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Published : July 19, 2015 | Author : gadhre
Category : Constitutional Law | Total Views : 906 | Unrated

Avinash Gadhre Administrative Officer Legal, National Insurance Co. Ltd.

Management of Water and Water Laws In India

An Overview of Existing Framework and Proposed Reforms

Water is a unique substance. It is one of the few materials on the Earth that exists naturally as a solid, liquid or gas. It is not possible for life on earth to exist without water. Scientists estimate that there are over one billion cubic kilometers of water on this earth, which covers nearly three fourth of the earth's surface. Though this seems an inordinately huge amount, in actual fact, less than one percent is fresh and usable and is found in lakes, ponds, rivers and groundwater. Of the remaining, ninety seven percent is found in oceans and two percent is locked up in glaciers and ice-caps. From a global viewpoint fresh water is abundant and the volume of fresh water renewed by the hydrological cycle between the oceans, the atmosphere, the sun and the land is more than enough to meet the needs of five to ten times existing world population.

Water quality monitoring is not yet developed in some countries, in other it is in decline. The quality of water available for drinking is posing a serious threat to the existence of life. Degradation of water quality is a consequence of human activities, land use practices and economic development. Land use practices affect the quality of water in our streams, lakes, ground water and ultimately the marine environment. Experience has shown that it is within our ability to slow and reverse water quality degradation, to improve human health and ecosystem integrity by nations putting forward a concerted effort. To accomplish this, aggressive, positive and timely policies and actions are needed. The world has a moral obligation to ensure that future generations inherit a world with clean water and healthy environment.

In the words of the United Nations Development Programme (UNDP), water is ‘the stuff of life and a basic human right’.[1] Thus, water is an essential element for life – including human life – on earth and as a result is a core concern in law. From a legal perspective, the UNDP rightly emphasises the importance of the human right dimension of water. Yet, in practice, water law is made up of a number of elements comprising a human right dimension, as well as economic, environmental or agricultural aspects. In particular, historically, one of the central concerns of water law has been the development of principles concerning access to and control over water.
Drinking water is directly essential for human life. Water is also indirectly essential, for instance, as an indispensable input in agriculture. Yet, despite the central role that water has always played in sustaining life, human lives and human economies, the development of formal water law has been relatively slow and often patchy. At the domestic level, colonial legislation first focused on the regulation of water for economic reasons, for instance, through the development of legislation concerning irrigation and navigation. Over the past few decades, increasing water pollution and decreasing per capita availability have led to the development of other measures such as water quality regulation and an emphasis on water delivery, particularly in cities, as well as environment-related measures.

In any organized society, right to live, as meeting does not ensure a human being only the animal needs of men. It is secured only when he is assured of all facilities to develop him and is freed from restrictions, which inhibit his growth. All human rights are designed to achieve this subject. Right to live guarantee in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.

Since water is a scant resource, it’s sharing and distribution requires a regulatory framework, which is brought about through not only written laws but also traditional and customary practices. In terms of statutory development, irrigation laws constitute historically the most developed part of water law. Statutory water law also includes a number of pre- and post-independence enactments in various areas. These include laws on embankments, drinking water supply, irrigation, floods, water conservation, river water pollution, rehabilitation of evacuees and displaced persons, fisheries and ferries.

In India, water law is made of different components. It includes international treaties, federal and state acts. It also includes a number of less formal arrangements, including water and water-related policies as well as customary rules and regulations. Along with it I am discussing about the management of water in India whereby we will see what is the present scenario and the need to take further steps for overcoming the upcoming problems related to scarcity of water. My article maps out the relevant legal framework concerning water in India and International level in brief with the techniques and policies adopted by us for preserving and saving the water for our future generations.

Water as a Natural Resource and Economic Good

The first central principle that is guiding the reform process is that all uses of water should be seen from the perspective of its economic value because the absence of an economic perspective in the past explains existing unsustainable uses of water. As a result, the emphasis is on water as a natural resource, which must be harnessed to foster the productive capacity of the economy, from irrigation water for agricultural production to water for hydropower. Thus, the National Water Policy laments the fact that an insufficient percentage of water is currently harnessed for economic development and even calls for ‘non-conventional’ methods of water utilisation such as inter-basin water transfers and seawater desalination as large-scale, high technology solutions to improve overall water availability. This message is also found in the recent draft World Bank report stressing out that India has not developed enough big water infrastructures.

Beyond the relatively old characterisation of water as a natural resource, the underlying proposition for water sector reforms is that water is to be seen as an economic good. This implies an important shift in terms of the rights of control over and access to water. In fact, this leads to a complete policy reversal from the perspective that water is a public trust to the introduction of water rights and the possibility to trade water entitlements. As such, water-related rights are not new and there is already a vast corpus of law related to control over water. This includes, for instance, the absolute rights that the state may claim over water.[2] This also includes the rights and privileges that common law principles bestow over landowners. The novelty introduced by the reforms is that water rights are now created in favour of water users. These rights are the necessary premise for participation in the management of water resources, for the setting up of water user associations and for the introduction of trading in entitlements.

Another important change brought about by the notion that water is an economic good is that all water services must be based on the principle of (full) cost-recovery. In a situation where the provision of drinking and domestic water as well as irrigation water is substantially subsidised, this implies a significant policy reversal. At the national level, the policy is now to make water users pay at least for the operation and maintenance charges linked to the provision of water. This strategy is already being implemented in the context of irrigation water where farmers are made to pay for operation and maintenance costs. This has also been introduced under the Swajaldhara guidelines, which suggest that water users have to take up partial responsibility for the capital cost of new drinking water infrastructure and full responsibility for operation and maintenance.
The notion of cost recovery is directly linked to the environmental component of water sector reforms. Indeed, they are conceived as part of a single strategy. Further, cost recovery is, for instance, seen by the Asian Development Bank as the first instrument for conserving water.

