Water rights in India: economic good, fundamental rights, or human rights?

Abstract

While India battles COVID-19, hand washing is the survival strategy. The research objective is to critically examine water rights in India. The research asks whether there are rights to water in India, and if so, what kind. The thesis proposition is that India has derivative rights to water that are neither fundamental nor human rights. The research methodology is by narrative analysis. States prefer an economic good theory, rom the Dublin Statement. Fundamental rights to ground water in India are unlikely to be shifted. The India Constitution now provides additional rights. Human rights for water are only derivative and undeclared.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Swasti Pachauri, ‘Drought, literature and the lessons’ Down To Earth (15 July 2020).

2 WN Hohfeld, ‘The Foundations of a Theory of Rights’ (1924) 10(n 3) V Law Regist New Ser 549.

3 M Cranston, What Are Human Rights? (Bodley Head 1973) 36.

4 D Rutherford, Routledge Dictionary of Economics (Routledge 2002) 160.

5 Hohfeld 549.

6 ibid.

7 jus in re aliena, or encumbrance, which includes servitudes, security interests, real burdens, land charge, rentcharge, emphyteusis, right of first refusal; land leased by another who holds title of property. Henry Campbell Black, Black’s Law Dictionary (2nd edn, The Lawbook Exchange 1910).

8 jus in re propria – the right of enjoyment (i.e., the right to use the property in any legal manner) which is incident to full ownership or property, and is often used to denote the full ownership or property itself. Black, Black’s Law Dictionary.

9 That is, if A has a right in personam against B that the latter shall "transfer" some "legal interest," e. g., title of Blackacre, to A, A is said to have only a jus ad rem; whereas after conveyance made by B, A would have jus in re. For very interesting instances of the use of the terms jus in re and jus ad rem in connection with attempts to explain the nature of uses and trusts. Co. Lit. (1628) 272 b.

10 Wesley Newcomb Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26(n 8) Yale Law J 734.

11 W Markby, Elements of Law (6th edn, Clarendon Press 1875).

12 ibid 99 note.

13 [1914] AC 398.

14 ibid 431.

15 Luca Fiorito and Massimiliano Vatiero, ‘Beyond Legal Relations: Wesley Newcomb Hohfeld’s Influence on American Institutionalism’ (2011) 45(n 1) J Econ Issues, 199–222.

16 J Feinberg, Social Philosophy (Prentice-Hall 1973) 61–62.

17 ibid 62.

18 Alison Dundes Renteln, ‘The Concept of Human Rights’ (1988) 83(4/6) Anthropos 343–346.

19 M Cranston, What Are Human Rights? (2nd edn).

20 R Wasserstrom, ‘Rights, Human Rights, and Racial Discrimination’ in D Lyons (ed), Rights (Wadsworth Publishing Company 1979) 46-57.

21 ibid 50; Renteln.

22 Justinian, Institutes, 2.1.1.

23 JL Wescoat, ‘The “Right of Thirst” for Animals in Islamic Law: A Comparative Approach’ (1995) 13 Environ Plan D Soc Space 637–643.

24 Dharmshastra (Hindi) = Theology (English).

25 Vyavhara (Hindi)= Business (English).

26 K Singh, ‘Cooperative Property Rights as an Instrument of Managing Groundwater’ in M Moench (ed), Groundwater Law: The Growing Debate (VIKASAT 1995) 69–82.

27 Rutherford (2nd edn).

28 World Bank, World Development Report (Oxford University Press 1992).

29 A thing or things held jointly.

30 J Winpenny, Managing Water as an Economic Resource (Routledge 1994) 133.

31 Marcus Moench, ‘Allocating the Common Heritage Debates over Water Rights and Governance Structures in India’ (1998) 33(26) Econ Pol Wkly A46–A-46.

32 ibid.

