Deriving Water from Life: Judicial Review, Jurisprudence and

Constitutionalism: Is the Glass Half Full or Half Empty?

Background:

In India, the developmental pressures is changing the distribution of water pattern and access to

adequate drinking water has become one of the bottleneck for development in the country in the

last few decades. “Safe drinking water, is not within the reach of nearly half the rural

households, according to a recent National Sample Survey Office (NSSO) 2012 study. The

average availability of water is reducing steadily with the growing population and it is estimated

that by 2020 India will become a water stressed nation. As per NSSO 2012 findings the all India

average for urban areas’ access to sufficient drinking water was 91% in 2008-09 which came

down to 89% in urban whereas it dropped from 86.2% to 85.8% in rural areas.

In villages of about 15 out of 28 states, less than half of the households have water supply within

the premises due to which a large number of Households in Chhattisgarh, Jharkhand, Madhya

Pradesh, Rajasthan, Odisha and West Bengal go outside walk at least half a Kilometer distance.

The longest time was recorded in state of Jharkhand which was 40 minutes according to NSSO

20121.

In the current context, supply of drinking water has been echoed with a roar in the form of

citizens expressing their drinking water woes in super urbanized locations like a New Delhi

(which also encompasses nearly 112 villages in its embrace ). The same has been strategically

captured by political parties as the priority agenda to woo voters. In the recent scenario before

the Elections in State of Delhi, the survey of the current ruling Aam Adami party that was made

public revealed that drinking water emerged as the top issue with 28% respondents voting for it2

and therefore the party gave top priority in its Manifesto that it would provide access to free

drinking water up to 700 liters per day. Thus after coming to power, in Delhi, the electoral

1 NSSO-2012, survey findings 2 (Hindustan Times, 19th October. 2013)

promise was fulfilled by the Aam Aadmi Party (AAP) and the government decided to supply

20,000 liters of free water per month per from January 1, 20143.

Our access to safe drinking water is already limited by water borne diseases, pollution, limited

fresh water source and this is further restrained by the state and institutions concerned who do

not take the job seriously. As a nation of over 1.234 billion people ( Census 2012) and the

world’s largest democracy, India is often confronted with these situations where governance

institutions do not fulfill their duties claiming helplessness on account of shortage, infrastructure

and funds, etc.

The Supreme Court and several High Courts in India have come across various cases where the

state government or the local bodies have failed to recognize this right and consequently respect,

protect, and fulfill the right of access to (safe) drinking water. This would mean that concerned

authorities have failed to ensure that all persons have affordable access to a supply of safe water

in quantities adequate for essential personal and domestic uses, which include drinking,

sanitation, washing of clothes, food preparation, and personal and household hygiene. Due to

this reason, individuals and groups have knocked the door of courts to avail justice on account of

protection of their fundamental rights.

The Indian constitution has given the judges a very potent power, namely the judicial review

keeping in view the historically inheritance of poverty, meanness and injustice in India. In

situation where concerned government authority fail to perform its duty to protect fundamental

right and ensure its fulfillment, judicious and sustained use of judicial review power becomes

absolutely important to further social causes. Therefore, in this paper, we will try to answer the

question as to how closely judicial review is linked with constitutionalism and how judiciary in

India by virtue of its power to review has been able to make reach justice to all and has been

able to innovatively interpret and expand the meaning to protect right of access to (safe)

drinking water under the right to life. Also, if at all judicial review has been able to generate

determined effort i.e. enforcements directed towards protection of the right of access to water in

order to establish the supremacy of constitution thus promoting constitutionalism in India.

3 India Today Online New Delhi, December 30, 2013 | UPDATED 00:26 IST

Understanding Constitutionalism and it’s Connect with Judicial Review:

The constitution of India is extremely well crafted document that was drafted at the moment

when principles and aspirations of human rights were gripping the newly independent nation

(Narain, 2010)

Constitutionalism can be referred as limit imposed on majority decisions. This is mostly a self

restrained form of limitation (Elster & Slagstad, 1988 & 1993). It can be broadly defined as the

principle or system of government by which the governing power is limited by certain

enforceable rule of laws and the basic rights are protected by various checks and balance created

to limit the concentration of power that protect basic rights of individuals and groups.