National Water Policy

A comprehensive policy framework is needed to ensure an integrated approach to water resource development, with rational and equitable allocation of resources, and giving priority to the poor and unserved. Effective policy frameworks recognize the longer-term perspective of water as a finite and vulnerable resource, and address the whole water cycle. They also observe key behavioral roles at all levels. An effective policy framework should also include the establishment of standards and targets, as well as a system to monitor and use them as indicators for planning and management purposes. A national water sector strategy should state the government's objectives and the methods to be employed to achieve them. It will include investment and project development guidelines, which should aim to ensure that the development of water supply reflects considerations of water resource management and environment, such as equitable distribution of water resources and the prevention of pollution.

Redefinition of the Role of the Government

Water sector reforms include several proposals that affect the role that the government plays in the water sector. This includes both measures restricting the role that the government is playing as well as measures seeking to increase governmental control.

On the one hand, the main thrust of water sector reforms is to transform the role of the government by transferring part of existing governmental prerogatives to users and private actors. This includes, for instance, the transfer of operation, maintenance, management and collection of water charges to user groups. This is meant to foster a sense of ownership at the user level that the overbearing presence of the government in the water sector has not been able to foster. A second thrust of the reforms is to set up new bodies at the local and state level to take over part of the functions of the government. This includes the setting up of water user associations to locally manage irrigation schemes instead of local bureaucrats and also includes the much more broad-ranging setting up of new water regulatory bodies.

The reduction of the role of the state in the water sector is also linked to the promotion of the use of incentives to ensure that water is used more efficiently and productively. 66 The main consequence, which is derived from this, is the call for private sector involvement in all aspects of water control and use from planning to development and administration of water resources projects. An area, which is singled out for private sector participation, is urban water supply.

On the other hand, some of the existing reforms seek to foster increased state involvement in the water sector. In a number of areas, the state seeks to either maintain its de facto prerogatives or extend them. In the national policy, a clear statement is made to the effect that the government should be able to provide for the transfer of water from one river basin to another.[3] This is now being taken up in the context of the mammoth river inter-linking scheme. At the state level, an increasing number of states are seeking to control and regulate groundwater to foster its conservation and sustainability in its use.

The redefinition of the role of the government in the water sector has, for instance, been taken up in the context of the setting up of water regulatory authorities meant to take over part of the functions of existing government departments. The first experiment undertaken in India in this regard took place in Andhra Pradesh where a Water Resources Development Corporation Act was adopted as early as 1997. This Act largely sought to devolve existing governmental powers to a new institutional structure entrusted with the mandate of pushing water sector reforms forward.

Since 1997, there has been a lot of thinking in policy-making circles concerning water sector reforms and the type of measures that need to be taken to move the agenda forward. As a result, the most recent act setting up an independent water institution, the Maharashtra Water Resources Regulatory Authority Act, 2005 is quite different from the former and it is in fact expected that the latter act will be amended in view of the new scheme.
Firstly, under the Maharashtra Act, it has been attempted to completely exclude political leaders from the power structure. However, while the act takes a clear stand on paper to insulate the authority from political interference, the bureaucracy still has an important indirect role. The actual independence of the authority will thus have to be judged in practice rather than on the basis of the act.

Secondly, the Maharashtra authority has broad prerogatives to establish a regulatory system for the water resources of the state, including surface and ground waters, to regulate their use and apportion entitlements to use water between different recognised categories of use. Concurrently, the authority has to promote the efficient use of water, to minimise wastage and to fix reasonable use criteria. The authority also has the task of allocating specific amounts to specific users or groups of users according to the availability of water. It is further required to establish a water tariff system as well to fix the criteria for water charges. This is to be done based on the principle of full cost recovery of management, administration, operation and maintenance of irrigation projects. The authority is also called upon to lay down criteria for the issuance of water entitlements. Further, it has to set up criteria for trading in water entitlements or quotas.

One of the important consequences of the setting up of a water regulatory authority concerns the strengthened control over water resources, which is proposed. The act provides as a general principle that any water from any source can only be used after obtaining an entitlement from the respective river basin agency. This is qualified by a few exceptions such as wells (including bore and tube wells) used for domestic purposes or the grandfathering of existing uses of water for agriculture, at least in an initial phase. This illustrates the fact that while the role of the government is curtailed through the setting up of an independent authority, this does not necessarily translate into less regulatory intervention as far as water users are concerned. The overall impact is therefore as much to reduce the government’s role as to transfer and possibly strengthen control over water resources.

The increasing depletion of water resources, in particular groundwater, has led to the realisation that existing rules concerning the use of groundwater were unadapted to a situation of scarcity. As a result, the central government has put significant emphasis on the development of groundwater laws by the states. Regulatory intervention is premised on the need to control the use of groundwater to ensure that it is not unsustainably mined.
Legislative interventions concerning groundwater are significant for two main reasons. Firstly, from a legal perspective they constitute a major organised attempt at redrawing the rules concerning control and use of groundwater, which is still otherwise largely based on common law principles that make it part of the resources a landowner can use largely without outside control. Secondly, they constitute a response to the fact that over time groundwater has in various areas become the most important source of water and provides in particular 80 per cent of the domestic water supply in rural areas and supports around 70 per cent of agricultural production. This strengthens the case for ensuring the sustainable use of groundwater.

Groundwater has until recently largely been governed by old legal principles linked to a large extent to land ownership. Further, like in many other countries, from a legal perspective groundwater has until now been largely treated independently from surface water even though links have increasingly been acknowledged. As a result, until a few decades ago, there was little by way of statutory provisions concerning groundwater use and control and the central government’s intervention in this area was even less prominent than with regard to surface water. The increasing use of groundwater has led a spurt of legislative activity, which seems to be accelerating.

At the national level, even though the central government would find it difficult to justify groundwater legislation under the constitutional scheme, several attempts have been made over the past few decades to provide a model law that individual states can adopt. The first attempt dating back to 1970 did not have much success since virtually all states ignored it. More recent versions of the model bill, including the latest version unveiled in early 2005, are having more influence on legislative activity because groundwater regulation has become a priority in many states. In fact, several states have proposed groundwater related laws, which are related to the model law. This is, for instance, the case of the Kerala Ground Water (Control and Regulation) Act, 2002. As a result, the following paragraphs focus on the model bill since it provides the framework that a number of states are likely to adopt.

