Water and Public Policy in India: Politics, Rights, and Governance [1 ed.] 1032005483, 9781032005485

This book explores the conceptual and theoretical frameworks of Right to Water and analyzes its values in the context of

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Table of contents :
Cover
Half Title
Title Page
Copyright Page
Dedication
Table of Contents
List of figures
List of tables
Preface
Chapter 1: Introduction
1.1 Key focuses and framework for the discussion
1.2 Flow of the discussion
1.3 Water as a right in water discourses
1.4 Water scenario in India
1.5 National Water Policies of India
1.6 Aim: the choice of Right to Water in the context of national water policies of India
1.7 Significance and outline of the book
1.8 Scheme of chapters
Notes
Chapter 2: The concept of Right to Water: Emergence and evolution
Introduction
2.1 Towards water as a right in modern political thought
2.1 Towards water as a right in modern political thought
2.2 Conceptual evolution of the idea of Right to Water
2.2.1 International level: Water is a Right
2.2.1.1 Argument (s) against neoliberalism
2.2.1.2 International undertakings: major landmarks
2.2.1.3 The regional understanding: major landmarks
2.2.1.4 Understandings of national constitutions and national laws
2.3 Conceptual progression of Right to Water: Expansion and relation
2.4 Discussing the meaning (s) of Right to Water
2.4.1 Water is a Right: The popular offerings and their significance
2.4.2 What right to water is not: The rejection of claims
2.4.3 Meaning (s) of Right to Water: Paring rights with duties
Notes
Chapter 3: Indian understanding on Right to Water
Introduction
3.1 Right to water in British Colonial Rule in India
3.2 The Idea of Right to Water after independence in India
3.2.1 The Constitutional Understanding(s)
3.2.1.1 Right to Equality (Article 15(2))
3.2.1.2 Right to Freedom (Article 19(1)(e))
3.2.1.3 Right to Life (Article 21)
3.2.1.4 Right to Education Act 2009 (Article 21(A))
3.2.1.5 Fundamental Duties (Article 51(A)(g))
3.2.1.6 Directive Principles of State Policy (Article 48A)
3.2.1.7 Division of Powers between Union, state and local governments (Entry 56 (List I), Entry 17 (List 11) and 73rd and 74th Constitutional Amendment Act 1992)
3.2.2 Reflection of the idea of Right to Water in Indian laws: Major landmark
3.2.3 Planning and programming frameworks: Major proclamations
3.2.4 Undertakings of Indian states: The contexts and key contents
3.2.5 National and regional documents as thin expounder of the idea of Right to Water: A discussion
3.2.6 Right to Water in the view of Indian judiciary: Major cases and their interpretations
3.2.6.1 Right to life includes Right to Water
3.2.6.2 Indian states are the trustee of water resources
3.2.6.3 Water management processes are essentially required to meet international standards
3.2.6.4 Indian states are accountable to provide water as a right to All
3.2.6.5 Individual's rights over water resources are universal
3.2.7 Perspective (s) of Indian civil society
3.2.7.1 Objectives of Indian NGOs
3.2.7.2 Intellectual offerings
3.2.8 Emergence, evolution and recognition of Right to Water in India
3.3 Significance and need of national water policy for fulfilment of Right to Water
3.4 India's national water policies
Notes
Chapter 4: Right to Water in India’s national water policies
Introduction
4.1 Water policy analysis guiding framework
4.2 Who gets water, for what purpose and by whom: an analysis of distributive strategies
4.2.1 The principle of right holders and real beneficiaries: Water to all (available, accessibly, affordable and acceptable)
4.2.1.1 Offerings of the three Policies: Analysis of the table
4.2.2 The principle of special beneficiaries: Children, women, disadvantaged and disabled
4.2.2.1 Offerings of the three policies: Analysis of the table
4.2.3 Principle of needs and priority of water uses
4.2.3.1 Offerings of the three policies: Analysis of the table
4.2.4 Principle of obligations and obligatory parties
4.2.4.1 Government (Union/state/local)
4.2.4.1.1 Offerings of the three policies: Analysis of the table
4.2.4.2 Obligatory party: private sector water providers
4.2.4.2.1 Offerings of the three policies: Analysis of the table
4.2.4.3 Obligatory party: citizens, civil society and research community
4.2.4.3.1 Offerings of the three policies: Analysis of the table
4.3 Status of Right to Water in the Union water policies: an analysis of management strategies
4.3.1 Required provisions for infrastructures and institutional arrangements
4.3.1.1 Offerings of the three policies: Analysis of the table
4.3.2 Mechanisms to ensure regional needs
4.3.2.1 Offering of the three policies: Analysis of the table
4.3.3 Mechanisms to facilitate, protect and promote right to water to all
4.3.3.1 Offerings of the three policies: Analysis of the table
4.3.4 Mechanisms to ensure efficiency with absence of monopoly, discrimination and exploitation
4.3.4.1 Offerings of the three policies: Analysis of the table
4.3.5 Measures to ensure accountability, transparency and people's participation
4.3.5.1 Offerings of the three policies: Analysis of the table
4.3.6 Measures to ensure sustainability of water resources (for future use and protection of the environment)
4.3.6.1 Offerings of the three policies: Analysis of the table
4.3.7 Monitoring system(s) and institution(s) (review and assessment)
4.3.7.1 Offerings of the three policies: Analysis of the table
4.4 Entitlement of Right to Water through Union water policies of India: a discussion
Notes
Chapter 5: Conclusion: Towards Right to Water in India
5.1 Emergence of Right to Water
5.1.1 The international expressions
5.1.2 The regional expressions
5.1.3 The national expressions
5.1.4 Beyond boundaries
5.1.5 The meanings of Right to Water
5.2 The Indian perception on Right to Water
5.2.1 Right to Water in India: National and state understandings
5.2.2 Interpretation(s) of Indian judiciary and civil society
5.2.3 Progression of the idea of Right to Water: Understanding India's pattern
5.3. India's National Water Policies
5.3.1 India's national policies: Towards Right to Water
5.4 What policy makers are required to do
Note
Bibilography
Webliography
New Papers
Appendix A: General Comment 15
I. Introduction
The legal bases of the right to water
Water and Covenant rights
II. Normative content of the right to water
Special topics of broad application Non-discrimination and equality
III. States parties' obligations
General legal obligations
Specific legal obligations
International obligations
Core obligations
IV. Violations
V. Implementation at the National Level
Legislation, strategies and policies
Indicators and benchmarks
Remedies and accountability
VI. Obligations of actors other than states
Appendix B: India’s National Water Policy – 1987
Need for a national water policy
Information system
Maximizing availability
Project planning
Maintenance and modernisation
Safety of structures
Ground water development
Water allocation priorities
Drinking water
Irrigation
Water rates
Participation of farmers and voluntary agencies
Water quality
Water zoning
Conservation of water
Flood control and management
Land erosion by sea or river
Drought management
Science and technology
Training
Conclusion
Appendix C: India’s National Water Policy – 2002
Need for a National Water Policy
Information System
Water Resources Planning
Institutional mechanism
Water allocation priorities
Project planning
Ground water development
Drinking water
Irrigation
Resettlement and rehabilitation
Financial and physical sustainability
Participatory approach to Water Resources Management
Private sector participation
Water quality
Water zoning
Conservation of water
Flood control and management
Land erosion by sea or river
Drought-prone area development
Monitoring of projects
Water sharing/distribution amongst the states
Performance improvement
Maintenance and modernisation
Safety of structures
Science and technology
Training
Conclusion
Appendix D: India’s National Water Policy – 2012
1. Preamble
2. Water Framework Law
3. Uses of Water
4. Adaptation to Climate Change
5. Enhancing Water Available for use
6. Demand Management and Water use Efficiency
7. Water Pricing
8. Conservation of River Corridors, Water Bodies and Infrastructure
9. Project Planning and Implementation
10. Management of Flood & Drought
11. Water Supply and Sanitation
12. Institutional Arrangements
13. Trans-Boundary Rivers
14. Database & Information System
15. Research & Training Needs
16. Implementation of National Water Policy
Index
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Water and Public Policy in India: Politics, Rights, and Governance [1 ed.]
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Water and Public Policy in India

This book explores the conceptual and theoretical frameworks of Right to Water and analyses its values in the context of water policy frameworks of the union governments in India. It uses a qualitative approach and combines critical hermeneutics with critical content analysis to introduce a new water policy framework. The volume maps the complex argumentative narrations which have emerged and evolved in the idea of Right to Water and traces the various contours and the nature of water policy texts in independent India. The book argues that the idea of Right to Water has emerged, evolved and is being argued through theoretical arguments and is shaped with the help of institutional arrangements developed at the international, regional and national levels. Finally, the book underlines that India’s national water policies drafted respectively in 1987, 2002 and 2012 are ideal but are not embracing the values and elements of Right to Water. The volume will be of critical importance to scholars and researchers of public policy, environment, especially water policy, law, and South Asian studies. Deepti Acharya is a political scientist and a researcher. For the last 15 years, she has been associated with the Department of Political Science, Faculty of Arts, The Maharaja Sayajirao University of Baroda, India, as Senior Assistant Professor of Political Studies. As a faculty and a guide, she is allied with different faculties, institutions and departments, including All India Services Training Center, The M.S. University of Baroda (2010–14), Faculty of Law, Department of Architecture and Faculty of technology of the M.S. University of Baroda, Vadodara (2010–13) and Department of Political Science, Parul University of Vadodara, India. She has presented several papers in the international and national seminars and has dozens of research papers to her credit.

Water and Public Policy in India Politics, Rights, and Governance Deepti Acharya

First published 2022 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2022 Deepti Acharya The right of Deepti Acharya to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-1-032-00548-5 (hbk) ISBN: 978-1-032-07829-8 (pbk) ISBN: 978-1-003-21173-0 (ebk) DOI: 10.4324/9781003211730 Typeset in Sabon by SPi Technologies India Pvt Ltd (Straive)

MAA and PAPA

Contents

List of figures viii List of tables ix Preface x 1 Introduction

1

2 The concept of Right to Water: Emergence and evolution

12

3 Indian understanding on Right to Water

50

4 Right to Water in India’s national water policies

84

5 Conclusion: Towards Right to Water in India

151

Bibilography 166 Appendix A:  General Comment 15 195 Appendix B:  India’s National Water Policy – 1987 211 Appendix C:  India’s National Water Policy – 2002 219 Appendix D:  India’s National Water Policy – 2012 231 Index 245

Figures

1.1 1.2 2.1 2.2 2.3 3.1 3.2 4.1

Conceptual approach The flow of the discussion Dividing understanding on right to water: At global level Conceptual evolution of an idea can be called as Right to Water: expansion and relation What is Right to Water? (Derived through theoretical argument and establishments evolved through process of institutional framework) Major contributors in the rise of the idea of Right to Water in India Process of identifying and endorsing the idea of Right to Water in post-colonial independent India Water policy analysis guiding framework in context of the idea of Right to Water

3 4 18 28 32 72 73 85

Tables

2.1 Meaning and Flow of Right to Water 34 3.1 Understandings on Water Resources management and on the Idea of Right to Water: British Colonial India and Postcolonial Independent India 62 3.2 NGO Objectives and Major Aspects of Right to Water 68 4.1 Water for/to All: Available, Accessible and Acceptable 88 4.2 Children, Women, Disadvantaged Sections and Disabled as Special Beneficiaries 93 4.3 Needs and Priority of Water Uses 95 4.4 Government (Union as Well as State) as Duty Bearers 100 4.5 Duty-Bearing Responsibilities Private Sector as Water Supplier 104 4.6 Duties of Citizens, Civil Society and Research community (141) 106 4.7 Institutional Arrangements to Ensure Right to Water 110 4.8 National Objectives with Regional Preferences and Local Concerns (Special Cases of Drought and Floods) 114 4.9 Mechanisms to Facilitate, Protect and Promote Right to Water to All 119 4.10 Efficiency with Absence of Monopoly, Discrimination and Exploitation 126 4.11 Measures to Ensure Accountability, Transparency, and People’s Participation 132 4.12 Sustainability (for Future Use and Protection of Environment) 139 4.13 Monitoring Systems (Review and Assessment) 145

Preface

For those people who belong to “water-have areas”, a fact which provides that in India the water availability has been reduced to 1,486 cubic metres per person per year (as endorsed by the World Bank in 2019), can be merely a figure. However, for the individuals, communities and regions that are facing the consequences of the loss of water, it is a question of existence. Since the people who are water-poor are facing the problem of water shortage throughout the year, for them, availability and accessibility of water became a concern of the right. As I am a student of political and policy sciences, my sensitivity, sensibilities and concerns about such questions of existence are natural. This is because I am one of the victims who have experienced the meaning of no or limited water. As a resident of Rajasthan (Jaipur, Urban area), I had felt and lived with such burning questions of survival. I am mentioning the late 1980s and 1990s when annual per capita water availability in India was around 2,849 cubic meters per person, as the World Bank has reported. In those years, for families like us and others, a question of survival that could hold a promise of development and growth was a fake argument. The only meaning of development was to get a constant water supply from the nearest place. This was socialised and engendered so deeply that as a child, my belief about life and duty became limited to fetching and collecting water for daily uses. I still remember that in the “water-have-not” communities, the ability of a man or woman was pronounced based on his/her competence to fetch water. In my area, the strongest person of the family had a responsibility to fetch water for the entire family, and that too from a distant place. Considerably, this was the most common scenario. Spending three to four hours every day and climbing more than 50 stairs, just to get water, was not a surprise. This was so much of a part of our lives that for us, like many others, it was not a struggle. The principle of equality was relatively working here. Rich or upper-middle-class families were having just a few benefits. For instance, they could buy water from the “Water Tank Owner” or could have servants who could fetch water for them. Otherwise, the level of water tension was the same. To me, like others, the ownership status of these “Owners”, over water, was a matter of surprise. An unanswered question was that if the entire region was suffering

Preface  xi from water stress, then from where were these “Owners” getting water, and that too for selling? Many times, the purchase of water at a high price, from these Owners, had disturbed our monthly budget, due to which we had to compromise on many things, including social visits. On contemplation, I can recollect that at the cost of water, my family had missed many important social gatherings. Social visits and gatherings were not social, in the full sense. Due to the uncertainties associated with the water supply, the water fetchers of the family could hardly get a chance to visit relatives or attend social gatherings. They were bound to remain at home to fetch water. These water fetchers, who were the heroes for the family, were hardly popular among the neighbours. This was because, in the water queues, they were harsh to them. The uncertain condition of the water supply had left no room for mercy. In my colony, a senior citizen whom we used to call “dadi” had to manage with two buckets of water. Since she was living alone, there was nobody who could fetch water for her, and none of us was in a position to help her. About those who had physical difficulties, I have no words to write. Their pain and suffering are justifiably beyond any expression. Now, when I think about those days, I feel that for all of us, the question of availability, accessibility and affordability of water had created peculiar problems that had curtailed the right of surviving with happiness. For people like us, the unavailability of water had created a situation where the problem of no or limited water was not only a struggle to get water, but it had led to new social problems, where finding a partner for marriage was a never-ending struggle. A girl, who had played the role of “water fetcher or water accumulator” in her parental house, would hardly agree to get married to a boy who resides in the same situation. The fear was common because nobody wanted to spend his/her entire life fetching water. The criteria to get married was not a choice or love, but rather the availability of water. One of my friends got married to a middle-aged man just because he had his own house, with an ample water supply. Yes, the scenario is unimaginable at so many levels, but so it is. The problem was so grave that it had killed the spirit and desire to think and work for better earning. My father, like his friends, was more worried about fetching and collecting water than about his enhancement and development – personal and professional. The majority of the young boys and girls of my area who were “Bhaiyas and didis” to me, were the water heroes, and hence they had no time to study or train for a job. The shortage of water has made the whole generation so busy that they had no time to think about their future. There was no pain, no voice, just a loud silence. The story that weaves in common across every section of the society was that of a much-awaited noise of slow-flowing water and a rough, hard voice of feet. A couple of years ago, as an Assistant Professor and an employee of The Maharaja Sayajirao University of Baroda, I started thinking whether the story had changed. I was curious to know if the Indian government/state

xii  Preface government(s) had made any efforts to change the scenario. Since India is federal with a Union of states, my expectations were more from the Union government, and hence, I was keen if any of the national water policy had acknowledged water as a right and had entitled those people bereft of water with categorisation as “water-have-nots”. My curiosity was at an all-time high because, in 2015, the United Nations – with 195 nations – had replaced the Millennium Development Goals with the Sustainable Development Goals (17 goals). The new goals were formulated with a belief that different nations with the United Nations can change the world for the better. Significantly, for this, the idea of sustainable development has emphasised ensuring availability and sustainable management of water and sanitation for all (at present, Goal 6) and has endorsed this as a right. The United Nations, along with other nations, has to achieve these goals by 2030. Since India is one of the signatories of the promise, for me it was interesting to investigate how Indian governments will keep the promise, especially when per-person average water availability is reduced and is reducing constantly. This book is an outcome of these curiosities and interests, which, instead of underlining the problem of water scarcity and stress, argues for water justice. My basic concern and interest, about the right to water, has made this book multifold. This is because, to work on the line of these interests, this book investigates multiple subjects. The book intends to investigate the theoretical understandings and implications of the Right to Water and explore the status of the Right to Water in India, particularly concerning constitutional provisions, legal frameworks and judicial interpretations. The book further examines the water governance framework concerning the Right to Water from 1947 to 1987 and studies the three national water policies, drafted respectively in 1989, 2002 and 2012. The core aim of the analysis of these policies is to explore if the three policies embrace the idea of the Right to Water. The book explores the idea of the Right to Water, in the larger context; its significance is not limited to India, but it is global. The strength of the book lies specifically in three areas i.e., in the discourse of right to water, water discourses in India and perception on Right to Water and lastly to water policy frameworks. A normative and empirical commitment of this book has expanded its significance that focuses on the idea of Right to Water and argues to ensure it through national water policies as the part of the execution of water justice. The focus of this book is extremely relevant for water governance, as it conceptualises the idea of the Right to Water in the context of the policy framework. This book is intended for students and scholars in the interdisciplinary subjects of political philosophy, public policy and environment as well as readers with an interest in water policies in India and the region. It will be of interest to policy makers, policy planners, bureaucrats, non-governmental organizations working on water-related issues and the scholars interested

Preface  xiii in water-related jurisdictions, and so it should find a place in their personal and institutional libraries. A word of thanks is due to all those people whose support knowledge and input form an essential part of the present book. I am grateful to the author of the books and research articles on water and water policies. I owe an enormous debt of gratitude to Professor Amit Dholakia, Department of Political Science, the Maharaja Sayajirao University of Baroda, who has remained a great source of support, advice and knowledge. I also acknowledge the Hansa Mehta Library and Nehru Memorial Library for providing access to a wide body of literature. I would like to thank Routledge management for placing this research in academia. It was the personal care and interest of Mr. Aakash Chakrabarty and his able and efficient team, who ensured the publication of the book. This book is dedicated to those generations whose voices have flowed with the water and have not reached the top level. I dedicate this work to Maa and Papa, who with all difficulties of our lives have remained a pillar of strength for me. They are the real source of inspiration throughout the academic career that has led this book here in the first place.

1 Introduction

Arguing water as a right with reference to Right to Water, and examining the same in the context of India’s national water policies, is an explicit objective of this book. The book, for this purpose presents normative and empirical discussions on a fact that water is a right and argues to realise the significance of water policies in the context of Right to Water. The core focus of this book is relevant, as the issue of right to water is complex and increasingly dynamic. Globally, it has imposed new challenges to water freedoms and water equalities. In the tradition of policy research, the issue and content of right to water is often studied in the background of international declarations. This has often missed or ignored necessary normative descriptions, and therefore studies have failed to address the problem of right to water as the “central question” of water justice. This book, while arguing for water justice as the central question of water governance, insists that the entitlement of individuals over water resources will be possible only if a nation will understand the concept of Right to Water and will inculcate its values in its water policies. The book, in this stance, explains that the notion of Right to Water is an empirical question which needs to be described and understood against a theoretical background. It conceptualises the idea of Right to Water with the reference of normative arguments, empirical agreements and arrangements evolved at the regional and national levels. Importantly, in the book, the idea of Right to Water has been discussed as a policy concern, and hence it has not presented a descriptive analysis on the problem of water scarcity or abundance. Instead of doing so, the book has endorsed that water, in all situations, should be preserved as a right, and its preservation should be ensured through a policy. To preserve individuals’ right over water resources, policies are considered as significant because as the choices of the government, they are meant to address uncertainties; and since availability of water on earth and in India is most uncertain, a discussion on the idea of Right to Water in the line of policy discourses in essential. The book, while drawing the idea of Right to Water, argues that the actual right to water is an issue of concern to water justice, and hence the concept of Right to Water can have many meanings and interpretations.1 DOI: 10.4324/9781003211730-1

2  Introduction The discussions presented in this book are drawn upon the facts and arguments of previous studies which have commonly concluded that globally, ensuring right to water to all is becoming increasing difficult (Gleick, 1993; Iyer, 2007; Shiva, 2002; Salman and McInerney-Lankford, 2006; Brooks, 2007, 2010; Bakker, 2010; Cullet, 2010, 2013; D’Souza, 2008; Thielbörger, 2014; Singh, 2016). The book, in the context of identified difficulties, takes a major shift from discussing the water problem in the reference of water pollution (Larry, Deborah, and Knox, 1990; Sen, 2017); water wastage, health and sanitation (Mckeown and Bugyi, 2015); water stress/scarcity and quality of water resources and their relation with water conflicts and water disputes (Anderson, 1983; Gleick, 1993; Rogers, Llamas, and Cortina, 2006; Gupta, 2008; Shiva, 1989; Colopy, 2012; Chellaney, 2014; Kallen, 2015; Steenhuis and Warhaft, 2016), floods, drought, food, irrigation, pollution and management (Rao, 1991; Maloney and Raju, 1994; Vaidyanathan, 1999; Vaidyanathan & Oudshoom, 2004; Iyer, 2007, Shiva, 2002; Sridhar, Thangaradjou, Senthil, and Kannan, 2006; Kumar and Furlong, 2012; Chellaney, 2019); water management and water laws (Cullet, 2009, 2010, 2012, 2013); and rights of lower and upper riparian states (Shiva, 2002; Iyer, 2007, 2009; Chellaney, 2014). Instead, it focuses on the idea of Right to Water and investigates contents of the national water policies of the union government in India in the same context. While taking such a shift, the book argues that in the water discourses, the meaning(s) and elements of Right to Water are not explicit. They are implicit and are needed to be derived from various sources, evolved at international, regional and national levels. In respect to this stance, this book elaborates and discusses upon the process of the conceptualisation of the idea of Right to Water. The book, for this purpose, focuses upon the global and Indian perspective of the concept of Right to Water. While so doing, the book reads and interprets the international, regional and national documents, the verdicts of the Indian judiciary and deeds of Indian civil societies, not as a guarantor of right to water, but in realising their importance as a definer of Right to Water. Since the second major objective of this volume is to examine India’s national water policies, the book contextualises the same, critically, with respect to the water policies drafted by the union government of India respectively in 1987, 2002 and 2012.2

1.1 Key focuses and framework for the discussion This book, while explaining the idea of Right to Water in the context of the water policies of the union government in India, embraces two major areas of political studies, i.e. political philosophy and public policy analysis. Chapter 2 of the book explores the meaning of Right to Water as a part of political philosophy and describes India’s national water policies as part of public policy analysis in Chapter 4. Chapter 3 focuses specifically on India’s understanding on the idea of Right to Water.

Introduction  3 To attain the desired comprehensive understanding on the idea of Right to Water, the book focuses on the Right Based Approach throughout. Maintaining focus on the Right Based Approach has multiple advantages as it offers directive principles and values of obligation, accountability, respect and transparency to state policies that helps to standardise the value of Right to Water. At the same time, the approach helps in policy making and policy analysis and also in setting priorities for water policy to ensure that no person is deprived of sufficient water supply. The discussions and arguments of this book are developed on the basis of a framework, which presents the core areas and flows of the discussions. The key topics of discussion of this book can be understood from Figure 1.1. Figure 1.1 draws the key focuses of the book. It presents that in this book: • Water is at the centre and is considered as a basic biological need for life. • Water as a right is argued in the context of Right to Water and meanings of it are drawn from theoretical and institutional understandings, evolved at the global level and in India. • India’s national water policies are analysed on the basis of the understandings drawn from the theoretical and institutional interpretations.

India’s National Water Policies: Critical Analysis of 1987, 2002, 2012 Water as a basic biological need for life

Meaning of Right to Water: theoretical and institutional understandings evolved at the global level and in India

Figure 1.1  Conceptual approach.

4  Introduction The three key focuses of the book, i.e. water, the idea of Right to Water and India’s national water polices, are interlinked.

1.2 Flow of the discussion To present the discussion and to maintain the connection between the key focuses, this book has maintained a flow. The discussion, in this regard has three steps and each step represents to one aim, as Figure 1.2 shows. Distributive Towards Right to Water

Concept1 Right to Water

Benchmark2 Core principles of Right to Water

Water Policy Strategies3 Management

Figure 1.2  The flow of the discussion.

Figure 1.2 shows that in this book, the emergence and evolution of the concept of Right to Water is discussed as the first step. The second step of the discussion has identified the core principles of Right to Water as the ideal benchmarks and has used them as a tool to analyse India’s national water policies, respectively drafted in 1989, 2002 and 2012. To make the analysis precisely in favour of the idea of Right to Water, and to explore if India’s national water policies are inclined towards Right to Water, the book has investigated the distributive and management strategies, proposed by the three national water policies, as the third step. Figures 1.1 and 1.2 together draw the conceptual and theoretical frameworks of Right to Water that this book explores, and they analyse its values in the context of water policy frameworks of the union governments in India. The book, for this purpose, uses a qualitative approach and combines critical hermeneutics with critical content analysis. Noticeably, critical hermeneutics is used to understand the complex argumentative narrations which have emerged and evolved in the idea of Right to Water, and critical content analysis is used to identify and explore if the three national water policies are embracing the idea of Right to Water.

1.3 Water as a right in water discourses In academia, multiple dimensions of water and issues concerning it are allied with technical aspects. However, traditional understandings shifted mainly after the Durbin Conference,3 as they follow classical liberal trends in water governance. A paradigm shift has divided water literature into two different approaches. The first approach is market-based that moves towards privatisation, the trends of which are noticed in World Bank group4 activities. The second approach is right-based, which emphasises water equality. (Bakker, 2010: Privatizing Water: Governance Failure and the World’s Urban Water Crisis). A market-based approach in water governance is observed as an obvious part of neoliberal culture. However, this

Introduction  5 obviousness is profoundly challenged by the water warriors (name given by the water activist to themselves) as “liberal environmentalism” (Bernstein, 2001), “green neoliberalism” (Goldman, 2005), or market environmentalism (Bakker, 2004), and as “neoliberalization of nature” (McAfee, 2003; Bridge, 2002; Mansfield, 2004; McCarthy, 2004; McCarthy and Prudham, 2004; Perreault, 2006). The scholars, while arguing against neoliberalism, have humanised the water-related issues and have highlighted human sufferings, extensively. The works done by Salman and McInerney-Lankford (2006), Riedel (2006), Baviskar (1995), Shah (2009), Asthana (2009), Bandyopadhyay (2009), Iyer (2009), Cullet and Koonan (2011), Rayner (2010), Shiva (2002), Amanda and Ripley (2011) and Winkler (2014) are the few examples of the same. Both the discourses, that are opposite in arguments, are keen to solve the problems related to water use and management in favour of/for life, development and environment. However, the consensus on the idea that water is a right has not evolved with the same grounding and objectives. As such, the arguments and studies that focus on the economic aspects of water are efficiency oriented. The studies made in this regard argue to ensure water efficiency in all situations. According to such studies, efficiency is a tool to ensure justice, and so the focus of water management should be on efficiency (World Bank, 1993). In deep contrast to this, philosophical arguments that are concerned with ensuring water as a right are purely justice oriented. For such studies, equality is justice (Baxi, 2012). The arguments evolved in this respect emphasise water equality over water efficiency. Evidently, between the two, contradictions are extreme and arguments overlap each other. In water studies, such contradictions are classified and studied as neoliberalism (Cleaver and Elson, 1995; Spiertz and Wiber, 1996; Lipschutz and Crawford, 1998; Barlow and Clarke 2002; McAfee, 1999; Bond, 2000) vs. Post-neoliberalism (Bakker, 2010). In water policy studies, this is further framed and analysed as Washington Consensus and Post Washington Consensus (SandBrook, 2005). Due to the influence of Washington Consensus and Post Washington Consensus, the consent on the idea that water is a right is attempted to be achieved through the institutionalisation of the idea, and the initiatives are made in this regard at various levels. However, in comparison to initiatives made by regional and national institutions, undertakings made by the international organisations like United Nations (hereafter UN) are found to be more influential due to their approach and reach. The principles offered by the UN through resolutions and declarations insist upon recognising water as a human right. These ideas are theorised (not in the traditional senses) in the human rights tradition and are recognised as the third generation of Human Rights (Salman and McInerney-Lankford (2006)).5 The principles offered by the UN Declarations have added humanitarian values in the water management processes. However, the idea has not remained unchallenged for long. The principles and undertaking of the UN that has stimulated the concept of Human Right to Water have been challenged

6  Introduction by academia. The ideas are fundamentally criticised by the “Water Warriors”, a group of water activists and water scholars who have initiated the Global Justice Movement with reference to the individual’s rights over water (Bakker, 2001; Shiva, 2002; D’Souza, 2008; Boelens, Perreault, and Vos, 2018). A group of scholars, while opposing the idea of Human Right to Water, basically argued against the idea of international institutionalisation of the idea that water is a right. These scholars have claimed that the globalisation of the idea has created a situation of cross-border obligations, which cannot be perceived in favour of water-poor states. Also, undertakings made under the internationalisation of the rights over water are so strict that their implementation ultimately goes against the water interests of waterpoor states as they introduce the same benchmarks for different situations. For the water-poor states, measures that are decided by water-rich states are indeed unachievable because their water-related needs and situations of water availability are vastly different from those of the water-rich states. In the global indexes, the unattainability of standardised measures by these states is often considered as a failure of the states. Since these states are the signatories of the declarations, the failure permits international actors to be active in water politics (World Bank and International Monetary Fund) and to intervene in water management processes of water-poor states. Since every interference has a cost, the involvement of international actors in the water management process of water-poor states raises serious issues concerning water affordability and dilutes the spirit of right to water (Bakker, 2010; Mestrallet, 2001; Shiva, 2002, 2010; Barlow and Clarke, 2002; Grusky, 2002; Shrybman, 2002). In the view of the serious consequences of the internationalisation of the idea that water is a right, scholars like Karen Bakker (2001, 2010), Ramaswamy Iyer (2007), Vandana Shiva (2002) and P. Sangameswaran (2007) argue and advocate for consideration of the term Right to Water over Human Right to Water. The fundamental claim of water scholars is that the principles offered by the term Right to Water are more real in the sense that while emphasising to ensure availability and accessibility of water to all, they consider the availability of water resources at the local level. This gives confidence to the states and the local authorities, responsible for distribution and management of water, to take appropriate decisions in favour of right to water to all. Further, the authorisation on water resources that are limited and uncertain empowers and enables the local authorities to fulfil cultural and economic requirements of different societies.

1.4 Water scenario in India According to a report published in ‘Maps of India’ on 14 March 2021, the per capita availability of water in India has gone down from 6,042 cubic metres in 1947 to about 1,486 cubic metres in 2021.6 Since water availability is decreasing rapidly, the reports published by the United Nations

Introduction  7 (respectively in March 2019 by UN Water Conservation and Development and in March 2020 by UN World Water Development) have estimated that by 2040 there will be no drinking water available in almost all of India. It is warned that the situation will be grimmer by 2051 because the per capita availability of water will reduce to 1,228 cubic metres. The problem is even noted by NITI Aayog. While pointing to the problem of water scarcity, the Aayog, in 2017, stated that due to the water crisis in India, 600 million people face high to extreme water stress, whereas 75 percent of households do not have drinking water on premise and 84 percent of rural households do not have pipe water access.7 The problem related to water stress and scarcity is extended due to failure of conservation and protection of water resources and has ultimately affected the availability of drinking water. In the past few years, it is noted that the scarcity or stress is faced even in the situation like water abundance. For instance, there are shortages of drinking water in Kerala, Odisha, Punjab, Maharashtra and Gujarat, where good rain is not solving the problem of water shortage. This indicates that the problem of water scarcity and management is not always natural, but many times it is artificial as well, as claimed by water scholars like Shiva and Bakker. These scholars explain that liberalised justification of water use for development over the use of water for life is one of the factors which have created artificial scarcity. Since the use of water for developmental purposes has caused water pollution and has added to the cost of water use, the problem that was initially merely one of availability became the problem of accessibility, acceptability and affordability as well. The question of accessibility, acceptability and affordability has affected commoners the most and has suspended the individual’s rights over water resources to a larger extent. Since unfair justifications of water use and mismanagement of water resources create situations of water injustice, it is important to study the idea of Right to Water with the perspective of social sciences and should assure and maintain the same in the policy context.

1.5 National Water Policies of India Water planning in India has multiple objectives. Along with drinking and domestic purposes, planning of water management is essential for food security and development, aspects which have a bearing on poverty elimination. The multilayered requirement was attempted to be addressed with the help of water policies drafted respectively in 1987 under the leadership of Prime Minister Rajiv Gandhi, in 2002 under the leadership of Prime Minister Atal Bihari Vajpayee and lastly in 2012 under the leadership of Prime Minister Manmohan Singh.8 All these policies have comprehensive objectives that intensively focus on water management, cover all dimensions of water management, including irrigation and industrial planning along with environmental protection. The successive Indian governments have claimed that the policies for water management are efficient and are

8  Introduction capable to make the idea of Right to Water a reality, but the truth is yet to be investigated.

1.6 Aim: the choice of Right to Water in the context of national water policies of India In June 2019, Chennai’s main reservoirs had ran completely dry, proving that the fear that has been constantly expressed by water experts about the acute water conditions of India was justified. In Chennai, this was the first time in history when schools and offices were shut down due to a water shortage. The situation further proved that the water planning and management process that have been introduced since independence are not based on reality and have failed to assure water to all. For India, which is one of the signatories of the Sustainable Development Goals and, in 2015, confirmed its commitment to realise the goal of securing water for all by 2030, the situation like such is worrisome. Such extreme failures of water governance raise a fundamental question about India’s understanding on Right to Water and even create doubts about the water policy frameworks that have emerged with the national water policies of 1987, 2002 and 2012. What went wrong in the water policy process, and why? A fundamental question before India concerns why policies have failed in the implementation processes, as NITI Ayoga has pointed in 2019. The failures raise a question about whether the content of India’s national water policies are based on a Right Based Approach. To address these fundamental questions, this book draws discussions in three references – i.e. the meanings of Right to Water, India’s understanding on Right to Water and the status of Right to Water in India’s national water policies. Clearly, the aim of this book is fourfold. First, it aims to bring forth a new understanding on water discourses by arguing that to assure and maintain rights of individuals over water resources, it is essential to understand the meanings and elements of Right to Water. Second, towards the end, the book aims to explore the Indian understanding on the idea of Right to Water and, thirdly, the contents of the water policies in the context of the idea of Right to Water. The book in the reference to this aim focuses on the distributive and management strategies proposed by the three national water policies and investigates if the national water policies of India, respectively drafted in 1987, 2002 and 2012, are embracing the values of Right to Water. Finally, through this effort, the book aims to enrich water justice discourses by introducing Right to Water in the water governance perspective.

1.7 Significance and outline of the book This book has adopted a problem-solving approach. It shifts the focus of the traditional water discourses by introducing the idea of Right to Water and incorporating its value in the water policies for the fulfilment of right to water. For this purpose, the book narrows down India’s national water

Introduction  9 policies in the context of Right to Water, which actually has entitled commoners to claim and have water as their right. In respect to its purposes and approach, the significance of this book can be claimed on multiple grounds. For instance, the book has (1) simplified the idea of Right to Water by narrowing down the claims of individuals on water and arguing it as a claim against local authorities; (2) recognised, acknowledged and entitled individual’s right over water more appropriately as it prevents interventions of international actors against the will of the local inhabitants; (3) introduced the process of evolution of Right to Water and scrutinised the relationship between normative contents and theoretical arguments which have emerged at different levels, and by doing so has contributed to understanding the argumentative perceptions on the idea of Right to Water and has helped to attain the institutional developments on the same; (4) looked into the idea beyond the undertaking of the legislature and the executive and has placed the Indian judiciary and civil society as expounders of Right to Water; (5) offered a useful tool to analyse the contents of water laws, water planning and water policies in the context of Right to Water, called the Water Policy Analysis Guiding Framework; (6) offered practical meaning to Right to Water and by this suggested that what actually policy makers and planners are supposed to do; (7) has explained and ascertained the declarations of international, regional and national documents as interpreters of Right to Water. In view of these many significant factors, this book is an addition to the discourse of rights as it pinpoints and discusses the threats arising before the water freedoms and water equalities. Further, since this volume has discussed Right to Water in the context of water policies drafted by the union government in India and not in the reference of legal frameworks, the study has actually established the value of policy framework in fulfilment of right to water.

1.8 Scheme of chapters To justify the choice of Right to Water in the context of National Water Policies of India and to present the analysis in a coherent way, the discussions of the book are divided into five chapters. Chapter 1: Introduction “Introduces the book” This first chapter sought to explain the background, significance, and objectives of this book. The chapter presented the key interests of the book and highlighted the rationale of the same. Chapter 2: The Concept of Right to Water: Emergence and Evolution “Exploring the idea of Right to Water” Chapter 2 is the foundation of the book. To make a critical analysis of India’s national water policies, it proposes the meaning, background, understandings and elements of Right to Water.

10  Introduction Chapter 3: Indian Understanding on Right to Water “Seeking Indian perspective on the idea of Right to Water” This chapter is a continuation of Chapter 2 and focuses on the Indian perspective of Right to Water. To present discussions on the idea of Right to Water in the Indian context, the chapter presents historical descriptions and analyses the status of right to water in pre- and postindependence India. Chapter 4: Right to Water in India’s National Water Policies “Investigating India’s national water policies in the context of Right to Water” This chapter turns to analyse the idea of Right to Water in the context of India’s national water policies, drafted respectively in 1987, 2002 and 2012. The chapter, for this purpose, recognises distributive and management strategies and describes the status of the idea of Right to Water in the national policies, introduces a framework called “Water Policy Analysis Guiding Framework”. Chapter 5: Towards Right to Water in India “Presenting the concluding words” This chapter presents concluding observations and outlook. It further elaborates what policy makers can do to draft policy documents in favour of Right to Water.

Notes 1 It is important to note that throughout this book, “Right to Water”, i.e. caps, indicates the concept; and “right to water”, i.e. without caps, indicates the right itself. 2 The Union Minister of State for Jal Shakti and Social Justice and Empowerment, Shri Rattan Lal Kataria, while giving a written reply in Lok Sabha, informed that to address the present challenges in water sector, revision of National Water Policy 2012 (http://mowr.gov.in/policies-guideline/policies/national-water-policy. Retrieved on 22 May 2021) was envisaged by the Department of Water Resources, River Development and Ganga Rejuvenation, Ministry of Jal Shakti, and a drafting committee was constituted on 5 November 2019 to revise the National Water Policy. 3 Durbin Conference 1992, principle no. 4: Water is an economic good and the emphasis is to treat it as a commodity. 4 The term refers to the World Bank and its affiliates, the International Finance Corporation and the International Bank for Reconstruction and Development. 5 Some scholars contend that the idea of Human Right to Water was first argued in theoretical discourses and then adopted by the United Nations (for instance, D’Souza, 2008). Since the objective of this book is not to throw light on the debate, the author here ignores the debate and puts forth both arguments. 6 Available at https://www.mapsofindia.com/my-india/india/world-water-day2017-indias-wake-up-call. Retrieved on 21 May 2021.

Introduction  11 7 For details, see https://timesofindia.indiatimes.com/city/ahmedabad/gujarattops-niti-aayogs-water-management-index/articleshow/64589595.cms. Retrieved on 23 May 2021. 8 The Government of India has constituted a committee for the formulation of the fourth National Water Policy i.e. NWP 2020; (National Water Policy Plan 2020). For the details see: https://niti.gov.in/planningcommission.gov.in/docs/reports/ genrep/bkpap2020/10_bg2020.pdf (Retrieved on 22 May 2021); however, since the process is underway as of this writing, it is not appropriate to mention the details of the same. A brief is given in Chapter 3 of this book.

2 The concept of Right to Water Emergence and evolution

Introduction The key purpose of rights is to satisfy human needs and enable them to live with dignity. With regard to needs, the idea that water is a right is fundamentally inarguable, because it is a common requirement of human existence (Gleick, 1996, 2000; Scanlon, Cassar and Nemes, 2004). The idea is simple; however, in modern times the argument of “common requirement of human survival” requires further clarification. The requirement is urgent because neoliberals have argued for development as a common need, and that to attain it, water should be seen as multidimensional and emphasised on the multiple uses for development. Clearly, with the new shift, uses of water for other than life itself is justified. As a part of water governance, this has allowed water to be claimed and used for developmental purposes at the cost of life itself. Since in academia, the meaning elements and scope of rights over water and water resources are not clear, it is difficult to suspend the claims which insist that water is for development and can be used at the cost of life itself. A winning position of this argument is challenging for the water-poor states because it allows and justifies uses of the larger part of water resources by influential groups for industrial and agricultural purposes. Since availability and accessibility of water and water resources are limited, uncertain and unequal, this further compromises with the water use for drinking and domestic purposes. For the priority-wise entitlement of water as a right, it is essential to narrow down the idea of Right to Water and explore what can be the appropriate meaning of a fact that water is a right, whose right it is and what it contains. This chapter takes the call and attempts to answer these questions. To make an investigation in the light of the aforementioned questions, this chapter focuses on the philosophical arguments and institutional undertakings that have emerged and evolved at global, regional and national levels. The chapter, instead of discussing them as a guarantor of right to water, analyses them as the interpreter of the same.

DOI: 10.4324/9781003211730-2

The concept of Right to Water  13

2.1 Towards water as a right in modern political thought An argument that water is a right can be observed in modern political thought.1 In regard to this, contributions of scholars like Hobbes, Locke, Hegel, Blackstone, Getzler and Nozick are significant. These scholars, while describing water as a right, have focused on the different issues concerning water uses and have discussed this idea mainly in three contexts: (i) need of/for life (Hobbes, Locke); (ii) ownership (Locke, Blackstone) and (iii) essential elements of development (Nozick). In both Hobbesian and Lockean theses, water is considered a need of life. Considerably, the Hobbesian account addresses why water is required to be considered as a right; the Lockean perspective, on the other hand, focuses on how the same can be established as a right. While answering the why of the question, Hobbes explains that water is one of the basic necessities of life and is essential for human survival. He highlights the significance of water in his tenth natural law, writing that: As it is necessary for all men who seek peace to lay down certain rights of nature, that is to say, not to have liberty to do whatever they like, so it is also necessary for man’s life to retain some rights – the right to take care of their own bodies, to enjoy air, water, motion, ways to go from place to place, and everything else that a man needs if he is to live, or to live well.2 For Hobbes, water is a right; the use of water is a liberty that is essential to maintain peace (opening words of Leviathan, chapter 15). For him, right on water is claimable because it comes under the category of right to self-preservation (Donnelly, 1981). In his writing, Hobbes explains that man has the right to have a body which includes protection of body as well. For him, it is the first right of man, which obviously includes all basic needs, including water. In this sense, his argument of right to self-preservation is a right to have water. His idea of self-preservation is a claim for water not merely for life, but for a good life. The idea is further expanded through the Lockean perception. Locke explains how water as a right can be attained. For him, having a right over water as a right to life is not a plain right, but enjoyment of it is attached with labour. In his work, he explains that: Though the water running in the fountain is every one’s, yet who can doubt, but that in the pitcher is his only who drew it out? His labour hath taken it out of the hands of nature, where it was common, and belonged equally to all her children, and hath thereby appropriated it to himself.3

14  The concept of Right to Water Like Hobbes, his texts accept that water is a gift of nature and belongs to all. However, his idea of everyone’s right is not a natural right, but it is a right that can be enjoyed only if it has added human labour. Thus, for him, water is common until labour is not added to it; added labour gives a sense of ownership on water, which indeed is not a choice or a matter of dominance. In the Second Treatise of Government, chapter 5, paragraph 33, Locke explains this in the following words: Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: and the case of land and water, where there is enough of both, is perfectly the same. The expression explains that having ownership of water, as a result of labour, is negative freedom on use and claim on water. Since human labour has natural limitations, there is an obvious limitation of right over water as well. He clarifies that right over water can be claimed as “just” only if it has satisfied a proviso that is based on a principle that enough must be left for others. Clearly, his views on use of water are based on morality, which insists that a sufficient and good amount of water must be left for others and there must be no wastage. Notably, these two statements together provide Locke’s understanding about water and offer three basic elements which together argue for a proviso. The first understanding states that water is the most significant element for the existence of life. The second insists that water be made available to all and that water can be enjoyed only by adding labour to it; and the last argues that water is available to all and should not be owned by one to deprive others. The Lockean idea of labour is redefined by Blackstone, which he calls “law of labour”, i.e. based on the principles of law of nature. Blackstone, while reflecting on the idea, infers that water is a moveable thing; therefore, ownership, attained by adding labour into it, cannot be permanent in nature, and changes with the change of labourer. This means that one who will add his labour to fetch water will own it. Thus, in his concept, the idea is defined with reference to temporary ownership. In one of his texts, “Commentaries on the Law of England”, Chapter 2:18, he writes: “Water is a moveable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein”.4 Unlike Locke and Blackstone, in Getzler’s view, water is a real right and is a subject of personal property that is measured on the basis of its transient quality. He explains this in the following words: “Water is a subject to real rights, but its transient qualities give it some of the character of personal property” (Getzler, 2004). For Cicero5 and Pufendorf,6 however, such is not the fact. They argue that fresh water, like fire and council, should be given free because it is useful to the receiver and of no trouble to the giver.7 Similar thoughts are expressed by Adam Smith (1776).

The concept of Right to Water  15 For him, water is a basic need, and so is a public good. He suggests that there can be no price on water.8 In the discussions on water as a right, Hegel’s argument is interestingly a claim against the Lockean proviso of labour. For Hegel, water is a free right. According to him, water is the only raw material which does not need to be worked on before use; we can drink it as we find it. Therefore, there can be no claim on water as a right to property; even a claim as a result of labour is not permissible.9 Nozick, in his expression of justice, rejects what Hegel opined and follows the Lockean proviso with certain limitations. He has viewed water as a use right and argued it as an individual property, which ultimately allows an individual to do what s/he wants to do with it (1974). His understanding about right to property has made water an absolute right of an individual, transfer of which requires consent of the owner. Noticeably, in Nozick’s (1974) works, the idea of self is dominating, which indeed is different from Locke’s understanding,10 Nozick has re-interpreted the Lockean proviso in individualist terms and states that “enough and as good be left for others, but in case of dry his/her ownership on his/her own resources can’t be denied, rejected or challenged by any authority”. He explains this as: This excludes … his using it in a way, in coordination with others or independently of them, so as to violate the proviso by making the situation of others worse than their baseline situation. … Thus a person may not appropriate the only water hole in a desert and charge what he will. Nor may he charge what he will if he possesses one, and unfortunately it happens that all the water holes in the desert dry up, except for his, this unfortunate circumstance, admittedly no fault of his. (Nozick, 1974) Evidently, unlike Locke, Nozick is not concerned with the adverse impacts of private ownership. His extreme individualism makes survival of others difficult as they don’t have any other source of water. For him, as everything is better off after appropriation, then that appropriation is just (1974). Here, Nozick values water for its inherent virtue of “all-purpose means” that satisfy vital necessitates and offers a “well-being achievement” that, however, is selectively in favour of water owners. A visible fact about the understandings of these scholars is that for them, water is a right. However, the logics of the same are different. While accepting that water is a right, they mainly have explained two different views. One of these views states water as a free right, and the other argues that water is a right that results from labour and has linked it with right to property. Since the ideas of the modern political thinkers are not further discussed in required detail, relevance of their views cannot be argued as a theory of Right to Water. However, even with the existing limitations, in comparison to all other views, Lockean understanding about water can be

16  The concept of Right to Water taken as the inspiration of the modern conception of Right to Water. Like modern states, Locke’s major concern is to define and assure the ability to access water. In policy making, the idea can be evolved as a concept that insists upon guaranteeing that no single individual or institution will have entire control over water. In the situation of water stress, guarantee of such nature is essential as in reality of the “many uses of water”,11 it protects the individual’s right to have water. The understanding is even otherwise worth considering as Locke’s idea of labour is reinterpreted in the nineteenth and twentieth centuries, where labour is seen as efficiency. Notably, the revision is not the revision of proviso, as in the new argument, water is not merely seen as life but is considered and treated as a utility which does not argue about leaving enough water for others. Globally, principles developed under this view are known as Thatcherism12 and Washington Consensus.13 In political philosophy, principles introduced by Thatcherism and Washington Consensus have evolved new trends that has added new values to liberalism. The principles insist that water is a right because it has many utilities. This ultimately has created an argument that as water has multiple uses, it is essential to protect and preserve it efficiently. Importantly, the requirements considered in the neoliberal perspective have made a universal call to adopt neoliberal values in water management. It has been ascertained that water is not a free right, but a right which includes cost of labour, i.e. management. The idea has valued labour more than water itself and has encouraged states in the move towards water privatisation (Cleaver and Elson, 1995; Spiertz and Wiber, 1996; Lipschutz, 1996; Barlow and Clarke, 2002; McAfee, 1999; Bond, 2000). Since the idea has created a threat to water equality, it has received notable objections from different discourses including neo-Marxism, eco-feminism and post-neoliberalism. Significantly, the discussions that have emerged in the form of objections have created new discourses, and together they have promoted the idea that water is a right. However, instead of offering meanings and aspects of right to water, these have debated the justifications of their own arguments. For instance, while justifying water as a right, neo-Marxism argues that water is a common need and not merely a utility resource, as neoliberalism insists. To counter the idea of water privatisation, Marxism insists that water be considered as a free right (Bernstein, 2001; McAfee, 2003; Bridge, 2002; Mansfield, 2004; McCarthy, 2004; McCarthy and Prudham, 2004; Goldman, 2005; Perreault, 2006). Feminist discourse argues against both neoliberalism and neo-Marxism and insists that water is the need of all but foremost the right of women. Notably, in water studies, such arguments have evolved under eco-feminism (Griffin, 1978; Gwyn, 1997; Shiva, 2002; Plumwood, 1994; Bleisch, 2006). Different from these arguments, the human rights discourse argues for water equality and water justice. Globally, the idea has evolved as an argument against neoliberalism and is known as post-neoliberalism (Gleick, 1993; Mclnerney and Lankford, 2004; Riedel, 2008; Brand, 2009; Saden, 2009; Burdick, Oxhorn and Roberts, 2009; Escobar, 2010; Sandbrook, 2011; Lancu 2013; Winkler, 2014; Risse, 2015; McDonald, 2016).

The concept of Right to Water  17 Note that these discourses, instead of offering required details on the idea of Right to Water, present arguments that are articulated to determine to whom water should be given and with what logic. Since there is an absence of a specific meaning of right to water, in all four schools of thought – neoliberalism, neo-Marxism, eco-feminism and post-neoliberalism – emergence of the concept of Right to Water cannot be claimed as a result of theoretical advancements (D’Souza, 2008). As political theory has left out the question that asks the meaning and elements of Right to Water, it is important to seek answers from other discourses that are equally political in nature. In this respect, to fill the gap, the philosophical arguments and institutional understandings that have emerged and evolved in the form of declarations, resolutions and constitutional arrangements can be examined.

2.2 Conceptual evolution of the idea of Right to Water An argument which insists that water be recognised as a right is institutionalised globally. Significantly, the idea is evolved as a process14 and emerged in the context of international, regional and national arguments, events and undertakings.15 The events and declarations together have created three understandings on right to water, respectively effective for international, regional and national water governance. Importantly, at the international level, ideas that can be further explored as Right to Water are evolved in two contexts; this can be classified further as normative discussions and institutional frameworks.16 2.2.1 International level: Water is a Right At the international level, the idea that can be called as Right to Water is presented, argued and evolved in two discourses.17 The first discourse argues that the idea has emerged and evolved along with the process of insititutionalisation of the idea. The basic argument here is that international institutions have identified and discussed that water is a right and have assured the right to water through international documents. However, the other discourse, which evolved as part of the water justice movement, rejects the claim by saying that the real contributors are water scholars and water activists as they put pressure on states to assure right to water to all. Globally, these two discourses are evolved as normative support and institutional frameworks. Normative support presents arguments against neoliberalism.18 Institutional framework, on the other hand, arises as a consequence of institutionalisation of the idea that insists that water is a right. In this regard, international humanitarian and criminal law treaties19 and in international environmental and labour treaties20 are some of the initial undertakings. However, since these initiatives ensure water as a right in specific conditions only, as for instance, providing water to war prisoners and to employees at the workplace,21 their relevance is not realised in a wider sense. In comparing to them the undertakings and arguments that are

18  The concept of Right to Water emerged as post-neoliberalism and measures offered by declarations, resolutions and conventions of the UN, mainly General Comment 15 received wider attention. This is because these ideas and understandings collectively presents relatively a wider understanding. On the logic of the concerns, reflected in the contents of the arguments and documents, initiatives and undertakings that are made in different periods of time can be classified in two categories.

Narrow sense: Accepng afact that water is a right

Ideas that have valued right to water,but inspecific condions and provide relavely less details.

Includes Internaonal Humanitarian Law, Treaes and Internaonal Environmentaland Labour Treaes.

Evoluon of right to water at the Internaonal level

Widersense:Real Conceptualisaon of Right toWater

Ideas and documents which explain right to water in detail and provide scope for use of water

Arguments developed in Post-neoliberalism and measures offered by Declaraons, Resoluons and convenons of UN mainly focusing on Comment 15

Figure 2.1  Dividing understanding on right to water: At global level.

As Figure 2.1 explains, that international humanitarian law treaties and international environmental and labour treaties are the narrow interpretations and the claims against neoliberalism, i.e. post-neoliberalism and declarations, conventions and resolutions undertaken by the United Nations, represents wider understandings. The arguments evolved as post-neoliberalism are wider in the sense that they are actually putting pressure on the international organisations to mechanise water as a right.22 2.2.1.1 Argument (s) against neoliberalism The concept that can be called Right to Water is evolved not as theory but is developed along with the argument which insists on ascertaining water as a right of all. The argument has emerged and evolved around three developments that have changed traditional understandings of water management globally. The first two developments are ideological in nature, known as Thatcherism and Washington Consensus. The third development, importantly, is the consequences of an International Conference on Water and Sustainable Development, known as the Dublin Conference of 1992.23

The concept of Right to Water  19 The ideas developed in these contexts have argued that water is a source of profit and presented it as essential for economic development. For the purpose of development, the ideas, in above three, have called for treating water as a commodity and suggested implementing the principle of pay and use in water management.24 Significantly, these ideas were reinforced by the World Bank in 1996.25 The documents released by the World Bank emphasised that water can be entitled as a right only if efficiency is maintained in water supply.26 Global partners in this regard argue that the efficiency in water supply can be assured only by using a neoliberal approach to management processes.27 Since efficiency in water management is the basic requirement of developing states, those states, even with limited water resources, have adopted the idea with a hope that the claimed efficiency will entitle every individual with water. However, the expectation has proved wrong, as neoliberal practices in water management have made life of commons miserable.28 Bolivian experiences have endorsed the miseries of neoliberalism.29 Globally, experiences, gained from neoliberal practices, draw new arguments, contending that the claim that right to water is a gift of international declarations is wrong and misguiding (Bakker, 2002, 2010; Barlow and Clarke, 2002; Shiva, 2002; Balakrishnan, 2003; D’Souza, 2005, 2008; Baxi, 2007). The arguments made by water activists, in this regard, insist that in reality, the understandings developed after the 1992 Dublin Conference have created “neoliberal globalizers” (Smith, 2005), whose principles and values are not concerned with water justice.30 Since principles have valued water as a commodity, instead of creating water equality it has given rise to an economic fascism that has destroyed people’s rights to resources (Shiva, 2002). It has been argued that valuing water as commodity and managing it with the principle of pay and use have made water unaffordable. Consequently, water has become inaccessible to the poor. To highlight the problems of neoliberal practices in water management, water scholars and water activists insist on deconstructing the principles of pay and use. They reject the claimed efficiency of neoliberalism and urge assurance of water to all. To attain global attention, they started a movement against neo-globalisers31 and put pressure on states and international organisations to consider water as a basic need. These water activists emphasise that water as a right is required to be conceptualised in a way that can assure and protect rights of commons over water resources. While condemning the principles of Thatcherism, Washington Consensus and strategies of the World Bank, water scholars and activists argue that the three together shape water rights and not Right to Water (Lindquist and Gleick, 1997; Shiva, 2002; Sangameswaran, 2007; Iyer, 2010b; Khadka, 2010). They argue that developments made in these three are the domino effect of industrialisation, which observes water as a demand for development and allows treatment of water as a commodity that can be sold. The arguments they put forth insist that the use of water for trade often work against securing a “right to water”, particularly for the marginalised, poor and vulnerable populations (Sangameswaran, 2007; Khadka, 2010).32

20  The concept of Right to Water According to water scholars and water activists, profit-oriented tendencies and the ideas presented and endorsed as efficiency cannot be considered as an assurance to right to water as they ignore the most basic requirements of human beings as drinking, food, sanitation and health (Iyer, 2007). Notably, arguments given by water scholars and water activists are further advanced in philosophical debates and discussed and argued as post-neoliberalism (Brand, 2009; Burdick, Oxhorn, and Roberts, 2009; Saden, 2009; Escobar, 2010) and upheld as Post Washington Consensus (Sandbrook, 2011). The concerns expressed in post-neoliberalism emphasise interpretation of right to water in the context of social and ecological conditions and its assurance as a right to all.33 The arguments put as post-neoliberalism are sound in the sense that globally, they make an effective emotional appeal and in so doing insist for water justice. Actually, here, the goal of post-neoliberal arguments is to search for a dignified life beyond neoliberal practices in water distribution (Marston, 2013), and for this they urge for protection of local water sources from government or corporate abuse. They persist upon the use of the theory of “equitable distribution” in water management.34 Since post-neoliberal arguments are deeply concerned with the common good, values of it have shaped the theoretical foundations for the idea of Right to Water. The provided foundations are significant. However, are they enough, as the offerings of the arguments are limited to what Right to Water ought to be and are less interested in presenting what the right entails? In respect to these questions, the discourses that are evolved in the context of declarations, conventions and resolutions made by international organisations, mainly the United Nations (UN), are important. This is because the UN as the legitimate political institution has taken an international call for ascertaining water as a biological need. General Comment 15, in this view, is significant, as provisions of it persist to ensure water as a right of the commons. The undertaking is even otherwise, noteworthy as it provides a legal base to the idea. 2.2.1.2 International undertakings: major landmarks International documents initially have presented the idea that water is a right only as a supportive right35 and was stated in multiple references, including environment (Conference on the Human Environment held in Stockholm in 1972,36 Mar del Plata Conference held in 197737 and Conference on Environment and Development, called Rio Summit, held in June 199238), food and health (Convention on the Rights of the Child adopted in November 198939 and the Conference on Population and Development held in September 199440), development (Water and Sustainable Development held in January 1992 called Dublin Conference41, Conference on Population and Development held in September 199442, Resolution A/Res/54/175/adopted in December 199943 and World Summit on Sustainable Development held on September 200244), dignity (November 2002, General Commit No 1545),

The concept of Right to Water  21 and assurance against discrimination (Convention on the Elimination of All Forms of Discrimination Against Women adopted in December 197946 and Convention on the Rights of Persons with Disabilities, 200647). Significantly, to ensure water as a right, the UN has offered guidelines (the Right to Water and Sanitation, E/CN4/Sub2/2005/25, 200548) and given suggestions to decide on the obligations of the parties responsible for water management (Paper of the UN High Commissioner for the Human Right on the scope and content of the relevant human rights, 200749). The practice was continued even after 2010. One of the major developments after 2010 is the HR Council Resolution A/HRC/RES/16/2, adopted in April 2011.50 The task was further taken up in 2013 when the UN passed two important resolutions, one passed by the General Assembly called the Human Right to Safe Drinking Water and Sanitation, 2013 (A/RES/68/157), and the second with the same objectives adopted by the Human Rights Council, without vote and known as The Human Right to Safe Drinking Water and Sanitation, 2013 (A/HRC/RES/24/18).51 In comparison to other documents Comment 15 adopted by the United Nations Committee on Economic, Social and Cultural Right in 2002 and the UN General Assembly Resolution A/Res/64/292 adopted in 2010 are the major landmarks. As being a first elaborative document on right to water,52 Comment 15 has defined water as the right of everyone to “sufficient”,53 “safe”,54 “acceptable”,55 “physically accessible”56 and “affordable”57 water for personal and domestic uses.58 The declaration while redefining the International Covenant on Economic, Social and Cultural Rights (ICESCR), held in 1966, states that water is indispensable to leading life with dignity (Article 1.1). It has described right to water as everyone’s right and claimed it as essential to attain adequate standard of living, including adequate food, freedom from hunger (Article 11), and highest standard of physical health (Article 12).59 Similarly, in respect to the fulfilment of right to water, the UNGA Resolution A/RES/64/292, adopted on 28 July 2010 is the second major development because provisions of it have transformed the value of right to water as a human right and endorsed it as universal. The resolution has stated water as “The Human Right to Water and Sanitation”60 and insists to “recognize human right to water”61 with two other rights, i.e. right to safe and clean drinking water, and right to sanitation. To pursue for these rights in a fair and equal manner, on the same footing and with the same emphasis (para 6), it gives two instructions to states: to “Acknowledge” the importance of equitable access to safe and clean drinking water and sanitation as an integral component of human right to water.62 To ensure accountability in water management, the resolution has “Reaffirmed” the responsibility of states for the promotion and protection of all human rights. In order to scale up the efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all (para. 8), the resolution insists on international assistance and corporation for which it has called upon states to provide financial support and technology transfer.

