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Eaux, pauvreté et crises sociales

 | 
Habib Ayeb
, 
Thierry Ruf

Atelier 1. Représentations des relations entre eaux et pauvreté

The Right to Water: A Constitutional Perspective

Jayna Kothari

Texte intégral

Introduction

1This paper examines the justiciability of social rights, looking particularly at the Right to Water as part of the all encompassing Right to Life. The Right to water in India has been protected as a fundamental human right by the Indian Supreme Court emanating from the Right to Life guaranteed under Article 21 of the constitution. The right to life has been expanded to include the right to health and the right to a clean environment.

  • 1 Peoples Union for Civil Liberties (PUCL) v. Union of India & Ors. W.P. (Civil) No. 196 / 2001.

2In India, there have also been significant developments in protecting the Right to Food through judicial intervention. The Right to Food has been specifically enforced under the Right to Life guaranteed to all citizens under Article 21 of the Constitution by the Supreme Court of India1. By protecting the right to food, the Indian Supreme Court not only gave a declaration as to its justiciability, but through its orders also directed the state governments to positively provide mid-day meals to children in state schools and to implement food schemes. Can this protection of the right to food be extended to guarantee access to water under the protection of the Right to Life? I argue that it can be extended. If protection of rights means not only the negative protection of violation of rights, but also positive protection, then I argue that the right to water can be extended not only to mean that people should not be denied access to water but also that in areas where no access to drinking water is provided by the State, the constitutional Right to Life guarantee would impose a duty on the State to positively provide water.

3In framing such an argument, my paper also borrows from South African constitutional jurisprudence, since the South African constitution as the South African Constitution specifically guarantees to citizens the right to adequate food and water in its Bill of Rights. 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? These are some of the questions that my paper attempts to answer.

The Right to water – flowing from the right to food, health and life

4The resolution of the UNO passed during the United Nations Water Conference in 1977 as under:

5“All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs.”

6A detailed review of international treaties supports the conclusion that the drafters implicitly considered water to be a fundamental resource. Several of the explicit rights protected by international rights conventions and agreements, specifically those guaranteeing the rights to food, human health and development, cannot be attained or guaranteed without also guaranteeing access to basic clean water. In recent years, more explicit articulations of this view supporting the right to water have been made.

7In India, the constitutional right to access to clean drinking water can be drawn from the right to food, the right to clean environment and the right to health, all of which have been protected under the broad rubric of the Right to Life guaranteed under the constitution.

Right to food

8The Indian Supreme Court has reiterated in several of its decisions that the Right to Life guaranteed in Article 21 of the constitution in its true meaning includes the basic right to food, clothing and shelter. The justiciability of the specific Right to Food as an integral right under Art 21 had never been articulated or enforced until 2001. In 2001, there was a massive drought in several states in India especially Orissa, Rajasthan and Madhya Pradesh. Due to the drought, which had been going on for months and the extreme poverty and complete lack of access to food grains, people were starving in large numbers. While the poor were starving in the drought-hit villages, the central government had excess food grains in its storehouses, which were not being disbursed and were rotting! Slowly, the agitation over access to food became a full-fledged Right to Food campaign in the country. As part of this campaign, a public interest litigation was filed by the People’s Union for Civil Liberties (PUCL) in April 2001 in the Supreme Court for enforcement of the Right to Food of the thousands of families that were starving in the drought-struck States of Orissa, Rajasthan, Chhatisgarh, Gujarat and Maharashtra, and where several had died due to starvation.

9In its several hearings, the Court directed all state governments to ensure that all Public Distribution Shops are kept open with regular supplies and stated that it is the prime responsibility of the government to prevent hunger and starvation. On 23 July, 2001, recognising the right to food, the court said:

10‘In our opinion, what is of utmost importance is to see that food is provided to the aged, infirm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have sufficient funds to provide food for them. In case of famine, there may be shortage of food, but here the situation is that amongst plenty there is scarcity. Plenty of food is available, but distribution of the same amongst the very poor and the destitute is scarce and non-existent leading to mal-nourishment, starvation and other related problems.’

11The Supreme Court, thus recognised a distinct Right to Food under the constitution under Article 21 and also sought to broaden the scope of the right to not only encompass the right to be free from starvation, but to also include distribution and access to food and the right to be free from mal-nutrition, especially of women, children and the aged. The Court, in an unprecedented interim order on 28 November 2001, directed all the state governments and the Union of India to effectively enforce eight different centrally sponsored food schemes to the poor. These food security Schemes were declared as entitlements (rights) of the poor, and the Court also laid down very specific time limits for the implementation of these schemes with the responsibility on the states to submit compliance affidavits to the court. These included the Antyodaya Anna Yojna, the National Old-Age Pension Scheme, the Integrated Child Development Services (ICDS) programme, the National Mid-day Meals Programme (NMMP), the Annapurna scheme and several employment schemes providing food for work. Of the eight schemes, the most significant was the Mid-day Meal Scheme and the direction of the Court to all state governments to provide cooked mid-day meals in all government schools by January 2002.

Right to clean drinking water – as part of the right to a clean environment and health

12However, the Right to Food has been articulated fairly recently. In India, the right to clean drinking water has been protected as fundamental right by the Indian Supreme court more with regard to cases where water sources were being polluted by industries and the right to health. Thus the right to water has been cited as an integral part of the guarantee of the right to a clean environment.

  • 2 (2001) 2 SCC 62.
  • 3 (2000) 10 SCC 664.

13An important ruling of the Indian Supreme Court was the case of A.P. Pollution Control Board II v. Prof. M.V. Nayudu2 . The court held that drinking water is of primary importance in any country. Referring to India’s participation in the UNO water conference, the court held that the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens. The Supreme Court also referred to the Narmada Bachao Andolan v. Union of India3 judgment where Kirpal, J. observed:

14“248. Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India....”