33 Uday Raj Rai, Fundamental rights and their Enforcement (PHI Learning Private Ltd 2011).

34 Rural Litigation and Entitlement Kendra Dehradun and others v State of U.P. and others.

35 A Pathak, Contested Domains: The State, Peasants and Forests in Contemporary India (Sage Publications 1994) 172.

36 Attakoya Thangal v Union Of India (UoI) on 1 January, 1990; C Singh, ‘Research Agenda for Groundwater Law in India’ in Marcus Moench (ed), Groundwater Law: The Growing Debate (VIKASAT 1995) 174–80.

37 “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Constitution of India, art. 21.

38 C Singh.

39 ‘A sale of personal chattels implies an affirmation by the seller that the chattel is his, and therefore he warrants the title, unless it is shown by the facts and circumstances of the sale, that the vendor did not intend to assert ownership but only to transfer such interest as he had in the chattel sold’. M Bridge, Benjamin’s Sale of Goods (10th edn, Sweet & Maxwell 2017) sec. 639.

40 Chhatrapati Singh, (ed.), Water Rights in India (Indian Law Institute 1992) sec. 3.42.

41 The Transfer of Property Act, 1882, (India).

42 Land Acquisition Act, 1894, (India).

43 Chhatrapati Singh, (ed.), Water Rights in India (Indian Law Institute 1992) sec. 3.42.

44 See the exposition of the 19th century common law development of water rights in G Lilienthal, ‘Water Rights and Correlative Duties in New South Wales’ (2020) 45 Commonw Law Bull 1–22. <doi.org/10.1080/03050718.2020.1756882>

45 A Jacob, ‘The Existing Legal Regime of Ground Water: Some Observations’, paper presented to Efficiency and Equity in Groundwater Use and Management (Institute of Rural Management 1989); C Singh, Water Rights and Principles of Water Resources Management (Indian Law Institute1991) 158.

46 Moench A46–A-48.

47 Model Bill for the Conservation, Protection, Regulation and Management of Groundwater, 2016, (India).

48 ibid chap II.

49 ibid chap. III.

50 ibid chap IV.

51 ibid chap V.

52 ibid chap VI.

53 ibid chap VII.

54 ibid chap VIII.

55 ibid chap IX.

56 ibid chap X.

57 ibid chap XI.

58 ibid chap XII.

59 ibid chap XIII.

60 Model Bill for the Conservation, Protection, Regulation and Management of Groundwater, 2016, (India).

61 Bombay Irrigation Act, 1879, (India).

62 BPC Sinha and S K Sharma, ‘Need for Legal Control of Ground Water Development-Analysis of Existing Legal Provisions’ (1987 April–June) Bhu Jal News 10–13.

63 KON and GOI, Hydrological Investigations for the Santalpur and Sami-Harij RWSS, Regional Water Supply Schemes in Gujarat State (Kingdom of the Netherlands, Ministry of Foreign Affairs, and Government of India, Ministry of Agriculture 1992) 70.

64 BD Dhawan ‘Preventing Groundwater Over-Exploitation’, paper presented to Efficiency and Equity in Groundwater Use and Management, Institute of Rural Management (Anand 1989); M Moench, ‘Drawing Down the Buffer: Science and Politics of Groundwater Management in India’ (1992) 27(13) Econ Polit Wkly A7.

65 Model Bill for the Conservation, Protection, Regulation And Management Of Groundwater, 2016, (India), chap VIII.

66 M Monech, ‘Summary’ in M Moench (ed), Groundwater Law: The Growing Debate (VIKASAT 1995) 1–6.

67 H Chandrashekar, ‘Formulation of Better Management Techniques and Legislative Control on Utilisation of Groundwater Resources in Karnataka’ in M Monech (ed), Groundwater Law: The Growing Debate (VIKASAT 1995) 18–29; SC Sharma, ‘Regulation of Groundwater Development in India: Existing Provisions and Future Options’ in M Moench (ed), Groundwater Law: The Growing Debate (VIKASAT 1995) 6–17; BPC Sinha and SK Sharma.

