Dr.

Ram Manohar Lohiya

National Law University, Lucknow

Environmental Law
Final Draft

Conservation of Water: An outline of existing

framework and need for prioritizing stronger
regulation
SUBMITTED TO
Mr. Vipin Yadav
Assistant Professor (Law)
Dr. RMLNLU, Lucknow.

SUBMITTED BY
Nida FATIMA
1
Roll no :78, Section A
th
7 Semester, B.A. LL.B (Hons.)

ACKNOWLEDGMENT
I owe my deepest gratitude to Mr. Vipin Yadav for giving me this golden opportunity to propose the
project on this topic which has helped me in doing lot of research and understanding the variable
aspects of the topic.
I would also like to thank my family members and friends for their kind support and encouragement. I
would like to express my special thanks to those original thinkers I have taken to privilege to quote.
Much of the data deployed here has been taken from the Dr. Madhu Limaye Library, Dr. Ram Manohar
Lohiya National Law University.
It would be wrong on my part if I dont mention the grace of Almighty for enlightening me from time
to time. Though a lot of care has been taken there may be scope for improvement. All criticism and
suggestions are kindly invited.

Table of Contents.
Page No.
Table of Cases
Introduction

03
04-05

Chapters:
1.Water Law: Towards Water Quality Regulation and Environmental
Consequences thereto.................................................................................................. 06-08
2.Pollution of Water:Statutory Attempts in India to Control Pollution.......................... 09-14
3.Water Pollution Control: Judicial Perspectives ........................................................... 15-18
4.Public Trust: Water As a Substance Under the Care of Government.......................... 19-20
5.Sustainable Water Principles: Towards a Global Policy Framework.......................... 21-22
6.Enforcement of Water Pollution Control:Nature of Hurdles....................................... 23-25
Conclusions & Suggestions..................................................................................... 26-27
Bibliography............................................................................................................. 28-29
Table of Cases
Subhash Kumar v. State Of Bihar And Ors , 1991 AIR 420.
Narmada Bachao Andolan v. Union of India (2000)
Pravinbhai J. Patel v. State of Gujarat 1955 (2) Guj.L.R. 1210, 1216.
A.P. Pollution Control Board II v. Prof. M.V. Nayudu, (2001) 2 SCC 62.
Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664.
Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647.
Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496.
MC Mehta v. UOI, AIR 1988 SC 1037.
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
Mohan Vaniya Viniyog Private Ltd v. State of West Bengal AIR 2007 Cal 1900 (NOC)

Introduction
Water, thou hast no taste, no color, no odor; canst not be defined, art relished
while ever mysterious. Not necessary to life, but rather life itself, thou fillest us
with a gratification that exceeds the delight of the senses.-Antoine de Saint-Exupery
Five elements namely Earth, Air, Water, Fire and Space constituted Universe. Today
all these life-sustaining elements are being used, misused and abused without much
discrimination. Of all life sustaining elements water has a unique place-the total
volume of water on Earth is about 1400 million km*3 of which only 2.5 percent is
fresh water. Most freshwater occurs in the form of permanent ice or snow, locked up
in Antarctica and Greenland, or in deep groundwater aquifers. The principal sources
of water for human use are lakes, rivers and soil moisture and relatively shallow
groundwater basins. The usable portion of these sources is only less than one percent
of all freshwater. The allocation of the meager freshwater for the domestic,
agriculture and industry increases the pressure on water resources, leading to
tensions, creating conflicts among users, producing disputes and crafting excessive
pressure on the environment. The increasing stress on freshwater resources brought
about an ever rising demand and profligate use, as well as by growing pollution
world wide, is of serious concern.
On the other hand the water quality has become a major global concern due to ever
increasing human developmental activities. Water is one of the most essential
requirements for all living beings, Industrialization and human activity for a better
quality of life has always resulted in some. Impact on the environment leadings to
equilibrium imbalance of the natural system. Bolstered by recent legislative,
administrative and judicial initiatives, environmental, regulation in India bristles with
new and interesting features. Until the mid-eighties the regulatory system was fairly
dull. In control and enforcement techniques, there was little to distinguish this field
from the general body of law for instance, when parliament enacted the water act
4
1974. It adhered to the pattern of numerous
other Indian statutes and created yet

another agency administered licensing system this time to control effluent discharges
into water. A breach of the Act Invite Judge imposed penalties. The body of case law

too.
Furthermore water law and policy framework as far as the distribution and control of
water by different States is concerned is another area of concern. India's dependence
on water is basic inferable from its huge agricultural base, the water needs of its
billion or more populace, and the late economic development patterns. Drinking
water is a standout amongst the most essential human necessities. Notwithstanding,
the right to water is seen distinctively under different "developmental models" sought
after by diverse nations. In India, the right to water has no unequivocal lawful or
established support however from the most recent three decades it has been begun to
be acknowledged as essential human right, basically because of different court
decisions. Different court decisions emphasized that under Article 21, the right to
access to clean drinking water is a crucial right and an obligation on the state to give
clean drinking water to its subjects. Notwithstanding, what is comprehended by
"clean and safe drinking water" is still not a settled question in water policies , laws
or even court decisions.
The present study will try to bring out the importance of having laws which provides
greater clarity and transparency by providing an indication of the approach to be
adopted under the scheme of environmental law in relation to water sector since there
is no comprehensive water legislation in India and the legislation on control of water
pollution renders a system of control different from those in any other laws in the
past. The prime reason is perhaps the Constitution of India which gives power to the
state governments to make water laws.As the importance and advantages of
understanding the existence of a number of laws in various states and the technical
nature of law which makes it difficult for practitioners, activist and other stakeholders
to understand and use law for the benefit of the society and environment increases
this study strives to bring focus on those importance and advantages.Various water
law and policy framework have been referred in order to bring out the clear
understanding of the topic.So an effort has been made to concentrate on the ongoing
reform process, which will facilitate dialogue and a better understanding of the
problems plaguing the sector, and eventually result in more effective and equitable
solutions.

