Legal era of Water as Natural Source:

A Comparative study of Water Harvesting,

Development of Indigenous Sources at international level &
Making India water surplus and pollution free.

Submitten By:
Richa Mittal
 INRODUCTION
The language of ‘rights’ has acquired a centrality in modern thinking that cannot be
ignored. In the traditional societies, people might not have needed the language of rights; customs
and conventions had the force of law. However, in the legalistic societies of today ‘formal law’
has become more important, and that is why it is important to talk about the ‘right to water’ 1.
Water is the essence of life. Hence, any denial of water would imply a denial of right to
life. The right to water it is not enshrined in the Indian Constitution as an explicit Fundamental
Right but the Indian Judiciary, both at the state as well as at the center, has in several judgments
interpreted Article 21 of the Constitution to include a right to clean and sufficient water, a right to
a decent and well life, a right to live with dignity and with peace, and a right to a humane and
healthy environment which would certainly imply a right to water to all the members of the society
be it is a human or animal.

 Right to Water In India

Under fundamental rights in the Constitution of India, Article 21 entitled ‘protection of life
and personal liberty’ states that 2 ‘no person shall be deprived of his life or personal liberty except
according to procedure established by law’. This has popularly come to be known as Article on
‘right to life’. In view of the scope of this right, environmental, ecological, air and water pollution
gets violated in Article 21 of the constitution of India. Further, ‘the entitlement of citizens to
receive safe drinking water (potable water) is part of the right to life under Article 21.
As early as in 1984 (in Bandhua Mukti Morcha vs. Union of India case), the Supreme
Court derived the concept of right to ‘healthy environment’ as part of the ‘right to life’ under
Article 21. The Court, in a recent judgment (1 December 2000), had observed that ‘in today’s
emerging jurisprudence, environmental rights which encompass a group of collective rights are
described as “third generation” rights’2.
An important ruling of the Indian Supreme Court was the case of A.P. Pollution Control
Board II v. Prof. M.V. Nayudu3. 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) Act 1974 did not enable to the State to

1
Ramaswamy R. Iyer, Former Secretary, Ministry of Water Resources, India.
2
A.P. Pollution Control Board II v Prof. M.V. Naidu and Others (Civil Appeal Nos. 368-373 of 1999). Cited from
John Lee ‘Right to Healthy Environment’, Columbia Journal of Environmental Law, Vol. 25, 2000.
3
(2001) 2 SCC 62.
grant exemption to a particular industry within the area prohibited for location of polluting
industries.”
The Court recently reiterated again that ‘the right to access to clean 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 State is duty bound not only to provide adequate drinking water but also to
protect water sources from pollution and encroachment. Any act of the State that allows pollution
of water body ‘must be treated as arbitrary and contrary to public interest and in violation of the
right to clean water under Article 21’.4

 The Earlier Scenario

Prior to this judgment, the Supreme Court as well as several High Courts in States in India
upheld the citizens’ right to have access to clean drinking water as a fundamental right as per
Article 21.
In Subhash Kumar v State of Bihar5 (1991), the Supreme Court of held that the right to
live ‘includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If
anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have
recourse to Article 32 of the Constitution for removing the pollution of water or air which may be
detrimental to the quality of life.
In M.C. Mehta v Kamalnath6 (1997) the Supreme Court categorically ruled that the State
is not only bound to regulate water supply, but should also help realize the right to healthy water
and prevent health hazards. The principle of Roman Law ‘salus populi est suprema lex‘ (welfare
of the people is paramount law) is the abiding faith in Indian Constitution and the ‘State is assigned
a positive role to help people realize their rights and needs’. In State of Karnataka v State of Andhra
Pradesh (2000) the Court held that the right to water is a right to life, and thus a fundamental right.
In Narmada Bachao Andolan v Union of India (2000) it was held that ‘water is the basic
need for the survival of human beings and is part of the right to life and human rights’. The A.P.
High Court, while citing several of the abovementioned rulings of the Court, reiterated the
responsibility of the State in providing clean drinking water to the citizens
in P. R. Subhash Chandran v Government of Andhra Pradesh & Others7 (2001). Thus,
in the Indian Constitution, providing every citizen with adequate clean drinking water and
protecting water from getting polluted is a fundamental Directive Principle in the governance of
the State as well as a penumbral right under Article 218.

