RIGHT TO GET CLEAN WATER, RECENT DEVELOPMENTS AND CONSTITUTIONAL FRAMEWORK by Akash Komirineni & Vaibhav Dave
Author : Akash Komirineni, Student at Manipal University, Jaipur.
Co-Author : Vaibhav Dave, Student at Manipal University, Jaipur.
Part III of the Constitution of India provides Fundamental Rights which are guaranteed rights to every citizen of India irrespective of their caste, religion, sex, race and the place of birth. Right to get clean water is a fundamental right provided under Article 21 of the Constitution of India which provides that no person shall be deprived his personal life and liberty except according to procedure established by law. The word “Life” and “Liberty” are vague. Hence the Supreme Court has defined the following words from time to time. The word “Life” includes dignified life which further includes the Right to get clean drinking water to every citizen under Article 21. The obligation for protection of these rights are imposed on the state and violation of the right leads to filing writ petition against such state. However, a Writ petition cannot be filed against any private body.
As in the case of SC Deora v. Union of India, the Supreme Court has derived a concept of Right to have Pollution free environment for controlling the pollution by prohibiting the public smoking as a part of article 21 of the Constitution of India. And in the case of Subash Kumar v. State of Bihar, the Supreme Court held that Right to life is a fundamental right under Article 21 of the Constitution of India and it includes right of enjoyment of life. If anything endagers that quality of life then a citizen has a right to have recourse to article 32 of the constitution of India.
Similarly the Supreme Court has derived a concept of Right to Healthy Environment as a part of Right to life under Article 21 of the Constitution of India in the case of Bandhua Mukti Morcha v. Union of India.
Water being a natural resource is not a private property and is the essential element for the survival of all the living beings should be available to all. 70% of earth is surrounded with water but the main problem arises because of non-availability of clean drinking water to the citizens of the nation.
According to Karael Vasak they are three generations of Human Rights such as the First generation of Human Rights provides about the Civil and Political Rights which are considered as inalienable for human life. The second generation of Human Rights provide about the Economic, Social, and Civil Rights. And the last generation which is the third generation of Human Rights provide about the co-operative society which involves the cooperation of the whole society. The third generation Human Rights include all those rights which the First generation Human Rights and the Second generation Human Rights doesn’t include which means that the right to clean water is included under the third generation Human Rights as the matter of preservation and protection of environment. But also it fall within the scope of second generation human rights when the matter is related distribution, that is it ensures equally distribution of the subject matter to the citizens of the nation.
The right to get clean word only becomes valid when the water is preserved and protected. . Protection and preservation is a duty imposed on Individual under Article 51(g) of the constitution of India. Article 51(g) imposes duty on the individual to protect wildlife, water bodies, forest, etc. The duty to protect environment is not only imposed on individual but also on the state. Article 48A of the Constitution of India imposes duty on the state to protect environment, wildlife, water bodies, etc. The Article 48A of the Constitution of India was inserted by 42nd Amendment.
CONSTITUTION OF INDIA
Supreme Court has provided the following principles from time to time to protect the Water entities.
- Precautionary Principle
The person dealing with hazardous activities has to take every precaution in order to prevent any damage to the environment due to those hazardous activities. This principle was derived from the case: Vellore Citizens Welfare Forum v. Union of India. They are three elements in this principle such as
a) Environment Measure:
The state provides a list of measures to be followed by the owner or industries to protect the environment.
b) Lack of Scientific data
There is no proper legal data regarding the damage caused by the owner or industry but that does not mean that no measure is taken. Every measure is to be taken to prevent damage or protect water bodies.
In the case of M C Mehta v. Union of India, the Supreme Court ordered closure of many polluting tanneries which were polluting the water of Ganga River. Hence this case is popularly kwon are Ganga River case. The Supreme Court also ordered the industries to setup the treatment plants.
c) Owner of Proof
The person causing the pollution is liable. Generally, prosecution has to prove the guilt of the opposite party but in the environment laws the opposite party (owner/defendant) has to prove that he is not causing pollution.