The very aspect of “ ism” stands for an ideology, a thought of constitution. The principle of

constitutionalism requires that impartiality is maintained in the conduct of the government and

the law is supreme and not individuals. In the understanding of constitutionalism it does not

hamper social change but the pattern and degree of social change must be within the ambit and

limits as provided in the constitution. It is the judiciary which is considered as the guardian of

constitution and ensures the dynamic aspect of constitutionalism.

Carl.j. Friedrich has attempted to define the Constitutionalism as “the practice of the politics

according to the rules of the game, which ensure the effective restraints upon governmental and

other political action and the theory-explanatory as well as justificatory of this practice”.

C.H. Mellwain has regarded Constitutionalism as a mechanism of imposing restraints on the

arbitrary power of government, particularly in order to safeguard the freedom of citizens.”

(Polkat, 2013).

The Supreme Court Observed in Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr

case4 that “The constitutionalism or constitutional system of Government abhors absolutism - it

is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity

provided by the provisions of the Constitution itself”. It needs to be understood that power when

it is beyond the limit corrupts and leads to an authoritative government which jeopardizes the

rights of the people. Therefore to ensure these rights to the citizens, it is important to preserve

the personality and dignity of the constitution that enables ideology of constitutionalism.

When compared with constitution that can be defined as the fundamental laws, customs,

convections rules and regulations, stipulating how as country is governed.

The attributes of constitutionalism include a written constitution, independent judiciary that has

powers of the judicial review, separation of powers among branches, accountable, transparent

and democratic government , free elections to legislature, fundamental rights of the people,

federalism, decentralization of the power and the doctrine of rule of law etc. (Palkot, 2013).

Although the constitutionalism recognizes the need for government with powers but at same

time it insists upon restraining these powers so that it does not become arbitrary. It is a required

authoritative set of rules which govern the interaction of actors (Mehta, 2005).

The word constitutionalism first found its place in the Philadelphia Convention in the USA

which was the first nation to experiment with its written constitution. The art of

constitutionalism was founded and nurtured in United States of America5.

Upendera Baxi in his article post colonial legality (2004) describes constitutionalism as that

which encompasses both rule and resistance in its narrative. Constitutionalism according to him

suggests the devices of written constitution that provide for power and at the same time restraints

upon the government.

In post colonial nations like India, the written constitution exist have been made extremely

complex include provisions such as judicial review which often reflects the need for an

4 Writ Petition (civil) 257 of 2005, SCC 5 Slide share: constitution and constitutionalism

restrain instrument to meet the political order (Friedrich, 1968) is one of the trait that meets in

constitutionalism.

This restraints may include various forms which can be mechanical as well as severe which can

completely hamper or speed down the process of government functioning. In many countries

that have written constitution the procedure of amendments for changing the constitution are

invariably complicated indicated through procedural delays and approval by majority of the

house and a very detailed regulations and rights of individuals that need to be protected at the

which can be attributed to the impact of constitutionalism.

Constitution serves two purposes that can be overlapping and intertwined with one another. This

includes protection of individual rights by provisions that acts as obstacle in the way of acts that

are aimed at bringing about change in these rights by the government in majority. The other

purpose is by declaration or branding of certain action as unconstitutional and making the

process of change difficult and complex or by forming an independent committee to place its

view. This often culminates into calling for a judicial review. Therefore, judicial review is a

key feature of constitutionalism, and the term Constitutionalism is very closely associated with

the Supreme Court (Elster, & Slagstad, 1988 & 1993).

The judicial review protects the democratic processes from any partiality or deformation and

Supreme Court ensuring that the rights of citizen is protected (Ely, 1981).

Provisions for Judicial Review: Positioning, Evolution and Operationalisation:

The framers of constitution have weaved a seamless web of three interdependent pillars namely

executive, legislature and judiciary and poor or arbitrary performance by any of these branches

brings imbalance in the web and effects the functioning of other branches as well, in this context

judiciary has very important role to play especially in carrying out the check and balance of the

branch that is hampering the process of constitutionalism (Austin, 1994).

The establishment of independent Judiciary by constitution led by the Supreme Court has proved

critical for the very survival of democracy and in bringing some step forward in process of social

reforms.

