CRAFTING A RIGHT TO WATER: A JURISPRUDENTIAL ANALYSISShampa Dev and Avishek Chakraborty
The Supreme Court has often reiterated that right to water is a part and parcel of a right to life. Thejudicialization of right to water has raised fundamental questions about the feasibility of culling out ajusticiable fundamental right to water from a social right. While the Jal Boards regulate water supply,sewerage and drainage there are other statutory bodies allocated with the task of maintenance of waterbodies. The water policy prioritizes amongst the various uses of water. The common law principles do notserve the present societal needs. Questions of ownership give conflicting results. Different norms applicable,to surface water and underground water, lead to conflicts. Numerous international legal instruments priorto the General Comment number 15, had not specifically mentioned a right to water. Whether the omissionwas inadvertent - being obvious not requiring specific mention, or implicit and commensurate within theterm âfoodâ or as part of customary international law, or was it because it was not a pressing concern then,needs clarity. While drastic problems call for immediate actions in the form of laws, it is necessary that thelaws be consistent with the nature of the subject matter it seeks to regulate. This research paper addressesthe problem of identifying the various provisioning requirements and feasibility, in case the right to wateris considered as a human right, or granted as a fundamental right or a statutory right. It seeks to comparethe implications arising out of holding a right to water as a human right, a fundamental right or a statutoryright. While the feasibility of water as a fundamental right is in itself a question, to treat it as a human rightleaves it to the whims of the State with only small incremental developments as a result.