As per
the current situation of the Nation, Right to potable water should fall within
the category of the Fundamental Rights of Individuals but it has not been
specifically or namely categorized in it. In simple words, Potable water is
water which is free of pathogens and contains no harmful chemicals and has
desirable taste, odor, color and turbidity. It is popular and also known as a
‘sweet water’ or ‘drinking water’ amongst general public of the nation. In India, water is a limited national resource with demands on it
increasing on account of a growing population of over one billion. There is a
shortage of water in all over India
especially for drinking purpose and also for the purpose of the farming,
industrial purpose and many more. According to, World Water Development Report,
2003 in the matter of availability of water, India is at the 133rd
position among 180 countries and as regards the quality of the water available,
it is 120th among 122 countries. Of the present water usage in India, 92 per
cent is devoted to agriculture; around 3 per cent is used by industries and
only 5 percent for domestic purposes like drinking water and sanitation.[1]
Water pollution is a serious problem with 70 per cent of India’s surface
water resources and an increasing number of its ground water reserves standing
contaminated by biological, toxic organic and in organic pollutants.[2]
In the present time, there is unavailability of water for
the industrial and agriculture purpose and for drinking purpose because of
pollution and inappropriate distribution of water among the territory. In some
areas, there are problems regarding the resources for drinking water. For that,
Sharing and distribution of the water, requires a regulatory agenda which
should include laws and implementation of that laws in real sense, for that,
support of NGOs & local authorities and public, traditional & customary
practices and saving of rain water.
This post contributes right of water- potable water, overview
of Constitutional Provisions and various decisions of Judiciary on Potable
water as a fundamental right, Sources of Potable Water in India and its
impurity, Right to potable Water as a Human Right, An unfulfilled obligation on
the part of Government, Right to Potable Water- rhetoric and Recommendations
and Conclusion.
Following
heads help us to understand the Potable Water as a Right.
- Meaning of Potable Water-
As mentioned above, potable water must-
-
be free
from pathogens (disease causing organisms)
-
have a
desirable taste, odor, color and turbidity and
-
Contain
no harmful chemicals.
A potable water supply is one which is drinkable. Natural
water from a river, lake or borehole usually has to treat to make it potable.
The water cycle of the biosphere depends upon
the reciprocity of evaporation and precipitation. Liquid water on the earth
goes into the atmosphere as vapours by evaporation and transpiration of the
plants. The vapour is returned to the Earth as rain or snow. In simple terms,
water cycle is evaporation of water from ocean, sea, river, pond & etc.,
formation of cloud, condensation into rain or snow, flowing back to ocean, sea,
river, pond & etc., depends on various conditions like temperature, density
or air, pressure of air, which inturn depends if situation like forest or plant
cover on earth’s surface etc. this is an amazing process of nature to convert
saline water into sweet water.[3]
- Water- an important substance for human body-
Water is the sustenance of the life cycle of
human being. The human body and other organisms require water in its purest
form, free from any contamination. For the purpose of drinking, water should be
sweet water. There is about 65% part of water into human body for the purpose
of lubrication, respiration, circulation, digation, filtration, air-condition
and reduction.
Contaminated water cause malaria, jaundice,
typhoid, cholera, diarrhea and dysentery. These are categorized as water-bone
diseases. The
water related diseases are claiming the lives of about 1.5 million children
(500,000 children due to diarrhea alone) under 5 years and person-days lost in
India are estimated to be about 180-200 million a year (Krishna Kumar, 2003;
Parikh et al, 1999).[4]
- Sources of Potable Water- its impurity and causes for impuration-
The source of water that we get for our
consumption are mainly from rain, river, ponds and lakes besides from
groundwater source but largest water bodies that is seas and ocean gives salty
water which is unfit for drinking purpose.
The main resource of drinking water is river.
If water at source is impure, it is natural that we got polluted water thus
causing problems for our survival. A staggering 70% of available water in India is
polluted.[5] Water sources are polluted due to various industrial and domestic activities, pollutant
from industries comes out in concentrated from mainly because most of the
industries do not treat their effluents despite of various act. The threat of
pollution from chemical fertilizers & pesticides appear to be relatively
small but rising.
