A Report by ‘Research Foundation for Science, Technology and Ecology’ for National Commission for Women, January, 2005, Page 126-149.
Water Rights As Natural Rights
More than any other resource, water needs to remain a common good and requires community management. Infact, most societies private ownership of water has been prohibited. However, the emergence of modern water extraction technologies has increased the role of the state in water management. With globalization and privatization of water resources, efforts are under way to rode people’s rights over water. Following paragraphs briefly explain about water rights, riparian rights and community rights.
Throughout history and across the world, water rights have been shaped both by the limits of ecosystems and by the needs of people. In fact, the root of the Urdu word abadi, or human settlement, is ab, or water, reflecting the formation of human settlements and civilization along water sources. The doctrine of riparian rights – the natural rights of dwellers supported by a water system, especially a river system, to use water-also arose from this concept of ab. Water has traditionally been treated as a natural right – arising out of human nature, historic conditions, basic needs, or notions of justice. Water rights as natural rights do not originate with the state; they evolve out of a given ecological context of human existence. (Shiva 2001)
As natural rights, water rights are usufructuary rights; water can be used but not owned. People have a right to life and the resources that sustain it, such as water. The necessity of water to life is why, under customary laws, the right to water has been accepted as a natural, social fact:
Riparian rights, based on concepts of usufructuary rights, common property, and reasonable use, have guided human settlement all over the world. In India, riparian systems have long existed along the Himalaya. The famous grand Anicut(canal) on the Kaveri at the Ullar River dates back a thousand years and is believed to be the oldest hydraulic structure to control the flow of rivers in India. It is still functioning. In the northeast, old riparian systems known as dongs guide the use of water. In Maharashtra conservation structures were know as bandharas.
The ahar and pyne systems of Bihar, where an unlined inundation canal (pyne) transfers water from a stream into a catchment basin (ahar), also evolved from a riparian doctrine. Unlike modern Sone canals built by the British, which have failed to meet the needs of the people, the ahars and pynes still provide water to peasants. In the United States, riparian systems were introduced by the Spanish, who had brought them from, the Iberian Peniesula. These systems were adopted in Colorado, New Mexico, and Arizona, as well as the eastern settlements.
Water as a Commons
Water is commons because it is the ecological basis of all life and because its sustainability and equitable allocation depend on cooperation among community members. Although water has been managed as a commons throughout human history and across diverse cultures, and although most communities manage water resources as common property or have access to water as a commonly shared public good even today, privatization of water resources is gaining momentum.
Prior to the arrival of the British in south India, communities managed water systems collectively through a system called kudimaramath (Self-repair). Before the advent of corporate rule by the East India Company in the 18th century, a peasant paid 300 out of 1,000 units of grain he or she earned to a public fund, and 250 of those units stayed in the village for maintenance of commons and public works. By 1830, peasant payment rose to 650 units, out of which 590 units went straight to the East India Company. As a result of increased payments and lost maintenance revenue, the peasants and commons were destroyed. Some 300,000 water tanks built over centuries in pre-British India were destroyed, affecting agricultural productivity and earnings.
The East India Company was driven out by the first movement for independence in 1857. In 1858, the British passed the Madras Compulsory Labor Act of 1858, popularly known as the Kudimaramath Act, mandating peasants to provide labor for the maintenance of the water and irrigation systems. Because kudimaramath was based on self-management and not coercion, the act failed to mobilize community participation and to rebuild the commons.
Water Exclusion and Caste Exploitation
Untouchability, the worst crime of caste system is expressed in various ways but one of the expressions is connected with water. Usually a higher caste Sabarna was not supposed to drink water touched by Abarnas. Therefore Abarnas; lower caste were not allowed to draw water from village wells or pond or river bank. They were supposed to bring water from far-flung places. During crisis period Abarnas suffer the most as most of the water sources dry up. Obviously it was difficult for Abarnas to get irrigation for their land hence they had to remain economically backward. Thus for sustenance with meagre remuneration they were exploited.(Ghosh 2002).
Untouchability became a crime as per law after independence. But psychological untouchability continued. Due to fear of punishment direct untouchability eradicated up to certain extent but indirect untouchability remained while new forms of untouchability emerged.
Latest expression of untouchability in rural India is depriving Dalits of irrigation water. It is fairly common in Uttar Pradesh, Bihar, Madhya Pradesh, Rajasthan and other states. It is also fairly common in Tamil Naidu and certain areas of Andhra Pradesh. Even when canal irrigation available, the castes belonging to Sabrana group block irrigation water diverting it towards their fields with the help of their private army. This led to a situation when Dalits can get only one crop a year thus remain poor where in the process Sabarna has opportunity to exploit them economically, physically and mentally.
