Water and the Laws in India 2009022977, 9788178298504

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Water and the Laws in India

Water and the Laws in India

Edited by

Ramaswamy R. Iyer

Copyright © Ramaswamy R. Iyer, 2009 All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without permission in writing from the publisher. First published in 2009 by SAGE Publications India Pvt Ltd B1/I-1 Mohan Cooperative Industrial Area Mathura Road, New Delhi 110 044, India www.sagepub.in SAGE Publications Inc 2455 Teller Road Thousand Oaks, California 91320, USA SAGE Publications Ltd 1 Oliver’s Yard, 55 City Road London EC1Y 1SP, United Kingdom SAGE Publications Asia-Pacific Pte Ltd 33 Pekin Street #02-01 Far East Square Singapore 048763 Published by Vivek Mehra for SAGE Publications India Pvt Ltd, typeset in 10/12 pt AGaramond by Star Compugraphics Private Limited, Delhi and printed at Chaman Enterprises, New Delhi. Library of Congress Cataloging-in-Publication Data Water and the laws in India/edited by Ramaswamy R. Iyer. p. cm. Includes bibliographical references and index. 1. Water—Law and legislation—India. I. Iyer, Ramaswamy R. KNS2522.W377

346.5404'691—dc22

2009

2009022977

ISBN: 978-81-7829-850-4 (Hb) The SAGE Team: Reema Singhal, Jyotsna Mehta, Sanjeev Kumar Sharma and Trinankur Banerjee

Contents Preface Introduction Ramaswamy R. Iyer PART I 1.

ix xi

A PRELIMINARY OVERVIEW

Legal Aspects of Water Resource Management A. Vaidyanathan and Bharath Jairaj PART II

3

WATER AND FEDERALISM

2.

Water in India: Constitutional Perspectives Kamala Sankaran

17

3.

Inter-State Water Disputes: A Nightmare! Fali S. Nariman

32

4.

Nation vs Peoples: Inter-State Water Disputes in India’s Supreme Court Radha D’Souza PART III

58

WATER: SOME MAJOR LEGAL THEMES

5.

Riparianism in Indian Water Jurisprudence Tony George Puthucherril

97

6.

The Ownership of Water in Indian Laws Videh Upadhyay

134

7.

The Human Right to Water: Policies and Rights Upendra Baxi

149

8.

Community Engagement in Water Governance M.S. Vani

167

9.

Water Use: Legal and Institutional Framework K.J. Joy and Suhas Paranjape

213

vi Water and the Laws in India

10. Drinking Water Supply: Right and Obligation K.C. Sivaramakrishnan

251

11. Water, Women and Rights Kuntala Lahiri-Dutt

275

PART IV

SOME WATER-RELATED PROBLEMS: LEGAL ASPECTS

12. Floods and Some Legal Concerns Dinesh Kumar Mishra

309

13. Water Pollution and Contamination Paritosh C. Tyagi

329

PART V

AUGMENTING WATER

Big Water Resource Projects 14. Environmental Decision-making in India: A Critique Manju Menon and Kanchi Kohli

359

15. The Contours of EIA in India Shyam Divan

390

16. Displacement in the Name of Development Himanshu Thakkar

414

Groundwater 17. Groundwater Law in India: A New Approach M.S. Vani

435

Local Water Management 18. Indian Laws and Acts on Traditional Tank Irrigation Systems DHAN Foundation PART VI

477

WATER LAW REFORM

19. Water Law Reforms in India: Trends and Prospects Philippe Cullet and Roopa Madhav

511

20. Water Law for India: Science and Philosophy Perspectives T.N. Narasimhan

535

Contents vii

PART VII

DRAWING THE THREADS TOGETHER

21. A Synoptic Survey and Thoughts on Change Ramaswamy R. Iyer

567

Appendix: List of Selected Water and Related Statutes in India Farhana Z. Khan About the Editor and Contributors Subject Index Case Index

627 643 651 666

Introduction viii

Preface For many years now I have been feeling the need for a compendious book on the various legal questions that arise whenever we explore any issue relating to water policy or management. Some of those questions had been dealt with in various chapters in my books Water: Perspectives, Issues, Concerns (Sage, 2003) and Towards Water Wisdom: Limits, Justice, Harmony (Sage, 2007), and in papers contributed by me to books edited by others and to journals. However, it seemed to me that a separate book specially devoted to the legal issues relating to water was called for. On further reflection, I came to feel that it should be preferably an edited book consisting of contributions by a number of authors and not a single-author book. Dr Pratap Bhanu Mehta, President of the Centre for Policy Research (CPR), to whom I broached the subject, was enthusiastic in his response and offered to support the project. Accordingly, several clusters of themes and questions were formulated and assigned to a number of possible authors. The clusters covered a wide range of subjects such as constitutional perspectives, inter-State water disputes, inter-sectoral and inter-use conflicts, water as both basic life-support and economic good, the ownership of water, community initiatives in local water management and the support, if any, to them by the state and law, and so on. Some questions regarding the existing laws were also posed for consideration, such as their adequacy and appropriateness, whether they help or hinder in dealing with the problems that have been experienced, and so on. That was the background against which the papers brought together in this book were written. In a compilation of contributions by diverse hands, however carefully structured, two things cannot be expected, namely (a) a single sustained argument or thesis running through the book, and (b) an identity of views on all matters among the contributors. Indeed, if the size of the book had permitted it, the presentation of a diversity of perceptions and views could have been taken even further and made more wide-ranging. The contributors to this book include lawyers, academics in the field of law, academics in other disciplines (social and natural sciences), former civil servants (the editor falls into this category), and social and environmental activists. The intention was to bring about an inter-disciplinary approach

x Water and the Laws in India

to the extent possible. This was partly helped by the participation of many of the authors in a two-day workshop in March 2007. This book contains 20 contributed chapters, but even so, the intended comprehensiveness might not have been wholly achieved. There might well be issues that have not been discussed adequately or at all in this book, but there were limits to the extent to which (despite the indulgence of the publishers) the book could have been allowed to grow in size. However, it can be claimed that the coverage of the book is fairly extensive. I must thank all the authors for their valuable contributions and for their patience during the editing process. Assuming the role of editor for a book with such distinguished contributors was perhaps a rash and presumptuous act on my part, but I am glad that I undertook it: I have learnt a great deal in the process. I am very grateful to the CPR for the financial, logistical and other support extended to this undertaking, without which this book would not have come into being. This is essentially a CPR book. I must also mention the ever-helpful Chief of Administrative Services, L. Ravi, and acknowledge the assistance provided by the CPR President’s secretariat, and in particular by Sunil Kumar. At the Authors’ Workshop held at CPR on 27–28 March 2007, many invitees (apart from the authors) were present and made valuable comments and suggestions. These were immensely useful, and I express my grateful thanks to all the participants. I am particularly grateful to Dr Ajit Mozoomdar for going through the first draft of the last chapter and giving me some very valuable comments. SAGE Publications has been enthusiastic about this project from the beginning and very supportive at every stage. In particular I should like to mention with appreciation Dr Sugata Ghosh, Ms Payal Kumar, Ms Rekha Natarajan, Ms Reema Singhal, and the editorial team of Rachna Sinha and Jyotsna Mehta. My wife Suhasini and son Madhu (Mahadevan) were not merely supportive in the usual sense but provided valuable professional assistance. Finally, I must acknowledge my debt to the late Chhatrapati Singh, the pioneer in this field. Ramaswamy R. Iyer

Introduction Ramaswamy R. Iyer At the outset, a word in explanation of the precise delimitation of the scope of this book seems necessary. On the one hand, it is not a conventional ‘water law book’: it does not start from an account of all the existing laws relating to water, describing, analysing and commenting on them; instead, it starts from issues and problems relating to water and proceeds to a discussion of the legal questions that arise. That explains the title of the book ‘Water and the Laws in India’, and not ‘The Water Laws of India’. On the other hand, it is not a full-scale ‘water policy’ or ‘water issues’ book; it does not deal with water-related issues that are purely procedural or managerial or economic and do not involve legal questions. However, most of the issues relating to water-resource policy, planning and management do in fact lead us into legal debates. Questions arise about the nature of water, its ownership, the proper approach to its ‘development’ and ‘management’ (to use prevalent but questionable terms), the means of avoiding or resolving conflicts relating to water, Centre–State, inter-State and inter-country relationships, and so on; and some of those questions are inter-related.1 This book seeks to bring all those questions together between the covers of one volume. What we have in relation to water in this country is a patchwork of laws of diverse origins, developed over a long period of time. There are elements drawn from ancient local customs and traditions, and others drawn from British common law via the colonial government and its courts. Some laws reflect the imperfect knowledge of earlier times: for instance, a distinction was made by British courts between flowing surface water and groundwater because very little was then known about the latter. Laws relating to irrigation, though enacted by the colonial rulers, could be described as Indian in origin because they were specific to the Indian context. International conventions such as the Helsinki Rules have also been drawn upon by our tribunals in dealing with inter-State disputes. To that medley have been added concepts and ideas drawn from more recent national and international discourses (water 1 In this book, ‘s’ (lower case) is used for ‘state’ in the abstract, and ‘S’ (capital) for ‘State’ meaning a unit in the federal structure.

xii Ramaswamy R. Iyer

as a human right, the ‘subsidiarity’ principle, the precautionary principle, ‘minimum flows’, public–private partnership, common pool resource, community management, etc.). This book is an effort at understanding the complexities and moving towards coherence. A brief indication of what the various chapters deal with follows. These capsule previews cannot possibly hope to do justice to the range and richness of the contents of the various chapters. The intention is merely to give the reader a rough idea of what to expect. Part I contains a broad overview of the legal issues relating to water, provided by Vaidyanathan and Jairaj, which serves in a way as a supplementary Introduction. Part II covers federalist aspects. Kamala Sankaran presents certain constitutional perspectives in relation to water in India, drawing attention to the dangers of centralisation and stressing the importance of legal pluralism and the provision of space for people’s initiatives. On inter-State river water disputes, Fali Nariman argues that tribunals should change to a less formal, more consultative and exploratory, committee-like style of functioning. He also recommends that the Inter-State Water Disputes Act should be repealed and such disputes transferred to the domain of the original jurisdiction of the Supreme Court. Taking inter-State water disputes and their adjudication as the point of departure for a much larger discussion, Radha D’Souza argues that the careful constitutional balance among the three organs of state has been upset by the Central Government’s centralising tendency and the Supreme Court’s aggrandisement, and that this has distorted both Indian federalism and the state–people relationship. She makes a plea for the restoration of the badly distorted balance. Part III covers some major water-related legal themes. Tony George Puthucherril gives an account of Indian riparian law, points out its infirmities, and argues for an alternative and more enlightened model. Videh Upadhyay shows how the state, in colonial times and later, has tended to assert state control and sovereign rights over water, and suggests a reconciliation of the regulatory powers of the state on the one hand, and the people’s rights of access to and use of water and other natural resources on the other. Upendra Baxi argues strongly for a clear enunciation of a constitutional human right to water. M.S. Vani argues that decentralised local rainwater-harvesting is the right approach to water management and that such an approach requires the active involvement or ‘engagement’ of the community. She urges a shift from the state’s assertion of ‘eminent domain’ to facilitate this. K.J. Joy and Suhas Paranjape present a vast canvas with a multiplicity of strands. Among other things, they stress the multi-dimensionality of water and

Introduction xiii

outline a system of equitable entitlements and institutional arrangements. K.C. Sivaramakrishnan points out that despite judicial pronouncements, drinking water has not in fact been treated as a legal right of the citizen or a legal obligation of the local authorities. Kuntala Lahiri-Dutt deplores the lack of recognition of women as irrigators, water-users and economic actors, and stresses the need to make water an instrument of empowerment. Part IV is about certain water-related problems and their legal aspects. Dinesh Kumar Mishra criticises the misconceived ideas of flood control that have done more harm than good and draws attention to the inadequacies and failures on the relief front. Paritosh Tyagi points out that the effectiveness of the pollution control laws and institutions is seriously limited by various factors, and makes certain recommendations for strengthening the enforcement of the laws. Part V is about the legal issues arising from projects and activities for the augmentation of water for use, and is divided into three segments: Big Projects, Groundwater Extraction and Local, Small-scale Water-augmenting Activities. In the first segment, Manju Menon and Kanchi Kohli find grave deficiencies in the current environmental clearance regime for major river valley projects, and make a number of recommendations aimed at bringing about a significant improvement in environmental decision-making. Shyam Divan expresses serious dissatisfaction with the environmental clearance regime, the institutional arrangements and the entire EIA (environmental impact assessment) process, but hopes that a well-enforced EIA regime, with deterrent action in a few well-publicised cases, will approximate the ideal. Himanshu Thakkar, after tracing the history of the attempts to formulate a policy for the resettlement and rehabilitation of project-affected people, examines the National Resettlement and Rehabilitation Policy 2007, and, despite some good features, finds it seriously deficient in many ways. In the second segment (groundwater), M.S. Vani urges a move away from the common law tradition of land-related private property rights over groundwater towards a recognition of groundwater as a common pool resource held in public trust by the state, with concomitant reforms in institutional structures and mechanisms. In the last segment of this part, DHAN Foundation draws attention to the importance of traditional tank irrigation in the southern States and its decline over time for a number of reasons, stresses the imperative of reviving it to the extent possible, and makes a plea for the necessary supportive legal framework and ambience. Part VI is about water law reform. Philippe Cullet and Roopa Madhav give a compendious account as also a critique of the various attempts at water

xiv Ramaswamy R. Iyer

policy and water law reform that have been made in India. T.N. Narasimhan also argues for a reform of water law in India, but from two inter-related perspectives, namely, an ecological and earth science perspective, and a study of the public trust doctrine in Europe, England and America, with special reference to the Californian experience. In Part VII, the editor attempts a structured discussion of the important issues that emerge from the various chapters, and puts forward his own ideas for change. As the title indicates, this book is about water and the laws in India. It does not deal with inter-country issues or with global water governance. However, a few words on those aspects will be found in the final chapter.

PART I

A PRELIMINARY OVERVIEW

2 A. Vaidyanathan and Bharath Jairaj

1

Legal Aspects of Water Resource Management1 A. Vaidyanathan and Bharath Jairaj Water plays a vital role in sustaining all forms of life, producing food and fibre to meet the basic needs for human sustenance and well-being, and in maintaining a healthy ecosystem. It is a renewable but limited natural resource. With the growth of population and economic activity, the demand for water has been increasing. Technological advances have narrowed the gap between availability and use of water, and in many areas use has reached or even exceeded availability. In situations where it is scarce, over-abundant or its flow is not properly controlled, it almost definitely becomes the subject for conflicts and disputes. Such conflicts tend to result in ad hoc, short-term actions, since water problems generally require an immediate response. The basis for determining the entitlements and priorities of various uses and users, devising regulatory mechanisms to mediate between competing claims in the light of changing situations consistent with sustainability and ensure that regulations are observed—in short, the legal and institutional framework relating to water—have thus become a very important and urgent issue. What follows is an attempt to indicate some of the key features of the legal framework in India, highlight important gaps and weaknesses, and indicate directions for improvement.

1 This chapter is an updated version of Vaidyanathan, ‘Role of Law in Water Resource Management’.

4 A. Vaidyanathan and Bharath Jairaj

The Legal Framework Constitutionally, water is designated as a ‘State’ subject,2 subject to central intervention to regulate the development of inter-State rivers and for settlement of inter-State water disputes.3 The River Boards Act, 1956 and the Inter-State River Water Disputes Act, 1956 were made under these provisions. The Centre can also intervene in the interests of protecting the environment and forests,4 and under provisions regarding national planning for development. The Inter-State River Water Disputes Act empowers the Centre to set up tribunals to adjudicate disputes over water sharing between riparians of inter-State rivers. These tribunals initially played an important and effective role in deciding the water sharing of several major rivers, but the Centre has since invoked this mechanism hesitatingly and reluctantly. Significantly, there is no such mechanism at the State level. States, however, have legislated Irrigation Acts, which in effect give their governments the power to regulate the development and use of surface water within their territories. A common feature is that water flowing in rivers and even local streams cannot be impounded, diverted or extracted without government approval. These are supplemented by government orders relating to individual systems setting out the rules regarding permissible crop patterns, allocation and scheduling of canal water, regulations concerning groundwater extraction in their command and penalties for violation of rules. The lack of a clear and well-defined framework of laws covering the aforementioned aspects leaves too much room for arbitrary, short-sighted and opaque decision-making. In the absence of sufficient checks and balances, powerful interests and considerations of political expediency have a disproportionately large influence on decisions and their implementation. Violations are thus plentiful and governments are reluctant to invoke penal provisions. This situation gets worse when the state is also dually responsible for allocation and actual exploitation of water. In such a situation, the distinction between the state’s regulatory role and its role in constructing and operating

2 Constitution of India, Schedule VII, List II, Entry 17: ‘Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I.’ 3 Constitution of India, Schedule VII, List I, Entry 56: ‘Regulation and development of interState 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.’ 4 Constitution of India, Schedule VII, List III, Entry 17-A.

Legal Aspects of Water Resource Management 5

systems gets totally blurred. For instance, on groundwater extraction, individuals are permitted to exploit groundwater in the commands, which amounts to giving them rights of use though without formal legal sanction. Since groundwater in canal commands is mostly from the seepage of canal supplies, the resource must be considered as vesting in the system, which would be entitled to regulate the use of the resource. Further, the right of extraction and use of groundwater was governed by a general provision in the Indian Easements Act under which a person owning a piece of land is entitled to extract ‘underground water not passing in a defined channel’ from underneath that piece without any limit, subject only to the condition that such extraction must not adversely affect the availability to neighbouring users.5 This right is, however, subject to more recent regulations6 empowering the state to regulate private exploitation. Irrespective of these legal provisions, the state allows individuals to exploit groundwater in commands. All such situations of ad hoc determination of entitlements where water is scarce, over-abundant, or its flow is not properly controlled, become subjects of conflicts and disputes. All disputes can, of course, be taken to the judiciary for settlement. Even assuming that the time-consuming and expensive process can be accessed by all, in the absence of clear laws, rules and regulations to guide the courts, judgements too are ad hoc and have a limited term of relevance. It is therefore not uncommon to see contradictory judgements from the same court.

‘Prior Appropriation’ versus ‘Optimum Utilisation’ The lack of clearly defined criteria for determining the entitlements of different claimants to the common pool of water resources in a river basin 5 Indian Easements Act, 1882, Section 17(d). See also Land Acquisition Act, 1894, Section 3(a) and Transfer of Property Act, 1882, Section 3 for definition of ‘land’ and ‘attached to the earth’. 6 For instance, see Bombay Irrigation (Gujarat Amendment) Act, 1976; Control and Regulation of Groundwater Exploitation in Pondicherry and Karaikal Notification, 1988; Madhya Pradesh Peya Jal Parirakshan Adhiniyam, 1986; Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993; Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999; Andhra Pradesh Water, Land and Trees Act, 2002; Kerala Groundwater (Control and Regulation) Act, 2002; Goa Groundwater Regulation Act, 2002; Tamil Nadu Groundwater (Development and Management) Act, 2003; Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005; West Bengal GroundWater Resources (Management, Control And Regulation) Act, 2005.

6 A. Vaidyanathan and Bharath Jairaj

is an issue of much debate. In international law, there are recognised principles—the Harmon principle and the Helsinki/Dublin rules that seek to address this. The former recognises the right of a region to use the water that flows through it while the latter is based on the optimum utilisation of the basins’ resources for the common benefit of all its inhabitants. Determining the allocation that would be optimum for the common benefit of all inhabitants of a basin is appealing, but it is easier said than done. The determination of the optimum is not only technically complex but also depends on the relative weights attached by society to different objectives and is liable to change with changing technological conditions. There is also the problem of balancing the rights of ‘Prior Appropriation’ and ‘Optimum Utilisation’: Should protection of prior users’ rights be unqualified? Should the quantum appropriated by prior users be guaranteed even if it is excessive in relation to their requirements under the currently available technology, irrespective of the potential loss of welfare to other, newer claimants in the basin due to pre-emption by prior users? And what about the Constitutional Directive that ‘the ownership and control of material resources of the community are so distributed as best to subserve the common good?’7 There is no formal basis to determine water allocations between different segments of a river basin, and between different uses and users either in the Constitutional Directive in respect of inter-State or intra-State rivers, or the Central or State legislations. Inter-State River Water Dispute Tribunals have tended to use a combination of these principles. Under the Easements Act, 1882, courts have held that the state had: … powers to regulate, in public interest, the collection, retention and distribution of water of rivers and streams flowing in natural channels or in manually constructed works, provided that they do not thereby inflict injury on any other riparian owners and diminish the supply they have traditionally utilised.8

Tribunals and courts have generally recognised and protected the rights of prior appropriation and use in deciding riparian sharing in respect of some pre-existing old systems. But its application has become problematic in the post-independence period, marked by a phenomenal expansion of irrigation, an intensified competition for limited supplies between older and newer projects, and rapid changes in the composition and location of demand and in the technology of user sectors, especially agriculture. 7

Constitution of India, Article 39(b). This case was filed under the provisions of the Easements Act, 1882. See Fischer v. Secretary of State. 8

Legal Aspects of Water Resource Management 7

Tribunal awards on the sharing of river waters stop at the State level, and all entitlements below the level of the State are left to be determined entirely by its government. Since there are no laws, norms or principles on how this is to be done, decisions are generally ad hoc, arbitrary and political. For instance, in the Parambikulam Aliyar case (Parambikulam Aliyar Project Assn. v. State of Tamil Nadu),9 the petitioners had challenged the validity of the Parambikulam Aliyar Project (Regulation of Water Supply) Act, 1993 stating that they were agriculturists who had been receiving water from this project since 1962. In 1978, these petitioners had challenged the decision of the Tamil Nadu State Government to irrigate further lands under this project before the Madras High Court. This writ petition was disposed of when the agriculturists arrived at a settlement with the State Government in 1983 after being assured that their water needs would be met first, before supplying the new users. This decision confirms the enforcement of the ‘prior appropriation’ rule. However, when the State Government sought to re-organise the water supply scheme 10 years later by bringing out a law that brought more lands under irrigation, the petitioners unsuccessfully challenged this before the Madras High Court. On appeal, the Supreme Court confirmed the Madras High Court order stating that the petitioners (who were the prior appropriators and original beneficiaries) did not have a pre-existing ‘right to get a particular quantum of water’, and ‘even if they had such a right, it can be restricted to a reasonable extent by an appropriate legislation’ (Parambikulam Aliyar Project Assn. v. State of Tamil Nadu),10 suggesting that the State had an absolute right to regulate appropriation and use, and to change the entitlements and rules of allocation at its discretion. It is important to underscore the complexity of determining entitlements since there are multiple variables that need to be collated including the population growth, level and composition of demand, technology of harnessing and use of water as well as technology of end-use activities. All of these are dynamic and changing, and so entitlements cannot be defined uniquely and for all time. Courts and tribunals, which have been called upon to address the problem, consist of members of the judiciary who are trained to look for and adjudicate disputes based on legalistic aspects. They do not necessarily possess the expertise needed to comprehend the technical complexities, socio-economic dimensions, and their interactions. They often rely on outside expertise especially that of engineers and hydrologists, but eventually 9 10

AIR 1999 SC 3092. Ibid.

8 A. Vaidyanathan and Bharath Jairaj

end up adopting simplistic and rather crude ways to assess needs. This is a serious limitation in the current system.11 Also, the changing dynamic milieu demands that tribunal awards are reviewed periodically, but there are hardly any instances of this being done.

‘Eminent Domain’ versus ‘Public Trust’ Another contested premise of water law is the debate between the concepts of ‘eminent domain’ and ‘public trust’. The former is premised on the right of the state to appropriate private property for a public use, usually on the payment of compensation to the owner. The latter requires States to hold on to public resources as trustees and prohibits them from transferring it or converting it into private use or commercial use. A review of recent orders of the Supreme Court of India confirms that the relative supremacy and significance of these doctrines are still being debated. In the Parambikulam Aliyar case discussed earlier,12 the Supreme Court confirmed the State of Tamil Nadu’s eminent domain while stating that We do not see any impediment in the legislature in view of change in circumstances and with the passage of time or otherwise, introducing an Act with a view to provide benefit to larger number of people. Any such enactment cannot be regarded as arbitrary or in any case bad in law.13

Clearly, the Supreme Court reinforced the State’s eminent domain over water and its absolute right to regulate its appropriation and use, and to change the entitlements and rules of allocation at its discretion. It is also significant to note that there is apparently no law requiring governments to involve or even consult those affected by a project adversely or beneficially. Land acquisition laws empower governments to acquire land for public purpose on payment of compensation. Most have formulated policy statements about compensating project-affected people and their rehabilitation. But they do not seem to have the force of law.

11 This view is endorsed by the Supreme Court in State of Karnataka v. State of Andhra Pradesh AIR 2001 SC 1560. ‘…We think it appropriate to notice that the disputes for sharing waters of an inter-State river are not easy to be solved.’ 12 AIR 1999 SC 3092. 13 Ibid.

Legal Aspects of Water Resource Management 9

Vesting eminent domain in the state, without setting limits to its exercise, leaves the state far too much room for discretionary and arbitrary decisionmaking. Contrast this with the Public Trust doctrine, first seen in India in the Span Motels case14 where the Supreme Court came down heavily on the Central Government for ‘validating’ the act of a private hotelier who had diverted a river to protect his illegal hotel constructed on the banks of the river. The Supreme Court while formulating the Public Trust doctrine reviewed several decisions of courts in the United States of America, in particular the California Supreme Court order in the Mono Lake case, which stated: The public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the State’s duty to protect the people’s common heritage streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.15

In the recent Intellectual Forums case (Intellectuals Forum, Tirupathi v. State of Andhra Pradesh)16 which further expanded the doctrine of Public Trust in India, the Supreme Court was called on to protect two lakes in Andhra Pradesh that were sought to be closed and filled in order to enable the construction of houses by the State Government. The State argued that the tanks had long stopped functioning as tanks and that it was State policy to build more houses for the burgeoning population, while the appellants argued that the tanks were not just alive, but currently used for irrigation and also helped improve the groundwater table, thus serving the needs of the people around these tanks. The Supreme Court did not buy the eminent domain argument and chose instead to state that ‘the tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community.’17 The court went on to confirm that the State ‘cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body’.18

14

1997 (1) SCC 388. National Audobon Society v. Superior Court of Alpine County, 33 Cal 3d 419 referred to in M.C. Mehta v. Kamal Nath 1997 (1) SCC 388. 16 AIR 2006 SC 1350. 17 Ibid. 18 Ibid. 15

10 A. Vaidyanathan and Bharath Jairaj

Defining Individual Rights When it comes down to the individual user of a water system, things are even more blurred. This is despite the fact that users of state-run surface systems being given formal entitlements if their lands form part of the command area. The extent of the command area and its boundaries are determined partly by geography and partly on the basis of crop patterns envisaged in the design. Entitlements are defined in terms of the duration (seasons) for which water will be given. The quantum and periodicity of supplies are usually not specified, both being understood to be contingent on the overall supply in the system. The rules and procedures to be adopted in different contingencies are neither explicit nor transparent. Entitlements are not ownership rights but incompletely specified ‘use’ rights. Therefore there are no reciprocal rights and duties on the part of the supplier and the user that can be legally enforced. Many traditional systems follow conventions that have evolved priorities for different uses and the quantum of water that users can draw from a particular channel. Several have rationing rules in times of scarcity, which in effect defines relative rights. Many, but not all, have rules meant to ensure equitable sharing in times of scarcity. These conventions, though informal, are widely observed and do have considerable force. Courts recognise the conventions of traditional systems as a basis for determining rights in such cases. For instance, courts have said that the storing of water for agricultural purposes is a natural and lawful use, and not actionable since it was a customary usage of such water (Shanmugavel Goundar v. Venkitaswami Asari).19 However, the lack of definition of and the ambiguity in the nature of the ‘rights’ of individual users have resulted in a smattering of legal disputes. These have included criminal cases where the State has challenged the actions of individuals in raising the level of a bund (A. Venkata Reddy v. State)20 or strewing branches in a flowing river;21 cases under the law of torts where a person who cut open a bund in order to save his property from being flooded ended up flooding his neighbours’ property and was found liable22 and cases 19

AIR 1936 Mad 202. (1953) CriLJ 520 (Mad). 21 Emperor v. Nama Rama (1904) VI Bom LR 52, where the court held that strewing plants with a view to extract fibre was actionable. 22 M. & S.M. Railway Company v. Maharaja of Pithapuram AIR 1937 Mad 703 where the court held that a riparian owner may make defences against flood anywhere on his land provided he does not interfere with a recognised flood channel which results in damaging a neighbour’s property. 20

Legal Aspects of Water Resource Management 11

where the courts have held that upper riparian landlords had a right to take water from lands situated on the banks of the river, provided there was no complaint by the lower riparian owners that their share of water was affected by this act.23 These disputes too have suffered from ad hoc decision-making, and it is evident that the nature of individual rights and the modalities for enforcement need to be developed.

Directions of Improvement The present situation is clearly unsatisfactory. To begin with, it is important to articulate clear and consistent general principles by which the relative entitlements and rights of different segments and different user categories (including future users) in a river basin, and in the jurisdiction of a particular project, can be determined. Since the rights of different claimants are not necessarily independent individual rights, it is perhaps necessary to begin thinking in terms of the collective rights of communities, starting with the watershed and moving on progressively to sub-basins and the basin. The problem of defining the locus of these collective rights and its legal status remains. Issues of water quality, otherwise not included in the determination of entitlements, are also critical and need to be internalised in this decisionmaking process. It is necessary to (a) explore better ways in which, recognising the peculiar characteristics of water, inter se entitlements of various claimants to the common pool can be defined with greater clarity and precision; (b) define more clearly the nature, locus and content of these rights, explicitly recognising the common interest of people in a watershed/basin in its water resources; (c) formalise the criteria and processes of determining the entitlement within each system so that there is something like an explicit but contingent contract between the system and its users with regard to their respective rights and obligations while recognising that the changing condition of costs, technology and demand make it necessary to review entitlements from time to time. A clearer definition of the basis and content of ‘rights’ and ‘entitlements’ is a necessary, but not sufficient, condition for their enforcement. Direct enforcement by State agencies, even where rights are well-defined, is practically 23 N. Arivudai Nambi v. State of Tamil Nadu AIR 1990 Mad 240. See also Secretary of State v. Ambalavana Pandara Sannadhi AIR 1914 Mad 552 and Secretary of State v. Sannidhiraju Subbarayadu and Ors AIR 1932 PC 46.

12 A. Vaidyanathan and Bharath Jairaj

impossible and prohibitively costly especially because of the huge number of individuals and plots that have to be monitored. It is virtually impossible to design a tradable property regime with water as an economic commodity that can be allocated efficiently and equitably through the market mechanism. It is essential to recognise that water is a common pool resource whose development and use must be subject to regulation in the public interest for the common good. While the state will play a significant role in the process, the developmental and promotional role of the state must be kept distinct and separate from its regulatory function. Besides creating an environment which induces users to make prudent and efficient use of water, it is important to create an institutional structure with well-defined mechanisms of ‘due process’ ensuring that the observance of rights and obligations of users as well as suppliers, and changes therein, are regulated by an independent authority. The developmental and promotional role of the government must be distinguished and separated from the regulatory function. Also needed are more effective mechanisms for resolving disputes over the interpretation of rules and conflicts between uses and users, and between users and government agencies. It is essential to enunciate the basic principles on which disputes on entitlements ought to be resolved. The responsibility for making and enforcing rules consistent with these principles is a function of the government and institutions of water governance. A conscious effort must be made to encourage and facilitate settlement of disputes and changes in entitlements through transparent negotiated compromises. Negotiated settlements between different systems, inter-basin and intra-basin, though imperfect and susceptible to political interference, may still be preferable to other methods of determining entitlements, since they have a larger degree of discipline and transparency. When formal rules and negotiations fail, adjudication by courts may still be necessary to resolve disputes. The judiciary has often been called on to develop, enhance, frame and limit the discussion on water rights. In the preindependence era and right up to the 1970s, the judiciary looked primarily at the acts and facts that surrounded the disputes, and from the 1980s and thereafter it also began engaging with larger issues of equity, economics of source and the environment.24 Our brief analysis of water disputes over the last century points to considerable differences in judicial pronouncements on such basic issues concerning the interpretation of public good, prior appropriation rights vs optimum use, the balancing of competing interests

24

Singh and Jairaj, ‘Judicial Trends in Water Law’.

Legal Aspects of Water Resource Management 13

and the status of the ‘eminent domain’ doctrine vis-à-vis that of ‘public trust’. It points to the need for a systematic analysis of case law on water-related issues to assess the underlying principles of judgements and any systematic changes in this respect over time and to highlight the problems involved in ensuring that the judgements are in fact implemented. But as seen here, adjudication cannot be effective unless there are agreed principles on which riparian rights are to be defined; the riparians are willing to let disputes be mediated by an independent judicial authority and they are committed to abide by their decisions.

References Singh, Veera Kaul and Bharath Jairaj. 1997. ‘Judicial Trends in Water Law: A Case Study’, in Rajendra Pradhan, Franz von Benda-Beckmann, Keebet von Benda-Beckmann, H.L.J. Spiertz, Shantam S. Khadke and K. Azharul Haq (eds), Water Rights, Conflicts and Policy. Proceedings of a Workshop held in Kathmandu, Nepal, 22–24 January 1996, IIMI. Vaidyanathan, A. 2004. ‘Role of Law in Water Resource Management’, Indian Juridical Review, vol. 1, pp. 12–17, National University of Juridical Sciences.

14 A. Vaidyanathan and Bharath Jairaj

PART II

WATER AND FEDERALISM

16 Kamala Sankaran

2

Water in India: Constitutional Perspectives Kamala Sankaran1 Power sharing lies at the core of any Constitution. The distribution of powers across different organs of the state is considered an indispensable part of a modern-day Constitution. The eighteenth century doctrine of separation of powers continues to dominate many aspects of present-day constitutions, particularly with respect to the division of powers across the legislature, executive and judiciary, and a system of checks and balances. While the doctrine of separation of powers placed limits on the extent of the powers of any one organ of state, the principles of constitutionalism (implied in a written Constitution) were historically considered to place limits on the power that could be wielded by the state, and in effect demarcated the powers and liberties that people retained with them in a democracy. A Constitution that is federal has been considered by some to deepen the effect of democracy and constitutionalism, in that it places further limits on governmental powers and dilutes the quantum of power that any single institution has at its disposal. Any discussion on understanding the nature of the state and the concept of sovereignty in India has had to grapple with the question of whether all governmental powers have been accounted for and shared out in the Indian Constitution, and if not, who controls the powers not explicitly mentioned. Much of the discussion on power sharing, however, has not focused on the position of people at large in power sharing arrangements, but instead dwelt on the power sharing arrangements either among the organs of the

1

I am grateful to Himanshu Goenka for assistance in locating relevant cases.

18 Kamala Sankaran

government (the extent of the doctrine of separation of powers in India) or between the tiers of government (the federal arrangement). India with its elaborate division of legislative and executive powers across the federal spectrum has sought to take care of all contingencies and situations. ‘Water’ too has been so divided in the constitutional scheme, with the Centre and the States having the power to legislate over various aspects. The position of ‘water’ in such a written, democratic, federal Constitution has been a subject of frequent study and analysis. This chapter attempts to understand how current constitutional thinking in India has shaped the manner in which rights over water have been dealt with, and the implications this has for power sharing arrangements. Section I briefly discusses the constitutional arrangements and the questions that these pose for a democracy; Section II examines how court judgements have changed the manner of these constitutional arrangements and Section III examines some of the questions that need to be resolved if the ‘water question’ needs to be addressed in a fair and just manner.

I

The Either–Or Choice Regarding the Power to Legislate on Water The distribution of distinct heads of legislation across the three lists in the Seventh Schedule of the Constitution marks off not only the boundaries of legislative powers between the Centre and the States but also divides the executive power in an identical manner since these two powers are virtually coterminous. The residuary power to legislate in the Indian Constitution is with the Centre (Article 248), and thus any matter not granted explicitly to the State legislatures, that is, a non-enumerated head of legislation would by default inhere in the Parliament. Interestingly, there is no formal provision in the Constitution that ‘vests’ legislative power exclusively with either the Parliament or State assemblies as one could have expected in a federal Constitution. Rather, the power to legislate is scattered in several places and not merely restricted to parts of the Constitution that deal with the distribution of legislative powers,2 and across several institutions (not merely the Central and State legislatures) in the text of the Constitution. 2

Part XI, Chapter I (Articles 245–55), Constitution of India.

Water in India 19

Thus, the power to legislate is shared by the legislatures (Central and State), the executive, and the governor (particularly in the case of the autonomous district councils). More interestingly, the recognition of custom as a source of law (Article 13) and the distinct place for religious personal laws as laws (Article 25) that are enforced by the legal system created by the Constitution introduces new aspects into the usual three-way institutions discussed in the separation of powers discourse. In this context, it could be argued that ‘silences’ in the Constitution over the power to legislate on any particular aspect need not necessarily inhere in the central Parliament by virtue of the residuary power, given that the powers to legislate are scattered outside Articles 245–55 that, in the main, deal with legislative powers. Matters relating to rights over water are to be found in several laws relatable to several heads of legislation.3 The legislative lists, while expressly dealing with water resources, have placed water in both Central and State lists.4 As has been pointed out often, the entries relating to water are not exhaustive and many aspects have not been expressly covered or detailed out.5 In such cases the interpretation of the court regarding who would have the authority to legislate on this matter becomes crucial. At the very outset one may point out that constitutional interpretation has taken the view that the power to legislate needs be shared by either the Central or the State legislature. No alternative theory of reserving certain powers with the people or for customary practice has ever been countenanced. The example of groundwater is a case in point. The question of whether Parliament had the power to legislate on this head was an implicit issue in the case that came up before the court dealing with groundwater. In the leading M.C. Mehta case dealing with groundwater (M.C. Mehta v. Union of India ),6 the court directed the government to set up an authority

3 Thus Entry 14 List II relates, among other things, to agriculture, which necessarily deals with water, and Entry 18 of List II, which speaks of land improvement, would also have to be read with Entry 17, which deals specifically with water, and would in their turn also be subject to Entry 56 List I. See Cauvery Water Disputes Tribunal, In re: later in the chapter. 4 The subject ‘Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, subject to the provisions of Entry 56 of List I’ is a matter enumerated in Entry 17 of the State List (List II) of the Seventh Schedule. ‘Regulation and development of inter-State rivers and river valleys’ is Entry 56 of the Union List in the Seventh Schedule of the Constitution. 5 See Iyer, Water: Perspectives, Issues, Concerns. 6 (1997) 11 SCC 312.

20 Kamala Sankaran

at the Central level to deal with indiscriminate extraction of groundwater. In addition, several other related orders had been passed in the case. One striking feature of the nature of the court’s orders in intervening in ‘water’ matters in this period has been its tendency to direct that Central-level institutions plan and coordinate matters relating to water. The question of whether the Central Government had explicit powers to deal with groundwater does not seem to have been examined in detail in this case. The court stated on p. 314: This Court on 5-12-1996 passed the following order: Pursuant to this Court’s order dated November 21, 1996, Mr Arun Kumar, Additional Secretary, Ministry of Water Resources, Government of India, has filed affidavit dated November 27, 1996. It is stated that because of the reasons given in the affidavit it would not be possible to have a workable mechanism by appointing authorities under Section 3(3) of the Environment (Protection) Act, 1986. We do not wish to comment on the stand taken in the affidavit. We are prima facie of the view that the Act being an Act made by Parliament under Entry 13 List I read with Article 253 of the Constitution of India, it has an overriding effect. It is not necessary for us to go into this question.

On this basis, the court was of the view that the Central Ground Water Board is an Authority under Section 3(2) of the Environment Protection Act, 1986. This Board was to coordinate the work of water resources conservation and development. The court did not go into the question of whether groundwater as ‘water’ could be a State subject, but dealt with the matter as one affecting the environment, and therefore covered by the Environment Protection Act, 1986 and thus within the purview of the Central Government. It must be remembered that starting from the 1970s, the Central Government had been drafting Model Groundwater Bills for the States to adopt without piloting a bill of their own. One reason for the Central Government’s reluctance in doing so may have been the question of whether they had the legislative competence to enact a law on groundwater at the Central level, given the distribution of entries in the Seventh Schedule. It must be noted that this reluctance however did not come in the way of the Coastal Regulation Zone. The Coastal Regulation Zone Notification, 1991 inter alia places a ban on the harvesting or withdrawal of groundwater within 200 metres of the High Tide Line.7 7

See Bhat, ‘A Comparative Study of Ground Water Law and Policy in South India’.

Water in India 21

As has already been noted, conventional wisdom requires that the power to set up a groundwater authority needs to be expressly found in one of the entries in the Union List (List I) or the Concurrent List (List III) before the Central Government could have been directed to do so. What is surprising is that the court did not go into the question of whether the Central Government had the necessary constitutional competence to act or not. It could of course be argued, as the court did, that the Environment Protection Act, 1986 was passed by virtue of Article 253, and that this was the basis for the power of the Parliament to give effect to international treaty obligations and the consequent Central override over the State list in such matters. This is a very sweeping reading of constitutional law because it collapses all divisions of a federal nature with regard to legislative power over environmental matters, including water, as falling within the Central domain. This in fact flies in the face of clear textual provisions allotting power of legislation with respect to water to two different legislatures in the Constitution, and the court’s respect for these federal divisions over the years notwithstanding the existence of the Environment Protection Act, 1986 and its genesis. While the matter was not discussed in the M.C. Mehta groundwater judgement, could groundwater be treated as falling within the residual power of legislation of the Centre? This would of course require that the matter of groundwater be read as not being allotted to the States in List II. On the contrary, given the wording of Entry 17, ‘Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power …’, groundwater could most readily be treated as falling within the domain of the States. In such a situation, the use of the residuary power in Article 248 to justify Central action with respect to groundwater would be untenable. The directions by the court in the groundwater case therefore assume importance because it could be argued that they lack constitutional basis and violate the distribution of legislative, and, hence, executive powers. This case is illustrative of the manner in which the courts have interpreted the Constitution over the years, resulting in a greater centralisation of powers, as I argue later. The blurring of the federal divisions through court orders is of course a matter for concern and needs to be addressed; however this cannot be done within a discussion of rights to water alone but within a debate on the accountability of judicial powers. The remarkable feature of the Constitution as interpreted by the court is that there is no possibility of challenging such judgements of the courts. No petition as of right would lie against the courts to challenge any order of the court either on the ground that they violate a fundamental right, or on the ground that they direct executive action on the part of a government that lacks the constitutional

22 Kamala Sankaran

competence to so act. The reason for this is that the judiciary is not treated as ‘state’ for the purposes of Article 12 of the Constitution, with the result that one cannot petition the court against itself! The innovation regarding a curative petition that has been fashioned by the courts in recent times (see Rupa Ashok Hurra v. Ashok Hurra )8 permits the parties alone to challenge a court decision which, in their opinion, violated the principles of natural justice, such as a bias on the part of the court or a failure to be heard. These grounds of course relate to the procedural aspects of a court case and do not strike at the substantive order passed in the matter. Another case that has raised federal questions relating to water, and again due to a court order, is the river linking case.9 It may be recalled that the then President of India, Dr A.P.J. Abdul Kalam, had voiced his opinion at a public address about the need for and feasibility of linking all the rivers in India to ensure efficient use of river water resources. This was seized upon by the courts in an ongoing case inter alia on the pollution of the River Yamuna to pass orders with respect to such linking of rivers. Quoting the argument of the amicus curiae in the case, the order on 30 September 2002 by the three-judge bench comprising, among others, the current Chief Justice of India, Justice K.G. Balakrishnan J. (as he then was), stated: Learned Amicus Curiae has drawn our attention to Entry 56 List I of the Seventh Schedule to the Constitution and contends that the inter-linking of rivers can be done by the Parliament and he further contends that even some of the States are now concerned with the phenomenon of drought in one part of the country, while there is flood in other parts ….

On that basis, States were asked to respond to the idea of inter-linking. A noteworthy aspect of court orders in ‘water’ related matters has been the speed with which orders have been passed. Take in particular the interlinking of rivers case. One month’s time was given to each State Government to file an affidavit on their views regarding the proposed inter-linking, which, when considering the magnitude of the issue involved, was particularly short. Consultation within the corridors of the government alone would take far longer, not to speak of any kind of consultations with the people concerned. When several did not respond (excepting the Union of India and the State of Tamil Nadu), the court construed their silence as consent, in so vital a 8

(2002) 4 SCC 388. Networking of Rivers In re: (2004) 11 SCC 358, (2004) 11 SCC 359, (2004) 11 SCC 360, (2004) 11 SCC 363. 9

Water in India 23

matter involving huge outlays of money, complex technological matters, and the interests and livelihoods of crores of persons. Clearly, efficiency and the requirement of speedy decision-making come at a price. On 31 October 2002, barely a month after the order asking for the views of different State Governments, the court ordered: … No other State or Union Territory has filed any affidavit and the presumption, therefore, clearly is that they do not oppose the prayer made in this writ petition and it must be regarded that there is a consensus amongst all of them that there should be interlinking of rivers in India.10

It has in fact been noted that this ‘consensus’ is of a dubious nature, with the Kerala legislature passing a resolution against such inter-linking. This unseemly haste on the part of the court, especially when the matter has immense social, political, environmental and technological implications, has been widely questioned; and the setting up of a Task Force by the then government has served to take the focus of attention away from the court in this matter.11 A related concern with regard to powers over ‘water’ in the Constitution has been the position of Panchayati Raj Institutions. As is well-known, the 73rd and 74th constitutional amendments did not give any legislative powers to these bodies. Executive powers, if any, could be devolved to these bodies within the matters specified in the Twelfth Schedule. In many jurisdictions, particularly in the European Union, there is a principle of subsidiarity that has been applied to deal with matters of federalism and decentralisation.12 Subsidiarity requires that every decision that is taken in a federation or confederation be taken at the lowest possible levels. Such a principle of subsidiarity has, however, never been read into the Indian Constitution while interpreting ambiguity in power allocation because the residuary power is seen to vest in the Centre (Article 248),13 even though,

10

Networking of Rivers In re: (2004) 11 SCC 360. The court, it appears, has now decided not to go full steam ahead on this matter; it appears to be waiting for the executive to make any further moves. The present UPA government has shown its reluctance to move forward on this controversial issue of inter-linking of rivers. 12 See Bermann, ‘Taking Subsidiarity Seriously’ and Tushnet, ‘Federalism and Liberalism’. 13 Article 248 states: 11

(1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. (2) Such power shall include the power of making any law imposing a tax not mentioned in either of those lists.

24 Kamala Sankaran

as we have noted earlier, there is no exclusive vesting of all legislative power only in the legislatures. Conventional wisdom has always preferred an ‘either-or’ choice between the Parliament and the States in these matters. The implications of this approach have been far-reaching for democracy and for federalism. As a result, decision-making gets concentrated at the very top instead of, on principle, percolating downwards. Often the exigencies of planning and quick decisionmaking, as the court orders in the rivers networking case demonstrate, push it ever more towards decision-making at the higher levels. I would argue that given the absence of a clear vesting of legislative power exclusively in the legislatures (unlike, say, the Constitution of the United States), and despite the presence of Article 248 of the Constitution, since the capacity to create law is scattered across different authorities,14 including people (in the form of custom and usage in Article 13), one cannot assume that all powers to make law must vest in either the Parliament or State legislatures. In any case, there are heads of legislation not contained in the three legislative lists of the Seventh Schedule that do not automatically vest in the Parliament by virtue of Article 248 because they are dealt with in other parts of the Constitution.15 This would indicate that there could be powers to make laws situated in other institutions or bodies notwithstanding the residuary power to legislate contained in Article 248. Recognising such powers in non-legislative bodies would in no way hamper the principle of predominance of the Union power to legislate and override laws made at lower levels of the administration, where appropriate, or those made by the people. The traditional Austinian notion of sovereignty had conceived of vesting limitless and exclusive powers of legislation in the supreme sovereign. Revisiting this subject in the twenty-first century, one is struck by the extent to which such ideas in fact disempower people from participating in decision-making. As I have pointed out above, repatriating such legislative power is not outside our constitutional scheme. I return to this in the concluding section of the chapter to argue that it may serve to reduce conflicts over river water use and distribution in ways more significant than the present architecture of power sharing, which places the locus of such power at the very top of the political structure.

14

See for instance, Articles 123, 213, 240 and para 5 (2) of Sch. V of the Constitution. See Articles 119, 209 and 262. For an elaboration of the view concerning the power to legislate in the Indian Constitution, see Singh, ‘Legislative Power in India’. 15

Water in India 25

II

Court Decisions and Federal Divisions Writing in 1988, the Commission on Centre–State Relations (the Sarkaria Commission) noted, ‘The centralising trends which were just discernible when the Indian Constitution was on the anvil, are now manifest realities of gigantic proportion in most federations.’16 The Sarkaria Commission made the somewhat sweeping comment that the two-fold principle of Union Supremacy in Articles 246 and 254 are an ‘anti-federal feature of our Constitution’.17 The Commission also reviewed the court judgement dealing with Centre–State matters and noted that ... most of them have, in effect, upheld the primacy of the Union vis-à-vis the States. The need for a strong united India which was the prime objective before the Constitution-framers, appears to have been the silent premise dominating the process of adjudication of Union-State disputes in these cases.18

The trend noted by the Sarkaria Commission continues in the years since. Some aspects of this trend merit closer scrutiny. The judicial power of the state to adjudicate has been fiercely guarded by the courts and any incursion on this judicial power to determine disputes inter partes has been fiercely resisted. The courts, being the final interpreter of the Constitution and laws, have also retained the right to determine the scope of the jurisdiction of the Inter-State Water Dispute Tribunal, notwithstanding Article 262, read with the Inter-State Water Disputes Act, 1966. Thus in the State of Tamil Nadu and Ors v. State of Karnataka and Ors,19 the court held that the Tribunal had the power to grant interim relief. The court in Cauvery Water Disputes Tribunal, In re: struck down the validity of the ordinance passed by the Karnataka government to overcome the judgement of the Supreme Court on the powers of the Tribunal to grant interim relief. The court held that once the judgement of the court had become final, it was 16 Government of India, Report of the Commission on Centre–State Relations, page 12 of Part 1 of the report. 17 Ibid., p. 28. 18 Ibid., p. 12 . 19 1991 Supp (1) SCC 240.

26 Kamala Sankaran

not open to the government to issue an ordinance so as not to implement the judgement as this amounted to interference with the power of judicial review of the court.20 The access to the courts over the issue of right to water has been an increasingly important matter in the last few years. The recognition of the right to water as a fundamental right in court judgements delivered on petitions filed under Article 32 has meant that the Supreme Court and High Courts have been seen as appropriate forums for the recognition of such rights which could be used by persons acting individually or collectively.21 This ease of access to the courts is at variance with the language of Article 131, which stipulates that suits can be filed in the Supreme Court for inter-State disputes only by States or the Government of India.22 This dichotomy had been noted by the National Commission to Review the Working of the Constitution (NCRWC), which held in 2002: 8.11.3 The Commission observed that in case of every water dispute there have been several occasions when one or the other party approached the Supreme Court by way of seeking judicial review both against the interim orders of the tribunal as also against the final decision. Further in the implementation of the decision of the tribunal the oustees or persons on behalf of the oustees resort to enforcing their fundamental rights under article 21 by a remedy under article 32, consequent on the submergence of their lands due to construction of reservoirs. This leads to adjudication by two forums one as to the use and distribution of water and the other relating to the enforcement of fundamental rights in the process of implementation of the decision of the Tribunal.

In dealing with a case of an organisation of people residing in the State of Karnataka who challenged the constitutional validity of the Inter-State Water Disputes Act, 1956 and the order issued by the Government of India 20

1993 Supp (1) SCC 96 (II). See for instance, Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 and A.P. Pollution Control Board II v. M.V. Nayadu (2001) 2 SCC 62. 22 Article 131 on the Original Jurisdiction of the Supreme Court states: 21

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute— (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more States on the other; or (c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.

Water in India 27

setting up the Cauvery Water Disputes Tribunal, the court which heard the case in a transferred petition under Article 131 held: Under Article 131 of the Constitution of India, the water disputes between two States can only be brought by a State and not by an individual or a society. We are, therefore, of the view that the petitioner has no locus standi to challenge the validity of the Act or the setting up of the Tribunal and also to the reference of the disputes for adjudication to the Tribunal (Gandhi Sahitya Sangh v. Union of India and Ors.23

This sweeping rejection of the rights of the petitioners to challenge the validity of the Act was surely not warranted in this case. The powers of judicial review can be activated by any person affected. Without a clear finding that this group was not a person so aggrieved, this dismissal of an organisation of the people is indicative of the pervasive feeling that affected persons have difficulty establishing their voice in such matters. This despite the fact that in the Cauvery Water Disputes Tribunal, In re: the right to the flowing waters of rivers was described as a right publici juris or a right of the public. In fact, this analogy of a public right was used by the courts effectively to hold in another case dealing with the validity of the Gujarat Gas (Regulation of Transmission, Supply and Distribution) Act, 2001, that the people of the entire country have a stake in the natural gas to be found in Gujarat and its benefit had to be shared by the whole country, and that therefore the law passed by the State legislature was without legislative competence, which the Union alone enjoyed.24 The courts have also reinforced the pre-eminence of the governments in the settlement of inter-State river water disputes. The interpretation that accords primacy to the Centre in such matters is seen very clearly in the recent court judgement involving the Mullaperiyar Dam. The creation of new States is a Central prerogative in the Indian Constitution. Articles 3 and 4 confer supreme and exclusive powers to the Parliament to enact provisions for dividing land, water and other resources while carving up an existing State to create a new State. The court in this case held that the ‘power of Parliament to make law under Articles 3 and 4 is plenary and traverse over all legislative subjects as are necessary for effectuating a proper re-organisation of the States’. Thus the court held that the power granted under the States Reorganisation Act that divided resources between Kerala and Tamil Nadu, was not unconstitutional (Mullaperiyar Environmental Protection Forum v. Union of India ).25 Such a strong statement about the 23 (2003) 9 SCC 356, 3-judge Bench. Also see Gandhi Sahitya Sangh Trust v. Union of India, decided by the Supreme Court on 26 October 2004 by a 2-judge bench. 24 Special Reference No. 1 of 2001, In re: (2004) 2 SCC 489. 25 AIR 2006 SC 1428, 3-judge bench.

28 Kamala Sankaran

immunity from judicial review to the parent Act that created a State is indicative of the court’s developing views on the matter, given the fact that in an earlier case involving the reorganisation of Punjab and Haryana, where Section 78 of the Punjab Reorganisation Act, 1966 inter alia divided river waters between the two States, the court held that ‘We leave open the question as to whether it is open to the State of Punjab to question the vires of the statute by which it was created’ (State of Haryana v. State of Punjab ).26 The exercise of the power of Parliament under Articles 3 and 4 to create a new State has sometimes resulted in an area hitherto riparian being rendered non-riparian. This is precisely what happened when Haryana was created as a result of the Punjab Reorganisation Act, 1966. Section 78 of that Act allotted the river waters of the Ravi–Beas system to Haryana. The irony was that since Haryana was a non-riparian State it could not raise an inter-State river water dispute under the Inter-State Water Disputes Act, 1956 over the tardy manner in which Punjab was proceeding with the building of the Sutlej–Yamuna Link Canal envisaged under the Act. The resultant political agreement between the late Sant Longowal and Prime Minister Rajiv Gandhi had to be incorporated by an amendment to the 1956 Act to bring such a dispute within its ambit.27 The possibility of a riparian State being rendered at one stroke a non-riparian one and being left with very limited judicial remedies as a result reveals the imbalances that such ‘anti-federal’ aspects of the Constitution could entail. Over the years the courts have also clarified that each and every issue relating to inter-State rivers cannot be ‘constitutionalised’ as a water dispute under Article 262 read with the Inter State Water Disputes Act, 1956. Thus, in the Mullaperiyar case, the court was categorical that the dispute relating to the safety of the dam on the increase of the water level to its old height of 142 ft was not a ‘water dispute’ under the Act, and therefore the court declared that it had jurisdiction in the matter. It must be noted that this was a case brought by a people’s organisation challenging the safety of the dam and was filed under Article 32 of the Constitution for enforcing fundamental rights. The petitioner prayed that the agreements of 1886 (between the Maharaja of Travancore and the Secretary of State for India in Council where about 8,000 acres of land were leased for the execution and preservation of irrigation works called the ‘Periyar Project’)

26 27

(2004) 12 SCC 673, para 77, 2-judge bench. See Section 14 of the Act inserted in 1986.

Water in India 29

and 1970 (when this agreement was modified by the two State Governments) be declared as null and void and consequential relief be granted and also that Section 108 of the States Re-organisation Act, 1956 be declared ultra vires and unconstitutional as it encroaches upon the legislative domain of the State Legislature under Entry 17 of List II of the Seventh Schedule of the Constitution of India. Unlike the case of the Gandhi Sahitya Sangh, where the court declared that such organisations have no locus to challenge the vires of an Act, this does not appear to have been the case in the Mullaperiyar case. Such organisations certainly have their uses and have been allowed standing in the court. Take for instance the important judgement delivered by the Supreme Court in 1990 directing the Central Government to constitute an appropriate tribunal and refer the dispute over the Cauvery river waters to it. This was done on a petition filed by such an organisation under Article 32 of the Constitution (Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v. Union of India).28 One could, of course, distinguish such cases filed under Article 32 from the one in the Gandhi Sahitya Sangh case, where the court ruled on the lack of standing of such organisations. However, we must note that the court took the position in that case that there was no locus in a case under Article 131, but since it was a transferred case, such an argument might not be correct. Further, denying the right to challenge the vires of the Act to such affected groups is stating the proposition in an unduly wide manner, as noted earlier. The power of the courts in judicial review matters has only been underscored over the years. As the 1990 case reveals, the court has so interpreted the law and claimed jurisdiction to direct the government to set up a tribunal in the Cauvery case. Notwithstanding the exclusion of the Supreme Court in Article 262, the power of judicial review by the Supreme Court can never be ousted, given that it is a basic structure of the Constitution (L. Chandra Kumar v. Union of India ).29 Given the complex nature of the issues involved, the review power of the court may be adequate in matters relating to river water disputes instead of further conferring it with an appeal power as some commentators suggest.30

28 (1990) 3 SCC 440. The 2002 Amendment to the Inter-State Water Disputes Act, 1956 now makes such a reference mandatory within one year of such a request being made by a State Government and where the Central Government is of the opinion that such a dispute cannot be settled through negotiation. 29 (1997) 3 SCC 261. 30 See, for instance, the views of Ramaswamy R. Iyer, ‘Water and the Laws in India’ , on this point.

30 Kamala Sankaran

III

Giving a Constitutional Voice to People over ‘Water’ Water is a scarce resource and there is simply not enough to go around for fulfilling the water rights of all. However the right to water is a fundamental right, and by dint of being human all should certainly have adequate water for their essential water requirements. Scholars have noted that the common law principle of the rights of landowners over underground water has had to yield, in the interests of equity, to de-linking rights over water from land ownership and linking it to a human right to be enjoyed together with all life on earth—plant and animal—in harmony. Balancing this individual interest with a general/societal interest has been a difficult task for any social, political or legal system to achieve. Track II efforts among people to resolve such disputes find no constitutional recognition. Such settlements, even if arrived at, have no legal standing unless endorsed by the executive or legislature. Indian constitutional thought has studiously avoided granting any place to such initiatives. It may be noted that even while the Constitution was being drafted and foreign constitutions were widely consulted, the route of referendums was never seriously mooted and considered in the drafting committees. The possibility of the introduction of a private bill in Parliament and its eventual adoption is often a remote one. However, even were this to be the case, it must be noted that the private bill needs to be piloted by a member of the House. There is thus no way in which legislation could be initiated outside the legislature at present; the role of those outside such institutions is restricted to lobbying and advocacy with the legislature and the executive for this purpose. The role of the people in law-making, as seen in customs or usage as sources of law, may not be relevant for this purpose, given the long time periods needed for customs to be created and recognised. The exclusivity of law-making powers in traditional institutions is a feature of the present-day constitutional scheme. What would be the implications if such settlements at the people-to-people level could be worked out? It would need a mechanism by which people would have a right to initiate legislation and place it before the legislature for enactment. The concomitant ‘duty’ would then be cast on elected representatives, and equal time and priority would have to be accorded to such efforts, particularly where they are backed by large numbers. The alternative route of referendums as a source of lawmaking would, of course, be an alternative option. The plenary right to

Water in India 31

legislate of the legislatures would have to be curtailed. The resultant ‘legal pluralism’ would of course need to be harmonised within the constitutional scheme. It must be borne in mind that even at present, custom and usage are recognised as sources of law in India. A multiplicity of laws and legal regimes do not of their own cause disharmony. (It must also be noted that in a completely different context, for many, the lack of uniformity in the personal laws is not as important an issue as the lack of equality rights for women in such laws.) The seeds for a reworking of the conflicts over ‘water’ can be found in the ongoing people-centred initiatives to settle disputes such as the Cauvery river waters one, and need to be developed and incorporated into the legal and constitutional levels as well. Sixty years and several disputes on, creating newer mechanisms for granting ‘voice’ and making participation in the lawmaking process more inclusive may well be the way forward.

References Bermann, George A. 1994. ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’, Columbia Law Review, 94: 331–456. Bhat, P. Ishwara. 2004. ‘A Comparative Study of Ground Water Law and Policy in South India’, Indian Juridical Review, 1 . Iyer, Ramaswamy R. 2003. Water: Perspectives, Issues, Concerns. New Delhi: Sage Publications. ———. Forthcoming. ’Water and the Laws in India’ (written in November 2005 and finally revised in July 2006) in Constitutional History of India, Subhash Kashyap (ed.). Singh, M.P. 1975–76. ‘Legislative Power in India: Some Clarifications’, Vols 4 and 5, Delhi. L. Rev, 73. Tushnet, Mark. 1996. ‘Federalism and Liberalism’, Cardezo Journal of International and Comparative Law, 4: 329–44.

3

Inter-State Water Disputes: A Nightmare! Fali S. Nariman

Introduction Nearly 10 years ago, the Department of Economics, University of California, published a well-researched Study on ‘India’s Institutions Governing InterState River Waters’.1 It recorded the following dismal conclusions: (i) that Indian water dispute settlement mechanisms were ‘ambiguous and opaque’; (ii) that in situations of pure conflict where the initial allocation of rights was at stake, a search for a negotiated solution had become ‘futile’; (iii) that the adjudication process prescribed under the Inter-State Water Disputes Act, 1956, was ‘slow and cumbersome’; and (iv) that the entanglement of Inter-State Water Disputes with more general Centre–State conflicts had compounded the problem of Inter-State Water management. Having appeared as Senior Counsel in two major inter-State water disputes—first over the Narmada River (from 1971 to 1978) and then over the Cauvery River (from 1990 to 2007)—I confirm as valid the conclusions of the California University study. In my view, inter-State water disputes are ill-served by the present mechanism under the constitutional scheme and the law enacted by Parliament—the Inter-State Water Disputes Act 1956 (ISWD Act). The Act

1

Richards and Singh, Water and Federalism.

Inter-State Water Disputes 33

has not worked efficiently, nor has it inspired the confidence of party States participating in tribunal adjudication (provided for in the 1956 Act).

Some Personal Observations: The Narmada Water Disputes Tribunal and the Cauvery Water Disputes Tribunal The Narmada Water Disputes Tribunal (constituted under the 1956 Act) had as its Chairman an erudite Judge of the Supreme Court, Justice V. Ramaswami; he worked hard and constantly looked all around the world for assistance in the solution of the problems arising before him. I gathered the rudiments of international river-water law (applicable also within NationStates) thanks to the learning and enthusiasm of this fine Judge. The question as to whether it was more advantageous to build a high Narmada Dam as proposed by the State of Gujarat or a much lower dam as suggested by experts produced by the State of Maharashtra (my clients) occupied much of the time of the Ramaswami Tribunal. After nearly 10 years of oral and documentary evidence and lengthy arguments by advocates for the States (Gujarat, Madhya Pradesh, Maharashtra and Rajasthan), the Final Report was handed down: The High Dam (the Sardar Sarovar Project) presented by Gujarat was ultimately preferred by the Tribunal, and provision was made in the Report for acquisition of lands along the embankments of the river, with a detailed scheme (the first of its kind in India) drawn up for the relief and rehabilitation of inhabitants to be displaced by the High Dam. But over the years, problems of implementation have prevented the construction of the dam to its stipulated height. In the Cauvery Water Dispute, the question as to whether pre-Constitution Agreements (of the years 1892 and 1924)—‘treaties’—between the Princely State of Mysore and the Province of Madras as to the flow of Cauvery waters from the upper riparian Indian State of Mysore to the lower riparian British Indian Province of Madras had lapsed after the British Parliament enacted the Indian Independence Act 1947, or whether they continued and were binding on the successor States under the Constitution of India 1950 and whether in any case the provisions of those agreements could be reviewed or altered after the stated period of their operation had expired, engaged much of the time and attention of the (Cauvery Water Disputes) Tribunal. The proceedings before it literally dragged on for so long that it had to be twice re-constituted:

34 Fali S. Nariman

on the resignation of its first Chairman and later because of the untimely death of one of its three Members. When after nearly 20 years a final decision was handed down by the re-constituted Tribunal (on 5 February 2007), it was immediately subjected to a challenge in the Supreme Court of India by the States of Karnataka and Kerala: challenges that have been accepted and admitted to a hearing by a larger Bench: since constitutional questions raised can be finally pronounced upon only by the country’s highest court. The State of Tamil Nadu, having initially welcomed the decision of the Cauvery Water Disputes Tribunal later challenged it in the Supreme Court by filing a Special Leave Petition (SLP) under Article 1362 of the Constitution; this SLP has also been admitted and referred for hearing to a larger Bench of the Court. The result is that after nearly two decades a final ‘resolution’ of the dispute is still not in sight. My experience is that none of the political parties in any of the complainant or contesting States (in inter-State water disputes) is ever willing to concede a single point to the other State: for instance, in the Cauvery Water Dispute the farmers and the politicians in Karnataka cutting across political party lines have been (and are) in no mood to sacrifice the irrigation or drinking water needs of Karnataka to accommodate the people of Tamil Nadu; and likewise, the farmers and the politicians in Tamil Nadu are unwilling to change their century-old cropping patterns, and insist on an undisturbed flow of water as mandated in the 1924 Agreement between the erstwhile State of Mysore and the British Indian Province of Madras: neither of the States will yield an inch. Water allocation by Inter-State Water Disputes Tribunals are simply not acceptable to political parties or governments of contesting States: the only inevitable acceptability would be to a decision of the country’s highest court—the Supreme Court of India’s decisions are final not because they are infallible; the decisions of the Supreme Court are infallible only because they are constitutionally final. Resolutions of water disputes by ‘agreement’ are more readily forthcoming when the government at the Centre has been ‘strong’, not when the government at the Centre has been ‘weak’. With a single-party government in 2

Article 136. Special leave to appeal by the Supreme Court: (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in Clause (1) shall apply to any judgement, determination, sentence or order passed or made by any court or Tribunal constituted by or under any law relating to the Armed Forces.

Inter-State Water Disputes 35

power at the Centre (up to the late 1970s), it was possible for the then Prime Minister, Mrs Indira Gandhi, to bring around the States involved in the Narmada Water Dispute (the States of Gujarat, Maharashtra and Madhya Pradesh) to agree to give a small share of the Narmada waters to a non-riparian State—the State of Rajasthan. Agreement was reached by all four States on 23 February 1972 and an accord was signed by the Chief Ministers of each of the States (and counter-signed by the Prime Minister to underscore the importance of the Centre’s intervention!). The Narmada Water Disputes Tribunal having held (in a preliminary decision) that Rajasthan, being a non-riparian State, was not entitled to a share in the Narmada waters, later changed its opinion in view of the written accord. As per Clause 3 of its final decision (12/12/1979), the State of Rajasthan was allocated 0.5 MAF of Narmada waters from the Sardar Sarovar Dam ‘in the national interest’. This was allocated to the State of Rajasthan in terms of the Chief Ministers’ Accord for utilising the same for irrigation and drinking purposes in the arid and drought-prone areas of Jalore and Barmer districts of Rajasthan situated on the international border with Pakistan, districts having no other available source of water. By way of contrast: after the 1990s, when governments at the Centre have been ‘weak’—coalition governments of several political parties with divergent policies—attempts by successive Prime Ministers to bring about an overall settlement in the Cauvery Water Dispute have proved abortive, or as the California Study would put it, ‘futile’. The Narmada Dam would have by now reached its determined height of FRL 455 ft—one of the highest in the country—but problems associated with tardy resettlement and inadequate rehabilitation efforts on the part of the concerned States (Gujarat and then Madhya Pradhesh) in respect of the tribals and others located on the banks of the Narmada river prompted India’s Supreme Court to intervene and to assume a monitoring role over the construction of the Sardar Sarovar Project: a role that the Supreme Court felt was mandated by the overriding humanitarian provisions contained in the Life and Liberty Clause of the Constitution (Article 21).3 3 See Narmada Bachao Andolan (NBA) v. Union of India 2000 (10) SCC 664, a Bench decision of the Supreme Court consisting of three Justices. Two of them (namely, C.J. Anand and J. Kirpal) held that the construction of the Sardar Sarovar Dam having been cleared in 1987 and a Writ Petition being filed only in 1994 to challenge the construction of the dam, it was highly belated. The third Judge (Bharucha J.) dissented and held that the Writ Petition having been filed during the process of relief and rehabilitation, the petitioners (NBA) were not guilty of any laches. All the three judges, however, held that on account of the Supreme Court’s concern for the protection of the fundamental rights of the oustees under Article 21 of the Constitution, it was necessary to admit the Writ Petition and supervise the relief and rehabilitation measures— an ongoing process.

36 Fali S. Nariman

The continuance of the Sardar Sarovar Dam Project is being closely supervised by the Supreme Court to ensure a fair and just implementation of the Tribunal’s decision concerning rehabilitation. It is only now, after long years of disputation that the project has been permitted to go ahead4—but presently only up to a height of FRL 436 ft (the actual height at present is at FRL 394 ft): this is the price we must pay for a vibrant, though fractious, participatory democracy, under a Constitution whose preamble emphasises the supremacy of ‘We the People’.

A Digression—China’s Three Gorges Project Contrast this with China’s Three Gorges Project: in April 1992, the National People’s Congress in Beijing approved the ambitious Three Gorges Project to tame the mighty and turbulent Yangtze River—upon its completion it will be the world’s largest hydropower plant—in terms of total installed capacity and annual power generation. It will also be the world’s largest water conservation facility. But it will also inundate 653 sq. km of densely populated areas of China—the largest area in the world to be inundated by a single man-made project! Inundation will affect more than 365 townships in 21 counties, cities or districts and over one million people would have to be resettled. The Three Gorges Reservoir will also submerge 31,000 hectares of farmland and require the relocation of nearly 1,500 industrial and mining enterprises. A few newspapers had quoted the officials to have reportedly said: ‘[I]n spite of preliminary success more difficulties are involved in the resettlement drive but we are optimistic about its final success.’ Last year I asked a leading Swiss expert on dams when he was visiting New Delhi what he thought of the Three Gorges Project. He thought for a while and said that it was a most laudable venture because after just two decades that it would take to build, commission and operate, 50 million people downstream would be able to cultivate their lands without flooding and be assured of regular releases. I asked him, ‘What about the over one million people that have been deprived of their homes and have to be resettled elsewhere on account of this mega project?’ And he replied: ‘That is the price 4 The State of Madhya Pradesh though bound by the finality of the decision of the Ramaswami Tribunal has contested before the Supreme Court the height of the Sardar Sarovar Dam as adjudicated in the Tribunal’s decision but the Court has not so far accepted this plea (see NBA v. Union of India 2000 (10) SCC 662 at page 767 paras 246–49).

Inter-State Water Disputes 37

we must pay for future progress!’ But what a price! I told the Swiss expert that the Three Gorges Project—beneficial as it is in the long run—would be an impossibility in India under our democracy based on individual rights and freedoms. The Chinese believe in the Benthamite principle of the ‘greatest good for the greatest number’ (a worthy principle in itself ); in China, they believe in a rule-by-law regime, as contrasted with India’s system of governance which is rule-of-law, and not rule by law. We, who cherish individual freedoms have to undergo the constraints and pangs of personal liberty—constraints that do not obtain in the People’s Republic of China. It is no use saying that China is not democratic—every country that prides itself as independent stresses, either in its name or in its Constitution, that it is democratic. A White Paper issued by the Information Office in China only a few months ago emphasised this: it said, ‘China is a Democracy in which the overwhelming majority of the people act as masters of state affairs. It is not a democracy of small numbers of peoples but an overwhelming majority of peoples’ (notice the emphasis on the Benthamite principle). One of the great challenges to our democracy is that we could not possibly undertake in the future anything as grandiose as the Three Gorges Project or any other large beneficial irrigation and power project because this would involve enormous sacrifices in the present for a relatively small group of people. This is because of our emphasis on individual citizen’s rights, an emphasis that is becoming transformed in recent years almost into an obsession. We live in an age of an all-pervading rights culture. We claim a right to this and a right to that. Experience shows that a rights culture generates greater dissatisfaction amongst persons propounding different sets of rights. Too much emphasis on rights serves only to divide and fragment society and to spread discontent. In India today, we find ourselves in a stage of profound discontent: simply because we have forgotten our responsibilities to one another. It is useful to recall that when the UN Human Rights Commission was seeking the views of eminent persons on a (then proposed) universal declaration of human rights, a questionnaire was circulated to various thinkers and writers of the Member States of UNESCO; they were asked, as individual experts, to give their views. One of them was Mohandas Karamchand Gandhi. He responded in a brief letter to Dr Julian Huxley, the Director of UNESCO. The letter was written in May 1947 in a moving train (those were troubled times—the days before India’s independence). And this is what Gandhiji wrote:

38 Fali S. Nariman I learnt from my illiterate but wise mother that all rights to be deserved and preserved came from duty well done. The very right to live accrues to us only when we do the duty of citizenship of the world. From this one fundamental statement, perhaps it is easy enough to define the duties of Men and Women and correlate every right to some corresponding duty to be first performed. Every other right can be shown to be a usurpation hardly worth fighting for. (emphasis added by the author)5

When we gave ourselves a Constitution it was certainly good to provide rights enforceable against a State and State agencies. But I believe that it would have made a difference to our attitudes and our national consciousness if we had also stressed the duties and responsibilities of citizens of one State to citizens in another: such as the duty to share equitably the waters of an inter-State river.

How the Law is Structured and How it Works Although what is stated in the preceding section is a digression, it is relevant only for the purpose of emphasising the difficulty in a rule-of-law country of adjudication of inter-State river water disputes. Our Constitution, as structured, provides that even though disputes between States can only be adjudicated in the country’s Supreme Court (which is the country’s truly Federal Court) and in no other court, an exception has been made for water disputes between States: Parliament is empowered by law to provide for the adjudication of 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 [Article 262(1)]. Such a law has been enacted by Parliament—namely, the ISWD Act, which provides for reference by the GOI of complaints by States to a high powered tribunal to be set up for each and every separate dispute and complaint: a departure from the American pattern of resolving inter-State water disputes. In USA, such disputes remain with the country’s Supreme Court, a procedure having been devised for appointing a Special Master to record evidence and give his findings on various issues of fact and law, and make his report to the Court; each of the contesting States then filing objections or responses to the findings in the report, and the Supreme Court of the United States ultimately pronouncing its final verdict. 5 Cited in an address by Mr Fedrico Mayor, Director-General of UNESCO at the official opening of the International Literacy Institute at the University of Pennsylvania, Philadelphia, 29 September 1994.

Inter-State Water Disputes 39

I believe it was an error for us to have departed from the American pattern (the US has a written Constitution like ours) to resolve inter-State river water disputes. When conceived way back in the year 1956, it could perhaps have been justified as an innovative experiment—but the experiment has been a failure. I say this in the light of the experience gained in the now nearly 50 years of the working of ISWD Act 1956. Its two-layered scheme makes for inordinate delay—first, a final decision is rendered under Section 5(2) of the Act on the initial reference by the Central Government to the Tribunal, and next a further reference under Section 5(3) of the Act is provided for to question that decision for errors and omissions: one of more party States being permitted to seek explanation/guidance of the Tribunal on points referred, and even on points not originally referred.6 The result has been that water dispute tribunals when set up appear to last forever! Whilst they do provide gainful employment to a coterie of retired judges and generate work for dozens of practising lawyers, there is no prescribed regime of how the work of a water disputes tribunal is to proceed. Since these water dispute tribunals are not part of the established judicial system in the country, they have their sittings when they choose to have them: day-to-day hearings or even week-toweek hearings are the exception, never the rule. They function uncontrolled (somewhat like private arbitral tribunals) outside the regular court system. 6

Section 5 of the 1956 Act reads as follows: 5(1) When a Tribunal has been constituted under Section 4, the Central Government shall, subject to the prohibition contained in Section 8, refer the water dispute and any matter appearing to be connected with, or relevant to, the water dispute to the Tribunal for adjudication. (2) The Tribunal shall investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it within a period of three years: Provided that if the decision cannot be given for unavoidable reasons, within a period of three years, the Central Government may extend the period for a further period not exceeding two years. (3) If upon consideration of the decision of the Tribunal, the Central Government or any State Government is of opinion that anything therein contained requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, the Central Government or the State Government, as the case may be, within three months from the date of the decision, again refer the matter to the Tribunal for further consideration, and on such reference, the Tribunal may forward to the Central Government a further report within one year from the date of such reference giving such explanation or guidance as it deems fit and in such a case, the decision of the Tribunal shall be deemed to be modified accordingly: Provided that the period of one year within which the Tribunal may forward its report to the Central Government may be extended by the Central Government, for such further period as it considers necessary. (4) If the members of the Tribunal differ in opinion on any point, the point shall be decided according to the opinion of the majority.

40 Fali S. Nariman

The 1956 Act was amended in 2002 to provide for a mandatory completion of the proceedings in a stated period of time (three years, extendable by a further period not exceeding two years), but there is no monitoring of the work of these tribunals by the Supreme Court, and some of the tribunals have proceeded in a most lackadaisical manner. The Ravi–Beas Water Dispute (between the States of Punjab and Haryana), as per Section 9.2 of the Longowal Accord of 24 July 1985, had been initially referred to a Water Disputes Tribunal way back in 1986—but the tribunal having gone about its task ‘without let or hindrance’ (as the facile expression goes), the end is nowhere in sight, not even in the year of grace, 2007! The report of the Tribunal of 30 January 1987 under Section 5(2) has been questioned in a reference under Section 5(3), but this reference has not yet been decided. A tenacious holding on to positions, encouraged by human longevity and the loquacity and ingenuity of lawyers, combine to make the ISWD Act 1956 a tiresome and exhausting adventure. Each Tribunal adjudicating a particular ‘water dispute’ referred to it becomes virtually a regime unto itself—responsible to no one but the conscience of its own members— all of which projects a most unsatisfying picture of the working of the 1956 Act.

Inter-State Water Conflicts in USA and in India: The Possibility of Legislating Solutions The resolution of inter-State water conflicts has always been a difficult problem, even in the United States. The US Supreme Court has often urged Congress ‘to legislate solutions’, and has urged the States to make use of the Compact Clause of the US Constitution.7 The Delaware and Susquehanna River Basin Commissions are federal-inter-State compact agencies with comprehensive powers to deal not only with inter-State conflicts but also with

7 Except for the single limitation that the consent of Congress must be obtained, the original inherent sovereign rights of the States to make compacts with each other was not surrendered under the US Constitution. ‘The Compact,’ as the US Supreme Court has put it, ‘adapts to our Union of sovereign States the age-old treaty-making power of independent sovereign nations.’ ... Private rights may be affected by agreements for the equitable apportionment of the water of an interstate stream, without a judicial determination of existing rights.’

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all other water resource management issues. These commissions were the first inter-State compact agencies to include the federal government as a full-fledged signatory member. Inter-jurisdictional conflicts over the waters of inter-State rivers have also spawned much litigation in the United States. The US Supreme Court is America’s High Court (its highest), exercising Original Jurisdiction (US Constitution, Article III, Section 2, Clause 2),8 in disputes between States. It has adjudicated disputes on many inter-State rivers: the Laramie, the North Platte, the Connecticut, the Delaware and the Colorado, to name just a few. ‘Original jurisdiction’ means that the US Supreme Court acts as a trial court, first taking evidence on factual questions (to be recorded by a Special Master), then making final determinations on both fact and law. The federal-common-law-principle employed by the US Supreme Court in the resolution of water right suits between States is known as ‘equitable apportionment’: equitable apportionment is a label, not an analysis. The label describes the exercise that the Court goes through to render a fair and just judgement as between two co-equal quasi-sovereigns. For this purpose, the Court may draw on any number of water rights laws, rules of prior appropriation and federal or state statutes. Since the country’s Supreme Court is not equipped to act as a trial court, it must appoint a Special Master to hear the evidence and make recommendations both on fact and law. Invariably, multiple objections are filed to the Special Master’s report that the Court must ultimately sort out. In the end, the whole process does sometimes turn out to be an administrative nightmare for the Court, compelling the US Supreme Court to strongly suggest the use of non-judicial forums for the resolution of inter-State water right controversies, namely, ‘negotiation and agreement pursuant to the compact clause of the constitution’. In Arizona v. California9, Justice Black had said: It is true that the Court has used the doctrine of equitable apportionment to decide river controversies between states. But in those cases, Congress had not made any statutory apportionment …. Where Congress has so exercised its constitutional power over waters, courts have no power to substitute their own notions of an ‘equitable apportionment’ for the apportionment chosen by Congress. (emphasis added)

8 Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have Original Jurisdiction. In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. 9 1963 376 US 340 = 11 L Ed. 2d 757 (1964).

42 Fali S. Nariman

In India there is no compact clause as in the US Constitution [Article 1(10)]. But the 1956 Act does envisage agreements between States concerning the use, distribution or control of waters of an inter-State river. ‘Water dispute’ is defined as meaning inter alia ‘any dispute of difference between two or more States with regard to the interpretation of the terms of such agreement or the implementation of such agreement’ [Section 2{(c)}(ii) of the ISWD Act]. States are thus enabled to enter into agreements regarding the sharing and allocation of waters of an inter-State river, and more than 50 such agreements have been entered into between States over the years.10 But they have mostly been in respect of minor rivers and streams. State politics being what they are, any voluntary limiting of the use of water in a major inter-State river by one State so that another State can also utilise the same for irrigation or other purposes has become increasingly difficult: only an imposed solution, it appears, can work. The Constitution does envisage in Entry 56 of List-I (of the Seventh Schedule) the exclusive competence of Parliament to make laws with regard to the 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’.11 But the only enactment so far made by Parliament under this Entry is the River Boards Act, 1956; it has limited application because of a Section of that Act (Section 2) which provides: ‘[I]t is hereby declared that it is expedient in the public interest that the Central Government should take under its control the regulation and development of Inter-State Rivers and River Valleys to the extent hereinafter provided ’ (emphasis added by the author). The River Boards Act 1956, contemplates the establishment of River Boards but only for the purpose of ‘advising the (State) Governments interested’ in relation to such matters 10

These are set out in a book entitled Legal Instruments on Rivers in India (Agreements on Inter-State Rivers, Vol. 3) published by the Central Water Commission (Inter-State Matters Directorate), New Delhi (1995). 11 Article 246(1) 246. Subject-matter of laws made by Parliament and by the Legislatures of States— (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the ‘Union List’.) Entry 56 of List I (the Union List) reads: ‘56. 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.’

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concerning the regulation and development of an inter-State river or river valley. When a dispute or difference arises between two or more States interested with respect to any advice tendered by the Board or any measure undertaken by any government pursuant to any advice tendered by the Board then that dispute or difference has to be determined by the tortuous process of arbitration—the arbitration being by a person appointed by the Chief Justice of India from amongst persons who have been judges of the Supreme Court or of the High Courts: in other words, a judicially structured arbitration. The River Boards Act 1956, is not in essence a statute regulating the development of inter-State rivers and river valleys: it is a law enabling River Boards to be set up for rendering advice to State Governments with respect to regulation and development of inter-State rivers! At a time when the Centre was ‘strong’—and in the light of experience of the tardy working of the ISWD Act 1956—Parliament could have (and should have) taken under the control of the Union of India the major inter-State rivers for the integrated regulation and development of each entire region (irrespective of State boundaries). But it failed and neglected to do so. I do not envisage (in the near or even the distant future) our Parliament setting up (by law) River Boards as they were meant to be constituted under Entry 56 of List I of the Seventh Schedule in the Constitution.

The River Boards Act 1956—A Case of Missed Opportunities The blueprint of what such a Board (if set up) could or would do was there before those who framed the Constitution of India in 1950. Many years before the Constitution, the Report of the Indus Commission (Rau Commission Report, Volume I) had set out authoritatively the three different views on the subject of the rights of States in respect of an inter-State river: the first view was that every province or State has by virtue of its sovereignty or quasisovereignty the right to do what it likes with the waters within its territorial jurisdiction regardless of any injury that might result to a neighbouring unit.12 12 Prior to 1892, the Princely State of Mysore (now Karnataka) had asserted its rights to the flowing water in the Cauvery river based on the Harmon Doctrine, but the British Resident in Mysore (the Representative of the Viceroy) rejected this assertion. Claiming to exercise ‘paramount power’, he ruled that anything that harmed the British interests (including the Province of Madras) would not be countenanced.

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This view (the Rau Commission said) was against the trend of international law and in any event, so far as India was concerned, was in conflict with the manifest intention of Section 130 of the Government of India Act, 193513 (a precursor to Section 3 of the ISWD Act).14 The second view was that the rights of riparian provinces or States should be determined by the common law principle which applied to individual riparian owners in England—pushed to its logical conclusion, this principle enabled a province or a State at the mouth of a big river to insist that no province or State higher up shall make any sensible diminution in the water which comes down the river.15 This second view was also rejected by the Rau Commission.

13 Section 130: If it appears to the Government of any Governor’s Province or to the Ruler of any Federated State that the interests to that Province or State, or of any of the inhabitants thereof, in the water from any natural source of supply in any Governor’s or Chief Commissioner’s Province or Federated State, have been, or likely to be, affected prejudicially by—

(a) any executive action or legislation taken or passed, or proposed to be taken or passed; or (b) the failure of any authority to exercise any of their powers, with respect to the use, distribution or control of water from that source, the Government or Ruler may complain to the Governor-General. 14 Section 3 of the ISWD Act 1956 provides: 3. Complaints by State Governments as to water disputes—If it appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the inhabitants thereof, in the waters of an inter-State river or river valley have been, or are likely to be, affected prejudicially by: (a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State; (b) the failure of the other State or any authority therein to exercise any of their powers with respect to the use, distribution or control of such waters; or (c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or control of such waters. 15 This was the rule followed by the British Indian Province of Madras in relation to the Cauvery Waters located in the upper riparian state—the Princely State of Mysore: In a letter dated 13 June 1889, the direction of the British Resident in Mysore, Sir Oliver St. John, was conveyed to the Government of Mysore. In this letter, paramountcy was claimed over the Feudatory State of Mysore, and the principle for determining the rights of the Province of Madras over the waters of the Cauvery river was stated in the following peremptory terms: Sir Oliver St. John desires me to point out that he cannot accept the contention that ‘under the law and custom of all nations, Mysore has the right to utilize to the fullest extent the natural water courses flowing through its territory.’ It is presumed that by the

Inter-State Water Disputes 45

The third view—the principle of ‘equitable apportionment’—was what was accepted and advocated by the Rau Commission, namely, that every riparian State was entitled to a fair share of the waters of an inter-State river; what was a ‘fair share’ must depend on the circumstances of each case, the river being for the common benefit of the whole community through whose territories it flows, even though those territories may be divided by political frontiers.16 The general principles suggested by the Rau Commission and accepted by all parties before it were initially set out in the form of a juristic statement made by Sir Benegal Rau whilst adjudicating a complaint made by the Government of Sindh under Section 130 of the Government of India Act, 1935 relating to certain irrigation projects constructed or contemplated by the Government of Punjab on the Indus River and its tributaries. This statement is now the locus classicus of the ‘law’ on the subject. The statement reads: (1) The most satisfactory settlement of disputes of this kind is by agreement, the parties adopting the same technical solution of each problem, as if they were a single community undivided by political or administrative frontiers. (Madrid rule of 1911 and Geneva Convention, 1923, Articles 4 and 5.) (2) If once there is such an agreement, that in itself furnishes the ‘law’ governing the rights of the several parties until a new agreement is concluded. (Judgement of the Permanent Court of International Justice, 1937, in the Meuse Dispute between Holland and Belgium.) (3) If there is not such agreement, the rights of the several Provinces and States must be determined by applying the rule of ‘Equitable apportionment’, each unit getting a fair share of the water of the common river (American decisions).

law and custom of all nations, international law is meant. In the first place international law is not applicable to a feudatory State like Mysore in its dealings with the paramount power. Even if it were so, international law would not give Mysore the right claimed. Its position with reference to Madras territory is something similar to that of Switzerland towards Northern and Western Europe, and it could hardly be contended that the Swiss Republic would be permitted by international law to divert the waters of the Rhine into the Rhone or vice-versa and to destroy the main artery of inland navigation of Germany or France. Yet this is more than is claimed for Mysore by your Secretary’s letter. The principle which should be taken as your guide in this important question is that no scheme for stopping the flow of water from Mysore into Madras territory will be permitted if it can be shown to be detrimental to the interests of the latter. (emphasis added by the author) 16 See paras 50, 51 and 52 of the Indus Commission Report at pp. 32–33.

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(4) In the general interests of the entire community inhabiting dry, arid territories, priority may usually have to be given to an earlier irrigation project over a later one; ‘priority of appropriation gives superiority of right’. (Wyoming v. Colorado 259 US 419, 470.) (5) For purposes of priority, the date of a project is not the date when survey is first commenced, but the date when the project reaches the finality and there is ‘a fixed and definite purpose to take it up and carry it through’. (Wyoming v. Colorado 259 US 419, 495; Connecticut v. Massachusetts, 282 US 660, 667, 673.) (6) As between projects of different kinds for the use of water, a suitable order of precedence might be (i) use for domestic and sanitary purposes (ii) use for navigation, and (iii) use for power and irrigation. (Journal of the Society of Comparative Legislation, New Series, Vol. XVI, No. 35, pages 6, 7.) River Boards could have been set up by Parliament, adopting the legal principles which found favour with the Rau Commission—which in turn had relied on cases decided by the US Supreme Court. The United States Supreme Court had applied inter-State common law to make an equitable apportionment of the benefits resulting from inter-State waters. The criteria for an equitable apportionment are elusive. Each State is said to stand on an equal level (Kansas v. Colorado).17 This means that no State can impose its policies on another,18 and that there must be an equitable division of benefits.19 This does not mean, however, that there must be an equal division of inter-State waters between the States through which they flow (Connecticut v. Massachusetts).20 The philosophical and policy underpinnings of the principles of equitable apportionment had been re-stated by Justice Oliver Wendell Holmes in 1931 in the case of New Jersey v. New York, decided by the US Supreme Court.21 In that case, New Jersey, the lower riparian, sought to enjoin New York from diverting the waters of the Delaware River, its tributaries or headwaters, to increase the water supply of New York City. In discussing the rule of law to be applied, Justice Holmes stated as follows:

17

206 US 46 (1907) at pp. 97–98. Ibid. 19 Ibid., pp. 117–18. 20 282 US 660, 670 (1931); Wyoming v. Colorado, 259 US 419, 465 (1922). 21 283 US 336 (1931). 18

Inter-State Water Disputes 47 A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And on the other hand equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both States have real and substantial interests in the River that must be reconciled as best they may. The different traditions and practices in different parts of the country may lead to varying results but the effort always is to secure an equitable apportionment without quibbling over formulas. (emphasis added by the author)22

The principle of ‘equitable apportionment’—‘without quibbling over formulas’—could well have been incorporated as the guiding factor for distribution and allocation of waters of every major inter-State river in the country, but in the year 1956 when Parliament enacted the River Boards Act, it made provision for the setting up of virtually powerless River Boards: this was despite the fact that one single party (the Congress Party) had dominated the Indian political scene both in the Centre and in the States for more than 25 years after the promulgation of the Constitution of India in 1950. This was plainly a case of missed opportunities in the formulation and development of Indian Water Rights Law. After 1990, with patchwork coalition governments at the Centre and governments in the States having political combinations different from that of the Centre, it has become more and more difficult to conceive an effective River Boards Act being enacted by Parliament. In fact, since the year 1956, Entry 56 (of List I of the Seventh Schedule) has been virtually reduced to a dead letter.

There is No Escape from an ‘Adjudication’ of Inter-State Water Disputes in respect of the Country’s Major Rivers In the absence of the will of a fractured Parliament to amend the River Boards Act, 1956, or enact a fresh law under Entry 56 of List I of the Seventh Schedule of the Constitution to truly make regulation and development of an inter-State river a matter of national concern, there is no escape from the 22

Ibid., at pp. 342–43.

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present situation of a long-drawn ‘adjudication’ of inter-State river water disputes. The question is only how best such an adjudication can be achieved. The principle of ‘equitable apportionment’ has been recently reiterated by the Supreme Court of India in a Presidential Reference (1991)23—it was occasioned by the State of Karnataka enacting a law purportedly under Entry 17 List II24 to enable the State in effect to override an interim order passed by the Cauvery Water Dispute Tribunal, and reserving to the State of Karnataka (the upper riparian State) to decide the quantity of water to be appropriated by it even during the pendency of an adjudication of the water dispute before the Tribunal! The validity of this law was questioned by the State of Tamil Nadu—this occasioned the Presidential Reference in India’s Supreme Court. In a unanimous judgement of a Five-Judge Bench of the Supreme Court, the State Legislation was struck down as beyond the legislative competence of the State—the Court said that legislation on flowing waters’ in an inter-State river like the Cauvery was not an exclusive State subject. In so saying, the Supreme Court quoted extensively from the leading American Case Kansas v. Colorado (1907) (known as the ‘Grandfather River Case’). The Supreme Court of India said that in the absence of an agreement between the States as to how the waters of an inter-State river are to be shared, the only legitimate method was by ‘adjudication’ under the ISWD Act. Our Supreme Court reiterated ‘the true legal position’ (that had been already expounded so succinctly by the Rau Commission way back in the year 1942) in the following words: 71. It will be pertinent at this stage also to note the true legal position about the inter-State river water and the rights of the riparian States to the same. In State of Kansas v. State of Colorado ((1907) 206 U.S. 46) the Supreme Court of the United States has in this connection observed as follows: One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each State stands on the same level with all the rest.

23 24

1993 (Supp. 1) SCC 96. Entry 17 of List II of the Seventh Schedule of the Constitution reads: 17. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List-I. Note: All matters falling in List-II of the Seventh Schedule are within the exclusive competence of the State Legislature. Inter Article 246(3) of the Constitution, which reads as follows: (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List-II in the Seventh Schedule (in this Constitution referred to as the “State List”).

Inter-State Water Disputes 49 It can impose its own legislation on no one of the others, and is bound to yield its own views to none … the action of one State reaches, through the agency of natural laws, into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes a matter of justiciable dispute between them and this Court is called upon to settle that dispute in such a way as will recognise the equal rights of both and at the same time establish justice between them. The dispute is of a justiciable nature to be adjudicated by the Tribunal and is not a matter for legislative jurisdiction of one State …. The right to flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it, as it passes through his land, and so long as it is not wholly obstructed or divered, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious to a proprietor lower down ….25

Since there are now established legal principles governing the apportionment of waters of an inter-State river, the decision of a court or a tribunal adjudicating the rights of the people in one State vis-à-vis the people in another State must follow ‘a strict and complete legalism’, in the words of Sir Owen Dixon, when he assumed office as Chief Justice of Australia on 21 April 1952. He stated how federal conflicts (between States) must be decided: Federalism means a demarcation of powers and this casts upon the (High) Court a responsibility of deciding whether legislation is within the boundaries of allotted powers …. It is not sufficiently recognized that the Court’s sole function is to interpret … and that it has nothing whatever to do with the merits or demerits of the measure. Such a function has led us all I think to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts. It may[be] that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism. (emphasis added by the author)26

India is a federal or at least a quasi-federal State (State of Karnataka v. UOI).27 Accordingly, it is legitimate to expect that there must be close adherence to legal reasoning in all inter-State disputes, including inter-State river water disputes, but a ‘strict and complete legalism’ is best left to the 25

Re: Cauvery Water Disputes Tribunal 1993 (Suppl. 1) 96 at pages 138–39. 85 Commonwealth Law Reports (1952) xi at page xiii to xv. 27 UOI 1977 (4) SCC 608 at page 648. 26

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country’s highest court. This is one reason why I am of the view that the function of adjudication of inter-State water disputes must only be by the Supreme Court of India under Article 13128 of the Constitution without the constraints of Article 262 (read with the 1956 Act).

Article 131 of the Constitution (Original Jurisdiction of the Supreme Court) Must Be Permitted to be Invoked for All Inter-State Water Disputes Under Article 131 of the Constitution as enacted (and as it now stands), the Supreme Court of India has original jurisdiction (to the exclusion of any other court) in any dispute (that is a dispute involving any question whether of law or fact on which the existence or extent of a legal right depends) between (a) the Government of India and one or more States, or (b) between the Government of India and any State or States on the one side and one or more States on the other, or (c) (what is of relevance here) ‘between two or more States’. The reason why water disputes are presently excluded from the ambit of Article 131 is because of the opening words of that Article (‘subject to the provisions of this Constitution’), which point to Article 262 (‘Adjudication of Disputes Relating to Waters of Inter-State Rivers or River Valleys’). The latter Article states that Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control 28 Article 131: Original jurisdiction of the Supreme Court. Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute:

(a) Between the Government of India and one or more States; or (b) Between the Government of India and any State or States on one side and one or more other States on the other; or (c) Between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: (Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.)

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of the waters of, or in, any inter-State river or river valley, and then goes on to State—in Article 262(2): 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 (1).

Such a law has been made (the ISWD Act), and that law expressly provides (in Section 11) that: 11. Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act.

Hence, ‘water disputes’ do not at present fall within the ambit of Article 131.29 I submit that the experience of the working (often, ‘non-working’) of a succession of water disputes tribunals makes it imperative for the ISWD Act to be repealed, and just as all other disputes between States are left to be decided only by Original Suit filed in India’s Supreme Court (Article 131), so also inter-State water disputes should be left to be decided directly by the country’s highest court. Recording of evidence and of findings on fact and law may well be delegated to a senior retired Judge of the Supreme Court, aided and assisted by assessors—but the ‘investigation’ into the water dispute by such a retired Supreme Court Judge ought not to be fettered by legal arguments and stratagems of lawyers representing the States. Of course, lawyers may represent the States before the Special Judge (or Master), but their contribution should be limited to strictly legal questions, which may arise at the end but not at the beginning: the doctrine of ‘equitable apportionment’ is a doctrine of equity—it entails a host of factors to be taken into account.30 29 But implementation or non-implementation of an adjudicated water dispute could be made the subject matter of an Original Suit in the Supreme Court under Article 131—State of Karnataka v. State of Andhra Pradesh 2000 (9) SCC 572. 30 Equitable share of a State is to be determined in the light of all the relevant factors in each particular case, which should include (but not be limited to) the following: (a) Geography, Population, Hydrology and Climate; (b) past or existing utilisations and agreements; (c) proposed or planned utilisations; (d ) socio-economic needs or each basin State; (e) alternate resources, conservation, avoidance or unnecessary wastage; and ( f ) degree to which the needs of a riparian State may be satisfied without causing substantial injury to a co-riparian state. The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors, and in determining what is a reasonable and equitable share, all factors are to be considered together and an informed conclusion reached on the basis of the whole.

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The data and its interpretation are matters to be left to experts and engineers, but the application of the equitable doctrine is always the subject of legal argument—and legal decision. The technicalities of the actual allocation of the waters of a river are better left to the province of a scientist, an engineer and an economist who possess the necessary specialised knowledge, which a lawyer lacks: a lawyer is useful in the formulation of principles and their application to the case at hand. My own experience in the Cauvery Water Disputes Tribunal has been that if the Chief Engineers of Karnataka, Kerala and Tamil Nadu had been assembled to sit across the table with the Chairman (and members) of the Tribunal, it would have been possible to narrow differences, and save a great deal of time. The decision as to how the differences were to be narrowed (of course) would have had to be left to the good sense of the Tribunal, and not to the engineers. The engineers had to be put at ease so that they did not have to keep looking over their shoulders (to their masters, the State) when explaining technical aspects; lawyers of the party States had to be kept on hold to be heard at the end on legal points that arose but not on how wastages can be reduced or on much or how little water was actually required by each State, nor on how the cropping patterns in one State or the other should be altered having regard to the advances in modern technology, etc. The advantage of relegating all disputes including water disputes to the mechanism of Article 131 would enable a non-elected but supreme nonpolitical body (India’s apex court) to decide in a fair and non-partisan manner all contentious water disputes between States, just as it is entrusted with the task of deciding all other disputes between States including land boundary disputes, etc.; if for no other reason than that a decision of the highest court of India is constitutionally final.

