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Laasya Priya Ponnada
LL.M. First Year Student
Environmental Justice : Right To Water
Justice is a term which is different from Law. Even though both the words are used in general sense they are not identical to define. Law is specific but justice depends upon the attitude of persons. Justice may change from person to person but law is static. Now in this article I would like to discuss about the Environmental Justice laying special emphasis on various national and international provisions relating to the enforcement of right to water. Both the Law and Justice provide crucial role for the enforcement of right to water as a human as well as fundamental right. Justice can be defined in many ways depending upon the people to some it is equality, to some people it is right, to some people it is fairness, to some people it is ethics or morality, to some it is mere procedure established by law. The Encyclopedia Brittanica defines “Justice as the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments but law implies imposition by a sovereign authority and the obligation of obedience on the part of all subject to that authority”. Law provides the necessary foundation for the protection of an individual’s human rights. It is also the reference of last resort – providing a basis for enforcement and redress in the case of abuse. Depending upon the above discussion it is clearly evident that justice has broader scope compared to law. Hence there is a need to discuss the concept of right to water from the view of justice rather than law.
In most of the treaties and conventions right to water is specially recognized on the humanitarian basis in addition to individualistic approach.
All the four Geneva Conventions of 1949 protect civilians and combatants during armed conflict. The fundamental principal is that the individual should not be indiscriminately affected by conflict, it seeks to maintain individual dignity and thus confirms the supply of basic needs, including water, during times of war. The Additional Protocols define that Civilians or Civilian Objects shall not be targets for attack, thus elements essential for human survival are prohibited from attack, including water facilities. These Conventions entitles prisoners of water access to water and sanitation in all the situations of armed conflict and occupation. During the time of war also right to water shall not be suspended as it is basic need for all human beings. These conventions are universally ratified implies all the States are legally binding upon these provisions.
International Covenant on Civil and political right, 1966 does not specifically defined the right to water but indirectly it is applicable by drawing interpretation from the right to life. In this Convention the right to water can be deduced from Article 11 the right to an adequate standard of living, and Article 12, the right to health. Virtually all States that have ratified the International Covenant on Economic, Social and Cultural Rights have acknowledged in political declarations that the right to an adequate standard of living necessarily includes water and sanitation. Hence they need to take adoptive measures through legislations for the enforcement of right to water.
In the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 lays specific focus on the rights of women, including the right to non discrimination and the right to participation. This is the first Convention which is explicitly mentioned right to water and sanitation in an international legally binding convention: Article 14.2(h) states that women have the right to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply.
The Convention on the Rights of the Child, 1989 is the second convention which explicitly refers to the right to water. This convention incorporates specific civil and political and economic, cultural and social rights of the child. It specifically focuses upon giving children a voice and representation. Article 24 of the Convention gives the child the right to health, placing the obligation upon the State to implement this right, especially through appropriate measures to combat disease and malnutrition, through the provision of adequate nutritious food and clean drinking water. The Committee on the Rights of the Child has repeatedly clarified that the entitlement to an adequate standard of living (Article 27) includes access to clean drinking water and latrines.
The Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and Lakes, 1999 does not explicitly defined right to water but it is implicitly confirmed in the Protocol on Water and Health. The convention is intended to strengthen national measure for the protection and ecologically sound management of water resources. Article 5 states that ‘equitable access to water, adequate in terms both of quantity and quality, should be provided for all members of the population’.
The 2002 General Comment No. 15 interprets the Convention on Economic, Social and Cultural Rights confirming the right to water in international law. ‘the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’. Although it is not legally binding, and cannot create new laws or State obligations, the Committee is a body with the authority to interpret the provisions, clarifying content, and confirming issues that may have been disputed. This Comment provides guidelines for the interpretation of the right to water, framing it within two articles, Article 11, the right to an adequate standard of living, and Article 12, the right to health. The Comment clearly outlines States parties obligations to the right and defines what actions would constitute as a violation. Following the Committee’s clarification of core obligations in the General Comment-3, this General Comment defines 9 core obligations to the right to water. These are the minimum essential levels that States parties are obligated to fulfil regardless of their state of development. The Committee confirms that a number of these are of immediate effect.
Therefore, while the General Comment recognises that full realisation of the right to water is not immediately enforceable for all States, there are immediate steps that the State must take towards the realization.
