Water
as an Ethic
Three Ways of Talking about Water and Rights
Sailen Routray (With N. Shantha Mohan)
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Making salt by evaporation of sea water in Vietnam
Photo Credit - Wikimedia Commons |
We remember growing up in social milieus
in which regular access to water was not guaranteed. Till say ten years back
growing up in small towns and villages in Karnataka and Odisha meant that even
playing with water was a taboo. If a drop of water got split on the floor or on
the dining table and a child started drawing something with it, immediately she
will be admonished by an elder, especially by the grandparents. This was
because a folk belief that said playing with water resulted in droughts was
strong till. The need to conserve water was deeply embedded in the strictures
and taboos that governed everyday life.
The links between water and what
constitutes ethical social practice in India go very deep. In many of the
Puranas, one of the ways in which the gods punish wayward kings who do not follow the
dharma was by visiting droughts upon the kingdoms they ruled. The corollary to
such narratives was the fact that all rulers and kings could hope to increase
their powers in the material world and warn merit for the other world by
constructing water bodies.
For example, David Mosse details out the
ways in which in the creation of water bodies in Ramnad district, exercises of
political power and notions of ethical practice all fed into each other for
centuries all together. The creation of tanks was supposed to accrue merit for
the rules of the region. But the creation of such water bodies extended land
under paddy cultivation in the area and increased its human population (Mosse
2003).
Even now when the rise of the
developmental state has significantly eroded autonomy of communities, it is not
unusual to come across instances of people constructing and maintaining
communal water bodies because of the merit that is supposed to accrue to one
from such charitable acts. Merit accrued to people if they created public water
bodies. There were strictures against polluting water bodies as well. These
were also a matter of taboos—urinating, defecating or polluting rivers and
tanks were taboos and were seen as reprehensible acts.
But the past in India was not completely
unproblematic. Water was also a site where caste differences and
differentiation was built. The relationship between various jati groups was
mediated through the ritual and symbolic values of water. Generally speaking,
in most regions of India, jatis have apparently been ranked according to a
gradation imposed by water.
Generally speaking (and this is a huge
generalization), a person belonging to a jati that was less powerful and
esteemed could and will accept water from the hands of someone belonging to a
more powerful and esteemed jati and not vice versa. Similarly, food cooked in
ghee or oil could be eaten by anyone no matter what its source was. But the
acceptance of food cooked in water was subject to strictures similar to the
strictures governing that of acceptance of water. Thus, water played, and many
would argue continues to play, an important role in the reproduction of social
roles and institutions in India.
But it can be argued that this way of
acting upon the world is no longer available to us. Moreover, these ways of
acting upon the world, specifically with respect to water, might even be in
contradiction with the supreme morality that purports to govern our actions in
post-independence republican India. Increasingly, access to key resources in
India is framed through the discourse of rights, this being true for a resource
like water as well. In this, the discussions in India also reflect the
international narratives surrounding water rights.
Water
Rights
Increasingly, discussions surrounding
water and rights have three important strands. The first one has to do with
property. This discussion, primarily of an economic and public policy
persuasion, sees the necessity of seeing water as an economic good and sees
property rights as one way of ensuring proper transactions related to water.
The second strand of discussions happen around rights of states over water, and
the ‘water wars’ discourse dominated this for a while.
The third strand of discussions
occurs around the ‘human right’ to water and the ways in which entitlements to
minimum levels of water can be ensured to all, especially the poor and the
underprivileged. In some sense, one can see at play the perceived dominance of
three sets of socio-political actors in these three strands: the first strand
privileges ‘the market’ and corporations; the second strand foregrounds statist
concerns and tends to legitimize the state as the actor par excellence in the
water sector; the third strand foregrounds ‘people’.
Property Rights over Water
According
to the UN agencies, water gained recognition as an economic good after the
declaration of the Dublin Principles in 1992. A large part of the discussion
surrounding water and property rights have been around seeing water as an
economic good, getting the price right for promoting efficiency and the
sustainability of water usage. The discussions on property rights and water in
India have been about pricing and cost recovery (Rogers et al. 2002). This
discussion has had two foci: water for irrigation and urban drinking
water.
Treating water as a public good and its
management, especially that of irrigation water by state agencies, is seen to
lead to inefficient usages of water. Market-based mechanisms are seen as an
alternative. There are two broad sets of reasons that are given for preferring
water markets to administered pricing. Treating water as a public good and the
consequent administrative delivery has the danger of being captured by interest
groups. These administrative bodies are also perceived to be inefficient. The
critiques of free-market solutions argue that water markets need significant
regulation.
