In this article, Anu Bhatnagar discusses the water laws prevalent in India.

Introduction

• 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 a vital component always – together with human life – on earth and as a result’s a core concern in law. From a legal perspective, the UNDP justifiedly emphasizes the importance of the right dimension of water.
• Yet, in observe, water law is created of variety of parts comprising somebody’s right dimension, as well as economic, environmental or agricultural aspects. Above all, traditionally, one amongst the central issues of water law has been the event of principles regarding access to and management of water.
• At the domestic level, colonial legislation 1st targeted on the regulation of water for economic reasons, for example, through the development of legislation regarding irrigation and navigation.
• Over the past few decades, increasing water pollution and decreasing per capita availableness have junction rectifier to the event of different measures like water quality regulation and a stress on water delivery, significantly in cities, furthermore as environment-related measures.
• Yet, water law remains mostly sectoral to-date. At the international level, water regulation 1st targeted totally on navigation in international watercourses. It’s increasingly evolved to embrace problems regarding the sharing of high sea.
• International water law has, however, not however reached the stage wherever it provides Associate in medicate overall regime for the regulation of water uses. In India, water law is created of various parts. It includes international treaties, federal and state acts. It also includes variety of less formal arrangements, as well as water and water-related policies further as customary rules and rules.
• This paper maps out the relevant legal framework regarding water in Republic of India.
• The first section delineates water law because it evolved till recently.
• The second section then examines planned and ongoing water law reforms that square measure within the method of fully redrawing India’s water legal framework.

FOUNDATION OF THE EXISTING WATER LAWS IN INDIA

Existing water law is formed from variety of various instruments. This can be the case at the international level where solely sure aspects of water law are developed and wherever no international water law written agreement exists. This is conjointly the case among India wherever it remains troublesome to spot a coherent body of comprehensive law concerning water. This can be associated with the very fact that distinct issues are self-addressed in several enactments. This is conjointly owing to the division of powers between the centre and therefore the states and therefore the indisputable fact that water regulation is mostly within the hands of the states.

This section initially highlights  the salient international instruments relevant in India. It then moves on to look at existing water regulation in the India and therefore the totally different principles that govern differing types of jurisdictions relating to water.

SUBJECT TO INTERNATIONAL FRAMEWORK

International water law includes variety of instruments. They’ll not all apply directly in the Asian nation, however, contribute in numerous ways that to the event of water law at the international additionally as national levels.

For many years, international water law enclosed principally treaties regarding navigation in international rivers, which ingrained one in all the first 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.[2]
• Indeed, the only multilateral treaty in the field of water is a convention concerning non-navigational uses of international watercourses.[3]
• 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.[4]
• The basic principle it proposes for using international watercourses water is equitable and reasonable utilization.[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 utilization has not been adopted as a principle that would override equitable and reasonable utilization[6].
• The adoption of the convention was in itself a landmark development since it took UN member states many years to agree on this text.[7]
• 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 recognizes that rehabilitation, conservation and sustainable management of water are key to combating desertification.[9]
• The Convention on wetlands of international importance (Ramsar Convention) is intrinsically concerned with water[10]

EXISTING LEGAL FRAMEWORK IN INDIA

• National water law is additionally developed than international water law. Yet, India lacks Associate in nursing umbrella framework to regulate fresh altogether its dimensions. The prevailing water law framework in India is defined by the existence of variety of various principles, rules and acts adopted over several decades.
• These embrace common law principles and irrigation acts from the colonial amount also as more modern regulation of water quality and the judicial recognition of somebody’s right to water. The dearth of Associate in nursing umbrella legislation at the national level has ensured that the various state and central legal interventions and alternative principles don’t essentially coincide and may in truth be con in bound cases.
• Thus, the claims that landowners have over groundwater underneath common law principles might not be compatible with a legal framework supported the right to water and therefore the need to all or administer water preferentially to domestic use and to produce water to all, whether or not landowners or not on a equal basis.

The existing legal framework concerning water is complemented by a human rights dimension. While the Constitution does not specifically recognize a fundamental right to water, court decisions deem such a right to be implied in Article 21 (right to life).[11] 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 recognized that the right to life ‘includes the right of enjoyment of pollution free water and air for full enjoyment of life.’[12] In the Sardar Sarovar case, the Supreme Court went further and directly derived the right to water from Article 21. It stated that ‘[w]ater 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’.[13] While the popularity of a basic right to water by the courts is unequivocal, its implementation through policies and acts isn’t as advanced.

Water law includes variety of alternative laws and laws that area unit directly or indirectly involved with water. One example issues dams. Two among many there are major aspects of dam building area unit regulated by laws and laws, which are only partially involved with water.