The General Comment reasserts the essential role of international co-operation and assistance to achieve the full realisation of the right to water. It urges the international community to ensure that the right to water is given due attention in international agreements, specifically noting that agreements concerning trade liberalisation should not inhibit the realisation of the right to water.
The Convention on the Rights of Persons with Disabilities, 2006 is a legally binding treaty. States parties are obligated to fulfill certain rights concerning individuals with disabilities. Article 28, of this Convention defines the right of persons with disabilities to an adequate standard of living, including social protection, obligating States to ensure equal access by persons with disabilities to clean water services.
In 2006 the Human Rights Council passed resolution 2/104 entitled ‘Human Rights and Access to Water’. The Council requested that the Office of the High Commissioner for Human Rights conduct a study upon, “the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments”. Its Report was published in 2007. In the Report, the High Commissioner for Human Rights states that ‘it is now the time to consider access to safe drinking water and sanitation as a human right, defined as the right to equal and non- discriminatory access to a sufficient amount of safe drinking water for personal and domestic uses… to sustain life and health’
On 28 March 2008, the Human Rights Council adopted by consensus Resolution 7/22, appointing an Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation. It directly refers to the explicit obligations regarding access to safe drinking water and sanitation within numerous human rights treaties. Thus the Human Rights Council clearly recognizes that all governments are bound by human rights obligations to ensure access to safe water and sanitation for all. Although it is criticised for not explicitly referring to an inherent right to water, it clearly places the issue of the safe water and sanitation on the Councils agenda.
In September 2008, the Human Rights Council appointed Catarina de Albuquerque as the Independent Expert. She began her mandate on 1 November 2008. She has already conducted a number of country visits, where she examines the state of water and sanitation at the national and local level, identifies good practice, makes recommendations to the government on steps to improve access and to ensure protection of the human rights. She presented her report in 2009. This is the first individual report on the human rights. Following her mandate she communicates with civil society organisations to identify, promote and exchange views on best practices related to access to safe drinking water and sanitation.
The United Nations General Assembly Resolution on the right to water and sanitation, July 2010 formally recognised the right to water and sanitation by supporting the Resolution initiated by Bolivia on 28 July, 2010. The Resolution 64/ 292 acknowledges that clean drinking water and sanitation are integral to the realisation of all human rights. The Resolution also welcomes the important work carried out by the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation and welcomes her presentation of an annual report to the General Assembly. The Resolution also calls upon States and international organisations to provide financial resources, help build capacity and transfer technology to help other countries to provide safe, clean, accessible and affordable drinking water and sanitation for all.
The United Nations Human Rights Council Resolution on Human rights and access to safe drinking water and sanitation September 2010 affirms that the right to water and sanitation are part of existing international law. This body has therefore confirmed that these rights are legally binding upon States. This is an important step, States parties to the International Covenant on social, political and Economic Rights can no longer deny their responsibility to provide safe water and sanitation for all individuals.
Article 21, 48 and 51(g) of the Indian Constitution, 1950 are interpreted by judiciary in India to draw right to water as a special right but specifically no provision is constituted explaining right to water.
In order to protect the water from pollution the Indian parliament passed 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. This Act is silent regarding the planning and management of the underground water and streams. At the same time, it does not deal with prohibition of indiscriminative tapping of underground water, storage of rain water, etc.
In India the architect of the right to water is judiciary. So it is necessary to have a look towards the right to water through judicial perspective. The first landmark decision was in Francis Coralie Mullin Vs. the Administrator, Union Territory of Delhi (1981(2) SCR 516 where the Supreme Court clearly stated that the right to life included the right to live with human dignity. It also made passing observation that it also includes the bare necessaries of life. The right to water is not specifically mentioned.
In 1990 the Kerala High Court recognized the right to water under the Article 21 of the Indian Constitution while delivering the Judgment in Attakayya Tongal Vs. Union of India. In this case, the petitioners claimed that a scheme for pumping up ground water for supplying potable water to the Lakshadweep Islands in the Arabian Sea would upset the fresh water equilibrium, leading to salinity in the available water resources and causing more long-term harm than short-term benefits.
