The findings are in line with the expectations that normative opportunity structures are important. However, in contrast to our expectations, we find that the potential structures for advocacy opened by the international norm development and the recognition of the human right to water and sanitation in 2010 rarely were utilised by actors in Kenya and Slovenia. We believe that more research is needed on how international right norms are diffused, how domestic opportunity structures influence the acceptability of the norm at national level, and how actors can manipulate and change these structures. There is also need for more research on the effects of constitutionalisation of the right to water on citizens' possibility to enjoy their right.

**Author Contributions:** Conceptualization, M.L. and S.G.; methodology, M.L. and S.G.; software, M.L.; validation, M.L. and S.G.; formal analysis, M.L.; investigation, M.L.; resources, M.L.; data curation, M.L.; writing—original draft preparation, M.L. and S.G.; writing—review and editing, M.L. and S.G.; visualization, M.L. and S.G. All authors have read and agreed to the published version of the manuscript.

**Funding:** Research funded by the Norwegian Research Council. "Elevating Water Rights to Human Rights: Has it strengthened marginalized peoples' claim for water? (Forskerprosjekt—FRIHUMSAM project number 263096). P.I. Bruce M. Wilson.

**Institutional Review Board Statement:** Since the archival data materials were publically available and the interviewees were experts interviewed in their public capacity, and also were anonymised, the Review Board did not consider ethical approval required.

**Informed Consent Statement:** Informed consent has been obtained from the interviewees to publish this paper.

**Data Availability Statement:** The following data presented and analysed in this study is available: Constitutions of Kenya and Slovenia can be accessed from: Comparative Constitution Project. Constitute project. https://www.constituteproject.org/search?lang=en (accessed on 28 July 2020). Parliamentary documents from the Slovenian Parliament can be accessed from: Državni Zbor. Kronologija VI. Mandata. https://www.dz-rs.si/wps/portal/Home/is/kronologija/!ut/p/z1/04\_Sj9CPykssy0 xPLMnMz0vMAfIjo8zinfyCTD293Q0N3L2cTAwCjf19nYLMgwyDPQz0w8EKvCy9Hb3ACoyCTA0C-XYycfIMNjA2CjQz0o4jRb4ADOBKpH4-CKPzGF-SGhoY6KioCAIQMZuY!/dz/d5/L2dBISEvZ0FBI-S9nQSEh/ (accessed on 11 October 2021). Documents from the Constitution of Kenya Review Committee were downloaded from: Katiba Institute. Katiba Digital Resource Database. http: //www.katibainstitute.org/Archives/ (accessed on 18. November 2019). The Katiba Archive website has since been removed. Documents that were downloaded from the website and used in the analysis can be obtained from the corresponding author, along with the code syntax used to download the documents from the website through the RStudio software.

**Acknowledgments:** We are grateful to our colleagues at the CMI-UiB Centre on Law & Social Transformation; the Chr. Michelsen Institute, and the University of Bergen for comments, suggestions, and great conversations about this topic—and particularly to the team in the research project "Elevating water rights to human rights: Has it strengthened marginalized peoples' claim for water?" (Researcher project—FRIHUMSAM project number 263096).

**Conflicts of Interest:** The authors declare no conflict of interest.

### **Appendix A**

**Table A1.** Coding categories.

**Table A1.** *Cont.*

Sources: Documents collected from Katiba Institute n.d. [16], codes from Loen 2020 [1].

#### **References**

### *Article* **The Evolution of the Right to Water in India**

**Namita Wahi**

Land Rights Initiative, Centre for Policy Research, New Delhi 110021, India<EMAIL_ADDRESS>Tel.: +91-9818496848

**Abstract:** Water is indispensable to human life. From references to water in numerous international treaties to ultimately, the adoption of United Nations (U.N.) General Assembly resolutions emphasising separate recognition of the "right to water" in 2010, we now have a freestanding human right to water. In this paper, I review the constitutional and legal framework underlying the right to water in India, and present a comprehensive analysis of judicial decisions that have enforced this right, based on insights from two original datasets. The first dataset is a compilation of all water laws, and the second is a compilation of all High Court and Supreme Court judicial decisions on the right to water. My review of the articulation of the "right to water" in India shows that this articulation has occurred largely oblivious of the international human rights movement on water. Apart from the mainstream articulation of the "right to water", I also describe specific articulation of the right by two marginalised groups, namely *Dalits* and *Adivasis*. In so doing, I show how the articulation of the "right to water" has strengthened the claims of the former, but not those of the latter group.

**Keywords:** human right to water; courts; drinking water; irrigation; marginalised groups; indigenous communities; social and economic rights; human rights critiques; right to life; right to environment

### **1. Introduction**

Water is indispensable to life. Human beings can survive for three weeks without food, but only three days without water [1]. Moreover, there can be no food cultivation without water. Conceptually, therefore, the human right to life, regarded as the most basic and fundamental of all rights, must include within it a right to water. In international human rights law, however, this correlation has been made only since the late 1970s. The human right to water evolved from initial references to water in numerous international treaties, including the Convention on the Elimination of All Forms of Discrimination against Women, 1979 [2], the Convention on the Rights of the Child, 1990 [3], and the Convention on the Rights of Persons with Disabilities, 2008 [4]. Ultimately, in 2010, the United Nations ("U.N.") General Assembly adopted resolutions on the "Human Right to Water and Sanitation" [5] and on the "Human Rights and Access to Safe Drinking Water and Sanitation" [6] emphasising separate recognition of the "right to water". As a result, we now have a freestanding human right to water [7]. In 2002, the U.N. Committee on Economic, Social, and Cultural Rights ("E.S.C.R".) adopted General Comment 15 noting that "The human right to water is indispensable for leading a life with human dignity". The Committee also defined the core content of the "right to water" to include "everyone's right to sufficient, safe, acceptable and physically accessible and affordable water for personal and domestic uses".

While the right to water has been included as a constitutional right in many domestic constitutions [8], in India, the "right to water" has been read into expressly enunciated fundamental or constitutional rights, namely, the "right to life" through judicial interpretation. Despite extensive recognition of the "right to water" in both constitutional and international law, the content of the right and its enforcement vary greatly across national contexts [9]. Nevertheless, the recognition of the "right to water" as an international human right implies that every individual in every country of the world must have access to a

**Citation:** Wahi, N. The Evolution of the Right to Water in India. *Water* **2022**, *14*, 398. https://doi.org/ 10.3390/w14030398

Academic Editor: Caetano C. Dorea

Received: 9 November 2021 Accepted: 26 January 2022 Published: 28 January 2022

**Publisher's Note:** MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

**Copyright:** © 2022 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

certain quantity of affordable and good quality water, and states are under an obligation to provide the same "subject to the maximum of their available resources".

In this paper, I review the underlying constitutional and legal framework and present a comprehensive analysis of judicial decisions that have enforced the right to water in India. Based on this review, I describe how the content of the right to water in India evolved in light of underlying water statutes and common law principles that developed during the colonial period as a result of colonial policies that prioritised irrigation over drinking water supply. Despite the developmental ambitions of the independent Indian state, in so far as these laws and policies were grandfathered during the post-colonial period [10], without an express constitutional obligation to provide basic drinking water to the people of India, the independent Indian state's focus shifted only very gradually to recognising a legal obligation to provide drinking water to the population. This happened, in great part, due to judicial articulation of a right to clean drinking water, derived from the right to a "healthy environment" which in turn was read into the "right to life" under Article 21 of the Constitution.

Apart from the judicial articulation of a generally applicable "right to water", I also describe the articulation of this right on behalf of two marginalised groups. The first group includes *Dalits* or Scheduled Castes that constitute 16% of India's population, who have historically faced systematic discrimination within mainstream Hindu society based on their caste. Originating in ancient India, and transformed by medieval elites, and later by British colonial rule, the caste system in India was a system of social stratification that consigned people in different castes to different hereditary occupations, social status, and ways of life [11]. *Dalits* or untouchables were placed outside the caste hierarchy and were denied access to common sources of food and water. The second group includes *Adivasis* or indigenous peoples that constitute 8.6% of India's population, who have been historically marginalised because they have lived largely in geographical isolation in hills and forests, and have distinct cultures and ways of life that are outside mainstream Indian society [12].

Historically, *Dalits* have sought integration and respect within mainstream Hindu caste society which has been denied to them for centuries, in accordance with the dominant development paradigm. On the other hand, *Adivasis* have sought development on their terms outside mainstream Indian society. As a result, *Dalit* articulation of the "right to water" seeks not only to secure state provisioning of water in the traditional vertical exercise of their rights against the state but also to ensure enforcement of access to that water provision through the horizontal application of the right in criminal law against upper castes that block such access [13]. For *Adivasis*, however, articulation of the "right to water" is inextricably linked to their rights to land and forest, seen as part of one indivisible ecosystem.

The period from the late 1970s onwards is widely regarded as a period of burgeoning human rights in the world with increasing recognition for various social and economic rights. Since the dawn of the millennium, the U.N. E.S.C.R. has articulated the core content of many social and economic rights including the rights to food, health, water, housing, work, and social security, and nondiscrimination in accessing all of these rights. The same period has also witnessed a frontal attack on the human rights movement, derived primarily from Marxist and legal realist critiques of rights. Marx critiqued individual rights as rights of egoistic beings, arguing that beneath the veneer of "liberal rights for all", existed a highly unequal and inegalitarian society [14]. The legal realist critique of rights was similar to the Marxist critique in its dismissal of the public/private distinction as describing the reality of our political and legal experience. Legal realist scholars do not deny the importance of individual rights but argue that there is no such thing as a pre-political private sphere, a state of nature, which precedes the state. The private sphere itself is constituted by the state, and by law because it depends on the state for the provision and enforcement of norms, which regulate relations within that sphere. Moreover, these norms cannot be deduced from abstract ideas of rights but rather require contextualized normative choices made by state actors [15].

Human Rights critics such as David Kennedy have contended that the idolatry of human rights standards has led activists to overburden the concept with ever more ambitious social and economic rights, whilst preventing them from considering other solutions to these issues. The expression of vague values as legal norms opens them to selective interpretation and gives an advantage to litigious sections of society aware of how to manipulate the legal system to protect their interests [16]. Through a historical review of the human rights movement, echoing Marx, Sam Moyn has argued that human rights norms selectively emphasize one aspect of social justice, neglecting the distributional victory of the rich. They grant status equality, not distributive equality [17]. Human rights politics, including with respect to the emergence of social and economic rights, sensitize us to visible indigence and repression, but not to welfare. Consequently, human rights are a guarantee of sufficient provision, not a constraint on inequality [17]. Moyn argues that even though post-colonial states deployed the language of rights effectively to agitate against global injustice of hierarchy and power [17] (p. 125), they fared worse than developed states in combining concerns of sufficiency and equality. Moyn does not, however, explain why this has been the case.

In this paper, I examine the salience of these human rights critiques through an evaluation of how the right to water has evolved in India as a legal, and later a constitutional right, from the colonial period to the present. In doing so, I show that in the context of post-colonial states that broadly retained the legal and administrative structure of the colonial state, the shift in the state providing for basic needs of citizens, including the rights to food and water happened only gradually. Moreover, in these post-colonial states, before the state distributed the pie, it needed to enlarge the same, something developed countries did not need to do. This led to a focus on economic development, understood mainly as economic growth to be achieved largely through industrialisation and capital formation, which in turn, led to increased resource extraction, including that of water resources.