- Polluter Pays Principle
This principle was derived in the case of Indian Council for Enviro- Legal Action v. Union of India. In this case it was held that the financial cost of preventing the damage caused by the pollution should lie with the undertakings which caused the pollution. In other words that person or owner who setup the industry shall pay for the damages caused by the pollution.
- Sustainable Development
Sustainable development signifies and meets the needs of the present without compromising the ability of the future generations. This principle is also known as Inter-Generational Equity.
In the case of Narmada Bachao Andolan v. Union of India the Supreme Court held that what type or extent of development can take place, which can be sustained by nature with or without mitigation.
And also in the case of Vellore Citizens welfare forum v. Union of India the Supreme Court observed that sustainable development is a balancing concept between ecology and development and that has been accepted as a part of Customary International Law.
- Principle of Absolute Liability
This principle has been derived from the case of M C Mehta v. Union of India, 1986.
In the case of K.M. Chinappa v. Union of India, the Supreme Court held that law as an instrument to protect and improve the environment and control or prevent any act or omission pollution or lightly to pollute the environment.
For the protection of preservation of water the legislation has enforced various act such as Water (Prevention and Control of Pollution) Act, 1974, Provisions of Environment (Protection) Act, 1986 and The Indian Easement Act, 1882.
WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974
Water (Prevention and Control of Pollution) Act, 1974 if the first enacted by the parliament in relation to the protection and preservation of environment. The water act came into force to ensure the restoration of the water, where the domestic and industrial effluents pollute water without any precautionary measures. The Constitution of Central Pollution Board and State Pollution Control Board are empowered under the act to perform various functions such as establishing the quality standard, research and investigation of the bodies creating pollution to the water bodies. This act also raise awareness by promoting the cleanliness of water streams, well and rivers. And also one of the main purpose of establishing this act was to prevent and control the pollution of water.
One of the provision of this act provides that no person can establish any industry which discharges sewages or trade effluents into the water bodies without the permission of the state board. But in the case of Andhra Pradesh Pollution Control Board II v. Prof. M. V. Nayudu it was held by Supreme Court that Water (Prevention and Control of Pollution) Act, 1974 does not provide exemption to the state for exempting the establishment of private body or polluting industries creating pollution to the environment (water bodies).
PROVISIONS OF ENVIRONMENT (PROTECTION) ACT, 1986
Environment Protection Act has come into force on19th of November, 1986. The name environment protect act itself provides the main objective of the act as protection of the environment. This act is applicable to whole of India including Jammu and Kashmir. This act provides power to the Central Government to take appropriate measures in order to protect and improve the environment.
INDIAN EASEMENT ACT, 1882
The Indian Easement Act, came into force on 1st day of July, 1882. The word Easement is defined under section 4 of the Act. But in general term easement means “right to enjoyment”. This act recognizes the rights of the riparian owner. Riparian owner is the person who has his land nearby the river or a stream.
Even after various legislations have been passed the river water in India are continuously polluted. River Ganga despite of being worshiped by almost 1 billion people of this country is included among the most polluted river of the same, millions of litres of chemical waste is disposed in these waters by the industries including the pollutants like cyanide, zinc, copper, lead, cadmium and mercury including sewage waters also which is the biggest pollutant .These pollutants are so poisonous that they not only kills fishes instantly but other animals also. When these poisonous pollutants are disposed in water it reduces the quality of water and make then useless for drinking.
In the case of Mc Maheta vs.State of Orrisa and Ors, a writ petition was filed for protecting the health of thousands of people living within the city Cuttack and the other areas which were adjacent to that, which were suffering from the pollution caused by sewage disposal discharged into the river by municipal committee of Cuttack and SCB Medical Collage Hospital, also the State Pollution Board in its report concluded that the water in the city was not fit for human consumption and even bathing, The Apex court ordered to take immediate steps to control the current situation and a responsible municipal corporation was formulated by the court for effective management of pollutants in the city’s drinking water.