4
The Court was dealing with, and prohibited, the setting up of a water polluting industry within 10 km radius of
Osmansagar and Himayatsagar, the two water bodies that supply drinking water to Hyderabad city. The Court
applied the ‘precautionary principle’ to protect these two water bodies.
5
1991 AIR 420, 1991 SCR (1)5.
6
(1997)1 SCC 388.
7
Narmada Bachao Andolan v. Union of India and Others, Writ Petition (C) No. 319 of 1994.
8
2001 (5) ALD 771, 2001 (6) ALT 133
  Water As A Social Asset

The key judicial pronouncements that the right to life in the Constitution means rights to
clean water and sanitation as well. Courts have not only termed right to water as a fundamental
right but also have defined water as a ‘social asset’.

In 2002, the apex court validated the Sardar Sarovar dam project on Narmada in 2000
Interpreting the right to life article as right to water. “Water is the basic need for the survival of
human beings and is part of the right to life and human right as enshrined in Article 21 of the
Constitution of India and can be served only by providing source of water where there is none.”9
In 1990, the Kerala High Court ruling on a groundwater extraction case involving water supply
plan for the island of Lakshadweep ruled that government should not extract groundwater
impacting the sources in future that in turn violated the Article 21. It ruled: “… the administrative
agency cannot be permitted to function in such a manner as to make inroads into the fundamental
right under Article 21. The right to life is much more than a right to animal existence and its
attributes are manifold, as life itself. A prioritizing 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.

Apart from expanding the content of the right to life as including the right to water, the
court has, in the context of water pollution, mandated the cleaning up of water sources including
rivers (M.C. Mehta v. Union of India10), and even tanks and wells (Hinch Lal Tiwari v. Kamala
Devi11).
The court has also applied the ‘precautionary principle’ to prevent the potential pollution of
drinking water sources consequent upon the setting up industries in their vicinity12. Various
judicial pronouncements have recognized that water is a community source which is to be held by
the state in public trust in recognition of its duty to respect the principle of inter-generational
equity.
According to Wesley Newcomb Hohfeld, there are eight basic denominations to analyse
law which are right, duty, immunity, disability, privilege, no-right, power and liability. These
denominations are governed by their interaction with each other, which can be correlatives,
contradictions and opposites.
With a right, comes a corresponding duty. This means that if person A has a right, then
person B must have a duty towards person A to ensure that he can exercise his right. In the case of

9
ILR, 2001: 85-104.
10
Narmada Bachao Andolan v. Union of India and Others, Writ Petition (C) No. 319 of 1994.
11
(1998)5SCC611
12
MANU/SC/0410/2001
Right to water, there needs to be a corresponding duty. As seen through the Public Trust Doctrine,
the right resides with the public and so the duty lies with the state.

The state must, therefore, ensure that the public is able to exercise their right that means
that the public has access to water and availability to water.
In Subhash Kumar v State of Bihar (1991), the Supreme Court held that ‘the right to live
includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything
endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse
to Article 32 of the Constitution for removing the pollution of water or air which may be
detrimental to the quality of life’. By this judgement and many others, the court placed a duty on
the state to ensure the rights of the citizens were protected.
Further, in M.C. Mehta v Kamalnath (1997) the Supreme Court ruled that the State is not only
bound to regulate water supply but should also help realize the right to healthy water and prevent
health hazards. The court also discussed how the principle of Roman law ‘salus populi est suprema
lex‘ (welfare of the people is paramount law) is the abiding faith in the Indian Constitution.
Thereby, the court assigned the state with a positive role to help people realize their rights and
needs.
Further, there are also certain statutes which lay down the regulation and rules for handling
of the water resources in the country and thereby place a duty on the state to monitor the use of
water and its availability in the country.

M.C. Mehta V. Union of India 13(Mehta 1- Tanneries) This is a public interest litigation.
The petitioner is an active social worker who has filled the petition, inter alia, for the issue of a
writ in the nature of mandamus to the respondents other than respondents. 1 and 7 to 9 restraining
them from letting out the trade effluents into the river Ganga and till such time they put up
necessary treatment plants for treating the trade effluents in order to arrest the pollution of water
in the said river. Respondent 1 is union of India, Respondent 7 is the chairman of the Central Board
for Prevention and Control of Pollution, Respondent 8 is the chairman, Uttar Pradesh Pollution
Control Board and Respondent 9 is the Indian Standards Institute.
Water is the most important of the elements of the nature. River valleys are the cradles of
civilization from the beginning of the world. Aryan Civilisation grew around the towns and
villages on the banks of the river Ganga. Varanasi which is one of the cities on the bank of the
river Ganga Considered to be one of the oldest human settlements in the world. It is the popular
belief that the river Ganga is the purifier of all but we are now led to the situation that action has
to be taken to prevent the pollution of the water of Ganga since we have reached a stage that any
further pollution of the river is likely to lead to a catastrophe. There are today large towns inhabited
by millions of people on the banks of the river Ganga. There are also a large industries on its bank.
Sewage of the towns and cities on the banks of the river and trade effluents of the factories and

