22 National Law & Policy on Water

Prof. Rehan Abeyratne

Overview:

While water remains one of the most abundant resources on earth but less than  percent of the total supply is reliably available for human consumption. 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-related policies as well as customary rules and regulations. In April 2002, a new National Water Policy was announced in India. Each state in India is obliged to formulate its own water policy within two years of the national policy. Non-governmental organizations (NGOs) in India have increasingly become concerned by some of the provisions in the national water policy and the fact that some states appeared to be simply copying this policy without taking into account the uniqueness and the distinct agro-ecological zones of each state. This module shall provide a brief overview of the right to water under National Law and the legal framework that recognizes water as a basic human right.

Learning Objectives:

• The main objective of this chapter is to understand the legal instruments that recognise the right to water as a basic human right in India.
• This chapter shall also cover as to why quick access to clean water facilities is needed.
• It will also discuss other events dealing with the promotion of water as a human right.

Introduction

India is eminently dependent on water owing to its large agricultural base, the water needs of its billion-plus population, and the recent economic growth trends. Irrespective of abundance in material on environmental law, legal work on water laws in particular has been nearly negligible. The laws of Manu addressed issues related to the regulation of water, such as water pollution and its impact on health. Water law has been continuously evolving and it has been witnessed that over the first four decades after independence are remarkably different from the ongoing trends. While until the 1970s, water law can be seen as a field growing 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 existing water law as well as expand the scope of regulation.

Water law reforms take place due to both physical as well as institutional reasons. Numerous water situations are arising due to rapid increase in the use of water by all categories of water consumers, the increased demand due to economic and population growth in addition to this it is also because of the growth of pollution of existing limited water resources thereby not only restricting potential usages of available water threatening future use. For instance the dramatic increase in groundwater usage is the direct cause of depletion in numerous areas. Also, as part of the economic and financial reforms that were initiated in 1991, the Government has made significant changes in the water sector.

Despite this, there have been progressive calls for the advancement of the law and policy framework related to water which can broadly be contributed to two factors. Firstly, the water law and policy framework for a very long time has received negligible amount of attention. Secondly, the water crisis in most countries of the world and that availability and access to freshwater will be a challenge for nearly all countries. In other words, domestic and international factors have contributed to ongoing water law and policy reforms. They seek to comprehensively reform governance in the water sector.

Right to Water

The right to water needs to be differentiated from the concept of water rights. The right to water is related to the fundamental water requirement for life (i.e., water for the purpose of drinking, washing and various other needs for personal hygiene, and numerous essential water needs for livelihood), whereas ‘water rights’ is the concept that is broadly used in the context of economic uses of water that is for irrigation, industrial or numerous commercial uses, etc. The right to water as per the definition is a fundamental right by judicial interpretation. It is a responsibility of the state to ensure such a basic right is not denied to any citizen.

The right to water must include the rights of access of certain tribal and other communities to forests, mountains, rivers, etc; that is, the natural resource base on which they have for centuries depended for sustenance. Between a fundamental right (life-right) and a non-fundamental use-right, the former is a priority over the latte since it is the exercise of economic rights should not be allowed to jeopardize the fundamental rights. It must also be kept in mind that water-supply and sanitation are inter-connected. If there is a right to water, there must also be a right to decent sanitation.

The Fundamental Right to Water: Role of the Judiciary

The Supreme Court of India has pronounced three landmark judgments recognising the fundamental right to water under the Constitution. The first one was Subhash Kumar v. State of Bihar, AIR 1991 SC 420 In this case, a PIL was filed for preventing the pollution of the Bokaro river water from the slurry discharged from the washeries of the Tata Iron and Steel Co. Ltd. The Supreme Court ruled that “The right to live is a fundamental right under Article 21 of the Constitution and it includes the right to pollution free water…..A citizen has the right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life”

The next major judgment was pronounced by the Madhya Pradesh High Court in the case of Hamid Khan v. State of Madhya Pradesh, AIR 1997 MP 191. The PIL was filed because of gross negligence on part of the State Government for not taking measures before supplying drinking water. The Court stated that “… It is incumbent on the state to improve the health of the public by providing unpolluted drinking water. The State in the present case has failed to discharge its primary responsibility.” The Court here interpreted this right under Article 47 of the Constitution. Article 47 states that the State has a duty to raise the level of nutrition and the standard of living and to improve public health.

The third judgment was pronounced by the High Court of Kerala in the case of Vishala Kochi Kudivella Samarkshana Samithi v. State of Kerala, 2006 (1) KLT 919. The Court ruled that “Water is one of the primary needs of man, second only to air. Water is in fact the exilir of life. Failure on the part of the State to provide pure drinking water to its citizens in adequate quantities is a violation of their fundamental right under Article 21 and also a violation of the human rights.”

