For certain regions in India to witness, on one hand, devastating floods, while others severe droughts, remains potentially disastrous given that agriculture continues to remain the primary backbone of the economy. This pattern, however, is not just telling of the erratic impact of climate change, but also speaks volumes about the deplorable state of India’s policies and practices that impact the ‘right to water’. At the outset, it is necessary to put forth the fundamental premise (or rather, the starting point) of this piece: India’s water crisis is one that has a disproportionate impact on certain communities, social groups, and members belonging to marginalized socio-economic backgrounds.
In light of this, I aim to explore three key themes: first, the glaring class hierarchies that impact the right to water. This will be analysed alongside General Comment 15 and its mandate. Second, addressing certain limits concerning the framework of the ‘rights’ discourse (including problematising the idea of ‘universal entitlement(s)’) while realising access to water. Finally, addressing the viability of alternate mechanisms associated with improving the rampant crisis of water ‘mismanagement’ in the Indian context – particularly focusing on traditional and sustainable community-based structures for water conservation.
The Social and ‘Developmental’ Dimensions Concerning the Right to Water
General Comment 15 puts forth a cogent attempt at remedying the pitiable plight concerning the wealth gap and access to water by focusing on the three key aspects of — availability, quality, and accessibility (¶15). Unfortunately, this seems grossly unfulfilled in the Indian context. While addressing the availability of water, one needs to consider aspects such as rainfall disparity. This disparity when coupled with privatisation and corruption, as evident from the practices of certain tankers that mandated installing GPS tracking devices, or even from the emergence of a black market that regulates pipeline water based on payment, highlight the commercialisation and monetary backing that influences the right to access this ‘universal’ resource.
In drawing reference to the quality of water, particularly in light of class hierarchies in India, there are some overarching issues: high fluoride content, the use of bleaching powder, extreme contamination due to leaks created in pipes to access water, as well as commercial marketing of toilet water for everyday use. Several of these issues are rampant and bear glaring class dimensions and social tensions emerging between the haves and have nots surrounding access to water. However, beyond this it is clear that ‘accessibility’ in the context of General Comment 15 also envisions non-discrimination. Theoretically, this and several associated rights only exist on paper as they have failed to reach concrete realisation in several pockets of India (the discourse broadly flowing from Article 21 of the Indian Constitution). For instance, it has been found that 48.4% of those belonging to the Dalit community are systematically denied access to water sources. Further, the role of gender cannot go amiss — across several communities in India. It is clear that there is a disproportionate burden on women as they often bear the brunt of water scarcity.
Al Jazeera has also highlighted yet another important facet worthy of analysis: the continued operations of multinational corporations engaged in brew works, despite the drought conditions. Not only does this speak volumes about capitalist relations in contemporary society, but it highlights an important lens of political economy — that the worth of the ‘right’ to water changes depending on who is considered. To further elaborate, in 2019, microbreweries were allowed to be set up in Uttar Pradesh with a 90% increase in their annual license fee to increase revenues. While breweries themselves are very water-intensive, when this is read against Uttar Pradesh’s rainfall deficiency (here and here), it demands rethinking using the lens of political economy (see generally, here). The disparity essentially highlights the tussle between ‘development’ and “environmental degradation” (see here also). Regrettably, while UP could benefit from the increased revenue, the fact remains that water continues to be piped through rural areas and urban slums to more affluent districts which only galvanises the rationale of hierarchical fulfilment of the right to water. In sum, not only does capital take precedence over the right to water, but even where the right is realized, it remains subject to class and other divisions.
The Right to Water as a “Universal” Right: UNGA, General Comment 15, and Problematising the Framework
The ‘human right’ to water was realized in 2010 by the UN General Assembly. Access to water and the right to water bear an effect on the right to health, the right to life, the right to livelihood, and arguably even the right to culture (more here). One of the biggest advantages of using this human ‘rights’ framework is that it has the potential to integrate these various civil, social, economic, political, and cultural rights within the larger environmental discourse. Further, addressing an internationally realised human right to water allows for a great degree of ‘vertical’ scrutiny, which may be quite beneficial for addressing violations of such a right on particularly vulnerable indigenous populations. However, that being said, there are several limitations while addressing the aspect of ‘universality’ in terms of the human rights discourse (see, Prof. Matua, for instance).