Moreover, private property rights over water need enforcement by
the government. The need for such enforcement creates problems similar to those
involved in treating water as a public good and the consequent administrated
pricing and delivery. Moreover, water markets fail regularly. The introduction
of private property rights over water and the consequent market mechanisms do
not automatically guarantee efficiency. Market-based mechanisms also do not
always take into account issues surrounding water equity (Routray 2010).
Recently, there have been a few cases in
India where urban municipal bodies have tried to privatize water distribution
in cities. The proposed changes to bring in market-based mechanisms in the
water sector (in the case of both irrigation water and urban drinking water
provisioning) are seen as part of a broader neoliberal trend in governance in
India.
As Priya Sangameswaran discusses in the case of Maharashtra, urban
drinking water, rural drinking water and irrigation water are increasingly
subjected to a greater drive towards private-sector participation that changes
the discourse of water provisioning by depoliticizing the imperatives and
practices of governmental organizations. The neoliberal goal of
self-sufficiency is propped as a desirable goal, without taking into account
whether in a sector such as water (especially urban drinking water) this is
feasible or desirable (Sangameswaran 2009).
We are not arguing that there is no need
to ‘get the price right’ in every instance. In fact, the way in which water
usage is charged for in the cases of urban drinking water and irrigation water
tends to benefit rich farmers and urban middle class and upper-middle class
citizens the most. The concerns of the poor and the vulnerable are rarely part
of the policy discourse.
The rich and the relatively better off need not be
subsidized. But ratonalization of subsidies does not need to translate into
either fixing property rights over water or merely ‘getting the price right’.
In times of growing agrarian distress and rapid expansion of the urban
population in India, using arguments of inefficiency of governmental
provisioning of water to push for privatization of water can only be termed as
misguided.
States’ Rights over Water
The international conventions, rules and
declarations that frame discussions surrounding rights and water, not
unpredictably, foreground states as the legitimate social actors in the sectors
concerned. These deal with rivers that flow through more than one country. The
Helsinki Rules and the UN Convention of 1997 are important in this regard as
these provide the principles of sharing transboundary river waters. The
Helsinki Rules deal with issues such as pollution, navigation and timber
floating.
But the UN Convention of 1997 does not deal with environmental and
relevant human rights concerns in an integrated fashion. With respect to
transboundary river waters, upper riparian states often claim absolute
territorial sovereignty and control over the water within their borders, with
scant regard of effects on downstream states. Downstream states tend to make
claims about the absolute integrity of the watercourses and demand the
non-disturbance of the quantity and quality of water flowing from the upstream
states.
The Helsinki Rules provide the principle of ‘equitable utilization’
that recognizes the right of riparian states of usage of water from common
sources if they do not interfere unreasonably with the usage by other riparian
states. It must be evident that the Helsinki
Rules treat international
transboundary rivers and their drainage basins as indivisible hydrologic units,
which are expected to be managed as a single unit (Mohan 2010).
The
Berlin Rules on Water Resources expands
the scope of the Helsinki Rules and the UN Convention of 1997. The former enumerates
five principles applying to the states such as participatory, conjunctive and
integrated management, sustainability, and the minimisation of harm to the
environment. The Berlin Rules also posit three additional rules related to
water sharing in an international transboundary context: cooperation, equitable
utilisation and avoidance of harm. As
it must be evident from this discussion, states do not have absolute rights
over the waters of transboundary water bodies (Mohan 2010).
Water
is listed under Entry 17 under the State List in the Constitution of India.
This entry is subjected to the provisions of Entry 56 of the Union List. The
latter entry gives the central government powers to legislate on matters
related to interstate state rivers, but it has not been used to the fullest
possible extent. Further Article 262 of the Constitution provides adjudicatory
function to the centre in conflicts related to interstate rivers. The
Inter-State Water Disputes Act (ISWD Act), 1956 that provides for the formation
of tribunals for settling transboundary river disputes was promulgated under
this Article (Mohan and Routray 2011).
Water as a Human Right
The preceding discussion showed that the
international principles, rules and frameworks for water governance as well as
the Indian constitution frame issues surrounding water through a statist optic.
This neglect of the social aspects of water usage is definitely not unique to
these. Academic work on social issues related to water has generally dealt with
issues of efficiency and sustainability. Comparatively speaking, less attention
has been given to issues surrounding equity (Routray 2010).
In this regard, there is an increasing
move to argue for a human right to water that tries to take into account these
concerns of equity. Scholars argue that from an individual’s perspective, there
are clear advantages to having human rights over water. The social benefits of
recognizing such a right are perceived to be significant.