1. Water Law: Towards Water Quality Regulation and

Environmental Consequences thereto

Water Law- A General Description
Water law is the area of law dealing with ownership, access and control of water. It is
also concerned with the inter-state and trans-boundary dimensions of water, the
division of powers between the Government of India (or the Central government),
states, local bodies (such as municipalities in urban areas and panchayats in rural
areas), the public and private actors, as well as the issue of water quality together
with its environmental and health implications.

Objectives of Water Law

The following are the main objectives of water law:
Allocation of water for different uses;
Setting up of priorities among different uses of water;
Conservation of water resources;
Implementation of the fundamental human right to water;
Maintain the quality of water sufficient for its various uses;
Ensure water for human survival and poverty eradication;

Legal Framework in India

National water law is more developed than international water law. Nevertheless,
India lacks an umbrella framework to regulate freshwater in all its dimensions. The
existing water law framework in India is characterized by the coexistence of a
number of different principles, rules and acts adopted over many decades. These
include common law principles and irrigation acts from the colonial period as well as
more recent regulation of water quality and the judicial recognition of a human right
to water. The lack of an umbrella legislation at the national level has ensured that the
different state and central legal interventions and other principles do not necessarily
coincide and may in fact be in opposition in certain cases. Thus, the claims that
landowners have over groundwater under
6 common law principles may not be
compatible with a legal framework based on the human right to water and the need to
allocate water preferentially to domestic use and to provide water to all, whether

landowners or not on a equal basis.1

In terms of statutory development, irrigation laws constitute historically the most
developed part of water law. The early Northern India Canal and Drainage Act, 1873
sought, for instance, to regulate irrigation, navigation and drainage in Northern India.
One of the long-term implications of this act was the introduction of the right of the
Government to use and control for public purposes the water of all rivers and
streams flowing in natural channels, and of all lakes. 2 Statutory water law also
includes a number of pre- and post-independence enactments in various areas. These
include laws on embankments, drinking water supply, irrigation, floods, water
conservation, river water pollution, rehabilitation of evacuees and displaced persons,
fisheries and ferries.
In general, water law is largely state based. This is due to the constitutional scheme,
which since the Government of India Act, 1935 has in principle given power to the
states to legislate in this area. Thus, states have the exclusive power to regulate water
supplies, irrigation and canals, drainage and embankments, water storage,
hydropower and fisheries.3 There are nevertheless restrictions with regard to the use
of inter-state rivers.4 Further, the Union is entitled to legislate on certain issues. These
include shipping and navigation on national waterways as well as powers to regulate
the use of tidal and territorial waters. 5 The Constitution also provides that the Union
can legislate with regard to the adjudication of inter-state water disputes. 6 While the
intervention of the central government in water regulation is limited by the
constitutional scheme, the importance of national regulation in water has already
been recognised in certain areas. Thus, with regard to water pollution, Parliament
did adopt an act in 1974, the Water Act. This act seeks to prevent and control water
pollution and maintain and restore the wholesomeness of water. It gives powers to
water boards to set standards and regulations for prevention and control of pollution.

1 Cullet, Philippe . WATER LAW IN INDIA OVERVIEW OF EXISTING FRAMEWORK AND

PROPOSED REFORMS. IELRC Working Paper. Web< http://www.ielrc.org/content/w0701.pdf >, as
accessed on 18th Sep. 2014 at 20:11.
2 Preamble, Canal and Drainage Act, 1873 (Act VIII7 of 1873).
3 Schedule 7, List 2, Entries 17 and 21, Constitution of India.
4 Schedule 7, List 1, Entry 56, Constitution of India.
5 Schedule 7, List 1, Entries 24, 25 and 57, Constitution of India.
6 Article 262, Constitution of India.

FUNDAMENTAL HUMAN RIGHT TO WATER

The existing legal framework concerning water is complemented by a human rights
dimension. While the Constitution does not specifically recognise a fundamental right
to water, court decisions deem such a right to be implied in Article 21 (right to life). 7
The right to water can be read as being implied in the recognition of the right to a
clean environment. Over the past couple of decades, the existing legal framework
concerning water has been complemented by a human rights dimension. The core
message is that all human beings are entitled to equal and non-discriminatory supply
of a sufficient amount of water. This has led to the demand for legal recognition of
the right to water and corresponding changes in water related laws and policies of
countries. In India, the fundamental right to water has been confirmed by the courts.
In these cases, the right has been asserted on the basis of fundamental rights under the
Constitution (Articles 14, 15(2), 17 and 21). In some cases courts have made it clear
that the government has an obligation to provide water. Reliance can be placed upon
Apex Courts judgment wherein it was held that the right to life includes the right
of enjoyment of pollution free water and air for full enjoyment of life.8 Then
again it was held that Water is the basic need for the survival of the human
beings and is part of right of life and human rights as enshrined in Article 21 of
the Constitution of India.9
Water law includes a number of other laws and regulations that are directly or
indirectly concerned with water. One example concerns dams. Two major aspects of
dam building are regulated by laws and regulations, which are only partly concerned
with water. With regard to environmental impact assessment, the Environmental
Impact Assessment Notification provides a framework for assessing the
environmental impacts of planned big hydropower and irrigation projects. 10 Further,
there are Guidelines for Environmental Impact Assessment of River Valley Projects,
which provide a general framework since 1985 for assessing the impacts of planned
big dam projects.11
7 Muralidhar, S. The Human Right to Water. The Right to Water: An Overview of the Indian Legal
Regime. Berliner Wissenschafts-Verlag : Berlin, 2008. Print.
8
8 Subhash Kumar v. State Of Bihar And Ors , 1991 AIR 420.
9 Narmada Bachao Andolan v. Union of India (2000)
10 Notification on Environmental Impact Assessment of Development Projects, 2006.
11 Guidelines for Environmental Impact Assessment of River Valley Projects, 1985, available at
http://www.ielrc.org/ content/e8503.pdf.

