Author: Samarth Jeet, Geeta Institute of Law, Panipat
To the Point
Article 21 of the Constitution of India recognizes the right to water as a consequence of the fundamental right to life. Judicial interpretations by the Supreme Court have established that access to clean, safe, and adequate water is intrinsic to the right to live with dignity. Yet, in the real world, this right remains far from accessible to large sections of the population. India is grappling with an unprecedented water crisis—both in quantity and quality. Cities like Chennai and Bengaluru have faced severe water shortages, while rural India still lacks assured access to piped water. Urban slums depend on tanker mafias, and the poor are disproportionately impacted. Water contamination through industrial effluents, unsafe sanitation practices, and untreated sewage further compromise health, especially for women and children.
Despite progressive schemes such as the Jal Jeevan Mission and AMRUT, implementation remains patchy due to infrastructural deficits, poor planning, and lack of accountability. Furthermore, policy fragmentation between central, state, and local bodies hampers effective regulation and distribution. There is no uniform legal code in India that treats access to water as a justiciable and enforceable right. Consequently, the legal acknowledgment of the right to water as fundamental does not guarantee its actual delivery. The failure to transform judicial principles into statutory law and actionable policy continues to widen the gap between constitutional promise and grassroots reality.
Abstract
Water is fundamental not only to survival but also to leading a life of dignity, health, and well-being. The right to water is not specifically recognized by the Indian Constitution. Nonetheless, under Article 21, the judiciary has interpreted the “right to life” to include the right to sufficient and safe water. This judicial innovation has expanded the scope of fundamental rights to incorporate environmental and socio-economic dimensions. In spite of this legal recognition, the practical application of the right to water remains laughable. Millions in both rural and urban India continue to suffer due to poor water quality, inequitable distribution, groundwater depletion, and privatization pressures.
The article critically analyses decisions by courts, evaluates current policy initiatives, and investigates the development of the right to water within the parameters of paper 21. It identifies serious gaps in implementation and highlights the absence of an enforceable national legal regime guaranteeing water access. The article calls for the development of a comprehensive, rights-based water law that not only aligns with constitutional values but also integrates principles of sustainability, equity, and intergenerational justice. Through a blend of legal analysis and policy critique, it underscores the urgent need for India to shift from a welfare-based water delivery model to a rights-based governance system.
Use of Legal Jargon
The right to water is classified as a derivative right, meaning it is not expressly written into the Constitution but has evolved through judicial interpretation of the right to life under Article 21.
Over the decades, the Indian judiciary has used this brief but powerful provision to expand the scope of fundamental rights through the lens of substantive due process, a doctrine that ensures laws must not only follow fair procedure but must also be just, fair, and reasonable in content. As a result, socio-economic rights, such as the right to health, right to a clean environment, right to livelihood, and right to shelter, have all found refuge under Article 21. The right to fresh drinking water logically comes from these understandings, specially as water is essential for life, dignity, and wellbeing.
The Public Trust Doctrine, which requires the State to manage natural resources like water for the general public’s benefit, has also been used by courts. Under this doctrine, the State acts as a trustee and cannot allow exploitation or privatization that undermines public access. The Precautionary Principle and Polluter Pays Principle, borrowed from international environmental law, are also applied to ensure water resources are not degraded by industrial or governmental negligence.
Furthermore, intergenerational equity has emerged as a guiding principle, emphasizing the duty of the present generation to preserve water resources for future generations. The Directive Principles of State Policy—particularly Articles 39(b) and 47—though non-justiciable, further reinforce the State’s duty to ensure equitable distribution of resources and improve public health through access to clean water.
The lack of a codified Water Rights Act results in a justiciability gap—while the courts have recognized the right, individuals lack a specific statute through which they can claim or enforce this right without extensive litigation. This calls into question the positive obligations of the State to take legislative, administrative, and financial measures to fulfil the right to water.
In short, the constitutional jurisprudence around Article 21 establishes a solid legal foundation for the right to water, but in the absence of statutory embodiment and institutional enforcement, it remains largely a declaratory right rather than a guaranteed entitlement.
The Proof
India’s water crisis is not just environmental or infrastructural—it is deeply constitutional. Despite the judiciary’s efforts to enshrine the right to water within Article 21, the failure of policy mechanisms and institutional support has left millions without adequate access to clean water. Nearly 600 million Indians experience high to extreme water stress, and 200,000 people lose their lives each year as a result of not having access to safe water, according to “the NITI Aayog’s Water Management Index 2019.” By 2030, India’s water demand is expected to double the available supply, implying severe water scarcity for hundreds of millions of people and a potential 6% loss to GDP.
