Claiming water

The fundamental right to water intends to alleviate suffering. It fails miserably to meet its intention. Feel the lives of those who suffer and see it with the way law in this area operates. Then bear the pain. You will see that it will hurt more

 
By Videh Upadhyay
Published: Sunday 07 June 2015

Claiming water

-- The fundamental right to water intends to alleviate suffering. It fails miserably to meet its intention. Feel the lives of those who suffer and see it with the way law in this area operates. Then bear the pain. You will see that it will hurt more.

The higher courts -- after applying the right to water largely for pollution prevention in an urban context for a long time -- have lately felt the urge to take it further. Thus the need for access to clean drinking water is being increasingly seen as a fundamental right in a number of recent verdicts. However, a closer look at these verdicts reveal faultlines. For instance last year, the Andhra Pradesh high court said that right to safe drinking water is a fundamental right and "can not be denied to citizens even on the ground of paucity of funds". Then it contradicted itself. The judgement also says that though the state is under an obligation to provide at least drinking water to all its citizens, "the limited availability of water resources as well as financial resources can not be ignored". It could have categorically declared that the state's failure to provide safe drinking water be declared illegal and unconstitutional. But the court felt that to issue such a direction will be only 'utopian'.

This judicial ambivalence explains why the Rights regime in the country tends to be a Right without Remedies regime. In the above case while the court desisted from making a categorical declaration; it could say clean water is a fundamental right only because of the soft nature of the operative directions it ultimately made. The courts invariably end up making mere observations, not material judgement.

The frustration that comes with seeing the right -- together with its irrelevance in the lives that need them the most -- has prompted jurists in the past to call Article 21 of the Constitution an instrument of legal escapism, not legal activism. Invariably, in all fundamental social economic rights -- like the right to water -- the argument of financial resources waters down the scope of the right. No doubt human suffering demands resources to mitigate them. But how can a fundamental right be so diluted?

Can the right to water in India meet the three conditions for a human right of being fundamental, universal and clearly specifiable? While the basic need for, and hence right to, water is universally accepted as fundamental, it really fails miserably to meet the test of specificity. It is simply because, to use the words of David Beetham, it has not been possible to specify a level below which the right to water can be said to be denied. All socio-economic rights subject to a regime of 'progressive realisation' can only be effective if minimum core obligations and standards are built in to them.

Say it is time to recognize that a certain quantity of water (litres per capita per day-lpcd) is a most basic human need and should be seen as part of the fundamental right to water. Say 40 lpcd -- same as the Rajiv Gandhi National Drinking Water Mission rate to provide safe drinking water to the 'problem villages' and to the rural population -- is a minimum requirement. If not met, as indeed is the case in many parts of the country today, who should be held responsible? Can it be enforced? The answer is no, because the minimum of 40 lpcd is not seen and understood as part of the fundamental right to drinking water. Gross mismanagement explains why in Delhi there are the vvip areas that get 400 - 500 lpcd; the average lpcd available in Delhi even today for all 1.4 crore of its people is not less than 225 lpcd; while people living in unauthorised colonies receive just 20 lpcd! But this is a result also of a simple unwillingness to come up with more equitable water distribution policy. And an equitable water regime would not evolve unless it is enforced.

We will surely struggle to evolve the right approaches aimed at providing answers to a thirsty India. But let us not mistake the approach with the objective. In legal parlance, it can be safely said that it is the fundamental right to drinking water 'in a defined quantity that meets the basic human need' that alone can provide the national objective. An objective that is specific, categorical, enforceable and hence potentially result-oriented. Claim for it is merely asserting right to be human. Let the courts, which took time to interpret pollution-free water to include access to clean drinking water, settle this right by giving operative meaning to it.

Videh Upadhyay is a Delhi-based lawyer and Partner, Enviro Legal Defence Firms

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