The Kerala High Court, in its judgment, requested deeper investigation and monitoring of the scheme and the judge clearly recognised the right of people to clean water as a right to life enshrined in Article 21, observing that: “…the administrative agency cannot be permitted to function in such a manner as to make inroads into the fundamental right under Art 21. The right to life is much more than a right to animal existence and its attributes are manifold, as life itself. A prioritization of human needs and a new value system has been recognized in these areas. The right to sweet water and the right to free air are attributes of the right to life, for these are the basic elements which sustain life itself.”
Therefore even though most of the Countries lack explicit national legislations on the right to water, it can be enforced through Courts of Law under some of the constitutional rights such as right to life or healthy environment.
In Subhash Kumar VS. 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".
In Narmada Bacho Andolan VS. 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. The court further 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 ensured in Article 21 of the constitutions, and can be served only by providing sources of water where there is none.
In P.R. Subhas chandran VS. Government of A.P. (2001 (5) ALD 771 (DB) the A.P. High court held that "under the constitution, the role of the State to provide every citizen with adequate clean drinking water and to protect water from getting polluted is not only a fundamental directive principle in the governance of the state but is also a penumbral right under Article 21 of the constitution of India". In this case the High Court issued certain directions to the government of A.P for solving the fluorosis Problems in several villages of Nalgonda district. In M.C Mehta VS 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.
In Indian council for enviro-legal Action VS. Union of India, (AIR 1996 SC 1446) the facts are some chemical industries manufactured 'H' acid, which is already banned in western countries. Remedical activities were sought for protection of the men and property of the village where industries were located. They could not completely remove the shidge nor could they store them in a safe place. Sludge percolated into the earth, making the soil reddish and ground water highly polluted. The water in wells became dark in colour and was no longer fit for consumption by human beings or by cattle. The leaves of the trees got burnt and the growth of the trees got stunted; crops were affected. All these facts and materials were brought to the notice of the supreme court through a report prepared by the National Environment Engineering Research Institute (NEERI).
In P.R. Subhas chandran VS. Government of A.P. (2001 (5) ALD 771 (DB) also A.P High Court directed the government of A.P to solve the flourosis problem in several villages of Nalgonda district. In a plethora of judgment thus the judiciary directed the government and its agencies and companies to take necessary steps and if necessary to close down industries in order to protect the environment and to provide pollution free air, water and land to the people which are part and parcel of their right to life guaranteed under Article 21 of the constitution of India.
Thus it is clear that courts have been concerned both with the protection of quantity and quality in dealing with cases with a bearing on the right to water.
Indian National Provisions And Schemes:
There are a number of schemes and implementing machinery to provide for providing safe and accessible drinking water in India. The Rajiv Gandhi National Drinking Water Mission at the institutional level and the Accelerated Rural Water Supply Programme Guidelines at the policy level have greatly contributed to the attention received to access to water issues .The Guidelines specify 40 litres per capita per day as a minimum requirement only for the purpose of drinking and house hold needs . The water must be of adequate quality as well as quantity. However the policies and schemes of the states will become enough only when they can be claimed as a right rather than a privilege which the state grants.
A law on paper is not adequate for the protection of rights. The implementation of laws must be taken into account ground level realities with strategies to deal with them. In addition to ground level social realities there are a number of developments especially occasioned by the liberalization, privatization, globalization which need to be taken into account. At present water is becoming an economic good rather than a social asset because of those social developments. Water resources which are not attached to private property are presumed to belong to the state even if there are private users or communities dependent on the water. The Plachimada Case i.e. Perumatty Gram Panchayat vs. State of Kerala (2004(1) KLT 31) challenged this and now it is pending before the Supreme Court.
To conclude, Water as a human right must be recognized at all levels. Water must be remained as a public good but not economic good. Environmental Justice is achieved only when water, especially for drinking and domestic purpose need must be made available freely as a common good and not as a commodity. All the treaties and conventions which were obliged by the parties must be followed properly. State level legislations must be drafted by looking into the possibilities from the grass root levels. In order maintain underground water levels and to prevent pollution of water from industrial, effluents and aquaculture and also for proper planning and improvement of the water on the earth, the following suggestions are given as directed by Justice Satyabrata Sinha in Rambabu case. Doctrine of public trust shall be extended to the deep underground water. Like other underground natural resources deep underground water shall also be under the full and absolute control of the state. No person shall be allowed to tap underground deep water indiscriminatively for commercial purposes, except for drinking water.
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