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PFA was enacted in 1954. The Union ministry of health and family welfare (MoHFW) is its implementing agency. When the Act was notified, water was not covered under it as 'food'. It defined food under section 2 (v) as "any article used as food or drink for human consumption other than drugs and water...". According to sources at MoHFW, the reason is that water supplied through municipal taps is not used for drinking purposes alone. It is also used to other household chores like washing and cleaning. Hence, it is not food per se.
In 1996, a group of people recognised the fallacy. All of them were part of a Committee on Subordinate Legislation (CSL) that had got together to do a think, or rather a re-think, on the rules and regulations framed under the PFA. CSL proposed that water should also be included in the Act as a food item. The committee gave two reasons. As the Fifth Report of Committee on Subordinate Legislation (Eleventh Lok Sabha) published in 1997 puts it:
"One, water is treated and purified by the local authority before it is supplied to the public. Thus there is always a possibility of the purity of water supplied falling below the prescribed standard, which renders it injurious to health.
Second, sometimes it is found that the water supplied contains viruses or bacteria, which cause jaundice, typhoid and other water-borne diseases and people who consume it contact such diseases.
Whichever agency is responsible for supplying drinking water to the public has responsibility to ensure the purity of water so supplied and the committee strongly feels that the statute should bind it to do so. Otherwise the whole population will be exposed to serious health hazards, with no one owing responsibility for it".
CSL recommended that immediate steps be taken by the government to amend section 2 (v) of the Act, to include water treated and supplied by local authorities within the definition of 'food'.
Now get into complex, deliberative, bureaucratic give and take. The recommendations had to go to the MoHFW, ministry in charge. It did:
"Supply of potable water in the urban areas comes within the purview of Ministry of Urban Affairs and Employment (at present Union ministry of urban development and poverty alleviation). Supply of drinking water in the rural areas in ensured by the Ministry of Rural Areas and Employment (at present Union ministry of rural development) who have set up technology mission on water for providing water at each village. A letter has been sent to these Ministries to send their comments. On receipt of the same the matter will be examined to amend the PFA Act."
Files moved, in due course. In time -- should we say: "duly"? -- the Union ministry of urban development replied: "the widening of the definition of food to include water will bring it under the Prevention of Food Adulteration Rules and consequently would impose a legal commitment and obligation on the agencies for adhering to the recognised standards for potable water supplied by them. As you are aware, drinking water in urban and rural areas is generally supplied only by the State Governments undertakings or the local bodies. The burden of this commitment will fall, therefore, on these agencies and more than the urban local bodies the responsibility will be greater in the case of rural local bodies where the required standards have not yet been reached and who are also facing financial crunch."
As a bureaucrat would happily put it, this was an insuperable argument. Of simply not wanting to take on the task of providing clean water; of simply avoiding it; of representing a scene of change for the better as a pure financial nightmare. This is arrogant administration presenting itself as soft governance. This is plain shirking.
What is 'drinking water'? The term is synonymously used with 'potable water', 'wholesome water', 'safe drinking water', or 'clean drinking water'. For instance, the Delhi Jal Board (DJB) website claims that that "drinking water, supplied by Delhi Jal Board, is potable, wholesome and conforms to the standards laid down by the Ministry of Urban Affairs and Employment. The quality of water is checked at every stage of treatment -- from Raw Water stage to storage reservoirs and also in the distribution system at the Consumer's end". Questioned further about this DJB claim, Sanjam Chima, advisor pubic relations, DJB said, "We are following the water quality guidelines developed by the CPHEEO. As far as their legal nature is concerned, you should either ask the CPHEEO or the Delhi government." Interesting. The body supplying drinking water to consumers, and monitoring its quality, does not know if the standards which it claims to be following are legally binding or not.
Admits an NIUA official, "I have not come across any common definition of drinking or potable water. It is very ambiguous and quite likely that it has not been defined legally." This lack of a common legal definition gives enough space to state agencies to play around with drinking water quality.
This becomes amply clear the moment one looks at various municipal byelaws.
