Water Privatization In India; A Threat to

Human Right

Abstract :

This paper relates to existing scholarship by analysing the role that water privatization might
play in human rights. Current research paper addresses water as a human right or how
privatization fails to provide decent water services. This paper will fill the gap by connecting
the two topics, human rights and privatization of water, and by presenting privatization as a
violation of the former. The paper will also dwell into discussing the implications of water
privatization in Indian context specifically.

The groups that are most often negatively impacted by water privatization are the poor, and
indigenous persons. Put simply, these groups are the most at risk to have their right to water
violated. Though occasionally touching on the experiences of the poor and indigenous
persons, this paper will highlight the impact privatized water management systems have on
this section of population which is a group often overlooked as well as disproportionately
impacted by water privatization. Intersections between the three categories are possible and
will be further explored though the case studies used as examples in the paper.

The fundamental question that this article tries to discuss is whether the transfer of functional
responsibility gives rise to corresponding human rights on such nonstate actors and if so,
then, what will be the precise nature of these changes on human rights. It argues that although
water privatization might be seen as the need of the hour, India is not ready to trust the public
sector with the distribution of its most valuable resource. This paper seeks to discover what
will be the implication of Privatization on water as a Human Right and can the States
dispense their legal obligation upon private companies.

Introduction :
Water is most often regarded as the last frontier of privatization cross world because it is
often associated with many human rights concerns. Water privatization involves transferring
of water control and/or water management services to private companies. The water
management service may include collection, purification, distribution of water, and waste
water treatment in a community. Water is considered a strategic resource having public health
benefits.

There are several models of water privatization that are currently in trend in different parts of
the world depending on the degree of privatization.

However, most privatization arrangements involve the transfer of control of state assets to
the private sector. Water is a social good and at the very least, states are obligated to adopt
policies and measures for the progressive realization of social rights such as the right to
water. Water privatization has been recommended by the Indian government’s national water
policy to address the issue of water scarcity. In its article 13 titled, “Private sector
participation” the policy says that “private sector participation should be encouraged in
planning, development and management of water resources projects for diverse uses,
wherever feasible”. This has placed water privatization at the forefront of developmental
policies implemented by several state governments.

How water is perceived in India :

Water in India (since the Vedic period) and in many places around the world, is a highly
symbolic material, and has been recognised as a primordial spiritual symbol surrounded by
thick systems of social and religious meaning, and located in rituals of gifting, exchange and
rule. The Indian Philosophy through its Vedas, Upanishads and Bhagvad Gita has given a
high ranking to the importance of water. In the Vedic literature one of the five important
elements mentioned therein is Water. Water is known as “Aapah” in Sanskrit. The names of
the five elements mentioned in the Vedic literature are Earth, Air, Water, Fire and Sky. In the
Rigveda, one of the hymns mention that,

“May the water available from the skies as rain, the water available in the culverts/canals,
water flowing in streams and rivers and the water flowing towards the ocean be instrumental
in increasing my happiness.” - Rigveda 4/164-51

The different cultures and religions in the whole world are the essence of the various human
civilizations and revere as part of the nation’s beliefs and traditions. Cultural differences or
rather experiences play a key role in the way water is perceived, its usage, valued and
managed in societies. But the underlining common fact is that Water is Life. Just like Hindu
philosophy even the Greeks and Chinese also considered Water to be one of the five elements
of life. Since water is symbolic to cleanliness and purification, many religions have various
rituals, beliefs and traditions that associate water with the power to cleanse us of our
impurities. Water plays a strong role in both life and death for everyone. Many religions
recognize this significance and relate it with their own rituals of either birth or death or to
wash away their sins. Life is nourished by water. Water has the power to create as well as
destroy life. Our whole identity is dependent on water.

Water is a considered to be the symbol of purification and a free-gift from the Gods to the
humankind which makes Privatization of water an even more hard-to-digest pill. The bible
quotes ‘I am the Alpha and the Omega, the beginning and the end. To the thirsty I will give
water without price - Revelation 21:6’. In Islam, the Sharia law in Koran literally translates to
laws of sharing water.

Water privatization is innovative system of public control. Water availability on the Indian
subcontinent is strongly influenced by a number of climatic and geographic factors. Together
these combine to provide India with enough freshwater to meet the various demands arising
from the agricultural, industrial and domestic sectors. However, the actual distribution of
water resources over space and time limits access to certain geographic regions and a few
months of the year. Government policies and economic incentives have also influenced the
water distribution and consumption across India.