The question is
whether such a human right to water should be a right subordinate to other
human rights such as right to health and right to life (as recognized by the
international bill on human rights) or whether it should have an independent recognition.
In either case, institution of a human right to water will have far-reaching
consequences. There are difficulties associated with the fragmentation of the
right to water.
Thus the Committee on Economic, Cultural and Social Rights of
the United Nations Economic and Social Council (ECOSOC) has taken a
non-fragmented and holistic approach in order to ensure the required water
supplies to realize the rights under the International Covenant on Economic,
Social and Cultural Rights (ICESCR). This can be seen from the ECOSOC’s General
Comment 15 in November 2002, which recognized the right to water as an
independent human right. This Comment is non-binding and does not spell out the
obligations of states to ensure the human right to water. But it is significant
as it provides the basis for an independent human right to water (Bluemel 2005).
A human right to
water would entail obligations to respect, protect and fulfill. This will
involve ensuring access to water with a specified quantity and quality in a
non-discriminatory fashion. Ensuring water rights might be difficult because
attempts at ensuring one community’s rights might violate another’s, for
instance, as is the case with big dams. There are further choices to be made
between the right to water and the right to development since industry is
amongst the biggest polluters of fresh water sources and cleaning up pollution
by shutting down, relocating or adapting to cleaner technologies will have
developmental costs.
From the perspective of the states, such an approach is
seen to put constraints over adequate cost recovery. These costs are perceived
as not only financial but also legal, cultural and institutional. These costs
will vary according to socio-economic, cultural and political contexts of
specific countries. South Africa has already enshrined the human right to water
as a part of its constitution and has started taking steps to ensure the
enjoyment of such a right by its citizens. Argentina also has an explicitly
stated right to water in its constitution and has taken steps within its court
system to protect this right ((Bluemel 2005).
In India, a quantum of 150 lpcd and 200 lpcd
of water has been put forth by the NCIWRDP as adequate for rural and urban
areas respectively, while a common norm of 100 lpcd is seen as sufficient for
both (Iyer 2007). In India’s
Constitution, the right to water is not stated explicitly, but this right is
implicit in the constitutional right to life that has been interpreted by
Indian courts to include a right to clean and sufficient water. The right to water
has been derived by the courts in India from Article 21 of the Constitution
that provides for the right to life.
The right to water in India has evolved through judicial
interpretation and not through legislative action. This is evident in the
judgments being passed by the court in cases such as Narmada Bachao Andolan v. Union of India,
M.C. Mehta v. Union of India and A.P. Pollution Control Board v. Prof. M.V. Nayadu. In these cases, the Supreme Court has passed injunctions
upholding the state’s duty not to pollute water resources, to prevent potential
pollution of drinking water during industrial development, to improve the
sewage system and to provide clean drinking water to all its citizens. The
Indian Supreme Court has also declared groundwater to be a public asset (Narain
2010).
Questions surrounding water rights in India are also issues
about access. In large parts of rural India, caste-based barriers to accessing
water, especially drinking water is still prevalent. There are laws that try to
deal with this situation, for example, s.3 (xiii) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 deals with problems of
Scheduled Caste (SC) and Scheduled Tribe (ST) communities with respect to
access to water and makes it a punishable offence for persons belonging to
non-ST/SC communities to either obstruct usage of sources of water by SCs and
STs or to spoil such sources of water.
It must be mentioned in this regard that traditional managers of water
bodies in the commons (such as tanks), especially in peninsular India, often
belonged to SC communities. But irrigation laws in Andhra Pradesh and Tamil
Nadu do not acknowledge the roles of such traditional water managers and their
rights. With regard to other uses of water such as traditional fisher folk, the
changed polices of the state often affect them adversely.
As this shows,
governmental policies are often inconsistent with the constitutionally given
and judicially interpreted right to water. The need to adequately
operationalize such a right stems from not only constitutional and juridical
imperatives but also international imperatives such as the Millennium
Development Goals and the obligations under General Comment No. 15 (Muralidhar
2006).
Water as an Ethic
In contrast to seeing water as a right, we posit that there is a
need to frame discussions surrounding water and equity in terms of an ethic.
Water as a resource itself comprises of an ethic. Unlike other ‘static’
resources such as land and minerals, water is dynamic. Water is also renewable,
a characteristic which makes the physical exercise of a ‘right’—in the sense of
excluding other potential users—difficult. Because as a resource, water can be
used multiple times for multiple usages, it can lend itself as much as a site for
conflict as for cooperation.
In this regard, instead of figuring out details of what will be
the legal, economic and institutional repercussions of constituting water as a
right, we here list out a few principles that may help in taking the discussion
on water, equity and rights forward. These are based on the understanding that
duties and rights are intertwined—every right, as we learnt as students in
school, has a corresponding duty.
