LEGAL AND SOCIAL DIMENSIONS OF WATER RIGHTS IN INDIA

1. INTRODUCTION

• Why This Topic Matters

Water is one of the most essential elements required for the human survival. Yet, many people throughout the world face scarcity, contamination and unequal access to water. The industrial pollution, climate change, and over-extraction have resulted in the violation of the water rights of the people. Water is no longer just an environmental issue but a matter of governance, justice and human rights.

• Know Your Rights

The Supreme Court has held the “Right to Water” as the part and parcel of the Right to Life, which is a Fundamental Right. This implies every citizen of India should get access to clean drinking water. 

• An Introduction to Water Rights

Water Rights in India are not limited to using water but it encompasses the right of the individual to equitable distribution of the water. It includes the protection of the water resources, providing the safe, pollution free water to all the citizens.  

2. CONSTITUTIONAL BASIS/ LEGAL BACKGROUND

• What the Law Says

Although there is no express mention of the “Right to Water” under the Indian Constitution but the Indian Supreme Court has widened the ambit of Article 21 to include the Water Rights in it. The subject matter of water is dealt in both List I and List II of Schedule 7 of the Indian Constitution. This means that both the Central Government and the State Government can make laws dealing with ‘Water’.

• Legal Provisions You Should Know

1. Article 21 – Fundamental Right: Right to life includes Right to clean and safe water
2. Article 39(b) – DPSP: The State is duty bound to distribute the material resources, including water resources, for the common good.
3. Article 48A – DPSP: Duty of the State to protect and improve the environment.
4. Article 51A (g)  – Fundamental Duty: Duty of the citizens to protect and improve the natural environment including the lakes and rivers. 

• Relevant Sections and Articles

1. The Easements Act, 1882: Provides for the private use of the groundwater beneath the land of the owner. 
2. The Environment Protection Act, 1986 – Provides for the laws that helps in protecting the environment 
3. The Water (Prevention and Control of Pollution) Act, 1974 – It aims to prevent and control water pollution in India. It also maintains the wholesomeness of water bodies.
4. State Specific Laws: Almost every State in India has their state specific laws to protect the water resources. This is because the State Government has the primary jurisdiction over the water laws. Some of the examples of these States are – Andhra Pradesh, Haryana, Punjab, Goa, West Bengal etc. 

3. KEY RIGHTS

• Your Legal Rights Explained 

Under the Water Rights, you have the following Rights:

1. Right to safe drinking water.
2. Right against the water pollution.
3. Right to equitable access of water.
4. Right to livelihood from water.
5. Right to fisheries.
6. Right to Irrigation.

• Key Provisions At Glance

1. Right to Water is covered under Article 21.
2. You have the duty to protect and improve the water resources
3. You can be held liable for polluting the water bodies
4. Water is a public resource which is owned by the State in the interest of the public good.

• 5 Things You Must Know

1. Right to Water is the Fundamental Right of every person
2. The water resources can be regulated by both the Centre and State Governments.
3. You can, at any time, raise your voice against the water pollution.
4. Groundwater over-extraction is prohibited.
5. Courts can intervene in the use of water rights through PILs.

4. REAL LIFE APPLICATIONS

• How This Affects You 

With the Water Rights comes the Right to access water resources, right to clean drinking water, right to irrigation, protection from the water pollution, and fair sharing of water between the States.

• When Can You Use The Right

The right to water can be exercised in the following scenarios: 

1. If you do not have access to water
2. If your Water supply is contaminated.
3. If the nearby industries discharge harmful substances into the water bodies.
4. If the nearby groundwater is over-exploited.

• Examples from Real Life

1. Plachimada v. Coca-Cola (Kerala): In early 2000s, the local communities of Kerala protested against the over-extraction of the groundwater in Plachimada, Kerala. The water was severely contaminated and the wells ran dry. The Plant was then permanently shut down by the Court in 2004.
2. Chennai Water Crisis: Chennai have faced “Day Zero”, whereby the city faced severe water shortage. This crisis pointed towards the infrastructural failure, poor planning and water erosion. 
3. Yamuna Pollution Case: The industrial and the sewage discharge in the Yamuna polluted the water of Yamuna River. Consequently, major serious public health issues and environment concerns arose.