22  The concept of Right to Water Globally, in policy matters, the idea and content expressed in Comment 15 and UNGA Resolution A/RES/64/292 are used as the directive principles of state policies. However, the content offered in Comment 15 is relatively more popular among water scholars, as in the works of Langford (2006), Cahill (2005), Salman and McInerney-Lankford (2006), Kiefer and Brölmann (2005) and Pierre Thielbörger (2014). In the water discussions, content of Comment 15 is argued as global and independent because it has lifted the right to water from the shadow of other associated human rights and has synthesised the values of individualism and collectivism.63 The scope of right to water in Comment 15 is comprehensively clear;64 along with effective and equal supply, it insists on fresh and drinkable water and states that women and children need to be ensured as the first beneficiary of right to water. It states that water should be free from microorganisms, chemical substances and radiological hazards because it would constitute a threat to human health. It explains that “An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water related diseases and to provide for consumption, cooking, personal and domestic hygienic requirements”.65 Comment 15 thus maintains human right to water as an independent right essential for good health (para. 12b) and for leading a life with dignity (para. 3). To maintain a universal claim on right to water, it has emphasised the values of “non-discrimination”, “equality” and “non-retrogression”. Comment 15 insists upon “immediate obligations”, “utilization of maximum available resources” and to “undertake steps to progressively realize the right of all”.66 It further holds that states must be accountable,67 transparent68 and open in their actions.69 Importantly, in the plan of action, these principles obligate states beyond borders70 and enhance fulfilment of right to water as a global responsibility, of which national and international organisations including NGOs, the World Bank and the World Trade Organisation are the co-parties (para. 37). Article III (17–18) of Comment 15 in this view insists that the national and international parties have “constant and continuing duty” to move “as expeditiously and effectively as possible towards the full realization of the right to water”. The duties mentioned in Comment 15 are further elaborated in the document released by the World Health Organisation in 2003. The document offered certain measures of right to water and has developed certain guidelines for the states. For effective enjoyment of rights, the document has classified obligation in different categories that work at different levels. The principles insist that both parties, i.e. the public and the private, have an obligation to respect,71 protect72 and fulfil73 right to water.74 Further, to make right to water a complete right, the document significantly emphasises people’s participation75 and insists on making it an integral part of any strategy, program and policy.76 For effective participation it insists that water users, including individuals and groups, must be made aware of participatory processes and must be informed about the functions performed by different mechanisms.77 It urges states to take steps to

The concept of Right to Water  23 ensure that women should not be excluded from decision-making processes of water resources and entitlements (para. 16).78 In the water governance processes, the provisions of Comment 15, which insists for global partnership in water management, are periodically re-emphasised. The most recent development in this respect can be observed in the form of the Sustainable Development Goals (SDGs). The SDGs, also known as the Global Goals, are initiated by the United Nations Development Agency and were adopted by all UN Member States in 2015 as a universal call to action to end poverty, protect the planet and ensure that all people enjoy peace and prosperity by 2030. Since people’s joy and prosperity cannot be attained without assuring water as a right, the idea of Sustainable Goals extensively focuses on the availability, accessibility and affordability of water for all. Goal 6 in this respect is committed to ensuring universal safe and affordable drinking water, which involves reaching 800 million people who lack basic services. However, since water is a local issue, a promise like such cannot be considered as a guarantee to right to water, until the local conditions and reality are not checked, appropriately. This is because the usability of international documents have limitations of cultural relativism and, along with realities of availability of water resources, places major restrictions. The international undertakings ensure rights for humans over water resources but, while doing so, does not offer a required meaning of Right to Water. In such a case, the internationalisation of right to water will either remain an empty promise or, due to heavy requirement of water management, will encourage external intervention, which is not a favourable condition for developing states. It is a fact that merely placing any right in the human rights category cannot ensure it as a right of all commons, especially in the case of a resource like water, management of which is local in nature so is an unavoidable fact. 2.2.1.3 The regional understanding: major landmarks Water is a regional problem (Jeffords and Minkler, 2014) and hence entitlements to right to water can be more decisive only within the frameworks offered by regional documents. Importance of regional documents in fulfilment of right to water is considered as inarguable mainly because they are prepared taking into consideration the cultural and geographical realities and comprise beliefs that represent cultural similarities of a region (Bakker, 2010; Shiva, 2001). Since provisions of the documents express and protect the values of cultural relativism and generally point to specific regional requirements, the level of possibility of water assurance is relatively very high.79 While ensuring right to water to all, regional documents very often follow and supplement the international objectives and endorse the ideas presented by international organisations.80 The documents of regional organisations such as the European Union and African Charter are some examples of this. Like the UN’s initial initiatives, regional undertakings of the African

24  The concept of Right to Water Charter also see water as an essential part of other rights including, right to environment (African Charter in Human and People’s Rights, 1981: Art. 2481), right of children (Rights and Welfare of the Child 1990: Art. 14:182) right of individual (African Charter on Human and Peoples’ Rights 1995: Art. 1683) and women (Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa 2003, Art. 15: a).84 Notably, in the Protocol of San Salvador (1988), right to water is stated with reference to the environment.85 The Protocol states that every individual should have the right to live in a healthy environment (Article 11:1), and it is the duty of the state to promote the protection, preservation and improvement of the environment (Article 11:2).86 The obligations of states are further explained in the Declaration of the Forum on Human Rights called the “Summit of the Americans” (2001). Article 4 of this declaration proclaimed that the state must take measures to ensure complete fulfilment of the right of all people to free determination, food, health care, access to water, land and other resources under conditions of equality. Importantly, in the European discourse on right to water, States are made responsible to take measures for equitable access to water, adequate in terms of both quality and quantity. European thought urges that water should be provided to the whole population, especially to those who suffer social disadvantage and exclusion. To remove poverty, it insists upon use of water for development (The protocol of Water and Health: (1992) and the Convention on the use of Transboundary Water-resources and International Lakes declared by United Nations for Europe ECE; Art. 4(2) 1999).87 In 2000, the idea of development was added to sustainable development. In this regard, the European Council of Environmental Law (ECEL, 2000) opined that access to water is part of the policy for sustainable development and cannot be regulated by market forces alone. Article 1 continued with the provision that the right to water cannot be dissociated from the right to housing, food and health. Each person has the right to water in sufficient quantity and quality for one’s life and health.88 The declarations and resolutions made by the European Union are further adding to the value of sustainable development and contemplating right to water as an essential aspect of the welfare state (European Parliament of European Commission 2003). However, while they explain water as a right, they clarify that the cost of water management is associated with the production and utilisation of water resources. Therefore, the supply of water shall be subjected to payment, and the state should supply water without any discrimination.89 The water discourses evolved in the European Union have claimed that the objective of the European declarations is to entitle the deprived to right to water and ensure them food security against hunger (Madeira Declaration on the Sustainable Management of Water Resources (ECEL) 1999,90 the European Charter on Water Resources 200191 and Recommendation 14 of the Committee of Ministers of the Member States). In respect to these objectives, the need for a legal framework was realised in 2011. The European

The concept of Right to Water  25 Commission of Citizen’s Initiative pinpoints that the promise of right to water must be legalised by making legislation on the same.92 Due to the European Citizen’s Initiative, one million signatures were collected from at least a quarter of the EU Member States within a period of 12 months agreeing on the matter, the core idea of which is refined by Regulation 211/2011. For the Asia-Pacific region, assurance of right to water is embedded in a concern for human security. In 2007, Asia-Pacific leaders agreed to recognise people’s right to safe drinking water and sanitation as a basic human right and a fundamental aspect of human security. In the Abuja Declaration 2006, heads of state and government declared that they would promote the right of their citizens to have access to clean and safe water and sanitation within their respective jurisdictions. The declarations on matter of water management made by regional organisations are not legally binding on member states (except the European Commission’s conventions passed in 2012, by the committee as a legislature). However, in legal and policy frameworks, they are approved as collective moral consensus that is indeed an expression of political will of regional parties. A meeting held on 28 and 29 January 2014 of the heads of state and government of Latin America and the Caribbean states in Havana, Cuba,93 is one such example of political will. In the meeting, the participant states collectively accepted the significance of right to water and sanitation in human life and placed the human right to drinking water and sanitation in their Post-2015 Development Agenda.94 Political will, expressed by these regional initiatives, takes individuals one step ahead to right to water. Like international undertakings, regional arrangements offer guidelines to preserve water as a right to all and suggest what to do, why and how. However, since assurance of the right to water is a national subject, it is obvious that guarantees given by regional institutions cannot be feasible without effective support from the national frameworks. Hence, there is a need for national understanding on the issue.95 2.2.1.4 Understandings of national constitutions and national laws Since water is a domestic issue, the core values of Right to Water, as entitlement, accessibility and affordability and as promises of participation and non-discrimination, can be ensured and maintained at the state level only. Significantly, declarations made by international and regional institutions also suggest the same and states that state machineries are accountable to assure water to all. In this respect, the guidelines they offered mention private sectors as the obligator, but that does not relieve the states from the obligation of ensuring right to water to all. The documents clearly state that the ultimate responsibility for providing water lies with the states’ governments, even if water supply is maintained by a private sector. Significantly, the idea of a state’s obligation is even endorsed by some national constitutions, and the same was developed prior to the UN. Constitutions such as the Constitution of the Commonwealth of Massachusetts,96 the Constitution of

26  The concept of Right to Water the Commonwealth of Pennsylvania,97 the Constitution of Republic of Uruguay,98 the Constitution of the Federal Republic of Ethiopia,99 Constitution of Uganda,100 Constitution of Republic of the Gambia,101 Constitution of Republic of South Africa,102 Constitution of Zambia,103 and Constitution of Republic of Venezuela under Bolivarian Republic of Venezuela104, are some of the examples of the same.105 However, constitutions such as those of Congo,106 Ecuador,107 Maldives,108 Kenya,109 South Sudan,110 Egypt111 and Zimbabwe,112 brought major changes only after 2002, the year that Comment 15 acknowledged water as a right.113 These constitutions, while offering provisions related to rights, focus on the idea of water equality.114 However, in comparison to national laws, constitutional provisions are thin documents, mainly because they emphasise only the core value of right to water that many times miss the deciding details that are essential to identify the elements of Right to Water.115 Further, the required elements, as recognition and entitlement of right to water, availability, accessibility, affordability, quality, participation in decision making and non-discrimination in water supply, are easily evident in national laws.116 Laws developed by different nations offer important meanings of Right to Water and highlight important aspects of it. These include: a. Right to access water from natural resources (Swaziland’s Water Act, the Mauritanian Water Code, Costa Rica’s Water Law, Kyrgyzstan Water Code or South Africa’s National Water Act), b. Exemption from having to apply for a licence to access water from a water body that is adjacent to the land that they occupy, if this water is used for personal and domestic uses (South Africa’s Basic Water Policy), c. Equal allocation and availability (legislation of Chad, Costa Rica, Indonesia, Lithuania and Kazakhstan117), d. Recognise and assure water needs for all regions and in all legal cultures (Indonesian Regulation,118 South Africa’s Basic Water Policy,119 Georgia’s water laws, Tajikistan’s Water Code prescribe and China’s water laws), e. Prohibit the use of water of drinking water quality for non-domestic purposes (laws of Brasília,120 Georgia and Kazakhstan,121 and China, Kyrgyzstan and Tajikistan122), f. Preserve and ensure good quality and quantity of water (Brazilian Law on Sanitation, nation laws of China, Kyrgyzstan and Tajikistan,123 Finland Water Services Act, Indonesia Government Regulation No. 82 of 2001124), g. Ensure that water will be accessible, affordable and acceptable (France’s Law on Water and Aquatic Environment in 2006125 and Law No 2005-95126), h. Safety of water resources and a common right over it, including assurance of physical accessibility and affordability of water (South Africa’s Water Services Act,127 Costa Rica’s Law on the Regulating Authority for Public Services, Nicaragua’s General Law on Drinking Water and

The concept of Right to Water  27

i. j.

k. l.

Sanitation Services, Peru’s General Law on Water and Sanitation Services and in Water Code of the Republic of Congo, Venezuela’s Organic Law, Chile’s Law 18.778,128 Australian Utilities Act, United Kingdom’s Water Industry Act, Finland’s Water Service Act,129 South African Water Services Act, and Indonesia’s Regulation No. 23/2006 Indonesia’s Regulation No. 23/2006130), Water for the poor and the weak and freedom from disconnection of water supply (United Kingdom’s Water Industry Act131 and South African Water Services Act), Participation of people in decision making (Australian Utilities Act, the South African Water Services Act, Brazilian Law on Basic Sanitation, Malaysian Water Service Industry Act and New Zealand’s Local Government Act. Laws), Right to have information (Brazilian law,132 South Africa’s Water Services Act133), Non-discrimination and especial entitlement is assured for vulnerable groups (regional Canadian Human Rights Codes, Colombia’s Law 142, Guyana’s Public Utilities Commission Act, Mexico’s Water Law of the Distrito Federal or Niger’s Decree 2003-145/PRN/MHE/LCD, United Kingdom’s Water Industry Act and South African Water Services Act134).

The aspects presented here show that the understandings evolved at national level are comprehensive, which is more relevant as they represent ground realities that build greater possibilities in favour of right to water.

2.3 Conceptual progression of Right to Water: Expansion and relation Since the idea which insists that water be assured as a right is realised, argued and endorsed at different levels, it is difficult to claim that it is an independent phenomenon. Each level has its own contribution and significance. Hence, the development at the three levels does not represent isolation of ideas, but its progress is a process that has established an unavoidable relationship in between. The relationship between theoretical perspective and institutional frameworks is interacting argumentatively for constructive purposes. Even though policy suggestions offered by institutional frameworks are critically observed by theoretical perceptions, i.e. post-neoliberalism, the links between them are positive and offer supplementary ideas to each other. The arguments put forth by post-neoliberalism have set a moral pressure on international, regional and national organisations to take steps to assure right of water to all and make it available, accessible and affordable for all. It has actually offered an idea to be worked on. Similarly, the ideas developed within institutional frameworks have strengthened the theoretical discourse by offering global implications on the idea that can be understood and argued as Right to Water. Due to the internationalisation and institutionalisation of the idea, theory (not in the traditional sense) has

28  The concept of Right to Water reached and argued globally. Clearly, both theoretical discussions and institutional frameworks are inter-influential and flow two ways, as Theoretical Discussions ↔ Institutional Frameworks The ideas developed at different levels have preserved the concept that can be called as Right to Water with almost the same understanding, and there is no serious contradiction between them (only with reference to that is discussed). The relations between the regional understandings and constitutional and legal provisions are effectively connected with the international declarations and also with each other. It would be incorrect to say that only international declarations have inspired the regional and national undertakings. In some cases, it is just the opposite: there are some regional and national initiatives that are noted much before international declarations (see the endnotes of the earlier discussion). Note that there is a relation between these ideas and the initiatives. The flow of the relation and influence is as follows: 1st step

Theorecal frame work

Internaonal level: Concerning Global Interests

1st type of relaon

Post Neoliberalism: An argument against neoliberalism

2nd type of relaon

Instuonal frame work

Mainly General Comment 15

2nd type of relaon Conceptual evoluon of an idea that can be called as Right to Water: Discussing broader sense

2nd step Regional level: Represenng Regional Interests

1st type of relaon

Constuonal and Legal provisions

2nd type of relaon

3rd step Naonal Level: Emphasizing Naonal Interests

Naonal Constuonal and Naonal Laws

Figure 2.2   Conceptual evolution of an idea can be called as Right to Water: expansion and relation. Note: Curves show the levels of growth, simple lines show the emerging points of the idea and arrows with two directions represents relationship. Notably, steps do not represent hierarchical growth of idea.  

The concept of Right to Water  29 Figure 2.2 demonstrates the conceptual evolution of an idea that can be called Right to Water. It denotes three features: the emerging point of Right to Water, its growth and the relation between various aspects attached with the idea. Step 1 shows development at an international level. At this level, the idea that can be called Right to Water has emerged in two contexts. First, the theoretical framework has emerged as an argument against neoliberalism called post-neoliberalism, and the second is the institutional framework, offered mainly by Comment 15. Step 2 presents the regional development. It further shows the ideas stated in the two documents known as constitutional and legal provisions. Similarly, Step 3 shows emergence of Right to Water at the national level as evolved from national constitutions and national laws. In the figure, all three levels or steps have arrows in two directions. This represents two types of relations: first, the connection between the three levels; and second, the relations between the theoretical ideas and institutional frameworks as have emerged and evolved at different levels. The arrows (in two directions) which represent the “first type of relations” interpret that the conceptual evolution of an idea can be called as Right to Water at three levels, i.e. international, regional and national, and is positively interconnected (at least in documentation and arguments) because they are all equally concerned with entitling water as a right. Similarly, the arrows in two directions represent the “second type of relations”, i.e. between theoretical arguments and institutional frameworks, being constant and in the same flow. This signifies that the influence of theoretical arguments can be observed at each level, and each level simultaneously influences the theoretical arguments. It presents that post-neoliberalism has strengthened the institutional frameworks by offering theoretical justification to the concept, and at the same time, institutional frameworks have brought theoretical aspirations into reality. The argument like such has a point because the values put by post-neoliberals, like water to all, right to participate in decision making and non-discrimination in water supply, find place in Comment 15 and are mentioned in the document, periodically released by international, regional and national institutions.135 Similarly, the contents of various documents have created new dimensions in theoretical arguments. The expected role of the private sector mentioned in Comment 15 and other documents is a subject of theoretical debates. Karen Bakker’s (2010) conceptual discussion on the subject of obligation and her objection to the use of the term Human Right to Water is one such example. It is essential to note that a critic of the contents of Comment 15 as “revisionist”136 and “unreflective”137 has actually helped the UN to improvise the documents. In the water discourses, the argumentative attitude of the theoretical discussions, like such, towards institutional undertakings and arrangements has helped in conceptualising the idea of Right to Water in a way which deserves to be placed in policy design.

30  The concept of Right to Water

2.4 Discussing the meaning (s) of Right to Water The discussions so far show that attaining the meaning of Right to Water is difficult. Since the idea has evolved as a process, it is difficult to get at its actual meaning immediately. This is because of the fact that in the process of modernisation, water as a right is viewed and argued in multiple contexts, and in management processes, this has justified multiple uses of water. In the conception of Right to Water, multiplicity of water uses creates problems of priority. This is becoming more problematic where water is found to be limited. If right to water regards the fulfilment of water as a basic need, then what the limit of this basic need should be always remains a question. Thus, there is an obvious divide of what right to water includes and what it does not. 2.4.1 Water is a Right: The popular offerings and their significance A notion which insists on realising and assuring water as a right is evolved with three viewpoints, developed in different contexts. The first view defines water as for commons (Shiva, 2000; Anand, 2007; Bakker, 2010; Iyer, 2010a), implying that the concept of Right to Water is based on freedom and that its claimability is universal. The second perspective underlines that the meaning of freedom to “use” is not unlimited; however, the scope of freedom to use water is based on the priority of requirements (Salman, 2002; Anand, 2007). This argument insists that water is a free resource and its use is endorsed primarily for biological needs (international, regional and national understandings emphasise this). The third view emphasises the duty part of right to water. This insists that to enjoy right to water as freedom, it is important to maintain an effective balance between its uses and its users (Anand, 2007). This essentially requires some duties to be performed by both individuals and the states. To attain a meaning of Right to Water, it is essential to synthesise the various understandings and arguments that are developed at various levels. Among all, understandings of Anand (2007: right to water as rights and duties), Shiva and Bakker (2002; 2010: water for commons) and Cahill (2005: Scope of water use), and documents and guidelines released by Comment 15 and the World Health Organisation (2003),138 are significant. This is because each of these offers significant discussion on right to water and hence their amalgamation helps to understand correctly the concept and scope of Right to Water. The scope of Right to Water, attained by the discussion, informs an individual what s/he is entitled to. This makes people aware about what they can lay claim on and what is under the preview of entitlement. The second view on right to water, i.e. correlation of rights and duties, supports the first view. It insists that without fulfilling obligations (by states and private parties) and duties (by peoples), one cannot enjoy water as a right. The meaning of water for commons is the consequence of the two. It shows that only knowing its scope and the correlating of rights and duties together

The concept of Right to Water  31 can assure water for commons which is the ultimate objective of the idea of Right to Water. This can be interpreted in yet another way: first ensure that water is for the commons and illustrate the scope accordingly, and decide that to enjoy right to water, each party has to perform its duty. The amalgamation of the three views presents that the concept of Right to Water is required to be seen and argued as the basic need of life. The concept underlines that while entitling commons to claim water as their right, it is essential to consider women, children, the weak and refugees as its first beneficiaries. This further clarifies that claims on water as a right is not unlimited. However, it is a matter of priorities which entitles individuals with equal freedom to use water to fulfil and satisfy their basic needs as drinking, food, health, sanitation, housing, employment (fishing only) and cultural requirements. The use of water for small-scale agriculture is another priority, as agriculture fulfils the requirement of food. Use of water for other needs, mainly industrial, is allowed only if the primary priorities of life are satisfied. Special consideration to individual priorities provides that the concept of Right to Water has described and argued for right to water as the trumping power of individuals. It entitles individuals and obligates governments to guarantee and preserve the entitlements. Here, the idea which insists on realising right to water does not end with governmental obligations but actually pinpoints the obligations of parties who use water. The discourse has identified many parties as obligators of right to water, including states, private sectors, NGOs and even researchers (WHO, 2003).139 Indeed, an element of collective obligations is important for the entitlement of right to water. Since water is a resource on which nature has clear dominance, it is more essential to discuss the issue of right to water in the context of the idea which insists that rights and duties are linked (Hohfeld, 1913; Anand, 2007),140 where duties are of the governments as well as of individuals. Here, the fundamental argument is that only effectively efficient performance of duties of the concerned parties can convert the right to have water into the right to enjoy water; without a perfect correlation of right and duties, right to water would remain an empty promise. To attain Right to Water, the significance of the correlation of right to water and duty to water can be understood through Figure 2.3. Figure 2.3 proposes that the meaning of Right to Water is comprehensive because it has created a chain of rights and responsibilities and presents a right–duty pairing. The idea holds four arguments: First Argument: Water is for commons. Second Argument: Right to Water is not unlimited; in fact, it is claimable within the limit of its scope. Third Argument: The first and second arguments point to the requirement to establish a relation between right to water and duties to water. Fourth Argument: The first three arguments are all interrelated and endorse the idea of Right to Water.

32  The concept of Right to Water Meaning of Right to Water is aached with three aspects: 1) claim and entlement which specifies that water is for commons 2) Privileges and immunies, which establish relaon between rights and dues 3) Scope which offers subjects on which individuals have freedom to use water as priority.

Pares accountable to maintain Right to Water: Governments including central and state supporters as local, regional, internaonal organizaons, NGOs, Privatesector, cizens,

Water for commons The meaning guarantees freedom from monopoly and ensures equal entlement of right to water. It specifies that the Poor, Women. Children, Indigenous people, Refugees and internally displaced people and people with disability must be the first beneficiary of right to water.

Correlaon of rights and dues

Scope of Right to Water

This argument presumes that the obligaon of states is creang right to water for people. The obligaon insists upon providing water which is safe, sufficient, Acceptable Accessible, Affordable and to make polices that can sustain water for future generaons.

Scope of Right to Water is required to be understood in the light of priories. The idea has set an order that keeps Drinking, Food, Sanitaon as first priority and use of water in small scale Agriculture, Employment (fishing), Housing and Culture as second priories.

To enjoy right to water it is the duty of the people not to waste or pollute water. the expectaons from the people is: First,that they must parcipate in decision making as they are the beneficiary of the right and second that they will preserve water for future generaons without wasng water.

Figure 2.3  What is Right to Water? (Derived through theoretical argument and establishments evolved through process of institutional framework)

Note that the explanations of the four arguments are not self-supporting. For a precise understanding on Right to Water, it is important to read them in relation to each other. A study in co-relation entails multiple promises, including freedom of enjoyment of water with equality. 2.4.2 What right to water is not: The rejection of claims The details on what right to water is not are as equally important as the details on what it is. Water scholars and international organisations engaged in water studies pinpoint that the biggest challenge to entitlement of right to water is not water scarcity but myths and misconceptions that are attached with the notion.141 Water, in the reference of Right to Water, is misunderstood as a free and limitless right. This makes entitlement difficult as it allows wastage of water. It is important to realise that “free” here does

The concept of Right to Water  33 not mean absolute and limitless quantity of water for all needs and wants. The right is limited to fundamental uses relating to the adequate protection of human life and health, hygiene and sanitation. It does include the right to water for commercial, industrial or large-scale agriculture or irrigation activities as they are important but secondary priorities.142 Similarly, when the state is made responsible for the entitlement of water, it is obligated as the last but not as a solo party. In the process of water management, the state is supposed to be assisted by public or private enterprises, by NGOs and community-based organisations. A permanent duty of governments is to exercise effective control on unequal water supply, pollution and water wastage and to assure availability, accessibility, affordability and quality of water services. Similarly, the meaning of universal claim-ability on water as a right does not mean sameness of legal provisions. It simply means that each country can choose a legal service provision for ensuring the claim-ability of water.143 2.4.3 Meaning (s) of Right to Water: Paring rights with duties The discussion of what right to water is and what it is not, together, draws a balance between the different claims on right to water. Since the ideas and undertakings are egalitarian in nature, they present primarily that people are entitled to use water. To satisfy their basic biological needs, they are equally free to claim water and water resources as their right. Accordingly, the idea primarily has four aspects: entitlement, equality, freedom and claims. In the situation of water stress and water scarcity, entitlements and claim on equal freedom on use of water becomes a matter of immunity, which insists on realising duties to right to water.144 Clearly, in conditions of water scarcity, the four mentioned aspects of right to water get new additions that include immunities and duties as inseparable parts of it. This shows that instead of making right to water an absolute right, the notion has placed essential limits, as not only does water have multiple uses, but the fact is that everyone uses it. The limitations state that if “A” is entitled to have water and freedom to use it, “B” also has the same right. The idea insists that enough must be left for others. The principles applied to “A” and “B” also apply to other water users as agricultural and industrial sectors. Significantly, water users in the sectors of agriculture and industry face more limitations than individuals as their claim on water is justified only after the satisfaction of the basic needs of drinking, sanitation, food and health. Since enjoyment of right to water requires management, the entry of government mechanisms as legitimate authority is expected to act as water manager. The entry here is allowed with a restriction which instructs governments to make water available, accessible and affordable to the commons. The idea insists that the governing bodies (both, public and private) should make laws and policies, implementation of which can ensure right to water as a sustainable right and preserve water for future generations. It is essential to understand that Right to Water is not a mere concept, but

34  The concept of Right to Water a process which establishes a system that ensures efficiency and justice in water supply. Table 2.1  Meaning and flow of Right to Water Rights of individuals are the duties of the government



Duties of individuals

1.Water is for all: Available 2.Water to all: Accessible

1. Preserve water 2. Do not spoil water

3.To have water: Affordability 4. To use water equally: Equal entitlement 5.To have claim on water: Freedom

3. Do not control water 4. Do not pollute water 5. Participate in decision making

→ Priorities



Create a condition of

1. Drinking

1. Efficiency

2. Food (agriculture and environment) 3. Health

2. Absence of exploitation

4. Employment (industry)

4. Nondiscrimination

5. Culture

5. Sustaining water for future generations

3. Absence of monopoly

Table 2.1 presents that the concept of Right to Water is a process that is interlinked with many aspects, including rights, duties and priorities. Successful interlinking between them creates conditions essential to have water well-being.145 The table explains that entitlement and enjoyment of right to water requires mutual understanding between governments and individuals. The real entitlement and enjoyment of water depends on the common consensus attained and maintained in a society, as one can hardly reject the claim that water is a right. The consensus on uses establishes a co-relation between rights and duties and upholds right to water as a privilege for future generations. The idea of shared responsibility has sustained the idea of Right to Water as an entitlement. It is an idea where all parties agree to fulfil their duties because they know that the duty will ultimately come back to them as rights. Thus, it is a two-way process where duties are performed from top-down (government’s duty to supply water) to bottom-up (people’s duty to protect and preserve water and not to waste). The results attained from the process encourage participation, as each individual finds oneself as a beneficiary of the decision. Thus, common consensus stands for common consent that accepts that all uses of water cannot have equal privileges to be entitled under the heading of right to water. As a water user, one knows that

The concept of Right to Water  35 the first priority of water use is for biological need. In this view, the concept of Right to Water is a promise which enables each one to use water for basic needs and obligates everyone to protect and respect water availability for others. The right has further involved government and private sectors as a legitimate authority of water management. The right obligates the governments to ensure that water will reach each person at an affordable price (as free will encourages wastage) and in useable condition. It is not wise to analyse right to water with a claim that rights are prior to duties or that duties are prior to rights, but that water has to be ensured as a claim that rights and duties are simultaneous. Indeed, an understanding like this is important as it creates a condition, where absence of exploitation, monopoly and discrimination is viewed as efficiency that ultimately helps to sustain water for future generations and also for environment, as Figure 2.3 presents. In contemporary water situations that are acute and uncertain, it is essential to realise that the idea and concept of Right to Water is not just a definition but a process which creates a condition that preserves water and guarantees its availability, accessibility and affordability to all, even in future. To maintain this condition, it is important to ensure and preserve water through policy structures.

Notes 1 Scholars like H. Ingram, J. M. Whiteley and R. Perry argue that Greek philosophers like Plato and Aristotle too have addressed water as a right. For Plato, water is the most basic need of human beings, and for Aristotle, water is a priority for life over other uses of water. See Ingram, Whiteley and Perry, The Importance of Equity and the Limits of Efficiency in Water Resources, in Whiteley, Ingram and Perry (2008: 1, 8–9). 2 For details, see Leviathan, chapter 15, p. 70. 3 See Second Treaties of Government, 1690, chapter 5, sec. 29, p. 211 4 In his work Commentaries on the Law of England, Chapter 2:18. For details, see http://www.lonang.com/exilbris/blackstone/ and http://www.yale.edu/lawweb/avalon/blackstone/blacksto.htm. 5 See his work On Duties, in Book I, 52. 6 See Two Books on the Duty of Man and Citizen, Book 1.8.4. 7 Quoted by Grotius in On the Laws of War and Peace, Book 2.2.1.1. 8 For details, see Branco and Henriques (2010). 9 See for the details https://www.marxists.org/reference/archive/hegel/works/pr/ philosophy-of-right.pdf. First published: by G. Bell, London, 1896. Translated by S. W. Dyde, 1896. Preface and Introduction with certain changes in terminology: from “Philosophy of Right”, by G. W. F. Hegel 1820, Translated. Prometheus Books; Remainder: from “Hegel’s Philosophy of Right”, 1820, translated, Oxford University Press; First Published: by Clarendon Press 1952, Translated: with Notes by T. M. Knox 1942. 10 Expressed in the Second Treaties of Government, 1690, chapter 5. 11 For detail, see Adam Smith “Thoughts on the Diamond – Water Paradox”; writings are available freely at the Library of Economics and Liberty website. Also see White (2002). 12 In the process of water supply, principles of Thatcherism constitute a system of formal rules and regulations. These principles offer directions that decide on buying, selling and leasing of water use, the practice of which is based on

36  The concept of Right to Water













market values. Since the idea is introduced by the Prime Minister of the United Kingdom, Mrs. Margaret Thatcher, in the 1980s, globally it is propagated as Thatcherism. For details, see Harvey (2003, 2007a). 13 The term “Washington Consensus” is coined by John Williamson. The term represents a set of economic principles, ideas of which refer to the design of a standard reform package for countries that are in need of help. It is administrated by Washington-based institutions like the International Monetary Fund, the World Bank, and the U.S. Treasury Department. In policy analysis, the term is used to describe a range of policies broadly associated with expanding the role of market forces and limiting the role of the state. 14 It is a process because even after the declaration of right to water as a human right, the struggle of using water as a right is not over. In this sense the movement for water justice and declarations which are periodically made are simultaneous and supportive. This argument is significantly developed in the works of scholars such as Gewirth (1992), McCaffrey (1992, 1999), Gleick (1998), Shiva (2002), Scanlon, Cassar and Nemes (2003), Gleick (2007), Anand (2007), Cullet (2010), Iyer (2010b), Baxi (2012), Thielbörger (2014) and Asathan (2014). 15 It is significant to note that since this book does not concern itself with international water dispute, this chapter does not offer a documentary on the existing treaties. 16 The features taken for such discussion are available at http://www.unhchr.ch/ html/menu3/b/91.htm and www.chore.org/legal_resources. 17 The idea under this heading has a vast background. However, the author, to make the discussion precise in the context of Right to Water, focuses mainly on some major ones. The precise discussion is justifiable because international measures focus mainly on area of water disputes and suggestions to resolve conflicts over the use of shared water by identifying minimum water requirements and allocations for all basin parties, as Gleick explains. 18 The author has observed that normative support is noticed at all the other levels as well; however, in the present book, the author explains them as global water movement. 19 Treaties subjectively noted in: (1) Geneva Convention (III) relative to the treatment of Prisoners of War, 1949 Article 20, 26, 29 and 46; (2) Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949 Article 33, 85, 89 and 127; (3) Protocol Addition to the Geneva Conventions of 12 August 1949 and International Armed Conflicts (Protocol 1) 1977, Article 54, Clause 1, 2, 3 and 4, and non International Armed Conflicts (Protocol II) 1977 Article 5 clause 1 (a), Article 7 (b); (4) United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 1994, Article 2 (1); (5) Occupational Health Services Convention, 1985 (No. 161); (6) UN Convention on the Law of the Non-Navigational Uses of International Watercourses, 1997; (7) The International Law Association’s Berlin Rules on Water Resources (2004), Article 2(20). For details, see: https://www.internationalwaterlaw.org/ documents/intldocs/ILA/ILA_Berlin_Rules-2004.pdf 20 The treaties made under International Environment and Labour explain that the right to water and sanitation requires states to assess the impacts of actions that may impinge upon water availability, natural ecosystems and watersheds, such as climate change, desertification and loss of biodiversity. For assurance, to this the first treaty was made in 1994, called United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 1994. 21 The source of this discussion is: Legal Resources for the Right to Water and Sanitation: International and National Standards – 2nd edition, available at

The concept of Right to Water  37 www.chore.org/legal_resources. 22 Here, it is important to note that in this volume the arguments put forth by post-neoliberalism and the Resolutions, Conventions and Declarations made by the UN are used as an instrument to define the meaning of Right to Water and to identify the component and scope of the same, as mentioned in the introduction of this chapter. Therefore, details other than right to water are not discussed. 23 The four key Dublin Principles insist that fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment, and hence water development and management should be based on a participatory approach it so should involve users, planners and policy makers at all levels. The principles emphasise that women play a central part in the provision, management and safeguarding of water. Water, importantly has an economic value in all its competing uses and should be recognised as an economic good. The principle has argued for water to be maintained by a market approach. For details, see The Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment (A/CONF.151/ PC/112). 24 International Conference on Water and the Environment, Dublin, Ir., Jan. 26-31, 1992, The Dublin Statement on Water and Sustainable Development (June 1992). For details, see Salman and McInerney-Lankford (2006), supra note 11, at 9. 25 In 1944, the Bretton Woods Agreements created two international financial institutions to help in aiding development and providing economic stability – the World Bank and the International Monetary Fund (IMF). The World Bank’s Toolkits for Private Participation in Water and Sanitation” which is the major source of basic guidelines, was published in 1997. For the role of World Bank in water management, also see Baer (2015). 26 For details, see: WATER RESOURCES –MANAGEMENT (1993) International Bank for Reconstruction and Development/The World Bank, Washington, DC, available at www.worldbank.org. 27 For details, see release of World Bank titled "Water and Development: An Evaluation of World Bank Support1997-–2007”, published in 2007. 28 Here, the author is arguing in reference to African, Asian and Latin American countries. It is not to deny the fact that there are some counties like Chile where water privatisation has a documented success story. 29 Cochabamba, the third largest city in Bolivia (South America’s poorest nation), is among the first that has experienced the negatives of neoliberal practices in water policy management. Bolivian history provides that in late 1980s the city’s public water system, SEMAPA (Servicio de Agua Potable y Alcantarillado de Cochabamba) was incapable of keeping up with the demand for expansion of the population. To meet the increasing demands, the World Bank (which had given various packages of financial aid to the local water company over more than a decade) decided to make the public water system private and made it clear to Bolivian officials that privatisation is the price that Bolivia needed to pay for bank financial assistance in the future. In February 1996, World Bank officials told Cochabamba’s Mayor that it was making a $14 million loan to expand water service conditioned on the city privatising its water. In June 1997, Bank officials told Bolivia’s President that $600 million in international debt relief was also dependent on Cochabamba. Looking at the debt amount, the Bank advised the Bolivian government that, “No public subsidies should be given to ameliorate the increase in water tariffs in Cochabamba”. In other words, Cochabamba residents, including the poor, should pay the full price that the market demanded in order to provide them with water. In 1999, the Bolivian national government, having been given a

38  The concept of Right to Water







clear ultimatum from the Bank, initiated a process to put Cochabamba’s public water system in private hands. In a closed-door process with just one bidder, Bolivian officials signed an agreement leasing off Cochabamba’s water for 40 years to a mysterious new company named Aguas del Tunari – which would later turn out to be a subsidiary of the California giant, Bechtel. The agreement guaranteed the company an average profit of 16% per year every year and increasing water bills for locals. Within weeks of its takeover of the water, Bechtel’s company hit local families with rate increases of up to 200%. The local resistance to the water price hikes was fierce, as workers living on the local minimum wage of $60 per month were told to pay as much as $15 just to keep the water running from the tap. Consequently, there was wide protest in Cochabamba demanding that the water price hikes be rescinded. 30 For details, see Smith (2005). 31 The term “neoliberal globalizers” refers to the fact that the neoliberal practices in water management are globally accepted. For details, see Sunding (2000), Friedman and Friedman (1980), Friedman (1982) and Richter (2014). 32 According to Sangameswaran (2007) and Khadka (2010), the idea and practice of water rights refers to property rights. To make water accessible, they emphasise specific mechanisms and insist upon developing mechanisms other than those of the state. They insist that rise of new mechanisms has defined water as a property and commodity be sold. In this sense “water rights” often work against securing a “right to water”, particularly for the marginalised, poor and vulnerable populations. In Iyer’s thesis, such differences are fundamental. He states that the difference between right to water and water right is so vast that there can be conflict between them (2010b). He highlights the differences in the following words: “Right to Water is not the same thing as water rights, latter term generally refers to use right in the context of economic use of water such as irrigation and industry” (Iyer, 2007: 142). For Iyer, the idea of right to water is different as it does not include the industrial claim on water as a right. To avoid industrial claim on water, he insists that terms like “demand” and “supply” should not be used as they may dilute the idea of Right to Water and would mislead a state to assert water as commodity like other goods. He argues that the economic use of water is concerned with the ability to pay, which consequently creates a culture of water markets. Since markets are profit oriented, their meaning of right is not a common right but restricted to the right of a few. He explains: “When the World Bank and other economist talks about right or titles they mean something like property rights. This allied to the doctrinaire advocacy of water market i.e. state should step out from the area of water management and leave it to market for cost recovery, such paradigm shifts converts life right into trade right” (pp. 142–143). Thus, Iyer, in his writings, highlights the contradiction between human rights, i.e. right to water and trade right, i.e. water rights. Like Iyer, Gleick (1996) have discussed the idea in the reflection of the differences between need and demand. In their thesis, the concept of “need” exists independently and focuses on use of water as a basic biological need. On the other hand, the concept of water rights has established water as a “demand”. By nature, it has economic preferences, which insists on use water to increase productivity and profit. In this reference, claim on water is considered as a kind of special right to use, as “Dublin principles” argues. 33 Scholars like Laura Macdonald and Arne Ruckert (2009) pinpoint that the concept of post-neoliberalism is meant to capture the discontinuity within the continuity of policies. In the case of water policies, they are against water privatisation that is the policy offered by neoliberalism. 34 This is the term which is used by Vandana Shiva to explain international water rules. For details, see Shiva (2002: 78). 35 While identifying the reasons, Francis Rose, in her research claimed that since

The concept of Right to Water  39















water was found as abundant, nobody thought that water was necessary to write down as a human right when the Human Rights Convention and later documents were written, it is not even considered to be important enough to be considered as a right. For details, see Rose (2005). Similarly, Stephen McCaffrey, a legal commentator on right to water, has noted that the human right to water was not explicitly acknowledged in the UDHR because, like air, it was considered too fundamental to be mentioned. However, right to food may have been taken by the UDHR drafters to broadly refer to “sustenance”, which includes water. 36 For the full text of the Stockholm Declaration, see Declaration of the United Nations Conference on the Human Environment, June 16, 1972, U.N. Doc. A/ CONF.48/14/Rev.1, Sales No. E. 73.II.A.14 (1973); reprinted in 11 I.L.M. 1416 (1972). See also Hohmann (1999). 37 For detail, see Report of the UN Water Conference, Mar del Plata, 14–25 March 1977, E/CONF.70/29, 1977. I am aware that water is considered as a right in International Humanitarian Law Treaties and International Environmental and Labour Treaties much before 1977. I have considered these two conferences as the first mention of the idea because these are the treaties where states are directed and instructed to provide water to individuals in specific conditions like war and at the workplace. Besides these two mentioned conferences, water is not instructed as right but is assured as right. 38 Chapter 18 of Agenda 21 endorsed the Resolution of the Mar del Plata Water Conference that all people have the right to have access to drinking water, and called this “the commonly agreed premise”. 39 The Convention explicitly mentions water, environmental sanitation and hygiene. Article 24(2) states: “States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: … it has to combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution; … it has to ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents”. 40 The Programme of Action of the UN International Conference on Population and Development affirms that all individuals “[h]ave the right to an adequate standard of living for themselves and their families, including adequate food, clothing, housing, water and sanitation”. 41 Principle 4 of the Dublin Conference states that “it is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price. It provides four principles: (1) Water is a finite, vulnerable and an essential resource which should be managed in an integrated manner. (2) Water resources development and management should be based on a participatory approach, involving all relevant stakeholders. (3) Women play a central role in the provision, management and safeguarding of water. (4) Document insisted that water has an economic value and should be recognised as an economic good, taking into account affordability and equity criteria”. 42 The Programme of Action of the UN International Conference on Population and Development affirms that all individuals: “Have the right to an adequate standard of living for themselves and their families, including adequate food, clothing, housing, water and sanitation”. 43 Article 12 of the Resolution affirms that “in the full realization of the right to development, inter alia: … The rights to food and clean water are fundamental human rights and their promotion constitutes a moral imperative both for

40  The concept of Right to Water national Governments and for the international community”. 44 The Political Declaration of the Summit states: “The Johannesburg Summit focuses on the indivisibility of human dignity and takes decisions on targets, timetables and partnerships to speedily increase access to basic requirements such as clean water, sanitation, energy, health care, food security and the protection of biodiversity”. 45 The Right to Water: General Comment 15 interprets the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) confirming the right to water in international law. This Comment provides guidelines for the interpretation of the right to water, framing it within two articles, Article 11, the right to an adequate standard of living, and Article 12, the right to the highest attainable standard of health. The Comment clearly outlines the State’s obligations to the right and defines what actions would constitute as a violation. Article I.1 states that “The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights”. 46 Globally, 186 countries were party to the treaty (excluding USA, Iran, Somalia, Sudan, Nauru, Palau and Tonga). The Convention sets out an agenda to end discrimination against women, and explicitly has references on both water and sanitation within its text. Article 14(2)(h) of CEDAW provides: “States parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right: … (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communication. 47 Article 28 - Adequate standard of living and social protection, (1) States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability. (2) States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures: (a) To ensure equal access by persons with disabilities to clean water services, and to ensure access to appropriate and affordable services, devices and other assistance for disability-related needs. 48 July 2005, Draft guidelines for the Right to Water and Sanitation, E/CN4/ Sub2/2005/25: These draft guidelines contained in the report of the Special Rapporteur to the UN Economic and Social Council, El Hadji Guissé, and adopted in Sub-Commission on the Promotion and Protection of Human Rights, are intended to assist government policy makers, international agencies and members of civil society working in the water and sanitation sector to implement the right to drinking water and sanitation. These guidelines do not legally define the right to water and sanitation, but rather provide guidance for its implementation. 49 August 2007, Paper of the UN High Commissioner for the Human Right on the scope and content of the relevant human rights obligations related to equitable access of safe drinking water and sanitation under international Human Right instructions. Following Decision 2/104 of the Human Rights Council, the Report from the High Commissioner for Human Rights states that “It is now the time to consider access to safe drinking water and sanitation as a human right, defined as the right to equal and non-discriminatory access to a sufficient amount of safe drinking water for personal and domestic uses … to

The concept of Right to Water  41 sustain life and health”. 50 The Human Rights Council decides “to extend the mandate of the current mandate holder as a special rapporteur on the human right to safe drinking water and sanitation for a period of three years” and “Encourages the Special Rapporteur, in fulfilling his or her mandate … to promote the full realization of the human right to safe drinking water and sanitation by, inter alia, continuing to give particular emphasis to practical solutions with regard to its implementation, in particular in the context of country missions, and following the criteria of availability, quality, physical accessibility, affordability and acceptability”. 51 The UN General Assembly and the Human Rights Council both reaffirmed recognition of the human rights to water and sanitation in consensus. 52 Comment has not created a new right but it has interpreted the meaning of right to water and has offered the guiding tools for same. It is not considered as a creator of new rights, but because it has extrapolated the normative and practical bases of a human right to water within the fabric of the International Covenant on Economic, Social and Cultural Rights as Salman and Salman argue. 53 Sufficient assures availability, which means that water and sanitation facilities must meet people’s needs now and in the future. It includes that the water supply for each person must be sufficient and continuous for personal and domestic uses. It will normally constitute 50–100 litres daily per person, and an absolute minimum of 20 litres. 54 The term quality specifies that water required for each person’s personal or domestic use must be safe. It must be free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person’s health. 55 This indicates good water quality. 56 This insists that the water source must be within 1 kilometre, or about 30 minutes’ collection time. 57 The terms “accessible” and “affordable” indicates four assurances. These include physical accessibility which states that water should be within safe physical reach for all sections of the population; and economic accessibility which connotes that the costs and charges associated with securing water must be affordable. This requires that the government should intervene when water suppliers cut off the supply of water to people unable to pay for those services. Non-discrimination implies that the government should ensure that the most vulnerable or marginalised sections of population must have access to water facilities and information accessibility that stands for a procedural necessity for implementation of the right to water. 58 It is significant to note that the General Comments themselves are not binding per se because the Committee on Economic, Social and Cultural Rights does not have authority to create new obligations for the States Parties to the ICESCR. However, those comments, as Craven noted (carry significant legal weight. Mainly because there is an absence of any other authoritative body or procedure for settling interpretative questions related to the ICESCR. Theodor Meron in this view opines that interpretations of comments shapes the practice of States in applying the Covenant and may establish and reflect the agreement of the parties regarding its interpretation. For details, see Meron (1986). 59 29th session in Geneva, 11–29 November 2002 (based upon Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights). 60 Resolutions are, however, considered to constitute persuasive views on international law and often affirm principles of customary international law or articulate emerging international legal principles. Furthermore, when a government votes for a resolution, it indicates at the very least a political willingness to

42  The concept of Right to Water work towards achievement of the resolution’s contents. 61 The use of the term “recognize” is suggested by Bolivian representative in the discussion. The term is replaced with “declare”. 62 For details, see: HRC, Human rights and access to safe drinking water and sanitation, A/HRC/RES/15/9, 6 October 2010, op. par. 3. 63 For details, see Langford (2006a). Also see Langford (2006b) and Thielbörger (2014). 64 General Comment No. 15 comprises 60 paragraphs divided into six parts: an introduction; normative content of the right to water; States Parties’ obligations; violations; implementation at the national level; and obligations of actors other than states. 65 CESCR, General Comment No. 15 (E/C.12/2002/11), para. 12 (a). 66 Ibid., para. 10, and CESC R, General Comment No. 15 (E/C.12/2002/11), para. 37 67 Accountability refers to the fact that the State has the primary responsibility to guarantee human rights, but it is not a solo actor in water management. It insists that states must create additional mechanisms that can be ascertained as accountable for the maintenance of right. States should have accessible and effective judicial or other appropriate remedies at the national level. States should further ensure that policies and laws are consistent with the international human right to safe drinking water and sanitation and are effectively implemented. 68 This indicates openness to access to information, without the need for direct requests. Like, for example, dissemination of information via the radio, internet and official journals. 69 For details, see: Who will be accountable? Human Rights and the Post-2015 Development Agenda (2013), p. ix: http://www.ohchr.org /Documents/ Publications/WhoWillBeAccountable.pdf. 70 CESCR, General Comment No. 15 (E/C.12/2002/11), para. 30-36. 71 The duty to respect requires governments to ensure the activities of its institutions, agencies, and representatives do not interfere, directly or indirectly, with a person’s access to water. It includes the following aspects: A person must never be placed in a situation of going without water. There is need to maintain the water infrastructure system or provide social assistance to purchase water services. The removal of these mechanisms should be permitted in restricted circumstances. Respect further includes wise use of water which can preserve water for the future. For detail, see UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 15, The Right to Water, UN Doc. E/C.12/2002/11, 26 November 2002, p. 9, par. 21. 72 The obligation to protect insists that the state should prevent third parties such as corporations, from restricting the right to water by polluting, damaging or privatising water resources. It insists on the following actions: Firstly, to regulate the actions of third parties, governments must enact legislations that can penalise violations of the people’s right to water. Secondly, it holds that the principle of public participation and accountability cannot be compromised even in private managements. The state has to regulate the private sector and establish mechanisms capable of independent monitoring. In case of water management being in the hands of the private sector, the state must ensure that private operators do not deprive individuals of access to water and sanitation altogether. 73 Obligations like fulfilling the right indicate that the state parties must adopt the necessary measures to achieve the full realisation of right to water. For instance, it has to expand network areas which are not served yet, or develop tariff structures which ensure water and sanitation services, affordable to everyone. The obligations to fulfil water to all is further divided into the

The concept of Right to Water  43











responsibility to facilitate, promote and provide right to water to all. It elucidates the points: facilitate, promote and provide. Facilitate requires governments to take positive measures to assist individuals and communities to enjoy this right. Promote requires the government to take steps to educate people about the hygienic use of water, protection of water sources and methods to minimise water wastage and contamination. Provide insists that the right must be assured even when an individual or group is unable to exercise it or even when for various reasons, the enjoyment of right is beyond their control. 74 The details of the terms are directly taken from WHO’s publication that is available with the title ‘Right to Water’. Also see World Health Organisation (2003) The Right to Water (Geneva: WHO) available at www.who.int/hhr. 75 It indicates that processes like planning, designing, maintenance and monitoring of water services must be participatory and there must be transparency of information. 76 Article 21 (a), UDHR; article 25, ICCP R; article 12. 77 Article 21 (a), UDH R; article 25, ICCP R; article 12, CRC. CESC R, General Comment No. 15 (E/C.12/2002/11) para. 48. For other details see: Realising the rights to water and sanitation (Lisbon: ERSA R, 2012), p. 206. See:www. ohchr.org/EN /Issues/ WaterAndSanitation/SRWater/Pages/ SRWaterIndex. aspx 78 For details, see Right to Water, Published by World Health Organisation, available at www.who.org. 79 There are some regional organisations that have pinpointed water as a right much before the declaration made by the UN. It is indeed impossible to ignore the impact of Universal Declaration of Human Right to Water on regional organisations as with the inspiration of the UN, African, American and European countries have developed a series of regional treaties and have made declarations that are fundamentally based on the proclamation of the UN. 80 To find such commonness, see objectives mentioned as Article 1 in the London Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1999, and in Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, “Aarhus Convention”, 1998. 81 Article 24 of the African Charter in Human and People’s Rights (1981) states: “All peoples shall have the right to a general satisfactory environment favourable to their development”. 82 Article 14.1 states that every child shall have the right to enjoy the best attainable state of physical, mental and spiritual health. For details, see: https:// au.int/en/treaties/african-charter-rights-and-welfare-child 83 Article 16 declares that the failure of the government to provide basic services, such as electricity and drinking water, is a “serious or massive” violation of Article 14. It has extended the right of child as a right of an individual. The extension states that every individual shall have the right to enjoy the best attainable state of physical and mental health. In accordance with this article, state parties should take the necessary measures to protect the health of their people. For detail see African Commission on Human and Peoples’ Rights, Free Legal Assistance Group and Others vs. Zaire, Communication No. 25/89, 47/90, 56/91, 100/93, October 1995, http://www.achpr.org/files/sessions/18th/ comunications/25.89-47.90-56.91 100.93/achpr18_25.89_47.90_56.91_100. 93_eng.pdf 84 This Article identified that after child, woman is the first beneficiary of Right to Water. See Art. 14(2)(c) Africa, 11 July 1990, OAU, Doc. CAB/LEG/24.9/49 (1990), entered into force 1990, which demands that “State parties … shall take measures to ensure the provision of adequate standard of nutrition and safe drinking water” and Art. 15(a) Protocol to the African Charter on Human

44  The concept of Right to Water













and Peoples’ Rights on the Rights of Women in Africa, 11 July 2003, http:// www.africaunion.org/root/au/Documents/Treaties/Text/Protocol%20on%20 the%20Rights%20of%20Women.pdf, entered into force in 2005, according to which “State parties shall provide women with access to clean drinking water”. 85 For details, see: Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador, November 17, 1988, OAS T.S. 69. 86 The declaration is also known as the protocol to the American Convention on Human Rights in the Area of Economic Social and Cultural Rights. 87 Article 4(2) of the Convention 1999, states that the parties shall, in particular, take all appropriate measures for the purpose of ensuing the two, i.e. (a) adequate supplies of wholesome drinking water and (b) adequate sanitation. Similarly, Articles 5 and 6 describe that parties shall be guided to work as per the egalitarian principles. Preamble to the European Union Water Framework Directive, 2000, states that water is not a commercial product like any other but, rather, a heritage which must be protected, defended and treated as such. 88 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishes a framework for Community action in the field of water policy, OJ 2000, L 327, 1; Fabender (2001: 241). The European Union Directive remained important in the water field for several decades. For details, see https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32000L0060 89 Here, obligation of water supply is on both public and private sectors. 90 This declaration pinpoints that the notion of Right to Water drives an assurance that no person may be deprived of the amount of water needed to meet his basic needs. 91 Recognises that the fundamental right of all human beings to be free from hunger and to have an adequate standard of living for themselves and their families (para. 5). It includes right to a minimum quantity of water of satisfactory quality from the point of view of health and hygiene. However, here the idea of right to water is cost oriented (para. 19). 92 In 2011, one of the first European Citizens’ Initiatives (“Water is a Human Right”) invited the European Commission to initiate legislation to implement the human right to water and sanitation. See, for the status of signatures, the official website at http://www.right2water.eu. See also European Commission, European Citizens’ Initiative hits 1 million signatures, Press release IP/13/107, 11 February 2016. Background information to the European Citizens’ Initiative is available at http://ec.europa.eu/citizensinitiative/public/welcome?lg=en. 93 This was the occasion of the II Summit of the Community of Latin American and Caribbean States (CELAC). 94 The member while discussing the agendas highlighted three important points: (1) Invite states and international organisations to provide financial resources, capacity building and technology transfer, through international assistance and cooperation, particularly to developing countries. (2) Assure equitable access to drinking water and sanitation as an integral component of the realisation of all human rights. (3) Propose to exchange experiences, including best practices and difficulties in the implementation of the human right to drinking water and sanitations. For details, see: www.http//doc_3.21_declatacion_agua_y_saneamiento_ingles.pdf. 95 It should be noted that the choice of selected constitution is based in the survey done by COHRE in 2004. In the section only a few nations are discussed as they are found more pertinent for the discussion. 96 In 1780, Art. XCVII. For details, see: http://www.malegislatuire.gov/Laws/ Constitution, 97 Art 27 in 1978, http://sites.state.pa.us/PA_Constitution.html.

