People kill each other over diamonds; countries go to war over oil. But the world’s most expensive commodities are worth nothing in the absence of water. Fresh water is essential for life, with no substitute. Although mostly unpriced, it is the most common, readily and freely, available substance on earth. From childhood, we have heard that every drop of water is precious and water is important in our life but how many of us are really aware that even access to clean water is a fundamental right[1]? There is a tussle between the states for water sharing; innumerable cases[2]are there in the court of law, claiming right to water. If we trace the historical origin, we will find that the laws of Manu within this tradition provide indications of the water law of the time. Water was considered indivisible in the ancient time. Though not directly associated but earlier the rigorous punishment was termed asKalapanikiSaja. Those who could were obligated to develop water works for the benefit of others. Kings should protect public waters and collect fees for crossing waters diversion or obstruction of waters was discouraged and the laws imposed a system of social reprimands and punishments for those who polluted the water or who stole or diverted destruction of embankments was illegal. Even at this time, Jainism and Buddhism were born as counter religious forces to promote conservation of natural resources. Mahavir Jain and Gautama Buddha, who lived in about the sixth Century BCE, promoted right conduct and belief, and respect for fellow creatures and water was considered to be of utmost importance in both the religion. The Scientist have established that water filter system of Jains contributed to a great extent for their god health. This system is a symbol of health and modern civilization. With the passage of time society was put into the transition and Britishers started regulation the resources through laws. British colonial water law had two main strands. First, control over water and rights to water were regulated through the progressive introduction of common law principles, emphasizing the rights of landowners to access water. For surface waters, riparian rights allow a landowner the right to take a reasonable portion of the flow of a watercourse. They started framing water laws under which one of the most important enactments was the Northern India Canal and Drainage Act (1873), which regulated irrigation, navigation and drainage and a division of responsibilities between the centre and the regions/states with regard to water in colonial era. The shift from colonial regime to post-colonial saw overwhelming change in the water laws.

The existing legal framework concerning water is complemented by a human rights dimension. While the Constitution does not specifically recognize a fundamental right to water, decisions of courts deem such a right to be implied in Article 21 of Indian Constitution. To what extent can this right be enforceable, and is it dependent on State resources? Do water providing agencies have any obligations to citizens before disconnection of water supply? And does the state have a duty to provide basic water supply even if it does not have sufficient resources? The answer to the question can be well explained in the statement –  In addition to article 21, Article 39 (b) of the directive principles of state policy (DPSP), which the Constitution declares to be non-justiciable, recognizes the principle of equal access to the material resources of the community an water. Article 39 (b) mandates that ‘the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good.’ The readers have the right to giggle as i am stating something which is not justiciable in the court of law but let us have a look on what is the stance of Supreme court of India on right to water as a fundamental right. The right to water can be read as being implied in the recognition of the right to a clean environment. In Subhash Kumar v. State of Bihar, the Supreme Court recognised that the right to life ‘includes the right of enjoyment of pollution free water and air for full enjoyment of life’. In the Sardar Sarovar case, the Supreme Court went further and directly derived the right to water from Article 21. It stated that “water is the basic need for the survival of the human beings and is part of right of life and human rights as enshrined in Article 21 of the Constitution of India’. While the recognition of a fundamental right to water by the courts is unequivocal, its implementation through policies and acts is not as advanced. Water law has been continuously evolving. Yet, the evolution witnessed over the first four decades after independence must be distinguished from recent and ongoing trends. While until the 1970s, water law can be seen as a field growing organically around issues and principles that were largely well settled, the past couple of decades have witnessed the beginning of a fundamental shake-up of water law. This is taking the form of reforms, which are changing and will change existing water law as well as expand the scope of regulation.

We have seen that in every era water was considered very important then be it religious codes, customs, legislation or the supreme law of the land; efforts were made to conserve the water. We have laws and we have judicial system to ensure the implementation of those laws but still the problem water scarcity and dirty water is as it is.

Despite the existence of an extensive legal and jurisprudential framework, the Indian legal system has remained ineffective in ensuring a cohesive framework for the management of water in the country. While Article 262 of the Constitution bars the jurisdiction of the Supreme Court in entertaining interstate water disputes, the repeated intrusion of the apex court has further complicated the dispute settlement process, leading to failure or delay in outcomes.

There is no denial of the fact that water is both slave and master to people. We use water in our homes for cleaning, cooking, bathing and carrying away wastes. We use water to irrigate dry farmlands so we can grow more food. Our factories use more water than any other mineral. We use the water in rushing rivers and thundering waterfalls to produce electricity. It is an essential building block of our life. It not only suffices human need but also plays a critical role in the fulfillment of all other auxiliary activities like technological advancement etc. and therefore, on this auspicious occasion of International Water day, I take this opportunity to call upon the people to inspire others towards the sustainable use of freely available commodity i.e. water and let us make a difference by making our own footprint through our actions so that the alleged future challenges of water shall not turn into a reality.

Author: Jinendra Parakh, Co-Founder and Executive Editor of Analysis

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End notes:-

[1]See.  Subhash Kumar v. State of Bihar AIR 1991 SC 420

[2] See. Networking of Rivers, In Re v. , (2012) 4 SCC 51 ; Environmental & Consumer Protection Foundation v. Delhi Administration (2012) 10 SCC 197; State of Tamil Nadu v. State of Kerala AIR 2014 SC 2407; Ichchapur Industrial Cooperative Society Ltd. v. Competent Authority, Oil & Natural Gas Commission and Anr. (1997) 2 SCC 42