68 The Kumaon and Garhwal Water (Collection, Retention and Distribution) Act, 1975, (India).

69 C Singh.

70 K Singh.

71 ‘What Price for the Priceless?: Implementing the Justiciability of the Right to Water’ (2007) 120(4) Harv Law Rev 1067–1069.

72 The World Health Organization (WHO) is the directing and coordinating authority on international health within the United Nations’ system.

73 World Health Organization & United Nations Children’s Fund, Global Water Supply and Sanitation Assessment 2000 Report.

74 UN World Water Assessment Programme, Water for People, Water for Life 10.

75 Statement of African Ministerial Conference on Water (AMCOW) at the World Summit on Sustainable Development in Johannesburg, South Africa, (August 2002) 2.

76 A permanent shortage of water caused by a dry climate.

77 A drying-up of the landscape, particularly the soil, resulting from activities such as deforestation and over-grazing.

78 Christopher L Kukk and David A Deese, ‘At the Water’s Edge: Regional Conflict and Cooperation over Fresh Water’, (1996) 1 UCLA J Int Law & Foreign Aff 21–45.

79 ibid.

80 UN Economic & Social Council, Commission on Human Rights, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-Discrimination.

81 VVN Murty and K Takeuchi, Land and Water Development for Agriculture in the Asia Pacific Region (Science Publishers 1996) 1–2.

82 Food & Agriculture Organization of the UN, Needed by African Farmers: Simple Water Pumps, 2001.

83 Marianne Kjellen and Gordon McGranahan, Comprehensive Assessment of the Freshwater Resources of the World (Stockholm Environment Institute 1997) 7.

84 World Health Organization & United Nations Children’s Fund, 3.

85 ibid 2.

86 UN Economic &Social Council, Commission on Human Rights, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-Discrimination 15.

87 Differential status issues appear to be non-justiciable. G Lilienthal and N Ahmad, ‘Abridgement and Conferral of Juridical Personality’ (2015) 28 J Jurisprudence 453–461.

88 Rebecca J Cook, ‘Advancing Safe Motherhood Through Human Rights’ in Isfahan Merali and Valerie Oosterveld (eds), ‘Giving Meaning to Economic, Social and Cultural Rights’ (2001) 29(3) J Soci Soc Welfare 114.

89 Asian Legal Research Centre, Reports of the Special Rapporteur on the Right to Food, Article 2 International Covenant on Civil and Political Rights (April 2003) 16, 22.

90 R Wasserstrom, ‘Rights, Human Rights, and Racial Discrimination’ in D Lyons (ed), Rights (Wadsworth Publishing Company 1979) 50.

91 GA Res. 217A, U.N. GAOR, 3d Sess., 1st plen.mtg., U.N. Doc. A/810 (Dec. 10, 1948).

92 Christoph Beat Graber, ‘The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO?’ (2006) 9(3) J Int Econ Law 553–560.

93 Christoph Beat Graber, ‘The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO?’ (2006) 9(3) J Int Econ Law 553–560.

94 GA Res. 217A, U.N. GAOR, 3d Sess., 1st plen.mtg., U.N. Doc. A/810 (Dec. 10, 1948), art. 22.

95 ibid art.25(1).

96 Opened for signature Dec. 16, 1966, 993 U.N.T.S. 3.

97 ibid.

98 ibid art. 12(1); Sheldon Leader, ‘Human Rights, Risks, and New Strategies for Global Investment’ (2006) 9(3) J Int Econ Law 657–698.

99 UN Economic & Social Council, Commission on Economic, Socail & Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 15, U.N. Doc. E/C. 12/2002/11 Qan. 20, 2003.

100 International Covenant on Economic, Social and Cultural Rights, Adopted and Opened for signature Dec. 16, 1966, 993 U.N.T.S. 3.