The basic scheme of the model bill is to provide for the establishment of a groundwater authority under the direct control of the government. The authority is given the right to notify areas where it is deemed necessary to regulate the use of groundwater. The final decision is taken by the respective state government. There is no specific provision for public participation in this scheme. In any notified area, every user of groundwater must apply for a permit from the authority unless the user only proposes to use a hand pump or a well from which water is withdrawn manually.

Decisions of the authority in granting or denying permits are based on a number of factors, which include technical factors such as the availability of groundwater, the quantity and quality of water to be drawn and the spacing between groundwater structures. The authority is also mandated to take into account the purpose for which groundwater is to be drawn but the model bill, mirroring in this the acts analysed above, does not prioritise domestic use of water over other uses. It is noteworthy that even in non-notified areas, any wells sunk need to be registered.

The model bill provides for the grandfathering of existing uses by only requiring the registration of such uses. This implies that in situations where there is already existing water scarcity, an act modelled after these provisions will not provide an effective basis for controlling existing overuse of groundwater and will at most provide a basis for ensuring that future use is more sustainable.

Overall, the model bill constitutes an instrument seeking to broaden the control that the state has over the use of groundwater by imposing the registration of all groundwater infrastructure and providing a basis for introducing permits for groundwater extraction in regions where groundwater is over-exploited. Besides providing a clear framework for asserting government control over the use of groundwater, the model bill also shows limited concerns for the sustainability of use. From this perspective, the model bill and the acts based on it are a welcome development that should provide scope for better control over the use of groundwater in general. However, further thinking needs to be put in making the model bill sensitive to social concerns. Some important provisions are currently missing from the model bill. These include the need to prioritise among uses and to put drinking and domestic water as the first priority. Further, the model bill does not differentiate between small and big users of groundwater, commercial and non-commercial uses and does not take into account the fact that non-land owners/occupiers are by and large excluded from the existing and proposed system, which focuses on the rights of use of landowners.

Existing Water Law Framework

Existing water law is made up of a number of different instruments. This is the case at the international level where only certain aspects of water law have been developed and where no international water law treaty exists. This is also the case within India where it remains difficult to identify a coherent body of comprehensive law concerning water. This is related to the fact that distinct concerns have been addressed in different enactments. This is also due to the division of powers between the centre and the states and the fact that water regulation is mostly in the hands of the states. This section first highlights some of the salient international instruments that are relevant in India. It then moves on to examine existing water regulation in India and the different principles that govern different types of water.

International Legal Framework

International water law includes a number of instruments. They may not all apply directly in India but contribute in various ways to the development of water law at the international as well as national levels. For many years, international water law included mostly treaties concerning navigation in international rivers, which constituted one of the early areas of collaboration among states. This has been expanded to many non navigational aspects over time but the focus on international watercourses remains an important part of water law, as exemplified in the Farakka treaty.[4] Indeed, the only multilateral treaty in the field of water is a convention concerning non-navigational uses of international watercourses. This treaty adopted in 1997 provides a framework for cooperation among states on international watercourses concerning the use of their waters apart from navigational aspects. The basic principle it proposes for using international watercourses water is equitable and reasonable utilisation.[5] The basis for watercourse use is therefore agreement among concerned states concerning their respective needs. While there was substantial debate concerning the place of environmental aspects and sustainability, the principle of sustainable utilisation has not been adopted as a principle that would override equitable and reasonable utilization.

The adoption of the convention was in itself a landmark development since it took UN member states many years to agree on this text. Nevertheless, the difficulties encountered in negotiating this convention are reflected in the fact that its scope is relatively limited. Thus, it only applies to international watercourses and is therefore not a convention addressing freshwater in general. Further, its operative principles are relatively outdated as it fails to break clearly with the traditional principle of equitable and reasonable use in favour of a sustainability based approach. While the convention does not break much new ground at the conceptual level, only 14 states have ratified it so far. Further, only 21 countries (including those that have ratified) have signed the convention. India has not even signed yet. Freshwater remains an issue over which states are fearful of losing control. As a result, even relatively weak coordination measures appear threatening to many.

Besides the UN 1997 Convention, there exist a number of international treaties that are directly or indirectly concerned with water. The UNECE Convention on impact assessment applies, for instance, in the case of dams and other water-related infrastructure projects.8 The Desertification Convention clearly links water and desertification. In fact, its objectives provision recognises that rehabilitation, conservation and sustainable management of water are key to combating desertification. The Convention on wetlands of international importance (Ramsar Convention) is intrinsically concerned with water.10 It is particularly noteworthy because it goes beyond the main water treaties insofar as it considers water, which is entirely under national sovereignty. Indeed, the scope of the Ramsar Convention is not limited to transboundary wetlands but includes wetlands that are entirely within the territory of a member state.

Besides treaties focusing on water or having a water dimension, there are a multitude of non-binding instruments concerning water. These include instruments focusing on water like the Dublin Statement that laid down principles for water sector reforms in the early 1990s. These also includes instruments not directly concerned with water like the Declaration on the Rights of Indigenous Peoples that specifically recognises the prior informed consent of indigenous peoples is necessary for any project affecting their water resources. Overall, international water law is both an old and highly developed area of law as well as an area in need of significant development. International water law is well developed with regard to cooperation among states concerning issues and activities that are clearly transboundary in scope such as navigation on international watercourses. In recent decades, the importance of collaboration on non-navigational aspects of international watercourses has rapidly grown and is now recognised as a core objective of international water law. However, international water law is yet to be effectively developed with regard to cooperation on issues related to water found within national boundaries. While this still seems to be beyond what most states can agree on at present, water is no different from biodiversity, which is also nearly entirely found under national jurisdiction. Yet, it is now already fifteen years since UN member states recognised that biodiversity is a ‘common concern’ of humankind, which is under state sovereignty but requires a degree of cooperation in conserving and sustainably using it.

