Ten summers ago, the UNGA adopted a resolution affirming that water and sanitation are fundamental human rights. Recently, the UN Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation indicated that vulnerable individuals require continuous access to sufficient and affordable water to combat COVID-19.
This article will analyze the current lack of access to water in large parts of India and the drawbacks in the current national water policies which can be amended in light of prevailing international laws.
When COVID-19 affected India, in compliance with a Supreme Court order from April 3rd, 2020, the Central Government published an advisory for State governments to ensure safe drinking water during lockdown for all.
This advisory came together with a bundle of rights including, but not limited to, freedom, non-discrimination, basic entitlements, health, education, and equality. This approach is seen as an impetus for the provision of safe drinking water, as it is no longer perceived as a charity, but as a legal entitlement.
Arguably, the global water crisis only exacerbated the COVID-19 pandemic and added further urgency to the fight for the right to water. A recent study by the University of Birmingham has documented that “countries, where people do not have a habit of washing their hands automatically, tend to have much higher coronavirus exposure,” thus making it clear that water has a central role in containing the pandemic. Yet, more than half of the global population lacks access to the means to wash their hands with soap and water, and it is nearly impossible for a vast number of people who reside in urban slums and rural areas. The majority of Indian households are mostly reliant on public water sources including public taps and wells. Sanitation is also mostly shared and communities lack reliable water supplies.
Are the present National Laws sufficient?
The responsibilities and obligations of States resulting from the human right to water can be classified as “internal” obligations, i.e. which the State has towards its inhabitants. Therefore, the central and state governments are required, in keeping with the Directive Principles of State Policy under Article 39(b) of the Indian Constitution, to direct their efforts towards ensuring that the community’s material resources are allocated to better serve the common good.
Most importantly, the Right to Water has been recognized as part and parcel of Article 21 of the Indian Constitution, i.e. Right to Life, the most important fundamental right in India. Nevertheless, there is no national legislation expressly ensuring the right of access to water in India. The proposed legislative structure includes the Draft National Water Framework Bill (2016) (DNWF) and the National Water Policy (2012) (NWP), but these laws and model regulations do not explicitly stipulate the substantive right of access to water.
The NWP does not mention the Right to Water for sanitation and drinking, hence casting no corresponding duty on the government to provide for it. But article 14(2) of CEDAW gives rights to women, and article 24 of the CRC gives rights to children, to access clean water, and India, being a member of the UN, is bound to enforce these.
Despite its evolving nature and aim to enable mechanisms for equitable resource allocation, these policies have not been able to realize some of the most significant guidelines for on-the-ground action. The main reason behind this is that access to water is not directly monitored and regulated by the central government, instead, it comes under the jurisdiction of each state government.
To function through programs and systems, a cadre of qualified para-hydrogeologists with specific roles and accountabilities must be established. Article 10 of the United Nations Convention on the Non-Navigational Use of International Watercourses (1997) also covers fundamental human needs. It stipulates that, in the event of a dispute between the uses of water in an international watercourse, extra consideration shall be paid to the specifications of essential human needs.
The DNWF, although being a step in the right direction by helping India implement the “Right to Water”, is not flawless. For instance, it has diluted the quality standard for provisions concerning drinking water, by so doing reducing its much-needed monitoring.
The only aspect in which the DNWF is prescriptive at the national level is in its requirement that a minimum amount of life-giving water must be the right of every Indian. This is in line with the decision of the apex court in M.C. Mehta v Kamalnath (1997) wherein the court ruled that the State is not only bound to regulate water supply but should also help realize the right to healthy water and prevent health hazards.
This dictum agrees with the CESCR, which described the right to water as one of the most important conditions for life. It also suggested that states are expected to pay careful consideration to individuals who have trouble obtaining this right while taking action to ensure that impoverished urban communities have access to well-managed water facilities, upholding the CEDAW, the CRC, and Article 28 (2a) of the Convention on the Rights of Persons with disabilities.
Article 38 (1) (b) of the ICJ Statute defines Customary International Law as “evidence of a general practice accepted by Law”. Apart from being a part of a lot of International Treaties, the right to water has made its way into the National Laws and Constitutions as well.
Let’s take a quick look at the laws from other countries on the subject of the right to water.
The following nations include an explicit reference to the human right to water in their constitutions: Bolivia, Ecuador, Kenya, Niger, Nicaragua, South Africa, Slovenia, Uganda, and Uruguay.
Clean water does not form part of the Constitution in the United States. Neither does the Bill of Rights provide any reference to it.
The United Kingdom and Australia acknowledge the right to water and sanitation as components of the right to an acceptable standard of life under Article 11 of the Universal Treaty on Economic, Social, and Cultural Rights.
In December 2013, the federal government of Brazil adopted a National Sanitation Plan aimed at achieving universal access to drinking water by 2023.
However, the determination of this right as a part of customary international law is not free of debate, as the existence of state practice is still questioned. Some authors argue that its mere presence in national law, along with international instruments, is sufficient to give it a customary status. Nonetheless, some elements of state practice along with opinio juris are evolving into a customary international law for the right to water.
In sum, the appropriate emergency procedures in response to India’s wide-spread lack of access to water are yet to be implemented, arguably due to the absence of mechanisms converting policy into practice on the field.
As for the global scenario, the World Resources Institute estimates it would cost just 1% of global GDP to invest in the infrastructure required to provide clean water for all by 2030, although some would argue this is a distant dream.