Moreover, since ensuring basic food needs of the population was a key focus of the post-colonial Indian state, water resources continued to be diverted to agriculture. In the absence of a recognised obligation to provide drinking water to the population, the constitutional right to water carved out of the "right to a healthy environment" played an important role in shifting the state's focus from appropriation of water for irrigation purposes to protection of water resources from overuse, exploitation, and pollution. These developments in India occurred before the international recognition of the human right to water. I show that the recognition of the right to water as part of the fundamental "right to life" has led to greater accountability of state and private actors with respect to overuse and pollution of water resources which was absent during colonial times, and also resulted in reclaiming resources appropriated by the colonial state through the articulation of the "public trust" doctrine [18].

### **2. Materials and Methods**

In this paper, I trace the evolution of the "right to water" in India by reviewing two original datasets of all water laws, numbering 156, and all High Court and Supreme Court decisions, numbering 248, that turned on the articulation and formulation of the right. I compiled these datasets with the help of researchers at the Land Rights Initiative. In addition, I review all constitutional law provisions relevant to the articulation of the "right to water" and all national water policies of the Government of India. I supplement my analysis wherever appropriate with the help of secondary literature on the "right to water" in India and internationally.

For the first dataset on "water laws", we compiled a near-comprehensive set of all water laws from the colonial period until the present. We started with a set of twenty-four water laws we had originally compiled for the Initiative's Mapping Indian Land Laws project [19]. We then supplemented this original set with laws collected based on keyword searches relating to "water law" for every state and union territory in India. In addition, we used the following keyword searches corresponding with entries in the state list of the Constitution, namely, "water supply", "irrigation", "drinking water", "water pollution", "drainage", "canals", and "tanks". We also collected all local self-government laws in rural

and urban areas with provisions pertaining to water supply, drinking water, and minor irrigation. Based on this, we created a dataset of 156 laws.

For the second dataset, we attempted to create a comprehensive set of all judicial decisions on the "right to water" from the colonial period to the present. Collecting a comprehensive and/or representative set of water rights cases is difficult since not all cases are published in case reporters and those that are reported are not necessarily available in legal databases and/or searchable through legal search engines. At the Land Rights Initiative, we collected our set of cases through keyword searches on four legal search engines, including *Manupatra*, *Westlaw*, *SCC Online*, and *Indian Kanoon*. These cases were compiled using the search term "right to water". In the first stage of analysis, all cases where the "right to water" appeared somewhere in the text of the cases were included. Through a careful examination of the cases, all cases where the textual appearance of the "right to water" had no bearing on the dispute involved in the case were excluded. These cases were then supplemented by additional cases that were collected using the search terms, "access to water", "pollution of water bodies", "conversion of water bodies", "privatisation of water bodies", "irrigation", "drinking water", "water dispute", "*Dalits* and water", "*Adivasi* and water", and "water and women". Through this process, a dataset of 248 judicial decisions was created which had some bearing on the articulation and enforcement of the "right to water". The dataset included 59 Supreme Court and 189 High Court decisions. It may be noted that interstate river water disputes were excluded from this set because they did not include any references to the human right to water, nor were these cases caught while using the search term "right to water".

### **3. India's Water Challenge: Scarcity, Quality, and Inequality**

India is the world's largest democracy. Home to over a billion people, constituting 18% of the world's population, India has only 4% of global renewable water resources within its territory [20]. According to World Bank data, India is the second-most populous country in the world but the seventh largest in terms of land area. Table 1 contains the basic population, land area, and per capita availability of water data for India [21].

**Table 1.** Basic population, land area, and water data for India.

The World Resources Institute estimates that India is the world's 13th most waterstressed country [22]. According to the *NITI Aayog*, the government's think tank, nearly 600 million Indians are dealing with high-to-extreme water stress wherein over 40% of the annually available surface water is used every year [23]. Unequal distribution of surface water resources, population growth, and urbanisation, are responsible for water scarcity in many parts of India [24]. Extreme climatic phenomena, such as droughts and floods, are common and expected to be exacerbated by climate change. Scheme 1 below shows the state-wise distribution of water stress in India [25].

A recent report by the Central Water Commission and Indian Space Research Organisation estimates that India's per capita water availability in 2011 reduced to 1651 m3/year from 1820 m3/year in 2001. The report projects that the per capita availability will drop to 1228 m3/year in 2051, approaching the "water scarce" condition [26]. However, India's water challenges are not just about scarcity in terms of quantity of water available, but also involve issues of quality and access seen in the form of "unsafe and depleting groundwater reserves, inequities in access, polluted rivers, and water bodies, and their adverse impacts on people's health and productivity" [27]. Extreme water scarcity between different regions has resulted in recurring interstate water disputes not just between states within India's federal framework, but also districts and communities [27].

**Scheme 1.** State-wise distribution of water stress in India.

In 2015, 88% of the total population had access to at least basic water. This access was greater in urban areas, with 93% of the population having access to water as compared with 85% in rural areas [28]. In rural India, only 49% of households had exclusive access to a primary source of drinking water on their premises. At 58%, this ratio was marginally better for the urban population [29]. Apart from the rural–urban disparities, these figures also mask huge social inequalities in the availability and quality of water to individuals. For instance, only 28% of *Dalits* in rural areas have access to water within their premises.

### **4. Legal and Policy Framework Governing Provision of Access to Water**

Despite extensive powers to own, access, regulate, and control water, neither the colonial state nor the independent Indian state asserted or recognised any explicit obligation to provide drinking water to its teeming millions. Colonial policy on water, as in the case of land [30] and forests [31], was focused on ensuring greater state control over the resource to maximise revenue generation for the British Crown. The century and a half old Easements Act, 1882, still active today, preserved the right of the government to regulate the collection, retention, and distribution of water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or the water flowing, collected, retained or distributed in, or by any channel or other work constructed at the public expense for irrigation [32]. Irrigation canals were at the forefront of British imperial policy in India ostensibly as a "development" mechanism to prevent recurring and widespread famines but were poorly planned and implemented, in part because they were motivated less by the needs of the local population and more by the need for good returns on capital invested by a gentlemanly elite of landed aristocracy and city financiers [33]. Irrigation laws were enacted to acquire land and appropriate water for the purposes of building these canals [34]. Such laws only recognised an obligation to compensate for the loss of drinking water as a result of the construction of canal works. A few other laws enabled municipalities to prohibit contamination of drinking water and to make available public drinking fountains for general public use and provision of water in case of emergencies [35].

The Easements Act, 1882, also recognised the rights of landowners to all surface and groundwater [36]. Thus, the colonial legal framework recognised rights of water as appurtenant to those of land and to be used for purposes of drinking water, personal and domestic uses, and irrigation. Other legislation pertained to water taxes in accordance with the imperial goal of maximising state revenue [37]. Thus, the British imperial state's ambitions were focused more on state control of water resources and making water available for purposes of generating food, rather than ensuring adequate, accessible, and affordable drinking water to the population.

The Government of India Act, 1935, enacted in response to Indians' demands for greater autonomy for British India specifically gave power to provinces concerning water supply, irrigation, canals, drainage and embankments, water storage, and hydropower. Following independence in 1947, India opted for a federal system of government with a unitary bias ordained by the Indian Constitution that was adopted in 1950. The Union Parliament and executive not only have greater powers of legislation and execution [38] but also have primacy in areas of concurrent jurisdiction [39] and residuary powers [40] of legislation. The Constitution retained the framework of the Government of India Act by including "water" in the state list. Law-making power and executive responsibility for water and sanitation services fall squarely within the purview of state legislatures [41], with the exception of river water disputes, which fall within the purview of Parliament [42]. The Interstate River Water Disputes Act, 1956, provides the statutory framework for adjudication of disputes between upstream and downstream states along the lines of common law principles regarding sharing of water between riparian landowners, suitably adapted to the conditions of Indian states. The Act also constitutes a tribunal to adjudicate disputes between states parties. Water scarcity, especially in the water-stressed states, frequently leads to interstate water disputes, and increasingly between districts and communities. However, as described in Section 2, these disputes have been excluded from this paper as they do not involve any articulation of the "right to water".

Pursuant to Article 252, which empowers Parliament to make laws on a state subject if asked to do so by two or more states, Parliament also enacted the Water (Prevention and Control of Pollution) Act, 1974 (the "Water Act"), and Environment (Protection) Act, 1986 (the "EPA"). The Water Act provides for the constitution of central and state boards with powers to consent to the establishment of particular industries upon fulfilment of conditions under the Act; to enter, inspect, and sanction the same for pollution. The EPA is an umbrella legislation designed to provide a framework for central government coordination of activities of various central and state authorities established under previous laws, such as the Water Act and the Air (Prevention and Control of Pollution) Act, 1981.

For the first four decades post-independence, India did not have a national water policy. In 1987, the government drafted the first National Water Policy followed by two policies in 2002 and 2013. The National Water Policy, 1987, recognised the need for a nationally coordinated policy to tackle water stress and the situation of floods and droughts in the country. The policy noted that the principal consumptive use of water until then had been for the purposes of irrigation [43], and affirmed the government's commitment to providing adequate drinking water facilities to the rural and urban population by 1991 [43] (para. 9). The policy also recognised the need to regulate the use of groundwater to avoid overexploitation and also to ensure coordinated policies with respect to surface and groundwater [43] (para. 7). Finally, the policy also stressed the necessity for planning water resource development projects while maintaining the "ecological balance" and preserving the environment [43] (para. 4.1). In 1992, following constitutional amendments that sought to bring about greater decentralisation of power, state governments were mandated to devolve functions relating to drinking water and sanitation in urban areas to institutions of local government, i.e., municipalities, and in rural areas with *panchayats* [44]. Rural *panchayats* now have powers and responsibilities with respect to drinking water supply, minor irrigation, water management, watershed development, and fisheries.

The National Water Policy, 2002, largely echoed the 1987 policy. The National Water Policy, 2012, articulated for the first time the need to evolve a National Framework Law as an umbrella statement of general principles governing the exercise of legislative and/or executive (or devolved) powers by the centre, the states, and local governing bodies. The policy reiterated the interdependent nature of surface and groundwater and advocated water recharge and prevention of overexploitation of groundwater. In a nod to neoliberal water policies, it also introduced some guidelines for water pricing [45]. A total of 16 states and union territories in India have adopted policies in accordance with the National Water Policy, 2012 [46].

Following the National Water Policy, 2012, the central government circulated a draft National Water Framework Bill for comments from states in 2016. This bill contains provisions for an overarching national legal framework with principles for protection, conservation, regulation, and management of water as a vital and stressed natural resource [47]. Recognising that "water is a finite substance", the bill for the first time presents an integrated framework for groundwater and surface water management. The bill broadens the definition of "water for life" to include the basic safe water requirements for realising the fundamental right to life of each human being, including drinking, cooking, bathing, sanitation, personal hygiene, and related personal or domestic uses, with an additional requirement for women for their special needs; and includes water required for domestic livestock. The bill emphasises that the right will be available to all irrespective of "caste, creed, religion, community, class, gender, age, disability, economic status, land ownership and place of residence" [48]. The preamble to the bill specifically states that the articulation of the "right to water" in the bill is in accordance with the Indian Supreme Court's articulation of the "right to water" pursuant to the fundamental "right to life". The bill also imposes a corollary obligation on the government to ensure every person's right to safe water. The bill makes no reference to the human right to water as articulated in General Comment 15. It also leaves the prescription of what would constitute a "sufficient" quantity of water to the discretion of the state government. However, to date, the bill remains in draft form. Enacting the National Framework Water Bill into law would go a long way in imposing a binding obligation upon the central and state governments to provide water to all Indians.