Exploitation becomes worst during the period of crisis. A report from Gujrat during drought of 2000 AD describes the horror of Dalit women who are exploited in several ways. Drought is driving Dalit women into the arms of landlords and contractors. As most of of their men migrate in search of a livelihood or been forced into bonded labour, the Dalit women fall back on Thakurs, Chowdharys-Patels, and Rabari-Desais in these trying times.
For the Dalit women, the exploitation starts at the water taps. In Taranagar, there are three taps supplying potable water but the Dalits are forced to take brackish water from another one. The Rabari-Desais will allow them to fill a few pitchers only if a young woman goes begging to them. (Ghosh 2002)
Traditionally in most of the states in every village, the Dalits were allowed to stay in seprate areas identified by them. Village politics are usually dominated by persons from higher castes therefore elections are won by them except for those seats reserved for scheduled Castes or Scheduled Tribes. But decision-making bodies have majority of persons from higher castes. When modern system of water supply or sewerage are planned the priority goes to those areas within village where people from higher castes live. When budget run off, the Dalit areas are left out even in those states where caste clashes are not very pungent even negligible. Therefore water remains tool of caste exploitation and mirror of caste neglects almost all over India including in those states known to be progressive. This is unfortunately a situation even after India remained an independent country for over 57 years.
Community Rights and Water Democracies
In India, farmer’s associations for the construction and maintenance of water systems were once widespread. In Karnataka and Maharashtra the associations were known as panchayats. In Tamil Nadu, they were called nattamai, kavai maniyam, nir maniyam, oppidi sangam, or eri variyam (tank committee). Tanks and ponds of ten served more than one village, and in such cases representatives from each village or farmers’ association ensured democratic control. These committees could also tank dues and taxes from users. Lands were also donated, especially for financing capital expenditures on waterworks. Water managements was given to Dalits to ensure equity in distribution and guarantee access for all. However, caste exclusion has become association with water exclusion.
There are nine principles underpinning water democracy:
1. Water is nature’s gift
We receive water freely from nature. We owe it to nature to use this gift in accordance with our sustenance needs, to keep it clean and in adequate quantity. Diversions that create and or waterlogged regions violate the principels of ecological democracy.
2. Water is essential to life
Water is the source of life for all species. All species and ecosystems have a right to their share of water on the planet.
3. Life is Interconnected through water
Water connects all beings and all parts of the planets through the water cycle. We all have a duty to ensure that our actions do not cause harm to other species and other people.
4. Water must be free for sustenance needs
Since nature gives water to us free of cost, buying and selling it for profit violates our inherent right to nature’s gift and denies the poor of their human rights.
5. Water is limited and can be exhausted
Water is limited and exhaustible if used nonsustainably. Non-sustainable use includes extracting more water from ecosystems than nature can recharge (ecological nonsustainability) and consuming more than one’s legitimate share, given the rights of others to a fair share (social non-sustainability).
6. Water must be conserved
Everyone has a duty to conserve water and use water sustainably, within ecological and just limits.
7. Water is a commons
Water is not a human invention. It cannot be bound and has not boundaries. It is by nature a commons. It cannot be owned as private property and sold as a commodity.
8. No one holds a right to destroy
No one has a right to overuse, abuse, waste, or pollute water systems. Tradable- Pollution permits violate the principle of sustainable and just use.
9. Water cannot be substituted
Water is intrinsically different from other resources and products. It cannot be treated as a commodity.
Right to Water as a Human Right
Water has found its way into international law at the most varied of places. The action plans of the major UN Conferences of the 1990s (inter alia Cairo, Copenhagen, Beijing, Rome) and numerous declarations focus on the various aspects of the water. In most cases, however, it is a matter of so-called “soft law”. In contrast to agreements under international law, soft law is not binding on individual States.
In the framework of United Nations activities, the international community is agreed that water is a human right. Yet to date, no binding agreement under international law includes express mention of the human right to water. Rather, it is derived from the right to food or the right to health for example, which are enshrined in various UN agreements (see below). Logically, at the first major UN Water Conference in 1977 in Mar del Plata, Argentina, the international community underscored the following:
All people have the right to have access to drinking water in quantities and of a quality equal to their basic needs.” (Extracted from: Why we need an international water convention, by Rosmarie Bar, Swiss Coalition of Development Organisations)
We declare that:
● The formal recognition of the Right to Water is a major step towards the implementation of the right to life for all;
● The effective implementation of the Right to Water for all is a necessary condition in the fight against poverty and its eradication;
● The Right to Water for all (and not only for the half of those people who have not access to water) by 2015, is a realistic economic target. In 1977, UN (namely the UNDP) showed that access to water for all within a period of 15 years was economically feasible. It still is absolutely clear that the main obstacle to its implementation is not the absence or the inadequacy of financial resources, not of competencies of technology rather, what is lacking is a political will and all related economic and social policy choices.
