Navigating Water Rights and Governance under the Indian Constitution

Water is the most essential of all natural resources, yet the question of who controls it, who distributes it, and who is legally bound to protect access to it remains one of the more nuanced areas of Indian constitutional law. The Indian Constitution does not contain the words “right to water” anywhere in its text. And yet, through a combination of federal distribution of powers, local governance reforms, directive principles, and landmark judicial interpretation, a robust legal framework around water rights has steadily taken shape. Understanding this framework is essential for anyone studying rural governance in India.

Water as a state subject: the constitutional starting point
Article 262 and inter-state water disputes
The directive principles and Article 47
The 73rd and 74th Constitutional Amendments: water governance meets local self-government
The gap between constitutional intent and ground reality
Article 21 and the implicit right to clean drinking water
International law and the human right to water
The right to water: implied, not express
Putting it together: a three-layered framework

Water as a state subject: the constitutional starting point

The foundation of India’s water governance structure lies in the Seventh Schedule of the Constitution, which distributes legislative powers between the Centre and states. According to the Central Water Commission, water is primarily a state subject under Entry 17 of List II (State List), which covers water supplies, irrigation, canals, drainage, embankments, water storage, and water power. This means, as a default rule, states are the primary authorities when it comes to managing water resources within their borders.

However, this state authority is not absolute. It is expressly made subject to Entry 56 of List I (Union List), which grants Parliament the power to regulate and develop inter-state rivers and river valleys, to the extent declared by Parliament to be in the public interest. In other words, the moment a river crosses state boundaries, the Centre gains jurisdiction. This dual structure means that while day-to-day water management belongs to states, the Centre has the authority to step in whenever inter-state water conflicts arise.

Article 262 and inter-state water disputes

Article 262 of the Constitution goes a step further. It allows Parliament to enact laws for the adjudication of disputes concerning inter-state rivers or river valleys, and also permits Parliament to bar the jurisdiction of courts – including the Supreme Court – over such disputes. This is a unique constitutional carve-out that places water conflicts in a separate legal lane. Under this authority, Parliament enacted the Inter-State River Water Disputes Act, 1956, which provides for the constitution of tribunals to resolve water disputes between states. The prolonged Cauvery water dispute between Karnataka and Tamil Nadu, adjudicated by a tribunal constituted in 1990, is one of the most well-known examples of this mechanism at work.

The directive principles and Article 47

Beyond the allocation of legislative powers, the Constitution also places obligations on the state through the Directive Principles of State Policy in Part IV. Article 47 directs the state to improve public health and raise the level of nutrition among the population – a provision that courts have used to reinforce the state’s obligation to ensure access to clean drinking water. Article 48A further requires the state to protect and improve the environment, which includes water bodies. Meanwhile, Article 51-A(g) imposes a fundamental duty on every citizen to protect and improve the natural environment, including rivers and lakes. Together, these provisions signal that water is not simply an administrative resource – it is bound up with the Constitution’s wider vision of a healthy, dignified life for all citizens.

The 73rd and 74th Constitutional Amendments: water governance meets local self-government

A significant shift in how water governance is structured came with the 73rd and 74th Constitutional Amendment Acts of 1992, which came into force in April and June 1993 respectively. These amendments gave constitutional status to Panchayati Raj Institutions (PRIs) for rural areas and Urban Local Bodies (ULBs) for urban areas, creating a three-tier governance structure at the grassroots level.

The Central Water Commission notes that the Eleventh Schedule introduced by the 73rd Amendment listed several water-related functions that states may devolve to Panchayats, including minor irrigation, water management and watershed development, drinking water supply, sanitation, and maintenance of community assets. Similarly, the Twelfth Schedule introduced by the 74th Amendment included water supply for domestic, industrial, and commercial purposes as a function that municipalities may be given charge of.

This was a constitutionally significant move. For the first time, water governance was explicitly linked to the idea of local self-governance. The logic is straightforward: a village panchayat or a municipality often understands local water conditions – the location of wells, seasonal shortages, the state of pipelines – far better than a distant state government. Research has also shown that panchayats with greater female representation tend to invest more in drinking water infrastructure, demonstrating how political inclusion and water access are connected.

The gap between constitutional intent and ground reality

However, the devolution of water governance powers to local bodies has been uneven in practice. Field observations from local governance researchers confirm that many states have been reluctant to fully devolve powers and financial resources to Panchayati Raj Institutions. The three-tier Panchayat system – Gram Panchayat at the village level, Panchayat Samiti at the block level, and Zila Parishad at the district level – exists structurally across most states, but financial autonomy remains limited and state-level bureaucracies often retain real control. For water management to work at the local level, the constitutional promise of decentralisation must be backed by meaningful financial devolution and trained personnel.

