Original Link: https://sandrp.wordpress.com/2015/01/19/state-must-ensure-water-accessibility-to-all-bombay-hc/
Blog by Debadityo Sinha (debadityo@gmail.com) (with inputs from Himanshu Thakkar (SANDRP))
In a landmark judgment dated Dec 15,
2014, Mumbai High Court bench of Justices Abhay S Oka & A S Gadkari
have ruled: “Right to get water is an integral part of right to life
under Article 21 of the Constitution of India…”
A rejoiced Sitaram Shelar[1]
of petitioner Pani Haq Samiti noted in press release on the day of the
judgment, “Reinforcing the intrinsic relationship between water and
life, the judgment established that the right to water is as fundamental
as the right to life… Pani Haq Samiti will continue the struggle
towards ensuring that those living in slums access their right to
water.”
Through this case, the apathy of the
middle class and a few mainstream political parties towards those living
in slums has become evident. Adv Mihir Desai representing Pani Haq
Samiti has been instrumental in reinforcing the fact that water is a
right and cannot be seen within the purview of slums and illegality
alone. Samiti says: “For all those fighting for the right to water in
the country, this is a historic judgment. This is the first time that it
has been stated that in order to realise Article 21, access to water is
essential. Till date there has been no law in India that mandates water
to all. The judgment is a great impetus to movements across the country
fighting for the basic rights of people.”
 |
| Slum dwellers collecting water from a water tanker (Source: India Water Portal) |
The impact of lack of water has impacted
both, people as well as the MCGM. Negative impacts of the lack of water
supply that have been borne by the Corporation include: an increase in
the amount of unaccounted for water (UWF); emergence of the water mafia
through which illegal connections and leakages increased; increased
contamination of water lines; lastly, revenue that could be earned by
the MCGM was being pocketed by the water mafia. Various studies
conducted by YUVA, TISS and other organizations on the impact of lack of
access to water in slums has found that: Access to water has been only
through the water mafia; while buildings are provided 1000 litres of
water for Rs 4, the water mafia charge Rs 1000 for 1000 litres of water
in slums – water has become a financial burden as 30 to 40 percent of a
family’s income was spent on water.
Slums Indian cities While
the cities of India are undergoing a transition phase in the form of
rapid developments of modernized apartments, industries and commercial
complexes, the ingress of labor and job seekers from other parts of the
country, added to the fact that availability of land is now a highly
contested resource – the urban areas has seen a prolific development of
the informal settlements or the slums.
 |
| Slums water source data map from 2011 census |
As per census of India, “Slum” has been
defined as residential areas where dwellings are unfit for human
habitation by reasons of dilapidation, overcrowding, faulty arrangements
and design of such buildings, narrowness or faulty arrangement of
street, lack of ventilation, light, water or sanitation facilities or
any combination of these factors which are detrimental to the safety and
health. 17.4% (137 lakhs) of Indian households are slum, out of which
only 49.65 lakhs of households are ‘Notified Slums’ as per the latest
census of 2011.
In many Indian cities and towns facing
the challenges of increasing populations and expansion of urban areas,
direct access to clean, affordable, and reliable drinking water is a
significant challenge, especially to the poor who lives in slums. A per
the WHO-UNICEF Joint Monitoring Program’s Report of April, 2014, only
51% of the urban households have coverage of piped onto premises supply
of drinking water and 46% are covered by other improved sources.
Most of the slum dwellers in Mumbai lack
the basic necessities of life. Despite the fact that many slums have
been notified by the government, one tap is shared by more than thousand
persons in some of the slum compared to an average of 52 persons per
tap.[2]
The number of slums in Mumbai which came up after the year 2000 were
officially prevented from provision of Municipal water supply.
In 2012, a Public Interest Litigation (no 10 of 2012) was filed by Pani Haq Samiti[3]
and others (vs Brihan Mumbai Municipal Corporation and others) in the
Bombay High Court challenging the State Government Circular dated 4th
March, 1996 which provides that the Local Authorities shall ensure that
the water supply is not released to any unauthorized constructions. .
