Realisation of the fundamental right to water in rural areas: Implications of the evolving policy framework for drinking water – An article by Philippe Cullet in Economic and Political Weekly

The fundamental right to water in rural areas is well-established in India, but the actual content of this right has not been elaborated upon in judicial decisions. There is no general drinking water legislation that would provide this missing content.

This analysis of various initiatives taken by the government for rural drinking water supply finds that these initiatives do not amount to a comprehensive binding legal framework covering all the main aspects of the fundamental right to water. The more general problem that emerges is that the policy framework for reforms effectively pays only lip service to fundamental rights. The constructive interpretation sees reforms as proposing a different way to realise the human right to water and goes further than what the reforms themselves seek to do.

Indeed, the move away from a social right towards conceiving water as an economic good is a direct reflection of the conception of water proposed since the 1992 Dublin Statement that first conceived of the human right to water as a subsidiary element of water as an economic good. At the national level, there is no doubt that fundamental rights are not subordinated to anything else.

The Dublin Statement that is not even a piece of soft law endorsed by the United Nation, has no bearing on what states must do at the national level. The only thing that matters in this context is the respect for the constitutional framework. This happens to mandate that fundamental rights prevail over other rights. There is, thus, a need to reconceive ongoing reforms so that they fit within the fundamental right to water framework rather than the other way round.