Mohan V Katarki

| @mohankatarki | December 10,2019

One of the critical issues of our times is the scarcity of water brought on by overconsumption and lifetime issues, this has led to an acute shortage of drinking water to all humans beings particularly in the third world countries

In his speech delivered today on Human Rights Day at Christ University, Bangalore, senior advocate Mohan Katarki, discusses the rights under International law to portable drinking water and the role of the courts in India in guaranteeing the fundamental right to drinking water.

 

[dropcap]F[/dropcap]RESHWATER is undoubtedly a precious natural resource but, it constitutes only 3% of the overall water available on the Earth. The rest of the water is in Sea as saltwater.  Out of this 3% of freshwater, actually, 1% is available since the remaining 1/3rd lies under the surface as groundwater and 1/3RD is frozen in glaciers.  1% of available freshwater is partly polluted water and that too, it is spread over hundreds of basins on the Earth. Out of these, 261 basins are a transboundary basin or international basins. The prominent among them are Ganges, Brahmaputra, Indus, Mekong, Jordon, Euphrates-Tigris, Nile, Danube, Seine, Amazon, Colorado and the Rio Grande.

 

Photo: Senior Advocate Mohan V Katarki delivering his lecture on Human Rights Day at Christ University, Bangalore

The common law juridically addressed water rights as an incident of property inland. If categorisation is permissible for analysis in law, the water rights fall in four categories. The powers of State in regulating the use, control and distribution of waterfalls under natural resources law. The protection of the environment while recognising the right to develop usable waterfalls under environmental law. The protection of the purity of water from polluters and rights of the riparian owner is known as riparian law touching tort. In the emerging concept of Human Right, the water is recognised as an incident of health and life.

 

Water – Linked to health and life 

 

Water is directly linked to the sustenance of any biological life. One may live without food for three weeks, but he cannot live without water for more than one week. In fact, about 55 to 60 per cent of the human body consists of water. All water doesn’t protect health and life. What is available ought to be available as safe and clean water conforming to the standards. Water in poor quality or inadequate in quantity is the cause for 80% of the diseases and sickness. 20% of the deaths are attributed to water-related diseases. Secondly, water is not available equally to all. Discrimination in the availability of water is rampant. The annual per capita water use in African countries like Nigeria or Ethiopia is as low as 50 cubic metres. But, in western nations like the USA, it is as high as 1700 cubic metres. The per capita use in India is about 600 cubic metres. It is said that about 76 million or 7.6 crore Indians don’t have safe water to drink. In some places in Rajasthan, women walk 5 to 6 km to fetch drinking water. Worldwide and speaking generally, about 0.5 billion suffer from a serious shortage of water, about 1 billion people have no access to water and about 2.5 billion have insufficient access to water. The water-stressed population worldwide is projected to reach about 3.5 billion in the next 5 years. If these estimates are true, the human rights of about 45 per cent of the population of the world are jeopardised or are likely to be jeopardised soon. The State acts as the silent killer by its failure to develop and supply water to people.

 

Water as a Human Right and Claim

 

Before going into human right to water, let me address what is meant by Human rights as claims against the State. Undoubtedly, all rights in relation to the body, mind and property are not human rights. Only some of the rights in relation to the body, mind and property are considered as a human right. Again, all human rights are not claims against the State or its agencies. The human rights touching personal liberty are not a claim against the State. It is a freedom which State must protect by its non-intervention or by intervention in accordance with due process or rule of law. However, the socio-economic human rights stand on a different footing. They are indeed claims against the State. These socio-economic human rights call for the positive intervention of State for their realisation.

The right-based theory is preceded by the politics of welfarism. The modern State cannot ignore the welfare of its people. Undoubtedly, welfarism dictates the State to provide basic needs of life. Earlier, welfarism was considered the privilege of the State. It was thought that the State may provide food or water but, it cannot be mandated or claimed against the State. It was treated as State largess. A major shift took place in mid-1990. The UN in 1997 decided to anchor development plans, programs and policies into human rights for achieving transparency and accountability and more importantly, judicial enforceability to bind the State. In this background, the human right to water has emerged belatedly.