15The right to healthy environment and to sustainable development are fundamental human rights implicit in the right to “life”.

  • 4 (1996) 5 SCC 647.

16In Vellore Citizens' Welfare Forum v. Union of India4 , at page 661 the Supreme Court held:

17“The constitutional and statutory provisions protect a person’s right to fresh air, clean water and pollution-free environment, but the source of the right is the inalienable common law right of clean environment.”

18Thus the concept of right to “healthy environment” has been developed as part of the right to “life” under Article 21 of our Constitution. This concept was first articulated in the case of Bandhua Mukti Morcha v. Union of India. This case was a public interest litigation filed to free bonded labourers whose living conditions were almost inhuman, the Supreme Court made an order giving various directions for identifying, releasing and rehabilitating bonded labourers, ensuring minimum wage payments, observance of labour laws and providing wholesome drinking water. The Supreme Court also set up a monitoring agency, which would continuously check the implementation of those directions. So thus we can see that the right to clean drinking water, although not articulated as a separate right, has been considered as an inseparable part of the right to health and life.

Guarantee to the right to water under the South African Constitution

19In contrast to the Indian Constitution, which does not specify a right to water but protects a broad right to life under Article 21, the South African Constitution specifically guarantees the right to food and water to all its citizens.

20The South African Constitution in Article 27 of the Bill of Rights holds:

  • everyone has the right to have access to sufficient food and water;
  • the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.”

21While protecting these rights, the South African constitution refers to availability of resources which would be a condition required for implementing these rights.

Enforcement of the right to water

22So what would the right to water specifically mean? Would it mean providing water to all those who need it, or would it mean something more? Here I would like to borrow some jurisprudence from the South African courts on this issue. Jaap de Visser quite rightly holds that the right of access to water can be seen to place two interrelated but distinct obligations on the State:

  • It must ensure that all people have physical access to water. This means that the facilities that give access to water must be within safe physical reach for all sections of the population, especially for vulnerable and marginalised groups.
  • It must ensure that all people have economic access to water. This implies that the cost of accessing water should be pegged at a level that would ensure that all people are able to gain access to water without having to forgo access to other basic needs5.

23The South African Constitution places a duty on all three spheres of government to realise the right of access to water by acting in partnership with one another. While the national government is required to establish a national framework to ensure the realisation of this right, local government must play the critical role of ensuring delivery of water to all.

24Disconnection of water: The South African High Court (WLD) took a different approach in the unreported case of Residents of Bon Vista Mansions v Southern Metropolitan Local Council, where the Court found that the disconnection of water supply would constitute a prima facie breach of the State's duty to respect the right of access to water. The procedures employed to effect a disconnection also have to be fair and equitable. They should not result in a person being denied access to basic water services for non-payment where the person proves, to the satisfaction of the water services authority, that he or she is unable to pay for the basic services.

  • 6 Ibid.

25The above decision can thus be understood to mean that the cost recovery principle combined with a practice by many local authorities to cut off water supply to those who cannot pay, constitutes a severe impediment in the realisation of access to water for all6.

Private entities and guarantee of the right to water

26The rhetoric of a human right to water, once implemented and fleshed out in practice, has a tendency to dissolve into a series of strategies eerily resembling consumer rights – an important dimension of a market state but hardly a frontier against its expansion. And the urgency of the rights claim is not necessarily stifled by the web of a complex regulatory framework7. A human need can be left to market forces to fulfill. But if water is a human right, then the State is responsible for the fulfillment of that right even if it allows private intermediaries to play a role8. For example, distributive justice and universal access are two core dimensions of socio-economic rights that can be given substance through rules on cross-subsidies, or through detailed codes of procedure governing disconnection practices by companies.

Conclusion

27As we can see above, both Indian and South African constitutional law address the right to water through different perspectives. However there is no doubt of the fact that the access to water is a fundamental human right and is protected as such. The implementation and enforcement of this right is therefore crucial as it is often dependent upon resources available to guarantee such a right. Therefore governments need to build a strong water policy that protects this fundamental human right.

28Some problems despite having the constitutional right to water are as follows:

  • There are vast areas in developing countries such as India and South Africa where water infrastructure does not exist and water delivery of any kind is not possible. The policy to provide free basic water therefore needs to be supplemented with a policy that aims to rapidly increase access to water infrastructure – especially for the rural poor.
  • Especially in rural communities where there is not a sufficient amount of high volume users to cross-subsidise the provision of free water to all, the policy creates serious problems for local governments, which are often not able to finance the free provision of basic water for all. This leads rural municipalities to take drastic measures (e.g. disconnections) that deprive their residents of access to water. The policy therefore does not seem to be properly targeted to meet the needs of the rural poor – a particularly vulnerable group in society.
  • Governments, international aid agencies, nongovernmental organizations and local communities should work to provide all humans with a basic water requirement and to guarantee that water as a human right. By acknowledging a human right to water and expressing the willingness to meet this right for those currently deprived of it, the water community would have a useful tool for addressing one of the most fundamental failures of 21st century development.

Notes

1 Peoples Union for Civil Liberties (PUCL) v. Union of India & Ors. W.P. (Civil) No. 196 / 2001.

2 (2001) 2 SCC 62.

3 (2000) 10 SCC 664.

4 (1996) 5 SCC 647.

5 Jaap de Visser, Edward Cottle & Johann Mettler The free basic water supply policy: How effective is it in realising the right? http://www.communitylawcentre.org.za/ser/esr2002/2002july_water.php

6 Ibid.

7 B. Morgan.

8 http://www.elaw.org/resources/text.asp?id=2019

Auteur

Solicitor. Ashira Law, Bangalore – India

© IRD Éditions, 2009

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