Opinion Menaka Guruswamy writes: Can water be privatised?

Pedro Arrojo-Agudo, the UN Special Rapporteur on the human rights to safe drinking water and sanitation responded to this by stating that “you can’t put a value on water as you do with other traded commodities. Water belongs to everyone and is a public good.” He added, “I am very concerned that water is now being treated as gold, oil and other commodities that are traded on Wall Street futures market.”

The Special Rapporteur’s concerns were that if water was traded as a futures commodity, then hedge funds, banks, large industrial and agricultural players would buy into it and marginalise vulnerable sectors of the economy like small-scale farmers. According to Al Jazeera, these water futures options were announced in September 2020 when heat and wildfires ravaged the West Coast of the US.

Water is probably the most increasingly scarce and yet eternally indispensable resource for the human species. That its scarcity would result in efforts to trade it or privatise its supply is unsurprising. After all, humans have, through their ingenuity, put a premium or high price on scarce natural resources. Think oil, gold and diamonds. However, water is different. Water scarcity is caused by the overuse of groundwater, climate change, a warming planet and rapid migration to already overpopulated large cities. The UN 2023 World Water Development Report notes that 26 per cent of the world’s population does not have access to safe drinking water.

India is not exempt from water scarcity. The World Bank explains that India has 18 per cent of the world’s population, but only four per cent of its water resources, making it among the most water-stressed in the world.

Given its increasing scarcity, how then do we control access and distribution of water? What is the protection from waters being traded or privatised beyond the reach of those who cannot afford high prices? Water and access to water is an issue that has occupied the minds of the drafters of the Constitution as well as the judges of the Supreme Court.

Water disputes were constitutionally envisaged during the founding of our Republic. Article 262 of the Constitution provides that Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of any inter-State river or river valley. Hence, Parliament enacted the Inter-State Water Disputes Act, 1956 which provides for the constitution of Water Disputes Tribunals that will hear complaints by various state governments against each other. Such disputes may arise out of the use, distribution, or control of water that flows between states.

States have triggered this water disputes statute such as the dispute between Tamil Nadu and Karnataka which resulted in the Cauvery water disputes tribunal being established in 1990. This tribunal delivered its final verdict in 2007.

Not satisfied with the outcome, the parties were soon at the SC which arrived at a distinct verdict using different parameters to determine water allocation for each state.

The Court has often engaged issues of distribution of water. In Narmada Bachao Andolan v Union of India (2000), the Court concluded that water is part of the right to life enshrined in Article 21 of the Constitution. Subsequently, in A.P. Pollution Control Board II v Prof. M.V. Nayudu (2001) the apex court declared that it is the duty of the state under Article 21 to provide clean drinking water to its citizens. What the Court and the Constitution did is that they established a fundamental right for every Indian to access safe and clean water. This may be the eventual bulwark against pricing water outside the reach of the average Indian.

In India, water pricing is determined by states in terms of the mandates of their respective municipality frameworks. There is no central authority for the regulation of water pricing. What we do have is a Constitutional principle regarding the distribution of natural resources. Water would fall within this category of natural resources. Article 39 of the Constitution in the Directive Principles of State Policy chapter provides that the state shall direct its policy towards securing that the ownership and control of material resources of the community are so distributed to subserve the common good.

There is a strong movement to privatise water supply called “water sector reforms”. In 2010, Manthan Adhyayan Kendra in its report Water: Private Limited noted that “water sector reforms” would involve “processes like unbundling, independent regulatory authority to free the sector from ‘political interference’, increasing tariffs, retrenchment, full cost recovery, elimination of subsidies, cutting off supplies for non-payment, removal of public standposts, public-private partnerships, allocation of water to highest value use through market mechanism.”

The future of water must not be that it is simply unaffordable to many of our species. For when water is traded or privatised out as a scarce commodity and not treated as a constitutionally protected natural resource to be distributed for the larger common good, then thirst will be the norm and quenching it unaffordable for many.

The writer is a senior advocate at the Supreme Court