Further, while international water law has at least started integrating an environmental perspective, the social and human rights dimension of water remain largely absent. The absence of a human right perspective in water law has been addressed from the perspective of human rights law through the adoption of General Comment 15 of the first Covenant.[6]

Legal Framework in India

National water law is more developed than international water law. Nevertheless, India lacks an umbrella framework to regulate freshwater in all its dimensions. The existing water law framework in India is characterised by the co-existence of a number of different principles, rules and acts adopted over many decades. These include common law principles and irrigation acts from the colonial period as well as more recent regulation of water quality and the judicial recognition of a human right to water. The lack of an umbrella legislation at the national level has ensured that the different state and central legal interventions and other principles do not necessarily coincide and may in fact be in opposition in certain cases. Thus, the claims that landowners have over groundwater under common law principles may not be compatible with a legal framework based on the human right to water and the need to allocate water preferentially to domestic use and to provide water to all, whether landowners or not on a equal basis.

In terms of statutory development, irrigation laws constitute historically the most developed part of water law. This is in large part due to the fact the colonial government saw the promotion of large irrigation works as central to its mission. This also included the need to introduce a regulatory framework in this area. As a result, some of the basic principles of water law applicable today in India derive from irrigation acts. The early Northern India Canal and Drainage Act, 1873 sought, for instance, to regulate irrigation, navigation and drainage in Northern India.

One of the long-term implications of this act was the introduction of the right of the Government to ‘use and control for public purposes the water of all rivers and streams flowing in natural channels, and of all lakes’.
The 1873 act refrained from asserting state ownership over surface waters. Nevertheless, this act is a milestone since it asserted the right of the Government to control water use for the benefit of the broader public. This was progressively strengthened. Thus, the Madhya Pradesh Irrigation Act, 1931 went much further and asserted direct state control over water: ‘All rights in the water of any river, natural stream or natural drainage channel, natural lake or other natural collection of water shall vest in the Government’.[7]

Colonial law in this area remains relevant to-date because acts like the 1931 MP act are still in force. Further, in MP again, the Regulation of Waters Act, 1949 reasserted that ‘all rights in the water of any natural source of supply shall vest in the Government’.[8] The much more recent Bihar Irrigation Act, 1997 still provides that all rights in surface water vest in the Government.[9] Statutory water law also includes a number of pre- and post-independence enactments in various areas. These include laws on embankments, drinking water supply, irrigation, floods, water conservation, river water pollution, rehabilitation of evacuees and displaced persons, fisheries and ferries.

In general, water law is largely state based. This is due to the constitutional scheme, which since the Government of India Act, 1935 has in principle given power to the states to legislate in this area. Thus, states have the exclusive power to regulate water supplies, irrigation and canals, drainage and embankments, water storage, hydropower and fisheries.[10] There are nevertheless restrictions with regard to the use of inter-state rivers.[11] Further, the Union is entitled to legislate on certain issues. These include shipping and navigation on national waterways as well as powers to regulate the use of tidal and territorial waters.[12] The Constitution also provides that the Union can legislate with regard to the adjudication of inter-state water disputes.[13] While no substantive clauses could be adopted at the time of the adoption of the Constitution, a specific act, the Inter-State Water Disputes Act was adopted in 1956.[14] This introduces a procedure for addressing disputes among states concerning inter-state rivers that have not been solved through negotiations. It provides for the establishment of specific tribunals to adjudicate such conflicts and has been used in several cases.[15]

Parliament also enacted the River Boards Act, which provides a framework for the setting up of river boards by the Central Government to advise state government concerning the regulation or development of an inter-state river or river valley.[16] River boards can advise state governments on a number of issues including, conservation, control and optimum utilisation of water resources, the promotion and operation of schemes for irrigation, water supply or drainage or the promotion and operation of schemes for flood control. This act has, however, never been used in practice.

While the intervention of the central government in water regulation is limited by the constitutional scheme, the importance of national regulation in water has already been recognised in certain areas. Thus, with regard to water pollution, Parliament did adopt an act in 1974, the Water Act.[17] This act seeks to prevent and control water pollution and maintain and restore the wholesomeness of water. It gives powers to water boards to set standards and regulations for prevention and control of pollution.

Besides statutory frameworks, a number of common law principles linking access to water and rights over land are still prevailing in India. These include separate rules for surface and groundwater. With regard to surface water, existing rules still derive from the early common rule of riparian rights. Thus, the basic rule was that riparian owners had a right to use the water of a stream flowing past their land equally with other riparian owners, to have the water come to them undiminished in flow, quantity or quality.[18] In recent times, the riparian right theory has increasingly been rejected as the appropriate basis for adjudicating water claims.[19] Further, common law rights must today be read in the context of the recognition that water is a public trust.[20] If the latter principle is effectively applied in the future, it would have important impacts on the type of rights and privileges that can be claimed over surface water.

Common law standards concerning groundwater have subsisted longer. The basic principle was that access to and use of groundwater is a right of the landowner. In other words, it is one of the rights that landowners enjoy over their possessions. The inappropriateness of this legal principle has been rapidly challenged during the second half of the 20th century with new technological options permitting individual owners to appropriate not only water under their land but also the groundwater found under neighbours’ lands. Further, the rapid lowering of water table in most regions of the country has called in question legal principles giving unrestricted rights to landowners over groundwater. Similarly, the growth of concerns over the availability of drinking water in more regions has led to the introduction of social concerns in groundwater regulation. As a result of the rapid expansion of groundwater use, the central government has tried since the 1970s to persuade states to adopt groundwater legislation.[21]

It is only over the past decade that some states have eventually adopted groundwater acts. The legal framework concerning groundwater is still in rapid evolution. It is likely that common law principles will be increasingly challenged despite the fact that the Plachimada high court decision seems to uphold land owners rights to a large extent like.[22] Further, groundwater is increasingly likely to be linked to surface water in the context of the setting up of water regulatory authorities that are called upon to manage surface and groundwater.

The existing legal framework concerning water is complemented by a human rights dimension. While the Constitution does not specifically recognise a fundamental right to water, court decisions deem such a right to be implied in Article 21 (right to life). The right to water can be read as being implied in the recognition of the right to a clean environment. In Subhash Kumar v. State of Bihar, the Supreme Court recognised that the right to life ‘includes the right of enjoyment of pollution free water and air for full enjoyment of life’.[23] In the Sardar Sarovar case, the Supreme Court went further and directly derived the right to water from Article 21. It stated that ‘water is the basic need for the survival of the human beings and is part of right of life and human rights as enshrined in Article 21 of the Constitution of India’.[24]

While the recognition of a fundamental right to water by the courts is unequivocal, its implementation through policies and acts is not as advanced. Water law includes a number of other laws and regulations that are directly or indirectly concerned with water. One example concerns dams. Two major aspects of dam building are regulated by laws and regulations, which are only partly concerned with water. With regard to environmental impact assessment, the Environmental Impact Assessment Notification provides a framework for assessing the environmental impacts of planned big hydropower and irrigation projects.