The concept of Right to Water  45 98 The Constitution of the Republic of Uruguay was drafted in 1967 and amended in 2004. Article 47 of the Constitution states: The protection of the environment is a matter of general interest…. Water is a natural resource that is essential for life. Access to drinking water and access to sanitation constitute fundamental human rights. Clause1. Water policies must establish priorities for the use of water by regions, basins or parts of these, whereby the first priority will be the provision of drinking water to the population. Clause further states that any authorisation, concession or permission that in any way violates the above provisions is without effect. 2) Surface waters as well as subterranean waters, with the exception of rain water, integrated into the water cycle constitute a unitary resource that is subject to the public interest, which, as the public hydraulic domain, forms part of the public domain of the State. 3) The public service of sanitation and the public service of water provision shall exclusively and directly be provided by legal persons of public law. 4) A country, facing water scarcity, can be authorised to have water by law, adopted with a three-fifths majority of all members of each chamber. http:// www.parlamento.gub.uy/constituciones/const004.htm (Spanish version). 99 In 1994, Art. 90(1) http://www.africa.upenn.edu/Hornet/Ethiopian_ Constitution.html 100 In 1995 Art. XIV (b), (Preamble) XIII. Protection of Natural Resources: The State shall protect important natural resources, including land, water, wetlands, minerals, oil, fauna and flora on behalf of the people of Uganda. XIV. General Social and Economic Objectives: The State shall endeavour to fulfil the fundamental rights of all Ugandans to social justice and economic development and shall, in particular, ensure that- (i) all developmental efforts are directed at ensuring the minimum social and cultural well-being of the people; and (ii) all Ugandans enjoy rights and opportunities and access to education, health services, clean and safe water, work, decent shelter, adequate clothing, food security and pension and retirement benefits. http://www.ugandaembassy. com/Constitution_of_Uganda.pdf. 101 Art. 216(4) in 1996. For details, see: http://www1.umn.edu/humanrts/research/ gambia-constitution.pdf 102 Section 27.1(b), 1996 Article 27 (1) Everyone has the right to have access to … (b) sufficient food and water; and … (2) The state must take reasonable to make water available. http://www.info.gov.za/documents/constitution/1996/ a108-96.pdf. 103 Art. 112, 1996 http://www.refworld.org/docid/3ae6b5610.html, note that same is enlarged in 2012 under Art. 70(2) the Constitution of Zambia (Draft), 2012, http://www.zambia.co.zm/downloads/draft_constitution.pdf 104 In 1999, http://venezuelanalysis.com/constitution. 105 In the growth of the idea of Right to Water, three constitutions make a significant contribution. First, Uruguay proposed a constitutional amendment for this purpose. Following a referendum on 31 October 2004, provisions on access to drinking water and sanitation as fundamental human rights were incorporated in the text of the Constitution. The Uruguayan initiative inspired movements in other states, in accord with many international conventions and agreements. It insists that water supply services should meet social criteria that are incompatible with market principles. Second, the State of Ecuador Article 261 of the Constitution, in point 11, provides that the central state shall have exclusive jurisdiction over water resources (taken to include water sources, watersheds and waterways). This guarantees the public nature of water and its consideration as a national asset that is inalienable, imprescriptibly, not subject to appropriation, and essential for life, as provided in Article 12. The Constitution also gives exclusive competence to the autonomous regional governments (Articles 244 and 251) to secure watershed management (reservoirs,

46  The concept of Right to Water dams, canals) and to foster the creation of watershed councils, pursuant to the law. Chapter III does not mention these councils, and its Article 55 provides only for associations of users. However, limiting participation to water users’ associations would be contrary to the principle of equality stated in Article 11, point 2, which emphasises citizen participation, as detailed in Article 95 of the Constitution. Article 411 establishes the responsibilities of the state with regard to water: “The State shall guarantee the conservation, recovery and integrated management of water resources, watersheds and ecological flows associated with the water cycle. All activities that can affect the quality and amount of water and the equilibriums of ecosystems shall be regulated, especially in water replenishment sources and zones”. Similarly, in 2006, Bolivia and four other Latin American countries signed a manifesto calling for water to be declared a human right. This was presented to the 150 countries attending the Fifth World Water Forum in 2009 with a view to having this vital element declared a right, in order to promote its protection and appropriate use and secure commitments to cooperate in joint activities on the issue “The sustainability of ecosystems and human consumption shall be priorities in water use and development”. 106 Art. 48 Constitution of the Democratic Republic of the Congo, 2006, Article 48: The State guarantees the right to a decent dwelling, access to potable water and electricity. For details, see http://www.constitutionnet.org/files/DRC%20 -%20Congo%20Constitution.pdf. 107 Art. 3(1) and Art. 12 Constitution of the Republic of Ecuador, 2008, Article 23: “Without prejudice to the rights established in this constitution and the effective international instruments, the State shall recognise and guarantee to the people (20) The right to a quality of life that ensures health, feeding and nutrition, potable water, a clean environment, social education, work, recreation, housing, clothing and other necessary services”. Article 42: “The State shall guarantee the right to health, its promotion and protection through … the provision of potable water and basic sanitation … in accordance with the principles of equity, universality, solidarity, quality and efficiency. Article 249: The State shall be responsible for the provision of public drinking water and irrigation services … The State may provide those services directly or by means of delegation to mixed public-private companies or private companies, through concession, association, capitalisation, or other contractual forms. The contractual conditions may not be unilaterally modified … The State shall guarantee that public services, supplied under its control and regulation, conform to the principles of efficiency, responsibility, universality, accessibility, continuity and quality; and shall safeguard that their rates or tariffs are equitable”. http:// pdba.georgetown.edu/Constitutions/Ecuador/english08.html. 108 Art. 23(a) Constitution of the Republic of the Maldives, 2008, http://www. maldivesinfo.gov.mv/home/upload/downloads/Compilation.pdf. 109 Art. 53(1)(d) Constitution of the Republic of Kenya, 2010, 65: Water – Every person has the right to water in adequate quantities and of reasonable quality. 66: Sanitation – Every person has the right to a reasonable standard of sanitation. http://www.kenyalaw.org/klr/index.php?id=741. 110 Art. 35(2) Transitional Constitution of the Republic of South Sudan, 2011. For details, see http://www.sudantribune.com/IMG/pdf/The_Draft_Transitional_ Constitution_of_the_ROSS2-2.pdf. 111 Art. 68 Constitution of the Arab Republic of Egypt, 2012, http://niviensaleh. info/constitutionegypt-2012-translation. As an example of the critique on the Constitution, see Amnesty International, “Egypt’s new constitution limits fundamental freedoms and ignores the rights of women”, 30 November 2012, http://www.amnesty.org/en/news/egypt-s-new-constitution-limits-fundamental freedoms-and-ignores-rights-women-2012-11-30.

The concept of Right to Water  47 112 Art. 77(a) Constitution of Zimbabwe (Final Draft), 2013, http://www.gta.gov. zw/index.php/documents/constitution-of-Zimbabwe. 113 In some legislations, amendment regarding right to water is pending. To get the list of such legislations, please visit: www.cohre.org/water. The constitutional details are taken from Thielbörger (2014: 39–40). 114 In the growth of the idea of Right to Water, three constitutions make a significant contribution. First, Uruguay proposed a constitutional amendment for this purpose. Following a referendum on 31 October 2004, provisions on access to drinking water and sanitation as fundamental human rights were incorporated in the text of the Constitution. The Uruguayan initiative inspired movements in other states, in accord with many international conventions and agreements. It insists that water supply services should meet social criteria that are incompatible with market principles. Second, the State of Ecuador Article 261 of the Constitution, in point 11, provides that the central state shall have exclusive jurisdiction over water resources (taken to include water sources, watersheds and waterways). This guarantees the public nature of water and its consideration as a national asset that is inalienable, imprescriptibly, not subject to appropriation, and essential for life, as provided in Article 12. The Constitution also gives exclusive competence to the autonomous regional governments (Articles 244 and 251) to secure watershed management (reservoirs, dams, canals) and to foster the creation of watershed councils, pursuant to the law. Chapter III does not mention these councils, and its Article 55 provides only for associations of users. However, limiting participation to water users’ associations would be contrary to the principle of equality stated in Article 11, point 2, which emphasises citizen participation, as detailed in Article 95 of the Constitution. Article 411 establishes the responsibilities of the State with regard to water: “The State shall guarantee the conservation, recovery and integrated management of water resources, watersheds and ecological flows associated with the water cycle. All activities that can affect the quality and amount of water and the equilibriums of ecosystems shall be regulated, especially in water replenishment sources and zones”. Similarly, in 2006, Bolivia and four other Latin American countries signed a manifesto calling for water to be declared a human right. This was presented to the 150 countries attending the Fifth World Water Forum in 2009 with a view to having this vital element declared a right, in order to promote its protection and appropriate use and secure commitments to cooperate in joint activities on the issue “The sustainability of ecosystems and human consumption shall be priorities in water use and development”. 115 For details, see: LEGAL RESOURCES FOR THE RIGHT TO WATER AND SANITATION: International and National Standards – 2nd edition; document is available at www.cohre.org/water. 116 Pierre Thielbörger (2014) provides a comparative study of European and nonEuropean nations, including, Germany, Belgium, France, South Africa and India. His observations provide that in the German Constitution there is no direct mention on Right to Water; however, the right is confined through the Federal Water Act and Criminal Code states in section 324. In Belgium, Belgian courts are the protector of right to water, as the Resolution called Water Resolution adopted by the Belgian parliament in 2005 is not yet a constitutional feature. The Senate in this regard argues that article 23, which states that all citizens should be able to live in a dignified manner and therefore have the right to the protection of a safe environment and health. 117 This includes countries like Algeria Water Law no. 05-12, 4 August 2005; Angola Water Act, 21 June 2002; Water Code of the Republic of Armenia, 2002; Water Code of the Azerbaijan Republic, 1997, Water Law of the People's Republic of China, 2002; Finland Water Services Act (119/2001); The Gambia

48  The concept of Right to Water National Water Resources Bill, 2001271; Ghana Water Use Regulations, LI 1692 of 200, 1; Indonesia Law No. 7/2004 on Water Resources, promulgated 8 March 2004; and Kenya Water Act, Act No. 8 of 2002. 118 To assure water to all Indonesians, Regulation 23/2006 sets a standard for basis drinking water needs at 10 m3 per family member per month or 60 litres per person per day. 119 In South Africa, the “basic” level of water supply is set at 25 litres per person per day. 120 Provisions of water services, mentioned in the Law on Sanitation, comply with minimum-quality standards, including regularity and continuity. 121 For details, see Georgia’s Water Law or Kazakhstan’s Water Code and Kyrgyzstan’s Law No. 1422-XII. 122 To assure quality and quantity, laws of different states have established safety zones around drinking water sources to ensure the protection of water resources. For details, see China’s Water Law, Kyrgyzstan’s Law No. 1422-XII or Tajikistan’s Water Code. 123 Nations have established safety zones around drinking water sources to ensure the protection of water resources. For details, see China’s Water Law, Kyrgyzstan’s Law No. 1422-XII or Tajikistan’s Water Code. 124 Finland Water Services Act (119/2001); Indonesia Government Regulation No. 82 of 2001 concerning Water Quality Management and Water Pollution Control 339; Malaysia Water Services Industry Act (Act 655), 20 July 2006, 341. 125 France has enacted a Law on Water and later embedded it in the Environmental Code. Details are available at: http://www.legifrance.gouv.fr/affichCode.do?ci dTexte=LEGITEXT000006072050&dateTexte=20130301. 126 The insistence for international cooperation in water management, including sanitation. 127 The Act ensures that all consumers or potential consumers in its area of jurisdiction have efficient, affordable, economic and sustainable access to water services. It instructs authorities to draw up a development plan, indicating a timeframe for achieving universal access to basic water supply and sanitation. 128 Venezuela’s Organic Law on the Provision of Potable Water and Sanitation Services and Chile’s subsidy system for water and other utilities has established a system of public subsidies in order to help low-income users afford their basic water and sanitation. 129 Here, taking Finland is confusing because Finland’s Water Service Act provides dual standards. It calls for a longer delay in disconnection when failure to pay is due to financial difficulties caused by serious illness, unemployment or such cause through no fault of the user, and the water provider has been notified. However, this provision would appear to be in conflict with the right to water and sanitation, which does not permit any disconnection in such circumstances. 130 The Resolution states that expenses for the satisfaction of the standard basic drinking water need of 10 m3 per family member per month or 60 litres per person per day must not exceed 4% of the subscribers’ income. 131 The Act of United Kingdom has restricted the disconnections for certain types of water users, such as domestic households, hospitals, schools and other such public institutions. 132 The law insists that the internet must be used as a tool. 133 The Act emphasises establishing a national information system on water services that provides information in an accessible format. 134 It should be noted that there are nations that have explicitly and implicitly accepted right to water as a fundamental right of human beings. However, since the present research has limitations to explore and discuss the meaning of

The concept of Right to Water  49 right to water, I have not mentioned all the constitutions and legal frameworks. For details, one may visit www.cohre.org. 135 Scholars like Balakrishnan (2003), Baxi (2007) and Törnquist-Chesnier (2004) argue strongly that the GJMs have played an important role in drawing attention to the human consequences of neoliberal transformations and thereby contributed to changes in international law. 136 See Dennis and Stewart (2004). 137 See Tully (2006). 138 Source of this detail is WHO document “Right to Water” published in 2003, Geneva. Available at https://www.ohchr.org/documents/publications/factsheet35en.pdf, retrieved 24 May 2021. 139 In 2003, World Health Organisation released a document, “ Human Right to Water”, which provides elements of Human Right to Water. Retrieved 23 May 2021 from https://www.who.int/water_sanitation_health/en/righttowater.pdf 140 For details, see Hohfield (2020), edited by Walter Wheeler Cook. Also see Stone (1963). 141 Discussion in this regard is following understandings offered by BMZ (2010: 10) and COHRE (2008: 14, 162). 142 The author disagreed with Shiva’s (2006) understanding which insists that industry and agricultural use of water does not include right to water. Since water requirements are multiple, government has to take care of those too as human beings not only want to live but also desire development. For details, see Shiva (2006). 143 The details of what right to water is, is described in Legal Resources for the Right to Water and Sanitation: International and National Standards published by Centre on Housing Rights and Eviction (COHRE) in January 2008. The document is available at [email protected] Ideas are clarified again in 2010, for details, see BMZ (2010). 144 To get these three understandings, see works such as Gleick (1998, 2000a), Ricardo (2001), Krause (2003), Bakker (2004, 2010), Getzler (2004), World Bank (2004b), Cahill (2005), Anand (2007), Goldman (2007), de Beco (2008, 2013), Ingram (2008), Asthana (2009), Brand (2009), Iyer (2010b), Baxi (2012) and Peter Debaere (2014). 145 Note that this figure is an improvised version of the understanding offered by the World Health Organisation. For the original document, visit www.who.int/hhr.

3 Indian understanding on Right to Water

Introduction The nature and scope of Right to Water in India is still at the initial stages of evolving. As an idea, it has not evolved conceptually but only reflects some key values in the national and state government documents and initiatives of the Indian judiciary and civil society. In view of this argument, this chapter, in continuation with Chapter 2, attempts to explore and introduce the idea of Right to Water in the Indian context. To investigate the status of Right to Water in India, the following sections examine water management approaches developed in colonial India and post-independence India. By focusing on the Indian understanding on Right to Water, these sections shed lights on constitutional, legal or planning and program frameworks that have introduced and enshrined the value of Right to Water. It elaborates on the role of judiciary and civil society in evolution and expansion of the idea.

3.1 Right to water in British Colonial Rule in India In India during British colonial rule, water was a subject of management and control by the central government. The purpose of colonial administration was to uphold a system of water management that could create and ensure strategies to maximise profit from water bodies.1 Since the focus of water management was on maximum profit/gains, the laws introduced by the colonial administration were concerned with use of water for productive activities as irrigation, navigation and embankments. In the Company and British administration, to strategise water management, Acts and regulations were introduced in accordance with regional requirements. Acts such as Bengal Regulation VI 1819, Embankment Regulation 1829, the Act of 1866, the Northern India Canal and Drainage Act 1873 and Bombay Irrigation Act 1879 are major landmarks in this regard.2 The Acts, enacted during the Company administration, initiated and endorsed the control of the state on water bodies and water resources that was first noted in 1819 when the Bengal Regulation Act of 1819 was introduced. The Act empowered the government to invade “private rights” of ferry by establishment of “public ferry”. The Act aimed to break down DOI: 10.4324/9781003211730-3

Indian understanding on Right to Water  51 the system of Kudimaramath (self-repair) and to replace it with a system of state-owned water management that was managed through public funds.3 Similarly, to manage and repair embankments, the Company enacted the Embankments Resolution Act 1829 that endorsed the power of the British government to control water resources and water bodies. With the shift of power to the British crown, the interest of the colonial government towards water resource management increased. In order to gain maximum profit from water bodies, government’s control on canal water supply was justified and special attention was given to irrigation. The Act of 1866, Northern India Canal and Drainage Act 1873 and Bombay Irrigation Act 1879 are examples of such initiatives. These Acts, while deciding on the purpose of water use, argued differently from the Company administration, stating that water resources are the subject of public use and so it was justifiable to put them under government control. The Preamble of the 1873 Act states that the provincial government is entitled to use and control for public purposes, the water of all rivers and streams flowing in natural channels and of all lakes and other natural collections of still water.4 Notably, the British colonial government, while emphasising the use of water for irrigation purposes, had on record admitted that the government has the duty to fulfil the requirement of the drinking water supply. However, the control over water resources, in all the situations, remained in the hands of the British government. The Bengal Irrigation Act 1876 and the Bombay Irrigation Act 1879 have special significance in this regard. The Bengal irrigation Act recognised that wherever irrigation works led to a substantial deterioration of the drinking water supply, the government had a duty to provide an alternative supply of drinking water within convenient distance. Similarly, the Bombay Irrigation Act 1879 stated that whenever it appears expedient to the State Government, the water of any river or stream flowing in natural channel, or any lake or other natural collection of still water, should be applied or used by the State Government. The State Government may, by notification, declare that the said water will be so applied (Section 5).5 The Acts that were passed in subsequent years have considered the Bengal Irrigation Act of 1876 and the Bombay Irrigation Act 1879 as milestones. In the light of these two Acts, the new Acts have redefined the meaning of control of the British government over water bodies and have paid attention to the requirement of drinking water, albeit in a limited sense. The Acts, such as Punjab Minor Canals Act of 1905, Jharia Water Supply Act 1914, the Kumaon Water Rules of 1917 and the Utter Pradesh Minor Canals Act 1920, are important in this regard.6 A major shift in water management was noted when the Royal Commission on Agriculture recommended participatory management in irrigation.7 The suggestions were placed in the Madhya Pradesh Irrigation Act 1931 that added participatory irrigation along with the responsibility of the drinking water supply. During the colonial administration, the idea of

52  Indian understanding on Right to Water participation in water management is further argued as a key aspect of administrative decentralisation. The Government of India Act 1935 is a major change in this regard as it has devolved irrigation matters to states. With the Act in effect, the provinces were entitled to make resolutions, laws and policies on matters concerning water supply, irrigation, canals, drainage, embankments, water shortage and hydropower. All these Acts together have created a public system of water management that recognised the obligation of government to ensure a supply of drinking water. However, here the intention was not to entitle people to lay claim on water as their right. The use of water was permissible on the ground of ownership of land that was in the hands of the state governments.8 In the system of water governance, water as a right was endorsed as a subject of management. This has allowed the governments to control water against the rights of commons over water resources.

3.2 The Idea of Right to Water after independence in India In British colonial India, even the limited aspects of right to water were not being satisfied. This means that sovereign India had to make a fresh start. Importantly, in comparison to other rights, identifying and exploring the precise point where Right to Water was introduced in India, is difficult. It is a fact that India in its constitutional settings had implicitly protected water as a right. However, whether this protection comes under the category of Right to Water is yet to be investigated. 3.2.1 The Constitutional Understanding(s) To ensure water as a right, the Indian Constitution has prepared required background. The provisions, in this regard are not explicit but implicit. The indirect arrangements have judicial and legal significance and hence cannot be ignored as the Indian judiciary has emphasised. It is to note that the Indian Constitution does not restrict itself strictly to the meaning and scope of Right to Water, but certain of its provisions have circuitously considered right to water as one of the rights. The provisions that have implicitly embraced the values of Right to Water can be classified as follows. 3.2.1.1 Right to Equality (Article 15(2)) The Indian Constitution is the first national document in which sovereign India has placed right to water as an equal right to access. Article 15(2) of the Constitution explicitly states that no citizen shall “on grounds only of religion, race, caste, sex, place of birth or any of them” be subject to any disability, liability, restriction or condition with regard to “the use of wells, tanks and bathing ghats”.

Indian understanding on Right to Water  53 3.2.1.2 Right to Freedom (Article 19(1)(e)) The second implicit but significant mention of right to water is noted in Article 19(1)(e) that gives right to freedom and guarantees right to reside and settle in any part of the country. Since the purpose of this provision is to ensure all facilities, essential for dignified settlements, it is clear that under this provision, one can claim right to water as a part of right to freedom to settle in any part of India. 3.2.1.3 Right to Life (Article 21) Another important right with reference to right to water is Right to Life, declared in Article 21 of the Indian Constitution. The Article states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. In comparison to all other rights, entitlement of Right to Life comprises multiple entitlements. As per judicial interpretations, this includes right to food, the right to clean environment and the right to health. Since enjoyment of all these rights are directly linked with the availability, accessibility and affordability of water, it is clear that the Constitution of India implicitly intends to ensure water as a fundamental right. In the legal discourse it has been argued that the idea is protected under the broad rubric of the Right to Life guaranteed under Article 21 of the Constitution.9 3.2.1.4 Right to Education Act 2009 (Article 21(A)) As of this writing, the most recent development in respect to right to water, which again is implicit by nature, was in 2009, when the union government of India added a new right in the list of Fundamental Rights. Importantly, here, right to water is indirectly assured in the context of Right to Education that is guaranteed under the Right of Children to Free and Compulsory Education Act 2009 (Right to Education Act). Notably, while obligating States to provide free and compulsory education to all children ages 6 to 14, the Act determines that it is mandatory for all schools to provide safe and adequate drinking water facilities to their students. This can be considered as an explicit recognition of the right to water to staff as well as students. Providing water in this manner to children ascertains them as one of the major beneficiaries of the right. 3.2.1.5 Fundamental Duties (Article 51(A)(g)) The Indian Constitution has notified the individual’s rights on water, with reference to duties. It can be argued that the Indian Constitution attempts to maintain balance between rights and duties, and for this to be successful, it urges citizens to protect water resources as their duty. Article 51A(g), in

54  Indian understanding on Right to Water this view, places a fundamental duty on every citizen of India “to protect and improve” the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures. 3.2.1.6 Directive Principles of State Policy (Article 48A) The aspect of “duty” is further carried forward with reference to Indian states. For instance, the provisions that are elaborated as directive principles to states, declare that “the State shall direct its policy towards securing that the ownership and control of the natural resources of the community are so distributed as best to subserve the ‘common good’”. Article 48A in this requirement provides that “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”10. Visibly, the purpose of Article 48A of the Directive Principles of State Policy is to obligate states to protect, distribute and maintain natural resources for the common good, which indirectly instructs the state to ensure equal availability and accessibility to water resources. 3.2.1.7 Division of Powers between Union, state and local governments (Entry 56 (List I), Entry 17 (List 11) and 73rd and 74th Constitutional Amendment Act 1992) In regard to obligations, the Indian Constitution is quite clear.11 In the division of obligation, Entry 17 of the State List provides details on water management. It states that: “Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power is the subject of state.” Another entry in this regard is conditional and is mentioned as Union Entry 56 (list-I) of the Seventh Schedule (Article 246), i.e. evolved as parliamentarian law.12 This particular entry states that the Regulation and Development of interstate rivers and river valleys are under the control of the Union. Matters other than these subjects are given to the local governments. In 1992, the Indian Parliament, while using its power of legislation, made a constitutional amendment, known as the 73rd and 74th Constitutional Amendment Act 1992, added to the Eleventh Schedule. The Schedule enshrines the distribution of powers between the state legislature and the panchayat which empowers panchayats to take necessary measures for water planning including minor irrigation, water management and watershed development (Entry 3), fisheries (Entry 5), drinking water (Entry 11), waterways (Entry 13), health and sanitation (Entry 23), public distribution system (Entry 28) and maintenance of community assets (Entry 2).13 Regarding the empowerment of municipalities, details are mentioned in Article 243W, which obligates municipalities to ensure water supply for domestic, industrial and commercial purposes that is an important element of Right to Water. For the progression of Right to Water, the Indian Constitution in the background of these provisions emphasises that in India, the duty of providing

Indian understanding on Right to Water  55 water to all is an obligation of the state as mentioned in the constitutional framework and has ensured, in the form of rights, duties and directives, principles of state policies. The provisions mentioned here assure individual rights on water and guarantee them with reference to right against discrimination, right to freedom and, more importantly, in favour of right to have life itself. The provisions enshrined in parts III and IV of the Indian Constitution is indeed indicative of a paradigm shift that has suspended the colonial trend to use water for economic growth and shifted it to the objective of social justice (Baxi, 2012). In fact, it is the spirit of the constitutional provisions which allows the Indian judiciary to address water-related issues to ensure right to water and to make it obligatory for the administration to ensure it to all. 3.2.2 Reflection of the idea of Right to Water in Indian laws: Major landmark In the Indian legal frameworks, requirement of water uses is realized and fulfilled on a sectoral basis. The laws related to water use do not offer an exact legal framework within any single paradigm (Sangameswaran, 2007; Iyer, 2010b; Cullet, 2010, 2013). As a result, India has as many laws as there are water uses.14 In these laws, use of water for drinking, irrigation and industrial purposes are defined separately (Cullet, 2013). Water-related laws have addressed the issues concerning irrigation, energy, hydropower, drinking water, industry and environment, and while doing so, they have implicitly presented water as a right but not in a codified way. While addressing the problems related to these subjects, Indian Laws on water management have reflected on the idea of Right to Water, howsoever in a narrow sense.15 Constitutional adaptation of the federal government has entitled the Union and state governments to enact laws on water-related issues. The exercise of the power of the enactment of laws has created a situation of legal pluralism. The legal structure of the Union government, in this regard, is based on three Articles, namely Article 246,16 Article 262(1)17 and Article 262(2).18 These articles have collectively entitled Union governments to legislate on water issues. To exercise legislative powers for water resource management, the Union government has used an inclusive approach. Accordingly, while using the authority of enactment, the government has made laws which encompass all subjects that are directly or indirectly related to water uses, such as laws and acts on interstate and trans-boundary water disputes and conflicts, pollution and environment. Since the sovereign Union government of independent India has to maintain natural resources with federal setups, the early initiatives made by the Union government aimed to address the problem of interstate water disputes. Hence, the Acts like River Boards Act 195619 and the Inter-State River Water Dispute Act 195620 do not emphasise the individual’s rights over water use. In fact, the provisions of these Acts clarify the riparian rights

56  Indian understanding on Right to Water of the states. Authorities of the Union government are further redefined in the Limitation Act 1963. Part IV, section 25 of this Act states that the rights of the state, including right to such access and use of airway, watercourse, use of water or other easement, shall be absolute and indefeasible.21 Since the provisions have majorly followed the principles of riparian rights, it is evident that the Acts have endorsed the rights of riparian owners and not the rights of individuals over water use (Cullet, 2009a,b). The first mention in this regard is implicitly noted in the Factories Act 1948. The Act has obligated factory owners to ensure safe and cool water to their employees. Section 18(1) of the Act states that “in every factory effective arrangement shall be made to provide and maintain at suitable points conveniently situated for all workers employed therein a sufficient supply of wholesome drinking water”. Since the claim on drinking water in this Act is limited to employees, the Act cannot be deemed to be an actual entitlement of Right to Water. A narrow expression of the idea of Right to Water is further noted in the Acts titled Water (Prevention and Control of Pollution) Act, 1974 and the Environment Protection Act, 1986. Relevance of the Water Act 1974 has two counts. First, it was the first time that a separate legislation was enacted on water itself, and secondly, it aims to provide fresh and drinkable water to all citizens.22 To ensure drinkability of water, the Act emphasises control on water pollution, and to attain this goal, it offered comprehensive administrative details across eight chapters and 64 sections. Among all the sections, Subsection 2(3), read along with sections 17 and 18, have vital significance as these emphasise the need to provide clean water to citizens. To establish obligatory mechanisms for the same, Sections 3 to 14 contain provisions to establish Central and State Boards that are obligated to undertake necessary measures to control water pollution.23 The objective to have pollution-free and drinkable water is redefined in the Environment Protection Act 1986, whose provisions specifically concentrate on the quality and accessibility of water. To measure quality and accessibility of water, the Act provides notifications on permissible quality standards, environmental impact assessments and public hearings. Most of the laws made by the Union government share the idea of prevention of environmental pollution with regard to water bodies. However, they do not establish rights for the individual, and hence the required suitable legal source for the derivation of such a right is not found in their offerings (Thielbörger, 2014: 51). A considerable shift with respect to the idea of Right to Water was noted in 2016 when rights on water were entitled to individuals as well. The Rights of Persons with Disability Act 2016 established special provisions for the disabled/differently abled that entitle them to claim water as a right. Chapter V of the Act, i.e. “Social Security, Health, Rehabilitation and Recreation”, states that persons with disabilities have special right to water. Section 25(e) of this Act mandated access to safe drinking water and appropriate and accessible sanitation facilities, especially in urban slums and rural areas.

Indian understanding on Right to Water  57 Another significant change was expected from a national bill titled “Water for All” which is presently placed in the public domain for discussion, comment and suggestions.24 Since the bill was still in process as of this writing, making a prediction that it will entitle water as a right to all is difficult. So far, legal frameworks offered by the Union government have not offered anything that can be termed as concrete with reference to the idea of Right to Water, as conceptually understood in Chapter 2. In the absence of codified laws in favour of the idea of Right to Water, the significance of planning and programming frameworks has been increased. In this reference, the National Action Plan on climate change, declared as National Water Mission in 2019, has insisted that the Mission will be mounted to ensure minimal wastage and more equitable distribution both across and within states. 3.2.3 Planning and programming frameworks: Major proclamations In India, Five Year Plans have focused on water management with reference to the problem of water scarcity. Hence their objectives emphasise the optimum use of water resources. In the planning process, focus is commonly given to various issues as agriculture and industrial development, health, employment, transport, water technology and environment protection.25 Since the framework of water planning is based on socialist thought, priority of water distribution was given to the welfare of backward classes, and programs/schemes were made to ensure that they will be the first beneficiary of water resources. Importantly, the objectives of the Five-Year Plans are realised through schemes and programs. The First Five Year Plan (1951–1956) endeavoured to provide drinking water to all.26 To make drinking water available was its first priority, and in this direction, the Plan introduced the National Water Supply and Sanitation program in 1954. The program emphasised making available a safe water supply and adequate drainage facilities for the entire urban and rural populations of India. The next major development on this front is noted in the Fourth Five Year Plan (1969–1974) that was made in the context of international development. As per the guidelines of international organisations, the plan introduced a program titled the “Accelerated Rural Water Supply Programme” (hereafter ARWSP) made in 1972–1973. Importantly, major ideas of it are reformed, first in 1990 and again in 2009. In the reference to the idea of Right to Water, this program has specific importance as it was the first instance of a national document offering guidelines to ensure drinking water to all habitations in rural areas. The guidelines significantly match the concept of Right to Water as they suggest a minimum level of water supply deemed essential for human life. According to the guidelines, the basic minimum requirement is 40 litres per capita per day.27 To make water accessible as per the mentioned requirements, the program instructed that the distance of the source of water must be within

58  Indian understanding on Right to Water 1.6 km or 100 metres, and one hand pump should not serve more than 250 people. Thus, as a program it inculcated three major elements of the idea of Right to Water, including the minimum water requirement, easy accessibility of safe drinking water and sustainability of water resources to ensure water to all. The program had initiated a participatory approach and while offering implementation measures, ARWSP exceptionally emphasised the involvement of women in water planning. The next plan i.e. the Fifth Five Year Plan (1974–1979) added onto the schemes. While doing so, it considered water as a part of environment, and to preserve environment, it emphasised prevention of water pollution. The Sixth Five Year Plan (1980–1985) focused on sanitation facilities in urban areas and emphasised women’s participation in water planning. To attain the focused targets, the Sixth Five Year Plan introduced three programs, titled the Low-Cost Sanitation Scheme in 1980–1981, the International Drinking Water Supply and Sanitation Program in 1983 and Promotion for the Role of Women in Water and Environmental Sanitation Services (PROWWESS) in 1983. These programs intended to promote ways to include women in water supply planning and sanitation projects and had thus initiated community participation in decision making. The program was indeed a move towards right to water because the Plan emphasised gender analysis, community involvement, participatory techniques and capacity building through field projects. A major contribution in the context of Union water programs are the references offered by the Seventh Five Year Plan (1985–1990). This program gave India its first national water policy in 1986 and, in the water projects, gave exceptional priority to supply of drinking water and assurance of good-quality water. For the latter, it offered measures for estimating the quality of water which is known as the Bureau of Indian Standard (BIS) IS: 10500 (the guidelines offered herein were modified in 2004 and titled as “Guidelines for Drinking Water Quality and Guidelines for Safe Use of Wastewater and Grey Water” (2006). The Plan further launched a project called the “Technology Mission” in 1986–1987, which was renamed in 1991–1992 as the Rajiv Gandhi National Drinking Water Mission. The purpose of both programs was to ensure people’s drinking water security in rural India, which indeed is an important aspect of Right to Water. The Eighth (1992–1997) and Ninth (1997–2002) Five Year Plans together, while extending safe drinking water facilities to the urban population, has expanded people’s participation in water planning that has been constantly maintained until the Twelfth Five Year Plan (2012–2017). Significantly, the nature of people’s participation as mentioned in this Plan was different from their prior involvement. In these two plans, participation was established as an obligation that was given to private sectors, including civil society and private enterprises. To ensure safe drinking water to urban and rural areas, the Plans emphasised creation of appropriate infrastructure. Accordingly, reforms in the Rural Drinking Water Sector were adopted in 1999. The Plans launched projects called “Swajaldhara” with two Dharas (streams).

Indian understanding on Right to Water  59 The first Dhara (Swajaldhara I) was established for a Gram Panchayat (GP) or a group of GPs or an intermediate panchayat (at the Block/Tehsil level), and the second Dhara (Swajaldhara II) was introduced for Districts. In 2003, some reformative principles were added into Swajaldhara which were required to be adhered by the state governments and the implementing agencies. The principles mentioned in these two Plans insisted upon the adoption of a demand-responsive, participatory approach. The purpose of the Plan was to empower villagers by seeking their participation in the project functions and decision-making processes.28 Importantly, it shifted the role of the government from direct service delivery to that of a planner, policy maker, monitor and evaluator, and a partial financial supporter. The Tenth Five Year Plan (2002–2007) maintained balance between urban and rural water planning; importantly, initiatives in this respect were multiple. For instance, to ensure water at the rural level, a programme named “Haryali” was launched in 2003 to ensure water availability and accessibility at the urban level, the Jawaharlal Nehru National Urban Renewal Mission (JNNURM) was inaugurated in 2005 and to institutionalise community participation in water management and monitoring and to maintain water quality in rural areas, the National Rural Drinking Water Quality Monitoring & Surveillance Programme was launched in February 2006. The Eleventh Five Year Plan (2007–2012) focused on the environmental aspect of water and with reference to it the National Urban Sanitation Policy 2008 was introduced that specifically focused on recycling of water. The Twelfth Five Year Plan (2012–2017) has a combined focus on rural and urban water management. The official guidelines in this regard were released in 2013, in which rural water requirements are set at a minimum of 55 litres per capita per day.29 The idea and guidelines are further continued with the Thirteenth Five Year Plan (2017–2022). The Plan in this respect focuses on the protection of the drinking water sources in the rural areas and views management of water resources in the context of environment. In the planning frameworks, a commitment to fulfil right to water to all is at the centre. The frameworks have adopted an integrated approach that covers almost all the sectors of water users.30 With the focus on demand management, the Plans emphasise community participation, equitable distribution and water recycling. To attain the decided objectives, they have focused on strengthening the institutional capacity and creating a conductive environment,31 which indeed is a prerequisite for both entitlement and assurance of right to water. The most recent development in this regard can be noted in 2019. In May 2019, to focus on the issues concerning water distribution and management, the Union government formed a new ministry, called Ministry of Jal Shakti. The Ministry is actually the merge of two ministries, earlier known as Ministry of Water Resources, River Development & Ganga Rejuvenation and Ministry of Drinking Water and Sanitation. To ensure water to all, the new ministry has initiated multiple plans, including “Har Ghar Nal”; however, only future will tell whether each Nal will have Jal, or not.

60  Indian understanding on Right to Water 3.2.4 Undertakings of Indian states: The contexts and key contents In India, the principle of federalism has entitled Indian states to legislate on regional matters (Articles 153 to 213). In this respect, Entry 17 of List-II, i.e. the State List of the Indian Constitution, entitles states to make laws, acts and policies on water-related issues. While exercising the entitlements, states have made laws, acts and policies, as per regional and local requirements. From state to state, legislations, policies and programmes on water-related issues have been introduced and evolved in different contexts. However, despite the contextual difference, each state government has a clear focus on water supply. To ensure drinkable water to all its inhabitants, the states incorporate measures for water availability and accessibility as well. For instance, Section 62 of the Maharashtra Municipalities Act 1965, while focusing on groundwater management, points to the minimum availability and provides that the Municipal Councils are expected to provide at least 70 litres of drinking water per head per day.32 Similarly, the Tamil Nadu Water Supply Act 1970, the Karnataka Urban Water Supply and Drainage Board Act of 1973, the Uttar Pradesh Water Supply and Sewerage Act 1975 and Punjab Water Supply Sewerage Act 1976 have made special provisions to ensure regularity of water supply and obligate state governments to ensure drinkable water to all. The obligations are further extended to local self-government. The 73rd and 74th amendments obligate panchayats and municipalities to ensure water supply to the inhabitants of their region. Importantly, the obligation of panchayats to ensure water supply is argued in different references including public health requirements. In this regard, the Gujarat Panchayat Act 1993, in part III, 145 (iv), establishes a Public Health Committee for performing functions pertaining to public health, hospitals, health centres, sanitation, water supply, vaccination and family planning. In comparison to panchayats, obligation on municipalities are more complex and wider in scope with regard to ensuring water supply to larger parts of the area. The Bihar Municipalities Act 2007, in this regard, suggests the specific duty of the municipalities to supply water and to insist on providing or arranging to provide a supply of wholesome water in pipes to every part of the municipal area in which there are houses. The obligations of municipalities are extended even at the grievances level. For instance, the Mumbai Municipal Corporation Act 1888, in its modified form in January 2016, insists that the primary objective of functions of the Wards Committee shall, subject to the general supervision and control of the Corporation, address the common grievances of citizens, connected with local and essential municipal services as water supply, drainage, sanitation and storm water disposal. The top priority for drinking water in the state water policies and legislations are further mentioned through groundwater management legislations made by states such as Karnataka, called Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act 1999,33 Andhra

Indian understanding on Right to Water  61 Pradesh, as Andhra Pradesh Water (Regulation for Drinking Water Purposes) Act 1996,34 Maharashtra, as the Maharashtra Ground Water (Regulation for Drinking Water Purposes) Act 1993,35 and Himachal Pradesh, as Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act 2005. All these Acts, since they aim to protect and preserve groundwater resources for drinking purposes, embrace the core aspects of Right to Water; however, in compare to all the other states, the Himachal Pradesh Act 2005 offered a relatively wider perspective of the same.36 The Act, while granting permission for water extraction, insists that the authority should focus on (a) the purpose or purposes for which water is to be used; (b) the existence of other competitive users; (c) the availability of water; (d) quality of groundwater to be drawn with reference to proposed usage (e) spacing of groundwater structures, keeping in view the purpose for which water is to be used; (f) minimum distance of 200 metres in case of shallow wells and 300 metres in case of tube wells from the existing source of water supply scheme to further strengthen the irrigation scheme, as the case may be; (g) long-term groundwater-level behaviour and (h) any other factor relevant thereto (subsection 3). Significantly at the state level, the obligation to supply water to all is not limited to the governmental bodies; in some cases the obligation is extended even to the private sector. For instance, in Rajasthan, the duty to supply water in urban water areas is singled out for private sector participation (Rajasthan State Water Policy 1999: 90)37. Since water supply has questioned the affordability of water for commons, to ensure drinking water as a right of commons, the Government of Rajasthan under the Sector Policy for Rural Drinking Water and Sanitation (Draft 2005 s3 (14)), decided to subsidise water to a specific class of consumers.38 The shift implies that the state governments are keen to promote user’s participation in water management and in so doing is interested to maintain the idea which insists that water is for commons. In this reference, the West Bengal Ground Water Resource (Management, Control and Regulation), Act 2005, section 6(2), is remarkable, because its provisions emphasise establishment of participatory mechanisms and ensuring people’s participation in policy planning. It is easy to observe that the state documents, irrespective of water conditions, give priority to drinking water. However, an unavoidable fact is that in the process of implementation, priorities are not absolute. In the listed priority, change is permissible and is required under specific circumstances as Maharashtra State Water Policy 2003, Section 5 and Rajasthan State Water Policy 1999, Section 8, and Policy 2003 (1)(3) state (Cullet, 2010). These policies emphasise ensuring efficiency and productivity in water management. As per the policy, regulation and control on water resources is allowed to entitle people to use water as their right. Since the priority of water use changes as per the situation, there is a doubt as to whether rights on water will be fulfilled, respected and protected by the state, in the desired manner. The principle of priority change is commonly explained in the union and state documents. Since this legitimises the claims on water use for purposes

62  Indian understanding on Right to Water other than life, claim-ability of individuals over water as a right is becoming doubtful. An arrangement like this makes these documents shaky and unclear. In progression of the idea of Right to Water in India, this further establishes them as a thin expounder of the idea of Right to Water. 3.2.5 National and regional documents as thin expounder of the idea of Right to Water: A discussion The implicit nature of the national and state documents, in the form of law, Acts, plans and programs, has offered a relatively thin understanding of Right to Water. India’s narrow understanding of the idea is not uncommon, as globally, a fact that water is a right is not conceptualised in the context of Right to Water. However, the basic argument here is that since India has a long list of fundamental rights, expecting a place for Right to Water in government’s documents is not unusual.39 During pre-independence colonial India, water was a subject of state dominance, and hence it was not expected to have claim upon water as a people’s right. Independence has transformed the system of governance, but this has not brought any notable changes in the system of water management which can be established and argued along the lines of Right to Water. To reflect on this fact, Table 3.1 encapsulates the understandings on water resources and on the idea of Table 3.1  Understandings on Water Resources Management and on the Idea of Right to Water: British Colonial India and Post-colonial Independent India Classification Identified of the period problem British Colonial India

Independent India

Ownership on water

Major Documents available

Water Private Laws and Acts shortage and ownership ambiguities with in community dominance management of colonial of water state and resources provinces on water resources Water Public National stress, and subject and state limitations of with documents management control of including drinking the state Constitution, water supply, national laws, irrigation, acts, plans energy and and programs hydropower and Acts and projects programs made by Indian state

Status of Right to Water Complete absence of the idea

Expressed idea in a narrow sense and offer limited understanding

Indian understanding on Right to Water  63 Right to Water as noted in the undertakings of the government in pre- and post-independent colonial India. Table 3.1 elaborates on the government’s understanding and status of Right to Water in India, with a classification of two periods, i.e. pre- and post-independent India. The table presents that the documents made and released by the governments of pre- and post-independent India have observed water mainly as a problem of management and have not established it as a subject of right. In this view, undertakings made by colonial administration are not only incomplete but against the very idea of Right to Water. This is evident from the fact that during the period, the British state had realised the problem of water shortage and yet had allowed for private management. The facts elaborated in the previous paragraphs show that the legislations on water management recognise and endorse the dominance of British government on water resources. During British rule, there was complete absence of the right of commons over water resources is obvious, and thus trying to establish right to water as existing during that period of time is futile. After independence, the situation has partly improved. The realisation of the problems has expanded and water-related problems are considered the problem of water supply, irrigation and energy. However, the solutions are not offered in the context of Right to Water. Notably, the undertakings of the national and state governments have realised water as a need, but the fulfilment of the need is not assured as a right. The gap, in this respect is significantly filled by the other key stakeholders among others, contribution of judiciary in this regard is remarkable. 3.2.6 Right to Water in the view of Indian judiciary: Major cases and their interpretations In India, the propositions of the judiciary are not plain suggestions allowed to be treated as choices, but to a large extent, they are legal enforcements, as the Indian Constitution states. Article 141 of the Indian Constitution in this regard states that the statement of the Supreme Court shall be binding on all courts within the territory of India; in this sense, the verdicts of the Indian judiciary are the law of the land. Hence, in the absence of codified national and state legal frameworks, the judicial verdicts become the source of right that holds value equal to that held by a legal document.40 For the real entitlement of right to water, the interpretations offered by the judiciary are counted as significant because they are both general and specific in nature and have interpreted international documents and contextualised Right to Water in the Indian context. The judiciary through its major verdicts periodically uphold the key values of Right to Water and by doing so has shaped the scope of Right to Water in favour of the commons. To assure water for commons, the Indian judiciary, in different verdicts, has stated the following.

64  Indian understanding on Right to Water 3.2.6.1 Right to life includes Right to Water Interpretations offered by the Indian judiciary have made right to water more promising and comprehensive, as it has seen rights of the individual on water resources as an ingredient of right to life. The comprehensiveness of Right to Life is first stated in the case of Francis Coralie Mullin vs. Union Territory of Delhi (1981).41 In this case, the Supreme Court declared that “The right to life includes the right to live with human dignity and all that goes with it. It includes necessities of life such as adequate nutrition, clothing, and shelter”. The judgement has further included facilities as reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings. It goes on to state that the magnitude and components of this right would depend upon the extent of economic development of the country, but it must, in any view of the matter, include the bare necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. The idea of “necessities” is further expanded in the case of F.K. Hussain vs. Union of India (1990)42 that has placed water as basic. The High Court of Kerala stated and noted that life “is much more than the right to animal existence … the right to sweet water, and the right to free air, is attributes of the right to life … basic elements which sustain life itself is a basic right in all conditions”. While responding to a Public Interest Litigation to fight corporate pollution (though eventually dismissed), the Supreme Court has again expressed similar views. As in the case of Subhash Kumar vs. State of Bihar (1991),43 it declared that the right to life “includes the right of enjoyment of pollution free water and air for full enjoyment of life”. The same verdict again repeated in Santosh Govind Mahajan vs State of Maharashtra on 17 July 2012. Here the court stated that the right of access to clean drinking water is a fundamental right and the state is bound to supply potable water and a clean and safe environment, right to air and drinking water is right to life under Article 21 of the Constitution. 3.2.6.2 Indian states are the trustee of water resources The Indian judiciary, while giving verdicts on water management processes, has reconceptualised the idea and doctrine of public trusteeship. Significantly, it has entitled individuals against exploitation and discrimination in water supply. The judiciary in its verdicts has underlined that the idea of trusteeship is a legacy, and hence it is essential to maintain it for the future. In this view, in the case of M.C. Mehta vs. Kamal Nath (1997),44 the court declared that “our legal system is based on English common law which includes the public trust doctrine as section of its jurisprudence”. This means that the state is the trustee of all-natural resources that are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The verdict goes on to proclaim that a state as a trustee is under legal duty

Indian understanding on Right to Water  65 to protect the natural resources, which includes tanks and ponds. Again, the expressions are indirectly repeated in the case of Hinch Lal Tiwari vs. Kamala Devi (2001). Here, the court said that it is important to realise that the material resources of the community as forests, tanks, ponds, hillocks, mountains, etc., are nature’s bounty. They need to be protected and preserved for a proper and healthy environment which enables people to enjoy a qualitative life; this is the essence of the guaranteed right under Article 21 of the Constitution of India. 3.2.6.3 Water management processes are essentially required to meet international standards In the case of right to water, the Indian judiciary realised the significance of international standards of Right to Water. While vindicating the entitlements on water resources, the meanings and guidelines offered by international organisations are used as a major tool. For instance, in A.P. Pollution Control Board-II vs. Prof. M.V. Nayudu (2001),45 the Supreme Court recognized that right to water must not be observed as the only component of the right to life, but the definition of the right should correspond with international standards like the Mar del Plata Action Plan signed by India in 1977.46 The Court (2004) quoted the Plan, which states that “[a]ll 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”.47 Likewise, while dealing with the case of Pollution Control Board, the Court upheld that the concept of right to have a healthy environment (as developed by the Court and again informed by international standards) includes right to water that requires to gain widespread acceptance in both regional and national courtrooms abroad.48 3.2.6.4 Indian states are accountable to provide water as a right to All It is known that only a definite understanding on obligated parties can ensure rights in the desired way. In India, this is done by the judiciary. The verdicts given by the judiciary in different cases have endorsed the obligation of governments to ensure right to water to all.49 Here, it is important to note that the Court views right to water not as a fundamental right but, significantly, as the duty of the government to promote and fulfil water as a right. It has been stated that the government has to ensure “welfare” of the people at large and not merely of a small section of the society.50 In the case of Lucknow Grih Swami Parishad vs. State of Uttar Pradesh (2000), the responsibility of governments in water supply is profoundly emphasised. The court ruled that ‘it is the bounden duty of the State to assure the supply of sufficient amount of qualitative drinking water to its people’.51 Similarly, in Vishala Kochi Kudivella Samarkshana Samithi vs. State of Kerala (2006), the court specifically presented that the government ‘is bound to provide drinking water to the public’ and that this should be the foremost duty of

66  Indian understanding on Right to Water the government. Additionally, the judges ruled that the failure of the State to “provide safe drinking water” to citizens amounted to a violation of Article 21 of the Constitution.52 A violation of this kind is also taken seriously in the case of Hamid Khan vs. State of Madhya Pradesh (1997), when the state government was sued for not taking appropriate precautions to ensure safe drinking water supplied through hand pumps in Mandla District.53 Limitation of water uses in favour of public interest is further established in the case of Venkatagiriyappa vs. Karnataka Electricity Board.54 In this case the court took reference from Articles 47 and 21 and stated that the right to water does not cover water for irrigation and business. The core of the verdict is repeated in the Narmada Bachao Andolan vs. Union of India (2000). In this case, the Supreme Court held that water is the basic need for the survival of human beings and is a section of right to life enshrined in Article 21 of the Constitution of India.55 Therefore, the state is accountable to ensure water to all as right to life is attached with this assurance. 3.2.6.5 Individual's rights over water resources are universal The Indian judiciary has both ascertained as well as assured the universality of right to water. It has assured that right to access water is an equal right and cannot be denied to anyone on any ground. The courts within their jurisdictions direct that the government cannot interpret any policy against human right to water. Recently, in 2014, the Bombay High Court, while addressing/dealing in the case of refusal by the Municipal Corporation of Greater Mumbai to supply water to illegal slums, disapproved the policy as a violation of human right to water, understood in context of right to life.56 The nature of the verdicts of the Indian judiciary has shown that while offering measures for water management, the Indian judiciary has reconceptualised the fundamental right to life in favour of Right to Water. More importantly, the interpretation of the doctrine of public trusteeship in the context of protection of environment and protection of natural resources has shifted from a purely or merely a negative protection of natural resources to substantive obligations of positive enforcement. Clearly, the verdicts have offered two principles of Right to Water. The first principle states that governments are the trustees of natural resources and are accountable to the people of India. The idea of public trust has reaffirmed the idea of Right to Water, with which a trustee can neither alienate the trust nor fundamentally change its nature; at most it holds a usufructuary right in water in favour of the people.57 The second principle is based on the doctrine of public interest and welfare. Fundamentally, this principle insists that “[w]ater is the property of the people of India and is dedicated to their use that cannot be used other than for welfare purposes”.58 The responses given by judiciary are inspired by the human rights approach that has added to the understanding noted from the documents released by Union and state governments. However, the judiciary cannot be held to be the sole preserver and adherent of the idea. While celebrating

Indian understanding on Right to Water  67 the Indian judiciary as a definer of Right to Water, a role of civil society in regard to the same cannot be ignored. The social understanding about a sensitive and crucial issue such as right to water is equally important because in ideal situations, it contributes to policy decisions. The expected role is realised even by the international organisations which through different documents have obligated civil society to support the process of entitlements of right to water.59 3.2.7 Perspective (s) of Indian civil society In the discourse of rights, civil society is recognized as the voice of human rights groups, local communities, small farmers, peasants and indigenous people who demand social justice. It builds consensual communication and mobilises social action in a constructive way. In the decision-making process, these evolve as a bottom-up approach and are usually recognised as community initiatives. Since their approach is participatory, they create space to offer meaningful suggestions that are socially desired by the communities.60 In the water sector, the role of civil society is seen to have augmented after liberalisation. At the global level, civil society has come together as part of the water justice movement. In the process of water management, civil society members have objected to the plan of liberalisation of water resources and have insisted on water justice.61 Notably, the involvement of civil society in water management represents the values of post-neoliberalism that have articulated the voices against neoliberal practices in water management and argued for the social and cultural significance of water. In India, the responsibility assumed by civil society is taken up at the organisational and individual levels. The identified responsibility are fundamentally classified as initiatives of non-governmental organisations and intellectual contributions by water scholars and water activists. In these two categories, the key aspects of Right to Water are respectively evolved as the objective of the NGOs and as arguments made by the water studies as they have advanced the idea of Right to Water with reference to post-neoliberalism. 3.2.7.1 Objectives of Indian NGOs In the water sector, Indian NGOs have been active in the global justice movement. It is basically concerned with protecting/preventing water from getting privatised (Murthy, 2013).62 To struggle against water marketing, Indian NGOs have developed alliances of regional NGOs that are mainly divided into two groups, the Water Liberation Campaign63 and the Citizens for Water Democracy.64 As a result of these alliances, the influence of NGOs that was limited to a region has extended to the national level. Consequently, in the progression of water management, Indian NGOs have emerged as national actors.65 In India, these NGOs have emerged as critics

68  Indian understanding on Right to Water of water privatisation and also as the mediator between the state and society. In the process of decision making, NGOs inform governments about the desire of the people (D’Souza, 2014). In doing so, they offer a desired meaning of right to water, which is commonly taken as the expression of the entire community.66 The issues brought in by the NGOs are people-centric objectives representing at least one key element of Right to Water, as Table 3.2 explains.67 Table 3.2  NGO Objectives and Major Aspects of Right to Water Name of the NGO Objective of the NGO

Aspect of right to water that the NGO has ensured

Paani Morcha

Duty to play a role of stakeholder

Tarun Bharat Sangh Dehat Morcha and Bharatya Kisan Union Bhartiya Jagriti Mission

Citizens for Water Democracy Resident Welfare Associations Water Workers Alliance National Federation for Indian Women

An organization that works to alleviate the growing water crisis in India particularly in Delhi through public interest litigation and for the purification of Ganges water. An NGO that brings people together on issues of management of forests and water resources. A farmer’s movement which fights for the rights of farmers over land and water. A religious and charitable trust working for the welfare of rural poor and to save the water of Goddess (as quoted on website) Ganges. Their main goal is to confront the challenges of pollution, privatization and construction of Tehri dam on the Ganges. Created by other NGOs and the people of Delhi to fight against water privatization. Formed in every housing locality to take care of the welfare and basic needs of the residents in that locality. NGO of middle and lower rung of bureaucracy in Delhi Jal Board to fight against water privatization. The women’s wing of the communist section of India to intervene on water issues.