Article 21 and the implicit right to clean drinking water

Perhaps the most consequential development in the constitutional law of water has come not from the legislature but from the judiciary. Article 21 of the Constitution guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. On its face, this is a provision about personal liberty. But through decades of expansive interpretation, the Supreme Court has read into it a wide range of rights – including the right to a clean environment and, crucially, the right to access clean drinking water.

As early as 1984, in Bandhua Mukti Morcha v. Union of India, the Supreme Court derived the concept of a right to a healthy environment as part of the right to life under Article 21. The case arose from the condition of bonded labourers who were denied clean water, shelter, and basic sanitation – and the Court held that access to clean drinking water is indispensable to the health and welfare of persons, and that some authority must be held accountable for providing it.

In Subhash Kumar v. State of Bihar (1991), the Supreme Court went further, holding that the right to life includes the right to enjoyment of pollution-free water and air. The Court made clear that if anything endangers the quality of life in violation of law, a citizen has the right to invoke Article 32 for relief. In M.C. Mehta v. Kamalnath (1997), the Court ruled that the state is not only bound to regulate water supply but must actively assist in realising the right to healthy water and preventing health hazards – assigning the state a positive, not merely regulatory, role.

International law and the human right to water

India’s judicial evolution on water rights has also taken place alongside developments in international law. On 28 July 2010, the United Nations General Assembly, through Resolution 64/292, explicitly recognised the human right to water and sanitation, acknowledging that clean drinking water is essential to the realisation of all human rights. The UN Committee on Economic, Social and Cultural Rights, in its General Comment 15 (2002), described the right to water as everyone’s entitlement to sufficient, safe, acceptable, physically accessible, and affordable water for personal and household use.

Indian courts have been receptive to these international norms. Legal scholars have noted that the Supreme Court has incorporated principles of customary international law – including the Polluter Pays Principle and the Precautionary Principle – into domestic environmental jurisprudence, linking them directly to the right to life. In Vellore Citizens’ Welfare Forum v. Union of India, the Court applied these principles to address industrial water pollution, awarding compensation to victims whose water sources had been contaminated by tannery effluents.

The right to water: implied, not express

Despite this rich body of case law, India has not enacted a standalone statute expressly guaranteeing the right to water as a fundamental right, nor has a constitutional amendment incorporated it as an explicit provision. As legal researchers have observed, India’s water rights framework rests primarily on judicial articulation rather than legislative action. The right exists – repeatedly affirmed by the Supreme Court and various High Courts – but it is an implied right, derived from Article 21, rather than one inscribed directly in the text of the Constitution.

This matters practically. As constitutional and judicial studies point out, existing laws relating to water – whether under Panchayat Acts, the Water (Prevention and Control of Pollution) Act, or drinking water schemes – adopt a governance framework rather than a rights framework. They confer duties on the state and its agencies, but do not universally recognise the citizen’s right to demand clean water as an enforceable entitlement. This gap between implied judicial right and formal legislative recognition remains one of the central tensions in India’s water law landscape.

Putting it together: a three-layered framework

India’s constitutional approach to water governance can be understood as operating on three interconnected levels. At the federal level, water is primarily a state subject under Entry 17 of the State List, with the Centre intervening only for inter-state rivers under Entry 56 and Article 262. At the local governance level, the 73rd and 74th Constitutional Amendments have created a constitutional mandate for devolving water management to Panchayats and municipalities, bringing governance closer to the communities that depend on water most directly. And at the rights level, the Supreme Court’s expansive interpretation of Article 21 has established that access to clean drinking water is part of the right to life – imposing a positive duty on the state to not only regulate water supply, but to protect and realise this right for every citizen.

Together, these three layers form the constitutional architecture within which all debates about water policy, water scarcity, inter-state disputes, and local governance ultimately play out. The architecture is not perfect – the gap between constitutional promise and on-the-ground delivery remains wide – but it provides a legally meaningful foundation for demanding accountability.

What do you think? Should India go further and expressly codify the right to clean drinking water as a fundamental right in the Constitution, rather than leaving it to judicial interpretation under Article 21? And given that water governance is now constitutionally linked to Panchayati Raj, what structural changes would actually make local water management work in practice?

References

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Table of Contents

Water as a state subject: the constitutional starting point 🔗

Article 262 and inter-state water disputes 🔗

The directive principles and Article 47 🔗

The 73rd and 74th Constitutional Amendments: water governance meets local self-government 🔗

The gap between constitutional intent and ground reality 🔗

Article 21 and the implicit right to clean drinking water 🔗

International law and the human right to water 🔗

The right to water: implied, not express 🔗

Putting it together: a three-layered framework 🔗