The practice of judicial review began in the United States thereafter in Europe and Asia and

many post World War II constructed constitutions incorporated judicial review. The doctrine of

judicial review is explicitly incorporated in Indian constitution unlike the USA such as in

articles 13, 32,131-136, 143, 226 and 246. Art 13(2) says that “The state shall not make any law

which takes away or abridges the rights conferred by this part III and any law made in

contravention to this clause shall to the extent of the contravention be void. The courts in India

are thus under the constitutional duty to interpret the constitution and declare such laws as

unconstitutional provision ( Palkot, 2013). The Chairman of the Constituent Assembly, Dr. B.R.

Ambedakar had described the article 13 (2) as the “Heart of Indian Constitution6,” (RTW5-

11012014).

The basic structure debate of constitution culminated into relocation of power between various

branches of government. The basic structure apparently had replaced parliamentary

sovereignty and had clearly paved way for separation of powers proclaiming Judicial

supremacy in the process (Mehta, 2005) by the landmark Judgment of Keshwanand Bharti Vs

State of Kerala7.

The basic structure doctrine includes rule of law, fundamental rights, equality, democracy,

federalis , judicial review secularism as the fundamental features which cannot be messed with

(Baxi 2007). On one hand where the framers etched into the supreme law of the land an

impressive array of fundamental rights- basic human rights that constitute the ethics of the

constitution. The framers also on the other hand vested the Supreme Court with the power to

declare the law and to quash as unconstitutional any law or order that transgresses any

fundamental right, a power otherwise known as judicial review( Mehta 2005).

Supreme Court was alerted by the frequency of amendment which was portraying the

hegemony of a single party in the country during the first few decades and therefore felt that too

much meddling with constitution would destroy the basic structure and therefore Supreme Court

6 Judicial Activism under the Indian Constitution, Balakrishnan. K.G., Hon’ble Chief Justice of India, Address in Trinity College, Dublin, Ireland , October 14, 2009. 7 AIR 1973 SC 1461

spelled it clear to the government about its constitutive and legislative powers.8 Over this time,

Supreme Court also spelled it straight that the basic structure of the constitution cannot be

touched and thus established the primacy of constitution9 (Bhagwati and Dias, 2012).

Judicial review of executive actions, legislative and judicial and quasi judicial orders is

recognized as part of the basic structure of the constitution. The Supreme Court has the final

word on the interpretation of the constitution. The law declared by Supreme Court is binding

and enforceable upon all organs namely executive, legislative and judiciary10. During the first

few decades the judiciary was not taking much risk and mostly concentrated its efforts towards

promoting constitutionalism by ensuring checks and balances of power of various branches11.

The Supreme Court was also conscious of ensuring actions related to legislative review and

balancing power and privileges of parliament in aspect of making law12 and also punishing for

any contempt or misuse.13 However, evolution of judicial review gave way to new measures of

seeking justice such as Public Interest litigation (Bhagwati and Dias, 2012) in India that is

discussed briefly in the below section.

Judicial Review : Protection of Fundamental Rights - A Ray of Hope :

Article 32 and 226 of Indian constitution enables person(s) whose rights has been violated to

approach High Courts and Supreme Court directly for remedy, ratification and redressal by

means of filing writ . The sufferer can approach the court as provided in the Article 32 referred

as “the cornerstone of democratic edifice” and is part of the basic structure of the constitution

and which in itself is a fundamental right. However remedy under article 32 can be suspended

under article 32(4), 358 and 359. During emergency such remedies can be suspended but the

citizen can challenge it thereafter as soon as emergency ceases on the basis of merit of the case

and after carefully scrutiny ( Prasad, 2013).

8 Through a series of cases culminating in I.C.Golak Nath v. State of Punjab, AIR 1967 SC 1643. 9 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461 10 Justice. S. Murlidhar, Delhi High Court, The Expectation and Challenges of Judicial Enforcement of Social Rights.

11 See, e.g., C. S. Rowjee v. Andhra Pradesh State Road Transport Corporation, AIR 1964 SC 962. 12 Gopalan v. State of Madras, 1950 SCR 88. 13 Keshav Singh v. Speaker, Legislative Assembly, U.P., AIR 1965 All 349

The sufferers(s) can also approach High court under article 226 for relief in violation of

fundamental rights case. If the High court has dismissed the petition filed under article 226

after hearing, in that case, the parties can approach the Supreme Court under article 32 by rule of

Resjudicata and the ruling if passed by High Court is binding cannot be countered by a petition

filed under article 32 except for an appeal as per provision under constitution.