At the Land Rights Initiative, we compiled a near-comprehensive dataset of all water laws from the colonial period until the present. As Figure 1 shows, only 22 laws (14%) were enacted before the adoption of the Constitution, while the remaining 135 laws (86%) were enacted post-1950.

**Figure 1.** Distribution of water laws pre- and post-1950.

As Figure 2 shows, the laws in the dataset largely pertain to six major water categories, namely, drinking water supply, irrigation, water tax, groundwater regulation, water pollution, and planning and management of water bodies.

Figure 3 shows a timeline distribution of laws. In line with the discussion above, we find that nearly half of the 22 colonial laws pertained to irrigation. These laws only impose an obligation on the state to compensate for the loss of drinking water due to

the construction of irrigation works. The remaining half of the laws correspond to water taxes. Irrigation laws continued to dominate legislation on water in the first two decades post-independence and received another fillip in the post-liberalisation era in the 1990s.

**Figure 2.** Major categories for water laws.

**Figure 3.** Timeline distribution of different categories of water laws in India.

In contrast, we see no legislation containing an affirmative obligation on part of the state to provide drinking water until the 1990s. Even the laws enacted post-1990 only impose affirmative obligations to increase drinking water supply through management of water bodies and through protection of water from encroachment and pollution. These laws do not contain any obligation on part of the government to ensure drinking water to every household but give local self-governing bodies, *panchayats*, and municipalities powers to draft schemes that would ensure provision of drinking water to households. None of these laws or national water policies recognise the human right to drinking water. They largely adopt a governance, not a rights framework to the provision of drinking water.

Many laws containing provisions against pollution of water were enacted post the 1990s, following the enactment of the Water Act and the EPA. These laws seek to protect the quality of water. Finally, we see an attempt to reverse the unchecked overuse of groundwater that was permissible under the liberal provisions of the Easements Act, 1882, through the enactment of legislation regulating overuse of groundwater post-1980.

#### **5. Constitutional Right to Water in India**

Part III of the Indian Constitution guarantees certain fundamental rights, including the rights to life (Article 21), liberty (Article 19), and equality (Article 14). These rights correspond with rights guaranteed under the International Covenant for Civil and Political Rights [49]. There is no express articulation of the "right to water" as a human right in the Indian Constitution. Particular to the Indian context, Article 17 in the Fundamental Rights Chapter abolishes "untouchability" and forbids its practise in any form. This provision reflects the dignitarian impulses of the "rights discourse" underlying the drafting of the Fundamental Rights chapter, premised on the dignity of individuals and their right to realise their full potential as human beings and equal citizens of newly independent India [50]. The Untouchability Offences Act, 1955, renamed as the Protection of Civil Rights Act, 1976, provides penalties for preventing a person from bathing in or taking water from a sacred tank, well, spring, or water-course, which is one of the critical ways in which *savarnas* or upper castes in Indian society practice untouchability towards *Dalits* or lower castes. Discrimination usually arises only when the *Dalit* settlement does not have its own water source, and the entire village (*savarna* and *Dalit* habitations) have to use the same well/tank/tap. *Dalits* often have no direct access to community sources of water. Patterns of discrimination include a *savarna* person collecting water and filling the containers of the *Dalit* residents; separate queues for *Dalits*, and special time allocation for *Dalits* to fill water from community taps. According to the 2011 Census, only 28% of *Dalit* households in rural areas have water facilities within their premises [51].

Although the Constitution does not enshrine any special protections for women, it is well documented that the burden of making water accessible to Indian families in both rural and urban areas primarily falls on women. The position is worse for *Dalit* women whose access to water is curtailed both by the limited availability of water and social discrimination against *Dalits*. Discrimination patterns may range from waiting for long periods before being allowed to fill their pots, abusive language, and even physical violence and humiliation at the hands of upper caste people [52].

Part IV of the Constitution lists the "Directive Principles of State Policy", which must be applied by the state in making laws but are unenforceable as rights [53]. These principles correspond with rights guaranteed under the International Covenant on Economic, Social, and Cultural Rights [54]. Even though there is no obligation upon the state to provide "drinking water" to its population, Article 47 of the Constitution obliges the state "to raise the level of nutrition and the standard of living and to improve public health" as its "primary duties". In 1976, the Forty Second Amendment to the Constitution introduced Articles 48A and 51A. Article 48A obliges the state to "endeavour to protect and improve the environment and to safeguard the forests and wild life of the country". Article 51A created fundamental duties on part of citizens, which include, inter alia, the right to protect

and improve the natural environment including forests, lakes, rivers, and wild life, and to have compassion for living creatures.

#### **6. Judicial Articulation of the "Right to Water"**

Judicial articulation of the "right to water" as a legal right predates the Indian Constitution. As described in the previous section, in colonial India with a primarily agrarian economy and society, the "right to water" was articulated by litigants in the form of common law and statutory principles pertaining to claims for irrigation, easement rights of access to water by the dominant owner on the servient heritage [55], and sharing of water between upper and lower riparian owners [56].

Post-adoption of the Constitution and establishment of the Supreme Court in 1950, we see judicial articulation of the "right to water" as a fundamental or constitutional right by the Supreme Court and High Courts in the exercise of their power of judicial review. In what may be considered another instance of unitary bias within India's federal structure, the Constitution creates a unified judiciary with the Supreme Court at the apex. The law declared by the Supreme Court is binding on all courts in India [57]. It is important to note here that while the Supreme Court was created for independent India by the Constitution in 1950, some High Courts in India have continuously existed since the nineteenth century [58].

Articles 32 and 226 of the Constitution empower the Supreme Court and High Courts to grant appropriate remedies for violations of fundamental rights. Having asserted its power of judicial review as a "basic feature" of the Constitution, the Supreme Court has used its review powers extensively [59].

There exist several qualitative studies of judicial decisions rendered by the Supreme Court and High Courts on the right to water in India. These include reviews by Philippe Cullet [60] and Vrinda Narain [61]. However, a comprehensive qualitative and quantitative study of all Supreme Court and High Court cases on the "right to water" has not been conducted thus far. The "right to water" dataset created at the Land Rights Initiative included 59 Supreme Court and 189 High Court decisions. As mentioned above, all the Supreme Court decisions were rendered post the adoption of the Constitution and the creation of the Supreme Court in 1950. However, since many High Courts predate the adoption of the Constitution and creation of the Supreme Court, 79 High Court decisions were rendered prior to 1950 and 110 decisions were rendered post-1950. It may be noted that this dataset excludes cases decided by lower courts, such as civil and criminal courts, and tribunals such as the interstate river disputes tribunals and the national green tribunals.

The articulation of the "right to water", both as a legal and a constitutional right in the Indian context, has always included rights to drinking water, along with water for livelihood needs, usually for irrigation of agricultural land. Figure 4 shows the overlapping distribution of categories of claims for 79 High Court cases decided prior to the adoption of the Constitution. Of these 79 decisions, the overwhelming majority of cases (62) involved claims for water for irrigation of agricultural land either as easement rights or rights of upper or lower riparian owners. This is consistent with the colonial state's policy emphasis on building irrigation canals, and the enactment of laws to acquire land and appropriate water for these purposes, as described in Section 4 earlier.

Only seven decisions specifically articulated legal rights to drinking water. This is unsurprising given that no colonial-era statute gave primacy to drinking water rights. In the earliest reported case from the nineteenth century, the Madras High Court noted that "riparian owners are entitled to use and consume the water of the stream for drinking and household purposes, for watering their cattle, for irrigating their land, and for purposes of manufacture, subject to three conditions, namely, (i) that the use is reasonable, (ii) that it is required for their purposes as owners of the land, and (iii) that it does not destroy or render useless or materially diminish or affect the application of the Act by riparian owners below the stream in the exercise either of their natural right or their right of easement if any". Subsequent cases from the twentieth century established rights of access to water in naturally occurring water sources, such as wells or tanks, against both the government [62]

and individual riparian owners [63] who obstructed such access to the detriment of the lower riparian owner, or other inhabitants accessing the water source [64]. During this period, the legal "right to water" included expansive access to water in the context of "drinking and household purposes, for watering their cattle, for irrigating their land, and for purposes of manufacture". In the absence of legislation, however, High Courts did not recognise the rights of inhabitants against pollution of water sources through the discharge of industrial effluents [65].

**Figure 4.** Overlapping distribution of claims decided by High Courts pre-1950.

The situation changes remarkably when we look at the volume of decided Supreme Court cases post-adoption of the Constitution in 1950. Figure 5 shows the overlapping distribution of categories of claims decided by the Supreme Court post the adoption of the Constitution. Of the 59 Supreme Court decisions reviewed, nearly half the cases (25) involved articulation of a fundamental or constitutional right to drinking water, whereas a slightly lesser number of cases (22) involved claims for irrigation.

All of the 25 judicial decisions involving articulations of the "right to drinking water" were rendered post-1980. There are two plausible explanations for this. The first explanation refers to the Supreme Court's activist role in the post-emergency period. Despite having previously invalidated constitutional amendments that contravened fundamental rights [66], the Court's credibility was severely damaged when it ruled that fundamental rights could be suspended during a period of emergency [67]—thereby lending legitimacy to the regime's practice of political repression. In part out of atonement for the failings of the Emergency era, the Supreme Court subsequently adopted an increasingly activist role to "extend legal protection to the interests of the weak and underprivileged sections of society" [68].

The Court liberalised rules of standing [69] to facilitate access to justice for disadvantaged groups, thereby expanding access to legal aid and entertaining petitions that were submitted as letters to the Court [70]. Over the same period, the Court expanded the nature

and scope of fundamental rights through an expansive interpretation of the right to life [71] as the right to live a life with dignity [72], which includes housing [73], education [74], health [75], food [76], and water [77]—thus making social rights justiciable. In so doing, the Court has characterised fundamental rights and Directive Principles of State Policy as complementary, with "neither part being superior to the other" [78].

**Figure 5.** Overlapping distribution of claims decided by the Supreme Court post-1950.

The second explanation lies in the enactment of the Water Act in 1974, the Air Act in 1981, and the EPA in 1986. As India went through an unchecked industrial transformation, these laws provided statutory bases for many of the drinking water claims brought before the Supreme Court. Such claims were either grounded in provisions prohibiting pollution of water resources or conversion of water bodies for industrial or government use. As described earlier, in the absence of such statutory or constitutional basis prior to 1950, High Courts were reluctant to grant relief.

As in the case of the Supreme Court, we see a shift in judicial decisions rendered by the High Court in the post-1950 period. Figure 6 shows the overlapping distribution of categories of claims decided by the Supreme Court post the adoption of the Constitution. Of 110 cases decided by various High Courts post-1950, 41 cases, which is almost a third of total cases, involved drinking water claims, whereas only a slightly higher number, 48 cases, involved claims for irrigation. Contrast this with the fact that there were 62 cases involving irrigation claims, and only 7 cases involving drinking water claims, prior to 1950.

**Figure 6.** Overlapping distribution of claims decided by High Courts post-1950.

Both Supreme Court and High Court decisions have mostly grounded the right to access clean water for drinking, household, and irrigation purposes in the "fundamental right to life" under Article 21, which includes the right to live with dignity. For instance, the Supreme Court has held that the "fundamental right to life" includes the "right of enjoyment of pollution free water and air for full enjoyment of life" [79]. The Court went on to note that "if anything endangers or impairs the quality of life in derogation of laws, a citizen can approach the Court under Article 32 for removing the pollution of water or air which may be detrimental to the quality of life". In many cases involving water pollution, the Supreme Court has derived the "right to water" as part of the "right to a healthy environment", which in turn has been derived from the "right to life". The Supreme Court has mandated the cleaning up of water sources including rivers [80], the coastline [81], and even tanks [82] and wells. The court has also issued mandatory directions to polluters for restoring soil and ground water post pollution [83]. The court has also applied the "precautionary principle" to prevent the potential pollution of drinking water sources consequent upon the setting up of industries in their vicinity [84].

