It’s unconstitutional and a failed venture
by Justice Rajindar Sachar (retd)
The State under our Constitution is mandated to protect the human rights. Any government policy, which seeks to shift this responsibility from the state to the private sector, would be, without anything more, unconstitutional and hence impermissible.
The United Nations, since its inception, has accepted that water is a ‘human right’. In 2010, the General Assembly adopted a resolution declaring the Right to Water and Sanitation a human right.
The Supreme Court has held that Article 21 of the Constitution includes the right of a citizen to water and sanitation. In that light per se any proposal to privatise water would be unconstitutional. Is it not, therefore, a matter of concern that the Indian state should be working towards privatising water supply, which really amounts to abdicating its duty to enforce human rights? Ever since the National Water Policy 2002 was formulated, there have been attempts in India to privatise and commoditise water.
The water problem and its peculiarities in supply, distributions are all misdirected against the supply to the poor. I am, however, highlighting the position in Delhi, which is enforcing privatisation of water supply policy meant to cater to the affluent at the cost of the poor — 70% of the households in Delhi with a monthly per capital of expenditure of less than Rs. 1,500, the poverty line accepted by the Planning Commission.
The whole exercise by the Delhi government is to give exploitive profits to the private party. Thus, according to public information, it costs the Delhi Jal Board Rs. 15 per litre to obtain water – but it has agreed to supply water to the private company at about Rs. 1.50 per litre. There is then further benefit to the company by permitting an automatic annual increase of 10% in water billing by the private company. In the new tariff apart from water charges a sewage charge of 60% is also imposed, notwithstanding that the replacement, if any, of pipes will be by the Delhi Jal Board. But most astounding is the introduction of service charges apart from the billing for water consumption. This service charge is a shame-faced attempt to give extra money because the consumer is paying separately for consumption anyway. On a consumption charge of, say Rs. 170, per month there will be added a service charge of Rs. 320 per month There is no explanation of what and how service charge can be imposed apart from consumption charges.
Another unabashed provision to favour the private company is to divide colonies into District Metered Areas (DMAs) on the pretext that water would be provided to the DMAs by private companies at all times/days (24x7). But there is an ill-conceived catch so as to benefit private companies, as the performance of the water company will be assessed not on the basis of whether water is received 24x7 water in every house or not, but on the basis of whether the water company provided 24x7 water at the input of each DMA or not. The water company can also divert water from one area to another within the same DMA. This would neither affect the performance of the company nor be treated as a violation of any of the licence conditions. The water company will try to maximise revenues by diverting water to big hotels, industries etc, which would purchase water in bulk at higher revenues.
The Delhi Jal Board should be looking into more worthwhile functions. It supplies 850 million gallons of drinking water per day more than its installed capacity. Its treatment facility provides for only 5.4 million gallons a day – the rest of the untreated water is one of the major sources of pollution of the Yamuna.
The Delhi government is inspired by the World Bank-supported 24x7 water supply pilot projects as, for example, in Hubli- Dharwad. But the report of the Working Group on Urban Water Supply and Sanitation for the 12th Plan has pointed out that the initial project period was 2004-08 and was then extended to 2011. Reaching 10 per cent of the twin cities’ existing connections took seven years.
Water privatisation and other similar schemes to benefit big corporations are the brainchild of the World Bank. Though initially the countries succumbed to this pressure, the anger of the masses at the deprivation of life-giving water to them and instead to benefit big corporation has unleashed a world movement of “re-municipalisation” of water supply in several cities, most notably Paris (which re-commenced with public water management in January 2010) due to cost-saving potential. The “re-municipalisation” got off to a promising start – water tariffs were reduced by 8 per cent in 2011. Two countries are making water privatisation illegal: Uruguay, and the Netherlands. In both cases, the new laws prohibit not only the sale of water systems but also the delegation of the operation of water supply to private companies.
As recent as October 2012 many civil society organisations have protested to the President of the European Commission to stop imposing the policy of privatisation of water.
The newly formed municipal corporations in Delhi have also demanded that water supply be handed over to them. It is for the Delhi Government to ignore the global trend towards “re-municipalisation” and to invite private companies to play a larger role in so essential a public utility as the supply and distribution of water. The so-called PPPs are a barely concealed cover for the public-private sharing of risk and profit such that there would be predominantly public risk and predominantly private profit.
A pervious attempt to privatize water was made in 2005; At that time August 2005 when World Bank President Paul Wolfowitz visited Delhi, he was confronted with vociferous protests against ‘the Bank’s policies and condition alities of water privatization through the back door’ – a clear message of ‘Hands Off Water.’ Why is it being revived now – is the forthcoming elections in Delhi and the urgent need for getting big donations the real secret. Any continuance of water privatization policy will remain suspect.
The writer is a former Chief Justice of the High Court of Delhi