Over the period of time as the Supreme Court skills got polished and it matured, it started to take

bigger steps towards enabling ‘justice for all’. Earlier, the individual who suffered could

approach Court by writ. Slowly it paved the way to Public Interest Litigation (PIL). PIL was

given new name by noted scholar and jurist Upendra Baxi as Social Action Litigation (SAL)14

The SAL as Baxi observes metamorphosed Supreme Court of India to ‘Supreme Court of

Indians’. However during its experience in handling the cases, the Supreme Court came across

the challenge that the disadvantaged could not be given justice by mere locus standi where only

one individual could knock at the door of the court while the sufferers are en masse. Therefore,

to broaden the rainbow of justice and for anyone to approach court on behalf of the sufferers’

The Court opened its door to any bona fide group15 or representative (s). Further, during the

course of its gaining experience, the court also felt that in case of pro bono public and given the

situation that the sufferer may or may not have equal socio- economic status and privileges as

that of respondent to pay fee to the lawyer to get a writ filed therefore keeping within the limit

of provision of article 32 of the constitution, a simple letter addressed to judge or Court could

legitimately qualify for proceedings which is also referred as epistolary jurisdiction.16

The next challenge faced by the Supreme Court in cases of SAL was the problem of gathering

proof, which in much case was extreme. Therefore, the Court started to appoint independent

socio legal commission17 to look into the matter and report to the court. The laissez-faire

approach of the court had to be abandon in order to facilitate justice for poor and under

privileged. These socio -legal commission included judicial officers, academicians and

14 Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 4 Third World Lega l Studies 107, 108-11 (1985). 15 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, 947: AIR 1973 SC 1461, 2009 (Dwivedi, J. observed that the Supreme Court operated as an “arena of legal quibbling for men with long purses”). 16 The doctrine has its origins in the jurisprudence of the United States Supreme Court in Gideon v. Wainwright, 372 US 335 (1963). 17 See, e.g., Kamaladevi Chattopadhyay v. State of Punjab, (1985) 1 SCC 41.

government officers. For a long time, PIL and SAL have been instrumental in bringing justice

close to people who could not reach the door of law (Austin, 2005).

Constitutional Jurisprudence of Apex Court and High Courts - A Parade of Strength,

Creativity and Prudence:

The Apex Court, keeping in view the importance of fundamental rights, had stated that “the

jurisprudence and development around fundamental rights has made it clear that they are not

limited, narrow rights but provide a broad spectrum of rights which put a check against the

violations or excesses by the State authorities. The fundamental rights have in fact proved to be

the most significant constitutional control on the Government, particularly legislative power

(Dalal, 2008).

The Supreme Court and High Courts of India as per their mandate to judicial review as provided

in constitution have attempted to expand the right to life under article 21 and in this the PILs

/SALs have played a very important role ( Prasad, 2013). The scope and ambit of Article 21 right

to life and personal liberty had been enlarged both in comprehensive terms as well as magnitude.

Supreme court has taken a view that part III of the Indian constitution will be given a wider view of

interpretation as reflected by case namely Maneka Gandhi, Hussainara Khatoon18, Sunil Batra19,

M.H.Hoskot20. Maneka Gandhi Vs Union of India case post emergency was a landmark case in

expanding the scope of article 21 to include various aspects and facets of life. The Francis

Coralie Mullin v The Administration21 case ruling read “the right to life includes the right to live

with human dignity and all that goes with it namely bare necessaries of life such as adequate

nutrition, clothing, shelter and facilities for reading, writing and expressing oneself in diverse

forms, freely moving about and mixing and commingling with fellow human beings. The

magnitude and components of these rights would depend upon the extent of economic

18 Hussainara Khatoons NO. I vs. Home Secretary, State of Bihar AIR 1979 SC 1360 19 Sunil Batra (I) vs. Delhi administration AIR 1978 SC 1675 20 M.H.Hoskot vs. State of Maharashtra AIR 1978 SC 1548

21 1981 AIR 746 1981 SCR (2) 516// 1981 SCC (1) 608 1981 SCALE (1)79

development of the country but it must in any view of the matter include the bare necessities of

life and also the right to carry on such functions and activities as constituted the base minimum

of the human self.”

