Water a Human Right or a Commodity?

This article has been written by Mustafa Chitalwala., a student of Symbiosis Law School, Pune.

Water is a basic amenity which should be accessible to everyone in the world. Since the earth comprises only 2.5% of saline water out of which less than 1% is accessible to the world. Due to the economic development and household consumption, our demand for this freshwater is rising among the increasing number of people, while the world’s water supplies are rapidly declining. One of the key issues of our time is the water scarcity brought on by unsustainable consumption, which leads primarily to acute water scarcity for the rural population of India. Although the government and corporate initiatives are working hard to relieve the people by improving the availability of water and sanitation, they still have a long battle ahead of them. India has the world’s second-largest population and is on the way to overthrow China, and thus, India will need consumption and availability to increase.

The average Indian in rural areas has to travel more than 5-6 kilometre in search of consumable water.  In developing countries, people who lack access to quality water, drink far less, partially because they have to haul the heavy water over a long distance. Water consumption is often less than 5 litres a day of contaminated water for the world’s 884 million people who live more than 1 kilometre away from a water source. Eighty percent of Dharavi’s seven million residents, the largest urban slum in Asia located in Mumbai, do not have access to running water. Even after this tiring journey in search of adequate water, the water available is often contaminated with bacterial and other contaminated pollutants. Every year 3.4 million people, mostly children, across the world die annually from water-borne diseases. Close to 2,17,000 people in India every year are affected by health diseases with excess iron, fluoride, salinity, nitrate, and arsenic in water every. The State acts as the silent killer by its failure to develop and supply water to these people

Every 20 years, the human consumption of water is doubling, faster than the rate of human population growth. By the year 2025, the demand for freshwater is expected to rise to 56% above what currently available water can deliver. Way before COVID-19 was struck The United Nations had called the water shortage “the earth’s curse”. Two-thirds of the world’s population is expected to live in water-stressed areas by 2025 at existing levels of water shortages and pollution. The water-stressed population worldwide is projected to reach about 3.5 billion in the next five years. The human rights of about 45 percent of the population in the world are jeopardised or are likely to be jeopardised soon. The Indian Constitution is the foundation of our human rights. The document represents the public’s rights, laws and regulations on how the State should operate lawfully. The Constitution establishes the number of such rights. However, it comes as a surprise, as the Constitution does not include any basic guarantee on Right to Water.

IS WATER A HUMAN RIGHT IN INDIA?

Water is vital to the life of living beings, including humans, and so having access to safe and sufficient water is an inalienable human right. It has been rightly remarked by Kofi Annan (Former U.N. Secretary-General), “Access to safe water is a fundamental human need and therefore a basic human right”. Therefore, the United Nations have made it primary for all countries to ensure the distribution of water equally amongst all its citizens. The United Nations began to observe the lack of water and made it their mission is to provide water and make it an essential human right. The World Water Rights Day on 20 March, is the date on which Dr Babasaheb Ambedkar in 1927 led the world’s first Satyagraha for water. The World Water Day calls for special legislation setting out the universal Right to water and claims countries to establish water as one of their human rights. Let’s take an example of the Whanganui river in New Zealand. It was granted the same legal rights as a human being and is one of the most revolutionary decisions given.

In India, there is no explicit Right to Water in the Constitution. However, the right to water as a fundamental right was established by the judicial pronouncements and various interpretations of Article 21, which talks about “Right to Life”. This was first proclaimed in the case of Bandhua Mukti Morcha v. Union of India. Justice Kirpal 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 a healthy environment and to sustainable development are fundamental human rights implicit in the right to “life”.  The Indian case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (1981), Where it was appealed that “the right to life requires the right to live with human dignity alongside the basic necessities of life.” Water, which after Air is the most fundamental human survival requirement, was not recognised as a fundamental human right until explicitly.   Water has been implicitly recognised as a constitutional right, which derives from other rights.

As of 2016, only 52 countries across the world have accepted Right to Water as a Fundamental Right.

WHY IS RIGHT TO WATER NOT ACKNOWLEDGED IN THE CONSTITUTION?

