For most countries, the lack of explicit reference to a right to water in the national legislation necessitates creativity in enforcing the right through the courts.
In many such countries, cases have been brought under environmental or public health legislation or courts have interpreted the right to water under other constitutional rights, such as the right to life or a healthy environment.
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 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 recognized the fundamental importance of the right to water.
In this case, the petitioners claimed that a scheme for pumping up ground water for supplying potable water to the Laccadives (now known as the Lakshadweep Islands) in the Arabian Sea would upset the fresh water equilibrium, leading to salinity in the available water resources and causing more long-term harm than short-term benefits.
The Kerala High Court, in its judgement, requested deeper investigation and monitoring of the scheme and the judge clearly recognised the right of people to clean water as a right to life enshrined in Article 21, 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. A prioritization of human needs and a new value system has been recognized in these areas. 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.”
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