Further, there are Guidelines for Environmental Impact Assessment of River Valley Projects, which provide a general framework since 1985 for assessing the impacts of planned big dam projects. With regard to displacement, the main act that applies is still the Land Acquisition Act, 1894. This colonial act, which was enacted with the interests of the colonial government rather than the interests of displaced people in mind, gives the government significant control over the process of eviction very few rights.

In addition to all the laws, rules and regulation that make up water law, there is a substantial body of additional rules and regulations at the local level. These include the multiplicity of written or unwritten arrangements that regulate access to and use of water for domestic purposes or irrigation. An array of different rules govern, for instance, access to existing sources of drinking water. They run in many cases along caste lines even though other rules of access also exist. With regard to irrigation water, all human structures such as tanks and check dams include a system of allocation. Rules of access and control have often evolved over long periods of time but are often unwritten or not formally recognised in the legal system. As a result, they often run in parallel to ‘formal’ water rules and regulations. Another consequence of the lack of visibility of local level arrangements is that they can easily be displaced or extinguished by new laws that may fail to even acknowledge their existence.

The general picture, which emerges is that of a multiplicity of principles and rules, a multiplicity of instruments and the lack of an overall framework. While certain principles have remained relatively constant until recently like the assertion of the state’s right to use surface waters in the public interest, there have been a number of changes over time in the basic structure of water law, from the recognition of a human right to water to the introduction of the public trust doctrine. One general trend, which can be highlighted, is the gradual formalisation of water law. In most cases, this has had the effect of displacing or extinguishing existing local rules and arrangements. In other words, the introduction of water laws is often not done in a vacuum, as might be the case in certain other fields.

This is due to the fact that water has always been of central importance in most communities and formal or informal rules, based on social, religious or castes have existed in most places for centuries.

Water Law Reforms

Water law has been continuously evolving. Yet, the evolution witnessed over the first four decades after independence must be distinguished from recent and ongoing trends. While until the 1970s, water law can be seen as a field growing organically around issues and principles that were largely well settled, the past couple of decades have witnessed the beginning of a fundamental shake-up of water law. This is taking the form of reforms, which are changing and will change existing water law as well as expand the scope of regulation.

The reasons for water law reforms include physical as well as institutional reasons. Over the past decades, the water situation has become increasingly dire in many parts of the country. This is due to increased use of water by all categories of water users, to increased demand due to economic and population growth. This is also due to increased pollution of existing finite water resources, which not only restrict potential uses of available water but also threaten future use. One of the specific problems that have arisen is the dramatic increase in groundwater use, which has led to depletion in many areas.

Increasing use of water has led to a number of suggestions to remedy the situation. This includes new strategies to cope with all the various water-related issues. Water pollution has been addressed through the introduction of environmental measures to control and reduce it. Access to domestic water has been the object of various governmental and other programmes.

The provision of irrigation water and water to cities has, for instance, been taken up in the context of the construction of large dams.

There have also been progressive calls for changes of the law and policy framework concerning water. This is due to two broad factors. Firstly, the water law and policy framework was for a long time the object of relatively little attention. While many water-related laws were adopted over several decades, comparatively little was done to provide a broader integrated framework for water. Secondly, the recognition that there is a water crisis in most countries of the world and that availability of and access to freshwater will be a challenge for nearly all countries in coming decades has led to a number of international initiatives to reform water governance, law and policy in most developing countries. In other words, domestic and international factors have contributed to ongoing water law and policy reforms.

Water sector reforms have been proposed as a way to address diminishing per capita availability, increasing problems in water quality and increasing competition for control, access and use of available freshwater. They seek to comprehensively reform governance in the water sector. Current reforms seek in particular to reduce the role played by the public sector and to emphasise the direct contributions of individuals to their water needs and the participation of the private sector.

These governance changes are underpinned by a number of principles, which guide the reform process. This section highlights some of the main principles guiding the reforms and the kinds of measures and instruments adopted to implement them.

Major Problem Areas in Water Resource Management

Under valued water resource: Water supply for various sectors - domestic, agriculture and industrial - is subsidised by most governments. The subsidies are unrealistic and the pricing of bulk and retail water is nowhere near the long-term marginal cost. Water resource is highly under valued and underpriced, used without discrimination. The current water usage patterns are unsustainable.

Allocation between various sectors: In the face of widening gap between demand and supply in terms of both quality and quantity, there is intense competition between sectors looking for low quality water (agriculture) and low volumes of high quality water (domestic consumption). Disputes over limited resources will continue between agricultural, industrial and domestic users unless suitable prioritization measures are taken.

Degraded environment:

The challenge of sustainable water resources is to efficiently maintain sufficient supply and good quality of water over time and space in order to sustain human activities without degrading the environment. Human activities and social development must be carried out within the capacity limits of the natural resources. Over exploitation of ground water aquifers and pollution caused by agricultural chemicals decline the quality of water.

Disparities in distribution of resources:

Disparities in distribution of water pose a serious problem in areas within under developed and developing countries. Insufficient infrastructure in these regions can intensify the inequalities causing greater scarcity. In the developing world two-thirds of the population lack safe drinking water supplies and environmental sanitation adequate for life support and public health.

Global climate change: Higher temperatures and decreased precipitation lead to decreased water supplies and increased water demands. Climate change could impact the hydrological cycle and water management systems.

Inadequate policies:

Decision and policy making are often inadequate. Policies are politically motivated and cater to populist sentiments, lacking consideration of long term consequences and holistic approach. Awareness of the water issues is high only in times of drought and extreme shortage and dramatic degradation in quality with little attention given to long term preventive measures. Examples include the discharge of inadequately treated domestic sewage and industrial waste water into water bodies, poor agricultural practices which can cause pollution and unbalanced ecosystems. Water resource management becomes ineffective when many agencies are involved.