2.

Pollution of Water: Statutory Attempts in India to Control

Pollution

The statutory attempts in India to control pollution can be traced to the legislation of
the local bodies. One of the traditional responsibilities of a local body was to ensure
cleanliness of the concerned territories. Local bodies exercised all such powers as
were necessary for the suitable disposal of waste. They exercised regulatory control
to prevent and abate nuisance from water pools, which adversely affected agriculture.
Contaminated water supply, noxious vegetation, harmful dust and smoke or
unsanitary conditions of buildings were of much concern to the local bodies, and
sanctions were imposed against persons who violated the regulations.

POLLUTION OF WATER
The present legislation on pollution of water renders a system of control different
from those in any other laws in the past. The Water Act was enacted for the purpose
of prevention and control of pollution of water. It came into being at a time when the
country was already on the path of industrialization and urbanization. The need was
keenly felt for treatment of domestic and industrial effluents, before they were
discharged into rivers and streams. Pollution of streams, rivers and other water
courses reduced the availability of potable water. In addition, it caused deterioration
in the quality of vegetation and other living creatures in water. The destruction of the
fish population is an example. It had far reaching consequences upon the economy. It
was against this background that the Water Act was enacted. 12 Water, being a State
subject, the Parliament passed the law on the request of some of the states in the
country.13
The history and preamble of the Water Act suggests that only State governments can
enact water pollution legislation. The Act, therefore, was passed by Parliament
pursuant to enabling resolutions by twelve states, under Article 252(1) of the
Constitution. Article 252 empowers Parliament to enact laws on State subjects for
12 See statements of objects and reasons to the Water (Prevention and Control of Pollution) Bill 1974.
9
13 States of Assam, Bihar, Gujarart, Haryana, Himachal
Pradesh, J&K, Karnataka, Kerela, Madhya
Pradesh, Rajasthan, Tripura and West Bengal passed a resolution requesting national legislation under
Art 252(1) of the Constitution. The attempt at such a legislation had its origin in 1962, when a
commmittee was appointed. After circulating the reports among state governments and after detailed
deliberations on a draft Bill, the comprehensive legislation in the year 1974 enabled both the central
and state pollution control board to deal with the problem of water pollution in the country.

two or more States, where State legislatures have consented to such legislation.
The Act vests regulatory authority in the State Boards and empowers these boards to
establish and enforce effluent standards for factories discharging pollutants into
bodies of water. A Central board performs the same functions for union territories and
coordinates activities among the States. The Boards control sewage and industrial
effluent discharges by approving, rejecting or conditioning applications for consent to
discharge. The State Boards also minimize water pollution by advising State
governments on appropriate sites for new industry.14
Prior to its amendment in 1988, enforcement under the Water Act was achieved
through criminal prosecution initiated by the boards, and through applications to
magistrates for injunctions to restrain polluters. The 1988 amendment strengthened
the Acts implementation provisions. Now, a board may close a defaulting industrial
plant or withdraw its supply of power or water by an administrative order; the
penalties are more stringent; and a citizens initiative provision bolsters the
enforcement machinery. In Gujarat the amendments introduced in 1988 have not been
adopted by a resolution of the legislature under article 252. As a result, the 1988
amendments do not apply to that State.15

DEFINITION UNDER THE WATER ACT

The purpose of the legislation was not only the prevention and control of water
pollution, but also the maintenance and restoration of wholesomeness of water. Under
the Water Act, pollution is considered a nuisance or an evil that harms public health.
The Water Act, defines the pollution of water as:
Pollution means

Contamination of water

Alteration of the physical, chemical or biological properties of water

Discharge of any sewage or trade effluent or any other liquid, gaseous or solid
substance into water (whether directly or indirectly)

which may, or is likely to, create a nuisance or render such water harmful or injurious
to public health or safety, or to domestic, commercial, industrial, agricultural or other
legitimate uses, or to the life and health of animals or plants or of aquatic
10

14 Divan, Shyam and Armin Rosencranz. Constitutional and Legislative Provisions. Environmental
Law and Policy in India. 2nd ed. Oxford University Press: Delhi, 2008. Print.
15 Pravinbhai J. Patel v. State of Gujarat 1955 (2) Guj.L.R. 1210, 1216.