Encouraging participation of people in water management Advocate to ensure farmers as one of the beneficiaries of water resources Protecting and preserving water for culture, i.e. one of the priorities of Right to Water

Water for commons and for all Offers effective people’s participation Right to water is a post neoliberal phenomenon Ensuring women’s participation in water planning

Indian understanding on Right to Water  69 Table 3.2 demonstrates that the objectives argued by Indian NGOs are in harmony with the core principles of Right to Water. Importantly, they have conceptualised Right to Water in its social and cultural context (for instance, as done by Bhartiya Jagriti Mission) and have connected the concept of Right to Water with the idea of water justice that is absent in national and state documents. Also, an addition of the principle of water justice has reconceptualised the idea of participation and has argued for right to water with reference to self-water governance, where each individual has the capacity to manage water resources on his/her own. To make participation in water planning a reality, NGOs offer required space that enables people to be the part of the decision-making process. NGOs like Tarun Bharat Sangh, Citizens for Water Democracy, Residential Welfare Association and Water Workers Alliance are some of the organisations that fulfil the purpose to ensure water to all. For the Indian NGOs, the right of commons over water resources includes right to participate in water planning. For them it is a privilege which entitles people to stake a claim against water privatisation. Notably in the process of water planning management, their agitation against water privatisation has ascertained NGOs as organisations that are: (a) goal oriented, which aim to abolish the system of water privatization; (b) duty oriented (Paani Marche), as they have made agitation their duty; (c) future oriented (Bhartiya Jagriti Mission), because they believe that agitation will secure water resources in future; (d) participation oriented (Tarun Bharat Sangh, Dehat Morcha, Resident Welfare Association and Bhartiya Kisan Union), as they encourage optimum participation of people; and (e) gender oriented, as they particularly encourage women’s participation (National Federation for Indian Women). Table 3.2 shows that a duty which has been identified and argued in philosophical understanding and endorsed by international organisations is taken up by Indian NGOs. Notably, the understandings of Indian NGOs like other nations are inspired by post-neoliberal arguments (such as Water Workers Alliance) which are rooted in intellectual debates. 3.2.7.2 Intellectual offerings Globally, intellectuals, academicians and activists are considered as social agents, who are commonly committed to social and political change. In political and philosophical discourses, the conceptions offered by them are argumentatively justified in favour of commons that generally argue for substantive equality. Significantly, in the process of water planning, the understandings given by them are appreciated because they look at the fundamental aspects of right to water and insist on adding non-discrimination as one of the core promises. In the process of water planning, their argumentative behaviour has established them as active advocates of water justice and as those who have passionately debated on the issue of water privatisation. Significantly, to ascertain the idea of water justice, Indian water scholars have not only condemned water privatisation, but

70  Indian understanding on Right to Water while doing so, they have also conceptualised the idea of Right to Water in the context of rational and equal right to use water. Such a conceptualisation in the context of priority has provided the world with an Indian perspective on the issue that has added to the post-neoliberal approach. This is extremely valuable for developing states. Indian scholars, in the line of the post-neoliberal approach, have argued on water as an issue, whose uneven and unpredictable availability requires that it be conserved for the commons. They emphasise that “no one holds a right to destroy water” as “it cannot be substituted” (Shiva, 2002: 35–36). To struggle against water privatization, Indian water scholars have offered a framework that explains the concept of Right to Water with reference to powers, privileges, claims and immunities (Anand, 2007). Here, it is essential to realise that the contributions of Indian water scholars to the world are not exceptional but additional, and they have helped to evolve the idea to expand in scope and to decide on entitlements with prioritisation. The discussions made by Indian water scholars have offered different perceptions of the idea, and this significantly includes arguments made by eco-feminists. For instance, while viewing water privatization and arguing for right to water, they argue that women should be the first beneficiary of the right to water (Shiva, 1989). Further, the discourse on the question of right to water in India has attempted to inculcate democratic values in water planning and has recognised the idea of Right to Water as part of Water Democracy. In this respect, Shiva’s observations are significant as she has elaborated upon the idea of Right to Water in the context of nine principles that collectively insist on assuring free water for sustenance needs along with preserving it for commons (Shiva, 2002: 35–36). Additionally, in order to maintain the principle of priority and to argue against water privatisation, Indian scholars, mainly Ramaswamy Iyer (2010b), Sangameswaran (2007: 15–16) and Khadka (2010: 40–41), have highlighted and underlined the differences between terms as “Right to Water” and “Water Rights”. Their contribution has redefined the entire argument which urges to define water as a right mainly in the context of Right to Water. These scholars have argued that “Water Rights” do not hold the same meaning as it is held by the term “Right to Water”. They explain that the term “Water Rights” entitles individuals and groups to use water for developmental purposes, the aim of which is to maximise production (Iyer, 2007: 142). The Indian scholars contend that the arguments presented with reference to Water Rights are economic in nature that allows one to distribute water for non-domestic purposes, which ultimately ignores the priority management in water distribution. Use of water irrespective of priority disturbs the major concern of the idea which has otherwise argued to consider water as a basic biological need. Iyer’s objection to the use of terms as demand and supply in water rights has further added to this new understanding. He underlines that the use of such terms has made water a subject of water economy, which justifies profit-oriented use of water resources and allows privatisation of water resources. In order to preserve

Indian understanding on Right to Water  71 water for biological and social needs and to argue against profit-oriented use of water, Indian water scholars as Vandana Asthana (2009) and P. B. Anand (2007) have interpreted Right to Water as a matter of security and emphasise its realisation as rights, duties, immunities and privileges. By doing this, the Indian scholars have sharpened the post-neoliberal arguments and lent support to the idea of Right to Water. This is indeed a contribution to the global community. 3.2.8 Emergence, evolution and recognition of Right to Water in India In India, the idea of Right to Water is not conceptualised in traditional senses. However, at the same time, this does not denote a complete absence of understand on the concept of Right to Water. A thin presence of the value of the concept of Right to Water in different governments’ documents cannot be ignored, as it is constantly evolving with the understandings, renewed and underlined by the judiciary and civil society. One can say that in India, the idea of Right to Water is evolving as a process in which the judiciary and civil society are a co-party to the union and state governments. The contribution of these actors, however, is not the same, as the undertakings of Union and state governments have implicitly mentioned the idea and have offered a very narrow perspective of the same. On the other hand, the judiciary and civil society offer a wider perspective to the concept and provides required expansion to the idea. Here, the government’s interpretations are being considered as narrow and thin because governmental frameworks, including the Constitution, laws, acts and plans, while highlighting the need of water in various sectors, have not valued water as a claim of individual rights. On the other hand, the Indian judiciary and civil society are considered as expounders who present a wider perspective because in their perception, water is considered as life-giving, and in the process of water distribution and management, they have argued and insisted upon water justice. Their arguments present water as a claimable right of an individual. In this way the judiciary and civil society have actually filled the gap that was left unfilled by the Union and state governments. While dealing with water-related issues, they have adopted and incorporated international understandings on the topic and have conceptualised the idea in the Indian context. Taking into account international measures by the judiciary in their verdicts and adoption of post-neoliberal views of civil society has expanded the values of water as a right in India. Significantly, in the progression of the idea, inclusion of judicial and social understanding has helped in proceeding towards realisation of the idea of Right to Water in India. Such progression of the idea can be divided into two stages. Stage 1 is represented by national and state documents which represent the emerging point of the idea, and Stage 2 denotes undertakings of the judiciary and civil society that offer expansion of the understanding. Note that in the process of evolution of the concept, each party has made a different contribution, as Figure 3.1 indicates.

72  Indian understanding on Right to Water Stage -1 Introducon to the idea: Narrow Perspecve

National and State Documents

Stage -2 Expansion of idea and content: Wider Perspecve

Judicial interventions and initiatives made by civil society

Water is life and so is a matter of justice

Water as a right

Constitutional provisions Laws and Acts Five Year Planning and Programs

Verdicts of Indian Courts Right to Water

Objectives of Indian NGOs Intellectual Discussions/Debates

Figure 3.1  Major contributors in the rise of the idea of Right to Water in India.

Figure 3.1 presents that the national and state documents, evolved in Stage 1, hold constitutional provisions, laws, Acts and planning frameworks. Stage 2 comprises verdicts of Indian courts, established objectives of Indian NGOs and intellectual debates/discussions. The figure demonstrates that the evolution and progression of the idea of Right to Water in India, represented as Stages 1 and 2, are horizontal developments and not vertical ones. The horizontal aspect of the development shows that both are equally important. In the view of entitlement of right to water, both stages are equally significant, as they are both progressing to attain Right to Water. The process of attainment is slow but constant, as Figure 3.1 shows. Figure 3.2 demonstrates that in India, the idea of Right to Water has evolved as an interactive process. To realize the evolution of the idea in the Indian context, one needs to understand the progress with reference to three undertakings: top-down undertaking, bottom-up undertaking and the undertaking that synthesises the two. In the figure, top-down undertakings are illustrated as national and state documents. They are referred to as imprecise because their contents do not clearly focus on the individual entitlements on right to water. The bottom-up approach, on the other hand, underlines the role of the Indian civil society in the process. Since NGOs have mobilised society on the issue of water justice and argued for right to water, their initiatives are required to be considered as social representation. In the figure, the role of the judiciary and civil society has been clubbed together; however, the level of legitimacy enjoyed by each of them is different. In the view of this fact, the judiciary is placed here as the synthesiser, because it has synthesised the undertakings of the government and civil society to ensure entitlement of Right to Water in a wider sense.

Indian understanding on Right to Water  73 Top down undertakings National and State documents*

Bottom up undertakings Water is a right and a matter for water justice

Top down Imprecise

Bottom up Narrow sense

Water as a right

Expansion of the idea

Wider sense

Precise

Offerings of civil society**

Process of Synthesis Verdicts of the Indian Judiciary*** Right to Life affirms Right to Water Note: *Constutes constuonal, legal and planning documents of union government and state governments **Comprises perspecves of NGOs and percepons of waters cholars ***Includes interpretaons of the verdicts of the Supreme Court and High Courts of India

Figure 3.2  Process of identifying and endorsing the idea of Right to Water in postcolonial independent India. Note: * Constitutes constitutional, legal and planning documents of Union government and state governments ** Comprises perspectives of NGOs and perceptions of water scholars *** Includes interpretations of the verdicts of the Supreme Court and High Courts of India  

Figure 3.2 provides a continuation to Figure 3.1 in a different way, however. In Figure 3.2, limited understanding gained from government’s documents has been expanded by adding the perspectives offered by civil society, of which NGOs and scholars are a vital part. The figure points out that in India, expansion of the idea of Right to Water arises because undertakings of the governments and the ideas of civil society are synthesised by the Indian judiciary. This has sharpened the idea and has legitimised the broader understanding offered by civil society. The figure draws attention to the fact that realisation of Right to Water in India combines the three perspectives, offered by the government’s documents (both Union and state), judiciary through its verdicts and civil society by initiating to argue right to water to all. While each understanding enjoys its own space and significance, the judiciary is of central significance. Figure 3.2 further denotes the constant interaction that happens between the government in the form of national and state documents, the judiciary with reference to its verdicts and civil society in the form of social mobilisation. In India, these streams together have understood and ascertained

74  Indian understanding on Right to Water water as a right to all. However, the scope of another major aspect of Right to Water has not been sufficiently focused upon. It is important to remember that the power of the judiciary and civil society in water planning mainly with reference to right to water is limited, as their influence in water planning is not equivalent to that of the Union government and state governments. Their role in planning is secondary in the sense that in the process of realisation of right to water, they act as responders; they react/ respond when a case or issue comes up. Further, the views and response of the judiciary and the civil society need not be the same. Often, one witnesses a completely different response from the judiciary and the civil society in similar situations that further lends different meanings to the idea.68 In the view of such limitation, to ensure right to water with a definite and constant meaning, the government needs to consolidate the initiative either in the form of a law or as a policy.

3.3 Significance and need of national water policy for fulfilment of Right to Water In water discourses, relevance of national water policy is realised in the reference of many uses of water and also as “uses as a whole”. In the systems of water governance, it is recognised as a flexible document that is drafted after a systematic analysis of water availability and requirements for water use. Since the use in different sectors has increased, supplying water to one sector affects the availability, accessibility and affordability of water supply in the other sectors. Hence, a water policy as a government’s document while dealing with the requirement of one sector considers the needs of other sectors. Absence of an effective policy document invites problems like mismanagement and injustice in the water supply. In the situation of unpredictable rainfall, a national water policy is advocated, as usually provisions of it bring states in common agreement and make it obligatory for each state to support other states. Since water availability in India varies from region to region, mutual state obligations would entitle a state which is facing problems of water stress or scarcity to claim the right to have water for its region. In India, national water policy is drafted as per the directions of the Indian Constitution. In the process of water governance, the Preamble of the Indian Constitution has clarified the status of the union government by insisting on the development of the Union of states and not merely of a state. The Union government of India, in the context of such a declaration, has to make policies not for one or two states; it has to offer a national perspective for all states. Further, the federal setup in India has insisted upon ensuring equality not only among individuals; rather, equality is expected to be introduced, preserved and sustained among the states as well. Accordingly, the obligation on the union government in regard to right to water is larger, as it has to focus on the major problems of water availability and has to offer suggestions to ensure accessibility of same, based on

Indian understanding on Right to Water  75 values of non-discrimination and affordability. The Union government is thus required to prepare a workable national plan. Here, the prerequisite is to formulate a national water policy that can offer solutions to fundamental problems that are linked and concerned with all states. The problems concerning availability, accessibility and affordability usually ask: (1) How to calculate the present water requirements and how to predict future possibilities? (2) How to ensure water availability and accessibility to all, including individuals and states? (3) How to distribute water among different users and ensure benefit of equity? And (4) how to ensure national growth without disturbing individual’s rights over water resources? A policy is a document which address what, when, how and to whom, and therefore the possibility to address these questions through a national water policy is relatively high. Since water is a rare resource, and as there is no alternative to it, a national perspective on its use and usability can send an important message to state governments. Having a national water policy in this respect is essential, because in its most ideal form it: (1) provides direction to the Indian states as to what is to be done in a given situation; (2) helps state governments to identify the actual reasons for the problem of water distribution and management, and offer democratic solutions for the same; (3) creates moral obligation on states and inspires them equally, to persuade under the principle of “union of states”; (4) directs states to make water plans with broad parameters. Undoubtedly, the significance of national water policies is beyond political, social or economic objectives. It is a tool to solve complexities of water distribution and management and has the potential to enable water entitlements in favour of both citizens of the Indian nation and the states as an inseparable part of the nation.

3.4 India's national water policies In India, the idea to have a national water policy is evolved with the process of institutionalisation and departmentalisation of organisations, initiated by the colonial administration. The initiative was started as a responsibility towards the irrigation sector, which was initially given to the Department of Public Works and later shifted to irrigation experts. With the inaction of the Government Act of 1919, irrigation became the subject of Provinces, the responsibility of which was transferred to the Department of Industries and Labour in 192369 that was reconstituted in 1927 as the Central Board of Irrigation. In the subsequent year, in 1937, the Department of Industry and Labour was bifurcated into the Department of Communication and Department of Labour. With this, irrigation became a responsibility of the Department of Labour that was further shifted to the Department of Works, Mines and Power in 1937. After independence, water as a subject of irrigation and management was combined with power (energy) management and supplemented with development planning. The meaning and purpose of water management thus got

76  Indian understanding on Right to Water redefined under different setups that have witnessed multiple institutional and departmental shifts. These include: (1) in 1951, water management was linked with the new Ministry of National Resources and Scientific Research; (2) in 1952, a separate Ministry of Irrigation and Power was introduced to look into the matter of water management; (3) in 1969, the question of water management was attached with the Irrigation Commission to look into the matter of a future irrigation development programme; (4) in 1974, a separate department called Department of Irrigation came up to manage water resources; (5) in 1980 the Department of Irrigation was brought under the new Ministry of Energy and Irrigation. In the same year, on 9 June 1980, the Ministry of Energy and Irrigation was bifurcated and the erstwhile Department of Irrigation was raised to the level of Ministry. The practice of departmental shifts stopped in 1985 when the Ministry of Irrigation was combined with the Ministry of Irrigation and Power and the Department of Irrigation was reconstituted as the Ministry of Water Resources. In water planning, the constituting of the Ministry of Water Resources brought key changes in water management. This has called for nationwide planning for water resources. With its establishment, India for the first time felt a need to formulate a national water policy, and chose to decide on the priorities for water uses. To look into the matter, the National Water Resources Council, under the leadership of Prime Minister Rajiv Gandhi, was constituted that adopted the first national water policy in 1987. It is important to note that the first national water policy (hereafter NWP), does not hold a claim of change, as before 1987 there was no “independent document” on water governance or water management, that can be termed as “Policy” (Mohile, 2007). Here, the claim of first document does not mean making a document without a background,70 but the meaning here is that there was absence of a written document that can be called and placed as a policy. Before the first draft of the national water policy was prepared, ideas that could be defined as policy were available in the form of guidelines that were offered and suggested in different reports. In this context, the Report of the Second Irrigation Commission, 1972, is the finest example. The report is known to be a statement made in the Parliament regarding policies about flood control and various other official documents related to water management. The statements that were being used as policy documents had diversified the idea of water management. There was no common understanding to tackle problems such as water stress, drought and floods. In this sense the first NWP is an outcome of the incompleteness and inefficient measuring of previous documents. While analysing the NWP of 1987, water scholars argue that though the document is thin, it took note of the emerging environmental and equity concerns and has covered major aspects of water management including drought, food and irrigation management and development of groundwater (Iyer, 2002). Importantly, the NWP of 1987 has highlighted the need of farmers’ participation in irrigation development. However, while covering all mentioned areas, the policy has not suggested specific details that are actually required for policy

Indian understanding on Right to Water  77 implementation. In view of this limitation, the need for a “new” national water policy was soon realized.71 By the late 1990s it was generally recognized as necessary to review the NWP of 1987 and make essential changes.72 The required changes were referred by the National Commission for Integrated Water Resource Development Plan in September 1999. In the light of the Commission’s suggestions, a meeting of the National Water Resources Council was held on 1 April and the amendments proposed to the NWP of 1987 were approved. Consequently, a New NWP 2002 came into being under the leadership of Prime Minister Atal Bihari Vajpayee.73 Like the first NWP, the second NWP too has covered almost all areas concerning water management and focuses on developing groundwater, irrigation, food control and management system, and use of science and technology. The policy emphasises the promotion of conservation consciousness and people’s participation. Significantly, it has extended the participation of beneficiaries and other stakeholders in water management and insisted that all stakeholders should be made part of water planning. However, this policy is not very popular with water scholars, because its provisions have created confusion on the issue of water entitlement and have led to water privatisation and environmental damages. Just as the second NWP was drafted to overcome the limitations of the first NWP, the third NWP was drafted to overcome the limitation of the second one. The third NWP was planned under the leadership of Prime Minister Manmohan Singh in 2010. It was realised that the NWP of 2002 which called for involvement and participation of beneficiaries and other stakeholders was not very clear on the aspect of planning. There was no clarity on the precise nature of entitlements, participation and obligation of the government on water management. Significantly, the NWP of 2012 was prepared to address this gap that has initiated towards participatory planning and management. In comparison to the first two policies, the third NWP was a participatory initiative and included discussions with academia, experts and professionals.74 Importantly, the government placed the draft version of the policy in the public domain to seek suggestions from citizens that were later incorporated in the document. The final revisions in the policy were made by the National Water Board, and the same was circulated among all the states and central ministries/departments for their comments.75 Finally, the Council adopted the NWP of 2012 as per the deliberation of its sixth Meeting held on 28 December 2012 and released the third national water policy (2012) on 8 April 2013 during India Water Week 2013.76 The policy has comprehensively focused on the different areas of water management and has addressed the problems of participation and environment damages. However, the idea of public private partnership proposed by the policy is a subject of criticism. Recently, to revise the 2012 national water policy in the reference of the implementing processes, the Department of Water Resources, River Development and Ganga Rejuvenation, Ministry of Jal Shakti constituted a drafting

78  Indian understanding on Right to Water committee on 5 November 2019. The process of drafting the NWP 2020 was underway as of this writing, and it is expected that this policy will be inclusive and would give clear pathways for implementation and accountability, and thereby enable water mechanisms to embrace values of Right to Water.

Notes 1 For details, see Kosambi (1965); Thapar (1966); Basham (1967); Chakravarty (1998); Jha (1999); Shiva (2002); Ratnagar (2015). 2 Available at http://www.ielrc.org/content/w0701.pdf. 3 Kudimaramath was a system of water management that empowered village communities to preserve, repair and maintain water resources. 4 Northern India Canal and Drainage Act, 1873. Section 5 of the Act provided that whenever it appeared expedient to the Provincial Government that the water of any river or natural stream should be applied or used for the purpose of any existing or projected canal (which term included a reservoir) the government may, by notification in the Gazette, declare that the water will be so applied or used after a specified date not being earlier than three months from the date of the notification. Under Section 7, the Collector had to give public notice of the intended application or use of the water, inviting claims for compensation. Section 8 laid down that compensation may be awarded only in respect of certain specified matters. For example, under clauses (a) to (d), no compensation was to be awarded for damage caused by stoppage or diminution of percolation, or floods, or by deterioration of soil, or by stoppage of navigation, or by displacement of labour. But under clause (e), compensation may be awarded for stoppage or diminution of supply of water through any natural channel to any defined artificial channel in use at the date of the notification. For details, see Cullet (2007b). 5 Taken from Upadhaya (2010). 6 It is important to note that in all these Acts, the meaning of government’s control over water resources is not negative. For instance, in the Jharia Water Supply Act 1914, the government was obligated to pay attention to the drinking water supply. 7 See Narayanamoorthy and Deshpande (2005: 201). 8 It is important to note that Kosambi (1965), Thapar (1966), Chakravarty (1998) and Jha (1999), while exploring history of water management in colonial India, have not studied water in reference to rights but have discussed the process of water management in the context of ownership. For details, see these sources as well as Basham (1967), Ratnagar (2015) and Shiva (2002). 9 Mentioned in Tripathy and Mohapatra (2009). 10 Ins. by the Constitution (Forty-Second Amendment) Act 1976s.10 (w.w.f.3-1-1977). 11 Responsibility of rights is also arranged into two, i.e. centre and state, divided into Union list (ListI), State list (List II) and Concurrent list (list III). For detail see: Lyla Mehta with Oriol Mirosa (2004), Financing Water for All: Behind the Border Policy Convergence in Water Management, published by Canal Institute of Development Studies Brighton, Sussex BN1 9RE England September. 12 According to Kamala Shankar (2009), Entry 14 List II, among other things, relates to agriculture and so to water, similarly Entry 18 of List II, speaks about land improvement which also includes water and so required to be read with reference to List 17, which specifically deals with water. However, since this inclusion is too indirect, the author has not taken them into consideration. For details, see Shankar (2010). 13 See, for details, Muralidhar (2006: 65–81).

Indian understanding on Right to Water  79 14 While pointing to the status of water laws in India, Narasimhan (2010: 535) emphasises that there are many different laws relating to or having a bearing on water at the level of central government. 15 Here, instead of using the term “water laws” in India, the author has used the term “Indian laws on water management” because the discussion mentioned in the following paragraphs will not only discuss water laws but will provide a brief on all those laws that implicitly expressed the need to establish water as a right. 16 Deals with the subject matter of laws to be made by Parliament and by the Legislatures of the States. 17 The Parliament may, by law, provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley. 18 Parliament may, by law, provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1). 19 The River Boards Act, Act No. 49, Sep 1956, http://www.indiankanoon.org/ doc/1608688. 20 The Inter-State River Water Disputes Act, Act No. 33, 28 August 1956, http:// theindianlawyer.in/ statutesnbareacts/acts/i90.html, amended by Act No. 14, 28 March 2002, http://www.indiankanoon. org/doc/1048477. 21 Available at https://indiankanoon.org/doc/1663327. 22 The Water (Prevention and Control of Pollution) Act, 1974 was amended in 1978 and revised in 1988. 23 For the implementation of the functions, the Board is linked with Ministry of Environment and Forest Affairs. 24 To attain national consensus on right to water, on 3 June 2016, a new draft of water bill i.e. “water for life” for all was proposed by the Water Ministry. When this chapter was written, the draft was put on public domain for comment and suggestions. With the draft of the National Water Framework Bill, every person would be entitled to water for life as a basic requirement that is necessary for the fundamental right to life of all human beings including drinking, cooking, bathing, sanitation, personal hygiene and related personal and domestic uses. This includes additional requirements for “women” for their special needs. It proposes that the minimum water requirement would be determined by the appropriate government from time to time that has an obligation of the state. To build a comprehensive governance structure on water, the draft deals with water conservation, preservation, and abatement, pricing, administration and river and aquifer management. Binding national water quality standards for every activity or product the draft draws that it is a duty of everybody to reduce water pollution and wastage footprints. With prohibitive penalties, it indicates that industries in particular will be asked to state their footprints in their annual report along with an action plan to progressively reduce its overtime. To constitute a hydrological unity, the draft law asks governments to strive for rejuvenation of the river system by assuring Aviral Dhara (continuous flow), Nirmal Dhara (unpolluted flow) and Swachh Kinara (clean and aesthetic banks). An integrated river basin is supposed to be drawn up and all water resource projects in that basin or its sub-basins need to confirm to that plan.   A separate draft bill for conservation, protection, regulation and management of groundwater has also been placed. At the same time, to deal with interstate water disputes, the draft proposes the establishment of appropriate institutional arrangements.

80  Indian understanding on Right to Water 25 Mangala Subramaniam (2014) emphasises that in India, Five Year Plans reflects India’s policies for allocation of resources for water needs such as in health, agriculture and water. 26 For certain years the Five Year Plans are not mentioned, as Annual Plans were in place then and water was placed in their schemes. 27 Forty litres per capita per day (lpcd) for humans to meet the following requirements: Quantity (LPCD) Drinking 3, Cooking 5, Bathing 15, Washing utensils and house 7 and Ablution 10. 28 Here, the decision-making process includes participation in the drinking water scheme, planning, design, implementation, control of finances and management arrangements. 29 National Rural Drinking Water Programme Guidelines 2013, http://www.ielrc. org/content/e1308.pdf. 30 In water management, India has adopted the Integrated Water Resource Management approaches. It has recognized that management of water resource needs to be done in an integrated and holistic manner rather than being managed in a compartmentalized approach as it aids suitable water management. 31 At the national level there are several institutions that are working to protect, preserve and maintain water resources. For example, the Central Water Commission (CWC) controls water resources for which it offers policy/planning of water resources/design consultancy/surface-water data. It is linked with Ministry of Water Resources (MoWR). The Central Water and Power Research Station works to bring research/solutions to complex WR problems. The Water Quality Assessment Authority monitors water quality throughout India and is attached with MoEF/MoWR/CPCB/CWC/CGWB/state governments/local bodies. Ministry of Drinking Water/Sanitation initiates for rural water supply/ sanitation associated with Ministry of Drinking Water. The Sanitation Ministry of Urban Development focuses on urban water supply/sanitation/industrial water/desalination plants and is associated with the Ministry of Urban Development, Water Resources Division, Planning Commission that works for Planning of Water Resources linked with the Planning Commission. 32 http://www.maharashtra.gov.in/english/gazetteer/WARDHA/local_municipalties.html. 33 The Act states that sinking a well for the purpose of extracting or drawing water within a distance of 500 metres from a public drinking water source without obtaining permission of the Appropriate Authority is prohibited. 34 The Act has more importantly defined the meaning of drinking water purposes. Definition 2 (2) provides that drinking water purposes means consumption or use of water by human population for drinking and for other domestic purposes and includes consumption of water for similar such relevant purposes. The Act emphasises that while using groundwater, it is essential to preserve and respect the meaning of drinking water purposes. 35 The Acts have made special provisions to protect water from extra extraction. While providing regulation of extraction of water from wells in water scarcity areas, section 5(1), of the Act states that “Upon declaration of any area as water scarcity area under section 4, the Appropriate Authority may, for the duration of the water scarcity period, by order, regulate the extraction of water from any well in such area by restricting or prohibiting such extraction for any purpose other than for drinking water purpose where such well is within a distance of one kilometer of the public drinking water source”. 36 The author believes that the attempts made by the governments of Himachal Pradesh are important to be noticed, as in this region of India, geographical difficulties are exceptional. 37 This document is available at ielrc.org/content/e9903.pdf.

Indian understanding on Right to Water  81 38 This is to substitute the Swajaldhara policy that entitled people to have drinking water in deserts but with a condition to pay. 39 The discussion is based on an argument that as in the list of fundamental rights, when all major rights are directly enshrined in the Constitution, why water was not considered as a subject of direct and independent right. It is strange that a state that has experienced many droughts during colonial rule has neglected to place water as an independent right. 40 For detailed study, see Winkler (2008). 41 For the details of the cases, see: https://indiankanoon.org/. 42 F.K. Hussain vs. Union of India, A.I.R. 1990 Ker. 321 (India), available at http://www.elaw.org/node/2497. The judgment by J. Sankaran Nair is identical to his judgement in the related case, Attakoya Thangal vs. Union of India W.P. in the same Court just one month back. Both are cited interchangeably, though the Hussain decision is included by COHRE in their litigation guide. See COHRE(b), supra note 212, page no 116. 43 Subhash Kumar vs. State of Bihar, A.I.R. 1991 S.C. 420 (India), available at http://www.ielrc.org/content/e9108.pdf. 44 M.C. Mehta vs. Kamal Nath (1997), 1 SCC 388 (Supreme Court) (13 December 1996), available at http://www.ielrc.org/content/e9615.pdf. 45 A.P. Pollution Control Board-II v. M.V. Nayudu, 2001 I.L.R. 4 S.C. 657 (India), available at http://www.ielrc.org/content/e0010.pdf 46 “Exercise of such a power in favour of a particular industry must be treated as arbitrary and contrary to public interest and in violation of the right to clean water under Article 21 of the Constitution of India”. 47 The Court referenced Principle 2 of the Stockholm Declaration, noting that the natural resources of the earth must be safeguarded for the benefit of present and future generations. See Perumatty Grama Panchayat v. Kerala, 2004 K.L.T. 1 (Ker.) 731, page 13 (India), available at http://www.elaw.org/node/1410. 48 A.P. Pollution Control Board-II, 2001 I.L.R. 4 (S.C.) 657 page 9 (citing the European Court of Human Rights, Inter-American Commission, Constitutional Court of Colombia, and the Constitutional Court of South Africa). 49 This argument is found in a case called Venkatagiriyappa vs. Karnataka Electricity Board, Bangalore, 1999 (4) KarLJ 482 (High Court of Karnataka) (15 July 1998), available at http://www.ielrc.org/content/e9813.pdf. 50 For details, see Cullet (2009b). 51 AWC 2139 High Court of Allahabad (Lucknow Bench)) (20 April 2000), para. 4, available at http://www.ielrc.org/content/e0013.pdf. 52 See: Vishala Kochi Kudivella Samarkshana Samithi vs. State of Kerala, 2006 (1) KLT 919 (High Court of Kerala) (20 February 2006), para. 3, available at http://www.ielrc.org/content/e0642.pdf. 53 See: Hamid Khan vs. State of Madhya Pradesh, AIR 1997 MP 191 (Madhya Pradesh High Court) (30 October 1996), available at http://www.ielrc.org/content/e9613.pdf. A similar judgement was given in the case of Dr K.C. Malhotra v. State of Madhya Pradesh, AIR 1994 MP 48 (Madhya Pradesh High Court) (7 May 1993), available at http://www.ielrc.org/content/e9310.pdf. 54 Case of Karnataka High Court, 15 July 1998, available at https://indiankanoon.org. 55 Para 244; AIR 2000 SC 3715; available at www.ielrc.org/content/e0008.pdf. 56 Pani Haq Samiti vs. Brihan Mumbai Corporation, Bombay high court, 2014. Available at www.indiakhanoon.com. 57 Citied in Cullet (2010: 332). 58 D.M. Singhvi vs. Union of India, AIR 2005 Raj 280 (High Court of Rajasthan (Jaipur Bench)) (2 May 2005), para. 15, available at http://www.ielrc.org/content/e0513.pdf. 59 While studying the Indian position on right to water, Phillip Cullet commented

82  Indian understanding on Right to Water













that in recent times, the legal framework, generally and especially around water, is changing under increasing pressure from two directions: one from the rights perspective, and the people’s movements from below. He took the Pani Panchayat movement of Maharashtra as pioneering in the development of right to water that was attached with the demand of livelihood, For details see: Cullet et al. (2012). 60 For instance, a New Delhi based non-governmental organisation called Centre for Science and Environment working in the area of the environment is providing publications which argue for making water everybody's right as a practice and policy of water harvesting with traditional knowledge systems and to encourage community management of water resources. 61 The water justice movement strives to offer an alternative source of knowledge and policy prescriptions to those provided by the World Bank and other powerful actors on the global water stage. Legally, it does not have the power to directly influence governments on water policy. Their approach is to support local initiatives, insisting on constitutional amendments and banning privatisation. This movement expresses support for policies that increase people’s participation and community oversight. At the same time, they advocate for providing funding for public companies to improve service and support publicprivate partnerships. 62 To ensure right to water to all contribution of Indian NGOs are highlighted by various scholars. To find the literature in this regard, besides the works of Shiva Vandana (2002) and Bakker (2010), one should see works like Agarwal (1992); Mohan (2003); Lawrence and Maria (2011); Nair and Vohra (2011); Shrivastava and Kothari (2012); Brysk and Stohl (2017). 63 The Water Liberation Campaign consisted of other non-governmental organizations like Paani Morcha, headed by Commander Sureshwar Sinha; Tarun Bharat Sangh, led by the “Water Man”, Rajendra Singh; and Dehat Morcha led by Satpal Choudhury. There are some other NGOs that have worked for decades to assure water as a right. These include Jayanti Pathagar, Jeevan Jyoti Club for Social Welfare and Rural Development, Pallisri Mahila Samiti, Rural Development Action Cell and Universal Service Organization, etc. A list is available at https://wcd.nic.in/sites/default/files/List%20of%20 Performing%20%26amp%3B%20Nonf-performing%20NGOs-compressed. pdf. 64 The Citizens for Water Democracy consists of all these organisations as well as Resident Welfare People's Associations, Water Workers Alliance and National Federation for Women that were opposing privatization of water projects in Delhi. Citizens for Water Democracy Activists in India are Sundar Lai Baghuna Gandhian, Activist; Medha Patkar Gandhian, Activist; Vandana Shiva, NGORFSTE, Shrikunj–Bhartita Jagriti Mission; Arvind Kejeriwal – Parivartan; Sudhirendar Sharma – Ecological Foundation; Mantram Nagar – Kisan Morcha; Rajender Singh – Tarun Bharat Sangh, Rakesh Jaiswal – Eco Friends, Capt. Sureshwar Sinha – Paani Morcha, Vimal Bhai – Matu Peoples Organization; Rakesh Tikait, Bharitya Kisan Union. 65 The author found that in India NGOs, are working regionally. Not all are discussed here, as the focus here is not regional but national. 66 For instance, in Bangalore, the NGO called The Public Affairs Centre, has pioneered a new approach to the regulatory oversight of public service provision. It has conducted a social audit about the public services provided by the municipal authorities. The objective of the “citizens’ report card” is to highlight deficiencies in the provision of water and sanitation, and this in turn has led to a process of structured consultations between the state government, the municipal authorities, local citizens’ groups and residents’ associations. It should be noted that the social audit begun to register real improvements, with

Indian understanding on Right to Water  83











poor households reporting a sharp reduction in bribes for connections and improvements in efficiency. Source: www.pacindia.org. 67 The interpretations offered in the table are based on the details elaborated in Table 3.4 of Chapter 3. 68 Cullet (2010) has presented this argument and endorsed it multiple times. 69 This was on the recommendation of the Inchcape Committee, wherein the Public Works Department was merged with the Department of Industry in 1923 and a combined department known as “Department of Industries and Labour” was established. 70 Here, policy does not mean policy document, but it means policy as an idea. 71 A need of change is realised under the international influences. During the 1990s, principles of liberalisation were adopted in water management that led to consideration of changes in policy frameworks. 72 Details regarding this development is available on the water ministry’s website, see document called “Background Note for CONSULTATION MEETING WITH POLICY MAKERS ON REVIEW OF NATIONAL WATER POLICY” published by Ministry of Water Resources. 73 Prime Minister Atal B. Vajpayee’s speech at the Fifth Meeting of the National Water Resources Council in 2002, in which he promoted the revised National Water Policy in these words: “The policy should … recognize that the community is the rightful custodian of water. Exclusive control by the government machinery, and the resultant mindset among the people that water management is the exclusive responsibility of the government, cannot help us to make the paradigm shift to that participative, essentially local management of water resources. … Wherever feasible, public-private partnerships should be encouraged in such a manner that we can attract private investment in the development and management of water resources”. 74 To take inputs from water scholars, activities, farmers, water associations, and industries, meetings were held periodically. For instance, a meeting was held on 26 October 2010 at the India Habital Centre and again has held on 21 March 2011 at Vigyan Bhavan, New Delhi, both under the Chairmanship of the Honourable Union Minister of Water Resources. To receive further comments from the people, the first draft of NWP 2012 was made available on the website of MoWR on 31 January 2012. Significantly, more than 600 comments were received from the general public. Taking these into consideration, the drafting committee revised the draft as claimed by the government agencies. 75 The National Water Board’s revision was recommended by the Drafting Committee at its 14th Meeting held on 7 June 2012. 76 Taken as it is from the Ministry of Water Resources website: wrmin.nic.in.

4 Right to Water in India’s national water policies

Introduction A national water policy is a legitimate document which, while addressing questions like who gets water, when and how, elaborates on the authoritative allocation of water resources and describes distribution patterns and proposes management strategies for the same.1 Accordingly, the strategies of distribution and management are the decisive aspects of the water policy document and respond to multiple queries such as: What is the purpose(s) of the water policy? Who is/are the beneficiary(ies) of the water policy, who is/are accountable to fulfil the objectives of the water policy and how the same will be managed? Since one of the aims of this book is to understand India’s national water policies in regard to Right to Water, to measure the degree of (non) realisation and compliance with right to water in the water policies, this chapter uses distributive and management strategies as the units of analysis. To present the arguments, the chapter, while focusing on the key distributive and management strategies, explains them in tabulation pattern.2 The tabulation, drawn for this purpose, does not represent the entire content of the three policies. However, it presents those sections of the policies that implicitly or explicitly focus on distribution and management of water resources.3

4.1 Water policy analysis guiding framework To understand the status of Right to Water in a water policy document, the Water Policy Analysis Guiding Framework (hereafter the Framework), is required to be used as a tool. Here, the use of the Framework is remarkably important because the directives offered by international and regional organisations are argued in the context of Human Right to Water (not in the reference of Right to Water, as discussed in Chapter 2 of this book), and are not offered in a single manual. This Framework fills the identified gap and offers a set of principles and benchmarks, on which the idea of Right to Water is based.4 DOI: 10.4324/9781003211730-4

Right to Water in India’s national water policies  85 Realism (Reality check)

Idea: A Water Policy should ensure Water Freedom with Water Equality The core Principles

Water is for all: the idea of special beneficiary Clarity of Priorities Amalgamation of Right and duties

Proper institutions and mechanisms

Right to Water Aspects of Water Policy Distribution

Management

The Indicators/Benchmarks to analyze Water Policies based on Right based Approach 



 



Adequate Institutional mechanisms should be ensured to maintain Water resources Introduce and establish mechanism to uphold national requirements and give preference to the regional needs Adequate measures should be introduced to facilitate, protect and promote right to water to all Adequate measures should be introduced to ensure efficiency with absence of monopoly, exploitation and discrimination Adequate Infrastructure should be built to ensure transparency, accountably and people’s participation  Adequate measures should be introduced and established to maintain sustainability of water resources.  Adequate monitoring systems should be introduced and established in context of Right to Water.

 Pattern of water allocation should identify the real right holders and beneficiaries and while so doing should  ensure that water is Available, Accessible, Acceptable and Affordable to all  Process of Water allocation should treat children, women and disadvantaged as the special beneficiaries  Allocation should ensure priority of different water uses Interdependence Responsibility of allocation of both should be properly defined, i.e. public  and private sectors Duty of stakeholders like citizens, civil society and researchers should be defined in the context of Right to Water

An ideal Water Policy in Reference to Right to Water

Figure 4.1  Water policy analysis guiding framework in context of the idea of Right to Water

86  Right to Water in India’s national water policies The best part of this Framework is that it focuses on the realism and emphasis on reality checks. To ensure Water Freedom with Equality, within the available resources, the Framework mainly emphasises four principles. The first principle states that water is for all and must be available, accessible, acceptable and affordable to all, and preferably to children, women and subalterns. The second principle endorses that the entitlement of right to water specifies the scope of water uses, which offers a list of priorities for water uses. The third principle argues that the idea of Right to Water is a result of an ideal combination of rights and duties and the fourth principle stresses that the fulfilment of the right to water requires proper institutions and mechanisms. The Framework, while presenting the ideal standards of Water policies in context of Right to Water, insists that to attain an ideal water policy with reference to Right to Water, the first three principles are required to be indoctrinated in distributive strategies and the fourth should be indoctrinated in management strategies. To make these principles effectively functional, the Framework further classifies them in 12 sub-values and proposes that from these 12, five values should focus on distributive strategy and management strategies should emphasise on seven indicators/ benchmarks, as Figure 4.1 explains. Figure 4.1 presents the correlation between the distribution and management strategies. The figure insists that in the policy-making processes, these two sets of principles are required to be used, as in the implementing processes they are interdependent, and harmonisation of them can assure water freedoms with water equalities. Clearly, absence of these principles in a policy documents indicates to the absence of Right to Water, which further means that in future purpose of Right to Water shall not be fulfilled.5 In the view of the significance of the Framework, to explore and explain the status of Right to Water in India’s national water policies, the following sections uses principles and sub-principles of the Framework as the major benchmarks. In so doing, the sections draw on whether India’s national water policies moves towards the Right to Water.

4.2 Who gets water, for what purpose and by whom: an analysis of distributive strategies Distributive strategies, as the first aspect of water policies, focus on three questions: to whom water is going to be given, for what purpose and by whom it is going to be supplied. The benchmarks of the Framework, from this viewpoint, emphasise that the distribution strategies of ideal water policies, while proposing the strategies to distribute water resources, should embrace the key values of Right to Water. In this stance, expectations from India’s national water policies are multiple, as the Framework underlines. According to the Framework, to ensure water as a freedom with equality, a policy should: (1) distribute water to all, and while so doing should ensure children, women, disadvantaged and disabled are special beneficiaries; (2) adopt and follow the principle of priority of water uses and propose plans

Right to Water in India’s national water policies  87 to maintain the order of priorities of the same; (3) suggest a comprehensive detail on duty bearers and clarify the duties of the water users and water suppliers. Evidently, the Framework, while arguing for ideal distributive patterns, focuses on three core issues concerning to right holders, duty bearers and priority orders, as Figure 4.1 presents. 4.2.1 The principle of right holders and real beneficiaries: Water to all (available, accessibly, affordable and acceptable) The question about whom water should be given concerns identifying the right holders and the real beneficiaries of water allocation. The core principle of the idea of Right to Water, which insists on ensuring water for/to all, mainly upholds three values: availability, accessibility and acceptability of water resources.6 The first value focuses on availability of water resources and argues that water allocation should ensure sufficient and continuous availability of water to all, in all situations and, importantly, within a manageable distance.7 The accessibility, as a second value of Right to Water holds wider interpretations and points to the physical, financial (affordability) and cultural accessibility of water resources, without discrimination. Acceptability as the third value of right to water insists for safe water and emphasises that the quality of water should be such that it can be easily accepted by the people. Clearly, the three values are at the centre of the concept of Right to Water, and realisation of the three principles decide if a policy aims to entitle right to water to all. 4.2.1.1 Offerings of the three Policies: Analysis of the table Table 4.1 reveals that the sections (or parts of the sections) of the policies call to ensure water to all and address the question of availability, accessibility and affordability. While referring to the issue of water allocation, the policies commonly emphasise adopting the principle of social equity and justice (NWP 1987; 7.2: NWP 2002; 1.6 and 9.3; NWP 2012; 1.3 (ii)). The national water policy of 1987, while staking for water allocation, points to the quality (section 1.7), availability (sections 7.2 and 10.3) and water pricing (section 11). The policy to ensure water availability emphasises making water resources utilisable and, towards this, calls for improving water quality by encouraging innovations and using new technology (1.7). The policy considers drinking water as an important component of the policy and insists upon ensuring equal allocation of drinking water to the urban and rural populations (7.2). To make this possible, the policy suggests integrating drinking water as an important ingredient of irrigation and projects that have multiple purposes and to develop groundwater recharge projects. The policy points to inequalities in water allocation and highlights them in the context of the availability of water between the head and tail end farms and between large and small farms (10.3). To address the prevailing inequalities, the policy suggests adopting a rotational water distribution

Component of Distribution

NWP 1987

NWP 2002

NWP 2012

Water for All: Available, accessible, and acceptable

3.1 The water resources available to the country should be brought within the category of utilizable resources to the maximum possible extent. … 1.7 Another important aspect is water quality. Improvements in existing strategies and the innovation of new techniques resting on a strong science and technology base will be needed to eliminate the pollution of surface and ground water resources, to improve water quality and to step up the recycling and re-use of water. Science and technology and training have also important roles to play in water resources development in general. 7.2 Exploitation of ground water resources should be so regulated as not to exceed the recharging possibilities, as also to ensure social equity. Ground water recharge projects should be developed and implemented for augmenting the available supplies. Adequate drinking water facilities should be provided to the entire population both in urban and in rural areas by 1991. Irrigation and multipurpose projects should invariably include a drinking water component, wherever there is no

1.6 … Complex issues of equity and social justice in regard to water distribution are required to be addressed. 3.1 Water resources available to the country should be brought within the category of utilizable resources to the maximum possible extent. 8. Adequate safe drinking water facilities should be provided to the entire population both in urban and in rural areas. Irrigation and multipurpose projects should invariably include a drinking water component, wherever there is no alternative source of drinking water. Drinking water needs of human beings and animals should be the first charge on any available water. 9.3 Water allocation in an irrigation system should be done with due regard to equity and social justice. Disparities in the availability of water between head-reach and tail-end farms and between large and small farms should be obviated by adoption of a rotational water distribution system and supply of water on a volumetric basis subject to certain ceilings and rational pricing.

1.3 (ii) Principle of equity and social justice must inform use and allocation of water. 1.3 (viii) Given the limits on enhancing the availability of utilizable water resources and increased variability in supplies due to climate change, meeting the future needs will depend more on demand management, and hence, this needs to be given priority, especially through (a) evolving an agricultural system which economizes on water use and maximizes value from water, and (b) bringing in maximum efficiency in use of water and avoiding wastages. 3.2 The Centre, the States and the local bodies (governance institutions) must ensure access to a minimum quantity of potable water for essential health and hygiene to all its citizens, available within easy reach of the household. 4.5 … The acceptability criteria in regard to new water resources projects need to be reworked in view of the likely climate changes. 5.5 Inter-basin transfers are not merely for increasing production but also for meeting basic human need and achieving equity and social justice.…

88  Right to Water in India’s national water policies

Table 4.1  Water for/to All: Available, Accessible and Acceptable

Component of Distribution

NWP 2002

NWP 2012

alternative source of drinking water. Drinking water needs of human beings and animals should be the first charge on any available water. 10.3 Water allocation in an irrigation system should be done with due regard to equity and social justice. Disparities in the availability of water between head-reach and tail-end farms and between large and small farms should be obviated by adoption of a rotational water distribution system and supply of water on a volumetric basis subject to certain ceilings. 11. Water rates should be such as to convey the scarcity value of the resource to the users and to foster the motivation for economy in water use. They should be adequate to cover the annual maintenance and operation charges and a part of the fixed costs. Efforts should be made to reach this ideal over a period, while ensuring the assured and timely supplies of irrigation water. The water rates for surface water and ground water should be rationalized with due regard to the interests of small and marginal farmers.

11. Besides creating additional water resources facilities for various uses, adequate emphasis needs to be given to the physical and financial sustainability of existing facilities. There is, therefore, a need to ensure that the water charges for various uses should be fixed in such a way that they cover at least the operation and maintenance charges of providing the service initially and a part of the capital costs subsequently. These rates should be linked directly to the quality of service provided. The subsidy on water rates to the disadvantaged and poorer sections of the society should be well targeted and transparent. 14.2 Effluents should be treated to acceptable levels and standards before discharging them into natural streams.

7.1 Pricing of water should ensure its efficient use and reward conservation. Equitable access to water for all and its fair pricing, for drinking and other uses such as sanitation, agricultural and industrial. … 7.2 In order to meet equity, efficiency and economic principles, the water charges should preferably/as a rule be determined on volumetric basis. Such charges should be reviewed periodically. 7.4 The principle of differential pricing may be retained for the preemptive uses of water for drinking and sanitation; and high priority allocation for ensuring food security and supporting livelihood for the poor. Available water, after meeting the above needs, should increasingly be subjected to allocation and pricing on economic principles so that water is not wasted in unnecessary uses and could be utilized more gainfully. 11.1 There is a need to remove the large disparity between stipulations for water supply in urban areas and in rural areas. Efforts should be made to provide improved water supply in rural areas.

Right to Water in India’s national water policies  89

NWP 1987

90  Right to Water in India’s national water policies system and insists on volumetric based water supply (10.3). The policy gives special focus to the water needs of small and marginal farmers and advocates ensuring timely supplies to irrigation. Also, to ensure financial accessibility for them, the policy proposes rationalising water rates for surface and groundwater and insists upon fixing water rates in context of scarcity. The national water policy of 2002 has major sections which repeat the NWP of 1987. For instance, like the NWP of 1987, the policy advocates for ensuring drinking water to the entire population, infers to consider drinking water as an important component of all the major projects (8) and also stresses to remove disparities in the availability of water between tail end and small farms (9.3). To meet the water-related requirements, the policy emphasises on utilising all the available resources (3.1). While referring to the financial sustainability of water resources, the policy insists upon price fixation for each water use and advocates that the purpose of water charges should be to cover operational and maintenance charges (11). The policy instructs that the rates should be linked directly to the quality of services and there should be subsidy on water rates for the poorer and disadvantaged sections of the society (11). To control water pollution, the policy proposes to bring effluents to acceptable levels (14.2). It appears that in comparison to the NWPs of 1987 and 2002, the NWP of 2012 is relatively clear, especially with respect to water availability. The policy repeats the requirement of social equity and justice in water allocation (1.3 (ii)) and insists upon ensuring access to a minimum quantity of potable water within easy reach of the household (3.2), which is a new addition. The policy stresses to remove disparities between urban and rural water supplies and suggests that special attention be given to the rural requirements (11.1). To meet the quality and quantity requirements of water users and to get maximum value of water use, the policy advocates to evolve a system effective to improve agricultural systems and suggests to rework the water resource projects (4.5) and inter-basin transfers (5.5). The policy emphasises review of water projects in the view of climate change and insists on ensuring maximum efficiency in use of water by avoiding water wastage (1.3 (viii)). To meet the required principles of equity, economy and efficiency in water charges, the policy emphasises ensuring fair pricing for drinking and other water uses (7.1). To ensure affordability of water resources, the policy calls for adopting the principle of differential pricing for different water uses and insists that the water pricing for pre-emptive uses of water be retained (i.e. the basic needs of human beings). Notably, in the policy, the water charges are subject to increase; according to the text of the policy, the purpose is to control wastage and ensure efficiency (7.1 and 7.4). Claim 1: The three national water policies insist for social equity and social justice; however, considerations related to water availability, accessibility, affordability and acceptability to all are too narrow to fulfil the idea of Right to Water.

Right to Water in India’s national water policies  91 Comments on Table 4.1 reveal that India’s national water policies concerns to ensure that water is for all and insists that it should reach all. However, it is difficult to say whether the policies have fulfilled the criteria of availability, accessibility and acceptability proposed by the concept of Right to Water. The meaning of Right to Water has explained that the entitlement of right to water ensures sufficient, continuous and affordable supply of water.8 This denotes that if a policy aims to ensure right to water, then it should embrace the standardised/universal values of availability, accessibility and acceptability. However, required balances are not found in India’s national water policies. Even the most emphasised purpose of the three policies, i.e. ensuring social equity and social justice, is an incomplete idea. This is because the proposed idea has not defined the meaning of social equity and social justice. It is a disturbing fact that all three policies are silent on questions such as what are supposed to be the benchmarks for quality and quantity. The policies, while insisting on the use of new technology, do not offer what should be considered as sufficient quantity of water and what should be the standard of water quality. The policies commonly urge control of effluents without offering any measures and standards for the same. On the question of minimum availability of water, the policies are either silent or unclear. For instance, the NWP of 1987 and 2002 are quiet on the question on what should be the minimum availability. The national water policy of 2012 insists for minimum availability; however, it has not defined what minimum availability stands for.9 Still, in a given situation, features such as to ensure minimum distance of water availability and suggestion to ensure tap water to every household, stated in this policy, are better than the other two policies. It is to note that the policies commonly emphasise ensuring economic accessibility and insist that charges on water uses should be affordable to all. However, the policies, while suggesting affordability and advocating for water subsidy to the poor, are not addressing what is and should be affordable to the poor. Since policies suggest fixation of water pricing, one presumes that the water charges are maintenance charges and not charged to gain profit. The understanding can be claimed as considerable; however, with certain limitations as in respect to water pricing, the three policies have some major shortcomings. For instance, in the NWP of 2002 and 2012, water distribution is allowed to be operationalised by the private sector. The fundamental question is if the private sectors will ensure equal accessibility of water at an affordable price. In the process of water allocation, the policies have ignored the third important kind of accessibility, i.e. cultural accessibility. Unfortunately, there is no mention about the use of water for traditional cultural practices. The ignorance to cultural accessibility is equally disturbing, as for a nation like India, use of water for cultural practices represents cultural diversities and is deeply attached with social and cultural identities. It is surprising how a policy can ignore a subject that is socially and politically sensitive.

92  Right to Water in India’s national water policies Clearly, in India’s three national water polices, the idea that water is for all has been considered; however, the considerations are too thin and do not hold the required depth in favour of Right to Water. This creates doubts if the goals of Right to Water, higher case to ensure availability, acceptability and affordability will be appropriately attained by India’s national water policies. 4.2.2 The principle of special beneficiaries: Children, women, disadvantaged and disabled Chapter 2 of this book has described that the idea of Right to Water is argued as just because its core principles urge identifying the real beneficiary, and while so doing, advocate for positive discrimination. This implies that a policy document in order to fulfil the idea of Right to Water has to entitle commons to use water and while so doing should give special preferences to the needs of children, women, disadvantaged and disabled. The inclusion of special beneficiary in a policy document is extremely important for the real entitlement of Right to Water as it legitimises the privileges supposed to be given to children, women, disadvantaged and the disabled. Positive discrimination in the process of water allocation is a common point in all three water policies. The policies, to ensure positive discrimination, suggest that special efforts be made so that the disadvantaged groups such as Scheduled Castes/Scheduled Tribes can enjoy water as their right. The suggestions of the three water policies in favour of disadvantaged groups is noticeable as each water policy, while identifying disadvantaged groups adds a new community and allocates water accordingly. 4.2.2.1 Offerings of the three policies: Analysis of the table From Table 4.2 it is clear that the attention to the needs of disadvantaged groups is given in the very first national water policy. The NWP of 1987 states that the purpose of planning and project formulation is to give benefit to the Scheduled Castes and Scheduled Tribes and other weaker sections (4.5). The NWP of 2002 follows the purpose with an addition and suggests that while making economic evaluation of projects, benefits of the disadvantaged sections should be considered (6.5). The third national water policy, i.e. NWP of 2012, adds women in the disadvantaged category and suggests ensuring them as beneficiaries (9.6). The policy insists that along with the needs of the Scheduled Castes and Scheduled Tribes, the unique needs and aspirations of women too should be considered.

Right to Water in India’s national water policies  93 Table 4.2   Children, Women, Disadvantaged Sections and Disabled as Special Beneficiaries Component of Distribution

NWP of 1987

NWP of 2002

NWP of 2012

Children, women disadvantaged sections and disabled as beneficiary

4.5 Special efforts should be made to investigate and formulate projects either in, or for the benefit of, areas inhabited by tribal or other specially disadvantaged groups such as Scheduled Castes and Scheduled Tribes. In other areas also, project planning should pay special attention to the needs of Scheduled Castes and Scheduled Tribes and other weaker sections of society.

6.5 Special efforts should be made to investigate and formulate projects either in, or for the benefit of, areas inhabited by tribal or other specially disadvantaged groups such as socially weak, Scheduled Castes and Scheduled Tribes. In other areas also, project planning should pay special attention to the needs of Scheduled Castes and Scheduled Tribes and other weaker sections of the society. The economic evaluation of projects benefiting such disadvantaged sections should also take these factors into account.

9.6 … The unique needs and aspirations of the Scheduled Castes and Scheduled Tribes, women and other weaker sections of the society should be given due consideration.

Claim 2: In reference to the idea of special beneficiaries, the three national water policies are inappropriate as they have adopted the idea mainly on the caste lines.

94  Right to Water in India’s national water policies It is accepted globally that scarcity and mismanagement of water resources has affected human life. However, among all, children, women, disabled and the sections that are disadvantaged socially and economically are the most affected. The idea of Right to Water, while identifying the real beneficiaries, argues that they be considered as special beneficiaries. The argument is important as it brings all sections who are water disadvantaged at a single level and entitles them as commons. This avoids unnecessary divides and ensures water freedom along with water equality. Notably, the sections of the three national water policies have not focused on the requirements of the disadvantaged as common, but the idea of disadvantaged is restricted to the Schedule Castes and Scheduled Tribes. Even a woman, who is argued to be a long-time water sufferer, is considered as a beneficiary only in the NWP of 2012. It is unfortunate that India’s national water polices have repetitively viewed social category, i.e. caste, as water disadvantaged. This has done injustice to the groups who may not come in the same social category but are equally or even more disadvantaged in view of water availability, accessibility and affordability. The policy considers other weaker sections as well, but the meaning of weaker sections is not clearly defined. A valid doubt in this view is that if a woman can be considered as beneficiary, even lately, why children and disabled are not being considered the same. In comparison to any other group, for children and the disabled, economic and physical accessibility of water is difficult. The question is whether it is appropriate for a policy to ignore the fact that after women, children are the ones who have responsibility to fetch water for the family’s daily requirement. Moreover, for the disabled, fetching water for their daily needs is out of question. It is surprising that India’s national water policies have conveniently ignored such realities. Indeed, the considerations of beneficiaries in India’s national water policies are incomplete, as not all disadvantaged groups are treated as beneficiaries, and in the given situation, their claim to be treated as especially privileged will suspend automatically. 4.2.3 Principle of needs and priority of water uses The value of Right to Water to all and water for all is incomplete if uses of water are not prioritised, appropriately as Chapter 2 of this book has explained. The international documents, while offering guidelines and measures, elaborate on the scope of right to water and identify water uses, with priorities. An ideal water policy, which intends to follow these guidelines, has to allocate water to different water users, essentially, with appropriate priorities. To ensure the entitlement on right to water, declarations of appropriate priorities in policy documents are extremely important. This is because mentions like such allows use of water first for life and then for development, which ultimately supports the idea of real beneficiaries. 4.2.3.1 Offerings of the three policies: Analysis of the table Table 4.3 shows that the three policies have a clear vision about water uses with clear priorities. All three national water policies confer priority

Table 4.3  Needs and Priority of Water Uses NWP 1987

NWP 2002

NWP 2012

Needs and priority of water uses

4.1 … Water resource development projects should as far as possible be planned and developed as multipurpose projects. Provision for drinking water should be a primary consideration. The projects should provide for irrigation, flood mitigation, hydro-electric power generation, navigation, pisciculture and recreation wherever possible. 8. In the planning and operation of systems, water allocation priorities should be broadly as follows: Drinking water, Irrigation, Hydro-power, Navigation, Industrial and other uses. However, these priorities might be modified if necessary in particular regions with reference to area specific considerations.

1.8 The drinking water needs of people and livestock have also to be met. Domestic and industrial water needs have largely been concentrated in or near major cities. 5. In the planning and operation of systems, water allocation priorities should be broadly as follows: Drinking water, Irrigation, Hydropower, Ecology, Agro-industries and non-agricultural industries, Navigation and other uses. However, the priorities could be modified or added if warranted by the area/region specific considerations. 6.1 Water resource development projects should as far as possible be planned and developed as multipurpose projects. Provision for drinking water should be a primary consideration.

1.3 (vi) Safe Water for drinking and sanitation should be considered as preemptive needs, followed by high priority allocation for other basic domestic needs (including needs of animals), achieving food security, supporting sustenance agriculture and minimum eco-system needs. Available water, after meeting the above needs, should be allocated in a manner to promote its conservation and efficient use. 7.4 … and high priority allocation for ensuring food security and supporting livelihood for the poor. Available water, after meeting the above needs, should increasingly be subjected to allocation and pricing on economic principles so that water is not wasted in unnecessary uses and could be utilized more gainfully. 11.2 … Where alternate supplies are available, a source with better reliability and quality needs to be assigned to domestic water supply. Exchange of sources between uses, giving preference to domestic water supply should be possible. (Continued)

Right to Water in India’s national water policies  95

Component of Right to Water

Table 4.3  Continued NWP 1987

NWP 2002

9. Adequate drinking water facilities should be provided to the entire population both in urban and in rural areas by 1991. Irrigation and multipurpose projects should invariably include a drinking water component, wherever there is no alternative source of drinking water. Drinking water needs of human beings and animals should be the first charge on any available water.

6.3 In the planning, implementation and operation of a project, the preservation of the quality of environment and the ecological balance should be a primary consideration. The adverse impact on the environment, if any, should be minimised and should be offset by adequate compensatory measures. The project should, nevertheless, be sustainable. 19.1 Drought-prone areas should be made less vulnerable to droughtassociated problems through soil moisture conservation measures, water harvesting practices, minimisation of evaporation losses, development of the ground water potential including recharging and the transfer of surface water from surplus areas where feasible and appropriate. Pastures, forestry or other modes of development which are relatively less water demanding should be encouraged. In planning water resource development projects, the needs of droughtprone areas should be given priority.