The Place of Lawyers in Inter-State Water Disputes Much as I accept the view that ‘legal reasoning’ is the sure guide in inter-State conflicts—including differences about allocation of the waters of an interState River—and much as I am conscious of the fact that trained lawyers are able to help courts and tribunals come to a just conclusion on such conflicts, there is one caveat: in the adjudication of inter-State water disputes, the role of the lawyer—though crucial—is a role at the periphery of an adjudication rather than in the thick of it.

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My conception of the role of lawyers being at the periphery of an adjudication rather than in the thick of it is prompted by my recent experience in the case concerning the Baglihar Hydro-Electric Dam, a run-of-the-river plant on the Chenab, a tributary of the Indus River. ‘Differences’ arose between India and Pakistan regarding the design of the Baglihar Plant, the quantum of pondage and the positioning of intakes of turbines for the Plant, etc., and these differences were referred under the provision of the (Indo-Pak) Indus Water Treaty 1960 to a Neutral Expert appointed by the World Bank. The Neutral Expert was an engineer, not a lawyer or judge. In all, five weeklong meetings took place: the first and second meetings covered site visits, pleadings and questions posed by the Neutral Expert. In a crucial third meeting, each party State made its oral and video presentations (over days, not weeks!) at which questions were permitted to the representatives of the States and the answers recorded. In the fourth meeting the Neutral Expert presented a final draft determination for consideration of the parties and in the fifth meeting the party States offered comments on the final draft determination. The Neutral Expert, himself a world authority on dams, made his own assessment and then gave his final determination on 5 February 2007. Lawyers representing both sides made brief legal submissions lasting not more than a couple of hours—first at the beginning and then at the end of each week-long meeting. The engineers and experts were the main spokesmen and the principal dramatis personae: they were always at centrestage. Other important aspects were that complete records of meetings were made in the form of both written transcripts and video recordings. Procedural decisions were then recorded in minutes invariably with the consent of parties and representatives of the party States were asked to sign the agreed minutes. I suggest that this refreshing way of proceeding—initiated by the Swiss Neutral Expert in the Pakistan–India dispute—should be emulated by tribunals constituted under the ISWD Act.

Conclusions Finally, I have some suggestions to offer for the long term and the short term. 1. In the long term, I would suggest, whilst not disturbing the provisions of Article 262, which are only enabling, the ISWD Act should be repealed by Parliament—at least as an experimental measure.

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As a consequence, all disputes between States—including water disputes—would have to be adjudicated only by the Supreme Court of India under the provisions of Article 131 of the Constitution. Under its rule-making power under Article 145 of the Constitution, the Supreme Court could then make rules for the better adjudication of such water disputes, on the American pattern.31 A senior retired Justice of the Supreme Court or a senior Chief Justice of a High Court having experience of pushing cases to speedy and successful conclusions should be appointed Special Master or a Special Judge: the choice of the right person is extremely important: it helps to achieve the end result without much delay. The Special Judge or Special Master, after taking on board all the documents filed by the party States and after ascertaining from the technical experts and engineers the salient features, must then call in the lawyers for a week to discuss the legal questions that arise: the attempt to arrive at the resolution of the dispute or even a decision on the matters at issue must not resemble a proceeding in a court of law—an adversarial proceeding—but an investigative proceeding. A useful precedent was that devised by the Bachawat Tribunal (the Krishna Water Disputes Tribunal: KWDT: I), when its members directly discussed the technical aspects involved with the engineers of the respective parties without at first seeking any assistance from the legal representatives of the party States. 2. In the short term (or, alternatively, if the Inter-State Water Dispute Act, 1956, is to remain where it is and as it is with prescribed time limits as mentioned in the 2002 amendment), I would recommend the following: 31

See American Jurisprudence, Volume 32A (1982) para 572, wherein it is stated: [I]f an original case raises factual questions which require an evidentiary hearing for their resolution, the Supreme Court may refer it to a Special Master. Such a reference is not required, however, if no issues of fact are raised, no evidence need be taken, and the parties desire an expedited ruling on a question of law. It should also be noted that while the Supreme Court may call on the aid of a master to hold evidentiary hearings, this may not fully relieve the Court of the burdens presented by a complex case, since the Court still retains the ultimate responsibility to approve or reject the master’s findings and fashion appropriate relief. Accordingly, if a District Court also has jurisdiction over a matter, the Supreme Court may refer it to a district judge, who may be in a better position to fashion a decree which can then be reviewed by the Supreme Court in the exercise of its appellate jurisdiction. A typical order of reference (to the Special Master) may provide that the

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i. The Tribunal must sit at the same level as all other persons appearing before it, including counsel and engineers: the raised rostrum for the Water Disputes Tribunal gives the impression to one and all (including particularly its Members) of an adversarial court proceeding, which is psychologically inappropriate: the mindset of the Tribunal—members, lawyers, engineers and participants—must be so conditioned as to gather all necessary information with as little formality as possible, so that the Tribunal reaches an informed decision on the points required to be decided. ii. The Chairman of the Tribunal along with the Members, must, on an almost continuous basis, caucus32 with the engineers and the technical experts on each side—preferably keeping lawyers in the background so that the Tribunal acquaints itself with all the finer technical points at issue in the case. Of course, this would be after presentations are made by the technical experts on each side. iii. Adversarial form of recording of evidence (as in a Court of Law) must be avoided—namely, the rigmarole of examination-in-chief (or its poor substitute, an affidavit in support) of every witness, the cross-examination of that witness and his (her) re-examination, as in a proceeding in a Court of law—this is not the recommended mode of proceeding under the 1956 Act.33 There should be a

special master has authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, with authority to summon witnesses, issue subpoenas, take evidence, and submit such reports as he may deem appropriate. Motions to intervene may also be referred to a master. The master then takes evidence and files a report. The master may also refer questions of law to the court and propose conclusions of law. Exceptions may then be filed to the master’s report and such exceptions are then considered by the court. The court may then enter a decree, or direct the parties to prepare and file decree. If the parties cannot agree on a decree, the matter may be referred back to the master for appropriate proceedings and further recommendations. 32 ‘Caucusing’ is a term used in arbitration, where the arbitrator initially acts as a mediator or conciliator. He (or she) ‘caucuses’ with the parties—individually and (or collectively). 33 Cross-examination of witnesses before the Cauvery Water Disputes Tribunal—a crossexamination permitted without any intervention by the Tribunal—was exhausting. Witnesses on each side were cross-examined by Counsels representing party States. Since the Cauvery Water Disputes Tribunal did not sit on an average for more than seven days a month, the crossexamination of witnesses dragged on and on for four long years! Much of the oral evidence turned out to be not very useful; the documentary evidence was of paramount importance.

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presentation by the experts on each side with the right to any person or party to question that expert on any given point, with the Tribunal retaining a close control over the questioning and the range of permissible questions (see the previous section of this chapter). iv. After the presentations are made the lawyers could usefully sum up and give an analysis of the documentation on record and point to relevant conclusions. v. This change in the modus operandi of the functioning of interState water disputes tribunals can only be achieved by a change in the mindset of members of the Tribunal, who must not sit like umpires in a cricket match; rather they should emulate the referee in a football match: running with the ‘players’, all along participating, in ‘the game’ though in a supervisory capacity! The Act envisages an ‘investigation’ by the Tribunal, not an adversarial proceeding like an adjudication in a Court of law yet successive tribunals have conducted proceedings under the 1956 Act invariably sitting on a raised dais as if they were deciding a case in a Court of Law. The manner in which the Bachawat Tribunal (1969–78)34 conducted its proceedings (in the First Krishna Water Disputes Tribunal—KWDT-I) was most exemplary and worthy of emulation. Having appointed no assessors to assist it, the members of this Tribunal (all judges), sat across the table with experts and engineers, understanding the technical points and discussing with them the problems and the difficulties, making their own notes as they went along. Then when they came to certain tentative conclusions on certain points they called upon advocates for the States to agree on relevant factual matters, and made a note for the record that parties had agreed to such and such: this considerably shortened the need for an ‘adjudication’, except on the most material points.35

34 Justice R.S. Bachawat was a Judge of the Supreme Court of India and Chairman of the Krishna Water Disputes Tribunal (KWDT-I): I recall that in Court, he encouraged Counsel to be brief and to present arguments ‘in capsule form’ (as he always used to put it). 35 I am indebted to Senior Advocate Mr Sharad S. Javali who had appeared as Counsel before the Bachawat Tribunal for this useful piece of information.

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A Last Word One last word. Whilst discounting the predominance of the role of lawyers in inter-State water dispute adjudication, I must, however, emphasise the paramount importance of legal training: it is of great use in whatever activity that a lawyer or a judge is propelled into. He or she (being so trained) is able to differentiate between and to separate the ‘wheat’ from the ‘chaff’: a facility not readily found in individuals, howsoever intelligent, who have no legal training. In inter-State water disputes the views of experts (scientists, qualified technical persons, economists) have to be listened to and heard: but what they propound does not necessarily have to be accepted. In the end, the accumulated wisdom of an experienced legal mind—wisdom gathered over the years—enables a ‘good’ tribunal to see through the presentation and form its own conclusions. As the world-famous nuclear physicist Niels Bohr (himself an ‘expert’) used to say, ‘An expert is a man who has made all the mistakes which can be made in a very narrow field!’

References Central Water Commission. 1995. Legal Instruments on Rivers in India (Agreements on InterState Rivers (Vol. 3). New Delhi: Central Water Commission (Inter-State Matters Directorate). Richards, Alan and Nivikar Singh. 1996. Water and Federalism: India’s Institutions Governing Inter-State River Waters. University of California, Santa Cruz: Department of Economics.

4

Nation vs Peoples: Inter-State Water Disputes in India’s Supreme Court Radha D’Souza

If there is no struggle there is no progress. Those who profess to favor freedom and yet depreciate agitation … want crops without plowing up the ground, they want rain without thunder and lightening. They want the ocean without the awful roar of its many waters…. Frederick Douglass, 1857, American slave and campaigner for Abolition.1

Introduction The arguments in this chapter are based on the assumption that the readers value democracy and put a high price on the gains of the freedom struggle. Since the Cauvery Urimai Sangam case in 1990 (Tamil Nadu Cauvery Neerppasana Vilaiprulgal Vivasayigal Nala Urimai Sangam v. Union of India),2 the Supreme Court of India has been drawn more and more into inter-State water conflicts and lured into murky constitutional waters. What began in 1990 as a plea to the Supreme Court for intervention by farmers in Tamil Nadu reached subcontinental proportions in 2002 when the Supreme Court passed an ex-parte ad-interim order directing all the States and the Union of India (the Union) to inter-link the rivers of the subcontinent within 10 years, a daunting task by any reckoning made more daunting given the track record 1

Speech at Canandaigua, New York, on the twenty-third anniversary of West India Emancipation. Available online at http://www.blackpast.org/?q=1857-frederick-douglass-if-there-nostruggle-there-no-progress (accessed on 20/01/09). 2 AIR 1990 SC 1316.

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of inter-State water conflicts before the Supreme Court for over a decade.3 The Supreme Court’s increased involvement in inter-State water conflicts has led to as much angst as the intractable inter-State water disputes themselves. Influential voices in the country argue that the cause of inter-State water disputes lies in the perceived ‘gap’ in the constitutional division of powers over water between the States and the Union and that the ‘gap’ needs to be bridged by giving the Supreme Court powers to adjudicate inter-State water disputes.4 Prescriptions for cures must be based on correct diagnoses. This chapter argues to the contrary that the diagnosis of the legal and constitutional ailments that forms the basis for the calls to give more legislative powers to the Union is flawed. The prescriptions run contrary to the democratic aspirations of the freedom struggle which formed the context for the Constituent Assembly when it drafted the provisions relating to water in the Constitution of India (the Constitution). This chapter analyses decisions of the Supreme Court in inter-State water disputes to show that the cases before the Supreme Court point to a constitutive tension between ‘we the people’ and the ‘sovereign socialist secular democratic republic’ of India.5 It is necessary to understand and reflect on that tension before quick and ready prescriptions are given out to resolve inter-State water conflicts. The first analyses the theoretical assumptions that underpin the Constitution and the schema of the Constitution in relation to federalism and water. The next section summarises major inter-State water disputes cases decided by the Supreme Court with a view to highlighting the growing tension between ‘we the people’ and the ‘sovereign socialist secular democratic republic’ of India. The third section argues that the real ‘gap’ lies in the structure of the Constitution, which conceives of federalism as a political mechanism with little economic devolution. The structure of federalism has been subverted by the executive for the first 50 years, and now with the erosion of the stature of the Union, the Supreme Court faces the task of managing the structural ‘gap’. The final section concludes with reflections on the future implications for both ‘we the people’ and the ‘sovereign socialist secular democratic republic’ of India if the ‘gap’ between political federalism and economic unitarism is not bridged through democratic politics and legal restraint.

3

D’Souza, ‘The “Third World” and Socio-Legal Studies’. For example, see Report of The National Commission to Review the Working of the Constitution, Ch. 8 paras 8.11.7 and 8.11.8. 5 The opening line of the Constitution of India begins with the words: ‘WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC …’. 4

60 Radha D’Souza

Assumptions and Schema of the Constitution Legal Liberalism At the risk of sounding trite, a few basic points need to be made. We are a liberal democracy and the Constitution and indeed the country’s legal system as a whole is premised on all the foundational assumptions that philosophical liberalism and legal liberalism make. One foundational assumption is the division of powers which is the theoretical and conceptual premise for liberal constitutionalism. The premise is that the state, which is an omnibus institution for all other institutions within the territorial boundaries, rests on three pillars: the legislature, the executive and the judiciary. In theory, the assumption is that if each of these pillars does what they are supposed to do, the nation will have checks and balances on arbitrary exercises of power by individuals or organisations. The state is a complex of laws and institutions, and the people populate a variety of institutions and form mutual relationships mediated by the law. A modern nation comprises the state, understood as a complex of laws and institutions, and the people that populate it. Legal liberalism accepts that there is invariably a constitutive tension between the subjects/people and the laws and institutions but believes that by policing the boundaries of the division of powers among the legislature, the executive and the parliament effectively, it is possible to reconcile the tension and create a stable nation. The process of reconciliation occurs through all three limbs of the state—the legislature, the executive and the judiciary—and is effectuated by the different types of roles and responsibilities they discharge. Thus, state and people are not to be conflated, nor is the constitutive tension between the state and people necessarily bad in a democratic polity, provided the three limbs of the state discharge their responsibilities within their respective domains. Thus management of the tension between people and state within their respective boundaries is at the heart of the roles and responsibilities of the three limbs of the state in liberal theory. Therefore, when ‘we the people’ constituted ourselves into a ‘sovereign socialist secular democratic republic’, we did so on the assumption that the Constitution would provide the framework: legal, theoretical as well as philosophical, and the conceptual and institutional tools to manage the relationship between the republic and the people of India; and the three limbs of the state would enforce it within their remits permissible under liberal theory.

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What happens if one of the three pillars collapses? Or, what happens if the legislative system and the executive pull in different directions creating a stalemate? Can the third limb, the judiciary, be immune to the imbalance in the architecture of law and its institutional underpinnings? If the executive were to step in to replace the other limbs, we would call the republic a dictatorship, but can the judiciary step in to fill the gaps if the executive limb becomes dysfunctional? Or, what happens if 60 years down the constitutional road, it becomes evident that the terms of the relationships between ‘we the people’ and the ‘sovereign socialist secular democratic republic’ need to be renegotiated? What happens if either ‘we the people’ subsumes ‘the republic’ or the ‘republic’ subsumes ‘we the people’ in its entirety? The former will be a revolution and the latter a dictatorship. A dysfunction in the functioning of all the three limbs threatens to cast the Constitution adrift into the stormy waters of uncertainty. ‘We the people’ and the ‘sovereign socialist secular democratic republic’ of India stand at a historical crossroads today, and the juncture provides a moment for reflection on the road that we have travelled for 60 years. It is not possible to speak of the problem of inter-State water conflicts in any real sense without acknowledging the wider dysfunction in the workings of the liberal assumptions made by the Constitution.

Three Historic Moments Modern India as we know it today was formed through three historic legal moments. The first was the Government of India Act of 1935 which provided the skeletal framework for the nation limited to the British Indian territories. The second was in 1950 when the Constitution drafted by the Constituent Assembly was adopted and we became a sovereign secular democratic republic (‘socialism’ came 25 years later). The third important moment was in 1956 with the States Reorganisation Act 1956 when the principle of linguistic re-organisation was recognised as integral to democratic federalism and the internal boundaries of States were redrawn. While the Independence Act, 1947 was externally oriented towards Britain and the international community of nations, the States Reorganisation Act 1956 was internally oriented, but both are equally important in the architecture of the republic and the institutions of the state. The Constituent Assembly was not a homogeneous body, nor did it speak with one voice on all matters, and by its very nature it could not do so. Nonetheless, the Constituent Assembly was informed by two guiding visions: the first was the unification of India, through negotiating with the

62 Radha D’Souza

Princely States leading to their accession to the Union and the second was institutionalising the national unity that the freedom struggle had forged. The freedom struggle was a moment in the history of the subcontinent, a moment when a wide array of classes, castes, nationalities, religions and linguistic groups came together to overthrow colonial subjugation. Each group came to the forefront of the freedom struggle with hopes and aspirations for their group. Thus the powerful peasant movements without which the national alliance for freedom could never have succeeded aspired for land reforms, the linguistic groups and the Princely States aspired for a federal structure that would reflect their cultural and social aspirations, the religious groups aspired for a secular non-theocratic India, the working-class movements aspired for rights to fair wages and living conditions, the national industrialists aspired for industrialisation. The Constitution was a compromise document and the Constituent Assembly debates testify to a lot of give and take that took place among the various social forces to forge a modern republic. The Constitutional schema and the arrangements for water that we see today are products of that moment. In the division of subjects, the Constitution gives the overall authority to legislate over water to the States. This became necessary because without jurisdiction over water many of the larger Princely States were reluctant to join the Union as agriculture was the mainstay of the economy of most States, nor were the peasants and agriculturalists ready to relinquish regulatory powers over water to a distant federal government after independence, when they had already gained those rights during British Rule under the reforms of 1935. The peasants’ and agriculturists’ aspiration was to improve their position through land reforms and agricultural development after independence, not relinquish what they had gained under the British. The modern industrialist lobby, which had expanded their capacities significantly during the world wars, were keen on the expansion of industrialisation and the development of natural resources including oilfields, mines and minerals, and water for power generation. Given this tension, the Constituent Assembly decided that States would have primary jurisdiction over the agrarian sector, comprising a cluster of inter-related subjects related to agriculture, namely, agriculture, livestock, cattle, water, land and fisheries.6 However, the Union could, if it gets a democratic mandate through an Act of Parliament to do so, acquire

6 Article 246(3) r/w Entries 14, 15, 16, 17, 18 and 21 of List II in the Seventh Schedule of the Constitution of India.

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through legislation the jurisdiction to develop inter-State rivers as well as a State’s natural resources such as mines, minerals, petroleum.7 Thus even industrial development required an Act of Parliament giving a mandate to the Union for industrialisation. Inter-State disputes over water are of two types. One type of dispute relates to the rights of States and the scope of their rights within the Union. With the exception of reopening the terms of unification, the States may apply to the Supreme Court to resolve questions of rights flowing from the Constitution.8 Inter-State rivers, on the other hand, do not involve questions of rights flowing from the Constitution itself. Legal theory on federalism views States within a federation or Union as ‘quasi-sovereign’ entities in that the States possess autonomy except to the extent limited by the terms of the Union as codified in the Constitution. It is for this reason that international law on riparian rights and transboundary rivers usually apply to States within a federation. Following legal theory on federalism, inter-State water disputes tribunals in India routinely invoke international riparian law principles and international transboundary water laws to decide allocation and development issues. The Constitution treats inter-State water disputes on a different footing and provides that in the case of inter-State water conflicts, the Union may through an Act of Parliament provide for adjudication of the dispute and bar the jurisdiction of the Supreme Court in inter-State water disputes, precisely because disputes between States cannot be equated to ordinary property disputes between citizens.9 The Parliament barred the jurisdiction of the Supreme Court in 1956 when it enacted the Inter-State Water Disputes Act 1956 (ISWD Act). The ISWD Act defines a water dispute as: 2. Definition. In this Act, unless the context otherwise requires, (a) … (b) … (c) ‘water dispute’ means any dispute or difference between two or more State Governments with respect to— (i)

the use, distribution or control of the waters of, or in, any inter-State river or river valley; or

7 Article 246(1) r/w Entries 52, 53, 54, 56 of List I in the Seventh Schedule of the Constitution of India. 8 Article 131 of the Constitution of India. 9 Article 262 of the Constitution of India.

64 Radha D’Souza

(ii) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or (iii) ….10 The ISWD Act provides a broad and inclusive definition of an inter-State water dispute and ousts the jurisdiction of the Supreme Court if the dispute involves a water dispute within the meaning of the statute. The reasons for the Act take us to the third moment of freedom in 1956, namely the linguistic re-organisation of States, a moment when the federal structure of the state was completed.

States’ Re-organisation and Inter-State Rivers The States Reorganisation Commission (SRC) was entrusted with the task of giving effect to one of the terms on which the unity of social forces against colonial rule was forged: the promise of linguistic re-organisation of the States. Linguistic re-organisation was seen as a cornerstone of democratic federalism. Nonetheless, the SRC was confronted with economic interests of the States and the division of inter-State river valley projects between them and the allocation of waters of inter-State rivers occupied the attention of the SRC to a significant extent. The SRC categorically reaffirmed the principle of the right of States to regulate water resources within their jurisdictions, subject to agreements by and between States past or future.11 Together with the States Reorganisation Act 1956, the Union introduced the River Boards Act 1956 and the ISWD Act. The River Boards Act provides for States to propose, develop and manage inter-State rivers. Thus the River Boards Act 1956 provides for proactive initiatives of basin-States to develop inter-State rivers and the ISWD provides for dispute resolution. The two statutes together with States Reorganisation Act 1956 form part of an inter-related schema to recognise the cultural diversity of the subcontinent and the need for economic development. That the three Acts were the products of the same historical moment is not accidental.

10

Section 2 Inter-State Water Disputes Act 1956. D’Souza, Interstate Conflicts over Krishna Waters: Ch. 14; Government of India, Commission on Centre–State Relations. 11

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Since the SRC, a number of special commissions have been appointed by the Union to inquire into the relations between the Union and the States. The Commission on Centre–State Relations reporting in 1988 (Sarkaria Commission) considered the wisdom of reordering jurisdiction over water and rejected the idea of water becoming a federal subject. The National Commission on Integrated Water Resources Development Plan set up specifically to inquire into integrated water resources development in the nation, when reporting in 1999 categorically argued against the alteration of jurisdiction over water. It is significant that although much water has flown under the portals of the Supreme Court over inter-State rivers, in none of the judgements of the Supreme Court the rationale for constitutional schema for water issues, the debates of the Constituent Assembly on water resources, the foundational assumptions of legal liberalism, the reports of special commissions of inquiry relevant to water, the schema and rationale for the three 1956 statutes, principles of international law and decisions by international courts on transboundary waters, and the overall structure and inner logic of the Constitution have been discussed, not even in the two presidential references. Instead, the Supreme Court observed: In a semi-federal system of government, which has been adopted under the Indian Constitution, all the essential powers, both legislative and executive have been conferred upon the Central Government.... If the component parts of a State have no power of policy decision in any field, but are confined to carrying out Central Government directives through the medium of an institutional fabric of federal form, it is not a federal but a unitary state (emphasis added). (First SYL Canal case: State of Haryana v. State of Punjab )12

The observations dismiss the federal structure and reduce States to satraps of the Union at a time when democratic politics, since the mid-1960s at least, has returned regional and State parties to power repeatedly to a point that today it is difficult to conceive of a Union Government without coalitions. Regardless of whether the Supreme Court’s observations are intentional or due to a lack of legal professionalism, they portend a difficult future for the nation, as the next section on the Supreme Court’s decisions on inter-State rivers shows.

12

AIR 2002 SC 685 para 11, page 697.

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Inter-State Water Disputes in the Supreme Court The Cauvery Cases There is a cluster of four decisions of the Supreme Court on the Cauvery water disputes between Tamil Nadu and Karnataka.13 The brief background to the dispute before the Supreme Court is as follows. In 1970 the State of Tamil Nadu applied to the Union Government for constituting a special Tribunal under the ISWD Act for deciding the inter-State disputes between itself and Karnataka over Cauvery waters. In 1971 Tamil Nadu as well as organisations of agriculturalists filed civil suits in the Supreme Court over the alleged infringement of their rights to Cauvery waters by Karnataka. In 1975 the agriculturalists withdrew their suits because the Emergency declared in that year suspended Fundamental Rights on which the agriculturalists based their claims. Tamil Nadu also withdrew the suit in anticipation of a political settlement. After Emergency was lifted, the agriculturalists of Tamil Nadu filed another petition for breach of fundamental rights.14 Tamil Nadu supported her agriculturalists. Karnataka argued that the Tamil Nadu agriculturalists could not petition the Supreme Court for relief in matters involving inter-State water disputes, and that only a Tribunal constituted under the ISWD Act could determine disputes about distribution and use of Cauvery waters. The Supreme Court rejected Karnataka’s plea and held: In view of the fact that the State of Tamil Nadu has now supported the petitioner entirely and without any reservation and the court has kept the matter before it for about 7 years, now to throw out the petition at this stage by accepting the objection raised on behalf of the State of Karnataka that a petition of a society like the petitioner of the relief indicated is not maintainable would be ignoring the actual state of affairs, would be too technical an approach and in our view would be wholly unfair and unjust. Accordingly, we treat this petition as one in which the State of Tamil Nadu is indeed the petitioner though we have not made a formal order of transposition in the absence of a specific request (emphasis added). (Cauvery Urimai Sangam case)15

13 Most cases involve numerous interim orders and directions. For the purposes of this chapter only the main judgements that determined substantive issues between the States are considered. 14 Under Article 32 of the Constitution of India; Cauvery Urimai Sangam case. 15 p. 1318, para 6.

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In the Cauvery Urimai Sangam case, the Supreme Court conflated ‘the people’, the agriculturalists, and an arm of the republic, Tamil Nadu, and the totally different character of their rights and claims under the Constitution without making a legally reasoned order for the conflation. Under the ISWD Act, the Union executive is required to form an opinion that the water disputes cannot be settled by negotiations before setting up a Tribunal to adjudicate the dispute. The Union executive had held 26 meetings over a 4 to 5-year period to resolve the Cauvery water disputes between the States without success. Reluctant to keep the petition of the agricultural organisation on its roll indefinitely, the Supreme Court gave the Union extra time to make a decision as required under the Act. The Union did not decide Tamil Nadu’s application to set up a Tribunal. Instead the Union reported to the Supreme Court that it did not want to undertake any further negotiations and at the same time did not want to make a decision on constituting a Tribunal under the IWSD Act. Instead the Union ‘left the matter for disposal by the Court’ (Cauvery Urimai Sangam case).16 Thus the Union clearly abdicated its statutory duties even after implicitly forming the opinion that the dispute cannot be settled by negotiations. Given this state of affairs, the Supreme Court could have, following long-established principles of administrative law on exercise of discretion and rules for issuing mandamus, directed the Union to make a decision either way on Tamil Nadu’s application to set up a Tribunal under the ISWD Act within a specified time, and made it clear that under the ISWD Act as well as the established principles of separation of powers, it was not for the Supreme Court to form an opinion on whether or not the Tribunal should be set up. The Supreme Court instead decided for the Union and directed the Union to constitute a tribunal under the Act within one month. The decision absolved the Union of its executive responsibility to govern according to the Constitution and the laws. The Supreme Court’s failure to discipline the Union became the first step in a trajectory of interventions that embroiled the Supreme Court in more and more intractable issues. Once the Supreme Court indicated its willingness to skirt around the Lakshman Rekha17 of Article 262, it gave States an opportunity to test their water disputes in another forum and they seized the opportunity. The Union constituted the Cauvery Waters Disputes Tribunal (CWDT) under the ISWD Act and Tamil Nadu applied for interim relief for releases of water. The CWDT held that the terms of reference did not specify that it had powers to grant interim relief, and therefore it could not hear an application 16 17

p. 1320, para 15. The line (not to be crossed) drawn on the ground by Lakshmana in The Ramayana.

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for interim relief without amendment to the terms of reference by the Union. Again, all that was needed was a clarification or an additional clause in the terms of reference by the Union. Having persuaded the Court once, Tamil Nadu returned to the Supreme Court, impugning the interim orders of the Tribunal (TN v. Karnataka case).18 One transgression leads to another. The Supreme Court once again, instead of asking the Union to clarify the scope of the reference, held that the CWDT was ‘clearly wrong in holding that the Central Government had not made any reference for granting interim relief’ (TN v. Karnataka case).19 By doing so, the Supreme Court exercised powers of judicial review over the CWDT, contrary to the explicit provisions of Article 262 r/w ISWD Act ousting its jurisdiction. The CWDT was a constitutional authority outside the usual hierarchy of courts and authorities, over whom the Supreme Court had no supervisory powers through judicial review. The Supreme Court does have powers to test the legality of the action/inaction of the Union, but once again it failed to hold the Union accountable for its constitutional and statutory responsibilities. After the decision of the Supreme Court in the TN v. Karnataka case the CWDT decided to obey the Supreme Court directives and did not insist that it was bound by the terms of reference and could only act differently if the Union amended the terms of reference. The CWDT decided the interim relief application and directed Karnataka to release Cauvery waters to Tamil Nadu pending final allocation. In response, Karnataka took the unusual step of passing an emergency ordinance nullifying the interim award of the CWDT by invoking its jurisdiction over waters under the constitutional division of powers. The Governor of Karnataka, the constitutional head of the State signed the ordinance when he did have the power to return it for reconsideration. Given this stalemate the President of India invoked Article 143 which gives the President the power to seek the opinion of the Supreme Court on any legal or factual question. The President sought the opinion of the Supreme Court on Karnataka’s Ordinance nullifying the CWDT’s decision (CWDT Reference: Re : Cauvery Water Disputes Tribunal).20 On a vital issue that touched the very foundations of the Union, the Union abdicated responsibility once again by taking cover under the façade of neutrality in the dispute between the States forgetting that it was primarily responsible for putting in place administrative mechanisms for the proper

18

SCR (2) 1991 502. TN v. Karnataka case pp. 515–16. 20 AIR 1992 SC p. 522. 19

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workings of the ISWD Act (CWDT Reference). How the Union can remain neutral in a dispute between two States that touches the foundations of the Nation is a moot question. A special Presidential reference is a proceeding initiated by the President seeking the Supreme Court’s legal opinion on a matter of national importance. The procedures that apply to ordinary cases do not apply to a Presidential reference. The Supreme Court can and ought to hear a wide range of views from the Bar, legal scholars, States not involved in the disputes and other interveners before responding to a request for advice by the President. The Supreme Court treated the Presidential reference as it would any ordinary case, did not call for wider submissions and gave legal opinion to the nation via the President based only on the parties to the dispute before it. Consequently the legal opinion was not distanced from the dispute; indeed, it was overshadowed by the actual disputes. The Supreme Court held that Karnataka’s ordinance was unconstitutional, that the order of the CWDT required to be notified, and declined to give an opinion on the wider question of law: whether a Tribunal constituted under the ISWD Act has power to grant interim relief. The Supreme Court considered this question to be theoretical (CWDT Reference). What the Supreme Court failed to recognise and address in the opinion was that: the Constitution did give States powers to legislate over water, and that Karnataka had only invoked those powers when it introduced the Ordinance nullifying the CWDT’s decision. The development of legal principles on the conflicting provisions in the Constitution in the form of a precedent, or through further constitutional amendments was therefore stalled. The CWDT Reference established the Supreme Court as the authority that policed the boundaries of tribunals under the ISWD Act. After that, it was only a matter of States pushing the boundaries of the constitutionalism. Riots broke out in Karnataka when the Union notified the interim award in the official gazette following the Supreme Court’s opinion in the Presidential reference. The Union’s decision was perceived to be ‘pro-Tamil’ and the riots took on a communal ‘anti-Tamils’ tone. Many lost homes, properties and suffered injuries in the riots. A public interest petition came to be filed before the Supreme Court on behalf of the riot victims, claiming compensation (Ranganathan case: Ranganathan and another v. Union of India and others).21 The Supreme Court was, perforce, required to decide the petition that was ramified by its opinion in the Presidential reference. In the

21

(1991) 6 SCC p. 26.

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Ranganathan case the Supreme Court set up an Authority named the Cauvery Riots Relief Authority (CARRA) and formulated a scheme to provide relief to riot victims which was to be administered by the Karnataka government under the supervision of the Supreme Court. Two more rounds of litigation followed before the Supreme Court, one in 1995 and the other in 2002. Each round was accompanied by popular protests in the States highlighting the fact that in a federal polity founded on the principles of democratic-federalism it is legitimate for the interests of States and people to converge on issues involving federal–State relations, and do often converge. Federalism is as much a principle of democracy as electoral politics and popular representation. The States refused to comply with the orders of the CWDT or the Supreme Court. Ultimately the rounds of arguments before the Supreme Court ended with the Supreme Court censuring Tamil Nadu and Karnataka, and both States tendering apologies to the Supreme Court. The Cauvery cases are important because first, they paved the way for the involvement of the Supreme Court in inter-State water disputes, and without a Constitutional mandate to do so the Supreme Court could not play an effective role. Secondly, the Supreme Court’s involvement drove a wedge between ‘we the people’ and the ‘sovereign socialist secular democratic republic’ of India. Thirdly, the Supreme Court’s decisions cast the States, responsible for defending the interests of their people in a democracy, as the villains who fought irresponsibly and required to be censured. Fourthly, the Supreme Court’s involvement failed to hold the Union accountable for executive irresponsibility, and lastly, the Supreme Court introduced a dysfunction into the workings of the Constitution. The Cauvery cases set the scene for the trajectory of inter-State water disputes in the country that followed.

The Narmada Cases The cluster of Narmada cases was brought to the Supreme Court on behalf of people affected by projects in the Narmada Valley. The Commissioner of Scheduled Castes & Tribes (SC & ST Commission), a Constitutional authority,22 wrote a letter to the Supreme Court expressing his concerns over the rights of large numbers of Scheduled Castes (SCs) and Scheduled Tribes (STs) following their displacement without adequate rehabilitation as a result of the construction of the Sardar Sarovar Dam (SSD). As a constitutional 22

Under Article 338 of the Constitution of India.

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authority responsible for the protection of the SCs and the STs, the SC & ST Commissioner’s letter raised questions about the relationship of the SC & ST Commission and the Union and States. The SC & ST Commission had from time to time made reports to the States and the Union expressing its concerns, but the Union and States ignored the SC & ST Commission. The Supreme Court treated the letter of the SC & ST Commissioner as a public interest petition as the letter raised ‘constitutional issues of importance’ (B.D. Sharma case: B.D. Sharma v. Union of India),23 but it did not decide the important legal question in the case about the Union’s accountability to the SC & ST Commission under the Constitution. Instead the Supreme Court observed that the Sardar Sarovar Project (SSP) was financed by the World Bank and other foreign countries and completion was behind schedule. It observed: While we agree that the rehabilitation should be done as far as possible in a methodical and meticulous way, to enforce terms and conditions stipulated by the agreement such as eighteen months’ notice before effecting evacuation in terms may be difficult and may not be beneficial for the ultimate purpose. (B.D. Sharma case, emphasis added by the author.)24

The administrative accountability for rehabilitation rested with the Secretary, Social Welfare, who had failed in his duties to begin with. The Supreme Court turned to the same Secretary, and exhorted him ‘to be activised so as to ensure rehabilitation’, and called for a report on rehabilitation after visiting the areas without even a formal censure for failing in their duties, but in the same breath observed: We make it clear it is not our intention to hold up the progress of the work. On the other hand we would like it to be completed expeditiously so that the time lag may not affect the construction of the project. (B.D. Sharma case)25

A foundational assumption of liberal theory is that individuals are bearers of rights and constitutional rights are not influenced by the scale of infringements. However, ‘We the people’ cannot be wished away, and they returned to the Supreme Court, petitioning it to reduce the height of the dam so that the effects of submergence on the population might be mitigated (NBA v. Union case: Narmada Bachao Andolan v. Union of India & Ors).26 23

1992 Supp (3) SCC p. 93 at p. 94 para 2. p. 94 para 6. 25 p. 95 para 8. 26 AIR 2000 SC 3751. 24

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In the NBA v. Union case, the Supreme Court permitted the Union and Gujarat to raise the height of the dam partially as interim measure. Once the dam height was raised, rights claimed by the people in the case became infructuous and the only thing left was compensatory claims. In the final judgement in the NBA v. Union case the Supreme Court considered two questions: (a) had the Union given a legally valid environmental clearance for the SSD project and (b) had the rehabilitation process been completed before the submergence? On the environmental clearance question, there were many factual and other loopholes in the environmental clearance, and the minutes of ministerial meetings pointed to ‘the absence and inadequacy of data on some important environmental aspects’ (NBA v. Union case).27 Justice Bharucha, in a dissenting judgement, held that the law as it stood at the time of the decision required that the Ministry of Environment and Forests and the Ministry of Water Resources carry out studies and surveys, and gather data on the basis of which they should determine the environmental impact of the dam. This was not done, and the Ministry of Environment and Forests left it to the Prime Minister to give clearance and therefore abdicated its duties. Following established principles of judicial review, Bharucha J. determined that the legal principle involved was simple: was there material on record on the basis of which the clearance could be granted? Admittedly, there was none. On the second question of rehabilitation, as Justice Bharucha observed in his dissenting judgement, if admittedly land had not been acquired to rehabilitate people and whatever rehabilitation had taken place did so only after the Supreme Court gave directions and supervised those directions, then it cannot be said that rehabilitation had been completed as required.28 The majority judgement took a contrary view. It observed: The court, no doubt, has a duty to see that in undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed upon except to the extent permissible under the Constitution (emphasis added). (NBA v. Union case)29

Is there a permissible extent of violation of fundamental rights in the Constitution other than national security? This strange doctrine does not sit well with the foundational principles of liberalism of the priority of Bill of Rights over all other civil and political rights, and the priority of Fundamental 27

p. 3767 para 8. p. 3769 paras 13, 14, 18, 23 and 24. 29 p. 3827 para 255. 28

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Rights in the Indian Constitution. The majority view of the Supreme Court appears to be concerned more about power generation policies, which are questions that should engage the Union and the States and not the judiciary. The Supreme Court’s majority judgement observes: One of the indicators of the living standards of people is the per capita consumption of electricity. There is, however, perennial shortage of power in India and, therefore, it is necessary that the generation increases. The world over, countries having rich water and river systems have effectively exploited these for hydel power generation. (NBA v. Union case)30

But the majority decision does not go on to ask what the advanced capitalist countries did to rehabilitate displaced people. The exercise in comparative sociology is thus selective. The Supreme Court goes on to present statistics on hydel power generation, why thermal power is not a suitable option and concludes its discourse on power generation by observing that every time there is a thermal or hydel project there are protests and agitations for one reason or the other and yet hydel and power generation is a national necessity for development (Narmada Interim Relief case).31 The relative merits of sources of power generation were not the issue before the Supreme Court. The Supreme Court not only put a stamp of approval on the way the government agencies handled rehabilitation in the SSD project but also justified displacement for power generation in the country generally, whether it be hydel, nuclear or thermal. The Supreme Court thus conflated the Union with the government. In a democracy, governments come and go, and are free to change policies on power generation or any other matter; the Union is bound by the law and the Constitution regardless of the government of the day. The majority judgement lashes out against the public interest case brought by the NBA, saying: With passage of time the PIL jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life, granting of largess in the form of licences, protecting the environment and the like. But the balloon should not be inflated so much that it bursts. Public Interest Litigation should not be allowed to degenerate to becoming Publicity Interest Litigation or Private Inquisitiveness Litigation. (Narmada Interim Relief case)32

30

p. 3831 para 278. p. 3831 paras 278–79. 32 p. 3827 para 256. 31

74 Radha D’Souza

The unprofessional choice of words notwithstanding, the issue here is that the Supreme Court was solely responsible for creating the public interest jurisdiction and continues to routinely entertain large numbers of petitions and, as will be seen in the Networking Rivers case further on, has made decisions of subcontinental proportions in public interest cases on inter-State rivers. The Supreme Court dismissed NBA’s case with some directions on rehabilitation. Unhappy with the Supreme Court’s majority decision, NBA held a demonstration outside the Supreme Court gates, and what followed is bizarre, almost Kafkaesque, and is recorded in the Parashar case ( J.R. Parashar, Advocate & Ors. v. Prashant Bhushan & Ors).33 J.R. Parashar, a senior counsel of the Supreme Court, filed a contempt petition against NBA’s Senior Counsel and two NBA activists, Medha Patkar and Arundhati Roy, without following any of the basic procedural requirements for a contempt petition such as verification of petition, name and address of petitioners and respondents, and the prior permission of the Advocate General required for filing a contempt petition under the Contempt of Courts Act 1971. Curiously, the police were present throughout the demonstrations but did not find any ‘law and order’ problems during the demonstrations. J.R. Parashar, the Senior Advocate petitioner, filed a police complaint the following day, but the police did not take cognisance of it. The Advocate General did not give consent for filing a contempt petition. J.R. Parashar had not disclosed to the Supreme Court in his motion for contempt that the police had declined to register his complaint and that the Advocate General had declined permission for contempt proceedings. Without proper scrutiny (strangely), the Registry of the Supreme Court placed the case before the Supreme Court, and contempt notices were issued to the NBA activists and the Senior Counsel who appeared for them. The NBA activists filed their affidavits in response to the Supreme Court’s contempt notices. During the hearing, it was discovered that the contempt motion was defective and based on suppression of facts, and the Supreme Court rejected the contempt motion holding—‘Had our attention been drawn to the procedural defects, we would have had no hesitation in rejecting the application in limine on this ground alone’ ( Parashar case)34—but nevertheless proceeded to issue suo moto contempt notices against one NBA activist, the writer Arundhati Roy, for her statements made in her affidavit in response to a contempt motion

33 34

AIR 2001 SC 3395. p. 3402 para 29.

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that the Supreme Court found was flawed from its inception. The suo moto contempt motion led to another case. In the Arundhati Roy case,35 the Supreme Court appears to have developed a siege mindset. The decision comprising 34 paragraphs is replete with statements like: After more than half a century of independence, the judiciary in the country is under a constant threat and being endangered ‘from within and without’ (emphasis added).36 Presumably, the ‘within and without’ refers to the country. Unlike Bharucha J., in an earlier contempt petition brought by the State of Gujarat (Narmada Bachao Andolan v. Union of India & Ors)37 the majority did not think the Supreme Court’s shoulders were broad enough to take criticism. What is more far reaching is the observation: ‘… the judiciary is not only the guardian of the rule of law and the third pillar but in fact the central pillar of a democratic state’ (emphasis added)38 In a liberal democracy, what is central is the balance in the division of powers itself because the core idea of a liberal democracy is to check arbitrary power by any individual or institution, including the judiciary. Ironically, what irked the Supreme Court about Arundhati Roy’s affidavit was her perception that: ‘A judicial dictatorship is as fearsome a prospect as a military dictatorship or any other form of totalitarian rule.’ (Arundhati Roy case)39 Yet the Supreme Court saw itself as the ‘central pillar of a democratic state’. It is a matter of concern that the Supreme Court should see itself as the sole repository of public power and it reflects an emerging reality. After monitoring the rehabilitation of the people affected by the SSD project for 13 years since 1991, starting with the B.D. Sharma case, there were people who were still left out of adequate rehabilitation, and they knocked on the Supreme Court’s door once again in the NBA: R&R in MP case (NBA: R&R in MP case: Narmada Bachao Andolan v. Union of India & Ors).40 This case focused on a short question: What are the eligibility criteria for rehabilitation and were there people in Madhya Pradesh who had not been rehabilitated? The States involved in the Narmada disputes: Gujarat, Madhya Pradesh and Maharashtra, had set up a Grievance Redressal Authority (GRA) to address disputes about rehabilitation and resettlement. Even after the work of the GRAs the Supreme Court found that there were people who had not been rehabilitated and the eligibility criteria for rehabilitation was flawed. 35

AIR 2002 SC 1375. p. 1379 para 1. 37 AIR 1999 SC 3345 p. 3348 para 13. 38 p. 1380 para 1. 39 p. 1383 para 10. 40 AIR 2005 SC p. 2994. 36

76 Radha D’Souza

The Supreme Court reviewed the decision of the GRA set up pursuant to its earlier orders. There are two significant issues arising from the NBA: R&R in MP case. First, if in 2005 the Supreme Court found that there were at least some classes of dam-affected people who had not been rehabilitated and therefore denied their fundamental rights, then surely they would have been there in 2000 when the Supreme Court decided the NBA v. Union case. Second, as the guardian of the Constitution, the Supreme Court’s primary responsibility is to interpret and develop the law, but it does not appear to have noticed that there was an important question of law involved in the NBA: R&R in MP case namely: did the disputes about rehabilitation and resettlement concern enforcement of NWDT’s award? The award of the Krishna Water Disputes Tribunal (KWDT) set up under the ISWD Act was one of the earliest awards where the workings of the ISWD Act were tested. The KWDT found that there were gaps in the statute relating to the administrative machinery for enforcement of an award of a tribunal set up under the ISWD Act. Pursuant to the KWDT award, the statute was amended to provide for an inter-State river basin authority to be set up to enforce an award of a tribunal under it. The Narmada Water Disputes Tribunal (NWDT) went into the question of rehabilitation of the dam-affected people and decided their rights in its award. The Union appointed the Narmada Control Authority (NCA) to enforce the award of the NWDT. The rehabilitation and resettlement issues decided by the GRAs set up by States were, arguably, matters relating to the enforcement of the NWDT award. The decisions of the GRA reviewed by the Supreme Court in the NBA: R&R in MP case could be traced back to the subject matter of the ISWD Act and Article 262 of the Constitution. They did not relate to the usual principles of judicial review and hierarchy of courts in administrative law.The real constitutional question was: did the Supreme Court have jurisdiction to hear a dispute that was determined by a tribunal under the ISWD Act, and the enforcement of which could only be entrusted to a distinct authority drawing its source of power from a different part of the Constitution: Article 262? It is possible to take the view that States were required to enforce the award within their jurisdictions and setting up GRAs may well be within their powers under the NWDT award. The point is not what view ought to be taken in such a question, but rather that the only significant constitutional question was not even raised. The course of the litigation highlights once again the current tendency in the Supreme Court’s

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decision-making process which is to avoid legal questions and to focus instead on policy matters of Unions and States. Consequently, the development of law through the interpretative process has been stymied despite the many exciting outcomes in controversial public interest petitions. The harsh reality is that the KWDT clearly identified gaps in the enforcement machinery under the ISWD Act. Neither the civil service whose job is to rise above the everyday dust and heat of politics and ensure that the systems of administration and the machinery of the government function smoothly, nor the Union whose job it is to provide the administrative mechanisms for the judicial system to function, appears to have taken a good look at the gap identified by the KWDT and applied their minds to the administrative and institutional mechanisms, including provision for hearings, authorities and review mechanisms required to give effect to the Constitutional schema on jurisdiction over water in the type of federalism envisaged under the Indian Constitution. The failure was a missed opportunity to end the legal uncertainties on inter-State water disputes.

The Krishna Cases The Krishna cases before the Supreme Court involved judgements in two cross suits brought by Andhra Pradesh and Karnataka wherein Andhra Pradesh protested Karnataka’s plans to increase the height of the Alamatti Dam (State of Andhra Pradesh v. State of Karnataka).41, 42 In the AP v. Karnataka case, the Union Government unlike in the Cauvery cases, intervened in the inter-State dispute by setting up a Committee of Chief Ministers outside the basin to arbitrate over the dispute. The Committee of Chief Ministers appointed an Expert Committee to report on the dispute and included the Central Water Commission (CWC) and the Planning Commission to participate in the proceedings as experts. Both agencies of the Union declined to participate in the proceedings. Unlike the Cauvery cases, the Union did not plead neutrality between the two States and came out clearly supporting Karnataka’s right to raise the height of the dam supposedly because of the need for power generation. Andhra Pradesh argued that it was not consulted on the question of the height of the Alamatti Dam. To this the Union, in a shocking statement, replied 41 42

AIR 2001 SC 1560. Under Article 131 of the Constitution of India, AIR 2001 SC 1560.

78 Radha D’Souza

that it was not obliged to consult with Andhra Pradesh (AP v. Karnataka case),43 a proposition that flies in the face of the basic requirements of fairness and international law44 and ironically runs counter to what the Union does routinely with Pakistan through the Indus Commission.45 The question here is not whether in fact consultation took place, which would be a question of factual verification, but the Union defending its legal claim that consultation was not required. The Supreme Court went a step further and upheld the Union’s claim, and observed: [Counsel for AP] has not placed before us any material or any law which compels the concerned authority to consult [i.e., Central Government and its agencies] all the riparian States before sanctioning a project of one State. In the absence of any legal basis for such a stand we are not able to agree with the stand taken by the State of Andhra Pradesh that the Central Government was duty bound to take the consent of other States while sanctioning any project of any of the riparian States .… Neither there exists any law which compels any State to get the concurrence of other riparian States whenever it uses water in respect of inter-State river …(emphasis added). (State of Andhra Pradesh v. State of Karnataka)46

Much of legal liberalism is about process and fair procedures. Consultation requirements form the fabric of the basic rules of fair procedure, natural justice, in legal language. In this case, the Helsinki Rules and the UN Transboundary Rules clearly provide for consultation on transboundary projects. The Supreme Court then commented on the schema of constitutional arrangements for water and observed: … notwithstanding the allocation of water in Krishna [by the KWDT] … no State can construct any project for use of water within the State unless such project is approved by the Planning Commission, the Central Water Commission and other Competent Authorities who might have different roles to play under different statutes. Under the federal structure, like ours, the Central Government possesses enormous power and authority and no State can on its own carry on the affairs within its territory, particularly when such projects may have adverse effect on other States,

43

p. 1611 para 67. See ‘Convention on the Law of the Non-Navigational Uses of International Watercourses 1997’. ‘The Helsinki Rules on the Uses of the Waters of International Rivers 1967’. 45 D’Souza, ‘Water Resources Development and Water Conflicts in Two Indian Ocean States’. 46 p. 1662 para 78. 44

Nation vs Peoples 79 particularly in respect of any inter-State river … (emphasis added). (State of Andhra Pradesh v. State of Karnataka)47

The Supreme Court concludes by saying that Karnataka has not flouted any statute or directives of the Central Government and therefore is within the law in constructing the dam (AP v. Karnataka case).48 How does complying with the Central Government directive per se make the action legal? Is a Central Government directive not reviewable by the Supreme Court? There are some foundational conceptual difficulties in the wording of the judgement. A number of points need to be made about the above observations. First, notwithstanding its enormous standing, the Planning Commission (unlike the SC & ST Commission in the Narmada cases) has no constitutional status, and it is an advisory body to the Union executive. Likewise, the CWC is an agency of the Union executive whose decisions are reviewable by the Supreme Court.49 Secondly, the CWC and the Planning Commission declined to participate in the expert committee proceedings set up by a forum consistent with the constitutional schema for arbitrating inter-State water disputes. Thirdly, the ISWD Act ousts the jurisdiction of the Supreme Court, there is an award of the KWDT, yet the Supreme Court directly and squarely engaged with the interpretation of the KWDT’s award and determined the correct height of the dam. Fourthly, the Supreme Court’s observations reduce the States to non-entities with little or no powers. Fifthly, the Supreme Court does not bother with legal interpretations of the constitutional division of powers over water between the Union and States as set out in the Constitution. Justice Sethi’s independent but concurring judgement in the AP v. Karnataka case reveals the thinking of the Supreme Court on inter-State water disputes, and the real reasons for its anxieties. The judgement does not dissent from the view of the other judges, nor does it come to the same conclusion on different legal reasoning, the two usual reasons for another judgement in the same case by members of the same bench. Instead, Sethi J.’s judgement is about what the social and economic policy of the nation ought to be, a concern clearly earmarked for the executive. Sethi J., in his additional judgement, states that the States have been irresponsible in bringing the suit and that they should: ‘… realise their constitutional obligations to the nation, 47

p. 1623 para 79. p. 1625 para 80. 49 D’Souza, Interstate Conflicts over Krishna Waters, Ch. 13. 48

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being important and mighty constituents of the federation, the Union of India …’ (emphasis added) (State of Andhra Pradesh. v. State of Karnataka).50 Nothing in the way the Supreme Court has addressed inter-State water conflicts or acknowledges or interprets the Constitutional division of powers and the place of States in the federation makes them ‘mighty constituents of the federation’. Sethi J. argued how ‘planned development and proper utilisation of water resources can serve as a cause as well as an effect of the prosperity of a nation’ (State of Andhra Pradesh v. State of Karnataka)51 and quoting statistics (without referencing the sources for the information) from the World Book Encyclopaedia on water scarcity in the world, observed with a sense of longing: … in industrial countries like the USA each person presently is using about 260 litres of water every day. The consumption in our country is however much less. On account of the advancement in the technology and of civilisation, water needs are increasing. In their quest to have a more comfortable life, people want more and more water. Facilities like ACs, garbage disposals, automatic washers and modern bathrooms, earlier considered as luxury are now deemed as necessities of life of a large human population. India is one of the fortunate countries endowed with enviable wealth of water resources. (State of Andhra Pradesh v. State of Karnataka)52

This appears to be the real anxiety of the Supreme Court: the lifestyles of those who can afford it, and not the legal and constitutional questions associated with economic development. Sethi J. bemoans the fact that the dismissal of suits filed by the two States will not close the matter and that the States will return again, and observes: It is hoped that as and when action is initiated upon our judgment, the Tribunal or the authority appointed in consequence thereof, for the purposes shall expedite the matter and ensure that the most precious gift of nature-water and the public money is not wasted in uncalled for, avoidable and imaginary litigation. (State of Andhra Pradesh v. State of Karnataka)53

50

p. 1656 para 171 p. 1656 para 172. 52 p. 1656 para 173. 53 p. 1657 para 178. 51

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The Ravi–Beas Cases In the Ravi–Beas cases, ‘we the people’ appeared before the Supreme Court with Punjab pleading terrorism and militancy in the State, and that water issues had—at least in part—contributed to the secessionist movements in the State. The disputes involved the question of Punjab’s obligation to Haryana to construct a portion of the Sutlej–Yamuna Link Canal (SYL Canal) that lay within Punjab’s territorial boundaries to divert water from the Ravi–Beas rivers. Unlike the other cases, Haryana is not a riparian State, and claims the waters of Ravi–Beas under agreements following the Punjab States Reorganisation Act 1966 under which Punjab was bifurcated into Haryana and Punjab.54 Surprisingly, the Supreme Court refers to Haryana and Rajasthan as ‘states of the Indus basin’ (First SYL Canal case: State of Haryana v. State of Punjab).55 In the First SYL Canal case Haryana, a non-riparian State, claimed water to be a ‘national asset’, and therefore the farmers of Haryana were entitled to it. Haryana argued before the Supreme Court that Punjab was bound to construct the portion of the SYL Canal and relied on the Punjab Agreement between Rajiv Gandhi and Sant Longowal to defend her claims. The broad and inclusive definition of a ‘water dispute’ in the ISWD Act notwithstanding, the Supreme Court held: Thus the construction of the SYL canal is essentially one for the purpose of utilizing the water that has already been allotted to the state of Haryana and consequently, cannot be construed to be in any way inter-linked with the distribution or control of water of, or in any inter-state river or river valley (emphasis added). (First SYL Canal case)56

The Supreme Court read sub-clause (i) but left out (ii), which relates to ‘the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement’.57 However, as the case was about the interpretation of the Punjab Agreement the Supreme Court ended up interpreting the agreement anyway. The Punjab Agreement had three clauses: 9(1), 9(2) and 9(3). Clauses 9(1) and 9(2) were

54 Linguistic re-organisation of Punjab took place nearly a decade after all other major States in India were reorganized and the reasons for it need not be gone into for the purposes of this paper. 55 AIR 2002 SC 685 p. 699 para 14. 56 p. 694 para 7. 57 See Section 2 of the ISWD Act cited in the previous section.

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about referring the disputes over the allocation of waters of Ravi–Beas to a tribunal constituted under the ISWD Act and clause 9(3) was about the SYL canal. The Union introduced legislative amendments to the ISWD Act to constitute the Ravi–Beas Water Disputes Tribunal (R–BDT)58 to enforce Clauses 9(1) and 9(2), but did not include the SYL Canal issue within the scope of the R–BDT. That meant that as far as the SYL Canal dispute went, the Punjab Agreement was the source for Haryana’s claims, and it was later in time. The Supreme Court took judicial notice of the militancy and insurgency in the State and the resentment against the Union’s decisions about the use and distribution of Punjab’s waters (First SYL Canal case).59 The Supreme Court accepted that the legal status of the Punjab Agreement was doubtful and stated: ‘It is no doubt true that the aforesaid settlement cannot be said to be a settlement on behalf of the State of Punjab, as Longowal had no constitutional authority to enter into any agreement’.60 The Supreme Court accepted that the SYL Canal issue was left out of the amendments to the ISWD Act. Yet the Supreme Court did not decide the legal status of the Punjab Agreement before deciding the claims of Haryana based on the agreement even though Parliament had only validated two clauses from the Punjab Agreement and had left out the clause relating to the SYL canal (First SYL Canal case).61 In the First SYL Canal case, the Supreme Court expanded on its view of Indian federalism, and the picture that emerges of the nation is not pretty. The Supreme Court views the States as being ‘confined to carrying out Central Government directives through the medium of an institutional fabric of federal form, it [the Indian state] is not a federal but a unitary state’ (First SYL Canal case).62 Unfortunately for the Supreme Court, the Union ‘candidly stated that the Union has no role to play in the dispute between the two states’ (First SYL Canal case).63 In this strong unitary nation, according to the Supreme Court, ‘It appears that in the controversy between the two states, the Union Government is feeling embarrassed to take any positive

58

The Inter-State Water Disputes (Amendment) Act 2002, (Act No. 14 of 2002) passed by Parliament on 18 March 2002 and received the President’s assent on 2 April 2002. 59 p. 695 para 7. 60 p. 695 para 7 61 p. 693–96 para 7. 62 p. 697 para 11. 63 p. 699 para 13.

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decision, which in our view is not in the interest of the nation’ (First SYL Canal case).64 The Supreme Court explains ‘[T]he founding fathers of the Constitution, advocated for a strong Central Government, so that […] the Central power would be able to keep the states within its limits and will be able to force the states, in the matter of good governance of the states…’ (First SYL Canal case).65 But what is the Supreme Court to do when in its own words: ‘[T]he Central Government is taking an indifferent attitude in the matter and is only trying to while away the time, even though [sic] continues to pay the State of Punjab substantially, even for maintenance of the operation of canal that has already been dug.’ (First SYL Canal case).66 The Supreme Court bemoans ‘[w]hat really bothers us most is the functioning of the political parties, who assume power to do whatever that suits and whatever would catch the vote-bank …’ (First SYL Canal case).67 But is it not true that democracy is all about parties and vote-banks, and the rough and tumble of popular politics through which ‘we the people’ express their will? Ultimately the Supreme Court directed the Punjab to construct the canal failing which the ‘strong’ but ‘embarrassed’ Centre ‘should get it done through its own agencies as expeditiously as possible’ (First SYL Canal case).68 The reasoning in the judgement is political rather than legal (First SYL Canal case).69 The conflation of law with politics by the Supreme Court and politics with law by the Central Government puts Indian democracy on a dangerous road of arbitrariness. Not surprisingly, the decision led to a flutter of new cases on the dispute.70 Punjab did not complete the SYL Canal. The questions in the Second SYL Canal case centred on procedural issues—on whether the ordinary civil procedures apply to inter-State water disputes (Second SYL Canal case).71

64

p. 699 para 13. p. 699 para13. 66 p. 705 para 17. 67 p 705 para 17. 68 p. 707 para 18. 69 p. 705 paras 17, 18, 19, 20. 70 1. State of Punjab filed an unsuccessful review petition for review of the SC’s decision. 2. Haryana filed another suit for execution of order of the SC. 3. Bhartiya Kisan Union an organisation of agriculturalists from Punjab filed a petition claiming violation of fundamental rights. 4. Punjab filed a cross case challenging the constitutional validity of the provisions of the States Reorganisation Act as well as amendments to the ISWD Act on her disputes with Haryana. 5. Haryana filed an application for dismissing Punjab’s suit at the threshold on the grounds that there were no grounds for Punjab’s claims. 71 State of Haryana v. State of Punjab, (2004) 12 SCC 673. 65

84 Radha D’Souza

Punjab challenged the constitutional validity of Section 78 of the Punjab States Reorganisation Act, 1966, but the Supreme Court never went into the legal question. Punjab challenged the constitutional validity of the amendments to the ISWD Act and the Supreme Court dismissed the challenge without legal reasoning, stating the challenge ‘must be rejected at the threshold’ because Punjab did not challenge the constitutional validity of the amendments in the First SYL Canal case.72 It is a generally accepted principle of law that the constitutional validity of statutes may be challenged at any time. If there was to be an exemption from this rule, it should have been supported with legal reasoning. The Union had not sent in the Border Roads Organisation into Punjab as it had said it would do in the First SYL Canal case. Instead, the Union washed its hands off it because ‘the BRO was committed to carrying out work in border areas and in Jammu and Kashmir in particular till the year 2016’, and stated it had tried to implement the Supreme Court’s directives ‘within its constitutional limitations’. The Union further submitted that Punjab should hand over possession of the SYL Canal to the Union and provide full protection to the employees of the Union.73 The Ravi–Beas disputes are significant because first, the Supreme Court reduced federalism in the Constitution to a shadow and second, for the first time military organisations like the Border Roads Organisation were drawn into an inter-State water conflict through an interpretative process of the Supreme Court with ramifications for Indian democracy.

Networking Rivers Cases The Networking Rivers cases involve a cluster of orders by the Supreme Court and there is no judgement in the usual sense providing the legal reasoning for the orders.74 In the Networking Rivers cases, the Supreme Court threw away any pretence of federalism or legal principles or procedures. In 2002 the President of India, in his traditional Independence Day address to the nation

72

p. 704 para 78. p. 708 para 89. 74 Networking Rivers cases: Re: Networking of Rivers. ‘In (2002) PIL SCALE, 274 SC; Re: Networking of Rivers in (2003) PIL SCALE? SC; Re: Networking of Rivers.’ In (2003) 1 SCALE 2: SC; Re: Networking of Rivers. In (2004) SCALE: SC. 73

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said that India was a nation with vast natural resources including water, and science and technology now made it possible to harness the resources to the extent that it is possible to envisage the inter-linking of the subcontinent’s rivers. In another unrelated case pending before the Supreme Court, the Yamuna Pollution case 1996, the advocate on record filed an interim application claiming the President of India had said India’s rivers should be inter-linked, and therefore the Supreme Court should issue urgent directions without hearing (ex-parte ad interim orders) to all States and to the Union to inter-link all major Indian rivers. The application did not disclose any legal grounds or cause of action.75 Ironically, Tamil Nadu, the State which lured the Supreme Court into inter-State water disputes was swift in responding to the Supreme Court’s notices and claimed that nationalisation of rivers was on the Union executive’s cards since 1982 and therefore the Supreme Court must issue urgent orders for inter-linking India’s rivers. Effectively inter-linking India’s rivers is tantamount to nationalisation of rivers, which would upset the schema of the Constituent Assembly’s provisions for jurisdiction over water. The Supreme Court did not pause to ask Tamil Nadu, if the matter was on the cards since 1982 where was the urgency?76 The Union seized the opportunity and made a statement on the first hearing that it had decided to set up a Task Force on Interlinking Rivers even before the States could file their replies and argue their cases. The Task Force was set up and a time line of 10 years was laid out for completing the task of inter-linking rivers. Nothing survived in the application after that as the relief sought for by one single advocate had been granted in full. Once again the Union had made plans for inter-State projects which would be unpopular with the States and the Supreme Court’s urgent interim orders became handy because now the Union could say it was simply obeying the Supreme Court’s orders. The States having lured the Supreme Court into inter-State water disputes in the Cauvery Urimai Sangam case due to the Union’s inaction found the foundations of federal relations shaken in the Networking Rivers case.77

75

Contrast this with the grilling the States had to go through on causes of action and pleadings in the AP v. Karnataka case and the Second SYL Canal case. 76 Contrast this with the Supreme Court’s approach to urgency in the Narmada cases where large numbers of the poorest and most vulnerable sections of Indian society were likely to be displaced. 77 For a more in depth socio-legal analysis of the Networking Rivers case see D’Souza, 2005. ‘The “Third World” and Socio-Legal Studies’.

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Understanding the Real Gaps in India’s Federalism Inter-State Water Disputes in the Supreme Court through Liberal Lens The focus of the above section has been on what actually transpires in the Supreme Court in inter-State water disputes and not on outcomes in the cases themselves. In an adversarial system of law such as ours, legal interpretation allows for a diverse range of views with different outcomes. The bottom line always is about playing the game by the rules. Procedure and procedural fairness, and maintaining the checks and balances provided in the Constitution as well as legal liberalism are, in a systemic sense, far more important than which State won or lost a particular case.78 The inter-State water disputes in the Supreme Court point to a dysfunction of systemic proportions. From the cases, it is possible to make the following observations about the Supreme Court’s involvement in inter-State water conflicts: 1. The Supreme Court has allowed itself to be lured into the murky waters of inter-State water conflicts because of its failure to enforce the boundaries of the divisions of powers between the executive, judiciary and legislature strictly, and apply the core principles of legal liberalism on which the legal system is founded. 2. The Supreme Court has reduced the scope of the ISWD Act through the interpretative process. The decisions show that the Supreme Court views the role of a tribunal set up under the ISWD Act to be a technical role of quantifying the waters of an inter-State river and allocating it between riparian Sates and nothing more. The Supreme Court has assumed jurisdiction over all other matters including interpreting the awards of tribunals under the Act (as it did in the Krishna cases and the Narmada cases) and inter-State water sharing agreements (as in the Ravi–Beas cases). 3. The Supreme Court has reduced the scope of federalism in the Indian Constitution and treated the States not as quasi-sovereign entities that 78 Whether it is possible to have a liberal legal system that delivers on its idealism is a larger question for legal philosophy, and this chapter has left out the wider philosophical issues, taken the foundational assumptions of liberal legalism as given and used it as a lens to view what transpires in the SC in inter-State water conflicts.

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4.

5.

6.

7.

joined the Union through a series of agreements for unification and as representatives of the national unity of diverse peoples forged through the freedom struggle, but as entities subservient to the Union. The provisions of the Constitution fly in the face of such a reading. The Supreme Court has in case after case passed strictures against States and called them irresponsible and censured them in a manner that belittles them with little empathy for the fact that the States have a duty to defend the interests of their populations, whether they be agriculturists, industrialists or displaced people. At the same time the Supreme Court has failed to hold the Union accountable for its failure to enforce the law and the Constitution. Public Interest Litigation, of which there is a voluminous body of case law by now, testifies to the fact that in case after case the fundamental rights of entire classes of citizens are routinely violated. In the special public interest jurisdiction created by the Supreme Court, the Supreme Court has taken on the responsibility of filling the gaps in the administration and bailing out the Union instead of calling the Union and the civil servants to account, and in the process it has upset the balance of power between the three limbs of the state. The Supreme Court had reduced the scope of fundamental civil liberties to group rights implicitly through the interpretative process, where a sufficient scale of infringement is required to invoke fundamental rights. This reading flies in the face of the core liberal values where individuals are the bearers of rights. In a decade’s time, the Supreme Court has firmly established itself as yet another forum for States to take their inter-State water disputes to, and a considerable body of cases and case law exist now that make the Constitutional schema for water sharing and the three 1956 statutes unworkable.

It is in this context that we must view the repeated calls by some for doing away with Article 262, to hand over to the Union and the Supreme Court all powers over inter-State waters. In effect this is a call for altering the basic structure of federalism in the country and for regularising powers that the Supreme Court has more or less assumed already. In effect, the call amounts to nationalising India’s rivers—as Tamil Nadu’s affidavit in the Networking Rivers case pointed out—without calling it nationalisation. If the agenda of nationalising rivers comes through the legislative or executive limb of the Union, it will no doubt become a subject for popular politics, and one can

88 Radha D’Souza

imagine the furore in the country. Therefore the question is: Can the judicial limb of the state do what cannot be done through the legislative and executive wings? Would that not be a legal coup d’état made possible by an intellectual environment created at least in part by the SC decisions?79 What is at stake here is the aspirations and gains of the freedom struggle. At such a juncture, a more democratic-minded and empathetic approach requires that we ask why States behave the way they do and what is happening out there.

Economic and Political Dimensions of Indian Federalism Returning to the tension between ‘we the people’ and the ‘sovereign socialist secular democratic republic’ at the beginning of this chapter, a few basic reminders are needed, if anything, because of a growing climate of intolerance for democratic practices and processes in some sections of Indian society. In a representative democracy, the electoral system, suffrage, public submissions in law-making, and popular participation through mobilising opinions, organising interest groups or political parties are part of normal practices through which ‘we the people’ express their will. It is for the legislature to give effect to their will and the executive’s job to administer the will. Thus democracy is by its very nature untidy, chaotic and full of upheavals; only dictatorships are tidy and disciplined. Federalism forms the cornerstone of institutional democracy and therefore the foundation of ‘sovereign socialist secular democratic republic’. Except for a small number of union territories, ‘we the people’ live in one of its many States. The States are the frontline of the republic and are required to deliver on the promises of sovereignty, socialism, secularism and democracy, and when things go wrong, the States must face ‘we the people’ in the first instance. The Indian federation is different from federations in advanced capitalist countries such as USA and now the European Union in that the impulse for federalism in those jurisdictions was economic development and integration of economic market mechanisms. Economic integration prompted political unification, and this process is still ongoing in the European Union. The impulse for the economic integration of the Indian subcontinent in its modern form was introduced by colonisation and the political impulse for unification came through the freedom struggle. The Constituent Assembly, a 79 In part it is due to the appalling poverty of socio-legal scholarship in the country, see D’Souza, ‘The “Third World” and Socio-Legal Studies.

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representative body, carefully constructed a balance of power between a diverse range of people and interests who populate the Nation to unify the Nation and promised them federalism, of which the linguistic re-organisation of States was an important part. The freedom struggle envisioned Indian democracy as comprising representative politics and democratic federalism. Indian federalism is different because it is based on political federation as the founding impulse and gives extensive economic and residuary powers to the Union. Because the federalism is different it does not mean there is no federalism and that India is a unitary state, a view the Supreme Court expressed in the Ravi–Beas cases and which runs through its treatment of inter-State water disputes. The Supreme Court’s interpretation of inter-State water disputes does not disclose any development of law or creative interpretations of legal principles of what a different type of federalism entails in the Indian constitutional context. How should courts view this new type of federalism in a way that respects the political powers of the States and the economic powers of the Union? Over the years a ‘gap’ has developed between the economic and the political aspects of federalism. The inter-State water disputes we are witnessing today can be attributed to such a ‘gap’ between economic and political dimensions in Union–State relations and not to any confusion in the divisions of power over water per se. After independence, the Union nearly reneged on the promise of linguistic reorganisation, and the people of India had to launch agitations in different parts of the country to hold the Union to its promise.80 Thus linguistic re-organisation was not automatic but came through struggle. The three 1956 statutes were born of that moment. The States never used the River Boards Act 1956 to develop the rivers through inter-State planning and development because the Union controlled the purse strings and the planning process. The Union exercised powers of taxation and used its legislative powers to appropriate revenues from modern industries, and revenues from natural resources such as mining and minerals. Successive Finance Commissions, constitutional authorities81 have pointed out the imbalances in the financial relationships between the Union and States. The Planning Commission, an advisory body to the Union executive, in contrast, assumed a status far more influential than the Finance Commission under the Constitution.

80 81

D’Souza, ‘The Democracy-Development Tension in Dam Projects’. Article 280, 281 of the Constitution of India.

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In developing inter-State rivers, the Union never breathed life into the River Boards Act 1956 by inviting States to develop plans through consultations and apply to the Union for money to fund the projects, as it happens in other federations.82 Instead, the Planning Commission decided what projects were to be constructed and where, the Union finalised contracts with international organisations like the World Bank without consulting the States and directed the States to fall in line promising economic incentives if they did. Consequently, two developments followed. First, legal and institutional developments that could have given enduring effect to the three 1956 statutes were stunted, and did not grow and take roots. Second, without economic powers, there were only two routes open to the States to defend the interests of their populations: either to ‘lobby’ the Union for generous allocations to the State, or exercise the only type of power they had: political power, through representative political processes. In the first two decades, the States believed in the economic miracles that the Planning Commission promised through the Five-Year Plans and became ‘lobbyists’ for their States. Consequently, they never developed financial responsibilities, institutions for economic governance, and they were not required to because of the Union’s clear message: ‘follow me and the door of heaven shall open’. By the third decade of freedom it was clear that the doors of heaven were not going to open, that the development agenda initiated by the Planning Commission was not delivering, and ‘we the people’ in the States were becoming restless and impatient. Since the mid-1960s, the influence of regional parties and politics has grown by leaps and bounds. In 1972, the Anandpur Sahib resolution in the context of the Punjab demanded a complete overhauling of federal–State relations, where the Union retained control over a limited range of subjects like defence, communications, external affairs and such, and devolved other powers to the States. What followed instead was the Emergency, suspending fundamental rights and freedoms. ‘We the people’ fought back and post-Emergency electoral politics has transformed to a point where today it is difficult to envision a Union Government without a coalition of some sort.

82

It is significant that while experiences of the USA and Europe are used to justify dams, the comparison is not extended to the workings of federalism, how water compacts are negotiated between states and how rehabilitation of affected people and environmental issues are addressed in those jurisdictions. On how all these questions were addressed in the Rio Grande river waters case see Littlefield, ‘Interstate Water Conflicts’.

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The inter-State water conflicts in the Supreme Court testify to a contemporary course in representative democracy that points to strong not weak States. The cases discussed testify to a weak Union, which is ineffective and often immobilised. The Supreme Court has stepped in to shore up the Union, which it can only do by turning away from the core principles of constitutionalism in a liberal democracy, in which division of powers and accountability are foundational. In the Ravi–Beas case, Punjab did not implement the directives of the Supreme Court and the Union said it cannot do much about it and the Supreme Court could only lecture the State on moral grounds. In the Cauvery case Karnataka issued an ordinance negating CWDT’s decision. Vested primarily with political power and responsibilities and with little economic powers or responsibilities, the States have little democratic spaces for manoeuvre, where even constitutional authorities like the SC & ST Commission and the Finance Commission are marginalised, and mechanisms in the Constitution for addressing inter-State issues such as Inter-State Councils are not empowered and developed.83

Concluding Reflections It may be useful to end this chapter with a comment on the recent amendments to the ISWD Act.84 The amendments introduced in March 2002 and effective from 6 August 2002 reduce the scope of the States further, increase the powers of the Union and invite the Supreme Court into the arena of inter-State water conflicts in subtle ways. The title of the Act is changed from Inter-State Water Disputes Act to Inter-State River Water Disputes Act thereby reducing the scope of the Act. More importantly, the amendments provide that henceforth, an award of the ISWD Tribunal will be enforced like a decree or order of the Supreme Court.85 It is useful to pause and ask ourselves: How is the Union going to enforce the award as if it were a decree against a State? Through sending the military? Another Operation Blue Star perhaps? Two courses of action can follow from the amendments: the Union can send the military to enforce decrees and further exacerbate secessionist tendencies and political chaos, or the Union can lapse into inaction, fearful of the political fall-out. In either case, the courses of action can only further 83

Article 263 of the Constitution of India. Inter-State Water Disputes (Amendment) Act 2002. 85 Section 5 Inter-State Water Disputes (Amendment) Act 2002. 84

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erode the authority of the judicial system as a whole. It is precisely because States are quasi-sovereign bodies that the Constitution saw inter-State water disputes as special types of disputes that were not like any ordinary disputes between private citizens where court decrees are in the final analysis enforced using police powers. The nation is at a crossroads now where the compromises that made freedom possible and were written into the Constitution are threatened. In this situation, many anxious voices propose a range of solutions. The most popular view is the moral argument: things are what they are because the Nation has lost its moral compass and is cut adrift from its ethical anchor. This argument is popular because it is simple. However, to say that one-sixth of humanity, which is what India is, has lost its ethical moorings is to argue that there is no hope for humanity, an untenable argument. The Supreme Court cases on inter-State water disputes span over a decade and cannot be attributed to individual lapses or shortcomings. The problem is systemic and this has to be acknowledged before ‘we the people’ can do something about it. Secondly, the experience of successive governments and political parties has led to cynicism about politics, to the point where even the Supreme Court speaks of political parties as chasing ‘vote-banks’ (see First SYL Canal case). The cynicism is entirely justified and well-founded. But two wrongs do not make a right as the saying goes, and because the executive and administrative machinery does not work and is unable to give effect to the aspirations of the freedom struggle, it does not justify dragging the judiciary as well into a turbulent and uncertain future. Thirdly, there is a perception that democracy has gone ‘too far’ and federalism has become too ‘irresponsible’, as the Supreme Court points out repeatedly. This impatience with democracy and federalism is disturbing. It may be possible to push through more amendments to statutes like the ISWD Act and hand over powers over water to the Union and the Supreme Court, but whether that will result in a flourishing democratic India or to more secessionism and political upheavals is a moot question that must be answered at another time.

References D’Souza, Radha. 2004. ‘The Democracy-Development Tension in Dam Projects: The Long Hand of the Law’, Political Geography, 23(6): 701–30. ———. 2005. ‘The “Third World” and Socio-Legal Studies: Neo-Liberalism and Lessons from India’s Legal Innovations’, Social & Legal Studies, 14(4): 487–513.

Nation vs Peoples 93 D’Souza, Radha. 2006. Interstate Conflicts over Krishna Waters: Law, Science and Imperialism. New Delhi: Orient Longman. ———. 2008. ‘Water Resources Development and Water Conflicts in Two Indian Ocean States’, in Timothy Doyle and Melissa Risely (eds), Regional Security and the Environment in the Indian Ocean Region. New Brunswick, NJ: Rutgers University Press. Government of India. 1988. Commission on Centre-State Relations. Nashik: Government of India. Littlefield, Douglas Robert. 1987. ‘Interstate Water Conflicts, Compromises, and Compacts: The Rio Grande, 1880–1938’, Ph.D. thesis, University of California.

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PART III

WATER: SOME MAJOR LEGAL THEMES

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5

Riparianism in Indian Water Jurisprudence Tony George Puthucherril Unblessed is the riparian proprietor for he knows not where he stands.1

Even though water is found nearly everywhere on the planet, because of its variability in quantity and quality, it is often seen in the wrong place, or is available at the wrong time; often in amounts that may be inadequate, or too impure to be utilised.2 Usable water is thus a scarce and valuable commodity.3 Despite these limitations in the amount of available usable water, there has been a manifold increase in the per capita consumption of water thereby exacerbating the situation. The heralding of the industrial and technological age, an ever burgeoning global population which mean more mouths to feed, adaptation of new water intensive technologies and lifestyles—all these have significantly impacted water consumption patterns. More importantly, our 1 Kinyon, in his article entitled ‘What can a Riparian Proprietor Do?’, points out that the inherent elusiveness of flowing water, a misunderstanding of fundamental legal principles, lack of agreement among courts as to which principle should apply, lead to confusion regarding the rights of riparians. In summing up the position, he states, ‘[U]nblessed is the riparian proprietor for he knows not where he stands.’ American Water Law has since then moved on, to be now based on a more sound juridical foundation. However, in India little thought has ever been given to water law, let alone riparianism. With globalisation, water has suddenly become a precious commodity with legislations being enacted by the states every now and then without ever giving thought as to whether the law is juridically sound. The phrase true of an American riparian way back in 1936 still holds good for an Indian riparian in 2009, and hence the use. Nothing captures better the plight of an Indian riparian in such simple terms. 2 See United Nations Environment Programme, Global Environment Outlook 3, p. 150; see also Montaigne, ‘Water Pressure’, p. 2 and Iyer, Water: Charting a Course For The Future . 3 Water is the biggest crisis facing India in terms of spread and severity, affecting one in three people. In fact, the popular slogan ‘roti, kapada aur makan’, has now been preceded by a new entrant—pani. For further details see Aiyar, ‘Thirsty India’, p. 28. See also Sainath, ‘Thirst for Profit’.

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planet is undergoing a dramatic upsurge in the average global temperatures, which is steadily accelerating as the years go by. Climate change has severely impacted precipitation patterns around the world thereby affecting water supplies.4 Thus, a global freshwater crisis looms as one of the greatest threats to the existence of life on the planet. Freshwater is a threatened resource and States are finding themselves increasingly hard pressed to provide adequate supplies for their citizens. Water, which was often thought to be so abundant as to require no more than causal thought with regard to its conservation and management, now demands the utmost attention of all. In recent times, battles to control water resources are becoming increasingly acrimonious with predictions that a third world war would be fought to gain control over this ‘blue gold’.5 This is not a foolhardy prediction; rather, the prospect of a world war being fought over water is real.6 All this calls for a holistic approach to the management and allocation of water resources. In fact, water resources management will be the single largest issue which will dominate the discourse on environmental and natural resources law in the coming decades. As far as India is concerned, even though it is endowed with copious water resources,7 the same has never been sustainably managed. In fact the World Water Development Report, 2003, ranks India as low as 133 among 180 countries in terms of water availability and at 120 among 122 countries in terms of water quality. This is of grave concern for our country, which is the second most populous in the world.8 Water riots in this country, as elsewhere, break out at the drop of a hat, particularly when monsoons fail, leading to severe social tensions, some of which have even snowballed to the 4 For more details on climate change, see Intergovernmental Panel on Climate Change, http://www.ipcc.ch/. See also United Nations Environment Network on Climate Change, http:// climatechange.unep.net/. See also Ramachandran, ‘The Heat is On’; Sinha, ‘Going Under’. In the next few years, water management will become the central theme in the strategies being chalked out to meet global climate change. The impact of climate change on water resources will not be uniform. A precise legal response even at the level of a river basin may not be possible. Global climate change will add considerable stress onto existing legal regimes as water management systems will have to struggle to adapt to altered precipitation and flow patterns. See Graumlich, ‘Climate Change and Water: A Long-term Perspective.’ 5 See Barlow, ‘Blue Gold’. 6 ‘Whiskey is for drinking, water is for fighting over.’ This famous quote has been attributed to Mark Twain. Ismail Serageldin, former Vice-President, World Bank, is credited with having said that ‘The wars of the next century will be about water.’ 7 See Ministry of Water Resources, Government of India, http://wrmin.nic.in/. 8 See Puthucherril and Vijayabalan, ‘The Law of Water Rights in India’.

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extent of endangering the federal structure.9 All this points to the callousness and apathy of the current systems and structures in place, which are entrusted with the duty to manage this life-sustaining resource. One of the primary reasons for this dismal situation is that the importance of water law as an effective water management tool has not been recognised in India.10 The need for water law reform is yet to catch the attention of the Indian legal and water management strategists. Dilapidated laws and principles that are not in tune with the concept of distributive justice still form the core framework for water governance, and as a consequence, millions in our country are reeling from water poverty. The result of this is huge in terms of human development, as the ensuing process of impoverishment is so adverse that rebuilding of the economy becomes very difficult.11 Countries all over the world have acknowledged the significance of water laws with the result that many are either sprucing up their existing legislations or are going in for new comprehensive water codes.12 In India also there have been sporadic attempts to draft new water laws.13 However, as a precursor to drafting a sound water code, the juridical basis of the existing laws will have to be looked into and reworked so as to ensure that it is grounded on sound principles promotive of human rights and distributive justice. Unfortunately, this is rarely done in the Indian context with the result that the inequity latent in the water rights regime gets reinforced. This chapter is an attempt to analyse the issue of riparian rights in India against the backdrop of increasing water scarcity. The first section would give the reader a broad idea as to why understanding the riparian rights framework

9 See Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v. Union of India (1990) 3 SCC 440; in the Matter of: Cauvery Water Disputes Tribunal 1993 Supp. (1) SCC 96 (II) 139 State of Karnataka v. State of Andhra Pradesh AIR 2001 SC 1560; State of Haryana v. State of Punjab I & II (2002) 2 SCC 507, (2004) 12 SCC 673; Mullaperiyar Environmental Protection Forum v. Union of India AIR 2006 SC 1428, etc. 10 Vaidyanathan, ‘The Role of Law in Water Resources Management’. 11 Even now antiquated legislations still continue to govern the field. For instance, see Northern India Canal and Drainage Act, 8 of 1873; Bengal Irrigation Act, 3 of 1876; Madhya Pradesh Irrigation Act, 14 of 1931; Travancore Cochin Irrigation Act, 7 of 1956; Bombay Irrigation Act, 7 of 1879; Rajasthan Irrigation and Drainage Act, 21 of 1954, etc. 12 For instance, South Africa soon after liberation from apartheid went in for a new water law and has even incorporated a specific human right to water in their Bill of Rights. For an understanding of the law relating to riparianism during the period of Apartheid, see Vos, ‘The Riparian Principle in South Africa and Other Countries’. (The general rule in South Africa was that only a riparian owner could use the water of a public stream and no one else. Only in exceptional circumstances could a non-riparian make use of public water.) 13 See Iyer, ‘Towards a Re-ordering of Water Law in India’.

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is important in any strategy for water law reform by highlighting a recent case involving the assertion of riparian rights by a private entrepreneur. Section II analyses the jurisprudence of riparian rights as it exists and how the present legal regime fortifies the system. Section III examines whether riparianism has any relevance in the modern-day context, and proposes an alternative model consistent with the constitutional goals as enshrined in Articles 39(b) and (c).

Section I

Riparian Rights over the Subarnarekha River: A Case Study Before proceeding to analyse the law relating to riparianism, I would like to highlight a recent incident involving the Tata Iron and Steel Company Ltd (hereinafter TISCO), which claimed riparian rights over the Subarnarekha River. This incident assumes significant overtones particularly in the context of globalisation and the increased demand to appropriate and commercialise water resources by water-based industries. Certain lands, some of which abut the river Subarnarekha, were originally acquired for the purpose of establishing an industry and its adjuncts by TISCO. Subsequently, the Bihar Land Reforms Act was enacted under which the lands acquired and handed over to TISCO became liable to be surrendered. There was a challenge to this enactment by TISCO and ultimately the dispute was compromised between TISCO and the Government of Bihar. By that compromise, TISCO was deemed to be the lessee of these disputed lands. However, there was no covenant regarding water either in the original transactions or in the subsequent lease deed.14 Later, the State of Bihar, to better utilise the waters of the Subarnarekha River, constructed the Chandil Dam thereby incurring considerable expenditure. TISCO was a direct beneficiary of this project along with the agriculturists of the basin. Considering the expenditure incurred for impounding the water, 14 As there is no covenant regarding water, it is doubtful whether TISCO could be treated as a riparian. In this regard, see Lord Halisham, Halsbury’s Laws of England (stating that the right of access of the riparian owner to water on which his land abuts is exercisable by the occupier under a lease of tenancy granted by the riparian owner, subject to any reservation contained in the relevant instrument, and also by licensees and other persons whom the riparian owner permits to use the foreshore as means of access to use the waters).

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the government decided to charge a rate for the water consumed by TISCO. In this regard, the state adopted the figures furnished by TISCO with regard to the quantity of water consumed and imposed a charge at a rate of Rs 3 per 1,000 gallons. Even though TISCO had initially agreed to pay, it later went back on that agreement, resulting in the matter being agitated before the Jharkhand High Court. The case of TISCO was that since its land abuts the Subarnarekha River, it is a riparian owner entitled to use the water of the river, and that the said riparian right cannot be interfered with by the government by seeking to restrict its use of the water, or by trying to charge a fee or a tax for the water extracted and used. TISCO also claimed that since the water was being used for all its purposes, that is, industrial purposes as well as for the colonies set up for its employees and otherwise, it had acquired a right by prescription to use the quantity of water it required for all its purposes, that the government had no right to impose any levy on the water of a running river used by TISCO, and that the demand in the bill could be neither supported as a tax nor as a fee.15 Moreover, in determining the quantum of water used, the government doubtless relied on the figures supplied by TISCO, but it imposed an arbitrary rate unilaterally, and therefore the bill issued was unreasonable and liable to be interfered with. On the other hand, the State’s case was based on the legal contention that it had the right to regulate the water in a flowing river, and that no person or company could claim a right to use the water to the detriment of a fair distribution by the State to all its citizens and consequently, the claim of TISCO was untenable. Moreover, since the States of West Bengal, Bihar and Orissa were entitled to use the waters of Subarnarekha, the quantity of water which the State of Bihar was entitled to use could be regulated by the State, 15 Can a municipality be considered to be a riparian? Can the inhabitants of a town to which water is supplied from a river situated miles away be considered riparians? In Kanpur Municipality’s case (1988) 1 SCC 471, directions were issued by the Court to the municipality to effect a clean up of the river, thereby recognising it as a riparian. But see Town of Purcellville v. Potts, 19 S.E.2d 700, 703, 179 Va.514, 141 A.L.R. 633, cited in 37-A Words & Phrases 476 (Permanent Ed.) (Held: The use of the waters of a stream to supply the inhabitants of a municipality with water for domestic purposes is not a riparian right. Even though the stream had its origin in springs on property of municipality, the municipality violated riparian rights of lower riparian owner by diverting waters of stream to reservoir of the municipality). Regarding the second issue, see Pernell v. City of Henderson 16, S.E.2d 449, 451, 220 N.C. 79, cited in 37-A Words & Phrases, p. 473 (Permanent Ed.). (Held: Where municipality impounds water in reservoirs, pipes it in large quantities into city and distributes and sells it to consumers for any purpose, the users are not riparian owners and cannot invest city as representative or in role of parens patriae with rights of riparian owner.)

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and hence the action could not be considered to be unauthorised. The State had incurred considerable expense in constructing the Chandil Dam which directly benefited TISCO, and therefore TISCO had to pay. As the matter was raised in a proceeding under Article 226, the Court refused to look into the central issue involved, mainly the claim of TISCO as a riparian to take water from the river. The same, it opined, could be decided only in a properly instituted suit in a competent Civil Court based on property pleadings and evidence adduced by the parties.16 This incident raises jurisprudential questions of overwhelming significance and in the years to come, unless such issues are settled through legislative fiat, courts could get flooded with like petitions seeking to justify such unconscionable acts in the name of asserting riparian rights.17 The fact that TISCO justified its act of using water from the river without any accountability by claiming refuge under the present riparian rights framework points to something seriously amiss in this framework. The episode also reveals that in the context of increasing water scarcity, growing domestic, industrial and agricultural demands, and the ever increasing popularity of water sports and 16

Tata Iron & Steel Co. Ltd. v. State of Bihar 2004 (3) BLJR 1948. (The Court, speaking through Justice P.K. Balasubramanyan, held thus, ‘The existence of such a right, either natural or prescriptive, can be decided only in a properly instituted suit in a competent civil court based on property pleadings and evidence to be adduced by the parties and those are not questions that we should venture to decided in this proceeding under Article 226 of the Constitution of India’.) 17 Can a riparian be required to pay cess for the water used in exercise of his riparian rights? In Secretary of State v. Sannidhiraju Subbarayadu AIR 1932 PC 46, 49, the plaintiff as a riparian owner has the right to draw water. Only in case of excess usage is he liable to pay water cess. See also Orient Papers and Industries Ltd. v. Tahsildar-Cum-Irrigation Officer (1998) 7 SCC 303. The main issue decided by the Jharkhand High Court in Tata Iron & Steel Co. Ltd. v. State of Bihar 2004 (3) BLJR 1948 related to the use of Subarnarekha waters by TISCO, and whether the company had to pay water charges. As the State of Bihar had incurred considerable expenditure for impounding water in the river and had made arrangements for the distribution of water among its citizens and industrial undertakings, the State was held entitled to regulate the use of water so impounded, and ensure a fair distribution of the same. TISCO was using the water for industrial purposes and was also supplying water to its employees in the colonies which it maintained thereby performing municipal obligations, which in reality was a State responsibility. Thus, a State resource was being used by an industrial concern for the domestic use of its employees and also for its industrial purposes. Accordingly, it was held that water used for domestic purposes by way of supply to its employees should not be charged at the same rate at which water used for industrial purposes is charged. So also, as the State had the right to legislate on water, this was held to necessarily include a right to impose a fee on the water impounded at State’s expense and supplied to TISCO. Accordingly, the State of Bihar was directed to modify the Bill, with domestic purposes being charged a rate less than what was being charged for industrial purposes.

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other recreational activities, the demand for riparian lands would skyrocket with more and more people becoming increasingly desirous of purchasing water-front property, as such lands afford the possibility of obtaining a consistent water supply.18 Similarly, industries and other vocations while exercising riparian rights would not only have access to adequate amounts of water for their activities, but more importantly, they could also dump their wastes into these water bodies, all in putting into effect the natural rights that inhere in them consequent to holding riparian lands.19

18 Land developers are increasingly after riparian lands to set up residential colonies. This has led to several legal battles. D.L.F. Universal Ltd. v. Prof. Lakshmi Sagar (1998) 7 SCC 1 is a case in point (involving the construction of a township on the banks of the Arkavati river, one of the main sources of water supply to Bangalore city). In land acquisition matters, compensation can be enhanced on the ground that the land in question is riparian. See Collector of Panchmahals v. Desai Keshavlal Panalal AIR 1969 Guj. 276 (an attempt was made to enhance the compensation on the ground that the land in question was riparian). 19 Under illustration (f ) to Section 7 of the Indian Easements Act, every owner of land has a natural right that within his own limits, the water which naturally passes or percolates by, over or through his land shall not, before so passing or percolating, be unreasonably polluted by other persons. However, in order to protect people in the pursuit of some useful calling indispensable for society, pollution was allowed to a reasonable degree. This is evident since the illustration uses the term ‘unreasonably polluted’. What is reasonable or justifiable pollution is a question of fact, depending on the nature and circumstances of each case. Furthermore, Section 28 of the Act gives a restricted right to pollute both surface and groundwaters to both domestic and industrial users. This right seeks to facilitate drainage, washing and rejection of unwanted organic and inorganic substances for industrial purposes. However, this right to pollute was to be balanced against appropriate restrictions so as to prevent mischief, nuisance or negligence. (See Sections 188, 268, 272, 277, 288–90 and 430 of the Indian Penal Code, 1860, and Sections 133, 141 of the Code of Criminal Procedure, 1973, and the appropriate remedies under the Law of Tort.) The natural right to purity of water not only extends to water passing in a defined course but also extends to water naturally passing or percolating by, over or through his land, and accordingly is wider in scope than the common law doctrine of riparian rights. However, in earlier times, as industrial pollution was not so rampant, concern regarding it was also low. With the proliferation of industrial units, there was a sea change in environmental perception, with water pollution becoming a matter of grave concern and attracting the attention of State legislatures and the Parliament. They realised the urgency behind ensuring that domestic and industrial effluents are not allowed to be discharged into watercourses without adequate treatment. Accordingly, the Water (Prevention and Control of Pollution) Act, 1974 was enacted, and it represents one of India’s first attempts to deal comprehensively with an environmental issue. See Puthucherril and Vijayabalan, ‘The Law of Water Rights’, pp. 109–10. In developing water quality jurisprudence, the Writ Courts have played an admirable role. In M.C. Mehta v. Union of India (1987) 4 SCC 463, the Court passed orders calling upon erring riparian tanneries and other establishments to set up primary treatment plants. In M.C. Mehta (II) v. Union of India (1988) 1 SCC 471, the Court issued a series of directions to the riparian

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Section II

Major Features of Indian Riparian Law Riparianism in Indian Water Law is available in the context of surface water passing in defined channels and also in the case of groundwater flowing through defined channels.

Riparian Rights and Streams Passing in Defined Channels In ancient times people lived in areas where there was water. This is evident from the fact that all major ancient civilisations sprang up on the banks of rivers.20 Interestingly, even from those times, flowing water by itself was not considered to the subject matter of property,21 and as far as the rights to Kanpur Nagar Mahapalika, which used to discharge nearly 274.50 million litres of sewage water into the river Ganges a day for rejuvenating the river. Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212 (in applying the polluter pays principle, the Central Government was directed to determine and recover the amount needed to carry out remedial measures, including the removal of sludge from the polluters); Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 (the Central government was directed to implement the Polluter pays and precautionary principles, which were held to be essential features of sustainable development against the tanneries that were polluting the River Palar). A.P. Pollution Control Board v. Prof. M.V. Nayadu I&II (1999) 2 SCC 718, (2001) 2 SCC 62. (As the industry was unable to discharge the onus mandated by the principle of precaution and the new burden of proof, the Court held the case to be a fit one for grant of injunction against the industry to prevent irreversible pollution to the water reservoirs.) 20 See Kandaswamy, ‘Water First’. 21 Water under Indian law is not susceptible to ownership as a specific intangible property. It is a ‘negative commodity’ in which only usufructuary rights can exist. Thus, there could be only a right to take and use water. Only when water is withdrawn from its natural state that amount of water may temporarily become property during the period of actual possession. This elemental principle could be seen even in ancient Indian water jurisprudence wherein running water in rivers, streams and water courses has been held incapable of being the property of any person. The position in English Common Law has been explained in Embrey and Another v. Owen 6 EX.353; see also The Magistrates of Linlithgow v. Elphinstone, 3 Kames’ Division, p. 331, cited in Embrey v. Owen 361, 362; see Moyle, The Institutes of Justinian p. 35 (translated) (‘ . . . [F]or some things are by natural law common to all, some are public, some belong to a society or corporation and some belong to no one. . . . Thus, the following things are by natural law common to all—the air, running water, the sea . . . .’); see Weil, ‘Running Water’; S.N. Ranade v. Union of India AIR 1964 SC 24 (holding that the grant of the soil of the village including the bed of the river by virtue of a sanad executed by the Peshwa does not include the grant of title to

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waters of natural streams22 passing in defined channels were concerned, the law embodied the riparian principle.23 However in respect of surface waters, the legal position was entirely different.24 The riparian rights doctrine originated in Roman law and later found its way into the English Common Law. It has been defined thus ‘owners of land bordering on a waterway have equal rights to use the water passing through or by their property’.25 A riparian owner is thus a person who owns lands abutting a stream, and who as such has certain rights to take water from the stream (Secy. of State v. Kannepalli Jankiramayya).26 For a land to be termed as riparian land there has to be a stream flowing over it or along its borders and herein the amount of water in the stream has no bearing whatsoever in determining whether a particular tract is riparian or not (Emani Lakshminarasu Avadhanulu v. Secy. of State).27 The rights to the use of water of a natural stream do not depend upon prescription, grant, acquiescence, or the ownership of the soil of the stream; rather, the right is a personal natural right, jure naturae, incident to the ownership of the soil of the land abutting the stream.28 Riparian rights are not mere shadowy privileges, they are substantial property rights providing a right of access to and the usufruct in the water.29 These rights are not in the strict sense of the term an easement though in many cases it has been called so. The right the flowing water of the river). But see Annapurnabai Gopal v. Govt. of Bombay AIR 1946 Bom. 204 (water cess was levied by the government with respect to the water used by the Godrej Co. It was held that the waters belonged to the government and not to the appellant who claimed it under a Sanad, granting it the village and the waters of the Godavari that flowed through it). See Puthucherril and Vijayabalan, ‘The Law of Water Rights’, pp. 93–94, n. 7. 22 Explanation to Section 7(b) of IEA states, ‘A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of the land or underground, which flows by the operation of nature only and in a natural and known course’; see also Nagina Singh v. Malhi, AIR 1921 Lah. 286, 287; Ramsewak Kazi v. Ramgir Choudhury, AIR 1954, Pat. 320. 23 Etymologically, the term ‘ripa’ means ‘the bank of stream’ or the ‘bank of a river’. See Black’s Law Dictionary 1352 (8th edn 2004), wherein riparian right has been defined to mean ‘[t]he right of a land owner whose property borders on a body of water or water course. Such a landowner traditionally has the right to make reasonable use of the water’. 24 See Puthucherril and Vijayabalan, ‘The Law of Water Rights’, pp. 78–81. 25 Black’s Law Dictionary, p. 1352. 26 AIR 1914 Mad. 534 (Held: Under the customary law of the country, river water belongs to the owner of the estate through which it passes subject to the claims of the proprietors below). 27 AIR 1919 Mad. 1152. 28 An owner of land abutting on water (a ‘riparian owner’) is entitled ex jure naturae to access and regress from that water, whether it is a tidal or non-tidal river, a lake or the sea, where it is contact with his frontage, provided his land is in actual daily contact with the water either laterally or vertically. See Lord Halisham, Halsbury’s Laws of England, p. 72. 29 Words & Phrases, p. 480.

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in particular is not capable of being lost non utends and the maxim tantum prescript possessum has no application. In India, the Law relating to riparianism can be traced to Section 7(b) of the Indian Easements Act, 1882 (hereinafter IEA), which propounds the right of every owner of immovable property to enjoy without disturbance by another the natural advantages arising from its situation subject to any law for the time being in force. Illustration (h) and Illustration (j) appended to Section 7(b), by setting out some of these natural advantages in actuality, illuminate the riparian law. Illustration (h) which outlines the right to flow of natural stream, provides thus: The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond allowed by other persons to remain within such owner’s limits without alteration in quantity or temperature.