It must be noted that none of these decisions impose an obligation on part of the government to provide clean drinking water to all the people of India. Instead, they merely impose a duty on the government to ensure that there is no pollution of water sources that are in fact providing, or are likely to provide, water to individuals and groups.

Occasionally, the High Courts and Supreme Court have also grounded the state's obligation to provide clean water in Articles 47 and 51 A of the Constitution. Article 47 of the Constitution imposes a non-judicially enforceable obligation upon the state to "raise the level of nutrition and the standard of living and improvement of public health" of the people of India [85]. Article 51 A (g) of the Constitution imposes a fundamental duty upon Indian citizens to "protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures". In 1997, the Supreme Court also articulated the "public trust" doctrine, which limited the state's sovereign authority to appropriate and regulate all water bodies, and imposed a legal duty on the state to protect all natural resources, including water bodies [86]. A detailed discussion of the "public trust" doctrine is beyond the scope of this paper, but it marks a reversal, *albeit* imperfect, of the state's unchecked appropriation of commonly held natural resources such as land and water that happened through colonial-era laws.

High Court decisions have been somewhat more progressive about the content of the "right to water". Both the Andhra Pradesh and Kerala High Courts have placed an affirmative obligation on the state to provide potable drinking water to the population [87]. Moreover, the Andhra Pradesh High Court has held that the municipal water supply board could not terminate drinking water supply to the owner even if title over the property were in dispute, thereby disassociating the right to water from property ownership [88]. A detailed qualitative examination of judicial decisions articulating the "right to water" in the Indian context shows that this articulation has happened independently of the movements and processes that have influenced the adoption of the "human right to water" in 2010. While there is a rare reference to the 1997 U.N. resolution and other international precedents in some cases, there is almost no reference to the 2010 articulation.

Interestingly, the trajectory of the "right to water" has been somewhat distinct from that of other social and economic rights articulated by the Supreme Court as part of the "right to life". This is perhaps because of the existence of statutes outlining the obligations of state authorities with respect to water resources before the judicial articulation of the fundamental "right to water". This was not the case with respect to the rights to food, health, education, and housing. With respect to some of these rights, judicial articulation of the right was followed by constitutional amendments and the enactment of statutes. For instance, the fundamental right to education under Article 21A of the Constitution (inserted by the 86th constitutional amendment) was the outcome of judicial articulation of the "right to education" under the "right to life" enshrined in Article 21 following a series of judicial pronouncements [89]. The Right of Children to Free and Compulsory Education Act, 2009, was subsequently enacted to provide machinery to enforce the constitutional guarantee under Article 21A.

### **7. The "Right to Water" for Marginalised Groups**

Within the broad articulation of the "right to water" for individuals and communities, there have been two specific articulations of the "right to water" on behalf of *Dalit* and *Adivasi* groups. As described in Section 1, while *Dalits* have been marginalised on account of systematic discrimination within Hindu society, *Adivasis* or indigenous peoples have been marginalised for their pursuit of a way of life outside mainstream Indian society. As mentioned previously, discriminatory practices against *Dalits* often manifested themselves in the form of denial of access to common sources of water such as wells and tanks. Such practices have continued to a significant degree in independent India. *Dalits* have occasionally sought to enforce their rights to access water through criminal prosecutions under the Protection of Civil Rights Act, 1976. Although criminal courts were largely outside the purview of research for this paper, I found five decisions, one Supreme Court case [90], and four High Court cases which involved criminal prosecutions under the Protection of Civil Rights Act, wherein *Dalits*, usually women, who have the highest burden of fetching water in all communities faced discrimination in accessing a common water source or one belonging to an upper caste [91]. Although the human right to

sanitation is outside the scope of this paper, it must be noted that the Supreme Court in a landmark judgment has ordered the eradication of dry latrines and the practice of manual scavenging which disproportionately affected the *Dalit* community, through enforcement of the "Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013" [92]. A total of 95% of manual scavengers in India are *Dalits* or belong to the Scheduled Castes, and face severe social and economic discrimination and exploitation as a result of being forced to pursue their "traditional occupation".

Social movements of Scheduled Tribes or *Adivasi* groups have articulated their rights to "*jal*, *jungle*, *zameen*", literally translated as "water, forest, land". However, within this understanding, land and water rights are not separate, but part of one indivisible ecosystem that is crucial to the preservation of *Adivasis'* "right to life". An *Ekta Parishad* study of social movements making these claims shows that there are extensive and widespread *Adivasi* movements articulating the right to water but they seldom use the courts to enforce their right to water. This is because contrary to the hegemonic understanding of the "right to water", for *Adivasi* groups, water rights are intricately linked to land rights.

*Adivasis* have faced disproportionate state-sanctioned displacement as a result of the construction of dams and irrigation projects. *Adivasis* constitute only 8.6% of the total population but comprise 40% of the population that has been displaced due to dams and irrigation projects, wildlife parks, and sanctuaries [12]. Such projects have been justified both under statute and enforced by courts for protecting drinking water and irrigation claims of the non-*Adivasi* majority. For instance, in *Narmada Bachao Andolan* v. *Union of India* [93], the Supreme Court justified the construction of "30 major, 135 medium and 3000 small dams" that would displace 320,000 *Adivasis* and other communities that were not covered by the government's rehabilitation and resettlement plans [94] on grounds that the dam was necessary to protect the right to drinking water of millions of Indians under the "right to life" [93]. The Supreme Court has, however, insisted on the state's obligation to provide potable drinking water supply through hand pumps, and wells in rehabilitation sites for displaced *Adivasi* groups in line with its judicial articulation of the "right to water" for the non-*Adivasi* majority [95].

Thus, even though the dignitarian rights discourse underlying the "right to drinking water" may have strengthened the claims of one marginalised group to water, namely, *Dalits*, it has served to further impoverish and marginalise the claims of another marginalised group, namely the *Adivasis*. Although Moyn completely ignores the claims of indigenous people in his critique of the human rights movement, in fact, his critique has greatest salience with respect to marginalisation of indigenous communities not merely in India, but as described in other papers in this special issue, in other parts of the world.

### **8. Discussion: Revisiting the Articulation of the "Right to Water" in India**

The international recognition of the human right to water in 2010 has occurred alongside a fierce attack on the human rights movement. Human Rights critics such as Kennedy [16] and Moyn [17] have argued that human rights create status equality, not distributional equality. Focusing on human rights, therefore, prevents activists from finding other solutions to inequality. They also allow litigious sections of society to manipulate the legal system to their advantage, further exacerbating these distributional failures.

In India, judicial articulation of a "right to water" as a legal right predates the Constitution. In colonial India with a primarily agrarian economy and society, the "right to water" was articulated by litigants through common law and statutory principles pertaining to claims for irrigation, easement rights of access to water by the dominant owner on the servient heritage, and sharing of water between upper and lower riparian owners. This is because British colonial policy on water, as in the case of land and forests, had focused on ensuring greater state control over the resource to maximise revenue generation for the British Crown. Despite extensive powers on part of the state to own, access, regulate, and control water, neither the colonial state nor the independent Indian state asserted or recognised any explicit obligation to provide drinking water to its teeming millions.

The Indian Constitution adopted in 1950 outlined a new social and economic order for Indians emerging from colonial rule, but largely retained the federal distribution of powers regarding the provision of access to water as obtained in colonial times. While the Constitution does not include an express guarantee of a minimum content of the "right to water", following its adoption, we see the judicial articulation of the "right to water" as a fundamental right derived from the justiciable "right to life" under Article 21, and as part of the obligation of the state "to raise the level of nutrition amongst the population" under Article 47, by both the Supreme Court and High Courts. The "right to water" includes rights to drinking water and water needed for livelihood, including for the purposes of irrigation of agricultural land. In India, though drinking water supply claims are more frequent after the adoption of the Constitution than before, the articulation of a "right to water" also frequently includes water for livelihood. Both the Supreme Court and the High Courts have articulated the core content of the "right to water", but High Courts have rendered more progressive decisions regarding the content of this right by, for instance, disassociating the right to water from property ownership.

Beyond the mainstream judicial articulation of the "right to water", we find two different articulations of the "right to water" by marginalised groups in India. The first articulation of the "right to water" is by *Dalits*, who have historically faced discrimination in accessing common sources of water due to the caste system [51]. The burden of this discrimination has been disproportionately borne by *Dalit* women [52]. The *Dalit* articulation of the "right to water" shows that in societies with entrenched discrimination, formal or status equality *does* matter, and may be necessary for securing the rights of marginalised groups, even if not by itself sufficient protection to fully secure these rights in the absence of accompanying legislation and appropriate enforcement.

The second articulation of the "right to water" is by *Adivasis*, for whom the "right to water" is inextricably linked to rights to land and forest. The mainstream articulation of the "right to water" in India has been used to justify the construction of large dams and irrigation canals that have displaced Scheduled Tribes or *Adivasi* groups [94]. Such displacement insofar as it has deprived *Adivasis* of their land and access to sources of water has resulted in further impoverishing and marginalising them. Even though *Adivasis* have a distinct articulation of the "right to water" expressed through extensive social movements [95], this articulation has been given short shrift because it runs counter to the mainstream articulation of the "right to water". Sadly, the concerns of indigenous people have been largely ignored both by the international human rights movement in its articulation of the "human right to water", and its critics.

### **9. Conclusions**

The Indian Constitution does not include an express guarantee of a "right to water" but following its adoption in 1950, both the Supreme Court and the High Courts have judicially articulated the "right to water" as a fundamental right derived from the justiciable "right to life" under Article 21. The "right to water" includes both the rights to drinking water and water needed for livelihood, including for the purposes of irrigation of agricultural land. Through a detailed qualitative examination of judicial decisions articulating the "right to water" in this paper, I have shown that this articulation has happened independently of the movements and processes that have influenced the adoption of the international "human right to water" in 2010. While there is a rare reference to the 1997 U.N. resolution and other international precedents in some cases, there is almost no reference to the 2010 articulation.

It is clear that judicial articulation of the "right to water" in India has not necessarily resulted in the just and equitable provision of easily accessible, clean, and sufficient water to all Indians. It has, however, imposed a growing obligation on the state to provide accessible, available, and good quality water for drinking and irrigation purposes. This is significant because despite water scarcity, and challenges of quality, and inequalities in access to water, the Indian Government did not even have the provision of water as a national policy priority until 1987, and to date does not have a binding legal obligation to provide water to

the people of India. Attempts to create such a binding legal obligation on central and state governments through the National Water Framework Bill, 2016, have not succeeded so far as the bill remains in draft form. The fact that the bill's preamble specifically states that the bill's content is in accordance with the Indian Supreme Court's articulation of the "right to water", only emphasises the importance of the judicial articulation of the "right to water" in shaping the Indian state's obligations to provide water to the people of India.

**Funding:** This research was funded by the Norwegian Research Council.

**Data Availability Statement:** The data presented in this study are available on request from the corresponding author. The data will be made publicly available on landlawsofindia.org in the future.

