Judgment No. SC 54/2018
Case No. SC 228/14
or oppressive. In the present context, I am unable to discern any such grossly unreasonable
feature in the operation or application of the Bye-laws under scrutiny. In the final analysis,
I take the view that the 1913 Bye-laws, regarded as a whole, are not only compliant with
and intra vires the enabling provisions of the Urban Councils Act but also perfectly
concordant with the overarching notions of reasonableness.
Whether Bye-laws are Unconstitutional
In the context of a constitutional framework within which the right to water
is not explicitly articulated, the right is often subsumed under the broader rubric of the
fundamental right to a clean and healthy environment and sustainable development implicit
in the right to life. The right to fresh air, clean water and a pollution-free environment is
perceived to derive from the inalienable common law right to a clean environment. See,
for instance, the decisions of the Supreme Court of India in Vellore Citizens Welfare Forum
v Union of India (1996) 5 SCC 647 and Narmada Bachao Andolan v Union of India (2000)
10 SCC 664.
In South Africa, s 27 of the Constitution expressly provides for a right to
have access to health care, food, sufficient water and social security. Insofar as concerns
water, s 27(1)(a) dictates that “everyone has the right to have access to …. sufficient ….
water”, while s 27(2) enjoins the State to “take reasonable legislative and other measures,
within its available resources, to achieve the progressive realisation” of this right.
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