101 The Constitution of India.

102 Amy Hardberger, ‘Life_, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and the Duties and Obligations it Creates’ (2005) 4(2) Northwestern J Int Hum Rights 331–352.

103 Prakash Shah, ‘International Human Rights: A Perspective From India’ (1997) 21(1) Fordham Int Law J 24–31.

104 C Raj Kumar, ‘Human Rights Implications of National Security Laws in India: Combating Terrorism While Preserving Civil Liberties’ (2005) 3(2) Denver J Int Law Policy 195–214.

105 The Directive Principles provide that “[t]he State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” Constitution of India, art.38.

106 Constitution of India, art. 37C.

107 (1992) 3 S.C.R. 658

108 ibid 105.

109 (1988) 1 S.C.C. 471.

110 MC Mehta and Anr v Union Of India & Ors1987 AIR 1086, 1987 SCR (1) 819.In this petition the petitioner requested the court to request the Supreme Court (‘the Court’) to restrain the respondents from releasing effluents into the Ganga river till the time they incorporate certain treatment plants for treatment of toxic effluents to arrest water pollution. The Court held the despite the above-stated provisions in the Water (Prevention and Control of Pollution) Act, 1974 Act no effective steps were taken by the State Board to prevent the discharge of effluents into the river Ganga. Also, despite the provisions in the Environment Protection Act, no effective steps were taken by the Central Government to prevent the public nuisance caused by the tanneries at Kanpur.

111 According to the Constitution of India, art. 51-A(g): ‘It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures’.

112 Ibid.

113 Vellore Citizens Welfare Forum v Union Of India & Ors on 28 August, 1996. (1996) 5 S.C.C. 647.

114 ibid.

115 Belinda U Calaguas, A Water Aid Briefing Paper: The Right to Water, Sanitation and Hygiene and the Human Rights-based Approach to Development (Water Aid 1999).

116 The Dublin Statement on Water and Sustainable Development. The Dublin Statement on Water and Sustainable Development, also known as the Dublin Principles, was a meeting of experts on water-related problems, that took place on 31 January 1992 at the International Conference on Water and the Environment (ICWE), Dublin, Ireland, organised on 26–31 January 1992.

117 International Conference on Water and the Environment: Developing Issues for the 21st Century, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No.15, U.N. ESCOR Comm.

118 ibid.

119 Elisabeth Türk and Markus Krajewski, The Right to Water and Trade in Services: Assessing the Impact of GATS Negotiations on Water Regulation, Draft Paper presented at the CAT + E Conference “Moving forward from Cancún” Berlin, 30-31 October 2003.

120 The International Bill of Human Rights was the name given to UN General Assembly Resolution 217 (III) and two international treaties established by the United Nations. It consists of the Universal Declaration of Human Rights (adopted in 1948), the International Covenant on Civil and Political Rights (ICCPR, 1966) with its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966). The two covenants entered into force in 1976, after a sufficient number of countries had ratified them.

121 Erik B Bluemel, ‘The Implications of Formulating a Human Right to Water’ (2004) 31(4) Ecology Law Quarterly 957.

122 International Conference on Water and the Environment: Developing Issues for the 21st Century, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 15, U.N. ESCOR Comm.

123 Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 15, U.N. ESCOR Comm. On Econ., Soc. & Cultural Rights, 29th Sess., Agenda Item 3, U.N. Doc. E/C.12/2002/11 (2002) [hereinafter GC 15].

124 ibid Recommendation (2001) 14 of the Committee of Ministers to Member States on the European Charter on Water Resources, paras 5 19.

125 ibid.

126 Erik B Bluemel, ‘The Implications of Formulating a Human Right to Water’ (2004) 31(4) Ecology Law Quarterly 957 969.

127 United Nations Economic and Social Council.

128 Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 15, U.N. ESCOR Comm. On Econ., Soc. & Cultural Rights, 29th Sess., Agenda Item 3, U.N. Doc. E/C.12/2002/11 (2002).