**Acknowledgments:** The author would like to thank researchers at the Land Rights Initiative, including Vrinda Bhardwaj, Aakansha Jain, Avaneendra Khare, Kuldeep Lakwal, Trisha Pande, Raghunandan Sriram, Ayush Verma, Tathagata Ojha, and Kuber Bathla for their work in creating the "water laws" and "right to water" cases datasets. The author would also like to thank Raghunandan Sriram and Ravichandra Tadigadappa for their research assistance in the course of writing this paper. Finally, the author would like to thank her colleagues at the project on "Elevating water rights to human rights: Has it strengthened marginalised peoples' claim for water?", especially Lara Cortes, Ana Cortes, and Evelyn Villarreal, with whom the author discussed the first draft of this paper; and to the editors of this special issue, Arkaja Singh, Bruce Wilson, and Daniel Brinks for their helpful comments and feedback in the course of writing this paper.

**Conflicts of Interest:** The author declares no conflict of interest. The funders had no role in the design of the study; in the collection, analyses, or interpretation of data; in the writing of the manuscript, or in the decision to publish the results.

### **References**

### *Article* **The Right to Water, Law and Municipal Practice: Case Studies from India**

**Arkaja Singh**

Centre for Policy Research, State Capacity Initiative, New Delhi 110021, India<EMAIL_ADDRESS>or<EMAIL_ADDRESS>
**Abstract:** Recognition of the right to water in Indian courts has had little impact on the ground. This paper explores the seeming disjuncture between what happens in the court and the everyday reality of living with a less-than-perfect claim on city water services in India's urban slums. The paper seeks to understand and contextualise a court ruling which looks like it declares a right to water for people in urban slums, but in effect gives them little beyond what they already had. The paper also looks at the 'everyday reality' of municipal administration and the provision of drinking water in slums through in-house connections and community taps. In both case studies, the author looks to understand how the practice relates to frameworks of law and policy that shape the rationality and scope of action of the actors concerned, both judges and municipal officials. She found that the issue of land was the main stumbling block in both places, but it was conceptualized a little differently in each situation. These case studies underscore the critical importance of making the local interface between poor people and the state more empowering in order for rights to become local and meaningful.

**Keywords:** human right to water and sanitation; water access; impact and efficacy of human rights

### **1. Introduction**

The courts in India have declared the right to water to be a constitutionally recognized right; however, this right has not (except in very rare exceptions) been translated into legislation or state policy. It is very seldom demanded by social movements, except sometimes in rights litigation. It is almost never brought up in the context of drinking water alone but seems instead to be appended to other issues such as environmental pollution, displacement, slum evictions and battles over natural resources. Moreover, in urban contexts, the groups that are underserved and excluded from mainline drinking water services seldom mobilise to invoke this right. Instead, the excluded might make a pragmatic compromise, in which they settle for a less-than-perfect claim of human entitlement for some 'special regimes' that are designed for their unequal status.

In this paper, I will explore the disjuncture between the regime of rights, and the maze of local administration. For this, I looked at two arenas of engagement: one in which the 'right to water' is well recognized, and another in which access is negotiated through a special regime built of law and administrative practice in which there is no explicit recognition of the right to water. Instead, the logic of poverty alleviation and some diffuse notion of human entitlement provide rationality for this special regime which is built on everyday interactions between the poor and the state.

These two arenas show us how the right to water is inextricably tied up with the issue of land. It remains entangled in land, in not entirely dissimilar ways, even as we move between two alternative spheres of rationality: of socio-economic rights jurisprudence and of municipal administration, respectively. Both of these spheres of rationality have their uses and their limitations, and there are usually very persuasive reasons, local and legal, why people might choose to approach the court in some cases and not in others.

**Citation:** Singh, A. The Right to Water, Law and Municipal Practice: Case Studies from India. *Water* **2022**, *14*, 73. https://doi.org/10.3390/ w14010073

Academic Editor: Guy Howard

Received: 17 November 2021 Accepted: 22 December 2021 Published: 1 January 2022

**Publisher's Note:** MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

**Copyright:** © 2022 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

Putting together the two cases provides some useful insight into how the discourse of socio-economic rights runs aground in real life situations of deprivation.

My case studies relate to people in urban slums who face some specific types of exclusion from the mainstream urban water supply provisioning. These difficulties seem to be linked directly to their being in slums, and to their legal status in relation to the land that they occupy. The issue of land allows them a very limited type of right to water in the eyes of the court they approached to make a claim for their right to water. The problem of land and the status of excluded communities in relation to land is the main issue even in the arena of municipal administration; however, a different framework of rules allows for the possibility of some kinds of legitimacy, and with fewer attendant risks.

The issue of land in relation to slums and water supply is not simply one of squatting or illegal capture of land, although there may be elements of that in many slums. Slums tend to contravene some aspect of the writ of the state with respect to property and planning control, but they could equally have some recognition from the state of their tenure claims and planning status. Concomitantly, the drinking water problem in slums also has some specific dimensions.

The difference in access to piped water supply (as opposed to that from local borewells or tankers) is not immense: it is estimated that 51 percent of slum households rely on piped water as their main source of water, as compared to 57 percent in non-slum areas [1]. However, slum households are far more likely than non-slum households to have community taps or shared water connections as their source of piped water, and to have to rely on shared borewells and tankers where piped water is not available. In comparison, the off-network non-slum areas are more likely to have in-house water connections, or to have their own borewells and private arrangements. Slum households are also more likely to access supplies that are less reliable, available for less time and at lower pressure than in non-slum households [2–4].

The rules of water service provision are seldom the same for slum and non-slum settlements. This differential set of administrative procedures and protocols for water supply in slums accounts for the land status of slums. In my first case, a new set of rules directed municipalities to cut off previously legal connections from a specified category of slums. In my second case, I explore a 'special regime' that provides them water, but of a lower grade than what is supplied in non-slum areas.

In both cases, it is pertinent that people in slums have a background threat of evictions, disconnections and shut-downs because of how they are located in terms of the rules of property titling, building plan approval, trade licensing and myriad other forms of state control. People in slumsare mindful of these background threats in their negotiations with the state. To 'live in the face of the tiger' [5] requires careful collective strategizing on the part of the slum residents.

The issue of drinking water in slums is also one of engineering failures: of plans that overlooked resident populations in the slums or failed to provide for them, of inadequate maintenance or of the practice of diverting water elsewhere when there is scarcity in the system. These engineering failures could be considered 'hydraulic' water problems, as opposed to 'legal' water problems [6]. But hydraulic problems might themselves originate in the unrecognized planning status of the slum, and how this is understood in the domain of municipal engineering.

Another dimension of the water problem in slums is the apparent need for slum residents to politically organize themselves in order to get the municipality to act. There is quite a lot of ambiguity in the rules and in how (and perhaps to what extent) these rules can be applied to idiosyncratic municipal water supply lines, which leaves room for local inconsistencies. Settlements that are quite securely placed in legal terms might also struggle with inadequate access to drinking water, whereas places that have very little by way of legal status might be able to secure some form of municipal drinking water. The extent to which residents can organize themselves and make connections with political networks seems extremely relevant to how much of the municipal services and state welfare are available to them [2,7,8]. However, this does not make the rules irrelevant. Rather, the formal rules of inclusion and access provide the terrain that is navigated through collective positioning.

### **2. Materials and Methods**

The material relating to the two situations described in the case studies were drawn from a variety of sources. In the first case study, I focused on one court ruling and looked at the related legal rules that constituted the 'cause of action' as well as what emerged as an outcome of the ruling. I looked at related social science literature and news articles to provide context to the situation. I also referred to selected pieces of policy literature, discussions and opinion pieces where relevant for key themes of interest in the case study.

The objective of my second case study was to build an understanding of the situation. This situation is specific to place and time in some ways, although its key features could be applied more broadly to drinking water issues in India's urban slums. I have used the case of Madhya Pradesh cities. My case deals with local law, institutional arrangements and administrative practice. Much of this relates to the municipality; however, it is determined at the state level. There are some city-specific variations and size-category variations. Of these, the size category variations seemed to be specific to my case study, and, therefore, I have restricted my focus to the larger cities in the state with a population of more than one million.

For the second case, I have drawn on my consultant work. I worked from 2006–2009 in a poverty alleviation programme funded by Britain's international aid agency (then known as the Department for International Development, or DFID) in the state of Madhya Pradesh where I helped coordinate the implementation of water supply and other services improvements in urban slums in the state. In this time, I worked closely with a team of municipal officials and consultant colleagues to plan and implement a scheme to deliver household water connections to the poorest and most infrastructure-deprived areas of the cities in which the programme was applied. My own location at the time in Madhya Pradesh provided a vantage point from which to understand the local interface of the state with the cities' poorest residents. I remained engaged with further developments in the state's urban policies through subsequent donor-funded assignments. I have drawn on my own notes and subsequent discussions I had with municipal and urban administration staff in the state of Madhya Pradesh. The people I have spoken to are, however, not named, as most of our conversations were conducted with this understanding. I have cross-checked what I learned from my discussions by referring to alternative sources, application forms, website links and news reports.

From the time I have been keeping up with this case, there have been several programmatic changes in Indian urban policy. Many of these have come in the form of central government-funded schemes for the development of public infrastructure and housing, with related policy goals and scheme conditions. Programme targets under these schemes might have the effect of speeding up budgetary allocations, tenure grants and approvals from time to time. Election cycles in state and municipal elections might also have similar effects. However, it is my understanding that they have not significantly altered the framework of rules and rationality that I have dealt with in my case study. For this reason, I have chosen to keep them out of the present narrative.

### **3. The Struggle for Municipal Drinking Water, in Courts and in Municipal Administration**

### *3.1. Judicial Recognition of the Right to Water*

My first case is of Pani Haq Samiti [9], which is perhaps the only Indian court case in which the principal point is of the constitutional right to water in urban slums. In 2012, the petitioners—a Mumbai NGO—challenged a government rule that barred the Mumbai Municipal Corporation from providing water to houses in slums which could not show evidence of having been in existence from before a stipulated "cut off date". By state law applicable to slums in Mumbai, slum residents who showed evidence of

their presence before 1 January 1995 were eligible for the issue of a "photo pass", and were considered "protected occupiers", by which they were protected from eviction except by way of a relocation and rehabilitation scheme formulated by the government. (In the Maharashtra Slum Areas (Improvement and Clearance) Act, 1971, this provision was added by amendment in 2002). By this measure, 1 January 1995 came to be considered the cut-off date, which was subsequently extended to 1 January 2000.

This policy created a category of slum housing which was ineligible for rehabilitation, and came to be referred to as "illegal structures". Subsequently, a government circular issued on 4 March 1996 directed local authorities to ensure that water supply is not released to any unauthorised constructions. Rules formulated by the municipal corporation of Mumbai also provided for water supply only to protected occupiers. This implied that the corporation had to shut off supply to "illegal structures", even those that previously had entirely legitimate water connections to the city water supply network.

This rule was successfully challenged by Pani Haq Samiti on the ground that it was violative of Article 21, or the constitutional right to life. In their decree, the judges relied on previous judgements for an expansive interpretation of the right to life as including the right to food, water, shelter, decent environment, livelihoods, medical care, facilities for reading, etc. The petitioners had also referred to the international human right to water and the International Covenant on Economic, Social and Cultural Rights, which this court (relying on previous judgements) used to support its expansion of Article 21.

However, the court clarified that the right to shelter guaranteed under Article 21 did not extend to protecting possession of illegal and unauthorised housing. Therefore, even though the state or the municipal corporation could not deny water supply to a person on the ground that he is residing in an illegal structure, the person had no right to retain the illegally constructed structure. Elaborating on this, the judges said that they were sympathetic to the fact that there was a lack of affordable housing in the city that was resulting in the proliferation of illegal housing, but, nonetheless, they observed that it was the duty of the municipal corporation to demolish illegal housing. In their final directions in this case, they reiterated this, and gave specific directions to the municipality to report back to the court about actions taken towards this end.