NWP 2012

96  Right to Water in India’s national water policies

Component of Right to Water

Right to Water in India’s national water policies  97 to drinking water and also suggest ensuring other water-related needs of human life, as Table 4.3 presents. The NWP of 1987 prioritises drinking water to the entire population i.e., both to urban and rural (9), and advocates that priority to drinking water should be given and ensured through all the major multipurpose projects (4.1 and 9). The policy suggests that after satisfying needs concerning drinking water, water should be allocated to irrigation, hydropower, navigation, industrial and other uses (8). Analysis of NWP of 1987 reflects that the priority order are not absolute but are changeable as per the situation and specific requirements (8). The table pinpoints that the 2002 NWP, while giving priority to drinking water, follows the priority order offered by the 1987 NWP and adds new priorities. It is correct to say that the policy has repetition of priorities, with a shift of priority of order. Initially the policy has considered water needs in the context of domestic and industrial uses and has contextualised it mainly with reference to the needs of major cities (1.8). However, in the subsequent sections, priorities of water use(s) are not maintained in the same order but are rearranged with reference to ecology, agro-industrial and non-agricultural industries (5). The policy, while addressing the issue of priority, gives special priority to the needs of drought-prone areas and insists upon minimising their vulnerability (19.1). The policy insists that the preservation of the quality of environment and the ecological balances should be a primary concern of policy planning and implementation (6.1 and 6.3). The table shows that on the question of water use priorities, the suggestions given in the NWP of 2012 are more precise. Instead of giving order of priority, the policy suggests that water should first be supplied to fulfil pre-emptive needs, and only then to high-priority needs. The list of pre-emptive needs includes safe water for drinking and sanitation while high-priority needs include use of water to ensure food security, substance agriculture and balanced eco system (1.3(vi)). The policy includes the livelihood needs of the poor and emphasises that other uses of water should be allowed only after first fulfilling the pre-emptive water needs (7.4). The policy insists that preference to domestic supply should be maintained in every exchange of water resources (11.2). Claim 3: Priority Orders, proposed by India’s national water policies are compromising with the idea of Right to Water. However, compared to NWP 1987 and NWP 2002, NWP of 2012 is relatively more appropriate. The problem of rights over water resources is actually a problem of priority, which has been appropriately addressed by the concept of Right to Water. The principle of priority is an important component of the concept of Right to Water which argues for water freedom with equality. While so arguing, the concept insists that the first use of water for life cannot be compromised. The concept advocates that use of water for various purposes be allowed; however, the same cannot be unlimited or uncontrolled

98  Right to Water in India’s national water policies and cannot go against the right to have water for drinking, as Chapter 2 of this book has defined. This implies that for the entitlement of right to water, use of water with appropriate priority needs to be adequately placed in the policy document. This further means that to have a good life, uses of water resources, other than drinking, are also important. It is to note that all three policies focus on the question of priorities of water uses to larger extent, however with multiple confusions as Iyer (2002) has observed. 4.2.4 Principle of obligations and obligatory parties The idea of Right to Water emphasises that for the realisation of right to water to all, duties concerning the fulfilment of right to water are required to be recognised and executed appropriately. The concept, while offering a list of obligatory parties, underlines that realisation of right to water is a process which requires collective obligation; where duties flow from top to bottom as well as from bottom to top. Accordingly, the top obligators, i.e. the union/state/local governments, are the major obligatory parties who have the obligation to fulfil, maintain and preserve the right to water to all, with the support from other parties (including the private sector).10 The civil society, including NGOs, researchers and citizens as the bottom obligators, bears duty to preserve the idea of Right to Water, indeed in different way, as Chapter 2 of this book states. The idea of Right to Water suggests that civil society, NGOs, researchers and citizens have an equal duty to protect and preserve water resources. It is expected that they together will draw attention of water suppliers towards unjust water supply practices and will raise voice against water injustices, whenever required. Thus, for the entitlement of right to water to all, fulfilment of duty by each stakeholder/party is important and essential. 4.2.4.1 Government (Union/state/local) Water can be enjoyed as a right only when it has been allocated by a legitimate authority, identified and endorsed as responsible for the same. The concept of Right to Water has identified the Union, state and local governments and institutions as the primary duty bearers. The idea underlines that the governments (Union/state/local) bear the duty to facilitate, i.e. take positive measures, to promote, i.e. to provide appropriate education, and to protect, i.e. to take measures to minimise wastage. Here, the duty, which is constant, is positive as well as negative. The combination of the positive and negative of the duty ensures that the governments will not interfere with a person’s access of water and will prevent any third party from doing so.11 This further clarifies that the responsibility of the governments does not wither away, even if the duty of water allocation is transferred to private

Right to Water in India’s national water policies  99 sectors. Thus, the duty of governments to supply water, equally, remains constant in all situations.12 4.2.4.1.1 Offerings of the three policies: Analysis of the table Table 4.4 presents that all three water policies commonly state that the Union/state/local governments have certain duties to be performed.13 However, descriptions of referred duties are different and lengthy. In comparison to the first two policies, the recent policy, i.e. NWP of 2012, is more comprehensive. The first national water policy, drafted in 1987, obligates the Indian states to make plans for a basin and sub-basin (3.2) and insist that states and Union territories should prevent exploitation of coastal strips of land and undertake steps to discourage economic activities in areas adjacent to the sea (17). Clearly, in the policy, the government is not under obligation to supply water. The NWP of 2002 repeats the same obligation (18.1) and emphasises the requirement of establishment of basin and sub-basin organisation (4.2). In this policy, the duty of the states is outlined in multiple contexts including preparing a coastal plan in view of the environmental and ecological impacts, regulation of development activities and to make plans to ensure safety of dam and water related structures (18.2 and 24). In the NWP of 2012, the meaning of obligation is altogether different, as the obligations are drawn in the context of public trust doctrine (1.3 (iv) and 2.2). The policy, while emphasising the idea of trust doctrine, insists that the centre, state and local bodies should ensure access to a minimum quality of potable water for essential health and hygiene to all its citizens (3.2). To obligate the Union, state and local governments equally, the policy calls for devolution of authority to the local tire (2.1). The policy insists that the Union government should attain general governing principles by offering a national framework of law (2.1 and 2.2). State governments, on the other hand, should undertake responsibility to ensure equitable access to water to all, encourage reforms and progressive measures (12.7) and establish an independent statutory Water Regulatory Authority for the same (7.1). Analysis of the policy contents shows that policy obligates governments to encourage research and establish academic institutions and research centres to suggest best use of water resources. To promote skilled manpower in the water sector, the policy calls for advancement of technology (15.1) and training in water management (15.5) and emphasises the need for a national campaign for water literacy that can help in capacity building of each stakeholder. The policy suggests that the ultimate obligation of the government is to evolve policy directives for changing the situation/scenario of water resources, and to attain this purpose the government needs to establish an autonomous centre of water policy research to evaluate adequately the impact of the policy (15.4). The policy instructs the states to redraft and revise their water policies as per the directives of the national water policies (16.2).

Obligatory party

NWP 1987

NWP 2002

NWP 2012

Arrangements of duty bearing responsibilities governments (Union, state and local bodies)

3.2 … All individual developmental projects and proposals should be formulated by the States and considered within the Framework of such an overall plan for a basin or sub-basin, so that the best possible combination of options can be made. 17….The States and Union territories should also undertake all requisite steps to ensure that indiscriminate occupation and exploitation of coastal strips of land are discouraged and that the location of economic activities in areas adjacent to the sea is regulated.

4.2 Appropriate river basin organisations should be established for the planned development and management of a river basin as a whole or sub-basins, wherever necessary. 10. … A skeletal national policy in this regard needs to be formulated so that the project affected persons share the benefits through proper rehabilitation. States should accordingly evolve their own detailed resettlement and rehabilitation policies for the sector, taking into account the local conditions. ….. 18.1…. The States and Union Territories should also undertake all requisite steps to ensure that indiscriminate occupation and exploitation of coastal strips of land are discouraged and that the location of economic activities in areas adjacent to the sea is regulated.

1.3(iv) Water needs to be managed as a common pool community resource held by the state under public trust doctrine to achieve food security, support livelihood, and ensure equitable and sustainable development for all. 2.1 There is a need to evolve a National Framework Law as an umbrella statement of general principles governing the exercise of legislative and/or executive (or devolved) powers by the Centre, the States and the local governing bodies. This should lead the way for essential legislation on water governance in every State of the Union and devolution of necessary authority to the lower tiers of government to deal with the local water situation. 2.2 Such a framework law must recognize water not only as a scarce resource but also as a sustainer of life and ecology. Therefore, water, particularly, groundwater, needs to be managed as a community resource held, by the state, under public trust doctrine to achieve food security, livelihood, and equitable and sustainable development for all. Existing Acts may have to be modified accordingly. 3.2 The Centre, the States and the local bodies (governance institutions) must ensure access to a minimum quantity of potable water for essential health and hygiene to all its citizens, available within easy reach of the household.

100  Right to Water in India’s national water policies

Table 4.4  Government (Union as Well as State) as Duty Bearers

Obligatory party

NWP 1987

NWP 2012

18.2 Each coastal State should prepare a comprehensive coastal land management plan, keeping in view the environmental and ecological impacts, and regulate the developmental activities accordingly. 24. There should be proper organisational arrangements at the national and state levels for ensuring the safety of storage dams and other waterrelated structures consisting of specialists in investigation, design, construction, hydrology, geology, etc. A dam safety legislation may be enacted to ensure proper inspection, maintenance and surveillance of existing dams and also to ensure proper planning, investigation, design and construction for safety of new dams. The Guidelines on the subject should be periodically updated and reformulated. There should be a system of continuous surveillance and regular visits by experts.

4.2 … States should be incentivized to increase water storage capacity, which inter-alia should include revival of traditional water harvesting structures and water bodies. 7.1 … Equitable access to water for all and its fair pricing, for drinking and other uses such as sanitation, agricultural and industrial, should be arrived at through independent statutory Water Regulatory Authority, set up by each State, after wide ranging consultation with all stakeholders. 12.7 States should be encouraged and incentivized to undertake reforms and progressive measures for innovations, conservation and efficient utilization of water resources. 15.1 Continuing research and advancement in technology shall be promoted to address issues in the water sector in a scientific manner. Innovations in water resources sector should be encouraged, recognized and awarded. 15.4 An autonomous center for research in water policy should also be established to evaluate impacts of policy decisions and to evolve policy directives for changing scenario of water resources. 15.5 … A national campaign for water literacy needs to be started for capacity building of different stakeholders in the water sector. 16.2 The State Water Policies may need to be drafted/revised in accordance with this policy keeping in mind the basic concerns and principles as also a unified national perspective.

Right to Water in India’s national water policies  101

NWP 2002

102  Right to Water in India’s national water policies Claim 4: The three policies have identified Union, state and local governments as major obligators, in this reference NEP of 2012 is relatively sound and clear. The three national water policies establish certain important obligations on governments, including Union, state and local; however, the same is hardly seen in the context of Right to Water. The first two policies have ignored the significance of water distribution and have actually suggested nothing in this regard. For instance, the obligations of state governments to make plans for basin and sub-basin areas and the duty to prevent the exploitation of coastal strips of land, mentioned in the NWP of 1987, is not linked with obligation of water distribution. Hence, it is difficult to understand if the governments have a duty to allot water as per the principle of Right to Water. Similarly, the NWP of 2002 suggests that the Union government observe the impact of project planning on environment and ecology; however, it is quiet on whether such project planning concerns water allocation or not. It should further be noted that in the NWP of 2002, the possible obligations of local governments are not recognised; however, they obtained constitutional status in 1992. It is surprising how allocation of water, which indeed is a local issue, is not viewed as a duty of the local governments (Iyer, 2002). In the view of the limitations of the two policies, the duties of the government to respect, protect and fulfil water resources are not observed in the first two policies. In comparison to these two water policies, the third water policy is relatively better as it assigns governments to ensure minimum water availability and obligates all three tiers of the government to fulfil the same. Since the policy has clearly made the Union and state governments responsible for changing the water scenario, one can say that the NWP of 2012 has identified the duty of the government, and by doing this, it has integrated an important component of Right to Water in the policy framework.

4.2.4.2 Obligatory party: private sector water providers In the contemporary water management systems, existence of private sector is important in two references i.e. as the water users and as water providers. Being users of the largest quantity of water, private water users have the duty to prevent water wastage14 and as water providers, they have to fulfil people’s water requirements as per the values of Right to Water. Here, in the process of water allocation, their role as water provider needs to be studied as a need for achieving efficiency in water supply. Significantly, international organisations, including the United Nations, allow

Right to Water in India’s national water policies  103 and encourage participation of the private sector in water management on the condition that its participation in water allocation will increase efficiency in water supply and not disturb the idea of water equality. To ensure the same, the documents released by these organisations obligates the private sector to respect, protect and fulfil right to water to all. These obligations imply that such private actors, regardless of their size, sector, structure and location, have a responsibility to ascertain right to water to all and to catalogue the relevant right to water standards (Danish Institution, 2014). Since the obligation of public sectors, i.e. Union and state governments, remains constant, the documents, especially Comment 15, have considered the private sector as a secondary duty bearer. Notably, such considerations have established the private sector as private water providers, who as non-state actors, are entitled to provide services for water management. The obligation thus is clear and needs to be examined in the context of India’s national water policies.

4.2.4.2.1 Offerings of the three policies: Analysis of the table Table 4.5 pinpoints that the NWP 1987 did not identify the private sector as an obligatory party. The role of the private sector as a water service provider is first introduced in the NWP of 2002 and is maintained in NWP of 2012. The reading of the sections of NWP of 2002 points that the involvement of the private sector is encouraged in three contexts, including planning, development and management of water resources. The obligations are not direct and clear but are pointed in the context of expectations, as the 2002 NWP states that the involvement of the private sector will increase participation and may provide innovative ideas and generate financial resources. The policy intends to improve efficiency, and for this it encourages participation of the private sector for building, owning, operating and leasing and transferring of water resource facilities (13). Clearly, the ultimate purpose of allowing private participation is to increase efficiency and accountability in water management (13). The NWP of 2012 obligates industries as a part of the private sector in the context of prevention of water wastage and water pollution. To control the wastage of water resources, the policy instructs industries to withdraw only the amount of water they need and return treated effluents to a specific standard, back to the hydrologic system (11.6). The policy proposes that the association of governments with the private sector should essentially improve service delivery on a sustainable basis. The policy clearly states that the private sector actors as private water providers are accountable to democratically elected local bodies who have the authority to take penalties for failure in efficiency in water supply (12.3).

104  Right to Water in India’s national water policies Table 4.5  Duty-Bearing Responsibilities Private Sector as Water Supplier Obligatory party

NWP 1987

NWP 2002

NWP 2012

Arrangements of duty bearing responsibilities private sector water provider

Not mentioned

13. Private sector participation should be encouraged in planning, development and management of water resources projects for diverse uses, wherever feasible. Private sector participation may help in introducing innovative ideas, generating financial resources and introducing corporate management and improving service efficiency and accountability to users. Depending upon the specific situations, various combinations of private sector participation, in building, owning, operating, leasing and transferring of water resources facilities, may be considered.

11.6 Industries in water short regions may be allowed to either withdraw only the makeup water or should have an obligation to return treated effluent to a specified standard back to the hydrologic system. Tendencies to unnecessarily use more water within the plant to avoid treatment or to pollute ground water need to be prevented. 12.3 Water resources projects and services should be managed with community participation. For improved service delivery on sustainable basis, the State Governments/urban local bodies may associate private sector in public private partnership mode with penalties for failure, under regulatory control on prices charged and service standards with full accountability to democratically elected local bodies.

Claim 5: In India the three national water policies have identified private water providers as responsible obligators, however, same is not in the line of Right to Water.

Right to Water in India’s national water policies  105 In the NWP of 1987, there is no mention of the role of the private sector, and in the NWP of 2002, private sector participation is viewed in the context of planning, development and management of water resource projects. While addressing the role of the private sector in water management, the NWP of 2002 states that the private sector has the potential to introduce innovative ideas that may help to improve services. This implies that the policy views water allocation as a question of efficiency and hence allows private sectors not only to participate but also to build, own, operate, lease, and transfer water resources. Such participation indeed creates a sense of private ownership over water resources, which is an idea against the spirit and values of Right to Water. Since the policy has not referred to private participation in the context of obligation, there is a clear threat to the fulfilment of the objectives of right to water. There is a doubt that the private water provider, while owning and operating water resources, will not ensure water equality but will focus on efficiency in water allocation with reference to maximum profits. The NWP 2012, at a glimpse, obligates private water providers. However, the obligation is not towards people but towards elected leaders. This creates a doubt if the obligation is real. A clear threat emerges that political incompetence will legitimise the unjust water practices practised by the private sector and will lead to water injustice. Since duties of the private sector with regard to water allocation are defined in the context of water efficiency and not with reference to water equality and water justice, it is problematic to state if India’s national water policies reflect the value of Right to Water. 4.2.4.3 Obligatory party: citizens, civil society and research community The realisation of Right to Water requires a higher civic sense. It is expected that citizens, civil society and researchers will support government’s initiatives to make right to water a reality. A constant duty of citizens in this regard is to preserve water for future requirement and not pollute or waste water resources. The duties of civil society are dual, i.e. both, positive and negative in nature. The concept of Right to Water expects that the civil societies, while playing a positive role, should uphold the right holder’s perspectives and make people aware about their rights over water resources. Moreover, civil society should support the state by participating and helping government institutions and machineries in the decision-making processes. The negative role is obviously critical in nature, which holds that civil society should compel water distributors (both public and private) to fulfil and protect rights of individuals and communities over water resources. The idea of Right to Water importantly identifies the research community as duty bearers and illustrates the duties of researchers.15 The idea, in this view, insists that the research community should identify and develop new research areas and should develop understanding on equality issues in water distribution/pricing/cost recovery.

Obligatory party

NWP 1987

NWP 2002

NWP 2012

Duties for citizens and civil society (national NGOs and intellectuals) Requirement of research and duties of researchers

Not mentioned

Not mentioned

Not mentioned

19. For effective and economical management of our water resources, the frontiers of knowledge need to be pushed forward in several directions by intensifying research efforts in various areas.

25. For effective and economical management of our water resources, the frontiers of knowledge need to be pushed forward in several directions by intensifying research efforts in various areas, including hydrometeorology, snow and lake hydrology and so on.

4.4 Stakeholder participation in land-soil-water management with scientific inputs from local research and academic institutions for evolving different agricultural strategies, reducing soil erosion and improving soil fertility should be promoted. The specific problems of hilly areas like sudden run off, weak water holding capacity of soil, erosion and sediment transport and recharging of hill slope aquifers should be adequately addressed. 10.2 Land, soil, energy and water management with scientific inputs from local, research and scientific institutions should be used to evolve different agricultural strategies and improve soil and water productivity to manage droughts. Integrated farming systems and non-agricultural developments may also be considered for livelihood support and poverty alleviation. 15.1 Continuing research and advancement in technology shall be promoted to address issues in the water sector in a scientific manner. Innovations in water resources sector should be encouraged, recognized and awarded. 15.4 An autonomous center for research in water policy should also be established to evaluate impacts of policy decisions and to evolve policy directives for changing scenario of water resources. 15.5 To meet the need of the skilled manpower in the water sector, regular training and academic courses in water management should be promoted. These training and academic institutions should be regularly updated by developing infrastructure and promoting applied research, which would help to improve the current procedures of analysis and informed decision making in the line departments and by the community. A national campaign for water literacy needs to be started for capacity building of different stakeholders in the water sector.

106  Right to Water in India’s national water policies

Table 4.6  Duties of Citizens, Civil Society and Research Community

Right to Water in India’s national water policies  107 4.2.4.3.1 Offerings of the three policies: Analysis of the table Table 4.6 revels that all three national water policies have neglected the role of citizens and civil society and have thus not placed them as duty bearers. However, special attention is given to the significance of research and duties of research communities. The NWPs of 1987 and 2002 in this reference emphasise the requirement of research and insist that research efforts are required to be made in various directions, including hydro-metrology, snow and lake hydrology (NWP 1987: 19; NWP 2002: 25). The NWP of 2012 has extensive hope from the research community. It views the significance of their contribution in the context of improvement of agricultural strategies (10.2) and advancement of technology (15.1). The policy proposes that technology and scientific inputs, given by the local research and academic institutions, should be used to address water-related issues, including the problems related to hilly areas (4.4). To encourage research and to evaluate impacts of policy decisions, the policy suggests that it is essential to establish an autonomous centre for research in water policy (15.5). The policy emphasises that to meet the requirement of skilled manpower, regular training and academic courses in water management should be promoted and regularly updated by developing infrastructure. The policy advocates promotion of applied research for the same. The policy expects that such promotion may improve the current procedures of analysis and informed decision-making in the line departments and by the community (15.5). Moreover, the policy assumes that this may help in attaining policy directives for changing the scenario of water resources (15.4). Claim 6: In the three policies, the duties of individuals, researchers and civil society have been elaborated in narrow senses and not in the reference of Right to Water. In the discourse of Right to Water, citizens and civil society are recognised as obligatory parties who together take an initiative to protect and promote water resources. In the policy documents, the role of citizens and civil society requires proper definition, as obligations fulfilled by them create a culture and attitude that helps in addressing problems related to water distribution and also support in making policy decisions and developing strategies for the same. Unfortunately, in India’s national water policies, the requirement of proposing the role of citizens has been ignored. Here, the offerings of people’s participation in water planning cannot be considered as a part of obligations of people. This is because the proposed participation in the decision-making processes creates a facility, ensured by the government to the people.16 In the policies, people’s participation is encouraged with reference to big projects, the purpose of which is often far from right to water. The big projects, while proposing strategies on water supply, often focus on mega requirements of irrigation, industry and power (energy), which ignores the basic

108  Right to Water in India’s national water policies right to have water for drinking and household purposes. The proposed participation of such a nature has created obligations for government and not for the people. The policy suggests ways to ensure people’s participation in water planning; however, it does not answer the problem as to what to do if people are not willing to participate in water planning. Similarly, in the national water policies, there is no reference to the role of civil society. It appears that the significance of duties performed by civil society, that have competence to pressurise the government to have a policy to entitle and implement right to water, has been ignored. Such an absence has created a serious vacuum and hurdle in the fulfilment of right to water, as there is no civic pressure on the governments to have a water policy that ensures right to water for all.17 Disregard for the role of citizens and civil society implies that the Union water policies have considered public and private water distributers as a solo obligator. In the view of the principles of Right to Water, this indeed is an incorrect approach, as realisation of right to water calls for identifying the role of different stakeholders, including citizens and civil society, and insists upon elaborating their duties in a policy document. The description of policy promises presents that all three national water policies have given importance to research and research institutions. However, there are two limitations in this respect. Firstly, the significance of research and research centres is not viewed in context of right to water to all, and secondly, duties of the researchers are not explicitly mentioned but rather are pointed as possibilities and exceptions, which government is having from them. In the three national policies, the dominance of the engineering disciple over other disciples is evident (Iyer, 2002). This encourages research activities to ensure efficient use of water resources in agriculture and industrial sectors, but while doing so, it ignores the significance of research in addressing issues relating to water equality. A serious doubt is that if the encouragement towards scientific advancement and economical management of water resources will ensure fairness in water distribution. This is because the focus of such research will be merely on generating storage capacity of water resources, which cannot ensure that stored water will be supplied to all equally. A suggestion to establish a Centre for Policy Research, proposed by the NWP of 2012, can be seen as a ray of hope, as it insists encouraging research to evaluate policy impact and to change the water scenario. However, once again, whether the purpose of research, while evaluating water policy and suggesting change in the water scenario, is in the direction of right to water or not, is quite unclear. In view of these limitations, it is rather difficult to say if the emphasis on research activities will lead to water justice as duties of research centres and researchers are not defined, in the line of Right to Water.

4.3 Status of Right to Water in the Union water policies: an analysis of management strategies Management strategies as the second important aspect of water policy suggest and explain how water resources are going to be managed in a

Right to Water in India’s national water policies  109 given situation.18 Like from the distributive strategies, expectations from the management strategies are also extensive and multiple in nature. The benchmarks drawn in the Framework, from this viewpoint, emphasise that the management strategies, while proposing strategies to manage water resources, should integrate the key principles of Right to Water. The Framework, while elaborating on the benchmarks of management strategies, clarifies that the purpose of an ideal water policy in respect to Right to Water is to facilitate, protect and promote right to water for all. A policy document for this purpose should strike a balance between the national and regional requirements and should establish adequate institutions and offer transparent, accountable and efficient mechanisms for the same. The Framework explains that to attain right to water to all, the management pattern should encourage people’s participation and should discourage monopoly, exploitation and discrimination. The Framework further identifies that sustainability and monitoring systems to ensure right to water is another important factor which should be the focus of the policy contents. 4.3.1 Required provisions for infrastructures and institutional arrangements Implementation of right to water rests on the institutional/organisational arrangements proposed in governmental documents. A policy document in this respect has to establish institutions that are efficient in water allocation and in managing water resources, as in the absence of these institutions, right to water is an empty promise. 4.3.1.1 Offerings of the three policies: Analysis of the table Table 4.7 indicates that all three national water policies encourage institutional and organisational setups, mainly for planned development and management of river basin as a whole (NWP 1987: 3.3; NWP 2002: 4.2; NWP 2012: 12.4). The NWP of 1987, while advocating the establishment of appropriate organisations, insists on setting up special multidisciplinary units in each state. The policy clarifies that each unit must prepare comprehensive plans to harmonise various water uses so that maximum availability of water resources can be determined (3.3). The NWP of 2002 extends the institutional requirements and emphasises reorientation of institutions, which exists at different levels (4.1). The policy views the significance of these institutions in multiple contexts and insists on using them for planning, development and management of water resources on a hydrological unit basis as well as to integrate quality, quantity and environmental aspects (4.2.). To facilitate the management and maintenance of the irrigation system in a time-bound manner, the policy suggests formation of a Water Users’ Association (23.3). The vision for institutional setups is clearer in NWP of 2012 as it advocates for the establishment of infrastructures and institutions for different purposes, including water conflicts. For instance, the policy, to

Component of Management

NWP 1987

NWP 2002

NWP 2012

Infrastructure and institutional arrangements

3.3. Appropriate organizations should be established for the planned development and management of a river basin as a whole. Special multidisciplinary units should be set up in each state to prepare comprehensive plans taking into account not only the needs of irrigation but also harmonizing various other water uses, so that the available water resources are determined and put to optimum use having regard to subsisting agreements or awards of Tribunals under the relevant laws.

4.1 With a view to give effect to the planning, development and management of the water resources on a hydrological unit basis, along with a multi-sectoral, multi-disciplinary and participatory approach as well as integrating quality, quantity and the environmental aspects, the existing institutions at various levels under the water resources sector will have to be appropriately reoriented/ reorganised and even created, wherever necessary. As maintenance of water resource schemes is under non-plan budget, it is generally being neglected. The institutional arrangements should be such that this vital aspect is given importance equal or even more than that of new constructions. 4.2 Appropriate river basin organisations should be established for the planned development and management of a river basin as a whole or sub-basins, wherever necessary. Special multi-disciplinary units should be set up to prepare comprehensive plans taking into account not only the needs of irrigation but also

6.7 There should be concurrent mechanism involving users for monitoring if the water use pattern is causing problems like unacceptable depletion or building up of ground waters, salinity, alkalinity or similar quality problems, etc., with a view to planning appropriate interventions 8.7 The water resources infrastructure should be maintained properly to continue to get the intended benefits. A suitable percentage of the costs of infrastructure development may be set aside along with collected water charges, for repair and maintenance. Contract for construction of projects should have inbuilt provision for longer periods of proper maintenance and handing over back the infrastructure in good condition. 12.1 There should be a forum at the national level to deliberate upon issues relating to water and evolve consensus, co-operation and reconciliation amongst party States. A similar mechanism should be established within each State to amicably resolve differences in competing demands for water amongst different users of water, as also between different parts of the State.

110  Right to Water in India’s national water policies

Table 4.7  Institutional Arrangements to Ensure Right to Water

Component of Management

NWP 1987

NWP 2012

harmonising various other water uses, so that the available water resources are determined and put to optimum use having regard to existing agreements or awards of Tribunals under the relevant laws. The scope and powers of the river basin organisations shall be decided by the basin states themselves. 23.3 Formation of Water Users’ Association with authority and responsibility should be encouraged to facilitate the management including maintenance of irrigation system in a time bound manner.

12.2 A permanent Water Disputes Tribunal at the Centre should be established to resolve the disputes expeditiously in an equitable manner. Apart from using the good offices of the Union or the State Governments, as the case may be, the paths of arbitration and mediation may also be tried in dispute resolution. 12.4 Integrated Water Resources Management (IWRM) taking river basin/sub-basin as a unit should be the main principle for planning, development and management of water resources. The departments/ organizations at Centre/State Governments levels should be restructured and made multi-disciplinary accordingly.

Right to Water in India’s national water policies  111

NWP 2002

112  Right to Water in India’s national water policies address problems related to different water uses and to get the intended benefits, advocates the establishment of concurrent mechanisms and water resources infrastructures (6.7 and 8.7). Moreover, to deliberate upon issues relating to water, the policy emphasises establishing two mechanisms that would work at the national level as well as at the state level. The policy recommends that the forum, at the national level, should initiate to evolve consensus, co-operation and reconciliation among States. Simultaneously, the forum at the state level (each) should initiate to resolve differences emerging between different users of water (12.1). The policy proposes that disputes between various parties should be resolved in an equitable manner, and for this purpose a permanent Water Disputes Tribunal should be established (12.2). Importantly, the policy focuses on reconstruction of departments/ organisations, working at the centre and state levels, and accordingly insists on making them multidisciplinary (12.4). Claim 7: Institutional arrangements, proposed by the three national water policies are not inclined to the values of Right to Water. The comments on the various sections of India’s national water policies point out that for effective water management, all three policies realise the significance of institutions and infrastructures; however, the same is not proposed in the context of idea of Right to Water. The sections of the three water policies advocate establishing institutions and infrastructures for various purposes, i.e. for planning, development, management of irrigation, river basin, hydrological unit and even solving disputes. The purpose is important; however, it is an unavoidable fact that the same does not have direct connection with the fulfilment of right to water. The suggestions, in this respect, are supposed to be more precise. Unfortunately, the required clarity is not found in any of the policies. However, a thin proposal in this regard is noted in the NWP of 2002, section 4.1 of which states that institutions and departments should be established to address the problems of quality, quantity and environment. Indeed, the suggestion is important for the entitlement of right to water, as the goals offered in it are directly linked with the idea of Right to Water. Moreover, an idea to establish institutions and departments to ensure co-operation, consensus and reconciliation among different states is welcoming. However, in the absence of required clarity, it is difficult to state if the same will ensure right to water to all. The provisions to establish institutions are dispute-oriented and not rights-oriented. The policies merely focus on the problems faced by states in water planning and ignore the problems faced by individuals. Given this understanding, institutions and departments, while managing water resources, will focus merely upon resolving water disputes and water conflicts usually arising in between the different states and may not look into water management as an issue of right.

Right to Water in India’s national water policies  113 4.3.2 Mechanisms to ensure regional needs In the federal structure, the process of water management is complicated and challenging. The idea of Right to Water adds to the complexities, as it expects that a water policy document, drafted by the Union government, should establish a common governing framework and in so doing should ensure balance between the needs of different regions. This further emphasises that regional requirements should be seen as a part of national requirements and that adequate measures should be offered for their management. Here, the question of water equality is not limited to an individual’s entitlement, but the argument is in favour of states as groups of different societies and sub-societies. The idea in this stance advocates that water resources should be planned at the national level and be managed in a way such that the benefits of equality could reach each state. 4.3.2.1 Offering of the three policies: Analysis of the table Table 4.8 shows that the three national water policies emphasise that management of water resources should be governed by a national perspective. The policies suggest that while so doing the action planning should focus on the regional requirements and initiate to fulfil them appropriately (NWP 1987: 1.8; NWP 2002: 1.4; NWP 2012: 1.1 and 1.3 (i)). The NWPs of 1987 and 2002 insist that the amalgamation of the national and regional requirements and managing of water resources accordingly is essential, as water is scarce and therefore is the most crucial element of development planning (NWP 1987: 1.8; NWP 2002: 1.4). The NWP of 1987, while emphasising development, conservation, utilisation and management of water resources with a national perspective (1.8), suggests that the exceptional requirements of water in water shortage areas (3.4), hilly areas (4.6) and areas affected by floods (16) and drought (18.1) must be considered. To ensure water availability, the policy suggests the transfer of water from one area to another and also from one river to another (3.4). The policy explains that the need of drinking water in hilly areas should be fulfilled by the project planned for irrigation and hydropower development. To prevent the intensity of floods and to minimise the loss of life and property, the policy emphasises the need to have a master plan (16). Similarly, to minimise vulnerability of drought-prone areas, the policy emphasises encouragement of such practices as water harvesting and minimisation of evaporation loss, and it advocates for allowing transfer of surface water from surplus areas, if feasible and appropriate (18.1). The policy provides that the needs of drought-prone areas must be considered while planning for water resource development. Again, the NWP of 2002 repeats almost all the provisions of the NWP of 1987. Like the NWP of 1987, the policy emphasises ensuring water availability to water-short (3.5) and hilly areas (6.4) and insists that the needs of drought-prone areas should be given priority (19.1). The policy stresses that to ensure water

Component of management

NWP 1987

NWP 2002

NWP 2012

National objectives with regional preferences and local concerns (special cases of drought and floods)

1.8 Water is one of the most crucial elements in developmental planning. As the country prepares itself to enter the 21st century, efforts to develop, conserve, utilise and manage this important resource have to be guided by national perspectives. The need for a national water policy is thus abundantly clear: water is a scarce and precious national resource to be planned, developed and conserved as such, and on an integrated and environmentally sound basis, keeping in view the needs of the States concerned. 3.4. Water should be made available to water short areas by transfer from other areas including transfers from one river basin to another, based on a national perspective, after taking into account the requirements of the areas/basins. 4.6 The planning of projects in hilly areas should take into account the need to provide assured drinking water, possibilities of hydro-power development and the proper approach to irrigation in such areas, in the context of physical features and constraints such as steep slopes, rapid run-off and the incidence

1.4 Water is a scarce and precious national resource to be planned, developed, conserved and managed as such, and on an integrated and environmentally sound basis, keeping in view the socio-economic aspects and needs of the States. It is one of the most crucial elements in developmental planning. As the country has entered the 21st century, efforts to develop, conserve, utilise and manage this important resource in a sustainable manner, have to be guided by the national perspective. 3.5 Water should be made available to water short areas by transfer from other areas including transfers from one river basin to another, based on a national perspective, after taking into account the requirements of the areas/basins.

1.1 The objective of the national water policy is to take cognizance of the existing situation, to propose a framework for creation of a system of laws and institutions and for a plan of action with a unified national perspective 1.3 (i) Planning, development and management of water resources need to be governed by common integrated perspective considering local, regional, State and national context, having an environmentally sound basis, keeping in view the human, social and economic needs. 2.1 There is a need to evolve a National Framework Law as an umbrella statement of general principles governing the exercise of legislative and/or executive (or devolved) powers by the Centre, the States and the local governing bodies.

114  Right to Water in India’s national water policies

Table 4.8  National Objectives with Regional Preferences and Local Concerns (Special Cases of Drought and Floods)

Component of management

NWP 2002

NWP 2012

of soil erosion. The economic evaluation of projects in such areas should also take these factors into account. 16. There should be a master plan for flood control and management for each flood prone basin. Sound watershed management through extensive soil conservation, catchment-area treatment, preservation of forests and increasing the forest area and the construction of check dams should be promoted to reduce the intensity of floods. Adequate flood-cushion should be provided in water storage projects wherever feasible to facilitate better flood management. An extensive network for flood forecasting should be established for timely warning to the settlements in the flood plains, along with the regulation of settlements and economic activity in the flood plain zones, to minimize the loss of life and property on account of floods. While physical flood protection works like embankments and dykes will continue to be necessary, the emphasis should be on non-structural measures for the minimization of losses, such as flood forecasting and warning and flood plain zoning, so as to reduce the recurring expenditure on flood relief.

6.4 … The planning of projects in hilly areas should take into account the need to provide assured drinking water, possibilities of hydropower development and the proper approach to irrigation in such areas, in the context of physical features and constraints of the basin such as steep slopes, rapid run-off and the incidence of soil erosion. The economic evaluation of projects in such areas should also take these factors into account. 19.1 Drought-prone areas should be made less vulnerable to droughtassociated problems through soil moisture conservation measures, water harvesting practices, minimisation of evaporation losses, development of the ground water potential including

This should lead the way for essential legislation on water governance in every State of the Union and devolution of necessary authority to the lower tiers of government to deal with the local water situation. 3.5 In the water rich eastern and north eastern regions of India, the water use infrastructure is weak and needs to be strengthened in the interest of food security. 4.4 … The specific problems of hilly areas like sudden run off, weak water holding capacity of soil, erosion and sediment transport and recharging of hill slope aquifers should be adequately addressed. 8.4 Environmental needs of Himalayan regions, aquatic eco-system, wet lands and embanked flood plains need to be recognized and taken into consideration while planning. (Continued)

Right to Water in India’s national water policies  115

NWP 1987

Component of management

NWP 1987

NWP 2002

NWP 2012

18.1 Drought-prone areas should be made less vulnerable to drought associated problems through soil-moisture conservation measures, water harvesting practices, the minimization of evaporation losses, and the development of the ground water potential and the transfer of surface water from surplus areas where feasible and appropriate. Pastures, forestry or other modes of development which are relatively less water demanding should be encouraged. In planning water resource development projects, the needs of drought-prone areas should be given priority.

recharging and the transfer of surface water from surplus areas where feasible and appropriate. Pastures, forestry or other modes of development which are relatively less water demanding should be encouraged. In planning water resource development projects, the needs of drought-prone areas should be given priority. 21.1 The water sharing/ distribution amongst the states should be guided by a national perspective with due regard to water resources availability and needs within the river basin. Necessary guidelines, including for water short states even outside the basin, need to be evolved for facilitating future agreements amongst the basin states.

11.1 There is a need to remove the large disparity between stipulations for water supply in urban areas and in rural areas. Efforts should be made to provide improved water supply in rural areas with proper sewerage facilities. Least water intensive sanitation and sewerage systems with decentralized sewage treatment plants should be incentivized. 12.1 There should be a forum at the national level to deliberate upon issues relating to water and evolve consensus, co-operation and reconciliation amongst party States. A similar mechanism should be established within each State to amicably resolve differences in competing demands for water amongst different users of water, as also between different parts of the State.

116  Right to Water in India’s national water policies

Table 4.8  Continued

Right to Water in India’s national water policies  117 resource availability and to fulfil the needs of different river basins, water sharing among different states should be guided by a national perspective (21.1). Like the NWPs of 1987 and 2002, the NWP of 2012 states that the objective of the national water policy is to propose a Framework and plan of action with a unified national perspective (1.1). While emphasising the requirement of a national perspective in water resource planning, the policy suggests having a legislation on water governance. The policy insists that to improve management of water resources, devolution of necessary authority at each level is essential. In respect of water management, the lower tiers of government should be allowed to handle local water situation (2.1). The policy importantly prioritises the needs of the hilly areas and focuses on the environmental needs of the Himalayan regions and the requirements of wetlands and embanked flood plains (4.4 and 8.4). The policy urges that there is a need to remove the larger disparity between stipulations for water supply in rural and urban areas (11.1). While focusing on the requirement of strong infrastructure, the policy accepts that the water use infrastructure of the water-rich eastern and north-eastern regions is weak and needs to be revived in the interest of food security (3.5). Claim 8: All three policies have considered water as a national resource and have stressed addressing of regional requirements. In the federal setups, a national water policy requires framing with a national perspective and while so doing, it should also address regional requirements. In this request, India’s three national water policies are likely to fulfil these conditions, as all three policies hold a national perspective and stress on addressing the regional requirements that are specific and different from region to region. The explanations drawn in different sections of the national policies are important and are close to the principle of Right to Water, as they propose to ensure availability and accessibility of drinking water in all situations and to the regions facing the problem of water shortage. Suggestions like transferring water from one source to another in the national water policies of 1987 and 2002 indicate that the policies have considered water resources as national resources, over which each individual and state has an equal right.19 Since equal claim over water resources is one of the features of the idea of Right to Water, one can say that the policies fulfil one criteria of Right to Water. 4.3.3 Mechanisms to facilitate, protect and promote right to water to all The idea of water freedom and water equality, which is argued in Chapter 2 and is principled in the water policy analysis guiding the Framework, insists that an ideal water policy should suggest measures to

118  Right to Water in India’s national water policies facilitate, protect and promote water as a right to all. It is to note that the three terms, i.e., facilitate, protect and promote, are the key ideas of the concept of Right to Water, each of which holds an extensive meaning, and all three of which link to each other. Since the terms denote taking positive (facilitate and promote) and negative (protect) actions, it is essential to describe and argue whether the meanings of these terms are understood in the reference of Right to Water and if placed in India’s national water policies.20 4.3.3.1 Offerings of the three policies: Analysis of the table Table 4.9 draws that the three national water policies, while providing details on the various sections of the policies, concerning with the idea of “to facilitate” focuses on the fiscal aspect of water management. The structures offered in this regard emphasise mainly three things, i.e. to draw benefits (NWP 1987: 4.7), to prepare a budget (NWP 1987: 5.1 and 2002: 23.1) and to incentivise efficiency (NWP 2012: 6.4). The NWP of 1987 suggests drawing of benefits from irrigation projects (NWP of 4.7). To attain the desired benefits, the policy insists that the underfunding of the projects should be obviated by an optimal allocation of resources. To ensure effective results, the NWPs of 1987 and 2002 both focus on the creation of effective structures and systems and insist upon maintaining an annual budget (NWP 1987: 5.1; NWP 2002: 22) and reallocating of funds to ensure the massive investments (NWP 2002: 23.1). The NWP of 2002 gives special focus on financial sustainability of the existing water facilities. The policy, in this respect, insists that water charges for various uses should be fixed to cover at least the operation and maintenance charges of providing the services initially, and a part of the capital costs subsequently (11). The provisions of the NWP of 2012 are diverse and include important aspects of financial management of water resources. The policy emphasises efficient and economic use of water resources (6.4), and while so doing, it focuses on well-structured finance planning. To ensure high priority in water allocation and to control water wastage, the policy insists upon following the principle of differential pricing (7.4). The provisions of the policy have made the Water Users Association an important and key organisation. The policy advocates the empowerment of this Association to collect and retain a portion of water charges and further allows it freedom to fix water rates (7.5). The policy integrates urban water supply and sewerage and insists that water supply bills should include sewerage charges (11.5). The three national water policies advocate “protection” of water and consider water quality, water conservation, water reuse and recycling of water as important parts of water management; and, to protect water resources, stresses for improvements in existing strategies (NWP 1987: 1.7; NWP 2002: 1.9; NWP 2012: 8.6).

Table 4.9  Mechanisms to Facilitate, Protect and Promote Right to Water to All NWP1987

NEP 2002

NEW 2012

Facilitate positive measures and strategies to enable people to fulfil right to water, discussion with reference to financial affordability

4.7 Time and cost overruns and deficient realization of benefits characterizing most irrigation projects should be overcome by upgrading the quality of project preparation and management. The under-funding of projects should be obviated by an optimal allocation of resources, having regard to the early completion of on-going projects as well as the need to reduce regional imbalances. 5.1 Structures and systems created through massive investments should be properly maintained in good health. Appropriate annual provisions should be made for this purpose in the budgets.

11. Besides creating additional water resources facilities for various uses, adequate emphasis needs to be given to the physical and financial sustainability of existing facilities. There is, therefore, a need to ensure that the water charges for various uses should be fixed in such a way that they cover at least the operation and maintenance charges of providing the service initially and a part of the capital costs subsequently. These rates should be linked directly to the quality of service provided The subsidy on water rates to the disadvantaged and poorer sections of the society should be well targeted and transparent. 22 … Therefore, allocation of funds under the water resources sector should be reprioritised to ensure that the needs for development as well as operation and maintenance of the facilities are met. 23.1 Structures and systems created through massive investments should be properly maintained in good health. Appropriate annual provisions should be made for this purpose in the budget

6.4 Project financing should be structured to incentivize efficient & economic use of water and facilitate early completion of ongoing projects. 7.4 The principle of differential pricing may be retained for the pre-emptive uses of water for drinking and sanitation; and high priority allocation for ensuring food security and supporting livelihood for the poor. Available water, after meeting the above needs, should increasingly be subjected to allocation and pricing on economic principles so that water is not wasted in unnecessary uses and could be utilized more gainfully 7.5 Water Users Associations (WUAs) should be given statutory powers to collect and retain a portion of water charges, manage the volumetric quantum of water allotted to them and maintain the distribution system in their jurisdiction. WUAs should be given the freedom to fix rates subject to floor rates determined by WRAs. 11.5 Urban water supply and sewage treatment schemes should be integrated and executed simultaneously. Water supply bills should include sewerage charges.

(Continued)

Right to Water in India’s national water policies  119

Component of Management Strategy

Component of Management Strategy

NWP1987

NEP 2002

NEW 2012

Protect: against abuses of third parties, free from pollution and wastage, reuse and recycle and conservation of water

1.7 Another important aspect is water quality. Improvements in existing strategies and the innovation of new techniques resting on a strong science and technology base will be needed to eliminate the pollution of surface and ground water resources, to improve water quality and to step up the recycling and re-use of water. Science and technology and training have also important roles to play in water resources development in general. 3.5 Recycling and re-use of water should be an integral part of water resource development.

1.9 Another important aspect is water quality. Improvements in existing strategies, innovation of new techniques resting on a strong science and technology base are needed to eliminate the pollution of surface and ground water resources, to improve water quality. Science and technology and training have to play important roles in water resources development and management in general. 3.2 Nonconventional methods for utilisation of water such as through inter-basin transfers, artificial recharge of ground water and desalination of brackish or sea water as well as traditional water conservation practices like rainwater harvesting, including roof-top rainwater harvesting, need to be practiced to further increase the utilisable water resources. Promotion of frontier research and development, in a focused manner, for these techniques is necessary.

1.3 (ix) Water quality and quantity are interlinked and need to be managed in an integrated manner, consistent with broader environmental management approaches inter-alia including the use of economic incentives and penalties to reduce pollution and wastage. 5.2 The availability of water is limited but the demand of water is increasing rapidly due to growing population, rapid urbanization, rapid industrialization and economic development. Therefore, availability of water for utilization needs to be augmented to meet increasing demands of water. Direct use of rainfall, desalination and avoidance of inadvertent evapotranspiration are the new additional strategies for augmenting utilizable water resources. 5.4 Declining ground water levels in overexploited areas need to be arrested by introducing improved technologies of water use, incentivizing efficient water use and encouraging community based management of aquifers. In addition, where necessary, artificial recharging projects should be undertaken so that extraction is less than the recharge. This would allow the aquifers

120  Right to Water in India’s national water policies

Table 4.9  Continued

NWP1987

NEP 2002

NEW 2012

Promotion: Raise awareness of right to water through information and education

15. The efficiency of utilisation in all the diverse uses of water should be improved and an awareness of water as a scarce resource should be fostered. Conservation consciousness should be promoted through education, regulation, incentives and disincentives. 20. A perspective plan for standardized training should be an integral part of water resource development. It should cover training in information systems, sector planning, project planning and formulation, project management, operation of projects and their physical structures and systems and the

1.8 … The drinking water needs of people and livestock have also to be met. Domestic and industrial water needs have largely been concentrated in or near major cities. However, the demand in rural areas is expected to increase sharply. … As a result, water, which is already a scarce resource, will become even scarcer in future. This underscores the need for the utmost efficiency in water utilisation and a public awareness of the importance of its conservation. 16.1 Efficiency of utilisation in all the diverse uses of water should be optimised and an awareness of water as a scarce resource should be fostered. Conservation consciousness should be promoted through education, regulation, incentives and disincentives.

to provide base flows to the surface system, and maintain ecology 5.6 Integrated Watershed development activities with groundwater perspectives need to be taken in a comprehensive manner to increase soil moisture, reduce sediment yield and increase overall land and water productivity. To the extent possible, existing programs like MGNREGA may be used by farmers to harvest rain water using farm ponds and other soil and water conservation measures. 6.3 Recycle and reuse of water, including return flows, should be the general norm. 8.5 Sources of water and water bodies should not be allowed to get polluted. System of third party periodic inspection should be evolved and stringent punitive actions be taken against the persons responsible for pollution. 8.6 Quality conservation and improvements are even more important for ground waters, since cleaning up is very difficult. It needs to be ensured that industrial effluents, local cess pools, residues of fertilizers and chemicals, etc., do not reach the ground water. (Continued)

Right to Water in India’s national water policies  121

Component of Management Strategy

Component of Management Strategy

NWP1987

management of the water distribution systems. The training should extend to all the categories of personnel involve in these activities as also the farmers.

NEP 2002

NEW 2012

11.6 Industries in water short regions may be allowed to either withdraw only the make-up water or should have an obligation to return treated effluent to a specified standard back to the hydrologic system. Tendencies to unnecessarily use more water within the plant to avoid treatment or to pollute ground water need to be prevented. 11.7 Subsidies and incentives should be implemented to encourage recovery of industrial pollutants and recycling/reuse, which are otherwise capital intensive. 3.1 Water is required for domestic, agricultural, hydro power, thermal power, navigation, recreation, etc. Utilisation in all these diverse uses of water should be optimized and an awareness of water as a scarce resource should be fostered. 3.6 Community should be sensitized and encouraged to adapt first to utilization of water as per local availability of waters, before providing water through long distance transfer.

122  Right to Water in India’s national water policies

Table 4.9  Continued

Right to Water in India’s national water policies  123 The provisions of the NWP of 1987 intended to improve water quality and to control water pollution; the policy focuses on the use of science and technology (1.7). The policy insists on protecting water resources by recycling and reusing water. For the policy, the process is important because it is an integral part of water resource development (3.5). The NWP of 2002 is indeed an improved version of the NWP of 1987, which suggests the use of non- conventional methods for utilisation of water and use of traditional methods of water conservation (3.2). To maintain water quality, the policy initially stresses the use of science and technology and then focuses on other aspects that are essential to ensure quality of water (1.9). The policy, while doing so, emphasises monitoring the ground and surface water (14.1) and adopting the principle of polluter pays (14.4). To preserve water resources, the policy realises the need of legislation (14.5) and stresses adoption of measures like selective linings in the conveyance system and rehabilitation of existing systems including tanks, recycling and re-use of treated effluents (16.2). The NWP of 2012, while focusing on issues concerning water quality management, points that quality is actually linked with quantity and so needs to be managed in an integrated manner, with the use of environmental approaches (1.3 (ix)). To maintain the quality, the policy insists that sources of water and water bodies should not be allowed to pollute and the action of water pollution must be punished (8.5). The policy, to ensure quality conservation, insists upon introducing subsidies and incentives, thus presuming that doing so will encourage recovery of industrial pollutants, re-cycling and reuse of water resources (11.7) by returning flows in general norm (6.3). Importantly, the policy, instead of overemphasising the use of science and technology, suggests that to meet future requirements, focus should be on direct use of rainwater, desalination and avoidance of inadvertent evapo-transpiration (5.2). The policy suggests that farmers should harvest rainwater using farm ponds and other soil and water conservation measures (5.6). They must also make use of programs like MNREGA. The study of the sections of the three policies proposes that the policies emphasise “promotion” of awareness among the people and insist upon presenting water as a scarce resource (NWP 1987: 15; NWP 2002: 16.1; NWP 2012: 3.1). The NWP of 1987 in this view stresses on conservation consciousness and insists that the same should be promoted through education, regulation, incentives and disincentives. The policy gives importance to training and advocates that farmers should be involved in training processes (20). The NWP of 2002 explains that meeting the demands of water for various purposes requires water conservation, about which people need to be made aware through, education, regulations, incentives and disincentives (1.8 and 16.1). The NWP of 2012 repeats the requirement of public awareness and suggests that the community should be sensitised about the problem of water scarcity (3.1) and be encouraged to adopt first utilisation of water as per local availability of water (3.6).

124  Right to Water in India’s national water policies Claim 9: The three national water policies suggest for the facilitation, protection and promotion of water and water resources. However, they do not clearly do so in the context of Right to Water. To ensure an individual’s rights over water resources, the government has a constant duty to fulfil the right, should take positive measures and introduce policy actions which enable people to use water as their right. For this purpose, governments (Union, state and local) have to facilitate, protect and promote water resources and water bodies. At the policy level of management, such positive measures should focus on two things. Firstly, the government’s policy has to ensure that price of water use should be within the reach of commons and people should be made aware about their rights over water resources.21 The negative measures, on the other hand, urge that the government should protect water from pollution, from wastage, and from abuse by a third party (mainly a consequence of privatisation). It is to note that the three policies suggest facilitation, protection and promotion of water resources, but they do not clearly do so in the context of the idea of Right to Water. In fact, the facilitating measures with respect to financial accessibility are quite disappointing. The sections of NWP of 1987 explain the requirement of financial management with regard to budget and efficiency but do not suggest how financial accessibility of water will be ensured for the commons. The NWP of 2002 in comparison to the NWP of 1987 is better, as it suggests fixing of water charges and stresses subsidisation of the same for the poor and disadvantaged sections of society. However, the fundamental question remains as to how even a subsidy on a resource like water, which one has to use daily, will help the poor. The NWP of 2012 suggests ensuring of financial accessibility of individuals and insists upon following the principle of differential water pricing. However, the idea to retain water pricing for the pre-emptive uses of water is quite confusing, as the meaning of the retention here is not clear. The policies appear relatively clear on issues like protection of water resources, as they all emphasise maintenance of the quality of water resources and suggest taking actions against water polluters. However, the principle of polluters should pay can be conveniently misinterpreted as permission to pollute and pay. The policies have emphasised the requirement of water conservation, reuse and also recycling, which indeed is a tool to preserve water for future generations. Similarly, the policies suggest taking measures to promote awareness about water resources; however, the initiatives suggested are not right oriented. The purpose of the awareness programs proposed in the policies is to educate and train people, to conserve and use water wisely, as it is a scarce resource. The intention of such education is not to make people aware that having water for drinking and domestic purposes is their claimable right. In

Right to Water in India’s national water policies  125 the given situation, it remains doubtful if the purpose of public awareness will be achieved, as the awareness does not speak of water as the basic right of the people. The management strategies offered by the three water policies emphasise facilitation, protection and promotion of water resources. However, the same is not suggested with reference to Right to Water. Unfortunately, the three policies nowhere suggest facilitating, protecting and promoting water resources as a right of individuals. 4.3.4 Mechanisms to ensure efficiency with absence of monopoly, discrimination and exploitation In the concept of Right to Water, efficiency is realised to ensure equality of water uses and between different water users. In the water management process, the term efficiency is being interpreted as absence of monopoly, discrimination and exploitation. Clearly, one more benchmark for an ideal water policy would be to suggest provisions to discourage monopoly, exploitation and discrimination and ensure efficiency in terms of equality. Obviously, an expectation from India’s national water policies, while referring to management strategies, is that recommendations offered by them will ensure absence of monopoly, discrimination and exploitation. 4.3.4.1 Offerings of the three policies: Analysis of the table Table 4.10 presents that the national water policies of India widely emphasise the requirement of efficiency in water management and narrowly arrange to ensure absence of monopoly, discrimination and exploitation in the same. The three national water policies in this view stress the requirement of efficiency in water utilisation (NWP 1987: 1.6; NWP 2002: 16.1) and insist avoid wastage (NWP 2012: 1.3 (viii)). The NWP of 1987 explains an urgent requirement of efficiency in water planning and management, as demand for water at that time was expected to increase sharply in future (1.6). The policy emphasises overcoming deficits in irrigation planning and suggests that underfunding of projects should be obviated by optimal allocation of water resources (4.7). The policy advocates zoning of water resources of the country as well as for economic activities to be guided and regulated accordingly (14). The NWP of 2002, like the NWP of 1987, advocates for the efficient use of water and stresses upon encouraging people‘s awareness through education (16.1). The policy suggests for water zoning of water resources and while so suggesting, insists for planned economic development and activities including agriculture, industrial and urban development (15). The policy, to improve efficiency, emphasises the creation and expansion of water resources and places stress upon reprioritising the allocation of funds so that the needs for development as well as operation and management of the facilities can be met (22). To maintain efficiency, the NWP of 2012 has multiple suggestions. The policy, while focusing on the problem of water stress, explains that water availability is

Component of Management

NWP 1987

NWP 2002

NEP2012

Efficiency (saving water and use of water resources in context of maximum use without wastage, with appropriate priorities and water equality)

1.6 … The demand for water for Hydro & Thermal power generation and for other industrial uses is also likely to increase substantially. As a result what which is already a scarcer in future. This underscores the need for the utmost efficiency in water utilisation and a public awareness of the importance of its conservation. 4.7 Time and cost overruns and deficient realization of benefits characterizing most irrigation projects should be overcome by upgrading the quality of project preparation and management. The underfunding of projects should be obviated by an optimal allocation of resources, having regard to the early completion of on-going projects as well as the need to reduce regional imbalances.

15. Economic development and activities including agricultural, industrial and urban development, should be planned with due regard to the constraints imposed by the configuration of water availability. There should be a water zoning of the country and the economic activities should be guided and regulated in accordance with such zoning. 16.1 Efficiency of utilisation in all the diverse uses of water should be optimised and an awareness of water as a scarce resource should be fostered. Conservation consciousness should be promoted through education, regulation, incentives and disincentives.

1.3 (viii) Given the limits on enhancing the availability of utilizable water resources and increased variability in supplies due to climate change, meeting the future needs will depend more on demand management, and hence, this needs to be given priority, especially through (a) evolving an agricultural system which economizes on water use and maximizes value from water, and (b) bringing in maximum efficiency in use of water and avoiding wastages. 4.3 The adaptation strategies could also include better demand management, particularly, through adoption of compatible agricultural strategies and cropping patterns and improved water application methods, such as land leveling and/or drip/sprinkler irrigation as they enhance the water use efficiency, as also, the capability for dealing with increased variability because of climate change. Similarly, industrial processes should be made more water efficient. 6.1 A system to evolve benchmarks for water uses for different purposes, i.e., water footprints, and water auditing should be developed to promote and incentivize efficient use of water. The “project” and the “basin” water use efficiencies need to be improved through continuous water balance and water accounting studies. An institutional arrangement for promotion,

126  Right to Water in India’s national water policies

Table 4.10  Efficiency with Absence of Monopoly, Discrimination and Exploitation

Component of Management

NWP 2002

NEP2012

14. Economic development and activities including agricultural, industrial and urban development, should be planned with due regard to the constraints imposed by the configuration of water availability. There should be a water zoning of the country and the economic activities should be guided and regulated in accordance with such zoning.

