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October 26, 2020 | BasitFarooq I MuzaffarRazakMagray

Water as a fundamental right in India - II

The violation of basic fundamental and human rights can never be justified by any State, since this issue of water is not a political one it has never been given primacy by the state

The constitutionof India enshrines Fundamental Duties in part IV A under Article 51A and thereby by virtue of Article 51A (g) Imposes duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Therefore, this duty has got to be realized by every citizen that protection of environment constituting water as an important element of environment is a constitutional duty and also a moral and social duty. The duty to protect environment has more to do with the state for the protection of water as an important constituent of environment and requires financial investment and more importantly supervision over the natural resources present in the country. The Directive Principles of State Policy as enshrined in part IV of the Constitution from Articles 36 to 51 impose positive obligations upon the state and thereby by virtue of Article 48A, the state is obliged to protect environment and take necessary measure for the protection of the same. The state has come up with legislations for the protection of Environment   including the Water Act of 1974 and the Environment Protection Act of 1986 to ensure protection of water in particular and environment in general respectively.  The same legislations however deal with   protection of water from pollution as is set out in their object but the Acts nowhere mention provision with respect to conservation of water.

The Water Act confers powers upon the central government to constitute board as is set out in section 3 of the Act to be called Central Pollution Control Board.  The functions of Central Pollution Control Board (CPCB) are conferred under section 16 of the same Act which among other things include that it shall promote cleanliness of streams and wells in different areas of the states, it shall also collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminate information connected there with. However, one of the important functions of the Board is that it may establish or recognize a laboratory or laboratories to enable the board to perform its functions under this section efficiently, including the analysis of the samples of water from any stream or well or of samples of any sewage or trade effluents.

However, there is a problem with these legislations as these legislations do not mention any provision with respect to conservation of water neither is there any provision in it with regard to fair use of ground water. True, that pollution to a larger extent may be protected due to strict application and adherence of these provisions but the question remains to be asked as to, Does the practical reality reflect the positive outcome of the Act, No, because the pollution is increasing day by day and when talking from ground zero the authorities so specified under the Act do not perform the assigned functions. The condition of the streams, wells and all other water bodies is very ugly and shall continue to be so if not given a serious preference. The authorities hardly do routine tests of quality of water and it is visible from the ground level at everyone’s place. Since these legislations are 5 decades old there has to be a new legislation to give effective provisions with regard to the protection and conservation of this important resource. The state as such has failed and is failing continuously to ensure protection to give effect to Directive Principle as specified in Article 48A, true that these guidelines are not enforceable in the court of law but The Supreme Court in Minerva Mills v/s Union Of India AIR 1980 SC 1789“the other will disturb the harmony of the constitution. And that the fundamental rights and directive principles were complementary of held that the constitution exits on the balance between part iii and part iv and giving absolute primacy to one over each other”. It therefore means thatthe guidelines to state are to be followed so as to give respect to fundamental rights in letter and spirit. The state by not following the direction as set out In Directive Principles of State Policy to ensure protection of environment including water is indirectly violating the fundamental right of citizens that is the right to health as recognized under Article 21 of the Constitution. In BandhuaMuktiMorcha v/s Union of IndiaAIR 1984 SC 802, “it was held that although the Directive Principle of state policy hold persuasive value, yet they should be duly implemented by the state and it was in this case also that the court had interpreted the dignity and health within the ambit of life and Liberty under Article 21 of the constitution of India”. Therefore, if the state is failing to give effect to the Directive Principles of State Policy it clearly is violating the fundamental rights of its citizens and is in violation of important provisions of the Constitution of India.

The duty has got to be realized by the state that availability of proper and safe drinking water to everyone is an obligation imposed upon it by virtue of Article 21 of the Indian constitution, it was held in the case of Narmada BachaoAndolan v/s Union of India (2000) that water is basic need for the survival of human beings and is part of right to life and human rights as enshrined in Article 21 of the Constitution of India. Again in VelloreCitizen Welfare Forum v/s Union of India(1997) the Supreme Court held that the constitutional and statutory provisions protect a person’s right to fresh air, clean water and pollution free environment. The judicial response with respect to protection of water has been vibrant but the state as such has failed in realizing the duties caste upon it. There is scarcity of proper and safe drinking water, 200, 000 die each year in India due to inadequate or unsafe water supplies as mentioned in report of NITI Aayog published in 2018.

The question as to who is responsible for these deaths remains to be answered but when seen from larger perspective it can be said the State is failing in meeting the requirements. The violation of basic fundamental and human rights can never be justified by any State, since this issue of water is not a political one it has never been given primacy by the state.