13
AIR 1988 SC 1037
other industries are continuously being discharged into the river. It is the complaint of the petitioner
that neither the Government nor the people are giving adequate attention to stop the pollution of
the river Ganga. Steps have therefore, to be taken for the purpose of protecting the cleanliness of
the stream in the river Ganga, which is in fact the life sustainer of a large part of northern India.
Right To Access To Drinking Water Is A Fundamental Right And It Is The Duty Of State
Under Article 21 To Provide It To Citizens:Delhi High Court 14

Statement of Problem
This research assessed the water pollution related problem in India. The debate around water
pollution, water conservation is getting sharper with happening every minute. The study has taken
into account the views and concerns of the government in tackling this menace of environment
welface. This study also attempted to assess the preparedness of the government in case of an
unexpected pollution on the nation and international field. The associated risks and future risks
arising out of water pollution have been analysed before arriving at any conclusion.

Research Questions

1. What is the approach taken by the Government of India with regard to water pollution
and water conservation and development of environmental protection?
2. What are the issues faced by the government while outlining water protection and
conservation?
3. What are the challenges the government faces from various acts related to pollution
which affect our natural resources?
4. What framework does the government follow with regard to water pollution as well as
water conservation?
5. What is the India’s stand regarding Internet regulation and co-operation with reference
to water protection act?
6. What are the ongoing step regarding to protection and awareness of people regarding
to the environmental protection?
7. How the water pollution harmful for people who are unknown regarding that type of
pollution and suffer loses?

14
https://www.livelaw.in/news-updates/delhi-high-court-right-to-access-drinking-water-defence-service-enclave-
168288?infinitescroll=1
 8. What are legal approach of Courts toward the water protection and conservation?
9. Are environment protection laws sufficient to protect water and secure the future of
common life of people?
10. What are the deficiency of our environmental laws?
11. How can environmental laws make stronger with the analysis of other countries?

Purpose of Research
In this research the researcher examine the whole development related to the water
protection and conservation in India and what are the technologies used by the India to prevent the
pollution rate of water and the highlighted point of the research will what are the future of
environmental laws in India how much effected India by water pollution. New policies regarding
to the water protection and conservation enforcing day to day by the Indian Government how much
useful for the urban and rulers. Cause of illiteracy and deficit of knowledge regarding pollution act
the people of India face my difficulties like money loss, loss of convenience, loss of morality, loss
of humanity, loss of health etc.

The main aims of this study are:

 To understand the problem related to water pollution in Indian with the comparison
of other countries.
 To examine the percentage of water drinkable on earth and its future.
 To assess Right to pollution free water vs. fundamental rights of Indian constitution.
 To discern sources of water available to save our life and future.
 To discuss harvesting method how much effective to increase the rate of drinkable
water or make water pollution free.
 To examine scheme enforcement by government Indian related to pollution free
water.
 To examine judicial approach to make water pollution free.
 To examine effectiveness of law time being in force related to water conservation.
 To discuss International impact of environmental law how much water protected
by the India in international level.
The main objectives of this work are:

 To critically evaluate the water protection policy discourse.

 To evaluate the government’s stand regarding water protection policy in the
national level discussion arena.
 To comprehend the pitch that India has to take with regard to water security in the
water security policy context.

Review of Literature
Environment and Justice, C.M.Jariwala (2004). The book gives an insight into the
judicial handling of environmental litigation. It informs types of petitioners and defendants and
subject matter of dispute. It disseminates information‟s about tools used by the judiciary and the
time consumed in the administration of environmental justice. The book exposes the unexposed
that played the negative or environment friendly role in the protection of environment. A Specific
study of the output of the Indian judiciary is made pointing out the merits and flaws and their effect
on the Indian Environment .The judicial activism has brought new environmentally friendly
principles and provided new vision to the then environmentally Blind constitution.

Environmental Law Case Book, P.Lilakrishnan(2006). The book contains extracts of, and
comment or, significant judgment pronounced by Indian judiciary on Environment. Classified into
six parts and comprising 18 chapters, the case book depicts the manner in which norms of
environment protection are evolved, and tested in the social milieu of a fast developing country.
This book highlights updated case law pertaining to various aspects of environmental regime.