On the basis of this circular, the Municipal Corporation of Greater
Mumbai (MCGM) prohibited regularized water connections to nearly 30 lakh
people living in post 1995 slums the city. The petition also challenged
a rule framed by Mumbai Municipal Corporation which initially provided
that the water shall be made available to the structures in existence in
slum areas till 1st January 1995, deadline of which is extended till 1st January, 2000. The question was whether the slums which illegally came up after 1st January, 2000 are entitled for water supply or not?
 |
Sawda Ghevra village water kiosk in North West Delhi (Source: The Hindu)
|
The State Government, however, in their
reply stated that there is nothing illegal in the policy of State
Government not to grant water supply to residents of illegal slums since
the same is being done as State does not want to encourage the
construction of such illegal sums and people occupying such illegal
slums. The State Government showed concerns that any relief to the
petition would mean encouraging the construction of the illegal slums,
some of which are in difficult areas of the city like hills where
provision of water supply is impossible for the Municipal Corporation.
The concerns of encroachment of CRZ areas and forest lands by slums were
specifically pointed out to the court and argued that it will lead to
irreparable damage to the environment.
In a Chamber Summons filed in support of
the contention that the notion that criminals or anti-social elements
are staying in the slum areas is without any foundation, the fact that
around 4,426 constables and 81 Inspectors of Mumbai Police lives in
Slums as per April, 2006 data also came into light. The occupants of
post 1st January 1995 slums include employees of Government
itself as well as the employees of the Municipal Corporation and other
Authorities.
Throwing light on the fact that the
Municipal Corporation is supplying water to the unauthorized occupants
to the buildings in Mumbai which do not have occupation certificates or
completion certificates on humanitarian grounds, the judgment observed,
‘Humanitarian considerations are applied to only a category of
unauthorized occupants. The unauthorized occupants of constructed
buildings are protected by providing water supply, but not the persons
residing in slums. We are mentioning this only to point out the approach
of the Municipal Corporation.’
‘In a situation where State Government
encourages the creation of jobs, allows the bringing in of migrant
labour and work force, makes the city of Mumbai and attraction for
job-seeker, the State has done nothing to provide low cost housing in
the city’, the judgment quoted a para from the application.
Defining the limitation of Article 21 of
Constitution of India to protection of such illegal constructions, the
Court stated that the Authorities are under legal obligation to ensure
that the illegal constructions do not come up and if they come up the
same are effectively and expeditiously demolished by following the due
process of law. But, State cannot deprive a citizen of his fundamental
right to food and water which is an integral part of the right to life
guaranteed under Article 21 on the ground that he is in occupation of an
illegally constructed hut.
| S.No. | Million Plus Cities | Proportion of Slum HHs to Total Urban HHs (%)[4] |
| 1 | Greater Visakhapatnam M Corp. | 44.1 |
| 2 | Jabalpur Cantt (CB) | 43.3 |
| 3 | Greater Mumbai (M Corp.) | 41.3 |
| 4 | Vijayawada (M Corp.) | 40.6 |
| 5 | Meerut (M Corp.) | 40 |
| 6 | Raipur (M Corp.) | 39 |
| 7 | Nagpur (M Corp.) | 34.3 |
| 8 | Greater Hyderabad M Corp. (GHMC) | 31.9 |
| 9 | Kota (M Corp.) | 31.8 |
| 10 | Agra (M Corp.) | 29.8 |
| Top 5 States reporting Slum Households | |
| State | Proportion of Slum HHs to Urban HHs (%) |
| Andhra Pradesh | 35.7 |
| Chhattisgarh | 31.9 |
| Madhya Pradesh | 28.3 |
| Odisha | 23.1 |
| West Bengal | 21.9 |
While the court directions are certainly a
landmark judgment which provides the Right to Water as an integral part
of the fundamental right under Article 21 of the constitution, but it
may not be of any help in eradication of the ‘Water Poverty’ taking into
account the situation of slums in Mumbai. The court directions have
made it clear that the provision of water supply to such illegal slums
may not be as par with the law abiding citizen who is occupying lawfully
constructed premises having occupation or completion certificate. It
has further stated that the Municipal Corporation is free to provide the
water at higher rate than the rate which is charged from authorized
construction, which means the slum residents may need to pay higher
rates for the water.