In 2010, the United Nations General Assembly issued a landmark resolution asserting water as an independent human right under international law, thereby creating an internationally binding mechanism to pursue the Right to Water. This is seen as a tool to improve access to water for the poor and marginalised.

Although it is clear from the above cases that the judiciary has claimed water as a fundamental right, that right has never been incorporated into the Constitution. The nearest Water had become a constitutional right was when the NDA government was in power in 2002. The National Commission had reviewed the Constitution Recommendation Report, where a new Article 30(d) would be introduced into the Constitution. Article 30(d) would allow for the inclusion of water as a constitutional right. The National commission’s suggestions were the opinions of the judges of the higher courts. However, these recommendations and the reports submitted were never taken into account by the government.

Part of the reason for not acknowledging the Right to Water as an independent right is that once such an explicit acknowledgement is there, it puts a greater responsibility on States to actualise the right. The accountability of the State and Government would increase. This is precisely why struggles and movements all over the world are strongly backing the candid declaration of water as a fundamental right.

However, one should make the government more accountable so that they can live up to their commitment to making water more accessible. The government has taken a deliberate decision and, in accordance with Article 21(A), and later had added Right to Education of children between the age of 6 and 14 years as a Fundamental Right. This later led to an improvement in education for children and provided transparency. This does not only become an acknowledged right but does not allow the judiciary to differ from their pronouncements. The Court’s judgments on the right to water can be changed, for example, the Andhra Pradesh court’s enforcement right to safe drinking water as a fundamental right. It also contradicts the statement that although the State has an obligation to provide all its citizens with drinking water, ‘the limited availability of water resources as well as financial resources cannot be ignored.’ The judge, however, thought that it would only be ‘utopian’ to give such a direction.

THE COMMODIFICATION OF WATER

The commodification of water is the process of transforming fresh public water into a tradable commodity known as an economic good. However, should the private sector be involved in transforming water into a privatised sector? Every coin has two sides to it, but one needs to find the balance between both.

The more we are calling for water privatisation, the more the role of government is neglected in this field. In this difficulty, we are not addressing the critical issue of the need for better governance. Water privatisation is unjustified, unwarranted and unnecessary. We need a government which is democratic, participatory and transparent for their work. The private sectors are driven by one thing: maximising profit. The position of these private actors would lead not only to the depletion of resources, but one will have to pay for the purchase of these natural resources. The brunt of this will be faced by the poor with India facing such poverty and hunger. When Privatisation is proposed as a solution, it comes with a promise that it will encourage competition and that it will benefit the consumer. Looking at the electricity sector, this promise has not been fulfilled. Not only is the electricity sector a monopoly, but it also refuses to submit to public audit. One can take the example of the current Delhi Government, which has not only kept its promise by providing free water to its lowest consumer but has also managed to extend its distribution network, thereby reducing losses.

Let’s understand how these Global Companies use all our human resources to increase their profits. The legal fight against soft- drinks Giant Coca-Cola has had unsparing struggles with Kerala Panchayat over the amount of water drawn from the local groundwater. Over here, the government, as well as the private company, is to be blamed for over exploiting the detriment of the resource of the people.  One way in which the company dealt with the situation is by working in accordance with local NPOs to assist in building “check dams” that allow water from monsoon season to be stored for later use. However, according to the former CEO and President of Nestle the world’s largest food producer, Peter Brabeck-Letmathe, corporations have to own the entire world’s water, and you do not have any water unless you pay. So, is water a free and fundamental human right, or should the world’s entire water belong to a big company? Is the poor who cannot afford to pay for these companies going to starve because of a lack of financial resources.