The court also held that people living in illegal slums could be made to pay higher rates for water supply than others for the reason that "a citizen who stays in an illegal structure on in illegal slums cannot claim [the] right to get water supply on par with water supply made available to a law abiding citizen who has either constructed his house after obtaining a permission or who is occupying a residential premises which is lawfully constructed and which is permitted to be occupied". It held that it was for the municipal authority to decide in what manner water could be supplied to illegally constructed slums, and to evolve a policy for it, which need not be in the form of piped water to individual dwellings. This policy could include a provision of payment of water charges, which could be at a higher rate than the rate that is charged for water supply to authorised constructions.

Apparently (as noted in the court's decree), the petitioners had suggested that the municipality could supply water through water booths and prepaid cards, which the court held was an option that could be considered. Further, the court held that its ruling in this case did not apply if there was a specific prohibition on supply of water in any particular area by another ruling of the court. The municipal corporation was directed to formulate a policy for water supply to illegal slums on these lines, and to report back with an affidavit of compliance within 10 weeks of the order.

Subsequent news reports suggest that a 'Water for All' policy was finally approved in 2016 (almost two years after the date of the High Court order), which provided for household water connections to the illegal slums. In terms of this policy, water charges in illegal slums were higher than what was applicable for slums from before the cut-off date [10]. I could not find a copy of the actual policy, however, its existence was confirmed in my phone conversation with Sitaram Shehlar, the convenor of the Pani Haq Samiti NGO on 5 February 2020. This policy required that the municipal corporation obtain clearances from several other agencies in order for water connections to be provided in many of the locations and for households that were previously barred. In practice, this means that slum residents themselves have to organise and lobby for all the clearances from other agencies, and whether or not the approval is at all forthcoming might depend on the status and classification of the land on which the slum is located.

Confusingly, the municipal website makes no mention of this policy but instead states that: 'It is our commitment to provide access to water to all the citizens of Mumbai and we recognize that a large part of our community is living in the informal settlements. Water services are provided to these informal settlements in the form of a common connection in General Washing Place (GWP) for a group of minimum 5 households. *The citizens in slums having proof of existence prior to 01.01.2000 are eligible for water connection as per present policy.*' [11]. This is, in effect, the legal position from before the Pani Haq Samiti ruling, and suggests that there has been little impact of what the court said on the municipal corporation. By recent estimates, 2 million people are denied legal water access in the city of Mumbai and live amidst severe water insecurity. Moreover, 70 percent of these people are still being denied water on account of the original "cut-off date" of 1 January 1995 [12].

On the other hand, the Pani Haq Samiti court did not make any directions about establishing a regular and reliable service, it did not stipulate quantity or quality and it did not seek a commitment as to when it would be implemented. On costs, the court seemed to think that a higher tariff, and even a tariff with a punitive element, was acceptable. Moreover, the fact that the government policy made as a result of this judgment imposes very difficult conditions for residents of illegal slums is not a violation of the principles established in this case.

I understand that there were no slum evictions that could be linked to the court's directions to demolish 'illegal housing' in this case, in spite of what the court said about it, which is perhaps a reflection of the agility with which local authorities can negotiate around court diktat. However, leaving aside for a moment the local authorities' adroit management of the demolitions issue, it would be useful to reflect on the reason why the right to water court's formulation of the right to water is so measly in that it does not even entitle people to a basic standard of regular and reliable provision? For this we could look at the background of the government policy that was challenged in this case. The particularities of this policy are local, but this background is useful in thinking about why the right to water fails those for whom it is most needed.

The Mumbai policy that linked eligibility for water connections to a stipulated 'cut-off date' was closely connected with slum development policy (and the 'slum development scheme') of 1995 that was notified under the Maharashtra Slum Areas (Improvement and Clearance) Act, 1971. The 'cut-off date' referred to in the Pani Haq Samiti case was really the cut-off date for eligibility under the slum policy. By this policy, real estate developers could construct slum redevelopments and new housing projects for people in slums. In exchange, a part of the land on which the slum was located was to be freed up by reorganising the slum into multi-storey housing, which the developer could use as commercial real estate. In addition, developers were given transferable FAR (floor-area ratio rights) or 'transferable development rights,' which could be used elsewhere or sold in the market to other construction projects.

Mumbai's slum redevelopment policy suited both politicians and technocrats, as it seemed to provide a solution to the city's problem of unaffordable real estate and constrained supply of housing. Moreover, this solution seemed to consist only of policy and financing innovations, and was thought not to impose any financial burden on the government, while giving slum households a highly subsidised house with secure tenure. At the same time, it could release large amounts of land for real estate development. All in all, a win-win in the recently liberalised Indian economy of the 1990s, as evidenced by the fact that the policy was smoothly incorporated into the corporate vision of Mumbai and energetically supported by international aid agencies [13,14].

However, the dark side of this policy was that it needed a cut-off date for its legitimacy [6]. Local critics feared it would attract free-riders and lead to the creation of new slums, and Indian bureaucrats have a marked preference for finite solutions and one-time handouts for people in slums. The cut-off date and the water disconnections also perhaps helped the political sponsors of this policy build nativist support by differentiating between earlier settlers (presumably from the same state) and later arrivals who came from further away (the northern states of India, and possibly Bangladesh) [4,8]. The linking of municipal water supply to the cut-off date was, in this context, an additional step to reassure critics that conditions in the non-eligible slums were not being made too attractive. Its main purpose seems to be to endorse the logic that slums from before the cut-off date were entitled to remain and be rehabilitated, whereas the ones that came after were illegal and should be removed.

On the other hand, it is unlikely that the policy linking water supply to the cut-off date is the result of a water privatisation agenda, even though it happened at the time when privatisation of Mumbai's water supply was on the table. The idea of reorganising water supply services in Mumbai along commercial principles was in circulation in government and policy circles in the period of the 1990s and early 2000s. At this time, the World Bank strongly promoted the idea of greater cost recovery in water services through metering and tariff increases [15]. However, 'in the end the privatisation storm blew over,' and it is likely that it was never a real possibility given the many complex and knotty problems that any real restructuring effort would have had to resolve [6].

However, the main reason why I think the two are not connected is that the policy to link water services to the cut-off date brought about the illegalisation of large numbers of water connections and supply points that were formerly legal. This drove a large part of Mumbai's water operations underground and took it off the balance sheets of the municipal corporation. Had it been legal, it would have been easier to account for, and would have generated some amount of water supply revenue, even if it was not profitable. In her study of water in Mumbai which covers this period, Bjorkman also found no direct connection between the World Bank's policy advocacy work and the water disconnection policy, although she found that the government's water supply scheme which was inspired by this advocacy work contained a proposal for a distinct type of pre-paid water connection in the post cut-off date slums [6].

Coming back to Pani Haq Samiti, the three prominent features in the case—punitive tariff, limited services and making this subject to land approvals—are all linked to the logic of the cut-off date, and the idea that post-cut-off date households have a lower claim on the system. This, I believe, is just one instance of many across India's drinking water regimes, in which elite ways of thinking about land as property override the legal conception of the right to water.

### *3.2. Municipal Drinking Water in Administrative Rule and Practice*

In many discussions about the issue of drinking water in the slum areas in Madhya Pradesh cities that I have had in the period of 2006–2018, I learned that the quality of drinking water provision is indeed closely tied to the issue of land, but that this connection is a bit more complicated than it would appear to be in Pani Haq Samiti.

Access to drinking water in slums seems to be of poorer water quality, of less quantity and far less secure than that of people in non-slum areas, which has health, economic and quality of life implications for them. And yet, there is hardly any right to water mobilisation in the courts, or in popular discourse, considering the scale and widespread nature of the problem.

People living in Indian slums might have a slightly better actual legal position in relation to municipal water than in the Pani Haq Samiti judgement. This is because there are other sources of rule, procedure and administrative practice, in which a slum settlement (and a household within a settlement) can be recognised. However, slum residents are in a lower position as compared to the 'law abiding citizens' in non-poor housing colonies even in local rule and practice. As in the court, this distinction is built around property and planning regulations.

The administrative rules and practice that I refer to draw on municipal and planning legislation, land revenue codes and the service conditions and service rules that are applicable to people in government employment. Rules and practice also draw on engineering codes, standards and norms, and on administrative circulars and directions that officials receive from higher levels of the government hierarchy. This gives the rules and practice a type of immutable rationality, which can be quite resistant to high-level changes such as in judicial discourse.

On the other hand, the rules and practice belong to the 'street-level bureaucracy' of the municipality, who interact with citizens in the course of the job and have discretion, but cannot do the job according to ideal conceptions of the practice because of the limitations of the work structure [16]. Any spending of government money must be 'sanctioned' or approved, but officials have some room for manoeuvre in deciding which case to put up on the file and how to formulate the case. Moreover, the piped water supply network is not entirely bound by a framework of rules. It is not fully mapped or documented, and is full of ad hoc extensions and modifications, which allow plenty of room for local agency.

In part, this situation is sustained by the fact that water supply revenues do not feature very high in a municipal officials' list of priorities. In fact, they are far less concerned about it than the Pani Haq Samiti judges. Tariffs are low overall, and no Indian city raises enough money from water tariffs to cover the cost of its water supply operations, in spite of several decades of policy pressure to do so. National government schemes and multilateral programmes call for improvements in the accounting and revenue efficiency of water supply operations as a 'reform' condition for funding disbursements; however, these conditions remain widely unfulfilled.

The actions of municipal officials also need to be understood in the context of the fact that the municipality is political, by which I mean that the mayor and the elected council who have considerable power and influence over what the municipality does, are not as invested in administrative rules as career civil servants. The councilors and officials themselves are often local residents of the city, and not so high in social status—and are therefore often easily approached by groups for poor people to intercede on their behalf to resolve water supply issues. There were commonplace instances of municipal councilors and officials being 'encircled' by local residents—sometimes groups of women—when they were out on a site visit, and being held in some sort of friendly custody until they would agree to address some pressing local issue.

It is easy to see how this administrative context facilitates illegal water connections, however, illegal connections can only reach as far as there is municipal drinking water supply. Illegal connections also cannot quite bridge the gap between slums and the rest of the city, which remains stark in spite of whatever marginal additions are brought about through illegal extensions.

### *3.3. Within City Disparities*

In the data, drinking water provision in India is categorized as within premises supply (i.e., in-house), and supply from shared community sources. This latter category includes community taps and tankers, and sometimes large plastic storage tanks, fitted with a tap, which are filled intermittently through municipal supply lines or tankers and serve as a type of community tap. Community taps and neighbourhood level supplies could also be arranged through local borewells—some of which are municipal owned—which supply untreated water directly from the borewell. Municipalities also provide a *survival essential* tanker service in areas where there is not enough piped water supply or community taps.

In the official-speak of Madhya Pradesh municipal officials, community taps are provided in areas where it is not possible to provide regular in-house connections for legal or infrastructural reasons, and community taps are meant to be removed from an area once in-house connections are provided. Community taps are provided free-of-cost by the municipality, and mostly only in poor neighbourhoods. New peri-urban gated communities and residential developments that fall outside of existing municipal supply networks are more likely to have private borewells or a private tanker supply.

In the last (albeit not particularly recent) national survey focusing on services deficiencies in slums [1], it was reported that around 80 percent of slum households in the larger cities in Madhya Pradesh (i.e., cities with a population of more than one million) were dependent on community taps for their main source of drinking water, whereas another 20 percent depended on taps shared with neighbours. The number of houses that reported having an exclusive, in-house taps in slums was negligible on the whole. In comparison, in non-slum areas in the same city, 24 percent depended on community taps, 40 percent shared taps or sources of water with their neighbours and 36 percent had exclusive water connections. These community arrangements included both public stand-posts which provide piped water supply and other ground water sources such as wells, tube-wells and boreholes. Moreover, 46 percent of slum households walked more than 200 metres to have access to drinking water.