Environmental issues in India, R Uma Maheshwari (2008), In this, it fills a lacuna, for rarely
do we find books on environment (barring works of people like Ramachandra Guha and Madhav
Gadgil and the editor of this volume) that traverse the path of history to address these issues. For
a lay reader seeking multiple views on these subjects, this book is a welcome source. It's a
musthave for groups working on these issues who may rarely, if at all, turn the pages of history. A
large section of the book is dedicated to the Narmada Bachao Andolan, undoubtedly India's most
long-drawn debate on dams and displacement. Yet there isn't a much called-for note on the present
status of the Sardar Sarovar project. The 'latest' on the subject in this volume is from 2001. A
mention of the long debates within the movement, the splits, the shift from 'anti-dam', to
'rehabilitation and resettlement' should have found a mention. As should have another very
controversial project--the Polavaram dam. This single multi purpose project, if built, will displace
more than 276 villages and over three lakh people, the majority being tribal and dalit communities.

There are several other lapses. Another contentious concept--riverlinking and its
environmental and socio-political implications, is ignored. On global warming, a more recent study
than one written in 2000 would have been welcome, considering the debate on climate change has
come a long way since. Here they'll find nuggets like Romila Thapar's piece on forests and urban
settlements in the early millennia BC; or archaeologist-historian Makhan Lal writing about climate
and the end of Indus valley civilization.

Corporate accountability in International Environmental Law, Elisa Morgera(2009).

This book examine the role of international organization that in the absence of State intervention,
identify and promote the application of selected international environmental standards demonstrate
how these organizations are a driving force in establishing and oprationalizing international
corporate environmental accountability.

Environmental Law and Policy, Aruna Venkat(2011). This book presents

comprehensive accounts of the various contours of the environmental jurisprudence in India. It
covers the Indian Constitutional, legislative, Administrative and judicial strategies that have
shaped the Indian environmental Jurisprudence against the back drop of the various International
efforts to control pollution and preserve the global environment. It deals with the constitutional
framework provided for the preservation and protection of Indian Environment. In this context the
book gives an extensive picture of Indian Administrative and legislative policy framework along
with latest developments in the area. The salient and the most important feature of the book is its
in depth account of the innovative judicial enforcement of the constitutional and legislative
prescriptions as reflected in the catena of judicial decisions including the latest one.

Law development and Socio-Economic Policy, ed. By Bimal N. Patel & Mamta Biswal
(2012). This book is a collection of Scholarly papers on topics that are hotly-debated across the
world, that are areas of concern for most countries and that touch individual lives at some level or
the other. These essays emphasize that law is interdisciplinary and is needed to address issues in
the field of environment, international relations, science and technology, gender, banking and
economy.
 Green Book On Indian Environmental Law, PB Sahasranaman (2017), It is when the
spotlight is firmly on India and its environment protection regime that the first edition of PB
Sahasranaman‟s Green Book on Indian Environmental Law has been released. The book is three-
fold. The first part contains the Acts, rules and notifications in respect of environment in force in
the country. The book also attempts to define many terms relevant to the context, with a
commentary before each enactment. The second part contains a digest of important cases on
environment decided by the Supreme Court, high courts, and the National Green Tribunal. The
third part is the unique feature of the book. The Environmental Law Lexicon in it defines technical
words that are essential for understanding environmental law. On the whole, the book gives an
impression that notwithstanding the occasional loophole created for ease of business, a robust
environmental regime is in place in the country. The problem is not so much with the law, but in
its implementation. The book will benefit law practitioners, academicians, law students and
government agencies alike as a one-stop reference point on environmental laws in the country. The
author of the book, a well-known environmental law practitioner, has worked hard with dedication
for bringing the book, which is the need of the hour.

Perspective on Human Rights, ed.by Abdul P. Vijapur& Kumar Suresh, in this edited book
which is compilation of the seminar on the occasion of 50th anniversary of the UDHR by the centre
for federal studies of Jamia hamdard. In this book author briefly discuss the relationship of
environmental law and human rights. Both subjects are devoted to the welfare and happiness of
man &society. Environmental law is concurred to protect global and national environments so that
man lives in harmony with nature and attains his goals of a creative and happy life.

An Article, “Law unto themselves” by Prashant Bhushan(senior Advocate Supreme

Court Of India, in Communalism Combat issue:Aug-Sept 2009). Author critically analyze the
judicial power of the Supreme Court and gone through the detailed of the powers used by the apex
court time to time in the administration of justice.

Research Methodology
The research work is primarily doctrinal in nature and based on the authoritative texts such
as the Constitution of India, The National Environmental Act, 1986, Law of Torts Indian Penal
Code 1860, Civil Procedure code 1908, Criminal Procedure code 1973, Case laws, Books,
newspaper articles, Periodicals and internet sites etc which are duly acknowledged. The sources
for the information literature for research work have been collected from primary and secondary
sources. Through various libraries and government and private institutions data are collected from
reports judgments and legislations will be critically analysed and inferences are drawn. The work
has been concluded with appropriate suggestions and conclusions.

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