129 Rights & Humanity, An Introduction to the Right to Water, Article 11 (1), Committee on Economic, Social and Cultural Rights, Document E/C.12/2002/11, 2003, p. 8.

130 GC 15 Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 15, U.N. ESCOR Comm.On Econ., Soc. & Cultural Rights, 29th Sess., Agenda Item 3, U.N. Doc. E/C.12/2002/11 (2002).

131 Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 15, U.N. ESCOR Comm.On Econ., Soc. & Cultural Rights, 29th Sess., Agenda Item 3, U.N. Doc. E/C.12/2002/11 (2002).

132 JA Allen, ‘Water in the Middle East and in Israel- Palestine: Some Local and Global Issues’ in Marwan Haddad & Eran Feitelson (eds), Identification of Joint Management Structures for Shared Aquifers (World Bank Publications 1998); J Lundqvist & Peter H Gleick, ‘Sustaining Our Waters into the 21st Century’ in U.N. Comprehensive Freshwater Assessment (1997).

133 GA Res. 128, V.N. GAOR, 41th Sess., Supp. No., at 187, U.N. Doc. A/41/925(1986).

134 Erik B Bluemel, ‘The Implications of Formulating a Human Right to Water’ (2004) 31(4) Ecology Law Quarterly 957.

135 World Health Organization, The Right to Water (WHO 2003) 16.

136 GC 15 General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health, art. 24.

137 Elisabeth Türk & Markus Krajewski, The Right to Water and Trade in Services: Assessing the Impact of GATS Negotiations on Water Regulation, Draft Paper presented at the CAT + E Conference "Moving Forward from Cancun," Berlin, at 3-6 (Oct. 30-31, 2003).

138 Centre on Housing Rights and Evictions Right To Water Programme, The Right to Water & the International Covenant on Economic, Social and Cultural Rights, discussion draft presented at the “Right to Water” Roundtable, Nov.14, 2002 3-4.

139 General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health art. 24.

140 World Summit on Sustainable Development, Johannesburg Declaration On Sustainable Development, Planof Implementation, U.N. Doc. A/CONF.199/20, Plan (2000) 21

141 General Comment No. 15: The Right to Water,arts. 11, 12 of the Covenant, Adopted at the Twenty-ninth Session of the Committee on Economic, Social and Cultural Rights, on 20 January 2003 (Contained in Document E/C.12/2002/11) office of the High Commissioner for Human Rights.

142 United Nations, Resolution adopted by the General Assembly on 28 July 2010, [without reference to a Main Committee (A/64/L.63/Rev.1 and Add.1)] 64/292. The human right to water and sanitation.

143 United Nation General Assembly, Resolution adopted by the Human Rights Council 18/1, The human right to safe drinking water and sanitation.

144 ibid art 1.

145 General Comment No. 15: The Right to Water, arts. 11, 12 of the Covenant, Adopted at the Twenty-ninth Session of the Committee on Economic, Social and Cultural Rights, on 20 January 2003 (Contained in Document E/C.12/2002/11) office of the High Commissioner for Human Rights.

146 ibid.

147 ibid.

148 ibid.

149 ibid.

150 Kristin Komives, Designing Pro-Poor Water and Sewer Concessions: Early Lessons from Bolivia, World Bank Policy Research Working Paper No. 2243 (World Bank 1999).

151 Elisabeth Türk & Markus Krajewski, at 3–6.

152 World Health Organization, 9.

Additional information

Notes on contributors

Ashu Jain

Ashu Jain is Head, Department of Tax Procedure & Practice, Faculty of Commerce, St. Aloysius College, Jabalpur, India.

Gary Lilienthal

Gary Lilienthal is Chairman and Professor of Law at Carrington Rand in Hong Kong, and also, Professor of Law at NALSAR University of Law, India.