Our history serves as an evidence of the remarkable ‘Reforms’ that brought about the changes
that the world had been waiting for . Recognizing that the growing demand for water in
agriculture and industries sets a pattern of water scarcity even in areas where there is
sufficient water for domestic purpose, the national water policy has rightly prioritized
drinking water over other uses. However, in giving subsidies to the industrial and agriculture
sectors where the water consumption is highest and allowing these sectors to use more water
at negligible prices, the government has effectively contradicted its own water policy.

Privatisation of water is one such reform which seeks to change the traditional understanding
of a Sate’s duty and governing systems. The concept of water privatization is a bewildered
mix of political complexity between global commercial interests, international aid agencies,
and national governments, aimed at transforming public resources into profitable enterprises.
But reform of municipal water systems is a tricky business in more ways than one.

History of Water privatization in India :

In India, a gradual retraction of the state and promotion of private player participation has
been a facet of the neo- liberal agenda that was triggered in the 1990’s. Since 1990, the
government, through its reforms, has encouraged private sector projects in the water sector
in the hope that transferring the responsibility of water to private companies will bring
more transparency and accountability to the process.

The drive to privatise the water sector in India accelerated after the year 2000 when the
government of India adopted various reforms suggested by international financial
institutions like the World Bank and the Asian Development Bank.

The policy of privatization of water, though presently it is not very fancy, is not entirely new
to the Indian water sector. The National Water Policy, 2002, explicitly encouraged the role
of private-sector participation in planning, development and management of water resources,
wherever it is feasible. It envisaged private player involvement to introduce innovative ideas,
generate financial resources, introduce corporate management, and improve service
efficiency and accountability. A number of pilot projects were launched by the government in
an attempt to engage private players in both the rural and urban water sectors. The case of the
Sheonath river, where the Chhattisgarh government handed a stretch of the river to a private
company so that it could manage its water distribution, has been particularly significant,
although it was much condemned. Apart from this, municipalities of many cities have
employed public-private partnerships, where the private player is in charge of operation,
management and distribution improvement. Important projects include the Tirupur project (to
build, operate and charge for water supply); the Hubli-Dharwad project that aims at twenty-
four hour water supply for residents. The Khandwa project in Hyderabad and most recently,
the Delhi Jal Board (‘DJB’) public-private partnership model. And most recently, the Draft
National Water Policy, 2012 encourages the engagement of private companies as service
providers for water distribution in certain scenarios.
Right to Water :

In July of 2010, the United Nations General Assembly ,explicitly recognized the human right
to water and sanitation and acknowledged that clean drinking water and sanitation are
essential to the realization of all human rights.

“The human right to water is indispensable for leading a life in human dignity.”

The right to water contains both freedoms and entitlements. The freedoms include the right to
maintain access to existing water supplies necessary for the right to water, and the right to be
free from interference, such as the right to be free from arbitrary disconnections or
contamination of water supplies. By contrast, the entitlements include the right to a system of
water supply and management that provides equality of opportunity for people to enjoy the
right to water. Thus, The ICESCR places immediate obligation on the state to protect, respect
and fulfil this Human Right. By their nature, human rights treaties are state-focused because
only states are intended to ratify them. This is not surprising, given that human rights treaties
were adopted at a time when the state had an unrivalled role in providing goods and services,
such as access to water, education, and health services. An increase in Globalisation and
liberalization has led to erosion of the state’s primary role in the provision and management
of core human goods and services, such as health, education and water.

The normative content of right to water includes availability in terms of sufficiency and
continuity, quality, accessibility and affordability. Sates’ core obligation include the
obligation to respect, which requires state parties to refrain from interfering directly or
indirectly with enjoyment of the right to water . this also includes the obligation to fulfil the
right without discrimination and with equitable distribution.

Case Study :

For example; In Guayaquil, Ecuador water prices increased by 180 percent after the water
system there was taken over by Interagua, a subsidiary of Bechtel (a private company). The
company’s underinvestment and poor water quality resulted in outbreaks of hepatitis causing
mass causality.