Domestic pollutants comes through municipal
sewerage and these effluents are not treated due to various reasons, in some
case due to non availability of sewerage plant, some case the plants do not run
at all.
With the advent of enormous industrialization,
population growth and scientific development in various walks of life, the
ecosystem has been disturbed and damaged beyond repair. The balance between the
mobile living (man, animals, birds, insects etc.), the immobile living (trees,
plants) and three sustenance system (soil, water and air) has been disturbed.
As Water is an important substance for life, in ecosystem as well as in
biosystem, mobile living and immobile living cannot live, exist without water.
Above mentioned all are creating pollution of
water in some or other manner. Polluted water is no more useful for the
drinking purpose.
- Purity of water- its history-
In India, the purity of water has
always been emphasized from time immemorial. In the Rig-Veda, the Atharva-Veda
and the Yajur-Veda we find many verses in praise of Lord Varuna (God of Water).
In the Yajur Veda water was regarded as a source of life and grain.[6]
Bhagvad Geeta also mentions about worshipping of Lord Varuna.[7]
This shows that in Vedic times, water was regarded as a component of life and
thus was regarded as sacred, not to be polluted. In Manusmriti, the first
systematic treatise on various laws, water is regarded as a creator and source
of life on the earth.[8]
To take away water of a tank or cut off the supply of water was an offence
punishable with fine.[9]
This proves that in olden times it was the duty of all to keep water pure, and
pollution or destruction of water was recognized as an offence.
CONSTITUTIONAL PROVISIONS AND RIGHT TO POTABLE WATER
Indian constitution emphasis on the protection of
Environment. In Several Articles of the Indian Constitution, protection of
water as well as protection of environment as whole is mentioned. Those
articles directly or indirectly talks about the well being of the person with
all necessities.
In India,
the Right to Potable Water is not expressly stated in the Constitution.
However, the right is implicit, in that Indian Courts have interpreted the
Constitutional Right to Life as including the Right to clean & sufficient
water.
Art.15(2)- this article of the constitution prohibits subjection
of a citizen to any disability, liability, restriction or condition on grounds
only of religion, race, caste, sex or place of birth with regard to use the of
wells, tanks, bathing ghats..[10]
This article of the Constitution is important because in our country there is
discrimination on the grounds of the race, caste, sex and place of birth. Such
feeling of the discrimination leads people to such sincere experience which
prohibits another to enjoy his life. Most of the victims of such discrimination
are of the SCs, STs and Vicharati and vimukt thati jati.
Art.21- Article
21 which speaks of the right to life[11]
has been freely interpreted by the Supreme Court of India and High Courts of
States to include all facets of life. It means that Art.21 includes right to
potable water fall within it and it is a fundamental right of an individual as
it is necessary for the survival of a person. In F.K. Hussain v. Union of India[12],
the Kerala High Court declared that one of the attributes of right to life is right to potable water as it is one of
the basic elements which sustain life itself. The Court also declared that
administrative agencies could not be permitted to function in such a way to
make inroads into fundamental rights under Art.21 of the Constitution.
Art.39(b)-mandates
that ‘the State shall, in particular, direct its policy towards securing that
the ownership and control of the material resources of the community are so
distributed as best to sub serve the common good.
Above discussed all are the Articles which directly
indicate the State to perform some or other task for the protection. Article 51
of the constitution discuss about the Fundamental Duties on the part of
Citizens of the Nation.
Art.51A (g)[13]-
this article confers
fundamental duty on each and every citizen of the India, ‘to protect and improve the
natural environment including forests, lakes, rivers, wild life and to have
compassion for living creatures.’ This article generously states that to
protect the environment is our fundamental duty.
In the
constitution, the primary entry relating to water is Entry 17 (the state list)
of List II in Schedule 7.This means that states have control over water
supplies, irrigation and canals, drainage and embankment, water storage, and
hydroelectric power. The power of states is limited only by Entry 56 of List 1
(the union list), which gives the central government powers to regulate and
deal with inter-state rivers and river valleys to the extent declared by the
Parliament by law to be expedient in the public interest, and by entry 57 of
the same list, which gives the centre the sole power to regulate fishing and
fisheries beyond territorial waters
There are
also examples in which right is placed in the Constitution i.e. South Africa
and Uganda, others that have included provisions in their National
Constitutions defining water as a public good and legislating for fair and
equitable access (Ethiopia, Gambia). A specific law have been enacted in US –
Safe Drinking water Act, 1974.