22. There is an urgent need of paradigm shift in the emphasis in the management of water resources sector. From the present emphasis on the creation and expansion of water resources infrastructures for diverse uses, there is now a need to give greater emphasis on the improvement of the performance of the existing water resources facilities. Therefore, allocation of funds under the water resources sector should be reprioritised to ensure that the needs for development as well as operation and maintenance of the facilities are met.

regulation and evolving mechanisms for efficient use of water at basin/sub-basin level will be established for this purpose at the national level. 6.5 Water saving in irrigation use is of paramount importance. Methods like aligning cropping pattern with natural resource endowments, micro irrigation (drip, sprinkler, etc.), automated irrigation operation, evaporation transpiration reduction, etc., should be encouraged and incentivized. Recycling of canal seepage water through conjunctive ground water use may also be considered. 6.6 Use of very small local level irrigation through small bunds, field ponds, agricultural and engineering methods and practices for watershed development, etc, need to be encouraged. However, their externalities, both positive and negative, like reduction of sediments and reduction of water availability, downstream, may be kept in view. 9.5 All components of water resources projects should be planned and executed in a pari-passu manner so that intended benefits start accruing immediately and there is no gap between potential created and potential utilized. 9.7 All water resources projects, including hydro power projects, should be planned to the extent feasible as multi-purpose projects with provision of storage to derive maximum benefit from available topology and water resources. (Continued)

Right to Water in India’s national water policies  127

NWP 1987

Table 4.10  Continued NWP 1987

NWP 2002

NEP2012

Measures to ensure absence of monopoly, exploitation and discrimination

7.2 Exploitation of ground water resources should be so regulated as not to exceed the recharging possibilities, as also to ensure social equity. Ground water recharge projects should be developed and implemented for augmenting the available supplies. 7.3 Integrated and coordinated development of surface water and ground water and their conjunctive use, should be envisaged right from the project planning stage and should form an essential part of the project. 7.4 Over exploitation of ground water should be avoided near the coast to prevent ingress of sea water into sweet water aquifers

7.2 Exploitation of ground water resources should be so regulated as not to exceed the recharging possibilities, as also to ensure social equity. The detrimental environmental consequences of overexploitation of ground water need to be effectively prevented by the Central and State Governments. Ground water recharge projects should be developed and implemented for improving both the quality and availability of ground water resource. 21.1 The water sharing/ distribution amongst the states should be guided by a national perspective with due regard to water resources availability and needs within the river basin. Necessary guidelines, including for water short states even outside the basin, need to be evolved for facilitating future agreements amongst the basin states.

5.4 Declining ground water levels in overexploited areas need to be arrested by introducing improved technologies of water use, incentivizing efficient water use and encouraging community based management of aquifers. In addition, where necessary, artificial recharging projects should be undertaken so that extraction is less than the recharge. This would allow the aquifers to provide base flows to the surface system, and maintain ecology. 8.2 Encroachments and diversion of water bodies (like rivers, lakes, tanks, ponds, etc.) and drainage channels (irrigated area as well as urban area drainage) must not be allowed, and wherever it has taken place, it should be restored to the extent feasible and maintained properly.

128  Right to Water in India’s national water policies

Component of Management

Right to Water in India’s national water policies  129 limited, and that meeting future requirement of water requires the adoption of compatible agriculture strategies (4.3). The policy emphasises having water-efficient irrigation systems and developing efficiency, and it suggests the use of very small local-level irrigation through small bunds, field ponds, agriculture and engineering methods (6.6). The policy, while considering the limitation of water resources, emphasises economising water uses, urges for efficient industrial processes (1.3 (viii)) and insists upon deriving maximum benefits from available topology and water resources (9.7). To increase efficiency in water use, the policy proposes to evolve a system of benchmark for water footprints and water auditing (6.1) and emphasises on adopting methods as aligning cropping patterns with natural resources endowments, micro irrigation and evaporation transpiration (6.5). The policy further suggests that all components of water resources projects should be planned and executed in a pari-passu manner (9.5). In the three water policies, monopoly and discrimination, water management processes are viewed with reference to river basins, and exploitation is discussed with reference to ground water. The NWP 1987 advocates for integration and co-ordination mainly for the development of surface and groundwater (7.3) and stresses that overexploitation of groundwater should be avoided, especially near the coast (7.4). The policy suggests that a groundwater recharge project should be developed and implemented for augmenting the available supplies and while doing so must ensure social equity (7.2). Significantly, there is a suggestion to ensure absence of monopoly and discrimination. The proposals of NWP of 2002 are more or less the same. The policy, while suggesting prevention of exploitation of groundwater, focuses on environmental consequences and insists that preventive measures should be taken at both the central and state levels (7.2). The policy, in this view, emphasises equal water sharing among states and suggests the creation of necessary guidelines for the same (21.1). The NWP of 2012, like the previous two water policies, calls for arresting over-exploitation and suggests undertaking of an artificial recharging project (5.4). The policy proposes that encroachments, diversion of water bodies and drainage channels should not be allowed (8.2). Claim 10: The three national water policies, while proposing measures to prevent exploitation of water resources, unfortunately, ignores discrimination, monopoly and efficiency with respect to water equality. The meaning of Right to Water explains that a claim of individual rights over water resources creates a condition where efficiency is ensured and monopoly, discrimination and exploitation are prevented. Since fulfilment of right to water is not possible until such conditions are attained, it is

130  Right to Water in India’s national water policies essential for a policy document to integrate the principle of equality as efficiency and discourage discrimination, monopoly and exploitation. In this respect, the three national water policies propose measures to prevent exploitation of water resources and fulfil the idea of Right to Water. However, in the management process, the requirement to ensure absence of discrimination and monopoly, and to achieve efficiency with respect to water equality, has been ignored. Hence, the claim of the national water policies that the purpose of water policies is to make water available to all is doubtful. This is because the proposed efficiency in water management process focuses on maximum utilisation and not maximum and equal water supply. This creates a doubt as to whether the referred priority orders will be followed in policy implementation. For instance, the NWP of 2012 proposes multiple improvements to prevent water wastage and suggests efficient water use for irrigation and domestic purposes, but at the same time has not ensured that the water that is saved will be supplied efficiently (in the purpose of equality) for domestic uses. Since the policies emphasise efficiency without measuring for indicators like monopoly and discrimination, there is a concern that water, in the name of efficiency, will be controlled by few (as in the water management processes, the policies encourage involvement of the private sector) and there will be discrimination in the water supply. The threat is that only those who can pay will be entitled to have water. The situation can be grimmer, as the policies are silent on the question on how monopolisation of water resources and discrimination in water supply will be prevented. Here, it is essential to note that the idea of Right to Water emerged as an argument against maximum utilisation and benefits as it leads to neoliberalism, the principles of which cannot ensure water equality. In the view of this reality, efficiency of institutions should not be limited to the maximum use of water resources. However, efficiency with respect to Right to Water should be seen as an absence of dominance, monopoly and discrimination. Remarkably, in the three national water policies, such an important factor is missing, and so it is difficult to accept that India’s national policies hold the value of right to water. In all three policies, the exploitation of ground and surface water is considered as a serious problem, and therefore, strict measures are suggested for controlling it. The policies here sound in favour of right to water, as they value the idea of preservation of groundwater and surface water. In this regard, the suggestion made by NWPs of 1987 and 2002 are important, as they emphasise that in recharging water projects concerned with groundwater development, social equity should be ensured. 4.3.5 Measures to ensure accountability, transparency and people's participation Chapter 2 of this book has explained that the implementation of right to water requires that institutions be accountable to the people and transparent in their functioning.22 That chapter emphasised that in the process of

Right to Water in India’s national water policies  131 water management, involvement of people in planning and decision-making is a must. A policy measure offered by the Framework in this respect insists that a policy document should establish institutions and mechanisms that are accountable and transparent in water planning and water management and are interested and capable of allowing people’s participation in decision-making. The establishment of institutions like these is essential as functioning of these institutions obligates water supplier authorities (both public and private) to ensure easy accessibility of information and participation of the commons in decision-making.23 4.3.5.1 Offerings of the three policies: Analysis of the table Table 4.11 clarifies that in the three national water policies accountability is explained in the reference of safety of dam and project reviewing and assessment of water uses (NWP of 1987; 6, NWP of 2002; 24 and NWP of 2012; 6.2). The NWP of 1987 stresses on having organisational structures at the national as well as the state level, the purpose of which is to ensure the safety of storage dams and other water-related structures (6). The NWP of 2002 repeats the idea and, while doing so, suggests the enactment of dam safety legislation and advocates ensuring proper inspection, maintenance and surveillance of existing dams (24). The NWP of 2012 has expanded the idea of accountability with reference to assessment and reviews. The policy, while suggesting these, insists on project appraisal and environmental impact assessment for water uses (6.2). The policy emphasises improvement of service delivery on a sustainable basis. To attain the objectives, the policy suggests a public–private partnership and insists on penalties for failure to deliver adequate water service. The policy clarifies that water suppliers are fully accountable to democratically elected local bodies (12.3). It further suggests ensuring appropriate institutional arrangements to collect and collate all data on a regular basis and preparing a water budget and water accounts on the hydrologic balances (12.5). Further in all three national water policies, transparency in water resource management is proposed with reference to information systems (NWP 1987: 2; NWP 2002: 2.1; NWP 2012: 1.3 (iii)). The NWP of 1987 emphasises that water availability data should be exchanged between different parties and duplication in this regard must be avoided (2). The policy, while focusing on water availability data, insists that future demands for water for diverse purposes should be well projected by the systems (2). Importantly, to achieve the goals, the policy proposes a standardised national information system with a network of quality data banks and databases (2). The NWP of 2002, like the NWP of 1987, stresses the establishment of quality data banks (2.1) and while so suggesting, called for adoption of standards for coding, classification and processing of data and method for data collection (2.2). The policy advocates for the advancement of information technology and focuses on promotion of free exchange of data

Component of Management

NWP 1987

NWP 2002

NEP2012

Accountability to establish security systems

6. There should be proper organizational arrangements at the national and state levels for ensuring the safety of storage dams and other water-related structures. The central guidelines on the subject should be kept under constant review and periodically updated and reformulated.

24. There should be proper organisational arrangements at the national and state levels for ensuring the safety of storage dams and other water related structures consisting of specialists in investigation, design, construction, hydrology, geology, etc. A dam safety legislation may be enacted to ensure proper inspection, maintenance and surveillance of existing dams and also to ensure proper planning, investigation, design and construction for safety of new dams. The Guidelines on the subject should be periodically updated and reformulated. There should be a system of continuous surveillance and regular visits by experts.

6.2 The project appraisal and environment impact assessment for water uses, particularly for industrial projects, should, inter-alia, include the analysis of the water footprints for the use 12.3 … For improved service delivery on sustainable basis, the State Governments/urban local bodies may associate private sector in public private partnership mode with penalties for failure, under regulatory control on prices charged and service standards with full accountability to democratically elected local bodies. 12.5 Appropriate institutional arrangements for each river basin should be developed to collect and collate all data on regular basis with regard to rainfall, river flows, area irrigated by crops and by source, utilizations for various uses by both surface and ground water and to publish water accounts on ten daily bases every year for each river basin with appropriate water budgets and water accounts based on the hydrologic balances. In addition, water budgeting and water accounting should be carried out for each aquifer.

132  Right to Water in India’s national water policies

Table 4.11  Measures to Ensure Accountability, Transparency, and People's Participation

NWP 1987

NWP 2002

NEP2012

Transparency, i.e. sharing information with the people

2. The prime requisite for resource planning is a well developed information system. A standardized national information system should be established with a network of data banks and data bases, integrating and strengthening the existing Central and State level agencies and improving the quality of data and the processing capabilities. There should be free exchange of data among the various agencies and duplication in data collection should be avoided. Apart from the data regarding water availability and actual water use, the system should also include comprehensive and reasonably reliable projections of future demands for water for diverse purposes.

2.1 A well developed information system, for water related data in its entirety, at the national/state level, is a prime requisite for resource planning. A standardised national information system should be established with a network of data banks and data bases, integrating and strengthening the existing Central and State level agencies and improving the quality of data and the processing capabilities. 2.2 Standards for coding, classification, processing of data and methods/procedures for its collection should be adopted. Advances in information technology must be introduced to create a modern information system promoting free exchange of data among various agencies. Special efforts should be made to develop and continuously upgrade technological capability to collect, process and disseminate reliable data in the desired time frame.

1.3. (iii) Good governance through transparent informed decision making is crucial to the objectives of equity, social justice and sustainability. Meaningful intensive participation, transparency and accountability should guide decision making and regulation of water resources. 11.3 Urban domestic water systems need to collect and publish water accounts and water audit reports indicating leakages and pilferages, which should be reduced taking into due consideration social issues. 12.5 Appropriate institutional arrangements for each river basin should be developed to collect and collate all data on regular basis with regard to rainfall, river flows, area irrigated by crops and by source, utilizations for various uses by both surface and ground water and to publish water accounts on ten daily basis every year for each river basin with appropriate water budgets and water accounts based on the hydrologic balances. In addition, water budgeting and water accounting should be carried out for each [aquifer].

(Continued)

Right to Water in India’s national water policies  133

Component of Management

Component of Management

NWP 1987

NWP 2002

NEP2012

People’s participation

12. Efforts should be made to involve farmers progressively in various aspects of management of irrigation systems, particularly in water distribution and collection of water rates. Assistance of voluntary agencies should be enlisted in educating the farmers in efficient water use and water management.

6.8 The involvement and participation of beneficiaries and other stakeholders should be encouraged right from the project planning stage itself. 12. Management of the water resources for diverse uses should incorporate a participatory approach; by involving not only the various governmental agencies but also the users and other stakeholders, in an effective and decisive manner, in various aspects of planning, design, development and management of the water resources schemes. Necessary legal and institutional changes should be made at various levels for the purpose, duly ensuring appropriate role for women. Water Users’ Associations and the local bodies such as municipalities and gram panchayats should particularly be involved in the operation, maintenance and management of water infrastructures/facilities at appropriate levels progressively,

1.3(iii) Good governance through transparent informed decision making is crucial to the objectives of equity, social justice and sustainability. Meaningful intensive participation, transparency and accountability should guide decision making and regulation of water resources. 3.6 … Community based water management should be institutionalized and strengthened. 5.3 There is a need to map the aquifers to know the quantum and quality of ground water resources (replenishable as well as nonreplenishable) in the country. This process should be fully participatory involving local communities. This may be periodically updated. 8.1 Conservation of rivers, river corridors, water bodies and infrastructure should be undertaken in a scientifically planned manner through community participation. 9.6 Local governing bodies like Panchayats, Municipalities, Corporations, etc., and Water Users Associations, wherever applicable, should be involved in planning of the projects. The unique needs and aspirations of the Scheduled Caste and Scheduled Tribes, women and other weaker sections of the society should be given due consideration.

134  Right to Water in India’s national water policies

Table 4.11  Continued

Component of Management

NWP 1987

NEP2012

with a view to eventually transfer the management of such facilities to the user groups/local bodies. 13. Private sector participation should be encouraged in planning, development and management of water resources projects for diverse uses, wherever feasible. Private sector participation may help in introducing innovative ideas, generating financial resources and introducing corporate management and improving service efficiency and accountability to users. Depending upon the specific situations, various combinations of private sector participation, in building, owning, operating, leasing and transferring of water resources facilities, may be considered. 23.3 Formation of Water Users’ Association with authority and responsibility should be encouraged to facilitate the management including maintenance of irrigation system in a time bound manner.

10.6 … Communities need to be involved in preparing an action plan for dealing with the flood/drought situations. 12.3 Water resources projects and services should be managed with community participation. For improved service delivery on sustainable basis, the State Governments/urban and local bodies may associate the private sector in public private partnership mode with penalties for failure.

Right to Water in India’s national water policies  135

NWP 2002

136  Right to Water in India’s national water policies among various agencies (2.2). Significantly, the NWP of 2012 links transparency with good government and insists upon sharing information related to policy decisions. The policy explains that decision-making is an important process, for attaining equity, social justice and sustainability and therefore it should be guided by intensive participation, transparency and accountability (1.3 (iii)). To maintain transparency in urban water management, the policy suggests that the urban domestic water systems should collect public water accounts and water audit reports with a purpose to reduce leakages and pilferages in due consideration of social issues (11.3). Like the NWPs of 1987 and 2002, the policy placed emphasis on the development of database of rainfall, river flows, and area irrigation by crops and by water source (12.5). Table 4.11, in the reference to people’s participation, denotes that the national policies value people’s participation and encourage participation of various communities, right from the planning stage (NWP 1987: 12; NWP 2002: 6.8; NWP of 2012: 5.3). The NWP of 1987 stresses the involvement of farmers in various aspects of management and insists upon educating them for the same (12). The NWP of 2002 calls for making institutional changes to ensure the role of women, Water User’s Associations and local bodies as municipalities and gram panchayats in decision making (12 and 23). According to the policy, involvement of the private sector in planning, development and management of water resources should be encouraged to develop innovative ideas, generate finance and improve service efficiency and accountability among water users (13). The NWP of 2002, in regard to participatory measures, is exceptionally extensive, as it advocates adoption of participatory approach in water planning. (12). The NWP of 2012, like the NWP of 2002, recommends a participatory approach in water planning and water management and explains meaningful participation as an element of good governance (1.3 (iii)). The policy, while recommending for people’s participation, insists on the mapping of aquifers (to know the quantum and quality of groundwater) (5.3) and conservation of rivers and rivers corridors (8.1). The policy proposes that the protection of all areas prone to floods and droughts should undertake thorough participation of local communities (10.6). The policy repetitively declares that local bodies like municipalities, panchayats, Water Users Association and corporates should be involved in project planning and project services (9.6 and 12.3). Clearly, for the policy, the meaning of participation is wide. It entitles governmental agencies, water users and other stakeholders to take part in decision making and comment on each aspect of management, including planning, design and development of water resources. Claim 11: In the three national water policies, the idea of accountability and people’s participation are discussed in narrow sense; at the same time, the promise of transparency is not integrated in the context of Right to Water.

Right to Water in India’s national water policies  137 The concept of Right to Water insists that entitlement of Right to Water requires institutions that are by nature accountable, transparent and accessible to people. The requirement of such institutions is global, as their establishment underpins the relationship between right holders and duty bearers and enables individuals and communities to understand who right holders are and what their rights are with regard to water uses (Danish Institute, 2014). In the three national water policies, value of accountability has been considered but is explained in a narrow sense. The policies discuss the idea merely in the context of dam and environmental safety, project review and assessment of water uses. Since accountability of institutions is not defined with reference to right to water, the relationship between water suppliers as duty bearers and water users as right holders is difficult to identify. This is because the required accountability is defined in a confused manner. For instance, the NWP of 2012, while drawing attention to the requirement for improving delivery services, insists that water supplier parties should be accountable; however, accountability of water supplier parties surprisingly is not towards the people to whom water is being supplied, but towards the democratically elected people. Since the policy encourages public–private partnership in water management, the accountability towards democratically elected people will lead to corruption. There is a strong possibility that the elected people will not impose penalties for the failure of meeting accountability because, as per the provisions of public–private partnership, they themselves could be the water suppliers and therefore an interested party. The promises given by the three water policies pinpoint that they endorse the requirement of transparency in water resource management; however, it is difficult to state if the same is integrated in the context of the idea of Right to Water. Doubt has developed against the background of the various sections of the policies, which insist upon establishing the national information system with a network of quality data banks and databases. The proposals to adopt standards for coding, classification, processing of data and method and promotion of free exchange of data are incomplete because data sharing is limited to various agencies. The policies do not mention if the data will be accessible to the people and how. It appears that the policies, while emphasising the transfer of water banking data, focus merely on the requirements of various agencies and ignore the fact that openness of accessibility of information is necessary at the individual level as well. The policies agree upon free sharing of information on water; however, they are silent on the question of an individual’s accessibility to information. This sends a message that transparency can be claimed by agencies that are public or private water suppliers and not by individuals to whom water is actually supplied. Similar to the issue of transparency, the policies also speak of ensuring people’s participation, as Table 4.11 mentions. The policies emphasise the participatory approach of water resource management, which indeed is a positive step towards Right to Water. The three national water policies implicitly offer a list of expected participants and denote who are entitled to participate in the decision-making process. The participation

138  Right to Water in India’s national water policies implicitly entitles individuals to be a part of the decision-making process. Here, individual participation includes participation by farmers (NWP of 1987) and women (NWP of 2002), institutional participation includes the Water Users’ Association (NWPs of 1987, 2002 and 2012) and government participation comprises participation by the local government bodies as municipalities and panchayats (NWPs of 2002 and 2012). In the reference of the values of Right to Water, one can claim that in these policies, the suggestions concerning the people’s participation are fulfilled to a limited extent. With regard to people’s participation, the policies entitle different communities to be part of the decision-making process. However, it ignores specific mentions in the favor of the Scheduled Tribes and Scheduled Castes. It is quite surprising that while the Scheduled Tribes and Scheduled Castes as “community” are identified as beneficiaries of right to water, they are not included, extensively in the decision-making process and their presence is not identified, separately. Separations like such are not welcoming for a democratic state like India, but since the community identities are preferred in the distribution process, ignorance of them in decision making is surprising. This clears that the intention of the policies to involve people in decision-making is limited as people’s participation is encouraged only with reference to mega projects. It should be noted that people’s interest in big projects often does not remain constant, as their processes are time consuming and the results are felt very late. In the given arrangements, it is difficult to say if the value of people’s participation, which is a basic element of Right to Water, is integrated into India’s national water policies. 4.3.6 Measures to ensure sustainability of water resources (for future use and protection of the environment) Without sustaining water resources, there is no meaning of assurance of right to water. In this regard, the Framework emphasises that management strategies of an ideal water policy should ensure right to water as a sustainable right and preserve water resources for future generations. This implies that to preserve right to water as a permanent right, management strategies, while ensuring equal water supplies to the present generation, should also endeavour to preserve the water resources for future generations as well. Since the absence of sustainability measures questions the permanence of right to water, it is essential to explain if India’s national water policies have offered measures to sustain water resources. 4.3.6.1 Offerings of the three policies: Analysis of the table Table 4.12 shows that the preservation and sustainability of environment and water resources is the priority of India’s national water policies (NWP 1987: 4.3; NWP 2002: 1.4, 3.3, 6.3; NWP 2012: 9.2).

Table 4.12  Sustainability (for Future Use and Protection of Environment) NWP 1987

NWP 2002

NEP2012

Accountability to establish security systems

6. There should be proper organizational arrangements at the national and state levels for ensuring the safety of storage dams and other waterrelated structures. The central guidelines on the subject should be kept under constant review and periodically updated and reformulated.

24. There should be proper organisational arrangements at the national and state levels for ensuring the safety of storage dams and other water related structures consisting of specialists in investigation, design, construction, hydrology, geology, etc. A dam safety legislation may be enacted to ensure proper inspection, maintenance and surveillance of existing dams and also to ensure proper planning, investigation, design and construction for safety of new dams. The Guidelines on the subject should be periodically updated and reformulated. There should be a system of continuous surveillance and regular visits by experts.

6.2 The project appraisal and environment impact assessment for water uses, particularly for industrial projects, should, inter-alia, include the analysis of the water footprints for the use. 12.3 … For improved service delivery on sustainable basis, the State Governments/ urban local bodies may associate private sector in public private partnership mode with penalties for failure, under regulatory control on prices charged and service standards with full accountability to democratically elected local bodies. 12.5 Appropriate institutional arrangements for each river basin should be developed to collect and collate all data on regular basis with regard to rainfall, river flows, area irrigated by crops and by source, utilizations for various uses by both surface and ground water and to publish water accounts on ten daily bases every year for each river basin with appropriate water budgets and water accounts based on the hydrologic balances. In addition, water budgeting and water accounting should be carried out for each aquifer. (Continued)

Right to Water in India’s national water policies  139

Component of Management

Table 4.12  Continued NWP 1987

NWP 2002

NEP2012

Transparency, i.e. sharing information with the people

2. The prime requisite for resource planning is a well developed information system. A standardized national information system should be established with a network of data banks and data bases, integrating and strengthening the existing Central and State level agencies and improving the quality of data and the processing capabilities. There should be free exchange of data among the various agencies and duplication in data collection should be avoided. Apart from the data regarding water availability and actual water use, the system should also include comprehensive and reasonably reliable projections of future demands for water for diverse purposes

2.1 A well developed information system, for water related data in its entirety, at the national/state level, is a prime requisite for resource planning. A standardised national information system should be established with a network of data banks and data bases, integrating and strengthening the existing Central and State level agencies and improving the quality of data and the processing capabilities. 2.2 Standards for coding, classification, processing of data and methods/ procedures for its collection should be adopted. Advances in information technology must be introduced to create a modern information system promoting free exchange of data among various agencies. Special efforts should be made to develop and continuously upgrade technological capability to collect, process and disseminate reliable data in the desired time frame.

1.3. (iii) Good governance through transparent informed decision making is crucial to the objectives of equity, social justice and sustainability. Meaningful intensive participation, transparency and accountability should guide decision making and regulation of water resources. 11.3 Urban domestic water systems need to collect and publish water accounts and water audit reports indicating leakages and pilferages, which should be reduced taking into due consideration social issues. 12.5 Appropriate institutional arrangements for each river basin should be developed to collect and collate all data on regular basis with regard to rainfall, river flows, area irrigated by crops and by source, utilizations for various uses by both surface and ground water and to publish water accounts on ten daily basis every year for each river basin with appropriate water budgets and water accounts based on the hydrologic balances. In addition, water budgeting and water accounting should be carried out for each aquifers

140  Right to Water in India’s national water policies

Component of Management

NWP 1987

NWP 2002

NEP2012

People’s participation

12. Efforts should be made to involve farmers progressively in various aspects of management of irrigation systems, particularly in water distribution and collection of water rates. Assistance of voluntary agencies should be enlisted in educating the farmers in efficient water use and water management.

6.8 The involvement and participation of beneficiaries and other stakeholders should be encouraged right from the project planning stage itself. 12. Management of the water resources for diverse uses should incorporate a participatory approach; by involving not only the various governmental agencies but also the users and other stakeholders, in an effective and decisive manner, in various aspects of planning, design, development and management of the water resources schemes. Necessary legal and institutional changes should be made at various levels for the purpose, duly ensuring appropriate role for women. Water Users’ Associations and the local bodies such as municipalities and gram panchayats should particularly be involved in the operation, maintenance and management of water infrastructures / facilities at appropriate levels progressively, with a view to eventually transfer the management of such facilities to the user groups/ local bodies.

1.3(iii) Good governance through transparent informed decision making is crucial to the objectives of equity, social justice and sustainability. Meaningful intensive participation, transparency and accountability should guide decision making and regulation of water resources. 3.6 … Community based water management should be institutionalized and strengthened. 5.3 There is a need to map the aquifers to know the quantum and quality of ground water resources (replenishable as well as nonreplenishable) in the country. This process should be fully participatory involving local communities. This may be periodically updated. 8.1 Conservation of rivers, river corridors, water bodies and infrastructure should be undertaken in a scientifically planned manner through community participation. 9.6 Local governing bodies like Panchayats, Municipalities, Corporations, etc., and Water Users Associations, wherever applicable, should be involved in planning of the projects. The unique needs and aspirations of the Scheduled Caste and Scheduled Tribes, women and other weaker sections of the society should be given due consideration. (Continued)

Right to Water in India’s national water policies  141

Component of Management

Component of Management

NWP 1987

NWP 2002

NEP2012

13. Private sector participation should be encouraged in planning, development and management of water resources projects for diverse uses, wherever feasible. Private sector participation may help in introducing innovative ideas, generating financial resources and introducing corporate management and improving service efficiency and accountability to users. Depending upon the specific situations, various combinations of private sector participation, in building, owning, operating, leasing and transferring of water resources facilities, may be considered. 23.3 Formation of Water Users’ Association with authority and responsibility should be encouraged to facilitate the management including maintenance of irrigation system in a time bound manner.

10.6 … Communities need to be involved in preparing an action plan for dealing with the flood/ drought situations. 12.3 Water resources projects and services should be managed with community participation. For improved service delivery on sustainable basis, the State Governments/ urban and local bodies may associate the private sector in public private partnership mode with penalties for failure.

142  Right to Water in India’s national water policies

Table 4.12  Continued

Right to Water in India’s national water policies  143 The NWP of 1987, while focusing on preservation of the quality of environment, recommends that ecological balances should be maintained in the planning and implementation of projects (4.3). The NWP of 2002 has added into the suggestion and insists that water as a scarce and precious resource should be planned, developed and conserved in a sustainable manner (1.4). To ensure sustainability of water, the policy emphasises that plans for water resources development should have environmental considerations (3.3), and while doing so, the focus should be on the preservation of quality and sustainability of environment (1.6). The policy proposes that to minimise the adverse impact on the environment, new and effective measures should be adopted compulsorily (6.3). The policy, in this reference, suggests that each coastal state should prepare a comprehensive coastal land management programme (18.2). The NWP of 2012, like the NWP of 2002, insists that decisions related to water resource planning and implementation should determine environmental aspects (9.2) and should focus on climate change (1.3 (x)) and ecological needs of the rivers (3.3). The policy advocates that while addressing the development requirements, a portion of river flow should be kept aside to meet ecological needs to ensure that the low and high flow releases are proportional to the natural flow regime (3.3). Claim 12: In the three national water policies, the ideas like sustainability of water resources and prevention of environment damages are not clearly preferred to ensure rights of individuals over water resources. India’s national water policies have constantly focused on the sustainability of water resources and, most importantly, have suggested viewing water use activities in local geo-climatic situations (NWP of 2012). Since sustainability of water resources and assertion on environmental protection are the core aspects of the idea of Right to Water, one may believe that India’s national water policies are inclined towards the idea. However, it is essential to note that the measures to maintain sustainability have not clearly preferred to ensure rights of individuals over water resources. In fact, the policies insist on managing the developmental requirements, as noted in the NWP of 2002. Moreover, the realisation of water as a scarce resource and suggestion for effective planning with environmental considerations is incomplete. This is because the policies do not propose how so will be proposed in favour of rights of individuals over water resources. The policies are silent on the question if the arrangements to sustain water resources will ensure right to water to all. The suggestions offered by the three national water policies are relevant and are ideal for water management but are thin in context of the idea of

144  Right to Water in India’s national water policies Right to Water. In the given situation, it is difficult to state that the provisions of India’s national water policies would sustain water resources to ensure water as a right of individuals and entitle them to have and use water as their claimable right.

4.3.7 Monitoring system(s) and institution(s) (review and assessment) Monitoring is an important component of management and hence, in the Framework, the meaning and significance of monitoring are argued in the context of the idea of Right to Water. The Framework, while offering benchmarks for water management, insists that the governments (Union, state and local) have to establish mechanisms and institutions that are capable of independent monitoring. The requirement and role of monitoring institutions with regards to right to water is inarguable, as it helps to check if institutions who are obligated to supply and maintain water resources are working as per the objectives of the policy. The Framework, while explaining monitoring as an important principle of water policies, insists that without adequate monitoring authorities, entitlement of rights of individuals and communities over water resources cannot be assured.

4.3.7.1 Offerings of the three policies: Analysis of the table Table 4.13 presents that in all three national water policies, there is emphasis on monitoring and periodic reassessment of the management of water resources (NWP 1987 and NWP 2002: 7.1; and NWP 2012: 5.1). In the NWP of 1987, monitoring and reassessment of management processes are encouraged for maintaining the quality of water available (7.1 and 13) as well as to measure economic viability (7.1). The policy advocates for constant review and periodical updating and reformation. To attain the objective of monitoring, the policy purposes to have central guidelines and suggests for establishing a system of continuous surveillance and regular visits by experts (6). The NWP of 2002 is majorly a repetition of the NWP of 1987 (7.1 and 14.1). While repeating the provisions of NWP of 1987, the policy places emphasis on monitoring in the form of continuous surveillance and regular visits by experts for dam safety (24). The NWP of 2012, like the NWPs of 1987 and 2002, explains that there is a need for scientific assessment and periodic reviews of water projects (5.1), particularly for the implementation of rainwater harvesting (11.4). To fulfil the purpose of scientific reviews, the policy suggests the establishment of appropriate institutions at each river basin (12.6). For the policy, monitoring is a federal activity, and hence it proposes that monitoring should be undertaken at the central as well as at the state level (9.4).

Table 4.13  Monitoring Systems (Review and Assessment) NPW 1987

NWP 2002

NWP 2012

Monitoring systems (review and assessment)

6. … The Central guidelines on the subject should be kept under constant review and periodically updated and reformulated. There should be a system of continuous surveillance and regular visits by experts. 7.1 There should be a periodical reassessment on a scientific basis of the ground water potential, taking into consideration the quality of the water available and economic viability. 13. Both surface water and ground water should be regularly monitored for quality. A phased programme should be undertaken for improvements in water quality.

7.1 There should be a periodical reassessment of the ground water potential on a scientific basis, taking into consideration the quality of the water available and economic viability of its extraction. 14.1 Both surface water and ground water should be regularly monitored for quality. A phased programme should be undertaken for improvements in water quality. 24. A dam safety legislation may be enacted to ensure proper inspection, maintenance and surveillance of existing dams and also to ensure proper planning, investigation, design and construction for safety of new dams. The Guidelines on the subject should be periodically updated and reformulated. There should be a system of continuous surveillance and regular visits by experts.

5.1 The availability of water resources and its use by various sectors in various basin and States in the country need to be assessed scientifically and reviewed at periodic intervals, say, every five years. The trends in water availability due to various factors including climate change must be assessed and accounted for during water resources planning. 6.7 There should be concurrent mechanism involving users for monitoring if the water use pattern is causing problems like unacceptable depletion or building up of ground waters, salinity, alkalinity or similar quality problems, etc., with a view to planning appropriate interventions. 9.4 Concurrent monitoring at project, State and the Central level should be undertaken for timely interventions to avoid time and cost over-runs. 11.4 … Implementation of rainwater harvesting should include scientific monitoring of parameters like hydrogeology, groundwater contamination, pollution and spring discharges. 12.6 Appropriate institutional arrangements for each river basin should also be developed for monitoring water quality in both surface and ground waters.

Right to Water in India’s national water policies  145

Component of Management

146  Right to Water in India’s national water policies Claim 13: The national water policies emphasise effective monitoring; however, the same is not argued in favour of Right to Water. The management strategies referred to in India’s national water policies propose to establish monitoring systems. The suggestions in the policies in this respect are important, as they allow for and insist upon scientific reviews, which indeed is the requirement of time. However, findings in the context of Right to Water are disappointing. It is essential to realise that the monitoring with reference to Right to Water has altogether a different expectation from the policy documents and from management strategies. The concept denotes that monitoring should not be a dominating activity of the State but participatory and transparent in its process. Unfortunately, these two features, i.e. participation and transparency in the monitoring processes, are not found in India’s national water policies. The problems with regard to the monitoring structures are many. For instance, in the contents of the three policies, the purpose of monitoring is to ensure dam safety and preservation of groundwater resources. None of the policies encourages monitoring to ensure equal water supply. Further, the importance of monitoring for industrial uses of water is ignored, as none of the policies check if reuse/recycling of water and water conservation is ensured at the industrial level. In the three policies, the independency and effective honesty of the monitoring mechanisms to ensure right to water is in suspense. The policies advocate for establishment of monitoring mechanisms but have not proposed independent status for such mechanisms. Similarly, the policies, while proposing for the assessment of water projects, have not defined who could be considered as experts and who shall be allowed to make assessments. The policies have not suggested standards for the monitoring process, and therefore it is certain that the pattern and process of monitoring will be defined as per the convenience of the mechanisms obligated for monitoring. This may bureaucratise the whole idea in the negative senses, and practices of it will not be a favourable condition for the entitlement of right to water (in the reference of corruption, redtapism and nepotism). Since the monitoring systems referred to in the three policies have nothing to do with assurance to equal water supply, it is appropriate to say that India’s water policies, while providing for a monitoring process, actually do not fulfil the criteria of the idea of Right to Water.

4.4 Entitlement of Right to Water through Union water policies of India: a discussion To fulfil the values of Right to Water, a national water policy is required to be free from ambiguity. In this respect a perfect match of distributive and management strategies is another major prerequisite. Unfortunately, India’s three national water policies assure neither of these. This is perhaps because

Right to Water in India’s national water policies  147 the India’s national water policies are increasingly driven by populist politics (Das and Swain, 2016), here distribution strategies are too ambitious and do not match to management capacities of the administrative systems. With regard to the process of water allocation and water management, the policies propose multiple things but without the required clarity. All three policies uses superfluous words and suggest nothing that can be identified as specific. The policies are idealistic enough, but to promise water to all, instead of using the words like water “will be” available, accessible, affordable and acceptable to all, uses words like “should be”. This creates doubt as to whom the documents are obligated. Additionally, the three national water policies have given promise to each sector to be treated as priority. In the management processes, this has created multiple overlapping and has made policy goals as unrealistic. The real problem is that the goals proposed in these policies are not determined to achieve right to water and so are not effective enough to entitle water to all. Multiple examples endorse this argument, most of which are commonly noted in all three national water policies. For instance:   1. The policies offer the priority orders, but instead of maintaining the order, they follow a changeable approach, which indirectly allows to compromise the idea of Right to Water, as per the need and situation.   2. The policies (NWPs of 2002 and 2012) place stress on the principle of social justice and equity but, to maintain the same, insist upon adopting the public private partnership model, where the private sector is the real authority and is entitled to supply water and manage and maintain water resources.   3. While proposing water sufficiency to urban and rural people, the term “sufficient” is not defined. This has created a scope for water injustices as the term sufficient can be argued in different situations, differently.   4. The policies insist on maintaining minimum flow of water resources for social consideration; however, the standard of minimum flow of water and what social consideration stands for are quite undecided. Since the idea of special beneficiaries is protected in the caste line, the real threat is that the mere caste line considerations will create new communities of water have-not.   5. The policies give priority to use of water for irrigation and agricultural purposes, but whether this separates the use of water for substantive life and business is not clear.  6. The policies call for people’s awareness, especially for the farmers. However, here the purpose of their training is to make them aware about the problem of water scarcity. Unfortunately, the policy does not propose to inform them about their rights over water resources and how they can claim their right to have water.   7. On one hand, the policies insist on protecting water from pollution and wastage, while on the other hand, they propose that the polluter can be set free if he/she pays for the same.

148  Right to Water in India’s national water policies  8. The monitoring measures work to ensure efficiency in water uses; however, their duty is not to check if the management processes entitle people to use water as their right and if water resources reach every individual and household, adequately.   9. In the policies, the failures of public and private sectors in water supplies are subjected to penalty, but what failure exactly means is not defined. 10. The policies emphasise on people’s participation but forget to provide a platform for the same. 11. The policies like 2002 and 2012 realise the significance of the research in water management; however, preference is given only to the scientific research and not to the researchers related to social sciences. Ignorance like such has made water merely a subject of scientific efficiency. Unfortunately, this has conveniently compromised with the idea of Right to Water, which otherwise intends to address the problem of water injustices. The objectives of the policies focus more on the management of water resources and give less attention on how water will be allocated to different parties. Unfortunately, the policies only stress on the problem of water scarcity and do not offer any solution in favour of water equality. The policies have ignored the fact that vulnerability to access water is rapidly increasing in India and must be addressed with immediate effect. The failure of the policies with respect to Right to Water has encouraged divisions in India between the water haves and water have-nots. The policies, while emphasising water availability, offer no solution on how the problems of the water have-nots will be removed. The policies conveniently avoid the issue of how discrimination in water supply will be tackled, and how it will be avoided in water management. The suggestions given by the policies with regard to use of water as per the priority of human requirement too are not well thought out. This is because the policies together have considered water as a source of development and growth and so have distributed and managed water resources mainly in favour of irrigation and industry. The priority list made available in the three national water policies give priority to drinking water, but the same has not been strategised in management planning. The tendency to overlook such important aspects of water allocation and water management pose a serious threat to individual rights over water resources because water cannot be enjoyed with freedom if there is no assurance of equality or non-discrimination in the management processes. In the three policies the idea of distribution of water with freedom and equality is not referred to in the sense of individual rights, and the explanations that are given in the context of the Indian states are not in the context of Right to Water. The policies have adopted a need-based approach, and hence individual entitlement of right to water is missing from their content. Since the objectives of the policies are not to entitle individuals and communities to have water as their right, it is difficult to state if India’s national water

Right to Water in India’s national water policies  149 policies embrace the major elements of Right to Water and ensure water to all. Unfortunately, in India, the three national water policies are strategy-centric. It attempts to provide distributive and management strategies but while so doing hardly focuses on the question of water justice.

Notes 1 This argument is argued in the reference of the studies done by different scholars like H. Lasswell (1959) and Ramawamy Iyer (2001). 2 India’s national policies comprises multiple sections. For instance, NWP of 1987 has 21 sections, NWP of 2002 has 27 and NWP of 2012 has 16 sections, each of which is divided in subsections. However, instead of analysing the entire policy document, this chapter will analyse only those sections of the policies that implicitly or explicitly focus on distribution and management of water resources and investigate if the same satisfies and preserves the idea of Right to Water. 3 I have taken freedom to choose the sections, as the three policies, while considering water as a basic human need and fundamental to life, livelihood, food security and sustainable development (NWP of 1987, 2002 and 2012: 1.1), do not endorse water as a right. Moreover, in the strategies of water policies, the ideas for distribution and management of water resources are not clearly defined. 4 Chapter 2 of this book describes that to ensure water as a right, Comment 15 and the documents released by the World Health Organisation have offered major policy directives. However, the directives are argued in the context of Human Right to Water, and benchmarks are not offered in a single manual. The concept of Right to Water argues and holds for different values and offers specific meanings that differ significantly from Water Right and Human Right to Water. Since there is a notable absence of the benchmarks that can be used as a tool to analyse water policies in context of Right to Water, it is preferable to develop an independent framework that can help to analyse water policies in the context of Right to Water appropriately. This chapter takes the call and introduces a framework and calls it the “Water Policy Analysis Guiding Framework”.   The principles are also developed in the form of the AAAQ Framework that defines some important aspects of the right to water, commonly useful for the critical analysis of water policies. The significance of the AAAQ Framework is unarguable, as it is linked with the United Nations. In November 2002, the CESCR issued General Comment 15 on the Right to Water, which establishes the foundation of the AAAQ Framework by setting out obligations for the availability, accessibility, acceptability and quality of water. I think that the since the AAAQ Framework has not focused on the distributive and management strategies, separately, the need to have a more comprehensive framework in the favour of the idea of Right to Water was obvious. 5 To avoid the repetition, details of the principles are not given here as they are already discussed in Chapter 2 of this book. 6 The meaning of availability, accessibility, acceptability and affordability is offered in General Comments 4, 12, 13, 14 and 15 to the ICESCR. For the details see Chapter 2 of this book. 7 A document released by the World Health Organisation (2002) suggests that if the source of water is outside the home, then it should be within one kilometre or 30 minutes’ total collection time. A document released by the Danish institute, however, has a different understanding on the same. The document called as the AAAQ Framework states that the idea of reasonable distance is linked with time of water collection as well and according to the document, it should be five minutes’ maximum, including waiting time.

150  Right to Water in India’s national water policies 8 See discussions on normative emergence of the content of Right to Water with special reference to Comment 15, mentioned in Chapter 2 of this book. 9 Chapter 2 states that the absolute minimum availability of water is supposed to be 20 litres of water per person per day. 10 Chapter 2 has explained that the pattern of water allocation is comprehensive in that to obligate the Union, state, and local governments to fulfil basic water requirements, when a group or individual is unable to access water. A promise of fulfilment ensures a quality access to household or on plot. Since all three levels of governance – i.e. Union, state and local governments – have obligation to allocate water resources equally, it is indeed essential that each unit have at its disposal sufficient resources to maintain and extend the necessary water sources and facilities. 11 Here, third party points to water markets. The idea reflects that in case of existence of water markets, it is essential to control water charges. The government, in such a situation, should generate controlling and monitoring measures that can ensure physical and financial accessibility of water by the poor and the disadvantaged. 12 The obligations of governments are even wider, like they have to establish transparent administrative and legal institutions, mechanisms and rules; allocate adequate financial, human and technical resources to establish and implement monitoring systems for state and non-state actors; and establish dialogue, feedback, complaint and redress mechanisms. However, here I have discussed only those sections concerned with distributive strategies. The other duties, as mentioned earlier, are discussed in reference to management strategies. 13 Local government as the obligated party is added in NWP 2012. 14 For agricultural and industrial purposes, here other than substance for life. 15 A document released by the World Health Organisation (called Right to Water, 2002) adds in the list of obligators and identifies research community as duty bearers. 16 Details of this argument are given in the further section i.e. in 5.4 (V). 17 It is important to note that people’s participation is discussed in the context of measures of management mechanisms, as directions are not given to citizens or civil society to take part in policy making, but measures are suggested to ensure participation. Thus, the obligation is for institutions and not for the citizen or civil society. 18 See Section 4.1 of this chapter for the meaning of management. 19 Here the point is to simply to the idea of equality. It is known that implementation of such a suggestion may have environmental problems, as many scholars have argued. I insist that the suggestion must be implemented after an impact study on environmental issues in future. 20 It is important to note that in the meaning of “to facilitate” is limited to the financial affordability of individuals as measures and strategies for physical, cultural and geographical affordability are already discussed in the distributive strategies as available, accessible and acceptable. 21 In the view of right to water, the purpose of water pricing should not be profitorientated. The argument here is not to ensure water accessibility is absolutely free; the idea is that pricing should be such that it can discourage and prevent water wastage. 22 Water scholars like María González de Asís, Donal O’Leary, Per Ljung and John Butterworth argue that accountability is essential to prevent water corruption. For details, see González de Asís et al. (2009). 23 Here, it is important to note that this section, unlike previous discussion (distribution strategies), discusses people’s participation as a part of management strategies.

5 Conclusion Towards Right to Water in India

The discussions drawn in the previous chapters of this book are framed in the background of some arguments which insist that (1) the notion of Right to Water is an empirical question which needs to be understood and explained in the background of the institutional and theoretical background, (2) water is a local issue, and India, as a federal democracy, should have wider understanding on the idea of Right to Water, and (3) for the real entitlement of right to water, values of the idea of Right to Water must be placed in the contents of the water policy documents. The core objective of these discussions is to emphasise that India as the largest democratic federal state needs to move towards Right to Water. Also, to facilitate, fulfil and protect right to water to each individual, Union governments should draft a national water policy that embraces the core values of Right to Water.

5.1 Emergence of Right to Water In the water discourses, a fact that water is a right is realised and argued with different logics. These logics are apparently discussed in modern political thought. Here, scholars such as Hobbes, Locke, Blackstone, Hegel, Getzler and Nozick have considered water as a right, mainly in three contexts, i.e. (i) need of/for life (Hobbes, Locke); (ii) ownership (Locke, Blackstone) and (iii) essential element of development (Nozick). While their ideas are considered important for effective water management processes globally, they are not theorised in the traditional sense. Among all other ideas, the ideas advanced by Locke are required to be acknowledged. His key argument that “water has many uses” and that the significance of “labour in water uses” cannot be ignored. These two ideas are revisited in the nineteenth and twentieth centuries and are advanced as Thatcherism and Washington Consensus. In water management processes, the ideas further popularised as neoliberalism have argued that water is a right as it has many uses and utilities. The principles of neoliberalism, while reinterpreting the idea of many uses and significance of labour, emphasise that water is not a free right, as water is precious and its management requires labour and efficiency, i.e. effectively good management. Since the principles offered by Thatcherism, Washington Consensus and neoliberalism have advocated for commoditisation of DOI: 10.4324/9781003211730-5

152  Conclusion water resources and encouraged water privatisation, their practices have faced serious objections from different schools of thought. Scholars from the discourse of neo-Marxism, eco-feminism, human rights and post-neoliberalism argued that the water distribution and management practices under neoliberalism is not just, as it gives priority to efficiency over equality. In the water governance processes this further has encouraged commodification of water resources. The arguments evolved in these schools of thought have emphasised that the idea to privatise water as a resource runs counter to the idea of rights itself, as a right cannot be sold or bought. The objections raised by these schools of thought have created new discourses that have advocated that it is essential to consider water is a right because it is a basic need of human life. Notably, the arguments developed in the discourses of neo-Marxism, eco-feminism and post-neoliberalism have not defined the meaning of right to water. Since these logics are profoundly different from each other, it is difficult to understand what is right to water and what it actually holds. Hence, to explore the appropriate answers to these questions, one needs to understand the initiatives developed at the international, regional and national levels. Essentially, these initiatives as a whole further requires understanding beyond boundaries. 5.1.1 The international expressions At the international level, the conceptual evolution of an idea that can be called Right to Water has evolved in both narrow and wider senses. The narrow sense embraces those documents that have considered water as a right but have preserved claim-ability on the same under a specific condition. International documents such as international humanitarian law, treaties and international environmental and labour treaties are some examples of this. On the other hand, the wider sense embraces those arguments and documents that ensure right to water to all, in all situations. Basically, the development of wider sense is a result of two developments noted at the institutional level and observed in theoretical arguments. The theoretical arguments in this respect are evolved with reference to the global water justice movement. While condemning the principles of Thatcherism, Washington Consensus and policy strategies of the World Bank, they have provided a wider sense to right to water and argued that since the directives proposed by these three together advocate water efficiency over water equality, they actually provide the idea of water rights and not Right to Water. The arguments of the global justice movement that are evolved as post-neoliberalism claims that the idea of water rights is dangerous for the real entitlement of right to water. This is because it allows the treatment of water as a commodity and permits the sale of water resources for profit. Again, at the international level, the second important wider offerings have evolved with the undertakings made by the United Nations that has institutionalised the idea that water is a right. In the long history of the United Nations, mainly two declarations/resolutions are found to

Conclusion  153 be fundamentally important: The first, in this regard, is General Comment 15 (hereafter Comment 15) adopted by the United Nations Committee on Economic, Social and Cultural Rights in 2002, and the second is United Nations General Assembly Resolution A/Res/64/292, adopted in 2010 (hereafter the Resolution). The Comment 15 is one of the major sources of right to water because it has ascertained right to water as every individual’s independent right to sufficient, safe, acceptable, physically accessible and affordable water, for personal and domestic uses. Here, the significance of Resolution passed in 2010 is required to be noted as it has transformed the value of right to water as a human being’s right to water and sanitation and has endorsed the right to water as universal. However, compared to the Resolution of 2010, the details offered by Comment 15 are more significant. This is because it provides extensive details on the subject of beneficiaries, focuses on the duties of the state and non-state actors and emphasises that to fulfil right to water, states must be accountable, transparent and open in their actions, as the World Health Organisation explains (2003). 5.1.2 The regional expressions The importance of regional documents in fulfilment of right to water is considerable and inarguable, because while managing water resources, they consider the cultural and geographical realities and take into account beliefs that represent cultural similarities of a region. In this respect, undertakings and contributions of the European Union and African Charter can be argued as profound. Undertakings by the regional institutions, while making arrangements to ensure water to all, provide some key values that actually have shaped the idea of Right to Water. These declarations and resolutions have considered individuals’ rights over water resources in the references of welfare state and emphasised that citizens have right to access clean and safe water and sanitation within their respective jurisdictions. 5.1.3 The national expressions The fulfilment of right to water is a national subject, and guarantees given by international or regional institutions cannot be feasible without effective support from the national frameworks. In this regard the offerings and assurances made by some nations are considerable, as they have ascertained that right to water is a fundamental right of its citizens. Some important provisions related to such assurances are found in the constitutions as those of Massachusetts and Pennsylvania in the United States, Republic of Uruguay, Federal Republic of Ethiopia, Uganda, Republic of the Gambia, Republic of South Africa, Zambia, Venezuela under the Bolivarian Republic of Venezuela, Congo, Ecuador, Maldives, Kenya, South Sudan, Egypt and Zimbabwe. Since national spirit to fulfil right to water to all limits the unnecessary external interventions, for the evolution of the idea that can be

154  Conclusion called as Right to Water, initiatives and arrangements made by the national governments are required to be recognised as remarkable. 5.1.4 Beyond boundaries The contributions of the undertakings made at the international, national and regional levels show that the advancement of the idea of Right to Water is a result of two relationships, noted beyond the boundaries. The first relation expresses that the regional and national understandings are effectively connected with the international declarations and also with each other. The relationship points out that it is incorrect to say that only international declarations have inspired the regional and national undertakings, for many times, it is precisely the opposite. The second relation is between theoretical arguments and institutional frameworks, developed at the international, national and regional levels. Here, it is essential to note that such relations are not negatively argumentative but actually positive and constructive in nature. The fact is that the theoretical arguments put forth by post-neoliberalism usually put moral pressure on international, national and regional organisations to take steps to assure right to water to all and make it available, accessible and affordable for all. Such arguments have actually offered an idea to be worked on. On the other hand, the ideas developed within the institutional frameworks have strengthened the theoretical discourse by offering global, regional and national implications on the idea of Right to Water. It is noted that the institutionalisation of right to water has led to the internationalisation of the concept of Right to Water. In the process of evolution of the idea of Right to Water, a theoretical relation between different levels is unavoidable, as each level is interacting argumentatively for constructive purposes and ultimately offers a comprehensive meaning of Right to Water. 5.1.5 The meanings of Right to Water Since the idea of Right to Water has evolved as a process, it is essential to attain its meaning and scope by understanding what right to water is and what it is not. Significantly, here interpretation of what right to water has acquired with the amalgamation of the three arguments which respectively state that water is for commons (Shiva, 2002; Bakker, 2010), right to water is linked with duties (Anand, 2007) and finally that right to water can be entitled within a specific scope (Cahill, 2005). A meaning derived from the amalgamation of these ideas draws on three important aspects of right to water. The first aspect proclaims that water is a basic need of/for life and hence, to ensure rights of commons over water resources, it is essential to consider women, children, the weak and the differently disabled as the first beneficiaries of the right to water. The second aspect underlines that right to water is not just a right to be claimed but also a duty to be performed. Underlying this concept, there are multiple parties who are responsible for

Conclusion  155 respecting, protecting and preserving right to water for all, including the union/state/local governments, private sectors, NGOs and even researchers (WHO, 2003).1 The third aspect clarifies that right to water is not a limitless right, but it is enjoyable as per the list of priority order. This argument insists that adoption and implementation of an appropriate priority order entitles individuals to use water with equal freedom to fulfil and satisfy their basic needs as drinking, food, health, sanitation, housing, employment (fishing only) and cultural requirements. The idea of Right to Water rejects a claim that insists on realising Right to Water as a free and limitless right, enjoyable without responsibilities. The notion, while drawing responsibilities of government(s) to entitle every individual to have right to water, does not signify that individuals and groups as water users have no duties while claiming rights over water. However, it designates that individuals, communities and water using industries (including production houses and agriculture) have the duty not to waste or pollute water and water resources, and preserve water by using it wisely. Clearly, the idea of Right to Water contains a chain of rights and responsibilities which insist that entitlement of right to water is possible because of the perfect pairing of rights and duties. It is to note that the argument of “right-duty pairing” draws upon four aspects of right to water, i.e. entitlement, equality, freedom and claims and emphasis that the real entitlement of right to water is possible because there is a positive interaction between the four aspects which creates a relationship between them. In the situation of water stress and water scarcity, entitlements and claims on equal freedom over use of water becomes a matter of immunity, which insists on realising duties to right to water. In this way, the concept of Right to Water, instead of giving absolute assurance, places essential limits on water uses. This implies that Right to Water is not just a promise given by a government to its inhabitants, but a promise given by each to each. It is to realise that the real entitlement and enjoyment of water depends on the common consensus attained and maintained in a society. The consensus on water uses establishes a co-relation between rights and duties and upholds right to water as a preserved privilege for the future generations. Clearly, the implications of the meanings and elements of Right to Water are wider as they are fundamentally concerned with water justice and water democracy and as a process create a condition that preserves water and guarantees its availability, accessibility and affordability to all, even in future.