Water is a state subject. The Centre, therefore, can only 'recommend'. It is the state, and its (state-level) agencies, that have to ensure quality drinking water. Various municipal laws show government is completely non-serious about drinking water. According to the section 234 of the Calcutta Municipal Corporation Act, 1980, it is the corporation's duty to supply wholesome drinking water to consumers. The Act also says that the municipality should take steps to provide as far as possible, a supply of wholesome water. It further adds that the corporation shall, paying regard to available resources, provide civic services including water supply. Such clauses are more like escape routes.
The Rajasthan Water Supply and Sewerage Corporation Act, 1979 goes a step further. It makes no explicit mention of the corporation's duty to supply water to the consumer. Under section 42 of the Act, the department is absolved of not supplying water when there's an accident, such as electric power supply failure or leakage or burst main pipes or obstruction or low pressure in the mains in summer, or a labour strike. The department retains the right to suspend water supply at any time and for as long as may be found necessary for repairs or for laying new lines.
The Delhi Municipal Corporation Act, 1957 says that steps should be taken to provide, as far as possible, a supply of wholesome water. The Act also says that when it is not practicable to provide such supply at a reasonable cost and there is danger to health from the quality of water being already supplied, water must be made available at a reasonable distance from every house.
Experts claim that just because quality standards for drinking water have not been legislated in the country does not mean they do not exist. BIS is a statutory body set under the Bureau of Indian Standards Act, 1986. So, the standards it sets are part of the statute and should be observed. Secondly, the standards recommended by CPHEEO might not be statutory in nature but are strongly indicative and should be applied. Vagueness in various municipal acts should not be read as absence of standards.
Some experts suggest that if one looks at drinking water as a 'commodity', then the services provided by the local bodies can be covered under the Consumer Protection Act (COPRA), 1986. In India, water supply is seen as a public health expense and not as a commodity.
Others contest that if we apply COPRA on drinking water, then it is as if the consumer is demanding something from a business entity, whereas right to clean water is a fundamental right. But opinion is crystal clear on one point: irrespective of whether water is a commodity or a public health expense, once drinking water is supplied, it should conform to specified standards.
Says Dhavan, "Non-inclusion of water under the PFA shows ineptitude on the part of the Indian government, which is trying to avoid direct responsibility. If water is covered under the PFA then writ petitions would start flying the very next day. Government does not want to guarantee quality of water because major water suppliers are government departments."
There aren't many lawsuits in this country that challenge the quality of water. One famous case is the 1990 case of Attakoya Thangal v. Union of India. The case was filed in the Kerala High Court (HC) in which the petitioner claimed that due to over-extraction of groundwater through handpumps and tubewells bored by the local administration at Lakshadweep, there was an ingress of salinity and people were being forced to drink saline water. The HC ruled: "Right to life is much more than the right to animal existence and its attributes are manifold, as life itself. A prioritisation of human needs and a new value system has been recognised in these areas. The right to sweet water and the right to free air are the attributes of the right to life. These are the basic elements which sustain life itself."
"This was a landmark judgement of the court, which linked right to clean drinking water with Article 21 of the Indian Constitution. It said that right to water means right to sweet water and not salty water. But such cases are rare," says Ritwick Dutta, an environmental lawyer based in New Delhi.
This is the fundamental problem with India's water policy. Right to water is agreed upon in principle and policy but is not clearly specifiable.
Suggests Videh Upadhyay of Enviro Legal Defence Firm, Noida, Uttar Pradesh, "The first and the foremost thing which we need to do is to clearly specify what right to clean drinking water means, which the Supreme Court of India (SC) upholds as a fundamental right. In last 5-6 years, many high courts have passed judgements on clean water, but there is no clarity as to what that right means in quantitative and qualitative means. Courts also leave it open-ended, free for interpretation. There needs to be categorical pronouncement by the SC as to what right to clean water means. The second important thing after this would be to see how this direction of the SC gets reflected in various statutes. Relevant changes would require to be made in specific sections of specific rules."