Given its difficult position under the Constitution, the subject of water has remained one of the most disputed areas in India’s federal relationship.
In the ongoing coronavirus pandemic, water has a pivotal role as it is central to containing the spread of the deadly virus. In India, the number of COVID-19 cases is growing despite the biggest lockdown on the planet. In the cacophony of scientific advice, claims and counterclaims and all manner of graphs and curves, there has been one consistent call — to wash and sanitise our hands with soap or hand sanitisers to control the spread of the virus. Alcohol-based sanitisers are a luxury for the vast majority of underprivileged Indians. As for the advice to wash hands with soap and water for 20 seconds: what about the 163 million people in India who do not have access to clean water?
It is difficult to predict how people will fight a pandemic without adequate access to water — a fundamental right declared by the Supreme Court of India in Bandhua Mukti Morcha v Union of India (1984) under Article 21 of the Constitution of India and a United Nations-recognised human right as well as one of the designated 17 Sustainable Development Goal.
India ranked 13 on the World Research Institute’s Aqueduct list of extremely high water-stressed countries. 63.3% of rural households and 19.7% of urban households do not have access to water and sanitation facilities, as per a United Nations report.
Last year, Chennai ran out of water in a prolonged drought. The National Green Tribunal (Principal Bench in Delhi) in an order passed in September 2019, put on record that more than one crore people in different states are affected due to the presence of high-level arsenic contamination in the groundwater. A Niti Aayog report released in August 2019 predicted Day Zero (when a city runs out of water) for 21 Indian cities for the current year. India faces the twin issues of quality and quantity — lack of access to clean water and acute water shortages.
Relevant research studies from past epidemics have disclosed that lack of access to clean water leads to an aggravated public health crisis. During the Ebola outbreak in Western Africa, Guinea, Liberia and Sierra Leone were the worst affected countries and these states also have the lowest basic water access globally. A recent study in the University of Birmingham has documented that “countries, where people do not have a habit of washing their hands automatically, tend to have much higher exposure to coronavirus,” thus making it clear that water has centrality in containing the pandemic.
Water laws in India are a patchwork with diverse origins.
Given its difficult position under the Constitution, the subject of water has remained one of the most disputed areas in India’s federal relationship. The distribution of inter-state river waters is a disputed subject not only between the states governments, but also between the states and the central government. The groundwater position is equally complex. Article 246 of the Constitution provides for subject matters of laws for the Parliament under List 1 (Union List), for the state legislatures under List 2 (State List) and on a subject where both can make laws under List 3 (Concurrent List).
The general understanding is that water is a state subject; the memorandum relating to this resource falls under Entry 17 of List 2 (State List), though it is conditioned to Entry 56 of List 1 (Union List), a provision that has been used ineffectively so far. Take the example of the River Boards Act, 1956 that was enacted by Parliament to provide for the establishment of a central body for the management of inter-state rivers across India. The body was never established following stiff resistance by states governments to any change in the management of inter-state river waters.
The central government’s attempt to use the Environment (Protection) Act, 1986, to regulate water issues by taking the conservation and management of water bodies route, was contested before the Supreme Court of India in MC Mehta v. Union of India which, through its judgment, weighed in on the side of the central government. The judgment legitimised the Constitution of the Central Groundwater Authority under the Act of 1986. It also provided the base to constitute the National Ganga River Basin Authority in 2009 — which would have been otherwise difficult if the provisions laid down under the Entry 56 of List 1 had been followed.
There has also been a debate around moving the subject matter of water to Concurrent List from the State List, however, Jal Shakti Minister Gajendra Singh Shekhawat, in December 2019 clarified in the Rajya Sabha that the government has no intention to bring water in Concurrent List. The decision of government helped avert another constitutional, as well as federal challenge. The central government has the mandate to resolve water disputes; however, any significant action needed to resolve the water crisis is to be taken at state and local levels. The subsidiarity principle — that the decisions must be taken at the lowest appropriate level — is critical to mediate a national policy for action towards the universal right to water.
Besides, the central and state governments are obliged, though constitutionally and not judicially, under the directive principle of state policy enshrined under Article 39 (b) of the Constitution to “direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.” The Jal Jeevan Mission is a move in that direction with regard to water. This ambitious project, which aims to create a people's movement for water, is in the first year of its implementation and will take another few years to yield any tangible results. As a first step, the newly unified Ministry of Jal Shakti, under the Jal Jeevan Mission, has resolved to supply tapped water to every household in India by 2024.
In the face of reducing the availability of water, meeting competing and growing demands and ensuring equitable distribution is a more significant challenge than creating the pipelines and infrastructure for supply it. In the weeks to come, the Ministry has the mammoth task of reaching out to dry cities and distant villages to provide water amid the pandemic.
Constitutional provisions and subsequent legislation have failed to resolve the overlapping mandate of the state and central government, and in this political mayhem, people have continued to suffer. The development and management of water resources in India should be done beyond the administrative boundaries of states. The current fragmented approach towards regulating water leads to inconsistencies in water policy and thus its failure.
The pandemic has brought together the states and the central government in ways that have never been witnessed before. This might just be the moment to formulate a single water policy for the entire nation. Also, this might be the moment when we actually get close to achieving the human right to water in practice, with states working in close cooperation with a sense of sustainable development and solidarity.
Summer is nearly upon us and with it, the looming shadow of severe water shortages aggravated now by the scourge of the coronavirus. In the next few weeks, many states in India will face heatwaves, the temperature will exceed 40 degree Celsius in many regions, and the country will experience its annual chronic water stress amid the pandemic. Early trends indicate that this year, even before the start of summer, nearly 33% of India is already experiencing droughts or drought-like conditions.
If India is to win its fight against COVID-19, it must ensure that the millions who live in urban slums or water-stressed villages have access to clean water, else the advice of the central and state governments, and public health officials to maintain good hygiene as a way to combat the deadly virus will come to nought.
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Nishant Sirohi is an advocate and a legal researcher specialising in the intersection of human rights and development - particularly issues of health, climate change, ...
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