Guest Post: The Bombay High Court and a Graded Constitutional Right to Water

(In this guest post, Mansi Binjrajka and Avani Chokshi examine a Bombay High Court decision on the “right to water” under Article 21, and its discontents.)

Last year, the Bombay High Court passed an order, which was much applauded for declaring the right to water (RTW) to be implicit in Article 21. The case involved the issue of whether the Mumbai Municipal Corporation (hereinafter ‘MMC’) was obligated to supply drinking water to the occupiers of illegal slums in the city per Art. 21. The Court held that regardless of the illegality of their tenements, the occupiers of illegal slums have a RTW. The Court however held that this right would not be at par with the RTW of citizens living lawfully. It directed the state to formulate an appropriate policy for the supply of water to these slums.

In 1996, the state government issued a circular (hereinafter ‘1996 circular’) aimed at curbing the growth of slums by denying supply of water to such illegal constructions. Another resolution was later passed regularizing slums constructed before January 1, 1995 (a date which was later extended to Jan 1, 2000) and enabling them to avail rehabilitation under government schemes. Another challenge was to Municipal Corporation Rule 6.9 which said that water connections would be provided only to regularized slums. The cumulative effect of this was that slums constructed post 2000 would not receive water from MMC. The petitioner filed a PIL before the Bombay High Court challenging the validity of the 1996 circular and Rule 6.9.

The main contention of the petitioner was that by halting water supply to post-2000 slums, the 1996 circular and Rule 6.9 were in violation of Article 21, since RTW is included within its ambit. The state defended the validity of the policy, noting that it aimed at discouraging the growth of slums.

The existence of the fundamental RTW within Article 21 was the main issue in this case, one that the judgment merely glossed over. The judgment confirms the existence of this right by merely mentioning two previous cases of the Supreme Court, which recognize the same. However, the Subhash Kumar case spoke about a right to pollution free water and not supply of water. Also, the Chameli Singh case does not even deal with RTW explicitly; it only mentions it in passing. Thus, neither of the two cases relied upon had “categorically held that right to live guaranteed in any civilised society implies the right to…water…” as asserted in the judgment. There exist other decisions of the Supreme Court that are more suitable to the facts of this case. In A.P. Pollution Control Board v. Prof. M.V. Nayudu, the Court declared access to drinking water a fundamental right and recognized the consequent duty imposed on the State. In Narmada Bachao Andolan v. Union of India, the Court declared that the unavailability of drinking water is a violation of both Article 21 and international human rights commitments.

Neither did the judgment extend the discussion on RTW beyond its recognition in Article 21, nor did it substantiate its finding. It could have used Article 47 to derive RTW, as was done in Hamid Khan v. State of Madhya Pradesh. Since the facts of this case related to supply of water, which necessarily requires action on the part of the state, the Court could have emphasized the fact that RTW is a positive right while elaborating on the state’s duties with regard to the same. No decision has outlined the contours of RTW till date and neither does India have legislation on drinking water, which would help determine the contents of RTW. This lacuna could have been addressed by the judgment.

While recognizing RTW, the Court held that the occupation of an illegally constructed hut is not a sufficient ground for its denial to a citizen. However, the Court used the very same ground to declare that the illegal occupants “cannot claim a right to supply drinking water on par with a right of a law abiding citizen”. In pronouncing this limitation, the Court seems to have neglected the fact that the Constitution requires a “procedure established by law” or in other words, the presence of an enacted law, to restrict Article 21. The question thus arises: how did the Court hierarchise the degree of RTW available to different citizens without the backing of a procedure established by law? It is clear that the conclusion attained, that the fundamental right to water for one category of citizens is sub-par to that of another category, is fallacious. The judgment did not stop here; it also allowed MMC to charge a higher rate for water supply to illegal slums.

It seems like the Court attempted to appease both parties before it – by recognizing RTW for the petitioner and by limiting it in order to give the state sufficient leeway while keeping in mind the state’s submission with respect to discouraging illegal occupation of public property. However, is restricting a fundamental right the correct way to do this? The judgment took note of sections of the Mumbai Municipal Corporation Act, 1888, which impose a legal obligation on Designated Officers to prevent the construction of illegal buildings. It also recognized the omission on part of the state to provide affordable housing. However, it did not stress on these points. Instead of creating unequal rights for two groups of citizens, the Court could have adopted a duty-based approach and directed the government to discharge its obligations under the Corporation Act effectively. The Court should have reprimanded the state for failing to fulfill its duty directly and instead resorting to an indirect way of discouraging slums by restricting water supply.

The petitioners brought to the notice of the Court that MMC was providing water on “humanitarian grounds” to one set of illegal occupants – those who were residing in buildings with no occupation certificates. In light of this, the refusal to supply water to illegal slums could have been criticized on grounds of violation of Article 14. Applying the test evolved in West Bengal v. Anwar Ali Sarkar, it may be possible to argue successfully that an “intelligible differentia” exists between the building and slum occupiers; however, in no scenario can it be said that the difference created bears a rational nexus to MMC’s object. If the MC’s objective was the supply of water on humanitarian grounds, then this object would have better been served had the supply of water been sanctioned for the residents of illegal slums, considering their lower economic class. Here, benefits were given to a certain category of people on arbitrary grounds. This rather blatant breach of Article 14 was within the notice of the Court and noted upon; however, the court chose to let the MC’s approach pass without reprimand. This inertia on the part of the court to take cognizance of the contravention of a fundamental right reveals an even greater injustice than its fallacious restriction on the right to water.

It had also come to light that MMC was supplying electricity to the illegal slums; another fact that clearly vitiates their main submission of preventing illegal constructions in the city and casts a shadow on their intention. However, the judgment failed to address this issue.

The judgment also directed MMC to formulate a policy for the supply of water “to those who are occupying such slums for residential purposes”. However, it provided no reason for creating this distinction between residential purposes and other purposes. Further, does this mean water will not be supplied to those occupying slums for non-residential purposes? Also, the court merely issued a direction to MMC to formulate an appropriate policy for the supply of water to the residents of unauthorized slums erected after 2000, instead of using its power of judicial review to develop a set of interim instructions for the period until this formulation. While the State was instructed to formulate a policy by February 2015, no policy has been formulated yet (July 2015).

After a threadbare reading, we conclude that this is a judgment of missed opportunities. The Court was given the chance to address the lacuna that exists with respect to RTW. However, instead of taking initiative, the Court gave a meek response to the weighty issues placed before it. In trying to balance the interests of the state and the people, the judgment has done more damage than good. The little progress that it made by recognizing RTW has been undermined by the subsequent appalling limits imposed on it. Also, what is most troubling is that the judgment is in violation of the Constitution by limiting Article 21 in the absence of legislation. It has never been the judiciary’s prerogative to limit the availability of the Fundamental Rights enshrined in Part III of the Indian Constitution. It failed to identify the contradiction in MMC’s actions and its submission that it was doing its best to discourage illegal occupation of property. Due to the tentative and hesitant attitude of the court, there was no in-depth discussion or full-fledged recognition of a right, and a potentially landmark judgment lost its edge.

(The writers are students at the National University of Juridical Sciences, Kolkata)

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Filed under Article 21 and the Right to Life, Right to Water

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