'Right' to life is right but what is left...

For them the law of the land does not exist. Ever since discharge from a sugar mill first reached the village in 1955, Kalapani has continued to remain a cesspool of effluents. Apart from the households located on raised land, the entire stretch of cultivable land in the village has been waterlogged. Women use boat to ferry themselves out of the village to answer nature’s call. Collecting drinking water remains an ordeal as there is no end to water woes for the villagers.

Situated along the embankment on river Baghmati in Sitamarhi district of Bihar, the village has literally been trapped between the devil and the deep sea. If it were not the raised embankment, the effluents would have drained into the river. But that was not to be and with the law favouring the powerful, the industry has been able to secure cushion for its reprehensible attitude. Neither the state nor its administrative machinery has been able to uphold the constitutional provision of a right to water in Kalapani.

Unlike most countries where the lack of explicit reference to a right to water in the national legislation necessitates creativity in enforcing the right through the courts, the constitutional provision (Article 21) wherein a right to water has been subsumed under the ‘right to life’ has long been violated across India. The right to water has existed in letter but not in spirit. No surprise, therefore, that over 128 million people in India do not have access to safe drinking water and this number is growing.

Is a right to water legally enforceable? Can a complaint for human rights violation be filed for non-compliance? The 1990 Kerala High Court judgement in Attakoya Thangal vs Union of India recognised the fundamental importance of the right to water but could not go beyond mere assertion that “...the administrative agency cannot be permitted to function in such a manner as to make inroads into the fundamental right under Article 21.”

The court was hearing the petitioners who had claimed that a scheme for pumping up groundwater for supplying potable water to the Lakshadweep Islands in the Arabian Sea would upset the fresh water equilibrium, leading to salinity in the available water resources and causing more long-term harm than short-term benefits. In its judgement, the court could only request deeper investigation and monitoring of the scheme as it recognised the right of people to clean water as a right to life.

The crux is that while the state has several basic obligations to provide their citizens with drinking water, the affected persons have ineffective possibilities to claim these rights in the court of law. Because the right to life is understood in a very narrow sense, individuals can only file a complaint if their life is threatened through the lack of access to water. However, if those who complain can get water from another place their claim can no longer be held valid.

Does adoption of a resolution by the UN General Assembly in July 2010 to recognise water as a fundamental human right make any difference? According to legal experts, international law gives little scope for individuals to achieve government action by emphasising individual claims. Since such laws cannot force the state to fulfil its duties, the World Health Organisation (WHO) is in favour of an enforceable right to clean drinking water.

Ironically, even if a right to water becomes legally enforceable it neither ensures quantity nor quality of water. The state is under no obligation to ensure either. As geogenic contamination is getting widely prevalent in groundwater and anthropogenic sources are polluting most surface water sources in the country, reduction in fresh water supplies is leaving the population at a higher risk. Not without reason are 21 per cent of all communicable diseases attributed to contaminated water supplies.

The varied implications of a constitutional provision of a right to water, enshrined in the right to life, leave the citizens in a precarious condition. As the state cannot be held accountable for non-delivery of water (both in quantity and quality) to peoples’ doorsteps, it leaves people with little option but to rely on bottled water as a reliable source of drinking water. Millions of people already do so, as a right to water has essentially meant a right to buy water.

(The writer is a water expert with The Ecological Foundation, Delhi)

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