5. LEGAL REMEDIES

• What to Do If Your Right is Violated

In case someone violates you Water Rights, you may move to Supreme Court under Article 32 or to the High Court under Article 226. Other than this, you may also approach the National Green Tribunals (NGT) or the Pollution Control Boards.

• How to File a Complaint

1. Collect the evidences of the pollution and degradation of the water resources.
2. File complaint to the Pollution Control Board.
3. Approach the National Green Tribunals (NGT).
4. If none of these work, you can directly approach the High Court or the Supreme Court.

• Where to Go For Help

1. Supreme Court
2. High Court 
3. National Green Tribunal 
4. Pollution Control Board
5. Lok Adalats (for local disputes)

6. LANDMARK JUDGMENTS

• M.C. Mehta v. Union of India (1988) – (Ganga Pollution Case) – In this case, the major issue was that the leather tanneries in Kanpur polluted the Ganga River by discharging the untreated substances in it. The Supreme Court referred to Articles 48A and 51A of the Constitution of India and the Water (Prevention and Control of Pollution) Act, 1974. It was held that the industries must install the treatment plants before discharging the waste in the water. It was further ordered that the polluting tanneries be closed as no industry has the right to exist if it cannot prevent the environmental harm.
• Vellore Citizens Welfare Forum v. Union of India (1996) – (Palar River Pollution Case) – In this case, the major issue of severe water pollution in the Palar River of Tamil Nadu was addressed. Palar River was the source of drinking water for the residents and it was contaminated. Moreover, due to this pollution 35,000 hectares of land was rendered unfit for cultivation. It was held by the Supreme Court that the industrial growth cannot neglect the health of public at large.
• Samit Mehta v. Union of India (2016) – In this case, an environmentalist challenged the pollution caused by the sinking of a ship. That ship was carrying coal, fuel oil, and diesel. As the ship sank, it resulted in the severe damage of the marine life present in the water. So, the respondent was held to be negligent by the Tribunal.The “Polluter Pays” principle was applied in this case. The tribunal further reiterated that the Right to clean environment is a part of Article 21. The ship was found to be unseaworthy and its sinking was treated equivalent to the illegal dumping. The environment compensation of Rs. 100 Crores was imposed on the respondents.

7. CHALLENGES

• Common Misunderstandings

Many people are of the perception that the private use of the water is their absolute right. For this reason, they have the absolute right to use the water as they want. But, it is not the case. Right to use water is not an absolute right but is subject to some reasonable restrictions like public health, public policy, environment concerns etc.

• Loopholes/ Area of Concern

1. Poor regulation of groundwater
2. Poor infrastructure 
3. Privatization of the water resources
4. Weak enforcement of pollution laws
5. Overlapping of the Centre and State’ s power to regulate the water resources.

8. CONCLUSION

• Know The Law, Use The Law

Every Indian citizen has the Fundamental Right to access the clean and adequate water under the Right to Life. But, this right is not absolute but is subject to certain reasonable restrictions. Moreover, the citizens also have the Fundamental Duty under which they are obliged to protect and improve the water resources.

• Final Thoughts

Water Right is not just a Fundamental Right but also a moral and social obligation. The ultimate efforts should be made to balance the development with protecting the environment.

• Stay Informed, Stay Empowered

As a responsible citizen of India, we need to protect our right to water. For that matter, we must first be aware about our rights, raise our voices against the violation of such rights and demand the accountability from the industries and State.

9. REFERENCES

• The Constitution of India.
• The Easements Act, 1882
• The Environment Protection Act, 1986
• The Water (Prevention and Control of Pollution) Act, 1974
• M.C. Mehta v. Union of India (1988) SC 1037
• Vellore Citizens Welfare Forum v. Union of India AIR 1996, SC 2715
• Samit Mehta v. Union of India MANU/GT/0104/2016

Written by Jagriti Handa, student of Panjab University Swami Sarvanand Giri Regional Center, Hoshiarpur, Punjab, and an intern under Legal Vidhiya. 

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Karan Chhetri

‘Social Media Head’ and ‘Case Analyst’ of Legal Vidhiya.