Therefore we consider that:
● The exclusion of water, 55 years ago, form being explicitly mentioned as a human right in the Universal Declaration of Human Rights, has hampered citizens’ ability to put effective pressure on governments to affirm it. To the contrary, it has contributed, in an international context increasingly influenced by neo-liberal market economy, to the success of those approaches and management choices at national level that consider water an economic good. Hence the growing process of water privatization and commodification.
● It is urgent and necessary to recognize water and the ecosystems as a common public good and to manage to exclude them out from the category of “market goods and services”, not only with regard its domestic uses. Being also an essential and unsubstitutable element for other economic activities (agricultural, energetic, industrial) of fundamental importance for the right to life and living together, water must be considered as a public good under these circumstances as well.
● Water and water services cannot be the subject of trade talks or of World Trade Organisation negotiations, but have to become the object of world rules and institutions that support and promote a use of water as a common good and a human right. To this end, we re-state our adhesion to the following principles:
● Water is a common public good belonging to humankind and all living species
● The access to water is a human and social right, individual and collective right
● Financing the costs for guaranteeing access to water for all by the quantity and quality required for life is the responsibility for the public authorities.
(Extracted from: Rome Declaration of 10 December 2003 making the right to water a reality)
Women’s water rights are human rights
The water crisis embodies a gender equality dimension that should not be underestimated. In developing countries, fetching water is the job of women and children. Women are the world’s water carriers. Walking for hours on foot, they carry home as much as 60 liters of water day after day for their family. Thus, a 65-year-old women in Brazil’s parched northeast has spend roughly a third of her life fetching water. Chronic health problems result from carrying this heavy load. After such an expenditure of energy and time, there is no place left for school and education and, by extension, for development and economic independence. Whereas women are fetchers of water, men are policy makers. It is the men who make up the water authorities and decide about pumps, the location of wells and the distribution of water. Water privatization is further exacerbating social discrimination against women.
Women are not only the world’s carriers of water; they are also its breadwinners. Water and food go together; this has always been so. Women produce more that half the world’s total food supply – 80 per cent in Africa. Their role as the ones responsible for the entire food chain contrasts starkly with their lack of rights when it comes to land acquisition and ownership as well as the provision of loans, seeds and technical assistance. Numerous action plans form UN conferences (e.g. Cairo, Beijing, Copenhagen, Rome) ascribe capital importance to the principle that “women’s rights are human rights”. Besides, gender equality is amongst the international community’s Millennium Goals.
Equal access for women to water and land are key factors in the fight against poverty and hunger. Equal rights for women means a secure nutritional base. An international water convention would give women of all countries a binding powerful instrument with which to enforce and demand fulfillment of their rights – even vis-à-vis their own (passive) government.
(Extracted from: Why we need an international water convention, by Rosmarie Bar, Swiss Coalition of Development Organisations)
The women’s water struggle in Plachimada has gone a long way in establishing water rights as human right as was ruled by Kerala High Court’s Judgement:
“The courts support the women’s demands. In an order given on 16th December 2003, Justice Balakrishnana Nair ordered Coca Cola to stop pirating Plachimada’s water. As the Honorable Justice stated:
“The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purpose.
Our legal system – based on English common law – includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources, which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership…”
In view of the above authoritative statement of the Honourable Supreme court, it can be safely concluded that underground water belongs to the public. The State and its instrumentalities should act as trustees of this great wealth. The State has got a duty to protect ground water against excessive exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India. The Apex Court has repeatedly held that the right to clean air and unpolluted water forms part of the right to life under Article 21 of the Constitution. So, even in the absence of any law governing ground water, I am of the view that the Panchayat and the State are bound to protect ground water from excessive exploitation. In other words, I am of the view that the Panchayat and the State are bound to protect ground water from excessive exploitation. In other words, the ground water, under the land of the 2nd respondent, does not belong to it.
Even assuming the experts opine that the present level of consumption by the 2nd respondent is harmless; the same should not be permitted for the following reasons:
The underground water belongs to the general public and the 2nd respondent has no right to claim a huge share of it and the Government have no power to allow a private party to extract such a huge quantity of ground water, which is a property, held by it in trust.
If the 2nd respondent is permitted to draw such a huge quantity of ground water, then similar claims of the other landowners will also have to be allowed. The same will result in drying up of the underground aqua-reservoirs.
Accordingly, the following directions are issued:
The 2nd respondent shall stop ground water for its use after one monthfrom today.
The Panchayat and the State shall ensure that the 2nd respondent does not extract any ground water after the said time limit. This time is granted to enable the 2nd respondent to find out alternative sources of water.
(Extracted from: K. Balakrishnan Nair, J. W.P.(C) No. 34292 of 2003-G, Judgment)
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