Researcher: Priya Sangameswaran
This study is basically a desk-top review of the rights discourse in the context of water, based on academic and popular literature on rights and civil society initiatives as well as government documents regarding water and related subjects. The study has two broad motivations. Firstly, engagement with the idea of rights (and the right to water) helps to bring questions of social justice and equity to the forefront. Secondly, a study linking rights and water provides a bridge between different discourses (economics, legal pluralism, development studies, human rights, natural resource management) and different groups of actors (lawyers and activists dealing with human rights, social scientists dealing with the question of ‘development’), thereby opening up possibilities of synergies between them.
There are four parts to the study. The first part reviews the different rights-based concepts which are relevant to water – human rights, right to water, water rights, right to development, rights-based approach to development, and entitlements. This helps to clarify the distinctions between these different concepts and to understand what is at stake in each of them – for instance, for the role of the state, as well as for different dimensions of a right to water. Further, the debates that are found in different versions of rights, be it human rights or rights-based approaches or the right to development (the relative importance of legal versus non-legal aspects, the role of the state, the implications of power inequalities at various levels) are relevant to issues of water too. Rights could be also a useful strategic instrument, especially in negotiations with governments and donors. However, one must also bear in mind the pitfalls of using over-simplified versions of rights. Finally, the discussion of rights, entitlements and endowments gives a theoretical foundation for linking a rights-based framework to equity.
The second part clarifies the content of the right to water by unpacking its different dimensions. The different possible dimensions to the right to water include the precise nature of the rights/entitlements, the unit to which the right should be assigned, what kind of needs should be considered within the ambit of the right (drinking, household needs, livelihood requirements), the quantity and quality requirements for each of these, questions of accessibility and affordability of water, the responsibilities of the state and of right-holders, ownership of water resources, the kind of system put in place for water delivery, pricing of water, participation, the relation of the right to water to other rights such as right to housing or right to development, and the impact of globalisation on various aspects of the right to water. This discussion brings out the inter-connections between different dimensions and reinforces the fact that even defining what a right to water is complex and context-specific (let alone realising it).
The third part discusses the extent to which legislation and policies at different levels support various elements of the right to water. While there are a number of different discourses at the international level that have influenced water, the right to water has been most often discussed in the human literature. While there is support for such a right, the most important statement to date – the General Comment 15 of the United Nations, leaves a lot of issues undefined. At the India-level, the legal status of ‘right to water’ is discussed by focusing on constitutional support for the right to water, followed by an analysis of how the contours of such a right are actually shaped by water-related policies, legislation and judicial judgments. But while a basis for a right to water has been found in the Indian constitution under a fundamental right viz. right to life, neither the judiciary, nor the government has engaged with the General Comment in particular, or the human rights discourse in general (at least in the context of a right to water), which, in turn, is an indication of the hegemony of other water discourses. The specific discussion of different dimensions of water shows, on the whole, that from the point of view of a meaningful right to water, there are several lacunae in central-level policies and legislation, particularly in the form that current changes in the irrigation and drinking water sector have taken. This results in limitations in the working of the right to water at the state level. Further, the division of labor between the centre and the state means that some of the recommendations made by the centre are non-statutory in nature, and not necessarily followed by the state governments.
While there is some recognition of right to water in international human rights as well as in the Indian constitution, at the level of state legislation and policies in India, different dimensions of the right to water do not get much support. This is true even of cases like Maharashtra, where a particular version of rights (viz. entitlements to water) has been put forward in the context of Participatory Irrigation Management. On the one hand, the recent reforms undertaken in the realm of Maharashtra indicate the influence that central-level policies and legislation have on the states, even though water is technically a state subject. On the other hand, while the changes in Maharashtra have potential in increasing the rights of some groups (like WUAs), the nature of these rights are limited; in fact, they are more in line with a narrow, tradable permits version of water rights.
The fourth part discusses the kind of civil society initiatives being undertaken in water, including differences in the actors involved, the particular dimensions of water that they deal with, and the strategies they adopt. Two cases at the India-level – the anti-Coke struggles at Plachimada in Kerala and the agitations against the privatisation of the Sheonath river in Chhattisgarh, are discussed in some detail, along with civil society initiatives in water in the specific case of Maharashtra. These initiatives have engaged with more dimensions of the right than the human rights discourse and state legislation. For instance, the idea of water for livelihoods and the relation between water and development has been an important part of at least some of these struggles. But more importantly, the use of rights language and efforts to engage with the state indicate the potential for synergies between different domains.
Published as: Technical Report, CISED, 2007