The UN Declaration of Human Rights of 1949 which is a non-binding resolution and ICESC which is a binding instrument did not directly or expressly deal with the right to water. The human right to water is one of the important facets of socio-economic right. But, why was it not expressly included in the International Covenant on Economic, Social and Cultural Rights (ICESC) or any other UN Conventions? It was probably not considered then, as the water was not a stressed resource. However, let’s not ignore that the right to water is implicit in ICESC in various articles. It is a part of the right to an adequate standard of life in Art 11(1), right to health in Art 12 and right to life in Art 6. Finally, on the resolution introduced by Bolivia, the UN General Assembly in 2010 by record vote of 122 (resolution 64/292) explicitly “declared” that the safe and clean drinking water and sanitation as a human right.  India voted for the resolution. Some States remained absent. The UN didn’t create a right. It merely declared the pre-existing right. The declaration as a human right is limited to the safe and clean water for drinking and sanitation. But not all water rights.

 

Photo: Panelists during the Human Rights Day lecture series at Christ University, Bangalore

The constitutions of several States (nations) do recognise the right to water as a basic right or fundamental right coupled by claim over the State. The Indian Supreme Court has recognised the right to drinking water as an enforceable constitutional right under Art 21 in several cases. The constitution of South Africa is expressly clear in this regard. Sec 27 states as,

“Sec 27. Health care, food, water and social security

(1)   Everyone has the right to have access to –

(a)   health care services, including reproductive health care;

(b)   sufficient food and water; and

(c)   social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.

(2)   The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights. 

(3)   No one may be refused emergency medical treatment”.

 (Emphasis supplied)

As a claim against the State, what is the extent of the State’s obligation in ensuring safe and clean water for drinking and sanitation? The human right to safe and clean water doesn’t impose an absolute obligation on the State to implement the measures to realise the right. It imposes an obligation to take steps for the progressive realisation of the right. This is so with any other socioeconomic right as clarified in Art 2(1) of ICESC. However, a minimum core approach has gained acceptability in recent times obliging a State to undertake steps to realise the right at least to the minimum extent. On this basis, the State must take steps for providing or making available the minimum quantity of safe and clean water required for drinking and sanitation. A human being needs about 4 to 5 litres per day of water daily for sustaining his life. He may need another 15 litres per day for sanitation and domestic chorus. Thus, about 20 litres per day is the quantity required as a minimum. There are several schemes of States and Centre in India to ensure water to people. Piped water supply in rural areas has been taken vigorously by Panchayats. The Swatch Bharat Scheme (Clean India Scheme) introduced in 2014 has come as an important program in ensuring water for sanitation. Secondly, water must conform to the purity standards. Water which has been polluted is not water that can be consumed. The Central Pollution Control Board (CIPB) has fixed standards for potability. The local bodies are under an obligation to install Sewage Treatment Plants to purify the water. The CPCB has published the publication titled “River Stretches for Restoration of Water Quality” in 2015. The results of the monitoring of river stretches in India are analysed and prioritized. These results show that many stretches of rivers in India have failed to meet the standards. If 80 per cent of the sickness and disease in human beings are water-related, the implication of such people drinking polluted or untreated water is unimaginable.

 

Role of Public Advocacy

 

The role of public advocacy in protecting, preventing and addressing the violations of human right to water is essential. The students are the real resources for human rights advocacy. The turf where the law students have a role to play is public advocacy. Students should take up activities by going around the towns and villages to find out who is not getting minimum safe and clean water and redress their grievances. If the plans, programs and policies of the Government are not implemented by local authorities, the same requires to be redressed by approaching the High Court or the Supreme Court. The NGOs have played a stellar role in protecting personal liberties. Their role in protecting the rights of tribals in the forest is significant. I hope that  NGOs will expand into working on creating a movement for safe and clear water.

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