Some argue for the need to consider the right to water as a free-standing right, i.e., one that is comprehensive, and one that realises other human rights affiliated with the right to water. Nevertheless, there still are other (well-founded) sceptics of this. Neimanis, for instance, addresses the hegemony of the human rights system, particularly noting that individualism remains its core tenet, where “[human rights] are for the prioritized benefit of humans.” The consequence showcases how human rights instruments such as General Comment 15 provide access to water to the rich, and not to the poor. This aspect of hierarchical fulfilment is also exemplified while considering persons displaced on account of constructing dams and water projects in India (see here and here). The critical issue is that there seemed to be little or no effort in terms of the realisation of their right to water upon rehabilitation. In fact, although international human rights and humanitarian law may provide an overarching framework for protection via legal principles such as equality and non-discrimination, at present there is a lack of a concrete legal framework that protects internally displaced persons (see here). Further, India is neither party to the Refugee Convention of 1951 or its 1967 Protocol, nor does there exist a national legal framework that provides adequate protection — such as a right not to be arbitrarily displaced in the first instance, or that internally displaced persons will be provided compensation, which would have fulfilled the mandate of General Comment 15 (¶¶55-59).
Exploring Alternative Mechanisms: Beyond the Human Rights Discourse and Envisioning Fulfilment
In continuation of the criticisms of the human rights discourse, David Kennedy further problematises the framework altogether — particularly its formalist limitations. His primary argument is that the human rights paradigm often deadens other emancipatory projects. Kennedy’s argument plays a crucial role while considering how international human rights law has a top-down approach with the effect of percolation into national systems. In contrast, policy at the grassroots level alongside repairing and protecting traditional structures has seen practical success in rural India – showcased by organisations such as the Jal Bhagirathi Foundation.
There have also been instances such as the construction of check dams which have turned arid lands into fruitful orchards. The seemingly simple structure would also conceivably fulfil the requirements of General Comment 15 (¶12)1 — the quality would be ensured with lower fluoride content because of the natural percolation in the soil and increase in the groundwater table; the accessibility is more or less certain because it uses inexpensive and existing traditional technology; and finally, the availability is secure given that it harnesses existing rainfall and merely reduces surface run-off. Critically, the premise behind small-scale water harvesting projects is hinged on the idea that instead of framing a discourse surrounding the lack of water, the focus is shifted on its mismanagement. This is highlighted by ample evidence not just in cases of surface runoff, but also concrete wastage in delivery mechanisms.
Although alternative and traditional mechanisms of water conservation are important particularly at the grassroots, nevertheless, water scarcity and barriers to access continue to remain real. While a significant part of this paper critiques the anthropocentrism associated with the conception of water as a ‘human right’, and the human rights discourse itself — it would pragmatically be difficult to propose a solution that disregards it entirely. This is primarily because the Supreme Court of India has consistently demonstrated that, at critical junctures, it tends to protect the interests of the ruling class (Prof. Baxi, for instance, has wonderfully explored this premise in ‘Law and State Regulated Capitalism’). This is perhaps most notable in the context of Narmada Bachao Andolan v. Union of India where the Court observed: “when such projects are undertaken, and hundreds of crores of public money is spent (…) the garb of Public Interest Litigation cannot be permitted to challenge the [decision]” (¶¶46-47). The language adopted itself is particularly significant in showcasing the rhetoric adopted by the Supreme Court in terms of its engagement with certain communities and their rights.
What is perhaps more patently observable is that though several of these rights and entitlements exist on paper – such as the relief from water pollution, and the right to a healthy environment – these remain intangible in the context of persons who are rarely the beneficiaries of government schemes or these abstract conceptions of ‘rights’. Ironically, though the right to a respectable life has been theoretically recognised by the Supreme Court, its practice seems far from reality for several communities who continue to struggle in light of India’s acute water crisis.
(1) Kanika Jamwal, An Analysis of the Legal Framework Supporting the Mainstreaming of Traditional Rainwater Harvesting Systems in India’s Water Management Laws (unpublished LL.M. thesis, London School of Economics & Political Science, London, 2019).
Mahima Balaji is the Director of the Jindal Forum for International and Economic Laws.
Author’s Note: I would like to thank Ms Kanika Jamwal for her comments on earlier drafts of this paper, and Prof. Sagnik Das for his kind recommendations and insights.
Image: Mustafah Abdulaziz/WaterAid (sewage works, Kanpur, India).