Fundamental Human Rights at a Peril

The Universal Declaration of Human Rights (UDHR), also the gerund norm of International Conventions discussing Human Rights establishes Right to Safe and Clean Drinking Water as one of the fundamental Human Rights under Article 25 when it discusses the basic amenities to sustain as a human being. In furtherance to this General Comment No. 15 on the provisions of International Covenant on Economic, Social and Cultural Rights states that the Right to safe drinking water is a right covered within Article 11 and 12 of the Covenant. In the introduction to their Comment, the Committee states that Water is a limited natural resource and public good, fundamental for life and health. The human right to water is indispensable for leading a healthy life in human dignity. It is a prerequisite to the realisation of all other human rights.

The right to water is further defined in the following conditions in various International and National Legislations and describes an onus on the State to protect the following:

1. It must ensure that all people have physical access to water. This means that the facilities that give access to water must be within safe physical reach for all sections of the population, especially for vulnerable and marginalised groups.

2. It must ensure that all people have economic access to water. This implies that the cost of accessing water should be pegged at a level that would ensure that all people are able to gain access to water without having to forgo access to other basic needs.

3. Where water is provided, i.e. the right is guaranteed, they should be protected against undue infringement.

The conditions prevalent in Village Dedwa or rather almost all the localities on the catchment of the river not having access to safe drinking water within physical reach is because the underground water has been polluted to unwarranted scores and in most such localities the source of domestic water is the hand-pumps and they give out water not fit for domestic usage. The industrial and domestic pollution of the river has led to the underground water to be dirty to demeaning levels and thus making it unfit for living usage.

In addition to this the water which is being available has to qualify the following aspects of Human Rights Conventions in order to pass the tests laid down by these International Legislations. They are as follows:

1. Availability- As already defined availability of clean drinking water.

2. Accessibility- This puts a condition of the availability in a safe reach and also speaks of economic accessibility of the water.

3. Quality- The water thus available should be fit and qualify the physical and chemical qualities of the water.

Furthermore, this right has been brought within the purview of Article 21 of the Indian Constitution that is under Right to Life under various judgements by the Hon'ble Supreme Court of India. Some of the legal backings to the same are laid in the following paragraphs:

1. In A.P. Pollution Control Board II v Prof. M.V. Naidu and Others, the Hon'ble Supreme Court stated that “The right to access clean drinking water is fundamental to life and there is a duty on the state under Article 21 to provide clean drinking water to its citizens.”

2. In Subhash Kumar v. State of Bihar, AIR 1991 SC 420, the apex court held that “right to live is a fundamental right under Article 21 of the constitution and it includes the right of enjoyment of pollution free Water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has a right to have recourse to Article 32 of the constitution for removing the pollution of water or air which may be detrimental to the Quality of life”

3. In Narmada Bachao Andolan v. Union of India, (2000) 9 SCC 571), the Supreme Court held that right to water is a fundamental right under Article 21 of the constitution.

4. In M.C Mehta v. Kamalnath,(1997 (1) SCC 388), the apex court observed that the doctrine of public trust demands the sovereign to protect and regulate all environmental aspects of water and land.

5. The concept of right to “healthy environment” has been developed as part of the right to life under Article 21 of our Constitution. This concept was first articulated in the case of Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 and then continued and expanded. The Supreme Court protected the right to clean water as part of the right to a healthy environment in a spate of water pollution cases coming before it from the early nineties onwards.

6. The court referred to Indias participation in the UNO water conference and held that the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens. The Supreme Court also referred to the Narmada Bachao Andolan v. Union of India(2000) 10 SCC 664, judgment where Kirpal, J. observed that “Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India....and The right to healthy environment and to sustainable development are fundamental human rights implicit in the right to “life”.

7. In order to protect the water from pollution the parliament passes a legislation on the request of some states legislative assemblies. This legislation is called the water (Prevention and control of pollution) Act, 1974. The very objective of this Act is only prevention and control of water pollution and the maintaining or restoring of water. It also provides machinery to take appropriate action to achieve the objective of the legislation.

In India, the Right to water has been protected as a fundamental human right by the Indian Supreme Court as part of the Right to Life guaranteed under Article 21 of the Indian constitution. The right to life has been expanded significantly over the last three decades to include the right to health and the right to a clean environment which can include the right to clean drinking water.

If protection of rights mean not only the negative protection of violation of rights, but also positive protection, then I argue that the right to water can be extended not only to mean that people should not be denied access to water but also that in areas where no access to drinking water is provided by the State, the constitutional Right to Life guarantee would impose a duty on the State to positively provide water.

Several of the explicit rights protected by international rights conventions and agreements, specifically those guaranteeing the rights to food, human health and development, cannot be attained or guaranteed without also guaranteeing access to basic clean water. In recent years, more explicit articulations of this view supporting the right to water have been made such as resolution of the UNO passed during the United Nations Water Conference in 1977 as under:

“All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs.”

In India, the constitutional right to access to clean drinking water can be drawn from the right to food, the right to clean environment and the right to health, all of which have been protected under the broad rubric of the Right to Life guaranteed under Article 21 of the constitution. In addition to article 21, Article 39 (b) of the directive principles of state policy (DPSP), which the Constitution declares to be nonjusticiable, recognizes the principleof equal access to the material resources of the community. Article 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 subserve the common good.

Thus it has been established that the Right to safe and clean drinking water is a fundamental right of every individual living in India under Article 21 of the Indian Constitution and its violation which is clearly seen in the case of most of the localities on the catchment of River Kali (East). The State has acted irresponsibly in not taking care of the pollution standards of the river and thus we witness the present situation which is worth a pity, shame.

It is high time to protect the rights of the poverty struck inhabitants of these villagers. Positive action from the masses and the government agencies is what is appealed herein.