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Right to Water Gets Major Boost in a Historic Judgement by the Mumbai High Court

Struggle for access to water by slum dwellers got a major boost in India with the judgement on December 15th by a Mumbai High Court bench presided by Justice Abhay Oak and Justice A S Gadkari. They ordered that whether homes are deemed ‘legal’ or ‘illegal’ – in upholding Article 21 of the Indian Constitution – it is the responsibility of the government to provide water to all. This re-enforces the intrinsic relationship between water and life and clearly established that the right to water is as fundamental as the right to life. Pani Haq Samiti, a coalition of civil society groups in the city welcome this and termed it as historic.

The Urban Development Department (UDD) Maharashtra and the Municipal Corporation of Greater Mumbai (MCGM) had issued circulars instructing that water should not be supplied to those living in unauthorized structures, which prohibited regularized water connections to nearly 30 lakh people living in post 1995 slums the city. Challenging this circular, in October 2011, a PIL was filed by Pani Haq Samiti (a collective of activists, organizations, institutions and slum dwellers). The cut-off date for the regularisation of the slums was recently revised to January 1, 2000 from 1995 after struggle led by Ghar Bachao Ghar Banao Andolan.

Based on data from the Crime Branch sourced through an RTI, the Court pointed out that 4000 plus police constables and 81 ACP level officers live in post 1995 slums. Appalled by this fact, the Court highlighted that the state government does not provide low cost housing, and neither does it provide water to all in the city. It was stated that the Court failed to understand how the state government disallows the Municipal Corporation from supplying water to people.

Restating that water supply is mandatory despite the legality of structure, the Court ordered the MCGM to submit a water supply proposal on or before February end 2015. As an advice to the MCGM, the Court reiterated a Pani Haq Samiti suggestion that could be included in the proposal, i.e. instead of providing individual connections, group connections could be provided for every 7-15 families as per MCGM water rules. This would help in management of water supply to all areas. The court also stated that water charges levied should be equal for all.

Pani Haq Samiti in its statement said that for all those fighting for the right to water in the country, this is a historic judgment. This is the first time that it has been stated that in order to realise Article 21, access to water is essential. Till date there has been no law in India that mandates water to all. The judgement is a great impetus to movements across the country fighting for the basic rights of people.

In Mumbai, like many other metropolitan cities, lack of piped water to the irregular slums or unauthorised colonies means that the access to water has been only through the water mafia; while buildings are provided 1000 litres of water for Rs 4, the water mafia charge Rs 1000 for 1000 litres of water in slums – water has become a financial burden as 30 to 40 percent of a family’s income was spent on water.

Access to water has been an issue in elections but for many slums across the country, situation has not changed and piped, regular and potable drinking water remains a distant dream. Delhi elections are approaching and with that the political parties are also making promises of free water.

Internationally, On July 28, 2010 UN General Assembly adopted a draft resolution recognising access to clean water and sanitation as a human right. The resolution was adopted by 122 votes in favour, with none against and 41 abstentions. The resolution called on “States and international organizations to provide financial resources, build capacity and transfer technology, particularly to developing countries, in scaling up efforts to provide safe, clean, accessible and affordable drinking water and sanitation for all”. India voted in favour of this resolution. However, no law exists today, which can guarantee this right to citizens.

Mumbai High Court judgement is a landmark with the rising slum population across the country and the continuing debate on legality and illegality of their existence. It will be useful to note the earlier judgements where various courts have upheld that the right to clean and safe water is an aspect of the right to life. For instance, in Narmada Bachao Andolan v Union of India (2000), the Supreme Court said that “water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India”.

In another significant judgement the Kerala High Court in 1990 in Attakoya Thangal v. Union of India recognized the fundamental importance of the right to water. In this case, the petitioners claimed that a scheme for pumping up ground water for supplying potable water to the Laccadives (now known as the Lakshadweep Islands) in the Arabian Sea would upset the fresh water equilibrium, leading to salinity in the available water resources and causing more long-term harm than short-term benefits. The Kerala High Court, in its judgement, requested deeper investigation and monitoring of the scheme and the judge clearly recognised the right of people to clean water as a right to life enshrined in Article 21, observing that:

“…the administrative agency cannot be permitted to function in such a manner as to make inroads into the fundamental right under Art 21. The right to life is much more than a right to animal existence and its attributes are manifold, as life itself. A prioritization of human needs and a new value system has been recognized in these areas. The right to sweet water and the right to free air are attributes of the right to life, for these are the basic elements which sustain life itself.”

Pani Haq Samiti, equated this judgement with a significant milestone in their struggle for right to water and remembered 1927 water Stayagraha by Dr Babasaheb Ambedkar at Chavdar Lake in Mahad to allow Dalits access to water.