The above mentioned judgments essentially recognise water as a human right under Article 21 of the Constitution. There have also been other significant judgments discussing some principles and concepts of water law. For example, the principle of public trust was discussed in the case of M. C Mehta v. Kamal Nath, 1997 1 SCC 388. This gives the Government a fiduciary duty to ensure that water is preserved and judiciously used. The Court further ruled that “the state as a trustee is under a legal duty to protect the natural resources. In absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use.” This principle was also reiterated by the Supreme Court in State of West Bengal v. Kesoram Industries, 2004 10 SCC 201.

The Court here held that the doctrine of public trust extends even to deep underground water. The Court in another historic judgment of Vellore Citizens Welfare Forum v. Union of India, 1996 5 SCC 647, recognised the precautionary principle and the polluters pay principle. These principles state that the person causing the damage to the environment has an absolute liability for the harm caused.

The person bearing the liability would therefore need to compensate the victims and also pay for reversing the damaged ecology.

Water: Under the Indian Constitution

A clear demarcation is made by the Constitution of India that lays down the legislative and functional jurisdiction of the Union, State and local Governments regarding the subject matter of ‘Water’. Under the scheme of the Constitution, ‘Water’ is a State subject under Schedule VII of the Indian Constitution and the role of Union comes up only in the case of inter- state river waters.Water that is water supplies, irrigation and canals, drainage and embankments, water storage and power subject to the provisions of Entry 56 of List I (Union list), reads as follows: “Regulation and development of inter-state rivers and river valleys to the extent to which such regulation and development under the control of the Union, is declared by Parliament by law to be expedient in the public interest”.

Article 262 of the Constitution specifically deals with the adjudication of disputes regarding the matters of inter- state rivers or river valleys read as follows:

• Parliament may by law provide for the adjudication on any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter- state river or river valley.
• Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause.

The 73rd and 74th Amendments of the Indian Constitution also ushered in a significant change, by bringing in a democratic decentralization. Through these Constitutional Amendment Acts, the ultimate responsibility of water supply has been devolved to the elected local bodies, in keeping with the trend of decentralization in recent water sector reforms. Therefore, the states would merely lay down the framework of the laws and the implementation would then be done by the Municipalities.

It is in the Eighth Schedule (Part IX) dealing with Panchayats, the subjects, ”Minor irrigation, Water management and Watershed development”, “drinking water” and “maintenance of community assets” are listed. In the Twelfth Schedule (Part IX A) subjects dealing with municipalities “water supply of domestic, industrial and commercial purposes” have been listed. Functional responsibilities are for local Governments in respect of numerous aspects of water use. The Union has also enacted laws on environment and control of pollution, which have effect on water use including ground water and its exploitation. A large number of Acts dealing with irrigation, canals and their maintenance, water rates and maintenance of tanks are in force in each state.

Drinking Water

The supply of drinking water has been one of the major concerns of the State and Central Government for the past several decades. Some State Governments have enacted specific legislations dealing with drinking water supply. To ensure better supply of drinking water to its citizens, the Union Government has been coming up with policies focusing on the supply of drinking water, especially in the rural areas. Essentially, provision of safe drinking water in the rural areas has been the responsibility of the states. The Accelerated Rural Water Supply Programme was introduced in 1972-73 by the Government to assist the states and Union Territories to accelerate the pace of coverage of drinking water supply. The entire programme was given a mission approach and the ambitious project was named the National Drinking Water Mission (NDWM) in 1986. This National Drinking Water Mission was renamed as Rajiv Gandhi National Drinking Water Mission which principally works on the premise of community based demand driven approach instead of the traditional forced supply driven approach.

The National Rural Drinking Water Programme 2009/10 also aims to provide every rural person with adequate water for drinking, cooking and other domestic basic needs on a sustainable basis. The Policy recognizes water as a public good and also acknowledges that drinking water supply cannot be left to the market forces alone. The emphasis is more on the Public- Public Partnership approach (between the Gram Panchayat and the Public Health Engineering Department) rather than privatization of drinking water supply. The Policy seeks to achieve drinking water security in rural areas by promoting the use of groundwater, surface water and also rainwater harvesting.

Functions of Ministry of Water Resources

The Ministry of Water Resources is responsible for establishing policy guidelines and programs for the development and regulation of water resources.