Concluded…

(Authors are 5th year students of law at School of Law, University of Kashmir)

           

 

basitfarooq418@gmail.com

 

 

 

 

 

 

 

 

 

 

 

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October 26, 2020 | BasitFarooq I MuzaffarRazakMagray

Water as a fundamental right in India - II

The violation of basic fundamental and human rights can never be justified by any State, since this issue of water is not a political one it has never been given primacy by the state

              

The constitutionof India enshrines Fundamental Duties in part IV A under Article 51A and thereby by virtue of Article 51A (g) Imposes duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Therefore, this duty has got to be realized by every citizen that protection of environment constituting water as an important element of environment is a constitutional duty and also a moral and social duty. The duty to protect environment has more to do with the state for the protection of water as an important constituent of environment and requires financial investment and more importantly supervision over the natural resources present in the country. The Directive Principles of State Policy as enshrined in part IV of the Constitution from Articles 36 to 51 impose positive obligations upon the state and thereby by virtue of Article 48A, the state is obliged to protect environment and take necessary measure for the protection of the same. The state has come up with legislations for the protection of Environment   including the Water Act of 1974 and the Environment Protection Act of 1986 to ensure protection of water in particular and environment in general respectively.  The same legislations however deal with   protection of water from pollution as is set out in their object but the Acts nowhere mention provision with respect to conservation of water.

The Water Act confers powers upon the central government to constitute board as is set out in section 3 of the Act to be called Central Pollution Control Board.  The functions of Central Pollution Control Board (CPCB) are conferred under section 16 of the same Act which among other things include that it shall promote cleanliness of streams and wells in different areas of the states, it shall also collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminate information connected there with. However, one of the important functions of the Board is that it may establish or recognize a laboratory or laboratories to enable the board to perform its functions under this section efficiently, including the analysis of the samples of water from any stream or well or of samples of any sewage or trade effluents.

However, there is a problem with these legislations as these legislations do not mention any provision with respect to conservation of water neither is there any provision in it with regard to fair use of ground water. True, that pollution to a larger extent may be protected due to strict application and adherence of these provisions but the question remains to be asked as to, Does the practical reality reflect the positive outcome of the Act, No, because the pollution is increasing day by day and when talking from ground zero the authorities so specified under the Act do not perform the assigned functions. The condition of the streams, wells and all other water bodies is very ugly and shall continue to be so if not given a serious preference. The authorities hardly do routine tests of quality of water and it is visible from the ground level at everyone’s place. Since these legislations are 5 decades old there has to be a new legislation to give effective provisions with regard to the protection and conservation of this important resource. The state as such has failed and is failing continuously to ensure protection to give effect to Directive Principle as specified in Article 48A, true that these guidelines are not enforceable in the court of law but The Supreme Court in Minerva Mills v/s Union Of India AIR 1980 SC 1789“the other will disturb the harmony of the constitution. And that the fundamental rights and directive principles were complementary of held that the constitution exits on the balance between part iii and part iv and giving absolute primacy to one over each other”. It therefore means thatthe guidelines to state are to be followed so as to give respect to fundamental rights in letter and spirit. The state by not following the direction as set out In Directive Principles of State Policy to ensure protection of environment including water is indirectly violating the fundamental right of citizens that is the right to health as recognized under Article 21 of the Constitution. In BandhuaMuktiMorcha v/s Union of IndiaAIR 1984 SC 802, “it was held that although the Directive Principle of state policy hold persuasive value, yet they should be duly implemented by the state and it was in this case also that the court had interpreted the dignity and health within the ambit of life and Liberty under Article 21 of the constitution of India”. Therefore, if the state is failing to give effect to the Directive Principles of State Policy it clearly is violating the fundamental rights of its citizens and is in violation of important provisions of the Constitution of India.

The duty has got to be realized by the state that availability of proper and safe drinking water to everyone is an obligation imposed upon it by virtue of Article 21 of the Indian constitution, it was held in the case of Narmada BachaoAndolan v/s Union of India (2000) that water is basic need for the survival of human beings and is part of right to life and human rights as enshrined in Article 21 of the Constitution of India. Again in VelloreCitizen Welfare Forum v/s Union of India(1997) the Supreme Court held that the constitutional and statutory provisions protect a person’s right to fresh air, clean water and pollution free environment. The judicial response with respect to protection of water has been vibrant but the state as such has failed in realizing the duties caste upon it. There is scarcity of proper and safe drinking water, 200, 000 die each year in India due to inadequate or unsafe water supplies as mentioned in report of NITI Aayog published in 2018.

The question as to who is responsible for these deaths remains to be answered but when seen from larger perspective it can be said the State is failing in meeting the requirements. The violation of basic fundamental and human rights can never be justified by any State, since this issue of water is not a political one it has never been given primacy by the state.

Concluded…

(Authors are 5th year students of law at School of Law, University of Kashmir)

           

 

basitfarooq418@gmail.com

 

 

 

 

 

 

 

 

 

 

 

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