In cities like Delhi, the informal
settlements depend on community level sources of water supply like
community stand posts, hand pumps and tankers. The tankers are one of
the major water supply sources but have no fixed timing. The households
dependent on hand pumps have 24 hours of water supply but the quality of
water is poor due to contamination of groundwater. Households depended
on community level water supply have to spend more than one hour to
fetch water, many times wasting their sleep as the duration is early
morning or late night hours. But there is a high level of readiness to
pay if provided improved services.[5]
In such scenario the emphasis by the
court for provision of drinking water through public booths on the basis
of prepaid cards might be an alternative option for such areas. But it
must be ensured that the water supplied by the Municipal Corporation is
affordable, reliable in quality as well as accessible to all the
households.
Many cities of India like Delhi,
Bangalore and water scarce towns like Barmer in Rajasthan are already
under the implementation stage of such water booths and the drinking
water is provided 24 x 7 at rate of Rs. 5 per 20 liters of water. Last
year Delhi Jal Board, the government authority responsible for providing
water to Delhi colonies initiated installation of water kiosks in
several slums and resettlement colonies with an initial rate of 30 paise
per liter.[6],[7]
But most of the households still prefer the DJB tankers instead of the
water kiosks for day to day work, largely due to the cost involved which
is otherwise free in case of tankers.[8]
The judgment provides a just basis for
the smart cities that the government is trying to push. It is indeed
possible to have smart cities without cities being dependent on mega
dams and river linking projects[9]. Such mega dams or river linking projects are neither necessary nor just.
The Pani Haq Samiti Press statement
noted, “Restating that water supply is mandatory despite the legality of
structure, the Court ordered the MCGM to submit a water supply proposal
on or before February end 2015. As an advice to the MCGM, the Court
reiterated a Pani Haq Samiti suggestion that could be included in the
proposal, i.e. instead of providing individual connections, group
connections could be provided for every 7-15 families as per MCGM water
rules. This would help in management of water supply to all areas.” The
order adds: “We direct the Municipal Corporation to file an affidavit of
compliance on or before 2nd March 2015.”
The judgment can have far reaching implications not only for slum dwellers of Mumbai, but millions of others all over India.
FOR FULL HC JUDGMENT,
SEE: http://bombayhighcourt.nic.in/generatenewauth.php?auth=cGF0aD0uL2RhdGEvanVkZ2VtZW50cy8yMDE0LyZmbmFtZT1PU1BJTDU5MTEucGRmJnNtZmxhZz1O.
For Hindi translation of the
above blog by Rehmat of Manthan Adhyayan Kendra and critical comment by
Dunu Roy, see the comments section below.
This article republished
at: http://counterview.org/2015/01/23/recent-mumbai-high-court-direction-suggests-that-the-right-to-water-is-an-integral-part-of-the-fundamental-right-under-article-21/
[1] He is also Program Director (Maharashtra) of YOUTH FOR UNITY & VOLUNTARY ACTION (YUVA).
[2] Slum Conditions in Mumbai with Reference to the Access of Civic Amenities, IIPS Mumbai, ENVIS center, Volume 5, No. 1, March, 2008
[3] A collective of activists, organizations, institutions and slum dwellers)
[4] Housing Stock, Amenities & Assets in Slums- Census, 2011, Dr. C. Chandramouli, Registrar General & Census Commissoner, India
[5] Profiling Informal City of Delhi, Water Aid, 2005
[6] http://indianexpress.com/article/cities/delhi/draw-water-from-atms-for-30-paise-under-delhi-jal-boards-new-initiative/
[7] http://www.dnaindia.com/india/report-500-water-atm-s-proposed-in-delhi-city-2003173
[8] http://www.thehindu.com/news/cities/Delhi/not-many-takers-for-water-kiosks/article5950438.ece
[9] https://sandrp.wordpress.com/2015/01/13/water-smart-mumbai-open-letter-to-cm-devendra-fadnavis/
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