These numbers suggest that the difference between slum and non-slum areas is not absolute—there is substantial water related difficulty outside of slum areas as well; however, the slum areas look considerably worse. Besides, with more money and space, households without exclusive or municipal water outside of the slums might have a better capacity to cope through alternative means (such as through private borewells, on-site reservoirs and overhead storage tanks). There might have been some improvements in the period since this survey, although I could not find any official reports of transformative change in policy or outcome.

### *3.4. The Administrative Framework for Recognising Slums*

While census and survey operations tend to recognize and count slums by what they are in physical terms, in order to be provided with municipal services an informal settlement seems to need some form of administrative recognition. For this, the Madhya Pradesh municipalities use their powers under a slum clearance law [17], which gives the municipality power to remove or undertake improvements in settlements that are 'notified' by it as slums.

By legal definition, a slum is an area that is "a source of danger to the health, safety and convenience of the public of that area or its neighbourhood, by reason of the area having inadequate or no basic amenities, or being insanitary, squalid, overcrowded or otherwise" [17]. This definition does not say anything about whether or not it is a squatter settlement, and whether the residents can claim to 'own' the property they live in. The definition also does not say anything about zoning and building regulations.

In administrative practice and social welfare policy, however, a slum is a conflation of tenurial and zoning irregularities and the fact of its residents being recognized as poor in state welfare programming. Slums are notified in order for them to become eligible for municipal infrastructure and engineering, and in order for them to become sites of welfare and community development programmes of the state. The municipality has a separate department to deal with slums, and a specialized staff of community officers to undertake planning and social development activities in slums.

By these measures, slums can be improved in terms of living conditions and socioeconomic prospects for their residents; however, the tenure and planning irregularities, and the physical constraints of congested housing in unsuitable places, can never be fully overcome. The steps to government recognition, and towards securing claims to land and basic services, have been described as the incremental buildup of tenure security. This 'incremental' approach is widely considered a pragmatic and durable strategy for dealing with urban poverty [18,19]. However, it does not lead to a route to the very top. Moreover, the steps require some proactive mobilization of local officialdom and politicians by the community.

The process of slum notification is one such step. By administrative norm, municipal officials say permanent infrastructure and improvements cannot be made in slums before they are notified, although I could not find a legal provision that barred public engineering expenditures in slums if they are not notified. However, it would seem as if the notification of a slum brings it administratively under the purview of the municipality, whereas nonnotified slums are not.

The notification process is time-consuming, and it involves technical, administrative and political layers; as a result of which there is usually a queue of 'non-notified slums' that have been identified as slums but have not as yet completed the process of notification. In practice, my colleagues and I usually found small municipal investments, such as in community taps and drainage even in non-notified slums, however, these were usually explained away by officials as 'councilor fund projects' and of a lower order of magnitude than systematic area improvement projects. For a ward councilor, having slums in his or her ward notified is a high priority—and it sometimes slows down the notification process as officials develop a 'balanced' list that covers slums distributed across the city and in as many municipal wards as possible.

The notification process is distinct from, but not entirely unrelated to, the issue of property and tenure claims. Notification could pave the way for municipal infrastructure spending, which in turn could perhaps signal some intent on the part of the municipality to let the slum remain on the site it occupies. However, residents need to build up their property claims in parallel.

Property claims are built up in parallel with documentation that establishes evidence of the household's occupying a site over a period of time. For slums that occupy public land, documentary evidence of site occupation can make a household eligible for a 'patta,' which is a type of temporary property right granted by the state government in slums under a special state law [20]. Pattas are the closest that slum residents can come to ratification of their property claim under applicable law in Madhya Pradesh. The status of patta is awarded on the basis of a survey by the state government (which is the residual owner of all public land in the state). Eligibility is determined on the basis of official identity papers that show residence at the site for a minimum of three years. Testimonies of neighbours are also sometimes considered in lieu of documentary evidence. However, a patta granted under this law can be cancelled at any time by the state government, with a somewhat uncertain right to compensation or alternative accommodation. Nevertheless, this form of tenure is considered heritable and of some value to those who manage to secure it.

At the time of award of patta, the municipality and the state planning agencies are asked for a 'no objection' certificate, which is thought of as a way to rule out patta grants in areas of glaring legal or practical problems. Slums that are on private land, or on land owned by government institutions (such as the railways, the military and public sector companies), are not considered eligible for grant of patta, perhaps for the reason that the 'no objection' certificate would not be forthcoming from the agencies that own the land. Slums on private land (in illegal occupation) may also not be considered for this reason. In theory, slums that are on sites that are unsafe for habitation are also not to be granted patta, however, there seems to be many exceptions to this rule.

There is also another category of slum-like informal settlement, called the "illegal colony" built on farmlands that are sub-divided, sold and bought without planning permission under land revenue, planning and municipal law [21–23]. Illegal colonies also serve low-income housing markets, and could be slum-like in many ways, although legally and administratively they are treated as a separate category. Madhya Pradesh law prohibits registration of sales in illegal colonies, perhaps as a disincentive to potential illegal developers, but this means that 'owners' in these settlements have no documentary evidence of their title. Illegal colonies need a specific type of municipal 'no objection certificate' in order to be considered eligible for services [23], which in turn requires residents to organize themselves to jointly apply and lobby the administration for this certificate.

Another type of documentation, related to tenure, that slum households have to navigate is the 'property tax registration.' Property tax is generally thought of as a form of municipal revenue, but, in fact, the property tax levy in Madhya Pradesh slums is nominal. The levy of property tax is calculated based on 'rentable value,' but it is considered to be zero in areas designated by the corporation to be slums and low-income settlements. Houses with zero tax levy are only required to pay a small annual sanitation cess). In formal law, property tax registration is considered unrelated to title: by municipal law, owners or 'occupiers' are permitted to apply, and a tax registration is not considered a document of title. However, in practice, it is recognized by the municipality as a way of establishing a connection between the applicant and the property in lieu of regular ownership documents.

The application process for municipal property tax registration requires the applicant's personal government-issued identity documentation and evidence of ownership or occupation of the property, which could include electricity bills or patta documentation. A municipal official told me that if an applicant is unable to provide any evidence document for his occupation of the property, it is still possible for the municipality to establish his status by making a site visit and recording statements of neighbours.

### *3.5. Drinking Water Rationality in Legal and Technical Terms*

The municipal law of Madhya Pradesh lists water supply as a function of the corporation, stating that "The Corporation shall make adequate provision, by any means or measures which it may lawfully use or take, for each of the following matters ( ... )" which includes "the management and maintenance of all municipal water works and construction and maintenance of new work and means for providing a sufficient supply of suitable water for public and private purposes" [23]. In the same section, however, it is also stated that "No suit for damages or for specific performance shall be maintainable against the Corporation or any officer or Councillor thereof, on the ground that any of the duties specified in sub-section(1) have not been performed" [23].

By this law, the municipality has a mandate to provide drinking water in areas under its jurisdiction, and all the power and authority necessary to undertake this mandate; however, it does not cast an obligation to make adequate provision for water and sanitation services to all houses within its jurisdiction. This is, of course, the exact opposite of how this provision was interpreted by the courts in some of the other cases relating to municipal provisioning, where it was held that local authorities and state governments had a duty to make provision for drinking water, and that the lack of funds and resources did not absolve them of their responsibilities [24,25].

Nevertheless, in the municipality's own understanding of its legal obligation, water supply and sanitation services, and household-level formal services (that is, in-house piped water connections), are provided only if infrastructure and resources are available, and certain other legal conditions are satisfied, and if it is 'technically feasible' to do so. The others, who do not meet technical or legal conditions, may still be supplied with municipal water, but in ways that are not as secure or reliable.

In order to obtain an in-house water connection, the owner-occupant of the house is required to make an application to the municipality, in prescribed format and with supporting documentation. The municipality levies a connection charge for new accounts, and bills a monthly charge to user households. There are concessional connection charges and monthly charges applicable for the low-income households that are updated from time to time. These charges are nominal for slum households, and are unlikely to be the principal reason why far fewer of them have house connections as compared to those in non-slum areas. There is a special category of water rates for a low-diameter connection for 'economically weaker sections' and slums, which provides less water and is billed at a lower rate, and also has a lower upfront connection charge. This could be as low as a monthly charge of Rs. 30 (USD 0.50), as compared to a regular monthly tariff of Rs. 180 (USD 3.00) for regular domestic consumers. As water is supplied only for a few hours every day, the larger diameter regular connection allows for more consumption.

A successful application from a slum household would require the following three pre-requisites: (1) the household should be able to provide supporting documentation, (2) there should be no specific legal prohibition in a particular area, such as if it is on railway or military land, in an illegal colony that does not have a no-objection certificate, or a slum that is not notified and (3) that it should be 'technically feasible' to serve the area, and that it should be within reach of existing municipal pipelines. The households themselves can do little to alter any legal prohibitions applicable to them, and they have limited influence on the technical feasibility question. But they could proactively address the first requirement by lobbying the local administration to bring about slum notification and to improve their household-level documentary status.

It is, however, not always clear what supporting documentation will be considered adequate. In my conversations with municipal officials, I have been told multiple versions of this. There are differing views on whether or not patta documents and property tax registration are essential. Municipal officials have sometimes told me that long-standing residents in areas that are ineligible for patta (such as on certain types of no-man's land) can be considered equivalent to leasehold owners—a view which is unlikely to stand legal scrutiny, but is perhaps adequate for municipal approval. I can only surmise from these varying accounts that, one, political sponsorship helps an applicant's case, and two, that documents are considered *in combination*, and should add up to a satisfactory statement of the applicant's residential status.

In addition, applicants are asked to provide a plumbing drawing prepared by a licensed plumber, and a statement of endorsement from the local ward councillor. Following submission of the application and documents, the municipal engineer makes a site visit report to check if the house location is within reasonable distance from the main line and whether it is technically feasible to extend a house connection from the main line. This site report (the 'technical feasibility assessment'), along with application documents, is submitted to a zonal executive committee for administrative sanction.

Slums might fail the technical feasibility assessment for the reason that they are built on marginal and inaccessible lands, on rocky, hilly slopes or in far flung areas that are not served by existing municipal networks. These would appear, on the face of it, to be legitimate engineering-related grounds for not being able to sanction house connections. However, in technical feasibility, one must therefore account for disciplinary and training bias. In many conversations with municipal engineers on this point, I learned of the difficulty of planning for and laying pipelines and infrastructure in narrow, congested and twisty layouts. In my consulting assignment in Madhya Pradesh, I observed that it was possible to do this with specialized training and method. The municipal engineers I spoke to, however, had not received such training, except as one-off short-term inputs from programmes such as the one I was working in, even though the same narrow, congested and twisty layouts were part of the everyday reality of the cities they worked in. I also observed (a point confirmed by colleagues in the municipality and in my programme) that, in reality, municipal water supply systems are severely compromised on many engineering parameters by poor design, investment and maintenance. This is not just on account of the slums, but everywhere in the city. Therefore, while it appears as if the decision of technical feasibility is based on engineering conventions, these conventions are deployed sometimes and ignored at other times. Technical feasibility is also not a permanent state, but one that can be altered with targeted investments once an administrative decision to serve an area is taken.

