This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses water laws in India, the national policy and water law framework along with the reforms and the role of the government.
National Water Policy
A comprehensive policy framework is needed to ensure an integrated approach to the development of water resources, with rational and equitable resource allocation and prioritizing the poor and the unsaved. Effective policy frameworks recognize water as a finite and vulnerable resource from the long-term perspective and address the entire water cycle. They also observe key roles of behavior at all levels. An effective policy framework should also include setting standards and targets, as well as a system for monitoring and using them as planning and management indicators.
A national strategy for the water sector should set out the goals of the government and the methods to be used to achieve them. It will include investment and project development guidelines to ensure that water supply development reflects water resource management and environmental considerations, such as equitable water resource distribution and pollution prevention.
Existing Water Law Framework
A number of different instruments make up the existing water law. On the international level, this is the case where only certain aspects of water law have been developed and there is no international water law treaty. This is also the case in India where a coherent body of comprehensive water law remains difficult to identify. This is related to the fact that the various acts addressed separate concerns.
This is also due to the division of powers between the center and the states and the fact that water regulation is largely in the states’ hands. First, this section highlights some of India’s prominent international instruments. It then proceeds to examine existing water regulation in India and the various principles governing different water types.
Role of the Government
In policy-making circles, there has been a lot of thinking about reforms in the water sector and the type of measures that need to be taken since 1997. As a result, the most recent Act establishing an independent water institution, the Maharashtra Water Resources Regulatory Authority Act, 2005, is quite different from the previous one, and the latter Act is expected to be amended in view of the new scheme.
First, under the Maharashtra Act, attempts have been made to exclude political leaders from the structure of power completely. While the act takes a clear stand on paper to isolate the authority from political interference, the bureaucracy still has a significant indirect role to play. Consequently, the authority’s actual independence will have to be judged in practice rather than on the basis of the Act.
Second, the Maharashtra Authority has broad prerogatives for establishing a regulatory system for the state’s water resources, including surface and ground waters, to regulate their use and distribution entitlements to use water between different categories of use recognized. At the same time, the authority must promote the efficient use of water, minimize waste and establish criteria for reasonable use. The authority also has the task of allocating specific amounts depending on the availability of water to specific users or groups of users.It is also necessary to set up a water tariff system to set the water charging criteria. This is to be done on the basis of the principle of full cost recovery of irrigation project management, management, operation and maintenance. The authority is also required to establish criteria for issuing water claims. It must also establish criteria for trading in water allowances or quotas.
One of the major implications of establishing a water regulatory authority is the proposed enhanced control of water resources. As a general principle, the act provides that any water from any source can only be used after the respective river basin agency has obtained an entitlement. This is qualified by a few exceptions such as wells used for domestic purposes (including bore and tube wells). This illustrates the fact that while the government’s role is curtailed by establishing an independent authority, this does not necessarily translate into less regulatory intervention when it comes to water users. Therefore, the overall impact is as much to reduce the role of the government as to transfer and possibly enhance control over water resources.
Legal Framework in India
- Irrigation laws are historically the most developed part of water law in terms of statutory development. This is largely due to the fact that the colonial government saw as central to its mission the promotion of large irrigation works. This included the need for a regulatory framework to be introduced in this area. As a result, some of the basic water law principles currently in force in India are derived from irrigation acts. For example, in Northern India, the early Northern India Canal and Drainage Act of 1873 sought to regulate irrigation, navigation, and drainage.
- One of the long-term consequences of this act was the introduction of the government’s right to use and control the water of all rivers and streams flowing through natural channels and all lakes for public purposes. The Act of 1873 refused to assert ownership of the state over surface waters. This Act, however, is a milestone as it affirmed the government’s right to control water use for the benefit of the wider public. This has been gradually reinforced. Thus, the 1931 Madhya Pradesh Irrigation Act went much further and asserted direct control of water by the state: ‘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’.
- Colonial law remains relevant in this area as acts such as the MP Act of 1931 are still in force. Furthermore, the 1949 Regulation of Waters reaffirmed in the MP that’ all rights in water of any natural source of supply shall be in the hands of the Government. The much more recent Bihar Irrigation Act, 1997, still provides that all rights in surface water shall be in the hands of the Government.
- Water law is predominantly based on state. This is due to the constitutional scheme, which in principle has given the states the power to legislate in this area since the Government of India Act, 1935. States therefore have the exclusive power to regulate water supplies, irrigation and canals, drainage and reservoirs, water storage, hydropower and fishing. However, there are restrictions on the use of inter-state rivers. In addition, the Union has the right to legislate on certain issues. These include national waterways shipping and navigation, as well as powers to regulate the use of tidal and territorial waters.