Major health and environmental problems:

Public health and environmental quality are threatened because of degraded water sources. Water borne diseases cause death of millions of people each year and prevent millions more from living healthy lives. Pollution affects water quality and also diminishes the amount of usable water available. As water becomes scarce, sanitation, irrigation and life support functions essential to human survival and public health are compromised.

Lack of databases:

Databases of the quantity and quality of water and the consumption patterns of the various sectoral users are necessary to take effective decisions. Adequate information flows are not available because the bodies administering the water resources seldom have the financial resources necessary for undertaking the exercise of collection and analysis of a large amount of data.

Desirable Policies for Effective Water Resource Management

Proper pricing: The pricing of this valuable resource must be realistic and should take into account long term marginal costs. At the same time people who cannot afford the high tariffs should be kept in mind while pricing. All water related services like sanitation and irrigation drainage should be progressively financed.

Incentives for effective management:

Incentives should be given to the industries in the form of reduced taxes for treating effluents and improving water quality. At the same time heavy polluters should be made to pay heavy taxes. Pollution charges send economic signals to users, encouraging wastewater treatment and reuse.

Adequate infrastructure:

The distribution of water resources is not uniform geographically. Adequate infrastructure is necessary to connect the supply source to distribution points. The investments made in water related infrastructure investments should be encouraged through tax benefits.

Haring arrangements:

Open, transparent and continuous process of consultation and participation is essential if natural water resources are to be managed in an equitable and sustainable fashion. The role of central and state governments as providers of technical support and policy makers should be supported by local (district) action as mobilizers or promoters of community based management to yield positive results in terms of income generation and environmental protection.

Integrated approach:

Overall awareness of hydro-environmental limits to water resource mobilisation is generally poor. Political commitment and public education to promote resource protection and conservation is inadequate. Awareness raising must be matched by incentives to change. The consumers should be informed of the current and future costs and levels of profligate use. A carefully orchestrated policy of public education, pricing policy and engagement of consumer interest groups needs to be considered. Locally led initiatives can show that water can be used more effectively.

Creation of databases:

A complete database, which gives a true picture of availability and consumption patterns of water, is immensely useful in determining and forecasting the levels of scarcity or abundance. It can create opportunities for trading and productivity gains through more efficient use.

Technological innovations:

New technologies should be developed for economically viable wastewater treatment. Adequate funding should be provided for this purpose by the government.

Artificial lakes:

Artificial lakes, capable of supporting ecosystems, should be created. In low-lying areas, rain water should be collected to create artificial lakes instead of dumping garbage. Existing lakes should be frequently desalted and cleaned. Water plants should not be allowed to grow on the surface of water.


Necessity of State Water Policy

Water is a natural resource, fundamental need of living being and invaluable national wealth. In the developmental planning of the state, water is a decisive and multifaceted component. For environmental balance, skillful and planned management for all types of developmental activities, economic use on the equitable basis and in view of the prime importance of water for all human and other living beings, an effective and sound water policy is necessary.
Under the constitution, water resource is recognized as a state subject. State Water Policy is prescribed in accordance to the guidelines and general directions in the National Water Policy, keeping in view the specific necessity for the state of Madhya Pradesh. In view of the inter-state water disputes, the State Water Policy has specific importance.

Information System: Developed information system is the principal necessity in the planning of water resources. Apart from availability of water and data of its actual use, this system should be able to indicate the availability of water for different purposes in future by way of credible and broader projections. Present information and data network including data of processing capabilities should be improved to make it broader, modern and effective. Emphasis should be given for greater use of Remote Sensing technique. It should be made mandatory for users and regulatory departments to maintain all necessary data for compilation of storage of surface and ground water.

The use of available Water Wealth for different purposes: The water resources development shall be planned on the basis of river basin or sub- basin. Each development project shall be designed in such a manner that each basin or sub-basin is inherently integrated water resources planning so that the best alternative can be identified.

Project Planning: The scope of water resource planning shall be multipurpose and it shall be essential to have the provision for drinking water and development of hydroelectricity. For enhancement of fisheries production integrated development projects shall be taken up.

Policy for development of inter-state navigation be decided and possibilities of in-land navigation be explored. The study regarding impact of projects on life and profession of human being and their economy, social and other aspects should be an essential part of the project planning. The study of impact on the quality and environmental balance should be considered at first in the planning, execution and operation of the projects. The delay in construction of water resources projects, increase in their cost and reduction of benefits should be secured by upgrading the quality of projects preparation and management. In view of providing benefits to the schedule tribes, schedule casts and other special backward classes, special projects of water resources development should be taken up and representation of these groups in operation and maintenance of projects shall be ensured.

Maintenance and Modernization:

A time bound upkeep of the dams and canal systems should be carried out and time-to-time programmes for their rehabilitation should be undertaken. It is an immediate need to reconstruct and rehabilitate the vast irrigation network of the state for future requirements. These canal systems need modernization and enhancement in their efficiencies. The guidelines issued for the safety of dams should be examined, from time to time and revised, if necessary.

Ground Water Development:

While planning projects, attention should be given for development and conjunctive use of surface and ground water, and it should be made part of the project. Availability of ground water potential should be assessed after every ten years compulsorily and exploitation of ground water should be controlled on the scientific basis. The ground water should be utilised only to the extent, which can be recharged. For recharging the ground water methods of construction of minor irrigation tanks/percolation tanks should be adopted. Priority should be given to exploitation of ground water resources for drinking water purposes. Within the jurisdiction of municipal bodies ground water shall not be utilised without their permission for private use or any other purpose. If availability of ground is more than the requirement of drinking water of a municipal body then the ground water can be used for any other purpose with due permission of the body.

Water allocation priorities:

In the planning and operation of system water allocation priorities shall be as under:
• Drinking water supply,
• Irrigation and afforestation,
• Power generation/industrial and other uses,
• Tourism.
Water resources department shall be made a nodal department for permitting different uses of water resources. Clear provision for reservation of drinking water shall be made in proposed irrigation projects of the state, on river, reservoirs, tanks etc.