organisms.16
Water bodies and streams are useful for several purposes. They are habitat for many
aquatic organisms. In Mohan Vaniya Viniyog Private Ltd v. State of West Bengal 17,
the Calcutta High Court held that filling up of water bodies and streams result in
alteration of the physical properties of water. Hence, the term pollution has to be
construed in a wide sense, and not in a narrow manner.
Definitions of sewage effluent, trade effluent and stream in the Water Act are
also conspicuous.18 Sewage effluent means effluent from any sewage system or
sewage disposal works, and includes sullage from open drains. Trade effluent fluids
an illustrative definition as including any liquid, gaseous or solid substance which is
discharged from any premises used for carrying on any industry, operation or process
or treatment and disposal system other than domestic sewage.
The definition of stream is also an inclusive one. It includes river, flowing or dry
watercourse, natural or artificial inland water, subterranean waters or sea or tidal
waters.19 However when the stream relates to sea or tidal waters, it is defined to
include only to such an extent, or as the case may be, to such a point as the State
government may specify, by notification in the Official Gazette.
Prohibition of disposal of polluting matter to a stream or well or sewer or on land, 20 is
the key to the regulation under the Water Act. According to this system, no person
shall knowingly cause or permit poisonous, noxious or polluting matter to enter into a
stream or well or sewer or on land. The prohibition extends to a case, where the entry
of any other matter impedes the proper flow of water in a manner leading, or likely to
lead, to a substantial aggravation of pollution. Although the violation of these
provisions is against the public interest and leads to penal consequences, this offence
stands different from public welfare offences21 in a modern welfare State, as the
16 Water (Prevention and Control of Pollution) Act 1974, Section 2 (e).
17 AIR 2007 Cal 1900 (NOC). The Court held that by necessary implication, the East Calcutta
Wetlands (Conservation and Management) Act 2006 dealing with lands is a perfect instrument of law
to fight water pollution.
18 Water (Prevention and Control of Pollution) Act 1974, 2 s(g), s2(k). Prior to the amendment of the
Water Act in 1988, only the expression trade and industry was present in the definition in place of
industry, operation or process or treatment and disposal system.
11
19 Water (Prevention and Control of Pollution) Act 1974, 2 s(j).
20 Ibid, s 24.
21 The term refers to offences punishable without criminal intent that were witnessed at the beginning
of the twentieth century as a result of a shift in emphasis from protection of individual interests to the
protection of public and social interest.

knowledge about the harm and mens rea are the most important elements to
constitute an offence under the Water Act. Prohibition of discharge of polluting
matter is not absolute. The law allows discharge of sewage or trade effluent after
treatment. No person without obtaining the consent state pollution control board
under the Water Act can establish or take any steps to establish any industry, which is
likely to discharge sewage or trade effluents.22 An application for consent has to be
made by the person, who intends to establish any industry or carry out an operation or
process or treatment or disposal system. The consent can be given with or without
conditions. Violation of conditions may lead to withdrawal of consent and to
prosecution.

CENTRAL AND STATE POLLUTION CONTROL BOARDS

The Central Board
The Water Act provides for the constitution of the Central and State pollution control
boards empowered to carry out a variety of functions to promote cleanliness of
streams and wells, and to prevent and wells, and to prevent and control pollution of
water. The Central Pollution Control Board advises the Central Government, coordinates the activities of State pollution control boards, provides them with technical
assistance and guidance, organises training of personnel for pollution control, collects
and complies technical and statistical data, lays down water quality standards and
executes nation-wide pollution control programmes.23 It may step into the shoes of
the State pollution control boards when the Central Government is of the opinion that
any state pollution control board has defaulted in complying with any direction issued
by the Central Board, and that a grave emergency has arisen as to warrant immediate
action.
State Board
The State Pollution Control boards carry out programmes identical to those of the
Central Pollution Control Board within the territory of the State. 24 They plan
comprehensive programmes, advise state governments and collect and disseminate
information. They collaborate with Central Pollution Control Board in organising
training programmes, inspect sewage and trade effluents treatment plants. They lay
12

down the standards for water quality, evolve methods of treatment and disposal of
22 Water (Prevention and Control of Pollution) Act 1974,s 25.
23 Water (Prevention and Control of Pollution) Act 1974,s 16.
24 Ibid, s 17.

sewage and trade effluents, formulate modes of utilization of sewage and trade
effluents for agriculture, and advise the state governments of the location of the
industries. The most significant power of a state pollution control board is to make,
vary or revoke an order for the prevention or control of discharge. In exercise of this
power, the State pollution control board can require any person concerned to
construct new, or modify existing systems for disposal, and to adopt remedial
measures necessary for the control of water pollution.25
The Power to Issue Directions
While the Central Government can give directions to the Central Pollution Control
Board, the latter in turn can issue directions to the State pollution control board. 26 The
directions issued by the Central Government and the State government will bind both
the Central Pollution Control Board and the State Pollution Control Board
respectively. Consequent to the enactment of EPA27, an amendment to the Water Act
conferred more potent and meaningful powers on the boards. It laid down 28 that a
board may, in exercise of its powers and performance of its functions, issue any
direction in writing to any person, officer or authority and such person, officer or
authority shall be bound to comply with such direction. This means that a State
Pollution Control Board as well as the Central Pollution Control Board can issue
directions to an industry to stop functioning. An explanation to the provision declares
that this power includes the power to direct closure, prohibition or regulation of any
industry, operation or process or stoppage or regulation of supply of electricity, water
or any other services.29
Conditions of Consent
The State Pollution Control Board decides whether an application for consent can be
granted. It also decides in each case the conditions subject to which consent is to be
given. The board maintains a register of conditions. Violation of conditions may lead
to prosecution or cancellation of consent. 30 If a person who has been given consent
does not carry out the work prescribed as part of the conditions of the consent, the
25 Ibid, s 17(1).
26 Water (Prevention and Control of Pollution) Act 1974,s 18.
27 Inserted by Act No 53 of 1988.
13
28 Water (Prevention and Control of Pollution) Act 1974,s 33 A. This provision was introduced with a
view to removing some administrative and practical difficulties in effectively implementing the
provisions of Water Act.

