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Human Right to Water and Climate Change: Critically Examining Legal Frameworks in India

Birsha Ohdedar explores the links between climate change and human rights in the context of access to water in India.

In May this year, the desert areas of the western Rajasthan reached nearly 50 degrees. Climate change is increasing temperatures and rainfall variability in the region. At 50 degrees, the intensity of heat permeates through every aspect of life. The harshness of the sun affects daily lives of millions. Roads and infrastructure can literally melt.

Most significantly during a hot and dry summer, water shortages occur impact water. Wells and ponds dry up. Groundwater tables are already low in most areas of Rajasthan, if not saline or polluted. Government supplied water through taps also face significant shortages.

About 2000 kilometres across India, in the Sundarbans delta of West Bengal, land and water straddle together. Millions live on low-lying islands enveloped by river and sea. However, the brackish nature of the water means drinking water remains scarce. Groundwater has also rapidly decreased in recent years. Floods and tidal surges are a part of everyday life that can wash away houses, crops, and contaminate water sources. Climate change remains at the forefront of people’s lives. Communities live knowing that a single storm or cyclone can change things forever.

While the two areas are strikingly different in their geography and environment, both share a number of similarities. First, both are at front lines of climate change, identified as two of the most vulnerable regions in the country. Second, both areas face significant issues related to potable drinking and livelihood water. Third, both have overexploited groundwater tables. Fourth, both areas have high levels of poverty and inequality.

These factors make these distant areas interesting case studies to examine the relationship between climate change and human rights. They are part of an on-going doctoral research that examines India’s water laws in the context of climate change and the human right to water.

Human Right to Water and Climate Change

Climate change has an unprecedented impact on human beings. In this context, human rights are important for two reasons. First, human rights will be interfered with as a result of climate change. Second, human rights can play an important role in framing responses to climate change.

In relation to legal frameworks, human rights provide a way to frame responses based on fundamental freedoms, entitlements and human dignity. In relation to water, the increasing demand for water and climate variability will challenge existing assumptions and structures in the delivery and realisation of the right to water. Laws and policies based upon the right to water ensure a prioritisation of lives and livelihoods over other interests, particularly in situations of conflicts. In India, the human right to water, as well as a right to a healthy environment are recognised by the Supreme Court of India under Article 21 of the Constitution. Furthermore, both these rights are recognised by international law.

Water, Climate Change and Inequality

However, climate change cannot be viewed merely as an environmental issue that reduces or increases water. Rather, climate impacts intertwine with social, political, economic, and cultural worlds. For example, during a drought period, socially disadvantaged communities face greater water stress and are often dependent on more powerful communities for access to water. Those who have access to water, through economic wealth, caste, gender, or an advantageous geography, can actually benefit from the distress of communities who do not.

Accordingly, the relationship between climate change and the human right to water needs to be viewed in the context of power and distribution, as much as the ‘environmental’ effects of climate change. In other words, climate change and its impacts on water cannot be viewed as an apolitical phenomenon; rather they need to be viewed through the lens of how climate change intertwines with socio-political, ecological and other processes, to which can produce highly unequal outcomes.

Photograph from Action Aid 

Law and Policy Frameworks: Example of Groundwater

Such outcomes are directly linked to the laws and policies that are in place. Laws and policies are an important tool to govern relationships in society around access to, control over, and distribution of water. Hence, they form an integral way of mediating relationships between people, as well as between people and the environment.

The laws and policies that govern climate change and water in India are woefully inadequate to tackle the escalating crisis.  While the human right to water and the human right to a healthy environment are recognised under Indian law, laws and policies need to be aligned to protect and realise such rights.

Laws and policies around groundwater provide a pertinent example how legal frameworks mediate relationships that produce differentiated outcomes in the context of climate change and the human right to water.

Groundwater is central to lives of millions in India. It is estimated that 60 per cent of irrigated agriculture and 85 per cent of drinking water needs of the country are met by groundwater. In many parts of the country, it is also the only source of drinking water.

However, the legal framework around groundwater continues to be dominated by laws and rights that date back to colonial times. Accordingly, landowners have an absolute right to exploit water under their land. Such laws do not recognise the common nature of groundwater aquifers and are not informed by ecological or equitable principles. Those with more land or better technology to abstract water are significantly more powerful, effectively being able to control water relations in society.

Despite dissimilar geographies, communities in the desert-like areas of Rajasthan, or in the deltas of Sundarbans experience similar impacts in this context.  In both areas, people experience water scarcity for drinking and basic water use. The laws permit overexploitation, which benefits those who are economically and socially powerful. In times of climate-induced crises, this compounds unequal and unjust relationships. Marginalised communities become dependent on purchasing drinking water from those who have it. Water tables are further reduced, as there are incentives for overexploitation. Poor government provisions of providing free potable water exacerbate such situations. Thus, legal frameworks require critical examination, to ensure that the right to water is realised and protected for all, in the context of climate change. 

Placing Human Rights at the Forefront

Ultimately, in examining the relationship between the human rights and climate change, we need to consider not just how climate change will impact human rights, but also how power and distribution will see the rights of some protected at the expense of others. Laws and policies around water need to be informed by such an analysis. They need to put the human right to water and right to a healthy environment at the forefront. The on-going research contributes in examining this relationship and towards framing rights-based responses. 

Birsha Ohdedar is a PhD Student at the Faculty of Law & Social Sciences, SOAS, University of London. His research examines the Human Right to Water & Climate Change in India.

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