5.2 The Indian perception on Right to Water In India, the idea of Right to Water evolved as a process. As it is at the initial stage, it is continuing to evolve in different directions and without chronological order. In government’s documents, including constitutional provisions and legal and planning frameworks, the elements of Right to Water are discussed in narrow senses. Whereas, initiatives of Indian judiciary

156  Conclusion and civil society, which mainly includes intellectuals, water scholars and non-governmental organisations can be noted as wider interpretations on Right to Water. 5.2.1 Right to Water in India: National and state understandings For India, right to water is a post-independence phenomenon. This is because in British colonial rule, water and water resources were managed by the state governments to maximise profit from water bodies. The Acts enacted by the British, for this purpose, allowed the governments to control water against the rights of commons over water resources. However, colonial understandings got shifted after independence. The Indian Constitution, through various Articles, implicitly entitles individuals to lay claim on water as their right. It is to note that the contribution of the Indian Constitution to right to water, though limited, is relevant. Articles like Right to Equality (Article 15 (2)), Right to Freedom (Article 19 (1)(e)), Right to Life (Article 21), Right to Education Act 2009 (Article 21 (A)), Fundamental Duties (Article 51 (A) (g)) and Directive Principles of State Policy (Article 48A) are some of the examples of the same, as they all implicitly entitle Indians to claim water as their right, within the Indian territory. The Constitution, in the form of Directive principles of state policies, has expected that India’s Union and state’s governments will elaborate these ideas through legal frameworks. However, the expectation does not appear fulfilled. The Acts and laws that are drafted in the background of these articles are not inclined towards right to water. They are not codified in the traditional sense. Since laws and Acts are framed mostly in federal references, their focus is primarily on the dispute settlements. Even the provisions used to focus on the principles of riparian rights offer nothing significant that can ensure rights to individuals over water resources. A noticeable absence of codified laws in favour of the idea of Right to Water has increased the importance of a planning framework. Significantly, these planning frameworks are introduced at the Union as well as at the state level. In India the objective of water planning proposed by the Union government promotes the socialist idea of state and considers and maintains the Backward Classes as the first beneficiary of water distribution processes and focuses on accessibility, availability and affordability while developing programmes/schemes for them. Programmes such as the Accelerated Rural Water Supply Programme, the International Drinking Water Supply and Sanitation Program, the Role of Women in Water and Environmental Sanitation Services, The Rajiv Gandhi National Drinking Water Mission, Swajaldhara (I) and (II) and Haryali, National Rural Drinking Water Quality Monitoring & Surveillance Programme are some of the examples of the same. The Acts and programmes made by the state governments have added in the planning frameworks. Acts and Programmes such as Tamil Nadu Water Supply Act 1970, the Karnataka Urban Water Supply and Drainage Board

Conclusion  157 Act of 1973, the Uttar Pradesh Water Supply and Sewerage act 1975 and Punjab Water Supply Sewerage Act 1976, Gujarat Panchayat Act 1993 and the Bihar Municipalities Act 2007 are some of the milestones that have contributed significantly to the rise of the idea of Right to Water. The provisions mentioned in these Acts extensively enforce the availability and arrangement to supply water to all. With respect to the fulfilment of Right to Water, other Acts such as Karnataka Ground Water, (Regulation for Protection of Sources of Drinking Water) Act 1999, the Maharashtra Ground Water (Regulation for Drinking Water Purposes) Act 1993 and Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act 2005, are also noteworthy because, while granting permission for water extraction, these Acts make it mandatory for the authorities to justify the purpose of extraction and in so doing focus on availability of water resources and quality of water. 5.2.2 Interpretation(s) of Indian judiciary and civil society India’s national and state documents present water as right, but only in a limited sense. They have inculcated only a few elements of Right to Water, and that too without the required clarity and consistency. In the given condition they cannot be considered as the major interpreters of right to water but can be accepted only as a thin expounder of the idea of Right to Water. In the context of Indian understanding on Right to Water, an unavoidable fact is that the Indian judiciary and civil society have expanded the idea in favour of commons. The judiciary, while interpreting provisions of the Indian Constitution, has offered a detailed meaning of the idea of Right to Water, and hence the judiciary is actually a definer and expounder of Right to Water, in the real sense. The significance of judicial verdicts is huge because the interpretations of international documents offered by the judiciary has contextualised Right to Water in the Indian context and in the process of doing so, it has reconceptualised the fundamental right to life in favour of right to water. Also, the doctrine of public trusteeship used by the judiciary in the context of protection of environment and natural resources has shifted the idea of right to water from a purely or merely negative action to positive and substantive obligations of governments. Similarly, the idea of accountability and public trust offered by the Indian judiciary has re-affirmed the idea of Right to Water by which a trustee can neither alienate the trust nor fundamentally change its nature; at most, it holds a usufructuary right in water in favour of the people. The Indian civil society as another major expounder of the idea of Right to Water has elaborated that idea in the context of the requirement of Indian society. The contribution of civil society is notable in the form of response of NGOs, academicians and water activists to governmental undertaking. While raising voices against neoliberal practices in water governance, the objectives of NGOs as one alliance preserves key aspects of Right to Water. At the same time, the intellectual works of Indian academicians and water

158  Conclusion activists, while supporting the post-neoliberal practices in water management, argue for water justice, which is the primary focus of the idea of Right to Water. To Indianising the idea of water justice, the works done by Vandana Shiva, Ramaswamy Iyer, P. B Anand, Vandana Asthana and P. Sangameswaran are exceptionally significant. 5.2.3 Progression of the idea of Right to Water: Understanding India's pattern In the process of the progression of the idea of Right to Water, in India, political and nonpolitical actors have played an important and influential role. Due to the influence of these actors, in India, the idea of Right to Water has evolved in two stages, where Stage 1 represents the top-down undertakings made by the Union and state governments, and Stage 2 denotes bottom-up undertakings of the judiciary and civil society. Here, the evolution and progression of the idea are horizontal developments and not vertical ones. Hence, the contribution of each stage in the advancement of Right to Water is equally important. The interaction between the top-down and bottom-up stages is argumentative in nature and actually has endorsed and ascertained water as a right to all. Since in India both stages have equal significance, the evolution of the idea is required to be understood in the reference of three undertakings: top-down, i.e. government’s documents, bottom-up, i.e. arguments of civil society, and undertakings that synthesise the two i.e. verdicts and statements of the Indian judiciary. Here, the judiciary is a synthesiser because it has synthesised the government’s undertakings and arguments of civil society which ultimately encouraged the idea of Right to Water in India. 5.3. India's National Water Policies After independence, the requirement of an ideal national water policy that can enable water entitlements in favour of all is accepted unarguably. However, in this respect, only three initiatives are taken and offered in terms of national water policies, drafted respectively in 1987, 2002 and 2012. The policies are drafted by different governments, and in terms of Right to Water, none of them is perfect. Each policy has its own limitations and strengths. Since each government has repeated more or less the same approach in distributive and management process, it is inappropriate to analyse along ideological lines. The first national water policy, drafted by the Rajeev Gandhi government in 1987, was a relatively thin document that focused mainly on water management aspects, including drought, food and irrigation management and development of groundwater. The second national water policy, drafted by the Atal Bihari Vajpayee government in 2002, contained many repeats of the national water policy of 1987 and along with the sections of 1987 emphasised water privatization. The second NWP of 2012, which was drafted by

Conclusion  159 the Manmohan Singh government, again repeated the major ideas of the NWP 1987 and 2002, and strengthening the idea of water privatisation has inculcated the idea of public private partnership that was subjected to criticism. 5.3.1 India's national policies: Towards Right to Water The preamble of the three national water policies drafted respectively in 1987, 2002 and 2012 pointed out that the objective of these policies is to assure water to all. However, to analyse whether the sections proposed in these policies are derived towards the idea of Right to Water or not, there is a requirement of effective yardsticks or benchmarks. In this view, use of the benchmarks offered by international organisations may create misperceptions as conceptually they are inclined towards human Right to Water or water rights, and not on Right to Water. In the given situation, an academic initiative to have a new module which comprises the basic principles of Right to Water is obvious. Introducing the “Water Policy Analysis Guiding Framework” in the context of this obvious requirement, is one such initiative. This Framework, unlike other frameworks, provides the key elements of Right to Water in a single module. The Framework, with a set of four core values supported by 12 sub-values, focuses on the distributive and management strategies and insist that the harmony between these two strategies can create a condition of Right to Water. In the water analysis processes, among the 12 principles, five are set as benchmarks that are used to analyse distributive strategies. These five benchmarks insist on identifying real beneficiaries, ensure availability, accessibility, acceptability and affordability to all, confirm priority of different water uses and define responsibility of both the public and private sectors including stakeholders as citizens, civil society and researchers, in the context of Right to Water. Like distributive strategies, to examine management strategies, the Framework offers seven benchmarks, which includes establishing adequate institutional mechanisms, upholding national requirements and giving preference to regional needs, establishing adequate measures to facilitate, protect and promote right to water to all, ensure efficiency with absence of monopoly, exploitation and discrimination, establishing adequate infrastructure is proposed/ built to ensure transparency, accountably and people’s participation, adequate measures to maintain sustainability of water resources, and creating monitoring systems to ensure right to water to all. An analysis of India’s three national water policies, in the context of this Framework, draws that apparently all three emphasise ensuring availability and accessibility of drinking water in all situations and, more importantly, to the regions facing water shortage. All three policies exceptionally focus on the problem of exploitation of groundwater and surface water and address them appropriately. The suggestion made by NWP of 1987 and 2002 is important in this view, as the two policies insist that while

160  Conclusion recharging water projects concerning groundwater development, social equity should be ensured. In the process of water governance, such offerings are significant; still, to move towards the idea of Right to Water, it has miles to go. The principles of the Framework, while analysing India’s national water policies, has pointed to those sections of the policies that reduce their relevance in the context of the fulfilment of Right to Water. The Framework has claimed that the policies are far from the idea of Right to Water because: • The question of water availability, accessibility, acceptability and affordability is discussed in all the three policies; however, none of the policies have offered the required details of the same. It is difficult to precisely say what is considered as quality, quantity and accessibility of water. Even the emphasised purpose of the three policies, i.e. to ensure social equity and social justice, is an incomplete idea. The contents of the three policies do not denote what is the meaning of sufficient and continuous supply of water. Further, they have not ensured quality and affordability of water resources as well. The requirement to distribute water is discussed with reference to the requirement of Indian states, and less focus is given on the individual’s rights over resources. • The three national water policies, while proposing to allocate water to all, advocate for positive discrimination. However, instead of entitling right to water to all the water-disadvantaged – i.e. poor, women, children, differently abled and marginalised – the policies divide the entitlements on the bases of caste and urge to make special provisions for Scheduled Castes and Scheduled Tribes. Notably, the entitlement to women is late and narrowly proposed in the NWP of 2012, but the children and disabled are throughout ignored in the policies. Clearly, the considerations of beneficiaries in India’s national water policies are incomplete, as disadvantaged groups are not identified and treated as beneficiaries. • In the three national water policies, the question concerning priorities in water uses is addressed to a larger extent. However, that generates some unavoidable confusion. In the three policies, priority orders are not maintained constantly and are subject to change as per the situation. The situation is more confusing in the NWP of 2002, as it gives priorities to too many subjects, including ecology, environment balances and development. Even the repairing ideas offered in the NWP of 2012 are incomplete, as the required details on the priority issues are not mentioned in the policy. • India’s national water policies propose that state governments should be the suppliers of water; however, the responsibility related to water supply is not proposed to respect, preserve and fulfil right to water to all. With respect to featuring government as the obligator, in comparison to the NWP of 1987 and 2002, the NWP of 2012 is relatively better as it assigns governments to ensure minimum water availability and obligates all three tiers of the government, for the same.

Conclusion  161 • In the water management processes, the proposed involvement of the private sector has created new threats. The suggestions of NWP of 2002 and 2012, in this regard are more threatening, as they have encouraged the private sector to build, own, operate, lease and transfer water resources. Since the private sector in water management processes is directly responsible to the elected leaders, not to the people (NWP, 2012), it is doubtful if private water supplies will fulfil the water requirements of the people and if provision of penalty for each water supply will be implemented. A clear risk is that the private hand in water management could make water unaffordable to the commons as the purpose of the management will be to ensure maximum profit from water and water resources and not to ensure water equality. • In the three national water policies, the citizens and civil society are not referred as obligatory parties. The Union water policies consider public and private water distributions as solo obligator and want no other party to play a role in this regard. In the view of the principles of Right to Water, this indeed is an incorrect approach, as realisation of right to water cannot be fulfilled until obligation of each user is decided. The obligations of the researcher referred to in the three policies are important but are not with reference of Right to Water. The focus is given more on the scientific advancement, but how this scientific advancement will ensure right to water with equality, is unclear. The NWP of 2012 proposes to establish a research centre to evaluate policy impact; however, whether the purpose of evaluation is to ensure right to water is uncertain. • The three national water policies have advocated the establishment of institutions and infrastructures to attain multiple purposes, except right to water for all. A purpose towards right to water is thinly noted in the NWP of 2002. The policy insists upon establishing institutions and departments and emphasises the need to address the problems of quality, quantity and environment; however, in so doing, it focuses on the problems faced by states and not on the water problems faced by individuals. Hence, it cannot be claimed confidently that the institutions proposed for policy management are inclined to the idea of Right to Water. • India’s national water policies insist on facilitating (financial accessibility), protecting (pollution control) and promoting (reuse and conservation of water) water resources. However, the same is not clearly encouraged in the context of the idea of Right to Water. None of the policies focuses on ensuring financial accessibility of water. Efforts like proposing an effective water budget (NWP of 1987) and providing water subsides to the poor (2002) are meaningless, as for the poor, there is no significance of budget and subsidy. The idea of protecting and promoting water resources are thinly addressed by the policies, as they propose to establish institutions to take action against polluters and to spread awareness among the people about the need and significance

162  Conclusion









of water conservation. However, since the processes of these institutions are linked with the principle which indirectly says pollute and pay, the doubt concerns whether the policies are serious about the issue of water pollution. The problem is that a little concern is shown to make people aware about their rights over water and water resources. So it is difficult to accept that the purpose of India’s national water policies facilitates, protects and promotes the idea of Right to Water. The requirement of efficiency in water management with absence of monopoly and discrimination, which is the core value of Right to Water, is not fulfilled by India’s national water policies. However, the policies strongly prohibit exploitation of water resources. Some sections of the policies have over-emphasised efficiency and in so doing have ignored that a legitimate control on monopolism over water resources and discrimination in water supply needs to be addressed. Since monopoly and discrimination in water supply are not appropriately discouraged in the water policies, there is a doubt as to whether good quantity and quality of water that is preserved due to efficiency will reach the people equally. The real threat is that efficiency, in the presence of monopoly and discrimination, will encourage the principle of pay and use and will entitle water only to those who can pay and are ready to pay. Accountability, which is one of the core aspects of Right to Water, is narrowly discussed in the three national water policies. The accountabilities of the institutions are elaborated with reference to dam and environmental safety, project reviewing and assessment of water uses and are not proposed to ensure right to water. Only one provision of NWP of 2012 has shown concern for accountability, and it has suggested that the water suppliers are responsible for ensuring the water supply, and for this duty they are accountable to the democratically elected people. The doubt has to do with the nature of such accountability, which may encourage corruption. There will be hesitation in imposing a penalty for failure of accountability as the government of the elected people is itself one of the obligatory parties in water management. The policies, while emphasising people’s participation, entitle different communities to be part of decision-making. However, they ignore the Scheduled Tribes and Scheduled Castes, who otherwise are the real beneficiaries of water allocation (see Chapter 4). This disturbs the principle of Right to Water, which insists that beneficiaries should be participants and participants should be beneficiaries. Instead of following this principle, the policies actually do the opposite. They suggest caste as a beneficiary but do not ensure their participation in decision-making and water planning. On the other hand, disadvantaged people, other than the castes, are not beneficiaries but are part of the decision-making. In the three water policies, the requirement of transparency is viewed with reference to standards for coding, classification, processing of

Conclusion  163 data and method. According to the three policies, data can be shared between the state authorities. However, it has not proposed if information on water availability and accessibility will be shared with the commons as well. The policies have agreed for free sharing of the water information. However, on the question of individual’s accessibility of information, the policies are silent. • India’s national policies emphasise sustainability of water resources and environment. However, whether the purpose of sustainability is to ensure right to water to all is not clear. The suggestions given by the policies (mainly the NWP of 2012) are relevant for water management but are thin in context of the idea of Right to Water. Since availability of water in India is uncertain, it is difficult to recognise whether the advocated sustainability will entitle individuals to have and use water as their claimable right. • In the three national water policies, water politics is dominating on the monitoring infrastructure. In decision matters, the infrastructure is not independent, and aspects like transparency, accountability and participation are completely missing from the monitoring process. The purpose of monitoring in the three policies is to ensure dam safety and preservation of groundwater resources. They ignore that a monitoring system is required to check large water users, whose water use may affect the idea of right to water as a whole. In the view of these limitations of India’s national water policies, it is clear that since the policies have not embraced the key aspects of Right to Water, it is doubtful if implementation of the water policies can ensure water to all. The policies have elaborated on multiple aspects but, in the process of elaboration, have missed out on suggesting how the increasing gaps between water haves and water have-nots will be reduced in future. It is unfortunate that India’s three national water policies distribute and manage water and water resource as a part of human needs but do not respect, protect and preserve water as a right. This states India’s national water policies as need-based and not as right-based. The most problematic thing is that the content of the three policies does not entitle to individuals, as the language used in these contents is extremely ambiguous. Instead of using the term “will be”, it mentions “should be”. Here, the major confusion is that to whom policies are asking to “should be”, whether it is to government agencies, or to the private sector, or to civil society or to whomever. Even further, the needs are viewed in the context of development, rather than of life itself. The policies remain quiet on the questions: development for whom, and if development is more important than life. Since policies are more techno-centric, the major threat is that in the name of technological efficiency, the management process may conventionally ignore the question of water justice. It is quite clear that to reach to the idea of Right to Water, India has miles to go.

164  Conclusion

5.4 What policy makers are required to do To avoid the situations of water injustices in present and to maintain the same in future, there is a serious need for transformation of thinking. The policy makers, in this respect are required to adopt a practical approach. To make the words of the preamble of the national water policies, a reality in the reference to Right to Water, it is essential to be careful while making the draft itself. For this purpose, certain things are required to be considered as fundamental and primary. For instance, while drafting the content of a national water policy the policy makers: • Should focus on the language of the water policy content and should make it simple and free of repetition. Instead of making a promissory document, the focus should be more on the realism, as only this can provide a workable solution. It is essential to realise that availability of water cannot be always certain, and hence the document should hold only achievable aspirations. • Should classify the distributive and management strategies appropriately and ensure that management strategies harmonise fully with distribution strategies. It is high time to realize that the process of water distribution and management is not just science and technology, but the issues concerning them are social, economic and political as well and hence the problem should be viewed and addressed as the part of social sciences and humanities as well. • Should involve water users and water experts in the decision-making process and should classify the participations as soft and hard contributions. The soft participation should include all types of water users, including individuals and groups; this includes use of water for drinking, domestic use, agriculture and industrial purposes. However, the hard participation should be an advisory body and should comprise water and policy experts, engineers and scientists and environmentalists. The role of both types of participation is different; the soft participation should put their water requirements, and hard participation, before suggesting content of a policy, should check out to what extent the requirements of the groups of water users can be converted into policy promises within the available resources. • Should focus on preventing water misuse and for this purpose should create a mechanism that can distinguish between water-rich, water-middle and water-poor areas or communities, and prepare a list of chargeable amounts as per economic status. • Should redefine the meaning of people’s participation in water planning and should reframe the practice of participation at all levels. Also, it is essential to ensure and maintain that water planning participation does not represent political interests. • Should re-conceptualize the significance of Pani Panchayats and should reconsider their role as participants in decision-making and water

Conclusion  165 planning. At the municipal level, each Ward can have a water committee, members of which can give suggestions in water planning. • Should check that content of the water policy documents has not privatised water resources against the interest of the poor and disadvantaged, and includes men, women, children and the differently able. • Should create effective monitoring systems that can keep a check not only on the river basin but also on the process of water supplies. A systematic check on water supplies and even on water uses may control the practices that create and strengthen water injustice. For this purpose, an idea to have a water monitor officer can be considered. Except the mentioned above, the policy makers are required to inquire about what has not worked and how to make it workable. A national water policy should not always be a cry for water scarcity; however, it must propose how water could be preserved when there is abundance of water resources and how preserved water can be supplied to ensure right to water in the situation of scarcity. Accordingly, the focus of distributive and management strategies should be on both situations, i.e. water abundance and water stress/scarcity. In the given situation there is a need to re-think the policy draft and insist upon acknowledging and integrating the elements and scope of Right to Water in the contents of the water policy. One of the best ways to enrich the water policies is to establish and institutionalise effectively honest think tanks and encourage water-retailed studies, inclined towards water justice that can work as a support system of policy makers.

Note 1 In 2003, the World Health Organisation released a document, “ Human Right to Water”, which provides elements of Human Right to Water. Retrieved from https://www.who.int/water_sanitation_health/en/righttowater.pdf on 23 May 2021.

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Appendix A General Comment 15 SUBSTANTIVE ISSUES ARISING IN THE IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS General Comment No. 15 (2002) The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)

I. Introduction 1. Water is a limited natural resource and a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights. The Committee has been confronted continually with the widespread denial of the right to water in developing as well as developed countries. Over one billion persons lack access to a basic water supply, while several billion do not have access to adequate sanitation, which is the primary cause of water contamination and diseases linked to water. The continuing contamination, depletion and unequal distribution of water is exacerbating existing poverty. States parties have to adopt effective measures to realize, without discrimination, the right to water, as set out in this general comment. The legal bases of the right to water 2. The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements. 3. Article 11, paragraph 1, of the Covenant specifies a number of rights emanating from, and indispensable for, the realization of the right to an adequate standard of living “including adequate food, clothing and housing”. The use of the word “including” indicates that this catalogue of rights was not intended to be exhaustive. The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival. Moreover, the Committee has previously recognized that water is a human right contained in article 11, paragraph 1, (see General Comment No. 6 (1995)). The right to water is also inextricably related to the right to the highest attainable standard of health

196  General Comment 15 (art. 12, para. 1) and the rights to adequate housing and adequate food (art. 11, para. 1). The right should also be seen in conjunction with other rights enshrined in the International Bill of Human Rights, foremost amongst them the right to life and human dignity. 4. The right to water has been recognized in a wide range of international documents, including treaties, declarations and other standards. For instance, Article 14, paragraph 2, of the Convention on the Elimination of All Forms of Discrimination Against Women stipulates that States parties shall ensure to women the right to “enjoy adequate living conditions, particularly in relation to […] water supply”. Article 24, paragraph 2, of the Convention on the Rights of the Child requires States parties to combat disease and malnutrition “through the provision of adequate nutritious foods and clean drinking-water”. 5. The right to water has been consistently addressed by the Committee during its consideration of States parties’ reports, in accordance with its revised general guidelines regarding the form and content of reports to be submitted by States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, and its general comments. 6. Water is required for a range of different purposes, besides personal and domestic uses, to realize many of the Covenant rights. For instance, water is necessary to produce food (right to adequate food) and ensure environmental hygiene (right to health). Water is essential for securing livelihoods (right to gain a living by work) and enjoying certain cultural practices (right to take part in cultural life). Nevertheless, priority in the allocation of water must be given to the right to water for personal and domestic uses. Priority should also be given to the water resources required to prevent starvation and disease, as well as water required to meet the core obligations of each of the Covenant rights. Water and Covenant rights 7. The Committee notes the importance of ensuring sustainable access to water resources for agriculture to realize the right to adequate food (see General Comment Plata Action Plan of the United Nations Water Conference; see para. 18.47 of Agenda 21, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992 (A/CONF.151/26/Rev.1 (Vol. I and Vol. I/Corr.1, Vol. II, Vol. III and Vol. III/Corr.1) (United Nations publication, Sales No. E.93.I.8), vol I: Resolutions adopted by the Conference, resolution 1, annex II; Principle No. 3, The Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment (A/CONF.151/PC/112); Principle No. 2, Programme of Action, Report of the United Nations International Conference on Population and Development, Cairo, 5–13 September 1994 (United Nations publication, Sales No. E.95.XIII.18), chap. I, resolution 1, annex; paras. 5

General Comment 15  197 and 19, Recommendation (2001) 14 of the Committee of Ministers to Member States on the European Charter on Water Resources; resolution 2002/6 of the United Nations Sub-Commission on the Promotion and Protection of Human Rights on the promotion of the realization of the right to drinking water. See also the report on the relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation (E/CN.4/Sub.2/2002/10) submitted by the Special Rapporteur of the Sub-Commission on the right to drinking water supply and sanitation, Mr. El Hadji Guissé. No. 12 (1999)). Attention should be given to ensuring that disadvantaged and marginalized farmers, including women farmers, have equitable access to water and water management systems, including sustainable rain harvesting and irrigation technology. Taking note of the duty in article 1, paragraph 2, of the Covenant, which provides that a people may not “be deprived of its means of subsistence”, States parties should ensure that there is adequate access to water for subsistence farming and for securing the livelihoods of indigenous peoples. 8. Environmental hygiene, as an aspect of the right to health under article 12, paragraph 2 (b), of the Covenant, encompasses taking steps on a non-discriminatory basis to prevent threats to health from unsafe and toxic water conditions. For example, States parties should ensure that natural water resources are protected from contamination by harmful substances and pathogenic microbes. Likewise, States parties should monitor and combat situations where aquatic eco-systems serve as a habitat for vectors of diseases wherever they pose a risk to human living environments. 9. With a view to assisting States parties' implementation of the Covenant and the fulfilment of their reporting obligations, this General Comment focuses in Part II on the normative content of the right to water in articles 11, paragraph 1, and 12, on States parties’ obligations (Part III), on violations (Part IV) and on implementation at the national level (Part V), while the obligations of actors other than States parties are addressed in Part VI.

II. Normative content of the right to water 10. The right to water contains both freedoms and entitlements. The freedoms include the right to maintain access to existing water supplies necessary for the right to water, and the right to be free from interference, such as the right to be free from arbitrary disconnections or contamination of water supplies. By contrast, the entitlements include the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water. 11. The elements of the right to water must be adequate for human dignity, life and health, in accordance with articles 11, paragraph 1, and 12.

198  General Comment 15 The adequacy of water should not be interpreted narrowly, by mere reference to volumetric quantities and technologies. Water should be treated as a social and cultural good, and not primarily as an economic good. The manner of the realization of the right to water must also be sustainable, ensuring that the right can be realized for present and future generations. 12. While the adequacy of water required for the right to water may vary according to different conditions, the following factors apply in all circumstances: (a) Availability. The water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene. The quantity of water available for each person should correspond to World Health Organization (WHO) guidelines. Some individuals and groups may also require additional water due to health, climate, and work conditions. (b) Quality. The water required for each personal or domestic use must be safe, therefore free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person’s health. Furthermore, water should be of an acceptable colour, odour and taste for each personal or domestic use. (c) Accessibility. Water and water facilities and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party. Accessibility has four overlapping dimensions: (i) Physical accessibility: water, and adequate water facilities and services, must be within safe physical reach for all sections of the population. Sufficient, safe and acceptable water must be accessible within, or in the immediate vicinity, of each household, educational institution and workplace. All water facilities and services must be of sufficient quality, culturally appropriate and sensitive to gender, lifecycle and privacy requirements. Physical security should not be threatened during access to water facilities and services; (ii) Economic accessibility: Water, and water facilities and services, must be affordable for all. The direct and indirect costs and charges associated with securing water must be affordable, and must not compromise or threaten the realization of other Covenant rights; (iii) Non-discrimination: Water and water facilities and services must be accessible to all, including the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds; and (iv) Information accessibility: accessibility includes the right to seek, receive and impart information concerning water issues.

General Comment 15  199 Special topics of broad application Non-discrimination and equality 13. The obligation of States parties to guarantee that the right to water is enjoyed without discrimination (art. 2, para. 2), and equally between men and women (art. 3), pervades all of the Covenant obligations. The Covenant thus proscribes any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to water. The Committee recalls paragraph 12 of General Comment No. 3 (1990), which states that even in times of severe resource constraints, the vulnerable members of society must be protected by the adoption of relatively low-cost targeted programmes. 14. States parties should take steps to remove de facto discrimination on prohibited grounds, where individuals and groups are deprived of the means or entitlements necessary for achieving the right to water. States parties should ensure that the allocation of water resources, and investments in water, facilitate access to water for all members of society. Inappropriate resource allocation can lead to discrimination that may not be overt. For example, investments should not disproportionately favour expensive water supply services and facilities that are often accessible only to a small, privileged fraction of the population, rather than investing in services and facilities that benefit a far larger part of the population. 15. With respect to the right to water, States parties have a special obligation to provide those who do not have sufficient means with the necessary water and water facilities and to prevent any discrimination on internationally prohibited grounds in the provision of water and water services. 16. Whereas the right to water applies to everyone, States parties should give special attention to those individuals and groups who have traditionally faced difficulties in exercising this right, including women, children, minority groups, indigenous peoples, refugees, asylum seekers, internally displaced persons, migrant workers, prisoners and detainees. In particular, States parties should take steps to ensure that: (a) Women are not excluded from decision-making processes concerning water resources and entitlements. The disproportionate burden women bear in the collection of water should be alleviated; (b) Children are not prevented from enjoying their human rights due to the lack of adequate water in educational institutions and households or through the burden of collecting water. Provision of adequate water to educational institutions currently without adequate drinking water should be addressed as a matter of urgency;

200  General Comment 15 (c) Rural and deprived urban areas have access to properly maintained water facilities. Access to traditional water sources in rural areas should be protected from unlawful encroachment and pollution. Deprived urban areas, including informal human settlements, and homeless persons, should have access to properly maintained water facilities. No household should be denied the right to water on the grounds of their housing or land status; (d) Indigenous peoples’ access to water resources on their ancestral lands is protected from encroachment and unlawful pollution. States should provide resources for indigenous peoples to design, deliver and control their access to water; (e) Nomadic and traveller communities have access to adequate water at traditional and designated halting sites; (f) Refugees, asylum-seekers, internally displaced persons and returnees have access to adequate water whether they stay in camps or in urban and rural areas.   Refugees and asylum-seekers should be granted the right to water on the same conditions as granted to nationals; (g) Prisoners and detainees are provided with sufficient and safe water for their daily individual requirements, taking note of the requirements of international humanitarian law and the United Nations Standard Minimum Rules for the Treatment of Prisoners; (h) Groups facing difficulties with physical access to water, such as older persons, persons with disabilities, victims of natural disasters, persons living in disaster-prone areas, and those living in arid and semi-arid areas, or on small islands are provided with safe and sufficient water.

III. States parties' obligations General legal obligations 17. While the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect. States parties have immediate obligations in relation to the right to water, such as the guarantee that the right will be exercised without discrimination of any kind (art. 2, para. 2) and the obligation to take steps (art. 2, para. 1) towards the full realization of articles 11, paragraph 1, and 12. Such steps must be deliberate, concrete and targeted towards the full realization of the right to water. 18. States parties have a constant and continuing duty under the Covenant to move as expeditiously and effectively as possible towards the full realization of the right to water. Realization of the right should be feasible and practicable, since all States parties exercise control over a broad range of resources, including water, technology, financial resources and international assistance, as with all other rights in the Covenant.

General Comment 15  201 19. There is a strong presumption that retrogressive measures taken in relation to the right to water are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State party's maximum available resources. Specific legal obligations 20. The right to water, like any human right, imposes three types of obligations on States parties: obligations to respect, obligations to protect and obligations to fulfil. (a) Obligations to respect 21. The obligation to respect requires that States parties refrain from interfering directly or indirectly with the enjoyment of the right to water. The obligation includes, inter alia, refraining from engaging in any practice or activity that denies or limits equal access to adequate water; arbitrarily interfering with customary or traditional arrangements for water allocation; unlawfully diminishing or polluting water, for example through waste from State-owned facilities or through use and testing of weapons; and limiting access to, or destroying, water services and infrastructure as a punitive measure, for example, during armed conflicts in violation of international humanitarian law. 22. The Committee notes that during armed conflicts, emergency situations and natural disasters, the right to water embraces those obligations by which States parties are bound under international humanitarian law. This includes protection of objects indispensable for survival of the civilian population, including drinking water installations and supplies and irrigation works, protection of the natural environment against widespread, long-term and severe damage and ensuring that civilians, internees and prisoners have access to adequate water. (b) Obligations to protect 23. The obligation to protect requires State parties to prevent third parties from interfering in any way with the enjoyment of the right to water. Third parties include individuals, groups, corporations and other entities as well as agents acting under their authority. The obligation includes, inter alia, adopting the necessary and effective legislative and other measures to restrain, for example, third parties from denying equal access to adequate water; and polluting and inequitably extracting from water resources, including natural sources, wells and other water distribution systems.

202  General Comment 15 24. Where water services (such as piped water networks, water tankers, access to rivers and wells) are operated or controlled by third parties, States parties must prevent them from compromising equal, affordable, and physical access to sufficient, safe and acceptable water. To prevent such abuses an effective regulatory system must be established, in conformity with the Covenant and this General Comment, which includes independent monitoring, genuine public participation and imposition of penalties for non-compliance. (c) Obligations to fulfil 25. The obligation to fulfil can be disaggregated into the obligations to facilitate, promote and provide. The obligation to facilitate requires the State to take positive measures to assist individuals and communities to enjoy the right. The obligation to promote obliges the State party to take steps to ensure that there is appropriate education concerning the hygienic use of water, protection of water sources and methods to minimize water wastage. States parties are also obliged to fulfil (provide) the right when individuals or a group are unable, for reasons beyond their control, to realize that right themselves by the means at their disposal. 26. The obligation to fulfil requires States parties to adopt the necessary measures directed towards the full realization of the right to water. The obligation includes, inter alia, according sufficient recognition of this right within the national political and legal systems, preferably by way of legislative implementation; adopting a national water strategy and plan of action to realize this right; ensuring that water is affordable for everyone; and facilitating improved and sustainable access to water, particularly in rural and deprived urban areas. 27. To ensure that water is affordable, States parties must adopt the necessary measures that may include, inter alia: (a) use of a range of appropriate low-cost techniques and technologies; (b) appropriate pricing policies such as free or low-cost water; and (c) income supplements. Any payment for water services has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with water expenses as compared to richer households. 28. States parties should adopt comprehensive and integrated strategies and programmes to ensure that there is sufficient and safe water for present and future generations. Such strategies and programmes may include: (a) reducing depletion of water resources through unsustainable extraction, diversion and damming; (b) reducing and eliminating contamination of watersheds and water-related eco-systems by substances such as radiation, harmful chemicals and human excreta; (c) monitoring water reserves; (d) ensuring that proposed developments do

General Comment 15  203 not interfere with access to adequate water; (e) assessing the impacts of actions that may impinge upon water availability and natural-ecosystems watersheds, such as climate changes, desertification and increased soil salinity, deforestation and loss of biodiversity; (f) increasing the efficient use of water by end-users; (g) reducing water wastage in its distribution; (h) response mechanisms for emergency situations; (i) and establishing competent institutions and appropriate institutional arrangements to carry out the strategies and programmes. 29. Ensuring that everyone has access to adequate sanitation is not only fundamental for human dignity and privacy, but is one of the principal mechanisms for protecting the quality of drinking water supplies and resources. In accordance with the rights to health and adequate housing (see General Comments No. 4 (1991) and 14 (2000)) States parties have an obligation to progressively extend safe sanitation services, particularly to rural and deprived urban areas, taking into account the needs of women and children. International obligations 30. Article 2, paragraph 1, and articles 11, paragraph 1, and 23 of the Covenant require that States parties recognize the essential role of international cooperation and assistance and take joint and separate action to achieve the full realization of the right to water. 31. To comply with their international obligations in relation to the right to water, States parties have to respect the enjoyment of the right in other countries. International cooperation requires States parties to refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to water in other countries. Any activities undertaken within the State party’s jurisdiction should not deprive another country of the ability to realize the right to water for persons in its jurisdiction. 32. States parties should refrain at all times from imposing embargoes or similar measures, that prevent the supply of water, as well as goods and services essential for securing the right to water. Water should never be used as an instrument of political and economic pressure. In this regard, the Committee recalls its position, stated in its General Comment No. 8 (1997), on the relationship between economic sanctions and respect for economic, social and cultural rights. 33. Steps should be taken by States parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries. Where States parties can take steps to influence other third parties to respect the right, through legal or political means, such steps should be taken in accordance with the Charter of the United Nations and applicable international law. 34. Depending on the availability of resources, States should facilitate realization of the right to water in other countries, for example through

204  General Comment 15 provision of water resources, financial and technical assistance, and provide the necessary aid when required. In disaster relief and emergency assistance, including assistance to refugees and displaced persons, priority should be given to Covenant rights, including the provision of adequate water. International assistance should be provided in a manner that is consistent with the Covenant and other human rights standards, and sustainable and culturally appropriate. The economically developed States parties have a special responsibility and interest to assist the poorer developing States in this regard. 35. States parties should ensure that the right to water is given due attention in international agreements and, to that end, should consider the development of further legal instruments. With regard to the conclusion and implementation of other international and regional agreements, States parties should take steps to ensure that these instruments do not adversely impact upon the right to water. Agreements concerning trade liberalization should not curtail or inhibit a country’s capacity to ensure the full realization of the right to water. 36. States parties should ensure that their actions as members of international organizations take due account of the right to water. Accordingly, States parties that are members of international financial institutions, notably the International Monetary Fund, the World Bank, and regional development banks, should take steps to ensure that the right to water is taken into account in their lending policies, credit agreements and other international measures. Core obligations 37. In General Comment No. 3 (1990), the Committee confirms that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant. In the Committee’s view, at least a number of core obligations in relation to the right to water can be identified, which are of immediate effect: (a) To ensure access to the minimum essential amount of water, that is sufficient and safe for personal and domestic uses to prevent disease; (b) To ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalized groups; (c) To ensure physical access to water facilities or services that provide sufficient, safe and regular water; that have a sufficient number of water outlets to avoid prohibitive waiting times; and that are at a reasonable distance from the household; (d) To ensure personal security is not threatened when having to physically access to water;

General Comment 15  205 (e) To ensure equitable distribution of all available water facilities and services; (f) To adopt and implement a national water strategy and plan of action addressing the whole population; the strategy and plan of action should be devised, and periodically reviewed, on the basis of a participatory and transparent process; it should include methods, such as right to water indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all disadvantaged or marginalized groups; (g) To monitor the extent of the realization, or the non-realization, of the right to water; (h) To adopt relatively low-cost targeted water programmes to protect vulnerable and marginalized groups; (i) To take measures to prevent, treat and control diseases linked to water, in particular ensuring access to adequate sanitation; 38. For the avoidance of any doubt, the Committee wishes to emphasize that it is particularly incumbent on States parties, and other actors in a position to assist, to provide international assistance and cooperation, especially economic and technical which enables developing countries to fulfil their core obligations indicated in paragraph 37 above.

IV. Violations 39. When the normative content of the right to water (see Part II) is applied to the obligations of States parties (Part III), a process is set in motion, which facilitates identification of violations of the right to water. The following paragraphs provide illustrations of violations of the right to water. 40. To demonstrate compliance with their general and specific obligations, States parties must establish that they have taken the necessary and feasible steps towards the realization of the right to water. In accordance with international law, a failure to act in good faith to take such steps amounts to a violation of the right. It should be stressed that a State party cannot justify its non-compliance with the core obligations set out in paragraph 37 above, which are non-derogable. 41. In determining which actions or omissions amount to a violation of the right to water, it is important to distinguish the inability from the unwillingness of a State party to comply with its obligations in relation to the right to water. This follows from articles 11, paragraph 1, and 12, which speak of the right to an adequate standard of living and the right to health, as well as from article 2, paragraph 1, of the Covenant, which obliges each State party to take the necessary steps to the maximum of its available resources. A State which is unwilling to use the maximum of its available resources for the realization of the right to water is in

206  General Comment 15 violation of its obligations under the Covenant. If resource constraints render it impossible for a State party to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above. 42. Violations of the right to water can occur through acts of commission, the direct actions of States parties or other entities insufficiently regulated by States. Violations include, for example, the adoption of retrogressive measures incompatible with the core obligations (outlined in para. 37 above), the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to water, or the adoption of legislation or policies which are manifestly incompatible with pre-existing domestic or international legal obligations in relation to the right to water. 43. Violations through acts of omission include the failure to take appropriate steps towards the full realization of everyone's right to water, the failure to have a national policy on water, and the failure to enforce relevant laws. 44. While it is not possible to specify a complete list of violations in advance, a number of typical examples relating to the levels of obligations, emanating from the Committee’s work, may be identified: (a) Violations of the obligation to respect follow from the State party’s interference with the right to water. This includes, inter alia: (i) arbitrary or unjustified disconnection or exclusion from water services or facilities; (ii) discriminatory or unaffordable increases in the price of water; and (iii) pollution and diminution of water resources affecting human health; (b) Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to water by third parties. This includes, inter alia: (i) failure to enact or enforce laws to prevent the contamination and inequitable extraction of water; (ii) failure to effectively regulate and control water services providers; (iv) failure to protect water distribution systems (e.g., piped networks and wells) from interference, damage and destruction; and (c) Violations of the obligation to fulfil occur through the failure of States parties to take all necessary steps to ensure the realization of the right to water. Examples includes, inter alia: (i) failure to adopt or implement a national water policy designed to ensure the right to water for everyone; (ii) insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to water by individuals or groups, particularly the vulnerable or marginalized; (iii) failure to monitor the realization of the right to water at the national level, for example by identifying

General Comment 15  207 right-to-water indicators and benchmarks; (iv) failure to take measures to reduce the inequitable distribution of water facilities and services; (v) failure to adopt mechanisms for emergency relief; (vi) failure to ensure that the minimum essential level of the right is enjoyed by everyone (vii) failure of a State to take into account its international legal obligations regarding the right to water when entering into agreements with other States or with international organizations.

V. Implementation at the National Level 45. In accordance with article 2, paragraph 1, of the Covenant, States parties are required to utilize “all appropriate means, including particularly the adoption of legislative measures” in the implementation of their Covenant obligations. Every State party has a margin of discretion in assessing which measures are most suitable to meet its specific circumstances. The Covenant, however, clearly imposes a duty on each State party to take whatever steps are necessary to ensure that everyone enjoys the right to water, as soon as possible. Any national measures designed to realize the right to water should not interfere with the enjoyment of other human rights. Legislation, strategies and policies 46. Existing legislation, strategies and policies should be reviewed to ensure that they are compatible with obligations arising from the right to water, and should be repealed, amended or changed if inconsistent with Covenant requirements. 47. The duty to take steps clearly imposes on States parties an obligation to adopt a national strategy or plan of action to realize the right to water. The strategy must: (a) be based upon human rights law and principles; (b) cover all aspects of the right to water and the corresponding obligations of States parties; (c) define clear objectives; (d) set targets or goals to be achieved and the time-frame for their achievement; (e) formulate adequate policies and corresponding benchmarks and indicators. The strategy should also establish institutional responsibility for the process; identify resources available to attain the objectives, targets and goals; allocate resources appropriately according to institutional responsibility; and establish accountability mechanisms to ensure the implementation of the strategy. When formulating and implementing their right to water national strategies, States parties should avail themselves of technical assistance and cooperation of the United Nations specialized agencies (see Part VI below). 48. The formulation and implementation of national water strategies and plans of action should respect, inter alia, the principles of

208  General Comment 15 non-discrimination and people's participation. The right of individuals and groups to participate in decision-making processes that may affect their exercise of the right to water must be an integral part of any policy, programme or strategy concerning water. Individuals and groups should be given full and equal access to information concerning water, water services and the environment, held by public authorities or third parties. 49. The national water strategy and plan of action should also be based on the principles of accountability, transparency and independence of the judiciary, since good governance is essential to the effective implementation of all human rights, including the realization of the right to water. In order to create a favourable climate for the realization of the right, States parties should take appropriate steps to ensure that the private business sector and civil society are aware of, and consider the importance of, the right to water in pursuing their activities. 50. States parties may find it advantageous to adopt framework legislation to operationalize their right to water strategy. Such legislation should include: (a) targets or goals to be attained and the time-frame for their achievement; (b) the means by which the purpose could be achieved; (c) the intended collaboration with civil society, private sector and international organizations; (d) institutional responsibility for the process; (e) national mechanisms for its monitoring; and (f) remedies and recourse procedures. 51. Steps should be taken to ensure there is sufficient coordination between the national ministries, regional and local authorities in order to reconcile water-related policies. Where implementation of the right to water has been delegated to regional or local authorities, the State party still retains the responsibility to comply with its Covenant obligations, and therefore should ensure that these authorities have at their disposal sufficient resources to maintain and extend the necessary water services and facilities. The States parties must further ensure that such authorities do not deny access to services on a discriminatory basis. 52. States parties are obliged to monitor effectively the realization of the right to water. In monitoring progress towards the realization of the right to water, States parties should identify the factors and difficulties affecting implementation of their obligations. Indicators and benchmarks 53. To assist the monitoring process, right to water indicators should be identified in the national water strategies or plans of action. The indicators should be designed to monitor, at the national and international levels, the State party's obligations under articles 11, paragraph 1, and 12. Indicators should address the different components of adequate water (such as sufficiency, safety and acceptability, affordability and physical accessibility), be disaggregated by the prohibited grounds of discrimination, and cover all persons residing in the State party’s territorial

General Comment 15  209 jurisdiction or under their control. States parties may obtain guidance on appropriate indicators from the ongoing work of WHO, the Food and Agriculture Organization of the United Nations (FAO), the United Nations Centre for Human Settlements (Habitat), the International Labour Organization (ILO), the United Nations Children’s Fund (UNICEF), the United Nations Environment Programme (UNEP), the United Nations Development Programme (UNDP) and the United Nations Commission on Human Rights. 54. Having identified appropriate right to water indicators, States parties are invited to set appropriate national benchmarks in relation to each indicator. During the periodic reporting procedure, the Committee will engage in a process of “scoping” with the State party. Scoping involves the joint consideration by the State party and the Committee of the indicators and national benchmarks which will then provide the targets to be achieved during the next reporting period. In the following five years, the State party will use these national benchmarks to help monitor its implementation of the right to water. Thereafter, in the subsequent reporting process, the State party and the Committee will consider whether or not the benchmarks have been achieved, and the reasons for any difficulties that may have been encountered (see General Comment No. 14 (2000), para. 58). Further, when setting benchmarks and preparing their reports, States parties should utilize the extensive information and advisory services of specialized agencies with regard to data collection and disaggregation. Remedies and accountability 55. Any persons or groups who have been denied their right to water should have access to effective judicial or other appropriate remedies at both national and international levels (see General Comment No. 9 (1998), para. 4, and Principle 10 of the Rio Declaration on Environment and Development). The Committee notes that the right has been constitutionally entrenched by a number of States and has been subject to litigation before national courts. All victims of violations of the right to water should be entitled to adequate reparation, including restitution, compensation, satisfaction or guarantees of non-repetition. National ombudsmen, human rights commissions, and similar institutions should be permitted to address violations of the right. 56. Before any action that interferes with an individual’s right to water is carried out by the State party, or by any other third party, the relevant authorities must ensure that such actions are performed in a manner warranted by law, compatible with the Covenant, and that comprises: (a) opportunity for genuine consultation with those affected; (b) timely and full disclosure of information on the proposed measures; (c) reasonable notice of proposed actions; (d) legal recourse and remedies for those affected; and (e) legal assistance for obtaining legal remedies (see also Comments No. 4 (1991) and No. 7 (1997)). Where such action is

210  General Comment 15 based on a person’s failure to pay for water their capacity to pay must be taken into account. Under no circumstances shall an individual be deprived of the minimum essential level of water. 57. The incorporation in the domestic legal order of international instruments recognizing the right to water can significantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases. Incorporation enables courts to adjudicate violations of the right to water, or at least the core obligations, by direct reference to the Covenant. 58. Judges, adjudicators and members of the legal profession should be encouraged by States parties to pay greater attention to violations of the right to water in the exercise of their functions. 59. States parties should respect, protect, facilitate and promote the work of human rights advocates and other members of civil society with a view to assisting vulnerable or marginalized groups in the realization of their right to water.

VI. Obligations of actors other than states 60. United Nations agencies and other international organizations concerned with water, such as WHO, FAO, UNICEF, UNEP, UN-Habitat, ILO, UNDP, the International Fund for Agricultural Development (IFAD), as well as international organizations concerned with trade such as the World Trade Organization (WTO), should cooperate effectively with States parties, building on their respective expertise, in relation to the implementation of the right to water at the national level. The international financial institutions, notably the International Monetary Fund and the World Bank, should take into account the right to water in their lending policies, credit agreements, structural adjustment programmes and other development projects (see General Comment No. 2 (1990)), so that the enjoyment of the right to water is promoted. When examining the reports of States parties and their ability to meet the obligations to realize the right to water, the Committee will consider the effects of the assistance provided by all other actors. The incorporation of human rights law and principles in the programmes and policies by international organizations will greatly facilitate implementation of the right to water. The role of the International Federation of the Red Cross and Red Crescent Societies, International Committee of the Red Cross, the Office of the United Nations High Commissioner for Refugees (UNHCR), WHO and UNICEF, as well as non-governmental organizations and other associations, is of particular importance in relation to disaster relief and humanitarian assistance in times of emergencies. Priority in the provision of aid, distribution and management of water and water facilities should be given to the most vulnerable or marginalized groups of the population.

Appendix B India’s National Water Policy – 1987 MINISTRY OF WATER RESOURCES National Water Policy, 1987

Need for a national water policy Water is a prime natural resource, a basic human need and a precious national asset. Planning and development of water resources need to be governed by national perspectives. It has been estimated that out of the total precipitation of around 400 million hectare meters in the country, the surface water availability is about 178 million hectare meters. Out of this about 50% can be put to beneficial use because of topographical and other constraints. In addition there is a ground water potential of about 42 million hectare meters. The availability of water is highly uneven in both space and time. Precipitation is confined to only about three or four months in the year and varies from 10 cm in the western parts of Rajasthan to over 1000 cm at Cherrapunji in Meghalaya. Further, water does not respect state boundaries. Not merely rivers but even under ground aquifers often cut across state boundaries. Water as a resource is one and indivisible: rainfall, river waters, surface ponds and lakes and ground water are all part of one system; water is a part of a larger ecological system. Floods and drought affect vast areas of the country, transcending state boundaries. A third of the country is drought-prone. Floods affect an average area of around 9 million hectares per year. According to the National Commission on floods, the area susceptible to floods is around 40 million hectares. The approach to the management of drought and floods has to be coordinated and guided at the national level. Even the planning and implementation of individual irrigation or multi-purpose projects, though done at the State level, involve a number of aspects and issues such as environmental protection, rehabilitation of project-­ affected people and livestock, public health consequences of water impoundment, dam safety, etc. On these matters common approaches and guidelines are necessary. Moreover, certain problems and weaknesses have affected a large number of projects all over the country. There have been substantial time and cost overruns on projects. In some irrigation commands, problems of water-logging and soil salinity have emerged, leading to the degradation of good agricultural land. There are also complex problems of equity and social

212  India’s National Water Policy – 1987 justice in regard to water distribution. The development and exploitation of the country’s groundwater resources also give rise to questions of judicious and scientific resource management and conservation. All these questions need to be tackled on the basis of common policies and strategies. The growth process and the expansion of economic activities inevitably lead to increasing demands for water for diverse purposes: domestic, industrial, agricultural, hydro-power, navigation, recreation, etc. So far, the principal consumptive use of water has been for irrigation. While the irrigation potential is estimated to have increased from 19.5 million hectares at the time of Independence to about 68 million hectares at the end of the Sixth Plan, further development of a substantial order is necessary if the food and fiber needs of a growing population are to be met. The country’s population which is over 750 million at present is expected to reach a level of around 1000 million by the turn of the century. The production of food grains has increased from around 50 million tons in the fifties to about 150 million tons at present, but this will have to be raised to around 240 million tons by the year 2000 A.D. The drinking water needs of people and livestock have also to be met. In keeping with the objectives of the International Drinking Water Supply and Sanitation Decade Programme (1981–1991), adequate drinking water facilities have to be provided to the entire population in both urban and rural areas and sanitation facilities to 80% of the urban population and 25% of the rural population by the end of the decade. Domestic and industrial water needs have largely been concentrated in or near the principal cities, but the demand from rural society is expected to increase sharply as the development programmes improve economic conditions in the rural areas. The demand for water for Hydro & Thermal power generation and for other industrial uses is also likely to increase substantially. As a result what which is already a scarcer in future. This underscores the need for the utmost efficiency in water utilisation and a public awareness of the importance of its conservation. 1.7 Another important aspect is water quality. Improvements in existing strategies and the innovation of new techniques resting on a strong science and technology base will be needed to eliminate the pollution of surface and ground water resources, to improve water quality and to step up the recycling and re-use of water. Science and technology and training have also important roles to play in water resources development in general. 1.8 Water is one of the most crucial elements in developmental planning. As the country prepares itself to enter the 21st century, efforts to develop, conserve, utilise and manage this important resource have to be guided by national perspectives. The need for a national water policy is thus abundantly clear: water is a scarce and precious national resource to be planned, developed and conserved as such, and on an integrated and environmentally sound basis, keeping in view the needs of the States concerned.

India’s National Water Policy – 1987  213

Information system 2. The prime requisite for resource planning is a well-developed information system. A standardized national information system should be established with a network of data banks and data bases, integrating and strengthening the existing Central and State level agencies and improving the quality of data and the processing capabilities. There should be free exchange of data among the various agencies and duplication in data collection should be avoided. Apart from the data regarding water availability and actual water use, the system should also include comprehensive and reasonably reliable projections of future demands for water for diverse purposes.

Maximizing availability 3.1 The water resources available to the country should be brought within the category of utilizable resources to the maximum possible extent. The resources should be conserved and the availability augmented by measures for maximizing retention and minimising losses. 3.2 Resource planning in the case of water has to be done for a hydrological unit such as a drainage basin as a whole, or for a sub-basin. All individual developmental projects and proposals should be formulated by the States and considered within the framework of such an overall plan for a basin or sub-basin, so that the best possible combination of options can be made. 3.3 Appropriate organisations should be established for the planned development and management of a river basin as a whole. Special multidisciplinary units should be set up in each state to prepare comprehensive plans taking into account not only the needs of irrigation but also harmonizing various other water uses, so that the available water resources are determined and put to optimum use having regard to subsisting agreements or awards of Tribunals under the relevant laws. 3.4 Water should be made available to water short areas by transfer from other areas including transfers from one river basin to another, based on a national perspective, after taking into account the requirements of the areas/basins. 3.5 Recycling and re-use of water should be an integral part of water resource development

Project planning 4.1 Water resource development projects should as far as possible be planned and developed as multipurpose projects. Provision for drinking water should be a primary consideration. The projects should provide for irrigation, flood mitigation, hydro-electric power generation, navigation, pisciculture and recreation wherever possible

214  India’s National Water Policy – 1987 4.2 The study of the impact of a project during construction and later on human lives, settlements, occupations, economic and other aspects should be an essential component of project planning. 4.3 In the planning, implementation and operation of projects, the preservation of the quality of environment and the ecological balance should be a primary consideration. The adverse impact, if any, on the environment should be minimised and should be off-set by adequate compensatory measures. 4.4 There should be an integrated and multi-disciplinary approach to the planning, formulation, clearance and implementation of projects, including catchment treatment and management, environmental and ecological aspects, the rehabilitation of affected people and command area development. 4.5 Special efforts should be made to investigate and formulate projects either in, or for the benefit of, areas inhabited by tribal or other specially disadvantaged groups such as Scheduled Castes and Scheduled Tribes. In other areas also, project planning should pay special attention to the needs of Scheduled Castes and Scheduled Tribes and other weaker sections of society. 4.6 The planning of projects in hilly areas should take into account the need to provide assured drinking water, possibilities of hydro-power development and the proper approach to irrigation in such areas, in the context of physical features and constraints such as steep slopes, rapid run-off and the incidence of soil erosion. The economic evaluation of projects in such areas should also take these factors into account. 4.7 Time and cost overruns and deficient realization of benefits characterizing most irrigation projects should be overcome by upgrading the quality of project preparation and management. The under-funding of projects should be obviated by an optimal allocation of resources, having regard to the early completion of on-going projects as well as the need to reduce regional imbalances.

Maintenance and modernisation 5.1 Structures and systems created through massive investments should be properly maintained in good health. Appropriate annual provisions should be made for this purpose in the budgets. 5.2 There should be a regular monitoring of structures and systems and necessary rehabilitation and modernisation programmes should be undertaken.

Safety of structures 6. There should be proper organisational arrangements at the national and state levels for ensuring the safety of storage dams and other

India’s National Water Policy – 1987  215 water-related structures. The Central guidelines on the subject should be kept under constant review and periodically updated and reformulated. There should be a system of continuous surveillance and regular visits by experts.

Ground water development 7.1 There should be a periodical reassessment on a scientific basis of the ground water potential, taking into consideration the quality of the water available and economic viability. 7.2 Exploitation of ground water resources should be so regulated as not to exceed the recharging possibilities, as also to ensure social equity. Ground water recharge projects should be developed and implemented for augmenting the available supplies. 7.3 Integrated and coordinated development of surface water and ground water and their conjunctive use, should be envisaged right from the project planning stage and should form an essential part of the project. 7.4 Over exploitation of ground water should be avoided near the coast to prevent ingress of sea water into sweet water aquifers.

Water allocation priorities 8. In the planning and operation of systems, water allocation priorities should be broadly as follows: − Drinking water − Irrigation − Hydro-power − Navigation − Industrial and other uses. However these priorities might be modified if necessary in particular regions with reference to area specific considerations.

Drinking water 9. Adequate drinking water facilities should be provided to the entire population both in urban and in rural areas by 1991. Irrigation and multipurpose projects should invariably include a drinking water component, wherever there is no alternative source of drinking water. Drinking water needs of human beings and animals should be the first charge on any available water.

Irrigation 10.1 Irrigation planning either in an individual project or in a basin as a whole should take into account the irrigability of land, cost-effective irrigation options possible from all available sources of water and

216  India’s National Water Policy – 1987 appropriate irrigation techniques. The irrigation intensity should be such as to extend the benefits of irrigation to as large a number of farm families as possible, keeping in view the need to maximize production. 10.2 There should be a close integration of water-use and land-use policies. 10.3 Water allocation in an irrigation system should be done with due regard to equity and social justice. Disparities in the availability of water between head-reach and tail-end farms and between large and small farms should be obviated by adoption of a rotational water distribution system and supply of water on a volumetric basis subject to certain ceilings. 10.4 Concerted efforts should be made to ensure that the irrigation potential created is fully utilised and the gap between the potential created and its utilisation is removed. For this purpose, the command area development approach should be adopted in all irrigation projects.

Water rates 11. Water rates should be such as to convey the scarcity value of the resource to the users and to foster the motivation for economy in water-use. They should be adequate to cover the annual maintenance and operation charges and a part of the fixed costs. Efforts should be made to reach this ideal over a period, while ensuring the assured and timely supplies of irrigation water. The water rates for surface water and ground water should be rationalized with due regard to the interests of small and marginal farmers.

Participation of farmers and voluntary agencies 12. Efforts should be made to involve farmers progressively in various aspects of management of irrigation systems, particularly in water distribution and collection of water rates. Assistance of voluntary agencies should be enlisted in educating the farmers in efficient water use and water management.

Water quality 13. Both surface water and ground water should be regularly monitored for quality. A phased programme should be undertaken for improvements in water quality.

Water zoning 14. Economic development and activities including agricultural, industrial and urban development, should be planned with due regard to the constraints imposed by the configuration of water availability. There should be a water zoning of the country and the economic activities should be guided and regulated in accordance with such zoning.

India’s National Water Policy – 1987  217

Conservation of water 15. The efficiency of utilisation in all the diverse uses of water should be improved and an awareness of water as a scarce resource should be fostered. Conservation consciousness should be promoted through education, regulation, incentives and disincentives.

Flood control and management 16. There should be a master plan for flood control and management for each flood prone basin. Sound watershed management through extensive soil conservation, catchment-area treatment, preservation of forests and increasing the forest area and the construction of checkdams should be promoted to reduce the intensity of floods. Adequate flood-cushion should be provided in water storage projects wherever feasible to facilitate better flood management. An extensive network for flood forecasting should be established for timely warning to the settlements in the flood plains, along with the regulation of settlements and economic activity in the flood plain zones, to minimise the loss of life and property on account of floods. While physical flood protection works like embankments and dykes will continue to be necessary, the emphasis should be on non-structural measures for the minimisation of losses, such as flood forecasting and warning and flood plain zoning, so as to reduce the recurring expenditure on flood relief.

Land erosion by sea or river 17. The erosion of land, whether by the sea in coastal areas or by river waters inland, should be minimised by suitable cost-effective measures. The States and Union territories should also undertake all requisite steps to ensure that indiscriminate occupation and exploitation of coastal strips of land are discouraged and that the location of economic activities in areas adjacent to the sea is regulated.

Drought management 18.1 Drought-prone areas should be made less vulnerable to drought associated problems through soil-moisture conservation measures, water harvesting practices, the minimisation of evaporation losses, the development of the ground water potential and the transfer of surface water from surplus areas where feasible and appropriate. Pastures, forestry or other modes of development which are relatively less water demanding should be encouraged. In planning water resource development projects, the needs of drought-prone areas should be given priority. 18.2 Relief works undertaken for providing employment to droughtstricken populations should preferably be for drought proofing.

218  India’s National Water Policy – 1987

Science and technology 19. For effective and economical management of our water resources, the frontiers of knowledge need to be pushed forward in several directions by intensifying research efforts in various areas, including the following: • hydro-meteorology; • assessment of water resources; • snow and lake hydrology; • ground water hydrology and recharge; • prevention of salinity ingress; • water-harvesting; • evaporation and seepage losses; • economical designs for water resource projects; • crops and cropping systems; • sedimentation of reservoirs; • the safety and longevity of water-related structures; • river morphology and hydraulics; • soils and material research; • better water management practices and improvements in • operational technology; • recycling and re-use; • use of sea water resources.