Privatisation of water can lead to poverty, as people now have to pay for a basic need. For
example, customers of the private water provider in Jarkarta, Indonesia experienced a 258
percent increase in tariffs and poor water quality, while only 54 percent of low-income
households were provided with new water connections. A similar pattern of exclusion was
also evident in La Paz and El Alto, Bolivia where a private contractor was accused of
denying water service to 80,000 families. Many couldn’t afford the cost of setting up a
connection, which for the poorest households costed the equivalent of more than two years of
food expenses. High water prices brought on by privatized service deprive consumers of their
right to water, often with disastrous health and social consequences which goes completely
against the spirit of the Covenant that adopted Right to Water in the first place.

In June 2007, the Nagpur Municipal Corporation (NMC) handed over the operation and
management of water services of the Dharampeth area of Nagpur to private operator
VWIL on a pilot basis. The key project objectives were to provide 24×7 water supply at
the desired pressure, 100 percent metrication, to optimise the Unaccounted For Water
(UFW) losses, create efficient billing mechanisms, reduce consumer complaints and
ensure sufficient supply. Further, without properly assessing the project outcomes, NMC
extended the project to the entire city in November 2011. As a result the tariff of water
increased to four times and the losses had to be suffered by the NMC after privatisation .

Similarly the municipal authorities of Khandwa, a medium-sized town in Madhya Pradesh, to

hand over water supply services to a private company. However, local residents have been
actively campaigning against privatisation of water services for some time. More than 10,000
Khandwa residents have submitted their complaints against the Public-private partnership
project for 24/7 water supply.

Citizens to Customers :

From a business perspective, these systems have scales of operation, capital intensity and
tariff structures which are not easily amenable to commercialization or privatization. At a
deeper level, the social, political and cultural contexts in which water as an element and water
provision as a service are embedded pose a number of challenges to the project of
commodification.

The private sector, it was thought, would bring increased financing, efficiency, management
skills and technology to the water services sector. Owing to this water privatization became
the centre for many donors, NGO’s and water think tanks. And as a result purely private
program initiatives in the water sector are rare. Most privatization arrangements in the water
sector have evolved to involve a mix of Private-Public Partnerships and are heavily
influenced by market imperatives.

Private operation can create obstacles to the human right to affordable and accessible water
and sanitation services. Due to a misalignment of public and private interests, bad regulation
and poor implementation, public private partnerships can fail to achieve their goals and lead
to increases in the price of water service, which creates a disconnect for the poorer section of
the population because they might not be able to pay for such a basic commodity.
Privatization of water is invariably fraught with an increase in tariffs and hence, an exorbitant
burden is placed on the urban poor who are un- able to cope with the increased price level.
This lies at the heart of the debate on the impact of privatization on the poor and has been the
subject of considerable debate in the past few decades. Privatization is firmly grounded on
principles of full-cost recovery or economic pricing as opposed to most public network
suppliers that often recover only partial costs of water supply. With increasing water prices,
large sections of the urban poor are unable to cope with such price levels. The policy of
privatization mandates that water be provided only to those who are financially capable of
paying for it. In case of non-payment, private companies resort to large scale disconnections
to forestall any losses in their investment. Such disconnections contribute in a significant
violation of the right to water, particularly in the context of the rights based approach to
water. General Comment 15 of the International Covenant of Economic, Social and Cultural
Rights , that envisages the normative content of the right to water, vests in every individual
the ‘right to be free from arbitrary disconnections’ . Furthermore, while mandating economic
accessibility to water the general comment also stipulates that “the charges associated with
securing water must be affordable for all, and must not compromise or threaten the
realization of the Right.” The impact of such elimination is complete deprivation of low
income households from access to water, constituting a violation of their right to water as
well as other human rights that are intricately related to the right to water.

In my opinion, there is no dire need to privatise a basic necessity such as water, it should
essentially, without any contradiction be provided by the state as a primitive resource. Since
water service is a natural monopoly that lacks a true market, privatisation can create ‘water
poverty’. Water Privatisation can create a disconnect between citizens and their owned
natural resource. Because, by privatizing water and sewer systems, local government officials
abdicate control over a vital public resource, which should not be left in the hands of
multinational water corporations who are primarily accountable to their stockholders, and
not to the people they serve. Also,  private operators usually restrict public access to
information and do not have the same level of openness as the public sector and people do
not have mechanisms to address their concerns with private utilities. While at the same time,
the State regulatory authorities cannot do much either, because their hands are tied in a long-
term complex contract.

