Bhullar began by examining where the rights to water and sanitation could be located in international human rights law. She admitted the possibility of grounding these rights within the International Covenant on Civil and Political Rights (ICCPR), under the right to life. Indeed, certain soft-law instruments such as the Stockholm Declaration and the Rio Declaration have done so, speaking of a right to water in relation to the fundamental right to life. Nonetheless, she concluded that international practice predominantly favoured locating these rights in the International Covenant on Economic, Social and Cultural Rights (ICESCR), within the fold of the rights to health and to an adequate standard of living.
Whilst the importance of positioning these rights in an international human rights treaty framework cannot be overstated, Bhullar pointed out that by opting to do so within the ICESCR instead of the ICCPR, the international community had adopted a weaker protection for the rights to water and sanitation. Economic, social and cultural rights, one must remember, are only subject to progressive implementation, based on a State’s resources, and cannot be directly enforced as civil and political rights can. Bhullar also emphasized the anthropocentric focus of these rights, which only guaranteed water for human consumption, sanitation and agriculture. She also criticized contemporary discussions on the right to water, which tend to focus on the quantity of water to be guaranteed, ignoring the pressing issue of quality. Consequently, she concluded that the international framework for these rights left much to be desired.
The weakness of the international regime is likely to come into sharp focus in the coming years, with climate-change induced droughts and water shortages increasing in frequency, and the hazard of groundwater contamination by rising sea-levels becoming more imminent. Certainly, in a region like South Asia, with hefty, impoverished populations, an economic dependence on agriculture, and numerous trans-border water bodies, the concern of international disputes on water and sanitation looms large.
Bhullar sought to locate a solution to this concern within domestic constitutional law. Focusing specifically on India, she lauded the Supreme Court’s activism in reading the rights to water, public health and environment into the right to life, under Art 21 of the Indian Constitution. However, rigorous substantive law is rarely useful without effective procedures to implement it. Keeping this in mind, Bhullar observed that the Supreme Court had formulated a ‘public interest litigation’ procedure, whereby any citizen was entitled to approach the Court to seek its assistance on matters of public concern – including on issues of water pollution and public health, as the MC Mehta cases demonstrated. She pointed out that the formation of a National Green Tribunal (NGT) in India, to specifically address environmental issues, had also helped supplement the Supreme Court’s efforts to protect the rights to water and sanitation. India’s success in this field, she believes, had led the legislatures and judiciary in other South Asian states, such as Pakistan, Bangladesh and Nepal, to adopt similar measures on water and sanitation.
From the above discussion, Bhullar concluded that water and sanitation were areas where South Asian domestic law seemed to be leading the way, setting a worthy example for the international system to emulate. She speculated on the role of South Asian religion and culture in this development, arguing that the importance given to water-bodies in the Hindu faith could have spurred the strong protections enacted for water conservation in the region. Though, one could equally wonder whether religion and culture may be part of the problem – that certainly seems to be the case with the pollution of the Ganges River.
The primary discussant, Jannu, raised the issue of granting juridical personality to water bodies, a matter that was recently ruled on by the High Court of Uttarakhand, questioning whether such an approach would be beneficial in bringing legal claims for pollution. Agreeing with Jannu, Bhullar pointed out that the High Court’s judgement didn’t seem to adopt a truly ecocentric approach on a close reading, thus offering little assistance to potential claimants who seek to enforce autonomous rights for natural objects. Jannu also pointed out the inefficacy of the NGT in recent times, inquiring why, strategically, a litigant might choose to bring their claim before this forum. Bhullar admitted that there were inadequacies with the NGT, and thus it would often be ideal for a litigant to pursue alternate means where possible, such as petitioning relevant ministries within the government. However, she pointed out, the mere act of filing a claim before the NGT could often serve as a sufficiently strong warning to one’s opposing party, convincing them to settle the dispute. Thus, the NGT remained a valuable strategic tool for environmental litigants.