Drinking Water and Quality Control:

The facility of sufficient drinking water shall be extended to the entire urban and rural population. The quality of the surface water and ground water shall be tested on regular basis by concerned departments. It should be made mandatory to treat the industrial and urban waste to the required standards before these are allowed to flow in a stream. The necessary laws should be formulated for protecting the water resources from unauthroised encroachment and also for maintaining the standard quality of water.

Irrigation and Land Management:

In water resources planning, amongst the available options/alternatives, optimum cost benefit alternative shall be selected. The policies of land use and its levelling shall be co-related with the policy of water use. Irrigation potential shall be utilised to the maximum, so that the gap between irrigation potential and actual Irrigation can be reduced. The provision shall be made to provide irrigation on priority basis in the fields of marginal and small farmers. To promote drip and sprinkle irrigation there is a need to set up model farms in the command areas of every canal with the help of Agriculture Department.

Rationalization of Water Rates:

Water rates should be such which conveys the beneficiary the scares value of water, its importance and motivates them for the economical use of water. Water rates necessarily shall be such that the project shall be self-supported. For the use of water for private purposes, rates shall be determined in such a manner so that the water can be used strictly in accordance to the prescribed priorities laid down in the policy. Due to the importance of the forest for protection of environment, concessional rates of water shall be fixed for afforestation.

Participation in Water Management:

To improve water planning, avoid disparity in water distribution and status of available services rendered to farmers, participation of beneficiary groups in operation and maintenance shall be ensured.

Participation of Non-Governmental Institutions:

In water sector, the non-governmental agencies and commercial organizations should have financial and management participation. This type of participation shall be at all levels in project planning, construction and maintenance.

Establishment of Water Zones and Water Shed Management:

On the basis of availability of water the state shall primarily be divided into three regions (East, Central and West) per hectare cost of Irrigation development shall be based on separate criteria in the East, Central and West regions, strictly in accordance to geographical & climatic conditions. Special attention shall be given to catchment area treatment and water shed management. Watershed management shall also include soil conservation, catchment area treatment, forest conservation and afforestation programme. To improve soil- recharging capacity, plantation by demarcating green belts shall be done, wherever possible. Special water resources development projects shall be formulated for hilly region.

Flood Control and Management:

Master Plan shall be prepared for flood-affected areas for controlling the flood and providing protection. The additional storage capacity of water shall be provided in the reservoirs for accommodating the flood water. An intensive network for flood forecasting shall be established. Erosion of soil caused by the rivers shall be minimized by adopting economical remedial measures. Efforts shall be made to prevent the uncontrolled use of river and river banks for habitation and farming, to control the on going economic activities in the area.

Scarcity Area Management:

In drought prone areas, to reduce the problem and severeness related to drought, measures like water harvesting, soil humidity protection, works related to increase the ground water table and transfer of water from area having surplus water to scarce water area etc shall be adopted. Development of grazing fields, afforestation and similar other works shall be encouraged. Priorities shall be given to the scarcity areas in the planning of water resources development and a special water management system shall be developed for economical use of water in these areas.

Science and Technology:

It is necessary that multifaceted exposure and avenues be provided to the technical knowledge for efficient and appropriate water resources management. Intensive research work is essential in the following areas:
• Hydrometeorology
• Hydrology
• Ground water science and recharging of the ground water
• Economical use of water
• Appropriate methods for the conservation of water in the fields, development of water wealth in the catchment areas.
• Economical design of water resources projects
• Continuity of flow of water in the rivers and purity of drinking water
• Scientific study of crop-pattern
• Study of silting processing in the reservoirs and measures to minimize it.
• Safety of water conservation structures
• Research on river formation works and construction material
• Water distribution system
• Remote sensing techniques
• Purification of water and its likely reuse.
• Effective water drainage system
• Risk analysis and Disaster Management

There shall be inclusion of regional planning for information system, designing of project, construction, operation and efficient water distribution system for providing standarized training. Farmers shall also be included with personnel of all levels involved in the water resources management for training. The prime object of the training shall be to achieve maximum production from per unit use of water.

Despite well-intentioned policy documents, providing safe drinking water to citizens remains a problem for both India and South Africa. However, the usual call for ‘policy makers’ to listen and draft new policies, is not very effective. There is a need for a thorough re-examination of existing procedures and norms of government and NGO functioning, following a clear understanding of the linkages, roles and responsibilities of the various institutions engaged in providing water supply services, especially to rural communities.

Such a re-examination is best carried out in a facilitated multi-stakeholder setting, with a clear mandate to modify procedures and institute mechanisms that improve water supply services to the level required by the Constitution. Within this process NGOs and external projects can play an important part, namely carrying out pilot projects, research and analysis and the infusion of new ideas.

Water law is made of a number of formal and informal laws, rules and principles. It has evolved over time in a relatively uncoordinated and ad hoc manner. This started to change with the progressive realisation that existing laws were inappropriate to ensure access to water to all for domestic purposes and inappropriate because of the fast increasing use of a finite resource. Over the past couple of decades, a more coordinated effort at changing water law has been put in place. This is based on a relatively specific set of principles that are meant to guide the overall development of water law. This is meant to make water law suitable to face the challenges of the water sector in the 21st century.

While water law reforms are more than welcome given existing problems with water, it is unlikely that law reforms based on the principles put forward in the water sector reforms constitute an appropriate response. Ongoing water law reforms may contribute to enhancing water management but they are conceptually incapable of addressing the human right, social, environmental and health aspects of water. This is regrettable because any water law, which is not based on the constitutional right to water and the principle of public trust, is bound to fail as a legal tool and in its implementation as far as the overwhelming majority of people is concerned.
Yet, avenues do exist to broaden reforms of water law. At the international level, some treaties are leading the way towards conceiving water law more broadly. Thus, the UN Economic Commission of Europe has adopted a convention, which is broader than the 1997 UN Convention in scope insofar as it applies to Tran boundary waters in general. It is also based on a more progressive set of principles. This includes not only the fact that it strongly emphasise the need to prevent and reduce transboundary harm but also that it is based on the precautionary principle and inter-generational equity. The UNECE convention reflects much more than the UN convention developments in environmental law and related principles that have come to inform all treaties concerning environment and development issues. The convention is also opened to universal membership even though other states have not ratified it yet. Similarly, at the national level, countries such as Brazil and South Africa have adopted water laws that seek to provide a comprehensive regulatory answer to the problems identified. While the adoption of a comprehensive federal water legislation is not a precondition to ensure that water law achieves its social, human rights and environmental goals, this would constitute an appropriate starting point to realise the right to water and the principle of public trust throughout the country.

