Ensuring right to water
THE constitution of Bangladesh reserves the rights of its citizen and acknowledges country's obligation to afford the basic necessities of life such as food, clothing, shelter, education and medical care. It seems that the water right is considered under food, but no article or clause deduces the water right issue conspicuously except article 15, clause (1).
Let us look back to our newly enacted Water Act-2013 and see how far this right to water has been enshrined in this Act. As per this Act, all forms of water (e.g., surface water, ground water, sea water, rain water and atmospheric water) within the territory of Bangladesh belong to the government on behalf of the people. This Act does not acknowledge citizens right to water.
The private landowners will be able to use the surface water inside their property for all purposes in accordance with the Act. A sensible initiative is the requirement for permission/licenses for large scale water withdrawal by individuals and organisations beyond domestic use. Without prior permission issued by the Executive Committee, no individuals or organisations will be allowed to extract, distribute, use, develop, protect, and conserve water resources, nor will they be allowed to build any structures that slow down the natural flow of rivers and creeks. However, the maximum amount of surface water or groundwater that can be withdrawn by individuals or organisations is not mentioned in the Act. Prescribing a priority order for water usage in an area where the water resources is in critical condition is also a momentous tread. The priority order as depicted in the Act is as follows: potable drinking water, domestic usage, irrigation, fish culture, bio-diversity, wildlife, natural river flow, industry, salinity control, power generation, amusement, miscellaneous. It should be noted that only drinking water and domestic usage are considered as basic rights.
Public hearing for the proposed national water management plan is also a good decision, provided it is practiced diligently. This Act provides provisions for punishment and financial penalty for non-compliance with the Act, including negligence to abide by government policy, ordinance and non-cooperation with government officials, refusal to present necessary documents, providing false information, affiliation with perpetrators, and protection measures for water resources management. The maximum penalty for violations is set to five years of imprisonment and/or monetary penalty of Tk.10, 000 which was previously Tk. 500,000 in the draft proposal of the Act in 2012. This dire reduction in monetary penalty may egg on many people to pay the penalty instead of abiding by the law.
Punishment related to water quality degradation caused by industrial discharge and other sources of pollution is not satisfactorily addressed in the Act. The Act remains foggy without a clear commitment by the government to ensure the quality of water for various beneficial uses as outlined in the Environmental Protection Act. The Act does not address the need for establishing 'effluent treatment plants' or the maximum contaminant levels that will be allowed for discharge to receiving bodies of water by industries and other latent sources of pollution. Court is ousted to entertain any law suit under the provision of this Act without a written complaint from the Director General of Water Resources Planning Organisation or his appointee, which is a severe drawback of this Act.
The Act provides unlimited power to the Executive Committee to take any action that they deem necessary to implement various provisions of the Act and exempts any violation of the Act in the name of good faith. Unlimited power of the Executive Committee without any provision for check against such power may lead to wrong-doing and mayhem. There is no clear provision to appeal against any judgment given out by a court. This Act puts potable drinking water on the top of priority but prescribes nothing as to safe and cost-free drinking water.
For most countries, the lack of explicit reference to a right to water in the national legislation necessitates ingenuity in enforcing the right through the courts. In Bangladesh it is not yet declared by the Apex Court that right to water is right to life.
In India, where the right to water is not enshrined as a fundamental right in the national Constitution, courts at both state and federal level have interpreted Article 21 (as equivalent to article 32 of our constitution) of the Constitution, the right to life, as encompassing the right to safe and sufficient water and sanitation. In 1990, for example, The Kerala High Court in Attakoya Thangal v Union of India recognised the fundamental importance of the right to water by observing that: “…the administrative agency cannot be permitted to function in such a manner as to make inroads into the fundamental right under Art 21. The right to life is much more than a right to animal existence and its attributes are manifold, as life itself. The right to sweet water and the right to free air are attributes of the right to life, for these are the basic elements which sustain life itself.”
This Act does not pose a cute-attitude towards right to life and right to water. We hope to see in later amendments necessary provisions highlighting right to water shall take place in water Act.
The writer is Student of Law, University of Dhaka.
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