This Illustration is in two parts. In the first part, what is clarified is the riparian right of every owner of land adjacent to water running in a defined natural course—whether higher riparian owner or lower riparian owner, to the accustomed flow of water both as to quantity and quality. In fact a close reading of this part of the illustration reveals that the lawmakers sought to highlight the natural flow approach to riparianism, as embodied in the maxim, ‘aqua currit et debet currere, ut currere solebat’, which means water flows, and ought to flow as it has been wont to flow. The basic idea behind this approach seems to be that due to certain natural reasons, streams originate and flow through land and when a person acquires that land he also acquires, by the law of nature, the rights to have the streams continue to flow in their natural quantity and quality. Thus, each riparian proprietor on a watercourse is regarded as having a right that the stream continue to flow over and through his land in its natural condition, undiminished and unpolluted by others.30 In other words, the riparian expectation of the natural flow of the water source is protected by this principle. The second part of the Illustration seeks to afford protection to natural lakes and ponds into or out of which a natural stream flows (Subraya Bhatta v. Lingappa Gowda).31 30 Kinyon, ‘What can a Riparian Proprietor Do? ’, pp. 512, 517. See also footnote no: 18. Letcher, ‘Riparian Rights to Water Quality’. 31 AIR 1973 Kant. 171.

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The proprietor’s right to the natural flow of the stream is qualified by certain privileges of use, amplified in Illustration (j), which speaks of: The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners.

This Illustration, as can be seen, is also in two parts. In the first part, there is no apparent limitation on use as it deals with primary or domestic uses. Herein the right to ordinary or primary use of water flowing past the land extends to domestic purposes, including the needs of cattle. Even though it may seem that the proprietor can exercise this right without regard to the diminution of supply to the lower owners, the diminution cannot be of such a nature as would affect the natural flow.32 The second part of the Illustration subjects the use of water for secondary uses—irrigation and for the purposes of any manufactory situated thereupon—subject to a qualification, mainly that the proprietor should not cause material injury to other like owners.33 What exactly would be material injury to other riparian owners is the question that would then arise for the courts to interpret. Herein, material injury would be caused to other riparian owners if there is a perceptible diminution in the supply of water whether for primary or for secondary purposes. Such injury may arise by reason of the volume of water diverted by the upper riparian 32

See Illus. (h) of Section 7 of the IEA. But see State of Bombay v. Laxman Sakharam Pimparkar (1960) 62 BOMLR 106 (in articulating the right of the riparian proprietor to the ordinary or primary use of water flowing past his land, the court held that this right, which extends to domestic purposes, could be exercised without regard to diminution of supply to lower owners). This view, it is submitted, totally ignores the earlier Illus. (h) to Section 7 of IEA. Even though illustrations are not a good interpretative tool, if such an interpretation were not to be adopted, it could lead to disastrous consequences. For instance, as mentioned in the earlier case study, TISCO, in exercising its riparian rights, could extract all the waters of the Subarnarekha to satisfy the domestic demands of the colonies it was maintaining and leave the river dry thereby affecting the rights of the lower riparians. There would be nothing illegal if this were to happen. 33 Lord Macnaghten in McCartney v. Londonderry and Lough Swilly Railway (1904) A.C. 301, 307 says thus, In the ordinary or primary use of flowing water, a person dwelling on the banks of a stream is under no restriction. In the exercise of his ordinary rights he may exhaust the water altogether. No lower proprietor can complain of that. In the exercise of rights extraordinary but permissible, the limit of which has never been accurately defined and probably is incapable of accurate definition, a riparian owner is under considerable restrictions. The use must be reasonable.

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owner and also by the mode employed to divert the water (M. Kanna v. T. Chathu).34 As far as the mode aspect is concerned, it should be of such nature as to give effect to the principle that a riparian owner is not entitled to impound the water flowing in defined natural channels, but is entitled only to use it as it passes (Secy. of State v. Kattari Nagayya Kama Rajendra Ramaswami Kamya Naicker Zamindar of Saptur).35 Interference with such flow is an actionable wrong, especially if the flow is totally cut off (Sri Vuppalapati Suryanarayaneswara Jogi Jagannadharaju v. Rajah of Vizianagaram).36 Thus when an upper riparian owner diverts water for the purpose of irrigation, he can do so provided the amount taken in not such as to hurt the rights of the inferior owner to have the stream passed on to him practically undiminished (Sethuramalinga Ayyar v. Ananda Padayachi ).37 In fact, the proprietor of an

34

1973 KLT 124. AIR 1938 Mad. 180, 182. Where the upper riparian (government) sought to use the water of a river not for the riparian tenement but to fill a tank situated at a long distance, the right to divert water to such a tank by putting up a permanent dam across the river was held to be an easement and not a riparian right. Even though the lower riparian owner could not insist that there should be no excessive user and that the easement should be enjoyed in a manner consistent with his rights without increasing the burden of the easement, acquisition of the prescriptive right to maintain the dam will not entitle the government to all the waters intercepted by the dam, but only to such waters as had been accustomed to take by the channel previously. 36 AIR 1937 Mad. 310, 311. The defendants intercepted the course of a stream by name pedda gedda and affected a total cut off. Accordingly, the Court directed the bund to be breached. The rights of the defendants are subject to the right of the plaintiff to have the water of the pedda gedda and its tributaries flow in the customary manner down to him. 37 AIR 1934 Mad. 583, 585. (Acknowledged as an upper riparian owner’s rights in a stream. However, the same does not extend to putting up a dam so as to materially diminish the flow of the stream.) However, see Harihar Mahapatra v. Hari Otha AIR 1950 Ori. 257 (once the right of irrigation from a stream of a channel is made out, it is one of the ordinary modes of the exercise of such a right to put up a bund or a dam across it for the purpose of exercising that irrigation right. What is relevant is not the right to put up the dam, but the nature, extent and duration of the dam so as not to interfere with the rights of other persons lower down the stream). The State of Bombay v. Laxman Sakharam Pimparkar AIR 1960 Bom. 409 (summarising the rules relating to riparianism, the Court held that every owner of land adjacent to water running in a defined natural course has a right jure naturae to the accustomed flow of water, both as to quantity and quality. His right to the ordinary or primary use of water flowing past his land extends to domestic purposes including purposes of his cattle. This he can exercise without regard to diminution of supply to lower owners. His right to extraordinary user or secondary user can be exercised only within limits. This right may be exercised by diverting the water for other purposes like agriculture but subject to the crucial condition that his user must be reasonable. Reasonable user must always be a matter of degree and the true rule of the matter would seem to be that his user must not deprive lower owners of their accustomed flow of water. This standard of reasonableness applies to the volume of water that he can divert, to 35

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upper tenement who claims the right to dam up a natural stream has the right to take for the purpose of irrigation only so much water as can be abstracted without materially diminishing what should be allowed to descend. If the amount which is allowed to descend is sufficient to supply the owner of a lower holding with as much water as he needs for his own purpose, it cannot be said that the amount that goes down is materially diminished. Diminished it may be, but not materially diminished if the owner of the lower holding has enough for his needs.38 It is in fact impossible for a man to prevent another from irrigating his land merely so that he may have the pleasure of seeing a large volume of water passing his holding (Kaw La v. Maung Ke).39 Thus, the right to extraordinary or secondary use can be exercised only within ‘reasonable limits’. Reasonable use is always a matter of degree and what quantity of water can be abstracted and used without infringing that essential condition must in all cases be a question of circumstances, depending mainly upon the size of the stream and the proportion which the water taken bears to its entire volume (The Secretary of State v. Ambalavana Pandara Samadhi ).40

the purpose for which he can utilise it, and also to the mode or method that he may adopt for impounding and channelling such water. A normal and usual mode of diverting water in many parts of the country is to put up kachha or pakka Bandharas [dams] in the stream. However, the Bandharas are to be such that they permit the flow of water downstream without interruption and without substantial diminution in volume). See also Abbasali Hasanali Peerjade v. Shaikh Munir Shaikh Dagu AIR 1953 Bom. 305 (it is not the natural right of a riparian owner to put up an obstruction across the path of a flowing stream and collect the water by that artificial means. There is a great deal of difference between constructing water channels or employing oil engines or mots to carry water from a running stream to the agricultural holdings abutting on the stream and constructing bandharas. Even though the former, that is, water channels, oil engines or mots, are artificial contrivances, these are contrivances without which it would be impossible to exercise the natural right of a riparian owner. On the other hand, a bandhara is a mechanical or artificial contrivance of a different category altogether, and non-resort to the construction of a bandhara would not make it impossible for a riparian owner to exercise his natural right to the use of the water. 38 Waman Bapuji v. Changu Has Patil (1906) 8 Bom. L.R. 87: Lawrence Jenkins, K.C.I.E., C.J., held thus, …no doubt the riparian owner may put water that flows through his land to certain uses connected with his land and for that purpose he may be entitled to divert its course. But it must be done in such a manner as not to inflict any material injury on the lower riparian owners. 39 (1916) 3 AIR LB. 90. 40 AIR 1914 Mad. 552. See also Debi Pershad Singh v. Joynath Singh I.L.R. 24 Cal. 865, 874 (the claim of an upper proprietor to dam up a stream and to impound as much of its water as he might find convenient for irrigation leaving only the surplus, if any, for the use of the proprietors below was turned down).

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It may also be noted that a use that is initially reasonable could become unreasonable over a period of time. Thus, Indian law on riparianism also accommodates the concept of reasonable usage, which entitles each riparian proprietor to have only equal rights to make reasonable use of water. Accordingly, if an upper owner causes obstruction to the free flow of water in the stream, the lower proprietor has a remedy in a court of law41and if a riparian owner taking advantage of his position uses the water for purposes unconnected with his riparian tenement, he can be injuncted from doing so, even though no actual injury might have been sustained by the other party. This is so because if the wrongdoer is not prevented he will at the end of the statutory period, gain a prescriptive right to continue the unlawful use forever.42 Another interesting issue in this regard is whether an upper riparian can restrain the lower riparian from putting up a bund across the natural stream for the purpose of irrigating his fields. This question has been answered in the negative.43 41 State of Madras represented by the District Collector, Tirunelveli v. S.K.S.O. Muhammed Ghani Tharoganar AIR 1959 Mad. 464 [the plaintiff is not entitled to cross bund the Vadamalayan channel, leading to a diminution of the water supply available to the lands lower down. The government is duty bound to ensure the equitable distribution of water, and has to ensure that the wrongdoer gets booked in one or more of the following ways, namely abatement, penalising, action on trespass, and for damages, declaration and injunction and prosecution under Section 430 of the Indian Penal Code, 1860 (hereinafter IPC) etc.]; see also C.V. Muthuvelas Velappan v. K.V. Narayanan Nair AIR 1964 Ker. 252 (a higher riparian owner, by putting up a masonry dam across the river, cut off the flow of water and deprived the lower riparian water for irrigation purposes. Accordingly, the Magistrate passed an order under Section 133 of the Criminal Procedure Code requiring the higher riparian to remove the bund. Held: The dispute does not come within the ambit of Chapter 10 of the Code and that the Magistrate had acted without jurisdiction since the Section could be utilised only if there has been invasion of public rights. The rights of riparian owners, however numerous they may be, are the private personal rights of each individual owner and are not public rights. Thus, the Magistrate took it upon himself to decide what Chapter 10 of the Code did not authorise him, and what was really for a Civil Court to decide). 42 Sree Rajah Venkatadri Appa Rao Bahadur Zamindar Garu v. Morivineni Seetharamayya AIR 1938 Mad. 816, 818. See also Rajah Tadakamalla Seetharamamchandra Rao v. Sree Rajah Kotagiri Stayanarayana Rao AIR 1940 Mad. 656 (Held: Putting up of a bund interfering with the common water course by one party amounted to an infraction of the right of the other party and the latter has every right to have it removed without showing damage.) 43 Dr. K. Anantha Bhat v. K.M. Ganapathy Bhatta AIR 1981 Ker. 102. The primary issue related to the construction of a katta or embankment across a natural stream by the defendant, the lower riparian. Held: The plaintiff, the upper riparian owner is not entitled to the exclusive user of the water in the natural stream and accordingly he cannot complain of the user of the water by the lower riparian owner. In law he has no locus standi to bring a suit against a lower riparian owner regarding putting up a bund across the natural stream and diverting the water for purpose of irrigating his lands. However, the lower riparian, while exercising his right to the use of the water in the stream, has no right to damage the plaintiff’s land.

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It may happen that in time, water may recede from the riparian land owing to natural silting up or artificial reclamation. In such cases, the riparian owner may exercise his right of access over the accreted or reclaimed land.44 Thus, Indian riparianism exhibits features of both natural flow as well as the reasonable use doctrines and protection is afforded to both natural conditions and to uses.

Rights in Respect of Artificial Channels The right to the water of a river flowing in a natural channel through a man’s land, and the right to water flowing to it through an artificial water course45 constructed on his neighbour’s land do not rest on the same principle.

44

Lord Halisham, Halsbury’s Laws of England, p. 72. ‘An artificial stream is a stream which flows at its source by the operation of man or if it flows at its source by the operation of nature, flows in a channel made by man. Where water is made to flow in an artificial channel from a natural stream, such a channel is an artificial stream.’ See Narasimuhulu v. Bhadrayya AIR 1933 Mad. 10. But see N. Arivudai Nambi v. State of Tamil Nadu AIR 1990 Mad. 240 (whenever the water in the river used to recede, the plaintiff used to dig a channel to facilitate the flow in order for it to be used for irrigation. This was objected to by the government, which imposed water cess, leading to a suit. The plea was dismissed by the lower courts on the ground that since he was using the water through an artificial channel, he was liable to pay water charges. The High Court however rejected the contention and held that although an artificial channel, it should be deemed to have been impressed with the qualities of a natural channel so as to invest the owners of land abutting on the channel with riparian rights. As the use was not excessive and since the lower riparians had not objected to the diversion, the demand for cess had to be quashed). See also State of Madras v. Krishnasawmi Ayyangar (1959), 2 Mad. L.J. 127 (Held: Although Uyyakondan river is an artificial channel, it was deemed to have been impressed with the qualities of a natural channel so as to invest the owners of land abutting on the river with riparian rights. Accordingly, it was held that the government could not levy cess as the use was not excessive). Interestingly, the law draws a distinction between natural water storage resources and artificial tanks in the matter of affording protection. See Mrs Susetha v. State of Tamil Nadu AIR 2006, SC 2893 (Water bodies are required to be retained in view of the fact that right to water as also quality of life are envisaged under Articles 21, 47, 48-A, 51-A. Natural water storage resources are not only required to be protected, but steps are also required to be taken for restoring the same if it has fallen in disuse. However, the same principle cannot be applied in relation to artificial tanks. Accordingly, a temple tank which had lost its utility and which was being used as a dumping yard and upon which the Panchayat decided to construct a shopping complex for resettling displaced persons was permitted.); L. Krishnan v. State of Tamil Nadu AIR 2005, Mad. 311 (the State Government was directed to identify all natural water resources in the State, and wherever there have been illegal encroachments, appropriate steps were to be initiated for restoring such natural water storage resources to its original condition so that the suffering of the people due to water shortage could be ameliorated). 45

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In the former case, as noted earlier, each successive riparian proprietor is, prima facie, entitled to the unimpeded flow of water in its natural course and to its reasonable enjoyment as it passes through his land, as a natural incident to his ownership of it. As far as water flowing through an artificial water course is concerned, there are no natural rights. These are only rights of easements and have to rest on some grant or arrangement, either proved or presumed, from or with the owners of the lands from which the water is artificially brought, or on some other legal origin.46 Where there is in existence an express grant of an easement or an express agreement relative to the construction and continuance of an artificial water course, the rights of all parties depends upon its terms. In general, rights in the artificial water course will not readily accrue, apart from those given by the agreement. However, the rights of some of the parties can be implied from the circumstances surrounding the execution of the agreement (Yesu Sakharam Pujari v. Ladu Nana Savant Bhosale).47 In developing the law regarding artificial channels riparianism has exerted its influence. Accordingly, if an artificial channel is constructed on the terms that all proprietors of lands situated on the artificial channel would have the same rights regarding the use of water as they would have had if the stream had been a natural one, then the plaintiffs as riparian proprietors would have an undoubted right to have the water come to them without obstruction in its ordinary and accustomed course, undiminished in quantity and quality (Ram Kripal Singh v. Hanuman Singh).48 So, also, where a channel is constructed by the government, acting as an agent of the community, to increase the wellbeing of the country by extending the benefit of irrigation, and in pursuance of that purpose the flow of the water is directed to the villages designed to be benefited, the rights of the owners of the fields registered under that

46 Ah Li v. U San Baw AIR 1939 Ran. 446. For a person to prove that he is entitled to the surplus water flowing from another person’s land to his own land through an artificial channel, he would have to prove that he was entitled to this water by some right of prescription. Bela Singh v. Bali Ram AIR 1923 Lah. 257, 258 [The defendants dammed a kul (artificial water channel)] traversing their land for irrigation. This materially decreased the plaintiff’s water supply for irrigation. As there was only diminution of supply and not complete stoppage as well as no proof of any easementary or customary right in favour of the plaintiff, he was held not entitled to injunction. 47 (1927) 29 Bom. L.R. 291. 48 AIR 1921 Pat. 51, 52 (relying on English decisions, wherein it was held that the law applicable to ordinary running streams should also apply to a natural stream flowing in an artificial channel, the respondent was held to have the right to water without obstruction).

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source of irrigation are co-extensive with the natural rights of riparian owners (Duraiswamy Udayar v. Venkatachala Reddiar).49 Another important aspect regarding the right to artificial watercourses, as against the party creating them, is the character of the watercourse—whether it is of a permanent or temporary nature—and the circumstances under which it is created. If it is permanent in its character, a right to the uninterrupted flow of the water may be acquired by prescription or grant against both the originator of the stream and also against any person over whose land the water flows. But if it is only of a temporary nature, no right can be acquired by prescription because the temporary nature of the stream precludes the presumption of a grant of a permanent right.50

Riparian Rights in Groundwater Indian groundwater law is based on the common law approach of land ownership doctrine,51 where groundwater is considered as belonging to the

49 AIR 1960 Mad. 385. (Held: As the cement pipe set up by the appellant resulted in substantial interference with the mamool or accustomed supply of water to the registered wet landowners and the permission given by the Collector was only an ex post facto recognition of innovation to prejudice an existing arrangement governing landowners under a registered source, the same was quashed.) Thus one can see a form of riparianism being given recognition. 50 Singh, Ratanlal and Dhirajlal’s The Law of Torts, pp. 391–92. 51 Lord Halisham, Halsbury’s Laws of England. However, in the US, particularly in the 19 Western States, four major groundwater law doctrines are followed. They are the Absolute Ownership Rule, which means that the water beneath a landowner’s land is the property of that landowner and he may withdraw the water without regard to the effect that it may have on other landowners. This doctrine, which originated in England, is largely the law in the wet East. However, a modification has been made to this rule by which the landowner’s right to water beneath the land is limited to the amount that is necessary to satisfy some reasonable and beneficial purpose on the land above the water. This rule is known as the American Rule or the reasonable use doctrine. The Correlative Rights Doctrine limits the right by providing that landowners overlying a common source of groundwater have equal or correlative rights to a reasonable amount of water. The Prior Appropriation Doctrine provides that the first appropriator of water by putting the water to beneficial use without waste has a right to continue the use, and that such right is superior to the rights of the people who appropriate water at a later date. See Ashley and Smith, Groundwater Management in the West, pp. 8–10; Strantz, ‘Rights to Groundwater in North Dakota’, p. 71; Anderson, ‘Oklahoma’s 1973 Groundwater Law’, p. 43; Wolfe and Hager, ‘Wyoming’s Groundwater Laws’, p. 24.

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owner of the land,52 since in the language of the law the term ‘land’ includes water.53 Groundwater is in fact recognised as a chattel attached to the land property54 with the rights therein belonging to the landowner on the basis of the ad coleum principle.55 However, common law contemplates a distinction between underground percolating water56 and underground running stream.57 The former does not flow in a defined channel but the latter does.58 As far as percolating waters are concerned, they are deemed to constitute part and parcel of the land in which they are found, and accordingly such waters belong to the owner of such land (Mahomedans of Lonar v. Hindus of Lonar).59 But since it is migratory in nature, it is part of the land only as long as it is in it. There is a right of use as it passes, but there is no ownership in the absolute sense (Malayam Patel Basavana Gowd v. Lakka Narayana Reddi).60

52

Jacob and Singh, Law Relating to Irrigation, p. 13. See Jowitt, The Dictionary of English Law, p. 1053. 54 See Singh, ‘Water Rights in India’ (under the Transfer of Property Act, the right to groundwater could be transferred only if the dominant heritage, that is, land, was transferred). 55 See Broom, Broom’s Legal Maxim, pp. 259–60 (Cujus est solum ejus est usque ad coleum—He who possesses land possesses also that which is above it.) See also Puthucherril and Vijayabalan, ‘The Law of Water Rights’, pp. 91–92 (noting that the ad coleum principle, which ties up water rights with land rights, is contrary to the constitutional mandates of social justice. Under this archaic principle, only landowners can enjoy groundwater, and the landless and tribals who often have only community rights over land cannot enjoy any rights over groundwater. Accordingly, there is the possibility of rich upper-caste landlords who own most of the lands turning into Water Lords. In fact, in rural India, the man controlling groundwater is extremely important. Water companies may also purchase lands solely for abstracting water for sale with no liability for the destruction of wells in the neighbourhood. This is precisely what has happened in the Palakkad district of Kerala, where Coke’s water mining has parched the lands of more than 2,000 people residing within 1.2 miles of the factory). 56 Clark and Martz, ‘Classes of Water’ (percolating waters are waters which slowly percolate or infiltrate their way through the sand, gravel, rock, or soil, which do not then form a part of any body of water or the flow of any watercourse, surface or subterranean, but which may eventually find their way by force of gravity to some watercourse or other body of water with whose waters they mingle, and thereby lose their identity as percolating waters). 57 An underground stream is defined as water that passes through or under the surface in a definite channel. Clark and Martz, ‘Classes of Water’, p. 322. 58 See Jain, ‘Legal Aspects of Ground Water Management’. 59 AIR 1945 Nag. 106. 60 AIR 1931 Mad. 284. 53

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It belongs to the overlying owner in a limited sense, that is, he has the unqualified right to capture and control it in the quantity desired and with immunity from liability to his neighbours for doing so.61 When it is reduced to his possession and control, it ceases to be percolating water and becomes his personal property. But if it flows or percolates from his land, he loses all rights and interests in it the moment it passes beyond the boundaries of his property, and when it enters the land of his neighbour it belongs to the latter in the same limited sense.62 This Common Law principle has been recognised by the Indian Easements Act, 1882.63 However, the law confers riparian rights whenever the course of a stream is known and defined, and it does not matter whether the stream is on the surface of the land or underground (Mahomedans of Lonar v. Hindus of Lonar).64 Thus, in the case of groundwater running in defined and known channels, the riparian doctrine applies, and every owner of land which the natural stream passes by shall be allowed by other persons to an uninterrupted flow without material alteration in quantity, direction, force or temperature.65 Similarly an upper riparian owner cannot so use the water as to perceptibly reduce the supply to the lower riparian owners (Babaji Ramaling Gurav v. Appa Vithavja Sutar)66 and is entitled only to a reasonable use of the same.67

61 See Puthucherril and Vijayabalan, ‘The Law of Water Rights’, pp. 86–93. (Herein the maxim damnum absque injuria applies even when the act is tainted with an improper motive or malice.) 62 Clark and Martz, ‘Classes of Water’, pp. 326, 327. 63 See Illustration (g) to Section 7 of IEA which outlines the natural rights available to the owner of the land, ‘The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel . . .’; see also Narayana, Law of Easements & Licenses, pp. 38–40. Manturabai v. Ithal Chiman AIR 1954 Nag. 103, 104 (no easement can be acquired over percolating water unless it runs in a defined stream). 64 AIR 1945 Nag. 106, 110. 65 See Illustration (h) to Section 7 of IEA and the Explanation thereto. 66 AIR 1924 Bom. 154. (The defendant obstructed the easement right of the plaintiff to water flowing from springs in the defendant’s land through small watercourses. The obstruction began at 14 feet from the sources of the five springs, and this was clear justification for presuming under Section 114 of the IEA that there was a direct and defined channel by which the water sought to be tapped finds its way to the adjacent springs. Accordingly, the Court held that there was an infringement of the plaintiff’s right to easement.) 67 See Illustration (j) to Section 7 of IEA.

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Section III

Riparianism: Denying Access Undermining Justice—Moving towards an Alternative Framework Infirmities in the Riparian Rights Framework Analysis of the jurisprudence relating to riparianism reveals that as it presently stands, the doctrine cannot suffice as a basis for water distribution in a modern legal system, primarily since the principle is inadequate to meet the challenges posed by acute water scarcity. In fact, the limited availability of the resource has led to a situation that needs greater regulation if the riparian rights framework is to be sustainable and consistent with the principles of conservation and distributive justice. The discussion will now seek to highlight this aspect. Since all persons owning riparian lands are co-owners of the right to use water, with each having equal rights as the other co-owners and none having the power to dictate usage to others; riparian rights can be described as being a form of common property.68 But as the law relating to the management of this common property resource in India is based on ‘natural flow’ and ‘reasonable use’, the result of persisting with such a system would be that riparian rights cannot survive in the long run, particularly in the context of acute water scarcity. This statement can be best illustrated through what Garrett Hardin terms ‘the tragedy of the commons’.69 In respect of common pool resources, that is, those which are not owned by individuals such as air, water, wildlife, etc., individuals may act in a manner so as to maximise their personal welfare, which in turn would affect the total social welfare. Hardin illustrates the same by forwarding the example of cattle and their grazing. To take maximum advantage of the free grazing opportunity, persons with cattle have the incentive to increase the size of their herds. However, at some point the aggregate effect of such individual decisions would be that grazing exceeds the capacity of the commons and degradation sets in. By continuing to increase the number of animals which graze on the commons, the benefit derived from the grass eaten by each additional animal goes entirely to the animal’s owner, but the ‘externalised costs’ or, to put it simply, ‘the burden’ which ensues, would be shared by all the citizens who use the commons. Thus, 68 69

Dellapenna, ‘Adapting Riparian Rights to the Twenty-First Century’. Hardin, ‘The Tragedy of the Commons’.

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allowing people unlimited use of common resources causes the degradation of the resource, and this is precisely what will happen if riparianism in its present version is allowed to persist. In fact, acute water scarcity has led to a situation wherein demands to maintain the natural flow have been replaced by pleas to maintain at least a regular flow (Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana).70 Riparianism poses several other complications as well. It links water rights with land rights. What this means is that if one is to enjoy water rights, the necessary precondition is that one should have land ownership. This is dangerous since in this globalised world, land is scarce and valuable. Also, as tribals and other lower castes rarely possess private ownership over land, enjoyment of water rights which are conditional on ownership of land perpetuates injustice. 71 Even then, these valuable rights which a landowner possesses should be allowed to continue, as it is not riparianism that is responsible for these injustices; rather, the same could be attributed to the failed land reforms and a host of colonial legislations enacted to disempower people and local communities.72 Riparian rights in relation to surface waters were unobjectionable as long as people living away from streams, rivers, etc., satisfied their needs from other sources. With the advent of modern technology, where water can be channellised, lifted or taken through pipes to other areas, or where the whole course of the river itself can be diverted, geographical or geological connections between water and land property have been severed. Mere geographical proximity to water would confer no special claim or entitlement rights on a person, and from a human-rights perspective,73 non-riparians 70 (1996) 2 SCC 572. (A PIL was initiated by the lower riparian seeking direction to ensure that regular flow of water is maintained in the river Yamuna so that the residents of Delhi would not be deprived of water for drinking purposes, while the upper riparian States were diverting the water for purposes like irrigation.) 71 See The Scheduled Tribes (Recognition of Forest Rights) Act. 72 See for instance The Indian Forest Act, 1927. 73 See Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664, 767; Subhash Kumar v. State of Bihar AIR 1991 SC 420, 424; S.K. Garg v. Union of India AIR 1999 All. 41, 42; Bheemagiri Bhaskar v. Revenue Divisional Officer, Bhongir AIR 2001 AP 492, 497; State of Karnataka v. State of Andhra Pradesh (2000) 9 SCC 572, 710. The National Commission to review the working of the Constitution recommended the incorporation of a new Article, namely, Article 30-D, guaranteeing the right to safe drinking water. For the text, see Report of The National Commission To Review The Working of the Constitution, p. 67 (2002). For an exposition on the human right to water and related issues, see Puthucherril and Vijayabalan, ‘If There is no Water Let Them Drink Bottled Mineral Water’.

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would also have a similar right as that enjoyed by riparians (M.C. Mehta v. Union of India).74 Similarly, the legal fiction of defined and undefined channels in respect of groundwater does not make sense. Applying riparianism to channels under the ground would be practically not feasible even in this modern technological age where man has the know-how to explore the earth’s bowels with the aid of satellite imagery and other techniques. It is primarily due to these reasons that riparianism is generally frowned upon and has never been accepted as providing a legal basis for settling interstate or international water sharing disputes.75 Nevertheless, the beneficence inherent in riparianism cannot be ignored as it affords a simple juridical basis to determine the rights of private proprietors governing their rights in natural streams. In fact, so simple is its basis that even in respect of water-sharing from an artificial or man-made channel riparianism exerts its influence. However, the flaw lies in the fact that even at a limited level of application (in determining the rights of private proprietors) riparianism could result in inadvertent inequities, since in the effective working of this principle much depends upon individual proprietors, and as the free grazing illustration employed to explain the ‘tragedy of commons’ reveals, much cannot be expected from them. Moreover, what is a reasonable use depends upon judicial determination based on the facts and circumstances of a particular case, thereby bringing in the element of ad-hocism to the fore. Thus a lot of leeway is provided to individual proprietors, which may not be sustainable in the long run. Therefore, the need of the hour is to build a new regime of riparian rights so as to provide a more solid regulatory foundation (rather than depending upon the goodness of each individual proprietor) seeking to control and manage the exploitation of water resources. It is in this context that one needs to appreciate the concept of regulated riparianism which represents a totally different model of water law.76 74 AIR 1988 SC 1115, 1126 (affording locus standi to a non-riparian). By doing so, the court has in effect dethroned the riparian from his exalted status. 75 The Riparian Rights Doctrine has been rejected, in one way or the other, by all River Tribunal Awards. See Singh, Water Rights and Principles of Water Resources Management, p. 69. For an overview of its application in international law, see Birnie and Boyle, International Law and the Environment, p. 301. 76 Even though this concept is slowly being imported into Indian water jurisprudence, in the United States several States have enacted laws giving effect to regulated riparianism. The Water Laws Committee of the American Society of Civil Engineers has formulated a certain common core of principles, articulated in the Regulated Riparian Model Water Code (hereinafter Model Code), which could be a definite guide for the Indian lawmakers, enabling the formulation of a better system of riparian rights. For a discussion on the Regulated Riparian Model Water Code,

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Regulated riparianism is not entirely alien to Indian water jurisprudence. In recent times, one of the most significant pieces of water legislations—the Maharashtra Water Resources Regulatory Authority Act, 200577 (hereinafter MWRRA) which seeks to provide for the establishment of the Maharashtra Water Resources Regulatory Authority78 to regulate water resources within the State of Maharashtra facilitate and ensure judicious, equitable and sustainable management, allocation and utilisation of water resources; fix the rates for the use of water for agriculture, industrial, drinking and other purposes; and matters connected therewith or incidental thereto79—represents one of the first attempts in the country to introduce regulated riparianism in a comprehensive manner. As a first step in this direction, the Act provides as a general principle that no person shall use any water from any water source without obtaining an Entitlement80 from the respective River Basin Agency thereby effectively circumscribing the riparian rights that proprietors had hitherto enjoyed.81 In giving effect to this legislative mandate, the Act contains numerous provisions detailing the law relating to entitlements. The Authority is to determine the distribution of entitlements for various categories of use and the equitable distribution of entitlements of water within each category of use on such terms and conditions as may be prescribed. The Authority has been given considerable powers to lay down the criteria and

see Beck, ‘The Regulated Riparian Model Water Code’. Professor Joseph W. Dellapenna, the Chairman of the Committee which drafted the Model Code in highlighting the differences between Common Law Riparianism and Regulated Riparianism, points out that the fundamental difference between the two systems lies in the requirement mandated by Regulated Riparianism, stating that generally no water would be withdrawn from a water source without a time limited permit from the State. In this system, permits determine water rights. The criterion to judge permit applications is whether the proposed use is a reasonable use of water. The Model Code sets 20 years as the duration of the permits. It also contains provisions designed to support alternative dispute resolution and administrative resolution of disputes amongst permit holders. By requiring water use fees, the Code breaks new ground in trying to ensure efficient water use. See Dellapenna, ‘Adapting Riparian Rights to the Twenty-First Century’, p. 586. 77 Act 18 of 2005. 78 See Chapter II, Sections 3–10 of MWRRA. 79 See Preamble to the Act. 80 Section 2(i) defines entitlement to mean any authorisation by any River Basin Agency to use the water for the purposes of this Act. 81 However, no entitlement is required in case of (a) any bore-well, tube-well or other well that is being used for domestic purposes and (b) tanks, small reservoirs or catchments of rainwater harvesting with an annual yield capacity as may be decided by the Authority. Here, ‘person’ has been defined to include individual, group of individuals, all local authorities, association, societies, companies, etc. This would mean that private companies cannot by purchasing water front properties draw water in exercise of their riparian rights.

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monitor the issuance of entitlements;82 lay down the criteria for modification of entitlements for the diversion, storage and use of surface and sub-surface waters of the State;83 and to fix the criteria for trading of water entitlements or quotas on the annual or seasonal basis by a water entitlement holder.84 The Authority is also to establish a water tariff system and determine the criteria for fixing the water charges at the sub-basin, river basin and State levels after ascertaining the views of the beneficiary public, based on the principle that the water charges shall reflect the full recovery of the cost of irrigation management, administration, operation and maintenance of the water resources project.85 Thus, the Act refrains from ascribing any economic value to water per se, even though the principle of full recovery of cost may impose an undue financial burden on small-time farmers. Regarding other features, the Act empowers the Authority to review, at intervals of not less than three years, the entitlements if warranted by concerns about the sustainability of the levels of allocation;86 develop a State Water Entitlement database which is to maintain a record of all entitlements;87 in periods of water scarcity, adjust the quantities of water made available to all entitlements;88 and establish a system of enforcement, monitoring and measurement of the entitlements that would ensure that the actual use of water, both in quantity and type of use, are in compliance with the entitlements as issued by the Authority.89 The Act also calls upon the Authority to fix the quota90 at the project level, sub-basin level and basin level.91 The Authority, which is to work within the 82 In actuality, the entitlements would be issued by the River Basin Agency. See Section 11(i) and Section 2(u). As far as individual entitlements are concerned, the Act provides in Section 11(v) that Individual Water Entitlements may be issued by the River Basin Agency only for the construction and operation of individual lift irrigation schemes from surface water sources, bore-wells, tube-wells, or other facilities for the extraction of sub-surface water. Such entitlements shall be administered, registered, measured and monitored by the respective River Basin Agency in close coordination with relevant government agencies. 83 Section 11(h). 84 Section 11(i). A novel feature of the Act is that it permits trading in water entitlements or quotas. Here, entitlements (except aggregate bulk water entitlements) and quotas of water assigned to an entitlement are treated as usufructuary rights and volumetric usufructuary rights, respectively, which can be transferred, bartered, bought or sold on an annual or seasonal basis within a market system regulated and controlled by the Authority. 85 Section 11(d). 86 Section 11(j). 87 Section 11(s). 88 Section 11(m). 89 Section 11(o). 90 Section 2(s) defines ‘Quota’ to mean a volumetric quantity of water made available to an entitlement holder, which is derived by multiplying an entitlement by the annual or seasonal allocation percentage. 91 Section 12(6).

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framework of the State Water Policy92 is to promote and implement sound water conservation and management practices throughout the State93 and promote the efficient use of water to minimise the wastage of water and fix reasonable use criteria for each category of use.94 To enhance and preserve water quality, the Authority is to implement the polluter pays principle in coordination with relevant State agencies.95 Perhaps the most controversial provision in the Act is Section 12(11) where enjoyment of water rights necessitates reproductive discipline (Javed v. State of Haryana).96 Herein any person with more than two children would have to pay one and a half times the prevailing rates to get entitlement of water for agriculture. Thus a perusal of the provisions reveals that the Act introduces regulated riparianism, by setting up an Authority empowered to issue entitlements and by prohibiting persons from using water from any water source without obtaining the entitlement thereby in effect severely limiting the enjoyment of riparian and other water rights. However, it is doubtful as to how much thinking the drafters of this Water Code had given to the sweeping nature of these provisions. Interestingly, riparianism is not mentioned even once in the text of the Act. The main feature of this Act is that it fortifies the sovereign power of the State in respect of water resources. This inchoate Maharashtra model on regulated riparianism may soon be replicated in other States97 and therefore it is highly necessary that an alternative people-centric 92

Section 12(1). Section 12(4). 94 Section 11(q). 95 Section 12(5). 96 (2003) 8 SCC 369 (upholding the validity of the Haryana Panchayati Raj Act, 1994, which disqualified persons with more than two children from getting elected to the office of Sarpanch, Up-sarpanch, or Panch). The right to contest elections to an office in the Panchayat is not a fundamental right. At most it is a constitutional/statutory right. However, as far as right to water for irrigation is concerned, the position, it is submitted, is entirely different. Right to water for irrigation is also not a fundamental right. But by denying the same or by charging exorbitant rates on the ground that a person has children above the permissible limit, it ignores the fact that right to livelihood, which is a part of Article 21, would be severely affected as people would be financially overburdened. Agriculture may become economically unviable due to the exorbitant irrigation fees. So also the right to food not only of the person and his family but also of the citizens at large would also get affected since such measures may affect agricultural production or increase the costs. Other issues which would also have to be looked into are (a) the question of awareness (how many people would be aware of such a provision?) and (b) is the issue of foeticides which may increase to prevent such unwanted births. 97 The legislation has several flaws, for instance: although it constitutes an independent authority, the composition fails to inspire confidence, particularly since under Section 23(1) the authority is bound to follow and act upon such general or special directions issued by the 93

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model is thought of. Before proceeding in this direction, the chapter will examine the issue of sovereign powers over water resources.

The Sovereign Power over Waters As stated earlier, the greatest drawback of riparianism is its ad hoc nature. To overcome this, regulated riparianism presupposes greater state intervention. In fact, the legal framework as it stands provides sufficient scope for the same. Although riparianism is a natural right, a reading of the terms in Section 7(b) of the Indian Easements Act reveals that enjoyment of the natural rights enumerated therein are subject to any law made in this regard. More importantly, Section 2(a) of the Act provides that the law of easements will not derogate from the right of the government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing, collected, retained or distributed in or by any channel or other work constructed at public expense for irrigation. Thus, Section 2(a) expressly saves the right of the government in the water of natural rivers and streams, and other public irrigation works from the operation of the Act (Ponnuswamy v. The State of Tamil Nadu through the District Collector of Ramanathapuram District and the government in writing in matters of policy involving public interest [Section 23(1)]. Such an important body, which has to manage a life-sustaining resource, being headed by a person who is or who was of the rank of Chief Secretary or equivalent thereto may not be the right choice. A retired Supreme Court or a retired Chief Justice of a high court would have been ideal. Again, the definition of ‘entitlement’ conveys the impression that the River Basin Agency (State) has absolute right over the waters thereby totally ignoring the rights of people in them. Another defect in the law is that it prohibits water from being made available from a canal for perennial crops unless the cultivator adopts drip irrigation or sprinkler irrigation, or such other water saving technology as approved by the Authority. Such a draconian provision may eliminate small-time farmers in one go. Even the National Water Policy, 2002, in para. 9.5, states, ‘Irrigation being the largest consumer of fresh water, the aim should be to get optimal productivity per unit of water. Scientific water management, farm practices and sprinkler and drip system of irrigation should be adopted wherever feasible.’ Note the terms wherever feasible. Thus, the Maharashtra Act adopts an extreme position as far as the adoption of water-saving technology is concerned. In relation to offences by companies, the Proviso to Section 27(1), which provides that nothing in this sub-section shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge, and that he exercised all due diligence to prevent the commission of such offences, seems to be an attempt to confer immunity to corporate bosses. This loophole to escape punishment afforded to a company official by the Drafters of the Code seems to be far-fetched. An important feature of the Act is that it permits trading of water entitlements or quotas. Even though it may seem that water markets are being formalised, would it end up in the back-door privatisation of resource?

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District Collector of Kamarajar District ).98 Even though this sovereign right is not to be exercised arbitrarily and is subject to the riparian getting the quantity of water to which he was entitled to by custom (Medarametla Seshareddy v. Korrapati Gopala Reddy),99 several legislative initiatives have lent a hand to fortify this State monopoly over water resources, which continues even to 98 (2000) 4 MLJ 122 (The plaintiffs, ayacutdars of Mandalamanikkam tank, filed an appeal seeking to restrain the defendant, the State of Tamil Nadu, from putting up a dam across the river Gundar in order to have more water supplied to Anaikulam Tank on the ground that if the dam was allowed to be set up, it would diminish and deprive the right to water enjoyed by the plaintiffs. Held: The Court reiterated the settled position of law that the Civil Court cannot issue an order of injunction against the government, when it is exercising the right conferred upon it by being a sovereign, expected to protect one and all under its umbrella. Secy. of State v. P.S. Nageswara Iyer AIR 1936 Mad. 923, 926 (holding that a right by prescription to water in a channel could be acquired as against the proprietary right of another, but not as against this sovereign right. The facts reveal that Varahanadi irrigation channel had been irrigating the respondent’s village for nearly 100 years. The government proposed to divert the channel waters for improving water supply to the nearby villages. The respondents sought an injunction, claiming an exclusive right to all the waters. The Madras High Court held that the respondents are entitled only to the accustomed supply of water for irrigation, and that they could not acquire any exclusive right in detriment to the paramount right of the state to regulate and control all supply of water in public streams and channels); see also Mahankali Lakshmiah v. Karnam Narayanappa 34 M.L.J. 425 (1918) (‘It is impossible for a person to acquire an easement in water in a govt. channel when that water has been supplied by govt. for the purpose of irrigating land and in fulfilment of the duty cast upon them to supply water to lands which they classify as wet’). See also Tata Iron and Steel Co. Ltd. v. State of Bihar 2004 (3) BLJR 1948 (Held: Water of a flowing river is an asset of the State. In the case of inter-State rivers, it could be considered to be an asset of more than one State. However, the water impounded and flowing through a particular State is an asset of that State. A government, in public interest, is entitled to regulate the use of such water). 99 AIR 1987 AP 1. (Held: State, while regulating the water source, cannot defeat the customary supply of water based upon either prescription or natural right. Robert Fischer v. The Secy. of State for India in Council 2 I.C. 325, 332 (1909) (‘The govt. have power by the customary law of India, to regulate, in the public interests, the collection, retention and distribution of waters of rivers and streams flowing in natural channels, and of waters introduced into such rivers by means of works constructed at the public expense and in the public interests for purposes of irrigation, provided that the govt. do not thereby inflict sensible injury on other riparian owners and diminish the supply they have hitherto utilised’); see also, Sankaravadivelu Pillai v. Secy. of State for India in Council I.L.R. 28 (Mad.) 72, 74–76 (granting a mandatory injunction to block a calingula constructed by the government, the Court recognised the government’s right to distribute water of government channels for public benefit subject to the rights of the ryotwari landholder to receive supply for his accustomed requirements. Further, this right does not include a right to flood a man’s land); Secy. of State v. P.S. Nageswara Iyer AIR 1936 Mad. 923; see also Section 2(b) of IEA, which recognises customary rights in favour of the public or any person in or over immovable property, which by inference would include the right to water; see also Section 25 of the Limitation Act, 1963, which recognises an absolute and indefeasible

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this day.100 So also a riparian can be compelled to pay cess for extracting water, and his claim that he was drawing the water in exercise of his riparian right

right of use and access to water once it has been enjoyed for a period of 20 years. Thus, the law recognises customary rights with respect to water. Lachuma Goundan, son of Pachiappa Goundan v. Pandiyappan alias Annamalai Goundan AIR 1951 Mad. 679 (‘The Government in exercising its prerogative right of distribution of water flowing in Government channels should not inflict sensible injury on ryotwari proprietors who have been accustomed to receive a supply of water sufficient for the purposes of irrigating their wet lands’). See also the exposition in Malayam Patel Basavana Gowd v. Lakka Narayana Reddi AIR 1931 PC 284. See Pazha Karuppiah v. State of Tamil Nadu AIR 1997 Mad. 144, 155 (The government formulated a scheme to take water from the Sambai Uthu, which was used to meet the drinking water needs of Karaikudi town to Tirupattur town. When challenged, the Court held that groundwater resources vests in the state, which in turn can formulate any scheme to supply the same not only to the inhabitants of the area where the groundwater is located, but also to the inhabitants of the neighbouring districts. Accordingly, the court directed the Tamil Nadu government to review the scheme, and even if the government decided to go ahead with the scheme, it could be done only after the water needs of Karaikudi were met). N. Sankappa Shetty v. State of Karnataka ILR 1992 Kar. 2529 (in quashing the impugned Notifications which sought to restrict water to the agriculturists during the summer months so as to protect the supply needed for Mangalore town, the court held that it was in summer that agriculturists needed water more, and so the government was called upon to ensure equitable distribution of water). But see Parambikulam A.P.O.A. Assn. v. State of Tamil Nadu (1999) 7 SCC 626 (upholding the validity of the Parambikulam Aliyar Project [Regulation of Water Supply] Act 1993, which introduced a new principle for the equitable distribution of water for irrigation with a view to benefiting a larger number of people, by applying the Benthamite principle of the greatest happiness of the greatest number. The Court interestingly held that even if the appellants had established any pre-existing right over the waters, the State Legislature could alter the same with a view to extending the benefit to a larger number of people). Parbat Jetha Ahir v. State of Gujarat (2001) 4 GLR 2960 (the original government policy was to release the waters to two villages. But later, when the project was commissioned, water was given only to one village. Subsequently, the government decided to release waters to the village, which was left dry. Held: The fact that water was given only to one village does not confer upon them any vested right and moreover, the decision of the Government to supply water was a policy matter). See also The Secretary of State for India v. The Rameshvaram Devasthanam (1934) 36 Bom. L.R. 539. 100 Beginning with the Northern India Canal and Drainage Act, 1873, numerous enactments have established public ownership of surface waters and government control over their use, development and distribution. This fundamental principle is incorporated in all irrigation statutes. Further, under Indian Law, as groundwater is treated as a chattel attached to land, the government, in exercise of its sovereign powers of eminent domain, could acquire a land laden with groundwater. Article 372 of the Constitution provides for the continuance of laws in force immediately before the commencement of the Constitution unless the same has been altered, amended or repealed by a competent legislature or any other competent authority. Accordingly, several pre-independence irrigation statutes of early nineteenth-century vintage still continue to hold sway.

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may not stand legal scrutiny.101 Such enormous powers in the hands of the State over this life-sustaining resource can have far-reaching consequences, as will be evident from the privatisation of River Sheonath and from the proposal to inter-link rivers.

Privatisation of the River Sheonath, Sovereign Powers and Riparian Rights In 1998, when Chhattisgarh was part of Madhya Pradesh, a contract was signed between Madhya Pradesh State Industrial Development Corporation (MPSIDC) and Radius Water Ltd, by which the latter was given the right to develop water resources by constructing three barrages over a stretch of 23.3 km of the Sheonath river for the purpose of supplying water (between 4 million litres per day to a maximum of 30 million litres per day) to the existing and expected industries in the Borai Industrial Growth Centre in Durg district. The MPSIDC constructed the infrastructure necessary to supply the 4 million litres per day. However, in summer months as the flow in the river was minimal, it was thought necessary to construct a barrage-cumreservoir on the river to ensure a perennial supply, which required Rs 7.5 crore. As the MPSIDC was unable to invest the required amount, it conceived a Build-Own-Operate Transfer (BOOT) scheme under which Radius Water was given a concession of 30 years during which it could own the assets and recover its investment plus profits through user charges. Interestingly, it was the cash-starved MPSIDC which extended Rs 7.5 crores as an inter-corporate deposit which enabled the construction of the barrage. Existing project assets worth Rs 502.75 lakh were also leased out by MPSIDC to Radius at Rs 1 a year for the duration of the concession period. Land for the project, including residential apartments, was provided free to the promoter. The Borai Water supply project harmed local interests. The barrage has reportedly left the stretch after it with little water thereby harming the rights of lower riparians. The groundwater level in downstream villages has declined from 40 feet to 60 feet, and the river dries up at least four months earlier than usual 101

See Section 11(d) of the Maharashtra Water Resources Regulatory Authority Act, 2005. See also The Water (Prevention and Control of Pollution) Cess Act, 1977, which is an Act to provide for the levy and collection of a cess on water consumed by persons carrying on certain industries and by local authorities. Local Authority has been defined in the Act to mean a municipal corporation or a municipal council or a cantonment board or by any other body entrusted with the duty of supplying water under the law by or under which it is constituted. [Section 2(a)] While industry includes any operation or process, or treatment and disposal system that consumes water or gives rise to sewage effluent or trade effluent, it does not include any hydel power unit. [Section 2(d)].

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time. Interestingly, in May 2002, the company accompanied by the local subdivisional Magistrate visited the riverside farms and confiscated the pump sets used by farmers to draw water from the river thereby violating their riparian rights. The fisherfolk were also hit as fishing became virtually impossible downstream of the barrage for most of the year. Moreover, under the take or pay clause in the contract, the Chhattisgarh State Industrial Development Corporation (CSIDC), which has inherited the project, has to pay money to Radius for a minimum of 120 million litres a month regardless of whether the water is consumed or not. This would mean that CSIDC is faced with a monthly bill of Rs 15 lakhs regardless of use. In fact, from December 2000–June 2002, CSIDC had to pay to Radius Rs 290.81 lakhs even though only water worth Rs 161.61 lakhs was sold to the industries. Even though the Chhattisgarh government has been toying with the idea of terminating the contract for a long time, it seems that no steps have been taken in this regard since the exit penalty could be as high as Rs 400 crores.102

Inter-linking of Rivers, Sovereign Powers and Riparianism If the modern-day ‘Bhageeraths’ have their way, India’s geography appears all set to be redrawn. Soon the mighty Ganges would cut across the Vindhyas and wind its way into the parched south, thereby transforming the physical nature of this river into a pan-Indian one. With predictions of a severe water crisis looming on the horizon, interlinking of rivers is being mooted. With the Supreme Court order103 favouring this much-hyped proposal, and with both the ruling and opposition parties hailing it, many believe that the scheme would usher in new development potential for the country. Whatever may be the projections and the estimated benefits, the fact is that the linking project could have serious repercussions on water rights.104 Even though the government claims that the project will be implemented only after obtaining the consensus of the States concerned, the fact is that the federal structure of water governance currently in place would be considerably altered if the project were ever to be implemented. Since consensus on this 102 See Jayaram, ‘Water Resources Crisis Situation’. V.R. Krishna Iyer has termed this ‘an act of constitutional consternation’. See Iyer, ‘Rivers, Sand and People’s Survival’, p. 10 and ‘Exotic Soap Opera for Kerala’, p. 5; Dhar, ‘Chhattisgarh to Cancel Water Supply Contract’, p. 13. See also Sethi, ‘Sheonath’s Sorrow’, p. 10. 103 In Re: Networking of Rivers 2002 (8) SCALE 195; In Re: Networking of Rivers 2003 (1) SCALE 2. 104 See Shiva and Jalees, ‘The Impact of the River Linking Project’.

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matter between the States is hard to come by, to implement the project the Central Government may have to push through a constitutional amendment transferring the subject of water, which at present finds place in the State List, to the Concurrent List.105 This would enable the Central Government to initiate law-making of such a kind so as to become the sole repository of every drop of water in this country. Secondly, the project, an engineering marvel, would involve the transformation of several natural channels into artificial ones, and the creation of several new artificial channels to carry huge quantities of water from one basin to another. If this were to happen, questions could arise as to what rights proprietors have over the waters that run through their territory. Would the government be able to confer rights on these proprietors, particularly in the context of the linking project involving private participation? Can the proprietors claim riparian rights over the waters, which run through the links? Since interbasin transfer of waters would affect the natural flow in most of the river systems that are to be linked, does riparianism have any relevance? It may even happen that the course of the river itself would have to be altered to facilitate link. In such a situation what would happen to the riparian rights which the proprietors enjoyed till then? These are a few issues that could arise in the context of inter-linking—all of which could significantly impact the development of the riparian rights framework. Even though regulated riparianism presupposes greater State intervention and can be thought of as providing a more equitable and orderly basis for water sharing, enormous powers in the hands of the State can result in injustice, as has been revealed from the preceding case studies. The mighty State, in the exercise of its sovereign powers, overlooking individual and community rights can hand over parts of rivers and lakes to private entrepreneurs in total disregard of their riparian rights.106 To prevent such possibilities, the State should not have the unlimited powers over the resource 105

See K. Singh et al., ‘Redrawing India’s Geography: Interlinking Rivers’. Cautioning the effect of such sweeping powers in state hands, the late Professor Chhatrapati Singh made a very insightful remark. He observed: 106

Amongst all natural resources, the one that is most vital for the sustenance of life is water. The one who owns water or has absolute rights over it has absolute power over the lives of others, including animals, birds, plants, trees and insects. Hence, water, as Professor Upendra Baxi has rightly described, is ‘power’. In so far as the Indian State has absolute rights over all the natural water of India, it has absolute power over the lives of all its citizens and flora and fauna. A state that has absolute power over the lives of others is a totalitarian state, not a democratic one. As it turns out, therefore, although politically we may claim to be democratic, economically, and especially from the point of view of the most vital resource for life, namely water, we live in a totalitarian state (emphasis added). See Singh, ‘Water Rights in India’, p. iii.

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lest it prove destructive to the enjoyment of water rights by individuals and local communities. Greater State intervention as mandated by regulated riparianism does not mean that the sovereign powers over water is unrestricted given that the doctrine of public trust is now part of Indian environmental jurisprudence. In the succeeding discussion, an attempt is made to highlight an alternative model of regulated riparian law from a people-centric perspective, employing the public trust doctrine.107

Regulated Riparianism from a Public Trust Perspective Ever since the celebrated doctrine of public trust was recognised as part of the law of the land by our Supreme Court in the Span Motels case, the State is considered only to be a trustee of all natural resources which are by nature meant for public use and enjoyment (M.C. Mehta v. Kamal Nath).108 This doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be completely unjustified to make them subjects of private ownership. The said resources, being gifts of nature, should be made freely available to everyone, irrespective of their status in life. It enjoins the government to protect the resources for the enjoyment of the general

In this context, the decision of S. Kumarasamy Gounder v. The Government of Tamil Nadu, rep. by its secretary to Government, Municipal Administration and Water Supply Department Chennai 2000 (4) CTC 351 is relevant. The petitioners, ayacutdars of Kaliyanoor Agraharam irrigation tank, were utilising its waters for irrigation purposes since time immemorial. The Panchayat, which had the power only to maintain the tank, carry out repairs and desilt it, auctioned the fishery right, and in no time the successful bidder closed the sluices with the consequence that the flow of water to the lands was obstructed. Held: Commercial interest of the Panchayat or an individual lessee cannot override the age old riparian and irrigational rights of the petitioners. 107 See Butler, ‘Environmental Water Rights: An Evolving Concept of Public Property’ (arguing that recognition of public property rights in environmental water uses appears to be the only effective way to correct the deficiencies of the private water rights system, and in this the doctrine of public trust plays an important role). 108 (1997) 1 SCC 388, 413. (The family of Mr Kamal Nath, a former Minister for Environment and Forest, had substantial interests in Span Motel’s Pvt Ltd, which built a club on the banks of the River Beas by encroaching upon forest lands that were later regularised during his tenure as minister. In order to save the motel from floods, the course of the river was also diverted. In this case, the Supreme Court directed the Himachal Pradesh government to take over the area and restore the land to its original condition.)

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public, rather than permit their use for private ownership or commercial purposes. Here, the State as a trustee is under a legal obligation to protect natural resources for the public, who are the beneficiaries of such resources (M.C. Mehta v. Kamal Nath).109 Even though the historical scope of this doctrine is quite narrow, the principle is now broader110 with the doctrine having the breadth and substantive content to make it a useful tool of general application for people seeking to develop a comprehensive legal approach to resource management problems. The adoption of a public trust approach could eliminate the possibility of the State claiming an absolute right to deal precious natural resources in an arbitrary or recalcitrant manner. The doctrine in fact imposes three types of restrictions on governmental authority. First, the property subject to the trust must be only used for a public purpose, must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent and third, the property must be maintained for particular types of use.111 Thus, the public trust doctrine imposes upon governmental activity dealing with certain resources, a standard that is more rigorous than what is applicable to normal governmental activity thereby ensuring the greatest happiness for the greatest number of people. Contrary to State claims of having a sovereign right over the resource, the doctrine of public trust would severely limit such claims and would act as a bulwark against arbitrary State actions. For effective resources management, and if fair play is to be ensured, the State should not lose sight of its role as trustee or breach the trust.112 Thus, whenever courts are confronted with situations where there is an abrasive exercise of sovereign power by the government in respect of natural resources management, it can rely on this doctrine, provided the conditions in relation to its application are satisfied to hold such acts to be an illegality.113 The doctrine of public trust has been

109

(1997) 1 SCC 388. See Narasimhan, ‘Property Rights, Public Rights and a Finite Word’, p. 16. 111 Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’. For a critique of the doctrine, see Huffman, ‘A Fish out of Water: The Public Trust Doctrine in a Constitutional Democracy’ (rejecting the trust law as unworkable and historically unrelated to Constitutional law). 112 See Section 3 of the South African National Water Act, 36, of 1998. See also Strantz, ‘Rights to Groundwater in North Dakota’ (pointing out that under the North Dakota Water Code, all non-privatised waters within North Dakota are subject to the public trust doctrine). 113 Intellectuals Forum, Tirupati v. State of A.P. AIR 2006 SC 1350 the Court held thus, ‘ . . . [W]hen the State holds a resource that is freely available for the use of the public, it provides for a higher degree of judicial scrutiny upon any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use.’ 110

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used extensively to afford protection to water bodies,114 lakes (M.P. Rambabu v. District Forest Officer)115 groundwater,116 watersheds (C. Sankareswaran & R. Arunagiri v. The Commissioner, Land Ceiling and Land Reforms in the High Court of Madras [Madurai Bench])117 etc., thereby rendering it crucial in water resources management. Even though ensuring the equitable management of a critical and lifesustaining resource like water inevitably mandates greater State intervention, the State may not always ensure rational and sustainable management, and may abuse its sovereign powers, jeopardising people’s rights.118 Advocating regulated riparianism which has as its central tenet increased State management over the resource does not mean that the State is to be omnipotent. State activity in regulating riparian rights conditioned by the public trust doctrine would imply that the State be duty bound to manage the resource 114 Ibid. (applying the doctrine of public trust to tank management, the Court held that tank is communal property). 115 Forum for a better Hyderabad (Confederation of Voluntary Organizations of Hyderabad) v. Govt. of A.P. 2001 (4) ALT 275 (holding that no permanent constructions nor commercial activities could be permitted on or near the water spread or catchment area of the Hussain Sagar). 116 AIR 2002 AP 256, wherein the AP High Court held that deep underground water belongs to the State in the sense that the doctrine of public trust extends thereto. A similar approach was adopted by the Single Judge Bench of the Kerala High Court when in Perumatty Grama Panchayat v. State of Kerala 2004(1) KLT 731, in the context of excessive exploitation of groundwater resources by Coca-Cola in Plachimada, it was held thus, ‘. . . [U]nder ground water belongs to the public. The State and its instrumentalities should act as trustees of this great wealth. The State has got a duty to protect ground water against excessive exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India.’ But see the conflicting opinion in Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat 2005 (2) KLT 554, wherein the Division Bench of the Kerala High Court, in overturning the Single Bench opinion, held that ordinarily a person has the right to draw water in reasonable limits, and that the reliance placed by the Learned Judge in Kamal Nath’s case is not sufficient to dislodge the claim. 117 W.P. (MD) Nos. 3536 of 2005 & 943 of 2006 decided on 5/12/2006 (relying on the doctrines of public trust and sustainable development, the Court prevented the move on the part of the government to assign certain vacant lands in the Kottagudi Hills, which formed part of the watershed supplying water to the Kottagudi river, the main source of water supply to the Bodinaickkanur town). 118 The villagers of Lava ka Baas built a johad (traditional check dam) on the community grazing lands. As the villagers had not sought permission from the Irrigation Department before constructing the dam, the government took steps to demolish the same. The attitude of the then Rajasthan Irrigation Minister Smt. Kamla Beniwal was appalling. She is reported to have said, ‘Water resources do not belong to people or to the society. They belong to the government.’ Swaminathan et al., Jal Swaraj, pp. 6–9.

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in a manner that would advance the welfare of the beneficiary. The State should not lose sight of the fact that it is only a trustee of the natural resource and that it should never violate the trust. Such an approach would definitely ensure judicious water management, incorporating people’s needs and aspirations.119

Conclusion In State of Karnataka v. State of Andhra Pradesh,120 the Supreme Court has observed, ‘[T]he law relating to water rights has undergone a sea change all over the world.’ However, ours seem to be the only one that has paid scant attention to the need to develop a comprehensive set of water rights. Consequently, an apocalypse is round the corner for our country if the lawmakers fail to see the writing on the wall. Effective management of water resources requires a sound legislative framework. However, as the discussion above reveals, riparianism, as it stands, accentuates the iniquitous distribution of water, as there is no mechanism to monitor whether the enjoyment of the natural advantages is in consonance with a broader framework of equity. Given the context of acute water scarcity, riparianism would have to transcend from the private sphere into the public domain with greater state regulation. Unless and until the legislature rises up to the occasion and affords statutory recognition to the concept of Regulated Riparianism imbued in public trust, a colossal disaster awaits the country.

References Aiyar, Shankkar. 2003. ‘Thirsty India’, India Today, 9 June. Anderson, Robert H. 1990. ‘Oklahoma’s 1973 Groundwater Law: A Short History’, Oklahoma Law Review, 43(1): 1. Ashley, Jeffery S. and Zachary A. Smith. 1999. Groundwater Management in the West. Lincoln, Nebraska: University of Nebraska Press. Barlow, Maude. 2001. ‘Blue Gold: The Global Water Crisis and the Commodification of the World’s Water Supply.’ Available online at (last accessed on 10 March 2007). 119 Interestingly, the very first section of the US Regulated Riparian Model Water Code declares the ‘waters of the State are owned by the State in trust for the public and subject to the State’s regulatory power to protect the public trust.’ 120 (2000) 9 SCC 572, 710.

132 Tony George Puthucherril Beck, Robert E. 2000. ‘The Regulated Riparian Model Water Code: Blueprint for Twenty First Century Water Management’, William and Mary Environmental Law and Policy Review, 25(1): 113. Birnie, Patricia and Alan Boyle. 2002. International Law and the Environment. New York: Oxford University Press. Broom, Herbert. 1993. Broom’s Legal Maxim. London: Sweet & Maxwell. Butler, Lynda L. 1990. ‘Environmental Water Rights: An Evolving Concept of Public Property’, Virginia Environmental Law Journal, 9(2): 323. Clark, Robert Emmet and Clyde O. Martz. 1967. ‘Classes of Water and Character of Water Rights and Uses’, in Robert Emmet Clark (ed.), Waters and Water Rights. Indianapolis: The Allen Smith Company. Dellapenna, Joseph W. 2004. ‘Adapting Riparian Rights to the Twenty-First Century’, West Virginia Law Review, 106(3): 539–61. Dhar, Aarti. 2003. ‘Chhattisgarh to Cancel Water Supply Contract’, The Hindu, 12 January, p. 13. Graumlich, Lisa. 2006. ‘Climate Change and Water: A Long-term Perspective’, Wyoming Law Review, 6(2): 347. Hardin, Garrett. 1968. ‘The Tragedy of the Commons’, Science, 162(3859): 1243. Huffman, James L. 1989. ‘A Fish out of Water: The Public Trust Doctrine in a Constitutional Democracy’, Environmental Law, 19(3): 527. Iyer, Ramaswamy R. 2000. ‘Water: Charting a Course For The Future’. Discussion Paper Prepared for the Planning Commission of India July–August 2000 available at http:// planningcommission.nic.in/reports/genrep/bkpap2020/7_bg2020.pdf ———. 2004. ‘Towards a Re-ordering of Water Law in India’, Indian Juridical Review, 1:18. Iyer, V.R. Krishna. 2002. ‘Exotic Soap Opera for Kerala’, The Hindu, 6 October, p. 5. ———. 2003. ‘Rivers, Sand and People’s Survival’, The Hindu, 23 January, p. 10. Jacob, Alice and S.N. Singh. 1972. Law Relating To Irrigation. New Delhi: Indian Law Institute. Jain, S.N. 1981. ‘Legal Aspects of Ground Water Management’, Journal of Indian Law Institute, 23, pp. 181, 183–84. Jayaram, Nityanand. 2003. ‘Water Resources Crisis Situation’, The Hindu, ‘Survey of the Environment’, pp. 75–82. Jowitt, Earl. 1959. The Dictionary of English Law. Volume 2. Kandaswamy, Deepa. 2004. ‘Water First’, The Hindu, 21 March. Kinyon, Stanley V. 1937. ‘What can a Riparian Proprietor Do?’, Minnesota Law Review, 21(5), pp. 512 and 517. Letcher, Gary. 1982. ‘Riparian Rights to Water Quality’, Seton Hall Legislative Journal, 6 (2): 339. Lord Halisham. 1997. Halsbury’s Laws of England, Vol. 49 issue 2. United Kingdom: Butterworths. Ministry of Water Resources, Government of India, http://wrmin.nic.in (last accessed on 10 March 2007). Montaigne, Fen. 2002. ‘Water Pressure’, National Geographic, September, p. 2. Moyle, J.B. (trans.). 1913. The Institutes of Justinian. Fifth Edition. Claredon Press: Oxford. Narasimhan, T.N. 2002. ‘Property Rights, Public Rights and a Finite Word’, The Hindu, 30 July, p. 16.

Riparianism in Indian Water Jurisprudence 133 Narayana, P.S. 1998. Law of Easements & Licenses. Third Edition. Hyderabad: Asia Law House. Puthucherril, Tony George and Lekshmi Vijayabalan. 2004a. ‘The Law of Water Rights in India’, Academy Law Review, 28: 73. Puthucherril, Tony George and Lekshmi Vijayabalan. 2004b. ‘If There is no Water let them Drink Bottled Mineral Water: Analyzing the Human Right to Water in the Milieu of Privatization’, Indian Juridical Review, pp. 91–110. Ramachandran, R. 2007. ‘The Heat is On’, Frontline, volume number 24, 24 February. Sainath, P. 2006. ‘Thirst for Profit’, Frontline, volume number 24, 8 April. Sax, Joseph L. 1970. ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’, Michigan Law Review, 68(3): 473–77. Sethi, Aman. 2006. ‘Sheonath’s Sorrow’, Frontline, 21 April, p. 10. Shiva, Vandana and Kunwar Jalees. 2003. ‘The Impact of the River Linking Project’, part of the Water Sovereignty Series no. 2: NFSTE/Navdanya: New Delhi. Singh, Chhatrapati. 1991. Water Rights and Principles of Water Resources Management. Bombay: N.M. Tripathi. ———. 1992. ‘Water Rights in India’, in Chhatrapati Singh (ed.), Water Law in India. New Delhi: Indian Law Institute. Singh, G.P. 2002. Ratanlal & Dhirajlal’s The Law of Torts. 24th edition. Nagpur: Wadhwa & Co. Singh, Kumar Suarabh, Harsh Kumar and Avinash Desai. 2004. ‘Redrawing India’s Geography: Interlinking Rivers’, Indian Juridical Review, 1: 130. Sinha, Sarbari. 2007. ‘Going Under’, Frontline, volume number 24, 13 January. Strantz, Nancy Jean. 1995. ‘Rights to Groundwater in North Dakota: Trends and Opportunities’, North Dakota Law Review, 71(3): 619. Swaminathan, M.S., N.C. Saxena, M.C. Chaturvedi, G. Mohan Gopal and Om Thanvi. 2001. Jal Swaraj. New Delhi: Centre for Science and Environment. United Nations Environment Programme. 2002. Global Environment Outlook 3, Past, Present and Future Perspectives. United Kingdom: Earthscan Publications. Vaidyanathan, A. 2004. ‘The Role of Law in Water Resources Management’, Indian Juridical Review, 1: 12. Vos, Wesley. 1951. ‘The Riparian Principle in South Africa and Other Countries’, The South African L. Journal, 68(2): 200. Weil, Samuel C. 1908–9. ‘Running Water’, Harvard Law Review, 22(3), pp. 190 and 213. Wolfe, Lawrence J. and Jennifer G. Hager. 1989. ‘Wyoming’s Groundwater Laws: Quantity and Quality Regulation’, Land & Water Law Review, 24(1): 39.

6

The Ownership of Water in Indian Laws Videh Upadhyay Who owns the water—the government/s or the people of the country? The question has been debated more and understood less, and this has meant that every time it is debated, it has generated more heat than light. The question generates heat not only because it is not well understood but also because the parties debating it—in this case the state and the civil society—tend to take rigid, extreme and polarised positions on the debate. The present chapter while seeking to provide some answers from a legal standpoint also aims at contributing to reversing the heat–light equation on the subject. While doing so it also implicitly suggests that little is achieved by taking polar positions on the subject. On the question of ownership of water in Indian laws, the chapter hopes to provide a close legal perspective within a historical context while showing that answering the question is perhaps more relevant today than ever before.

I

The Ownership Question and Premises of Colonial Legality State Use and Control over Water sans Ownership! In the history of human civilisation, water, like all other natural resources, was treated as an open access resource with free access for all and no notion of property rights over it. The fact that water cannot be a subject matter of property was as much a common understanding as it was a jural postulate in common law. Halsbury’s Laws of England and English cases have also

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historically attested to this understanding. An authoritative study in the Indian context also affirms that ‘it is this sort of jurisprudential understanding that underlie the earlier legislation in India, such as in the Limitation Acts (1859–71), the Northern India Canal and Drainage Act 1873, the Bengal Irrigation Act, 1876 and also the Specific Relief Act, I of 1877 (Sections 52–57).’1 The preamble of these legislations also reflected this understanding. It is instructive to note some examples. One of the early legislations in the area of water resource management in modern India was the North India Canal and Drainage Act 1873. The preamble to the Act says ‘[T]he Provincial Government is entitled to use and control for public purposes the water of all rivers and streams flowing in natural channels, and of all lakes and other natural collections of still water.’ Likewise, the Bombay Irrigation Act, 1879 lays down that ... whenever it appears expedient to the State Government that the water of any river or stream flowing in a natural channel, or any lake or any other natural collection of still water, should be applied or used by the state government … the State Government may, by notification declare that the said water will be so applied (Section 5).2

These Acts, without talking about ownership, asserted the right of the State to use and control water. They also show that any conclusion on the state ownership of water at this time was simplistic and perhaps a case of legal over-reach. It is also useful to note that around the same time, that is, within 10 years of the coming into force of the aforementioned legislations—the North India Canal and Drainage Act 1873, The Bengal Irrigation Act 1876 and the Bombay Irrigation Act, 1879—the natural riparian right to water also found a statutory footing under the Indian Easements Act 1882. The notion of ‘riparian rights’ (arising out of the ownership of the land) over water resources came to be recognised by the 1882 Act. The main principle of the notion is that a riparian owner has a natural right to use the water of the stream which flows past his land equally with other riparian owners and also has the right to have the water come to him undiminished in flow, quantity or quality and to go beyond his land without obstruction.3

1

See Singh, Water Law and Policy in India, p. 26. The Bengal Irrigation Act 1876 was also similarly worded. 3 While laying down the exclusive right of the owner of an immovable property to enjoy his property, the Indian Easements Act 1882 explains through illustration (j) appended to Section 7 that this would include: 2

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Besides, the Easement Act also legitimised the customary rights of the people and provided two rules for their recognition: by long use or prescription (Section 15) and by local customs (Section 18). However under the 1882 Act all these rights are subject to the overriding provision of ‘… any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing, collected retained or distributed in or by any channel.’ One of the first cases that examined these provisions was Fischer v. Secretary of State, which discussed the rights of the government over natural sources of waters against those of the riparian owners. The court ruled that the government had the power to regulate, in public interest, the collection, retention and distribution of water of rivers and streams flowing in natural channels or in manually constructed works, provided that they do not thereby inflict injury on any other riparian owner and diminish the supply that they have traditionally utilised.

Renewed State Interest in Asserting Proprietary Rights over Water Amongst all these laws in the second half of the nineteenth century, it was noticeable that state ownership was not emphasised. However, the new twentieth century witnessed an almost dramatic interest and intent of the state in asserting proprietary rights over water. A closer look at the Rules and Regulations in the hills of Uttar Pradesh (present-day Uttarakhand) in the first half of the twentieth century shows how State proprietary rights over water came to be asserted. Developments in the region also show that the land settlements and the rights of the people arising from it have had a direct impact on the shaping of water rights historically. Under the Nayabad and Wasteland Grant Rules 1884 as more and more grants of wastelands were given, the ‘Benap’(unmeasured) land was converted to ‘Nap’ (measured), and the British apprehended that this process would automatically lead to the destruction of any rights of the government over water. This led the government to affirm its proprietary rights over water, The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purpose and watering its cattle and sheep: and the right of every such owner to use and consume the water for irrigating such land, and for the purpose of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners.

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which they did through the Kumaon Water Rules 1917 by laying down that ‘The beds and water of all rivers and natural streams and all lakes, natural ponds, and other collection of still water within the hill tracts of the Kumaon division are the property and subject to the control of the state.’4 These Rules also made clear that no water mill or irrigation channel shall be constructed or worked without the sanction of the Collector.5 The Kumaon Water Rules of 1930 modified the 1917 Rules and, importantly, the first of these Rules laid down that government will have no objection to the construction of new irrigation channels by any landholder but such channels must not reduce or otherwise be injurious to an existing right of the user of water belonging to any other party. It may also be mentioned in this context that the British government did not develop irrigation systems in the hills of present-day Uttarakhand, and thus, not surprisingly, an authoritative report pointed out in 1874 that ‘there are many parts of the district where land might be irrigated but in consequence of want of unanimity and the inability of anyone to advance the money nothing is done’.6 In fact, the development of irrigation was left to the cultivators and not considered a responsibility of the government.7 This also makes it obvious that irrigation and individual farmer rights and their formal recognition in the British period were not an area of any concern. In sharp contrast to this, as seen above, there arose a need to formally declare state property right over water and irrigation sources, and the Kumaon Water Rules 1917 and the 1930 Rules were testimony to that. It is understandable— though hardly justifiable—that developing the specific rights of people in a local context was tougher for the British India government than asserting sweeping rights for the government across the State! A similar assertion of State ownership of water in the first half of the twentieth century was found in other legislations too. The Madhya Pradesh Irrigation Act, 1931 also enacted around the time of the Kumaon Water Rules explicitly laid down that ‘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 ....’ In the same vein, the Bihar Irrigation Act vested ‘[A]ll rights in the water of any river, natural stream or natural drainage

4

Note to Rule 1 Kumon Water Rules 1917. Further, the Rules said that when the construction and working of a water mill is sanctioned, the collector shall assess it for such rent as he may think fit. 6 J.O.B. Beckett, Report of the Settlement of the Kumaon District, 1874. 7 See Centre for Science and Environment (CSE), Dying Wisdom. 5

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channel, natural lake or other natural collection of water’ in the state, and added that similarly every irrigation work shall also vest in the state.8

States’ Sovereign, Non-proprietary Right over Water The declaration by the State that rivers and water bodies ‘are the property and subject to the control of the state’ does not, however, make the State the absolute owner of water. The nature of the proprietary interest of the State was made clear by some significant judgements around the same time. Court judgements before independence also establish that the rights exercised by the States over waters are in fact not proprietary in nature but sovereign in character. In the most well-known and clear judicial pronouncement in the colonial era by the Madras High Court settling the nature of the state interest in water, the court held that ‘the right of the government to control the supply and distribution of irrigation water is not a proprietary but a sovereign right’, while adding in the context of the facts of the case that ‘a right by prescription can be acquired as against the proprietary right of another but not as against the sovereign right which under the Indian law the state possesses to regulate the supply of water in public streams so as to utilize it to the best advantage’ (Secretary of State v. Nageswara Iyer).9 In another case where it was contended that ‘in common law where a river was non-tidal, though navigable, its bed belonged to the riparian proprietor’, the argument was rejected and it was held that the bed of a navigable river in any part of India, whether tidal or not, is vested in the government unless it has been granted to private individuals.10 Cases in this era itself also showed that in spite of the position that the government’s right to regulate irrigation in natural waters was paramount and sovereign in character, the same could not be exercised arbitrarily. This right was subject to the riparian’s right to get the quantity of water to which he is entitled by custom. Besides, the right of the government to regulate the distribution of the water of a tank could be exercised in such a way as not to violate the proprietary rights of others (Secretary of State v. Palaniyappa Pillai).11 The paramount right of the government to regulate irrigation is 8

See Section 3 and Section 4 of the Bihar Irrigation Act. AIR (1936) Mad. 923 at Page 926. 10 Maharaja of Pittapuram v. Province of Madras AIR 1909 Privy Council 3. The case was cited with approval in Raja Srinath Roy And Others v. Dinabandhu And Others AIR 1914 Privy Council 48. 11 41 Indian Cases 24 (1917). 9

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subject to the rule that ‘in the process of such control and regulation, the government should not inflict injury on other riparian owners or diminish the supply which the irrigators have hitherto utilized’ (Robert v. Secretary of State).12 The government’s right, thus, did not include the power to disturb the existing arrangements to the prejudice of any tenant during the continuance of tenancy (Ramachandra v. Narayanasami).13 On these principles, in a case where a dam had been in existence across a river for more than 280 years and all through the years two villages had received an equal supply of water from separate sluices in the dam, the action of the government (in deciding that one village required less water than the other and thus reducing the size of the sluice supplying water to the former) was held not to have the power arbitrarily to curtail or interfere with the rights of irrigators to the enjoyment of water (Collector of Nasik v. Shamjim).14 This brief review shows that while there was a definite assertion of State proprietary rights over water, it still did not amount to making the government of the day an owner of water and water sources, and there was no explicit formulation subjecting customary rights to, and by, statutory law. The State’s assertion of its rights over water, however, continued following independence thereby making clear that it is not correct to see the phenomena only as part of the scheme of things peculiar with the colonial administration.

II

The Ownership Question Post-independence and Its Present Relevance A Closer Look at Developments at the State Level: The Case of Uttarakhand For a closer examination of the legal regime on water rights as it began shaping soon after independence, it is useful to pick up the thread and proceed 12

2 Indian Cases 325 (1909). See Ramachandra v. Narayanasami I.L.R. (1893) 16 Mad. 333 and Krishna Ayyar v. Venkatachala Mudali 7 M.H.C.R. 60. Further, it has also been observed that the government cannot abdicate its duty of seeing to the equitable distribution of the supply of water between the ryotwari tenants under each channel source. See Madras v. Muhammed Ghani AIR 1959 Mad. 464. 14 Indian Law Reports (1883) 7 Bombay 209. 13

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further with our brief historical overview of what happened in the Kumaon through legal Rules prior to independence. To begin with, the enactment of the Kumaon and Uttarakhand Zamindari Abolition Act 1950 in the State confirmed that ownership of a private well, that is, a pond—naula or nauli—vested in the owner of the land on which it was located. Rules framed under the Act established this by giving the right of transfer of the pond to the owner of the land, ‘who will not be liable to be ejected and shall have the right to use the (site of the pond) for any purpose’. This was clear vesting of water rights for the landowners and in respect of water sources and water bodies falling within their lands. The Rules also made clear that ‘tanks, ponds ferries, water channels belonging to the State shall be managed by the Gram Sabha or any other local authority’. Thus the Act affirmed the ownership of a water source within one’s land and also provided modalities for managing any state-owned water channel or pond through local authority.15 It was the Kumaon and Garhwal Water (Collection, Retention and Distribution) Act 1975 that sought to redefine the water law framework for the State. The Act was passed to regulate and control in public interest the water resources in the mountain tracts of the Kumaon and Garhwal divisions, and for this purpose it ‘empowered the State government to regulate and control, by rules under the Act, the collection, retention and distribution of water and water resources’. While doing so, the Act also quite astonishingly declared that ‘all the existing rights (whether customary or otherwise and whether vested in any individual or in village communities) of use of water, if any in the areas to which this Act extends, shall stand abolished’.16 The very next section of the Act then empowers the State Government to regulate and control water and water resources and then—more as a sop than anything else—adds that while exercising its powers, the State Government will ‘give preference to the persons or village communities whose rights in respect of water have been abolished’ under the previous section.17 The two sections under the Act provide a classic example of how a right can be easily converted into a concession under the discretion of the State Government.18 15

For a useful discussion on these aspects, see CSE, Dying Wisdom. Section 3 of the Kumaon and Garhwal Water (Collection, Retention and Distribution) Act 1975. 17 Section 4 of the Kumaon and Garhwal Water (Collection, Retention and Distribution) Act 1975. It would be interesting to see whether the State Government has really accorded any preference to ‘people with abolished rights’ or not. 18 It may also be added here that the section abolishing all existing rights as of a specified date is arbitrary and draconian, and deserves to be taken off the statute books. There are very good reasons in water jurisprudence that would suggest why the section is bad in law. Even over a 16

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Another remarkable aspect of the Kumaon and Garhwal Water (Collection, Retention and Distribution) Act 1975 is that despite a specific requirement of regulation of water and water resources by the State ‘by rules under the Act’, it is remarkable that no Rules have been made under the Act for over three decades now. It is worth noting that the objective of the 1975 Act was to ‘regulate and control in the public interest the water resources … in order to ensure a rational distribution of water for the purpose of human and animal consumption, irrigation and industrial development’.19 However in the absence of Rules and operative provisions under the present Act the ‘rational distribution’, including appropriate, even inter-sectoral allocation of water that the preamble of the Act suggested is just not possible to achieve. The fact that no Rules have been made under the Act explains that the operative regime coming out of the principle laid down by the Act is not in place. That would also suggest that the conflict (arising from the abolition of existing rights, as discussed earlier) that exists in the law books has not yet been reflected on the ground. That also partly explains why an unprecedented and sweeping provision abolishing ‘all the existing rights, whether customary or otherwise and whether vested in any individual or in village communities, of use of water’ has not been tested in the higher courts. The result is that as things stand today, the Act in the statute books represents the single biggest statement of power from the State as to who controls the water and the water sources. Similar ‘power statements’ can be seen in statutes on water in many States. Take for example the Bihar Irrigation Act, 1997 that vests ‘all rights in the water of any river, natural stream or natural drainage channel, natural lake or other natural collection of water’ in the State Government.20 In a similar vein, a draft State Water Policy has also recently declared that The ownership of water does not vest in an individual but in the State.’

The Present Relevance of the Ownership Question Is the continuance of provisions like ‘the ownership of water does not vest in an individual but in the State’ in the statute books and policy papers a century and quarter ago, The Indian Easements Act 1882 legitimised customary rights of the people and provided two rules for their recognition: by long use or prescription (Section 15), and by local customs (Section 18). 19 As per the Preamble of the Act. 20 Section 3 of the Act.

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cause of concern? Both the validity and the use of such declarations in Acts and in policy statements today deserve some serious thought. Locating Ownership in a Protest Movement To ascertain the present relevance of the ownership question in water and to locate it in a live practical context, let us take note of an incident that occurred recently. In the first week of November 2007, thousands of farmers breached security and stormed the prohibited area of the Hirakud dam in Orissa, protesting against the indiscriminate allocation of water to industries.21 A leader of the farmers in the agitation proclaimed that ‘People of western Orissa are the real owner of the Hirakud dam and its water.’ Hence, the government and the Chief Minister in particular must consult them first, before taking any decision as to the use of Hirakud water. In fact, farmers of the region have been on the warpath ever since mega industries had signed MoUs with the State Government and many of them were to source their water requirement from the Hirakud reservoir. Farmers were apprehensive that irrigation in the entire command area of the Hirakud would be affected. The assertion in the agitation that ‘People of western Orissa are the real owner of the Hirakud dam waters’ suggests that the question of ownership is not an abstract enquiry and in fact, it is very much at the centre of all water movements and protests across the country. The big question arising from the protest, especially for the purposes of this chapter, is: What is the legal case for the assertions by the protesting farmers, given the state of statutory regime today? As per the Orissa Irrigation Act, 1959, the impounded dam waters are a ‘government water source’, and ‘is the property of the Government’. The Act further empowers the State Government to regulate the use, diversion, collection or consumption of water from a government water source for industrial and commercial purposes in public interest. The regulation is done by a licensing regime wherein industries are required to procure a licence which may be given on the basis of terms and conditions to be decided by the State Government. The ultimate use of water by the industry is then formalised by an Agreement. Given the legal framework that sees dam waters as ‘government water source’ and ‘the property of the government’ under the Orissa Irrigation Act, 21 Police resorted to lathi charge in a bid to disperse the agitated farmers. The historic gathering of thousands of farmers denounced the Naveen Patnaik government as a pani chor government, for robbing water meant for farms and allegedly giving the same to industrial houses which were filling the ruling party coffers. See Statesman News Service, ‘Clash Takes Place over Water Rights’.

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how then can the assertion that ‘People of western Orissa are the real owner of the Hirakud dam waters’ be sustained in law? The question may be important for the purposes of this chapter, but perhaps was not so significant to those thousands of farmers who were more concerned with making a point—and not necessarily a point in law! If questions in law and jurisprudence are never seriously raised in popular movements and protests, they are equally (if not more so) ignored by the governments of the day. This is perhaps because raising the ownership question and investigating the state rights vis-à-vis the rights of the people in water means questioning entrenched beliefs, vested interests and altering power equations. This understanding strengthens the tendency of not invoking such questions or addressing them head on.22 As a way ahead, one needs to perhaps see that the debate need not be as polarised as it is often made out to be. Just as people want water and not a mere right to water, people need to have the confidence and trust that they have access to water and that it is being used for their own greater common good. The regulatory framework needs to take care of this requirement. Given the existing legal regimes, such a framework can still be built on the grant of full user rights to the people over water and to the State, enabling it ‘to regulate water and water sources in public interest’. This needs to be tempered with the realisation that such a power of the State arises not because it owns water but because it holds the water and water sources in ‘public trust’.23 In the context of the conflict over the Hirakud Dam waters, if the State Government internalises that it is a trustee of water resources in the State, it would be easy for it to use the space created by the licensing regime and the Agreement for the drawing of water under the Irrigation Act to ensure that (a) any abstraction of water by any industry does not affect the rights of the riparian owners and that (b) such use is not at the expense of the water needs for irrigation by the farmers. If only the State Government can ensure this the assertion elsewhere in the Act that the dam waters are the ‘the property of the government’ would not matter much and would surely not hurt the farmers.

22 The author feels that the ownership question in water has never been seriously addressed by policymakers and jurists despite the continuing claims and counter-claims on the part of the State and the people. 23 It is useful to mention here that the Supreme Court of India also adopted the ‘Public Trust doctrine’ in relation to natural resources through a landmark verdict in 1997. See M.C. Mehta v. Kamal Nath (1997) 1 SCC 388.

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Locating Ownership in State-Induced Water Management Initiatives From the foregoing discussion of the ownership question in the context of a farmers’ protest movement, one is tempted to conclude that a well-defined user rights regime is perhaps needed more than claims over ownership, and, given the fact that the ownership question invariably polarises the state and the civil society, ownership rights over water are best not claimed either by the state or by any individual. However, notwithstanding the temptation, the author feels that there is merit in raising the ownership question, and its relevance can be immediately appreciated even on a cursory look at the major state-induced water management initiatives in recent years. Consider the recently introduced National Project for Repair, Renovation and Restoration of Water Bodies Directly Linked to Agriculture. 24 The scheme has been prepared to take up pilot projects in States for implementation by State Governments, for which the funds will be released by the Centre.25 A clear focus of the project is the revival of traditional water bodies. How will the Uttarakhand government respond to the scheme, given the state of the legal regime discussed earlier? If the State Government is really serious about reviving traditional water bodies, can it continue to work under a legal regime that fails to recognise the customary water rights that were prevalent around them? How can the project be taken to the ground in Uttarakhand when a State-wide legislation proclaims that ‘all the existing rights (whether customary or otherwise and whether vested in any individual or in village communities) of use of water, if any in the areas to which this Act extends, shall stand abolished’? Even apart from the national project, the new and emerging policy vision of the State suggests that there would be an effort to revive traditional water resources.26 Such a revival clearly deserves an enabling legal frame not a hindering one. There has been an increasing emphasis on making water management in India people-oriented and demand driven in recent times through a series of State-induced initiatives but in all of these the issue of ownership

24 See Guidelines on National Project for Repair, Renovation and Restoration of Water Bodies Directly Linked to Agriculture, Ministry of Water Resources, Government of India, April 2005. 25 Criteria and issues to be considered by the State for accessing resources under the scheme can be seen in the guidelines that have been finalised by the Centre. 26 This was a finding of a recent review by the author on the present and emerging water management initiatives taken by the State Government. The review was supported by the Dehradoon-based People’s Science Institute.

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of water has really not come to the fore. More particularly, as part of the devolution of powers of water management over the last two decades in areas of rural water supply, watershed management and in Participatory Irrigation Management there have been significant new projects across States in India. The institutional design under the project has been facilitated and mandated by the 73rd Constitutional Amendment, which provides for the decentralisation and devolution of powers to rural local bodies—the Panchayati Raj Institutions—including on drinking water, watershed development, minor irrigation, and health and hygiene in the communities. Apart from this, there have been special provisions made for the Schedule V areas (predominantly tribal areas) under the Provisions of Panchayats (Extension to Schedule Areas) Act, 1996 (PESA), wherein Gram Sabhas and ‘Panchayats at appropriate level’ have been given special powers in respect of minor water bodies. While in principle most agree that it is critical for the village people to have a sense of ownership also in the local water bodies if realistic efforts are to be made to revive and maintain them, it is worth noting that PESA only talks about planning and management of Minor Water Bodies by the Panchayats and not their ownership! Some States seem to be vesting ownership of the water bodies in the Panchayats, but even here the provisions tend to take away more from the people than what they seek to give them. Take the example of the Jharkhand Panchayat Raj Act, 2001. The Act apparently goes beyond the mandate of PESA in vesting the right of ownership over minor water bodies with Panchayat Samitis and Zila Parishads in scheduled areas. However, it is left to the State Government to prescribe the area within which this right can be exercised. The Act thus talks about ‘planning, management and ownership of minor water bodies located within the area as prescribed by the State’. The Act also adds that the powers of the Panchayats in both (scheduled and non-scheduled areas) shall not affect the existing Acts and Rules framed by the present government, which incidentally include vesting ‘all rights in the water of any river, natural stream or natural drainage channel, natural lake or other natural collection of water’ in the State Government!27 Take another example from recent initiatives in water management. When it comes to Participatory Irrigation Management (PIM), there are specific laws being enacted one after another in many States in India, seeking to empower ‘Farmers Organisations’ as Water User Associations (WUAs).28 These 27

See Section 3 of the Jharkhand Irrigation Act, 1997. PIM refers to the programmes that seek to increase farmers’ direct involvement in system management, either as a complement to or as a substitute for the State role. PIM has been viewed, interestingly, as the result of the convergence of a number of global policy trends 28

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WUAs are the legally backed institutional foundations of PIM all across the country.29 However, it has been rightly observed that a striking aspect of India’s PIM programme is the scant attention that is given to water rights. This has meant that the government’s rights to water are unchallenged while its obligations to deliver water to WUAs are rarely legally binding.30 The point is more strongly put in a historical context. Notably, medieval inscriptions of south India have revealed various functions relating to irrigation, which were exercised by the village assemblies. These included the ownership of water resources, powers to arrange for the construction, repair and maintenance of tanks, powers regarding land transactions relating to irrigation, levy and collection of cess, powers to engage and remunerate local functionaries, maintenance of records, disputes settlement and relations with the Central Government.31 The range of power with the village assemblies at that time is in sharp contrast with the restrictive functions, generally including only water distribution, management and local monitoring that have been vested with the WUAs under the new State laws.32 To be fair, some State Rules under the legislations establishing WUAs do mention the ‘Right (of WUAs) to receive water in bulk from the irrigation department for distribution among the water users on agreed terms of equity and social justice’.33 Even these Rules do not state clearly what remedies are available to the WUAs if the right to receive water in bulk from the irrigation department is not honoured. In other words, whilst there is a generally worded right, no departmental accountability for that has been established through this provision. In addition, under the Rules there are many so-called rights that are in fact only management and planning functions and are not rights in the strict sense of the term. Besides, merely stating that these rights exist

including decentralisation, privatisation, participation and democratisation. For an elaboration on this point as well as other useful essays on PIM, see Joshi (ed.), Participatory Irrigation Management. 29 The formation of these associations is now generally seen as the most effective strategy for ensuring farmer/users’ participation in the management of water for irrigated agriculture. 30 Mosse, The Rule of Water: The author adds: The result (of this position on rights) has been that the government may have lost little control over irrigation resources, and arguably, in establishing registered WUAs has retained its rights and also acquired a new mechanism to extend its influence in rural society. 31 For more details on the relevant history in this regard see CSE, Dying Wisdom. 32 See Mosse, The Rule of Water. 33 See for example, The Andhra Pradesh Farmers’ Management of Irrigation Systems Rules, 2003 and the Chhattisgarh Sinchai Prabandhan Me Krishkon Ki Bhagidari Niyam, 2006.

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will not be enough if the irrigations systems are not properly rehabilitated to be in a condition to maintain the minimum water flow. Many of the WUAs today are paper entities because this minimum condition necessary for their existence is just not there.34 If questions like who owns the water, what are the water entitlements of the people, what rights are enforceable against the line departments and what rights can bring water and not merely a right to the people are to occupy central space in the water discourse in the country, the debate around water resources and natural resources generally, will have to move beyond simple managerial concerns. The need for a right-based approach to the access, use and conservation of water resources is perhaps the most important corrective needed in the entire discourse on water management today. In the absence of this corrective, what the village groups at the local level are likely to have by way of PIM, rural water supply initiatives, watershed management, etc., is mere transfer of responsibility, with the ‘burden’ of managing resources and implementing decisions taken elsewhere. The legal regime needs to respond to a growing feeling that without a sense of ownership, villagers, including farmers, will not participate in the maintenance of the structures. This ‘sense of ownership’ should not be an illusion but should be grounded on people’s right to water and their ownership over local water harvesting structures. Going beyond the local context to water in general, and assuming that States can continue to exercise control and regulation in the true spirit of a public trustee, it may not be a bad idea for the water laws to start declaring that water ‘belongs to the public’ or ‘is the property of the people of the State’. Such declarations can create just the right atmosphere to remove the polarity of positions that is always there in the water debates in the country and pave the way for ushering in reforms that will be owned and driven by the people for whom they are made.

References Centre for Science and Environment (CSE). 1997. Dying Wisdom. New Delhi: CSE. Joshi, Hooja Rakesh (ed.). 2000. Participatory Irrigation Management: New Paradigms for the 21st Century. New Delhi: Rawat Publications.

34 The point is that without assessing the water resource and ascertaining its availability, assigning water rights is the last thing that will improve irrigation management in the country. For more arguments on the rights of WUA in the context of PIM in India, see Upadhyay, ‘A Rights Based Approach to Water User Associations in India’.

148 Videh Upadhyay Mosse, David. 2003. The Rule of Water: Statecraft, Ecology, and Collective Action in South India. New Delhi: Oxford University Press. Singh, Chhatrapati. 1990. Water Law and Policy in India. New Delhi: Indian Law Institute. Statesman News Service. 2007. ‘Clash Takes Place over Water Rights’, Sambalpur, 6 November. Upadhyay, Videh. 2007. ‘A Rights Based Approach to Water User Associations in India’, Paper presented at the Conference of International Environmental Law Research Centre (IELRC), New Delhi.

7

The Human Right to Water: Policies and Rights Upendra Baxi

The Will to Rights The second half of the twentieth century ce has been held as heralding the new ‘Age of Human Rights’.1 Among the many good reasons that justify this description, at least two remain eminently worthy of specific mention in any serious consideration of the human right to water (hereafter referred to by a workmanlike though not elegant acronym: HRTW). One, HRTW manifests the increasing tendency to translate basic human needs into fundamental human rights in ways that define the new ‘Age of Human Rights’; and two, the emergence of a ‘Will to Rights’,2 signifying the power of the voices of human and social suffering and struggle to name and pursue the daring enunciation of new human rights previously unimagined worldwide. In this new era, no longer suffice any abstract, grandiose articulations of the inherent human right to life with dignity. Nor suffice any longer the finely honed distinctions between civil and political rights (CPR) and economic, social and cultural rights (ESCR). Rather, at stake remain developments that in many further ways translate the right to life with dignity into so many component human rights values, norms and standards. No more do the rights define the needs but rather needs shape rights. The astonishing proliferation of human rights norms and standards owes a great deal to the Will to Rights,

1 See Baxi, The Future of Human Rights, Ch. 1. This work will hereafter be referred to as Future. 2 To invert here Frederich Nietzsche’s famous phrase.

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a faculty that unceasingly develops the notion that for almost every felt and articulated human need there ought to be in place congeries of human rights norms and standards. The Will to Rights constantly subverts some old paradigms of rights distinguishing ‘negative’ from ‘positive’ rights. The distinction roughly amounts to this: ‘Negative rights ban and exclude government; positive ones invite and demand government. … Negative rights typically protect liberty; positive rights typically promote equality. The former shield a private realm; whereas the latter reallocate the tax dollars.’3 As the authors of this quote have fully demonstrated, this distinction is misleading at least in the sense that the provision, protection and promotion of the CPR also entail considerable state exertion and public expenditure. The Will to Rights suggests moreover ways of overcoming the posited conflict between ‘liberty’ and ‘equality’. Neither human rights nor social values may meaningfully flourish in the absence of access to requisite drinking water, nutrition and health. And as Amartya Sen has demonstrated, ‘liberty’ rights (CPR) remain necessary in the pursuit of survival and well-being rights (ESCR).4 Put another way, any translation of human needs into human rights requires an understanding of the fact that rights that may be said to correspond to non-material needs (freedom of speech and expression or to religious belief and practice, for example) and to material needs (such as access to food, clothing, water and shelter) are far from being polar opposites; indeed, they complement each other. The Will to Rights articulates discontent with both the liberal and socialist approaches to human rights. It thus resists justifications for the ordered suspension of CPR, ostensibly directed towards the fulfilment of some ESCR. At the same moment, while recognising the need to set some limits on state power, it also insists on re-empowering the state, in ways that orient state conduct towards the fulfilment of the ESCR. All this is not merely an affair of analytic or normative theory; rather, it calls for a ‘fine balance’ (provocatively to invoke Rohinton Mistry’s epic novel)5 between immediately felt existential human needs (EHN) translated as human rights and the regimes of variously identified developmental human needs (DHN) cultivating the high art of addressing human futures via the medium of human rights-oriented constitutions, laws and public policies. Put another way, DHN address some imagined future orders of satisfactions of human needs/rights. The ongoing 3

Holmes and Sunstein, The Cost of Rights, p. 1. Sen, Development as Freedom. 5 Mistry, A Fine Balance. 4

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HRTW talk/discourse at least suggests the enormity of this balancing. We may, incidentally here, note that both EHN and DHN put together collapse the conventional distinctions between ‘rights’ and ‘needs’ to the point of an emergence of a new configuration, which is perhaps best summated by the expression ‘human rights needs’ (HRN). Conscientious HRN-oriented constitutionalisms and governance modes remain constantly afflicted by the legitimacy (here signifying the overall societal acceptance) of the distinctions between EHN and DHN. Water policy/rights regimes remain crisis-ridden in so far as these seek to mediate the EHN of the worst-off peoples via conceptualisations of ‘water’ as a developmental resource often trading off, and even trading away, the existential water needs/rights of actually here and now existing humans. How may our HRTW talk ever fully and satisfactorily address this inherent tension, further complicated of course by the distinction between access to ‘water’ and ‘water-based’ resources? How far do the state and the law accept the social responsibility of water management, and how far may this be further entrusted to the ‘free’ play of market forces, no matter how cluttered with state regulatory agencies? It is in this context that one more fully appreciates, in the contemporary economic globalisation conjuncture, Karl Marx’s insight: what distinguishes the capitalist mode of production is not so much generalised commodity production but the continual production of desire. The desires thus produced by market forces may not correspond with our actual needs, wants, or interests; however, what may count as being in one’s rational interest is best decided by the play of market forces, within which alone may flourish bourgeois notions of freedom, the ability of an individual to pursue his/her chosen life-projects without state intervention. Thus in globalising economies, the very notion of being and remaining human stands transformed by access to purchasing power for conspicuous consumption. How may then HRN ‘water’ governance proceed to differentiate the orders of EHN from the market-driven orders of DHN? The tendency to convert human needs into human rights in effect achieves some different, and even seemingly contradictory, results. On the one hand, it seeks to narrow the scope of difference between human rightsbased and human rights-neutral methods, techniques and the realms of governance. On the other, it expands the realm of human rights-neutral realms of governance if only because the identification of needs and ways of meeting these constantly generate technocratic public policy discourse. Thus, for example, the human right to food becomes conceptualised in terms of a human right to the integrity of food security systems; the human right to health in terms of access to adequate healthcare policies and HRTW

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translates itself into complex regimes of water security. On these registers, human rights themselves become instruments of policy rather than shaping their contours or marking their limits.