29 Explanation to s 33A.
30 Water (Prevention and Control of Pollution) Act 1974,s 27(2).

board can, on its own accord, execute the work and recover the expenses from the
person concerned.31 In case of emergency of poisonous, noxious or polluting matter
being present in any stream or well or on land, the board could take such measures, as
it deems necessary and expedient. These measures include those for remedying and
mitigating the pollution. The board can issue orders prohibiting or restraining the
person from discharging polluting matter or from making unsanitary use of a stream
or well.32 In case of apprehended pollution, the board can make an application to a
court not below the rank of judicial magistrate of the first class for injunctive relief.
Structure of Board
The structure and mode of the constitution of the Central and State pollution control
boards are provided in the Water Act.33 Each board will have a Chairman, having
special knowledge and experience on matters relating to environmental protection
and a full-time member secretary possessing qualifications, knowledge and
experience of scientific, engineering and management aspects of pollution control. A
board has official members, not exceeding five members; not exceeding three, from
the fields of agriculture, fishery, industry or trade; and two persons representing
government corporations. While the Central Pollution Control Board has members,
not exceeding five, representing the members of State Pollution Control Boards, the
State Board has members not exceeding five, representing the local bodies within the
State. The governments concerned nominate all members and appoint the member
secretary.
THE WATER (PREVENTION AND CONTROL OF POLLUTION) CESS ACT
OF 1977
The Water Cess Act was passed to help meet the expenses of the Central and State
Water Boards. The Act creates economic incentives for pollution control through a
differential tax structure(with higher rates applicable to defaulting units) and requires
local authorities and certain designated industries to pay a cess tax for water
consumption. These revenues are used to implement Water Act. To encourage capital
investment in pollution control, the Act gives a polluter a 25 percent rebate of the
31 Ibid, s 30.
14
32 Water (Prevention and Control of Pollution) Act 1974,s 32.
33 Ibid, ss 3 and 4. There may arise the need for constitution of joint boards by agreement between
two or more governments of contiguous states, or between the Central Government and one or more
governments of states contiguous to a union territory or union territories. The composition of joint
boards is different from other boards.(S. 13 and 14).

application cess upon installing effluent treatment equipment and meeting the
applicable norms.

3. WATER POLLUTION CONTROL: JUDICIAL

PERSPECTIVES
For a long time since the enactment of Water Act, industries were invariably
disregarding the directions of pollution control boards and violating the conditions of
consent with impunity. The boards, being the agencies envisaged to control pollution,
stood as helpless witnesses to these tragic happenings. This malady stirred the
conscience of the courts. The very negligence of the boards in their functioning also
came to the notice of judicial vigilance.
Right to Clean Environment: Protecting the negative right to have clean
drinking water
In India till date the right to clean drinking water has been protected by the courts
only as a negative right i.e. the right not to have water sources polluted. Such
protection has stemmed from the articulation of a fundamental right to a clean and
healthy environment as part of the right to life guaranteed under Article 21 of the
constitution by the Supreme Court.
1. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
The concept of right to healthy environment has been developed as part of the right
to life under Article 21 of our Constitution. This concept was first articulated in the
instant case and then continued and expanded. The Supreme Court protected the right
to clean water as part of the right to a healthy environment in a spate of water
pollution cases coming before it from the early nineties onwards.
2. A.P. Pollution Control Board II v. Prof. M.V. Nayudu, (2001) 2 SCC 62.
In this case, the AP government had granted an exemption to a polluting industry and
allowed it to be set up near two main reservoirs in Andhra Pradesh the Himayat
Sagar lake and the Osman Sagar lake, in violation of the Environment Protection Act
1986. The Supreme Court struck down such exemption and held that the
Environment Protection Act and The Water (Prevention and Control of Pollution)
15

Act 1974 did not enable to the State to grant exemption to a particular industry within
the area prohibited for location of polluting industries. Exercise of such a power in
favour of a particular industry must be treated as arbitrary and contrary to public

interest and in violation of the right to clean water under article 21 of the constitution
on India.The Government could not pass such orders of exemption having
dangerous potential, unmindful of the fate of lakhs of citizens of the twin cities to
whom drinking water is supplied from these lakes. Such an order of exemption
carelessly passed, ignoring the precautionary principle could be catastrophic.34
The court referred to Indias participation in the UNO water conference and held that
the right to access to drinking water is fundamental to life and there is a duty on the
State under Article 21 to provide clean drinking water to its citizens. The Supreme
Court also referred to the Narmada Bachao Andolan v. Union of India 35, judgment
where Kirpal, J. observed 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....and The right to healthy environment and to sustainable
development are fundamental human rights implicit in the right to life.36
3. Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647.
The case gave relief to the victims of water pollution caused by tanneries. In this
case, a writ petition was filed against the large-scale pollution caused by tanneries
and other industries in the state of Tamil Nadu. The petitioners alleged that untreated
effluent was being discharged into agricultural fields, waterways and open land,
which ultimately reached the Palar river which was the main source of water supply
to the residents of the area. The effluents had spoiled the physico-chemical properties
of the soil and had contaminated the groundwater by percolation. After carefully
examining the facts of the case, the Supreme Court, while recognizing the common
law right of the people to a clean and healthy environment, awarded compensation to
the victims of pollution on the basis of the precautionary principle and the polluter
pays principle.
The precautionary principle when applied by the courts to Indian condition
means:
(i) That environmental measures taken by the state and the statutory authorities must
anticipate, prevent and attack the causes of environmental degradation;
(ii) That where there are threats of serious and irreversible damage, lack of scientific
16
certainty should not be used as a reason
for posting measures to prevent