• The general image, that emerges is that of a multiplicity of principles and rules, a multiplicity of instruments and the lack of Associate in medicate overall framework. Whereas bound principles have remained comparatively constant till recently like the assertion of the state’s right to use surface waters within the public interest, there are varieties of changes over time within the basic structure of water law, from the popularity of a personality’s right to water to the introduction of the public trust belief.
• One general trend, which may be highlighted, is that the gradual formalization of water law. In most cases, this has had the impact of displacing or termination existing native rules and arrangements. In other words, the introduction of water laws is commonly not exhausted a vacuum, as can be the case inbound different fields. This is as a result of the actual fact that water has perpetually been of central importance in most communities and formal or informal rules, supported social, spiritual or castes have existed in most places for hundreds of years.

WATER LAWS IN INDIA: A FINAL REMARKS

Water law is created of a variety of formal and informal laws, rules and principles. It’s evolved over time during a relatively uncoordinated and accidental manner. This began to amendment with the progressive realisation that existing laws were inappropriate to confirm access to water to all or any for domestic functions and inappropriate owing to the fast increasing use of a finite resource.

• Over the past number of decades, an additional coordinated effort at dynamical water law has been place in situ. This can be supported a comparatively specific set of principles that area unit meant to guide the overall development of water law. This can be meant to form water law appropriate to face the challenges of the water sector within the twenty first century.
• While water law reforms area unit quite welcome given existing issues with water, it’s unlikely that law reforms based on the principles argue within the water sector reforms represent associate applicable response.
• Current water law reforms might contribute to enhancing water management however they’re conceptually incapable of addressing the human right, social, environmental and health aspects of water. this can be unfortunate as a result of any water law, which is not supported the constitutional right to water and also the principle of charitable trust, is absolute to fail as a legal tool and in its implementation as so much because the overwhelming majority of individuals worries.
• Yet, avenues do exist to broaden reforms of water law. At the international level, some treaties are leading the approach towards conceiving water law a lot of broadly speaking.
• Thus, the United Nations Economic Commission of Europe has adopted a convention, that is broader than the 1997 United Nations Convention in scope to that degree because it applies to transboundary waters in general. it’s additionally supported a  lot of progressive set of principles.
• This includes not solely the very fact that it powerfully emphasise the necessity to stop and scale back transboundary damage however additionally that it’s supported the preventive principle and inter-generational equity. The UNECE convention reflects far more than the UN convention developments in environmental law and connected principles that have come back to tell all treaties regarding environment and development problems.
• The convention is additionally opened to universal membership even supposing different states haven’t legal it nevertheless. Similarly, at the national level, countries like Brazil and South Africa have adopted water laws that ask for to produce a comprehensive regulative answer to the issues known. While the adoption of comprehensive federal water legislation isn’t a precondition to confirm that water law achieves its social, human rights and environmental goals, this may represent associate degree acceptable start line to understand the right to water and therefore the principle of trust throughout the country.

References

[1] United Nations Development Programme, Human Development Report 2006 – Beyond Scarcity: Power, Poverty and the Global Water Crisis 1 (New York: UNDP, 2006).

[2] Treaty on Sharing of the Ganges Waters at Farakka, New Delhi, 12 December 1996, 36 Int’l Leg. Mat. 519 (1997).

[3] 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 (Aldershot: Ashgate, 2004).

[4] Id. Article 1.

[5] Id. Article 5.

[6] See, e.g., Patricia Wouters, The Legal Response to International Water Scarcity and Water Conflicts: The UN Watercourses Convention and Beyond 20 (Dundee, 2003), available at http://www.dundee.ac.uk/iwlri/Documents/ Research/IWLRI%20Team/Wouters/GYIL.pdf.

[7] The mandate for the development and codification of the law of non-navigational use of international watercourses was first given to the International Law Commission in 1970. See General Assembly Resolution 2669 (XXV), Progressive Development and Codification of the Rules of International Law Relating to International Watercourses, 8 December 1970.

[8] Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, 25 February 1991, reprinted in Cullet & Gowlland-Gualtieri, note 3 above at 29. This convention is open for global membership though India has not joined yet

[9] Article 2, United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, reprinted in Cullet & Gowlland-Gualtieri, note 3 above at 267.

[10] Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Ramsar, 2 February 1971, reprinted in Cullet & Gowlland-Gualtieri, note 3 above at 248.

[11] See generally S. Muralidhar, ‘The Right to Water: An Overview of the Indian Legal Regime’, in Eibe Riedel & Peter Rothen eds., The Human Right to Water 65 (Berlin: Berliner Wissenschafts-Verlag, 2006).

[12] Paragraph 7, Subhash Kumar v. State of Bihar, AIR 1991 SC 420.

[13] Paragraph 274, Narmada Bachao Andolan v. Union of India, Writ Petition (Civil) No. 319 of 1994, Supreme Court of India, Judgment of 18 October 2000, AIR 2000 SC 3751, reproduced in Philippe Cullet ed., Sardar Sarovar Dam Project: Selected Documents (Aldershot: Ashgate, forthcoming 2007).