Recognising the human right to water

In March 1996, the Government of Maharashtra issued a circular directing that slums which had come into existence after 1 January 1995 should not be supplied with water. This was presumably so that they could not later claim eligibility for regularisation. According to urban activist Sitaram Shelar of YUVA, Mumbai, this has resulted in some 20-25 lakh people in Mumbai being legally denied any water supply. They depend on middlemen and buy water from illicit suppliers at exorbitant rates.

For millions of others, the law does not deny water in an outright manner, but does not even explicitly direct that they are entitled to water. The result is the apathetic manner in which the Government is implementing its responsibility for water supply, almost as if it is doing a favour to the people. Consequently, even for something as fundamental as drinking water, there is little leverage to hold the Government accountable.

Now, a recent event several thousand miles away may mean that this could change.

On 28 July 2010, the General Assembly of the United Nations passed a resolution recognising "the right to safe and clean drinking water and sanitation as a human right". This resolution is likely to have far reaching implications for the access to drinking water and sanitation for millions of people the resolution itself notes with deep concern that 884 million people lack access to safe drinking water and that more than 2.6 billion do not have access to basic sanitation, and that 1.5 million children under 5 years of age die each year as a result of water- and sanitation-related diseases.

The resolution, moved by Boliva - home to some of the most fierce fights over privatisation of water including the historic Water Wars of Cochabamba - and supported by many other countries, was adopted with 122 votes in favour and none against. However, 41 countries abstained.

It may come as a surprise to many that water - which after air is the most fundamental requirement for human survival - was not till now explicitly recognised as a fundamental human right. This is true of the UN system, and it is true of the Indian legal regime. In both, the recognition of water as a basic right has been indirect, flowing from other rights.

In the UN system, water was recognised as critical to the "right of everyone to adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions" and to the "right of everyone to the enjoyment of highest attainable standards of physical and mental health." These two rights are a part of the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly in 1966.

The link between these rights and the right to water was established by the United Nations Committee on Economic, Social and Cultural Rights, a Committee of Experts to monitor the implementation of this treaty, through its General Comments in 1995, 2000, and 2002. The General Comments are the Committee's interpretations of the Covenant. As is clear, while this was a formal recognition of the human right to water, it was recognised as an indirect right.

In India, the position is similar. There is no explicit right to water in the Constitution or the law. The right to water as a fundamental right is established by judicial pronouncements and interpretations, especially of the Article 21, the Right to Life.

Part of the reason for not acknowledging the right to water as an independent right is that once such an explicit acknowledgement is there, it puts a greater responsibility (burden?) on states to actualise the right. The accountability is increased. This is precisely why struggles and movements all over the world are strongly advocating the explicit declaration of water as a fundamental right.

In the UN system, the discussions on the issue of water as a human right were going on in the Human Rights Council (HRC), and many States (countries) were hoping for a agreement to emerge out of these discussions on the right and its implications. Many of these countries felt that the resolution moved by Boliva pre-empted the discussions in the Human Rights Council. They wanted a consensus to emerge on this issue, including clarity on what the implementation of the right would involve.

Indeed, this was the main point raised by those abstaining and even by some of those voting in favour. Given the importance of the issue, and its sensitivity, these countries were not in a position to oppose the resolution, and had to be content with abstaining. This indicates the wariness of the countries to shoulder the burden of accountability that an acknowledgement of a right brings on.

However, such a caution - and the long waiting period for the HRC to conclude its discussions - is not warranted. The human right to water is so basic, and so self-evident that one can easily say that the UN had delayed too long in making it explicit. The resolution and its adoption have not come a day sooner.

The adoption of this resolution came just a couple of months ahead of the UN Summit on the Millennium Development Goals (MDG) held on 20-22 September 2010. The high-profile MDGs include the goal of halving by 2015 the proportion of population without sustainable access to safe drinking water and basic sanitation. The recognition of water and sanitation as a right is sure to boost the implementation of these MDGs.

It is important that the right as recognised by the UN includes the right to "clean" water. In the Indian context, while adequate quantity of water is not available to millions, even where adequate water is available, quality often remains a serious problem, with bacterial and other contamination. Close to 217,000 habitations in the country are affected with excess iron, fluoride, salinity, nitrate and arsenic in water.

Interestingly, India was one of the countries that did not raise any objections, and voted in favour. Is this an indication that domestically also, it would consider making explicit the right to water (and sanitation) as a fundamental constitutional right? Such a demand is being made by many movements, activists, legal and constitutional experts, developmental and policy researchers and others.

In fact, many experts suggest that such a right should not be limited to just drinking water, but should include the right to water for livelihoods and for social and cultural needs also. While this may still be some way off, one can now at least hope for a quick recognition of the right to drinking water and sanitation as a fundamental right of its own standing. And people like the post 1995 households of Mumbai can no longer be denied water simply because they are in the "wrong place" at a "wrong time".