Water is the key to health and also wealth

While there is much talk from the Opposition of a wealth survey, caste survey and redistribution of wealth, where is the clamour for a water survey, and the fundamental right to the community resource of water?

The water crisis overtakes everything else. Just look at Delhi’s situation. Taps running dry. Citizens struggling for a drop of water, and not just in the Capital. Across India, and the globe, water is the liquid gold.

The new government must necessarily put water on the top of its priorities.

Here, Article 39 (b) of the Indian Constitution, and the distribution of wealth which has been a talking point lately, comes into play. Why has this hitherto relatively unknown (but vital) constitutional provision, catapulted into the news?

What does Article 39 (b), a Directive Principle of State Policy, say?

The provision mandates that the “ownership and control of the material resources of the community are so distributed as best to subserve the common good.”

The inevitable questions arise: Do the words “material resources” include private wealth? Can the State take over anything and everything?

The Supreme Court (SC) is currently seized of the matter, and a nine-judge Constitution Bench has reserved judgment on the interpretation of this constitutional provision.

Nevertheless, before diving into the water concerns, let us fleetingly look at whether this Directive Principle affects individual rights. To understand this issue, it is essential to read the phrase: “…material resources of the community….”. The Article does not talk of the assets of every citizen; it says ‘resources of the ‘community’. A community is a group of people. Therefore, on the face of it, Article 39 (b) does not affect private rights.

However, the matter will be resolved, when the Constitution Bench gives its verdict.

Meanwhile, as one who has always found Article 39 (b) a very powerful welfare provision, I feel we must discuss this mandate; albeit from a different perspective; that of the citizen’s absolute right to the community resource of water; and the State’s duty in this regard.

The SC has consistently reiterated the critical importance of the fundamental right to the public resource of water; recognised the right to water as part of the right to life under Article 21. Article 39 (b) authorizes the State to administer and distribute the resources for the common good.

A community has the right to essential material and natural resources such as water, soil, minerals, oil and gas. Such resources belong to all, and cannot become the private property of a few. Water is one of the most important public resources, directly affecting the Right to Life. Access to clean water is crucial for sustaining public health.

India’s water crisis is well-documented. We have about 18% of the world’s population, but only 4% of global water resources; 163 million Indians lack access to safe drinking water. [SIWI, 2018]. Inadequate water supplies and contaminated water radically impact human health.

The challenges are many. Industrial waste and agricultural run-off contaminate surface water sources. Groundwater depletion, climate change, erratic rainfall exacerbates the crisis. Rural areas are more vulnerable. There is a constant struggle to access potable water. Women specially bear the brunt; walking miles in the hot sun, carrying buckets, waiting in long queues.

Here it must be said that this piece is not about the methodology required to tackle the water crisis, but on the State’s legal responsibility to ensure that public resources, specifically water, is distributed to every single citizen.

Articles 39(b) and 21 of the Indian Constitution; together with the Public Trust Doctrine, empowers the State to manage, control and provide water to all its citizens.

Article 21 guarantees the right to life. The Public Trust Doctrine rules that the State is the custodian of all natural resources (such as water, air, forests), and has a legal obligation to manage these reserves for the benefit of the general public. In a series of judgments, the apex court has affirmed that the Public Trust Doctrine is the law of the land; that the Doctrine is in consonance with Articles 21and 39(b) of the Constitution. The basic principle of the Public Trust Doctrine, is that the “State as a Trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.” [MC Mehta, (1997)1SCC388]

The law on the right to water, is, therefore, clear. The State is legally prohibited from using and polluting this public resource for private and public commercial purposes, at the cost of the citizen’s right to water.

It must be noted that there is a significant difference between the right to water (for living) and water rights (economic uses). The UNICEF India Water Report 2013 affirms that there can be no two views on this point:

“Between a fundamental right (life-right) and a non-fundamental use-right, the former must always take precedence over the latter; and the exercise of economic rights by some must not be allowed to jeopardise the fundamental rights of others.”

The late justice VR Krishna Iyer echoes the essence of this issue:

“Water is never a private asset and ever a universal property. Every person born on the planet has thus an imperative claim to a just quantum of people’s share of social uses of water.”

But do governments flow with the decrees? Unfortunately, in the seven decades since Independence, successive governments have paid scarce heed to these essential legal obligations; uncaring that millions of Indians (particularly the poor) do not have access to clean and safe water; a basic human right. On the other hand, there is the 2019 “Har Ghar Jal” scheme under the Jal Jeevan Mission (JJM); a government initiative to provide clean tap water to every rural household across India.

Nevertheless, there is the usual perceived roadblocks that central governments cite when it comes to a pan-India solution to the water crisis. The foremost barrier that water is a state subject under the Constitution, and the Centre’s hands are tied in tackling the issue head on. This is indeed a lame excuse. Governments cannot in any way, wash their hands off their central commitment of providing potable water to all citizens.

Volumes are written on water resources and management, but where is the talk about water as a public resource and a fundamental right?

It is imperative therefore, that the State fulfills its duty.

Suffice to say, water is pivotal to growth. Water scarcity and mismanagement affects millions, and adversely impacts a nation’s all-round development.

The United Nations puts this in proper perspective: “Water is a limited natural resource and a public good, fundamental for life and health. The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights". [The UNGC- No. 15, November 2002]

Therefore, when the Opposition talks of surveys on wealth, caste and redistribution, it must remember that the greatest wealth is water.

The sad truth is that over the decades, there has been no great rush to distribute the valuable asset of water to all citizens, specially to those in the villages.

However, the Jal Jeevan Mission is spearheading the crusade to provide tap water to all rural homes. As on date, 75% of rural households are provided with piped water connections. Nonetheless, we have to be constantly on guard on the water front. Without sustainable water practices, development is a pipe dream. The new government must perforce put waternomics at the top of its agenda.

This article is authored by Mina Anand, lawyer and writer, Bengaluru.