The constitutional jurisprudence in India has improved due to the creative and expansive

interpretations and ruling given on part of fundamental right covered under article 21 as this

resonates into the meaning of quality of life.

Connecting Life to Water: The Basics thus Underlined:

Water is life. It has been often referred to as “elixir of life.” It needs to be noted that Successive

local governments have failed to provide basic amenities such as access to drinking water to

several localities in urban as well as rural locations despite the fact the Constitution of India has

empowered and has given the responsibility to Urban Local Bodies under 243W (ii) in 12th

schedule (5) through water supply for domestic, industrial and commercial purposes to Urban

Local Bodies and to Panchayat under 243G (a) in 11th schedule (11) i.e. Drinking water under

Parts IX and IXA of the Constitution incorporated by the now famous 73rd and 74th

Amendments to the Constitution of India that were brought into effect in 1993.

Water supply and sanitation was recommended by Bhore Committee (1946) and was further

elaborated in 1949 by Environmental Committee. It was in 1954 that Central Government

provided assistance to states as water is the state subject for establishment of a special

investigation division during fourth five year plan to identify problem villages for supply of

water. For upgrading the urban water supply, funds were given under JNURM.

Since independence the policy of government on drinking water supply has undergone several

changes. Initially the thrust was on creating physical infrastructure such as hand pump. The

thrust shifted to bring in community participation since 1999 on words to maintain the drinking

water sources. It was in 1987 that the first policy came into existence namely National Water

Policy which was revised in 2002-03 and again in 2012. In 2006, the Government of India

launched the National Rural Drinking Water Quality Monitoring and Surveillance Programme in

order to test the quality of rural drinking water. The National Rural Drinking Water Programme

(NRDWP), was provided with Rs 39,490 Crore in the Eleventh Plan and still a huge gap exist

especially in hilly terrains.

Problem observed on the supply side is that provision of water supply is distributed to wide

number of agencies across the country and varies from state to state and inter departmental as

well as sectoral issue curb the water supply especially due to lack of coordination and

prioritization.

The drinking water supply is affected not only by availability and accessibility but also in terms

of quality by both point and non-point sources of pollution which includes discharge from

industries, sewage and agriculture runoff. Natural calamities such as flood and drought also

affect quality and quantity of water supply. Although since 2000 there has been increased

emphasis on safe drinking water however the latest NSSO survey conveys that there is long road

to be covered22. The Indian context involves the fundamental right of access to safe drinking

water has been relying on judicial review and interpretations rather than legislative action

(Narain, 2010).

So far the judgments of the Supreme Court and High courts of India time and again in their

interpretations and rulings have recognized the right of access to safe drinking water under

article 21 of the Indian Constitution i.e. the rights to life and by non justifiable source through

article 39 (b) contained under directive principle for state polices which says that state shall

direct its policies to ensure access to drinking water.

Fundamental right of access to safe drinking water has judicially evolved by the rulings of

Supreme court and High Courts23 (Prj-ic). Over a period of time, there has been growing body

of ruling and verdicts on expansion of right to life to right of access to safe drinking water.24

22 Water aid, Drinking water quality in rural India: Issues and approaches, Background Paper (www.wateraid.org)

23 Videh. Upadhaya, Water Rights and the New Water Law in India: Emerging Issues and Concerns. 24Wasim Ahmed Khanv. Govt. of AP, 2002 (5) ALT 526 (D.B.); Mukesh Sharma v. Allahabad Nagar Nigam & Ors., 2000 ALL. L.J. 3077; Diwan Singh and another, v. The S.D.M. and other 2000 ALL. L.J. 273; S.K. Garg v. State of UP. 1999 ALL. L.J.332; Gautam Uzir & Anr. v. Gauhati Municipal Corpn. 1999 (3) GLT 110

The rulings on cases that have come of Delhi and other states’ Court have given view such as 25i

“Water is a gift of nature. Human hand cannot be permitted to convert this bounty into a curse,

oppression. The primary use to which the water is put being drinking, it would be mocking the

nature to force the people who live on the bank of a river to remain thirsty, whereas others

incidentally placed in an advantageous position are allowed to use the water for non-drinking

purposes26.”