Water is an asset of society and cannot be owned by the government, let alone the private sector. The government is the custodian of water on behalf of the people it represents. Water is the sine qua non (fundamental to exosystemic and human existence) and sui generis (there is no substitute). The water supplies of the planet are under immense pressure. With the Organization for Economic Co-operation and Development forecasting that almost half of the world’s population will live in water-scarce areas by 2030 with climate change, urbanisation and population growth are increasingly concerned with how to provide water for everyone. In order to address the increasing water problem, the solution suggested and promoted by global bodies such as the WTO and the IMF through international agreements such as the GATS is the Privatisation of Water, which in turn contributes to the treatment of water as a product. Nonetheless, the government should preferably have an emphasis on Public-Private Partnerships (PPPs), which are one of the growing types of Privatisation. PPPs provide for a combination of public and private ownership and water and sanitation and infrastructure management. However, one more P should be added to this PPP, that is ‘People-Private -Public Partnership’. To ensure that out of all stakeholders, ‘people’ are on the top. This, as reasoned by the supporters, may not only increase the quantity and quality of water but also increase fiscal benefits. In this way, even People will have a say in the system. There are various types of control in place for the new privatisation schemes.

SOLUTIONS TO THE WATER CRISIS

For living organisms, water is an essential source of life. But both the rich and the Government breach this right to water. This leaves only leave the poor to suffer —the poor who know the effort to get water, use it resourcefully. India being an agrarian State, consumes a lot of groundwater. India is using more groundwater than any other country, the extraction of these natural resources has intensified, leading our aquifers to dry. The overall groundwater use in the 1980s has gone from 30 per cent to almost 60 per cent today. Besides irrigation, giant companies such as Coca-Cola and Nestle are exploiting these water sources. Over here, the State acts as a silent observer. The government can, however, take charge and prevent the exploitation of water and provide the needy with water.

1. Due to the Covid-19, the environment has had time to recover with numerous factories shutting down, and it has given tremendous relief to our water bodies by preventing the massive dumping of waste and pollutants. People do not realise that water plays a significant role in climate change. The Central Pollution Control Board (CIPB) has fixed standards for potability, which makes our Local bodies bound by an obligation to install Sewage Treatment Plants to purify water. These results show that many stretches of rivers in India have failed to meet the standards of what would qualify as consumable water. If 80 per cent of the sickness and disease in human beings are water-related, the implication of such untreated water to the people is unimaginable. This wastewater can preferably be used by creating more Sewage Treatment Plants given that more than 50% of wastewater can be reused for industrial or sanitation use. This will not only clean our water bodies but will also provide us with more consumable water
2. While India is a populous country with a diverse geography and environment, it does not have a comprehensive water policy. There are no clear standards available for the use of groundwater by various industries and states. The policy introduced by the British Government is still in a place where it states that no one can prohibit a person from extracting large amounts of groundwater into their private property. These obsolete and detrimental laws should be repealed with improved and reliable laws.
3. India receives enough of rainwater during the monsoon seasons. However, Rainwater harvesting techniques are not widely used among the masses. Rainwater harvesting should be encouraged in large scale, particularly, in cities where surface runoff of rainwater is very high. Rooftop rainwater can also be used to recharge groundwater by digging percolation pits around the house and filling it with gravels.
4. Decisions and policy-making are often ineffective. Policies are politically driven and represent populist attitudes, lack of regard for long-term implications and a systemic approach. Awareness of water problems is high only in periods of drought and serious scarcity and significant quality depletion, with little attention paid to long-term preventive steps. Examples include the discharge of inadequately treated domestic wastewater and industrial wastewater into water bodies. Water resource management is inefficient when a variety of organisations are involved.
5. Agricultural practices such as planting crops which require less water, setting up irrigation systems without leakage and establishing farm-based water management mechanisms are very significant. It will aid in the conservation of forests and the growth of horticulture. The water source is not geographically standardised. The supply chain must of the water pipes should be connected to distribution points in an appropriate pipeline network. Tax benefits should support projects in water-related infrastructure investments. For economically viable wastewater processing, new technologies should be developed. The government should find sufficient funding available for this reason.

India is not a water deficit country. However, as water management projects are not controlled, there is water stress occasionally in many regions of the country. It is therefore vital to avoid this crisis by building the right technologies and resources to conserve, transform and efficiently use existing water supplies for agriculture, industrial production and human consumption. It will be helpful to conserve water by implementing regulatory measures to prevent the overuse of water and incorporate rewards and punishment to encourage the judicious use of water. In addition, people’s awareness and encouragement on changing their lifestyle, to save water will help the country turn in the future about the water crises. The problem can be handled provided that favourable policies and frameworks are in place.