The current rate of population growth, combined with the growing strain on available water resources, India could well have the dubious distinction of having the largest number of water-deprived persons in the world in the next 25 years. This is the scenario if the available resources are not managed judiciously and with care.

Urbanization and an ever-increasing population in the recent decades have contaminated water bodies, thus making them unfit for use. These, coupled with growing needs, have led to increasing dependency on ground water. Excessive tapping of ground water, through numerous boreholes, has led to a decline in the water table, whose means of replenishing itself have been greatly hampered.

Eighty-five per cent of India’s urban population has access to drinking water but only 20% of the available drinking water meets health and safety standards. It is estimated that by the year 2050, half of India’s population will be living in urban areas and will face acute water problems. Furthermore, there are serious inequities in the distribution of water. Consumption of water ranges from 16 litres per day to 3 litres per day depending on the city and the economic strata of the Indian consumer.[25]

The water in rivers is wasted as it flows into the oceans and is not properly harnessed. The debate on dams as a means of harnessing water continues to make this issue politically and environmentally sensitive. No clear ecologically stable and financially viable solution has emerged. Water projects can bring many positive changes to the lives of poor people and can work particularly to improve the lives of rural women, small farmers etc. Governments play and will continue to play a critical role in rural development and resource management. Governments define the legal, policy and institutional frameworks within which water resources are managed and rural economies and societies function. The concept of Pani Panchayats has come to stay, if the state functionaries fail in their duty to provide basic means of livelihood to its masses, the people will and should be encouraged to manage their own local resources. To this end, if conservation of wetlands is left to the management of local self government institutions, this will dilute State entity and will lead to increased people participation in decision making. If every State adopts strategy to tap rain water, scarcity would be a matter, forgotten.

· United Nations Development Programme, Human Development Report 2006 – Beyond Scarcity: Power, Poverty and the Global Water Crisis 1 (New York: UNDP, 2006).
· http://www.ielrc.org/content/e9703.pdf.
· Constitution of India.
Inter-State Water Disputes Act, 1956
Narmada Water Disputes Tribunal, Final Order and Decision of the Tribunal, 12 December 1979, available at http://www.ielrc.org/content/c7901.pdf.
Water (Prevention and Control of Pollution) Act, 1974
· http://www.twnside.org.sg/title/2139.htm

· http://slirsredirect.search.aol.com/slirs_http/sredir?sredir=1097&invocationType=tb50hpcmnb-400error-en-us&query=www.indiawaterportal.org/node/10099

· http://slirsredirect.search.aol.com/slirs_http/sredir?sredir=1097&invocationType=tb50hpcmnb-400error-en-us&query=www.water.mottmac.com

· http://slirsredirect.search.aol.com/slirs_http/sredir?sredir=1097&invocationType=tb50hpcmnb-400error-en-us&query=\Users\GADHRE\Desktop\final trim Projects\WL New\cre-water1.htm

[1] United Nations Development Programme, Human Development Report 2006 – Beyond Scarcity: Power, Poverty and the Global Water Crisis 1 (New York: UNDP, 2006).
[2] Section 26, Madhya Pradesh Irrigation Act, 1931 and Section 3, Madhya Pradesh Regulation of Waters Act, 1949.
[3] Section 3(5), National Water Policy, 2002.
[4] Treaty on Sharing of the Ganges Waters at Farakka, New Delhi, 12 December 1996, 36 Int’l Leg. Mat. 519 (1997).
[5] Convention on the Law of the Non-navigational Uses of International Watercourses, New York, 21 May 1997, reprinted in P. Cullet & A. Gowlland-Gualtieri eds, Key Materials in International Environmental Law 481
[6] Committee on Economic, Social and Cultural Rights, General Comment 15: The Right to Water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2002/11 (2002)
[7] Article 26, Madhya Pradesh Irrigation Act, 1931
[8] Section 3, Madhya Pradesh Regulation of Waters Act, 1949.
[9] Section 3(a), Bihar Irrigation Act, 1997, available at http://www.ielrc.org/content/e9703.pdf.
[10] Schedule 7, List 2, Entries 17 and 21, Constitution of India.
[11] Schedule 7, List 1, Entry 56, Constitution of India.
[12] Schedule 7, List 1, Entries 24, 25 and 57, Constitution of India.
[13] Article 262, Constitution of India.
[14] Inter-State Water Disputes Act, 1956, available at http://www.ielrc.org/content/e5601.pdf.
[15] Narmada Water Disputes Tribunal, Final Order and Decision of the Tribunal, 12 December 1979, available at http://www.ielrc.org/content/c7901.pdf.
[16] River Boards Act, 1956, available at http://www.ielrc.org/content/e5602.pdf.
[17] Water (Prevention and Control of Pollution) Act, 1974
[18] Hanuman Prasad v. Mendwa, AIR 1935 All 876.
[19] Chapters 8 and 9, Report of the Narmada Water Disputes Tribunal with its Decision in the Matter of Water Disputes Regarding the Inter-State River Narmada and the River Valley Thereof Between the States of Gujarat, Madhya Pradesh, Maharashtra and Rajasthan (New Delhi: Government of India, vol. 1, 1979).
[20] M.C. Mehta v Kamal Nath, 1997 1 SCC 388.
[21] Model Bill to Regulate and Control the Development and Management of Ground Water, 2005.
[22] Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat, M. Ramachandran & K.P. Balachandran (JJ), 7 April 2005.
[23] AIR 1991 SC 420.
[24] Narmada Bachao Andolan v. Union of India, Writ Petition, AIR 2000 SC 3751
[25] http://www.twnside.org.sg/title/2139.htm

The author can be reached at: gadhre@legalserviceindia.com


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