34 A.P. Pollution Control Board II v. Prof. M.V. Nayudu, (2001) 2 SCC 62.
35 (2000) 10 SCC 664.
36 Ibid, para 248.

environmental degradation; and

(iii) That the onus of proof is on the actor or the developer/industrialist to show that
his action is environmentally benign.
By regarding the two aforementioned principles as part of the environmental law of
the country, the Supreme Court has to some extent conceptualized the common law
remedial measures of awarding compensation to the victims of a tortious action in
water pollution cases. Importantly, the Supreme Court held that The constitutional
and statutory provisions protect a persons right to fresh air, clean water and
pollution-free environment, but the source of the right is the inalienable common law
right of clean environment.37
4. Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496.
The Court held that It is important to notice that the material resources of the
community like forests, tanks, ponds, hillock, mountain etc. are natures bounty. They
need to be protected for a proper and healthy environment which enables people to
enjoy a quality of life which is the essence of the guaranteed right under article 21 of
the Constitution of India.38
5. The Ganga Pollution Case39
The Ganga Pollution case is a specific illustration where the Supreme Court notice
the utter indifference of the tanneries, and ordered to stop the discharge of trade
effluents into the river Ganga. It rightly held that the immense adverse effect on the
public at large by the discharge of trade effluents would outweigh any inconvenience
caused to the polluting entities on account of the closure. Specific directions were
issued to the tanneries either to setup Primary Treatment Plants(PTP) or to stop their
functioning.
In the opinion of the Court, it was a fundamental duty of every citizen to protect and
improve the natural environment including forests, lakes, rivers and wildlife, and
have compassion for all living creatures.40 . As a result, there was a statutory
prohibition against the use of any stream or well for the disposal of polluting matter.41
This meant that no person could knowingly cause or permit any poisonous, noxious
or polluting matter to enter, directly or indirectly, into any stream; or, knowingly
17
37 Vellore Citizens' Welfare Forum v. Union of India,
(1996) 5 SCC 647.
38 Hinch Lal Tiwari v. Kamala Devi (2001) 6 SCC 496.
39 MC Mehta v. UOI, AIR 1988 SC 1037.
40 Article 51-A of the Constitution of India.
41 Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972.

cause or permit to enter into any stream any other matter which may tend, either
directly or in combination with similar matters to impose an obstruction on the proper
flow of the water of the stream.42
The Court further held that it was the duty of the State Government, through the State
Boards, ---Sections 16 and 17 of the Water (Prevention and Control of Pollution) Act,
1974.--- and the Central Government to use the powers conferred upon them by
statute to take all such measures as it deemed necessary or expedient for the purpose
of protecting and improving the quality of the environment and preventing,
controlling and abating environmental pollution.43
Finally, it was said that just like an industry which cannot pay minimum wages to its
workers, cannot be allowed to exist, a tannery which cannot set up a primary
treatment plant couldnt be permitted to continue to be in existence. This is because
the adverse effects on the public at large which are likely to ensue by the pollution of
the Ganga would be immense and would outweigh any inconvenience that may be
caused to the management and the labour employed by it on account of closure of the
tanneries. Thus, the financial capacity of the tanneries was to be considered as
irrelevant while requiring them to establish primary treatment plants. It was,
therefore, directed that those tanneries, which had failed to take the minimum steps
required for the primary treatment of industrial effluent were to be closed down, and
though such closure of tanneries could bring unemployment, loss of revenue, etc. life,
health and ecology were held to have greater importance to the people.
What we see in this decision is a pro-active and bold stance taken by the Honble
Supreme Court towards the protection of the fragile environment in which we exist.
There is a realisation of the great role played by our rivers, especially the Ganga in
the lives of millions of Indians and the dire need to protect it. The noteworthy aspect
of this decision is the high standards of accountability that it creates for the concerned
statutory bodies, with respect to the protection of the environment. Another aspect,
which is worth noting, is the great emphasis it lays on the protection of environment
over the economic interests and feasibility arguments advanced by the polluting
tanneries.
18

42 Section 24 of the Water (Prevention and Control of Pollution) Act, 1974.

43 Sections 3 and 5 of the Environment (Protection) Act, 1986.

4.

PUBLIC TRUST: WATER AS A SUBSTANCE UNDER THE

CARE OF THE GOVERNMENT

In an attempt to move away from government control over water, the Supreme Court
brought in the idea that the relationship between water and the government should be
redefined. The Court used a legal construct known as public trust which states that
government is not an owner but a trustee of water and as such is responsible for
protecting and preserving water for and on behalf of the beneficiaries or the public.
This requires the government to manage and develop water without depriving any
individual or group from accessing or significantly affecting ecosystem needs. As a
result, neither the government nor individuals can exercise absolute rights over water.
The public trust doctrine is now a part of water law.44