Ten Thematics Concerning the HRTW Noting all this fully, I suggest that any serious-minded HRTW grasp entails at least the pertinence of 10 distinct but related thematics. First, the nascent HRTW begins its itinerary in the era of contemporary economic globalisation in which, among other things, the state ceases to be a primary and direct service provider and transfers the decision-making power to aggregations of technoscientific capital. This means, put starkly here, that the ‘new’ water policy regimes stand framed by neoliberal stances in which (and not only) the Indian state sheds its constitutional obligations to its peoples under a development paradigm in which its principal role is construed as fully promoting multinational privatisation of water resources as the best possible move ahead to serve the promises of HRTW. The jury remains out, as it were, on this abdication of the Indian state’s constitutional obligation. Further, no sensible discussion and analysis of this enterprise may further ignore the geographies of injustice; by this I signify the national policymaking modes that severely penalise insurgency-affected areas, which are now fully aggravated—and not just in India—by the timespaces of conflict in severely divided societies and by the two ‘terror’ wars—the wars of, and on, ‘terror’.6 It is obvious that this chapter may not cover this conflicted terrain; all that I may hope to achieve here is to explore some aspects of HRTW within this zodiac of concerns. No doubt, the new paradigm of trade-related, marketfriendly human rights7 adversely impacts all social, economic and cultural rights, but, I believe, it affects HRTW the most. Second, we need to engage the authoritative source of HRTW and the normative principles underlying its enunciation. Here the big issue of course is whether HRTW flows from any ‘natural rights’ tradition or whether it emanates only from recognition or enshrinement in a treaty, declaration, constitution, legislation, or norms produced by judicial activism (in sum, human rights instruments). If the former, much theoretical labour is necessary concerning the elucidation of non Euro-American natural law traditions in 6 7

Concerning this last, see Baxi, Human Rights in a Posthuman World, Ch. 5. As I describe this in Future, chapters 8 and 9.

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relation to HRTW;8 if the latter, we need not fully grasp why the explicit recognition of the HRTW in human rights instruments remains both recent and episodic. Understandably, those who in various ways struggle for both enunciation and realisation of HRTW assert the importance of human rights in ethical rather than juridical languages. But the ethical is never entirely distanced from the juridical because HRTW also remains identified as an integral component of the right to life, enshrined in human rights instruments. Third, and related, remains the issue of the normative outsourcing of HRTW. By this I mean that it stands in the main as elaborated in transnational/international human rights instruments (for example, the Dublin Principles, the UN Human Rights Treaty Bodies, and by other instruments such as the Millennial Development Goals and its programme of action that continues to redefine this). Constitutions, legislations and activist adjudication, as a consequence, seem to provide only secondary sources for the development of HRTW. To be sure, outsourcing (that is, transferring the burdens and labours of the production of human rights norms and standards) the development of HRTW does not have the odious flavour associated with the unfair global labour market practices. In fact, it is considered eminently desirable as providing normative/movement resources for the further translation of HRTW enunciations into constitutions, legislations and the practices of judicial activism, the latter marking collaboration (howsoever uneasy and all too often fragile) between activist judicial actors and human rights and social movement actors. Fourth, however, this sort of outsourcing begins to become problematic when it obscures from view, partially or even entirely, the specific and distinctive narratives of peoples in struggle and communities in resistance. As concerns the Indian experience, it should suffice here to mention as examples the Chipko/Appiko and the Bishnoi movements, and the great saga of the Narmada Bachao Andolan. The question stands thus posed: what is gained as well as lost here? I revert briefly later to this question. Fifth, and in terms of matters of detail that are often triumphant over the declarations of principles, the question surely arises: How may we relate the contents or specific components of HRTW autonomous from, and also as related with, other human rights norms and standards? Does it at all suffice to relegate HRTW to human rights to life and dignified livelihood? What specific elements to HRTW get lost in the translation into a generalised insistence on the human right to life? How may we then carve out more specific 8

See Singh, Water Rights and the Principles of Water Resources Management.

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niches for the autonomous existence of HRTW? Much here depends on how one may proceed to do so. Clearly, desertification, deforestation, flood control management, urban and rural sanitation and hygiene programmes, construction of mega-irrigation projects, management of fisheries and marine resources, for example, all have simultaneous implications for human right to life in the broadest possible sense, as well as in more specific contextual understandings of other related regimes of human rights such as the human right to health, food, dignified access to means of livelihood, women’s rights, and the human rights of indigenous peoples/populations and peoples living with disability. The question then arises: What may be ‘gained’ as well as ‘lost’ by addressing HRTW as a specific congeries? This question demands more attention than the space of this chapter allows. Sixth, all these considerations situate HRTW in the specific context of governance. We hear a good deal, and for good reasons, about water governance practices and policies. These have, as is well-known, some extraterritorial dimensions involving foreign relations with other States, and there exists a whole regime of international law ‘governing’ it. The question here concerns the sharing of water resources among the riparian States, outside treaties of cession of Indian Territory and the rather distinctive Indus Water Treaty regime. The executive of the day possesses vast powers to deal with this arena. If so, what possible contribution may the Indian approaches to HRTW make to this domain? Compared with the recent political furore about the 123 India–US Nuclear Agreement, no similar articulation of people’s HRTW exists in this domain. Is this necessarily a good, HRTWfriendly state of affairs? Seventh, water governance in relation to HRTW also entails consideration of the principle and detail of the evolving and emergent patterns of Indian federalism. As far as I know, the constitutional mechanisms for handling inter-State river disputes afford little room for play for HRTW considerations, outside some grudging and constitutionally insincere gestures towards ‘rehabilitation’ and ‘resettlement’ of the citizens—the project-affected individuals and families. In particular because large irrigation projects have a long gestation life, entire communities are blighted for long years as public investment (schools, healthcare facilities, roads and infrastructure development) in the notified project development areas dramatically declines and this is rarely factored into rehabilitation and resettlement awards. I desist from further elaboration on related aspects, which instead of putting the Constitution to work actually puts human rights provisions to an eternal sleep! Eighth, much of the Indian HRTW discourse (theory and movement) remains pre-eminently water governance/policy-oriented. The question

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thus raised is: Is HRTW primarily to be understood as a collective human right of peoples to the enunciation of a just national water policy? If so, what transformations in governance structures and styles may be further required? Further, how may we evaluate the ‘justice’ of such a policy outside human rights considerations? It is notorious that major development projects or national policies speak of justice across generations (for example, in the spheres of energy, water, related sustainable development, nuclear and now climate change policies). What violations/infringements of HRTW ought the present generation of the worst-off Indian humans be asked to bear in order to secure an uncertain ‘better future’ for their successors? Ninth, this brings us to the all-important question concerning the difficult distinction between the actually existing human rights norms and standards regimes and the so-called human rights-oriented policies. Polices are, after all, expedient enactments of regime governance stances; often enough these pay only ‘lip service’ to the human rights normative regimes. No doubt, policy statements/articulations suggest the preferred goals and targets to be distantly achieved; precisely because of this reason, the immediate urgencies marked/mapped out by EHN remain mired in the discourse of DHN, thus occasioning some unconscionable tradeoffs in the pursuit of larger developmental goals. Put shortly, policies are regime-oriented devices that may in the end remain insensitive to the distinction between human and human rights violations. At stake here remain different narratives concerning the ‘tragedy of commons’ constituted by some ways of the overall Indian water governance polices, differently archived in many writings, but most notably in the corpus of professors Ramaswamy Iyer and Chhatrapati Singh. Tenth, and related, the tension between poverty alleviation strategies and goals and the shift from water as a global public good to water as a commodity and resource mark a profound shift in terms of the ‘old’ and the ‘new’ water rights. This is no doubt a difficult distinction. This chapter is scarcely the place to elaborate this; shortly put, the ‘old’ rights were severely limited in range, and were encased both in predatory colonial legality (the state as the owner of ‘water’) and complexes of customary water usages, from which the world’s first postcolonial Constitution (the Indian Constitution) offered no redemption. The ‘new’ water rights emerge solely but surely from various sources: the international human rights instruments and the politics of protest by suffering peoples and communities in resistance. The ‘new’ rights, again summarily put here, insist on z

Breaching of governmental monopoly in defining ‘the’ public interest in the practices of water as a resource and of water-based resources.

156 Upendra Baxi z

z

z

z

z

z

Soliciting an order of equal respect for project-affected citizens by developmental decision-makers and on a wider canvas from those citizens who asymmetrically derive benefits from ‘development’. Furthering deeper forms of constitutionally sincere rehabilitation and resettlement policies for citizen-project affected peoples. Insisting on ways urging transparency, accountability and an end to the corrupt sovereign in the implementation of public projects, especially as adversely affecting HRTW. Providing an order of redefinition of efficiency as integrally inclusive of equity. Further essaying the crystallisation of the component rights of HRTW at individual and collective levels. Fashioning a high adjudicative power as a proactive resource for the protection of HRTW, in ways that enable the transformation of the Supreme Court of India as the Supreme Court for all the impoverished Indians.

Water Governance/Resistance and HRTW Talk/Discourse The need for, and the right to, water presents a staggering variety of social, cultural and political discourses. The description of the totality of needs and corresponding rights remains a formidable enterprise, even when held within some newly-fangled discourses concerning ‘sustainable development’. This chapter may not offer even a rough guide to the complex order of things, events, experiences, imageries, symbolisations and representations concerning ‘water’.9 All I can do is to flag some theory/action alerts about ways of thinking about ‘water’. The languages of human rights emerge also as the languages of governance10 in which competitive party political practices deploy human rights values, norms and standards as resources for the ends of legitimate domination. Electoral returns constitute legitimacy in plebiscitary forms of democracy like India. The changing profiles of development policy constitute yet another resource for legitimating ways of ‘governance’. The generalised claim then 9 10

See, for some pioneering exploration, Lahiri-Dutt (ed.), Fluid Bonds. See Baxi, Future, pp. 15–19.

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here is that water governance (or water resource management though not quite the same thing) at the end of the day ought to fully serve the future of human rights, making these rights more secure for all. Obviously inter-party and intra-party politics/politicking often contest this claim but never to the point of displacing the state’s monopoly of defining what may constitute ‘the’ public interest in relation to water management and governance. That interest is broadly to be pursued by a secular approach under which flourish forms of instrumentalist rationality that regard ‘water’ overwhelmingly conceptualised as a finite resource.11 Within this portmanteau conception of water governance, almost all political dissidence is fully held. There is not unfortunately fully at hand any sustained narrative of the changing practices of water governance as exemplifying the practices of politics of human rights in postcolonial India, although we have some rather abundant narratives of politics for human rights exemplified by human rights and social movement narratives.12 In the main, the difference between the two forms of politics is this: the politics of human rights maintains the claim of state ownership over water whereas the politics for human rights regards water as a common property resource.13 The contestation then arises as to which actors/instrumentalities/structures should have the authoritative power of final voice in the ‘management’ of this resource. Manifestly on this view, ‘water’ becomes an issue of national and global governance, and resistance to forms of such governance. The ‘water wars’ waged on behalf of the human rights activists and social movements understandably seek, at the end of the day, to refine the means and ends of governance. Granting this even grudgingly (because there exist ample other ways of regarding ‘water’ as more than a governance or economic resource), a cache of concerns invites engagement with access to water as a resource and to other water-based resources.14 On this register, HRTW moves beyond access to water as a human survival need to forms of livelihood that utterly depend on water-based resources such as farming and fishing; the HRTW here assumes the visages of a wider human right of access to dignified forms of life and livelihood.

11

The Hindutva forces often have recourse to pseudo-sacred iconography as recently illustrated in the ongoing controversy over the Shri Ram Setu. But the BJP-led States /regimes otherwise fully subscribe to the secular/instrumentalist paradigm. 12 See for this protean distinction, Baxi, Future, pp. xiv–xv, 89, 82–86,152–56. 13 The gifted corpus of Chhatrapati Singh fully illustrates this divergence. 14 This is the distinction on which the five volumes of the Water Law Project of the Indian Law Institute turn; it was my privilege to have ‘led’ these crucial explorations.

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The rather notoriously complicated notion of ‘access’ is often reduced in the practices of water governance as promoting water management efficiency. The World Commission on Dam Report has rather fully perforated claims of efficiency in relation to large irrigation projects in terms of cost-overruns, political corruption, lack of transparency and accountability, and the failure of sustained rehabilitation and resettlement of project-affected peoples, and has called for an integrated policy framework that at least ameliorates, if not altogether eliminates, these; the Indian water governance patterns to date remain singularly unmindful of its prescription!15 However, if the other of efficiency always remains equity, the HRTW-type considerations invite close attention to denials of access to water as a resource and water-based resources based on caste, gender, race and disability. Despite the Article 17 Constitutional abolition of forms of untouchability, and despite the Civil Rights Protection Act and the Atrocities against Scheduled Castes and Tribes Act, caste-based apartheid remains the order of the day.16 Further, as has been noted all too frequently, women carry disproportionate burdens of fetching water from distant places. Equitable access thus invites full attention to social and cultural traditions, which spill over from the discourse to HRTW to some determined assaults against dominant casteenforced water apartheid.17 In my understanding of the Indian developmental circumstance,18 the tasks of efficient access do not give pride of place to the concerns of equitable access. Further, public polices remain both contingent and negotiable, and do not always match resources with the pronounced goals and targets. The constitutionally baptised ‘weaker sections of society’ (I have continually insisted that we instead deploy the expression ‘progressively weakened sections of society’) stand condemned to forms of bare life under Part IV of the Indian Constitution; condemned because for about six decades, a wicked truth emerges: the Constitutional-haves get water rights and the constitutional have-nots get water policy enunciations! Understandably, the demand from ‘civil society’ (global as well as local) insists on a rights-based development policy. I am not quite sure what this may mean because such a policy is the mix of many performatives of sectoral

15

See, generally, Baxi, ‘What Happens Next is Up to You’. See Baxi, ‘Untouchability, Constitution, and the Plan’, and ‘Untouchables, Access to Water’, pp. 165–74 and 186–91, respectively. 17 Here, I can do no better than to recall Babasaheb Ambedkar’s inaugural Mahad satyagraha. See Baxi, ‘Justice as Emancipation’. 18 Baxi, ‘Development as a Human Right or as Political Largess?’ and see Chapter 3, Baxi, note 4, supra. 16

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policy; a rights-based HRTW regime invites simultaneous attention, for example, to urbanisation, inter-State migration, population, irrigation, forest, biodiversity, health and intellectual property rights policies. This interrelatedness is inevitable but it also signifies the proliferation of politics of interests rather than of values. Further, if one were to think that a key attribute or function of human rights normativity is to limit state prowess, many of the so-called human rights-based policies, including HRTW policy talk, simply leave many tasks to sovereign governance discretion (hereafter SGD). If so, the question is: How may such SGD policy performance be at least minimally human rights-oriented? Put another way, what constitutional and international human rights principles (rather than specific sets of norms and standards) should inform the framework of HRTW policy? How are these orientating principles to be derived? (Call this the source/origin problem.) What level of abstraction may, in devising these principles, be socially just? (Call this the epistemic violence problem.) What general obligations arise from these principles? (Call this the obligation problem.) How may these principles avoid inter se conflict, and who may be endowed/invested with the public authority to resolve the conflicting interpretations? (Call this the adjudicative problem.) How may we name and engage with collisions between such principles and the actually existing human rights norms and standards, congealed in the expression HRTW? (Call this the rights-integrity problem.) Finally, without being exhaustive, one ought to note fully the interplay between national, regional, supranational and international policy postures. (Call this the ‘incest’ problem.) I would have liked to more fully address each of these problematic areas but constraints of space prevent me from any direct elaboration here. I continue to hope that the naming of these problems this way may hold some interest for HRTW practices of resistance.

The Dublin Principles For the present purpose, a reference to the four cardinal principles suggested by the 1992 International Conference on Water and Environment at Dublin may be in order. First, ‘fresh water is a finite and vulnerable resource, essential to sustain life, development, and the environment’. Second, ‘water development and management should be based on a participatory approach involving users, planners, and policy makers at all levels’. Third, it must be fully acknowledged that ‘women play a central part in the provision, management, and safeguarding water’. Fourth, ‘water has an economic value in

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all its competing uses and should be regarded as an economic good’. It is discomforting for an activist heart, surely including mine, to say upfront that the current World Bank and GATS-based approach elevates the fourth over all other Dublin principles. Going beyond any easy-minded polemical recourse, we surely need to ask, in terms of the five problems mentioned earlier, how far this culling of human rights principles remains coherent. Concerning the second principle, we need to ask some hard questions concerning ‘participatory policy’. The ‘users, planners, and policy makers at all levels’ constitute heterogeneous ‘communities’ comprising diverse formations of material interests and remain fractured by asymmetrical power relations.19 The mantra of participation needs a close second look especially in times when it threatens officially espoused models of development. When not profitable to the regime of dominant economic governance and dominant interests, participation emerges as a seditious and treasonous social form which exacerbates the duties of a law and order security state. No one closely following the history of the Narmada Bachao Andolan movement, and now the related communities of protest against the Special Economic Zones, may escape the ways in which militarised forms of governance ‘encounter’ HRTW protest-communities, bidding au revoir to any authentic (read constitutionally sincere) notions of participatory governance. While fully appreciative of the sentiment behind the third Dublin principle, it is difficult to grasp its historic pertinence. In the Indian context, the Chipko movement (Andolan) has been globally celebrated as an affirmation of this principle; now it remains almost fully submerged by the Tehri Dam! More generally, and crucially, the question remains how far this principle entails a fully feminised approach to HRTW policy frameworks; in any event, this is scarcely in sight in India and elsewhere. Here again the distinction between the ‘old’ and the ‘new’ water rights assumes a special significance.20 19

While not rejecting out of hand (which would be a brain-dead thing to do) the platforms of John Rawls (‘overlapping consensus’ informed by ‘public reason’ and ‘constitutional essentials’) and Habermas’ notions about the power of communicative reason, it is manifestly clear that these discourses remain scarcely cognisant of the HRTW contentions. In any event, a cynical recall of an old acerbic saying about workers’ participation in the former Yugoslavia under President Tito stands justified: ‘I participate, you participate but he makes the profit!’ Michel Foucault once referred to contemporary politics as an ongoing relation between forms of ‘infra-power’ and ‘hyperprofit’. 20 Anne Hellum in her gifted narratives of studies of conflicted water rights in Zimbabwe brings this fully to our attention.

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The Constitutional Incarnations The source/origin problem remains sparsely contemplated by the HRTW discourse. While the interpretation of human rights treaties by the United Nations Treaty Bodies, and other fora, variously nurture HRTW, national Constitutions continue to fail to provide any secure niche for it. Only three postcolonial Constitutions provide explicitly for HRTW (Uganda, 1995; South Africa, 1996; Ecuador, 1998). And 13 Constitutions provide for specific explicit obligations (Cambodia, 1995; Colombia, 1991; Eritrea, 1997; Ethiopia, 1995; Guyana, 1980; The Gambia, 1996; Iran, 1979; Laos, 1991; Mexico, 1927; Nigeria, 1999; Panama, 1994; Venezuela, 1999; Namibia, 1996).21 The much-vaunted and frequently amended Indian Constitution features nowhere significantly, either in terms of explicit guarantees or as entailing any implicit obligations for providing any just HRTW regime. Surely, we should at least ask why this is the case? In the absence of sustained empirical analyses, this is not an easy question to answer. Is it the case that the Indian activist communities regard statements of policy as superior frameworks for assuring HRTW as compared with explicit constitutional guarantees or implicit constitutional obligations? Or, is it more generally the case independent of our beliefs that policy frameworks, in effect, offer better opportunities for social action directed to the modification of old laws and new forms of legal regulation? How may we understand and explain some activists and movement folks’ penchant for recourse to social action litigation (which continues to be miscalled ‘public interest litigation’)? Is this a strategic recourse to influence the unmaking/making of water governance policies? Or is it also thought that some HRTW pay-offs thus stand more securely assured? How may we understand the relative disinterest of Indian water rights activists, comprehensively ignoring comparative analysis of South constitutionalisms, despite all our tall talk about networking South–South solidarity? May it be the case after all that some Indian epistemic communities remain hegemonic in relation to learning from the Global South; that is, they remain insufficiently postcolonial and favour the flow of learning and wisdom primarily from Euroamerican sources? Further, may it be also the case that some militant forms of social and human rights activism believe that HRTW

21 See the excellent survey undertaken by COHRE: Centre for Housing Rights and Evictions, Right to Water Program, January 2004.

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may best be enhanced by constant struggles, even insurgencies, against SGD which promotes large-scale development project governance inimical to the right to water and equitable access to water-based resources? What difference to water governance may result, if any, by the insinuation of human and constitutional rights languages, logics and paralogics 22 is a question that ought to be fully posed. Obviously, the elected officials and bureaucrats prefer large leeways of discretion in fashioning water governance because these interests further coalesce with a substantial number of special economic interests, with some having the power and influence to make or break coalitional governments. They obviously also prefer making water governance a relatively human rights-neutral affair. Yet the question persists: Why may this state of affairs equally well suit human rights and social movement activism practices? All these elements of an explanatory approach, I believe, need serious empirical analysis.23 To be sure, both the human rights and policy languages and constitutional HRTW incarnations remain rather poor guides to governmental as well as social action because they coequally fail to provide obligations of conduct as well as result. However, is it also not the case that manifestly HRTW constitutional enunciations serve to limit the excesses of the ad hoc national policy frameworks that so routinely begin to regard water as a commodity rather than as a public good or service? Constitutionally enacted normative thresholds may have the virtue of facilitating public contestation over the nature and limits of water governance. A series of constituted elements of HRTW furnishes at least some minimal regimes for accountability and democratic responsibility, arresting the runaway forms of denationalisation, disinvestment and deregulation that define the current moment and situation of a hyperglobalising India. A constitutional rights-based approach to ‘water governance’ provides a more secure human rights niche than that offered by public contestation over national enunciations of this or that water policy regime. Additionally, it would also secure a more democratic foundation for responsible practices of judicial activism, Indian-style.

22 See Baxi, Future, for these distinctions. Concerning this, I may only cite the following: Barjer and Martin, ‘Water Rights Markets and Legal Considerations’; Gabriel and Balter, ‘Water Pricing Reforms’ and Romm and Fairfax, ‘The Backwaters of Federalism’. 23 Especially in the light of such analyses as offered by Vandana Shiva, Radha D’Souza and Shalini Randeria. See Shiva, ‘Resisting Water Privatization, Building Water Democracy’; D’Souza, ‘The “Third World” and Socio-Legal Studies’ and Randeria, ‘Glocalization of Law’.

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In this respect, the 1999 Venezuela Constitution remains admirable for the reason that it reincarnates, through Article 127, the ‘right and duty of each generation to maintain the environment for their own benefit and for the benefit of the future world ’ (emphasis added) and prescribes a fundamental duty of the State ‘along with the active participation of society, to guarantee that the population develops in an environment free from pollution, where the air, the water, the soil, the coasts, the climate and the ozone layer and all living species are particularly protected according to the law’. Further, Article 184[2] mandates: The participation of the community and citizens, through local associations and non-governmental organizations, in the formulation of investment proposals before governmental bodies in charge of the elaboration the respective investment plans, as well as in the implementation, evaluation and control of works, social production, and public utilities within their jurisdiction.

It is crystal clear that the Indian Directive Principles and much of judicial activism enunciations concerning HRTW emerge comparatively as impoverished cousins of the Venezuelan constitutional sincerity. Further, some highly vaunted spheres of Indian judicial activism simply pale into normative insignificance in the presence of Section 3 of the South African National Water Act 36 of 1998 which enunciates the doctrine of ‘public trusteeship of nation’s water resources’. This, at least normatively, obligates the ‘National Government’ to so act as to ‘ensure water is protected, used, developed, conserved, managed and controlled in a sustainable manner, for the benefit of all persons and in accordance with its constitutional mandate’. Further, Section 56 encodes constitutionally mandated guidelines concerning pricing policies for access to water. Even when fully acknowledging the gap between norm and practice in the contemporary South African and Venezuelan developments, all this marks rather clearly from a Global South comparative perspective, the distinctively persistent Indian constitutional backwardness. Moving on, it is now increasingly realised that while relating HRTW as a concretising component of human rights—of the right to life, health, human survival and well-being—is necessary, this remains by no means sufficient. Thus, HRTW emerges as an autonomous normative regime (as well described in the COHRE analysis and elsewhere) concerned with the indicators of availability, accessibility, affordability, quantum and quality of potable water.24 24 The first two indicators have poignant Indian pertinence, given that some water wars continue to signify, 60 years after the Indian Independence, the high-caste denial of access to

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A further cache of concerns here emerges. May HRTW, at the end of the day, remain an enterprise constituting a series of what we have known since the days of Immanuel Kant as imperfect obligations?25 How may we read, in the contemporary moment, the General Comment No. 15 adopted by the UN ESCR Committee, as developing any order of perfect obligations via ways of fashioning indicators in terms of state obligations ‘to prevent death from dehydration, to reduce the risk of water-related disease’, as an aspect ‘inextricably related the right to the highest standard to health?’ Does it really matter (at least from the perspective of the communities constituted by EHN) whether HRTW is conceived rather instrumentally as a series of means for the fulfilment of other social and economic human rights ends, constituting an ever-widening larger human rights mission?26 Of course the HRTW enunciation possesses a clear and compelling advantage over ad hoc policy statements at the national, regional, supra-national and international levels. Human rights statements remain important because they constrain SGD.27

A Concluding Word The theatre of contention then necessarily shifts beyond any renewed engagement with the normative architecture of the contents, or component rights configured by HRTW. Rather, the question concerns human rights denying distinctive Indian water governance policy frameworks. Overall, these provide (here summarily presented) no adequate flood control legislative response, no regimes of civil or criminal liability for state and private agencies for faulty constructions of large irrigation projects, no effective human rights policies addressing the rightlessness of the citizen project-affected persons,

drinking water to India’s untouchable populations. I have commented on this aspect in my contributions to Baxi (ed.), Law and Poverty: Critical Essays: I have also elsewhere demonstrated the importance of the contrast between Mahatma Gandhi’s temple entry movements and Babasaheb Ambedkar’s Mahad satyagraha: see Baxi, ‘What Happens Next is Up to You’. 25 See Baxi, Human Rights in a Posthuman World, Chapter 2. 26 The 2002 World Bank Report understandably rejects a rights-based approach, for the very reason that human rights resist the expedient policy languages of trade-offs! 27 See Hoering and Schneider, King Customer.

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families and communities, no real relief from capacious submergence in the management of major irrigation works actually constructed, no code of conduct for public officials, and no means of establishing the truths of human, and human rights violations thus overall caused. The so-called Indian national water policy regimes thrive fully on the practices ordaining human rightlessness as a governance virtue. These create an illusory appearance of change masking the deep HRTW Indian backwardness. The situation has not been further ameliorated by the new ‘wisdom’ that speaks to us in terms of privatisation, public–private partnerships and some newly instituted regulatory cultures. All this requires serious theoretical attention and analysis. To end finally with a rather heavy remark: the HRTW ‘in-the-making’ provides the last, and even the best, refuge for rethinking forms of water governance and the theory and practice of activist water resistance. Professor Ramaswamy Iyer suggests that this resistance speaks to us of the need to cultivate ‘water wisdom’ defined inestimably in terms of ‘limits, justice, and harmony’.28 These inherently conflicted terms preciously name the problem of rights without limits that is devoid of justice, and wisdom as harmony ‘beyond the shores of [Euroamerican] politics’. All this brings to further view the gifted imagery of Jacques Rancière, which reminds us that we ought to move beyond the Platonic politics of the cave towards ‘... a different politics’, a ‘politics of conversion’ which does not turn ‘its back on the sea’, a liquid politics ‘freed from the shores of origin’, nor ‘blocked by the looming abyss’.29 Put another way, HRTW entails an order of imagination that refuses and resists the ‘imperative’ that ‘shields politics from the perils that are immanent to it’, which require it ‘to be hauled on dry land, set down on terra firma’.30

References Barjer, Victor and Wade E. Martin. ‘Water Rights Markets and Legal Considerations’, American Journal of Economics and Sociology, 49(1): 35–44. Baxi, Upendra. 1988a. ‘Untouchability, Constitution, and the Plan’, in Upendra Baxi (ed.), Law and Poverty: Critical Essays, pp. 165–74. Bombay: N.M. Tripathi. Baxi, Upendra. 1988b. ‘Untouchables, Access to Water: Two Moralities of Law Enforcement’, in Upendra Baxi (ed.), Law and Poverty: Critical Essays, pp. 186–91. Bombay: N.M. Tripathi. 28

Iyer, Towards Water Wisdom. See Rancière, On the Shores of Politics 2, 3. 30 Ibid., p. 1. 29

166 Upendra Baxi Baxi, Upendra. 1995. ‘Justice as Emancipation: The Legacy of Babasaheb Ambedkar’, in Upendra Baxi and Bhikhu Parekh (eds), Crisis and Change in Contemporary India, pp. 122–49. New Delhi: Sage Publications. ———. 2001. ‘“What Happens Next is Up to You”: Human Rights at Risk in Dams and Development’, American University International Law Journal, 16: 1507–29. ———. 2006a. The Future of Human Rights. New Delhi: Oxford University Press, 2nd edn. See also revised 3rd edition, 2009. ———. 2006b. ‘Development as a Human Right or as Political Largess? Does it make any Difference?’ Madras: Madras Institute of Development Studies. ———. 2008. Human Rights in a Posthuman World. New Delhi: Oxford University Press. Beckett, J.O.B. Unpublished. Report of the Settlement of the Kumaon District, 1874. D’Souza, Radha. 2005. ‘The “Third World” and Socio-Legal Studies: Neoliberalism and Lessons from India’s Legal Innovation’, Social and Legal Studies, 14(4): 487–513. Gabriel, Luis and Alexander M. Balter. 2005. ‘Water Pricing Reforms: Issues and Challenges of Implementation’, Water Resources Development, 21(1): 19–29. Hoering, Uew, Ann Katharine Schneider. 2004. King Customer: The World Bank’s ‘New’ Water Policy and its Implementation in India and Sri Lanka. Berlin/Stuttgart: WEED (World Economy, Ecology and Development). Holmes, Stephen and Cass R. Sunstein. 1999. The Cost of Rights: Why Liberty Depends on Taxes. New York: G.H. Norton. Iyer, Ramaswamy R. 2007. Towards Water Wisdom: Limits, Justice, Harmony. New Delhi: Sage Publications. Lahiri-Dutt, Kuntala (ed.). 2006. Fluid Bonds: Views on Gender. Kolkata: STREE Publications. Mistry, Rohinton. 2006. A Fine Balance. Canada: Faber and Faber. Rancière, Jacques. 2007. On the Shores of Politics 2, 3. London: Verso. Randeria, Shalini. ‘Glocalization of Law: Environmental Justice, World Bank, NGOs, and the Cunning Indian State’, Current Sociology, 51(3/4): 305–28. Romm, Jeff and Sally K. Fairfax. 1985. ‘The Backwaters of Federalism: Receding Reserved Water Rights and the Management of National Forests’, Policy Studies Review, 5: 413–30. Sen, Amartya. 1999. Development as Freedom. Oxford: Oxford University Press. Shiva, Vandana. 2006. ‘Resisting Water Privatization, Building Water Democracy’, Paper presented at the World Water Forum, Mexico City, March. Singh, Chhatrapati. 1991. Water Rights and the Principles of Water Resources Management. Bombay: N.M. Tripathi; New Delhi: The Indian Law Institute.

8

Community Engagement in Water Governance M.S. Vani

Why Community Engagement? At the outset, it must be stated that the governance of water resources in India cannot be undertaken without the inclusion of land and other landbased natural resources in a single framework. Secondly, in India, community engagement in the governance of water resources is not an option, but a fundamentally necessary human response to the natural, physical conditions under which we live and by which we receive water from nature—a monsoon climate. The Indian subcontinent is predominantly characterised by a tropical monsoon climate, by which climatic regimes are governed by the differences in rainfall, rather than in temperatures. The most important feature is the seasonal alteration of atmospheric flow patterns associated with the monsoon.1 This in turn indicates seasonal rainfall. India is among the tropical/sub-tropical countries of the world (including South-East Asia, sub-Saharan Africa, the southern part of North America, Central America, northern parts of South America) that receive such seasonal rainfall, in contrast to those parts of the world that are in the temperate zone (Europe, Britain, North America), where precipitation occurs in the form of rain and snow throughout the year, providing a year-round underground seepage. Understanding the characteristics of the monsoon pattern of rainfall, which determines how much water we receive, when and where, has by necessity to be the starting point of determining how water resources are to be governed in this country. It needs to be emphasised that our surface and groundwater reserves are not 1

Narain et al., ‘Managing Droughts and Desertification in India’.

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replenished by rainfall throughout the year, as our modern water supply technologies seem to assume, but only in a periodical, limited manner. The significant features of rainfall in India, which is the main source of water, are as follows:2 z z z

z

z

z

Very little precipitation is in the form of snow, and most of it is rain. It is largely concentrated during four months of the year. Here, too, rainfall does not occur daily. In most parts of the country, there is precipitation in not more than 50 days. On the days when rainfall occurs, it is not evenly spread over a period of 24 hours. In fact, heavy showers are common. Most of the country receives rain for just about 100 hours each year, half of which is received in only 20 hours. The thumb rule is that the number of hours of rain a place receives is equal to the number of centimetres of rain it receives annually.

If we want to use water in India throughout the year, we have to first harvest rainwater when it falls and where it falls because otherwise most of it would flow into the sea—as it usually does, year after year—during the short period of time that rainfall occurs. Rainwater harvesting, therefore, is the first step in water resource management in a country such as India, which has a monsoon climate. How much of the rain infiltrates the earth during this interval depends on the characteristics and use patterns of the land mass. The reduction in the run-off of monsoon rainfall and the optimal retention of it on and below land surfaces, therefore, requires a primary focus on land management. In India, therefore, there can be no water resources management without rainwater harvesting (RWH), and RWH cannot be done without a concurrent land management and regulation. River-flow focused technologies—such as large reservoirs—that have been the primary option in water resources policy in India have ignored this fundamental environment-determined logic. Rainwater harvesting has been in the news prominently in India in recent years. Suddenly, across the country, householders, rural communities, residential apartment associations, industries, local bodies, educational institutions, government agencies are waking up to this possibility and are up and about harvesting rainwater. But why is RWH a new interest? India has always been a monsoon country. Why is it only now that some interest is being

2

Pisharoty, cited in Agarwal and Narain, Dying Wisdom.

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shown? Have there never been earlier attempts to adapt to the conditions that determine the availability of water, the basic requirement for life? A brief look at history shows that it is only the ‘modern, scientific period’ of our history that failed to notice and take into account the environmental conditions, under which we live, for the purpose of devising technologies and institutions by which natural resources may be utilised sustainably for life. Rainwater harvesting has been actively practised in India since ancient times as a primary mode of societal adaptation to its environmental, natural conditions that revealed an in-depth understanding on the part of the people of the laws of nature that surrounded them and that they were a part of. The colonial period of history abruptly suspended this practice and the modes of governance that enabled it. They were supplanted by an alien ‘scientific’ perspective, environmental philosophy, political economy and governance systems. Post-Constitution, the class of elites that took up the reins of power retained this same colonial apparatus for ushering in a new political economy of ‘Independent’ India. Consequently, the monsoon as a defining factor of the ecology and economy of the country has been ignored in water and land management policy and law. In environmental terms, the stark results soon came to notice. By 1980, the government was compelled to acknowledge the extensive land degradation that had taken place across the country because of the unsustainable management of land and water resources. According to estimates made by the Ministry of Agriculture in March 1980, as many as 175 million hectares (mha) out of a total of 305 mha for which records exist were subject to environmental problems.3 In terms of water resources as well the situation is hardly reassuring. India’s annual per capita water availability is expected to go below the water-scarce threshold level of 1,700 cubic metres within the next two decades. In six of the country’s 20 major river basins (with less than 1,000 cubic metres of annual per capita availability), water resources are under stress and depleting. By the year 2025, five more basins will become water-scarce and by 2050, only three basins in India will remain water-sufficient.4 The Parthasarathy Committee Report points out that limits to the further expansion of surface and groundwater irrigation through big dams and tube-wells are being reached rapidly.5 3

Government of India (GOI), Sixth Five-Year Plan, 1980–85. Selvarajan, ‘Sustaining India’s Irrigation Infrastructure’. 5 As stated by the Parthasarathy Committee Report, in the case of big dams, ‘further growth is restricted by several causes—severe financial constraints due to cost overruns of uncompleted projects, escalating cost of creating additional irrigation potential [due to the best sites suitable 4

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The groundwater situation is equally serious. The annual extraction of groundwater in India is over 150 billion cubic metres (bcm), which is by far the highest in the world.6 Assessments by the Central Groundwater Board of the level of groundwater development (GWD) provide a grim picture of an impending crisis in the core Green Revolution areas.7 In the rest of the country as well, the quantity and quality of groundwater have reached high levels of stress. The sorry status of water resources availability cannot be attributed to deficiency in rainfall. An examination of the rainfall scenario in India indicates that the annual average monsoon rainfall at the all-India level for the past 100 years has been without any trend, and variations have been random in nature.8 This means that while there have been several years of drought, there has not been any significant decrease in rainfall as a trend. Thus optimal harvesting of rainwater across the country is necessary for replenishing surface and groundwater reserves. The changes that are being engendered by climate change—increase in monsoon seasonal rainfall along the west coast, north Andhra Pradesh and northwest India (+10 to +12 per cent of normal/100 years) and decreasing trends over east Madhya Pradesh and adjoining areas, North-East India and parts of Gujarat and Kerala (–6 to –8 per cent of normal/100 years)9—also are pointers to the criticality of RWH and concurrent land management to handle floods and drought. It must be noted that RWH cannot be a one-time activity. It is necessary as long as we require water and as long as India continues to have a monsoonal pattern of rainfall. Monsoon rainfall is a variable phenomenon over time and space, and therefore RWH (which includes land and water management) for dam construction having already been covered and only progressively more expensive and socio-economically and ecologically less favourable sites being left for exploration]’, ‘mounting evidence regarding the ill-effects of over-irrigation, which has become a feature of many irrigation commands’ and ‘extremely poor track record of handling the problems of proper rehabilitation of displaced persons’. The Ministry of Water Resources estimated the area affected in irrigation project commands and came up with figures of 1.6 mha for water-logging, 3.1 mha for salinity and 1.3 mha for alkalinity (Vaidyanathan, 1994, cited in Parthasarathy Committee Report, GOI, ‘From Hariyali to Neeranchal’). Seventy-five per cent of the displaced (an estimated 15 to 25 million people) have not been rehabilitated. These include the poorest of the poor in the country, such as the tribals. The proportion of tribals displaced by major and minor (M&M) projects could be as much as 40 per cent. The problem of displacement imposes another serious constraint on the expansion of surface irrigation (Parthasarathy Committee Report, GOI, 2006). 6 Shah et al., 2000, cited in GOI, ‘From Hariyali to Neeranchal’. 7 GOI, ‘From Hariyali to Neeranchal’. 8 GOI, Ministry of Environment and Forests, Press Release. 9 Ibid.

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needs to be a continually evolving and adjusting phenomenon that takes into account the very localised factors and conditions relating to natural resources as they occur. This projects a scenario wherein human communities need to constantly and consistently fine-tune their activities and responses to changing natural conditions, much as other natural species adjust and adapt. However, our governance systems have to-date actively prevented the emergence of such initiatives.

Necessity for Decentralised Approaches India is known to have highly varied climatic, topographical, geological and ecological features in its different regions. Official data10 identifies five major physiographic regions, 24 significant soilscape units, five bio-climate units [based on rainfall, temperature, vegetation and potential evapo-transpiration (PET)], 18 moisture availability regions (based on water balance parameters, soil moisture, soil temperature regimes and the different ranges of vegetative growing periods), of which nine are found widely distributed and 20 generalised Agro-Ecological Regions in the country. Such a varied ecological profile within a monsoon climatic regime calls for suitably varied approaches to RWH and concurrent land management. This indicates a highly decentralised approach. In fact, RWH is based on the principle that as rain is decentralised, its harvesting also needs to be decentralised.11 However, in contrast to this ecological reality, ‘modern’ water resources management has consistently followed a centralised approach. The rainfall pattern of India (and the variety in ecological regimes) was neither understood nor seriously taken into account by the colonial engineers from Europe and ‘Indian engineers continue to make the same mistakes and build projects that are inappropriate to the native environment’.12

Participatory Approaches The compulsion imposed by ecological conditions to decentralise water and land resources management also dictates that a participatory, inclusive approach be followed. The task is too gigantic in terms of coverage and 10

Official data, Ministry of Rural Development, ‘From Hariyali to Neeranchal’. WOTR, undated, www.wotr.org. 12 Pisharoty, cited in Agarwal and Narain, Dying Wisdom. 11

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variation to be amenable to centralised bureaucratic control. Community participation in the governance of these resources is unavoidable. It is at the same time more cost-effective. Yet, the political will of the natural resources (forest, land and water) bureaucracy expressed through a supportive political establishment in India continues to successfully thwart the pressure of nature and citizen alike, to the detriment of all. In addition to the reality of highly diversified ecological conditions, the prevailing political and cultural dimensions of Indian society also demand an inclusive approach to resource management. India has traditionally been a culturally and ethnically pluralistic society, with diverse occupational groups—such as farmers, fisherfolk, pastoralists, rural artisans, agricultural labourers, forest dwellers, etc., following a range of land, water and forestrelated occupations. Diverse cultures and ethnicity in tandem with diverse ecological conditions have resulted in a significant knowledge base on ecosystem functions in India, which are critical in determining the rules of human conduct in relation to such natural resources. The frameworks of customary law in fact comprise a range of resource use and management rules that are embedded in cultural norms and practices. The inclusion in governance mechanisms of such available skills and knowledge of citizens needs to be a fundamental principle in natural resources management.

Traditions of Water Governance—Role of Customary Law Rainwater harvesting is an ancient tradition in India, as evidenced by archaeological findings13 and more remarkably, by the current official data, some 676,000 functioning rainwater harvesting structures, most of them hundreds and even thousands of years old, the majority of them constructed, utilised and maintained by local communities and the State for a variety of purposes related to rural and urban life. These technologies are pointers to the environmental/meteorological/geographical knowledge and the political economy of pre-British India, which was characterised by decentralised governance of natural resources coexisting with central authority, with land management and tax administration supportive of RWH.

13

Agarwal and Narain, Dying Wisdom.

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The initiators and promoters of water technologies based on RWH ranged from rulers to citizens, indicating commonly exercised access rights.14 The numerical predominance of small-scale water technologies in pre-colonial India points to the practice of decentralised water management that implied the exercise of a wide range of local rights and powers of control over water resources.15 Individual and community ownership of water resources—in contrast to the principle of state ‘sovereign’ powers over all natural resources operative currently—was prevalent; the ruler’s sovereign right to make land grants, which often included water bodies, did not imply a monopolistic state ownership of all water resources—a concept introduced during British colonial rule. As a corollary, the control and management of water systems was significantly decentralised. A strong association of culture and spirituality with water as a resource prevented its crass commercialisation, while not excluding economic transactions in relation to it. A particularly enabling legal arrangement existed with regard to land management. As with water resources, the nominal authority of the ruler coexisted with local legal control over land resources. Decision-making on land use was made at local levels.16 The system of taxation in pre-British India—the claims of the state to the surplus of production and the means to mobilise it—was a crucial determinant of local authority in the use and management of natural resources. The mode of tax collection from medieval rural society such as in the Chola State or the Vijayanagar and Mughal empires (in the southern and northern regions of the country) treated the village, and not individual households, as the basic unit of social organisation from which the state’s share of surplus grain was collected. This left the local community, governed by a council of leaders from different caste groups a sufficient flexibility in determining the rights and liabilities of villagers in resource use and management.17 In addition, the system of agricultural production and redistribution of grain linked the village to the state in a particular relationship determined by caste, kinship and political office, which ensured the circulation of resources back into local natural resource systems in various ways18 which sustained both the resources and the relationship. The

14

Vani, Role of Panchayat Institutions in Irrigation Management. Ibid. 16 Ibid. 17 Ibid., Vani, ‘Customary Law and Modern Governance of Natural Resources in India’. 18 Mosse, The Rule of Water. 15

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political and legal arrangements in resources use that enabled decentralised water and land management had an integral connection with culture and religion as well. References in ancient religious texts and commentaries and stone inscriptions provide information on legal and ethical principles and administrative arrangements regarding water that obtained in pre-colonial Hindu and Muslim societies in India.19 They indicate the depth and detail of governing principles—ethical, moral, spiritual, social, ecological—that were applied to water management and use. The jurisprudential-legal system in ancient India also supported RWH, decentralisation of land, and water resource control and management. The governance of natural resources, which was essentially decentralised in character, had its legal basis almost entirely in custom. In traditional Indian jurisprudence, custom constituted a source of law independent from all other known sources, that is, dharma,20 or royal decrees.21 In pre-modern Indian society, the undisputed law-making and judicial authority of the King did not permit him to modify either dharmic laws or common customs of localities and groups.22 The King was prohibited (by dharma) from interfering with the customs of countries, castes and families, and other groups. In addition to this prohibition, the state was also expected to ‘act’ in support of customary

19 Vani and Asthana, ‘Empowered State and Eroded Water Rights’. These include the Rigveda (circa 2500 bc), Kashyapa’s treatise on agriculture from the Mauryan period (321 bc–185 bc), the dharmasutra of Apastamba, the Manusmriti, the Vishnusutras, the works of Manu and Kautilya, the dharmashastra of Vashista, Muslim law, stone and copperplate inscriptions from different periods of India’s pre-British history. See DCAP, ‘Law and Custom in Water Resources Administration’. 20 The term ‘dharma’ is central to the classical Indian understanding of the human condition. It is that which sustains life and order in all their forms, cosmic, human, animal or divine. It is a secular concept, not a religions one, in the sense that it arises from a study of the human person in all dimensions of human existence. It refers to those natural principles governing all life, representing balance, harmony, etc. (see Chaturvedi, Dharma, India and the World Order). Dharma, Royal Order and Custom are the three main sources of law recognised in traditional Indian jurisprudence. The jurisprudential framework underlying the modern formal natural resources law is the Anglo-Saxon legal system, the foundation of the Indian legal system today. Under this system, the three identified sources of law are statute, precedent and doctrine, in that order of precedence, with statute bearing overriding authority over the other sources. Wherever precedent or doctrine contradicts statute, however old the former, the latter will prevail. For more details, see Vani, ‘Customary Law and Modern Governance of Natural Resources in India’. 21 Vani, ‘Customary Law and Modern Governance of Natural Resources in India’. 22 Lingat, The Classical Law of India.

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law. Extensive autonomy in the functioning of guilds, corporations, artisans, religious fraternities, local governing bodies, etc., characterised the structure of the state. The conventions of these bodies were recorded in writing, constituting their statutes or by-laws. The King was bound to accord his royal seal to these agreements when called upon to do so, as well as insist upon these conventions or regulations being respected by all sections of society. The role of the state was mostly non-interventional. Rural society was ruled by custom and tradition rather than by royal edict. Mughal rule over a greater part of India did not alter this jurisprudential system.23 With custom having an authority as an independent source of law, local governance of natural resources (control and management) was thus not only de facto but also de jure. The role of the state in resource management— construction of water systems, giving land grants—did not preclude local autonomy in management and regulation. The role of the state in the realm of custom was ‘administrative’, not ‘legislative’.24 This particular legal arrangement promoted local law-making in consonance with local conditions and needs and helped to sustain the initiation and management of RWH as a principal activity of water resources management in general. A particular and important aspect of such decentralised law-making with respect to water and other natural resources was that rights to resources were defined, allocated and regulated as part of the local management framework. There was an absence of centralised definition and regulation of rights to resources as is reflected in modern statutory law. The integration of the functions of defining, allocating and regulating rights with local management allowed the definition, allocation and regulation of ‘duties’ as well, in terms of protection and conservation of resources by the members of the local communities. Colonial natural resources law—statutes on land, forest and water—disrupted the ‘rights-duties’ dynamics of customary group behaviour through the introduction of private and state property rights, while ignoring common property rights and management regimes.25 Custom is of current relevance because of the persistence of customary practices or local laws in the use of natural resources in the country. This may

23

Ibid. Lingat, The Classical Law of India in Vani, ‘Customary Law and Modern Governance of Natural Resources in India’. 25 DCAP, ‘Law and Custom in Water Resources Administration’; Vani, ‘Customary Law and Modern Governance of Natural Resources in India’; Gadgil and Guha, This Fissured Land. 24

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be observed in prevailing community forest use practices, traditional water technologies, landholding patterns, agricultural practices, fisheries, common land uses for agricultural and non-agricultural purposes, etc. They are a pointer to the fact that the skills of local governance/local rule-making and rule enforcement are still in evidence. However, the politico-economic macrocosm within which local governance can be sustained has undergone fundamental changes. British colonial rule introduced a unified legal system, with primacy given always to positive law, particularly statute.26 All other sources of law—caselaw, legal doctrine, jurisprudence, custom—are only subsidiary to it, even if they play a role in the ‘discovery’ of law by contributing to the interpretation of statutory provisions. While the existence and importance of custom was recognised, its validity and authority was subjected to English notions of jurisprudence and political economy. Early Anglo-Indian case law did confirm the primacy of custom over the written law.27 However, English law, by reason of its fundamental difference in doctrinal foundation, perceived custom through the eyes of law, through the notion of ‘legality’ rather than the notion of ‘authority’ that underlies Indian legal tradition.28 Thus, custom, even if it was a source of law, had to be sanctified by a statute declared by the State. In other words, custom has no existence outside statute law. From being a ‘system of law’ with its own authority, with legislative, executive and judicial functions incorporated in it, it was reduced to ‘rights’ or ‘practices’, and had to be discovered and asserted, case by case, before courts. Under colonial rule, a shift in rights and control over natural resources in favour of the state was combined with a ‘de-authorisation’ of custom as a source of law, and a centralisation of law-making and implementation or enforcement of law—a change that terminated the potential for local ‘selfgovernance’, and thereby the scope for the engagement of citizens in resource management through their local institutions. The totality of powers assumed by the colonial state over natural resources through legislation completely transformed the earlier ownership and governance patterns that had provided ample scope for local decision-making. In the matter of water resources, the powers assumed by the government were extensive. 26

Lingat, The Classical Law of India. Ibid. 28 Ibid. 27

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Obstacles to Community Engagement—Legal Frameworks The transformation of political economy and governance institutions related to water resources was necessary to give effect to British water resources policy—application of water resources for the maximisation of profits through the introduction of centralised institutions of control and management, western science and technology, and large-scale irrigation water supply systems— all three of which animate water resources policy to date, in independent India. As a result, there is an established continuity between colonial and post-constitutional water law in India in the matter of the relative rights and powers over water resources of state and citizens, and these are dealt with in tandem in this section.

Rights of the State over Water—The Colonial Legacy The most important aspect of the governance of water resources—and the relative roles of the state and the public in it—is that of rights to water, from which flow powers of management. Anglo-Saxon Law of the nineteenth century extended the principle of eminent domain over water resources by a statutory declaration of state rights over water sources through the enactment of the Northern India Canal and Drainage Act, 1873.29 The policy of the colonial government towards water resources reflects an anxiety to assume total rights of ownership and powers of control in order to exploit the resource for maximum profits. At the same time, apprehension of public opposition to excessive interference in the ‘pre-existing’ rights of ownership and use of water served as a deterrence in so far as the land revenue policy was concerned—the support of the population was necessary to carry out agricultural activities, which was a primary source of revenue. The precursor to the Northern India Canal and Drainage Act, 1873 was a draft bill prepared by the Punjab government in September 1867, which sought to declare that the entire property in the natural water supply and 29 ‘The history of water resources in British India was an irrigation history and that history established a state monopoly over water resources’ (Whitcombe, ‘Agrarian Conditions in Northern India’ cited in DCAP ‘Law and Custom in Water Resources Administration’; Vani, ‘Customary Law and Modern Governance of Natural Resources in India’.

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the waterworks was vested in the government, excepting in cases where long usage had established a private property. It asserted the general right of the government to carry out works for utilising all waters. It also imposed the onus of obtaining the previous sanction of the government on all private persons who might wish to carry out such works themselves.30 The rationale in preparing the bill was the need felt by the Punjab government to deal with private rights in water in a manner analogous to that in which private rights in land was dealt with under the existing law, when it was necessary to interfere with them for public purposes.31 In response to the Punjab bill, the Government of India decided to draft a new law altogether, as there was difficulty in many provinces to extend irrigation because there was no law to exert the powers of the government to ‘buy’ up private water rights in certain areas. A need was also felt to restrict private rights in government canals (to prevent private rights of a permanent nature). Through this Act, the Government of India intended to lay down a proposition which was indicated ‘not only of the existing custom of India, but of a fundamental rule universally recognized in Western Europe and distinctly asserted in those European countries, such as Northern Italy, which resembled India in their dependence on artificial irrigation’. This proposition was that the property in the lakes, rivers and streams of British India was vested in the state, subject in certain cases to rights acquired by usage or grant.32 Provision was made in the enacting clauses of the Act, stating that whenever it became necessary for the government, on behalf of the public, to invade private rights which were ‘admitted’, proper compensation would be paid to persons in whom such rights may be vested. The Government of India asserted that it possessed the power to resume any water supply in the possession of any individual ‘in the same general manner that it had the power to take land for a public purpose, and to redistribute the water in the way most conducive to the good of the community at large’ (emphasis added by the author).33 The Act proceeded on the presumption that ‘the water appropriated was the exclusive property of the state’ (emphasis added), and that ‘it was to be understood that when any previous rights had existed in the water supply, they had been extinguished, proper compensation having been given at the same time’. The Preamble declared generally the government’s title 30 National Archives of India, Proceedings of 1869, 1871, 1901 cited in DCAP, ‘Law and Custom in Water Resources Administration’; Vani, ‘Customary Law and Modern Governance of Natural Resources in India’. 31 Ibid. 32 Ibid. 33 Ibid.

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to the water flowing in rivers and streams, and its entitlement to use and control such waters for public purposes. The Act conferred wide powers on canal officers for the management of canals covered by it. By means of interpretation, these also came to include, in course of time, minor canals not constructed by the government, but whose administration was taken over. The Act empowered the government to notify any river, stream, lake, or other natural collection of water that was to be applied or used by the government for the purpose of any existing or projected canal or drainage works. The award of compensation was provided for the loss of existing rights to water supply, thus recognising private rights to water. The nature of these rights was, however, transformed by making them subject to the sovereign powers of the state. Private rights were restricted in the waters of government canals as well. With regard to these canals, the government was of the opinion that it was ‘most necessary to guard against any possible future complications arising from the recognition of private rights adverse to those of the state acting in behalf of the whole irrigating community’.34 The declaration of the rights of the state over all water resources was not without opposition from the national and regional levels, both within the government and outside it. Representations were made by members of the Governor-General in Council and Provincial governments, and also by the public, that the proposition on state rights was a ‘somewhat doubtful statement of facts’. It was conceded that a certain sovereign right in all natural streams and watercourses vested in the government in the same manner that it did in regard to land, unless it had been specifically relinquished; but there was also a ‘co-existent right of usage of the water of natural streams vested in the community’.35 The Government of North-Western Provinces and Oudh, in a letter to the Government of India, Department of Revenue and Agriculture,36 objected to the Preamble of the Act on the grounds that the statement that was set forth that all lakes, rivers, channels and other collections of water are the property of government was not correct as regards the North-Western Provinces. The running water in rivers and streams was, no doubt, the ‘property’ of the government, and as long as due provision was made in the Act for 34

Ibid. NAI Proceedings 1871, cited in DCAP, ‘Law and Custom in Water Resources Administration’, emphasis added. 36 NAI, Proceedings of 1873 cited in ibid. 35

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compensation to individuals for rights that were affected by government action, there was no objection to the declaration. However, natural drainage channels and lakes were not always the property of the government. They were sometimes altogether private property, as the bed of the Kalee Nadi in the Doab, and most other drainage beds and all the jheels (lakes) in that province. Sometimes they were partly private and partly public, as some of the lakes in Bundhelkhand. Here the area or ‘fields’ of water belonging to individual owners or villages on the edge, which claimed the ‘singhara’ (water chestnuts) and other ‘julkhur’ (water based) products, were carefully marked off by poles stuck into the bed of the lake. At the same time, the right of the government to take and distribute the water was not disputed. The Government of North-Western Provinces and Oudh was of the opinion that the Preamble should be reworded so as to limit the right of property of the government to running water in rivers and streams, and to declare the right to control the waters of lakes and natural drainage lines to employ the water in them to the best public advantage. Representations from the public also objected to the broad declaration of the rights of the government over water, which ‘was likely to lead to widespread misapprehension and cause unnecessary alarm and mistrust’.37 It was pointed out that ‘lakes, jheels and all similar natural collections of water had always been the property of the zamindars in whose demesne they were situated ’. Even when land or revenue grants were conferred by the government on individuals, such individuals enjoyed the usual profits from water bodies just as they enjoyed the usual profits of the area not covered with water, and exercised equal rights to both, of transfer or sale. Earlier law had recognised such rights.38 The memorialists requested the government to alter the wording of the Preamble so as ‘not to give rise to the suspicion that it was intended, by the laying down of a principle in such broad terms, to declare that government has, or shall in future assert any greater right to area of land covered with water than it does’. In spite of these objections, the Northern India Canal and Drainage Act enacted in 1873, carried a declaration of the government’s title to running waters, and its entitlement to control and use such water for public purpose, and also provided through its various sections such a wide 37

Memorial of 1873, cited in ibid. In Section 3 of the Oudh Rent Act of 1868, the legislature itself had recognised the fact by including lakes, jheels, etc., and the profits thereof in the definition of the term ‘land’ cited in DCAP, ‘Law and Custom in Water Resources Administration’; Vani, ‘Customary Law and Modern Governance of Natural Resources in India’. 38

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range of powers as to practically amount to ‘ownership’ of all waters. The extent of powers taken to interfere with ‘private’ canals in order to promote the government supply of water is noteworthy.39 The Northern India Canal and Drainage Act 1873 set the precedent for other water statutes that followed. The rights of the state over water resources were reiterated in the Punjab Minor Canals Act of 1905, the Preamble of which stated as follows: The right of Government to exercise control over private canals is based in part on the fact of the Government title to the water flowing in rivers and streams, which is asserted in the preamble of the Canal Act of 1873, and in part on the same fundamental principles which in India as in other countries has necessitated legislation for the control of railways, shipping, gas and water companies and all corporations which are in the position of monopolists towards the public or a section of the public.

The Preamble also set out clearly the need for ‘interfering’ with private rights (of abstraction of water from streams and rivers and construction of canals to carry the water to fields), which had been the prevalent practice across

39 The Northern India Canal and Drainage Act of 1873 set down in broad and specific terms the role of the state in the control of water resources. Subsequent statutes on water resources were based on the principles laid down in this Act. The types of powers that were vested in the state through this legislation included the following: Sovereign powers of the State over all water sources; power to levy rent, tolls and dues for irrigation and drainage; power to redistribute the water supply of districts; powers to notify water sources and prohibit construction of works on them by any person without official permission; powers of planning and implementation of irrigation works; powers of entry upon land for planning, construction, maintenance, repair, inspection and supervision of canals and other systems, whether government or private; powers to remove obstructions to construction, etc.; regulation of the distribution of water in government as well as private canals; prohibition of activities which disrupt construction, etc., of canals and other systems; prohibition of construction of canals and other systems by private persons without permission; powers to enhance rent of land; determine compensation; powers to order the transfer of land and watercourses by owners upon payment of compensation; powers to recover costs and rates from beneficiaries; powers to enforce the payment of rent; powers for requisitioning of ‘customary’ labour in special circumstances, or commuting labour into tax; powers to define offences and sanctions; powers to effect closure of canals and impose other sanctions for offences committed or for disobedience to orders; powers to settle disputes; recording of rights; power to take over management of private canals; powers to acquire private canals; powers to determine limits of irrigation in private canals; powers to determine the amount and character of water rates; powers to regulate the construction and use of water mills; powers to override recorded rights in scheduled canals—restrict, suspend or extinguish rights.

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the country before the British colonial establishment took up the business of supplying water for irrigation.40 The rights of the colonial state over water resources were reiterated again in a later case with respect to British Kumaun and Garhwal, a part of the then United Provinces. At issue was the use of water of local streams by the local people for agriculture and for the running of water mills. Agriculture was not considered by the government as a ‘profitable’ enterprise in the hill areas, as not much revenue increase could be expected in promoting irrigation, which would prove to be very costly in a mountainous terrain, and was better left to the local population to continue their tradition of irrigation. The opportunity to earn revenues from water, however, existed through the medium of ‘water mills’, small-scale technologies that used the power of running water to turn mills for grinding corn and wheat. These were fed by channels similar to irrigation ‘guls’(earthen channel). The eventual statutory declaration of state rights over water proceeded from an initial imposition of a tax on the use of water for water mills. Rents of mills were first introduced in 1842 in Garhwal district.41 It was considered the prerogative of the state to give each mill owner a ‘monopoly’ in his locality, on the theory that the state owned the water of all streams.42 They were justified on the grounds that water mills were very profitable and were usually the property of private individuals who ‘monopolised’ the water. The then Commissioner of Kumaun, Sir Henry Ramsay, considered that ‘the construction of a mill was in practice the assertion of a monopoly right in water’, and that the imposition of a tax was necessary both to ‘prevent 40

The Preamble to the Punjab Minor Canals Act 1901 states:

Even when the canal is constructed solely to irrigate the owner’s land the interests of the state are involved in the detraction of water from the river or natural stream, and it is rarely the case that a supply channel can be constructed with[out] its bed passing through land belonging to other persons. When, as is more commonly the case, irrigation is supplied not only to the canal owners’ lands, but also to whatever area, however owned, [that] may be commanded by the available supply, relations arise which, in the interest of owners and irrigators and of peace and good Government generally, require to be controlled and regulated. Even with such powers as the Bill confers, cases may arise and they have arisen in the past—in which mismanagement on the part of the private canal-owners causes such public inconvenience as to justify Government stepping in and either managing the canal temporarily, accounting for surplus profits or acquiring it permanently under provisions analogous to those of the Land Acquisition Act. 41 It can be deduced from Beckett’s Report on the Settlement of Garhwal that a tax on water mills had no precedent in pre-British times. He remarked that a considerable increase in mill rents would be possible ‘as soon as its novelty passed away’ (DCAP ‘Law and Custom in Water Resources Administration’; DCAP ‘Empowered State and Eroded Water Rights in Uttarakhand’). 42 United Provinces Revenue Proceedings 1912.

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disputes’43 and ascertain how many mills existed. On the recommendation of the Government of United Provinces, the tax was sanctioned by the Government of India,44 first for a period of 10 years only, and ultimately made permanent in 1892.45 The tax was not covered by any Act, but was simply a rent charged by the government for the monopoly use of the water power of the hill streams. It was not until 1917 that a legislative basis was provided for the imposition of rents on water mills. The Kumaon Water Rules of 1917, enacted under the Scheduled Districts Act, 1874, declared that ‘the beds and water of all rivers and natural streams and of all lakes, natural ponds and other collections of still water within the hill tracts of the Kumaun division, except when in measured land, were the property of and subject to the control of the state’ (emphasis added by the author). They were stated to be part of the District Protected Forests, being unmeasured areas. The existing rights of users in such waters were protected by declaring that such rights could not be extinguished, decreased or injuriously modified by anything in the Rules. In the course of enacting the Rules, it was clarified that the rights of possession and interference in respect of water laid down in the Rules as belonging to the government and generally assumed in the Rules to belong to the government ‘do not depend on custom, but were based on the rule in International Law that upon conquest, the victorious ruling power is successor in interest to the rights of the conquered sovereign’ (emphasis added by the author).46 Thus, the colonial drive for maximising profits from irrigated agriculture provided the impetus to gain statutory control over water resources, backed by

43 The state’s need for interference in ‘settling disputes’ is self-asserted, in order to justify the appropriation of rights over water resources. This view ignored the fact that there was a long and healthy tradition of local dispute resolution. In addition, elaborate rules of water use had been developed at local levels to adjust water rights between mill owners, as well as between mill owners and irrigators. It is a noteworthy fact that 78 years later, when the Uttar Pradesh government enacted the World Bank-prompted Kumaon and Garhwal Water [Retention, Control and Distribution] Act, 1975, by which it abolished all customary rights of individuals and communities over water sources, the same argument was advanced in the debate during the introduction of the Bill in the UP Assembly—that the law was necessary ‘to prevent water disputes’ that were allegedly on the increase in the hill region, (DCAP, ‘Empowered State and Eroded Water Rights in Uttarakhand’. 44 Proceedings of Department of Revenue, Agriculture, and Commerce 1878. 45 Vide GO No 5299/x-543 dated 23 September 1892, cited in DCAP, ‘Law and Custom in Water Resources Administration’; DCAP ‘Empowered State and Eroded Water Rights in Uttarakhand’. 46 United Provinces Local Self-Government Proceedings 1915, cited in DCAP ‘Law and Custom in Water Resources Administration’; DCAP ‘Empowered State and Eroded Water Rights in Uttarakhand’.

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colonial perspectives of ‘sovereign power’, which were quite at variance with the sharing of powers between the state and citizens over natural resources in pre-British India. The control and management of water resources by the British in India was exercised ubiquitously, within territories that had been brought under direct British administration, within ‘zamindari’ areas, as well as within ‘native States’.47 Control was effected over water sources—that is, rivers, streams, lakes and other collections of water—and water systems. Water systems included government-constructed canals and other works as well as ‘privately’ constructed water systems such as canals, tanks, wells and the various water technologies that pre-dated colonial rule, or were constructed later as well. The latter type of systems, which constituted the main indigenous technology for the harnessing and use of rainwater for all purposes, were relegated in British policy to ‘minor irrigation’ status, where they remain cemented to this day. Thus, in totality, all water systems and technologies in all territories in the country came under British control in varying degrees. At the same time, irrigation and land laws provided for the maintenance of the records of private and community use rights to water, as protecting private use rights to water supported the colonial revenue policy of maximising revenues from agriculture. In summary, colonial water law brought about a fundamental and radical change in the relationship between state and citizen in the matter of ownership, use and management of water resources. That the same respective positions have been meticulously maintained till date is evidenced by the post-independence water law.

Constitutional and Legal Provisions of Water Rights and Management Prevailing constitutional and legal provisions on natural resources in India—borrowed from colonial law—constitute the primary obstacle to the involvement of local communities and groups in the governance of water resources.

47

DCAP, ‘Law and Custom in Water Resources Administration’.

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Principal among these obstacles is the doctrine of eminent domain, which originated from English common law. By this doctrine, the state may take private property for public use, but only upon the payment of just compensation. ‘Eminent domain’ is ‘premised on the proposition that the state always, by definition, acts in the public interest and that it can therefore claim eminent domain over all other social entities’.48 In the case of land resources, the Indian Constitution underwrites the power of eminent domain through Article 31A, which protects the powers of the state to acquire any estate or any rights in such estate, or the extinguishment or modifications of any rights therein from challenge that such legislative actions are inconsistent with, or take away, or abridge any of the rights conferred by Article 14 or Article 19. The types of ‘land’ covered by this Article include not only that held under any type of tenure or grant, but also land used for agriculture and ancillary purposes, including waste land, forest land, pastures, building sites, etc. This provision, in effect, protects the residual powers of the state over all land resources, which are critical in terms of water management as well. Private and community rights to and in land resources are not absolute, but subject to the state’s rights as the ‘supreme landlord’, with private property rights exercised subject to the payment of revenue or taxes.49 The only limits to the power of eminent domain are the Constitutional prescription of due process of law in the restriction of private property for public purpose (Article 300A), and also the payment of ‘just compensation’ (Article 31A).50 The colonial Land Acquisition Act 1894, still in force in India, provides for the operation of the principle of eminent domain. The rights of citizens and local communities over land—whether customary or legal—are thus not absolute, but subject to state power to control them in ‘public interest’. A similar protection to the superior powers of the state is also provided by Article 31B, which protects specific enactments from being challenged as violative of fundamental rights. These enactments are listed in the Ninth Schedule of the Constitution.51 They have a direct bearing on land and forest 48

Sen, ‘The Reclaiming of Eminent Domain’. Stokes, The English Utilitarians and the Law, cited in Vani, ‘Customary Law and Modern Governance of Natural Resources in India’. 50 A proviso to Article 31A states that land held by any person within the ceiling limit applicable under any law in force could not be acquired by the State without payment of compensation. 51 These include Land Tenancy, Land Reforms, Land Acquisition, Land Ceiling, Land Development and Planning, Land Revenue, Private Forests Acquisition, Regulation of Village Common Lands, Regulation of Lands of Scheduled Tribes, Industrial Development and Planning, Development and Regulation of Mines and Minerals, etc. 49

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management and as a consequence, on water resources as well. While these are purported to be in the public interest, none of these statutes was originally enacted from the perspective of environmental sustainability—that requires a bottom-up approach in governance. The rights defined, the institutions created, the powers vested in these institutions were not crafted from an environmental sustainability or equity perspective. However, in their current form, they are protected by the Constitution from being challenged even if such rights and management frameworks are violative of the fundamental right to life. In the case of forest resources that are critical to the harvesting and management of rainwater, the Indian Forest Act enabled the avoidance of the obligation of the state in terms of acting in public interest and payment of just compensation by abolishing all ‘pre-existing’ rights. People’s traditional rights in forests, both of ownership and use52 were transformed through the Forest Act of 1927 into ‘concessions’ and ‘privileges’, subject to grant or withdrawal by the state.53 The Indian Forest Act, 1927 is in operation without any change in this basic premise. In the case of water resources, after independence, through a similar act of ‘legal plunder’,54 all water sources except groundwater were declared to be the property of or ‘vest’ in the state and thereby the question of just compensation in cases of state destruction of such rights does not arise.55 A second obstacle in terms of constitutional provisions to democratic governance of water resources is the absence of constitutional recognition of water itself as a basic human right. With such recognition, the duty of enabling the right of access to water for all would lie squarely with the government. This in turn would have prompted thinking on the need to provide an appropriate governance framework that empowers people’s institutions, as the task would be of too great a magnitude for the state to fulfil on its own. It would also have made it imperative to adopt an ecological approach to the governance of natural resources, for ensuring sustainability. 52

Vani, ‘Customary Law and Modern Governance of Natural Resources in India’. In contrast to ‘rights’, which are granted by law—conceded by the government—and which imply a legal remedy for enforcement if denied, privileges and concessions granted at the discretion of the state are not enforceable, and may be revoked by the state (Upadhyay and Upadhyay, Forest Laws, Wildlife Laws and the Environment, p. 16). 54 ‘Thus, in order to make plunder appear just and sacred to many consciences, it is only necessary for the law to decree and sanction it’ (Bastiat, The Law). 55 The legally recognised rights of ownership over water sources held by individuals and communities (in the latter case, ownership of sources that lie within the legally recognised boundary of the village) in the hill areas of Uttarakhand were abolished through a statute enacted in 53

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Role of Panchayat Institutions The 73rd and 74th Constitutional Amendment Acts were the first attempt to give a new constitutional status to Panchayats since the adoption of the Constitution. With respect to rural local government institutions, the 73rd Amendment mandates the formation of a three-tier Panchayat system in every State, whose members are to be directly elected. Mandatory provisions have been made for the tenure of Panchayats, their composition, reservation of seats for specific groups, disqualification of membership, constitution of Finance Commissions in every State for recommending financial structures for local bodies, etc. However, there are no mandatory provisions for powers to be devolved on Panchayats. This has been left to the discretion of the States. As the operative article is worded (Article 243G), the discretionary ‘endowment’ of powers on Panchayats by the States is intended only for the purpose of ‘preparation of plans for economic development and social justice, implementation of schemes for economic development and social justice as may be entrusted to them’. The Eleventh Schedule, which contains a list of 29 subject matters, is referred to in Article 243G only in relation to the ‘implementation of schemes’—not even in relation to the other two, very limited types of functions, that is, preparation of plans and levying of taxes (Article 243H). Of the 29 matters listed in the Eleventh Schedule, as many as 14 are relevant to natural resources management, with implications for water resources. In summary, except for the mandatory constitution and periodic election of Panchayat institutions, the 73rd Amendment Act does not devolve any special or new powers on these bodies outside the overall authority of the State and Central Governments. The matters listed in the Eleventh Schedule for the functioning of the Panchayats do not imply that any new powers have been constitutionally devolved on them. The list is merely advisory in nature. Whether or not States devolve powers and to what extent is entirely a matter of the State’s choice, enabled by the legislative powers conferred on 1975—the Kumaun and Garhwal Water (Collection, Retention and Distribution) Act, 1975, which simultaneously vested all rights over water in the state. The statute was enacted primarily to enable ‘state supply’ of drinking water to the population of this region. The pre-existing rights over water sources were an obstacle to the abstraction of water by the government from surface sources such as springs, streams and rivers. There is no access to ‘groundwater’ in the hill districts. In order to obviate the necessity for paying compensation for the takeover of rights, the state abolished all rights statutorily.

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them by the Constitution. Whatever powers or functions are devolved will be subject to provisions in existing enactments. This implies that the powers of local bodies to manage water and other natural resources will be subsidiary to those of the States, and, by corollary, the Central Government. The position of Municipalities after the 74th Constitutional Amendment is exactly identical to that of Panchayats in the Constitution. Half of the total 18 matters listed in the Twelfth Schedule relate to natural resources use and management. The constitutional amendments on local governing bodies therefore do not create any new dispensation that would enable a pluralistic, decentralised governance of resources. This is evident from the fact that the legislative powers of the Centre and the States remained unchanged. (Articles 246, 248–54 spell out the respective legislative fields of Parliament and State Legislatures contained in Lists I, II and III in the Seventh Schedule.) Legislative powers with regard to the use and management of natural resources are distributed between the Union and the States. The States have more legislative powers over land and water resources (inland). Forest resources are in the Concurrent List, with however, Parliament holding superior powers of legislation. Financial, judicial and other administrative powers are also distributed accordingly. In effect, this means that institutions below the State level—district, intermediate or Panchayat levels—whether legal or non-formal, do not hold independent powers of control over natural resources. They may exercise only such powers as may be delegated to them. No State in India has adopted the ‘watershed approach’ as the exclusive development model, particularly in rural areas. Nowhere in India has ‘empowerment’ in totality over natural resources descended below the State level. These two factors continuously militate against the possibilities of decentralised and sustainable management of water and other natural resources.

Legal Provisions on Water Resources As water resources fall under the legislative jurisdiction of States, 56 operative provisions on the relative roles of state and non-state persons 56 Under the constitutional division of legislative power between the Union and the States, the responsibility for the development of water resources rests with the States. The States are given legislative competence through Entry 17 of List II of the Seventh Schedule which is as follows: ‘Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, subject to the provisions of Entry 56 of List I.’

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in the use and management of water are contained mostly in State laws. Post-constitutional water law reflects and enables state policy on water resources since independence. As in the colonial era, water policy remained synonymous with irrigation policy in the first two to three decades in the post-Constitution period (after which several States enacted laws for the provision of drinking water as well ),57 with the purpose of enhancing food productivity and specifically to serve the water intensive ‘green revolution’ areas. The predilection of the colonial state for large-scale irrigation projects served this policy approach well, and it was carried forward after independence with greater enthusiasm and emphasis, in spite of official acknowledgement that surface water ‘minor irrigation schemes’ (in reality, indigenous water technologies) were the principal source of irrigation during the period before the planning process commenced.58 These could and should have become the ‘priority’, given the fact that their importance has been consistently acknowledged from the First Five-Year Plan to the 10th.59 The Union is given power under Entry 56 of List I for the 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 parliamentary legislation to be expedient in the public interest; Article 252 of the Constitution also has a bearing on the matter. Under this article, if the legislatures of two or more States desire that any of the matters with respect to which Parliament has no power to make laws for the States be regulated in such States by Parliament, and if resolutions to that effect are passed by all the Houses of the legislatures of those States, it is lawful for Parliament to pass such legislation. Such a law applies only to States whose legislatures make the request or subsequently adopt the law. Thus States under the Constitution of India have legislative competence regarding irrigation matters arising within the States and also between States. 57 International agreements such as the Alma Ata Declaration of 1978 incorporated a goal of ‘Health for All by 2000’, which included ensuring easy access to provision of safe drinking water. 58 GOI, Report of the Steering Committee on Irrigation for the Tenth Five Year Plan [2002–7]. 59 Minor irrigation systems are far more cost-effective, and have proved the test of time by surviving centuries of use. Since they are mostly rainwater dependent, water availability becomes less in pre-monsoon days, in contrast to canal systems that draw water from major river systems for a year-round supply. However, the advantage of the former is that they serve multiple uses, including the recharge of groundwater, are replenished at every monsoon, and serve a smaller defined and widely dispersed user community, which also manages the systems relatively more efficiently. The Steering Committee on Irrigation for the Tenth Five-Year Plan (2002–7) (GOI, Report of the Steering Committee on Irrigation for the Tenth Five Year Plan [2002–7]) referred to minor irrigation thus: Minor irrigation, basically using local resources of water to serve the needs of people, was the mainstay of irrigated agriculture till larger projects with spread-out commands were taken up in the last century. The tank system had multiple uses apart from irrigation including prevention of flash floods, pisciculture, water for the cattle, source of silt and mud, and recharging of groundwater.

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The Minor Irrigation(MI) Census of 2001 places the total number of ‘MI’ systems at 19,752,199. The number has increased dramatically since the first MI Census of 1985 due to the inclusion of groundwater structures (dug wells, shallow tube wells and deep tube-wells).60 Of these, an impressive 1,248,931 systems are surface water systems (including both surface flow and surface lift), the remaining being groundwater structures. Together they irrigate 51,969,935 ha, or 51.9 mha. The total irrigation potential created by 1999 in India was 89.56 mha.61 Thus the larger share (60 per cent) has been contributed by minor irrigation works, mostly groundwater, which is dependent on recharge by surface rainwater harvesting bodies. However, the larger share of state investment on irrigation (70 per cent) over the different Plan periods has been on major and medium projects.62 In order to enable State-centric, major-systems oriented water policy, post-constitutional water and land laws further emphasised the rights of the state over water resources. Or conversely, large-scale water technologies continued to be given priority in policy in order to retain state rights over water sources derived from colonial history. Customary individual and community water rights of ownership and use were mostly associated with ‘minor irrigation systems’. Legally, in many States, the ownership of these bodies by communities and individuals has been either abolished or denied and only use rights are recognised, with the ownership transferred to the state.63 In addition, due to the minor importance given officially to these systems consistently over the last six decades, their management by local individuals and communities has not been given due recognition either in policy or in law till date. Simultaneously, the provisions of law (either in State revenue or irrigation statutes) of ‘recording of customary rights’ have been wilfully neglected, adversely affecting the strength and clarity of even the ‘use’ rights. Even as large irrigation commands show increasing and distressing

60 In 1985, for the first time since independence, an initiative was taken at the national level to prepare an inventory of ‘minor irrigation systems’. The first Census of Minor Irrigation undertaken by the Government of India with the assistance of the States placed the total of such systems at 676,000. Most of them were rainwater harvesting or river/stream diversionary structures that were hundreds and even thousands of years old, the majority of them constructed, utilised and maintained by local communities and the rulers of those times for a variety of purposes related to rural and urban life. Being a quinquennial census, it was repeated in 1990, 1996 and 2001. 61 GOI, Ninth Five Year Plan 1997–2002, p. 477, cited in SANDRP, ‘Assessment of Irrigation Options in India’. 62 SANDRP, ‘Assessment of Irrigation Options in India’. 63 Vani, Role of Panchayat Institutions in Irrigation Management.

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levels of mismanagement and degradation,64 policy and legal initiatives have been taken to strengthen ‘farmer participation’ in irrigation management in large commands. These state-prescribed and state-controlled management frameworks have been extended in many States to ‘minor irrigation’ systems as well, ignoring the rich, long and relatively successful tradition of independent management through local institutions. The above findings are illustrated by a brief review of land and water laws of selected States.

Rights in, and Management of Water Resources in Madhya Pradesh The Minor Irrigation Census of 2001 shows that Madhya Pradesh has a total of 1,844,994 minor irrigation systems (1,592,128 groundwater structures and 252,866 surface water structures). The Madhya Pradesh Land Revenue Code, 1959 and the Madhya Pradesh Irrigation Act of 1931 together deal with the subject of rights to water of state and citizens, and their roles in the management of the resource. The MP Land Revenue Code is clear on the ‘ownership’ rights of the state over land and water resources. Section 57 of the Code provides that ‘all lands belong to the State Government. All such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government’ (emphasis added). However, any rights of any person in land subsisting at the coming into force of the Code in any such property are saved. Since the term ‘land’ includes ‘standing and flowing water’, the provision may be interpreted to mean that private rights of ownership over water resources exist along with private rights in land. However, further provisions of the Code show that water rights in such private lands have been reduced to ‘use rights’, rather than being recognised as ownership rights. Section 242 recognised ‘customary rights’ to irrigation, fishing, right of way and provides for other easements on land or water not controlled or managed by the State Government or a local authority. The section empowers the state to prepare a ‘record’ of such rights, for which rules would also be framed by the government. Thus these use rights are under the administrative and regulatory control of the state. That private or community rights of ownership over water were not

64

Gulati et al., From Top Down to Bottom Up cited in SANDRP 2007.

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intended to be recognised by the state is further confirmed by the provision in the Revenue Code (Section 251) that vests all tanks situated on unoccupied land, over which the village community were exercising rights of irrigation or nistar (that is, fishing, other water rights and other easements), ‘absolutely’ in the State Government. The same section empowers the government to allocate and regulate rights in such tanks. While Sections 242 and 251 referred to here relate to community rights, another category of rights—individual rights—also feature in the Code. This is a right, not to water itself, but to make improvements on one’s land (whether as owner or tenant), such improvements including means of irrigation. Sections 171 and 196 of the Code provide for such rights. These improvements include the construction of tanks, wells, water channels, embankments and other works for the storage, supply or distribution of water for agricultural purposes; the construction of works for the drainage of land or protection of land from floods or erosion or other water-related damage and the renewal or reconstruction of any of the foregoing works, or alterations therein or additions thereto. The MP Irrigation Act declares that 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 (Section 26, emphasis added). In the State of Maharashtra & Others v. B. Atmaram Sadashiv Dongarwar & Others (Madhya Pradesh Law Journal 1979, p. 1, cited in MP Irrigation Manual, 1996), the Supreme Court has clarified that Section 26 would not apply in the case of a lake that was not a natural lake. This would imply that private or community rights could exist in artificial lakes or rainwater harvesting structures. However, the provision (Section 251) in the Land Revenue Code discussed above, which provides that all tanks situated on unoccupied land vests absolutely in the State Government, deters the possibility of such private or community rights. The rights of the government over water sources as described in the MP Irrigation Act are absolute. No rights of any person to water can accrue to the detriment of an existing canal. No rights can be acquired against the government under Section 15 or Section 16 of the Indian Easements Act, 1882, in the water of any river, natural stream or natural drainage channel, lake or other natural collection of water, any of whose waters supply a canal existing or under construction or even proposed to be constructed. Even when the government supplies water from its canals, the Act bars the accrual of prescriptive rights of easement or otherwise to such supply. Water will be supplied only in accordance with the provisions of the Act which provides for periodical supply agreements or grants under specified terms and conditions.

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The Act declares the right of the government even over the water discharged as waste after its use for the purpose for which it was supplied. In summary, the rights of the government over water resources are supreme and its use by any person is entirely subject to the regulations imposed by law.

Management of Water In consonance with the superior rights of the state over water resources, powers of management as well lie almost entirely with the state. These powers are underwritten by the Land Revenue Code as well as the Irrigation Act. Powers derived under the Land Revenue Code include the allocation and regulation of water and land rights, preparation of a record of rights, land-use management and regulation, management and regulation of trees and forest, dispute resolution, imposition of sanctions, regulation of fishing and making rules. Under the MP Irrigation Act, 1931, most management powers are reserved to the prescribed authorities. The Act does provide for the constitution of Irrigation Panchayats: Section 62 mandates the establishment of Irrigation Panchayats for every village or chak or a group of villages. The Act prescribes the membership of the Panchayat, a representative body of the landholders, and their duties and powers. However, no Panchayats have been formed under the Irrigation Act in MP.65 As such, the Irrigation Department exercises most of the powers relating to irrigation. In summary these are as follows: 1. Rights over all water resources. 2. Powers to control construction, maintenance and operation of private irrigation works. 3. Monopoly powers to supply water and charge rates for irrigation or industry through agreements. 4. Power to supply water to village tanks on government-determined terms and conditions. 5. Powers to constitute and control, through Rules determined for the purpose, Irrigation Panchayats.

65 DCAP Legal Review and Drafting of New Legislation through Public Consultative Processes for Community-based Watershed Development and Management in Madhya Pradesh, sponsored by and submitted to Rajiv Gandhi Watershed Mission, Government of Madhya Pradesh, India, 2000.

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6. Powers to confer and regulate rights to cut grass, graze cattle, fish, cultivate land, or undertake other acts on land or in water under the charge of the Irrigation Department. A recent initiative of the State Government to introduce participatory approaches to water resources management is the enactment of the Madhya Pradesh Sinchai Prabandhan Me Krishkon Ki Bhagidari Adhhiniyam, 1999 (Farmers Participation in Irrigation Management Act). This statute was enacted as a consequence of the World Bank-financed Water Resources Consolidation Project in Madhya Pradesh. The preamble to the Act states that it is intended to provide for farmers’ participation in the management of irrigation systems, and for matters connected therewith and incidental thereto. It is to be assumed that the enactment of a new legislation for farmers’ participation was necessitated as the provisions of the earlier Act on Irrigation Panchayats were not implemented. The Act applies to major, medium and minor irrigation systems, excluding those which are under the control of the Village Panchayat for harnessing water for irrigation and other allied uses from a government/corporation source and includes reservoirs, open head channels, diversion systems, anicuts, lift irrigation schemes, tanks, wells, and the like. The Act provides for Water Users’ Associations (WUAs) water user including any individual or body corporate or a society using water for agriculture, domestic, power, non-domestic, commercial, industrial, or any other purpose from a government or the corporation source of irrigation.66 While water users are defined broadly under the Act to include all uses of water, there is no corresponding government authority that integrates the administration of water for all purposes. The Irrigation Department has been recognised as the main authority to implement the Act, and for all practical purposes perceives the Act as related only to irrigation. So in effect, both an integrated management of water resources and institutionalisation of all water users are not ensured under the Act, thereby retaining the status quo. Farmers’ organisations (FOs) are provided for in the Act. A farmer organisation is ‘a body corporate with a distinct name having perpetual succession and a common seal, vested with the power of entering into contracts’. However, the FO shall not have the power to alienate in any manner any property vested in it. Under the provisions of the Act, the government reserves powers, 66 The Act provides for the notification of ‘Water Users Areas’. Delineating command areas on a hydraulic basis and declaring it as a water user’s area is the prerogative of the government, but is not mandatory. The constitution of a Water Users’ Association has been mandated for every water users’ area that is notified (which is not mandatory).

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in accordance with the rules made in this behalf, to determine the nature and size of the FOs. Various other powers with respect to the constitution and functioning of these organisations also vest in the government. The government prescribes conditions of disqualifications of candidates or members. Farmers’ organisations have been given the power to levy and collect such fees as may be prescribed by the government from time to time, for fulfilling its objectives. The functions and duties of WUAs under the Act do not in any manner diminish the powers of the state in the control and management of water resources.

Watershed Development Initiative in Madhya Pradesh Watershed Development, as a major and new approach to rural development, was initiated by the Madhya Pradesh government in 1994–95. Its significance lies in the fact that the programme was introduced in as many as 459 blocks in all 45 districts in the State, and is the largest programme of its kind addressing the critical task of soil and water conservation and watershed development in any single State in the country. A significant aspect of the programme was the establishment of a community-level four-tier institutional framework that includes Watershed Committees, User Groups, Self-Help Groups, and Women’s Thrift and Credit Societies. None of these institutions, however, were covered under any legal framework, but were constituted under the directives and guidelines of the Rural Development Department. The watershed institutions created under the Rajiv Gandhi Watershed Mission had nothing to do with the legal management of the land or water resources of the villages as they were not so empowered. Watershed committees were involved in the management of funds allotted to watershed activities, such as the construction of water harvesting structures. Their continued existence was dependent on their financial strength. After the exhaustion of the major part of their programme funds, these committees dissipated very soon.

Role of Panchayat Institutions in Madhya Pradesh The number of non-elected village-level management institutions (such as watershed management committees, forest protection committees, village development committees and ‘self-help’ groups) being promoted by the

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government under various programmes suggests that elected village level local government institutions have a decreasing role in natural resource management. The Madhya Pradesh Panchayat Raj Avam Gram Swaraj Act 1993 (The Madhya Pradesh Panchayat Raj and Village Self Government Act, 1993) attempted a significant change in the earlier law on the local government by establishing the Gram Sabha as a body superior to the Gram or village Panchayat. Section 5A defines the Gram Sabha as a body corporate, having perpetual succession and seal, with powers of holding, acquiring and disposing movable and immovable property, and with powers to sue and be sued. It has been assigned as many as 54 functions and powers in total, almost all of them previously held by the Gram Panchayats. Of these powers, as many as 18 are related to natural resource management. There have, however, been no initiatives in terms of government orders, circulars or notifications to transfer these powers to Gram Sabhas. Under the Act, the Gram Panchayats mainly have ‘functions’, and very little ‘powers’ (powers are restricted to public health and safety issues, naming of streets and buildings, and regulating markets and fairs; the operation of the funds of the village Panchayat can be done only jointly with a government functionary). Their ‘functions’ relate to preparation of plans and execution of schemes that are entrusted to them by the government. Meanwhile, Janapad Panchayats (the second tier of Panchayat bodies at the block level) are entrusted with making financial provisions for programmes related indirectly to natural, including water, resource management, thus duplicating the envisaged role of Gram Sabhas. The functions of Zila (district) Panchayats are similar to those of the Janapad, but are applicable to the district as a whole. Zila Panchayats also coordinate and supervise lower level Panchayats, and have relatively greater powers than these lower level bodies. Except for powers to lease water bodies for fisheries within prescribed limits, through which Panchayati Raj Institutions could earn an income, the rest of their responsibilities come without the necessary powers to control resources. On paper, Madhya Pradesh has devolved maximum authority to village Gram Sabhas under PESA, which applies to States with Schedule V tribal areas. In fact, PESA has not yet been operationalised. All existing natural resource statutes remain in force without substantive amendment in favour of tribal communities.

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Rights in, and Management of Water Resources in Uttarakhand In Uttarakhand, water resources were legally declared to be under the sovereign control of the state for the first time in 1917, when rules for the regulation of water mills were first introduced. However, the British administration gave legal recognition to the customary water rights of the hill people, which were transformed from ‘community ownership rights’ into ‘use rights’. While customary rights were recognised, customary dispute resolution mechanisms were not and the jurisdiction of formal judicial institutions was mandated, thus de-legitimising traditional dispute resolving mechanisms. To resolve disputes related to water rights, however, statutory judicial institutions relied on the doctrine of ‘prior right’,67 which helped to establish the exclusivity of customary use rights acknowledged under colonial rule. Thus, while customary rights were recognised, they were made subject to formal legal procedures, thereby establishing government intervention in management. This position was reiterated by the Kumaon Water Rules of 1930. The former applied to water mills and the latter extended the rules to irrigation as well. Drinking water was not included in the purview of the Rules. In addition to the Kumaon Water Rules, the land laws also contributed to the legal recognition of customary rights to water. Local communities’ customary rights to sources within their village boundaries were recorded in revenue settlements. These records of rights at the village level were termed Wazib-ul-Arz or Yaddast-Haalat-Gaon.

Post-constitutional Status of Water Rights and Management The legal framework on the rights and management of water in hill areas, as laid down in the Kumaon Water Rules of 1930 continued to apply in 67 Since much physical and financial resources had to be invested in the construction of channels on the steep mountainsides, to bring water from long distances to the fields, it was considered just that the rights of the person or community who took such efforts should not be disturbed by those who construct at a later point of time from the same source. Thus the ‘prior rights’ of the first party were protected by ensuring that the later entrants constructed channels in such a manner as not to reduce the extent of prior rights. Prior to government intervention in regulation, this function was exercised by local communities themselves.

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this region until 1975.68 The Irrigation Department commenced its functioning in the hill area in the early 1950s. While the Northern India Canal and Drainage Act of 1874 technically applied to the whole State of Uttar Pradesh, it was meant for the large-scale irrigation works of the plains and was inappropriate for the management of the minor irrigation systems of the hill areas. In the hill areas, there is a predominance of farmer-owned traditional irrigation systems over state-constructed systems. The Minor Irrigation Census of 2000–1 of the Government of Uttarakhand shows that of the total 80,053 MI systems in the State, only 6,781 were government-owned. Post-constitutional land reform law enacted for the hill region—the Kumaun and Uttarakhand Zamindari Abolition Act, 1960—recognised private rights to water. Any water source located on the land of any person was deemed to be ‘settled’ on that person (Section 7, Rule 9). This same Act, on the other hand, vested all common lands in the State, and the practice of ‘recording’ of customary rights (that include rights to water sources for irrigation, water mills and drinking) in common lands has been dispensed with. A major change in water rights and management occurred in 1975 with the enactment of the Kumaun and Garhwal Water (Collection, Retention and Distribution) Act of 1975, and the UP Water Supply and Sewerage Act of 1975. These two statutes represent the current official policy on water resources. They redefine the relationship between the state and the public with regard to water resources. At the policy level, drinking water supply was made a priority by both Central and State Governments. Supply of water became a monopoly function of the state. Financial assistance from foreign lending institutions such as the World Bank became available for water supply programmes. In the hill region, it was necessary to enact a law in order to give powers to the government to abstract water from any source for the supply of drinking water. The prevalence of customary rights of individuals and village communities over water sources was a legal hindrance to the government. Therefore legal reform was undertaken to give effect to the drinking water supply policy of the government. The K & G Water Act of 1975 was intended for the regulation and control of water sources in the hill tracts of Kumaun and Garhwal to ensure a rational distribution of water for the purposes of human and animal consumption, irrigation and industrial development. However, it has been 68 After the coming into effect of the Constitution, the Rules, which had been enacted under the Scheduled Districts Act, 1874, were notified under the U.P. Land Revenue Act, 1901.

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utilised primarily for the supply of drinking water. The main feature of the Kumaon and Garhwal Water Act is that individual and community customary rights to water were abolished and all water sources explicitly brought under the control of the state. The sources of water that have been brought under State ownership and control include ‘collections of rain water’. Thus, the legal recognition of customary use rights to water sources (exclusive to local communities within whose physical boundaries such sources were located and exclusive to individuals within whose lands the sources were located) was done away with. As a result of water rights reform through law, water related conflicts over water sources have increased all over the State.69 Local communities continue to resist the takeover of their rights, even though they have become dependent on piped water supply, due to an all-round decline of water sources. A single provision in the K & G Water Act of 1975 that deals with the conservation of water sources remains completely unimplemented.

Management of Water Current law not only does not recognise any more community rights to water but also continues to deny recognition to community involvement in the management of water resources. The primary responsibility of management of drinking water supply vests with the government agency. The UP Water Supply and Sewerage Act of 1975 constituted the Jal Nigam and Jal Sansthan and vested them with monopoly powers with regard to extraction and supply of drinking water. The powers, duties and functions for the supply of water, which had hitherto been vested in Panchayat Institutions at district, block and village levels and in urban local bodies were transferred to state corporations. Attempts to involve local communities and Gram Panchayats in this task through the World Bank-funded Swajal programme did not yield lasting results, as the communities were not sufficiently empowered for the purpose as they were given responsibilities without adequate financial and regulatory powers.70 In the matter of irrigation, farmers continue to be the main force in the management of community irrigation systems, but are unrecognised in 69 DCAP, ‘Empowered State and Eroded Water Rights in Uttarakhand’; Vani and Asthana, ‘Empowered State and Eroded Water Rights’. 70 DCAP, ‘Evaluation of Varied Approaches for Enabling Sustainable and Equitable Access to Drinking Water in Uttaranchal’.

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law and policy. The Government Irrigation and Minor Irrigation Department is responsible for the State-constructed systems. There is no current policy on Participatory Irrigation Management in the State with respect to State systems. Water mills are regulated by the government but entirely managed locally.

Role of Panchayat Institutions Uttarakhand is yet to amend earlier municipal laws and legislation on Panchayati Raj Institutions, such as the Uttar Pradesh Village Panchayat Act 1947 and the Kshettra Panchayats and Zilla Panchayats Act 1961, to devolve powers to local bodies. The approach of the government towards local bodies is indicated by the fact that the State’s Draft 10th Five-Year Plan (2002–7), which sets out its vision and strategy for development, makes no mention of Panchayati Raj Institutions.

Integrated Approach to Natural Resources Management An integrated natural resource approach to water resources management is a fundamental requirement not only in a monsoon-based ecology such as India but also in all types of climatic regimes and natural landscapes where the preservation of water quantity and quality on an ecosystem level is required. The non-recognition of the monsoon ecology as the determinant factor for water resources and the lack of an integrated approach in legal and policy frameworks on natural resources in India are two sides of the same coin. At the policy level, watershed development as an approach for land improvement, soil conservation, water conservation, improvement of productivity and income, etc., is relatively new and was started by the government on an experimental basis in the early 1980s.71 (This was preceded by water and soil conservation programmes in the commands of large projects since the 1960s.)

71

GOI, ‘From Hariyali to Neeranchal’.

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Till date, a total of 45.58 mha has been treated through various programmes with an investment of Rs 17,037 crore.72 It has taken a quarter of a century to treat 26 per cent of the area officially declared as subject to environmental degradation in India. The healthy status of such treated land resources is again questionable, as officially sponsored watershed development programmes rarely include adequate institutional and financial support for sustainability. While the concept of watershed presupposes an integrated approach, it is a matter of irony that watershed development policy in India at the national level has been implemented through 14 different programmes by three different ministries, with very little coordination or integration between programmes and institutions.73 At the level of legal frameworks, the very existence of an independent bureaucratic machinery for each of the natural resources of land, water and forest from the national to the State, district and block levels contradicts the principle of a watershed-based approach, which requires integration as well as decentralisation of management. In addition, the divisive legal frameworks constitute a hindrance to the involvement of the public at large in the task of monsoon harnessing and water resources management in appropriate ways. The continued official adherence to conventional resource management approaches ignores the developments in other parts of the world in this direction. In the United States, federal enactments for watersheds have been in existence from as early as the pilot watershed authorisations of 1953, and the Watershed Protection and Flood Prevention Act of 1954 (Public Law 566). Numerous States in USA have enacted legislation enabling the formation of watershed organisations that are eligible for technical and financial assistance under Public Law 566.74 The State of Minnesota, for instance, enacted a 72

Ibid. The Technical Committee on Watershed Programmes in India (Department of Land Resources, Ministry of Rural Development, Government of India, 2006) cites the National Advisory Council on this issue thus: 73

There is, at present, a multiplicity of programmes for rehabilitation of degraded lands through watershed development run by different Ministries. There has been a proposal in the government to bring all these programmes under a single Ministry—a necessary condition for implementing them on a Mission Mode. While the concerned departments are in agreement about the desirability of bringing together all the watershed programmes under one umbrella with a view to implementing them on a Mission Mode, serious differences persist among different Ministries regarding the ownership of the unified programme ….’ (GOI, ‘From Hariyali to Neeranchal’). 74 Pavelis and Timmons, ‘Programming Small Watershed Development’.