The
peculiar nature of water makes the fulfillment of these duties imperative.
Water is essential for life and is the basis for obtaining other capabilities
such as food and health that are necessary for human well-being. Hence, debates
surrounding water and equity have to go beyond the narrow and legalistic
calculation of rights and duties to a discussion of water as an ethic.
The first principle that has to be kept in mind while discussing
water and equity and therefore water as an ethic is that of ideological
pragmatism. As seen in the earlier sections of this essay, discussions
surrounding water and rights are often framed around ideological positions that
seem to foreground states, markets or communities as custodians par excellence
of water as a resource. One needs to get away from this kind of ideological
polarization with respect to water.
In some instances such as densely populated
urban areas, provisioning by governmental organizations might make sense,
whereas facilitation of community provisioning of drinking water supplies might
be more relevant in thinly populated rural areas. Major subsidization of the
domestic water usage of poor urban citizens might be necessary, whereas rich
rural farmers undertaking cash crop cultivation might deserve minor subsidy
support.
The second principle to be kept in mind is that of subsidiarity.
If water can be provisioned at a lower scale of administration or community,
then that should be encouraged. This also means that the responsibility is on
organizations on a higher level to follow rules such as ‘no harm to the
resource’.
The third principle is a Gandhian one—it is the principle of antyodaya (roughly translated it means
putting the last, or the weakest, at the first). With respect to water, in
practice, it will mean that in the event of any conflict with respect to claims
or access to water as a resource, the claims and concerns of the weaker party
in a dispute should be foregrounded.
The fourth principle that has to frame discussions surrounding
water is the indivisibility of water as a resource and the way it can work as
an integrative device in thinking about issues surrounding development and
equity. Current processes of development violate the ‘bodies’ of sources of
freshwater such as rivers, tanks and lakes with impunity.
Socio-economic
planning and its implementation take place in India as if water and water
bodies are incidental to such a process. Especially with respect to urban water
resources, city planning has to take place as if water mattered. It will help
us think and act about issues of inequity in other resources such as land and
forests in a much more integrated fashion.
Steps to be Taken
If we see water as an ethic, then one cannot merely hand out a
set of prescriptions that are not context specific. But certain broad
directions in which things need to start moving soon can be indicated. One
needs to identify a minimum quantum of water (for drinking, cooking, sanitation
and health) that is an entitlement of every person on account of being a
citizen of India.
Because of obvious reasons, this will need to be minimally
defined, and governmental agencies responsible for ensuring supply and access
of this water will need to be identified. Instead of targeting the vulnerable,
the attempt should be to ensure universal access to this quantum of water. A
code also needs to be developed for governmental organizations to deal with the
pollution of fresh water sources.
Similarly, corporate liability will need to
be defined, banning usages of certain types of common resources of surface
water and groundwater. A place has to be created for civil society
organizations so that they can act as catalysts for desirable change for
ensuring the right to water, for watching over the activities of government
organizations and corporations and for playing a pedagogic role with respect to
the wider public (Muralidhar 2006).
***
There was an older ethic of water that
governed the usage of the resource in India, informed by a certain
understanding of dharma. Under the constitutional morality that is supposed to
guide resource use in postcolonial India, that ethic is not available to us any
longer. The discourse that is available to us is one of rights. As we saw in
this essay, there are three important ways of thinking about water and rights
in the world as well as in India.
First, private property rights over water and
issues surrounding cost recovery; second, rights of states over water according
to international laws and conventions and the possibilities of cooperation and
conflict between states based on these rights; and third, around the human
right to water. This essay is most comfortable with the third way of talking
about rights.
While recognizing a human right to water, it is necessary to
start thinking about water in new ways. Thinking about water as an ethic and
about the principles that can govern such an ethic, might be one such way in
which we can perhaps start thinking about water, equity and rights
productively.
References
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Implications of Formulating a Human Right to Water’, Ecology Law Quarterly, 31: 957–1006.
Iyer, Ramaswamy R. 2007. Towards
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Mohan,
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(eds), River Water Sharing: Transboundary
Conflict and Cooperation in India, pp. 3–22. New Delhi: Routledge.
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D. 2003. The Rule of Water: Statecraft, Ecology and
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Human Right to Water, pp. 65–81. Berlin:
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as an Ethic. New Delhi: Penguin Books.
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Note: The title of this essay is structured in a fashion similar to Vijay Nambisan's book Language as an Ethic. This piece was earlier published as different versions/drafts as chapters in two volumes: Sharing Blue Gold and Thinking about Water in Uncertain Times.