The main question for public officials—at least in terms of procedure—seems to be to ensure that there is enough documentary basis in order for them to sign off on it. There is also an implicit concern of public officials—often stated in one-to-one discussions but rarely in writing—that, if the living conditions in slums are made too comfortable, will it not lead to a proliferation of more slums? Officials who approve expenditure in slums are also perhaps driven by the worry that they should not be seen to be as facilitating land capture or serving interest groups. The maze of documentation, including surveys, assessments, government identity papers and no-objection certificates provide ratifications of the legal status of slums, and perhaps some form of legitimacy and 'cover' for the decision-making officials.

### **4. Conclusions**

My paper explores the seeming disjuncture between the socio-economic rights discourse of the courts and the everyday realities of local law and practice. There is not much difference in the end in what these two options offer for people. The local route is less risky in terms of a threat of eviction, but as unlikely to provide an outcome if the goal is to have a secure and exclusive house connection. Improvements in the quality, reliability and nearness of community taps seems like a more realistic goal, and one that can be achieved by building up official recognition of the slum and tenurial claims of its residents.

Poor people's lower claims on city water services are, however, not likely to be the outcome of their lesser capacity to pay for services. One of the key concerns about water privatization and 'neoliberal' reform of the state, all over the world, is that an increase in commercial orientation of water utilities will lead to higher tariffs, and increased inequalities and exclusion of those who cannot pay these tariffs. This threat has been largely unrealized in India, at least insofar as urban water supply is concerned. Public– private partnerships (PPPs) in urban drinking water are, at least for now, few and far between in India: according to a study commissioned by the World Bank, only 15 PPP projects in urban water supply were awarded between 2006–2011, all with low commercial risk for the private parties, and, of these, only 8 achieved financial closure [26]. Indian government officials, national and state, and in the city municipalities, all profess interest in institutional reforms to reorganize water supply operations on commercial lines. However, in fact, the municipalities and other service providing agencies have not reached very far in implementing this vision. In Mumbai, the disconnection policy perhaps resulted in large number of consumers paying quite a lot for illegal connections, while at the same time shrinking the revenue base of the municipality. The policies I looked at in Madhya Pradesh are not quite so counterproductive, but seem not to be driven by a revenue motive.

The lack of a decent level of water access in slums is also not entirely a weak state problem. Services are poor all over Indian cities, but they, specifically, are worse in certain areas than in others. The real issue, and the one for rights jurisprudence to confront, is about contested claims over land. Formal markets of land and housing give primacy to certain types of capital and interest groups over others, and the insistence on certain types of legalism over others aligns well with these interests. Looking at it from this perspective, we can see why policies in Mumbai (India's financial capital, with some of the highest real estate values in the world) are so different from those in smaller provincial cities in Madhya Pradesh. In both places, however, the municipal arena, chaotic and low profile as it is, provides some space to negotiate these interests in ways that are not possible in the court. This space is precarious, as the municipalities are by no means insulated from land contestations, although their close-to-the-ground location makes it difficult for them to entirely ignore people's voices.

In the end, what should we make of these case studies in the discourse of rights? They underscore the importance of working on developing a better and more holistic understanding of the right to water. The recognition of rights should not be accompanied by the threat of evictions, but rather by the recognition of multiple and social purposes of urban land. My case studies also highlight the need for rights to become local, and to think of ways to make the local interface of poor people and the state more empowering. In this, we need to engage with the legal framework, and rule and policy for water provisioning to develop better footholds for people in excluded settlements to make their claims. We also need to be able to listen to people in excluded settlements to understand what difficulties they face and how the discourse of rights can be deployed and reshaped to address these difficulties.

**Funding:** This research was supported by the following project: "Elevating water rights to human rights: Has it strengthened marginalized people's claim for water?", Research Council of Norway, Project No. 263096.

**Acknowledgments:** In thinking about this paper, I benefited enormously from many conversations with Aditya Bhol and Shamindra Nath Roy. They also helped me with analysis of national survey data.

**Conflicts of Interest:** The author declares no conflict of interest.

### **References**

### *Article* **Between Confrontation and Cooperation: Right to Water Advocacy in the Courts, on the Streets, and at the Capitols in the United States**

**Sabrina Kozikis <sup>1</sup> and Inga T. Winkler 1,2,\***

**Abstract:** Communities across the United States face a widespread water crisis including risks of contamination, rate increases, shut-offs for non-payment, and dilapidating infrastructure. Against this background, a right to water movement has emerged which has found its strength in coalitionbuilding and collectivity. Activists demand change using the framing of "water is a human right", socially constructing the right to water from below. Based on more than 25 semi-structured interviews with water advocates and activists, our article explores how movement participants used the human rights framework to advocate for clean and affordable water for all. We used political opportunity theory and conceptions of government "openness" and "closedness" to examine when and how advocates decided to use confrontational and cooperative approaches. We identified a push and pull of different strategies in three key spaces: in the courts, on the streets, and at the Capitols. Advocates used adversarial approaches including protests and civil disobedience, reliance on human rights mechanisms, and to a more limited extent litigation simultaneously with cooperative approaches such as engaging with legislators and the development of concrete proposals and plans for ensuring water affordability. This adaptiveness, persistence, and ability to identify opportunities likely explains the movement's initial successes in addressing the water crisis.

**Keywords:** right to water; advocacy; activism; social movement; socio-economic rights; United States; political opportunity; coalition-building; collective action; human rights from below

### **1. Introduction**

Communities across the United States face risks of water contamination, rate increases, shut-offs, and dilapidating infrastructure—resulting in a widespread water crisis. In 2015, 77 million residents relied on water that was in violation of the Safe Drinking Water Act [1]. Ten million U.S. homes face a threat of lead contamination in the pipes [2] (p. 14). Despite unsafe water and inadequate service, a recent analysis of 12 cities showed an average increase of 80% for combined water and sewerage rates from 2010 to 2018 [3]. When residents cannot afford to pay, many face disconnections [2] (p. 13), and in 2016 an average of 5% of U.S. homes in 73 water systems had their water disconnected due to non-payment [4] (p. 2). According to the US Water Alliance, over two million people in the U.S. do not have access to safe drinking water and sanitation [5] (p. 12).

Against this background of multiple, overlapping water quality and affordability crises in communities across the country, we see more and more civil society actors use the framing of "water is a human right" to demand change. Making this claim can seem a curious trend, considering the U.S.'s attitude towards domestic human rights and socioeconomic rights, in particular. The federal government largely does not acknowledge socioeconomic rights as rights but views them as aspirations or entitlements that are gained through hard work [6] (pp. 435–436). There is a perception that the U.S. Constitution and

**Citation:** Kozikis, S.; Winkler, I.T. Between Confrontation and Cooperation: Right to Water Advocacy in the Courts, on the Streets, and at the Capitols in the United States. *Water* **2021**, *13*, 3541. https://doi.org/10.3390/w13243541

Academic Editors: Bruce M. Wilson, Arkaja Singh, Daniel Brinks and Athanasios Loukas

Received: 27 September 2021 Accepted: 8 December 2021 Published: 10 December 2021

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**Copyright:** © 2021 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

legislation guarantee the necessary rights rendering international human rights instruments unnecessary [6] (p. 435); see also [7]. The U.S. has not ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), and U.S. courts rarely rely on international human rights instruments.

At the international level, the U.S. government has supported the recognition of the human rights to water and sanitation. While the U.S. called for a vote and then abstained from voting on the original United Nations General Assembly resolution recognizing the right to water and sanitation in 2010 [8], the U.S. has since joined consensus, voted in favor, and even co-sponsored resolutions on the rights to water and sanitation, thus expressing its political support for these rights. However, in its explanations of position, the U.S. is always quick to point to the significance of the rights to water and sanitation for international cooperation and stresses that it has made water and sanitation a priority in official development assistance [9], thus relegating the rights to water and sanitation to challenges abroad. The U.S. also stresses that the rights to water and sanitation derive from the ICESCR, to which the U.S. is not a State party. Accordingly, the U.S. does not view the human rights to water and sanitation as domestically applicable and justiciable [10].

Historically, there was a time when socio-economic rights were not seen as unnecessary. Socio-economic rights were at the forefront of the New Deal era policies under President Franklin D. Roosevelt in the 1930s [11] (p. 289); [12] (p. 107). During the drafting of the Universal Declaration of Human Rights (UDHR) after World War II the U.S. was a strong proponent of the inclusion of socio-economic rights [13] (p. 896); [11] (p. 294). However, a shift in the acceptance of domestic socio-economic rights occurred between 1947 and 1948. The UDHR was adopted against the backdrop of the Cold War, during which the U.S. experienced a rising fear of communism, ideas of isolationism, and opposition to addressing racial inequalities as a backlash to New Deal era policies [13] (p. 895); [12] (p. 118).

For a long time, NGOs, too, have been hesitant to advance socio-economic rights through advocacy [14] (pp. 1–3); [15]. In the last two decades, however, we see a shift in the movement towards embracing socio-economic rights in their work [16–18] (p. 381), perhaps most notably in the context of health. "Healthcare is a human right" has become a calling card for domestic human rights on a public scale. To some extent, this language has entered the political landscape, for example being pushed to the forefront of the 2020 debates for the Democratic primaries, with candidates declaring healthcare as a human right on national television [19] and President Biden arguing on social media that "housing should be a right" [20].

A similar trend can be observed for the right to water. At the political level, Senator Bernie Sanders and Representative Brenda Lawrence co-authored an op-ed for *The Guardian* seeking to bring access to water to the forefront of political discourse. They explicitly stated that water is a human right [21].  As we explored in a companion paper, it seems perplexing that activists relied on the human right to water in a country that still challenges the need for socio-economic rights. Yet, activists expressed that the human rights framework provides empowerment and validation to the communities that are most impacted [22].

This article explores *how* advocates used the human right to water framework to work towards clean and affordable water for all. We find that advocates employed various strategies largely in social and political circles. Specifically, the article examines how activists and advocates participated in both confrontational and cooperative advocacy approaches in the courts, on the streets, and at the Capitols on local, state and national levels.

### **2. Methods**

This article is based on semi-structured interviews with water advocates and activists in the U.S. relying on human rights. We interviewed twenty individuals in June and July 2018, complemented by an additional six persons in December 2020, who we identified through personal contacts in the National Coalition on the Human Rights to Water and

Sanitation, online research, and snowballing. Interviewees included both professionalized advocates and local resident activists living in communities which face violations of the human right to water. A few participants engaged in right to water advocacy and coordination at the national level. Most participants were local advocates located in the Central Valley in California, Flint and Detroit in Michigan, and in Appalachia, specifically eastern Kentucky and southwestern West Virginia. While these regions are not exhaustive of the many civil society groups across the country mobilizing around the human right to water, they demonstrate the breadth and richness of community organizing (see [22] for more details). The interviews in 2018 were conducted face-to-face in the respective communities, while the interviews in 2020 were conducted online. They focused on engagement in human right to water advocacy, how activists utilized the framework of human rights, the reasoning for using the framework, and why and how they chose specific strategies of engagement. All but one interview were recorded and transcribed, they were then thematically coded for common themes in line with the framework set out by Virginia Braun and Victoria Clarke [23]. Interviews were complemented with media sources and legislation. The study was conducted in accordance with the Declaration of Helsinki, and the project was reviewed by Columbia University's Institutional Review Board under Protocol Number IRB-AAAR7902. All participants gave their written informed consent for inclusion before they participated in the study. We discussed attribution options with participants, and most participants opted to be identified by name, given that they are highly visible actors in the movement who have been very outspoken on many occasions. Most interviewees are thus named in the study, while the others have been anonymized.

### **3. The Social Construction of the Right to Water from Below**