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‘Watershed Districts Act’ as far back as in 1955. The Act provides for the establishment of watershed districts ‘to conserve the natural resources of the state by land use planning, flood control, and other conservation projects ... using sound scientific principles for the protection of the public health and welfare and provident use of the natural resources’. The Act recognises several fundamental concepts in the effective management of water resources, such as hydrologic focus, land use, financing water resources improvements and engaging citizen ownership.75 In a review of State-wide, watershed management approaches,76 the US Environmental Protection Agency (USEPA) observed that over the past decade, more than 20 States have adopted a ‘statewide’ watershed approach in the management of their water programmes. Many of these States had also enacted statutes to enable ‘local’ watershed approaches.77 A remarkable feature of the US Constitution is the distribution of legislative powers between the federal, State and local bodies such that, in most States, local bodies (below State level) are vested with legislative powers in relation to land use planning, zoning and regulation, and many other aspects of natural resource management.78 This political arrangement is highly conducive to the adoption of integrated resource management approaches in the United States. In South Australia, a comprehensive Natural Resources Management Act was enacted in 2004 as a result of an impressive two-year long public consultative process. The Act is intended to promote sustainable and integrated management of the State’s natural resources. The Act also repealed previous sectoral natural resources legislation such as the Animal and Plant Control (Agricultural Protection and Other Purposes) Act 1986, the Soil Conservation and Land Care Act 1989, and the Water Resources Act 1997. In contrast, in India, approaches in law and policy present a fractured picture. In terms of land use for instance, no State in India has so far adopted 75

Smith, ‘The Fundamentals of Minnesota Watershed Law’. USEPA, 2002. A State-wide watershed approach consists of five key components: (a) the delineation of a State into natural geographic (for example, watershed/basin) management areas; (b) a series of management steps or phases to guide regulatory and non-regulatory actions within geographic areas (that is, monitoring, assessment, planning, implementation); (c) the integration of Clean Water Act (CWA) and other water resource programmes through the coordinated implementation of management steps and the formation of partnerships; (d ) a process for involving stakeholders and (e) a focus on environmental results (USEPA, ‘A Review of Statewide Watershed Management Approaches’). 77 USEPA, ‘A Review of Statewide Watershed Management Approaches’. 78 Vani and Asthana, ‘Local Self-Governance and Environmental Decision Making’. 76

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a policy for land use. In its country report to the Commission on Sustainable Development in 2002, the Government of India admitted: ‘Although some progress has been made in Land resource management in India, it is still in its infancy.’79 This is in spite of the fact that as long ago as 1986, a National Land Use Policy Outline (NLPO) with a 19-point Action Programme had been approved by the National Land Use and Wasteland Development Council in its first meeting that year. The NLPO had been circulated to all States for the preparation of a land use policy for enactment. By 2002, only Uttar Pradesh and Kerala had prepared a draft Land Use Policy. As discussed earlier, land laws continue to be oriented towards the collection of land revenue rather than towards sustainable management. In the forestry sector, the National Forest Policy 1988 recognised the importance of an integrated approach to resource management by stating that ‘Checking soil erosion and denudation in the catchment areas of rivers, lakes, reservoirs in the interest of soil and water conservation, for mitigating floods and droughts and for the retardation of siltation of reservoirs’ was one of the objectives of the policy. This, however, is far from being translated into law. In the water resources sector, an integrated resource management approach is yet to be declared clearly even at the policy level. The water resource sector itself is far from achieving integration, with separate administrative and legal arrangements for irrigation (in which major/medium and minor irrigation are dealt with separately), drinking water, groundwater, flood protection, pollution control, hydropower, etc. Its approach to integration with other natural resources is far from materialising. The watershed development programmes in the country originate from other sectoral ministries and departments (Rural Development, Agriculture, Environment and Forests), rather than from the water resources sector. The indifference shown by the water resources sector to the need for an integrated approach is reflected in its approach to RWH (which requires an integrated approach), as expressed in the National Water Policy, which fails completely to shift from the old ‘project oriented’ approach to water resources.80 For instance, the NWP states that ‘precipitation is confined to only about three or four months in a year and varies from 100 mm in the western parts of Rajasthan to over 10,000 mm at Cherrapunji in Meghalaya.’ It fails to carry the logic further and acknowledge the narrower interval of time in

79 80

GOI, Report of the Steering Committee on Irrigation for the Tenth Five Year Plan [2002–7]. Vani, ‘Political Economy of Rain Water Harvesting in India’.

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which the rain actually falls, measured in terms of hours. If this were to be acknowledged, it would entail an obligation to acknowledge the necessity of a vast effort across the country in ‘monsoon harvesting’ within a short window of time, no different from the time-bound wheat harvesting or paddy harvesting. Such an effort would require a large-scale devolution of responsibilities and authority to communities across the country, which is anathema to the ‘year round project-oriented’ approach of government agencies. RWH is mentioned in several contexts as an addendum to other priority approaches. For instance, it is stressed mostly in relation to ‘drought prone areas’, without acknowledging its need everywhere. It is mentioned as one of the ‘traditional methods’, next in priority to other non-conventional methods.81 In other words, RWH remains at the level of piecemeal strategy, rather than an objective of water resources management. Typically, the section on Participatory Approach to WRM envisages people’s participation, not in the governance of water resources, but ‘in various aspects of planning, design, development and management of the water resources schemes’ (emphasis added). Watershed management has been mentioned in the NWP in relation to water resources planning (Para 3.4), not as something which is indispensable, but one which should be ‘promoted’. This particular approach enables undertaking watershed development projects in a piecemeal way in selected locations across the country, rather than adopting it as a fundamental approach to natural resource management. A matter of related significance is that ‘land use policy’ has been mentioned only once in the NWP, under the section on ‘Irrigation’. The need for an integration of land-use policy with water resources policy as a whole has been lost sight of. The concept of ‘Water Zoning’ has been included without reference to land-use zoning. The section on groundwater contains absolutely no directions on how recharge should be effected. Water policies at the State level reflect the same sectoral, project-oriented approach to water resources management, which constitutes a barrier to the integrated resource management approach that is critical for RWH.82

81 National Water Policy 2002: Water Resources Planning: Para 3.2—Non-conventional methods for utilisation of water such as through inter-basin transfers, artificial recharge of groundwater and desalination of brackish or sea water as well as traditional water conservation practices like rainwater harvesting, including roof-top rainwater harvesting, need to be practised to further increase the utilisable water resources. 82 Vani, ‘Political Economy of Rain Water Harvesting in India’.

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On the whole, an integrated approach to natural resources management, which is required for maintaining RWH as a primary action in the governance of water resources in general is lacking in Indian policy and law.

From ‘Public Participation’ to Citizen Engagement in Governance The single major policy focus in water resources administration in India— large-scale irrigation projects—also constituted the source for the emergence of ‘public participation’ in the management of the resource. The need for ‘public participation’ began to be felt by the government only in relation to large-scale irrigation projects when the decrease in their efficiency on a significant scale began to be apparent. The concept of participatory irrigation management had been experimented upon since the mid-1970s as part of the Command Area Development Programmes to address the large gap between the irrigation potential created and the potential utilised, with respect to almost all large-scale projects in the country. Since the mid-1990s, ‘Participatory Irrigation Management’ has been officially promoted actively in all States to correct some fundamental problems that came to be associated with large-scale projects—inequitable supply of water, especially at the tailend of distributaries, improper operation and maintenance of the systems, poor recovery of water rates, indiscipline in the distribution of water and the problem of waterlogging due to seepage from canal networks on the one hand and over-irrigation on the other. The continuation of policy focus on centralised, monolithic irrigation projects in the country necessarily limits the concept of decentralisation. Community organisations at the outer ends of such systems are perceived as ‘end users’. The organisation of end users and the involvement of such organisations in system operation and maintenance may present a better alternative to the current unilateral administrative systems. However, such an arrangement will continue to reflect a top-down approach, whereby the end users are only expected to share the burden of ‘maintaining and operating’ a ‘system’ rather than being engaged in the ‘governance’ of a ‘resource’. In recent years, however, the concept of PIM has been sought to be extended to ‘minor irrigation’, ignoring the fact that in the latter type of systems, which are primarily water harvesting structures, a spectrum of benefits is derived in addition to irrigation. This not only increases the range of users

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but also calls for a different management paradigm that takes into account land and water resources concertedly. This has an implication not only for water rights—surface and groundwater—but also for land rights and rights to usufructs from land as well. Other sectoral policies have also spawned a plethora of community-level ‘organisations’, set up legally through statutes or governmental orders, that have a bearing on water resources administration—fishermen’s cooperatives, watershed committees, water users’ associations, drinking water and sanitation committees, community forestry committees, self-help groups, women’s development groups, youth groups, etc. These groups exert their various rights in competition rather than concertedly, with negative consequences for equity and sustainability issues. The introduction of such state-prescribed and designed institutions in the rural context has been done without reference to existing traditional social institutions that are ubiquitous in all contexts of rural life—whether tribal or non-tribal, coastal or inland, hills or plains, deserts or deltas. Such institutions and groups have a long and rich history in natural resources decision-making, which is entirely ignored in official policy and law-making. Balancing various rights in water and land, and implementing land and water management concertedly requires the involvement of the larger village community and not merely sectorally organised ‘user groups’. Such a mobilisation requires a larger institutional framework than a sectoral ‘users’ association’. Secondly, it also requires a political and legal mandate that a users’ association may not have, but is well within the province of an institution such as the Panchayat, with Constitutional authority and a Gram Sabha, a legal institution that comprises all potential decision-makers of a village. The Parthasarathy Committee that reviewed watershed programmes in India,83 recognised the need to integrate the institutional mechanisms for watershed development that had been promoted so far at the village level—the Village Watershed Committee—with the Village Panchayat and Gram Sabha, which possess the legal and administrative powers that are necessary for the task of watershed development. A pre-requisite, however, for the effective functioning of an integrated set of institutions at the watershed level is a fundamental reform of the existing policy and legal frameworks on natural resources, without which these institutions will remain ‘implementing agencies’ rather than ‘institutions of self-governance’ that provide the legitimate legal space for the engagement of the public as ‘citizens’ rather than ‘beneficiaries’ or ‘consumers’. 83

GOI, Report of the Steering Committee on Irrigation for the Tenth Five Year Plan [2002–7].

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Most importantly, there needs to be a shift from a ‘policy-based’ government to law-based governance.

Role of NGOs Non-governmental Organisations (NGOs) in India have had a long and significant legacy in implementing programmes and projects related to natural resources management. While the role of NGOs is predominantly seen as ‘implementation agencies’ of state policy, those institutions that have adopted ‘rights-based approaches’ have been concerned with legal frameworks as well. In addition to legally constituted NGOs that implement rural natural resources management programmes on significant scales or are engaged in research and advocacy (WOTR, Maharashtra; Sadguru Foundation, Gujarat; Tarun Bharat Sangh, Rajashtan; MYRADA, Arghyam, Karnataka; CSE, Delhi, to name a few), the natural resources sector in India has witnessed the emergence of organised and unorganised ‘movements’ which have been directed at protecting or defending the rights to natural resources and seeking a legitimate role in the governance of natural resources, including water. Some examples are the Chipko movement, the Narmada Bachao Andolan, movements for achieving tribal rights of self-governance, etc. Another type of voluntary action has emerged from the community of natural resource users—at individual and group levels such as individual householders, farmers, urban and rural neighbourhood groups, resident welfare associations, who have taken up land and water conservation and management at the micro level. Recent policy and public debate on the importance of RWH has generated a response from the corporate sector, educational institutions, technical institutions of research and application, religious institutions, school children, celebrities such as film stars, politicians—the list is long. The latter type of ‘public engagement’ in water-related activities, particularly RWH, has come about with the experience of progressively reducing availability of water for basic necessities and the failure of the state in ‘supplying’ water for various needs. These initiatives exemplify the dictum that ‘water is everybody’s business’. The functioning of NGOs in the natural resources sector has been actively sought by the government in India precisely because the NGO sector is able to undertake those activities that the state is disinclined or unable to do. As the Parthasarathy Committee puts it,84 ‘The NGOs are, in general, better 84

Ibid.

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equipped to undertake the task of creation of awareness, social mobilization and capacity building.’ In addition, they also implement programmes relatively successfully, and are able to produce results that justify the high levels of state investment in the natural resources sector. In providing this service to the government, NGOs on the one hand become circumscribed in their vision and action by the limitations in state policy and law for natural resources, and on the other hand, inadvertently contribute to the sustenance and promotion of such inappropriate governance frameworks. ‘Activist’ NGOs which focus on mobilising the public for claiming rights and democratic participation seek to evolve alternative paradigms of development that would ensure the achievement of such goals. The two categories of NGOs, however, function more or less in isolation from each other. Separately or together, they are yet to influence on any significant level a transformation of the prevailing legal and policy frameworks on natural resources, which have a direct impact on the sustainable use and management of natural resources. In spite of these limitations, they constitute a vital link between citizens and government, working for the transfer and development of information, funds, capacities, skills, institutions and processes. In multifarious ways, they contribute to promoting and strengthening the engagement of citizens and communities in the use and management of natural resources, including water. The results, however, are yet to be consolidated into a comprehensive, holistic governance framework for water and other natural resources, one that could answer the requirements of sustainability and equity.

Conclusion Global awareness and acknowledgement of climate change phenomena has irrefutably established the relationship between human activities and the status of the environment. Development models or governance paradigms can no more ignore the conditions and limits set by the environment. This means that the philosophical, political, economic and cultural frameworks that human beings adopt to determine and describe human society need to recognise the central role of the natural world of which we are a part, and not the part. With respect to water resources in India, it is necessary to recognise that the ecology of India is monsoon-based, and this recognition needs to be the starting point in constructing an appropriate governance framework

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for this resource. The fundamental problems associated with water resources today—scarcity, pollution, inequity—arise from the absence of an ecological perspective in the governance of natural resources. Such recognition has to be inevitably followed by a holistic approach to resource management that allows for micro-level governance and macro-level management. In other words, an understanding of the totality of local conditions has to support micro-level governance before macro-level management decisions are made. Current policy and legal frameworks tend to follow a directly contradictory path— macro-level governance and the delegation of management responsibilities to local levels. With such an agenda set by the state, very little ‘legal’ scope exists at present for citizen engagement in the governance of water and other natural resources. Where citizens do participate, independently or through the medium of various institutions—state-sponsored or not—it is generally within those spaces where the policy and legal frameworks of the government have failed to reach, due to the selective approach in their implementation of law and policy. While citizen contribution to NRM is immense in India, it is a matter of injustice that such contribution has to contend at all times with an adversarial state, which uses the strength of the people to sustain itself. It is a matter of public knowledge that the globalisation of the Indian economy and the subjection of India’s natural resources to the demands of the world market are taking place without a re-orientation of governance towards ecologically sustainable models. Without a shift from ‘eminent domain’ to ‘public trust’, from ‘bureaucracy’ to ‘democracy’, from policy-based governance to governance by law, current paradigms of water resources use and management will continue to contribute substantially to the unsustainability of the resources of the earth.

References Agarwal, Anil and Sunita Narain (eds) 1997. Dying Wisdom—Rise, Fall and Potential of India’s Traditional Water Harvesting Systems. New Delhi: Centre for Science and Environment. Bastiat, Frederic. 1850. The Law, translated by Dean Russell. New York: The Foundation for Economic Education. Chaturvedi, Badrinath. 1993. Dharma, India and the World Order. Pahl-Rugenstein and Saint Andrew Press: Bonn and Scotland. DCAP. 1996a. ‘Law and Custom in Water Resources Administration: A Case Study of U.P. Himalayas’. Report sponsored by the Ford Foundation, New Delhi.

210 M.S. Vani DCAP. 1996b. ‘Empowered State and Eroded Water Rights in Uttarakhand—A Study of Water Disputes in Uttarakhand State’, Report sponsored by the Ford Foundation, New Delhi. ———. 2003. ‘Evaluation of Varied Approaches for Enabling Sustainable and Equitable Access to Drinking Water in Uttaranchal’, Report sponsored by the Planning Commission, Government of India. Gadgil, Madhav and Ramachandra Guha. 1993. This Fissured Land—An Ecological History of India. New Delhi: Oxford University Press. Government of India. 1999. Ninth Five Year Plan 1997–2002. Volumes 1 and 2. New Delhi: Planning Commission. ———. 2002. Report of the Steering Committee on Irrigation for the Tenth Five Year Plan [2002–7]. Planning Commission. Available online at http://planningcommission.nic. in/aboutus/committee/strgrp/stgp_irrig.pdf. ———. 2004. Press Release, 18 June, Ministry of Environment and Forests. ———. 2006. ‘From Hariyali to Neeranchal’, Report of the Technical Committee on Watershed Programmes in India, Department of Land Resources, Ministry of Rural Development. Gulati, Ashok, Ruth Dick Meinzen- and K.V. Raju. 1999. From Top Down to Bottom Up: Institutional Reforms in Indian Canal Irrigation. New Delhi: Institute of Economic Growth. Lingat, Robert. 1973. The Classical Law of India. New Delhi: The Thompson Press (India). (Translated from the French by J.D.M. Derrett.) Mosse, David. 2003. The Rule of Water. Statecraft, Ecology and Collective Action in South India. New Delhi: Oxford University Press. Narain, Pratap, A.S. Rao and I. P. Abrol. n.d. ‘Managing Droughts and Desertification in India—Lessons from the Past and Future Strategies’, Central Arid Zone Research Institute, Jodhpur, and Center for Advancement of Sustainable Agriculture, New Delhi. Available at http://www.wg-crop.icidonline.org/32doc.pdf. Pavelis, George A. and John F. Timmons. 1960. ‘Programming Small Watershed Development’, Journal of Farm Economics, 42(2): 225–40. Pisharoty, P.R. 1990. Speech at the Seminar on Traditional Water Harvesting Systems of India, Centre for Science and Environment, New Delhi, cited in Agarwal and Narain 1997. Smith, Louis N. 1997. ‘The Fundamentals of Minnesota Watershed Law’, Paper presented at the New Watershed District Manager Orientation sponsored by the Minnesota Board of Water and Soil Resources and the Minnesota Association of Watershed Districts, 8 April 1997. Available online at http://www.waterlaws.com/bulletins/watershed_district.html. SANDRP (South Asia Network on Dams, Rivers and People). 2007. ‘Assessment of Irrigation Options in India’, Draft Paper on India Water. Selvarajan, S. 2001. ‘Sustaining India’s Irrigation Infrastructure’, Policy Brief 15, National Centre for Agricultural Economics and Policy. Sen, Jai. 2000. ‘The Reclaiming of Eminent Domain: The Sovereignty of the People, the Legitimacy of the State. The Relevance of the Narmada Hearings’ Frontline, pp. 104–9, 12 May. Also available online at http://www.narmada.org/articles/JAI_SEN/reclaim. html. Shah, Tushar, D. Molden, R. Sakthivadivel and David Seckler. 2000. Global Groundwater Situation: Overview of Opportunities and Challenges, International Water Management Institute, Colombo cited in GOI, 2006.

Community Engagement in Water Governance 211 Stokes, Eric. 1959. The English Utilitarians and the Law. Oxford: Oxford University Press. Tamboli, L.P. and C.N. Jha. 1996. Madhya Pradesh Irrigation Manual. 3rd edn. Bhopal: Suvidha Law House. Turton, Cathryn. 2000. ‘Enhancing Livelihoods through Participatory Watershed Development in India’, Working Paper 131, Overseas Development Institute, London. Upadhyay, Sanjay and Videh Upadhyay. 2002. Forest Laws, Wildlife Laws and the Environment. Volume 1. New Delhi: LexisNexis, Butterworths. US Environmental Protection Agency (USEPA). 2002. ‘A Review of Statewide Watershed Management Approaches’, Final Report, US Environmental Protection Agency. Vani, M.S. and Rohit Asthana. 2000. ‘Empowered State and Eroded Water Rights—Water Law and Policy in Uttarakhand’, in G.K. Kadekodi, K.S.R. Murthy and Kirit Kumar (eds), Water in Kumaon: Ecology, Value and Rights. Nainital: Gyanodaya Prakashan. ———. 2004. ‘Local Self Governance and Environmental Decision Making: Potentials and Practices in United States Law and Law in India’, Paper presented at Environment Law Institute, Washington DC, US. Available online at http://www.waterforfood.org/gga/ Lecture%20Material/MSVani_CustomaryLaw.pdf Vani, M.S. 1992. Role of Panchayat Institutions in Irrigation Management: Law and Policy. New Delhi: Indian Law Institute. ———. 2002a. ‘Panchayat Raj and Water Resources Management in India: Law and Policy’, Paper presented at Seminar on ‘Policy Futures for Water Resources Management in India: From Prescription and Impact Assessment to Strategic Analysis’, IWMI, Hyderabad. ———. 2002b. ‘Customary Law and Modern Governance of Natural Resources in India— Conflicts, Prospects for Accord and Strategies’, in Rajendra Pradhan (ed.), Legal Pluralism and Unofficial Law in Social, Economic and Political Development, Vol. I, Papers of the XIIIth International Congress, 7–10 April, Chiang Mai, Thailand, ICNEC Kathmandu pp. 409–46. ———. 2005. ‘Political Economy of Rain Water Harvesting in India: Reflections in Central and Regional Law and Policy’, Paper presented at the XII International Rainwater Catchment Systems Conference, New Delhi. Whitcombe, Elizabeth. 1972. The Cambridge Economic History of India, Dharma Kumar (ed.), Vol. 2. Berkeley: University of California Press.

Primary Sources National Archives of India (NAI), Legislative Department 1869, A Proceedings, October 1869, Nos. 127–28. ———. P.W.D. Irrigation, December 1901, No. 31(a). ———. Legislative Department, 1871 Proceedings A, December, Nos. 13–76. ———. Legislative Department, Proceedings, February 1873, Nos. 136–87. ———. Legislative Department, Proceedings, February 1873, 136–87, No. 1578-A, dated 20 September 1872. National Archives of India (NAI), Civil Works Irrigation A, December 1901, No. 31.

212 M.S. Vani Regional Archives, Nainital, Uttarakhand, F.830/1911/Box 849/Revenue A Proceedings, Nos. 49–55, January 1912, Government, United Provinces, Revenue Department. Regional Archives, Nainital, Uttarakhand Government of U.P., LSG, October, A Proceedings Nos. 1–6, File No. 165/1915, dated 26 December 1916.

9

Water Use: Legal and Institutional Framework K.J. Joy and Suhas Paranjape The unfolding scenario for water use in many parts of the world is one of increasing concern about access, equity and the response to growing needs. This affects relations between rural and urban populations; upstream and downstream interests; agricultural, industrial and domestic sectors; and human needs and the requirements of a healthy environment.1

River waters are a contested ground in India, full of complexities and a welter of contending parties. Water conflicts have been with us since ancient times. One of the earliest water conflicts in India is recorded in the famous Goutama Buddhar Kappiyam. As the Kappiyam describes it, When the Sakiyas and Koliyas waged a terrible war About sharing the river Rohini, Blood, gushing like a spring, flooded the waters, The Buddha, coming to know of it, Did what was needful To end the long-drawn discord and To bring both sides together. All shall be well if good men try2

Good men still try but the conflict rages on. While Sakiyas and Koliyas abound, there is no Buddha in our midst. There is much self-interest but little wisdom, little of Buddha’s ‘self-enlightenment’ about the issue—the 1 2

World Commission on Dams, Dams and Development. As cited in Guhan, The Cauvery River Dispute.

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enlightenment of the people themselves. Neither does the legal system in the country seem to be providing this ‘wisdom’. It does not seem to be willing and/or equipped to address the issue of water conflicts, especially those arising out of contestation over different types of uses and users. In 1997–98, the late Shri Vilasrao Salunkhe3 moved the Mumbai High Court and prayed that the court direct the Government of Maharashtra (GoM) to come out with a water policy for the State and make equitable water distribution part of it. The GoM responded that since it has adopted the National Water Policy, there was no such need. Instead of using the petition to move the polity towards a positive agenda on water governance and water allocations, the court accepted GoM’s argument and dismissed it. The effort in this chapter is to try to understand the increasing conflicts over water allocation and sharing amongst different uses and users within an overall normative framework committed to equity; evolve certain principles of allocation and suggest what could be the legal and institutional mechanisms to resolve these conflicts. The chapter is organised under five sections. In Section I—bio-physical and social peculiarities of water—we try to contextualise contending water uses and conflicts in the bio-physical social characteristics of water. Then in Section II, we move on to discuss the range of contentions over water and take up contending water uses and conflicts over equity, access and allocations for a detailed analysis. In Section III we argue for an integrated approach and take up issues like equity, integration of local and exogenous water, surface and groundwater, and variable and assured water, and water rights, allocations, and transfers and related issues for a detailed discussion. Section IV is about multi-stakeholder platforms as a possible option for conflict resolution and governance and discusses some of the necessary conditions for multi-stakeholder processes to become meaningful instruments of governance especially the need for an inclusive normative framework, access to reliable data, information and decision support systems and the role of the state. In Section V—legal and regulatory frameworks—we discuss some of the critical issues like the different types of laws (union, state, natural and customary laws) with regard to water, rights, regulation and globalisation, and the interconnectedness of law and policy in the water sector. Analysing some of the policy initiatives in Maharashtra, the chapter concludes that the present legal framework, including the newer

3 He was the one who brought equitable water distribution on the socio-political agenda of Maharashtra in the late 1970s through the Pani Panchayat movement.

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ones that seek to institutionalise participative management and regulation, is entirely inadequate to address the issue of water conflicts. As an alternative, it is important that civil society initiatives for legislative reform should be based on a radically and fundamentally different normative framework that takes into account the specific nature of water as a natural, common pool resource and as property.

Section I: Bio-physical and Social Peculiarities of Water

Water is an Ecosystem Resource Part of the problem about looking at water stems from the specific nature of water as a resource, and its bio-physical and social characteristics. First of all, water is a resource embedded within ecosystems; we cannot treat it as a freely manipulable resource, nor as a resource to be mined. Many of our mega projects—such as big dams, diversions or inter-linking schemes—treat it so, undermining its long-term viability and sustainability and thereby adversely affecting the health of riparian ecosystems and livelihoods of riparian communities. Ecosystems have no voice, no votes, and some important ecosystem issues have never entered the agenda of water governance. The concept of ecological flows, the minimum flow required for the preservation of ecosystem services, is only recently being talked about, yet our long-term futures will finally be decided by whether we tackle these issues before we poison the well springs of life on this planet. The thinking that sees water flowing out to the sea as water going waste led to a water management strategy exclusively centred on dams. Dams do have a place, as we shall see later, it is important to have a historical perspective and not demonise dams and earlier dam builders from today’s vantage point, but we do need to question the wisdom of that approach. Secondly, we need to think seriously about issues related to water quality. Every water user not only uses water but also returns water, and how much water is returned and in what condition is crucial to ecosystem health. This is unfortunately the aspect of water that receives least attention. While the clamour over who should receive how much water is loud and clear, there is not much attention given to who is returning how much of that water to the ecosystem, and in what condition. As a consequence, our springs of life literally are being polluted and water quality is deteriorating at an alarming pace.

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Water Is a Common Pool Resource and Has Competing Uses Water is not a public good that can be used in common but a common pool resource: available commonly but used separately. Many people may use the same streetlight, but if someone uses some water, someone else is denied the use of that water. However, though there is an increasing awareness of the common pool character of water, it is clearly accepted only in respect of surface water; groundwater is treated as private property. Water is divisible and amenable to sharing. Water has multiple uses and users, and so there are resultant tradeoffs involved. There is the inherent problem of excludability; the exclusion costs involved are often very high. Water is present at many scales—from a so-called micro watershed to milli watershed to watershed to sub-basin to a basin. These scales are nested within one another and also interact with one another. So there is a need for understanding nested expanding scales and boundaries involved in water governance. And the way water is planned, used and managed causes externalities—both positive and negative—many of which are unidirectional and asymmetric.

Water is Both a Local and a Non-local Resource Although the localist viewpoint sees water only as a local resource, it is important to recognise that water is both a local and a non-local resource. Water flowing down from upstream watersheds is the basis of livelihoods in the downstream regions. Modifying water regimes in the upstream, however little, ultimately has basin-wide implications. The localist viewpoint ignores interdependence and the downstream effects appear as ‘externalities’. And so, while slogans like ‘gaonka pani gaonme’ (let the water of the village remain in the village) may help conserve water, their localism goes against the grain of collective regulation and control of water resources. Water, therefore, is as much a shared basin resource as a local resource; it needs an approach that nests different scales—from micro-watershed upwards to basins, and further up to states and countries. This implicates our view of rights, and for water we cannot say that local communities should have full right over it in their areas; it is necessary to

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place the issue in the perspective of inter-watershed or basin-level equity, and say that every community has a proportional right to water as part of a collective right to assured livelihoods. From this perspective, all communities should have the right to utilise as much of the local water resource as they can to fulfil their livelihood needs. But this also means that the water use beyond the fulfilment of livelihood needs does not form part of this right and, moreover, cannot be at the cost of others’ livelihoods. All these characteristics have a bearing on water related institutions,4 including law. And if they have the potential to trigger contention and conflict and become instruments of polarisation and exclusion, they can also become instruments of equitable and sustainable prosperity for all those who directly or indirectly depend on them for their livelihoods.

Peculiarities of Water as ‘Private Property’ Delivered by a piped water system, water appears to be private property, bought, sold and owned like any other commodity. However, ‘ownership’ of water is basically an entitlement to use water in a certain way at certain points and times. Secondly, it is affected by the actions of other actors and other people’s entitlements, and sometimes unilaterally, causing the constant headache of upstream states versus downstream states. And these entitlements are not volumetric, in an absolute sense, but rather are relative or proportionate entitlements; in other words, shares of a common pool resource. Moreover, since water is also a variable resource, the entitled share of a common pool resource may turn out to be very different in different situations because the prioritisation of needs may be very different. Take, for example, a rough classification of situations into those of normal availability, of surpluses and of shortages. Shares that accrue for various uses in normal situations may not be the same as those that accrue in surplus and shortage situations. Thus, ‘ownership’ over water is not only entitlement to a share of a common resource but also a share tied to a specified use and affected by the prioritisation of use. 4 There is a considerable amount of literature available on some of these, especially about common pool resources, their defining characteristics and the ‘fit’ between these characteristics and the institutions to manage them. Lele, ‘Beyond State-Community and Bogus “joint”ness’, summarises some of these discussions and debates.

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This element and its operational and legal implications are not fully taken into account by our establishment. For example, awards for the allocation of river waters assume availability at some level of dependability of river flow and specify allocations, but barring a few exceptions, do not evolve and lay down norms for modifying those allocations in light of surpluses and shortages, and this absence of commonly accepted norms of sharing shortages and surpluses leads to recurrent, or, permanent conflicts. Asymmetries and unidirectional relations play their own part in exacerbating or even incubating conflicts. The last point that needs to be taken into account is what has been identified as the often very high costs of exclusion. It is difficult to exclude someone from natural access (here, we are not talking about closely controlled artificial access like the one in a piped supply system). If water flows through a field to reach another field, it is difficult to exclude that field from accessing it for some other use. Since the state can operate only through the threat of exclusion, the high exclusion cost makes it very difficult for the state to enforce or modify natural access entitlements. Each of these characteristics of the ownership of water moves it further and further away from the classical private property ownership that is the basis so much of law. Actual water rights and governance institutions in the past have evolved slowly over hundreds of years in the form of customary water rights and entitlements and institutions that grew around these entitlements, adapting to each other through mutual interaction and adjustment. Water never was a commodity prior to the advent of modernity, which is often a euphemism for the advent and flourishing of capital. As capitalism expanded geographically and socially, it sought to capitalise nature more and more and convert it into private property, at least in form, if not in content. However, the peculiar nature of water as an ecosystem resource should make it clear that water cannot be treated as private property in the classical sense and it also follows that instruments like classical market mechanisms that are supposed to be efficient instruments for the management of classical private property also cannot work efficiently because water lacks the reliability, the ready manipulability and the constancy that other private properties have.

Section II: The Range of Contentions over Water Water conflicts are logical developments in the absence of proper democratic, legal and administrative mechanisms to handle the contentions that are at the

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root of water conflicts.5 It is important to have an idea of the range of conflicts and issues before we think of institutional and legal measures to tackle them. These conflicts may be grouped under two broad themes, namely contending water uses and conflicts over equity, access and allocations for simplicity of analysis though on the ground they are pretty interconnected. Both lead us to the issue of framework for equitable allocation and access.

Contending Water Uses When the same unit of water is demanded for different kinds of uses and sectors, we have a contestation and a potential conflict. For example, the case of the Keoladeo National Park6 involves contestation between the irrigation needs of the local farmers and the needs of the Bharatpur wetland bird sanctuary, a World Heritage and Ramsar site. At present, it continues to be resolved temporarily every year in an ad hoc manner. Or take two other Ramsar sites—Kuttanadu and Loktak. In Kuttanadu7 rice farmers and fishermen are in conflict whereas in Loktak8 unintended effects are more important. In the Chilika9 case, another Ramsar site, the conflict is many-sided and involves fishermen and settlers, while the Gagas basin10 in the Himalayas is a microcosm in which urban demands, state policy and increasing pressure endanger the source itself. In watershed development in Vadali11 in Chotila Taluk, Gujarat, the absence of social regulation has led to accentuation of drinking water problems as more water was diverted towards irrigation by the relatively rich farmers. In peri-urban areas there is a growing conflict between farmers who wish to mine groundwater to supply it to the city and those who want to use it for irrigation, a problem that extends from metropolitan Chennai12 to the Sangolda village13 in Goa. Conflict over the

5

Joy et al., ‘A Million Revolts in the Making: Understanding Water Conflicts.’ For a detailed analysis of the conflict see Chauhan, ‘Biodiversity Versus Irrigation’. 7 See Thampuran, ‘Choking the Largest Wetlands in South India’. 8 See Maitra, ‘Ithai Barrage in Manipur: A Lake in Trouble’. 9 See Deshpande and Bedamatta, ‘Whose is the Chilka?’ 10 See Paul and Paul, ‘Politics, Water and Forests in the Himalayas’. 11 See Prakash and Sama, ‘Social Undercurrents in a Gujarat Village’. 12 See Janakarajan, ‘Unequal Power, Unequal Contracts and Unexplained Resistance’. 13 See Dongre and Poteker, ‘Rural Needs or Tourism’. 6

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Ganga canal14 for Delhi is another case of conflict between the urban needs and rural livelihoods.

Equity, Access and Allocations Another kind of conflict occurs when the same unit is demanded by different users but within the same kind of use, and encompasses a wide variety of contestation. In the Bhavani River,15 tributary to the Cauvery in Tamil Nadu, competing demands between old and new settlers have been further aggravated by the growing demands of industry and drought. The ‘Phad’ systems16 in the Tapi Basin in Maharashtra, which had inbuilt equitable access and cropping system management, have all but collapsed. In the Palkhed Project17 in Maharashtra, tail-enders suffer double discrimination, both in terms of norm of allocation as well as the actual allocation. Recently, in a drought year, centuries of deep-rooted caste-based cultures and traditions of oppression and prejudice reared their heads to deny water to the Dalits in and around Mangaon.18 The Tembu Lift Irrigation Scheme (TLIS)19 in south Maharashtra, meant to serve a severely drought-prone region, has become a source of conflict and contestation between those who oppose it for its high lift and those agitating to restructure the scheme on more equitable lines. The proposed Nar-Par20 diversion in Maharashtra, which diverts the water of west-flowing rivers into other basins, is facing opposition from both ends, especially from adivasis (tribals) who would have to face submergence and displacement. The Indira Gandhi Canal case21 illustrates how so-called inter-linking and diversions may actually widen and sharpen a conflict rather than resolve it. The core issue that all these cases bring forth is the absence of clear-cut norms of equitable water allocation and distribution. Allocation norms 14

See Das, ‘Rural Livelihoods, Urban Needs’. See Rajagopal and Jayakumar, ‘Water Users in the Bhavani River Basin in Tamil Nadu’. 16 See Sane and Joglekar, ‘The Collapse of Phad System in the Tapi Basin’. 17 See Lele and Patil, ‘Tail-End Discrimination in an Irrigation Project in Maharashtra’. 18 See Paranjape et al., ‘Mahad to Mangaon’. Mangaon is very close to Mahad where, almost 80 years ago, Dr Ambedkar launched a Water Satyagraha by marching to the Chavadar Tank to open all public watering places to the Dalits. 19 See Kavade-Datye, ‘Tembu Lift Irrigation in Krishna Basin’. 20 See Desai, ‘Diverting Nar-Par-Damanganga to Tapi-Godavari’. 21 See Das, ‘Problems at the Indira Gandhi Canal in Rajasthan’. 15

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have evolved according to local situations, size and nature of project, and historical socio-political relations. To tackle the conflicts over allocations and access, we need a better concept of a right or an entitlement to water. How much water should a person or a household be entitled to as a right? Here we need a livelihood needs framework that sees the assurance of minimum livelihood needs and the corresponding water requirement as an associated right. Associated with this is the need to share shortages and surpluses in a principled manner. It also entails doing away with the obstacles that deny the disadvantaged sections of our society their rights.22

Section III: Need for an Integrated Approach

The Starting Point: Equity, Basic Service, Minimum Water Assurance and Entitlements to Water Let us now turn to the other issue of equity. The first important requirement of the framework is to treat equity as central and as a starting point. Equity cannot be added on as an afterthought. In the suggested framework, equitable access to water is treated as a matter of minimum assurance to all of water required for livelihood needs irrespective of their ownership of assets. Here, minimum water assurance is seen as a right that vests in people by virtue of their right to an adequate livelihood, and not as in the conventional approach by virtue of and through the land or other assets that they own. There is some ground for this in traditional practices based on natural equity which can be built upon though it is not as easy to extend them to provide such assurance to the landless or to women rather than traditional men farmers. Special efforts will be needed to bring such disadvantaged groups within the ambit of minimum water assurance as a right of equitable water access. The degree and extent of this right has to be assessed within a framework of the assurance of needs. Rights cannot be truly dissociated from need, and especially in talking about rights of access in terms of entitlements or endowments, we cannot dissociate them from some definition of need as distinguished from wants. While this demarcation will always remain value-laden and contested, it is not one that can be avoided. Here, we use a definition of need that includes basic livelihood needs in terms of biomass. This approach

22

Paranjape and Joy, ‘Equity, Access and Allocations’.

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has been elaborated elsewhere,23 and its main advantage is that it provides us with what should count as a basic service that is necessary to fulfil basic livelihood needs. This helps define a minimum water assurance that must be provided at reasonable cost and dependability. The rest of the portion, after adjustment for ecosystem needs, may then be treated as water available for allocation for other uses. In a sense, it separates the entitlement into one based on rights and one based on economic opportunities. This separation is an important separation because water has features of both basic right as well as economic good, and law must first distinguish between and demarcate them (a brief illustration is provided in Box 9.1). Box 9.1 Biomass Approach to Water Entitlements and Allocation Studies have shown that all the needs of a typical family of five could be met if it can produce, or get access to, roughly 18 T dry weight of biomass (all the following weights are dry weights). (This comprises 2 T for food and allied needs—cereals, pulses, oil seeds, vegetables, etc., 2 T as firewood, 5 T as fodder for one pair of bullocks, 3 T as biomass for cash income and 6 T recycled biomass—fallen leaves, brushwood, roots and other compostable materials for soil health.) Eighteen T is a reasonable upper bound and there is ample scope for optimisation. For example, the recycling provision of 6 T can be further reduced to about 4 T if the dung produced from the fodder is used as manure. Similarly, if the cattle herd is rationalised and one pair of bullocks is shared by two families, then there would be biomass saving of 2.5 T in fodder. Yet, a third option to save biomass is in the use of fuel wood by switching over to various fuel-saving and fuel-efficient devices and methods. The marketable surplus of 3 T for cash income can also be handled in a variety of ways. Though it is usually produced in the form of fruits, vegetables, etc., it is possible to produce it in the non-perishable form of timber, bamboo, fibre, oils, medicinal plants, etc. Thus we may assume that between 12 and 18 T of biomass are sufficient to provide for the basic livelihoods of a farming family. Assuming a reasonably achievable biomass productivity of 3 kg/m3 of water use under managed conditions of protective or limited water assurance, we then arrive at a water right of access between 4,000 and 6,000 m3 of water use. Drinking and domestic water needs may be estimated at 100 litres/day for humans and a corresponding amount for animals, giving an annual requirement of about 400 m3 per household. Thus we have a per household requirement of about 4,400 to 6,400 m3 as a rights component. And if there is a shortfall then we may treat it as a rightful share to exogenous water in proportion to this shortfall.24 Source: Created by the authors. Note: T = Tonnes. 23 For details of this approach, see Paranjape and Joy, Sustainable Technology and Datye et al., Banking on Biomass. 24 For details of the biomass and water estimation and the potential of the biomass-based approach for livelihood enhancement, see Paranjape and Joy, Sustainable Technology; Paranjape et al., Watershed Based Development; Datye et al., Banking on Biomass; Paranjape and Joy, Water: Sustainable and Efficient Use; and Mollinga et al., ‘Enhancing Productivity of Water for Poverty Alleviation and Livelihoods’.

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Equitable access also has associated costs and requirements, and a commitment to equity necessarily implies meeting those requirements and costs. Changing social arrangements to suit equitable arrangements is the most cost-effective measure: an illustration is provided by the old phad (the phad system was prevalent in the eastern part of Maharashtra), that was the service area in the village irrigable by gravity; every farming family was assured some land in the phad.25 If such arrangements do not work out, it may be necessary to carry water over larger areas to provide for lifts and pumping energy for a portion of the service area. That does make it important to minimise such costs (economic, social as well as energy costs) socially as well as through system planning and technology. The lack of integration of various kinds of water resources is at the root of extending water service equitably. Conventional thinking has often actively discouraged such an integration for ease of management, but new social movements and approaches also tend to advocate the rejection of one or the other kind of resource—some reject exogenous water, some reject large sources and dams—rather than their integration.

Exogenous and Local Water Resources Many advocates of water sector reforms argue against big dams, and to some extent against all dams. However, large sources—existing as well as those that could be potentially developed—are valuable resources, and they have to be viewed in terms of ‘what big dams could have done but did not do’. Integration, where large exogenous sources supplement rather than supplant small and local sources, has the potential to overcome the limitations of both kinds of sources, large and small. The local system receives the critical support needed for livelihood assurance to become sufficiently dependable. The local water system plays multiple roles—as a system for harvesting and utilising local water, as a buffer or holding system for the larger system creating greater control over the timing and quantum of water application for the individual user, and as a semi-autonomous management unit much more compatible with participation and ‘turnover’.

25 For details of the phad system, see Datye and Patil, Farmer Managed Irrigation Systems; GoM, ‘Maharashtra Water and Irrigation Commission Report’; Sane and Joglekar, ‘The Collapse of Phad System in the Tapi Basin’.

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There is, however, a broad principle involved in the integration of these two sources. It implies that the local water source is developed to its fullest potential, the local system is built around it and the exogenous water provides supplements to the system as a whole rather than individual irrigators. There need not be a Chinese wall between local source development, particularly watershed development and large source development. Watershed development can become an integral part of the whole process of large source development that is built around it. It is a pity that this aspect is not receiving the attention it should.26

Surface Water and Groundwater There is a similar need for an integrated approach to groundwater and surface water management. The separation of groundwater and surface water management has been an explicit assumption and a desideratum of the conventional approach to surface irrigation systems. However wellintentioned and desirable it may have been, their separation, in actual control as well as ownership and utilisation rights, has had a pernicious effect. Their integration has demonstrated to some extent in Ozar (in Nashik district, Maharashtra) that it can lead to much closer control over the timing and quantum of water application, and help service a larger area much more effectively.27

Integrated Approach to Assured and Variable Water The importance of variable water is apparent only when we consider dependability, which is given very little attention, especially in smaller systems and watershed development activity. Most of those who believe that watershed development will by itself result in livelihood assurance depend on methods that do not consider dependability. An integrated approach has two sides: one, minimum needs should be ensured with a high degree of dependability 26 The issues related to integration of sources have been detailed out in Paranjape and Joy, Sustainable Technology. 27 For details of the Ozar experience in integration, see Paranjape and Joy, ‘The Ozar Water User Societies’.

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(assured component), and two, that the extra water available in better years (variable water) should be effectively used. Correspondingly, we may make a distinction between basic and extra or economic service. Basic service is then considered to be the minimum water assurance for the fulfilment of livelihood needs for all, and is planned on the basis of a high degree of dependability, typically 80 or 75 per cent. For the variable water, the most effective use of that water is to convert it to biomass through perennial species because in comparison to seasonal crops, perennial species are more robust and can take variations in annual precipitation in their stride. Pools of this biomass produced during the better years can then act both as risk-proofing measures as well as provide stability to biomass-based incomes across good and bad years.

Integration Implies a Different Unit of Organisation When we are dealing with separate water sources, it is easy to demarcate its users (for example, command areas of irrigation projects or subscribers to a lift irrigation scheme, etc.) and the service area. However, when we take an integrated approach, we have to contend with the interactions between the different sources and have to demarcate users differently. The problem is further compounded by allowing for equitable access and pumping, both of which greatly increase the potential service area and the scope of its location. In fact, as soon as we move away from a gravity command, it necessitates a far greater consideration of what could be the suitable unit of organisation for the efficient management of water resources. There is a general consensus that watersheds should form a unit of organisation, at least of local water resources. However, this does not resolve the issue completely. First, the size of a watershed also has to be specified since a watershed can be as small as a few hectares and as large as an entire river basin. What is generally meant is a micro-watershed of around 500 to 1,500 ha. Even here, the watershed can be considered a natural unit into which the water regime is divided only in so far as we consider surface flows. Groundwater flows need not conform to watershed boundaries. There is no clear-cut answer that seems to have evolved in this respect. People’s organisations committed to integration have generally tended to treat the village or hamlet as a unit for this purpose. It has also been suggested that with a cluster of micro-watersheds of sufficient size, the groundwater

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flows and surface flows would reasonably match the boundaries of the cluster and provide a unit for the efficient and integrated management of water resources within an area. It has been suggested that a cluster of the order of about 10,000 ha would be sufficient for this purpose.

Water Rights, Allocations, Transfers Water rights and allocations as well as transfers depend on our approach to water as property. We have already argued that water should be seen as a social, common property distinct from state property. The state acts as the trustee to that property. As trustee, it is therefore the duty of the state to ensure access to a fair share of that water for reasonable use to every citizen as a right. An integrated approach suggests that citizens have the right to water use (and not ownership over water) subject to the concepts of fair share and reasonable use. The main problem lies in determining water allocations, what a fair share is and what constitutes reasonable use. There are two aspects to this: the norms that govern the determination of needs, and the process through which they shall be determined. In respect of the norms that determine regional water allocation, we should treat water allocation in proportion to the needs of the population in the region as the starting point in evolving a principle of a fair share of water resources available for use. We also need to take account of the priorities of water use. The order of priority that should normally be observed is that of drinking water (including water for cattle and domestic use), minimum environmental needs and livelihood needs, in that order, and a flexible order between extra agricultural production, industry, tourism and other uses according to the particular character of a region under consideration.

From Community Management to Private Property Rights to Participative Allocation and Governance Traditionally, water has been treated as a community resource and has been subject to community norms and rules that govern its access and use. It has never been treated as private property, that is, as property with untrammelled rights of use and misuse if the owner so wishes. It has never been treated as a mere resource but has taken on many more roles. Civilisations have

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grown around it and have searched it out, nurtured it as their basis and there is evidence that those that have failed in nurturing it have also failed as civilisations. It has been as much worshipped as utilised, and the worship has always tempered its use. The advent of modernity has dissolved the community nexus that regulated affairs between people at various levels and has left the abstract individual as property holder standing in opposition to a codified state, with, in theory, no community intervening or mediating this relationship. The concept of freedom includes the untrammelled right to do with one’s property as one pleases. This framework simply does not suffice for water as a resource. Nevertheless, this is the framework that the British brought to bear on land and water in India, and through the system of colonial courts and laws that they set up, they introduced and strengthened modern capitalist property relations. Helped by laws and the economic relations conducive to it, the market economy percolated into agrarian relations, dissolving the community relations it replaced. Ironically, the process picked up pace after independence, land reforms creating a double-edged process—the tenants they freed could participate more vigorously in markets while they also forced the landlords who retained their lands to turn to wage labour and rich peasant farming to escape land reforms, in both cases extending and strengthening the reach of the market economy. Water, however, has not followed the same trajectory. Surface water, theoretically, and practically in cases of larger projects, has remained state property though groundwater has remained largely a private resource. Unlike countries like South Africa where state ownership is asserted as a trusteeship, a trust by the state held on behalf of the community or the people, the postcolonial Indian state has asserted complete state property over its water resources, mainly surface water, but by implication, groundwater as well. With the coming of the wave of globalisation and privatisation, there is an increasing clamour for privatisation in view of the evident failure of state ownership as an instrument of water governance. However, as we have argued above, both state and classical private property are not suited to tackle the special characteristics of water as an ecosystem resource, and we need to go back and learn from the community management forms that have worked so well in the past in respect of water. Community bindings worked because they were based on consent and consensus. Traditional community bindings worked through traditional caste, tribal or clan obligations that created the consensus though there is a need to recognise that they also carried within them the oppressive relationships and their associated paraphernalia. The consent and consensus were

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grounded in those oppressive relationships and so were overthrown by those who sought to eliminate that oppression. As Kosambi had warned, we cannot return to a golden age because there never was one; community and unity were always tainted by oppression and division. However, that does not mean that the past holds no lessons. Given the high costs of exclusion—and these costs refer to non-consensual enforcement assessed in economic terms—pure economic measures are unlikely to work. We need to find new ways of mediation between the state and individual that can form and support consensual forms of agreement. What is definitely needed is a process that brings together all the stakeholders/rightsholders in a process that will bring us as close to a consensus as possible. This needs to be a participative process that joins with administrative measures from the top. However, for that we will have to look at water not as private property in the classical sense, but, as outlined earlier, as a share of common pool resource subject to priorities and norms in respect of use; as rights and entitlements that carry with them responsibilities and obligations. This means looking for new forms that will socially express and mediate these needs. For this, it is not sufficient to merely set up river basin authorities with centralised powers because they are bound to remain ineffective and their mandates unenforceable, or to merely take water out of the State List and place it in the Concurrent List, as suggested by some. We need to find new forms of participative governance and new ways of evolving consensus; the old way of relying on the state to legislate, act and enforce on behalf of ‘the people’ is much less likely to work if it is not supported by these processes. There is a need to look afresh at multi-stakeholder platforms or similar processes and participative instruments for working out reasonable entitlements and arrangements for sharing during normal, surplus and shortage situations. There is also a need to work out appropriate economic instruments that will take adequate account of water as a basic human right as well as its aspect as private property. We need to see how our common pool of water resources can be utilised for ensuring the provision of basic rights at high dependability without necessarily foreclosing options of economic use for the extra water that will be available in most years if we do so. Graded tariffs with an assured minimum water service that constitutes a basic right to be made available at an affordable rate combined with variable surpluses that may be provided at economic prices for remunerative and profitable use, would be an attempt at bringing about this reconciliation. The important point here is the need to be able to treat water in all its complexity: as a basic right as well as an economic good, as the basis of life to be nurtured and prized if not

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worshipped, but also as a resource to be utilised productively and profitably, like any other resource.

Section IV: Multi-stakeholder Platforms as a Possible Option for Conflict Resolution and Governance Finally the issue is: What should be the institutional framework to ground the approach discussed above which can negotiate the issue of entitlements and allocations between contending users and uses. The present institutional set-up is pretty fragmented, and there is also a multiplicity of institutions dealing with different aspects of water—there are different ministries and departments for drinking water, sanitation, irrigation water, etc. Almost all of them are bureaucratic, top-down set-ups, which do not allow any space for direct negotiations and deliberations amongst the different users and stakeholders. The 73rd and 74th Constitutional Amendments, pertaining to local bodies of governance at the village and city levels, the village panchayats and the city nagarpalikas (municipalities/corporations) have added another layer of water governance in the country (apart from the Centre and States). Water management, watershed development, and so on, are among the subjects to be devolved to them in terms of the Eleventh and Twelfth Schedules to the Constitution. However, the processes of decentralisation and devolution are still evolving, and the role of the Panchayati Raj Institutions (PRIs) is yet to emerge fully. In particular, the respective roles of the three levels of governance (the Centre, the States and PRIs) in relation to the water resources of the country will need to be established properly. An important issue here is the evolution of good working relationships between PRIs and civil society institutions such as Water Users’ Associations(WUAs), village watershed committees, tank farmers’ associations, etc.28

Limited Role of Present Day Water Users’ Associations There is also now an increasing recognition that user participation as a form of direct democracy is essential for efficiency, sustainability and equity, both as a normative principle and as a functional tool. Very often institutions are 28

Iyer, ‘Water and the Laws’.

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seen more from the point of view of efficiency. However, in the context of water, the experience so far has been limited to joint management institutions like WUAs, which are primarily institutional arrangements between the state and a single type of user or use, basically the irrigation water users. Here too, the operational unit is generally a minor-level command area within the distribution system though of late there has been talk about federating such WUAs. Thus, by design the present day WUAs are supposed to perform only a limited role. The issues that are unfolding today in respect of water, which are rooted in or emanate from the various characteristics described earlier, cannot be properly addressed within the framework of such joint management institutions. There has been a demand and there is also a provision in the Constitution to constitute River Boards or the various water policies talk about setting up River Basin Organisations (RBOs) or Authorities. However, till date not a single RBO has been formed in the country. Even if they are formed, they would be primarily constituted by the state and be more or less imposed from above. There is a need to go beyond both these forms (single focus joint management institutions and the top-down, centralised RBOs) and evolve forums for inclusive dialogue, negotiations and settlements. Multi-stakeholder processes (MSPs) could fit the bill as they can provide the necessary space for all the direct and indirect stakeholders to come together and function within the framework of deliberative democracy.29 What is sorely needed is a system of nested institutions that start from the micro level, may be a village or micro-watershed and proceed upwards to a basin level board or authority. Water is a highly dispersed and local resource even while it is an interconnected resource. Centralised basin level authorities alone will never be able to take care of the complex problems that arise at all levels.30 It is also important that these micro-level institutions do not automatically follow the boundaries of a presumed community, since it is clear from many cases that intra-community divisions enter decisively into water conflicts. The viewpoints around water issues in India are highly polarised. The richness and diversity of bio-physical, social, economic as well as political context in India itself creates a tendency of fragmentation and polarisation 29

Joy and Paranjape, ‘Multi Stakeholder Platforms (MSPs) in Water Resources Management’. In this context, it is important to mention that shifting water from the State List to the Union List, a solution that is being suggested by some of the experts as a way out especially for inter-State water conflicts, is also not going to work, given the complexities involved. 30

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rather than synthesis, leading to long drawn-out wars of attrition in which the losers are invariably the vulnerable and weaker sections. It is important in this respect to look at multi-stakeholder platforms or similar processes that bring stakeholders together. Experiences in India have shown that MSPs have resulted in better outcomes than polarised wars of attrition. A few of the good examples of MSPs include the success that was achieved by them in the Khari River basin31 in Gujarat, Noyyal32 and Palar33 basins in Tamil Nadu, and the continuing dialogue between the Tamil Nadu and Karnataka farmers as part of an MSP-like process—the Cauvery family dialogue. Another such example is that of MSP-like processes in south Maharashtra, particularly those around the Chikotra Valley, the Uchchangi Dam34 and the Tembu Lift Irrigation Scheme.35

Necessary Conditions for Multi-stakeholder Processes (MSPs) to Become Meaningful Instruments of Governance For MSPs to become meaningful, stable institutions of water governance, they will need to take proper account of the heterogeneity of stakeholders; prior rights and the historical context of MSP formation; the complexity of water as a resource; an innovative approach to water sector reform that will allow accommodation of different stakeholder interests; access to reliable data, information and decision support systems; and, lastly, the presence of a committed support and resource agency.

31

See Mudrakartha et al., ‘Unclogging the Khari River in Ahmedabad’. See Jayakumar and Rajagopal, ‘Noyyal River Basin’. 33 See Janakarajan, ‘Conflict over Water Pollution in the Palar Basin’. 34 The government agreed to reduce the height by 2 metres and only then did the local people allow the government to begin construction. This reduction by 2 metres would help in reducing the submergence, thus saving most of the houses in the village settlement. The government also agreed to construct another smaller dam to make for the reduction in the storage at Uchchangi. However, recent reports from there indicate that tension is already brewing in the area because the government, without taking into confidence the local people and the organisation, is planning to raise the height by 2 metres, thus going against the consensus reached earlier. 35 For details, see Joy and Paranjape, ‘Energy-Water Co-Management and Challenges in the Tembu Lift Irrigation Scheme’. 32

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Creating a Level Field between Unequal Participants Heterogeneity includes both horizontal difference and vertical differentiation and exploitation and they need to be tackled differently, mainly by a proactive weight for the exploited and the oppressed. There are also other forms of inequality that need given attention: informational and spatial asymmetry, differences in closeness to power and the state, different levels of organisation, differing numerical strength, bargaining power, and access to resources, information and legal or other remedial actions. The issue is that of creating a level playing field so that the different stakeholders can participate in the process on an equal footing and this involves a conscious and proactive positive discrimination in favour of the disadvantaged. In the MSP-like processes in south Maharashtra described earlier, the enlightened self-organisation of those sections and their readiness for positive action as well as resistance has played an important role in creating a level field and bringing other stakeholders to the negotiation table. It is therefore important to keep in mind that without processes within or outside MSPs—that create this positive discrimination, MSPs are unlikely to be level playing fields and may be weighted in favour of the already articulate and dominant sections. As a first step towards recognising this heterogeneity, a distinction needs to be made between the direct stakeholders and the indirect ones. Those who use water for life processes, that is, for drinking, domestic and sanitation purposes, are obviously direct stakeholders. Further, all those who depend on the use of that water for their livelihoods, whether directly or indirectly, may also be identified as direct stakeholders in a quantum of water; they would include agriculturists, labourers, pastoralists and shepherds, fishing communities, craft persons, women, etc. There is also a need to explicitly acknowledge two further categories of direct stakeholders: the persons displaced or adversely affected as a consequence of water-related projects as well as the ecosystem, which also requires a minimum portion of the flows and storages to be kept unbound and ‘unutilised’ so that the river systems, ponds, lakes, etc., can perform their ecological functions and services. All other sections need to be treated as indirect stakeholders and the process needs to be weighted towards the direct stakeholders.

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An Inclusive Normative Framework MSPs will also have to be informed by an innovative approach to water sector reform that will allow the accommodation of different stakeholder interests; will need to be supported by access to reliable data, information and decision support systems and be based on an acceptable normative framework.36 Such a framework, Rogers and Hall point out, needs to be ‘an inclusive framework (institutional and administrative) within which strangers or people with different interests can practically discuss and agree to cooperate and coordinate their actions’.37 This is all the more important in the water sector where opinions are sharply divided on crucial issues: for example, is water a social good and part of the human rights framework or an economic good like any other? There is a similarly sharp difference of opinion about source creation, large versus small systems, equitable access and entitlements. The framework adopted will therefore be of critical importance. The framework needs to be capable of creating space for a dialogue if an MSP is to be initiated. For example, a framework that inherently sees large and small as mutually exclusive and opposed alternatives leaves little scope for dialogue between the dam-affected and the drought-affected: large dam votaries would tend to either invoke the ‘greater common good’ to ignore the suffering and displacement of already marginalised communities like the adivasis (tribals) and opponents would invoke that very suffering to deny the possibility of reliable water supply to severely drought-affected areas. However, if the framework is based on the need to integrate the small and the large, several possibilities emerge—the destructive centralised submergence behind the dam could be reduced by diverting and storing as much of the water flows as possible, in the small systems within the command/service area instead of storing them behind the dam38—and open up space for a joint exploration by the two important stakeholders, the would be project-affected and the beneficiaries. The conventional framework governing water resource

36 The details of this normative framework are discussed in Joy et al., ‘Multi-stakeholder Participation and Water Governance’. 37 Rogers and Hall, ‘Effective Water Governance’. 38 For details, see Paranjape and Joy, Sustainable Technology.

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planning, source development, norms of access and service delivery is also responsible for many types of conflicts amongst the direct stakeholders and for a highly polarised discourse on water. The challenge is to evolve a consensual framework that will be inclusive enough, while taking into account crucial concerns like equity and sustainability.

Access to Reliable Data, Information and Decision Support Systems One of the preconditions for the meaningful functioning of MSPs is reliable data and information—data that are not only reliable, but are acknowledged as such by all stakeholders. And as things stand in India today, this is also one of the weak links in the whole process. Most of the data is collected and managed by government agencies. The reliability of the data is very often under question.39 Then there is the question of getting access to it as most of it falls under the ‘secrecy’ domain. This is irrespective of the fact that an official Right to Information Act is in place in many States. Data that has been agreed upon is one of the important outputs of MSPs.40 All these should lead to decision support systems and they should be able to simulate various scenarios in terms of resource availability, resource use prioritisation and resource use efficiency.41 Sanjay Pahuja details how one such simulation programme has been effectively playing this role in California.42

39 In the context of inter-State river conflicts in India, it is said that the contending States keep two sets of data, and a particular State uses the set of data that is advantageous to it as per the context. Also, it is very often difficult to get access to data where there are such conflicts. 40 Connick and Innes, ‘Outcomes of Collaborative Water Policy Making’. 41 SOPPECOM has developed a methodology for data collection, evaluation and synthesis leading to resource literacy by combining participatory tools like Participatory Resource Appraisal (PRA) and Participatory Resource Mapping (PRM) with more scientific methods. For details, see SOPPECOM, ‘SOPPECOM Approach to Natural Resource Data Management Systems’. 42 The New California Water Systems Simulation Model (CALSIM) is basically a planning model (for comparative ‘what-if ’ studies), and is not intended to be used as a real-time or absolute operations model. It was developed jointly by the state and federal governments with active participation of various municipal, agricultural, environmental and power agencies. It is publicly available. It equips users with control over the modelling environment, and empowers them to make fast and accurate changes. More details of this model are given in Joy and Paranjape, ‘Multi Stakeholder Platforms (MSPs) in Water Resources Management’.

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Obviously, such hi-tech instruments cannot become meaningful without a policy direction and a commitment to negotiated settlements and dialogue, and cannot replace the necessary social processes, negotiations, conflict resolution and consensus building. They have to serve socially decided-upon goals and not the other way round. Also, the use of such technological devices and software presupposes a certain level of resource literacy, understanding and capability on the part of the different stakeholders. However, once those preconditions are in place, there is always a need for reliable and efficient instruments, and such tools can go a long way towards exploring different arrangements and alternatives. It is in this context that our experience shows that there is a need for the presence of a committed support and resource agency to catalyse this process.

The Role of MSPs and the State In the overall context of liberalisation, privatisation and globalisation, there is today a tendency to call for a withdrawal of the state and hand over those functions to user institutions or the private sector. MSPs may tend to be seen in the same light—as taking over state functions in respect of water. In our opinion, this would be erroneous. First, we need to note that the taking over of some of the state functions by user groups is not necessarily synonymous with privatisation—though it often tends to be seen in that light since the state has withdrawn from those functions. However, users exercising collective control over the resources they share and use is a different phenomenon from turning over that function to profit driven corporate bodies, and that distinction needs to be emphasised. Similarly, there is a need to make a distinction between allocative functions and service delivery functions. While service delivery could be legitimately seen to be open to privatisation, allocative functions remain essentially political, and need to be taken over by bodies that aim not at profit-making through providing services or goods, but at representing adequately the interests of the collectives they represent. However, the question still remains: should MSPs then serve as the bodies that decides on water allocations since they incorporate practically all stakeholders? In our opinion, MSPs are not bodies that take these decisions, but ones that facilitate them. There is no clear way in which stakes can be measured, represented and weighted in any decision-making process that the MSP may attempt to set up, and any attempt to do so would immediately be saddled with the problem of either replicating the political mechanism

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that may be in place or building up an elaborate quasi-political process outside of political processes. User control, when it is limited to manageable proportions and single uses, is an attractive option because of its apparent simplicity. However as soon as we allow multiple uses and stakes, the situation changes, and it is difficult to see a decision arising without a political process, without a state. In our opinion, MSPs would simplify the polity and result in the ‘withdrawal’ of the state from many spheres, not by aiming to replace the state as a decision-making body but by facilitating the process of decision-making itself. As things stand, most stakeholders are not aware of the nature and extent of stakes of the others. MSPs make every stakeholder aware of other stakeholders and the nature and extent of their share, and by bringing them together, force them to engage with one another. Implicit is the assumption that it is better to have a consensus of some sort or the other, the assumption that some common solution is necessary. This itself orients stakeholders towards at least exploring various scenarios rather than remaining within the confines of a single preferred solution that universalises their own stake. In some ways, one may say that the main function of MSPs is to see that there is a ‘level playing field’ for all stakeholders and bringing them together on such a field. Its role is to bring stakeholders together so that they can fruitfully engage with each other, sharpen and/or narrow down issues and explore possible scenarios that could provide a consensus.

Section V: Legal and Regulatory Frameworks MSPs do not function in a vacuum; they do not start from a tabula rasa. They are constrained by the particular legal and regulatory framework within which they have to operate. Moreover, this constraint applies not only to the MSPs—we may note that since we are talking about multi-stakeholder processes and not confining ourselves to multi-stakeholder platforms, we are essentially talking about what has often been called civil society initiatives—it applies to all kinds of attempts of water-sector reform and restructuring. We had not dealt with the legal and regulatory framework in the beginning because we thought that first we had to evolve a normative and policy framework within which to view the requirements of an enabling legal and regulatory framework. In this concluding section, we shall briefly review the existing legal and regulatory framework and the changes taking place within it, and indicate the direction that such a change should take if it is to become an enabling instrument in the direction we have sketched so far.

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Indian jurisprudence and case law on water has evolved from many different directions and underlying conceptual frameworks.43 Not all of them are compatible with each other and may even lead contradictory judgements.

Different Strands of Thinking One major stream of thinking treats water as property, most often to be enjoyed through the ownership of land. This is the stream that also bestows on an owner of land the right to extract as much groundwater as she/he may from any well or other abstracting structure within her/his land. It tends to see water as classical property. Even here, there are two strands of thought that may at times be in conflict. While one strand tends to treat it as property tied to land, especially in respect of groundwater, the other strand of thought treats it as part of what has come to be called as the ‘eminent domain’,44 which asserts state supremacy and control over water resources that amounts to de facto, if not de jure, state ownership over water. Another strand of thinking, that has increasingly been deployed after independence views water from within a framework of human, natural or basic rights. Within the rights perspective, water seems to be treated most frequently as part of the right to life and as a basic right by virtue of that. There is no explicit recognition of water rights in the Constitution though it can be treated as implicit in many ways.45

Union, State, Natural and Customary Laws The diversity of views on water and the law is also further amplified by the division of power that the Constitution specifies. There are few clauses in

43 The existing water law framework in India is characterized 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 in water (Cullet, ‘Water Law Reforms’). 44 The overall supremacy and control by the State is sometimes loosely described as its ‘eminent domain’, as Iyer puts it in ‘Water and the Laws in India’. 45 Iyer, ‘Water and the Laws in India ’.

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the Constitution that deal with water. Water falls in the State list and for all practical purposes the Union has very little role to play except in the case of disputes over the waters of inter-State rivers though it could be argued that Entry 56 is worded in a manner in which it gives the Union considerable leeway in regulating inter-State matters, provided it is backed by legislation in the Parliament.46 Thus, there is a lack of a comprehensive legal framework based on common principles. Each State has enacted its own laws in respect of water, and if we add to this the fact that at the lowest level, especially in the rural and particularly tribal areas, water-related practices are often governed by religious and customary rules, we have on our hands a chaotic welter of legal frameworks, provisions and instruments that have little in common.47 Lest it be misunderstood, it should be emphasised that the objection is not to the diversity (or legal pluralism) or to having water as a State subject. The objection is to the lack of comprehensiveness and unity in the underlying principles. As Iyer points out, despite strong pleas that water should be shifted from the State List to the Concurrent List, no constitutional review has made a serious move in this direction, and doing so would go against the grain of the present and welcome trend towards greater devolution and decentralisation of powers. An even more important reason is the immense diversity of water regimes in India, which requires a corresponding diversity in social and political arrangements around water. However, this does not mean that we cannot have an underlying set of common principles and a common normative framework underlying the water sector policy and legislation in the country. Nowhere does this matter as much as in deciding on contending water uses. It is to this that we shall eventually turn.

46 Coming now to the Constitution of India, the fact that the primary entry relating to water is Entry 17 in the State List gives rise to the general impression that water is a State subject. That impression is only partly true. Entry 17 in the State List is not absolute: it is subject to the provisions of Entry 56 in the Union List which gives the Centre a role in relation to inter-State rivers to the extent that Parliament legislates for the purpose. The fact is that Parliament has not used Entry 56 for legislation to any significant extent. (There is indeed a River Boards Act 1956 under that Entry, but as we shall see, that Act has remained virtually inoperative.) (Iyer, ‘Water and the Law in India’). 47 The lack of a comprehensive water legislation has ensured that, to date, water law is made up of different instruments, principles and judicial decisions which are not necessarily fully compatible with each other .... This is further compounded by the fact that formal water law is supplemented by a number of customary and religious rules concerning water use and control whose application continues to-date in many places (Cullet, ‘Water Law Reforms’).

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Changing Legal Terrain: Issues Related to Rights In recent times, the legal framework generally, and especially around water, has been changing under increasing pressure levied from two directions: one from the rights perspective and people’s movements from below and the second from above due to the reform process initiated in the early 1990s by the worldwide process of globalisation. As has been discussed earlier, any allocation between different uses involves a normative framework and an order of priority based on it. This is very much related to what we see as rights and what we see as the order between them. As Iyer has pointed out,48 water is implicitly considered a human right since it is treated as a basic necessity that has to be ensured as part of ensuring the right to life.49 Hence the right to clean potable water and water for proper sanitation and domestic use is considered on par with, or rather as part of, the right to life. This is very much in line with international thinking, where the UN has also incorporated the right to water as a human right in the same manner. However, we should note, first, that this right is still implicit, and there could be a case for making it an explicit right accompanied by the corresponding onus on the state for ensuring its fulfilment. Secondly, it is only one of the vital uses and rights related to water. Nevertheless it is interesting to see how far it takes us and how far it touches on other issues of water allocation. It has taken us to contestation over issues as diverse as who has control over water, the regulation of sewage and collection of night soil, the so-called sale of Sheonath River, as well as to contending uses between drinking water and other uses like that in the Coca-Cola case in Plachimada. This is a glimpse of how water issues almost always call into view the issue of integration of different water uses. In fact there are at least three other rights issues in relation to water. First is the issue of livelihoods and the water that is required to earn a livelihood. 48

Iyer, ‘Water and the Laws in India’. Also see, for example, France Coralie Mullin as quoted in Muralidhar (‘The Right to Water’) which declares: 49

The right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow beings. Such definitions are broad enough to be extended to include, by implication, a right to a minimum quantum of water of adequate quality.

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A farmer requires water for his farm and a tanner requires water for cleaning and curing hides. Almost every kind of livelihood activity requires some water in one form or the other. This raises the issue of whether the right to a livelihood should not be treated as part of the right to life, since earning a livelihood is essential to living. It is possible to see this as a relative rather than an absolute right and also to see it as following from the earlier basic right of water as a means of individual health and well-being. However, so far the right to livelihood has not been included as a basic right in spite of a growing demand for its inclusion from popular mass movements. Whether or not it is treated as a basic right, we would nevertheless suggest that it needs to be included as a priority use. Moreover, ensuring livelihood opportunities for all is also an issue related to equity. There has been a growing pressure from below to treat water as an important instrument in this respect and to treat equitable access to water as part of assuring livelihoods for all. Thus the pioneering Pani Panchayat movement and the south Maharashtra movement (see Box 9.1) have made it one of the major planks of their movements. These movements have had some impact on the political establishment as well. When the present Congress-led coalition government took over the reins in Maharashtra a few years ago, the coordination committee of the parties supporting the government issued a 51-point Common Minimum Programme (CMP), in which the very first point talks of equitable water distribution on the basis of population, and subsequent to their coming to power has resolved to take up pilot experiments in this direction with the help of these movements. Next is the increasingly recognised need for environmental flows, which is seen in some ways as a minimum right of ecosystems. The issue involved here is whether or not we need to ensure that minimum flows remain unbound and ‘unused’ so that ecosystem services may be regenerated. Although there is an increasing acceptance of this concept, there are different takes on it. Those with environmental leanings tend to consider the preservation of ecosystem integrity more important than simply a regeneration of ecosystem services, and tend to see minimum environmental flows as a prior charge on water services. The issue is unresolved and probably there will have to be some give and take around the issue, but it is becoming increasingly clear that we can no longer treat unbound flows as ‘wasted’ because they ‘flow out to the sea’ and must reach a consensus on the level of flows that may be treated as necessary for environmental needs. Following this is the freedom to use natural resources as economic resources for entrepreneurial gain. This freedom is also often seen as an

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important right in itself. Indeed, there is increasing pressure to recognise natural resources, including water, as an economic good and to remove all restrictions that supposedly ‘distort’ its operation as an economic good. Here too there are very different approaches in play. At one extreme, the globalisers want water to become a freely priced economic good and believe that doing so will actually allow for more efficient allocation and thereby for the better fulfilment of all rights. On the other hand, there is an equally large number, including those from the developed countries, who would argue for the operation of economic laws in respect of water in a restricted and regulated space. In our opinion, too, much of the present discourse on water rights stops at the level of water rights as part of life and does not go on to consider other dimensions of the right to water. We would suggest that the legal framework must take as its starting point an articulated hierarchy of these rights. Thus we have at the bottom the right to water as part of the right to life (water of adequate quality and quantity for use as drinking water, water for domestic use and sanitation, and for livestock) as an absolute right so that its fulfilment forms the precondition of any other water use or right. This should be followed by the water needed for the fulfilment of environmental and livelihood needs, which together form a set of relative rights. It may be conceded that there are greater options and greater scope for variation and flexibility than in the right to water as part of the right to life. Thus this tier needs to be taken together, that is, in case of shortage, both uses share the brunt of the shortage and, to some extent, may even share it with the following uses. That is why, we class it as a relative right rather than an absolute right. Nevertheless, this tier must be taken to have a higher priority than the following one, so that in case of shortages, the following tier shares a much larger share of the brunt. Water for economic activity including that for profit should then be seen as following these rights. It should be emphasised that in view of the variability of the water regime, it should be clearly recognised that only a minimum level of water would be available for economic activity during lean years. However, this also implies that during better years, a larger share of the increment would become available for gainful economic activity. At present, judicial decisions are based on a very simple view of rights, and we would suggest that there is an urgent need for the judicial system to acknowledge the need and evolve principles for the prioritisation of various uses from within a rights perspective. Another important fallout of this perspective needs to be noted: the sectoral allocations and their priorities would follow from a rights analysis and would not be derived independently. Thus

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the livelihood pattern in any particular area would determine how much water is needed for which uses, and which sectors and priority allocations would cut across sectors than become sectoral priorities per se. This means that there would be space enough for diversity in spite of the commonness of principles. There are two more points to be noted here before we move on to consider some of the issues related to regulatory frameworks. The first issue is related to the tradability of rights. The trend at present is towards moving from property right to use rights,50 and simultaneously towards making them tradable. The framework above also gives us some guidance in this respect. The three tiers that we define here also represent different degrees of tradability. The first tier of water rights as part of the right to life cannot be treated as tradable. Those rights vest in individuals and need to be satisfied for those individuals in person and cannot in any sense be traded away. The second tier of rights also represents a tier of rights that basically should not be tradable, especially those relating to ecosystem needs. However, a certain restricted tradability in the water required for livelihoods may be necessary, given the close links it has with economic activity, but, given that it represents the rights of weaker sections of society, sufficient safeguards need to be provided to see to it that tradability does not become the wholesale shift of rights in perpetuum, which would amount to a de facto denial of those rights. It is only within the last tier that water rights can be treated as truly tradable and full tradability must be restricted to those uses. Secondly, it also needs to be pointed out that in the debate over privatisation there is little distinction being made between tradability of rights and privatisation of services. Thus mere privatisation of drinking water supply need not necessarily run counter to providing drinking water rights to the populace. However, how it is done, first, in terms of whether it involves a direct transfer of rights—as it did in the so-called sale of Sheonath River—and whether it involves an indirect denial of rights, as for example would happen if the company was to be given the right to fix prices freely and indulged in cherry picking and thereby denied the poorer sections an adequate supply of water. The restrictions above therefore need not be seen as directed against privatisation per se but certainly against undue privatisation of rights. Indeed, the process of privatisation immediately implies a regulatory structure that would, among other things, ensure that this did not take place.

50

Iyer, ‘Water and the Laws in India’.

Water Use 243

Changing Legal Terrain: Regulation and Globalisation Since the 1990s, there has been increasing international pressure directed towards the so-called reform process and the legal frameworks in the country have been changing in response to that pressure as well. There has been a general drive towards a managerial change, a change in favour of users’ participation including user contribution to capital costs, a change in pricing policy oriented towards the removal of subsidies and towards a move away from state control to a regulatory regime overseen by independent regulators. The World Bank and other donors have been making some of these measures a requirement for availing of their funds and this has acted as an important driver in initiating this change. Many States have acted in response to these pressures. The Union Government enunciated the National Water Policy in 2002 and many States have followed suit. Many States have enacted legislations providing for farmers’ participation in irrigation management and many are in the process of setting up regulatory mechanisms—there has already been a spate of enactments providing for regulatory bodies in the electricity sector. Maharashtra could be considered one of the progressive States in this respect and it may be useful to discuss briefly the Maharashtra State legislation as one of the better examples of this trend. The Maharashtra Management of Irrigation Systems by Farmers (MMISF) Act passed in 2005, provides for the statutory formation of WUAs in all command areas served by canal irrigation. Under the Act, the state and the WUA enter into an MoU that fixes a volumetric quota for the WUA and the actual quota for any year is determined on the basis of reservoir filling and availability of water.51 The important thing here is that the MoU provides a definite binding and takes us nearer to a mutual arrangement than a simple unilateral quota granted at the state’s discretion. It is also important that the water charges be related to the quantum of water delivered to the WUA rather than to a localised crop pattern and area-based charge. The latter arrangement almost invariably meant a flouting of the designed crop pattern. Now the WUAs are free to plan their crop patterns on the basis of the volumetric supply they 51

GoM, Maharashtra Management of Irrigation Systems by Farmers (MMISF) Act.

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receive and the need for spurious double accounting of water, which created many avenues of corruption, is now minimised. However, there are a number of problems with the Act, so far as we see it as an instrument for restructuring the water sector along more sustainable and equitable lines. Although we can hardly expect equity to be legislated into water sector legislation by the present state, it does not provide for enough flexibility by water users to change the basis of water distribution from proportionality of land owned within the command to a more equitable concept based on minimum water assurance and to change the basis of those eligible to receive water and extend water service to those needy people outside the present designated commands, who could also be served if the distribution basis becomes more equitable. As currently constituted, the Act would simply result in a freezing of presently iniquitous allocations and relations within canal irrigated areas. The latest in the series of these enactments is the Maharashtra Water Resources Regulatory Authority (MWRRA) Act of 2005, which sets up a regulatory authority to deal with allocations of and disputes around water. Unfortunately, the Act raises more questions than it answers. It is modelled on the Electricity Regulation provisions and is therefore a highly centralised body. Its progressive features include working out entitlements and quotas but mainly for irrigators and deals mainly with surface water resources.52 The very introduction of entitlements is an empowering provision for users, but it shares all the drawbacks of the MMISF. In addition, it takes a step towards making entitlements tradable though it is cautious in its provisions (for example, it allows transfer of rights within categories but not across categories). The criteria for tradability are not embedded within a rights perspective, as pointed out above. In fact, the Water Policy does not seem to make any distinction between privatisation of services and rights, and this may prove to be a device through which privatisation of rights may take place disguised as privatisation of water services. The first problem here is that the legislation, in spite of its progressive features, is based on a static and classical concept of property.53 As we have 52

GoM, Maharashtra Water Resources Regulatory Authority (MWRRA) Act. See Ramanathan, ‘Legislating for Water’ for an account of the limitations on statute law placed by the fact that statute law is essentially about property and ownership, and how this framework obtrudes even into those attempts by the state that are aimed at addressing inequity through a process of extension of bureaucratisation and expropriation of power from the people and its concentration in its own hand, and consequently in the hands of the bureaucracy. This is compounded by the fact that the efforts of the state are indissolubly linked to the objective of revenue generation, which, in respect of water, has meant that water rights and access have been mediated either through landed or industrial property. 53

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discussed earlier, there are many ways in which water differs from classical static natural resources, and calls for a new type of concept of dynamic entitlements related to type of water use. In some ways this parallels what Iyer has identified as use rights rather than property rights.54 This switch is a welcome one, but it must also make space for the dynamic reallocation, which is required by a fast changing water use pattern that is characteristic of modern societies. For this, allocations must be provisional, valid for a certain period, and there must be scope and mechanisms for reallocation through periodic renegotiation. This is even more important if we are to incorporate the issue of contending water uses. Contending water uses need to be recognised as a problem that cannot be wished away but must be tackled through a process of negotiation. There is scope for neither in the legal enactments that are taking place.

The Interconnectedness of Law and Policy in the Water Sector In respect of water, there is another issue that we think may need serious reconsideration. The distinction between the judicial functions of the state—the enforcement of enacted laws and safeguarding of rights overseen by the judicial system—and executive functions of the state—including the policy-making prerogatives of the government of the day—often presumes a strict (or at least a great deal of relative) separation between law and policy. In view of the differences that characterise water entitlements from classical private property, we may have to reconsider this link. It is possible that ensuring basic human rights in the water sector will also call for a scrutiny of the water policy and its actual interpretation and implementation, including the kind of prioritisation between contending uses that it may imply. Water, policy impacts much more closely on water rights. Thus in the case of water, legal reform and policy reform advocacy may be much more closely tied together than they are in the case of other resources. It is heartening to note that there are movements from below that are challenging many of these aspects and that too in a constructive manner. The south Maharashtra movement has succeeded in making the government accept trying out its alternative ways of structuring irrigation based on equitable access to all households, irrespective of landholding, on a pilot basis 54

Iyer, ‘Water and the Laws in India’.

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in at least two tehsils. Similarly the Chikotra movement, named after the valley in which it is based, is engaged in getting the government to accept a scheme for the valley that combines watershed development and development of local resources with the water from a dam downstream. In the south, in Tamil Nadu, stakeholder processes have been successful in bringing together farmers and tannery owners in a fruitful dialogue over pollution issues. The Cauvery Family dialogue process that establishes a direct dialogue between farmers in Karnataka and Tamil Nadu with the help of experts and bypassing divisive political forces, holds out hope for facilitating a rational, non-partisan negotiating process over the vexed Cauvery issue. It is such civil society initiatives that presage the needs of the future, and legislation must look towards developing the necessary inclusive framework and sufficient space and institutional support for negotiation and renegotiation around contending uses. However, it is important to note that the present legal framework, including the newer ones that are being set up, that seek to institutionalise participative management and regulation are entirely inadequate in this respect. Statute law is so deeply rooted in classical ideas of property and revenue from property that the sheer mass of the volume of law that relates to it outweighs any consideration that it has of a conception of water as a human right.55 Tinkering around with participatory and rights provisions is unlikely to change this balance. It is important, therefore, that civil society initiatives for legislative reform be based on a radically and fundamentally different normative framework that takes into account the specific nature of water as a natural resource and as property. If it does not do so, the promising potential of legislative efforts will not take us too far and may merely prove to be a futile attempt to impose a static system of rights and allocations on what is basically a dynamic and multifaceted process that calls for continual readjustment and renegotiation.

References Appasamy, Paul. 2007. ‘Conflicts Around Water Quality: A Review’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. 55 With the revenue-generating and water resource-control impulses of the statutes, it has only a stray reference to the basic right of water that is witnessed. The purpose of the statutes then seems to be acquisition of control over the resource by the state and not the realisation of the basic right in water (Ramanathan, ‘Legislating for Water: The Indian Context’).

Water Use 247 Brisco, John and R.P.S. Malik. 2006. India’s Water Economy: Bracing for a Turbulent Future. London: Oxford University Press. Chauhan, Malavika. 2007. ‘Biodiversity Versus Irrigation: The Case of Keoladeo National Park’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Connick, Sarah and Judith E. Innes. 2003. ‘Outcomes of Collaborative Water Policy Making: Applying Complexity Thinking to Evaluation’, Journal of Environmental Planning and Management, 46(2), pp. 177–97. Cullet, Philippe. 2006. ‘Water Law Reforms: Analysis of Recent Development’, Journal of the Indian Law Institute, 48(2): 206–31. Available at IELRC website, http://www.ielrc. org/content/a0603.pdf. CWRDM. 2006. Kerala State Water Policy (Draft) 2006. Kozhikode: Centre for Water Resource Development and Management (CWRDM). Das, Binayak. 2007a. ‘Rural Livelihoods, Urban Needs: Diversion of Water from the Ganga Canal’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. ———. 2007b. ‘Problems at the Indira Gandhi Canal in Rajasthan: Conflict over Reduced Water Allocation’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Datye, K.R. and R.K. Patil. 1987. Farmer Managed Irrigation Systems: Indian Experiences. Mumbai: Centre for Applied Systems Analysis in Development. Datye, K.R., Suhas Paranjape and K.J. Joy. 1997. Banking on Biomass: A New Strategy for Sustainable Prosperity Based on Renewable Energy and Dispersed Industrialisation. Ahmedabad: Centre for Environment Education. Desai, Datta. 2007. ‘Diverting Nar-Par-Damanganga to Tapi-Godavari: Linking Rivers or Lurking Conflicts?’ in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Deshpande, R.S. and Satyasiba Bedamatta. 2007. ‘Whose is the Chilka? Fishing in Troubled Waters’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Dongre, Sujeetkumar M. and Govind S. Poteker. 2007. ‘Rural Needs or Tourism: The Use of Groundwater in Goa’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. GoM. 1999. ‘Maharashtra Water and Irrigation Commission Report’ (also called the Chitale Commission Report), 5 Volumes. Aurangabad: Maharashtra Water and Irrigation Commission. ———. 2003. Maharashtra State Water Policy. Mumbai: Department of Water Resources, Government of Maharashtra. ———. 2005a. Maharashtra Management of Irrigation Systems by Farmers (MMISF) Act. Mumbai: Department of Water Resources, Government of Maharashtra. ———. 2005b. Maharashtra Water Resources Regulatory Authority (MWRRA) Act. Mumbai: Department of Water Resources, Government of Maharashtra.

248 K.J. Joy and Suhas Paranjape Guhan, S. 1993. The Cauvery River Dispute: Towards Conciliation. Madras: Frontline Publication. Gujja, Biksham. 2007. ‘Contending Water Uses: A Review’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Iyer, Ramaswamy R. Forthcoming. ‘Water and the Laws in India’ (written in November 2005 and finally revised in July 2006) in Constitutional History of India, Subhash Kashyap (ed.). Janakarajan, S. 2007a. ‘Unequal Power, Unequal Contracts and Unexplained Resistance: The Case of the Peri-Urban Areas of Chennai’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. ———. 2007b. ‘Conflict over Water Pollution in the Palar Basin: The Need for New Institutions’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Jayakumar, N. and A. Rajagopal. 2007. ‘Noyyal River Basin: Water, Water Everywhere, Not a Drop to Drink’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Joy, K.J. and Suhas Paranjape. 2002a. ‘Energy-Water Co-Management and Challenges in the Tembu Lift Irrigation Scheme, Atpadi taluka, Maharashtra’, study Report, Pune, Society for Promoting Participative Ecosystem Management (SOPPECOM). ———. 2002b. ‘Multi Stakeholder Platforms (MSPs) in Water Resources Management: Some Issues and Suggestions’, Paper presented at the workshop on Multi-stakeholder Platforms and Deliberative Democracy, organised jointly by Wageningen University, National Institute of Rural Development (Hyderabad), SaciWATERs (Hyderabad) and VIKSAT (Ahmedabad). ———. 2004. ‘Watershed Development Review: Issues and Prospects’, Technical Report, CISED, Bangalore. Joy, K.J., Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute. 2006. ‘A Million Revolts in the Making: Understanding Water Conflicts: A Compendium of Indian Experience’, Economic & Political Weekly, XLI(7): 570–74. Joy, K.J., Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute. 2007. ‘A Million Revolts in the Making: Understanding Water Conflicts in India’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. ——— (eds). 2007. Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Joy, K.J., Suhas Paranjape and Seema Kulkarni. 2004. ‘Multi-stakeholder Participation and Water Governance: A Suggested Normative Framework’, Paper presented at the IRMA Silver Jubilee Symposium on ‘Governance in Development: Issues, Challenges and Strategies’, 14–19 December, IRMA, Anand. Kavade-Datye, Namrata. 2007. ‘Tembu Lift Irrigation in Krishna Basin: Conflict over Equitable Distribution of Water’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge.

Water Use 249 Lele, Sharachchandra. 2004. ‘Beyond State-Community and Bogus “joint”ness: Crafting Insti-tutional Solutions for Resource Management’, in Max Spoor (ed.), Globalisation, Poverty and Conflict: A Critical ‘Development’ Reader, pp. 283–303. Dordrecht and Boston: Kluwer Academic Publishers. Lele, S.N. and R.K. Patil. 2007. ‘Tail-End Discrimination in an Irrigation Project in Maharashtra: Quota Reductions for the Palkhed left Bank Canal’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Maitra, Mihir Kumar. 2007. ‘Ithai Barrage in Manipur: A Lake in Trouble’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Mollinga, Peter, K.J. Joy and Suhas Paranjape. 2002. ‘Enhancing Productivity of Water for Poverty Alleviation and Livelihoods’, Theme 2 paper of the electronic conference on water and food security, organised by the FAO, 15 September–1 November. Available at online at www.fao.org./landandwater/aglw/wsfs/docs/theme2.pdf (last accessed on 26 January 2009). MoWR. 1987. National Water Policy. New Delhi: Ministry of Water Resources, Government of India. ———. 2002. National Water Policy. New Delhi: Ministry of Water Resources, Government of India. Mudrakartha, Srinivas, Jatin Sheth and J. Srinath 2007. ‘Unclogging the Khari River in Ahmedabad: Stakeholders Come Together to Halt Pollution’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Muralidhar, S. 2006. ‘The Right to Water: An Overview of the Indian Legal Regime’, in Eibe Riedel and Peter Rothen (eds), The Human Right to Water, pp. 65–81. Berlin: Berliner Wissenschafts-Verlag. Available online at http://www.ielrc.org/content/a0604.pdf (last accessed on 26 January 2009). Paranjape, Suhas and K.J. Joy. 1995. Sustainable Technology: Making Sardar Sarovar Viable. Ahmedabad: Centre for Environment Education. ———. 2003. ‘The Ozar Water User Societies: Impact of Society and Co-management of Surface and Groundwater’, Study report, Pune, Society for Promoting Participative Ecosystem Management (SOPPECOM). ———. 2004. Water: Sustainable and Efficient Use. Ahmedabad: Centre for Environment Education. ———. 2007a. ‘Equity, Access and Allocations: A Review’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. ———. 2007b. ‘Alternative Restructuring of the Sardar Sarovar Project: Breaking the Deadlock’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Paranjape, Suhas, K.J. Joy, Terry Machado, Ajaykumar Varma and S. Swaminathan. 1998. Watershed Based Development: A Source Book. New Delhi: Bharat Gyan Vigyan Samithi. Paranjape, Suhas, Raju Adagale and Ravi Pomane. 2007. ‘Mahad to Mangaon: Eighty Years of Caste Discrimination: What Caste is Water?’ in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge.

250 K.J. Joy and Suhas Paranjape Paul, Anita and Kalyan Paul. 2007. ‘Politics, Water and Forests in the Himalayas: Crisis in the Gagas River Basin’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Prakash, Anjal and R.K. Sama. 2007. ‘Social Undercurrents in a Gujarat Village: Irrigation for the Rich Versus Drinking Water for the Poor’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Rajagopal, A. and N. Jayakumar. 2007. ‘Water Users in the Bhavani River Basin in Tamil Nadu: Conflict among New and Old Ayacutdars’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. Ramanathan, Usha. 1992. ‘Legislating for Water: The Indian Context’, IELRC Working Paper, International Environmental Law Research Centre, Geneva, Switzerland. Rogers, Peter and Alan W. Hall. 2003. ‘Effective Water Governance’, TEC Background Papers, No. 7, Global Water Partnership Technical Committee (TEC). Available online at http:// www.gwpforum.org/gwp/library/TEC%207.pdf (last accessed on 26 January 2009). Sane, S.B. and G.D. Joglekar. 2007. ‘The Collapse of Phad System in the Tapi Basin: A River Strains to Meet Farmers’ Needs’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. SOPPECOM. 2001. ‘SOPPECOM Approach to Natural Resource Data Management Systems’, unpublished paper, Pune, Society for Promoting Participative Ecosystem Management (SOPPECOM). Thampuran, V.K. Ravi Varma. 2007. ‘Choking the Largest Wetlands in South India: The Thanneermukkom Bund’, in K.J. Joy, Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making. London, New York and New Delhi: Routledge. World Commission on Dams. 2000. Dams and Development: A New Framework for Decision Making. London & Sterling: Earthscan.

10

Drinking Water Supply: Right and Obligation K.C. Sivaramakrishnan

Introduction As this chapter focuses on drinking water supply, it is necessary to understand the so-called rural–urban dichotomy and to what extent traditional notions can cloud reality. The Census of 1961 adopted a two-fold categorisation to identify urban centres. First those settlements that have a size of 5,000 or more, a density of at least 400 persons per sq. km and at least 75 per cent of the male workers in occupations other than agriculture were classified as urban. Secondly, all other settlements which under some State law, regulation or notification were identified as a corporation, a municipality, a town committee, etc., or a cantonment were classified as ‘statutory towns’. This two-fold categorisation of ‘statutory’ and ‘census’ towns was expected to help determine the ‘urban frame’ for each census operation. Usually this urban frame is determined well before the decadal census commences. For instance, the urban frame for the Census of 2001 is decided on the basis of the 1991 census, just as the frame for the 1991 census was decided with reference to the 1981 census figures. However, in the process of urbanisation several of the census towns fulfilling the census criteria got merged with nearby larger towns. This led to a decrease in the number of census towns. On the other hand, a number of settlements were declared as ‘urban’ by various State Governments though they did not fulfil the criteria of the census. In the process, the number of ‘statutory towns’ increased from 2,758 in 1981 to 2,996 in 1991 and further to 3,798 in 2001. On the other hand, the number of ‘census towns’ that had gone up from 1,271 in 1981 to 1,693 in 1991

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declined to 1,363. According to the 2001 census, the total urban centres in the country stands at 5,161. The urban frame of the country has itself become a matter of some controversy. The artificiality of the distinction between rural and urban settlements relying only on census data is further aggravated by the often mindless application of all criteria and rules relating to development assistance from the governments. The Ministry of Rural Development has a very large number of schemes of financial assistance to Panchayat areas for a variety of development purposes including drinking water supply. The Ministry of Panchayati Raj has also been adding some additional schemes for enhancing service levels and organisational capacity in the Panchayats. The Jawaharlal Nehru National Urban Renewal Mission, launched less than two years ago, can hardly match in scope and coverage what is available under the Panchayat and rural development umbrella. Furthermore, most of the development assistance for rural areas is in the form of a grant. It is to be noted that for rural water supply schemes, in particular, cost recovery is not sought. The charges for electricity and some other services are also far less in rural areas and, in many States, are almost free. Development assistance is an incentive for most small and medium settlements ‘to turn urban in reality’, but ‘stay rural by definition’. An interesting example of the way the dynamics of this incentive works is available from Tamil Nadu. The number of statutory towns in Tamil Nadu in 1991 was only 111. However, the 2001 census reported as many as 399 new statutory towns. Prior to the Constitutional amendments there were numerous small semi-urban settlements in the State called ‘town panchayats’. Many of these settlements did not qualify as urban according to the census criteria, but nevertheless Tamil Nadu decided to treat them as urban and as a result all of them became statutory towns. As a consequence, the level of urbanisation in Tamil Nadu became 43.86 per cent, higher than even Maharashtra’s 42.40 per cent. A few years later, the Tamil Nadu government had to face the reality that these settlements were urban only in name and that if they remained as panchayats, they would at least be eligible to access the wide range of funds and schemes available from the Government of India’s Ministry of Rural Development. In 2003, the Tamil Nadu government decided to denotify nearly 500 statutory towns which became panchayats again. Consequently the level of urbanisation in Tamil Nadu has come down to less than 40 per cent as against 43.86 per cent claimed before. Apart from the character of individual settlements (whether they are labelled as urban or rural), it is also necessary to take a macro view of urbanisation across the country. According to the 2001 census, the national average

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level of urbanisation is 27.78 per cent. Out of the 35 States and Union Territories, in 16 States the level is below this average. Bihar including Jharkhand, Madhya Pradesh, Chandigarh, Uttar Pradesh and Assam tilt the gross rural population heavily. The district-wise picture of urbanisation indicates that out of a total of 593 districts in 2001, 67 districts are entirely or predominantly urban, and in another 104 districts the urbanisation levels are significantly higher than the national average. Of the remaining 422 districts, in 94 the level is between 20 and 28 per cent. It is the balance of 338 districts that can be characterised as rural. But here, again, the picture is changing. Urbanisation is not determined only by industry and manufacturing. An analysis of the districts which are in the frontline of rice, wheat and oilseeds production reveal that their level of urbanisation is higher than the respective State averages. The purpose of providing this overview is to emphasise that issues of water supply are similar in many respects in urban and rural areas, and that the urban drinking water supply should not be considered in exclusion of the policy and legal frameworks pertaining to the water supply regime in general.

The Constitutional Position The 73rd and 74th Amendments to the Constitution identify various items relating to water as subjects entailing responsibilities of panchayats and municipalities. The 11th Schedule relating to Article 243G of the Constitution mentions minor irrigation, water management, watershed development and drinking water as subjects in the Panchayat list. The 12th Schedule mentions water supply for domestic, industrial and commercial purposes as responsibilities to be vested in municipal bodies under Article 243W. Listing these subjects in the 11th and 12th Schedules, however, does not mean that the regulatory, executive and financial actions pertaining to these items automatically devolve on the panchayats and municipalities. That requires conscious action on the part of the State Governments in enacting appropriate legislation. It is here that we find considerable disparity between constitutional intent and implementation. It is also interesting—and regrettable—that such disparity has become pronounced over the years. Water supply was well-recognised as a municipal function and specified in the various municipal laws in British India. The municipal laws of the

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period based broadly on the relevant laws of the Madras, Bombay, Bengal Presidencies and Punjab and United Provinces listed water supply as an obligatory function of a municipality. In post-independence India, however, we find some dilution taking place. The Andhra Pradesh (AP) Municipalities Act, 1965 which replaced the Andhra Pradesh Area District Municipalities Act, 1925 provides in Section 138 that a municipal council shall ‘so far as the funds at its disposal may admit, provide a sufficient supply of water fit for the use of inhabitants’. Section 140 of the AP Municipalities Act, 1965 further states that for buildings assessed at an annual rental value of not less than Rs 300, the Municipality can require the owner to obtain the supply of water from the municipal system if such a supply is available within 30 metres of the building. Section 141 also empowers the Municipality to supply water to commercial establishments, industrial undertakings, etc. Taken together, it will be seen that the responsibility of a municipality to provide water is determined by the availability of funds and the proximity of supply. However, the regulations under the AP Act relating to layout and building permissions require that buildings shall have water supply. Prima facie, a law or a regulation requiring citizens to provide a water supply connection to their houses, by implication, imposes a liability on the Municipality to provide for such supply. The AP Municipalities Act also empowers the government to take over the administration of any public source of water supply and also constitute a Water Board for one or more municipalities or other local authorities for the contractual maintenance of water works for the supply of water to such municipalities or local authorities. Where such a Water Board has been constituted, a local authority is bound to take water from it. In the case of the larger cities in AP, Section 112 lists the management and maintenance of all municipal water works and the construction or acquisition of new works necessary for a sufficient supply of water for public and private purposes. In 1989 under the Hyderabad Metropolitan Water Supply and Sewerage Act, the functions of water supply and sewerage were vested in the Hyderabad Metropolitan Water Supply and Sewerage Board, and these powers were taken away from the Municipality. The 1989 Act, however, does not specifically mention the provision of water supply as a legal responsibility of the Board. Municipal Acts in Maharashtra and Gujarat have generally been derived from earlier Acts of the Bombay Presidency. Sections 61 and 62 of the Bombay Provincial Municipal Corporations Act, 1949 defines essential services but water supply is not listed as one. Section 63 of the Act has an elaborate list of 25 items identified as the obligatory and discretionary duties

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of the Corporation. While watering, scavenging and cleansing of all public streets and places is mentioned as an obligatory item, drinking water supply itself is not one of the items mentioned in Chapter 8. Section 189 specifies that when the Corporation has arranged to supply water to any part of the city from municipal water works by means of private water connections or public stand posts, it shall be incumbent on the corporations to take all measures to ensure that a sufficient supply is available to meet the reasonable requirements of the residents. The provisions in the Bombay Provincial Municipal Corporations Act may, prima facie, be considered as stipulating a legal liability on the local body. This approach is also reflected in the relevant provisions of the Greater Bombay Municipal Corporation for which there is a separate law. In the Bombay Municipal Corporation Act of 1888, which continues to be operative with all subsequent amendments, water supply is regarded as a function of the Corporation. However, the provisions of the Act make a distinction between ‘public gratuitous water supply’ and supply to other consumers. The consumer is defined as ‘any person who uses or is supplied with water from a municipal water-works’, or on whose application such water is supplied and includes ‘any person liable to the Corporation under the provisions of this Act for the payment of water tax or any sum for the water supplied from a municipal water work’. Section 270 of the Act also stipulates that prior to the occupation of any premises, a certificate from the Commissioner in respect of adequate water supply should be obtained. The Act also contains elaborate provisions regarding the maintenance of the system, payment of charges by consumers, penalties and disconnection in the event of non-payment, etc. The general tenor of the Bombay Municipal Corporation is that water supply is a service provided by the Corporation in return for payment of fees or taxes. It is perceived as a contractual service rather than a public duty. It will be interesting to consider the situation in a State like Rajasthan, which emerged in 1949 as a union of several Princely States of Rajputana. There were several separate Acts of the different Princely States relating to municipalities that remained in force till the Rajasthan Town Municipalities Act, 1951 was enacted. Even after that, many of the municipalities continued to function under the provisions of the previous Acts. The Rajasthan Municipalities Act, 1959 may be regarded as the first comprehensive piece of municipal law in Rajasthan. Section 98 of the Act identifies various duties of the Boards. ‘Obtaining a supply or an additional supply of water, proper and sufficient for preventing danger to the health of inhabitants from the

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insufficiency or unwholesomeness of the existing supply’ is identified as one of the duties of the Municipal Boards. The Haryana Municipal Act, 1973 which is derived from the Punjab Municipal Act of 1911 was also an attempt to consolidate various other laws relating to the subject, and includes a separate chapter on water supply. Section 108 states that the Committee may, and when the State Government so directs shall, provide to the area under its control or any part thereof with the supply of wholesome water sufficient for public and domestic purposes. Although the language and the section make the provision of water a discretionary rather than obligatory responsibility, the rationale is public health. The Calcutta Municipal Corporation Act, 1980 which is a continuation and amplification of the previously existing Acts, is categorical in its stipulation about water supply. Section 235 of the Act titled ‘Corporation’s duty to supply water’, states: It shall be the duty of the Corporation to take steps from time to time. a. For ascertaining the sufficiency and wholesomeness of water supply within Calcutta; b. Providing a supply of wholesome water in pipes to every part of Calcutta for domestic purposes.

