Water as an Ethic

Three Ways of Talking about Water and Rights

Sailen Routray (With N. Shantha Mohan)

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 

Bluemel, E.B. 2005. ‘The Implications of Formulating a Human Right to Water’, Ecology Law Quarterly, 31: 957–1006.

Iyer, Ramaswamy R. 2007.  Towards Water Wisdom: Limits, Justice, Harmony. New Delhi: Sage Publications.

Mohan, Shantha N. 2010. ‘Locating Transboundary Water Sharing in India’, in N. Shantha Mohan, Sailen Routray and N. Shashikumar (eds), River Water Sharing: Transboundary Conflict and Cooperation in India, pp. 3–22. New Delhi: Routledge.

Mohan, Shantha N. and Sailen Routray. 2011. ‘Resolving Inter-state Water Sharing Disputes’, Seminar, 626: 31–35. 

Mosse, D. 2003. The Rule of Water: Statecraft, Ecology and Collective Action in South India. Oxford: Oxford University Press.

Muralidhar, S. 2006. ‘The Right to Water: An Overview of the Indian Legal Regime’, in Eibe Riedel and Peter Rothen (eds), The Human Right to Water, pp. 65–81. Berlin: Berliner Wissenschafts-Verlag.

Nambisan, Vijay. 2003. Language as an Ethic. New Delhi: Penguin Books.

Narain, V. 2010. ‘Water as a Fundamental Right: A Perspective from India’, Vermont Law Review, 34(4): 917–925.

Rogers, P., R. de Silva and R. Bhatia. 2002. ‘Water Is an Economic Good: How to Use Prices to Promote Equity, Efficiency, and Sustainability’, Water Policy, 4: 1–17.

Routray, S. 2010. ‘The Water Sector in India: An Overview’, in N. Shantha Mohan, Sailen Routray and N. Shashikumar (eds), River Water Sharing: Transboundary Conflict and Cooperation in India, pp. 23–44. New Delhi: Routledge.

Sangameswaran, P. 2009. ‘Neoliberalism and Water Reforms in Western India: Commercialization, Self-Sufficiency, and Regulatory Bodies’, Geoforum, 40: 228–238.

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.