Public Trust Doctrine in India

The doctrine has been extensively discussed by the Apex Court.
Case: M.C. Mehta v. Kamal Nath, (1997)1 SCC 388.
A private company Span Motels had built a motel on the bank of the River Beas on
land leased by the Government of India in 1981. Span Motels had also encroached
upon an additional area of land adjoining this area, which was later leased out to Span
Motels. The motel used earthmovers and bulldozers to turn the course of the River
Beas, create a new channel and divert the course of the river to save the motel from
future floods.
The ruling of the court was based on the Public Trust doctrine. The court first
observed that:
the notion that the public has a right to expect certain lands and natural areas
to retain their natural characteristic is finding its way into the law of the land.
The court then concluded (in para 34):
Our legal system - based on English common law - includes the public trust
doctrine
as part of its jurisprudence. The State is the trustee of all natural resources which are
by nature meant for public use and enjoyment.
Public at large is the beneficiary of
19
the sea-shore, running waters, airs, forests and ecologically fragile lands. The State
44 WATER LAW AND POLICY IN INDIA: REFORMS AND CAPACITY BUILDING.
Environmental Law Research Society. Web < http://www.elrs.in/content/primer.pdf >, as accessed on
10.09.15 at 21:05.

as a trustee is under a legal duty to protect the natural resources. These resources
meant for public use cannot be converted into private ownership.
This means that natural resources cannot be used for private, commercial or any other
purpose unless it is necessary, in good faith, for the public goods and in public
interest. Subsequently, the doctrine was affirmed in other cases.45

20

45 M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (1999), Intellectual Forum v. State of Andhra
Pradesh (2006) and Karnataka Industrial Area Development Board v. Kenchappan (2006).

5. SUSTAINABLE WATER PRINCIPLES: TOWARDS A

GLOBAL POLICY FRAMEWORK

Clean water and sanitation are among the most powerful drivers for human
development. They extend opportunity, enhance dignity and help create a virtuous
cycle of improving health and rising wealth. In order to driving human development,
the world needs a blue revolution in water sector and it requires a comprehensive
water policy reform; secure water rights; users management of irrigation system;
reformed price incentives; appropriate water technologies; environmental protection;
tradable water rights; active peoples participation in common property resource
management including water; coordinated water policies and responses to water
problems at international, national and local levels.46
In this context, the United Nations Millennium Declaration called upon all memberstates:
to stop the unsustainable exploitation of water resources by developing water
management strategies at the regional, national and local levels which promote
both equitable access and adequate supplies.
To achieve this goal, water policies need to:

Build new capacities and an enabling environment that change the governance of
water resources in ways that are fairer and more sustainable;

Improve the management of water resources to meet the needs of all water-users
in a more integrated, equitable system that maintains the integrity of the
environment.

Sustainable Water Resources Roundtable (SWRR) also identified a set of four

sustainability principles for water resources management:

The Value and Limits of Water- While water is abundant, people need to
understand and appreciate that it is limited in many regions, that there are
environmental and economic costs of damaging water resources, and that
unbounded water and land-use poses serious risks to people and ecosystems.

Shared Responsibilities- Water does not respect political boundaries; its

21

management requires shared consideration of the needs of people and

46 Ramaswamy, S. and Sathis Kumar. Water for Sustainable Livelihood:Principles and Challenges.
Environmental Sustainability Approaches and Policy Options. Regal Publications: New Delhi, 2010.
Print.

ecosystems up and downstream and throughout the hydrologic cycle.

Equitable Access- Sustainability suggests fair and equitable access to water,

water dependent resources and related infrastructure.

Stewardship- Managing water to achieve sustainability challenges us, while

meeting todays needs to address the implications of our decisions on future
generations and the ecosystems upon which they will rely.

22

6. Enforcement of Water Pollution Control: Nature of Hurdles

They say that law has long arms. There are various other expressions to indicate that
a criminal cannot escape being caught. In other words, law is deemed to be effective.
In practice, the situation is much to the contrary. The law and order situation is
depicted in a cartoon by the celebrated cartoonist, R.K. Laxman, with a quotable quip
that we have a lot of laws but little order. In the matter of pollution control and
environmental protection, this description applies very aptly.47
Any project that has the potential to cause pollution by discharging effluent through
an outlet or emission through a stack is required to seek consent from the State
Pollution Control Board (SPCB) to establish and a consent to operate after its
establishment. The consent to operate remains valid for a specified period after which
it needs to be renewed. The consent is often subject to certain conditions. The
compliance with conditions is supposed to be monitored. It is widely known that
monitoring is seldom done effectively.
Setting the effluent and emission standards is seldom free from controversy. While
the industry considers the standards too strict, the people living nearby often
complain that they are too relaxed. The standards may be criticised as irrational if
they are not based on local conditions, or as discriminatory if they are not uniformly
applied. In any case, a common grievance persists that both people and industry have
no say in setting the standards.
The enforcement of standards presents even more complications because:

SPCBs are poorly equipped in terms of staff and equipment.

Monitoring is weakened by imperfections in sampling and testing, and by the

delay in getting the results of analyses.

Allegations of corruption cannot be altogether dismissed.

The actions to prosecute the offending unit or direct its closure end up in the
courts of law. In the latter case, the burden of proof tends to shift more towards
the SPCBs.

The process of law takes an inordinately long time and in this duration, protected
by the matter being sub-judice or a stay order, the polluting activities may
23

continue.
47 Tyagi, Paritosh. Water Pollution and Contamination. Water and the Laws in India. 1st ed. Sage
Publications: New Delhi, 2009. Print.