The Act also provides that the supply of water includes supply through the surface mains of the Corporation or through tube-wells allowed to be sunk within the premises or procured from any other municipal source. The Calcutta Corporation Act is also one of the few laws in the country which stipulates specifically in Section 242 that all rights over the sub-soil water resources in Calcutta shall vest in the Corporation. Sections 248 and 249 also confer on the Corporation the powers to permit, require or prohibit the sinking of tube-wells in certain circumstances. The Calcutta Corporation Act, 1980 which took a few years to formulate predates the 73rd and 74th Constitutional Amendments, but it does reflect the spirit of the amendments in establishing rural and urban local bodies as institutions of self-government. The Calcutta Act pioneered the design of the Mayor-in-Council system, similar to a Council of Ministers in State and Central Governments, emphasising collective responsibility. The Mayor as well as the Mayor-in-Council are recognised in the Corporation Act as Municipal Authorities in the legal sense and not merely as ceremonial entities. The Mayor-in-Council system has now been functioning for more than two decades. While the Mayor is recognised as a politically elected

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executive authority who is accountable to the Corporation Council, the meetings of the Corporation Council are presided over by the Chairman who is akin to the Speaker of a Legislature. Apart from being applied to other corporations and municipalities in West Bengal itself, the model has been picked up in Madhya Pradesh as well. The Maharashtra government also tried out the Calcutta model, but unfortunately without adequate political and administrative preparation. After experimenting with the same for about two years in Mumbai and Nagpur, the Maharashtra government gave up the attempt. Section 30 of the Kerala Municipality Act, 1995 broadly delineates the power functions and responsibilities of a municipality by listing various matters in the 1st Schedule of the Act. This schedule lists as many as 177 functions in 29 groups. In Group 5, water supply is defined as the implementation of water supply schemes required for the domestic, industrial and commercial purposes that are being entrusted by the Kerala Water Authority to a municipality, the digging and maintenance of wells and tube-wells for obtaining drinking water, and the protection of public ponds. It is pertinent to mention that prior to the Constitutional amendment, the responsibilities for water supply and drainage were in the hands of the government itself or the Kerala Water Authority excepting a few municipalities. Section 315 of the Act reiterates this position by stating that the government may entrust to a municipality the implementation of any scheme for domestic, industrial or commercial water supply, and for this purpose the Municipality shall have such powers, functions and responsibilities as may be specified in the notification. Although in actual effect water supply is handled by municipalities, in law as it stands, water supply is regarded as a function delegated from State Governments or State-run parastatals, rather than a public duty cast upon the Municipality. In the Karnataka Municipal Corporations Act, 1976 which again is in the nature of a comprehensive legislation replacing previous laws, there is some ambivalence in regard to the provisions on water supply. Section 2 of the Act deals with the definitions of essential services listed in Schedule 2 of the Act, which do not include water supply. In regard to water supply itself Section 186 of Chapter VIII on water supply and sewerage states that the chapter shall not apply to any city for which water supply and sewerage arrangements are made by any other law. In other words, water supply is not treated as an obligatory duty of the municipality but only as a function which the government may devolve on the Municipality or any other body. In the Karnataka Municipalities Act, 1964, which is also a comprehensive legislation replacing the earlier laws, Chapter 5 lists various obligatory

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functions. One of the items listed in Section 87 of this Act in sub-section (j) states obtaining supply of water, proper and sufficient for preventing danger to the health of the inhabitants, ‘when such supply can be obtained at a reasonable cost’. In other words, water supply is an obligatory duty provided it can be discharged at a reasonable cost. In the case of Bangalore city, there is a separate Bangalore Water Supply and Sewerage Board. Set up under a Special Act in 1964, the Board has jurisdiction over the Bangalore Metropolitan area, which is defined as the Bangalore Urban District and adjacent areas notified by the government. The delineation of this area is broadly similar to the area of the Bangalore Development Authority. Currently this delineation is undergoing some changes. The provisions of the 1964 Act regarding water supply are somewhat similar to those contained in the Bombay Act. In essence, water supply is to be provided by the Board for private consumption, provided payments for the same are made. The Act also stipulates that a dwelling house may not be occupied without a certificate from the Board that adequate water supply is available.

Is Drinking Water a Legal Right? It will be seen from the foregoing paragraphs that in most States, drinking water supply is regarded as a contractual rather than a statutory obligation. Although in some Acts the function may be part of a list of obligatory functions, the fulfilment of that obligation is made contingent on various other factors, such as proximity of the source, reasonableness of cost, etc. The relevant laws appear to have been formulated more for the defence or protection of a Municipality or authority from liability. Consequent to the 74th Amendment to the Constitution, the Ministry of Urban Development and Poverty Alleviation undertook a comprehensive review of municipal laws in the country and prepared a Model Municipal Law in October 2003. Section 47 of this Model Municipal Law identifies various core municipal functions. Sub-section (i) states that every Municipality shall provide on its own or arrange to provide through any agency, water supply for domestic, industrial and commercial purposes. But this comparatively clear statement becomes somewhat hazy when the functions in relation to water supply are considered in Sections 171 to 177. Section171(i) restates that it shall be the duty of the Municipality to take steps from time to time on its own or through any agency (a) to ascertain the sufficient and wholesomeness of water supply within the municipal area; (b) to provide for piped water to

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every part of the municipal area, but the Municipality shall not be required to do anything which is not available at a reasonable cost, or (c) if piped water supply is not practicable, to provide for water supply by other means at a reasonable distance. Section 179 of the Model Law contains a provision stating that all rights over sub-soil water resources within the municipal area shall vest in the Municipality. It will thus be seen that even the Government of India chose to be vague when a clear opportunity was available to specify the nature of the municipal responsibility regarding drinking water supply. As we have seen already, it is only in the case of the Calcutta Municipal Corporation Act which predates the Model Municipal Law by more than a decade, one finds such a provision. The constitutional and statutory framework in India regarding the availability of and access to water is elaborate. Equal access to water finds specific mention in various Articles of the Constitution. Given the long history in the country of caste-based discrimination in accessing sources of water, Article 15(2)(b) specifically declares: No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction or condition with regard to the use of wells, tanks, bathing ghats, roads and spaces, and public resorts maintained wholly or partly out of state funds or dedicated to the use of general public.

The Right to Life under Article 21 has been interpreted by the Supreme Court of India to include all facets of life. The chapter on the Directive Principles of State Policy calls upon the State, vide Article 39(b), to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. In Delhi Water Supply and Sewage Disposal Undertaking and Another v. State of Haryana and Others,1 the Supreme Court stated that the human hand cannot be permitted to convert water, which is a gift of nature and a bounty, into a curse or an oppression. ‘A river has to flow through some territory and it would be a travesty of justice if the upper riparian states were to use its water for purposes like irrigation, denying the lower riparian states the benefit of using the water even for quenching the thirst of its residents’. There have been several other cases adjudicated by the Supreme Court wherein it has been held repeatedly that the sources and courses of water are by nature meant for public use and enjoyment. In M.C. Mehta v. Kamal Nath,2 the 1 2

(1996) 2 SCC 572. (1997) 1 SCC 388.

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Court held the State to be a Trustee which is under a legal duty to protect natural resources. Concern over the pollution of groundwater and other water bodies has also prompted the Court to reiterate the doctrine of trust. However, in contrast, cases specifically relating to the issue of drinking water and the responsibility of a rural or an urban local body have been rather few. The aspect of drinking water is usually an outcome of or a corollary to the contestation of larger issues such as the pollution of water, the rights of a community to access water, riparian rights, etc. In spite of this broader legal regime upheld by the judiciary and the policy pronouncements of the National and State Governments regarding the constitutional recognition of the right to water, there are significant conflicts and threats that have tended to dilute this right. One is the right to allocation of water and the conflict between different levels of government. The decentralised approach to the control of water sources was put to the test in Alwar District of Rajasthan, where the State’s Irrigation Department declared traditional water harvesting structures erected by community effort as illegal. Community rights for drinking water purposes are also challenged by efforts to privatise water sources. An attempt was made to privatise a stretch of the Sheonath River in Chhattisgarh. However, the government gave up that attempt due to popular opposition, as has been well recorded. A similar effort in Uttarakhand to assign a stretch of a small river to a power generation company led to disputes with local residents when the power company sought to deny minor irrigation to riparian villages. After three years of disputes, the agreements were reworked through the engagement of the local community and an NGO.

Allocation of Responsibilities for Drinking Water Source and Supply We have already noted that in British India, water supply was listed as an obligatory function in most municipal laws, and this stipulation prevailed in most of the country. The preference for parastatals began during the 1960s when it was felt that the scale of requirements, particularly in large cities and expanding urban areas, required an integrated organisation. Such an approach was also encouraged by international organisations like the WHO and the World Bank. Different States then proceeded to set up special purpose organisations whose mandate covered both water supply and sewerage. The

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Tamil Nadu Water Supply and Drainage Board Act of 1970 was one of the first. The Karnataka Urban Water Supply and Drainage Board Act of 1973, the UP Water Supply and Sewerage Act, 1975 and the Punjab Water Supply Sewerage Board Act, 1976 followed. The Maharashtra Water Supply and Sewerage Board was also established. Additionally, for metropolitan areas special purpose authorities were set up such as the Calcutta Metropolitan Water and Sanitation Authority and similar authorities for Chennai and Hyderabad. These State-level bodies had full control over all aspects of water supply. Every one of these Acts provides that it shall be the function of the parastatal bodies to regulate and develop water supply and sewerage. In some cases, such a mandate is exclusive. For example in Tamil Nadu, a local authority is not even permitted to undertake a water supply or a sewerage scheme on its own. In theory, the State boards are expected to prepare and implement schemes at the instance of the local authority but ordinarily, the scope and coverage of the scheme are determined by the State-level body while the local authority itself became only a supplicant for the scheme. The Acts also stipulated that the loan liability of the various schemes shall be borne by the local authority concerned. The emergence and establishment of similar parastatals in some of the other States have been discussed in the earlier section. Notwithstanding the Constitutional provisions and principles and practices of subsidiarity, today water supply is not regarded as a ‘local’ responsibility, drinking water supply today is not a ‘local’ responsibility in many parts of the country. This is also contrary to the popular understanding and expectation that water supply as an activity should indeed be locally performed and the organisation concerned should be accountable to the local population, that is, the consumers. This is a matter of serious concern because parastatals are rarely accessible to the consumers, but regard the State departments and their ministers as the only parties to whom they are answerable. Traditionally in rural areas drinking water supply has been from surface streams and hand tube-wells. In hill areas the practice has been to collect water from mountain streams in small storage structures and distribute them to village settlements by gravity. In towns, municipalities constructed intake wells and pumps on riverbeds, treated the water in waterworks and arranged for distribution by pipe networks. Accessing river water usually required permission from the irrigation departments of the State Government concerned but this was more a formality and the permission usually dealt with the engineering aspects of the intake structure and their effects, if any, on the river regime. Where dams were constructed for irrigation or power

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supply, some arrangements were made for outlets in the dam structure for drawing drinking water. Allocation of river water or water from dam storage has become important only in the past three or four decades as the quantum of urban needs has increased significantly. But this allocation is not governed by any law and continues to be determined by negotiations and contractual arrangements. The various State water supply and sewerage board Acts empower the Boards to construct waterworks, but the laws do not contain any provision about the quantum or the manner of access. The matter continues to remain in the domain of the State irrigation departments. In the case of large cities like Delhi or Chennai where water has to be brought from distant sources, special arrangements have been made for the construction of canals like the Ganga Canal, the Telugu Ganga or the large capacity pipelines for Bangalore. The quantum of water to be taken from these canals for drinking purposes is determined by contractual arrangements rather than by law. In some cases like Bangalore or Mumbai, the State boards or municipalities have themselves invested considerable amounts for bringing water from distant sources such as Cauvery in Bangalore or Vaitarna in Mumbai. But these bodies do not have any legal powers as far as protection of the watershed or the catchment area of the source is concerned. In the case of some large dams, a measure of catchment protection and conservation is possible because of the location of these dams adjoining forest areas where some protection is available under the Forests Acts. In the case of dams of a small or modest size, mainly for drinking water, such catchment protection powers are not available. Since the quantum of drinking water required for settlements, including urban settlements, has been regarded as small compared to irrigation, it has been assumed that there would be no conflicts of allocation between these uses. But as the density of the urban settlements increases and the quantum of their water needs rises, priority has been given to urban water needs either through regulation or administrative action. When the sources of supply are strained and situations of inadequacy are reached, the riparian needs even for purposes of drinking have been ignored. Elsewhere in this compilation reference has been made to Almora, where the District Collector at one time stopped the use of natural water springs for subsistence, agriculture and drinking purposes in order to provide water to the towns in Almora. The existence of parastatals with legally supported control over drinking water sources, abrogates the authority and responsibilities of village settlements, panchayats or small towns. A conflict of rights arises in the result. In Saurashtra, Gujarat, three farmers were killed in police firing in Falla Village

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in Jamnagar District in December 1999 while protesting against moves to take water from the Kankvali Dam to Jamnagar, ignoring their own needs. Water riots in Chinna Ganjam in Prakasam District, AP claimed two lives in February 2001. These are only a few instances of the inter-rural, interurban and rural–urban conflicts that have occurred and will continue in the absence of a fair and transparent system of allocation of water in a regional or micro-basin setting. Regarding the availability of water at the intake points, the State water boards or the municipal bodies do not have any legal powers to regulate the extraction of water upstream. Availability is worked out on the basis of average flows. Where a significant diversion of water takes place upstream, the expected quantum will not be available at the drinking water intakes. A legal or even a consensual system for regulating river use and water extraction is not available. Contamination of water source is another problem. Since the Pollution Control Boards have been set up in the States, this is considered to be the responsibility of these Boards. The pollution control laws and regulations focus on ‘end of the pipe’ standards, specifying the limits of various contaminants for discharging water. But standards for receiving waters such as those in rivers are not specified except in broad terms of BOD, DO and some bacterial count. These standards are used more for categorising rivers according to quality. The pollution control regime in the country has been modestly successful in dealing with point sources but not vis-à-vis non-point sources, which in many cases affect drinking water intakes. Prima facie, the panchayats or municipalities do not have a role in specifying these standards or in enforcing them in partnership with the State Pollution Control Boards.

Riparian Uses and Basin Wide Approaches Riparian rights have traditionally been regarded as applicable only to surface streams. Extraction of water is of course the most common issue affecting downstream uses. It is widely acknowledged that we do not have a system of entitlements or a rationale for allocation. The considerable experience India has had in regard to the legal, technical, administrative and related issues so far as the irrigation use of water is concerned has been discussed in available literature, and need not be referred to here. In regard to drinking water supply, however, in a few cities where canals, aqueducts or large capacity pipelines have been provided—which are either dedicated to or substantially earmarked

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for supplying drinking water to destination points—riparian interferences have been a problem. In the case of Telugu Ganga, for which a significant amount of the capital investment was borne by the Tamil Nadu government, the extraction and diversion of water upstream of the city of Chennai has exceeded what was initially agreed upon, resulting in a significant delay in the water reaching the city. Even in the case of water supply pipelines, which invariably carry the water on an exclusive basis to the destination city, settlements en route, be they towns or villages, have laid claims to that water. In the case of Vaitarna and Mumbai, there have been several instances where people en route have broken the pipes and taken water forcibly. There have been similar experiences in the case of Saurashtra in Gujarat as well. While in comparison with irrigation the requirement for drinking water supply may be small, in absolute terms this quantum can be quite high. The allocation of this quantum of water between one village or another, or one town or another, or between towns and villages are vexed issues. Given the increasing scarcity of drinking water, it is necessary to anticipate various demands and uses alongside any channel of conveyance, be it open or closed. It may be difficult to apply the doctrine of riparian rights in all cases but failure to anticipate and provide for the demands en route will result in disputes and damage the interests of all concerned. A basin-wide approach for the allocation and use of water has so far been talked about in the context of irrigation. Even here, the initiatives taken so far and their success have been rather limited. The National Water Policy 2002 and the State Water Policies modelled along similar lines contain provisions to guide the management and use of water resources principally on a basin-wide system. However, most of the policy recommendations are not reflected in any State laws, as many of them predate these policies. The national policy further recommends the creation/re-orientation/re-organisation of institutions in the water resources so as to develop and manage water resources through a multi-sectoral and participatory approach, with due consideration to the quality, quantity and environmental aspects. The Maharashtra Water Resources Regulatory Authority Act, 2005 does envisage a regulatory authority which is empowered to regulate water resources within the State, lay down a water tariff system, clear water resources projects, etc., and also establish river basin agencies. The Maharashtra Authority started functioning only in mid-2006. It is currently engaged in conducting a pilot project in the Krishna Basin for fixing water entitlements. In other States, such initiatives are yet to begin. In Gujarat, a Water Regulatory Commission Bill 2006 has been mooted. In Andhra Pradesh a Water Resources Development Corporation has been set up but this is more of a developer than regulator.

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An important enabling set of provisions has been made in Articles 243ZD and 243ZE of the Constitution as part of the Panchayat–Nagarpalika Amendments which can help move forward towards integrated water management. These relate to the establishment of District Planning Committees (DPCs) and Metropolitan Planning Committees (MPCs). The composition of these committees is principally elective, in the sense that four-fifths of the total number of the members of a DPC should be elected by and from amongst the elected members of the Panchayat at the district level and from the municipalities in the District, in proportion to the ratio between the population of the rural and urban areas in the District. Similarly, twothirds of the members of an MPC shall be elected by and from amongst the elected members of the municipalities and the Chairpersons of the panchayats in the metropolitan area in proportion to the municipal and panchayat population ratio. An MPC is to be set up for every metropolitan area which under Article 243C has been defined as an area having a population of 10 lakhs or more comprised in one or more districts and consisting of two or more municipalities or panchayats. The terms of reference for the DPC and the MPC have been broadly indicated in Articles 243ZD and 243ZE. An identical provision in both is that in preparing the draft development plan for the District or the Metropolitan area as the case may be, ‘matters of common interest to the Municipalities and Panchayats including coordinated spatial planning of the area, sharing of water and other physical and natural resources, and the integrated development of infrastructure and environmental conservation’ should be considered. The Constitution thus very clearly recognises water as a common resource. The DPC and the MPC comprise principally elected representatives and can therefore be said to have a state like character. Such a representative platform can help understand the issues and problems of water management better, and can be expected to resolve conflicts in the allocation and sharing of water resources. The setting up of the DPC and the MPC is a constitutional obligation and failure to do so is a violation of the Constitution. Nevertheless, only in West Bengal has such a committee been set up for the Kolkata Metropolitan area. Some other States like Maharashtra, Karnataka, Andhra Pradesh and some others have passed enabling legislation, but the MPC itself has not been set up. In the case of DPCs, several States have indeed set up such committees, but the tasks handled by them are invariably limited to the allocation and re-allocation of funds under centrally sponsored as well as State Government-financed schemes. The coordinated planning of the District, including the sharing of water and other natural resources, is largely ignored.

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Groundwater Groundwater has always been an important source of urban water supply. A study by the National Institute of Urban Affairs (NIUA), based on an extensive sampling, indicates that 43 per cent of the sampled urban centres depend on surface water, 34 per cent entirely on groundwater while 22 per cent use both surface and groundwater sources. Of the 22 metropolitan cities surveyed, 12 depend entirely on surface water sources while one city, Ludhiana, depends entirely on groundwater. While 33 per cent of class I cities depend on groundwater, a larger proportion (42 per cent) of class II towns depend on groundwater sources. The distance to surface source of water varies. Usually such sources are available within 10 kms of the city though in some cases, including the three metropolitan cities, the distance is more than 80 kms. The report indicates that in the case of Ranchi, the distance to the present source of water is 292 kms, in the case of Jodhpur 309 kms and in the case of Sholapur 103 kms. The report further indicates that the future will be even more exacting. Delhi, which is about 26 kms from its present source, will be seeking sources at a distance of 320 to 400 kms. So will it be for Chennai. Mumbai, where some of the present sources are about 119 kms away, will have to go another 30 kms. It will thus be apparent that groundwater will continue to be a crucial source of water supply for many settlements in the country. The legal position in regard to the extraction of groundwater, however, continues to be unsatisfactory. Traditionally, the right to groundwater has been regarded in many countries as part of the property right to the land. Irrespective of the nature and depth of the groundwater aquifer and ignoring the fact that the shape and spread of a groundwater aquifer has no relation to the property boundaries of the land on the surface, the traditional concept of absolute ownership considers the extraction of water as part of the ownership of the land on the surface. However, the increasing quantum of extraction for irrigation use, the consequent depletion of groundwater and possible conflicts over the availability of groundwater and its usage among neighbouring landowners have prompted several countries to initiate some form or other of legal control over the extraction of groundwater. In the United States, over the past few decades extensive legislation and regulations have been developed in many of the States. Although the institutional arrangements and application of regulations vary from one State to another, by and large groundwater legislation in the USA is based on the principle of reasonable

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extraction of groundwater by a property owner, so long as it does not interfere or seriously affect similar use by neighbouring landowners. In India, the survey, research, measurement and extraction of groundwater has been handled by the Central Ground Water Board, which is part of the Government of India. Some of the States do have a State Ground Water Board for the survey of groundwater resources and for regulating groundwater usage. The National Water Policy has made extensive recommendations in regard to the conservation and regulation of groundwater. The Central Ground Water Authority constituted under Section III (3) of the Environment Protection Act of 1986 is mandated to regulate the development and management of groundwater, especially by new industries and projects in over-exploited areas. This Authority has notified 43 over-exploited areas where prior specific approval is needed for the withdrawal of groundwater. Advisory Committees have been formed in these areas to help administer the system. The Authority has also notified 65 areas in various States for registration of groundwater extraction structures where a steep decline in groundwater levels necessitated action for regulation. As part of the National Water Resources Policy, it has been proposed that there should be comprehensive State-wide legislation in regard to the management of groundwater. The Ministry of Water Resources prepared a model bill in 2005, which was circulated to the different States. The salient features of this model bill are as follows: z

z

z

z

Establishment of a State Groundwater Authority to frame broad policies. Empowering the government to regulate in public interest the extraction or use of groundwater as advised by the Groundwater Authority. Prior permission from the Authority to sink a well in a notified area for any purpose including domestic use either on a personal or a community basis. Exemption of small and marginal farmers from seeking prior permission if the construction of a well or a tube-well is exclusively for personal purposes. Registration of existing uses in the notified as well as non-notified areas in the States. Provision for penalty and appeal in case of violation.

In seven Sates, Comprehensive Ground Water Regulations have been enacted. These are Andhra Pradesh, Bihar, Himachal Pradesh, Goa, Tamil Nadu, Kerala, West Bengal, Pondicherry, Chandigarh and Lakshadweep. In Maharashtra, Gujarat and Himachal Pradesh the relevant laws have been drafted and passed but not yet enacted. In seven States, that is, Nagaland,

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Sikkim, Tripura, Punjab, Chandigarh, Manipur and Arunachal Pradesh, the State administrations have considered that it is not necessary to enact separate legislation. In 18 other States, action has been initiated for preparing legislation. So far as urban areas are concerned, there have been some additional laws relating to the extraction of groundwater. Apart from the conservation of groundwater, possible subsidence of the surface due to extraction of groundwater has also been one of the reasons for such special laws. The Chennai Metropolitan area, the Kolkata city and Delhi are three areas where such special laws are in existence. In the management and regulation of groundwater extraction, two problems continue to remain. One is the availability of data on groundwater, the rate of extraction, and the rate of re-charge and decline. These data are essential for establishing standards and norms for extraction and such data are available, if at all, with only a few government agencies such as the Central Ground Water Board or some State agencies. But even in such cases the data is not available in a manner that is friendly and amenable to public use. Another problem continues to be legal and the manner in which the so-called reasonable extraction of groundwater is determined. The Coca-Cola case in the Plachimada area of Kerala has brought this problem to the forefront. In this case, initially the Kerala High Court held that ‘underground water belongs to the general public and the Respondent (Coca-Cola) has no right to claim a huge share of it and the government has no power to allow a private party to extract such a huge quantity of ground water’. Subsequently, a Division Bench allowed Coca-Cola to extract 500,000 litres of water per day. This judgement was based on a report of a Special Committee set up for this purpose. The Committee’s recommended quantum of 500,000 litres was based on normal rainfall conditions. The judgement is presently on appeal to the Supreme Court. The underlying issue is: if the quantum of water extraction and its reasonableness are to be settled through legal actions, a scientific database system of groundwater assessment and management are essential when this is implemented through laws not available; in its absence even legal decisions may either not be adhered to or become mere exhortations.

Rainwater Harvesting and Drinking Water Supply Since most cities significantly fall short of their demand and the source is inadequate, the question arises whether a city can accept a given quantum of water availability and look to other ways for meeting the deficit. Recycling

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and rainwater harvesting are possible approaches. In the case of rainwater harvesting, the technology as also the legal provisions have become significant in recent years. The ancient and simple technology for catching and storing rainwater where it falls has received a lot of attention in several countries in recent years. Rainwater harvesting, to use the present sophisticated term is now part of project design for government buildings and buildings for public use. In several of the States, Municipal and Panchayat laws have been amended to provide for rainwater harvesting as part of a building plan. The approval of the building plan has been made contingent on such facilities being provided. A large variety of designs and cost options have been provided by some government agencies as well as several non-governmental organisations (NGOs). The Tamil Nadu Municipal Laws Second Amendment Act of 2003 stipulates under Section 255A that all government and government-owned buildings have to be provided with rainwater harvesting structures in the manner prescribed. The amendments also stipulate that in the case of private buildings every owner has to provide similar facilities, and if this is not done, then it is open to the city authorities to construct such a structure and recover the cost of the same in a manner similar to the recovery of property tax. The amendment also contains the provision that in the event rainwater harvesting facilities are not provided in a building, it is up to the city authority to disconnect the water supply. The Tamil Nadu District Municipalities Act, the Madurai City Corporation Act, the Coimbatore City Corporation Act and the Tamil Nadu Panchayat Act 1994 have also been amended along similar lines. In several other States, similar provisions have been made with some minor variations. Apart from legal stipulations, several States have also been launching special projects to promote rainwater harvesting on a large scale. For instance, in Karnataka, the State Council of Science and Technology has launched a project that is heralded as one of the largest rainwater harvesting projects. Similar projects, though on a comparatively smaller scale, have been undertaken in different States. Today there is hardly any State in the country where legal provisions for rainwater harvesting have not been included in the municipal laws. The private sector has also taken some steps in this direction. Regardless of whether this is part of improving their corporate image or corporate social responsibility, rainwater harvesting is generally considered a win-win type of response to settlements under increasing strain on water. It has not been possible to get a quantitative picture of the amount of water that is conserved through rainwater harvesting or the extent to which such rainwater harvesting has reduced the consumption from other existing

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sources. Presumably in a few years from now, such information will be available. It will then remain to be seen whether rainwater harvesting can be formally and legally utilised as part of demand and supply management. As yet, urban areas across the country are used to the norms of supply derived from the WHO standards. It is conceivable that in the future, for sizeable residential colonies and other building complexes, the quantum of water to be supplied by public authorities may be kept limited and the consumers will be expected to meet the balance of the requirements through rainwater harvesting. State and city-wide development authorities like in Punjab, Haryana and other States are reported to be following this approach. As compared to rainwater harvesting, recycling of water is yet to become a municipal or legal stipulation. In the case of a few industries like the Madras Refineries, Chennai or the Zuari Agro Chemicals in Goa either because of the initiative of the industries themselves or as part of the contractual arrangement between the water supply authority and the industry concerned, the quantum of water to be recycled has been agreed upon to meet the total demand. The Coromandal Fertilizers Unit in Chennai received an award for excellence in water management in 2005 for its various efforts in reducing consumption, recycling of sewage water, utilisation of sea water, etc. As a result of all these efforts, it was able to bring down its consumption from 3.76 M3/T in 1996 to 3.35 M3/T in 2004–05. Such instances, however, continue to be few and far between. The limited experiences however show that the pricing of raw water can persuade industry to cut down costs by conserving water.

Coverage and Distribution of Urban Water Supply Having reviewed the legal and institutional arrangements for drinking water supply thus far, we may now consider what indeed are the coverage and quantum of drinking water supply in urban areas. At the outset, it should be mentioned that whenever official statistics indicate that a particular town is ‘covered’, all it means is that some water supply system is available in that town. It does not indicate the extent of coverage, the number of households that have accessed water or the manner of that access—whether it is by individual house connections or street taps. The very frequently quoted per capita supply figures require explanation. It is only a simple division of the total quantum of drinking water available for a town by its population. That total quantum itself is based on the mechanical and hydraulic capacities of the machinery and pumps in the waterworks of that city; it is

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assumed that the pumps located at the outflow point of the waterworks are of a given hydraulic capacity, and it is further presumed that these pumps work for the full duration as per design. Very few waterworks have arrangements for volumetric measurement and where they do exist, records of the measurements are rarely kept. Given these, all claims about per capita water supply in most cities have to be treated with caution since this is of no more than arithmetical significance. For instance, Delhi claims that its per capita water supply is about 400 litres per day but this figure hides gross inequities. In several parts of Delhi, in particular the Trans-Yamuna areas, water supply does not exceed 60 to 70 litres per capita per day. In low-income settlements such as the Juggi Jhopri(JJ) colonies the average is as low as 20 litres per capita per day. It is only in parts of New Delhi, that is, the NDMC area and the Cantonment, that water supply exceeds 200 litres per capita per day. It is also curious to note that foreign embassies in the NDMC area enjoy high levels of water supply mainly because of the contractual obligations with the NDMC which are elevated to international treaty status. A further aggravating factor characterising urban water supply in India is leakage and wastage whether due to corroded pipes, too many joints in the pipes or a host of other reasons. In most Indian cities, leakages and wastage of treated potable drinking water amount to a staggering 30 per cent or more. ‘Unaccounted for water’ is the euphemism used to describe this figure. Some leakage and transmission loss is inevitable in any water supply system. But in the Indian situation, it has now come to be accepted that for every rupee spent on water supply 30 paise, if not more, will be ‘unaccounted for’. All these factors once again raise the important question of the legal responsibility of a municipal body to supply water and the legal right of a citizen to redress when that supply is not available. Reference has already been made to the phenomenon of parastatals, which in some States have taken over this municipal responsibility, which is now performed by the State or metro-level Water Boards. Regardless of where the responsibility for water supply is located, none of the relevant laws specify any quantum. The criteria according to which such quantum will be worked out are also not mentioned though this may be as a part of the Public Health Engineering manuals. The Central Public Health Engineering organisation in the Ministry of Urban Development prepared a comprehensive water supply and sanitation manual in 1991. This manual specifies standards of water supply in quantitative and qualitative terms. The manual also elaborates on the physical and chemical quality norms of drinking water.

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For all the plethora of institutions, municipal and parastatal, the actual quantum of drinking water supply itself is not very encouraging. The NIUA, on the basis of a comprehensive sample has prepared a status report on water supply in urban areas. While describing the status, the report confirms what has been stated earlier in this chapter—that the term ‘coverage’ is no more than an arithmetical figure worked out by dividing the total capacity of a water supply system by the population. As the report states, ‘[T]he term coverage has to be read with caution as it does not indicate the quantity, quality and duration of supply or the mode of provision to the covered population.’ The report indicates that between metropolitan cities and other towns, the coverage reported is 98 per cent in metropolitan cities, 91 per cent in class I cities and 89 per cent in class II towns. The report also identifies from among the sampled urban centres, as many as 22 towns with acute water problems so far as the frequency of water supply is concerned. Five of these 22 towns receive water only twice a week and 12 on alternate days. Amreli and Gondal in Gujarat have water supply once in three days and once in four days respectively. The remaining three cities, also in Gujarat, get water for 20 to 30 minutes daily. Yet several of these and other cities claim 100 per cent coverage in the limited sense of the term. According to the manual prepared by Central Public Health and Environmental Engineering Organisation (CPHEEO), towns with piped water supply but without sewerage system should have a water supply level of 70 litres per capita per day. Cities with piped water supply where a sewerage system exists or is contemplated are expected to have 135 lpcd while metropolitan and mega cities are expected to have 150. The Eighth and Ninth Five-Year Plans scaled down these norms to 40 lcpd for towns with spot-sources/stand posts, recommending at least one source for 20 families within a walking distance of 100 metres. For other cities with sewerage systems, the Plan recommends 125 lpcd. Additionally, several of the metropolitan cities have their own norms for water supply such as Kolkata, Delhi, Mumbai, Indore, Kanpur, Lucknow, Ludhiana or Varanasi. The NIUA report indicates that irrespective of these ambitious norms in almost all cities, there is a significant gap between the demand calculated according to the norm and the quantity actually supplied. Since the capacity of a water supply system covers both domestic and non-domestic uses, the figures of domestic per capita supply are also not entirely reliable. Of the 300 cities and towns covered by the NIUA study, the average per capita domestic supply has a wide variation from 14 to 258 lpcd. Even this figure does not reflect the very serious inequities within a city.

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Demand Management and Conservation Given the overall scarcity of drinking water, conservation and demand management have become crucial. Reference has already been made to wastage and unaccounted for water. It is a moot question whether municipal and public authorities charged by law to provide drinking water supply and collect charges for the same can attract civil liability for the volume of water wasted. Given the wide variation in per capita water supply ‘between cities’ as well as ‘within the cities’, equity also requires that excessive consumption by a few at the expense of the many is curbed. In the case of electricity, pricing is regarded as a possible measure of restraining demand. However, in the case of water supply, this is rarely the case. One important reason is that in many cities, water supply is not metered and the quantum is controlled only by the size of the ferrule for house connection. Where meters are provided, volumetric pricing is hardly practised. The existing water tariff is very low and even if volumetric tariff is adopted, it is either at a flat rate, or the increase in rates in relation to the volume is marginal. For example, the orders of the Municipal Administration and Water Supply Departments in the State of Tamil Nadu issued in October 2002 call upon corporations, municipalities and urban town panchayats to levy Rs 4.50 per 1,000 litres, as compared to the Rs 3.50 levied previously. For industries and other beneficiaries, the orders allow an increase from Rs 10.50 per 1,000 litres to Rs 15. In the case of Delhi Jal Board, premises are categorised into domestic and non-domestic. In the domestic category, there is a further categorisation for JJ and resettlement colonies at one end and plots above 150 sq. mts, luxury bungalows, etc., on the other. Volumetric water charges, according to the orders of the Board issued in January 2005, stipulate no charges for consumption up to 6 kilo litres per month, Rs 21 for consumption between six and 20 kilo litres, Rs 5 for 20–40, and Rs 10 for consumption above 40 kilo litres. In the case of non-domestic premises, the pricing varies from Rs 10 up to 25 kilo litres and Rs 50 for above 100 kilo litres. These slabs obviously will have no influence on managing the demand. Chandigarh is another area where volumetric pricing is adopted for metered connections. Here the charges vary from Rs 1.75 per kilo litre up to Rs 15 kilo litre and Rs 6 for a consumption above 60 kilo litres. Given the pride Chandigarh citizens take in their green city, it is interesting to note that there are also metred connections for watering lawns at a charge of Rs 2.50 per kilo litre.

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Recently it has been reported that the Rajasthan government has decided to increase the monthly water supply charges by 25 to 40 per cent for consumption ranging from 15,000–40,000 litres. The measure will apply to about 3 lakh consumers in a dozen cities which are receiving ADB assistance. While these are a few examples, it is obvious that pricing is yet to emerge as a significant factor to control demand and that one has to look for other measures of demand management.

Conclusion This chapter has presented an overview of drinking water in the country. It has been emphasised that notwithstanding the judicial pronouncements stating that water is an essential ingredient of the right to life, drinking water supply itself has not been considered as a legal right. Although some of the Municipal laws in some of the States may stipulate the provision of drinking water as an obligation of the rural and urban local bodies, this has remained an intent rather than a reality. On the contrary, several State laws have consciously sought to dilute the right to water as a legal right and make it into a contractual obligation. The chapter has also tried to bring out the artificially fragmented institutional set-up in regard to the various aspects of drinking water management such as source, supply or distribution. The chapter has noted some promising initiatives in regard to rainwater harvesting and groundwater management in view of their implications for drinking water supply. However, the aspect of demand management and conservation is largely unaddressed. In spite of various recent initiatives towards privatisation or public–private partnerships, pricing as an instrument of demand management is yet to be taken up as a serious initiative.

11

Water, Women and Rights Kuntala Lahiri-Dutt

Introduction The Indian Constitution ensures equality for women and men before the law, and prohibits discrimination against any citizen. Yet women’s exclusion from domains of decision-making permeates through every section of Indian society and remains an everyday reality in spite of the positive response of the policymakers in amending the Constitution to ensure the participation of women in the public sphere.1 The near invisibility and exclusion of women is most apparent in water management in India. The view of water, as a physical resource and national good, to be planned and managed by the State, often overlooks the fact that women are the primary water managers and educators, and play important roles in the national economy as small-scale farmers and irrigators. The constitutional provisions have not yet translated into real empowerment for women in India. They have also failed to pay due attention to the social embeddedness of land or the relational aspects of gender. Nor have they been able to introduce a gender perspective into resource management policies such as the National Water Policy. Feminist scholars have provided a range of explanations for the invisibility of women and their economic contributions to India. Lack of equal rights to the means of production has been pointed out as the primary factor in perpetuating women’s subordination.2 The gendered division of property has ‘centrally 1 Biological differences between women and men are transformed into power relations and human agency, creating gender inequalities that are rooted in beliefs, attitudes, feelings, values, behaviour and activities that differentiate women from men. 2 See Agarwal, A Field of Her Own; Gulati and Gulati, ‘Remnants of Matriliny’; Kelkar, ‘Women, Peasant Organisations and Land Rights’; Kishwar, ‘Toiling Without Rights’, and ‘Dowry and Inheritance Rights’; Vishwanathan, ‘Marriage, Birth and Death’.

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marked the conflict between the perpetuation of older systems of privilege and the establishment of a “modern” new nation founded on principles of individual rights and liberties’.3 Feminist researchers have showed that the lack of rights to land lie at the core of disenfranchisement of women, an observation that is also true for women’s access to water. Whereas women manage a large amount of water and land at home and on farms, and comprise nearly half of the Indian population, they own only around 1 per cent of land in the country. In the management of water resources, rights determine the manner of utilisation and the organisational framework of use.4 Drawing on Agarwal’s argument and the recent global articulations and initiatives, this chapter connects gender, water and law in India against the overall background of the unequal status5 of women as compared to men, draws attention to the various roles women play in water management and the emerging issues, and highlights why it is important to bear in mind the specific gender needs and interests in making plans for water. The chapter extends the argument to show how informal resource management by women remains invisible and less valued, and hinders the achievement of full citizenship by them through their active participation in decision-making in water management. Although the question of water rights is closely intertwined with land rights and obtained through them, Zwarteveen’s various works have emphasised the different nature of water as a resource as against land. The fluid nature of water resources prevents the drawing of fixed or specific borders as in the case of land. Also, the riparian rights for water are often gathered over time or are at times gained due to the access to the resource itself. Right determination is necessary if a resource is not freely available, making water rights an important source of social and political power. The everyday roles women play in water management are bound by informal rules and regulations formed over many years by the society and local cultures. By neglecting to recognise informal rules and regulations, State laws tend to displace many of the water rights women have enjoyed 3

Basu, She Comes to Take her Rights, p. 3. Singh, ‘Legal Aspects of Women’s Involvement in Wasteland Development’, has shown that the law regulates, facilitates or obstructs women’s involvement in afforestation schemes in Himachal Pradesh in India, using them as cheap sources of power in the absence of property rights. 5 ‘Status’, a commonplace term, refers to a composite picture of the situation, expectation, rights and aspirations, of the power women wield in the family and society. Status may include the importance of one’s legacy and achievements, including money, property, materials, merits, privileges, access to resources and benefits, comforts, power and decision-making autonomy, making it a multi-dimensional, dynamic and relative concept. 4

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traditionally and appropriate these rights in favour of the more powerful. The welfare state in India, following the example set by the colonial state, created new institutions that excluded the local community from its water rights, and, above all, relegated women to the status of invisible citizens. This is not to say that all traditional or customary modes of water governance are necessarily gender equitable; research on traditional water institutions has exemplified how many of the heavier tasks—such as the desilting or cleaning of taankas (underground water storage tanks used widely in the Jodhpur area of Rajasthan)—have often been the responsibility of women.6 However, efforts by global initiatives are underway to make visible gender concerns in water management, in helping women to achieve equal status to men and to empower them.7 As against the ‘business case’ made by the World Bank, whose 1993 policy on Water Resource Management calls for women’s participation in the name of efficiency, these efforts have used rightsbased approaches and have asserted their validity beyond moral or economic arguments.8 They point to the livelihood or productive relationships of women with water and also reflect the broader institutional changes in the water sector, and locate gender relations within decentralised, integrated and participatory approaches.9 Global developments and donor organisations and institutions have pointed to the need for the inclusion of gender concerns in all sectors related to water management, and to highlight the agency and voice of women. This is not possible without gender equality; meeting the Millennium Development Goals, for example, would necessitate, amongst other actions, better access to land and property, an improvement in their security of tenure, protection from eviction and a range of other rights for women that they do not enjoy at present. Beginning from the rights argument and keeping in mind the recent global articulations and initiatives, in this chapter I intend to draw connections between gender, water and law in India in view of the unequal status of women 6

A study by Sinha, Gender Dynamics in Water Security, pp. 100–01, indicates that whereas women’s productive labour plays multiple roles in the survival of desert households, their control over resources remains poor, limiting their access to water sources. 7 FAO, ‘FAO Focus: Women and Food Security’, recognises that gender equality or women’s equal rights mean that all human beings, both men and women, are able to make choices without the limitations set by stereotypes, rigid gender roles and prejudices. 8 See UN-HABITAT, Women’s Equal Rights to Housing, Land and Property in International Law. 9 See Ahmed’s (‘Gender and Integrated Water Resource Management in South Asia’) work on gender and integrated water resources management (IWRM) as part of the Global Water Partnership philosophy.

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as compared to men, draw attention to the various roles women play in water management and the emerging issues around it, and highlight why it is important to bear in mind the specific gender needs and interests while making water management plans. Putting on a gender lens, noticing women as well as men using water, certainly at home but more importantly on farms, makes it possible to thrash out the various social and cultural impediments standing in the way of enhancing gender equity in water management practices and policies in India. The chapter is arranged in five sections: the first section provides a brief background on citizenship and women in the context of water use and management in India. In the second section, I describe the status of women in India, and examine how this low status impacts on the various roles women play in water management and note the differences in both formal and informal spheres. In describing the emerging issues, the third section brings out the crucial importance of rights and access to safe and adequate water. The next section outlines the processes and initiatives undertaken by global development agencies in the mainstream of water management. The final section summarises the observations in light of the legal provisions and indicates directions for the future.

Women as Water-using Citizens The universal and autonomous citizenship that the Constitution of India envisions places all citizens on a level playing field; it imagines all individuals with equal rights engaging with governance institutions10 or the state in the public arena of political debate.11 The universalism inherent in this view neglects to recognise gender-based needs or interests, or access to resources or power. In reality, women in India often tend to remain excluded from public spaces, experiencing a near-invisibility from every important sphere of public life.12 Crucial gender differences in all spheres of life, including 10 Institutions comprise rules that individuals have to use to order specific relationships with one another. Ostrom (Governing the Commons, p. 11) defined an institution as ‘simply the rules actually used (the working rule or rules-in-use) by a set of individuals to organise repetitive activities that produce outcomes affecting those individuals and potentially affecting others’. 11 Nussbaum, Women and Human Development, pp. 14–15. 12 There is a general feeling in some circles that the recent constitutional amendments have taken care of the problem by ensuring women’s political participation at the ground level. However, for critiques of such views, see Gail Omvedt’s work.

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the management of resources such as water, are important to acknowledge because citizenship determines rights that are institutionalised in the form of rules, regulations and legal frameworks. In India all social relations are ‘gendered’—that is, they are based on the notion of gender.13 Indian feminists have pointed out that the realities of unequal power and rights between women and men, based on their gender, class, caste and ethnicity, are not fully acknowledged in the legal framework that derives from the Constitution.14 The laws, in their turn, form the overarching framework of citizenship but tend to overlook the relationships and expressions of power which are always in a flux.15 Gendered exclusions arise from an imagined public–private divide that puts women’s gender roles and responsibilities as resting in the family, caring and childbearing, and men’s gender roles as having to do with decisionmaking, formal politics, economics and the workplace. Such a divide sees women’s concerns as family and not as public or community/national matters, and frames the rights and ‘common good’ in the interests of men as the powerful groups in society.16 The divide also creates separate institutions to structure the two separate social realms and define their interactions. Laws are one part17 of such institutions, creating expectations of behaviour by imposing form and consistency on human activities, both constraining and enabling them. When laws pertain largely to the public domain inhabited only by men as producers and economic actors dealing with resources, they relegate other individuals and groups (in this case women) and their actions to the domain of the unimportant, informal or sometimes even illegal.

13 Gender processes interact with class and caste in ways that we cannot define as an ‘also’ category but is an essential constituent part of these other social differentiations. Gender is a critical ingredient in defining, demarcating and structuring caste and class. 14 Here, I am reminded of Sunder Rajan’s (The Scandal of the State) comments on the apparent contradictions amongst feminists caught between the two extremes of market and state; whilst the forces of liberalisation and globalisation erode women’s autonomy, the proposal for women’s reservation in Parliament indicates the wish to retain the state as a protector. In noting this dilemma amongst the Indian feminists, Krishnaraj observes (‘Women and the Public Domain’, p. 391) that there is a need to examine the record of this state: ‘We have to pause to ask the question what kind of socialist, secular, democratic republic we had whose loss we bemoan.’ 15 Consequently, Meer and Sever (Gender and Citizenship, p. 2) noted that ‘Like power relations, citizenship rights are not fixed, but are objects of struggle to be defended, reinterpreted and extended.’ 16 Kishwar, Off the Beaten Track. 17 The others are language, money, systems of weights and measures, table manners, and firms and other organisations (see Hodgson, ‘What are Institutions?’).

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The near-invisibility and exclusion of women plays, amongst other aspects of everyday life, a crucial role in water management in India. Water, most commonly seen as a physical resource and a national good, continues to be planned and managed by the state18 for the envisioned benefit of ‘all members of the society’. This statist view of water has an inherent contradiction embedded within it: either all citizens, irrespective of their gender, are represented in this view as having the same needs and interests in water, or it puts women primarily as the domestic water users. These representations are embodied formally in laws or informally in the various dealings of the State with its citizens. The imagined equal power and voice of women and men envisions a homogeneous ‘community’ subsuming and neglecting gender-based issues and concerns in relation to water resources. The institutions conferring rights over resources, including water resources, belong to the formal domain of laws. Similarly, State-controlled modes of water governance ignore the traditional and informal institutions of management. Both formal institutions and centralised modes of water control tend to prioritise men’s views and concerns. The appropriation of water, the placement of it in the formal domain, and the relegation of women’s water interests began in India during the colonial times, as Mosse has shown in his research on the tanks in South India.19 The project of colonial modernity established an irrigation bureaucracy that created an intricate network of rules and laws to enhance the state power over resources with a polarised conception of rights and obligations, and state and community, while at the same time absolving itself of any liability for the protection of livelihoods against uncertainties. The water resource policy of the postcolonial state in India has only built upon and amplified the contradictions of colonial government, and over the years has become entirely unable to maintain decentralised water resources systems or protect the rural livelihoods that depend on them. The formalisation and centralisation of traditional water management has significant gender fallouts. First, the new practices reinforced gender inequitable systems in the public domain by representing men’s needs and interests. They also emphasised, directly or indirectly, women’s water

18

I have used the term ‘state’ to mean state in the abstract sense, that is, the body that has the privilege of formulating laws and determining the rights; ‘statist’ for views that reproduce governmentality associated with the state and ‘State’ for individual political units within our country. 19 According to Mosse (The Rule of Water, p. 303), ‘The colonial state founded its legitimacy on its capacity to wield the power of science, technology, and rational administration to bring the uncertainties of famine and floods under instrumental control.’

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chores that belong to the private domain outside of the formal sphere of law and its reach, in the process turning women into non-citizens. Above all, by bringing forth new formal water institutions that represent a masculinist approach in assuming superior knowledge of outside experts on water as a resource, they deny women their right to participate, to express their voice and to exercise their agency. Whilst introducing a gender perspective into water management, experts have been divided amongst themselves with regard to women and water, once again placing women’s roles in specific locations and chores. Cleaver20 has placed women’s contributions to water resource management and agency in securing assured access to good quality water within the informal management sphere, which fits in neatly with local women’s livelihood priorities. This informal sphere is feminine and mostly domestic, dictated by informal structures and networks, on management through custom and practice and through ‘rules of use’. According to her, formalised management principles such as committee structures emphasise restrictions on access and the importance of distributional rules. In an earlier study, Cleaver and Elson21 described how women’s uses of water occur in the domestic or non-market sphere. This observation is undeniably true for India; all over the country, women are the primary water managers and educators at the domestic level in both rural and urban areas. Women perform and teach children the rules of use: reliable and safe sources of collection, storage methods, minimal use, monitoring or policing and preserving the quality of water. The weakness of this view is its overall representation of women as belonging to the home and, again, the informal sphere; representations that overshadow women’s productive roles on farms and in fields throughout the developing world. By enhancing the representation of women as mothers, wives and daughters belonging only to the home, it runs the risk of turning a segment of the population into non-citizens without agency. Stereotypical ideas about the gender division of labour and about appropriate male and female behaviour function as impediments in the recognition of women as farmers and irrigators. These representations see women as the archetypal ‘water carriers’—long queues of women at a well or along the horizon, wearing colourful saris and carrying buckets on their heads. Although they provide a symbolic icon of the feminine burdens of water—fetching it in heavy containers, transporting it over long distances and spending great amounts of time in water chores such as 20 21

Cleaver, ‘Incentives and Informal Institutions’, p. 356. See Cleaver and Elson, ‘Women and Water Resources’.

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washing/cleaning—they obscure the economic agency of women in these jobs as well as on the farm. Consequently, this view has been contested by Zwarteveen in her various works.22 She puts the emphasis on women’s productive functions rather than reproductive-related ones at home. Another important contribution in the field has come from Meinzen-Dick et al.,23 who have consistently focused on property rights issues relating to water and have emphasised, besides intra-household disparities in rights, that many of the rights women have over water are non-formal, unwritten, traditional and beyond the legal domain. In outlining the legal and policy implications for India, I subscribe to this view; my aim is to assert women’s significant contributions to the water sector in their roles as farmers as well as water users at home. Women are important as irrigators in terms of their numbers although they continue to remain concentrated in traditional or small-scale irrigation systems. In India, nearly one-third of agricultural workers are women; in addition, rural women in general are well-known for producing some crops for the household as a measure of food security.24 Altogether, this requires managing of a large amount of water.25 However, the crops produced by women or waters managed by them tend to receive very low or zero priority from irrigation analysts. The single biggest impediment in making water a means of empowering women lies in the lack of recognition of women as irrigators and water users. Even when the responsibility of water management is devolved on the local

22 See, for example, Zwarteveen, ‘Linking Women to the Main Canal’ and Zwarteveen, ‘Water, from Basic Need to Commodity’. 23 See ‘Gender, Property Rights and Natural Resources’. 24 As per 2001 Census, 41.3 million of 128 million total agricultural labourers officially reported. 25 Provision of food security for the family by women again is crucial throughout the country. Ramachandran, ‘Women and Food Security in South Asia’, pp. 3-4, observes:

Across South Asia … women on an average account for about 39 per cent of the agricultural workforce (2000) .... However, official statistics often grossly underestimate the female workforce in the region. Women’s work, in the household, the farm or the commons is labeled as household chores and not given the status of work .... The sectoral distribution pattern of the female workforce reveals that the agricultural sector employs over two-thirds of the women workers in all South Asian countries …. In addition, what makes women’s contribution to macro level food security even more significant is the fact that in most countries, women, by choice or restriction, focus largely on subsistence production of food crops, be it on farms or in home gardens, whereas their male counterparts tend to diversify into commercial farming.

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level, it is often seen that women are not part of new bodies such as Water Users’ Associations (WUAs). The various formal and informal membership criteria and the process through which new water user organisations are formed in management transfer programmes are gender-biased as a result of planners’ preconceptions about the definition of ‘user’ itself. In their study of gender participation in WUAs, Meinzen-Dick and Zwarteveen26 found that the biggest barrier to women’s participation in WUAs stems from membership rules that directly or indirectly exclude women. These rules stipulate that only formal right holders to irrigated land can become members or require head-of-household status in order to be eligible for membership, or sometimes call for a combination of both. Their critique of WUAs also pointed out the tendency to include only irrigated farmers and their concern with water deliveries to field crops. Uses of water by women, such as for irrigating homestead gardens or watering livestock are not commonly included in formal water distribution plans and are thus not considered legitimate or in the domain of WUAs. A study undertaken by Upadhaya in Gujarat27 that examines gender roles of men and women as both domestic activities and productive water users to show these roles help the latter to improve their socio-economic status. She found that costs of labour hours for women are not considered as ‘real’ costs since women are not paid for their contributions. Also, although women are significantly involved in irrigated agriculture, the revenues earned are entirely controlled by men. Women also bear the brunt of the ill-effects of deteriorating water quality and of excesses or scarcities, such as those during floods and droughts. The fact of women’s involvement in work in particular needs to be seen as a critically important issue in water management; it is well-known that the labour of women is concentrated in rural areas and in marginal jobs.28 Krishnaraj and Shah29 identified four important aspects of women’s work in their Millennium Study of Women in Agriculture: Predominance of Rural Workers, the dominance of the primary sector in rural areas, a significant set of subsidiary workers within the primary sector and a higher incidence of casual labour. The same study also noted the impacts of mechanisation and the use of technology as in fact having a positive influence as more women become employed on farms. 26

See ‘Gendered Participation in Water Management’, p. 154. See Upadhaya, ‘Gender Roles and Multiple Uses of Water in North Gujarat’. 28 Women account for about 65 per cent of household food production in Asia playing a critical role in agriculture, managing land, water and livestock resources. 29 See Women in Agriculture, p. 44. 27

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Land Rights and Women The water burdens of women do not lead to their active roles in water governance; in most cases, the range of duties performed by them does not translate into decision-making power in water management. More than the gender specificity in the uses of water, gender differences with respect to access to and control over water resources need to be taken into consideration, especially in view of the changing water policy context. This fact has been noted all over the world by water professionals and has been attributed to the generally lower social, economic and legal status of women as compared to men all over the world. India is no exception to this general pattern, and the lack of women’s ownership rights over land lies at the core of the disenfranchisement of women in a natural resource management sector such as water. The conceptual links between gender and property derived from the gender and land rights debate apply to water, and other wider natural resource, rights. This point of view has been put forth by Agarwal, who notes: Land defines social status and political power in the village, and it structures relationships both within and outside the household. Yet for most women, effective rights in land remain elusive, even as their marital and kin support erodes and female-headed households multiply. In legal terms, women have struggled for and won fairly extensive rights to inherit and control land in much of South Asia; but in practice most stand disinherited. Few own land; even fewer can exercise effective control over it. Yet the voice of the disinherited female peasant has until recently gone largely unheard, not only by policy-makers but also by grassroots groups and academics.30

Indeed, equality in land rights is the most critical element in women’s economic empowerment and in challenging the various social and political inequities that women face on a daily basis in India. Gender equality in inheritance must be promoted as most agricultural land is privately held.31 A sample survey32 in seven States of India found that out of 470 women with landowning fathers, only 13 per cent inherited land as daughters. This survey

30

Agarwal, A Field of Her Own, p. 2. In India, for example, 86 per cent of arable land is under private ownership. 32 Chen, Perpetual Mourning. 31

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observed that 87 per cent of the surveyed women did not receive their legal due as daughters, and half the widows with legal claims did not inherit any land. In the case of those who did, their shares were typically not recorded formally in the village land records. The popular perception in India is that the widow’s share is for her maintenance and not for her direct control or use. Again, widows without sons can rarely inherit land. On this FAO33 notes: ‘Land rights can serve multiple functions in rural women’s lives, which are not easy to replicate through other means.’ The analyses of gender inequalities and property rights, therefore, form the core of the arguments put forth in this chapter. I draw on the point raised by Agarwal34 that property rights are at the heart of the increased bargaining power of women either as a group or as individuals. Conceptualising citizenship in a gendered manner and ensuring gender equality are central to development goals. Yet, women continue to be seen as non-participants in production, with no legal claim or right to land and all the status and power it can bring. Although purely patrilineal inheritance laws no longer exist,35 notable gender inequalities remain in terms of agricultural, that is, productive land, joint family property, unequal shares, and in the gap between legal rights and actual ownership. Consequently, even in state transfers of land as part of land reform programmes, resettlement schemes for the displaced, or poverty eradication programmes, women remained invisible36 and land went to men, and in 9 out of 10 female-headed households, the land went to the women’s sons. At the same time, one must note that while having land rights might mean ownership rights over water, such water rights are subject to the overall sovereign power of the state. This is where the question of class enters the debate, as the richer and the more powerful tend to have better access and technology to withdraw water from their own land and the commons.37

33

See FAO, ‘FAO, Focus: Women and Food Security’. See ‘“Bargaining” and Legal Change’. 35 The Hindu Succession Act of 1956 made sons, daughters and widows equal claimants in a man’s separate property and in his share in the joint family property. Similarly, the Muslim Personal Law Shariat (Application) Act of 1937 substantially enhanced Muslim women’s property rights in India as compared with those prevailing under custom. 36 See Gupta, ‘Land, Dowry, Labour’. This major land reform initiative was taken up by the Communist Party of India (Marxist)-led Left Front after coming to power in 1977. Operation Barga sought to secure the land rights of tenants by systematically registering them. 37 For example, lowering of the groundwater table through indiscriminate withdrawal of groundwater is an intervention in the commons; it is not uncommon for water scarcity to result from such use by the rich, either in cities or in villages. 34

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Toiling Away without Rights Although the question of water rights is closely intertwined with land rights and obtained through them, Zwarteveen38 emphasises that ‘water is quite a different type of resource than land. The analysis of gender and water rights, therefore, requires a basic understanding of the nature of water as a resource.’ This difference arises out of the fixed or static nature of land whereas water is fluid or dynamic; it flows over or under the land and can move away from one’s land to that owned by someone else. For example, this fluid nature of water resources means difficulty in drawing a specific border, and can result in upstream–downstream conflicts in riparian rights. For water, the riparian rights are gathered over time; besides this, the other type of rights is gained due to the access to the resource itself. Right determination, according to Singh,39 becomes necessary if a resource is not freely available; conferring water rights is an important measure or an institutionalised principle to regulate water use and minimise conflicts. Informal rules and regulations have evolved over a long time, reflecting the social, economic and political structure, influenced by the local geographical and technological situations. State laws, by not recognising these informal rules and regulations, have stripped the communities of many of the water rights that they have enjoyed in the past, and have appropriated these rights. Rajagopal and Janakarajan40 note that water rights are institutional, time-tested arrangements evolved in order to enable a user community to act, interact and manage a water system. This is not to say that all traditional or customary modes of water governance are necessarily gender-equitable; this is exemplified by recent research on the traditional water institutions (see Jha’s comments on sexual division of labour creating gender inequities in Subak).41 It needs to be emphasised that property rights are far more than just pieces of paper specifying the legal ownership of land or other resources. It also needs to be noted that property rights are most commonly seen on the basis of the household, where the rights rest on the de facto or de jure male head. In reality, there are differences amongst the individuals within the household with regard to their gender, age or other intra-household characteristics. 38

See ‘Water, from Basic Need to Commodity’, p. 1335. See Water Law in India. 40 See Water Rights and Participatory Irrigation Management in India. 41 As noted by Jha (‘Gender and Decision-making in Balinese Agriculture’), the decisionmaking ability is a right that is manifested in both the tasks and the roles that women and men play, the freedom to make decisions being central to the idea of participation. 39

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According to Meinzen-Dick et al.,42 property rights ‘encompass a diverse set of tenure rules and other aspects of access to and use of resources. If we understand property rights to an individual’s capacity to call upon the collective to stand behind his or her claim to a benefit stream, then property rights describe relationships between people.’ Women can gain land in three ways—inheritance, state transfers and through the market. Of these, inheritance is the most crucial in legal terms although it is impossible to clearly determine the proportion of women in India who inherit land in practice as land ownership data is not gender segregated. Several international institutions have recently called for a greater involvement and participation of women in water management. The thrust of many of these agencies is on the recognition of water as a human right for women. The Gender and Water Alliance (GWA) recognises that access to safe and adequate water is a right for all women, and that women must have a voice in governing water resources. The Global Water Partnership (GWP) has outlined the key principles underlying the philosophy of water governance as: ‘Women should be regarded as central to the provision, management and protection of water resources and services’.43 Although the Indian Constitution guarantees equal treatment for women and men, and has in fact taken significant steps in promoting women as agents and political actors in India,44 in most parts of the country women comprise a disproportionate segment of the chronically poor population, face gender discrimination throughout their lives within the family, society and at places of work, have low levels of control over property and resources and bear shocking burdens of work.45 Ramachandran46 points out that large numbers of women provide food security and subsistence for the family, a reality evident also in the water sector: whereas women are the primary users, all water management plans tend to cater towards the needs of an imagined ‘citizen’ who is almost always a male—a farmer needing irrigation, making decisions with regard to water use, and belonging to that elusive public arena that is devoid of the presence of and deliberations on women’s needs. Putting on a gender lens, noticing women as well as men in every aspect of their lives, and considering the various social and cultural impediments 42

See ‘Gender, Property Rights and Natural Resources’, p. 1303. Gender and Water Alliance, The Gender and Water Development Report 2003. 44 See Agnes, Law and Gender Inequality. 45 See Sarkar, National Specialised Agencies and Women’s Equality. 46 See ‘Women and Food Security in South Asia’. 43

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in ensuring the equity that is enshrined in the Constitution, is a necessary task that can only improve future water management practices if taken note of by the policymakers.

Unequal Citizens The ‘status of women’, measured by international standards and indices, reflects a nation’s priorities in the health, welfare, development, enforcement of legal rights and protection of women. Sunder Rajan notes: The gendering of citizenship draws attention to the way the state constructs ‘women’— primarily in their difference from men by formulating laws and policies specific to them, but also by differentiating among them …. But equally, though within a different schema of political identity, the rights of ‘citizenship’ propel women into an equal and ‘same’ identity with men and with other women, which is necessarily contradictory in its effects.47

The Indian state’s performance in making women equal citizens with differences has been dismal. The deprivations suffered by women begin from a woman’s right to life itself and continues on throughout her life: during childhood in her parental home caused by explicit son preference, in her youth and middle age in her in-laws’ home as a discriminated housewife, till her death. In general, women in India bear more children (high fertility rate and high maternal mortality ratio per 100,000 live births of 566); girls are married off early and have no control over their own bodies combined with a high level of illiteracy adversely affecting their health and a higher HIV/AIDS prevalence rate (0.5 per cent amongst women as compared to 0.3 per cent among men). Intra-household bias in food distribution leads to greater nutritional deficiencies among female children. Improvements in women’s literacy have remained low, and the disparity between male and female literacy has remained wide. The net primary school enrolment rate is 88 per cent for males and 75 per cent for females but the primary completion rates reveal that only 71 per cent of females are able to complete their education as against 84 per cent males.

47

See Sundar Rajan, The Scandal of the State, p. 2.

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FMR and Other Statistical Indicators The inequality is evident from simple demographical statistics such as the rapidly declining proportion of females in the 0–6 year range and the low FMR (Female–Male Ratio, also known as the sex ratio—number of women per thousand men) values.48 Martha Nussbaum noted: [O]ne might sum all this up by saying that all too often women are not treated as ends in their own right, persons with a dignity that deserves respect from laws and institution. Instead they are treated as mere instruments of the ends of others—reproducers, caregivers, sexual outlets, agents of a family’s general prosperity. Sometimes this instrumental value is strongly positive; sometimes it may actually be negative.49

The low status of women as compared to men is primarily reflected in their lack of rights and ownership of resources, and huge work burdens. In household and family relations, the gender inequality takes the form of violence against women, being community-sanctioned, as ‘just another form of violence’.50 In production relations the gender inequality takes the form

48 The FMR values have been steadily declining from a high of 970 women to 1,000 men in 1971 to around 933 per 1,000 men in 2001. This is indeed a slight increase over the previous census year’s (1991) figure of 927. First of all, one must remember that there are wide variations in the sex ratio depending on the State (the State of Haryana being the lowest at 861 and Kerala being the highest at 1,058) and amongst the religious groupings (Sikhs having the lowest at 786, Hindus at 925 and Muslims at 942). However, a closer look at the child sex ratio, which gives the sex ratio of the child population between 0 and 6 years of age, reveals that the sex ratio has actually gone down from the 1991 figure of 945 to 927 in 2001. It has been noted that nearly 150 million more women would be alive in India today had it not been for the neglect and sex-selective abortion of the girl child. This is the much debated phenomenon of ‘missing women’, pointed out by Amartya Sen. Agnihotri (‘Sex-ratio Patterns in the Indian Population’) has shown that the sex bias does not end at the age of 6 as envisaged; the sex ratio for 5–9-year-olds are considerably lower than 0–4-year-olds (942 as compared to 976). The FMR is taken as the strongest evidence of gender bias in India; other indicators also reveal that the picture is highly skewed and heavily biased against women. The experts attribute this gender bias to differential nutrition, unequal healthcare and even infanticide of girl children as a result of preference for son. Similarly, in education the gap is wide; in adult literacy or in the under-5 life expectancy. 49 Nussbaum, Women and Human Development, p. 2. 50 An Oxfam Briefing Paper published in 2004 notes that in India, 80 per cent of women experience violence within their homes. Every six hours, somewhere in India a young married woman is burned alive, beaten to death or driven to commit suicide. It is estimated that more

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of the appropriation of women’s household work. In labour relations it takes the form of discrimination in wages, inadequate access to, ownership of and control over productive resources like technology, skills, education, assets like land and credit, information and mobility.51 Although women are expected to work continuously, their participation in the public domain remains restricted by families; if at all, they are represented as mothers, sisters and daughters, whose entitlements are subject to community norms and arbitrated by custom, kinship and family. Such inequalities of gender are strongly correlated with poverty, leading to a failure of human capabilities.

Women’s Low Status is a Hindrance to Development The World Development Report of 2006 (p. 29) notes the importance of health in dealing with inequities: Alongside the intrinsic importance of health as a dimension of welfare, poor health can directly influence an individual’s opportunities—his or her earning capacity, performance at school, ability to care for children, participation in community activities, and so on. This important instrumental function of health implies that inequalities in health often translate into inequalities in other dimensions of welfare. And these inequalities are reproduced over time.

A similar importance can be attributed to education when assessing inequalities of opportunity, making it an important determinant of individuals’ income, health and capacity to interact and communicate with others. Education is known to be the key to building women’s capabilities, a key strategy for gender equality and women’s empowerment by expanding opportunities for women, equipping them to make more informed choices and empowering them to resist oppression.52 In India, millions of women are living with the consequences of not having adequate education or of being illiterate. The poor levels of literacy amongst women are caused by multiple factors.53 Patriarchal attitudes define girls’ destiny in terms of marriage and family, resulting in the parents’ failure to see the value in investing scarce than 15,000 women suffer from dowry-related violence every year. In another nation-wide survey in India, nearly 50 per cent of women reported at least one incident of physical or psychological abuse in their lifetime; see UNIFEM, Not a Minute More: Ending Violence against Women. 51 Krishnaraj and Shah, Women in Agriculture. 52 See UNDP, Human Development Report. 53 Ibid., pp. 12–13.

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capital in educating girls. Indian women in general are caught in a vicious ‘inequity trap’: gender differentiated access to assets and opportunities are reinforced by unequal norms and social structures, perpetuating gender differences over centuries. Yet women are at work throughout India, comprising a significant part of the workforce in India, with an overall labour force participation rate of 33 per cent as per the 2001 census. However, the data on workforce participation take into account mainly the organised forms of work and fail to fully reveal the extent of women’s economic contribution. In rural areas, a large proportion of women are employed in agriculture as labourers and cultivators. In urban areas, women are employed in informal jobs such as small factories and household industries, petty trades and services, buildings and construction. Women also account for a greater share in the care economy or home-based work, which is difficult to measure. The gender division of labour prevails in all sectors of employment. A large number of rural households are now de facto female-headed (about 25 per cent), whether due to widowhood, desertion or male out-migration, especially in the hilly and backward areas. Yet the national focus of policies and programmes has been more on employment generation for women rather than ownership and control over resources, and give least importance to addressing their priorities or involving them in decision-making roles. Despite the fact that the Constitution provides legal equality for women and men, social and economic equality between the genders is yet to be achieved in India. This is why many Indian women continue to remain at a lower status with low literacy and poor access to resources and facilities. Throughout India, women comprise a disproportionately large share of the chronically poor population, facing gender discrimination throughout their lives within the family, society and at the workplace. Gender discrimination starts from the foetus, in terms of the selection of sex, child-bearing, feeding, education, employment, control over property and resources, and eventually in the participation and decision-making in public and political spheres. Women in Indian society are burdened with heavy workloads; while they have lower status compared to men, they are assigned the heavier, manual, unskilled jobs whether at home, in the farm or forest, or in the mines. Fertility rates are high, primarily due to factors such as early marriage, preference for a son, low access to contraception, low job participation in the formal sector, and such others. Consequently, it has been difficult for women—especially in rural areas—to organise themselves and sustain movements to claim their resource rights.

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Emerging Issues in Women and Water In the caste, class, religion and ethnic interest dominated Indian society, gender is a factor that cuts across these issues, and if water governance is addressed from this standpoint, a whole new dimension is added to it, particularly in the rural areas. Crow54 noted that the water rights are mostly with the richer classes whereas the poorer farmers are exploited and deprived. The rich continue to have better access to the productive possibilities of irrigated agriculture. The poor have low access not only to land-based resources but also to water, further reducing their livelihood options. A National Academy of Agricultural Sciences report published in 2005 put the question of ownership at the heart of the issues related to water management in India.55 In its recommendation, the report clearly states that water, as a resource, should not be made a private property and also that its ‘common property resource character’ can be changed by transferring the control of water to local communities or user groups. At present, water access means the private ownership of land and pumps that can provide access to groundwater or adjoining water courses. These private sources are mostly available to the upper-class and better-off farmers and landlords. The poor use the water from the village ‘commons’—the rivers, ponds and public tanks—through some form of communal rights of access and use.

Linking Women to the Main Canal Access to water between women and men is theoretically and legally equal, but is in practice rooted in the gender inequalities that ensure sex-based roles. In many parts of India, women and children are burdened with the responsibility of collecting water for drinking and cooking and for other household needs as well as productive activities occurring near the home, such as livestock-rearing and market gardening. Domestic water seems to receive a lower priority to that needed in fields and industries; this represents a gender bias, in that what are perceived as ‘men’s jobs’ are given priority and hence the resources they need made more easily available. Shah’s56 interesting story from his travels in rural Gujarat amply brings out this myopic vision and misplaced priority of water engineers. Domestic needs of water in most 54

See ‘Water: Gender and Material Inequalities in the Global South’. NAAS, Emerging Issues in Water Management. 56 See ‘Women and Water’, pp. 172–73. 55

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villages are less of a priority as it is seen as women’s business, canals are meant for men who make decisions related to water, and government officials responsible for the management of water through large canal systems are entirely blind to the gender-based water needs of women. Zwarteveen57 identified two main areas of the differential impacts of irrigation on women and men: the first set related to the allocation of labour, land, water and other resources, maintenance and participation; and the second set related to the use of the outputs of irrigated agricultural production, that is, consumption, storage and exchange or sale. Failing to address these issues in the decisions taken with regard to irrigation may undermine the value of the project itself. In her words (p. 9): [T]he non-involvement of women, or of their needs and interests, in irrigation management has become a self-fulfilling prophecy. Because irrigation is commonly seen as a male activity, and because women are not seen as direct stakeholders in irrigation systems, they have become excluded from efforts to organise water users. Since women’s specific concerns thus remain outside the formalised decision-making processes, they are often not recognised as ‘real’ concerns and remain marginal.

Again, it is clear that gender roles are the most crucial factor in determining why both women and men’s needs and interests must be taken into consideration; according to Zwarteveen (p. 7): Some of the ways in which irrigation affects women and men will be reflected in their differential needs with respect to the irrigation system’s outputs. Output measures assess the nature and quality of irrigation services delivered to farm households, services which will in turn be important in determining production, income and other livelihood indicators.

She notes that irrigation projects can fail if they do not take into consideration both women and men’s needs in ensuring adequacy of water delivery, equity in the spatial distribution of water across the system, timeliness and convenience, and water quality, which again is a major concern for women.58 57 58

See ‘Linking Women to the Main Canal’. The example is interesting and enlightening. Zwarteveen (ibid., p. 6) notes: Very often the main irrigated crop is controlled by the male member of the farming household. Women will often contribute labour to this crop, but very often they also grow crops of their own. These crops may be used for consumption, or they may be sold to provide women with a personal source of income. When there is an opportunity to do so, women will make use of irrigation water to grow these crops. They may take water directly from the channels or sometimes they use drainage water. However, these

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Women in Water Management Why should gender be a central concern in water management? The answer is still not quite clear to many water planners, policymakers and engineers. The confusion has been added to by some experts trying to show the ‘special’ and ‘close relations’ between women and their natural environment rather than emphasising women’s rights to natural resources such as water as economic citizens of India. Consequently, many people tend to have reservations over ecofeminist views that conflate all women and the natural environment in a broad sweep. Let me discuss why such an equation of women and environment may actually go against women’s interests by briefly drawing attention to the debate. A series of documents and publications in the 1980s59 put forth the view that women are the household and local-level users and managers of the environment because of their reproductive and subsistence-focused activities. This view came to be known as ecofeminism, which claimed that these works performed by women involve them closely with the environment and its resources, making them more dependent on and giving them distinct interests in natural resources, especially as sources of food and fuel.60 Another, similarly sourced, idea claimed that women were the primary victims of environmental degradation; for example, in tracing the ever longer walks to the source of water, during water-related disasters such as floods, and as bearers of the impacts of displacement and resettlement in dam projects.61 Consequently, some development practitioners and experts began to see ‘women’ as the key to understanding the environment and its conservation,62 in spite of repeated warnings of the inherent faults in such claims.63 The creation by ecofeminists of a mythical, nurturing woman has served to alienate men who refused to see the urban, educated and middle-class crops grown by women are often not considered the ‘main’ crop, or sometimes it is not even realized that they are grown. As a consequence, their water requirements are seldom taken into account when devising water delivery schedules. In some cases, the use of irrigation water for growing crops other than the planned one, or for using water on plots outside the designed command area, will even be considered illegal. 59 For example, Dankelman and Davidson, Women and the Environment in the Third World; Rodda, Women and the Environment. 60 Mies and Shiva, Ecofeminism. 61 Mehta and Srinivasan, ‘Balancing Pains and Gains’. 62 Shiva, Staying Alive and ‘Development, Ecology and Women’. 63 See Leach, ‘Gender and the Environment’; Jackson, ‘Gender, Women and Environment’ and ‘Women/Nature or Gender/History?’ for critiques of ecofeminism.

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women as carers of the environment or with a special relation to it. In the water sector, it has added to the continued representation of women from developing countries as victims of poor quality water and sanitation, and has drawn the attention away from the core issues of gender equality and women’s empowerment. However, according to Leach’s recent work,64 ‘poorly conceptualized and inherently fragile’ as this ‘Earth Mother myth’ was, ‘the idea of women’s inherent closeness to nature’ also served strategic interests. The additional responsibility of being caretakers of the local ecology was ascribed to women without taking into consideration their access to and control over resources, knowledge, information and decision-making systems, which are arbitrary and do not empower women. The emphasis on women’s participation in co-management has accompanied a renewed focus on poverty, which in turn has tended to be genderblind, promoting images of undifferentiated, consensual communities of ‘the poor’. Commenting on this current absence of gender, Leach notes (p. 81) that whilst some of these studies have been influenced by discussions on resource rights or the sustainable livelihoods approach, ‘there is little evidence of a well conceptualized gender relations perspective’ in policy literature. In water management, this is particularly true as the crucial issues of rights and resource access must be acknowledged in relation to gender. This has been indicated by feminist scholars in India time and again; a recent example can be cited from Kerala where the State’s record of literacy, health and demographic performance is almost equal between women and men. Kodoth65 has shown that social development built upon and strengthened a patriarchal conjugal framework of property relations, within which women’s property was anchored to marriage and the marital family, which did not give women independent rights to property.

Bringing Women into the Mainstream of Water When marginalised groups, including women, but especially those women from the marginalised groups, tend to remain excluded from the development processes, it creates a situation of economic dependence. This makes possible the exclusion of women from rising to positions of power by themselves, 64 65

Leach, ‘Earth Mother Myths and Other Ecofeminist Fables’, p. 68. ‘Gender, Property Rights and Responsibility for Farming in Kerala’, p. 1911.

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creating a vicious cycle of exclusion, dependence and powerlessness. The deeply ingrained social attitudes to women play an important role in making this exclusion possible. Researchers have found that ‘effective, efficient and equitable management of water resources is only achieved when both men and women are involved in consultation processes, in the management and implementation of water-related services’.66 Yet it is still not common for policymakers to consider who will require water, for what purposes at the household or community levels, and what effects regulations and legal instruments will have on these uses and user groups.67 A similar stream of thought goes back to the statement made at a conference in Bonn: Water resources management should be based on a participatory approach. Both men and women should be involved and have an equal voice in managing the sustainable use of water resources and sharing of benefits. The role of women in water related areas needs to be strengthened and their participation broadened (Inter-ministerial Conference on Freshwater, Bonn, Germany, 2001).

The question that arises has been put forth by Maharaj:68 ‘How do we strengthen the role of women and ensure they have an equal voice and choice?’ In the next section, I will show how the development institutions have globally worked together towards an answer to this question. The recent efforts by them might serve as an example for policymaking in India.

Hydrofeminisms Development institutions have played a major role in bringing gender issues to the foreground of water resource management. These agencies began to locate gender in water with initiatives in the water and sanitation sector, emphasising the need for accessible, clean and safe drinking water and sanitation needs for women in poorer communities. The focus, for example, of the United Nations during its International Drinking Water and Sanitation Decade (1981–90) was on ‘clean drinking water and sanitation for all by 1990’. The 1992 Dublin Principles were an attempt to concisely state the main issues and thrusts of water management.69 While this principle recognised that ‘women 66 Derbyshire, Policy Development Manual for Gender and Water Alliance Members and Partners, p. 1. 67 Wijk et al., ‘Gender Aspects in the Management of Water’. 68 The Gender Approach to Water Management, p. 4. 69 Solanes and Gonzalez-Villarreal, ‘The Dublin Principles for Water as Reflected in a Comparative Assessment of Institutional and Legal Arrangements for Integrated Water Resources Management’, p. 6.

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play a central part in the provision, management and safeguarding of water’, Principle 4 states clearly that water ‘has an economic value in all its competing uses and should be recognised as an economic good’. Consequently, during the 1990s, water policies changed drastically with the neoliberal economic agenda, and as the market moved in, there was an initial disarray between privatisation of water supply, decentralisation, demand management and integrated water resource management. The global commitment to ‘water for all’, community participation (and the inclusion of women) and the empowerment of women were somewhat lost in the shuffle. The United Nations Conference on Environment and Development (UNCED) endorsed Agenda 21, which incorporated the Dublin Principles as part of its Chapter 18, ‘Protection of the quality and supply of water resources’, and has now come to form the baseline for sustainable development, particularly of water resources. The GWA was created at the Second World Water Forum in The Hague in 2000, ‘in recognition of the fact that that the water sector had been a technically-driven engineering project that did not recognise and incorporate the different social relationships and roles of women and men, poor and rich communities, and minority and majority cultures in the provision of water and sanitation services’.70 Finally, the international agencies have now arrived at a consensus that participation by both women and men, not as objects but as equal partners, is essential for sustained interventions in water management. In the United Nations Millennium Declaration, heads of states identified a number of targets for countries to meet by 2015 (popularly called the Millennium Development Goals, or MDGs). Goal three puts a great thrust on gender equality and women’s empowerment; and target 10 pledges to reduce by half the proportion of people without sustainable access to safe drinking water and sanitation by 2015. Others, such as those relating to girls’ education and maternal health, also touch upon gender and water. It is also increasingly being realised that instead of being a global public good, water must be seen as a human right for everyone.71 Water as a human right was originally not explicitly recognised in the Universal Declaration of Human Rights, but was implicitly included as an essential factor in ensuring the universal human right to ‘a standard of living adequate for […] health and well-being’ (Article 25, Universal Declaration of Human Rights). In 2002, the United Nations Committee on Economic, Social and Cultural Rights affirmed that access to adequate amounts of clean water for personal

70 71

See Khosla, ‘Tapping into Sustainability’, p. 3. See Mehta, Problems of Publicness and Access Rights.

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and domestic uses is a fundamental right for all people (General Comment No. 15). While the General Comment is not legally binding, it does carry the weight of a ‘soft law’, and governments have increasingly faced pressures from civil society organisations for adequate and regular amounts of safe water, to tackle the challenge of social and political conflicts arising from inequitable distributions of it, and to include the citizens in its planning and management.72 It has now been more or less accepted that the right to water is clearly established under international human rights law: all people have the right of access to the amount of water required to sustain life and fulfil basic needs.73 The right to water has been identified as a component of the right to housing, the right to the highest attainable standard of health and the right to food under the International Covenant on Economic, Social and Cultural Rights (ICESCR), 2002, which states: With respect to the right to water, States parties have a special obligation to provide those who do not have sufficient means with the necessary water and water facilities and to prevent any discrimination on internationally prohibited grounds in the provision of water and water services .… States parties should take steps to ensure that women are not excluded from decision-making processes concerning water resources and entitlement. The disproportionate burden women bear in the collection of water should be alleviated.

Human rights advocates now recognise water as a critical component of gender equality and a tool for the empowerment of women. In March 2005, the International Decade for Action, Water for Life (2005–15) was launched to coincide with meeting the MDGs in water and sanitation. The goals of the Decade are to have a greater focus on the implementation of water-related programmes and projects, ‘while striving to ensure the participation and involvement of women in water-related development efforts …’. Besides the gender perspective of the development agenda, the other major source of gendering water came from the Water Supply and Sanitation (WatSan or WSS) sector dealing with women’s health issues. Indeed, many women, especially in poor communities, are in constant contact with polluted water and affected by the lack of sanitation, thus becoming vulnerable to water-related diseases. The international donors have placed women’s reproductive health and privacy issues under intensive scrutiny and spend billions

72 73

See Lahiri-Dutt, Fluid Bonds. See WEDO, Diverting the Flow.

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of dollars on this area in developing countries. Global meetings (for example, UNICEF’s World Summit for Children in 1990 and 2002, the 1996 Habitat II Conference in Istanbul and the 1995 Beijing Fourth World Conference on Women) have given top priority to water and sanitation. WSS is indeed a crucial area that can improve women’s lives, especially millions of rural or urban poor who are forced to live in increasingly congested conditions without clean and adequate water for drinking and washing/cleaning; latrines with running water for defecation in privacy and environmental health. This again reflects the prioritisation of what is seen as ‘masculine’ jobs, keeping women’s access to water and sanitation at a lower level of concern. Critiques of the International Water and Sanitation Centre’s approach to gender issues in the sector of WSS have drawn attention to the fact that it has received by far the greatest attention from development experts.74 This attention probably reflects the technocentric ideologies that dominated in the past and continue to form the backdrop of developmental interventions in the public health area. The reasons and evidences are located in a formal and positivist domain where medical data can prove the absence of health amongst women as compared to men. Although this emphasis on water and sanitation and health of women (in opposition to integrated water resources management) has been condemned, one must remember that to those women in India who are without access to clean, safe and adequate drinking water, who are always in contact with polluted waters, who are affected by the lack of sanitation, such a critique might appear unrealistic. In India, we still have a long way to go to give effect to the principles and policies agreed upon at the global level. The difficulty of moving ahead often lies in designing and implementing workable and politically acceptable WSS schemes at the local level. Much has yet to be done in this sector, and there is no doubt about it. At the same time, attention needs to be focused on smaller-scale water management.

Policy Implication for Water Management in India In conclusion, I come back to the questions touched upon earlier: the question of citizenship, property rights and empowerment. In India, where water rights are usually obtained through access to land or through labour

74

Khosla, ‘Tapping into Sustainability’.

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contribution, it is clear that women have very little opportunity of acquiring either irrigated land or water rights. Women’s access to water is in most cases mediated through their husbands and male relatives, and women as a rule do not have official or legal entitlements to water in the form of water rights. Women also generally lack formal access to water users’ organisations or formal or market-based means to enforce their water rights. In the absence of formalised legal rights and powers, women are often forced to rely on informal, and at times illegal, means to fulfil their water needs. How far they are able to do so depends on whether or how far these needs are recognised by the state; for example, in the case of water and sanitation, the strong connection to reproductive health and generational impacts makes it easier for the needs to be recognised as valid. However, women’s lack of formal access to water is unacceptable, particularly in view of the rise in the numbers of de facto women-headed farms in rural areas as a consequence of male migration to cities. Under such circumstances, a large part of the actual water distribution would occur in the informal domain, outside of the legal framework. Zwarteveen75 noted that the attribution of individual water rights to women would have the same effects as women’s access to any other productive resource: increased well-being, improved bargaining position, and increased efficiency and productivity. It is feared that the privatisation of water would impinge negatively upon women’s livelihoods and reduce their bargaining power instead of enhancing them. This has been most eloquently expressed by Shiva.76 Market-based water transactions and governance modes will rely on traditional gender roles that have made women and girl children the water carriers in the first place. Inadequate access to water would increase women’s burdens as caregivers and household providers, depleting their roles as economic agents. Evidences are pointing towards women being seriously affected by water privatisation as they comprise the majority of the poor. This is due to the gender inequalities and asymmetries in power relations mentioned earlier. As power at the household and society is concentrated in the patriarchal structure of society, and women are deprived of rights over productive resources, they are assigned the most menial, difficult and unrewarding tasks. Liu showed how private property regimes perpetuate and intensify gender inequalities by marginalising women in the monetised economy.77 When a price is put 75

‘Water, from Basic Need to Commodity’, p. 1346. See Shiva, Water Wars. 77 Cited in WEDO, Diverting the Flow. 76

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on water and when domestic or reproductive uses of water do not generate incomes directly, the benefits are not captured in conventional economic indicators. Any water policy must be responsive to women’s water needs, especially in the current context of increasing scarcity, privatisation and search for measures to increase the productivity of water use. As long as women’s water needs are not visible and considered to be legitimate at all levels of policymaking, sustainable, efficient and equitable use of water would be impossible of achievement in India. If independent entitlements to any natural resource can enhance an individual’s bargaining position, securing water rights would pave the way for empowerment of women. The rhetoric on gender mainstreaming and gender equality extending to gendered livelihoods, poverty and environmental protection might remain a distant dream unless gender is seen in the context of the different status and relational elements within which people are enmeshed. I have described how the multiple and changeable facets of gender include aspects of women and men that are determined by unequal status and power in the eyes of the law. The sexual division of labour, which is seemingly ‘natural’ and often traditionally acceptable in societies, encourages men to appropriate women’s work as men’s property. In an agrarian society, this leads to enormous inequalities in power in every aspect of water management—segregating women’s jobs from men’s. Even in the case of domestic water supply projects, there is a need to make water an instrument of empowerment for everyone in society, and for this women need to be seen as more than just passive recipients. However, water resource management policy involves the problem of designing a management system to meet a set of ongoing challenges. The best system would meet the most critical challenges of the situation at hand, the situations varying with the specific type of water resource, characteristics of the resource user, and the environmental, social, economic and political context in which the resource use is taking place. In recommending this path, Ostrom et al.78 compare this approach to resource management to a medical practice: Diagnosis and treatment are based on hard science as well as many individual case histories and meta-analyses of accumulated evidence from cases. However, because every case has unique aspects, as effective practitioner draws both on established principles and on knowledge of the specific case in facing the challenges of diagnosing problems and prescribe a course of action. 78

‘Water Rights in Commons’.

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Bibliography Agarwal, Bina. 1994. A Field of Her Own: Gender and Land Rights in South Asia. Cambridge: Cambridge University Press. ———. 2002. ‘“Bargaining” and Legal Change: Toward Gender Equality in India’s Inheritance Laws’, IDS Working Paper 165, Institute of Development Studies, Sussex. Agnes, Flavia. 1999. Law and Gender Inequality: The Politics of Women’s Rights in India. New Delhi: Oxford University Press. Agnihotri, S.B. 2000. ‘Sex-ratio Patterns in the Indian Population: A Fresh Exploration’, European Journal of Population, 7(2): 202–30. Ahmed, Sara. 1993. Gendering the Rural Environment: Concepts and Issues for Practice. Anand: Institute of Rural Management. ———. 2007. ‘Gender and Integrated Water Resource Management in South Asia: The Challenge of Community-managed Alternatives’, in Kuntala Lahiri-Dutt and Robert Wasson (eds), Water First: Issues and Challenges for Nations and Communities in South Asia. New Delhi: Sage Publications. Basu, Srimati. 1999. She Comes to Take her Rights: Indian Women, Property, and Propriety. Albany: State University of New York Press. Chen, M. 2000. Perpetual Mourning: Widowhood in Rural India. Oxford and New Delhi: Oxford University Press. Cleaver, Francis and D. Elson. 1995. ‘Women and Water Resources: Continued Marginalisation and New Policies’, Gatekeeper Series No. 49, International Institute for Environment and Development, London. Cleaver, Francis. 1998. ‘Incentives and Informal Institutions: Gender and the Management of Water’, Agriculture and Human Values, 15: 347–60. Crow, Ben. 2001. ‘Water: Gender and Material Inequalities in the Global South’. Available online at http://repositories.cdlib.org/cgirs/CGIRS-2001-5 (last accessed on 20 January 2009). Dankelman, Irene and J. Davidson. 1988. Women and the Environment in the Third World: Alliance for the Future. London: Earthscan Publications. Derbyshire, H. 2003. Policy Development Manual for Gender and Water Alliance Members and Partners. The Netherlands: Gender and Water Alliance. Food and Agriculture Organization (FAO). 1996. ‘FAO Focus: Women and Food Security— Women Hold the Key to FOOD Security’. Available online at www.fao.org/FOCUS/E/ Women/WoHm-e.htm ———. 2002. ‘Gender and Access to Land’, FAO Land Tenure Studies No. 4, FAO, Rome (last accessed on 20 January 2009). Gender and Water Alliance. 2003. The Gender and Water Development Report 2003: Gender Perspectives on Policies in the Water Sector. The Netherlands: Gender and Water Alliance. Gulati, Mitu and Leela Gulati. 1993. ‘Remnants of Matriliny: Widows of Two Kerala Villages’, Manushi, 76: 32–34. Gupta, J. 1993. ‘Land, Dowry, Labour: Women in the Changing Economy of Midnapur’, Social Scientist, 21(9–11): 74–90. Hodgson, Geoffrey M. 2006. ‘What are Institutions?’ Journal of Economics International, XL(1): 1–25.

Water, Women and Rights 303 Jackson, C. 1992. ‘Gender, Women and Environment: Harmony or Discord? Gender Analysis in Development’, Discussion Paper Series 6, School of Development Studies, University of East Anglia, Norwich. ———. 1993. ‘Women/Nature or Gender/History? A Critique of Ecofeminist “Development”’, Journal of Peasant Studies, 20(3): 389–419. Jha, N. 2004. ‘Gender and Decision-making in Balinese Agriculture’, American Ethnologist, 31(4): 552–72. Jones, Rochelle. 2006. ‘Damming Women’s Lives’, Resource Net Friday File, Issue 302, 24 November. Kelkar, Govind. 1992. ‘Women, Peasant Organisations and Land Rights: A Study From Bihar, India’, Occasional Paper No. 3, Gender Studies, Asian Institute of Technology, Bangkok. Khosla, Prabha. 2003. ‘Tapping into Sustainability: Issues and Trends in Gender Mainstreaming in Water and Sanitation’, background document prepared for the Gender and Water Session of the Third World Water Forum, Kyoto, Japan, 2003. Kishwar, Madhu. 1987. ‘Toiling Without Rights: Ho Women of Singbhum’, Economic and Political Weekly, 22, pp. 95–101, 149–55, 194–200. ———. 1989. ‘Dowry and Inheritance Rights’, Economic and Political Weekly, 24: 587–88. ———. 1999. Off the Beaten Track: Rethinking Gender Justice for Indian Women. New Delhi: Oxford University Press. Kodoth, Praveena. 2004. ‘Gender, Property Rights and Responsibility for Farming in Kerala’, Economic and Political Weekly, XXXIX(19): 1911–20. Krishnaraj, Maitreyi. 1998. ‘Women and the Public Domain: Critical Issues for Women Studies’, Economic and Political Weekly, 21 February, pp. 391–95. Krishnaraj, Maitreyi and Amita Shah. 2004. Women in Agriculture: State of the Indian Farmer: A Millennium Study. New Delhi: Department of Agriculture, Government of India and Academic Foundation. Lahiri-Dutt, Kuntala (ed.). 2003. ‘Reflections on Water: Gender in the Governance of Water in India’, Development Bulletin, The Australian National University. ———. 2006. Fluid Bonds: Views on Gender and Water. Kolkata: Stree. Leach, M. 1992. ‘Gender and the Environment: Traps and Opportunities’, Development in Practice, 2(1): 12–22. ———. 2007. ‘Earth Mother Myths and other Ecofeminist Fables: How a Strategic Notion Rose and Fell’, Development and Change, 38(1): 67–85. Maharaj, N. 2003. The Gender Approach to Water Management: Lessons Learnt around the Globe. The Netherlands: Gender and Water Alliance. Meer, Shamim and Charlie Sever. 2004. Gender and Citizenship: Overview Report. Brighton, Sussex: Bridge Institute of Development Studies. Mehta, Lyla. 2005. Problems of Publicness and Access Rights: Perspectives from the Water Sector. Bonn: Heinrich Boll Stiftung. Mehta, L. and B. Srinivasan. 1999. ‘Balancing Pains and Gains: A Perspective Paper on Gender and Large Dams’, A Contributing Paper for World Commission on Dams. Available online at www.dams.org (last accessed on 20 January 2009). Meinzen-Dick, Ruth and Margreet Zwarteveen. 2003. ‘Gendered Participation in Water Management: Issues from Water Users’ Associations’, in Agnes R. Quisumbing (ed.), Household Decisions, Gender and Development: A Synthesis of Recent Research, pp. 153–58. Washington D.C. and Johns Hopkins University: International Food Policy Research Institute.

304 Kuntala Lahiri-Dutt Meinzen-Dick, R., L.R. Brown, H.S. Fekldstein and A.R. Quisumbing. 1997. ‘Gender, Property Rights and Natural Resources’, World Development, 25(8): 1303–15. Mies, M. and V. Shiva. 1993. Ecofeminism. London: Zed Books. Mishra, R.C. 2006. Women in India: Towards Gender Equality. New Delhi: Authors Press. Moench, Marcus, Ajaya Dixit, S. Janakirajan, M.S. Rathode and Srinivasd Mudrakartha. 2003. ‘The Fluid Mosaic: Water Governance in the Context of Variability, Uncertainly and Change’, A synthesis paper, Nepal Water Conservation Foundation and Institute for Social and Economic Transition, Kathmandu. Moser, Caroline. 1993. Gender, Planning and Development: Theory, Practice and Training. London: Routledge. Mosse, David. 2003. The Rule of Water: Statecraft, Ecology and Collective Action in South India. New Delhi: Oxford University Press. Nussbaum, Martha C. 2000. Women and Human Development: The Capabilities Approach. Cambridge: Cambridge University Press. National Academy of Agricultural Sciences (NAAS). 2005. Emerging Issues in Water Management: The Question of Ownership. New Delhi: National Academy of Agricultural Sciences. Ostrom, Elinor, Paul Stern and Thomas Dietz. 2003. ‘Water Rights in Commons’, Water Resources IMPACT: Forging New Rights to Water, 5(2): 9–15. Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. New York: Cambridge University Press. Rajagopal, A. and S. Janakarajan. n.d. Water Rights and Participatory Irrigation Management in India: The Case of Surface Water Sector in Tamil Nadu State. Madras: Madras Institute of Development Studies. Ramachandran, N. 2006. ‘Women and Food Security in South Asia: Current Issues and Emerging Concerns’, Research Paper No. 2006/131, UNU-WIDER, World Institute for Development Economics Research, United Nations University. Rodda, A. (ed.). 1991. Women and the Environment. London: Zed Books. Sarkar, Latika. 1998. National Specialised Agencies and Women’s Equality, Law Commission of India. New Delhi: Centre for Women’s Development Studies. Shah, Anil. 2006. ‘Women and Water: Perceptions and Priorities in Rural India’, in Kuntala Lahiri-Dutt (ed.), Fluid Bonds: Views on Gender and Water, pp. 172–84. Kolkata: Stree. Shiva, Vandana. 1988. Staying Alive: Women, Ecology and Development. London: Zed Books. ———. 1989. ‘Development, Ecology and Women’, in J. Plant (ed.), Healing the Wounds: The Promise of Ecofeminism, pp. 80–90. London: Green Print. ———. 2002. Water Wars: Privatization, Pollution and Profit. Cambridge, Massachusetts: South End Press. Singh, C. 1992. Water Law in India. New Delhi: Indian Law Institute. ———. 1999. ‘Legal Aspects of Women’s Involvement in Wasteland Development’, in Amita Dhanda and Archana Parasher (eds), Engendering Law: Essays in Honour of Lotika Sarkar, Women and Law Series, pp. 205–32. Lucknow: Eastern Book Company. Singh, Nandita, Prosun Bhattacharya, Gunnar Jacks and Jan-Erik Gustafsson 2003. ‘Women and Water: A Policy Assessment’, Water Policy, 5: 289–304. ———. 2004. ‘Women and Modern Domestic Water Supply Systems: Need for a Holistic Perspective’, Water Resource Management, 18: 237–48. Sinha, Archana. 2005. Gender Dynamics in Water Security: A Study in Rajasthan. New Delhi: Indian Social Institute.

Water, Women and Rights 305 Solanes, M. and F. Gonzales-Villarreal. 1999. ‘The Dublin Principles for Water as Reflected in a Comparative Assessment of Institutional and Legal Arrangements for Integrated Water Resources Management’, TAC Background Paper No. 3. GWP, Stockholm, Sweden. Sunder Rajan, Rajeswari. 2003. The Scandal of the State: Women, Law and Citizenship in Postcolonial India. New Delhi: Permanent Black. United Nations Development Fund for Women (UNIFEM). 2003. Not a Minute More: Ending Violence against Women. New York: UNIFEM. United Nations Development Programme (UNDP). 2005. Human Development Report. New York: UNDP. United Nations Human Settlements Programme (UN-HABITAT). 2006. Women’s Equal Rights to Housing, Land and Property in International Law. Nairobi: UN-HABITAT. Upadhaya, Bhawana. 2004. ‘Gender Roles and Multiple Uses of Water in North Gujarat’, Working Paper No. 70, International Water Management Institute, Colombo. Viswanathan, Susan. 1989. ‘Marriage, Birth and Death: Property Rights and Domestic Relationships of the Orthodox/Jacobite Christians of Kerala’, Economic and Political Weekly, 24: 1341–46. Women’s Environment and Development Organization (WEDO). 2003. Diverting the Flow: A Resource Guide to Gender, Rights and Water Privatisation. New York: Women’s Environment and Development Organization. Wijk, Christine van, Esther de Lange and David Saunders. 1996. ‘Gender Aspects in the Management of Water’, Natural Resources Forum, May, pp. 1–12. Zwarteveen, Margreet. 1995. ‘Linking Women to the Main Canal: Gender and Irrigation Management’, Gatekeeper Series 54, Sustainable Agriculture and Rural Livelihoods Program, International Institute for Environment and Development, London. ———. 1997. ‘Water, from Basic Need to Commodity: A Discussion on Gender and Water Rights in the Context of Irrigation’, World Development, 25(8): 1335–49.