- The Constitution also provides that in adjudicating inter-state water disputes, the Union can legislate. Although no substantive clauses could be adopted when the Constitution was adopted, a specific act was adopted in 1956, the Inter-State Water Disputes Act. This introduces a process for dealing with disputes between states over inter-state rivers that have not been resolved through negotiations. It provides for specific tribunals to be set up to adjudicate such conflicts and has been used in several cases.
- Parliament also enacted the River Boards Act, which provides a framework for the establishment by the central government of river boards to advise the state government on regulating or developing an inter-state river or river valley. River boards can advise governments on a number of issues including conservation, control and optimal use of water resources, promoting and operating irrigation schemes, water supply or drainage schemes, or promoting and operating flood control schemes. However, this act was never used in practice.
- While the central government’s intervention in water regulation is limited by the constitutional scheme, some areas have already recognized the importance of national water regulation. As far as water pollution is concerned, Parliament adopted an act, the Water Act, in 1974. This act aims at preventing and controlling water pollution and preserving and restoring water’s health. It gives water boards powers to set pollution prevention and control standards and regulations.
- In addition to statutory frameworks, India still holds a number of common law principles linking access to water and land rights. These include separate groundwater and surface rules. As far as surface water is concerned, existing rules are still based on the early common rule of riparian rights. The basic rule, therefore, was that riparian owners were entitled to use the water of a stream that flowed past their land equally with other riparian owners, so that the water would come to them in flow, quantity or quality without any reduction.
- While the courts recognize a fundamental right to water is unambiguous, it is not as advanced to implement it through policies and acts. Water law includes a number of other laws and regulations that concern water directly or indirectly. One example has to do with dams. Two major aspects of dam construction are regulated by laws and regulations that only partially concern water. The Environmental Impact Assessment Notification provides a framework for assessing the environmental impacts of planned large hydropower and irrigation projects with respect to the environmental impact assessment.
- The River Valley Projects Guidelines for Environmental Impact Assessment provide a general framework for assessing the impacts of planned large dam projects from 1985 onwards. As far as displacement is concerned, the main act still applies to the Land Acquisition Act, 1894. This colonial act, enacted with the interests of the colonial government in mind rather than the interests of displaced people, gives very few rights to the government substantial control over the eviction process.
Water Law Reforms
There have also been progressive calls for changes of the law and policy framework concerning water. This is due to two broad factors. First, water law and policy framework have been the object of relatively little attention for a long time. Although many water-related laws have been adopted over several decades, relatively little has been done to provide a broader integrated water framework. Second, recognizing that in most countries around the world there is a water crisis and that the availability and access to freshwater will be a challenge for almost all countries in the coming decades has led to a number of international initiatives in most developing countries to reform water governance, law and policy. In other words, factors at home and abroad have contributed to ongoing water law and policy reforms.
Reforms in the water sector have been proposed as a way to address decreasing availability per capita, increasing water quality problems and increasing competition for control, access and use of freshwater available. They are seeking a comprehensive reform of water sector governance. In particular, the current reforms are aimed at reducing the role played by the public sector and highlighting individuals ‘ direct contributions to their water needs and private sector participation. These changes in governance are based on a number of principles that guide the process of reform. This section highlights some of the key principles that guide the reforms, as well as the types of measures and tools adopted to implement them.
While reforms of water law are more than welcome given existing water issues, it is unlikely that reforms of the law based on the principles advanced in reforms of the water sector will be a suitable response. Continuing reforms in water law may help improve water management, but they are conceptually incapable of addressing water’s human, social, environmental and health aspects. This is unfortunate because any water law that is not based on the constitutional right to water and the principle of public trust is bound to fail as a legal tool and as far as the overwhelming majority of people are concerned in its implementation.
Yet there are avenues for expanding water law reforms. At the international level, certain treaties lead the way to a broader understanding of water law. Thus, a convention has been adopted by the UN Economic Commission of Europe that is broader in scope than the 1997 UN Convention insofar as it applies in general to Tran boundary waters. It is also based on a more advanced set of principles. This includes not only the fact that the need to prevent and reduce transboundary harm is strongly emphasized, but also that it is based on the precautionary principle and intergenerational equity.
Similarly, countries like Brazil and South Africa have adopted water laws at national level that seek to provide a comprehensive regulatory response to identified problems. While adopting a comprehensive federal water legislation is not a prerequisite for ensuring that water law achieves its social, human rights and environmental goals, it would be a good starting point for realizing the right to water and the principle of public trust across the country.