The government as well as the Boards established under the legislations have to attend to these matters not just by providing fine to the individuals polluting water but through imprisonment.
The case of Vikash Bansal vs Delhi pollution control committee marks an exceptional judgment given by the supreme court because in this case of Haryana Paneer Bhandar, a offender was imprisoned for a period of 1 year with 1 Lakh Rupees fine along with 2.5 lakhs Rupees to be given to the PM relief fund, but what has to be noticed in this judgement is that this case is not related to any criminal offence such as rape, murder, robbery or assault whereas it was a case related to environment that is polluting the river of Yamuna.
These kinds of convictions are seen very rare and according to me, the court have to make such convictions more frequently in order to safeguard the environment from degrading further.
Public Interest litigation
Not only an individual can approach through the provisions of the legislations related to the Environment but also through filing Public Interest Litigation Now, pollution of water is concerned to a larger public, any dispute related to water can be settled through filing a Public Interest Litigation. Public Interest Litigation is filed through Article 32 of the Constitution of India which provides about the Right to Constitutional Remedies and through Article 226 of the Constitution of India which provides about the Power of the High Court to issues certain writ. Public Interest Litigation can also be filed through Section 122 of the Code of Criminal Procedure which provides about Public Nuisance. Public Interest Litigation can be converted into writ and vice versa.
Right to get clean water is not an enumerated right under Constitution of India. This right was brought in to light through various judicial pronouncements and became an integral part of Article 21 of the Constitution of India. And also in the case of Sachidanand Pandey v. State of West Bengal the Supreme Court held that the court is bound to bear in mind the Article 21 which provide about Right to life and personal liberty, Article 48A which provides about the fundamental duties and Article 51A (g) which provides about the Directive Principles of State policy whenever a case related to environment problem is brought before such court.
Central Water Commission
Central Water Commission was established in order to perform various functions including the initiation, coordination and consultation the state government in the matter related to the preservation, control, utilization and distribution of water resources to the citizens of India. It also promote awareness, sustainable development and management of water resources in India. Central water commission is now a part of Government of India. It ensure the utilization of water resources appropriately in order to control floods, droughts, maintain irrigation, and supply drinking water, etc.
In the recent times due to Covid-19 there has been large control on the pollution not only to the water bodies but also control of air pollution, noise, pollution, etc. The government has to take this as an opportunity to prevent any further pollution the water bodies by bringing various other legislation or just by improving the provisions of the current legislation. The provisions of current legislation shall be made stricter which creates fear in the minds of people from further polluting the environment.
Water is not a private asset and is the main essential ingredient for the survival of the people. It is important to control pollution caused to the river water, streams, wells, etc. because India has a total of only 4% of world’s fresh water, uses 80% of that merely for farming, and using polluted water for farming will adversely affect the health of common people. The second most populated country in the world is also home to thousands of ethnic and tribal groups which survives on the nature or jungle for their food and water including the small streams of water from major rivers, the presence of chemical pollutants is very harmful as well as deadly in some cases. And the right to get clean water is not an enumerated right but is a right enforced under Article 21 of Constitution of India. Hence Right to get clean drinking water is also considered as fundamental right and no person can deprive such right. If this right is deprived of any individual, the person who has been aggrieved of these right has a right to approach under different provisions provided under the various legislations. Different kind of protection must also be given to major rivers and their connecting tanneries because these pollutants are directly affecting the habitat prospering around these rivers.
But, still the lack of state in treating these limited natural sources of water and establishing treatment plants over them has made it a Distant dream for India to attain a cleaner and more healthier ecosystem for the holy rivers, consequences of which will be seen in the near future.
 Indian Constitutional Law, 1959, Mp Jain, Lexis Nexis, 18th Edition.
 www.constitutionof indian.net
 Indian Constitutional Law, 1950, M P Jain, Lexis Nexis, 18th Edition.
 Czech- French International official and University Proffessor