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PART IV

SOME WATER-RELATED PROBLEMS: LEGAL ASPECTS

308 Dinesh Kumar Mishra

12

Floods and Some Legal Concerns Dinesh Kumar Mishra

Background Kanwar Sain, former Chairman of the Central Water and Power Commission, while addressing a meeting of the Institution of Engineers at Patna way back in 1956, had said, Essentially, in tackling the problem of the Kosi, it has to be a choice between the demand of the people for immediate flood protection and evolving a plan of flood control that can be guaranteed cent per cent flawless. If the plans for control of Kosi are to be held in abeyance until an absolutely trouble free solution can be found we may be certain no work will be done on Kosi for a long time to come.1

The Government of India, obviously, did not wait for an ‘absolutely trouble free solution’, and after adopting the first Flood Control Policy in 1954, proceeded to construct 33,928.642 kms length of embankments along its rivers, 38,809.857 kms length of drainage channels dug to drain unwanted floodwaters and protect 2,458 towns against floods and raise 4,716 villages above the maximum observed flood level.2 Any area that has at any time been subjected to flooding is taken as a flood-prone area unless it has been effectively protected. The flood-prone area of the country, as per the first Five-Year Plan (FYP) document, was only 1

Kanwar, ‘The Kosi Problem’, The Indian Nation, Patna, 11 December 1956, p. 4. Ministry of Water Resources, Government of India, Table 5.17: State-wise Progress of Physical Works under Flood Management Programme. 2

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25 million hectares (mha) at the beginning of the plan period. It rose to 33.516 mha when the Rashtriya Barh Ayog assessed its extent in 1980.3 Of late, the Working Group on Flood Control Programme set up by the Planning Commission for the Tenth FYP has estimated the flood-prone areas as 45.64 mha, out of which an area of 16.457 mha was estimated to be protected till the end of March 2004. The Central Water Commission suggests that the State has protected 18.222 mha of land against flooding till March 2006,4 which leaves a balance of 27.418 mha that is yet to be provided with any kind of flood protection, implying that the flood control measures adopted so far have not yielded any result. The area yet to be protected is more than what was the total flood-prone area of the country in the 1950s. Obviously, the investment in the flood control sector in the country is doing more harm than good, and the flood-spread area is on the rise. This is often discounted by saying that the losses appear to be rising because of the rise in the population and the increase in the land and property prices in the flood protected areas. Jagjivan Ram, in his foreword to the report of the Rashtriya Barh Ayog (1980), attributed it to better techniques of assessment of losses, and not to the real rise in the threat of floods over the country.5 It seems the government is yet to find an absolutely reliable technique of assessment to ‘flood damages’. As of now, on an average 7.63 mha of the nation’s land are flooded every year, affecting 32.92 million people. Crops over 3.56 mha valued at Rs 705.87 crores are lost every year due to floods that destroy 1,235,000 houses, killing 94,000 cattle and 1,590 persons. Average annual damages due to floods are estimated at Rs 1,782.35 crores.6 It is worth noting that the nation-wide flood of 1954 that led to the adoption of the first ever flood policy in the country had a spread area of only 7.490 mha, which was exceeded 22 times in the 51 years between 1954 and 2004.7 This happened despite an investment of Rs 8,113.11 crores till the end of the Ninth FYP (2002). There was a Plan Outlay of Rs 5,922 crores for the Tenth FYP,8 and the Eleventh FYP envisages an outlay of Rs 15,733 crores for the flood control sector. Despite this investment, the States of Gujarat, Maharashtra and 3

Ministry of Water Resources, Report of the National Commission on Floods. . Ibid. 5 Ram, Preface to the Report of National Commission on Floods. 6 Ministry of Water Resources, Central Water Commission, Table 5.12: Flood Damages/ Heavy Rains in India. 7 Ibid. 8 ‘Ministry of Water Resources, Central Water Commission’. Available online at http://www. cwc.nic.in/ISO_DATA_Bank/waterrelated2007/chapter5pdf/TABLE%205.12FINAL.pdf 4

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Rajasthan have been figuring regularly on the flood map of India for the past few years, and the States of Andhra Pradesh and Tamil Nadu are not lagging behind. The flood-prone areas of many States have risen after the publication of the Report of the Rashtriya Barh Ayog (RBA) (1980). In case of Bihar, it has gone up to 68.8 lakh hectares (lh) (42.6 lh), in Orissa to 33.40 lh (14.0 lh) and in West Bengal to 37.16 (lh) (26.5 lh). The figures in brackets indicate the flood-prone area as reported in the RBA Report (1980). No change has been reported in the flood-prone areas of Assam (31.5 lh) and Uttar Pradesh (73.36 lh), and it is quite likely that no assessment of the flood-prone areas has been taken up in these States. The flood plains of the rivers in these States are densely populated, and as the area vulnerable to floods increases, more and more people become vulnerable to floods.

Providing Succour to the Flood Victims With the rise in the flood-prone area of the country, more and more people are coming under the flood net. Providing succour to the distressed people at the time of floods has traditionally been the responsibility of the state. Hindu scriptures put the responsibility of any calamity on to the king and charge him to be consigned to hell if his subjects were in distress due to any emergency. Modern intervention in calamity relief began during the British period and various Famine Commission Reports talk a lot about relief operations and their provisions, which resulted in the Relief Code in times to come. These writings, however, relate more to recurring droughts than to floods. Floods and famine rarely go together, but such incidence is not non-existent. In 1906, in Darbhanga district of the erstwhile Bengal Province, the first wave of floods came in July, and it was followed by incessant rains that started on 6 August and continued till 24 August, submerging the greater part of the district for over 16 days. From the Kamla in the north to the Burhi Gandak in the west, with a simultaneous rise in the Baghmati and the Darbhanga Baghmati, most of the district was inundated. Almost the entire town of Darbhanga was under a sheet of water excepting the Kachahari in Laheriasarai and Bara Bazar in Darbhanga, and many people rendered homeless took shelter on these highlands. Floodwater entered the town so suddenly and the onset of flooding was so fast that the people did not find the time to react to the situation and had to move immediately. It took about a week for the water to recede in the town, but in the other areas, it took over two months. The damage to the crops was so extensive that the prices

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soared high. The year 1905–06 was also not a very good year, generally, as far as agriculture was concerned. The flood and the rising prices broke the backbone of the people. Famine had to be declared in Rosera (now Samastipur district) and Behera (now Darbhanga), and free rations had to be distributed to 45,000 flood victims in October, 19,000 in November and 15,800 in December. If the local farmers and the indigo planters had not distributed food, a situation of near starvation would have occurred. Test relief works had to be operated despite floods and, at one point of time, 32,000 people were engaged in the relief works. This flood in Darbhanga, the worst-ever till date, was spread over 2,714 sq. km in Sadar sub-division, 1,510 sq. km in Madhubani sub-division and 1,075 sq. km in Samastipur sub-division, bringing the total to 5,299 sq. km.9 This, generally, gives an idea of how the British government provided relief at the time of floods but such occasions were rare. It must mentioned here that test relief works used to be started in calamity hit areas at half the prevailing market rate of labour for a few days. If the response to such works was appreciable and the labourers turned out in large numbers, regular works used to be opened at normal wage rates till such time as it was found necessary. Relief is a word that was not known to the people of the flood ravaged district of Saharsa till 1936.10 In those days, an officer of the government of the rank of Deputy Collector used to visit the flood-hit areas with a couple of thousand rupees and distribute the same in the flood-hit villages to some affected families. A Flood Conference at Patna (1937) discussed the flood situation in the country with particular reference to Bihar, but it could not provide a solution to the flood problem in the State; however, it helped to increase this relief budget. It was in 1947 when Advisory Committees were formed in Saharsa, Darbhanga and Munger. These committees advised the government to streamline relief operations and slowly schedules for availability of boats, working of Charkha Groups and work centres, waivers/ concessions in the repayment of loans, etc., were worked out. The annual government expenditure on relief was to the tune of Rs 5 lakhs only. Laliteshwar Mullik writes, … The experience of the Saharsa Advisory Committee was quite bitter. With the available money, it was not possible to provide relief to everyone. This bred dissatisfaction. Further those who were given relief, took it as their right and did not work. This led to their moral degradation and tended to make them beggars.

9

O’Malley, L.S.S.; as quoted in Bengal District Gazetteers. Mullik, Kosi (in Hindi), p. 205.

10

Floods and Some Legal Concerns 313 Then, there were many middle class families, especially the widows, who did not want to take relief although their situation was no less pathetic than the poorer section of the society.11

The British used to have a special quota of relief for the ‘Zenana’ of middleclass families as they would not come out to seek relief. The officials used to reach out to them with relief.

The Current Scenario Relief operations may have gone through many changes after independence but the basic guiding principles were drawn from the Relief Codes of the British regime. There has been a consistent demand for drawing up the provisions of the Relief Codes afresh, and many States within the country have done their bit in revising/replacing the code on both the counts of long term and short term. In fact, it has been a journey from providing doles to preparing for the disaster and mitigating the sufferings of the people, and minimising the losses to the extent possible by strengthening the warning systems and adopting non-structural methods to cope with floods. It is not intended to go into those details here. We shall look into the immediate needs of the people first. Calamity relief norms are set by the Government of India (the latest being through the recommendations of the Twelfth Finance Commission, applicable during the period of 2005–10). The general recommendations suggest that a flood victim would be entitled to the following: 1. A compensation of Rs 100,000 to the next of kin for every deceased person subject to certification by a competent authority. 2. Compensation packages for fully damaged pucca house—Rs 25,000, fully damaged kachcha house—Rs 10,000; severely damaged pucca house—Rs 5,000, severely damaged kachcha house—Rs 2,500; partially damaged pucca and kachcha house—Rs 1,500, huts— Rs 2,000. 3. Compensation of Rs 35,000 to any person with injuries to their eyes/ limbs with damage between 40 and 75 per cent. Beyond that the compensation would be Rs 50,000. 11

Ibid., p. 208.

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4. Compensation for grievous injury with hospitalisation up to one week—Rs 2,500. For hospitalisation of more than a week, the compensation would be Rs 7,500. 5. Lost clothing and utensils—Rs 1,000 per family. 6. Immediate sustenance—Rs 20 per adult per day and Rs 15 per child per day for 15 days. This can be extended to 30 days in extreme cases. 7. Rs 2 per day per infant for additional nutrition as per Integrated Child Development Services (ICDS) norms for a maximum period of 30 days. 8. Desilting of agricultural land with a minimum sand casting depth of three inches—Rs 6,000 per hectare for small and marginal farmers. 9. Renovation of fish farms—Rs 6,000. 10. Land lost due to the changing course of rivers—Rs 15,000 per hectare subject to establishing ownership. 11. An agricultural input subsidy of Rs 2,000 for small and marginal farmers in rain-fed areas and Rs 4,000 per hectare in assured irrigation areas. Rs 6,000 agriculture input subsidy for perennial crops. These benefits are also available to other farmers with a ceiling of 1 hectare. 12. Subsidy for cattle lost: (a) milch cattle like buffalo, cow and camel—Rs 10,000; (b) draught animals like camel, horse or bullock— Rs 10,000; (c) calf/donkey and pony—Rs 5,000; (d ) sheep/goats— Rs 1,000; and (e) birds—Rs 30 per bird. 13. Fishermen losing their traditional craft partly—Rs 2,500 + net; fully—Rs 7,500 + net. Besides, there are various other provisions that a flood victim is entitled to. 14. Similar assistance is available to other artisans like weavers, etc., subject to certification from the competent authority. The basic responsibility for carrying out relief operations is vested in the State Government and the Central Government meets 75 per cent of the costs through the Calamity Relief Fund (CRF), and the rest has to be put in by the concerned State Government. The money that is available to the State to carry out relief operations from all sources, including the CRF, the National Calamity Contingency Fund and the State Government’s contributions and its own allocations, if any, remains grossly insufficient to meet the requirements of all the flood-hit people. As Dunu Roy writes, … it emerges that while the center has released its 75 per cent share of the funds, this is still less than 10 per cent of what the states are assessing as the real damages.

Floods and Some Legal Concerns 315 Even if the 25 per cent share of the states is added up, it still makes up only 14 per cent of the total damage claim. This means that either the states are greatly exaggerating (as much as 10 times) the losses incurred because of the floods, or that the allocations are hopelessly inadequate … it also means that if the affected people are to recover their livelihoods after the floodwaters recede, they have to do so by mobilizing their own resources on a significantly large scale.12

To get an idea of what fraction of the flood-hit population is actually served under relief, let us take a look at the damages and the relief provided in one of the districts of north Bihar, Darbhanga, in 2002. This was one of the worst flood affected districts in the State. Some 1,078 villages spread over 286 Gram Panchayats and 18 blocks, with a population of 26.26 lakhs, were hit by this year’s floods.13 Assuming a family size of six, nearly 437,670 families must have suffered from the deluge. According to official figures, only 28,839 families in the district were given shelter, which was just 6.6 per cent of the families affected by floods. On the other hand, if one looks into the details of Gopalgunj district—which also happens to be the home district of the then Chief Minister, one finds that only seven blocks of this district comprising 89 Gram Panchayats and 314 villages with a population of 696,000, were affected by floods that year.14 At a rough estimate, some 116,000 families were hit by floods that year (at six persons per family). The government, however, provided relief to 58,295 families, that is, 50.25 per cent of the affected families. This shows how proximity to power leads to discrimination. The other side of the coin is that even in the district of the Chief Minister around half the affected population remains untouched by relief operations. Following the floods of 1987, the Government of Bihar made many promises to the people, one of which included, ‘... In every Panchayat affected by floods, a high raised and covered platform will be constructed and in every block of the districts, helipads will be constructed. Every Panchayat is being given boxes containing life saving medicines.’15 What was constructed at some places was just a platform of a loose heap of easy-to-erode locally available sandy soil without any cover. Most of such platforms got eroded and local people found a better use of it by cultivating pointed gourd. This shows the utility of such interventions. Perhaps no one in the government remembers that such promises were ever made. 12

Roy, ‘Floods: A Small Matter of History’, p. 150. Department of Relief and Rehabilitation, Government of Bihar, Loss of Data due to Floods 2002. 14 Ibid. 15 Nav Bharat Times, Patna, 25 September 1987. Press Release of the Bihar Government. 13

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Actually, it is a tale of unfulfilled promises when it comes to dealing with floods. One, the enormity of the problem is such that any input would fall short of the requirement, and two, the inaccessibility of the victims prevents those who wish to help from reaching them. One wonders how these promises made to the people, or the norms set by the government, can really be made to work at the right moment. Generally, the flood victims are left in the lurch after the floods lose their news value.

Breaches in Embankments As indicated earlier, a massive programme to embank the rivers of the Ganga-Brahmaputra basin was taken up following the independence of the country against a debate of not embanking such rivers almost through the entire British occupation of the country. Without going into the debate, suffice it here to say that embankments prevent a river from overflowing its banks during floods but they also prevent the entry of floodwater into the river. This leads to a major problem as the embanked river is no longer able to fulfil its primary function—draining out excess water. With the tributaries prevented from discharging into the river and the accumulated rainwater finding no way out, the surrounding areas quickly become flooded. The situation is aggravated by seepage from under the embankments. The areas outside the levees remain waterlogged for months after the rainy season because this water has no way of flowing out into the sea. Theoretically, sluice gates located at these junctions should solve the problem but, in practice, such gates quickly become useless; as the bed level of the main river rises above the surrounding land, operating the gates lets water out instead of allowing outside water in. When the sluice gates have failed, the only option left is to embank the tributary as well. This results, then, in water being locked up between the embankments. Moreover, no embankment has yet been or can be built that will not breach in the future. When a breach occurs, there is a deluge. Besides, the countryside is deprived of the nutritious silt that it would have received had the river been allowed to flow freely. It was for these reasons that the British, when they ruled India, had refrained from building embankments along such rivers. Seeking flood protection through embankments amounts to falling into a trap from which it is very difficult to come out. A section of engineers, however, believes that if the same amount of water is passed through

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a narrow area, its velocity increases and so does its capacity to erode. When embankments are built along any river, the velocity of the flow increases, and the river water can erode the banks and dredge the bottom of the river thereby increasing the waterway of the river. More waterways would mean a greater capacity of the river to discharge and hence the floods would be reduced. The debate as to whether embankments increase the floods or decrease them is yet to be resolved amongst the engineers. The engineers escape any debate by saying that every river has its own special characteristics and should be dealt with separately. They also decide to approve or reject any embanking scheme depending upon the social or political pressure brought on them. The arguments in favour of or against the embankments are seemingly so plausible that nobody can easily find flaws in them. The fact is that the benefit of this inconclusive debate goes to the politicians who take the decision on embanking the river and the engineers play only a subservient role. While there are wholesale breaches in the embankments on the rivers all over the country, a case demanding compensation for loss due to a breach in the eastern embankment of the Kosi in 1984 was filed in the Supreme Court of India. This breach had wiped out 11 villages in Navhatta block of Saharsa district and engulfed 196 villages in seven blocks of Saharsa and Supaul districts of north Bihar. The flood waters had spread over an area of 67,000 hectares and 4.58 lakh people were rendered homeless in one sweep and forced to take shelter on the remaining portion of the embankment for more than six months. Under the initiative of Sarvoday leaders Shivanand Bhai of Gram Bharti, Simultala, in Bihar and Prem Bhai of Govindpur in Mirzapur, it was resolved that it was the duty of the government to protect the embankment, which it had failed to perform. Therefore, instead of accepting the doles given by the government, it was the people’s right to claim compensation for the losses incurred by them because this was not a natural flood, it was a man-made flood. In this case, the people also knew the men who had caused it. People were organised and over 20,000 satyagrahis demonstrated before the office of the collector of Saharsa on 19 November 1984. They demanded that (a) compensation be paid for the loss of all the damage done to the movable and immovable properties; (b) a commission headed by a judge of the Supreme Court or the High Court to be appointed to probe the breach in the embankment and those found guilty punished; and (c) hard and soft manual schemes to generate employment should be started immediately. In the words of Shivanand Bhai:

318 Dinesh Kumar Mishra … The Collector called us and asked what we were up to? ‘What is this hooliganism?’ he asked. We were hurt. The then Minister of Revenue, who hailed from the same area said that your way of protesting is against Gandhism and does not match with the Sarvoday principles. We tried to convince them but with no avail. We then decided that we would gherao the officials and stall the administration …. The Collector contacted the Chief Minister who was then in Ranchi and apprised him of the situation here in Saharsa. He asked permission to resort to police firing to maintain law and order but failed to get one. That is how the movement picked up momentum …. Later, we took the help of one of our friendly organizations, Rural Entitlement and Legal Support (REALS), for legal help and filed a petition in the Supreme Court for the payment of compensation.16

The Honourable Court in its judgement disposing of writ no: 5212 (1985) between Rural Entitlement and Legal Support Centre, Patna v. the Government of Bihar, dated 20 February 1989, wrote: ... We have heard learned counsel for the parties and pursued the pleadings. Counsel for the State of Bihar has agreed to the suggestion made by us that a High Powered Committee shall be set up by the State of Bihar within two months to enquire into the Kosi Embankment Breach in 1984 and the loss sustained on that account to person and property for the purpose of providing adequate compensation. The Committee shall make its report to the State Government within three months from the date of its constitution. The petitioner would be entitled to place its case before the Committee when it is constituted. The writ petition is disposed of accordingly. No costs.

Shivanand Bhai continues to say: The bench comprising of Mr Justice Rang Nath Mishra and Mr Justice K. Jagannath Shetty passed this judgment …. This Committee was not constituted till date. I enquired with a high official of the state about the details and he said that if the Government starts giving compensation this way, it would get bankrupt.

When the State Government took no action over the judgement of the Supreme Court, REALS filed a contempt petition on 3 April 1992. This was not followed up because the main force behind the people’s struggle, Prem Bhai, expired shortly afterwards. There has been no action of any kind over this issue ever since. The normal practice, however, is to treat such cases as normal cases of flooding, which they are not. In the case of breaches, people are exposed to surges of water emanating out of the breach point that washes away their homelands, erodes or sand casts their land and ruins the agriculture for a long time to come. 16

Mishra, Report of the First Delegates Conference, pp. 18–19.

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There is a need to treat such cases of flooding differently but, unfortunately, the government rarely acknowledges that the floods in these cases were caused by a failure of embankments, which meant a failure of technocracy. It rarely makes the enquiry reports public and, probably, no action is ever taken against the erring engineers responsible for the repair and maintenance of such structures. The people continue to suffer untold miseries.

Erosion Floods are often accompanied by the erosion of the banks of the rivers and the habitations on the land alongside the rivers gets gnawed by the river. This renders people homeless and deprives them of their only source of livelihood, agriculture. Excessive sediment load in the rivers causes meandering and erosion is an outcome of such meandering of rivers. Such erosion has been taking place all along the Ganga and the Brahmaputra together with their tributaries since ages from Ghazipur in eastern Uttar Pradesh to Saidiaghat in Assam. It will continue in the future also. Such erosion is more acute within the embankments of the jacketed rivers. More and more people are being added to the list of the uprooted persons with nowhere to go except the embankments or other higher grounds to go over, which they do not have any legal right. They live on the embankments under constant threat of eviction by the flood protection officials as their occupation of these structures makes their repairs and maintenance difficult. It is very conveniently forgotten by the governments that these people are occupying such places not for fun or a picnic but because their own dwellings have either been eroded or waterlogged for no fault of theirs. Digambar Mandal of village Khairi, Block Madhepur, District Madhubani, says: … Village Basipatti of Block Madhepur, located between the Kosi embankments, got eroded twice within three years. It was spread over 2,200 acres of land of which 1,400 acres was consumed by the river in 2006. About 800 acres of land is left in the village and the rest was eroded by three different channels of the Kosi that encircled the village from all sides. This village was given rehabilitation site east of eastern Kosi embankment in village Kharail Parsa and keeping the distance of the rehabilitation site from the agricultural fields, nobody went out there. In the melee that followed erosion of the village, some 85 families moved to south, another 93 families shifted to east, 111 families have moved on to northern side of the village and 59 families have found some space between the river and the western Kosi embankment. Some 155 families facing erosion are literally on roads,

320 Dinesh Kumar Mishra the streets in the village with no living space. The river has become so deep between Basipatti and Bhagta that dolphins appeared there … while the Government is maintaining silence over the entire episode; resettlement has taken a new shape within the village. Those who have become landless following this erosion have taken land from those whose land is still with them on an unwritten lease of Rs 300/-per year. Only time will tell, how long this arrangement is going to work. Government takes a stand that these people are already resettled and hence it would not do anything for them while the erosion victims feel that when the Government recognizes the existence of these villages by providing ration shops, health centers, and polling booths; why it should shy away from properly rehabilitating them. What would happen to their livelihood, they ask. Obviously, employment in Punjab, Haryana or Bhadohi is now an accepted solution by one and all.

Dev Nath Devan of Sunder Birajit (Block Madhepur, District Madhubani) has a similar tale to tell: … Some of my land is located in Barmotar in revenue village Harri in Marauna block of Supaul district. There was no flood in the Kosi for the past two years but there has been tremendous erosion over this period and villages after villages are getting eroded. Khokhnaha was a village with 2,000 families and it does not exist anymore. Bhagawatipur, Pachgachhia and Murkiahi too have become traceless. Bhagta in the south of Madhepur block is also counting its last.

Mohammad Ayub (70), village Bhelahi, Block Mahishi, District Saharsa, calls himself a person sandwiched between the river and the eastern embankment of the Kosi: We pay the revenue for the sand cast land, which was promised to be withdrawn. Our Government is not bothered about the sediments deposited in our homes but it nullifies our ownership of the land once it gets eroded due to movement of the river and the Government turns to claim that land. One has to get the land re-mutated in one’s name if it emerges out of the river due to its continuing meandering. We cannot till our own land but the criminals and other toughs don’t have any problem in claiming that land. Thatch straw grows on the fallow land of the farmers and it could fetch good price to the owner but no farmer can harvest it because the criminals harvest it and sell it to the others. Thus the land and the thatch straw may belong to anyone but the harvest belongs to someone else and it is he who is benefited, not the owner. There is no legal cover to exercise ownership in such cases of bullying.

The State Government, has, however, a provision for allocating government land for housing purposes to those who become landless/indigent because of erosion. If there is no government land available, there are

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provisions for acquiring land and transferring it to erosion victims if they are either landless or have been rendered so. Those who are not indigent but have lost their houses due to erosion can get land from the government but they have to pay the price for the same and that too, in advance. It will be of interest to survey the people residing along the river banks to ascertain how many landless and indigent people have been given land by the government as also to know how many people have taken the help of the government by paying the price of the land. Wherever the uprooted people have put up a determined and sustained fight, they have received some concessions from the government; otherwise, they are forced to live on encroached land under threat of eviction any moment. It would be interesting to note that there was a debate going on in the Bihar Vidhan Sabha (1968) about the plight of those trapped within the embankments. Vinayak Prasad Yadav, MLA, raised the question of the condition of Bela, Singar Moti and Dhobiahi villages, which had become precarious because the Kosi was on the verge of gnawing these villages. He wanted to know what the government plans were to protect these villages. Rameshwar Prasad Singh replied on behalf of the Government of Bihar saying: … These villages are located within the Kosi embankments and Bela Dhar is a stream of the Kosi. When water comes in that stream, the villages are threatened with erosion but it is not the job of the Government to protect such villages. The villagers have been paid compensation and they should vacate the place. The land within the embankment is meant for agriculture and not for dwelling purposes. The Government does not spend money for protecting the villages.17

This was a policy statement of the government to which it still conforms. This means that the government exonerates itself of any obligation to the people living within the embankments of any river. It is impossible to tell the river that the people have been compensated for their houses and the river could erode them but the land has not been compensated for and hence the river should spare the land. If the embankments are secure, the life within the embankments becomes insecure because of the rising flood levels. But it is the sacred duty of the Water Resources Department to keep the embankments intact. How far this mission is achieved is anybody’s guess. The state takes care of erosion due to rivers when infrastructure like roads or railways are threatened but it does not show similar concern when the people are at the receiving end.

17

Bihar Legislative Assembly Debates, 28 March 1968.

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The existing laws do not cover the livelihood aspect of the flood victims. It is really a tricky situation as land may not be available for such rehabilitation. Erosion is usually accompanied by the emergence of land on the other side of the river. This has been happening for a long time on the borders of West Bengal and Jharkhand. The Ganga is eroding the land of Malda district on its left bank and building up land in Jharkhand. The same story is repeated where the Ganga forms a boundary between Bihar (Buxar) and Uttar Pradesh (Ghazipur), where bloody battles between the people from either side is a common occurrence. The whole issue of erosion needs careful examination and debate as the land issues are very sensitive.

Communications and Anchoring of Boats Communications within the embankments and with the outside world have always been a problem. There is no road within the embankments, and only tractors and motorcycles can ply on the kachcha roads that exist there. Most of the trading within the embankments takes place with the help of mules. During the rainy season when the river waters spill almost all over, the communication on boats become slightly easy because there is water everywhere. One should only avoid the main channel of the river. Travelling upstream, these boats need to be dragged with the help of ropes. Where the water is shallow, these boats have to be both dragged and pushed. Most of the rivers are braided within the embankments and one has to cross these streams by boat many a time to negotiate distances during the rainy season. During the normal season, boats are needed at least at one point to cross the mainstream. The other channels can be waded through. When the embankments were built in the middle of the twentieth century, the government had promised the farmers free access to the fields from their rehabilitation sites. This, however, has not happened and the residents of the villages within the embankments have to pay for the services. They have to pay to the boatmen for transporting their agricultural produce even if it is brought back home. This is the cost which is thrust on the people living within the embankments, and there is lot of resentment among the people against this. One has to pay the cost of transshipment to the boatmen even if one is using one’s own boats and labour. This makes the agricultural produce costlier and many people in the lower areas have ceased to grow grains as the boatmen are too ruthless in extorting money from the farmers. The matters do not end there. Even if a person brings his own self-driven boat to the

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ghat, he is supposed to pay the ghatwallas if he chooses to pass through the ghat or anchor his boat there. ‘Many farmers have ceased to cultivate their fields as they cannot bear the cost of transshipment and cannot cope up with the humiliation and indignity that they suffer at the hands of the ghatwallas who are, generally, the local toughs,’ says Prem Kumar Verma of Sonheli (District Khagaria). He continues to say: After the Bagmati was sealed and it was made to pass through the Dumri Bridge on its way to join the Kosi, there has been tremendous sand casting upstream of the bridge. That has resulted in sinking of houses in sand beds and the ground floor of many pucca houses is now embedded into sand. No help is forthcoming from any quarter to these victims of sand casting who have either to move to some other place for building a house or stay there with ever decreasing floor space.

The other side of the story is that in Bihar, the District Board awards the contract for transporting people on particular ghats to bidders and the bidding amount runs into lakhs of rupees. This is a huge sum and unless the contractor collects this money ruthlessly, he would run into a loss. The real question is whether it is ethical on the part of the government to entrap people within the embankments and then force them to pay for crossing the river. It may be fair to levy such a tax on the visitors or the traders transporting materials within the embankments or taking grains outside for commercial purposes but the local residents should have been spared of making any payment.

Flood Plain Zoning—A Distant Cry This is a often talked about regulatory measure to restrict the land use in the flood plains of rivers. According to various Plan documents, it is supposed to be an effective non-structural measure to reduce the damage to life and property caused by floods. The Central Water Commission had circulated a model bill for adoption in 1975 to all the States of the country. But for the States of Manipur and Rajasthan, no other State has adopted Flood Plain Zoning so far. It must be noted here that most of the flood-prone States of the country are plain lands with very mild ground slopes. The population density of such plains is to the tune of 1,000 persons per sq. km and the pressure on the land is too high in these places. The ground slope of 15 cm to a km to 7 cm to a km in the Gangetic/Brahmaputra plains is a further deterrent to adopting such plans. If land use is restricted in such areas, it would lead to a chaotic situation and very little scope would be left to take

324 Dinesh Kumar Mishra

up any developmental activities there. This is the reason why most of the flood-prone States are reluctant to adopt Flood Plain Zoning. Unfortunately, this view of theirs is never communicated to those in authority and the ghost of Flood Plain Zoning haunts the planners always. The Eleventh FYP Document suggests: Central Government needs to set up Flood Plain Zoning Management units to prepare flood risk maps and Flood Plain Zoning laws as necessary. The Central Water Commission should also set up similar Flood Plain Zoning units not only to undertake surveys but also coordinate with the states in preparing flood risk maps and zoning regulations.18

For most of the people living in the flood-prone States of the country, it is just a carrot dangled before them, the meaning of which most people do not understand.

Requirements of Prior Environmental Clearance (EC) that Do Not Exist in Case of Flood Control Structures While so much is being talked about the ill-effects of dams, the problems arising out of other structural methods of controlling floods are rarely debated. We have just seen what happens in case of a failure of an embankment but the other methods of taming the rivers are equally debatable. The Planning Commission of India (Eleventh FYP Document) talks about dam safety and avoids the issue of embankment safety, which is of immense importance to the flood-prone areas that are highly embanked. While taking up the new embankments for construction, there is no provision for Environmental Impact Assessment and Public Hearing as in the case of river valley projects, only irrigation and hydropower projects enjoy that benefit. Except for agitation or resorting to legal redress for compensation or relief, there is no law available to the people under which they can vent their feelings or seek relief.

18 Government of India, Ministry of Water Resources, Report of the Working Group on Water Resources for the Eleventh Five-Year Plan, p. 59.

Floods and Some Legal Concerns 325

Proposed Flood Cess The Eleventh FYP Document also suggests the imposition of Flood Cess on to the people of the flood protected areas. It says, ‘It is suggested that a Flood Cess be imposed on the beneficiaries in the area provided with protection on a certain minimum percentage basis (RBA’s recommendations in this regard could be taken as a guide).’19 It will be of interest to look into the case of waterlogging that accompanied the construction of embankments along the Bihar rivers in general and the Kosi, in particular. The entire strip along the eastern embankment, from Birpur to Koparia, outside the eastern embankment, suffers waterlogging. T.N. Lal Das, the Collector of Saharsa (1996), writes: … About one fourth of the total area of the district lay inside the Kosi embankments which faces the fury of the Kosi flood, bund erosion and mass devastating every year. Kosi has been depositing around 6” and 9” silt in the head and tail every year inside embankment. Due to this natural phenomenon, an area inside embankments has become high which causes regular seepage of Kosi water. Due to heavy seepage, area stretching about 3 kms east from Kosi embankments has been rendered uncultivable due to waterlogging. The southern portion of the district also suffers from flood due to backflow of Kosi water. The type of the soil is purely sandy with low level of fertility. Due to this adverse geographical situation for economic upliftment of the area specific plan for development of agriculture is needed.20

Once, in 1959, there was a debate in the Bihar Vidhan Sabha as to whether a betterment tax should be clamped on the areas protected by floods in the countryside of the embankments. Lahtan Chaudhary, MLA, suggested, ‘… Only a 2–3 miles strip of land parallel to the embankments has been benefited by the embankments. Area beyond that strip has not benefited by the Kosi embankments.’21 The Collector of Saharsa and Lahtan Chaudhary were referring to the same piece of land. Obviously, what was worth taxing in 1959 had turned into a wasteland by 1996. It is also a fact that the Government of Bihar never tried to rid this land of waterlogging, and barring the constitution of the Pathak Committee and the subsequent 19

Ibid. T.N. Lal Das Collector of Saharsa, in his message to Souvenir, published by Yasman Samaj, 21 October 1996. 21 Lahtan Chaudhary, Bihar Legislative Assembly Debates, 19 October 1959, p. 5. 20

326 Dinesh Kumar Mishra

constitution of the Kosi Pirit Vikas Pradhikar (Kosi Sufferers Development Authority) that has been a defunct body right from its inception in 1987, it never proceeded a step in that direction. Subsequent reports of the Water Resources Department of the State suggest that an area 0.65 lh was cleared of waterlogging along the eastern embankment of the Kosi, a claim that is vehemently refuted by the local residents. The situation on the west bank of the river is no better either. It is easier to say that Flood Cess should be imposed on the people but difficult to enforce. As far as the people of the ‘flood protected areas’ are concerned, they will have to pay for it the way they pay the ‘irrigation cess’ for the services that most of them never get.

Conclusion The problem with flooded areas is that they are viewed from the angle of drought mitigation. Most of the experts visit the area during the flood season and rarely get an opportunity to interact with the people, if at all, on topics other than immediate relief. Once the emergency is over, floods are forgotten till the next season. Also, no evaluation of the flood mitigation efforts is ever done involving the people of the flood plains. It is only the engineers or the bureaucrats who speak and decide on behalf of the flood victims. Politicians could be a better choice as they understand the ground reality but, unfortunately, they have their own vested interests in perpetuating the problem for their own gains. Flood victims have little say in matters dealing with the issue. There are certain things that demand immediate attention: 1. Every needy family should be able to claim sustenance as a right for a period of one month, at least. At the moment, it is based on the whims of those listing the victims after the disaster. 2. Local employment guarantee for those seeking recovery after floods. It should be appreciated that in many cases the house and personal belongings are swept away along with the cattle and the family is literally on streets. 3. If floods occur in areas that are supposed to have been protected by the concerned authorities, provisions for compensation of the losses should be incorporated along with reaching timely relief to the victims. Accountability in maintaining the flood control structures is a very important factor. Enquiry reports should be made public

Floods and Some Legal Concerns 327

4.

5. 6.

7.

and stringent measures should be taken in case of dereliction of duty. One is reminded that when the Molony Bundh breached in Gorakhpur in Uttar Pradesh in 1955, an enquiry was conducted by a person of the stature of A.N. Khosla and his report was published in vernacular newspapers for public consumption. This should be made mandatory. Erosion is a phenomenon that has not received the attention it deserves. The impact of erosion becomes worse when two States or two nations get involved. Erosion by the Bhagirathi in West Bengal has been discussed earlier. Erosion by the Gandak in the West Champaran district of Bihar has created lot of tension between India and Nepal. The river is eroding land in Bihar and building the same in Nepal. Let an Erosion Commission look into the problem and come out with suggestions to deal with it. Wherever people are constrained to live between the river and the embankments, access to their homes and fields should be made free. Construction of flood control structures like embankments, ring bundhs, etc., should necessarily be brought under Environmental Impact Assessment and a public hearing held before getting clearance. If at any stage a betterment levy is introduced for the flood protected areas, it must be supplemented by a compensation code in the case of any failure of structures. A public debate in needed before any such move becomes a law.

There is a need to empower people to take care of themselves and their problems with a minimum of governance. That, of course, is a tall order and things are moving very slowly in that direction.

References Department of Disaster Management (formerly known as Department of Relief and Rehabilitation), Government of Bihar. Loss of Data due to Floods 2002. Ministry of Water Resources, Table 5.17: State-wise Progress of Physical Works under Flood Management Programme. Available online at http://www.cwc.nic.in/ISO_DATA_Bank/ waterrelated2007/chapter5pdf/TABLE%205.17FINAL.pdf ———. 1980. Report of the National Commission on Floods, Department of Irrigation and Power. Government of India, Ministry of Water Resources. Report of the Working Group on Water Resources for the Eleventh Five-Year Plan. New Delhi.

328 Dinesh Kumar Mishra Ministry of Water Resources. Central Water Commission, Table 5.12, Flood Damages/ Heavy Rains in India. Available online at http://www.cwc.nic.in/ISO_DATA_Bank/ waterrelated2007/contents.doc Mishra, Dinesh Kumar. 1992. Report of the First Delegates Conference. Patna: Barh Mukti Abhiyan. Mullik, Laliteshwar. 1953. Kosi (in Hindi). Bharat Sevak Samaj. Nav Bharat Times, Patna, 25 September 1987. Press Release of the Bihar Government. O’Malley, L.S.S. 1964. Bengal District Gazetteers. Darbhanga: P.C. Roy Chaudhury. Ram, Jagjiwan. 1980. Preface to the Report of National Commission on Floods. New Delhi: Ministry of Agriculture, Government of India. Roy, Dunu. 2000. ‘Floods: A Small Matter of History’, in S. Parasuram and P.V Unnikrishnan (eds), India Disasters Report 2000, p. 150. New Delhi: Oxford University Press.

13

Water Pollution and Contamination Paritosh C. Tyagi

Introduction A source of water is essential for habitat. The demand for water increased as agriculture was introduced. Still, the water bodies were clean. Water was made impure by industrial effluent, sewage from water closets and run-off from fields to which manure and chemical fertilisers and pesticides were applied. Pollution is a general term used to refer to damage to water quality from matter added externally. Contamination of water refers to the presence of matter or organisms that can be harmful to health. As systems of water supply were evolved, tariffs were applied with or without arrangements to measure the quantity of water drawn for consumption for various purposes such as domestic, agricultural, industrial and municipal. After each use, waste water was generated, which found its way into one or other body of water, whether on surface or underground. Of course, a small quantity evaporated or transpired through vegetation. Connected with water supply, there is a complex interplay of technology, legal and financial management, social rights on natural resources, grievances against not being treated equitably, and short-term and long-term environmental consequences. This leads to a large variety of perceptions and the formation of interest groups that keep throwing responsibility on one another while the problem keeps growing. We shall discuss the extent of the problem in the next section.

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Extent of the Problem First, there are the identifiable sources of pollution and contamination in the form of outfall drains and sewers carrying domestic waste water from towns and cities (Figure 13.1). Plan allocations have funded water supply schemes in cities, small towns and villages. As a result, waste water is generated but adequate arrangements to convey, treat and dispose of domestic waste water are seriously lacking. Most of the towns are without adequate drainage and no sewerage. The cities are at best partially served. Figure 13.1 Domestic Waste Water

Source: Author. Note: This picture shows domestic waste water causing slush on the street of a small town in Rajasthan. Note the lack of drainage and, possibly, an excessive consumption of water. Water pollution is inevitable.

The Central Pollution Control Board (CPCB) has estimated that out of the 23,000 million litres (Mld) of domestic waste water generated per day in the urban areas of the country, merely 6,000 Mld are treated.1 In Delhi, 1 R.C. Trivedi, Koki Mehrotra and RM Bharadwaj,‘Wastewater Management in India’, Paper presented at the Seminar organised by the Institution of Public Health Engineers (India) at New Delhi in April 2004.

Water Pollution and Contamination 331

specifically, although the quantity of treated waste water increased from 257 in the year 1961 to 1,980 Mld in 2001, the quantity of untreated waste water increased during the same period from 72 to 1,230 Mld. Insanitation caused by raw sewage is mainly responsible for 600,000 deaths due to diarrhoea in India. Secondly, the outlets of industrial units discharge effluent widely varying in their content and concentration. The effluent may be highly acidic or alkaline, may contain toxic matter or carry compounds that impart colour, taste or odour to an unacceptable level. By now, most of the large and medium industrial units, if not all, have installed effluent treatment plants or are connected to common effluent treatment plants under the pressure of law enforced by the regulatory bodies (we shall discuss the law and regulatory bodies in more detail later). Sadly, the law has not been effectively enforced, and the installed units are not run with due diligence. As a result, we have the Yamuna riverfront in Delhi severely polluted both by municipal and industrial effluent. And we also have places like Bichhri and Pali in western India where industrial effluent have made groundwater undrinkable and unfit even for irrigation. Thirdly, the run-off from fields brings soil, fertilisers and pesticides to the rivers, streams, ponds and lakes. No serious effort has been made to measure the quantity of these materials reaching the water bodies. However, an approximate idea can be had from the estimates of the silt load of rivers, and the quantities of fertilisers and pesticides traded in the country. The soil destabilised due to construction of roads and buildings also finds its way into water bodies (Figure 13.2). Fourthly, the escape of hazardous, bio-medical and municipal wastes to surface water bodies and groundwater aquifers has been a significant source of water pollution. Segregation of wastes has been limited to picking of saleable items from the mix of wastes. Dumping of municipal and industrial solid wastes has been going on for a long time on the outskirts of almost all urban settlements. In some cases, such dumps are right on the banks of rivers or the edges of lakes (Figure 13.3). The leachable component flows to drains and streams, and even seeps into the groundwater. Fifthly, regulation of stream flow by barrages and dams and large-scale abstraction of water significantly compromise the capacity of such rivers to assimilate pollution and counteract contamination. The flow in River Yamuna is totally blocked at several points (Dak Patthar, Wazirabad and Okhla) for diverting its water for irrigation or drinking. At Delhi, the flow during the lean period is entirely diverted at Wazirabad for obtaining water for drinking purposes. Downstream of the Wazirabad barrage, the riverfront is created by the effluent of the Najafgarh Drain.

332 Paritosh C. Tyagi Figure 13.2 Surplus Earth

Source: Author. Note: This picture shows the surplus earth pushed on the slope towards the stream flowing below in the course of construction of a road in Himachal Pradesh.

Only after going beyond Delhi does the Yamuna flow as a river with the initial feed from the drains of the Trans-Yamuna part of east Delhi and the heavily polluted tributary named River Hindon. Sixthly, there are other activities that cause pollution of the surface water bodies, such as unauthorised quarrying of sand, gravel and boulders from river beds (which obstructs flow and causes pollution) and dredging of reservoirs and construction of large buildings and other infrastructure projects (which destabilise the soil). (See Figure 13.4.) As stated earlier, a precise measurement of the extent of pollution is lacking but survey of the water quality of many rivers conducted by the CPCB shows that about 14 per cent of the stretches of main rivers are severely polluted, and another 19 per cent of the river stretches are moderately polluted. The clean stretches of rivers are generally limited to areas near their sources, where hardly any significant numbers of persons reside. Therefore, people’s perception, as reflected in the First Citizen’s Report by the Centre for Science and Environment, states that 70 per cent of the length of our rivers is polluted. We shall next discuss what is being done to control water pollution.

Water Pollution and Contamination 333 Figure 13.3 Garbage Dump

Source: Author. Note: This picture shows a garbage dump near Shillong. It is easy to imagine that rainwater will carry it down the slope to the river in the valley.

Figure 13.4 Suketi Khad

Source: Author. Note: The picture shows Suketi Khad in Himachal Pradesh bringing back dredged material from balancing reservoir of Beas Satluj Link Project to River Beas.

334 Paritosh C. Tyagi

Measures for Control of Water Pollution The general principle followed is to control pollution at its source and make the polluter do it. The application of this principle brings forth the following measures: z

z

z

z

The municipal authorities lay sewerage to achieve water-borne sanitation and divert sewer outfalls and drains from discharging into streams. The treatment of sewage may be from minimal to full before conveying the effluent to agricultural fields for irrigation with or without dilution. In a few cases, marine outfalls are laid to convey waste water to a certain distance into the coastal waters. In the previous section, the inadequacy of sewerage and sewage treatment facilities has been indicated. Industrial units install their own effluent treatment plants to pretreat effluents before discharging them into sewerage or common effluent treatment plants. The treated industrial effluent may be used for agriculture, discharged into water bodies or disposed of through marine outfalls. The trade effluent of small industrial units located near residential areas is often permitted to be discharged into the municipal sewer. The quality and quantity of industrial effluent varies widely. Accordingly, the perception about the severity of industrial pollution also varies. The general view is that the installed effluent treatment facilities are not operated with due diligence by the industrial establishments. A more responsive approach is seen on the part of recently established housing estates and commercial complexes, especially if they have a clientele that insists on environmental safeguards and compliance with law. In such cases, complete effluent treatment systems and conservation of water resources are often achieved to a commendable degree. Being decentralised, such facilities also make it possible to recycle and reuse treated effluent for flushing of toilets, cooling of air conditioning chillers and, of course, for horticulture and landscaping. Such recycling requires dual system of plumbing to prevent contamination of freshwater by waste water. In existing water supply systems, retrofitting dual plumbing has technical and financial implications, which are not easy to overcome. Irrigation facilities provided by the State authorities have not yet shown an appreciable degree of change in the manner of applying water on

Water Pollution and Contamination 335

z

fields although techniques such as sprinkling and drip irrigation have been known to the profession for some decades. The private sector has shown relatively more interest in adopting the modern irrigation techniques, but they have a limited share in water-use for irrigation. Studies in arid land farming and soil erosion control hold promise of reducing problems related with return flow as also sedimentation in drains and reservoirs. A noteworthy effect is still to be seen in the field but some progress is being made. Replacement of chemical fertilisers and pesticides with bio-fertilisers and bio-pesticides will reduce the pollution of water resources caused by the run-off from the fields. This programme has also met with some limited success.

Appraisal of Law on Water Pollution Control Fouling of water is punishable under the Indian Penal Code, which has been in force since 1873. Inadequate institutional arrangements, small fines and light punishment, and lack of any measure to objectively verify the offence are the main reasons for the low level of effectiveness of this age-old provision. The Water (Prevention and Control of Pollution) Act of 1974 is regarded as the first legal measure for water pollution control. It provided for the establishment of an institutional machinery at the Centre and in each State comprising a Board at each place. The Act sets out in detail the functions and powers assigned to these statutory bodies. The functions and powers are stated separately for the Central and the State Boards, but there is a lot that is common to them. In particular, the functions include the following: z z

z

z z z z z z

Promote cleanliness of streams and wells. Plan and secure the execution, and coordinate the activities of a comprehensive programme for prevention and control of pollution. Encourage, conduct and participate in investigations and research related to water pollution control. Plan and organise the training of persons. Collect and disseminate information on pollution and its control. Collect and publish technical and statistical data. Lay down, modify or annul effluent quality standards. Inspect sewage, trade effluent and emissions, works and plants. Make, vary or revoke any order for controlling pollution of water and air.

336 Paritosh C. Tyagi z z

Advise the State Government on the location of industries. Perform the functions as prescribed by the concerned government.

The powers of the Boards include the following: z z z z z z z

Power to obtain information Power of entry and inspection Power to take samples Power to make any search or seizure Restriction on the establishment of outlets for effluent Power to make application to courts of law against violation Power to give directions for closure and cessation of services

The Water (Prevention and Control of Pollution) Cess Act of 1977 is patterned after the financial enactments for creating revenue income. It was enacted to provide financial resources by levy of a cess on the water drawn for consumption, to sustain the organisations established under the Water Act. The Air (Prevention and Control of Pollution) Act of 1981 complements the Water Act in the air domain. It is relevant to water pollution control to the extent that pollutants get transferred through various routes among water, air and soil. Burning of fuels that contain sulphur generates sulphur dioxide and combustion at high temperatures generates oxides of nitrogen. The concentration of oxides of sulphur and nitrogen in the air is particularly high near the coal-based thermal power plants and oil refineries. When rain occurs, these oxides are dissolved in water and turn the rainwater acidic. The run-off of such acidic water has caused severe damage to aquatic life besides affecting the hydraulic structures. The Environment (Protection) Act of 1986 (EP Act) is an umbrella Act, covering all aspects not covered by the Water Act and the Air Act. This Act empowers the Central Government to take measures to protect and improve the environment. Accordingly, the Central Government has notified a series of rules and delegated certain powers to various agencies—including the pollution control boards—on the subject of the management and handling of hazardous, bio-medical and municipal wastes. Other relevant enactments include the Factories Act (1948), Ancient Monuments and Archaeological Sites and Remains Act (1958), Wildlife (Protection) Act (1972), Forest (Conservation) Act (1980), Motor Vehicles Act (amended 1988), Public Liability Insurance Act (1991) and Biodiversity Act (2002).

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A few interesting points that are noteworthy regarding the laws for water pollution control are as follows. z

z

z

z

z

z

z

The Water Act is to maintain the wholesomeness of water in the streams (refers to all surface water resources) and wells (refers to all groundwater resources). An area in a State can be excluded from the application of the Water Act by a notification by the State Government, but no area has been so excluded at any stage so far. The cess is related to the quantity of water ‘drawn’ by municipal bodies and industries, not to the quantity of waste water discharged by them. The pollution potential for various kinds of use is reflected in the applicable rate of cess (in paise per kilolitre2), and an incentive to treat waste water to prescribed standards is provided by a rebate in the cess. Dwellings and small establishments are exempt from levy of cess. To an industrial unit, the rebate in water cess provides little incentive to control pollution whereas for the State Pollution Control Board, cess may constitute 50 per cent or more of its income. The rebate in cess directly reduces the income of the Board. Therefore, the State Board faces a conflict of interest between its duty to control pollution and its interest in not losing income due to the rebate admissible for control of pollution. The EP Act contains a specific provision—that when an offence is committed which is punishable under the EP Act and under any other Act, it will be dealt with under that other Act. This provision has allowed the force of all other enactments, in particular the Water Act and the Air Act, to continue unaffected. The grant of consent to establish, consent to operate and authorisation under the EP Act is under the purview of the State Boards within their jurisdiction. The State Boards have the power to prosecute an offender but not to impose any fine or punishment. The State Boards also have the power to direct the closure of any activity that may cause pollution and order that any service (for example, the supply of water and power) should cease to be provided for such activity. The implementation of environmental law is focused on booking the offender. The preventive aspects are not in focus in practice and the

2 The rate of cess is 2 paise per kilolitre for water consumed for domestic purposes; 5 paise for industrial cooling and spraying in mines; 10 paise for water used in processes producing biodegradable effluent and 15 paise if the effluent is not easily biodegradable.

338 Paritosh C. Tyagi

z

abatement of pollution is taken to be the duty of the potential polluter. Thus, among the three major functions of prevention, abatement and control, the pollution control machinery is mainly active with regard to ‘control’. The pollution control activities are centred on ‘outlets’ from which the quality and quantity of effluent is regulated. These are often referred to as ‘point sources’. Run-off from agricultural fields and squatting near water bodies are examples of ‘non-point sources’ of water pollution. The pollution caused by non-point sources remains, by and large, uncontrolled.

Enforcement of Water Pollution Control They say that law has long arms. There are various other expressions to indicate that a criminal cannot escape being caught. In other words, law is deemed to be effective. In practice, the situation is much to the contrary. The law and order situation is depicted in a cartoon by the celebrated cartoonist, R.K. Laxman, with a quotable quip that we have a lot of laws but little order. In the matter of pollution control and environmental protection, this description applies very aptly. Any project that has the potential to cause pollution by discharging effluent through an outlet or emission through a stack is required to seek consent from the State Pollution Control Board (SPCB) to establish and a consent to operate after its establishment. The consent to operate remains valid for a specified period after which it needs to be renewed. The consent is often subject to certain conditions. The compliance with conditions is supposed to be monitored. It is widely known that monitoring is seldom done effectively. Setting the effluent and emission standards is seldom free from controversy. While the industry considers the standards too strict, the people living nearby often complain that they are too relaxed. The standards may be criticised as irrational if they are not based on local conditions, or as discriminatory if they are not uniformly applied. In any case, a common grievance persists that both people and industry have no say in setting the standards. The enforcement of standards presents even more complications because: z z

SPCBs are poorly equipped in terms of staff and equipment. Monitoring is weakened by imperfections in sampling and testing, and by the delay in getting the results of analyses.

Water Pollution and Contamination 339 z z

z

Allegations of corruption cannot be altogether dismissed. The actions to prosecute the offending unit or direct its closure end up in the courts of law. In the latter case, the burden of proof tends to shift more towards the SPCBs. The process of law takes an inordinately long time and in this duration, protected by the matter being sub-judice or a stay order, the polluting activities may continue.

The hurdles in the enforcement of environmental laws are discussed in more detail in the few sections that follow.

Nature of the Hurdles In order to understand the hurdles in the way of enforcement of environmental laws, they need to be broadly grouped under five categories, which are determined by the following criteria: z z z

stage at which a hurdle appears, agency that is involved and inevitable results.

Category 1: Inherent Shortcomings in the Law Multiplicity of Laws It is believed that nearly 200 legislations in India have some provision or the other relating to the environment. It is remarkable because the word ‘environment’ was rarely used in a technical or legal sense until the United Nations Conference on Human Environment held at Stockholm, Sweden in 1972. That the provisions for environmental law are so scattered is in itself a cause of weakness in the implementation of the law. Inherent Limitations By the time a law is enacted, the scenario changes; a law is thus always aged when it is born. In the matter of environmental laws in India, technical developments and international commitments have altered the status very fast since their enactment. There are two ways of dealing with a problem—prevention and cure. It is well accepted that prevention is better than cure. Prevention is better because

340 Paritosh C. Tyagi

it is cost-effective. Law, however, focuses on cure, that too indirectly. When a polluter is punished, it does not remedy the damage done to the environment, notwithstanding the contention that since the fear of punishment deters violation of law and, in that sense, law is preventive. When minor offenders are too many and unidentifiable, regulatory agencies have to look the other way. In the case of water pollution, the picture of washermen (Figure 13.5 ), the houses not served by sewerage or served but not connected to sewers and the dumping of garbage on the banks of streams are fairly familiar to everybody, but the sprinkling of insecticides in ponds to make it easy to catch fish may appear horrifying (Figure 13.6). Figure 13.5 Washermen

Source: Author. Note: The picture shows washing of clothes in a river that flows into Bara Pani reservoir, which is the source of several water supply schemes in Meghalaya.

Lack of Attention to Soil

Environmental legislations started in the domain of water (1974) then extended to air (1981) and finally encompassed the entire environment (1986). The last named became operational through rules notified under it in which hazardous substances and wastes, genetically engineered organisms, environmental impact assessment and coastal regulatory zones came one by one. Consequently, the primary function of the machinery for pollution

Water Pollution and Contamination 341 Figure 13.6 Farmer Sprinkling Insecticide

Source: Author. Note: This picture shows a farmer, who, courting risk to himself, sprinkles an insecticide to kill and catch fish in a pond in the district of Azamgarh, U.P.

control (in the form of Pollution Control Boards/Committees) remained confined to the control of pollution of water and air. Soil did not receive the degree of attention that was given to water and air. Even with the subsequent rules relating to bio-medical wastes and municipal solid wastes, the protection of soil is incidental rather than deliberate in environmental laws. That polluted or contaminated soil can cause pollution and contamination of water resources, both on surface and underground needs to be understood. Classification of Offences The violation of prescribed standards is an offence. But there is no classification of such offences in the aforesaid environmental laws. By contrast, the Code of Criminal Procedure classifies offences in a range from petty to heinous, groups them as cognisable and non-cognisable and as bailable and non-bailable, labels offenders as habitual or as proclaimed and provides for the summary trials of certain offences. The absence of such classification under environmental laws results in a lack of focus on controlling significant violations of the law. There would be the same notice to show cause and the same application filed for prosecution, whatever is the degree of pollution.

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Collection of Cess Since the staff of the SPCBs is not trained in assessment and collection of revenue, the activities related to cess distract them from their main function of prevention and control of pollution. Environmental Statement By a notification in 1993 under the Environment (Protection) Act, it was made mandatory to annually furnish an Environmental Statement in a prescribed proforma. The notification covers all activities for which it is necessary to seek consent under the Water or Air Acts (for prevention and control of pollution) and authorisation under the Hazardous Wastes (Management and Handling) Rules. The original notification contained the term ‘environmental audit report’, which was later amended to be read as ‘environmental statement’. This attached a limited and incorrect meaning to environmental audit and had the effect of creating a wrong notion that environmental audit was a requirement of the government. The point that environment audit is, in fact, a management tool was thereby missed and the opportunities to rectify environmental mistakes through introspection were lost. The voluntary compliance with this notification has been dismally poor; less than 5 per cent of those who ought to have submitted the statement have actually done so. The purpose of the notification stands defeated. Environment Tribunal So long as litigation goes on, the environment continues to be polluted. Therefore, expeditious ways are needed to settle environmental petitions and prosecutions on environmental pollution. In a landmark judgement in the mid-1980s, Justice Bhagwati suggested the creation of environment tribunals. The National Environment Tribunal Act, 1995, provides for strict liability for damages arising out of any accident that occurs while handling any hazardous substance. The scope of the Act is so severely limited that it fails to provide any relief in the disposal of the large number of cases related to continuing and wilful environmental pollution through the emission of substances that cannot be categorised as hazardous. Liberalisation Liberalisation has virtually done away with the system of licensing. Thereafter, industries have been gravitating towards metropolitan cities and other already developed areas that provide infrastructure, skilled workers,

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professional consultants, and markets for raw materials and products. The small-scale and ancillary industrial units have been exempted from locational restrictions. Consequently, the environmental problems of such areas tend to get compounded. Further, while liberalising the approval of foreign technology agreements, no provision is made for an environmental appraisal of the technology.

Category 2: Gaps in the Institutional Set-up As mentioned earlier, the Central and State Pollution Control Boards operated under the enactments for the prevention and control of water and air, namely the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. An integrated and comprehensive view on environment was adopted while enacting the Environment (Protection) Act, 1986. Regrettably, the integrated view was not reflected in the implementation of this Act, which became an instrument for the exclusive use of the Central Government in the Ministry of Environment and Forests. The delegation of functions was sporadic and delayed and took place only when the Central Government could not do without the help of other agencies, in particular the SPCBs. Therefore, delegation was mainly to the SPCBs, leaving aside the CPCB as if ‘environment’ was outside its jurisdiction. This newly formed relationship between the SPCBs and the Ministry of Environment and Forests tended to erode the bond and interdependence between the Central Board and the State Boards. Unfortunately, the Central Government is continuing to move in the direction of etching a line between pollution control and environmental management rather than amalgamating them in a single organisational setup. Under the recent notification (September 2006) for re-engineering the environmental clearance process, the State Environmental Appraisal Committee and the State Environmental Impact Assessment Authority will deal with the environmental clearance of listed category projects, which sends a clear message to the family of pollution control boards that they need to confine their activities related to environmental management within the Water Act and the Air Act. Multiplicity of Agencies Certain quasi-judicial bodies have been created to perform specific functions, mostly by or under the directions of the Supreme Court. Examples are the

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Central Groundwater Authority, Loss of Ecology (Prevention and Payments of Compensation) Authority for Tamil Nadu, National Environment Appellate Authority, Environment Pollution (Prevention and Control) Authority for National Capital Region, National Coastal Zone Management Authority and the Monitoring Committees for specific areas or programmes. Their functions could have been discharged within the scope of the functions of existing agencies, such as the CPCB or the Ministry of Environment and Forests. While the independent existence of such quasijudicial bodies may well be expedient for achieving specific objectives, the role of the existing agencies tends to get overlapped and much confusion is generated about who is to deal with an issue that is not clearly mentioned in the terms of reference of such bodies. Household Hazardous Wastes Many kinds of hazardous wastes are generated at the household level which, in the absence of requisite legal and institutional arrangement, are disposed of with other solid wastes. Incidentally, there are several options from which a suitable arrangement can be made for the collection and disposal of household hazardous wastes (HHW). The main options are the following: Municipal staff: This is the existing ultimate agency to fall back on. Where a willing and competent alternative is available, it will be a good strategy to save the municipal staff from this new burden since they usually have a large backlog in the disposal of municipal garbage. Community-based organisation (CBO) workers: The CBO is emerging as the most appropriate agency to take charge of local problems. Therefore, workers engaged by CBO are particularly suitable for handling and managing HHW. NGO workers: NGOs have spearheaded many reforms in the social sector, including those pertaining to education, health and sanitation. However, NGO’s initiative occurs spontaneously. The factors that lead to such occurrence are often too complex to be replicated. Therefore, it may not be a very dependable arrangement to assign routine functions to an NGO. Private company: Where a community has the capacity and willingness to pay, the entrepreneur would see a business opportunity. Evidently, the segments that are not financially viable cannot attract the services of a solid wastes management company. There is no moral or legal binding on such a company to extend its services beyond what it is willing to contract. Care will be needed to cover any gap left by the private company in the handling and management of HHW. Producer: The producer has to accept an obligation to the customer for the quality of the product. The producer’s obligation to the environment has not

Water Pollution and Contamination 345 entered any statute. It is necessary to make a statutory provision for compelling the producer to protect the community against the ill-effects of waste generated by his products.

Category 3: Organisational Weaknesses Lack of Training The main areas of organisational weaknesses are lack of training of staff and inter-agency coordination. Training is paramount in the field of pollution control and environmental protection. Indian Railways, Forest Department and Defence services devote considerable time of their staff (ranging from 10 to 20 per cent) on training for upgrading the skills of young officers or refreshing the proficiency of the seniors. By contrast, pollution control boards have hardly any significant training programme (estimated as less than 1 per cent of time) for training of staff. Considering that the subject of pollution control or environmental protection requires a mix of science, technology and law, and moreover, that it is not part of any academic curriculum, the significance of training in this area cannot be overstated. This area can also be strengthened through freshly planned academic courses. Dependence on the Offender For obtaining a sample, especially of an emission, the regulatory body has to seek the cooperation of the very person or company against whom action is to be initiated. Why would such cooperation be readily available? The result is that the violation cannot be precisely measured, nor fail-safe arrangement made for taking representative and reliable samples. The regulatory body can find itself in a tight position if the court insists on proof of violation. Unimplementable Measures The Water Act contains a provision for emergency measures in cases where a stream or a well is polluted. Where it appears to a State Board that any poisonous, noxious or polluting matter is present in any stream or well or on land, it may carry out such operations as it may consider necessary for removing that matter, remedying pollution and restraining further pollution. But the State Boards do not have the infrastructure, organisation and funds for the purpose. No wonder this provision in law has remained unutilised though the opportunities for using it abound in our country.

346 Paritosh C. Tyagi

Category 4: Uncertainties in the Legal Process Fate of Directions The Environment (Protection) Act contains a provision empowering the Central Government to issue directions to any person, officer or any other authority, including the power to direct the closure of any industry, operation or process, or stoppage of the supply of electricity or water or any other service. An identical provision was made by an amendment to the Air Act in 1987 and the Water Act in 1988. It would appear that armed with such vast power, the regulatory bodies should face no obstacle in controlling pollution. The factual position is different. In the exercise of these powers, directions can no doubt be issued, but their implementation may be stayed through writ petitions in the High Court on the grounds of causing unemployment, loss of productivity and denial of natural justice. Thereafter, the same legal battle begins, consuming time while the pollution continues unabated. Legal Fight versus Compliance with Law A typical polluting unit will find it less expensive to fight a case against it than to install and run an effluent treatment plant and air pollution control device. There is not much fear of a quick and stringent decision. In fact, the threat of filing a case is often effective in eliciting a positive response to control pollution, but once the case is filed, the position changes. Then the trick lies in prolonging the case, the more prolonged the better for the offender. On the other side, those who suffer on account of pollution and environmental degradation derive no satisfaction from the case being in a court of law.

Category 5: Perception versus Facts Under-estimated Problem The general perception of any problem is based on an experience of inconvenience rather than an analysis of data and processes. For example, the general perception about HHW is that the quantity of such wastes is too small to warrant any concern and the method of dealing with them involves activities on such a vast scale that it is not practical to operate such a system. The conclusion drawn from these perceptions is incorrect because due consideration needs to be given to the risks associated with the disposal of hazardous wastes along with ordinary municipal garbage. The entire mass of

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garbage turns hazardous. The leachate may contaminate groundwater, the run-off may pollute surface water, and the workers and vermin that come in contact with hazardous wastes may get affected or may transfer the risk and ill-effect to others. Lifecycle Analysis Apparently innocuous products may become a cause for environmental risk and damage in specific conditions. A well-known example is the common polythene bag. This brings up the issue as to whether only the process or the process and the product should be regulated and whether a lifecycle analysis should additionally be included in the statutory process for the environmental clearance of projects. Urbanisation Means Development Urbanisation brings in large buildings, wide roads, shopping malls, etc., all of which are regarded, without any doubt, as development. What may not be apparent is the shortage of water, accumulation of waste water and generation of wastes that pollute the water, air and soil, all of which are often associated with urbanisation. In Figure 13.7 a very small example is given—just a tea stall. Who knows that this tea stall may be the nucleus around which a town will be formed some 50 years in the future. Emerging Threats New materials for packaging, a staggering quantity of disposable electronic goods, a large variety of stuff used as pesticides and insecticides, new products for house decoration and cleaning, etc., have resulted in a substantial increase in the potentially toxic and hazardous substances released into the environment. The number of automobiles is increasing phenomenally. Used oil from automobiles and the recent addition of catalytic converters that will need to be periodically replaced also contain potentially hazardous matter. The apparently innocuous electronic units such as computer, television and cellular phone cause considerable environmental problems after they are discarded because of the halogenated plastics in their body and heavy metals in their circuits. An electric tube light may contain sufficient mercury to pollute 30,000 litres of fresh water. Plastic wastes containing PVC (polyvinyl chloride) may release highly toxic dioxins if incinerated. Bio-medical wastes are discharged from practically every locality. Cells and batteries contain heavy metals, including lead, cadmium and mercury, which can leach through the soil and contaminate groundwater. Chemicals that are

348 Paritosh C. Tyagi Figure 13.7 Make-shift Tea Stall

Source: Author. Note: This picture shows a makeshift tea stall by the side of a busy district road in eastern Uttar Pradesh polluting the stream flowing by its side and generating stinking garbage.

toxic are present in the selenium toner of photocopiers and certain printers. That such items are rapidly becoming popular and they have to be discarded on becoming obsolete within a couple of years compounds the environmental problem. The quantity of wastes generated at the community level is thus sharply increasing and this is happening without any control. Dilution In India, the Ministry of Environment and Forests at New Delhi introduced the environmental impact assessment (EIA) through a gazette notification passed on 27 January 1994, for obtaining ‘environmental clearance’ for certain types of projects. To make it more participatory, the provision of ‘public hearing’ was added, which was definitely a step forward. The main EIA notification has been amended nearly 10 times in the past 12 years including a total revision of the prior environmental clearance procedure, which was notified in the year 2006. Although the general impression is that the government has been tightening the rules for environmental compliance, the fact is that most of these amendments, besides clarifying specific points,

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have, instead of strengthening the regulatory control, tended to dilute it, in particular, for the projects such as long pipelines, highways and large buildings. Consultant’s Role The project proponent engages the consultant to carry out the EIA for being presented to the regulatory authority, which is the SPCB with regard to consent to establish and the State or Central body for environmental appraisal with regard to Prior Environmental Clearance for any project. The arrangement is inherently faulty because it prompts the consultant to function as an advocate rather than an assessor. Any shortcoming in impact assessment shows up as a deficiency in the environmental management plan and in the degradation of environmental quality. Citizen’s Role The problems caused by air pollution are perceived more easily than those caused by water pollution. Likewise, the problems caused by pollution of water are not understood to the same extent as those caused by the scarcity of water. It is also true that many persons have a grievance against environmental offences or neglect but they do not know what they can do about it. Awareness of the provisions put forth in the Constitution of India and in the environmental laws should be a matter of strong interest to every citizen. Eco-clubs, chat groups on the internet, pressure groups for relevant environmental actions are some of the activities that are lacking, particularly in Indian society. Extended Liability of the Producer The ill-effects of certain products on the environment and on public health become apparent only after the products have been used over a period. Existing laws do not contain any clear provision for holding the producer responsible for such ill-effects. The notification on lead batteries does tend in this direction by requiring the user and the producer of lead batteries to ensure the safe disposal of used units. The principle of the producer’s extended responsibility is still to be formally established either by legislation or by amendment of the rules under the Environment (Protection) Act.

Economic Implications Social and political implications are intertwined with economic ones. A few such implications have already come up for discussion in the previous section

350 Paritosh C. Tyagi

on ‘Perception versus Facts’. Avoiding a repetition, the following remarks are made in an attempt to touch upon the social, political and economic aspects related to the pollution and contamination of water: Mineral Water Bottle Syndrome Till the 1980s, no one would believe that people unwilling to pay even Rs 3 for one cubic metre (1,000 litres) of municipal water would pay Rs 12 for a bottle containing only one litre of water believed to be fit for drinking.3 Rising income levels, the deteriorating quality of municipal water supply, increased awareness about the impact of water quality on health are among the factors that created a mania for ‘mineral water’ and whipped up a very fast growth of the bottled water industry. For the already negligent municipal authorities, the advent and popularity of bottled water has provided a reason for further complacence. For those who cannot afford to buy bottled water or even the domestic water purifier units, the risks from the poor quality municipal water have multiplied. Tanker Mafia Water supply is intermittent in practically all cities, that is, the supply is made for a few hours each day. The usual justification is that the demand of water is larger than what is available for supply. An additional advantage claimed for intermittent water supply is that the loss of water due to leakage is reduced by restricting the period in which leakage could occur. During summer months, the period for supply of water is further curtailed and supply may even be made on alternate days or a few days in a week. Private tankers have come up as a thriving service industry to carry water to the needy. Gradually, they have grown to become a mafia. The merits of intermittent water supply are totally fallacious. The total consumption of water in a typical intermittent and continuous water supply system remains nearly the same. The leakage keeps on increasing with fluctuations in the pressure in water pipelines. Moreover, people resort to installation of booster pumps on line, which further aggravates the leakage problem. The quality of water is bound to be bad with leaking pipes, at places laid in or near drains and with booster pumps putting them under suction conditions.

3 Samples tested at some laboratories have shown that a good number of samples taken from mineral water bottles were found to be unfit for drinking.

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Pani Panchayat Self-help in the field of supply of water (mainly for irrigation in central India) has given birth to the formation of cooperative organisations known as Pani Panchayats, which assert ownership of water resources by the consumers. In areas having scarcity of water, their political role has been well-recognised by society. There is no denying that self-help and self-governance are good in a democratic environment. Doubts arise about the lack of necessary technical back-up and the creation of new conflicts among interest groups. A Personal Episode A personal experience brings out the significance of environmental quality in general and water quality in particular in India. Once I shared the breakfast table with a visitor from Britain who was travelling throughout India with an exhibition on Shakespeare. To find out what had caught his fancy in India, I asked him, ‘What would you like to take back from India?’ He pondered for some time, placed his hand on his stomach and replied solemnly, ‘My health, I suppose.’ I was stunned by this reply, which was so short but it has a very strong message for authorities engaged in pollution control, water supply, sanitation, healthcare, commerce, tourism, and so on.

Suggestions for Changes in the Law A unified environmental law needs to be created to consolidate and streamline the activities for pollution control and environmental protection. Prevention of pollution and environmental degradation should have major focus in the unified environmental law. Environmental offences should be duly classified to suit prioritisation in the implementation of environmental rules and regulations. The Water (Prevention and Control of Pollution) Cess Act should be revised and enlarged to encompass the remaining domains of environment, such as air and soil. Collection of revenue under such legislation should be done by revenue collection agencies to conserve the capacity of the pollution control boards on working for pollution control and environmental management. The notification on Environmental Statement bears a review to convert the process into a management tool for the conservation of water, energy and other resources rather than an item of compliance with government orders.

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Environmental problems, such as household hazardous wastes, which are not commonly perceived but nevertheless exist, should be tackled through additional legislation. Regulatory bodies should be provided with powers to carry out summary trials and direct appropriate action that should be binding on an offender. Penalties for environmental pollution should be large enough to make it unattractive for an offender to carry on with litigation instead of installing pollution control devices. Environmental control needs to be gradually tightened rather than relaxed. The dilution of laws and rules related to the environment should be an exception rather than a rule. The technique of lifecycle analysis and the principle of the producer’s extended responsibility are, as yet, not effectively applied in India. But these and other modern approaches for environmental protection need to be pursued, both through the pressure of public opinion and through the obligations imposed by legislation.

Conclusions Some conclusions can be drawn from the foregoing discussion, especially the narration of hurdles in the enforcement of environmental laws in India. The conclusions have been arranged in an order that will help various agencies to note the actions that they can take to improve the enforcement of the law.

For the Regulatory Authorities z

z z

z

z

Monitoring systems need to be strengthened and coordinated so that compliance is effectively ensured. Both people and industry should be involved in setting standards. Training of staff should be taken up in a big way right after recruitment and continued throughout the service career. New curriculum for appropriate training in academic institutions should also be developed. Environment tribunals should have jurisdiction over all environmental cases, not merely those involving hazardous substances and wastes. The mandatory requirement for the submission of an environmental statement should be terminated. Environmental audits should be encouraged on a voluntary basis by disseminating the economic and environmental gains possible through environmental audit. The

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z

z

z

z

z

z

z

government should extend the necessary support required to put environmental audits into practice by building up capacity in the profession of environmental auditor and giving recognition to competent environmental auditors. Liberalisation of commerce and industry should not provide opportunities to carry out activities to the detriment of the environment. A quasi-judicial body should not be set up where the function proposed to be carried out by it can be performed by the Central or State Government, or an existing agency of the government. Monitoring systems should be evolved to reduce dependence on the potential offender in collecting environmental data. State Pollution Control Boards should be strengthened and equipped to carry out emergency measures to abate environmental pollution. Pollution control and environmental management should be treated as a single domain for organisational and institutional set-up. In particular, the Central and State Pollution Control Boards and UT Pollution Control Committees should be on the centre-stage of environmental management. Adequate flow should be ensured in all streams to meet ecological needs and to assimilate treated waste water and other unavoidable pollution. Household hazardous wastes deserve urgent attention for ensuring their segregation and proper disposal.

For the Persons Causing Pollution z

z

z

z

The municipal bodies have to wake up to their responsibility towards the collection, treatment and disposal of sewage and garbage. In this regard, it does not appear practical to rely on legal action to achieve the desired results. Environmental concerns should be internalised in the planning and implementation of development projects which involve withdrawal of water and cutting of soil. With all inherent weaknesses in law and in its enforcement, an inescapable conclusion is that the law can assist in control of pollution, but pollution can never be controlled by law alone. The following is a short story which may illustrate this point. At a road crossing, U-turn was prohibited. A big signboard displayed this restriction. A motorist reached that crossing, saw the board, looked on both sides and took the U-turn. As he came near the kerb of the

354 Paritosh C. Tyagi

z

z

z

road on the other side, a policeman stopped him. ‘You have taken a U-Turn,’ the policeman said sharply. The motorist was speechless. ‘You cannot take a U-Turn here; there is a big signboard,’ the policeman declared. The motorist still had nothing to say. ‘Did you not see the “No U-turn board”?’ the policeman demanded. The motorist muttered something. ‘Did you see it or did you not?’ the policeman thundered. The motorist confessed, ‘I saw the Board but I did not see you.’ Three things are obvious from this story: there should be a rule; it should be made clearly known and the enforcement agency should be on the spot. What is not so obvious is that the motorist should also know and believe that the U-turn is prohibited for the benefit of the motorists. Environmental audit, which includes water audit, is a management tool and should be effectively employed by industrial managers to reduce wastage and improve the environment. The submission of Environmental Statement to the concerned SPCB, as required under a Notification by the Central Government, does not motivate either the industrial units or others covered by the Notification to use the process as a management tool. The use of bio-fertilisers and bio-pesticides must be extensively promoted to protect water quality.

For the Persons Affected by Pollution z

z

z

z

General awareness of environmental facts should be acquired by all citizens. The provisions in the Constitution of India and in the environmental laws should be utilised for effectively protecting the environment. One such provision is that any citizen can file a case under the main environmental laws after giving 60 days’ notice. The outcome of many public interest litigation cases is greatly inspiring for a common man. Judicial pronouncements have indeed been a ray of hope. Citizens should actively participate in the public hearings and consultations held in connection with the prior environmental clearance of projects that have a significant potential to cause pollution and environmental degradation.

PART V

AUGMENTING WATER

356 Manju Menon and Kanchi Kohli

Big Water Resource Projects

358 Manju Menon and Kanchi Kohli

14

Environmental Decision-making in India: A Critique Manju Menon and Kanchi Kohli

Background India is on the verge of finalising its Eleventh Five-Year Plan. Drawing from the objectives laid out in the 14 June 2006 Approach Paper,1 the country is aiming ‘towards faster and more inclusive growth’. The construction of river valley projects is an important area of focus for the next five years of the country’s growth. It has been envisaged that utility-based generation capacity needs to be planned for, keeping in mind an increase of 60,000 MW, to be consistent with a growth rate of 8 to 9 per cent per annum. This capacity addition is envisaged to take place through new hydropower and nuclear power projects. It is clear that India continues to view dam projects as temples of a modern and developing country. The trend began in the country in the First Five-Year Plan period (1951–59) soon after independence, when many irrigation projects were started to harness the country’s river basins. These include the Bhakra Nangal, Hirakud and Mettur dams. This was the time when governments and the private sector in different parts of the world were building an increasing number of dams. According to the World Commission on Dams, at least 45,000 large dams have been built to meet energy or water needs and nearly half of the world’s rivers have at least one large dam.2

1 2

Planning Commission, ‘Towards Faster and More Inclusive Growth’. World Commission on Dams, Dams and Development.

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Today, most river valley projects, especially the large number that are proposed to come up in ecologically fragile mountainous areas including the Himalayas, are primarily for hydropower generation. The Ministry of Power, Government of India, has set a goal—Mission 2012: Power for All. It has prepared a comprehensive blueprint for power sector development with an integrated strategy for the sector development with the objectives of sufficient power to achieve a GDP growth rate of 8 per cent along with reliability and quality of power.3 The proponents of hydropower are promoting it as a clean and renewable source of energy generation, presenting it as an option with the least environmental and social impacts. But the reality is that in the history of dam building in India, impact assessment procedures were either non-existent or not rigorous enough. It was not mandatory to carry out impact assessments or get clearances for the diversion of forestland, till over three decades later. It was the protests and struggles around the Sardar Sarovar Project (Madhya Pradesh, Maharashtra, Gujarat States) and the Tehri Dam (Uttarakhand) that set the stage for public debate and questioning of the existing decisionmaking on hydropower projects. They brought to the forefront serious social and environmental implications of large dams for hydropower generation. Around the same time, the worldwide protests against the Silent Valley Hydro-electric Project (Kerala) highlighted the irreversible damage that the construction would have on the forests and wildlife. Today, the Sardar Sarovar and Tehri dams are under construction, and there is news of another project coming up near the Silent Valley National Park.4 However, the debates around these projects have led to a clear understanding that large dams, in India, as in several other countries of the world, have been accompanied by significant alterations in the upstream and downstream physical, cultural and social environment. There is no comprehensive audit of these impacts, but some available facts and figures indicate the magnitude and severity: The creation of reservoirs in the more than 1,500 major river valley projects has flooded over 500,000 ha. (5,000 sq. kms) of forestland. Waterlogging and/or salinisation affects perhaps half the canal irrigated land in the country, with varying degrees of severity. Malaria has seen a resurgence in the last decade or so, especially in the command areas of irrigation projects and around reservoirs. 3 4

Ministry of Power, ‘Mission 2012’. Sundernath, ‘Silent Valley’.

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Several species of wild animals and plants (such as the River Dolphin Platanista gangetica and the fish Hilsa [ilisha]) have been pushed into threatened status by dams and associated impacts. Saltwater ingress in the coastal areas of States with a major dambuilding history, such as Kerala, is severe, affecting drinking water and agricultural lands for several kilometres inland.5 While the aforesaid effects are conservative estimates of the biological and physical impacts that projects have had on ecosystems, there are no studies to give an estimate of the extent of cultural and social impacts, and the impacts on women and marginalised communities.

Procedural Framework for Environment and Forest Clearances for Hydropower Projects The need to consider environmental aspects prior to the construction of a river valley or a hydropower project was first officially recognised in India with the 1975 guidelines of the Central Water Commission (CWC), Government of India. These guidelines for conducting investigations into major irrigation and hydro-electric projects had a chapter on environment which clearly states that: The planning, construction and operation of irrigation/hydroelectric/multipurpose projects have considerable impacts on navigation, fish culture, wild life, recreational aspects and overall ecology of the affected regions. Some of these aspects on the ecology of the region as well as the overall environment are irreversible in nature. It is, therefore, necessary that a careful evaluation is made of these impacts, whether good or bad …. 6

The CWC guidelines then delineated the ‘minimum surveys and investigations required’, including effects on fishing downstream; area of reserve forest to be impacted; estimates of the wildlife population; waterlogging potential and steps to be taken to mitigate this problem; silting/ scouring of the river bed; impact of flood problems and salinity of flow in the river channel (including, presumably, saltwater ingress).

5 6

Kothari, ‘Environmental Aspects of Large Dams in India’. Ibid.

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Although these directions existed, they were not backed by any clear set of guidelines. The environmental assessments of dams therefore remained haphazard and vague, and were purely incidental components of the planning process. In 1980, clearance of large projects from the environmental angle became an administrative requirement, to the extent that the Planning Commission and the Central Investment Board sought proof of such clearance before according financial sanction. Five years later, the Department of Environment and Forests, Government of India, issued Guidelines for Environmental Assessment of River Valley Projects.7 These guidelines specified the various studies that are necessary as part of an environmental impact assessment (EIA), including impacts on forests and wildlife in the submergence zone, waterlogging potential, upstream and downstream aquatic ecosystem and fisheries, water-related diseases, climatological changes and seismicity.8 The mechanism for forest clearance of hydropower projects fell into place with the legislation of the Forest Conservation Act, 1980. Under this law, the process of clearance was focused on the extent of the loss of forests and forestlands only, and not the ecological and social functions that were impacted due to this loss. The Environment Impact Assessment Notification (today ‘re-engineered’ as the EIA Notification 2006), promulgated under the Environment (Protection) Act, 1986, took another 14 years to be legislated. This law created the scope to consider impacts of development projects in a much wider and deeper manner than what existed in the past. These two laws put into place the environment and forest clearance regimes applicable to different kinds of projects, hydropower projects being one of them. Over the years, the experience of the implementation of these regimes has thrown up some startling facts. The following sections are a synthesis of the most prominent and long-standing problems in the implementation of these clearance regimes. It needs to be clearly understood that the environment and forest clearance (FC) procedures are independent of each other, and both need to be obtained before any construction can begin on a project. This requirement has been often violated by project proponents and the Ministry of Environment and Forests (MoEF). There are a number of examples when construction has been undertaken by the project proponents without one or the other clearance being in place.

7 8

Ibid. Ibid.

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Environment Clearance of River Valley Projects The Environment Clearance process was introduced by the Central Government in India with the purpose of identifying and evaluating the potential impacts (beneficial and adverse), be it environmental, social, cultural and aesthetic, of developmental and industrial projects on the environment. All of these are critical to determine the viability of a project and to decide if a project should be granted environmental clearance and conditions for clearances to be granted. In 1994, the EIA notification was issued under the Environment (Protection) Act, 1986. The notification made it mandatory for 29 (later increased to 32) industrial and developmental activities to get environmental clearance from the Central Government before establishing or starting operations. The process of obtaining the clearance included the preparation of a detailed EIA report and organising a public hearing. Schedule 1 of the EIA notification had a list of projects requiring environment clearance from the Central Government, which included: River Valley projects including hydel power projects, major Irrigation projects and their combination including flood control project except projects relating to improvement work including widening and strengthening of existing canals with land acquisition upto a maximum of 20 meters, (on both sides put together) along the existing alignments provided such canals do not pass through ecologically sensitive areas such as national parks, sanctuaries, tiger reserves and reserve forests.

It also stated that these projects would need to go through the Central level clearance process only if the total cost of the project was above or equal to Rs 100 crores. This was initially Rs 50 crores and increased to Rs 100 crore vide amendment dated 13 June 2002.9 In subsequent years, the following amendments were made to the notification, specifically with reference to river valley projects. Also, critical amendments were made to the notification which applied to all categories of projects, including river valley projects. The ones that had the most telling consequences on the environment decision-making process are presented in Table 14.1. In addition to the amendments that hindered the ability of the EIA notification to enforce appropriate environmental decision-making, there were 9 The amendment regarding investment limits was applicable to specified projects listed in Schedule 1 of the Environment Impact Assessment Notification, 1994.

364 Manju Menon and Kanchi Kohli Table 14.1 Amendments to the EIA Notification Relevant to River Valley Projects (1994–2006) Date of Amendment

Key Features Related to River Valley Projects

4 May 1994

Expert Committees to be consulted only if deemed necessary. Compliance reports to be made available ‘subject to public interest’. Schedule IV on Public Hearings added. No public hearing for the modernisation of existing irrigation projects. Time period for the completion of the public hearing specified as 60 days. EIA report to be made available prior to a public hearing. No environmental clearance for 16 projects including nuclear power projects and river valley projects if investment is less than Rs 100 crores. Modernisation projects in the irrigation sector with less than 10,000 ha command area cost less than Rs 100 crores, excluded from the EIA notification. No environmental clearance for river valley, major irrigation, flood control projects relating to improvement work, including widening and strengthening of existing canals with land acquisition up to a maximum of 20 metres (on both sides put together) along the existing alignments. This is provided such canals do not pass through ecologically sensitive areas such as national parks, etc. Grant of temporary working permits (TWP) for a period of two years to projects taken up after 27 January 1994 and which have not sought environment clearance. These projects to seek environment clearance during this period. Work to cease in case of rejection of clearance or expiry of TWP. New Notification legislated by MoEF.

10 April 1997 27 January 2000 21 November 2001 13 June 2002 ·

7 May 2003

4 July 2005

14 September 2006

Source: Computed by the authors.

systemic problems with the institutional mechanisms for the assessment of projects. The most critical ones are as follows: The association between the project proponents and EIA consultants: The current environment clearance process promotes a direct transactional relationship between project proponents and the consultants who are hired to carry out EIAs. This has institutionalised the practice of faulty, substandard and inadequate EIAs, as the consultants are bound by the terms set out by the proponents, which include carrying out assessments and obtaining environment clearance for the project. It has been observed that honest assessments are not encouraged by the project proponents as they may result in the rejection of clearance to

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the project. It is also not in the commercial interests of the consultants to restrict unfair practices; they, are therefore willing accomplices.10 Packing of committees: The role of the Expert Appraisal Committees (Expert Committees as per the 1994 notification) in the EIA process cannot be over-emphasised. The committee of technical experts from all the relevant fields is expected to recommend the grant or rejection of clearance to projects after examining project documents, public comments and site visits (not mandatory). However, the competence to understand the environment and social impacts of projects as well as the level of autonomy they enjoy in the decision-making has been very limited. An analysis undertaken in November 2004 revealed that of the 64 members of the MoEF’s six sectoral expert committees, i. There were only two wildlife experts (though the 1994 Notification required a flora/fauna expert in each committee). ii. Nearly half the members were from government or government affiliated agencies (How independent would these members’ decisions be if project proponents are mostly government agencies/ departments?). iii. There were no representatives of indigenous/Adivasi(tribal)/local communities (even though the projects being considered mostly affect such communities). iv. Nearly two-thirds of the members were based in Delhi/Noida and Tamil Nadu (mostly Chennai). v. There are only three or four women members, one of them being an MoEF official.11 According to information provided by the MoEF, 471 river valley projects have been granted clearance since 1986, with the maximum number of 121 in the southern region of the MoEF, covering the States of Andhra Pradesh, Goa, Karnataka, Tamil Nadu, Kerala, Pondicherry and Lakshadweep.12 Eighty-three river valley/hydro-electric projects were granted environment clearance by the MoEF during the period of 2000–05.13 However, people’s 10 Iyer, Water: Perspectives, Issues, Concerns; Kohli and Menon, ‘Eleven Years of the Environment Impact Assessment Notification, 1994’. 11 Letter to Secretary, MoEF. 12 Information obtained from the MoEF in response to an application dated 29 November 2006 filed by Kalpavriksh under the Right to Information Act, 2005. 13 This information has been compiled from the annual reports of the Ministry of Environment and Forests from 2000–06, with last data available as of February 2006.

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experiences of their involvement with the EIA (including that of river valley projects) and their role in the decision-making process continue to remain bitter and disappointing (Box 14.1). In many cases the entire process was compromised due to sub-standard or fraudulent EIA reports, public hearings marred by intimidation and violence, lack of adequate notice, concealing of information, restricting the participation of citizens and grant of clearance despite violations, and complete opposition by local communities, public interest organisations and individuals (Box 14.2). In the case of the Middle Siang Hydro-electric Project (Arunachal Pradesh), affected populations and civil society organisations raised several concerns prior to, during and after the public hearing. These included issues of relevant documents not being available before the public hearing, severe discrepancies including misleading information on the assessment of traditional rights of the people and the risks faced by downstream communities in the EIA report prepared by WAPCOS.14 Despite these problems, the project was granted environment clearance. This 1,000 MW project is being constructed by the National Hydroelectric Power Corporation (NHPC), 12 km upstream of village Kaying near Raying on River Siyom. In another case, the Government of Kerala has decided to go ahead with the proposed 163 MW Athirappally Project in spite of consistent and widespread protests by the people in the Chalakudy river valley and Kerala for the past many years. The 23 m high, 311 m wide dam is proposed across the 144 km Chalakudy River 400 m upstream of the Vazhachal Rapids, a famous tourist spot in Kerala.15 This project has a long history of people’s struggle and litigation. The Kerala High Court orders of 17 October 2001 and 23 March 2006 recognised the repeated violations of the project proponents and upheld the need to follow mandatory procedures and hold public hearings.16 In November 2006, the MoEF expert committee on river valley and hydroelectric projects recommended it for environment clearance. The struggle against the project continues. The Teesta III Project in Sikkim was granted clearance in 2006 despite strong and long-standing resistance by local people on the grounds that it would marginalise the ethnic Lepcha and Bhutia communities by altering the demographic profile of the north district where the project is proposed to 14

CEDGE, ‘Press Release, Aalo (Along)’. Sanctuary Asia, ‘Athirappally Dam Threatens Tiger and Elephant Forests’. 16 Anonymous 2001, Order of the Kerala High Court in the matter of Ravi, S.P. and Ors v. State of Kerala and Ors. O.P. No. 3581 of 2001; Anonymous 2006, Judgement in the matter of Athirappally Grama Panchayat v. Union of India and Ors. W. P. (C) 9542, 11254 and 260763 of 2005. 15

Environmental Decision-making in India 367

be built. The negative social and cultural impacts of dams are not unfamiliar to them, as they have already experienced them due to the Teesta V Project further downstream, which is nearing completion now. Both these projects on the River Teesta are now the subject of ongoing litigation.17

A New Environment Clearance Regime On 14 September 2006, the MoEF issued a new EIA notification replacing the 1994 version. River valley projects generating less than 50 MW but greater than 25 MW hydro-electric power, and/or with less than 10,000 ha of culturable command area will be cleared by the newly constituted Environment Impact Appraisal Authorities at the State level. The Statelevel process allows for projects to be screened based on a form submitted by the project proponent. The screening process is to decide whether the project can be exempted from the need for preparing an EIA report or public consultation. On the other hand, projects above 50 MW hydro-electric power generation and/or more than 10,000 ha of culturable command area will come up for clearance before the MoEF. However, if any of the projects to be cleared at the State level falls in whole or part ‘within 10 km from the boundary of: (a) Protected Areas notified under the Wild Life (Protection) Act, 1972, (b) Critically Polluted areas as notified by the Central Pollution Control Board from time to time, (c) Notified Eco-sensitive areas, (d ) interState boundaries and international boundaries’, then the project will need clearance from the MoEF at the Central level.18 This new notification is a retrograde step when it comes to assessing the social and environment impacts of hydropower projects, as it does away with the need for a transparent decision-making process for a large number of projects.19 It also aims at fast-tracking clearance procedures for projects. The grant of clearance based on quick EIAs to large projects—including dams—that will submerge vast lands or have other serious impacts, has been legitimised. The 1994 notification which allowed rapid EIAs as an 17 The environment clearance of Teesta III Project has been challenged before the National Environment Appellate Authority (NEAA) and the violations of forest and environment clearance conditions in the Teesta V Project have been brought to the attention of the Central Empowered Committee of the Supreme Court. 18 MoEF, ‘Environment Impact Assessment Notification’. 19 All projects under category B2, all construction projects and certain other specified categories of projects are fully or partially exempt from going through all the stages of the environment clearance process.

368 Manju Menon and Kanchi Kohli

option had been severely criticised for over a decade.20 Another regressive practice that has also been institutionalised is the lack of public access to the final EIA report on the basis of which the clearance decision is taken. Quite interestingly, this was one of the critical points of debate at the National Environment Appellate Authority , where many of the environment clearances granted to river valley projects have been challenged. For instance, as part of the ongoing case against the clearance of the Pala Maneri Hydroelectric project, the petitioners have brought to light severe discrepancies in the EIA report through a detailed critique. The project is to be constructed in Uttarakhand State by the Uttaranchal Jal Vidyut Nigam Ltd on the River Bhagirathi, which is one of the tributaries of the River Ganga. The petitioners have pointed out that the EIA report shared during the public hearing was extremely inadequate and incomplete. In fact, during the course of the hearing it was realised that the clearance was in fact granted on a revised EIA report, which highlights many more impacts and project details than the one available at the public hearing. There are also factual inaccuracies in terms of the details of villages, persons interviewed as well as where the project power house will be located.21 With the new EIA notification, the project proponents can justifiably say that such conclusions are true only of the draft EIA report available to the impacted persons at the time of the public hearing, and was rectified thereafter in the inaccessible final EIA report. Till 2006, it was an occurrence that could be challenged legally, now the law permits it. Box 14.1 Failure of EIAs Environmental impact assessments still frequently fail to influence decision-making. EIA ‘consists mostly of measures to compensate or mitigate the planned impacts and render them acceptable when the decision to proceed has already been taken’. ‘Most dam proponents see an EIA as an administrative hurdle to be cleared, or a requirement to secure funding.’ Often ‘huge political, technical and financial investment’ has been made before the EIA is even launched. Source: WCD. 2000. Dams and Development—A New Framework for Decision-making. South Africa: EarthScan.

Forest Clearance (FC) Process Whenever the construction of a project, including hydropower/river valley projects requires the diversion of forestland for non-forest use, it attracts the provisions of the Forest (Conservation) Act, 1980 (FCA). Section 2 of the Act 20 Kohli and Menon, ‘Eleven Years of the Environment Impact Assessment Notification, 1994’. 21 Ritwick Dutta, Advocate, Supreme Court of India, personal communication.

Environmental Decision-making in India 369

relates to the restriction on the dereservation of forests or use of forestland for non-forest purposes. This implies that no State Government can change the land use or official status of a forestland without the permission of the MoEF. This also includes leasing out forestland to private persons and the felling of trees.22 It is the Forest Conservation Rules, 2003 which clearly specify the process of seeking forest clearance. The Rules say that every user agency that wants to use forestland for non-forest purposes (including dams, mining, industry, infrastructure, etc.) needs to make a proposal through a form, details of which are annexed to the Rules. There are separate forms for first-time approval and renewal. This form is to be submitted to the concerned nodal officer authorised by the State Government, along with the requisite information and documents, complete in all respects, well in advance of taking up any non-forest activity on the forestland. Once the State Government is satisfied, the proposals which require prior approval of the Central Government, based on Section 2 of the Act, are sent to the MoEF. The FC process also envisages the role of a Forest Advisory Committee (FAC) before the grant of clearance. The MoEF refers every proposal with complete documents and site inspection report (wherever required) to the FAC. The committee takes a view based on the following parameters: whether the forestland proposed is part of a nature reserve, national park wildlife sanctuary, biosphere reserve or forms part of the habitat of any endangered or threatened species of flora and fauna or of an area lying in a severely eroded catchment; whether the use of any forestland is for agricultural purposes or for the rehabilitation of persons displaced from their residences by reason of any river valley or hydro-electric project; whether all feasible alternatives have been considered by the State Government or the other authority and that the required area is the minimum needed for the purpose; and whether the State Government or the other authority undertakes to provide at its cost the acquisition of land of an equivalent area and afforestation. The FAC based on these facts advises the MoEF on the grant of clearance, and can also suggest any conditions or restrictions on the use of any forestland for any non-forest purpose, which in its opinion would minimise the adverse environmental impact. 22

Government of India. 1980. Forest (Conservation) Act, 1980.

370 Manju Menon and Kanchi Kohli

There is very little scope for public access to information or public participation built into the FC process. The grant of FC does not necessarily depend on an impact assessment report. There is also limited space to assess some social and environment impacts of the loss of forestland at the FAC level. In India, most potential river valley/hydropower projects clearly involve the diversion of forestland. For instance, the Dandeli Mini Hydel project, which was granted environment clearance based on an extremely inadequate EIA report has not been able to start construction, as the MoEF rejected the forest clearance twice, in June 2006 and in October 2006.23 Till 12 December 1996, the Act applied only to officially recognised and recorded forestlands like reserve forests, protected forests, and so on. It was on this date when a landmark order was passed in the T.N. Godavarman Thirumulkpad v. Union of India and Environmental Awareness Forum, Jammu and Kashmir v. State of Jammu and Kashmir. The Supreme Court of India reinterpreted the Forest (Conservation) Act, 1980, and included within its scope not only forests as mentioned in government records, but also all areas that satisfy the dictionary meaning of the term ‘forest’, irrespective of the nature of ownership and classification. The case is today popularly known as the Godavarman case and is still being heard after a decade. Since 2002, cases on the violation of the FCA are being heard by a fivemember Central Empowered Committee (CEC), which is a monitoring body constituted by the Supreme Court.24 The CEC’s broad task is to monitor and ensure the compliance of the orders of the Supreme Court concerning forests and wildlife, and also the implementation of the FCA. One of the cases that have been filed before the CEC relates to seeking direction against the National Hydroelectric Power Corporation (NHPC) for violating the FCA in the construction of the Teesta V Hydro Electric Project in Sikkim. The charges made by the state forest department include dumping muck into the River Teesta.25 Another instance where the FCA violation has been pointed out in a dam project is by the Bombay Natural History Society (BNHS). A threat to an important wildlife habitat, the construction on the Human River Project, Chandrapur, Maharashtra, was started without procuring FC.26 The project, which is a major irrigation project to be built across the Human River (a tributary of Andhari River) in Wainganga/Godavari Basin, involves the diversion of 2906.26 ha of forestland for non-forest use. 23

ESG, ‘Forest Clearance for Dandeli Dam Rejected Once Again by GOI’, Press Release. Central Empowered Committee. Notification dated 3 March 2002, File No. 1-1/CEC/ SC/2002. 25 Menon and Vagholikar. ‘Violating the Teesta’. 26 Dutta and Kohli (eds). ‘Proposed Human River Project, Chandrapur’. 24

Environmental Decision-making in India 371

Clearances in Case of Involvement of Protected Areas (PAs) The construction of dam projects may involve the use of areas designated as national parks and wildlife sanctuaries under the Wild Life Protection Act (WLPA), 1972. In these cases, the project is referred to the National Board for Wildlife (NBWL) and its Standing Committee for approval as per Section 29 of the WLPA. This is so that the area of the PA that is to be submerged is denotified. As envisaged in the WLPA, the function of the NBWL is to promote the conservation and development of wildlife and forests and take necessary measures for the same, which include framing policies; advising the MoEF and state governments; making recommendations for setting up, management and restriction of activities in a PA; carrying out or asking for impact assessments for projects and activities on wildlife or its habitat and finally preparing a status report every two months.27 Several projects like the Lower Subansiri (Arunachal Pradesh), Renuka (Himachal Pradesh) and Durgawati (Bihar) projects, amongst many others, have been granted clearance by the Standing Committee of the NBWL. In 2003 the Indian Board for Wildlife (IBWL), set up in 1952 as the national advisory body on wildlife matters, was converted into the NBWL under the amended Wildlife (Protection) Act, 1972. As of December 2006, the NBWL and its Standing Committee had completed their tenures and were to be re-constituted. As in the case of the FC process, there is nothing in the NBWL process that mandates it to be a participatory and transparent process. Their recommendations are based on project reports, comments from the State Government, and discretionary site inspection by one or more members of the Standing Committee. A very interesting case came up before the CEC relating to the Renuka Hydro-electric project, as it involved the issue of the diversion of 49 ha of forestland falling in the Renuka sanctuary in Himachal Pradesh. The project was conceived in 1985 to address the water needs of the city of Delhi. The project was granted clearance only after the diversion of the sanctuary was cleared by the NBWL with 10 conditions on 16 April 2005. One of the conditions of the NBWL clearance was that all the reserved forest and protected forest areas near the project should be declared a wildlife sanctuary of not less than 20 sq. km. The State Government after procuring the clearance sought the modification of this condition by approaching the CEC, as it felt that it could not be fulfilled. After considerable debate, a view was taken at a 27 MoEF. ‘Notification Number: F. No. 6–112003 WL-I’, Ministry of Environment and Forests.