It is no surprise that while taking major decisions the private company will have different set
of criteria, often one that emphasizes profitability as opposed to the goals of a city
municipality whose goal will be welfare. This, in my opinion will create conflict of interest in
the long term, and a vital right such as that of Right to Water cannot be risked with such
obvious tensions.

Conclusion :

In my opinion, water is a free resource available in the custody of the State , and it is the
moral duty of a State to provide vital resources for free to its citizens. It would be immoral to
make the population pay for what comes free to the state. When the State is held liable to
ensure safe and healthy living of its people, it also includes making provision for enabling
and providing necessities that help achieve this goal. Silently, the obligation includes, inter
alia, refraining from engaging in any practice or activity that denies or limits equal access to
adequate water; arbitrarily interfering with customary or traditional arrangements for water
allocation; unlawfully diminishing or polluting water. Thus, when water becomes a
marketable commodity rather than a public good, it is inevitable that human rights are
undermined. It seems as if water privatisation is based on a premise that do not match with
the premise on which The Right was originally adopted , thereby totally undermining the
object of The Right. To sell a human right is a sin and making profit out of such a vital
element side-lines equality and discrimination. Not only do regulation and infrastructural
constrains of a country become obstacles to efficiency and accountability. But also, Rights
Holders become clients and state becomes a spectator. And those clients who are poor are
marginalised . Hence, conclude that such unregulated privatization has glaringly adverse
consequences for low income households that previously relied on the piped network supply.

It seems as though on one hand, Human Rights perspective on Right to Water emphasises the
normative and moral urgency of the task to provide water to all. And on the other hand define
the goals and legal requirements of the right and the responsibilities of relevant stakeholders.
Thus, it is clear that involving private enterprises in utility operations is not a means to satisfy
the human right to water. But it is also important to understand that, ‘The right’ does not
entitle people to free water. The services of water and sanitation need to be affordable for
all .

In determining which actions or omissions amount to a violation of the right to water, it is

important to distinguish the inability from the unwillingness of a State party to comply with
its obligations in relation to the right to water. There are no substitutes for water, which is
important to remember when discussing the potential trading of water . Moreover, water
should be about more than just politics: it should be about the values of controlling a resource
billions of people need. Privatizing water seeks to make water a part of our global economy.

Water has always been a common property resource, which if now privatised or even
considered as an economic good will give rise to new kinds of tensions. In conditions of
scarcity we must recall paragraph 12 of General Comment No. 3 (1990), which states that
even in times of severe resource constraints, the vulnerable members of society must be
protected by the adoption of relatively low-cost targeted programmes, instead of privatising
basic resources at hefty costs The relationship between human rights and nonstate actors has
become a highly topical area in current international and comparative law . Although
privatization is seen as necessary to extend services to this population, experience suggests
that the effect is to the contrary.

In my opinion Community based water management policies such as rainwater harvesting,

check dam construction, sustainable watershed management, integrated river basin
management and irrigation efficiency are far better and sustainable alternatives to water
privatization. These actions also can respect the human rights as well and should be
implemented in large scales. A well-defined and enforceable paradigm of entitlements to
water is an essential pre-condition to privatization in India.

The meaningful implementation of sustainable development can be further advanced to help

link social development and human rights aspects of sustainable development with the
environment, as well as ensuring economic well-being through the benefits that adequate
supplies of water can provide. Hence, though this paper we have established that
implementing privatization in the current scenario in India shall only lead to further exclusion
of the urban poor from water services.
“States can’t dispense with their human rights obligations by delegating core services and
functions to private companies on terms that they know will effectively undermine those
rights for some people.” - Philip Alston, the UN Special Rapporteur on extreme poverty and
human rights.

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challenges, from: http://www.indiaenvironmentportal.org.in/files/file/RTW-India.pdf

49. UN Report on Ground Water Depletion

http://www.indiaenvironmentportal.org.in/files/file/UNEP-GEAS_JAN_2012.pdf

50. Water and Sanitation Programme, September 2011, ‘India’s Water Sector Sees
Emerging Role for Private Sector Participation as a Means to Improve Services’

51.  See a comprehensive database of ongoing privatisation efforts in different states of

India here http://www.manthan-india.org/spip.php?article23