi), (vii), (viii), (ix), (x) and (xii) of subsection (2) of Section 3 It is thus obvious that the Environment Act contains useful provisions for controlling pollution. The main purpose of the Act is to create an authority or authorities under Section 3(3) of the Act with adequate powers to control pollution and protect the environment.”

Environmental and Consumer Protect. Found Vs. Delhi Administration and Ors[16] In this case court decided that It is the bounden duty and obligation of the Union of India and the States to ensure that basic facilities such as drinking water, toilets, electricity etc. be made available in all the schools.

1.  Assam Sillimanite Ltd. V. Union of India A I R 1992 SC 938

2. AIR 1980 SC 1622

[3] AIR 1990 SC 2060 (2062)

[4] (1995) 2 SCC 577

[5]  AIR 1988 HP 4

[6]  AIR 1990 Ker 321

[7]  AIR 1992 Kant 57

[8]  AIR 1993 All 57

[9]  (1994) 1 KLT 169

[10]  AIR 1978 SC 597

[11]  (1991) 1 SCC 598

[12]  AIR 1990 Ker 321

[14]  (1997)2SCC 312

[15] AIR 1996 SC 2715

[16] 2011 (1) SCALE 709