Under article 21, the states are duty bound to provide its citizen clean drinking water as right to

access to drinking water is fundamental need of life as inherent in this broad fundamental right to

life. Apex Court ruled that “Drinking water is of Primary importance in any country” in APPCB

vs M.V. Naidu case27 . Supreme Court made an observation in this case that water is the basic

need for the survival of human beings and is part of the Right to Life and Human Rights as

enshrined in Article 21 of the Constitution of India (Prasad, 2013).

In Guwahati Municipal Corporation case28 which related to scarcity and poor quality water the

Court made it clear that “water and clean water is so essential for life needless to observe the fact

that it attracts the provision of article 21” when the respondent filed a counter affidavit saying

that the Corporation is facing financial crunch and therefore it is unable to meet the demand. In

case of Allahabad Nagar Nigam29 the Allahabad High Court had used the ruling of Supreme

Court that “need for decent and civilized life includes right to food, water and decent

environment”. In yet another case of Allahabad high court had order to set up a committee to

25 Delhi Water Supply & Sewage Undertaking and Another v State of Haryana and Others (1996) 2 SCC 572. In F K Hussain v Union of India AIR 1990 Ker. 321and Attakoya Thangal v Union of India (1990)1KLT 550, the Kerala High Court held the right as part of Article 21. See also Subhash Kumar v State of Bihar AIR 1991 SC 420; M C Mehta v Kamal Nath (1997)1 SCC 388; AP Pollution Control Board v M V Naidu and Others (1999) 2 SCC 718; State of Karnataka v State of Andhra Pradesh 2000 (3) SCALE 505. 26 (IELRC.ORG)

27 2001 (2) SCC 62. 28 Gautam Uzir & Anr. v. Gauhati Municipal Corpn. 1999 (3) GLT 110 29 Mukesh Sharma v. Allahabad Nagar Nigam & Ors., 2000 ALL. L.J. 3077

look into the matter and develop measures on war footing basis30 to resolve it based on the

ruling of Supreme Court in which it observed that drinking water use is the most beneficial use31

of water it cannot be made subservient to other uses. In case of Wasim Ahmad khan vs Andhra

Pradesh government32 , the court observed that right of access to safe drinking water cannot be

denied to citizen even in case of paucity of fund.

Citizen in India qualify for enjoying the right to safe pollution free water. The instance of cases

that came before Supreme court for e.g. Ratlam Municipality vs. Vardhichand33. The Apex

Court ordered the municipality of Madhya Pradesh government to ensure drainage and sanitation

facility for accessibility of pollution free water despite the respondent conveying its disparity due

to budgetary constraint (Prasad, 2013).

The Less Travelled Road: from Rulings to Action – A Crater in Constitutionalism:

India is party to UN resolution on water passed in 1977 during UN conference on water , which

read as “All people whatever their stage of development and their social and economic

conditions, have the right to have access to drinking water in quantum and of quality equal to

their basic needs” (Prasad, 2013).

General Comment 15 on the right to water by UN Committee on Economic, Social and cultural

rights which reads as “right to water (that) entitles everyone to sufficient , safe , acceptable,

physically accessible and affordable drinking water for personal and domestic use34. Based on

this, in 2006 UNDPs human development report recommended the countries that they should

make water a human right.

30 Further, the Court said that since the matter involved technical expertise, the committee should consult experts also in this regards. If any complaints were made by the citizens of any locality that they were not getting water, the committee would look into it and do the needful. See para 9 in S.K. Garg v. State of UP1999 ALL. L.J. 332.