ECONOMIC IMPLICATIONS
The following remarks are made in an attempt to touch upon the social, political and
economic aspects related to the pollution and contamination of water:

Mineral Water Bottle Syndrome:

Till the 1980s no one would believe that

people unwilling to pay even Rs 3 for one cubic metre (1,000 litres) of municipal
water would pay Rs 12 for a bottle containing only one lite of water believed to be fit
for drinking.48 Rising income levels, the deteriorating quality of municipal water
supply, increased awareness about the impact of water quality on health are among
the factors that created a mania for mineral water and whipped up a very fast
growth of bottled water industry.
For the already negligent municipal authorities, the advent and popularity of bottled
water has provided a reason for further complacence. For those who cannot afford to
buy bottled water or even the domestic water purifier units, the risks from the poor
quality municipal water have multiplied.

Tanker Mafia:

Water Supply is intermittent in practically all cities, that is, the

supply is made for a few hours each day. The usual justification is that the demand of
water is larger than what is available for supply. An additional advantage claimed for
intermittent water supply is that the loss of water due to leakage is reduced by
restricting the period in which leakage could occur. During summer months, the
period for supply of water is further curtailed and supply may even be made on
alternate days or a few days in a week. Private tankers have come up as a thriving
service industry to carry water to the needy. Gradually, they have grown to become a
mafia.
The merits of intermittent water supply are totally fallacious. The total consumption
of water in a typical intermittent and continuous water supply system remains the
same. The leakage keeps on increasing with fluctuations in the pressure in water
pipelines. Moreover, people resort to installation of booster pumps on line, which
further aggravates the leakage problem. The quality of water is found to be bad with
leaking pipes, at places laid in or near drains and with booster pumps putting them
under suction conditions.

48 Ibid, page 350.

24

Pani Panchayat: Self help in the field of supply of water (mainly for irrigation in
central India) has given birth to the formation of cooperative organizations known as
Pani panchayats, which assert ownership of water resources by the consumers. In
areas having scarcity of water, their political role has been well recognized by the
society.
There is no denying that self-help and self-governance are good in a democratic
environment. Doubts arise about the lack of necessary technical back-up and the
creation of new conflicts among interest groups.

25

7. Conclusions & Suggestions

Water may be scarce resource, but humans have developed many ways of using it
more efficiently-that is, getting more from each unit of water. But water saving
policies, practices and technologies are of no help if they are not used. In appropriate
incentives and institutions often hinder effective use of water. To overcome the
problem of water scarcity, the stakeholders (governments, citizens, NGOs, research
community, international organizations and financial institutions) should have and
implement some duties and responsibilities from side.

Towards Drinking Water Legislation

The regulation of drinking water in India is presently based on a patchwork of rules,

policies and schemes. These are not legally enforceable and their existence is subject
to government discretion. In the absence of a drinking water law, it is not possible to
ensure the implementation and enforcement of the fundamental right to water. Critics
may point to the non-implementation of existing laws and argue that a drinking water
law will not provide the solution. However, the very existence of a drinking water
law can check the dismantling of the drinking water policies that were introduced by
the government before the beginning of the reform process; and counter the negative
impacts of some of the water law reforms that are being introduced in India. The
Government of India is considering the regulation of drinking water by making
suitable provision in the integrated Food Law Bill or through a separate law. The
DDWS has issued draft guidelines for drinking water regulations. In either case, the
law must provide for capacity building, human resource development and
strengthening the existing infrastructure for drinking water control and surveillance.
Hence, the advocacy works need to emphasize the need for a drinking water
legislation.

Ensuring The Implementation and Enforcement Of The Fundamental

Human Right To Water

The right to water is recognized as a fundamental human right by the Supreme Court
and various high courts. While this development is very important, this is not
sufficient to guarantee water to every individual irrespective of caste, gender, land
26

rights and financial ability to pay. Therefore, there should be express legal provisions
that define human right to water. There should be sufficient opportunity and
knowledge for individuals to approach the judiciary to enforce their fundamental

human right to water.

Respect, Protect and Fulfill-Responsibility of Governments

Governments may take steps where it can be divided into the obligations to respect,
protect and fulfill. The responsibility to respect requires a government to ensure the
activities of its institutions; agencies and its representatives do not interfere with
persons access to water. The responsibility to protect requires that governments
should diligently take all the necessary feasible steps to prevent others from
interfering with the right to water. The duty to fulfill requires that governments take
active steps to ensure that everyone can enjoy the right to water as soon as possible
by encompasses the obligations to facilitate, promote and provide the same.

Responsibilities of Citizens

Citizens may take some responsibility for-ensuring that connection/water point is

secured through collective action; maintaining the connection/water point or for
informing the relevant bodies that is faulty; ensuring that the water is kept in safe
conditions within the home so that its not contaminated.

Responsibility of Non-Governmental Organizations

NGOs can contribute to the realization of the right to water through:informing the
aspects of the right to water; building capacities among the people; promoting the
right to water; contributing to ensuring a government policy water for all,
highlighting violations of right to water.

For the Persons Causing Pollution

-With all inherent weaknesses in law and its enforcement, an inescapable conclusion
is that law can assist in control of pollution, but pollution can never be controlled by
law alone.
-The municipal bodies have to wake up to their responsibility towards the collection,
treatment and disposal of sewage and garbage. In this regard, it does not appear
practical to rely on legal action to achieve the desired result.

For the Persons Affected by Pollution

-General awareness of environmental facts should be acquired by all citizens.

-The outcome of many public interest litigation cases is greatly inspiring for a
27 indeed been a ray of hope.
common man. Judicial pronouncements have

-Citizens should actively participate in public hearings and consultations held in

connection with prior environment clearance projects.

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<