• Comprehensive planning, policy making, coordination and proper guidance in the water resource sector.
• Technical instructions, analysis, and monitoring of the irrigation, flood control and multi-purpose projects.
• General infrastructural, technical and research support for overall development.
• Provision of Central financial assistance for certain important projects and aiding in obtaining external finance from the World Bank and several other agencies.
• Planning and policy formulation with respect to minor irrigation, minor participatory irrigation and monitoring of the Centrally Sponsored Schemes.
• Broadly planning the development of ground water resources and formulation of policies to cure exploitation of resources and support to State level activities in ground water development.
• Mediation regarding the resolution of disputes in nexus with the inter-state rivers and also overseeing of the implementation of inter-state projects.
• Operation of the central network for flood forecasting and warning on inter-state rivers, the provision of central assistance for some State Schemes in special cases.

Crucial Water related Issues in India

Dearth of Awareness

Inadequacy of awareness regarding the law and policy framework is still a crucial issue in India especially in rural areas.

There is a major lack of awareness about the scope and implications of such water related polcies and laws. In India, both human right to water and right to sanitation continue to remain an ‘alien’ concept. Therefore, there is an extreme need for intense and continuous distribution of information about reforms in the water sector and law reforms with special attention to rural areas.

Lack of Participation

The absence of public participation in law and policy making methodology is an ancillary effect of lack of general awareness. Essentially, law and policy making process is a proper approach wherein people are at the receiving end as mere audience and end up having no role in the framing process of such rules and policies. Present day scenario is worse off in the rural areas where majority of population is unable to read and write which ultimately results in poor public consultation in the law and policy making process in the rural areas. The notion of participation is also significant from the implementation perspective of several policies. Hence, an immense focus has to be exerted to make public participation work effectively.

Gender and Caste Discrimination

Gender and caste are two significant factors that require fair amount of attention in the law and policy framework related to water and sanitation. Women and people belonging to lower castes dominate the neglected sections. While there is an abundance of surveys and studies contending that women can play crucial and effective role in water resource management and development, they continue to remain out of the picture of framing and implementation of various policies and schemes.

Caste is another factor unique to India that determines the access to drinking water. Due to caste discrimination lower caste people usually end up waiting as long as the higher caste people fetch enough water for themselves. Hence, more affirmative actions are needed from the side of the government to eliminate these antique inhuman practices. Civil society organizations can also contribute significantly by disseminating the idea of human right to water so that access to water shall not be denied to any one on the basis of caste, gender or economic capacity.

Conclusion

Water law in India comprises of a number of formal and informal laws, rules and principles. It has gradually evolved over time in a relatively uncoordinated and ad hoc manner. This started to change with the progressive realization 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.

Thus it can be deduced that a clear cut right to water needs to find a straightforward entry into the Constitution of India. The minimum core obligation of the state flowing from the right to water of every person has not yet been defined and specified in India either by the legislature or by the courts. It is also crucially required to conform the fundamental right to water with the mandate for water supply and management with the rural and urban local bodies. Amongst other things, this should make obvious the fact that municipal corporations/councils are duty-bearers who are obliged to honour the fundamental right to water of every person. Also, in the context of the fact that all the recent decentralizing’ government initiatives have sought to vest powers informal village groups/ associations.

At the heart of all water-related conflicts lies a competitive, un- sustainable demand for water. That demand, leaving aside the basic water requirements of a human being, is for water for various uses – industrial, commercial, agricultural, etc – and these in turn arise from the pursuit of ‘development’. Restraining the growth of demand for water would therefore require changes in our ideas of development and of the good life. The water crisis is part of a civilizational crisis

Reference

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• Krishnakumar, Asha (2003) ‘A sanitation emergency’ (Issues in Focus), Frontline (Internet edition), Vol. 20, No. 24, November 22.
• Sundar, Nandini.(2009).‘Water Law and the Poor’(ed.), Legal Grounds’, Oxford University Press, New Delhi.
• Parikh, K.S., Jyothi Parik, Raghu Ram and L. Tata (1999) ‘Air and Water Quality Management: New Initiatives Needed’ (pp. 85-97) in Parik, K.S. (ed) India Development Report 1999-2000, IGIDR, Mumbai: Oxford.
• Murthy, Sharmila L., The Human Right(s) to Water and Sanitation: History, Meaning and the Controversy Over Privatization (April 13, 2013). Berkeley Journal of International Law (BJIL), Vol. 31, No. 1, 2013.
• Parmar, Pooja, Revisiting the Human Right to Water (June 1, 2008).Australian Feminist Law Journal, 28, 77-96 (2008).
• Aguilar Cavallo, Gonzalo, The Human Right to Water and Sanitation: Going Beyond Corporate Social Responsibility (January 31, 2013). Merkourios, Vol. 29, No. 76, pp. 39-64, January 2013.
• W. Doniger (Trans.), The Laws of Manu, Penguin Books, 1991.