31 Delhi Water Supply and Sewage Disposal Undertakingv. State of Haryana, (1996) 2 SCC 572: AIR 1996 SC 2992

32 Wasim Ahmed Khan v. Govt. of AP, 2002 (5) ALT 526 (D.B.); 33 AIR 1980 SC 1623 34 U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc., & Cultural Rights,Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social andCultural Rights, ¶ 2, U.N. Doc. E/C.12/2002/11 (Jan. 20, 2003) [hereinafter ECOSOC], available at http://www.unhchr.ch/tbs/

The provision of judicial review is modus vivendi i.e. a temporary political arrangement (Mehta

2005) in case of right of access to safe drinking water. India still belongs to the category of

nations which do not have explicitly mentioned right of access to safe drinking water in the

constitution. The most nearest, we have got to include a fundamental right of access to safe

drinking water was in the report of National Review Commission on Constitution in 2002

which had taken the view and grounding from the various court ruling that have been passed in

India to safeguard this fundamental right35.

So far interpretation provided by the judiciary is the only means of respite to ensure this right

and the action in many of the cases either do not culminate to execution on ground of orders

given by court or forgiven or forgotten. It should go without saying that one should not very

easily link the aspect of judicial review and interpretation of rights to the process of

constitutionalism. Although courts with ease associate and expand the meaning of right to life to

safe access to drinking water however it does not mean that the same is enforced on the

authorities. When we look at the nature of various judgements and ruling under this category of

right of access to safe drinking water, we observe a very ideological and philosophical way of

pronouncing the order which although sound very good but in spirit do not force the violators of

the rights to provide for compensation for the sufferings or take actions on the fact with

immediate action or in mission or war footing mode despite the fact that "Without water anyone

will run into problems pretty quickly. Their blood volume will shrink and their water and

electrolyte balance will be upset as f per report36. Judiciary has played a role of negotiator than

a corrector. There is little evidence that judicial intervention has led to better enforcement of

rights (Mehta 2005). This is the role of the judiciary as purely one of resolving disputes between

parties and rather than the prescription of actions which could address the crisis.

Supreme Court of India had been extremely forth coming in the last few decades about

constitutional interpretation through judicial review and has very creatively read the right to

water under right to life and have used and referred various international example of law to

analyze this socio- economic rights. However, despite its progressive jurisprudence of the 35 Videh. Upadhaya, Water Rights and the New Water Law in India: Emerging Issues and Concerns.

36 http://www.theguardian.com/science/2005/dec/03/thisweekssciencequestions.uknews

fundamental right to life , there are rarely any example that make the case for the fact that state

has been able to enforce the judicial decisions or initiate any litigation at level of its domestic

boundary that can unite with International law obligations which is reflected by the fact that

nearly half the rural households do not have access to Safe drinking water as per (NSSO, 2012

) study despite judicial injunctions by the constitutional compulsion (Narain, 2010) .

Judiciary being unelected body is not accountable to the people through any institutional

mechanism. Skeptism is also voiced against judges using their personal discretion to grant

remedies in areas in which they have no expertise. With respect to inherent values written

constitution that also incorporates judicial review- Justice Ahron Barak said “ to maintain real

democracy and to ensure a delicate balance between its elements a formal constitution is

preferable…..”

Although Supreme Court has reviewed and expanded its locus standi in such matters related to

safe drinking water and other environment related issues by allowing PIL .However as stated

earlier despite its prudent and creative ruling, supreme court faces the problem of investigating

as to how the matter has been tackled by the authority which have been ordered to do so by the

Court. And much thought and effort has not gone in this direction (Prasad, 2013).

Therefore, it is necessary that individuals and groups that suffer or fight in the cause of sufferers

should not merely content with the court order but built in some feedback mechanism for the

Court to learn about the actions undertaken in light of its order so that court can then issue show

cause notice to the state authorities responsible for contempt (Bhagwati and Dias, 2012)

To put it in words of Charles Epus: “the Indian Supreme Court clearly tried to spark a right

revolution but nothing happened ” we do not see a feedback mechanism that is a indicator of

institutionalizing constitutionalism(Mehta 2005) . So far judiciary has failed using this tool

and therefore the process just by judicial review do not ipso facto conform to the case of

constitutionalism in India. Despite a evolving and developed jurisprudence (Narain, 2010). India

still has big challenge in providing and ensuring this right as a lot of customary law and power

influence local level action.

References:

Austin. Granville., 2005, The expected and the unintended in working a Democratic Constitution, in Hassan. Zoya., Sridharan. E., Sudarshan. R.,(ed.) India’s Living Constitutionalism- Ideas, Practices, Controversies. pp. 446.

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