The Right to Water: A Constitutional Perspective

This paper examines the justiciability of social rights, looking at the Right to Water as an integral part of the Right to Life guaranteed under Article 21 of the constitution of India. Till date the right to clean drinking water has been protected as a fundamental human right by the Indian Supreme Court with regard to cases where water sources were being polluted by industries and thus affecting the environment. Thus the right to water has been cited by the Supreme Court as an integral part of the guarantee of the right to a clean environment as part of the right to life under Article 21 of the constitution. Such an articulation of the right to clean drinking water falling within the rubric of the right to environment has till date only limited it to being articulated as a negative right that water sources should not be polluted.

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

In framing such an argument, my paper also borrows from South African constitutional jurisprudence, since as the South African Constitution specifically guarantees to citizens the right to adequate food and water in its Bill of Rights. To what extent can this right be enforceable, and is it dependant on state resources? Do water providing agencies have any obligations to citizens before disconnection of water supply? Does the state have a duty to provide basic water supply even if it does not have sufficient resources? These are some of the questions that my paper attempts to answer.