By 2024, “the Jal Jeevan Mission which was begun in 2019, seek out to supply tap water to all rural household.” Although household coverage has increased from 17% in 2019 to over 68% by 2023, there are still significant differences between states and districts. States like Goa and Telangana report near-universal coverage, while others like Uttar Pradesh, Jharkhand, and West Bengal continue to lag. Furthermore, functionality is a major concern—many of the taps do not deliver water regularly or are connected to unsafe or unmonitored sources.
Groundwater, which supplies over 60% of irrigation and 85% of drinking water in rural India, is rapidly depleting. The Central Ground Water Board (CGWB) reports that “critical” or “over-exploited” groundwater levels have been detected in 256 Indian districts. In many urban areas, the water table is dropping by up to 1 meter annually. Cities like Chennai and Bengaluru have experienced full-blown crises, where millions were left dependent on tankers and water ATMs. Ironically, both cities receive adequate annual rainfall but lack effective rainwater harvesting, wastewater recycling, and storage mechanisms.
In rural regions, caste discrimination and gender disparities often decide who gets access to water. Dalit communities are frequently denied entry to public water sources, and women walk long distances—sometimes over 5 kilometers daily—to fetch water, compromising their education and health.
In the absence of a central water rights law, water continues to be governed by a fragmented legal and institutional regime—divided among the Environment Protection Act (1986), Water (Prevention and Control of Pollution) Act (1974), state-level irrigation laws, and municipal by-laws. The result is legal confusion, overlapping jurisdictions, and a lack of accountability. Most importantly, the absence of justiciable water rights means the poor and marginalized cannot claim water access through legal means unless they invest time, money, and legal aid to approach constitutional courts.
Case Laws
Subhash Kumar v. State of Bihar, AIR 1991 SC 420 According to the Supreme Court, the right to fresh water is a component of the right to life guaranteed by Article 21. In this case, the petitioner highlighted industrial pollution in the Bokaro river, which the Court found to be hazardous to public health. The judgment marked a pivotal moment where environmental rights were recognized as part of fundamental rights.
A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718
This landmark judgment emphasized the need for scientific expertise in environmental decision-making. The Court elaborated that water is not merely a commodity but part of life-supporting ecology. It underscored that the State has a duty to protect water resources under the public trust doctrine and that environmental concerns must take precedence over short-term economic gains.
Conclusion
The Indian legal landscape provides a strong constitutional foundation for the right to water, yet the realization of this right remains aspirational for millions. Judicial pronouncements have broadened Article 21 to include access to water, but in the absence of a codified legal framework, this right cannot be effectively claimed or enforced. The fragmentation of water governance between central, state, and local bodies, combined with outdated laws, insufficient funding, and lack of political will, continues to obstruct the practical enjoyment of this right.
To bridge the implementation gap, India urgently needs a comprehensive national Water Rights Law—one that makes the right to water justiciable, defines minimum entitlements, regulates both surface and groundwater use, and holds duty-bearers accountable. Such a law must prioritize vulnerable populations, ensure non-discrimination, and integrate community participation in water governance. Additionally, climate resilience, intergenerational equity, and environmental sustainability must form the pillars of this new legal architecture.
Other countries have already moved in this direction. South Africa, for instance, has enshrined the right to sufficient water in its Constitution (Section 27). India, with its rich constitutional traditions and active judiciary, has the moral and legal groundwork to lead the way in South Asia. The time has come to give full legal shape to the right to water—not just as a principle, but as a guarantee enforceable by every Indian.
FAQs
Q1. How does caste and gender affect access to water in India?
Social hierarchies often determine water access. Dalits may be barred from common sources in villages, and women bear the burden of collection, affecting health, safety, and education.
Q2. Can denial of access to water be challenged in court?
Yes. Individuals can approach High Courts under Article 226 or the Supreme Court under Article 32 if they are denied access to clean, safe, and adequate water, citing a violation of Article 21.
Q3. What is the Public Trust Doctrine in relation to water?
It is a legal principle where the State is seen as a trustee of natural resources like water and must manage them for the benefit of the public, not for private exploitation.
Q4. How does the Jal Jeevan Mission relate to the right to water?
The Jal Jeevan Mission aims to provide piped water supply to every rural household. While it operationalizes the right to water, it does not create a legal obligation or justiciable entitlement.