Training 20. A perspective plan for standardized training should be an integral part of water resource development. It should cover training in information systems, sector planning, project planning and formulation, project management, operation of projects and their physical structures and systems and the management of the water distribution systems. The training should extend to all the categories of personnel involved in these activities as also the farmers.

Conclusion 21. In view of the vital importance of water for human and animal life, for maintaining ecological balance and for economic and developmental activities of all kinds, and considering its increasing scarcity, the planning and management of this resource and its optimal, economical and equitable use has become a matter of the utmost urgency. The success of the national water policy will depend entirely on the development and maintenance of a national consensus and commitments to its underlying principles and objectives.

Appendix C India’s National Water Policy – 2002 Ministry of Water Resources April 1, 2002 Government of India Ministry of Water Resources NATIONAL WATER POLICY New Delhi

Need for a National Water Policy 1.1 Water is a prime natural resource, a basic human need and a precious national asset. Planning, development and management of water resources need to be governed by national perspectives. 1.2 As per the latest assessment (1993), out of the total precipitation, including snowfall, of around 4000 billion cubic metre in the country, the availability from surface water and replenishable ground water is put at 1869 billion cubic metre. Because of topographical and other constraints, about 60% of this i.e. 690 billion cubic metre from surface water and 432 billion cubic metre from ground water, can be put to beneficial use. Availability of water is highly uneven in both space and time. Precipitation is confined to only about three or four months in a year and varies from 100 mm in the western parts of Rajasthan to over 10000 mm at Cherrapunji in Meghalaya. Rivers and under ground aquifers often cut across state boundaries. Water, as a resource is one and indivisible: rainfall, river waters, surface ponds and lakes and ground water are all part of one system. 1.3 Water is part of a larger ecological system. Realising the importance and scarcity attached to the fresh water, it has to be treated as an essential environment for sustaining all life forms. 1.4 Water is a scarce and precious national resource to be planned, developed, conserved and managed as such, and on an integrated and environmentally sound basis, keeping in view the socio-economic aspects and needs of the States. It is one of the most crucial elements in developmental planning. As the country has entered the 21st century, efforts to develop, conserve, utilise and manage this important resource in a sustainable manner, have to be guided by the national perspective. 1.5 Floods and droughts affect vast areas of the country, transcending state boundaries. One-sixth area of the country is drought-prone. Out of 40 million hectare of the flood prone area in the country, on an average, floods affect an area of around 7.5 million hectare per year. Approach

220  India’s National Water Policy – 2002 to management of droughts and floods has to be co-ordinated and guided at the national level. 1.6 Planning and implementation of water resources projects involve a number of socio-economic aspects and issues such as environmental sustainability, appropriate resettlement and rehabilitation of project-affected people and livestock, public health concerns of water impoundment, dam safety etc. Common approaches and guidelines are necessary on these matters. Moreover, certain problems and weaknesses have affected a large number of water resources projects all over the country. There have been substantial time and cost overruns on projects. Problems of water logging and soil salinity have emerged in some irrigation commands, leading to the degradation of agricultural land. Complex issues of equity and social justice in regard to water distribution are required to be addressed. The development, and overexploitation of groundwater resources in certain parts of the country have raised the concern and need for judicious and scientific resource management and conservation. All these concerns need to be addressed on the basis of common policies and strategies. 1.7 Growth process and the expansion of economic activities inevitably lead to increasing demands for water for diverse purposes: domestic, industrial, agricultural, hydro-power, thermal-power, navigation, recreation, etc. So far, the major consumptive use of water has been for irrigation. While the gross irrigation potential is estimated to have increased from 19.5 million hectare at the time of independence to about 95 million hectare by the end of the Year 1999–2000, further development of a substantial order is necessary if the food and fiber needs of our growing population are to be met with. The country’s population which is over 1027 million (2001 AD) at present is expected to reach a level of around 1390 million by 2025 AD. 1.8 Production of food grains has increased from around 50 million tonnes in the fifties to about 208 million tonnes in the Year 1999–2000. This will have to be raised to around 350 million tonnes by the year 2025 AD. The drinking water needs of people and livestock have also to be met. Domestic and industrial water needs have largely been concentrated in or near major cities. However, the demand in rural areas is expected to increase sharply as the development programmes improve economic conditions of the rural masses. Demand for water for hydro and thermal power generation and for other industrial uses is also increasing substantially. As a result, water, which is already a scarce resource, will become even scarcer in future. This underscores the need for the utmost efficiency in water utilisation and a public awareness of the importance of its conservation. 1.9 Another important aspect is water quality. Improvements in existing strategies, innovation of new techniques resting on a strong science and technology base are needed to eliminate the pollution of

India’s National Water Policy – 2002  221 surface and ground water resources, to improve water quality. Science and technology and training have to play important roles in water resources development and management in general. 1.10 National Water Policy was adopted in September, 1987. Since then, a number of issues and challenges have emerged in the development and management of the water resources. Therefore, the National Water Policy (1987) has been reviewed and updated. Information System 2.1 A well developed information system, for water related data in its entirety, at the national/state level, is a prime requisite for resource planning. A standardised national information system should be established with a network of data banks and data bases, integrating and strengthening the existing Central and State level agencies and improving the quality of data and the processing capabilities. 2.2 Standards for coding, classification, processing of data and methods/ procedures for its collection should be adopted. Advances in information technology must be introduced to create a modern information system promoting free exchange of data among various agencies. Special efforts should be made to develop and continuously upgrade technological capability to collect, process and disseminate reliable data in the desired time frame. 2.3 Apart from the data regarding water availability and actual water use, the system should also include comprehensive and reliable projections of future demands of water for diverse purposes. Water Resources Planning 3.1 Water resources available to the country should be brought within the category of utilizable resources to the maximum possible extent. 3.2 Non-conventional methods for utilisation of water such as through inter-basin transfers, artificial recharge of ground water and desalination of brackish or sea water as well as traditional water conservation practices like rainwater harvesting, including roof-top rainwater harvesting, need to be practiced to further increase the utilisable water resources. Promotion of frontier research and development, in a focused manner, for these techniques is necessary. 3.3 Water resources development and management will have to be planned for a hydrological unit such as drainage basin as a whole or for a sub-basin, multi-sectorally, taking into account surface and ground water for sustainable use incorporating quantity and quality aspects as well as environmental considerations. All individual developmental projects and proposals should be formulated and considered within the framework of such an overall plan keeping in view the existing

222  India’s National Water Policy – 2002 agreements/awards for a basin or a subbasin so that the best possible combination of options can be selected and sustained. 3.4 Watershed management through extensive soil conservation, catchment-area treatment, preservation of forests and increasing the forest cover and the construction of check-dams should be promoted. Efforts shall be to conserve the water in the catchment. 3.5 Water should be made available to water short areas by transfer from other areas including transfers from one river basin to another, based on a national perspective, after taking into account the requirements of the areas/basins. Institutional mechanism 4.1 With a view to give effect to the planning, development and management of the water resources on a hydrological unit basis, along with a multi-sectoral, multi-disciplinary and participatory approach as well as integrating quality, quantity and the environmental aspects, the existing institutions at various levels under the water resources sector will have to be appropriately reoriented/reorganised and even created, wherever, necessary. As maintenance of water resource schemes is under non-plan budget, it is generally being neglected. The institutional arrangements should be such that this vital aspect is given importance equal or even more than that of new constructions. 4.2 Appropriate river basin organisations should be established for the planned development and management of a river basin as a whole or sub-basins, wherever necessary. Special multi-disciplinary units should be set up to prepare comprehensive plans taking into account not only the needs of irrigation but also harmonising various other water uses, so that the available water resources are determined and put to optimum use having regard to existing agreements or awards of Tribunals under the relevant laws. The scope and powers of the river basin organisations shall be decided by the basin states themselves. Water allocation priorities 5. In the planning and operation of systems, water allocation priorities should be broadly as follows: • Drinking water • Irrigation • Hydro-power • Ecology • Agro-industries and non-agricultural industries • Navigation and other uses.

India’s National Water Policy – 2002  223 However, the priorities could be modified or added if warranted by the area/region specific considerations. Project planning 6.1 Water resource development projects should as far as possible be planned and developed as multipurpose projects. Provision for drinking water should be a primary consideration. 6.2 The study of the likely impact of a project during construction and later on human lives, settlements, occupations, socio-economic, environment and other aspects shall form an essential component of project planning. 6.3 In the planning, implementation and operation of a project, the preservation of the quality of environment and the ecological balance should be a primary consideration. The adverse impact on the environment, if any, should be minimised and should be offset by adequate compensatory measures. The project should, nevertheless, be sustainable. 6.4 There should be an integrated and multi-disciplinary approach to the planning, formulation, clearance and implementation of projects, including catchment area treatment and management, environmental and ecological aspects, the rehabilitation of affected people and command area development. The planning of projects in hilly areas should take into account the need to provide assured drinking water, possibilities of hydro-power development and the proper approach to irrigation in such areas, in the context of physical features and constraints of the basin such as steep slopes, rapid run-off and the incidence of soil erosion. The economic evaluation of projects in such areas should also take these factors into account. 6.5 Special efforts should be made to investigate and formulate projects either in, or for the benefit of, areas inhabited by tribal or other specially disadvantaged groups such as socially weak, scheduled castes and scheduled tribes. In other areas also, project planning should pay special attention to the needs of scheduled castes and scheduled tribes and other weaker sections of the society. The economic evaluation of projects benefiting such disadvantaged sections should also take these factors into account. 6.6 The drainage system should form an integral part of any irrigation project right from the planning stage. 6.7 Time and cost overruns and deficient realisation of benefits characterising most water related projects should be overcome by upgrading the quality of project preparation and management. The inadequate funding of projects should be obviated by an optimal allocation of resources on the basis of prioritisation, having regard to the early completion of on-going projects as well as the need to reduce regional imbalances.

224  India’s National Water Policy – 2002 6.8 The involvement and participation of beneficiaries and other stakeholders should be encouraged right from the project planning stage itself. Ground water development 7.1 There should be a periodical reassessment of the ground water potential on a scientific basis, taking into consideration the quality of the water available and economic viability of its extraction. 7.2 Exploitation of ground water resources should be so regulated as not to exceed the recharging possibilities, as also to ensure social equity. The detrimental environmental consequences of overexploitation of ground water need to be effectively prevented by the Central and State Governments. Ground water recharge projects should be developed and implemented for improving both the quality and availability of ground water resource. 7.3 Integrated and coordinated development of surface water and ground water resources and their conjunctive use, should be envisaged right from the project planning stage and should form an integral part of the project implementation. 7.4 Over exploitation of ground water should be avoided especially near the coast to prevent ingress of seawater into sweet water aquifers. Drinking water 8. Adequate safe drinking water facilities should be provided to the entire population both in urban and in rural areas. Irrigation and multipurpose projects should invariably include a drinking water component, wherever there is no alternative source of drinking water. Drinking water needs of human beings and animals should be the first charge on any available water. Irrigation 9.1 Irrigation planning either in an individual project or in a basin as a whole should take into account the irrigability of land, cost-effective irrigation options possible from all available sources of water and appropriate irrigation techniques for optimising water use efficiency. Irrigation intensity should be such as to extend the benefits of irrigation to as large a number of farm families as possible, keeping in view the need to maximise production. 9.2 There should be a close integration of water-use and land-use policies. 9.3 Water allocation in an irrigation system should be done with due regard to equity and social justice. Disparities in the availability of water between head-reach and tail-end farms and between large and small farms should be obviated by adoption of a rotational water distribution

India’s National Water Policy – 2002  225 system and supply of water on a volumetric basis subject to certain ceilings and rational pricing. 9.4 Concerted efforts should be made to ensure that the irrigation potential created is fully utilised. For this purpose, the command area development approach should be adopted in all irrigation projects. 9.5 Irrigation being the largest consumer of fresh water, the aim should be to get optimal productivity per unit of water. Scientific water management, farm practices and sprinkler and drip system of irrigation should be adopted wherever feasible. 9.6 Reclamation of water logged/saline affected land by scientific and cost-effective methods should form a part of command area development programme. Resettlement and rehabilitation 10. Optimal use of water resources necessitates construction of storages and the consequent resettlement and rehabilitation of population. A skeletal national policy in this regard needs to be formulated so that the project affected persons share the benefits through proper rehabilitation. States should accordingly evolve their own detailed resettlement and rehabilitation policies for the sector, taking into account the local conditions. Careful planning is necessary to ensure that the construction and rehabilitation activities proceed simultaneously and smoothly. Financial and physical sustainability 11. Besides creating additional water resources facilities for various uses, adequate emphasis needs to be given to the physical and financial sustainability of existing facilities. There is, therefore, a need to ensure that the water charges for various uses should be fixed in such a way that they cover at least the operation and maintenance charges of providing the service initially and a part of the capital costs subsequently. These rates should be linked directly to the quality of service provided. The subsidy on water rates to the disadvantaged and poorer sections of the society should be well targeted and transparent. Participatory approach to Water Resources Management 12. Management of the water resources for diverse uses should incorporate a participatory approach; by involving not only the various governmental agencies but also the users and other stakeholders, in an effective and decisive manner, in various aspects of planning, design, development and management of the water resources schemes. Necessary legal and institutional changes should be made at various levels for the purpose, duly ensuring appropriate role for women. Water Users’ Associations

226  India’s National Water Policy – 2002 and the local bodies such as municipalities and gram panchayats should particularly be involved in the operation, maintenance and management of water infrastructures/facilities at appropriate levels progressively, with a view to eventually transfer the management of such facilities to the user groups/local bodies. Private sector participation 13. Private sector participation should be encouraged in planning, development and management of water resources projects for diverse uses, wherever feasible. Private sector participation may help in introducing innovative ideas, generating financial resources and introducing corporate management and improving service efficiency and accountability to users. Depending upon the specific situations, various combinations of private sector participation, in building, owning, operating, leasing and transferring of water resources facilities, may be considered. Water quality 14.1 Both surface water and ground water should be regularly monitored for quality. A phased programme should be undertaken for improvements in water quality. 14.2 Effluents should be treated to acceptable levels and standards before discharging them into natural streams. 14.3 Minimum flow should be ensured in the perennial streams for maintaining ecology and social considerations. 14.4 Principle of ‘polluter pays’ should be followed in management of polluted water. 14.5 Necessary legislation is to be made for preservation of existing water bodies by preventing encroachment and deterioration of water quality. Water zoning 15. Economic development and activities including agricultural, industrial and urban development, should be planned with due regard to the constraints imposed by the configuration of water availability. There should be a water zoning of the country and the economic activities should be guided and regulated in accordance with such zoning. Conservation of water 16.1 Efficiency of utilisation in all the diverse uses of water should be optimised and an awareness of water as a scarce resource should be fostered. Conservation consciousness should be promoted through education, regulation, incentives and disincentives.

India’s National Water Policy – 2002  227 16.2 The resources should be conserved and the availability augmented by maximising retention, eliminating pollution and minimising losses. For this, measures like selective linings in the conveyance system, modernisation and rehabilitation of existing systems including tanks, recycling and re-use of treated effluents and adoption of traditional techniques like mulching or pitcher irrigation and new techniques like drip and sprinkler may be promoted, wherever feasible. Flood control and management 17.1 There should be a master plan for flood control and management for each flood prone basin. 17.2 Adequate flood-cushion should be provided in water storage projects, wherever feasible, to facilitate better flood management. In highly flood prone areas, flood control should be given overriding consideration in reservoir regulation policy even at the cost of sacrificing some irrigation or power benefits. 17.3 While physical flood protection works like embankments and dykes will continue to be necessary, increased emphasis should be laid on non-structural measures such as flood forecasting and warning, flood plain zoning and flood proofing for the minimisation of losses and to reduce the recurring expenditure on flood relief. 17.4 There should be strict regulation of settlements and economic activity in the flood plain zones along with flood proofing, to minimise the loss of life and property on account of floods. 17.5 The flood forecasting activities should be modernised, value added and extended to other uncovered areas. Inflow forecasting to reservoirs should be instituted for their effective regulation. Land erosion by sea or river 18.1 The erosion of land, whether by the sea in coastal areas or by river waters inland, should be minimised by suitable cost-effective measures. The States and Union Territories should also undertake all requisite steps to ensure that indiscriminate occupation and exploitation of coastal strips of land are discouraged and that the location of economic activities in areas adjacent to the sea is regulated. 18.2 Each coastal State should prepare a comprehensive coastal land management plan, keeping in view the environmental and ecological impacts, and regulate the developmental activities accordingly. Drought-prone area development 19.1 Drought-prone areas should be made less vulnerable to drought-associated problems through soil moisture conservation measures, water

228  India’s National Water Policy – 2002 harvesting practices, minimisation of evaporation losses, development of the ground water potential including recharging and the transfer of surface water from surplus areas where feasible and appropriate. Pastures, forestry or other modes of development which are relatively less water demanding should be encouraged. In planning water resource development projects, the needs of drought-prone areas should be given priority. 19.2 Relief works undertaken for providing employment to droughtstricken population should preferably be for drought proofing. Monitoring of projects 20.1 A close monitoring of projects to identify bottlenecks and to adopt timely measures to obviate time and cost overrun should form part of project planning and execution. 20.2 There should be a system to monitor and evaluate the performance and socio-economic impact of the project. Water sharing/distribution amongst the states 21.1 The water sharing/distribution amongst the states should be guided by a national perspective with due regard to water resources availability and needs within the river basin. Necessary guidelines, including for water short states even outside the basin, need to be evolved for facilitating future agreements amongst the basin states. 21.2 The Inter-State Water Disputes Act of 1956 may be suitably reviewed and amended for timely adjudication of water disputes referred to the Tribunal. Performance improvement 22. There is an urgent need of paradigm shift in the emphasis in the management of water resources sector. From the present emphasis on the creation and expansion of water resources infrastructures for diverse uses, there is now a need to give greater emphasis on the improvement of the performance of the existing water resources facilities. Therefore, allocation of funds under the water resources sector should be re-prioritised to ensure that the needs for development as well as operation and maintenance of the facilities are met. Maintenance and modernisation 23.1 Structures and systems created through massive investments should be properly maintained in good health. Appropriate annual provisions should be made for this purpose in the budgets.

India’s National Water Policy – 2002  229 23.2 There should be a regular monitoring of structures and systems and necessary rehabilitation and modernisation programmes should be undertaken. 23.3 Formation of Water Users’ Association with authority and responsibility should be encouraged to facilitate the management including maintenance of irrigation system in a time bound manner. Safety of structures 24. There should be proper organisational arrangements at the national and state levels for ensuring the safety of storage dams and other water-related structures consisting of specialists in investigation, design, construction, hydrology, geology, etc. Adam safety legislation may be enacted to ensure proper inspection, maintenance and surveillance of existing dams and also to ensure proper planning, investigation, design and construction for safety of new dams. The Guidelines on the subject should be periodically updated and reformulated. There should be a system of continuous surveillance and regular visits by experts. Science and technology 25. For effective and economical management of our water resources, the frontiers of knowledge need to be pushed forward in several directions by intensifying research efforts in various areas, including the following: • hydrometeorology; • snow and lake hydrology; • surface and ground water hydrology; • river morphology and hydraulics; • assessment of water resources; • water harvesting and ground water recharge; • water quality; • water conservation; • evaporation and seepage losses; • recycling and re-use; • better water management practices and improvements in operational technology; • crops and cropping systems; • soils and material research; • new construction materials and technology (with particular reference to roller compacted concrete, fiber reinforced concrete, new methodologies in tunneling technologies, instrumentation, advanced numerical analysis in structures and back analysis); • seismology and seismic design of structures; • the safety and longevity of water-related structures; • economical designs for water resource projects;

230  India’s National Water Policy – 2002 • • • • • • • • • •

risk analysis and disaster management; use of remote sensing techniques in development and management; use of static ground water resource as a crisis management measure; sedimentation of reservoirs; use of sea water resources; prevention of salinity ingress; prevention of water logging and soil salinity; reclamation of water logged and saline lands; environmental impact; regional equity.

Training 26. A perspective plan for standardised training should be an integral part of water resource development. It should cover training in information systems, sectoral planning, project planning and formulation, project management, operation of projects and their physical structures and systems and the management of the water distribution systems. The training should extend to all the categories of personnel involved in these activities as also the farmers. Conclusion 27. In view of the vital importance of water for human and animal life, for maintaining ecological balance and for economic and developmental activities of all kinds, and considering its increasing scarcity, the planning and management of this resource and its optimal, economical and equitable use has become a matter of the utmost urgency. Concerns of the community needs to be taken into account for water resources development and management. The success of the National Water Policy will depend entirely on evolving and maintaining a national consensus and commitment to its underlying principles and objectives. To achieve the desired objectives, State Water Policy backed with an operational action plan shall be formulated in a time bound manner say in two years. National Water Policy may be revised periodically as and when need arise.

Appendix D India’s National Water Policy – 2012 Government of India Ministry of Water Resources NATIONAL WATER POLICY (2012)

1. PREAMBLE 1.1 A scarce natural resource, water is fundamental to life, livelihood, food security and sustainable development. India has more than 18% of the world’s population, but has only 4% of world’s renewable water resources and 2.4% of world’s land area. There are further limits on utilizable quantities of water owing to uneven distribution over time and space. In addition, there are challenges of frequent floods and droughts in one or the other part of the country. With a growing population and rising needs of a fast developing nation as well as the given indications of the impact of climate change, availability of utilizable water will be under further strain in future with the possibility of deepening water conflicts among different user groups. Low consciousness about the scarcity of water and its life sustaining and economic value results in its mismanagement, wastage, and inefficient use, as also pollution and reduction of flows below minimum ecological needs. In addition, there are inequities in distribution and lack of a unified perspective in planning, management and use of water resources. The objective of the National Water Policy is to take cognizance of the existing situation, to propose a framework for creation of a system of laws and institutions and for a plan of action with a unified national perspective. 1.2 The present scenario of water resources and their management in India has given rise to several concerns, important amongst them are; (i) Large parts of India have already become water stressed. Rapid growth in demand for water due to population growth, urbanization and changing lifestyle pose serious challenges to water security. (ii) Issues related to water governance have not been addressed adequately. Mismanagement of water resources has led to a critical situation in many parts of the country. (iii) There is wide temporal and spatial variation in availability of water, which may increase substantially due to a combination of climate change, causing deepening of water crisis and incidences of water related disasters, i.e., floods, increased erosion and increased frequency of droughts, etc.

232  India’s National Water Policy – 2012 (iv) Climate change may also increase the sea levels. This may lead to salinity intrusion in ground water aquifers/surface waters and increased coastal inundation in coastal regions, adversely impacting habitations, agriculture and industry in such regions. (v) Access to safe water for drinking and other domestic needs still continues to be a problem in many areas. Skewed availability of water between different regions and different people in the same region and also the intermittent and unreliable water supply system has the potential of causing social unrest. (vi) Groundwater, though part of hydrological cycle and a community resource, is still perceived as an individual property and is exploited inequitably and without any consideration to its sustainability leading to its over-exploitation in several areas. (vii) Water resources projects, though multi-disciplinary with multiple stakeholders, are being planned and implemented in a fragmented manner without giving due consideration to optimum utilization, environment sustainability and holistic benefit to the people. (viii) Inter-regional, inter-State, intra-State, as also inter-sectoral disputes in sharing of water, strain relationships and hamper the optimal utilization of water through scientific planning on basin/ sub-basin basis. (ix) Grossly inadequate maintenance of existing irrigation infrastructure has resulted in wastage and under-utilization of available resources. There is a widening gap between irrigation potential created and utilized. (x) Natural water bodies and drainage channels are being encroached upon, and diverted for other purposes. Groundwater recharge zones are often blocked. (xi) Growing pollution of water sources, especially through industrial effluents, is affecting the availability of safe water besides causing environmental and health hazards. In many parts of the country, large stretches of rivers are both heavily polluted and devoid of flows to support aquatic ecology, cultural needs and aesthetics. (xii) Access to water for sanitation and hygiene is an even more serious problem. Inadequate sanitation and lack of sewage treatment are polluting the water sources. (xiii) Low consciousness about the overall scarcity and economic value of water results in its wastage and inefficient use. (xiv) The lack of adequate trained personnel for scientific plan ning, utilizing modern techniques and analytical capabilities incorporating information technology constrains good water management.

India’s National Water Policy – 2012  233 (xv) A holistic and inter-disciplinary approach at water related problems is missing. (xvi) The public agencies in charge of taking water related decisions tend to take these on their own without consultation with stakeholders, often resulting in poor and unreliable service characterized by inequities of various kinds. (xvii) Characteristics of catchment areas of streams, rivers and recharge zones of aquifers are changing as a consequence of land use and land cover changes, affecting water resource availability and quality. 1.3 Public policies on water resources need to be governed by certain basic principles, so that there is some commonality in approaches in dealing with planning, development and management of water resources. These basic principles are: (i) Planning, development and management of water resources need to be governed by common integrated perspective considering local, regional, State and national context, having an environmentally sound basis, keeping in view the human, social and economic needs. (ii) Principle of equity and social justice must inform use and allocation of water. (iii) Good governance through transparent informed decision making is crucial to the objectives of equity, social justice and sustainability. Meaningful intensive participation, transparency and accountability should guide decision making and regulation of water resources. (iv) Water needs to be managed as a common pool community resource held, by the state, under public trust doctrine to achieve food security, support livelihood, and ensure equitable and sustainable development for all. (v) Water is essential for sustenance of eco-system, and therefore, minimum ecological needs should be given due consideration. (vi) Safe Water for drinking and sanitation should be considered as pre-emptive needs, followed by high priority allocation for other basic domestic needs (including needs of animals), achieving food security, supporting sustenance agriculture and minimum eco-system needs. Available water, after meeting the above needs, should be allocated in a manner to promote its conservation and efficient use. (vii) All the elements of the water cycle, i.e., evapo-transpiration, precipitation, runoff, river, lakes, soil moisture, and ground water, sea, etc., are interdependent and the basic hydrological unit is the river basin, which should be considered as the basic hydrological unit for planning.

234  India’s National Water Policy – 2012 (viii) Given the limits on enhancing the availability of utilizable water resources and increased variability in supplies due to climate change, meeting the future needs will depend more on demand management, and hence, this needs to be given priority, especially through (a) evolving an agricultural system which economizes on water use and maximizes value from water, and (b) bringing in maximum efficiency in use of water and avoiding wastages. (ix) Water quality and quantity are interlinked and need to be managed in an integrated manner, consistent with broader environmental management approaches inter-alia including the use of economic incentives and penalties to reduce pollution and wastage. (x) The impact of climate change on water resources availability must be factored into water management related decisions. Water using activities need to be regulated keeping in mind the local geo climatic and hydrological situation.

2. WATER FRAMEWORK LAW 2.1 There is a need to evolve a National Framework Law as an umbrella statement of general principles governing the exercise of legislative and/ or executive (or devolved) powers by the Centre, the States and the local governing bodies. This should lead the way for essential legislation on water governance in every State of the Union and devolution of necessary authority to the lower tiers of government to deal with the local water situation. 2.2 Such a framework law must recognize water not only as a scarce resource but also as a sustainer of life and ecology. Therefore, water, particularly, groundwater, needs to be managed as a community resource held, by the state, under public trust doctrine to achieve food security, livelihood, and equitable and sustainable development for all. Existing Acts may have to be modified accordingly. 2.3 There is a need for comprehensive legislation for optimum development of inter-State rivers and river valleys to facilitate inter-State coordination ensuring scientific planning of land and water resources taking basin/sub-basin as unit with unified perspectives of water in all its forms (including precipitation, soil moisture, ground and surface water) and ensuring holistic and balanced development of both the catchment and the command areas. Such legislation needs, inter alia, to deal with and enable establishment of basin authorities, comprising party States, with appropriate powers to plan, manage and regulate utilization of water resource in the basins.

India’s National Water Policy – 2012  235

3. USES OF WATER 3.1 Water is required for domestic, agricultural, hydro-power, thermal power, navigation, recreation, etc. Utilisation in all these diverse uses of water should be optimized and an awareness of water as a scarce resource should be fostered. 3.2 The Centre, the States and the local bodies (governance institutions) must ensure access to a minimum quantity of potable water for essential health and hygiene to all its citizens, available within easy reach of the household. 3.3 Ecological needs of the river should be determined, through scientific study, recognizing that the natural river flows are characterized by low or no flows, small floods (freshets), large floods, etc., and should accommodate developmental needs. A portion of river flows should be kept aside to meet ecological needs ensuring that the low and high flow releases are proportional to the natural flow regime, including base flow contribution in the low flow season through regulated ground water use. 3.4 Rivers and other water bodies should be considered for development for navigation as far as possible and all multipurpose projects over water bodies should keep navigation in mind right from the planning stage 3.5 In the water rich eastern and north eastern regions of India, the water use infrastructure is weak and needs to be strengthened in the interest of food security. 3.6 Community should be sensitized and encouraged to adapt first to utilization of water as per local availability of waters, before providing water through long distance transfer. Community based water management should be institutionalized and strengthened.

4. ADAPTATION TO CLIMATE CHANGE 4.1 Climate change is likely to increase the variability of water resources affecting human health and livelihoods. Therefore, special impetus should be given towards mitigation at micro level by enhancing the capabilities of community to adopt climate resilient technological options. 4.2 The anticipated increase in variability in availability of water because of climate change should be dealt with by increasing water storage in its various forms, namely, soil moisture, ponds, ground water, small and large reservoirs and their combination. States should be incentivized to increase water storage capacity, which inter-alia should include revival of traditional water harvesting structures and water bodies.

236  India’s National Water Policy – 2012 4.3 The adaptation strategies could also include better demand management, particularly, through adoption of compatible agricultural strategies and cropping patterns and improved water application methods, such as land leveling and/or drip/sprinkler irrigation as they enhance the water use efficiency, as also, the capability for dealing with increased variability because of climate change. Similarly, industrial processes should be made more water efficient. 4.4 Stakeholder participation in land-soil-water management with scientific inputs from local research and academic institutions for evolving different agricultural strategies, reducing soil erosion and improving soil fertility should be promoted. The specific problems of hilly areas like sudden run off, weak water holding capacity of soil, erosion and sediment transport and recharging of hill slope aquifers should be adequately addressed. 4.5 Planning and management of water resources structures, such as, dams, flood embankments, tidal embankments, etc., should incorporate coping strategies for possible climate changes. The acceptability criteria in regard to new water resources projects need to be re-worked in view of the likely climate change.

5. ENHANCING WATER AVAILABLE FOR USE 5.1 The availability of water resources and its use by various sectors in various basin and States in the country need to be assessed scientifically and reviewed at periodic intervals, say, every five years. The trends in water availability due to various factors including climate change must be assessed and accounted for during water resources planning. 5.2 The availability of water is limited but the demand of water is increasing rapidly due to growing population, rapid urbanization, rapid industrialization and economic development. Therefore, availability of water for utilization needs to be augmented to meet increasing demands of water. Direct use of rainfall, desalination and avoidance of inadvertent evapo-transpiration are the new additional strategies for augmenting utilizable water resources. 5.3 There is a need to map the aquifers to know the quantum and quality of ground water resources (replenishable as well as non-replenishable) in the country. This process should be fully participatory involving local communities. This may be periodically updated. 5.4 Declining ground water levels in over-exploited areas need to be arrested by introducing improved technologies of water use, incentivizing efficient water use and encouraging community based management of aquifers. In addition, where necessary, artificial recharging projects should be undertaken so that extraction is less than the recharge. This would allow the aquifers to provide base flows to the surface system, and maintain ecology.

India’s National Water Policy – 2012  237 5.5 Inter-basin transfers are not merely for increasing production but also for meeting basic human need and achieving equity and social justice. Inter-basin transfers of water should be considered on the basis of merits of each case after evaluating the environmental, economic and social impacts of such transfers. 5.6 Integrated Watershed development activities with groundwater perspectives need to be taken in a comprehensive manner to increase soil moisture, reduce sediment yield and increase overall land and water productivity. To the extent possible, existing programs like MGNREGA may be used by farmers to harvest rain water using farm ponds and other soil and water conservation measures.

6. DEMAND MANAGEMENT AND WATER USE EFFICIENCY 6.1 A system to evolve benchmarks for water uses for different purposes, i.e., water footprints, and water auditing should be developed to promote and incentivize efficient use of water. The ‘project’ and the ‘basin’ water use efficiencies need to be improved through continuous water balance and water accounting studies. An institutional arrangement for promotion, regulation and evolving mechanisms for efficient use of water at basin/sub-basin level will be established for this purpose at the national level. 6.2 The project appraisal and environment impact assessment for water uses, particularly for industrial projects, should, inter-alia, include the analysis of the water footprints for the use. 6.3 Recycle and reuse of water, including return flows, should be the general norm. 6.4 Project financing should be structured to incentivize efficient & economic use of water and facilitate early completion of ongoing projects. 6.5 Water saving in irrigation use is of paramount importance. Methods like aligning cropping pattern with natural resource endowments, micro irrigation (drip, sprinkler, etc.), automated irrigation operation, evaporation-transpiration reduction, etc., should be encouraged and incentivized. Recycling of canal seepage water through conjunctive ground water use may also be considered. 6.6 Use of very small local level irrigation through small bunds, field ponds, agricultural and engineering methods and practices for watershed development, etc, need to be encouraged. However, their externalities, both positive and negative, like reduction of sediments and reduction of water availability, downstream, may be kept in view. 6.7 There should be concurrent mechanism involving users for monitoring if the water use pattern is causing problems like unacceptable depletion or building up of ground waters, salinity, alkalinity or similar quality problems, etc., with a view to planning appropriate interventions.

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7. WATER PRICING 7.1 Pricing of water should ensure its efficient use and reward conservation. Equitable access to water for all and its fair pricing, for drinking and other uses such as sanitation, agricultural and industrial, should be arrived at through independent statutory Water Regulatory Authority, set up by each State, after wide ranging consultation with all stakeholders. 7.2 In order to meet equity, efficiency and economic principles, the water charges should preferably/as a rule be determined on volumetric basis. Such charges should be reviewed periodically. 7.3 Recycle and reuse of water, after treatment to specified standards, should also be incentivized through a properly planned tariff system. 7.4 The principle of differential pricing may be retained for the pre-emptive uses of water for drinking and sanitation; and high priority allocation for ensuring food security and supporting livelihood for the poor. Available water, after meeting the above needs, should increasingly be subjected to allocation and pricing on economic principles so that water is not wasted in unnecessary uses and could be utilized more gainfully. 7.5 Water Users Associations (WUAs) should be given statutory powers to collect and retain a portion of water charges, manage the volumetric quantum of water allotted to them and maintain the distribution system in their jurisdiction. WUAs should be given the freedom to fix rates subject to floor rates determined by WRAs. 7.6 The over-drawal of groundwater should be minimized by regulating the use of electricity for its extraction. Separate electric feeders for pumping ground water for agricultural use should be considered.

8. CONSERVATION OF RIVER CORRIDORS, WATER BODIES AND INFRASTRUCTURE 8.1 Conservation of rivers, river corridors, water bodies and infrastructure should be undertaken in a scientifically planned manner through community participation. The storage capacities of water bodies and water courses and/or associated wetlands, the flood plains, ecological buffer and areas required for specific aesthetic recreational and/or social needs may be managed to the extent possible in an integrated manner to balance the flooding, environment and social issues as per prevalent laws through planned development of urban areas, in particular. 8.2 Encroachments and diversion of water bodies (like rivers, lakes, tanks, ponds, etc.) and drainage channels (irrigated area as well as urban area drainage) must not be allowed, and wherever it has taken place, it should be restored to the extent feasible and maintained properly. 8.3 Urban settlements, encroachments and any developmental activities in the protected upstream areas of reservoirs/water bodies, key aquifer recharge areas that pose a potential threat of contamination, pollution,

India’s National Water Policy – 2012  239 reduced recharge and those endanger wild and human life should be strictly regulated. 8.4 Environmental needs of Himalayan regions, aquatic eco-system, wet lands and embanked flood plains need to be recognized and taken into consideration while planning. 8.5 Sources of water and water bodies should not be allowed to get polluted. System of third party periodic inspection should be evolved and stringent punitive actions be taken against the persons responsible for pollution. 8.6 Quality conservation and improvements are even more important for ground waters, since cleaning up is very difficult. It needs to be ensured that industrial effluents, local cess pools, residues of fertilizers and chemicals, etc., do not reach the ground water. 8.7 The water resources infrastructure should be maintained properly to continue to get the intended benefits. A suitable percentage of the costs of infrastructure development may be set aside along with collected water charges, for repair and maintenance. Contract for construction of projects should have inbuilt provision for longer periods of proper maintenance and handing over back the infrastructure in good condition. 8.8 Legally empowered dam safety services need to be ensured in the States as well as at the Centre. Appropriate safety measures, including downstream flood management, for each dam should be undertaken on top priority.

9. PROJECT PLANNING AND IMPLEMENTATION 9.1 Considering the existing water stress conditions in India and the likelihood of further worsening situation due to climate change and other factors, water resources projects should be planned as per the efficiency benchmarks to be prescribed for various situations. 9.2 Being inter-disciplinary in nature, water resources projects should be planned considering social and environmental aspects also in addition to techno-economic considerations in consultation with project affected and beneficiary families. The integrated water resources management with emphasis on finding reasonable and generally acceptable solutions for most of the stakeholders should be followed for planning and management of water resources projects. 9.3 Considering the heavy economic loss due to delay in implementation of projects, all clearances, including environmental and investment clearances, be made time bound. 9.4 Concurrent monitoring at project, State and the Central level should be undertaken for timely interventions to avoid time and cost over-runs. 9.5 All components of water resources projects should be planned and executed in a pari-passu manner so that intended benefits start accruing

240  India’s National Water Policy – 2012 immediately and there is no gap between potential created and potential utilized. 9.6 Local governing bodies like Panchayats, Municipalities, Corporations, etc., and Water Users Associations, wherever applicable, should be involved in planning of the projects. The unique needs and aspirations of the Scheduled caste and Scheduled Tribes, women and other weaker sections of the society should be given due consideration. 9.7 All water resources projects, including hydro power projects, should be planned to the extent feasible as multi-purpose projects with provision of storage to derive maximum benefit from available topology and water resources.

10. MANAGEMENT OF FLOOD & DROUGHT 10.1 While every effort should be made to avert water related disasters like floods and droughts, through structural and non-structural measures, emphasis should be on preparedness for flood/drought with coping mechanisms as an option. Greater emphasis should be placed on rehabilitation of natural drainage system. 10.2 Land, soil, energy and water management with scientific inputs from local, research and scientific institutions should be used to evolve different agricultural strategies and improve soil and water productivity to manage droughts. Integrated farming systems and non-agricultural developments may also be considered for livelihood support and poverty alleviation. 10.3 In order to prevent loss of land eroded by the river, which causes permanent loss, revetments, spurs, embankments, etc., should be planned, executed, monitored and maintained on the basis of morphological studies. This will become increasingly more important, since climate change is likely to increase the rainfall intensity, and hence, soil erosion. 10.4 Flood forecasting is very important for flood preparedness and should be expanded extensively across the country and modernized using real time data acquisition system and linked to forecasting models. Efforts should be towards developing physical models for various basin sections, which should be linked to each other and to medium range weather forecasts to enhance lead time. 10.5 Operating procedures for reservoirs should be evolved and implemented in such a manner to have flood cushion and to reduce trapping of sediment during flood season. These procedures should be based on sound decision support system. 10.6 Protecting all areas prone to floods and droughts may not be practicable; hence, methods for coping with floods and droughts have to be encouraged. Frequency based flood inundation maps should be prepared to evolve coping strategies, including preparedness to supply

India’s National Water Policy – 2012  241 safe water during and immediately after flood events. Communities need to be involved in preparing an action plan for dealing with the flood/drought situations. 10.7 To increase preparedness for sudden and unexpected flood related disasters, dam/embankment break studies, as also preparation and periodic updating of emergency action plans/disaster management plans should be evolved after involving affected communities. In hilly reaches, glacial lake outburst flood and landslide dam break floods studies with periodic monitoring along with instrumentation, etc., should be carried out.

11. WATER SUPPLY AND SANITATION 11.1 There is a need to remove the large disparity between stipulations for water supply in urban areas and in rural areas. Efforts should be made to provide improved water supply in rural areas with proper sewerage facilities. Least water intensive sanitation and sewerage systems with decentralized sewage treatment plants should be incentivized. 11.2 Urban and rural domestic water supply should preferably be from surface water in conjunction with groundwater and rainwater. Where alternate supplies are available, a source with better reliability and quality needs to be assigned to domestic water supply. Exchange of sources between uses, giving preference to domestic water supply should be possible. Also, reuse of urban water effluents from kitchens and bathrooms, after primary treatment, in flush toilets should be encouraged, ensuring no human contact. 11.3 Urban domestic water systems need to collect and publish water accounts and water audit reports indicating leakages and pilferages, which should be reduced taking into due consideration social issues. 11.4 In urban and industrial areas, rainwater harvesting and de-salinization, wherever techno-economically feasible, should be encouraged to increase availability of utilizable water. Implementation of rainwater harvesting should include scientific monitoring of parameters like hydrogeology, groundwater contamination, pollution and spring discharges. 11.5 Urban water supply and sewage treatment schemes should be integrated and executed simultaneously. Water supply bills should include sewerage charges. 11.6 Industries in water short regions may be allowed to either withdraw only the make up water or should have an obligation to return treated effluent to a specified standard back to the hydrologic system. Tendencies to unnecessarily use more water within the plant to avoid treatment or to pollute ground water need to be prevented. 11.7 Subsidies and incentives should be implemented to encourage recovery of industrial pollutants and recycling/reuse, which are otherwise capital intensive.

242  India’s National Water Policy – 2012

12. INSTITUTIONAL ARRANGEMENTS 12.1 There should be a forum at the national level to deliberate upon issues relating to water and evolve consensus, co-operation and reconciliation amongst party States. A similar mechanism should be established within each State to amicably resolve differences in competing demands for water amongst different users of water, as also between different parts of the State. 12.2 A permanent Water Disputes Tribunal at the Centre should be established to resolve the disputes expeditiously in an equitable manner. Apart from using the “good offices” of the Union or the State Governments, as the case may be, the paths of arbitration and mediation may also to be tried in dispute resolution. 12.3 Water resources projects and services should be managed with community participation. For improved service delivery on sustainable basis, the State Governments/urban local bodies may associate private sector in public private partnership mode with penalties for failure, under regulatory control on prices charged and service standards with full accountability to democratically elected local bodies. 12.4 Integrated Water Resources Management (IWRM) taking river basin/ sub-basin as a unit should be the main principle for planning, development and management of water resources. The departments/organizations at Centre/State Governments levels should be restructured and made multi-disciplinary accordingly. 12.5 Appropriate institutional arrangements for each river basin should be developed to collect and collate all data on regular basis with regard to rainfall, river flows, area irrigated by crops and by source, utilizations for various uses by both surface and ground water and to publish water accounts on ten daily basis every year for each river basin with appropriate water budgets and water accounts based on the hydrologic balances. In addition, water budgeting and water accounting should be carried out for each aquifers. 12.6 Appropriate institutional arrangements for each river basin should also be developed for monitoring water quality in both surface and ground waters. 12.7 States should be encouraged and incentivized to undertake reforms and progressive measures for innovations, conservation and efficient utilization of water resources.

13. TRANS-BOUNDARY RIVERS 13.1 Even while accepting the principle of basin as a unit of development, on the basis of practicability and easy implementability, efforts should be made to enter into international agreements with neighbouring countries on bilateral basis for exchange of hydrological data of international rivers on near real time basis.

India’s National Water Policy – 2012  243 13.2 Negotiations about sharing and management of water of international rivers should be done on bilateral basis in consultative association with riparian States keeping paramount the national interest. Adequate institutional arrangements at the Center should be set up to implement international agreements.

14. DATABASE & INFORMATION SYSTEM 14.1 All hydrological data, other than those classified on national security consideration, should be in public domain. However, a periodic review for further declassification of data may be carried out. A National Water Informatics Center should be established to collect, collate and process hydrologic data regularly from all over the country, conduct the preliminary processing, and maintain in open and transparent manner on a GIS platform. 14.2 In view of the likely climate change, much more data about snow and glaciers, evaporation, tidal hydrology and hydraulics, river geometry changes, erosion, sedimentation, etc. needs to be collected. A programme of such data collection needs to be developed and implemented. 14.3 All water related data, like rainfall, snowfall, geo-morphological, climatic, geological, surface water, ground water, water quality, ecological, water extraction and use, irrigated area, glaciers, etc., should be integrated with well defined procedures and formats to ensure online updating and transfer of data to facilitate development of database for informed decision making in the management of water.

15. RESEARCH & TRAINING NEEDS 15.1 Continuing research and advancement in technology shall be promoted to address issues in the water sector in a scientific manner. Innovations in water resources sector should be encouraged, recognized and awarded. 15.2 It is necessary to give adequate grants to the States to update technology, design practices, planning and management practices, preparation of annual water balances and accounts for the site and basin, preparation of hydrologic balances for water systems, benchmarking and performance evaluation. 15.3 It needs to be recognized that the field practices in the water sector in advanced countries have been revolutionized by advances in information technology and analytical capabilities. A re-training and quality improvement programme for water planners and managers at all levels in India, both in private and public sectors, needs to be undertaken. 15.4 An autonomous center for research in water policy should also be established to evaluate impacts of policy decisions and to evolve policy directives for changing scenario of water resources.

244  India’s National Water Policy – 2012 15.5 To meet the need of the skilled manpower in the water sector, regular training and academic courses in water management should be promoted. These training and academic institutions should be regularly updated by developing infrastructure and promoting applied research, which would help to improve the current procedures of analysis and informed decision making in the line departments and by the community. A national campaign for water literacy needs to be started for capacity building of different stakeholders in the water sector.

16. IMPLEMENTATION OF NATIONAL WATER POLICY 16.1 National Water Board should prepare a plan of action based on the National Water Policy, as approved by the National Water Resources Council, and to regularly monitor its implementation. 16.2 The State Water Policies may need to be drafted/revised in accordance with this policy keeping in mind the basic concerns and principles as also a unified national perspective.

Index

accept (ability) 7, 41, 87–88, 90–92, 149, 159–160 account (ability) 3, 21, 42, 103–104, 130–140, 157, 162–163 Act of 1866, 50–51 affordability 21, 23, 25, 27, 32–33, 35, 40–42, 48, 86–87, 91, 147, 153–154, 161, 195, 198 African Charter 23–24, 43, 153 agricultural 12, 23, 49, 88–90, 95, 97, 101–107, 122, 126–127, 147, 150 amalgamation 30–31, 85, 113, 154 Andhra Pradesh Water (Regulation for Drinking Water Purposes) Act 1996, 61 A.P. Pollution Control Board-II vs. Prof. M.V. Nayudu 65, 81 argumentative 4, 9, 27, 29, 69, 154, 158 Article 15(2) 52, 156 Article 19 (1)(e) 53, 156 Article 246, 54–55 Article 262 (1)/Article 262 (2) 55 Asia-Pacific region 25 beneficiaries 31, 53, 68, 77, 86–87, 92–94, 134, 138, 141, 147, 153–154, 159–160, 162 Bengal Irrigation Act 1876, 51 Bengal Regulation VI of 1819, 50 Bihar Municipalities Act 2007, 60, 157 Blackstone 8, 13–14 Bolivarian Republic of Venezuela 26 Bolivian 19, 37–38, 42 Bombay High Court 66, 81 Bombay Irrigation Act 1879, 50–51 bottom-up 34, 67, 72, 158 British colonial rule 50, 156 Chennai 8 children 13, 22, 24, 31–32, 39, 53, 86, 92–94, 154, 160, 165, 199

China’s water laws 26 Citizens for Water Democracy 67–69, 82 civil society 9, 40, 50, 58, 67, 71–74, 85, 98, 105–108, 150, 156–159, 161, 163 claimability 30, 33, 62, 152 colonial administration 50–51, 63, 75 common consensus 34, 155 community-based organizations 33 Conference on Environment and Development 20, 196 Conference on Population and Development 20, 39, 196 Conference on the Human Environment 20, 39 Constitutional Amendment Act 1992 73rd and 74th 54 Constitution of Republic of South Africa 26 Constitution of Republic of the Gambia 26 Constitution of Republic of Uruguay 26 Constitution of Republic of Venezuela 26 Constitution of the Commonwealth of Massachusetts 25 Constitution of the Commonwealth of Pennsylvania 26 Constitution of the Federal Republic of Ethiopia 26 Constitution of Uganda 26 Constitution of Zambia 26 Convention on the Elimination of all forms of Discrimination against Women 21, 196 Convention on the Rights of Persons with Disabilities, 2006, 21 Convention on the Rights of the Child 20, 196

246  Index correlation 30–31, 86 criminal law treaties 19 cultural relativism 23 Directive Principles of State Policy 54, 156 disadvantaged 24, 85–86, 89–94, 119, 124, 150, 160, 162, 165 discrimination 21–22, 24–29, 34–35, 40–41, 55, 64, 69, 75, 85, 87, 92, 109, 125, 130, 148, 159–162 Durbin Conference 4, 10 eco-feminism 16–17, 152 economic fascism 19 egalitarian 33, 44 Embankment Regulation 1829, 50–51 Environmental Sanitation Services 58, 156 Environment Protection Act, 1986, 56 equality x, 5, 16, 19, 40, 46–47, 52, 74, 86, 105, 113, 125, 148, 156 equitable distribution 20, 57, 59 European Commission 24–25, 44 European Council of Environmental Law 24 European Union 23–24, 44, 153 exploitation 34–35, 64, 85, 88, 99–100, 102, 109, 125–130, 159, 162 facilitating (financial accessibility) 116, 124–125, 128, 161 Factories Act 1948, 56 feminist 16, 70 Five Year Plans 57–58, 80 F.K. Hussain vs. Union of India 64, 81 Francis Coralie Mullin vs. Union Territory of Delhi 64 freedom 1, 9, 14, 21, 27, 30–34, 46, 53, 55, 86, 94, 97, 117–119, 148–149, 155–156 Fundamental Duties (Article 51 (A) (g)) 53, 156 General Comment 15 18, 20–26, 28–30, 40, 149, 153, 196 Georgia’s Water laws 26 Getzler 13–14, 49, 151 global justice movement 6, 67, 152 global partners 19, 23 Government of India Act, 1935, 52 green neoliberalism 5 Guidelines for Drinking Water Quality 58 Guidelines for Safe Use of Wastewater and Grey Water 58

Gujarat 7 Gujarat Panchayat Act 1993, 60, 157 Hamid Khan vs. State of Madhya Pradesh 66, 81 Hegel 13, 15, 35, 151 Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act 2005, 61, 157 Hinch Lal Tiwari vs. Kamala Devi 65 Hobbes 13–14, 151 immunity 33, 155 Indian Constitution 52–55, 60, 63, 74, 156–157 Indian judiciary 2, 9, 50, 52, 55, 63–67, 71, 73, 155, 157–158 individualism 15, 22 Indonesian Regulation 26 industrial 7, 12, 19, 31, 33, 38, 54–55, 57, 80, 89, 95, 97, 101, 108, 120–129, 132, 139, 146, 150, 164 institutionalisation 5–6, 17, 27, 75, 154 institutional undertakings 12, 29 interlinking 34 international actors 6, 9 International Environmental and Labour Treaties 17–18, 39, 152 International Humanitarian (Law Treaties) 17–18, 39, 152 international institutions 17 internationalisation 5–6, 23, 27, 154 International Monetary Fund 5, 36–37 Inter-State River Water Dispute Act 1956, 54 irrigation 2, 7, 33, 38, 46, 50–55, 61–63, 66, 69, 75–77, 87–90, 95–97, 107, 109–115, 118–119, 125–130, 134–136, 141–142, 147–148, 158 Jharia Water Supply Act 1914, 51, 78 Karnataka Ground Water Act 1999, 60 Karnataka Urban Water Supply and Drainage Board Act of 1973, 59 Kerala 7, 63, 65, 81 Kumaon Water Rules of 1917, 51 labour treaties 17–18, 39, 152 legal frameworks xii, 9, 49, 55, 57, 63, 156 legislature 9, 25, 54, 79 liberal environmentalism 5 liberalism 5, 16

Index  247 Limitation Act 1963, 56 Locke, J. 13–16, 151 Lucknow Grih Swami Parishad vs. State of Uttar Pradesh 67 Maharashtra 7, 60–61, 64, 80, 82, 157 Maharashtra Ground Water (Regulation for Drinking Water Purposes) Act 1993, 61, 157 Maharashtra Municipalities Act 1965, 60 Maharashtra State Water Policy 2003, 61 Mar del Plata Action Plan 65 market environmentalism 5 (neo)Marxism 16–17, 152 M.C. Mehta vs. Kamal Nath 64, 81 Ministry of Drinking Water and Sanitation 59 Ministry of Jal Shakti 10, 59, 77 Ministry of Water Resources, River Development & Ganga Rejuvenation 59 modern political thought 13, 151 monitoring 42–43, 59, 85, 109–110, 123, 144–146, 150, 156, 159, 163, 165 monopoly 32, 34–35, 85, 109, 125–130, 159, 162 morality 14 Narmada Bachao Andolan vs. Union of India 66 National Rural Drinking Water Quality Monitoring & Surveillance Programme 59, 156 national water policies xii, 1, 4, 7–10, 75, 84, 91–93, 97, 99, 102, 109, 112–113, 118, 124–125, 129–131, 136–138, 143–144, 146–149, 158–164 navigation 50, 78, 95, 97, 122 need-based approach 148 neo-globalisers 19 neoliberalisation of nature 5 neoliberalism 5, 16–20, 27, 29, 37–38, 67, 130, 151–152, 154 neo-Marxism 16–17, 152 NGOs 22, 31–33, 67–69, 72–73, 82, 98, 106, 155, 157 non-discrimination 22–27, 29, 41, 69, 75, 148 non-retrogression 22 normative xii, 1, 9, 17, 36, 41–42 Northern India Canal and Drainage Act, 1873, 78 Nozick 13, 15, 151

obligatory Party 100, 102–105 ownership x, 13–15, 52, 54, 62–63, 78, 105, 151 pairing of rights and duties 155 people’s participation 22, 58, 61, 68, 77, 82, 85, 107–109, 130–134, 136–138, 141, 148, 150, 159, 162, 164 philosophical arguments 5, 12, 17 planning and program 50, 57, 72 policy makers xii, 10, 37, 40, 83, 164–165 pollution 2, 7, 33, 39, 48, 55–56, 58, 64–65, 68, 79, 81, 88, 90, 103, 120–121, 123–124, 145, 147, 161–162 post-neoliberalism 5, 16–18, 20, 27, 29, 37–38, 67, 152, 154 Post Washington Consensus 5, 20 Prevention and Control of Pollution Act, 1974, 56, 79 Prime Minister 7, 36, 76–77, 83 priorities 3, 31, 33–34, 45–47, 68, 76, 84–85, 94, 97–98, 126, 160 private sector 29, 42, 61, 102–105, 132, 135–136, 139, 142, 147, 161 privatisation 4, 16, 37–38, 68–70, 77, 82, 124, 152, 159 problem-solving approach 8 promoting (reuse and conservation of water) 161 Protocol of San Salvador 24 Punjab Minor Canals Act 1905, 51 Punjab Water Supply Sewerage Act 1976, 60, 157 Rajasthan State Water Policy 1999, 61 research community 105–107, 150 Residential Welfare Association 69 Resolution A/Res/54/175/1999, 20 resolutions 5, 17–18, 20–21, 24, 37, 41, 52, 152–153, 196 right-based 4, 163 Rights of Persons with Disability Act 2016, 56 Right to Education Act 2009 (Article 21 (A)) 156 Right to Life (Article 21) 53, 156 River Boards Act 1956, 55 Santosh Govind Mahajan vs. State of Maharashtra 64 Scheduled Caste 92–94, 138, 141, 160, 162

248  Index Scheduled Tribes 92–94, 138, 141, 160, 162 Second Treatise of Government 14 Seventh Schedule (Article 246) 54 South African Water Services Act 27 South Africa’s Basic Water Policy 26 special beneficiaries 84, 86, 92–94, 147 Subhash Kumar vs. State of Bihar 64, 81 sufficient 3, 14, 24, 40–41, 45, 56, 65, 87, 91, 147, 150, 160 sustainable development goals xii, 8, 23 Swajaldhara 58–59, 81, 156 synthesiser 72, 158 Tajikistan’s Water Code 26, 48 Tamil Nadu Water Supply Act 1970, 60, 156 Tarun Bharat Sangh 68–69, 82 Thatcherism 16, 18–19, 35–36, 151–152 The Act of 1866, 50–51 theoretical arguments 9, 29, 152, 154 top-down 73 transparency 3, 43, 85, 130–137, 140–141, 146, 162–163 trumping power 31 UN GA Resolution A/Res/64/292, 2010, 21, 153 Union Entry 56 (list-I) 54 United Kingdom Water Industry Act 27 United Nations xii, 5–6, 10, 18, 20–21, 23–24, 36, 39, 102, 149, 152–153 United Nations Committee on Economic, Social and Cultural Right 21, 153 United Nations Development Agency 23 United Nations General Assembly Resolution A/Res/64/292, 153 Utter Pradesh Minor Canals Act 1920, 51 Uttar Pradesh Water Supply and Sewerage act 1975, 60, 157

Venkatagiriyappa vs. Karnataka Electricity Board 66, 81 Vishala Kochi Kudivella Samarkshana Samithi vs. State of Kerala 65, 81 Washington Consensus 5, 16, 18–20, 36, 151–152 water activists 6, 17, 19–20, 67, 157 Water Democracy 67–70, 82, 156 water efficiency 5, 105, 152 water equality 4–5, 16, 19, 26, 86, 94, 103, 105, 108, 113, 117, 126, 129–130, 148, 152, 161 water freedoms 1, 9, 86 water governance xii, 1, 4, 8, 12, 17, 23, 52, 69, 74, 76, 100, 115, 117, 152, 157, 160 water justice (movement) xii, 1, 8, 16–17, 19–20, 36, 67, 69, 71–73, 82, 105, 108, 148, 152, 155, 165 Water Liberation Campaign 67, 82 Water Policy Analysis Guiding Framework 9–10, 84–85, 149, 159 water pollution 2, 7, 48, 56, 58, 79, 90, 103, 123, 162 water rights 19, 38, 70, 152, 159 water scarcity xii, 7, 32–33, 45, 57, 80, 123, 147–148, 155, 165 water scholars 1, 6, 17, 19–20, 22, 32, 67, 69–71, 73, 76–77, 83, 150, 156 water stress xi, 2, 7, 16, 33, 62, 74, 76, 125, 155, 165 Water Users Association 118–119, 134, 136, 141 Water Warriors 5–6 water wastage 2, 33, 43, 90, 102–103, 118, 130, 150 Water Workers Alliance 68–69, 80 woman 16, 21–24, 31–32, 37, 39–40, 44, 46, 58, 68–70, 79, 82, 85–86, 92–94, 134, 136, 138, 141, 154, 156, 160, 165 World Bank group 4 World Trade Organizations 22