Water is a precious natural resource and basic need sustaining the life of all living creatures. It cannot be produced or added electronically or hydrologically or by any other technology, though it can be recycled to some extent. On the earth, 75 per cent of surfaces are covered with water. Yet, people living in the remaining surfaces are suffering without potable water for their basic requirements. The United Nations Report on Water for Life 2005-2015 estimates that one out of six people — more than a billion population — does not have adequate access to safe water. All major claims and conflicts over water in the world arise in respect of the share and distribution of three per cent of fresh water, which occurs in ice poles, glaciers, rivers, ponds, and other waterbodies.
Access to water for all people was considered a primary need and given priority in governance during the pre-colonial days. Wells, tanks and other waterbodies were created and managed by people themselves with their traditional knowledge.
Official data by the Archaeological Survey of India (ASI) reveal that 6,76,000 big structures for rainwater harvesting were in use, some of them 1,000 years old. They were constructed and maintained by villagers for their life and development. Water governance was articulated as an art and inherited by generation after generation as an integral part of life. Even without any code or law, waterbodies and irrigation, were regulated by custom.
The present sovereign power over waterbodies and rivers is a concept introduced by British rulers and it prevented communities from participating in preserving the waterbodies for their proper use. The doctrine of public trust, which is embedded in the Constitution, had prevailed in India prior to the British administration. But the Northern India Canal and Drainage Act, 1873, the first law on water resources, introduced the doctrine of Eminent Domain and declared the state’s right over water sources. Subsequently, other laws such as the Easements Act, 1882, which determines the right and ownership of private parties over enjoyment of water flow, were enacted. The British laws had minimised the participation of public-spirited people in water governance.
Since the adoption of the Constitution, water has become a State subject under List II. Hitherto, more than 32 Central Acts enacted by Parliament and two national water policies, 1987 and 2002, have been drafted. Consequently, a natural resource has become a legal subject resulting in the common public expecting schemes and projects from the Central and State governments for maintenance, desalination and reconstruction of tanks, ponds.
The inherited art of water harvesting has been conveniently forgotten by people. After the state became the absolute owner of all public waterbodies, the involvement of its citizens in safeguarding them was given up and community involvement drastically diminished. Today, water governance is suffering from institutional paralysis at the hands of unaware and inattentive users.
The lack of awareness of water sources leads to a tragedy of converting water bodies into land areas. In a case before the Madras High Court, (W.P. (MD) No. 2779/07 dt. 12th November 2007 Dr. R.S.Lal Mohan Vs Executive engineer, WRO), the shrinking of water sources was brought to the notice of the judiciary, by a pro bono public petition. The court expressed its anguish over t he disappearance of tanks. As per the census taken in 1962, in Kanyakumari district of Tamil Nadu, more than 3,500 waterbodies were noticed and identified, but in 1998 more than 1,000 of these tanks were lost.
The arbitrary use of waterbodies for various other purposes by the state without considering the ecological consequences and the lack of response from the community are the main cause of groundwater depletion. Thus, the people who raise their voice for the right to water have to realise their own faults and failure to protect the natural water harvesting bodies.
Therefore, water-sensitisation is a prerequisite to claim rights and entitlements. Creating awareness among and engaging local bodies and their representatives in the maintenance of water harvesting and storing structures is an important preliminary work to be undertaken by the state and non-governmental organisations.
India possesses five per cent of the world’s water wealth, but has 20 per cent of the world population. Digging wells and tanks was once considered a meritorious service. Despite all the importance attached to water, there has been no effective mechanism adopted to prevent its pollution.
There are many inter-State water disputes and intra-State water conflicts pending before courts and tribunals without a permanent solution. The sharing of the scarce water resources among people even poses threats to the federal structure of the country. Water activists say that a comprehensive code has to be drafted with clear definitions of individual rights, riparian rights and the rights of the State parties in inter-State water sharing.
However, the right to water means easy, affordable, access to everyone for basic needs. River-water-sharing between two or more States does not directly come under access to water for an individual. The other argument put forth by activists is that in inter-State conflicts, the ultimate stakeholders are the people.
Nonetheless, for the purpose of determining the right in global perspectives, water for drinking, sanitation and household purposes has been measured at 150 litres a day per capita. This definition has been generally accepted to approach the claim of right to water in human rights perceptions.
The Supreme Court has recognised the “Doctrine of Public Trust” as an integral part of water jurisprudence. In M.C. Mehtha vs. Kamalnath and others (W.P.NO. 182 of December 13, 1996), it held that the doctrine primarily rests on the principle that natural resources like air, sea, water and forests have such importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. Being a gift of nature, these resources should be made freely available to everyone.
The right to water is not only an inalienable basic right of an individual and it is a factor that creates gender equality. It acts as a bridge between water-scarce communities and those with water wealth. As a humanitarian gesture, communities blessed with water wealth should come forward to share it with the people of water-stressed areas. The basic fact that water is nature’s gift and a shared heritage for all has to prevail in the minds of everyone.
(The author is a Civil Judge Junior Division serving in the Tamil Nadu State Judicial Service. His email is: sathiyamurthy2000@gmail.com)