INDIAN JUDICIARY ON RIGHT TO POTABLE WATER
In India,
the Judiciary is one of the three basic organs of the state and has a vital
role in the functioning of the state. The Indian Judiciary has played dynamic
role for the protection of all rights-economic, political, social and cultural.
By the below mentioned all case laws, Judiciary
recognizes the Right to Potable water and need for the state to preserve and
protect the right as the state is the trustee of all natural resources which
are by nature meant for public use and enjoyment.[14]
In F.K.Hussain v.
U.O.I[15].,
the Kerala High Court declared that one of the attributes of right to life
is right to potable water as it is
one of the basic elements which sustain life itself. The Court also declared
that administrative agencies could not be permitted to function in such a way
to make inroads into fundamental rights under Art.21 of the Constitution.
Hon’ble Supreme Court of India, in the Subhash
Kumar v. State of Bihar(1991),
held that the right to live includes the right of enjoyment of pollution free
water and air for full enjoyment of life.
In B.L. Vadhera v.
U.O.I[16].
And in Indian Council for Enviro-Legal
Action v. U.O.I.[17] , the Hon’ble Court held
that pollution free water includes within the purview of Right to Life
guaranteed under Art.21 of the Constitution. The Supreme Court, in M.C.Mehta v. Kamal Nath[18],
categorically held that the state is not only bound to regulate water supply,
but should also help realize the right to healthy water & prevent health
hazard. In Karnataka v. State of A.P.(2000),
the Court held that the right to water is a right to water is a right to life
& thus a Fundamental Right.
In Narmada Bachao
Abhiyan v. U.O.I[19]., it was held
that water is a basic need for the survival of human beings and is part of the
right to life and human rights. The entitlement of citizens to receive safe
drinking water (potable water) is part of the Right to Life under Art. 21.
(Sinha, 2001: 48-49)
Above mentioned all decisions directly indicate that
there should be a Right to Potable Water and they have stated that this right
falls within the category of the Art.21- Right to life. But it is necessary to
mention here that the decisions of Hon’ble Court does not bring safe drinking
water to all the citizens of India specially who are deprived of it and it does
not recommended as Constitutional Right.
[1] ‘Troubled
Waters: Developing Water, Sustaining Livelihoods’, - A report made by
development alternatives
[3] Paryavaran Mitra-Edition Nov-Dec 2008 – a magazine on environment
publishing in Gujarat in Gujarati Language
[4] Right to Drinking Water in India-C. Ramachandraiah- CENTRE FOR ECONOMIC
AND SOCIAL STUDIES, Hyderabad
[5] according to scientists at the National environmental Engineering
& Research Instituue.
[6] Yajur Veda, IX, 6 & 7
[7] Bhagvad Geeta, 10/29
[8] Manusmriti, 1:78
[9] Manusmriti, IX: 281, 274
[10] Article 15(2) of the Indian Constitution prohibits subjection of a
citizen to any disability, liability, restriction or condition on grounds only
of religion, race, caste, sex or place of birth with regard to- (a) access to
shops, public restaurants, hotels and places of entertainment, or, (b) the use
of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of state funds or dedicated to the use of general public.
[11] Article 21- Protection of Life and Personal Liberty- No person
shall be deprived of his life or personal liberty except according to procedure
established by law.
[12] AIR 1990 Ker 321
[13] Art-51A(g)- it shall be the duty of every citizen of India- (g)- to
protect and improve the natural environment including forest, lakes, rivers and
wildlife, and to have compassion for living creatures.
[14] The Right To Water- An Overview Of The Indian Legal Regime by S. Murlidhar – International Environmental Law Research
Centre
[15] AIR 1990 Ker 321
[16] AIR 1996 SC 2969: (1996) 2 SCC 594
[17] AIR 1996 SC 1446, para. 55, 56
[18] (1997) 1 SCC 388
[19] AIR 2000 SC 3751: (2000) 10 SCC 664
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