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CEC hearing in January 2006 that neither the CEC nor the MoEF can modify the conditions laid out by the NBWL. Therefore if a modification is required, the State Government would need to approach the NBWL again.28

Impacts Not Considered while Granting Clearances Despite the assessment procedures and levels of clearance required for river valley/hydropower projects, many potential impacts of such projects are not duly considered before the grant of clearances. Some of the following subjects are either not assessed or inadequately dealt with in clearance procedures. These include:

Downstream Impacts When dam/hydropower projects are constructed, the natural flow of the river is disrupted. In the case of large storage dams, the diurnal and seasonal flows are altered based on electricity generation. In the case of run of the river projects, the river course is diverted for several kilometres. Therefore communities living downstream of projects and dependent on the river are affected if the water flow is altered. For instance, one of the justifications for the diversion of the west-flowing Mahadayi (Mandovi, once it enters Goa) river to the east-flowing Malaprabha River in north Karnataka was that the water levels in the Malaprabha River had substantially gone down and was not meeting the requirements of either the drinking water of Belgaum city or the agricultural requirements.29 The downstream populations especially in Goa have done much to resist this plan as it will result in serious losses for them. Mandovi forms a lifeline for Goa’s fisheries and navigation.30 Downstream impacts are even more critical in the Himalayan and other mountain regions where a hydropower project boom is being envisaged in the coming decades. An article by Vagholikar and Ahmed on the Lower Subansiri project (Arunachal Pradesh) quotes Bikul Goswami, an aquaculturist and amateur naturalist based in north Lakhimpur in Assam and associated with the group Green Heritage: 28

Dutta and Kohli (eds), ‘Highlights of the CEC Hearing on 10th January 2006’. Kohli, ‘Fight for Water’. 30 Mahadayi Bachao Andolan, ‘Petition to the International Community regarding the Ecologically Destructive Project of Interbasin Transfer of Water by Karnataka Government’. 29

Environmental Decision-making in India 373 The Subansiri is one of the most crucial rivers in India for the long-term conservation of the golden mahseer. The dam will permanently obstruct the migration of the three mahseer species found here, including the golden mahseer. These species undertake upstream migration during the summer and monsoon months to their feeding and breeding grounds. The proposed dam will have detrimental impacts on the riverine and beel (wetlands) fisheries downstream as the water flow regime will be affected. The seasonal inundation of the beels by the river, which helps in the nutrient cycle of the local aquatic ecosystem, will be interrupted.31

It needs to be noted that this National HydroElectric Power Corporation project was cleared despite resistance and has a submergence area of 3,436 ha, which includes 42 ha of the Tale Valley sanctuary.32

Dam Induced Risks Downstream populations are also susceptible to massive dam-related and induced risks. In August 2006, several parts of Maharashtra, Gujarat, Madhya Pradesh and other parts of the country were flooded for days and citizens were completely caught unawares. It has been strongly argued that the reasons behind this were the mismanagement and negligent operations of large reservoirs on the Tapi, Narmada, Krishna, Godavari, Mahi and Sabarmati rivers. Ironically, these dams were expected to reduce floods. It has been observed that the dams on these rivers had substantial amounts of water just before the onset of the monsoon, implying that it was not used for irrigation, water supply, power generation, etc. It also implied that the reservoirs had far less capacity to absorb monsoon flows, and only the release of water from the dams could have saved the dams from being destroyed. Therefore, there was a sudden release of large quantities of water from these dams, which led to a disastrous situation in the downstream areas.33 All the projects proposed to come up in the Himalayan region are very inadequately assessed for the impacts of climate change, which result in Glacial Lake Outburst Floods (GLOFs), or of seismicity that make hydel installations on rivers extremely risk-prone and put downstream communities under severe threat.34

31

Vagholikar and Ahmed, ‘Tracking a Hydel Project’. Ibid. 33 SANDRP, ‘Criminal Negligence of Dam Operators Lead to Man Made Disaster’. 34 Hasnain, ‘Report on Himalayan Glaciology’; Menon et al., ‘Large Dams in North East India’ and Khadka, ‘Himalayan Melting Risk Surveyed’. 32

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Keeping all of the discussions in mind, it is extremely critical that downstream impacts of dams be assessed before granting any clearance to the project. One of the conditions laid down by the Adi community living downstream of the proposed Middle Siang Project was that they all be insured against downstream impacts, at Project cost.35 Box 14.2 Questions beyond Environment and Forest Clearances The issue of environment and forest clearance of hydropower projects goes beyond whether legal procedures have been followed so that projects can be cleared. The prescribed legal processes themselves throw up questions of transparency, accountability and decision-making. When a mandatory public hearing is not conducted, it is clearly a matter of procedural violation. But there are cases where it has been conducted in ways that contradict the spirit of participation and democratic decision-making. In the case of the Indira Sagar Major Irrigation (Polavaram) Project, Andhra Pradesh, the project proponent conducted only one public hearing in Andhra Pradesh though tribal communities from the States of Chhattisgarh and Orissa will also be affected. When this was challenged before the NEAA, the project proponent’s response was an interpretation of the EIA notification, according to which only one public hearing needs to be conducted. Clearly they did not feel the need to inform and seek the opinions of all those people that the project was going to impact. Quite interestingly, a question raised by members of the authority of the NEAA was whether something critical would have come up at the hearings in Chhattisgarh and Orissa, which would have had a bearing on the environment clearance of the project. The applicant who had raised his concern was expected to answer this at the hearing. In the politically sensitive areas of North-East India and central India, public hearings are often conducted under police or army surveillance. In November 2006, two public hearings related to the Tipaimukh Dam in Manipur were conducted in an extremely restrictive manner. A protest letter issued subsequent to the hearing highlights that the public hearing flouted a democratic process and accused it of: … lacking transparency, undermining accountability and unwillingness to listen to the woes and possible implications of the project to the survival and livelihood issues of the people of Manipur and other affected peoples. The secretive meeting and the denial of participation of affected villagers while entertaining handpicked villagers in the two hearings also constitutes an attempt to drive a wedge among the people of Manipur to create disunity, misunderstanding and conflict. The lawful denial of the complete EIA report, restrictions on participation at public hearings, provisions for cancellation of public hearings under the new EIA notification, 2006, are clearly an indication that the legal framework itself creates impediments to democratic decision-making. Source: Authors.

35 Anonymous, ‘Minutes of the Environment Public Hearing on Middle Siang (Siyom) Project’. 36 Citizen’s Concern for Dams and Development, ‘Letter to the Prime Minister of India’.

Environmental Decision-making in India 375

Loss of Shifting Cultivation Land The assessment of the impacts of dam projects on farming lands suffers from a ‘plains’ bias. This is evident from the manner in which loss of agricultural lands is estimated and compensations worked out for project-affected families in the North-East (NE) region. Shifting cultivation is practised in large tracts of land in the NE States. It plays a critical role in the livelihoods of people and in maintaining agro-biodiversity. The areas under this form of agriculture are also considered to be regenerating forests in areas where jhum cycles are relatively long. The landholding systems in these areas are extremely complex unlike in most other regions where land is privately owned in small blocks. Although there is increasing documentation of the uniqueness and benefits of this farming practice (some scientists even call it agro-forestry), in India, it remains a highly demonised method of agriculture.37 Many project documents of dams in NE India emphasise that parts of the submergence area are in any case ‘degraded’, as local communities practice jhumming (shifting cultivation) on these lands. However, impact assessment documents or decision-making processes for these projects do not demonstrate any understanding of these intricacies. Project plans only envisage the taking over of these swathes of land with very simplistic compensation packages for these communities.38 Two public hearings (mandatory as per the EIA notification) for the Tipaimukh Dam were conducted in Churachandpur and Tamenglong districts of Manipur on 17 and 22 November 2006, under heavy military deployment. The project is being constructed by the North Eastern Electric Power Corporation (NEEPCO). The public hearings were carried out despite the local people’s demand for the revocation of the Memorandum of Understanding for the project because of its critical social and environmental impacts. The proposed Tipaimukh Dam will be constructed 500 m downstream from the confluence of the Barak and the Tuivai rivers in the southwestern corner of the State. One of the impacts highlighted by the people of Manipur was the loss of shifting cultivation lands, which the EIA report fails to recognise.39 As of December 2006, the project had not been granted

37

Darlong, ‘To Jhum or Not To Jhum’; Chhauchhuak, ‘Jhum Works’. Vagholikar and Ahmed, ‘Tracking a Hydel Project’; Choudhury and Menon, ‘Kameng Underestimated. Large Dams in North East India’. 39 Citizen’s Concern for Dams and Development, Indigenous Peoples of Manipur Call for Scrapping the Tipaimukh High Dam Project. 38

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environment clearance. However, the project has the strong backing of the Prime Minister’s Office (PMO). In the case of other cleared projects in the NE region such as Kameng, Lower Subansiri and Middle Siang (Arunachal Pradesh), and Tuivai and Bairabi (Mizoram), large tracts of shifting cultivation lands have been acquired without any description of the potential landscape level changes that could take place around these areas, as communities may be forced to bring new areas under shifting cultivation for their survival. The compensation measures do not comply with the community-based tenurial systems and may forcefully ‘sedentarise’ a dynamic upland farming practice.

Impacts on Biodiversity and Wildlife Habitats Most dam projects are located within forest and wildlife areas, and areas of high biodiversity value. In an Open Letter to the MoEF in 2004, the signatories highlighted that in several instances environment clearances are granted despite extremely poor biodiversity and wildlife impact studies.40 The letter illustrates the example of the 2,000 MW Lower Subansiri Hydro-Electric Project (Assam and Arunchal Pradesh) being constructed by the National Hydro Power Corporation, which will submerge almost 4,000 ha of biodiversity rich forests in the eastern Himalayas, including a portion of the Tale Valley sanctuary. An important elephant corridor will be obstructed by the project site; rich fish diversity of the Subansiri River including the Golden Mahseer will be impacted and the habitat of the River Dolphin in downstream areas will be lost. Most of these impacts have been poorly studied in the EIA process. This was confirmed by an expert committee of the then Indian Board for Wildlife. In the case of the Kameng Project in Arunachal Pradesh, the bird diversity in the project area has been grossly underestimated though there are studies to show that adjoining areas such as the Pakhui (Pakke) Wild Life Sanctuary boast of over 200 species of birds.41 The EIA reports for several other projects such as Human (Maharashtra), Athirappally (Kerala), Tipaimukh (Manipur) and Karcham Wangtoo (Himachal Pradesh) contain fabricated or inadequate biodiversity and wildlife assessments, and little information on the impacts.

40 Open Letter, ‘Why is the Government Continuing to “Clear” Critical Wildlife Habitats?’ 41 Choudhury and Menon, ‘Kameng Underestimated’.

Environmental Decision-making in India 377

Impacts on the Catchment Area Another aspect which is missing from the EIA reports is how the construction of a dam can contribute to the degradation of its catchment. Extraction of cooking fuel by the labour force and improved access to the forests, both during and after dam construction, degrades catchment forests. Singh highlights that the construction of roads, other infrastructure, or simply the enhanced activities cause degradation in areas that would otherwise be relatively untouched. He adds that it also: ... results in greater silt flows into the reservoir, thereby reducing the life of the dam and also posing a threat to its safety and to its equipment and machinery. Degraded catchments also result in erratic water flows resulting not only in dry season shortages but also a surplus during heavy rainfall and cloudbursts, threatening the safety of the dam. The degradation of the catchments also adversely affects the biodiversity value and other ecological functions of the forests upstream. After construction, where forests are submerged under the reservoir, the pressures on the remaining forests, mostly in the catchments, go up significantly. Also, where catchments get degraded, the local community’s access to biomass is adversely affected. This often results in further degradation. The common prescription to avoid the negative impacts of dams on the catchment and of degraded catchments on dams is the carrying out Catchment Area Treatment (CAT). However, there are many problems with the current system of CAT as the major activity under CAT is extensive plantation and regeneration of vegetative cover. In order to ensure that trees survive and regeneration takes place, the factors that have led to the degradation of the catchment in the first place need to be minimised. For this to be successful, local communities have to be involved. However, this almost never happens.42 Consequently, even where treated, the catchments rapidly deteriorate.43

Impact on Cultural and Demographic Changes In the last several decades, hydropower projects have been proposed or have come up in areas that are home to tribal and indigenous communities distinguished by their unique cultures and ways of living. The construction of dam projects, which are typically long gestation ones, involves the entry of labour from other parts of the country into areas that would otherwise 42 The only known example of Community based Catchment Area Treatment that was laid down in the clearance of a project is in the Doyang Hydroelectric project in Nagaland. 43 Singh, ‘Social and Environmental Impacts of Large Dams in India’.

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be undisturbed. These labour communities remain at the construction sites for years when construction is on, and in several instances for much longer. There are instances of sections of these populations staying on, marrying and/or bearing children with local people, seeking other jobs in the area and gradually increasing in numbers. In States like Sikkim, influx of outside labour for development projects has effected significant demographic changes.44 Local communities have in several instances strongly opposed projects on grounds of spiritual or cultural erosion and security hazards for the local womenfolk. In the 1990s, plans to construct a run-of-the-river project on the River Rathong Chu, which is considered sacred by the Sikkimese Buddhists, created a stir in Sikkim. In July 1994, the Association of Buddhist monks of Sikkim submitted a memorandum to the Chief Minister of the State against the project. By then, the work on the approach roads had begun. The Concerned Citizens of Sikkim (CCS) and the Sangha (a monk body) of Sikkim alleged that the river revered by them was under threat. The CCS demanded that the project be shelved forever, stating that the environmental and social costs were far greater than the promised economic gains. They brought to the attention of the State and Central Governments the fact that the project would defile their sacred landscape and result in the loss of the treasures of Guru Padmasambava, which were located all over the landscape.45 In the later years, similar concerns about cultural, ethnic and demographic impacts were raised with respect to the Teesta V and III hydel projects in Sikkim. Giving the concern due importance, one of the NGO members of the expert committee on river valley projects strongly recommended that a study on the ethnographic impacts of the Teesta V Project be carried out before a clearance decision on the project was taken. Unfortunately, the MoEF granted clearance to the project before this study was even completed.46 A 192 MW hydro-electric project was proposed to be built on the Allain and Duhangan tributaries of the Beas River in Kullu, Himachal Pradesh, by the Rajasthan Spinning and Weaving Mills Limited (RSWML). During a meeting with the women of Jagathsukh village in the area in May 2004 to garner opinions about the proposed project, it was highlighted that the construction and labour activity in the area was likely to restrict the freedom 44 Department of Forest, Environment and Wildlife, Government of Sikkim, Sikkim State Biodiversity Strategy and Action Plan. 45 Department of Forest, Environment and Wildlife, Government of Sikkim, Rathong Chu Sub State Site Biodiversity Strategy and Action Plan; Menon, ‘Saved—The Story of Rathong Chu’. 46 Menon and Vagholikar, ‘Environmental and Social Impacts of Teesta V Hydroelectric Project, Sikkim’.

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of movement of women into the forest and pastureland, which they regularly access. The restriction was both in terms of their personal security as well as the blockage of access due to road construction. The women went regularly into the forest to collect herbs, grass, fodder and to graze cattle. They recounted incidents in the other hydro-electric projects in the State where, despite assurances, the safety of the women has been seriously affected.47

Impacts of Conservation Offsets In the last few years, one interesting area of debate has been that of conservation offsets in the grants of clearances to projects. With increasing environmental consciousness and understanding of the impacts of projects on the physical environment such as forests and wildlife, there are a number of projects that have been granted clearance despite their impacts but under the condition that their impacts be compensated for or balanced by the creation of similar ecosystems in other areas. Therefore, if PAs or forest areas are to be submerged, then newer areas are declared as PAs or brought under the forest department to offset the loss. While wildlife enthusiasts and conventional conservationists have been satisfied with these offsets, others have been opposed to such impact mitigation strategies. Conservationists who have rejected or criticised the exclusionary system of forest and wildlife conservation are unhappy about the fact that these projects facilitate the creation of more PAs and reserve forests in a non-scientific and indiscriminate manner. They also agree with the vociferous opposition of human rights groups, as these offsets result in the curtailing of traditional and customary rights of marginalised communities such as tribals and other forest dwellers. Conservation offsets have resulted in a loss of livelihoods as they bring more lands owned by communities or the government which are under uses such as agriculture within the ambit of the forest department. Catchment areas are mandatorily taken up for raising plantations and increasing forest cover, and jhumming and other local activities seen as ‘harmful’ to the project are prohibited. The consolidated social impacts of all of these measures do not form part of impact assessment studies as these conditions are laid at the time of final clearance. For instance, the Lower Subansiri Project involved the diversion and denotification of the Tale Valley sanctuary. While granting its approval for 47

Kalpavriksh, ‘Allain-Duhangan Hydro-Electric Project’.

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this, the IBWL laid down some conditions, one of which was that the entire catchment of the Subansiri River above this project was to be declared a PA. This condition was imposed, at best with the intention that this project not be constructed due to the complete impossibility of compliance of this condition, and at worst to make impossible the two projects proposed upstream of Lower Subansiri. However, the local communities voiced their anger as this condition meant the project would impact them doubly, firstly, due to the project itself and secondly, due to the displacement from the area that was to be declared a PA.48 The most recent case of conservation offset was the report of the Central Empowered Committee (CEC) of the Supreme Court in the case regarding the Indira Sagar (Polavaram) Major Irrigation project. The report of the CEC while stating that the requisite FC needs to be procured for the project recommended that about 500 sq. kms of the reserved forest area with minimum habitation adjoining the sanctuary in the east Godavari District in Andhra Pradesh be added to the existing sanctuary, and be notified as a National Park.49 Reacting to this, Sarin writes, … a huge area will go for ‘compensatory afforestation’; a large reserve forest area will be added to the wildlife sanctuary and the whole area converted into a national park after throwing out some additional ‘scattered’ villages, and it is unclear which area will be used for R&R. In sum, the villagers will not only get displaced but will lose access to the additional forest area converted into a national park and people in the region will lose access to the area allocated for R&R, thereby fuelling resentment against the displaced rehabilitated there.50

Key Gaps in the Clearance of Hydropower Projects The debate around river valley projects has been in focus for at least the last three decades. During this period, several recommendations have been made with reference to the impact assessment and clearance procedures. Among these, the ideas that will result in a significant improvement in environmental decision-making, if implemented, are the following. 48

Bamang Anthony, personal communication. CEC, ‘Report of the Central Empowered Committee in Application Nos. 839, 875 and 944’. 50 Sarin, ‘Mail on Forest Rights’, an email by Madhu Sarin on a list serve called forestrights @yahoogroups.com 49

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EIA Regime to be Legislated by a Statute Appeals from clearances accorded by the Ministry of Environment and Forests are subject to Parliamentary statute, namely, the National Environmental Appellate Authority Act, 1997, but substantive issues arising from the EIA process are covered only by a subordinate/delegated legislation. This makes it possible for the Ministry of Environment and Forests to undermine procedural clauses, in the absence of statutary guarantees for public access and participation. Further, the scope of the environmental clearance process is vast and has a significant bearing in ensuring sound environmental decision-making in the country. Therefore, it must be ensured that the EIA process is under the rubric of a statute on public information and access, or as mandatory rules under the Environment (Protection) Act, 1986.51

Need for Sectoral Assessments One of the biggest criticisms of the environment, forest and wildlife clearance processes is that it comes much too late in the overall decision-making process of the project. By the time these clearance processes begin, land acquisition has taken place partially or fully, investment deals are closed, tenders are floated for preliminary project work and a Memoranda of Understanding are signed between relevant parties, including the State Governments. Secondly, these clearance procedures are undertaken for one project at a time. It has been argued strongly that all departments and ministries should conduct policylevel and sector-wide Strategic Impact Assessments prior to undertaking individual projects. In the case of hydropower, it is the Ministry of Power and Ministry of Water Resources that would need to step forward and take this suggestion on board. This is critical to judging the impacts of macroeconomic hydropower development policies, schemes and programmes. In the absence of this, environmental decision-making for projects is secondary in the entire planning process and this renders appropriate decision-making impossible.

51

Menon, ‘Note for the Task Force on EIAs and Governance’.

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Least Cost Options Strategic Impact Assessments undertaken for macro policies, plans and schemes will allow the possibility of quantifying several options for meeting current and projected demands and identifying the ones with the least environmental, social and economic costs. It will also make possible methods such as demand-side management and enhancing the capacities of existing infrastructure, so that the need for new projects is kept to a minimum. A study by Prayas Energy Group concluded that the need for new hydel installations can be brought down significantly by a series of methods such as the use of more efficient lighting technology and managing the power demand.52 Even when individual projects are to be decided upon, the options with the least environmental and social impacts must be chosen. Most decisions are based on an economic cost–benefit analysis after assuming that all environmental services can be priced. But environmental decision-making processes need to rely extensively on the qualitative assessments of impacts as they play out in socially and politically dynamic contexts. In reality, it is impossible to mitigate environmental and social impacts through marketdriven management and mitigation measures.

Need for Regional Assessments: Carrying Capacity Studies/River Basin Assessments All rivers of the country have a number of hydropower projects planned on their entire river basin. If one takes the examples of River Bhagirathi in Uttarakhand or River Teesta in Sikkim and West Bengal, it appears that almost the entire river will flow inside tunnels after completion of all the runof-the-river projects proposed to be built on them. However, for those among these projects that have been granted environment and forest clearance, the decisions have been made without any consideration of their cumulative impacts. What is worse is that rejection of clearance to the proposed projects is likely to affect the efficiency and generating capacity of the existing projects on these rivers, as they are usually designed as ‘cascade projects’. For example, the flood moderation component of the cleared Lower Subansiri Project,

52 Prayas Energy Group, ‘People’s Power: Demand-Side Management (DSM) in the Electricity Sector’.

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which is projected as one of its main benefits, will be significantly reduced if construction of the two proposed projects upstream is not allowed.53 The issue of the carrying capacities of river systems was deliberated during the clearance process of the Teesta V Project. Subsequently, the clearance letter for the project stated, ‘No other project in Sikkim will be considered for environmental clearance till the carrying capacity study is completed’.54 The need for this was also emphasised during the site visit by the Expert Committee on River Valley and Hydro-electric projects in June 1998. They noted that the Teesta V Project was part of a larger scheme encompassing more than one district in Sikkim, and that several other phases of the project were also being planned. They felt therefore that a detailed carrying capacity study of these districts was necessary.55 The Carrying Capacity Study of the Teesta River Basin was commissioned by the MoEF to the Centre for Interdisciplinary Studies in Mountain and Hill Environment (CISMHE) in the year 2001–02. However, the MoEF violated the condition imposed by itself by granting clearance to several projects, including the Teesta III in 2006, prior to the completion of the Carrying Capacity Study.

Need to Coordinate Environment, Forest and Wildlife Related Clearances As mentioned earlier, the forest and environment clearance processes often go on in parallel and independently of each other. Very often after the grant of environment clearance, the FC process is pending, and project proponents, assuming that the forest clearance will naturally follow, initiate construction work. A clear example of this is the Lower Subansiri Hydro-electric Project (Arunachal Pradesh), where, during a field visit in August 2002, it was observed that despite no FC in place, construction work had been taken up at the project headquarters by the National Hydro Power Corporation. 56 In most cases, the EIA report only mentions the forestland required by the project area without really stating the possible social and ecological impacts of such acquisition. At the same time, the FC process does not mandate a 53

Anonymous, ‘Lower Subansiri Project Lacks Flood Moderation’. MoEF, ‘Letter No.J-12011/198-IA-I from Ministry of Environment and Forests granting environmental clearance to Teesta Hydro Electric Project Stage V’. 55 Menon and Vagholikar, ‘Environmental and Social Impacts of Teesta V Hydroelectric Project, Sikkim’. 56 Vagholikar, ‘Damming Our Wildlife’. 54

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scrutiny of the EIA report to review the impacts of the diversion of forestland. These two processes, which could have been linked to each other to facilitate sound and holistic decision-making, remain disconnected. This critical gap needs to be urgently addressed. Any clearance (forest, environment, or PA related) should be granted for a period not exceeding two years. All clearances must lapse at the end of the period unless renewed by the MoEF. At the same time, no clearance should be renewed unless the project proponents can establish that they have complied with the conditions of clearance and are in compliance with all environmental requirements. In the case of environment clearances, such renewals should not require a fresh EIA but only an establishment of compliance by the proponent, regular site visits by concerned authorities and a mandatory public hearing in the project-affected area. There should be scope for a review of clearances based on the data on compliance with conditions. The environmental impacts of projects are often noticed many years after their initiation, and often the effectiveness of preventive and mitigating measures do not become obvious till many years after their application. Therefore, it is essential to introduce the idea of a retrospective EIA of projects, 10 or more years after their completion. This will give us a better understanding of how effective our environmental clearance and monitoring system is, and what improvements, if any, are required.57

Violations of Procedures to be Addressed Seriously Violations of laws governing environment and forest clearance procedures or of the conditions laid down during clearances are a common phenomenon. Violations of the mandatory clearance procedures in several projects are increasingly being challenged before High Courts, the National Environment Appellate Authority (set up in 1997 for the redressal of grievances related to environment clearances), and the Central Empowered Committee. These projects include Athirappally (Kerala), Lohari Nag Pala and Pala Maneri projects in Uttaranchal; Indira Sagar (Polavaram) project, Andhra Pradesh; Teesta V and Teesta III projects in Sikkim, and so on. These cases are a shameful recognition of the deliberate and repeated violation of the clearance procedures by project proponents. The violations are encouraged by the simple fact that until today, not a single project’s clearance has been 57 Planning Commission, ‘Report of the Task Force on Governance, Transparency, Participation’.

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rejected/revoked for violation of the spirit and word of the legal procedures. In most such cases, the economic importance of the project is upheld and the violations overlooked. In some cases, project proponents are asked to comply with procedures that were violated.58 The EIA notification, 1994, had a very significant clause stating that ‘Submission of incomplete data or plans for the second time would itself be a sufficient reason for the Impact Assessment Agency to reject the case summarily’, and that ‘Concealing factual data or submission of false, misleading data/reports, decisions or recommendations would lead to the project being rejected’. During the 12 years of the implementation of the notification, this clause has remained unused. So it is rather easy to understand why project authorities continue to provide inadequate and inaccurate reports of project impacts. Clearances have been repeatedly granted on the basis of incomplete and false data.59 The EIA notification 2006 has similar provisions.

Constitution of a National Environment Impact Assessment Authority (NEIAA) The GoI should immediately constitute a National Environment Impact Assessment Authority (NEIAA), headed by a retired Supreme Court Judge and comprising scientists/academics, professionals working in the relevant fields and NGO/community representatives. The NEIAA should be a statutory body independent of the government, and its Chairman and members should be appointed by a Committee comprising the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India.60 The NEIAA should also be given the power to ask for the setting up and proper administration of a system for the accreditation of consultants authorised to prepare environmental impact statements and conduct related investigations and surveys. This is important to ensure that consultants who do EIAs should be bound by a stringent set of norms to ensure the quality of their work. The NEIAA should also be granted the power to disqualify for a

58

Anonymous, Order of the Kerala High Court in the matter of Ravi, S.P and Ors v. State of Kerala and Ors. O.P. No. 3581 of 2001; Anonymous, Judgement in the matter of Athirappally Grama Panchayat v. Union of India and Ors. W.P.(C) 9542, 11254 and 260763 of 2005. 59 Kohli and Menon, ‘Eleven Years of Environmental Impact Assessment’. 60 Planning Commission, ‘Report of the Task Force on Governance, Transparency, Participation, and Environmental Impact Assessment in the Environment and Forest Sector’.

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specified period individual consultants or consultancy firms for professional misconduct.61 Any EIA consultant organisation registration process should have as its basis the public testimonies of the experiences of project-affected communities. The MoEF should make provision for the mandatory open peer review of EIA reports before accepting them for consideration and accordingly assess the quality of the report based on this review.62

Stringent Post Clearance Monitoring The conditions under which clearances are granted are also flouted widely. This again is due to the very lenient manner in which non-compliance is dealt with by the MoEF and State regulatory bodies. Until today, even a single project clearance has not been withdrawn on account of non-compliance. At best, work has been temporarily stopped as in the case of the Maheshwar Project (Madhya Pradesh), where work was stopped by the MoEF on 9 June 2006 on grounds of non-implementation of a rehabilitation plan.63 A 1995 study revealed that over 90 per cent of river valley projects were not complying with their environment clearance conditions. No action has been known to be taken against these projects despite the strict recommendations of the then Expert Appraisal Committee.64 In the case of the Teesta V Project, the violation of FC conditions were knowingly overlooked by the State and the Centre in the initial period, after which a case was filed against them and financial compensation demanded. This was hardly a deterrent to the violating company, the NHPC, and they continued with ‘business as usual’.65 Today, the NHPC, the State Government, MoEF and a Sikkimese NGO are battling the case before the Central Empowered Committee. The monitoring and compliance of projects has also not been a subject of examination for public interest groups and communities as compared to the issue of grant of clearance to projects. An active monitoring of citizens will surely go a long way in improving compliance with clearance conditions. Clearance laws will need to be appropriately amended to create space for this role.

61

Ibid. Letter to Secretary, MoEF, regarding Accreditation of EIA Consultants through the QCI initiative, April 2007. 63 NBA, ‘Environment Ministry Orders Stoppage of Work on Maheshwar Dam’. 64 Kothari, ‘We Should Have Gone to Court’. 65 Menon and Vagholikar, ‘Violating the Teesta’. 62

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References Anonymous. 2004. ‘Minutes of the Environment Public Hearing on Middle Siang (Siyom) Project’, 9 June, Aalo (Along). ———. 2005. ‘Lower Subansiri Project Lacks Flood Moderation’, The Assam Tribune, 27 September. Available online at http://www.assamtribune.com/sep2705/at07.html (last accessed on 18 January 2007). CEC. 2006. ‘Report of the Central Empowered Committee in Application Nos. 839, 875 and 944 filed before the CEC regarding construction of Indira Sagar Project (Polavaram Project)’, 15 November. Center for Environment, Development and Gender Empowerment (CEDGE). 2004. ‘Press Release, Aalo (Along)’, 9 June. Available online at http://puggy.symonds.net/pipermail/ india-ej/2004-June/001315.html (last accessed on 18 January 2007). Citizen’s Concern for Dams and Development (CCDD). 2006. ‘Letter to the Prime Minister of India’, 28 November. ———. 2003. Indigenous Peoples of Manipur Call for Scrapping the Tipaimukh High Dam Project. Imphal: CCDD. Chhauchhuak, L. 2004. ‘Jhum Works: Shillong Meet Declares Shifting Cultivation Environment Friendly’, Down to Earth, 15 November. Choudhury, A. and M. Menon. 2003. ‘Kameng Underestimated. Large Dams in North East India: Rivers, Forests, People and Power’, Ecologist Asia, 11(1): 71–73. Darlong, V. 2004. ‘To Jhum or Not To Jhum: Policy Perspectives on Shifting Cultivation’, The Missing Link, Guwahati. Department of Forest, Environment and Wildlife, Government of Sikkim. n.d. (a) Sikkim State Biodiversity Strategy and Action Plan. ———. n.d. (b). Rathong Chu Sub State Site Biodiversity Strategy and Action Plan. Dutta, R. and K. Kohli (eds). 2005. ‘Proposed Human River Project, Chandrapur (CEC Application 393)’, Forest Case Update, 5. ———. (eds). 2006. ‘Highlights of the CEC Hearing on 10th January 2006’, Forest Case Update, 20. ESG. 2006. ‘Forest Clearance for Dandeli Dam Rejected once again by GOI’, Press Release, 23 December, Bangalore. Hasnain, S.I. 1999. ‘Report on Himalayan Glaciology’, International Commission on Snow and Ice (ICSI), UK. Imhof, A., S. Wong and P. Bosshard. 2002. Citizen’s Guide to World Commission on Dams. Berkley: International Rivers Network. Iyer, Ramaswamy R. 2003. Water: Perspectives, Issues, Concerns. New Delhi: Sage Publications. Kalpavriksh. 2004. ‘Allain-Duhangan Hydro-Electric Project: Report of a Pre-public Hearing Focused Group Meeting at Jagatsukh Village’, 1 May, Pune. Khadka, N.S. 2006. ‘Himalayan Melting Risk Surveyed’, BBC News, 5 March. Available online at http://news.bbc.co.uk/2/hi/science/nature/4762576.stm Kohli, K. 2003. ‘Fight for Water’, The Hindu, 23 November. Kohli, K. and M. Menon. 2005. ‘Eleven Years of the Environment Impact Assessment Notification, 1994’, Kalpavriksh, Just Environment Trust, Environment Justice Initiative (HRLN).

388 Manju Menon and Kanchi Kohli Kothari, A. 1998. ‘Environmental Aspects of Large Dams in India—Problems of Planning, Implementation and Monitoring’, Submission to the World Commission on Dams Public Hearing, Bhopal. ———. 2003. ‘We Should Have Gone to Court’, Ecologist Asia, 11(1): 38–39. Mahadayi Bachao Andolan. 2006. ‘Petition to the International Community regarding the Ecologically Destructive Project of Interbasin Transfer of Water by Karnataka Government’, 19 November. Menon, M. 2003. ‘Saved—The Story of Rathong Chu. Large Dams in North East India: Rivers, Forests, People and Power’, Ecologist Asia, 11(1): 33. ———. 2005. Large Dams for Hydropower in North East India: A Dossier. New Delhi: Kalpavriksh and SANDRP. ———. 2006. ‘Note for the Task Force on EIAs and Governance, Transparency, Participation for the Environment and Forest Sector’, Eleventh Five-Year Plan process (draft), December. Menon, M. and N. Vagholikar. 2004. ‘Violating the Teesta’, The Statesman, 26 June. ———. n.d. ‘Environmental and Social Impacts of Teesta V Hydroelectric Project, Sikkim: An Investigation Report’. Menon, M., N. Vagholikar and K. Kohli (eds). 2003. ‘Large Dams in North East India: Rivers, Forests, People and Power’, Ecologist Asia, 11(1). Ministry of Power. n.d. ‘Mission 2012: Power for All’. Available online at http://powermin. nic.in/indian_electricity_scenario/power_for_all_target.htm (last accessed on 18 January 2007). Ministry of Environment and Forests (MoEF). 1999. Letter No.J-12011/198-IA-I from Ministry of Environment and Forests granting environmental clearance to Teesta Hydro Electric Project Stage V’, 19 May. ———. 2003a. ‘Notification Number: F. No. 6–112003 WL-I’, 4 November, New Delhi. ———. 2003b. ‘Wild Life (Protection) Act’, 20 January, New Delhi. ———. 2006. ‘Environment Impact Assessment Notification’, 14 September, New Delhi. Narmada Bachao Andolan (NBA). 2006. ‘Environment Ministry Orders Stoppage of Work on Maheshwar Dam’, Press Release, 12 June. Open Letter. 2004. ‘Why is the Government Continuing to “Clear” Critical Wildlife Habitats?’ Open Letter to the Prime Minister of India, 4 October. ———. 2005. ‘Why are the Expert Committees of Ministry of Environment and Forests Dominated by Ex-bureaucrats, Politicians and Engineers?’ Open Letter to the Ministry of Environment and Forests, 8 April. Planning Commission. 2006a. ‘Towards Faster and More Inclusive Growth: Draft Approach Paper for the Eleventh Five Year Plan’, 14 June 2006. Available online at http:// planningcommission.nic.in/plans/planrel/11appdrft/11app_eng.pdf (last accessed on 18 January 2007). ———. 2006b. ‘Report of the Task Force on Governance, Transparency, Participation, and Environmental Impact Assessment in the Environment and Forest Sector for the XI Five Year Plan’, December. Prayas Energy Group. 2005. ‘People’s Power: Demand-Side Management (DSM) in the Electricity Sector. Urgent Need for Regulatory Action and Utility-Driven Programs’, World Wide Fund for Nature-India, New Delhi. Sanctuary Asia. 2001. ‘Athirappally Dam Threatens Tiger and Elephant Forests’. Available online at http://www.sanctuaryasia.com/takeaction/detailcampaign.php?cid=23 (last accessed on 18 January 2007).

Environmental Decision-making in India 389 SANDRP. 2006. ‘Criminal Negligence of Dam Operators Lead to Man Made Disaster: Why did the Reservoirs Have up to 47% Water before the Monsoon?’ Press Release, 10 August, New Delhi. Sarin, M. 2006. ‘Mail on Forest Rights’, email by Madhu Sarin on a list serve called [email protected]. Singh, S. 2003. ‘Social and Environmental Impacts of Large Dams in India. Large Dams in North East India: Rivers, Forests, People and Power’, Ecologist Asia, 11(1). Sundernath, C. 2004. ‘Silent Valley: Threatened Again’. Available online at http://www. indiatogether.org/2004/jul/env-silentval.htm Vagholikar, N. 2005. ‘Damming Our Wildlife’, Sanctuary Asia, 25(1). Vagholikar, N. and F. Ahmed. 2003. ‘Tracking a Hydel Project. Large Dams in North East India: Rivers, Forests, People and Power’, Ecologist Asia, 11(1). World Commission on Dams (WCD). 2000. Dams and Development—A New Framework for Decision-making. South Africa: EarthScan.

15

The Contours of EIA in India Shyam Divan

Introduction Much as climate change, particularly global warming, has entered public discourse in recent years, likewise, heightened public awareness of domestic environmental issues in the late 1960s and early 1970s enlivened American politics. A surge of statutes were enacted by Congress to clean up the air, water and toxic wastes that poisoned the land.1 Alive to citizens’ concerns about natural resource preservation, the US Congress enacted a law requiring federal actions, including large infrastructure projects, to conform to sound environmental policies.2 The machinery to implement the new legislative directives evolved into a formal exercise to predict probable changes to the environment and to mitigate environmental harm. Today, environmental impact assessment (EIA) is routinely employed across the globe to anticipate the negative effect of large projects; to justify the enterprise from a socioecological perspective and to tailor measures to minimise the harm.3 When applied sufficiently early in the decision-making process, an EIA may assist in choosing an optimal location, or, indeed, in judging whether a project is desirable at all. At its broadest level, an EIA exercise is a facet of good governance; a tool to improve decision-making and where accompanied by an effective public 1 To name a few, the Clean Air Act of 1970; the Federal Water Pollution Control Act Amendments of 1972; the Federal Environmental Pesticides Control Act of 1972 and the Toxic Substances Control Act of 1976. 2 The National Environmental Policy Act of 1969 (NEPA). 3 Bell and McGillivray, Environmental Law, pp. 507–16 (2006); Matthews (ed.), The Encyclopaedic Dictionary of Environmental Change, p. 197.

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participation process, a means to deepen democracy and secure community participation. That is the theory. As practised in India, EIA has remained a low obstacle for the project proponent to vault over; at best, a dull instrument that helps mitigate the worst environmental excesses through a mix of bureaucratic conditionalities and an unreal expectation of corporate compliance. All of this must change, and change quickly, if we are to meet the challenges of the new century. In the third millennium b.c., the Akkadian civilisation flourished in central Mesopotamia. For centuries, the cities of Akkad, located between the banks of the Euphrates and the Tigris, bustled with commerce. And then they perished, swiftly. Amongst the theories gaining acceptance for the abrupt demise of the Akkadian civilisation is a sharp change in the precipitation pattern.4 When the rains fail one year it is a drought; a second year would test the best administered States; but successive years of scanty rainfall forced migrations from Akkad, destroyed the surplus of its granaries and eroded the foundations of its empire. In the past, civilisations that failed to adapt to changes in the environment wilted and collapsed.5 Climate change is upon us. The overwhelming consensus in the scientific community is that rising temperatures across the globe will bring about significant changes in weather patterns and planetary ecosystems.6 The ocean levels are rising; tidal patterns may alter; the Himalayan glaciers are in retreat, undermining the feed of our perennial rivers; precipitation levels are apt to change across the Indian subcontinent.7 Even without the fresh uncertainties injected by the changing global weather, marshalling water resources in the subcontinent will require great skill and vision. India’s population will swell to over 1.7 billion people around 2050;8 the demands of greater affluence and a burgeoning middle class will increase the clamour for water in urban centres; agricultural

4

Kolbert, Field Notes from a Catastrophe: Man, Nature and Climate Change, pp. 96–97. Diamond, Collapse: How Societies Choose to Fail or Survive. 6 Solomon et al. ‘Climate Change 2007’. 7 Government of India, Ministry of Environment and Forests, India’s Initial National Communication to the United Nations Framework Convention on Climate Change; Kumar, Global Climate Change: Insights, Impacts and Concerns, pp. 345–51. 8 Population Foundation of India, The Future Population of India, p. 6. The Supreme Court of India, in Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664, rejected the legal challenge mounted against the Sardar Sarovar Dam. In its judgement, the court was alive to the national imperative to create storage reservoirs: 5

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demand will swell; the expanding economy will thirst for fresh water;9 and neighbouring countries sharing the same watersheds will assert their claims for greater allocations.10 These factors, combined with the monsoondependent hydrography of the region, combine to present a formidable water management challenge. Add to these elements, major shifts in precipitation patterns that could trump conventional projections,11 and we find that water storage projects and canals to transport water appear inevitable. This chapter examines the legal framework for EIA in the context of water resources in India and critiques its functioning. We review the role of the bureaucracy and the courts in dealing with projects that may significantly impact the environment. We look at issues of human displacement and rehabilitation. Finally, this chapter argues that the EIA regime is inadequate in its present state and requires a substantial overhaul to increase in efficacy.

The EIA Regime The Framework: 1994–2006 Till January 1994, EIA in India was carried out under a framework of administrative guidelines that required the proponents of major irrigation projects, river valley projects, power stations, ports and harbours to secure a clearance from the Union Ministry of Environment and Forests (MoEF). The project authority submitted information to the MoEF by filling out questionnaires or checklists. The environmental appraisal was carried out by the ministry’s environmental appraisal committees. These committees discussed issues with the project officials and on the basis of the deliberations,

The population of India ... is expected to reach the figure between 1.5 billion and 1.8 billion in the year 2050, would necessitate the need of 2,788 billion cubic meters of water annually in India to be above the water-stress zone and 1,650 billion cubic meters to avoid being a water-scarce country .... It is estimated that by the year 2050 the country needs to create storage of at least 600 billion cubic meters against the existing storage of 174 billion cubic meters. 9

Bhatia, ‘Water and Economic Growth’, p. 99. Iyer, Water: Perspectives, Issues, Concerns, pp. 208–49. 11 Hunt, Thirsty Planet: Strategies for Sustainable Water Management, p. 197. Projections of rainfall vary across different climate models; Governments of India, India’s Initial National Communication. 10

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either approved or rejected the site. When approved, the project clearance was generally made conditional on specified safeguards.12 On 27 January 1994, the MoEF notified mandatory EIAs for 29 designated projects.13 The notification was issued under the Environment (Protection) Act of 1986 (EPA) and required an EIA, environment management plan (EMP) and a project report to be submitted to the impact assessment agency for clearance. The MoEF was designated as the impact assessment agency and was required to consult a multidisciplinary committee of experts before taking a decision. The 1994 notification mandated public hearings and was India’s first attempt at a comprehensive EIA scheme. Barely three months later on 4 May 1994, the MoEF diluted the 27 January notification.14 It dismantled some of the new safeguards, subordinating environmental concerns to economic objectives. The project proponent was no longer required to submit a detailed project report, and further, the requirement of both an EIA and an EMP was now changed to a requirement of either of these documents. The project authority was allowed to acquire land, fell trees, prepare the land, etc., even before receiving the environmental clearance. The project-related activities could proceed so long as there was no construction at the site. Administrative guidelines in the form of an ‘Explanatory Note’ issued by the MoEF restricted public access to an executive summary of the documents filed and narrowed this entitlement to residents located around the project, the displacement site, or where the environmental impact would fall. The Explanatory Note scaled down the EIA report requirement, which was supposed to cover one year, to a single season report, termed as rapid EIA. On 10 April 1997 some of the regressive changes introduced in May 1994 were undone by fresh amendments to the parent notification. The 1997 amendments restored public hearings and prescribed the procedure for these hearings. In a step to decentralise the process of granting environmental clearances, the MoEF simultaneously notified an EIA procedure for the clearance of certain types of thermal power plants, where the concerned State Government was to vet the applications.15 The procedures to be followed under this notification were similar to the amended procedure for Central clearances.

12

Divan and Rosencranz, Environmental Law and Policy in India. Notification No. SO 60 (E), 27 January 1994. 14 Notification No. SO 356 (E), 4 May 1994. 15 Notification No. SO 318 (E), 10 April 1997. 13

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The subsequent amendments to the parent EIA notification of 1994 chipped and chiselled at some provisions, retaining the essential framework that was in place by 1997. River valley projects, including hydel power projects, major irrigation projects and flood control projects, had been covered by the EIA notification since its inception. The amendment introduced on 13 June 200216 obliged the project proponent to make copies of the EIA report available to the public. Previously, only the executive summary was available to the public, and this had helped conceal inadequate or incomplete EIA reports. On 7 May 2003 an exception was carved out to enable improvement works to be undertaken without following the statutory EIA procedure. Where canals were widened and strengthened up to 20 metres (on both sides put together) along the existing alignment, there was no need to conduct an EIA unless the canals passed through ecologically sensitive areas such as national parks, sanctuaries, tiger reserves and reserve forests.17 On 7 July 2004, responding to orders passed by the Supreme Court of India18 and the Madras High Court (C.S. Kappuraj v. State of Tamil Nadu),19 the MoEF extended the EIA regulations to cover construction projects and industrial estates.20 Meanwhile, in 1997, Parliament enacted the National Environment Appellate Authority Act which constitutes an authority headed by a retired Justice of the Supreme Court or Chief Justice of the High Court and comprises experts with technical knowledge on ecological matters. This authority (NEAA) is empowered to hear appeals filed by persons aggrieved by the order granting environmental clearance. The validity of a project clearance granted by the impact assessment agency can now be tested before a statutory appellate forum.21 In May 2005, Kanchi Kohli and Manju Menon of Kalpavriksh, an environmental action group, published a study analysing the working of the EIA process.22 The report documents several structural weaknesses, amongst them: the exclusion of environmentally disruptive activities from the scope of the EIA process;23 the poor quality of EIA reports, which frequently lacked

16

Notification No. SO 632 (E), 13 June 2002. Notification No. SO 506 (E), 7 May 2003. 18 News Item Hindustan Times A.Q.F.M. Yamuna v. Central Pollution Control Board, (2004) 9 SCC 576. 19 Writ Petition (C) No. 33493 of 2003 order dated 19 April 2004 of the Madras High Court. 20 Notification No. SO 801 (E), 7 July 2004. 21 The National Environment Appellate Authority Act of 1997. 22 Kohli and Menon, Eleven Years of the Environment Impact Assessment Notification, 1994. 23 Ibid., p. 23. 17

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information and candour;24 ineffective public hearings;25 frequent instances of ancillary activities at the project site before environmental clearance of the core activity was received;26 doubtful competence of the personnel on the expert committees;27 a failure of expert committees to assert environmental concerns;28 poor compliance with post-operative conditions;29 ineffective appellate oversight by the NEAA;30 and limited institutional capacities to effectively work the EIA notification. Kolhi and Menon wrote: After eleven years of the existence of this notification, citizens’ experiences of the EIA notification and decision making process of development projects is still filled with disappointment, anger and frustration. There seems little political will to uphold the principles behind the notification or even the clauses of the notification. This is clear from the fact that though the MoEF has the powers to reject a project if it violates the notification, it has not done so in such cases brought to its notice by NGOs and community groups.31

The report ended with a set of recommendations designed to strengthen the EIA framework. 32

The New Framework The need to stimulate economic growth by reforming existing legislation spurred the Union Government to review laws and streamline the process for establishing new industry.33 Propelled by the corporate perception that EIA clearances took far too long and on the strength of its decade-long experience, on 15 September 2005 the MoEF invited public comments on a new EIA framework.34 This process eventually culminated in a fresh EIA notification issued in September 2006.35 24

Ibid., p. 26. Ibid., p. 31. 26 Ibid., p. 26. 27 Ibid., p. 28. 28 Ibid., p. 29. 29 Ibid., p. 27. 30 Ibid., p. 47. 31 Ibid., p. 9. 32 Ibid., p. 73. 33 Government of India, Report on Reforming Investment Approvals and Implementation Procedures. This report is popularly known as the ‘Govindarajan Committee Report on Investment Reforms’. 34 Notification No. S.O. 1324 (E), dated 15 September 2005. 35 Notification No. S.O. 1533 (E), dated 14 September 2006. 25

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The current regime for EIA is contained in a statutory notification dated 14 September 2006 also framed under the EPA.36 This notification replaced the previous regime introduced in January 1994. The September 2006 notification substantially altered and strengthened the EIA procedure. Thirtyeight projects designated in the schedule to the notification are required to secure prior environmental clearance from the MoEF in respect of category A projects, or from the State Environmental Impact Assessment Authority (SEIAA) for matters covered by category B to the schedule. An environmental clearance from one of these regulatory authorities must be obtained before commencing construction or preparing the land by the project proponent. However, the land may be acquired before securing environmental clearance. River valley projects, ports and harbours are listed in the schedule and require clearance from either the MoEF or the SEIAA, depending upon the project size. The SEIAA, comprising three persons, is required to be constituted by the Central Government. Both the MoEF and SEIAA are required to decide on whether to grant environment clearance based on the recommendations of an Expert Appraisal Committee (EAC). The EACs are entrusted with the tasks of screening, scoping and appraising projects. Category B projects are first screened by the State-level EAC for determining whether the project requires further environmental studies for the preparation of an EIA. The projects requiring an EIA report (category B-1) are classified on the basis of guidelines framed by the MoEF. For all category A and B-1 projects, the EAC must determine detailed and comprehensive terms of reference addressing all environmental concerns. The terms of reference must be conveyed to the applicant within 60 days of receiving the application. Where this period is exceeded, the terms of reference suggested by the applicant form the basis for the EIA studies. All category A and category B-1 projects are required to follow a public consultation process to address the concerns of local affected persons and others having a plausible stake in the environmental impact of the project. The public consultation involves a public hearing at the site and written responses from concerned stakeholders. The public hearing is organised by the State Pollution Control Board within 45 days of a request being made on this behalf by the applicant. For obtaining written responses from stakeholders, the State Pollution Control Board is required to invite responses by placing the summary EIA report prepared by the applicant on their website. The authorities are also required to make available the draft EIA report for inspection. Once the public consultation process is complete, the project proponent is required to address all the material environmental 36

Ibid.

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concerns expressed during this process to make appropriate changes in the draft EIA and EMP. The final EIA report is then submitted to the MoEF or the SEIAA. The first stage of the appraisal involves a detailed scrutiny by the EAC of the application and other documents like the final EIA report and the outcome of the public consultations. After interacting with the applicants and obtaining the necessary clarifications, the EAC must make categorical recommendations to the MoEF or the SEIAA, either for grant of environmental clearance on stipulated terms and conditions or for rejection of the application. The EAC must furnish reasons in support of its recommendations. This appraisal exercise must be completed within 60 days of receiving the final EIA report. The MoEF or SEIAA is required to convey its decision to the applicants within 45 days of receiving the recommendations of the EAC. Generally, the decision for grant of the environmental clearance must be conveyed within 105 days of receiving the final EIA report. Normally, recommendations of the EAC must be accepted and when the regulatory authority disagrees with the recommendations, it may request reconsideration by the EAC within a period of 45 days. The decision of the regulatory authority, after considering the recommendations of the EAC after the remand, is final, and must be conveyed to the applicant. The environmental clearance granted to a project is valid for a period of 10 years in the case of river valley projects. It is mandatory for the project management to submit half-yearly compliance reports in respect of terms and conditions mentioned in the environmental clearance. All such compliance reports are available to the public, and the latest compliance report must be displayed on the website of the concerned regulatory authority. In June 2007, nine months after the new EIA notification, Leo F. Saldanha and his team published a vigorous critique on the new law.37 The authors argued that the 2006 notification was formulated to appease the industrial lobby, ignoring the concerns of citizens’ groups and NGOs working amongst affected communities.38 The September 2006 notification did little to improve locational decisions or sensitise the project proponent to adverse environmental impacts. Indeed, the authors suggest that the MoEF was captured by industrial lobbies, and that the new EIA regime was designed principally to facilitate economic growth.39

37

Saldanha et al., Green Tapism. Ibid., p. 16. 39 Ibid., p. 8. 38

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The EIA notification has a special significance for environmental activists and development workers. In a subcontinent mired with deep divisions between the empowered and the powerless, this law creates an entitlement amongst the politically and economically weak to influence the course of decision-making. The harmful impacts of large projects in an urban-centric political economy tend to fall on scattered rural communities. When sufficiently evolved, the public hearing process could enable affected communities to voice their concerns and cause the government and the project’s corporate sponsors to re-evaluate the enterprise.

Evaluating EIA For Water Projects The EIA procedure in India draws on inputs from four sources. The primary burden is on the project proponent who must choose the site, identify the technology and employ suitable measures to mitigate the adverse environmental impact of the enterprise. This phase envisages a degree of corporate environmental responsibility and assumes that the project proponent will eliminate most of the adverse impacts by engaging competent experts to advise it on mitigation measures. The second source of inputs comes from the affected community and environmentalists who are expected to project the concerns of the people and the natural resources that are likely to be impacted by the project. This stream of inputs enters the process through the avenue of the public hearing. The third and most crucial intervention is provided by the MoEF’s committee of experts whose task is to advise the impact assessment agency. This committee is supposed to evaluate the project from a multidisciplinary perspective, drawing on the expertise of each specialist on the committee. Finally, the impact assessment agency is required to assimilate the information placed before it and take an informed decision on whether to grant the environmental clearance. Amongst the important water project proponents is the National Hydroelectric Power Corporation (NHPC), a government corporation that has been constructing irrigation and hydropower projects since 1975. Given its parentage, one might expect that the NHPC would set a high benchmark by conforming to EIA procedures. A study of NHPC projects suggests otherwise.40 The corporation routinely commences construction prior to 40 Kohli and Menon, Eleven Years of the Environment Impact Assessment Notification, 1994, p. 26.

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obtaining environmental clearances and persistently breaches environmental norms without fear of being penalised. The weak corporate ethic extends to the environmental consultants engaged in preparing the EIA reports. In the case of the Dandeli Mini Hydel Project, the consultant Ernst & Young was shown to have plagiarised material from another EIA report for a project in a neighbouring area.41 In numerous cases, the EIA reports were so spare that a meaningful evaluation was not possible on the disclosed data.42 At times, there was a concealment of vital information, or the cutting and pasting of material from other sources in order to create an aura of scientific rigour.43 Recourse to rapid EIAs based on single season data has meant that even where reliable data was made available, the impact assessment was at best partial, since downstream impacts in water projects are apt to vary considerably from season to season.44 The public hearing process is the principal formal mechanism by which members of the affected community can voice their grievances. The effectiveness of public hearings has varied tremendously. In its most repressive form, as with some mining projects, the affected communities have been physically prevented from participating in the hearings through the deployment of the State police.45 Frequently, the object of public hearings has been undermined by inadequate notice of the meeting, a refusal to publish and share essential information and an inaccurate communication to the MoEF of what transpired at the hearing.46 In contrast, creative initiatives by NGOs and some government officials have enabled affected communities to genuinely understand the nature of the project and formulate responses to abate the potential impact. The best practices have involved distributing charts, diagrams and audio recordings describing the impact of the project so that the information spreads in the community; arranging advance meetings between the affected community and the project authority where mitigation measures and concerns of the community are discussed before the formal 41

Ibid. and Saldanha et al., Green Tapism, p. 35. Vagholikar, ‘Undermining People’s Participation’, p. 41; Murthy and Patra, Environment Impact Assessment Process in India and the Drawbacks, p. 11. 43 Kohli and Menon, Eleven Years of the Environment Impact Assessment Notification, 1994, pp. 26, 30, 60. 44 Ibid., p. 26; Murthy and Patra, Environment Impact Assessment Process in India. 45 Kohli and Menon, Eleven Years of the Environment Impact Assessment Notification, p. 31; Saldanha et al., Green Tapism, p. 94. 46 Kohli and Menon, Eleven Years of the Environment Impact Assessment Notification, 1994, p. 31–33; Saldanha et al., Green Tapism, pp. 44–61, Vagholikar, ‘Undermining People’s Participation’, p. 41; Murthy and Patra, Environment Impact Assessment Process in India and the Drawbacks, p. 11. 42

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public hearing and uploading the EIA reports on websites to widen access to these core documents.47 Although the expert committees advising the MoEF are meant to comprise professionals from diverse disciplines, the reality is different. None of the expert committees is constituted as required.48 There is a huge gap of expertise in the social sciences with few qualified persons who can assess the project impact on local communities, women, children and socially disadvantaged groups.49 Representatives of political parties to which the incumbent Minister of Environment and Forests belongs with little by way of expertise, roost on these committees. The composition of the committees is skewed in favour of engineers with very few experts in wildlife conservation, the social sciences, ecology, environment and health.50 Although the chairpersons of these committees are supposed to hold outstanding credentials in the fields of environment and ecology, the posts are invariably packed by former secretaries to the government.51 The effectiveness of the expert committees is hobbled by the previous careers of the chairpersons and the continuing professional affiliations of the committee members. The chairpersons are frequently required to examine projects proposed by the ministries in which they had served.52 Likewise, many of the committee members are drawn from government-affiliated institutions or departments, undermining the independent character of the advice expected from experts. Moreover, the number of NGO representatives serving on the expert committees has been trimmed over the years,53 and the regional diversity of representation has all but vanished with the large chunk of the members being drawn from either Tamil Nadu or the Delhi region.54 A study that closely examined more than 10 hydropower projects found that the project clearances had been granted despite breaches of the EIA regulations. In the case of the Parbati project, the foundation stone was laid before the environmental clearance was granted; the impacts on biodiversity 47 Kohli and Menon, Eleven Years of the Environment Impact Assessment Notification, 1994, p. 32. 48 Ibid., pp. 28–30; Saldanha et al., Green Tapism, pp. 31–36. 49 Kohli and Menon, Eleven Years of the Environment Impact Assessment Notification, 1994, p. 28. 50 Ibid., pp. 28–29. 51 Ibid., p. 29. 52 Ibid. 53 Ibid. 54 Ibid., p. 30. In November 2004, the River Valley and Hydropower Projects Committee comprised of 14 members. Four of these persons, including the chairperson and member secretary, were directly from government ministries. One of the members was affiliated to a political party. There was no expert in flora and fauna conservation or in the social sciences, and there was no representative from citizens’ groups.

The Contours of EIA in India 401

in the region were not studied adequately and the public hearing conducted was a charade.55 The EIA report for the Karcham-Wangtoo Project was not translated into the local language, undermining the purpose of the public hearings, which in this case were repeatedly boycotted by the local people.56 The local community was not provided access to the EIA report and executive summary before the public hearing for the Chamera II Hydroelectric Project.57 Similar shortcomings marred the environmental clearance procedure for Pala Maneri in Uttarakhand, Allain Duhangan in Himachal Pradesh, Athirappally in Kerala, Human Dam in Maharashtra, the Teesta Low Dam Project in West Bengal, the lower Subansiri Project in Arunachal Pradesh and the Middle Siang Hydropower Project in Assam.58 The variable quality of inputs has resulted in numerous water projects being cleared by the MoEF without a satisfactory assessment of the costs and benefits. Indeed, the reluctance of the MoEF to reject project proposals on environmental grounds, and its inability to create a machinery by which post-clearance conditions are complied with has resulted in most project authorities considering the EIA procedure as yet another ‘administrative hassle’.59 The clearances issued by the MoEF do not prescribe punitive payouts by the corporation or personal liabilities on senior managers, where the conditions of the environmental clearance are breached. In the absence of any such strong deterrent, it is improbable that the EIA procedure, as currently worked, will significantly improve environmental decision-making. It is only when the MoEF demonstrates a sufficient bite in the post-clearance phase by selectively resorting to strong action against deviating project managements that the self-regulatory regime will gain efficacy.

Appellate and Judicial Oversight The validity of an environmental clearance may be challenged before the National Environment Appellate Authority (NEAA), constituted under a 1997 statute.60 The NEAA has its seat at New Delhi and comprises a chairperson, a vice chairperson, and up to three additional members. The

55

Ibid., p. 34. Ibid. 57 Ibid. 58 Ibid., pp. 34–40. 59 Ibid., p. 25. 60 The National Environment Appellate Authority Act of 1997. 56

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chairperson is a former judge of the Supreme Court or a Chief Justice of a High Court, but since 2000 no one has accepted this obscure post. As a result, the working of the authority has been guided mostly by the retired bureaucrats who fill its ranks.61 Although the NEAA has unrestricted appellate jurisdiction to examine all aspects of an order granting environmental clearance, its record has been disappointing. The decisions rendered by the NEAA display little environmental sensitivity and numerous appeals are rejected on narrow technical considerations.62 The Law Commission of India in its 186th Report found that the NEAA had very little work and was largely non-functional.63 The approach of the higher judiciary with respect to EIA is marked by great deference to the views of the impact assessment agency. In numerous judgements, the Supreme Court of India has extolled the virtues of sustainable development and preservation of the environment.64 Nevertheless, when deciding upon the validity of the environmental clearance granted to the Sardar Sarovar Dam on the Narmada River, the court was content to adopt a hands-off approach. The Supreme Court examined the validity of the environmental clearance based upon the guidelines prevailing in 1987, the 1994 EIA notification being prospective in its operation. The Narmada court found that the conception and execution of a large dam were policy decisions and that courts ought not to transgress into the field of policy (Narmada Bachao Andolan v. Union of India).65 In effect, the court found that the present institutional mechanisms supplemented by the grievance redressal agencies to examine displacement issues, were adequate to address the social and environmental impacts of large water projects.66 Although environmental clearance for the Sardar Sarovar Dam was granted when some studies were incomplete, the court declined to jeopardise the project since it was satisfied that further studies subsequent to the grant of the environmental clearance were being undertaken. This approach reinforces the general perception that EIA in India is a mitigation exercise rather than a tool to evaluate whether a project is societally worthwhile. 61 Kohli and Menon, Eleven Years of the Environment Impact Assessment Notification, 1994, p. 47. 62 Ibid., pp. 33, 47. 63 Law Commission of India, 186th Report on Proposal to Constitute Environment Courts, p. 6. 64 A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718 and A.P. Pollution Control Board—II v. Prof. M.V. Nayudu, (2001) 2 SCC 62. 65 (2000) 10 SCC 664. 66 Wood, The Politics of Water Resource Development in India, p. 192.

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The other important large dam case that was decided by the Supreme Court concerned the Tehri Dam, which impounds the Bhagirathi and Bhilangana rivers in the Garhwal Himalayas.67 On both the occasions when the court examined environmental aspects of the project, particularly dam safety in view of the high seismicity in the region, it declined to upset the decision granting environmental clearance. Reiterating the Narmada case reasoning that construction of high dams were a policy matter, the Tehri court also held that it would not sit in judgement over the considered opinion of experts, such matters being best left to the government. The Supreme Court again used the principle of agency deference to reject a challenge to raising the level of the Mullaperiyar Dam (Mullaperiyar Environmental Protection Forum v. Union of India).68 The court allowed an increase in the dam height since the expert committee had found that there would be no adverse impact on the flora and fauna, and that the structural safety would not be compromised by the project. The High Courts, too, have been reluctant to interfere in the execution of infrastructure projects on the ground that the environmental clearance was defective. Declining to overturn expert opinions, the High Courts permitted the international airport project at Hyderabad to proceed (Forum for a Better Hyderabad [Confederation of Voluntary Organizations of Hyderabad] v. Government of A.P.)69 and also refused to quash an environmental clearance granted in favour of a power station (Indian Council for Enviro-Legal Action v. Union of India).70 Confronted by the issue of whether or not to permit a ship breaker to dismantle a passenger liner at Alang, Gujarat, the Supreme Court appointed a technical committee of experts to guide the court. Upon receiving the report, the court held that the approach in such matters involved balancing developmental imperatives with environmental interests. Since all projects would have some adverse impact on the ecology and environment, a suitable balance must be struck between the competing interests of enterprise and environmental protection. The court permitted dismantling of the vessel in terms of the expert report (Research Foundation for Science Technology and Natural Resource Policy v. Union of India).71 To facilitate the establishment of a research and development centre, the Karnataka Industrial Area Development Board acquired lands for 67 Tehri Bandh Virodhi Sangharsh Samiti v. State of U.P., (1992) Supp (1) SCC 44 and N.D. Jayal v. Union of India, (2004) 9 SCC 362. 68 (2006) 3 SCC 643. 69 2004 (1) ALT 500. 70 ILR 1997 KAR 2956. 71 (2007) 11 SCALE 75.

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the industry. Responding to a petition by the affected villagers that they would lose their cattle pastures, the High Court directed the board to maintain a green belt around the village limits where cattle could graze (C. Kenchappa v. State of Karnataka).72 In its appeal before the Supreme Court, the board complained that any such norm would undermine its function to develop industrial areas within the State. Allowing the appeal, the Supreme Court set aside the green belt requirement but directed that in the future, ‘before acquisition of land for development, the consequences and adverse impact of development on environment must be properly comprehended and the land be acquired for development that they do not gravely impair the ecology and environment’ (Karnataka Industrial Area Development Board v. C. Kenchappa).73 The reluctance of courts to interfere in the correctness of decisions granting environmental clearance has not prevented judges from strengthening the EIA procedure by fleshing out the provisions of the EIA regulations. The Gujarat High Court has issued salutary directions pertaining to the conduct of public hearings enabling citizens to receive information in the local language and thus effectively avail the opportunity afforded by the hearings.74 The Kerala High Court has insisted that the public hearing process be strictly complied with in respect of the dam at Athirappally across the Chalakudy River.75 The court also held that EIA studies could not be based on single-season data gathered during the monsoon. In a second round of litigation challenging the environmental clearance granted for the same project, the Kerala High Court once again struck down the environmental

72

2000 (4) KAR LJ 1. (2006) 6 SCC 371. 74 Centre for Social Justice v. Union of India, AIR 2001 Guj 71. The High Court directed that (a) the venue of public hearing be as near as possible to the site of the proposed project and no further than the sub-district (taluka) headquarters; (b) the State Pollution Control Board issue public notices of the public hearing in at least two newspapers widely circulated in the region (one in the vernacular language); (c) the first public hearing be held at least 30 days after the newspaper notice; (d ) a summary of the EIA report in the local language and the EIA report be made available to concerned citizens; (e) the quorum of the committee conducting the public hearing would be half its membership and the representatives of the pollution control board, state department of environment and one of the three senior citizens nominated by the Collector would have to be present for a valid public hearing; ( f ) the minutes of the public hearing be supplied to citizens on demand and (g) the gist of the environmental clearance be published in the newspapers in which the notice of the public hearing was given. 75 Chalakudy Puzha Samrakshna Samithy ‘Chaithanya’ v. State of Kerala, judgement of the Kerala High Court dated 17 October 2001 in O.P. 3581/2001. 73

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clearance for procedural violations. This time the EIA report relied upon by the authorities was not released to the public before the public hearing.76 The Himachal Pradesh High Court restrained a pharmaceutical company from expanding its plant when it found that environmental clearance under the EIA regulations had not been obtained. The court held that where a project was likely to significantly impact the environment, a comprehensive EIA based on all-season data was necessary (Baldev Singh v. State of H.P.).77 All in all, the judiciary has stepped in only where procedural deviations mar the environmental clearance. Large water projects are out of judicial bounds, being matters of executive policy. With the NEAA stillborn or otherwise ineffective, the scope of oversight has narrowed. The fate of an environmental clearance is decided at the hands of the impact assessment agency, not a court.

Resettlement and Rehabilitation Large projects require large tracts of land. To acquire the land, the government resorts to the Land Acquisition Act of 1894 (LA Act), which empowers the state to take land for public purposes. The theory underlying this Act is the doctrine of eminent domain, which permits the state to assert its right over a portion of the land for the public good. The exercise of eminent domain operates extremely harshly on the persons displaced, dishoused and uprooted. Under the scheme of the LA Act, the government initiates acquisition proceedings by issuing a preliminary notification describing the land needed for the public purpose. Objections to the acquisitions must be made within 30 days. The jurisdictional collector hears the objections and makes a report to the government, which then determines the land to be acquired. A secretary to the government must certify that the land is required for the public purpose, and publication of this declaration is regarded as conclusive of the need. Thereafter, the land is marked, measured and planned. The collector invites claims for compensation. After conducting an enquiry, he awards compensation and apportions it amongst the interested persons. 76 Athirappally Grama Panchayat v. Union of India, judgement of the Kerala High Court dated 23 March 2006 in W.P. (C) Nos. 9542, 11254 and 260763/2005. 77 2006 (3) Shim LC 135.

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Compensation is determined having regard to the market value of the land, the damage to standing crops or trees and damage to movable or immovable property. On paying the compensation as determined under the LA Act, the collector may enter and take possession of the land. The LA Act has been the principal instrument for acquiring land required for implementing large water projects such as dams and the construction of irrigation canals. This law has remained largely intact since its enactment in the colonial era, the amendments being principally to enhance compensation, lend a limited opportunity to objectors and speed up the acquisition process. In its working, the Act forcibly displaces settled communities, forces urban migrations and severs the bond between rural folk, their homestead and the common property resources around their traditional settlements. In the absence of any specific national statute recognising the rights of those ousted by a large project, as a rule the affected communities receive nothing except frugal monetary compensation under the LA Act. The money received is an illusion since it is never enough to replace the lost holding or to meaningfully resettle elsewhere. Rampant corruption nibbles at even the modest sums awarded.78 Without a statutory counterweight that obliges the government to resettle communities elsewhere, in practice the law operates to impoverish the weakest and most marginal segments of Indian society. NGO campaigns and media coverage have contributed to influencing the resettlement and rehabilitation (R&R) package.79 These organs of an open society have helped highlight the plight of the oustees and have assisted in securing them a better deal through sustained campaigns.80 In the absence of a statute codifying the entitlements of project-affected persons, the struggle for a humane and just R&R package has drawn on more diffuse notions of equitable entitlements emanating from policy documents and the fundamental right to life.81 Since the 1980s, particularly in the context of the struggle to secure a better R&R package for those affected by the Narmada dams, there has been a gradual evolution of policy intended to soften the excesses of forced displacement.82 Without a set of national

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Mathur, ‘New Livelihoods for Old’, p. 72. Ibid., ‘Introduction and Overview’, p. 2. 80 Wood, The Politics of Water Resource Development in India, p. 138. 81 The fundamental right to life is guaranteed to every person under Article 21 of the Constitution of India. This right has been interpreted expansively to cover any action of the state that might adversely affect a person’s livelihood including forced displacements. 82 Iyer, ‘Towards a Just Displacement and Rehabilitation Policy’, p. 3103; Khagram, Dams and Development, p. 90. 79

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norms,83 the policies for R&R have varied from project to project and across States. For example, Coal India Ltd. operates around 500 mines, but its R&R policy is restricted to only around 25 mines where there were conditions under a World Bank loan for the coal-sector environment and social mitigation project. Likewise, the National Highways Authority of India has no uniform policy for resettlement.84 The broad objectives of campaigners urging a humane R&R regime are to minimise displacement, introduce public consultation, introduce gender neutrality, provide land for all agricultural families, create job opportunities, provide a house for a house and supply basic amenities at the new site.85 Several successive national governments have postponed for decades the adoption of a national policy and legislation to guide resettlement. This may stem from a lack of sincerity on the part of those charged with framing these entitlements86 and the federal structure of government. Resettlement is regarded as a State-level matter, but a dichotomy is created since the acquisition takes places under a Central statute, the LA Act.87 Introducing a federal law impacting upon land, which lies at the heart of R&R, requires the consent of the States under the constitutional scheme. This makes enacting a national R&R law a more cumbersome process than passing Central legislation on matters where the Parliament is directly competent. Academic research as well as field experiences clearly indicate that relocated populations end up worse-off than before. The principal impoverishment risks arising from forced displacement are landlessness, joblessness, homelessness, marginalisation, increased morbidity, food insecurity, lack of access to common property and social disarticulation.88 Recognising that monetary compensation for the acquisition of land was quite meaningless in the hands of marginal farmers and tribals, the Supreme Court in 1987 directed the State to provide alternative land or alternative employment so that members of the affected families were not deprived of subsistence (Karjan Jalasay Yojana Assagrasth Sahkar Ane Sangharsh Samiti v. State of Gujarat).89 83 Three States, Maharashtra, Madhya Pradesh and Karnataka, have enacted legislation to confer rights on displaced persons. These laws are weak and do not provide substantial relief. Ramesh and Joseph, ‘The Karnataka Resettlement of Project Displaced Persons Act, 1987’, p. 124. 84 Mathur, ‘New Livelihoods for Old’, p. 7. 85 Saxena, ‘The Resettlement and Rehabilitation Policy of India’, p. 99. 86 Iyer, ‘Towards a Just Displacement and Rehabilitation Policy’, p. 3104. 87 Cernea, ‘Resettlement Management: Denying or Confronting Risks’, p. 37. 88 Serageldin, ‘Involuntary Resettlement in World Bank-Financed Projects’, p. 52. 89 AIR 1987 SC 532.

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However, no single solution appears perfect for the varied situational challenges faced in different projects. The land for the land rehabilitation standard suggested by the Narmada Tribunal was found to be impracticable by the government and the judiciary.90 In August 1991, noting the delay in rehabilitating families affected by the Sardar Sarovar Project on the Narmada, the Supreme Court directed rehabilitation to be completed at least six months before an area was likely to be submerged. The court required monthly progress reports to indicate the completion of homestead substitution of agricultural property (B.D. Sharma v. Union of India).91 In the Narmada case the Supreme Court primarily concerned itself with the resettlement and rehabilitation of the oustees. The court acknowledged that the packages in Gujarat, Maharashtra and Madhya Pradesh were different due to the varying geographical, local and economic conditions and the availability of land in the States. While the Narmada case was pending before the Supreme Court, the riparian States set up grievance redressal authorities before whom the oustees could ventilate their grievances. In order to ensure that the rehabilitation programme was being carried out, the State Governments appointed independent professional and academic institutions to monitor progress and identify difficulties in implementation so that corrective action could be taken (Narmada Bachao Andolan v. Union of India).92 The Supreme Court has recognised that rehabilitation is not only about providing food, clothes and shelter but also extending support to help rebuild livelihood by ensuring the availability of necessary amenities. The oustees ought to be in a better position to lead a decent life and earn a livelihood in the new location. In the Tehri Dam case, the Court found that the State Government had a well-defined R&R policy and package (N.D. Jayal v. Union of India).93 On 11 October 2007, the Union Cabinet approved the National Policy on Rehabilitation and Resettlement of 2007, which provides for the allotment of land in lieu of land and preferred employment opportunities to those displaced by projects. Under the legal framework in India, policy documents by themselves are not enforceable. They are a brittle foundation for weak claims, which at best, can be leveraged by approaching the constitutional courts. Eventually, to translate the lofty goals articulated in the 2007 R&R policy, what is required in the field is actionable entitlements. This means suitably amending the LA Act or introducing overriding legislation 90

Wood, The Politics of Water Resource Development in India, p. 251. (1992) Supp (3) SCC 93. 92 (2000) 10 SCC 664. 93 (2004) 9 SCC 362. 91

The Contours of EIA in India 409

that expressly confers enforceable rights on oustees and empowers them to petition the state machinery to secure their entitlements. In the coming decades, the vast majority of those displaced will likely belong to segments of society that are less privileged. In this scenario, the only realistic options are to provide alternative lands and jobs and move communities to new locations rather than uproot individuals and force urban migrations. The legal process in India with respect to displacement remains largely adversarial, pitting the state fronting for the project authority against the ousted community. To transform this structure into a more just framework, several specific measures require to be given a statutory basis: surveying social impacts and affected people; providing proper information to affected people; involving affected communities in the resettlement programme; building an institutional machinery capable of implementing R&R; establishing a panel of experts to prepare a resettlement programme; holding discussions with affected people; crystallising legal entitlements; ensuring institutional structures so that the project authority delivers on what was promised; linking the schedule of project construction to resettlement implementation and establishing a robust grievance redressal machinery.94 Despite the poor implementation record of government agencies in enforcing environmental legislation in India, a statutory EIA process combined with a statutory R&R package are likely to prove far more potent in delivering tangible improvements than any number of ringing policy statements. The salutary impact of a law is most recently evident from the surge of information secured by citizens through the Right to Information Act of 2005. The next step to operationalise the 2007 R&R policy is to change the existing law or to enact a new one, so that an essential uniformity obtains in all large projects with human displacement impacts.

Conclusion In the coming decades, two great forces will shape the use of natural resources in India and determine what we preserve for unborn generations and what we exploit. The first is the tremendous entrepreneurial energy unleashed since economic reforms unshackled the economy in the early 1990s and the economic muscle developed by Indian corporations. Added to these energies are the tides of globalisation and the economic might that transnational

94

Gill, ‘Large Dam Resettlement: Planning and Implementing Issues’, pp. 173–94.

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corporations will exert on the Indian system. The second great force is the emerging global order rising from the challenge of climate change. A whole new political consciousness is reshaping how people view mankind’s role in altering the fate of our planet, and the myriad life forms it supports. This new global politics of climate change will soon influence domestic decisions about the sources of our energy, the technologies we adopt and the enterprises we encourage. It will impact how we build our homes, pave our streets and grow our food. India is vulnerable to climate change and must quickly adapt to significant changes in subcontinental weather over a relatively short period of time. Climate change impacts in the short term will include an increased frequency of extreme weather such as cyclones, heat waves and floods from altered precipitation patterns.95 Many would argue that in order to combat these challenges, the country needs to maintain a high level of economic growth to shore up the resources necessary for the imminent adaptation exercise. Our response to this challenge requires a dynamic national strategy: a raft of initiatives requiring every level of government to evaluate its decisions on the touchstone of their impact on climate, and vice versa. The prudent investment of national resources demands that private and public projects be resilient to climate change. Conversely, their impact on greenhouse gas emissions must be minimised. The dictates of the monsoon hydrology of India and the country’s expanding water requirements make it inevitable that large water projects for storage and irrigation will be implemented in the coming decades. The wisdom of adopting renewable energy resources in a world where carbon emissions are frowned upon makes hydropower a preferred option. India’s water managers have no choice but to harness the untapped hydropower potential in the years ahead. The march towards economic prosperity in an urbanising world will involve the diversion of vast tracts of land for townships, industry, infrastructure and other projects. As the economic and political clout of corporations grows, huge estates will be parcelled out to private enterprises. Amidst these transformations in the landscape, natural ecosystems that are in the path of the growth engine will perish and rural communities will risk being tossed to the fringes. The most effective bulwark against the destruction of ecosystems remains the fencing regimes such as the Forest (Conversation) Act of 1980,

95

Dutt and Gaioli, ‘Coping with Climate Change’, p. 4239.

The Contours of EIA in India 411

when combined with stringent judicial oversight.96 This exclusion model with its ‘hands-off ’ underpinning cannot work for the bulk of our lands. These regions must be developed sustainably and the best tool, warts and all, is an inclusive, transparent, well-implemented EIA regime. To this end, India has the legal framework for evaluating projects, but lacks the ability to work the EIA regime to perceptively enhance the quality of project siting and construction decisions. The malaise is not so much in the design of the EIA process as in the abilities of the people who work it. While a number of sincere officers have utilised the public hearing platform to involve the local community and secure beneficial insights, such instances of good governance are exceptional. As widely practised, the EIA process remains disconnected from the local community, and remote from the social and environmental impacts it is meant to anticipate. The bureaucrat and government-dominated composition of the expert committees and NEAA must yield to independent experts before the EIA process becomes a genuine multidisciplinary exercise. In a self-regulatory system where the onus is on the project proponent to prepare the EIA, the process originates within the corporation before the studies are released to the public. Large companies are not monoliths, and generally, there are voices within each organisation seeking to advance an ecologically and socially responsible agenda. The present system with its weak post-clearance oversight and inability to punish defaulters does little to strengthen the hands of those within the project proponent striving for responsible conduct. To improve the initial impact assessment exercise commissioned by the project authorities, deterrent action in a few wellpublicised cases will lift the quality of decision-making at every stage. As we have seen, the struggle for a more humane displacement and relocation package hinges upon the enactment of a legislation crystallising the rights of the displaced. Indeed, taming large economic enterprises and encouraging responsible corporate conduct in the sphere of environmental protection are central to improving the EIA regime. Ultimately, the common good in water project disputes is rarely, if ever, achievable. A well-enforced EIA regime approximates the ideal.

96 T.N. Godavarman Thirumulpad v. Union of India, AIR 1997 SC 1228; AIR 1998 SC 769. Besides forests, the coastal stretches are protected by the Coastal Zone Regulations of 1991 and wildlife sanctuaries are zoned out by a fencing regime under the Wild Life (Protection) Act of 1972.

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References Bell, Stuart and Donald McGillivray (eds). 2006. Environmental Law. Oxford: Oxford University Press. Bhatia, Ramesh. 2007. ‘Water and Economic Growth’, in John Briscoe and R.P.S. Malik (eds), Handbook of Water Resources In India: Development, Management and Strategies. New Delhi: Oxford University Press. Cernea, Michael. 2006. ‘Resettlement Management: Denying or Confronting Risks’, in Hari Mohan Mathur (ed.), Managing Resettlement in India: Approaches, Issues, Experiences. New Delhi: Oxford University Press. Diamond, Jared. 2005. Collapse: How Societies Choose to Fail or Survive. Camberwell, Victoria : Penguin Group. Divan, Shyam and Armin Rosencranz. 2001. Environmental Law and Policy in India: Cases, Materials and Statutes. USA: Oxford University Press. Dutt, Gautam and Fabian Gaioli. 2007. ‘Coping with Climate Change’, Economic and Political Weekly, 20 October. Gill, Maninder. 2006. ‘Large Dam Resettlement: Planning and Implementing Issues’, in Hari Mohan Mathur (ed.), Managing Resettlement in India: Approaches, Issues, Experiences. New Delhi: Oxford University Press. Government of India. 2002. Report on Reforming Investment Approvals and Implementation Procedures. Government of India, Ministry of Environment and Forests. 2004. India’s Initial National Communication to the United Nations Framework Convention on Climate Change. Hunt, Constance Elizabeth. 2004. Thirsty Planet: Strategies for Sustainable Water Management. UK: Zed Books. IPCC. 2007. ‘Climate Change 2007: The Physical Science Basis’, in M.L. Parry, O.F. Canziani, J.P. Palutikof, P.J. van der Linden, C.E. Hanson (eds), Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge: Cambridge University Press. Iyer, Ramaswamy R. 2003. Water: Perspectives, Issues, Concerns. New Delhi: Sage Publications. ———. 2007. ‘Towards a Just Displacement and Rehabilitation Policy’, Economic and Political Weekly, 28 July. Khagram, Sanjeev. 2004. Dams and Development: Transnational Struggles for Water and Power. Ithaca, New York: Cornell University Press. Kohli, Kanchi and Manju Menon. 2005. Eleven Years of the Environment Impact Assessment Notification, 1994: How Effective Has it Been? Kalpavriksh, Just Environment Trust, Environment Justice Initiative (HRLN). Kolbert, Elizabeth. 2006. Field Notes from a Catastrophe: Man, Nature and Climate Change. New York: Bloomsbury. Kumar, H.D. 2006. Global Climate Change: Insights, Impacts and Concerns. New Delhi: Vitasta Publishing House. Law Commission of India. 2003. 186th Report on Proposal to Constitute Environment Courts. Mathur, Hari Mohan (ed.). 2006. ‘New Livelihoods for Old’, in Hari Mohan Mathur (ed.), Managing Resettlement in India: Approaches, Issues, Experiences. New Delhi: Oxford University Press.

The Contours of EIA in India 413 Matthews, John A. (ed.). 2003. The Encyclopaedic Dictionary of Environmental Change. New York: Oxford University Press. Murthy, Aruna and Himanshu Sekhar Patra. 2005. Environment Impact Assessment Process in India and the Drawbacks. Population Foundation of India. 2006. The Future Population of India: A Long-Range Demographic View. New Delhi: Population Foundation of India. Ramesh, M.K. and Francis A. Joseph. 2006. ‘The Karnataka Resettlement of Project Displaced Persons Act, 1987’, in Hari Mohan Mathur (ed.), Managing Resettlement in India: Approaches, Issues, Experiences. New Delhi: Oxford University Press. Saldanha, Leo F., Abhay Raj Naik, Arpita Joshi and Subramanya Sastry. 2007. Green Tapism: A Review of the Environmental Impact Assessment Notification–2006. Bangalore: Environment Support Group. Saxena, N.C. 2006. ‘The Resettlement and Rehabilitation Policy of India’, in Hari Mohan Mathur (ed.), Managing Resettlement in India: Approaches, Issues, Experiences. New Delhi: Oxford University Press. Serageldin, Ismail. 2006. ‘Involuntary Resettlement in World Bank-Financed Projects’, in Hari Mohan Mathur (ed.), Managing Resettlement in India: Approaches, Issues, Experiences. New Delhi: Oxford University Press. Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B.M. Tignor and H.L. Miller (eds). 2007. ‘Climate Change 2007: The Physical Science Basis’, Contribution of Working Group-I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC). Vagholikar, Neeraj. 2005. ‘Undermining People’s Participation’, in Kanchi Kohli and Manju Menon, Eleven Years of the Environment Impact Assessment Notification, 1994: How Effective has it Been? Kalpavriksh, Just Environment Trust, Environment Justice Initiative (HRLN). Wood, John R. 2007. The Politics of Water Resource Development in India: The Narmada Dam Controversy. New Delhi: Sage Publications.

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Displacement in the Name of Development Himanshu Thakkar Water resources development projects1 affect2 the people in a number of ways: through the acquisition of their lands; through the use of public land (forest and non-forest) for the projects and through the deprivation of the resources on which the people depend. The resources in the last category would include employment opportunities, water, fisheries, silt and biodiversity. Another category of affected people would be those who are affected due to the improper operation of the projects (resulting in flood disasters or the destruction of riverbed cultivation, for example). Similarly the process of construction of the projects would also involve another set of impacts, for example, blasting for underground tunnels (and other such components) for the run-of-the-river hydropower projects and use of land to procure materials required for the construction of water resources projects.

Dimensions of Social Impacts There are many kinds of social impacts of a typical river valley project like a dam or a hydropower project. These impacts are experienced in the upstream, downstream and command areas of the projects. The reservoirs behind the dams bring displacement for the upstream communities. 1 Since this chapter is part of a volume on Water Law, the chapter is restricted to the issue of displacement of people due to water resources projects and rehabilitation for the affected people. Also, though the discussions generally refer to large projects, the principles discussed are relevant to smaller water resources projects as also displacement due to other projects. 2 Though the word displacement is used in the title of the chapter, the chapter discusses all those who are affected.

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Those affected up to the Full Reservoir Level (FRL) are generally considered when talking about Resettlement and Rehabilitation (R&R). However, the impact due to the reservoir is greater considering the fact that the water level is expected to go to maximum, and there is also the backwater effect as the water flows in sloping profile. The backwater effects need to be calculated for simultaneous one- in- hundred- year flood both for the river on which the dam is situated and for the tributaries of the river upstream from the dam, in the submergence zone assuming that both had simultaneous flood peaks. The dam and the related structures also require canals (for irrigation projects), colonies, roads, transmission lines (for hydropower projects) and construction materials (fine aggregates, coarse aggregates, steel, cement, etc.), and each of these would bring its own share of social impacts. Generally, these additional impacts are not included by the official agencies in their estimations of displacement. In the downstream areas, there are many dimensions of social impacts. First, since the dams divert or stop all the water in the river at least in the non-monsoon months, the river is taken away from the downstream people. Their source of drinking water, irrigation water and water for other needs is taken away. Secondly, the groundwater is also affected as the recharge function of the river for the downstream areas is destroyed. Thirdly, fisheries and other biodiversity in the downstream river are destroyed. Fourthly, the concentration of pollution in the downstream river increases due to stoppage/ diversion of freshwater flow. Fifthly, in the absence of freshwater flows, the river no longer remains useful for navigation for the downstream communities. Sixthly, the construction of the dam changes the character of floods in the downstream areas and the floods become sudden and many times more destructive. Seventhly, the geomorphological behaviour of the river changes as the silt in the river water gets trapped in the upstream dam. The eroding capacity of the silt-free water flow increases significantly, which can result in fresh social impacts for the downstream communities. Lastly, with the drastic reduction in freshwater flows at the mouths of the rivers, the salinity ingress increases, which can affect the remaining freshwater in the river, the groundwater in the coastal zones, and also the soil in the coastal areas. All these impacts need to be appraised and estimated for each project. The whole canal networks include the main canals, the branch canals, the distributaries, the minor, sub-minor and field channels. Moreover, the impacts due to the structures along the canals and the additional drainage network required to compensate for the drainage congestion, the additional capacity required to drain away the water added in the area by the canals and also the land required for the coarse and the fine aggregates and the soil

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required for the canals should be included in the social impact assessment. However, the developers generally do not include these impacts in their estimation. The destruction of forestland taken up for the construction of water resources projects will cause large-scale social impacts. In addition, the related works like the compensatory afforestation, the catchment area treatment and the wildlife protection measures are also likely to have significant social impacts. However, sufficient information is generally not available for an accurate estimation of these impacts. Another class of impacts includes those due to landslides, soil erosion and floods due to the dams, tunnels and canals. Similarly, the land required for the resettlement and rehabilitation of the affected people will bring its own consequences. In the case of Tehri Dam in Uttarakhand, a very large number of landslides have occurred soon after the filling of the reservoir, just on its periphery. This has led to the additional displacement of people depending on such lands.

The Magnitude of Social Impacts There are differing estimates regarding the number of people displaced due to water resources projects in India. Iyer3 writes, The numbers vary from 10 million to 40 million. The latter figure has been dismissed by some as an exaggeration; the former is clearly an under-estimate. While a figure that commands widespread acceptance is not available, it seems unlikely to be much lower than 20 million.

There are a number of other estimates of the number of people displaced by reservoirs in India. Noted writer Arundhati Roy4 estimates this number to be 33 million in the 50 years after independence. Shekhar Singh,5 as part of his India Country Study for the World Commission on Dams, estimated that the number of people displaced due to large dams could be 56.68 million. He acknowledges that this could be an over-estimation, but he adds, ‘However, given the hesitation of the government to make data available, this is the best estimate that can be made …. At best the variation would be of the order

3

Iyer, ‘Towards a Just Displacement and Rehabilitation Policy’. Roy, The Greater Common Good, p 10. 5 Singh and Banarji, Large Dams in India, p. 66. 4

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of 25 per cent.’ So even if we assume the figure is 25 per cent lower than the estimate of 56.68 million, it would still come to 45 million. In a submission to the World Commission on Dams, Himanshu Thakkar6 noted, ‘Fernandes, Das & Rao claimed in 1989 that Indians displaced by dam projects number 21 million’. That submission, based on people displaced by 140 major and medium dams, estimated that just these 140 projects displaced over 4.39 million people and considering India has already built 4,525 large dams,7 the estimate of the number of people displaced by big dams would be in several tens of millions. Similarly, based on the figures of submergence due to large dams of India from the Central Water Commission (CWC) database covering 3,148 reservoirs, Thakkar and Chaturvedi8 estimated that the total area submerged by 4,528 large dams in India is likely to be 4.426 million ha. This is only the land that has been used by the reservoirs of the large dams and not the total land used by such projects. The latter would be a much larger figure. For example, while the controversial Sardar Sarovar Dam on the Narmada River submerged about 37,000 ha of land due to the reservoir, the canals of the project were expected to need an additional area of over 180,000 ha of land.

Who Gets Displaced An important issue in this regard is the constitution of the people displaced by big dams. Even the Government of India noted,9 ‘There are no reliable statistics with break up of social and economic classification of the people displaced by each of large projects since independence. Almost half of the displaced persons are tribals who have least resources, experience, and temperament to negotiate their lives after displacement.’ Compare this with the fact that tribals constitute about 8 per cent of India’s population. Similarly, Singh and Banarji10 note, ‘Together, nearly 45 per cent of the population displaced were tribals and members of the scheduled castes. Considering their population nationally is only a little over 24.5 per cent, clearly their representation among those displaced was disproportionately high.’ 6

Thakkar, ‘Large Dam Projects & Displacement in India’. Central Water Commission, National Register of Large Dams, p. xiii. 8 Thakkar and Chaturvedi, ‘Over One Crore Acres Submerged by Large Dams in India’. 9 Planning Commission, Mid Term Appraisal of Ninth Five Year Plan (1997–2002), p. 89. 10 Singh and Banarji, Large Dams in India, p. 95. 7

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In this context, it is important to note that the affected people almost never get benefits from these projects. Let us take the example of the most celebrated of India’s dams, namely the Bhakra Dam on Sutlej River in Himachal Pradesh. When, in the 1970s, decades after the Bhakra Dam was completed, the then Union Irrigation Minister, K.L. Rao,11 visited it he recorded: It is curious to observe how we handle our projects without sparing a thought for the affected people. When the Bhakra Dam was built, the village of Bhakra, situated on the banks of the Sutlej was submerged and the people build their houses on the adjacent hills. The project resulted in great suffering to the people of the village, but nobody took note of the people’s representations. It was many years later, during one of my visits to the dam site, that I found that the new village of Bhakra had neither drinking water nor electricity though surrounded by blazing brilliant lights. This was indeed unfair and I asked the Bhakra Management Board to supply both power and water to the village. Even then there were objections. The Management Board thought that this was not a proper charge on the project. This indeed was absurd approach ....

The story is not much different for other large dams.

Track Record on Addressing Social Issues The first issue that confronts us when looking at the social impact of water resources projects is the track record of the government and project developers in addressing the social impacts. After displacing millions, the project developers cannot claim to have satisfactorily resettled the people displaced by even a medium-sized project. The people displaced by the large dams of the past like the Bhakra, Hirakud, Pong, Gandhisagar, Jaikwadi, Tawa and Bargi, and so on remain to be resettled even as per the norms accepted by the official agencies when these projects were taken up and as per the official reports. Sardar Sarovar, Tehri, Narmada Sagar, Mann, Bisalpur, Omkareshwar and Polavaram are some of the recent projects where an unacceptable situation prevails on rehabilitation issues. Nor do we have a proper policy, law or institutional mechanism to ensure that resettlement actually happens. Most importantly, even the appraisals of the social impacts of the projects have been shoddy. 11

Rao, Cusecs Candidate, p. 79.

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The Policy Regime The National Water Policy (2002) of the Government of India has the following to say about R&R: Optimal use of water resources necessitates construction of storages and the consequent resettlement and rehabilitation of population. A skeletal national policy in this regard needs to be formulated so that the project affected persons share the benefits through proper rehabilitation. States should accordingly evolve their own detailed resettlement and rehabilitation policies for the sector, taking into account the local conditions. Careful planning is necessary to ensure that the construction and rehabilitation activities proceed simultaneously and smoothly.

Interestingly, the word ‘displacement’ does not figure in the policy. Various agencies like the Central Water Commission, Union Ministry of Environment and Forests, Home Ministry, Ministry of Social Justice and Empowerment, and Ministry for Tribal Affairs have come out with guidelines on R&R aspects, but none of them has legal force. The report of the Government of India-appointed National Commission for Integrated Water Resources Development (1999) did note12 that the R&R activities ‘appear to suffer from deficiencies’ and that ‘R&R of project affected persons (PAPs)13 should receive total attention in the long term interests of the country’. The Commission subsequently came out with its own set of guidelines.

State Policies A number of States have their own R&R policies, these include Maharashtra, Madhya Pradesh, Orissa, Haryana, Tamil Nadu, Andhra Pradesh, Rajasthan and Uttar Pradesh. Many of these States have drafted these policies because the World Bank loans that they were seeking for irrigation or water resources development required them to have such policies. Maharashtra and Madhya Pradesh were some of the earliest States that drafted such polices and also passed laws, but the laws remained ineffective for lack of formulation of rules, as in the case of Madhya Pradesh.

12 13

GOI, Integrated Water Resource Development, pp. 307–08. Project Affected Persons.

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Some Organisation-specific Policies Organisations like the National Hydroelectric Power Corporation Limited (NHPC) and the National Thermal Power Corporation Limited [NTPC; now also involved in the construction of dams in the context of hydropower, for example the Kol Dam (Himachal Pradesh) and Loharinag Pala (Uttarakhand)] have formulated their own R&R policies. NHPC’s draft of R&R policy was made public in June 2007, inviting comments, but it is not clear what has happened to it. NTPC’s policy actually came in the context of its thermal power projects, when it was yet to enter the hydropower sector. These policies also are statements of intent and do not have legal force. Detailed critiques of some of these policies are available, but it is not necessary to go into those details here.

Some Project-specific Policies Some projects like the Sardar Sarovar Project (SSP), Tehri, among others have had project-specific R&R packages. Among these, and in fact, all other packages, the R&R package under the SSP is the most elaborate and, possibly, the most progressive. This became possible largely due to the struggles of the affected people under the Narmada Bachao Andolan and some other organisations. Other factors that played a role in formulating the SSP policies include the Award of the Narmada Water Disputes Tribunal, under which the SSP is under implementation; the World Bank loan to the project; the inter-State impacts of the project and also some of the orders passed by the judiciary. In the SSP package, there is provision to provide 2 ha of cultivable land (with irrigation to be provided at the State expense) for all the affected people, including landless labourers, those who did not have legal titles to the lands they were cultivating and also the major sons (and daughters in the case of Maharashtra) on the cut-off date provided in the policy. The policy also provided for community rehabilitation and clearly defined provisions of amenities. More importantly, there was definition of the cut-off dates and deadlines for various purposes and mechanisms were put in place to ensure that the construction of the dam progressed only pari passu with the progress in R&R. Unfortunately, most of these legally enforceable provisions stand violated in one way or the other, for most of the affected people. The governments of Gujarat, Maharashtra and Madhya Pradesh as also the Union Government that accepted these provisions have refused to

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provide same policy provisions for people affected by other projects in their territories or even for people affected by SSP for reasons other than reservoirrelated displacement. The National Rehabilitation and Resettlement Policy (NRRP) 2003 and 2007 also fell far short of the provisions accepted by the Government of India for SSP.

National Policy on Resettlement and Rehabilitation (NPRR) 2003 The first ever National Policy on Resettlement and Rehabilitation (NPRR) became effective with publication of the policy in a gazette in February 2004. The NRRP 200714 says about the NPRR 2003, ‘A National Policy on Resettlement and Rehabilitation for Project Affected Families was formulated in 2003, and it came into force w.e.f. February, 2004. Experience of implementation of this policy indicates that there are many issues addressed by the policy which need to be reviewed.’ This statement is untrue and misleading, as three years after its notification the NPRR 2003 remained completely unimplemented and the Union Government has done nothing to ensure its implementation, as was accepted by the Union Rural Development Ministry officials at a meeting on 27 December 2006. This also reflected the lack of credibility of the Union Government on R&R issues. Since the NPRR 2003 is no longer applicable as a policy, there is no need to discuss this at greater length here, though it may be added that there were wideranging criticisms of the policy.

National Rehabilitation and Resettlement Policy (NRRP 2007)15 There has been a long process that has preceded the passing of the NRRP 2007 by the Union Cabinet on 11 October 2007. An important aspect of this process was the draft of the policy prepared by the National Advisory Committee (NAC) headed by Mrs Sonia Gandhi, Chairperson of the UPA (United Progressive Alliance, which has been in power at the Centre since May 2004) coordination committee. That draft was formulated after a 14 15

http://www.dolr.nic.in/NRRP2007.pdf. Last accessed on 14 November 2007. Published in Gazette of India Extraordinary, 31 October 2007.

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process of consultation in which many people involved in this issue were involved and the draft was officially sent to the government from NAC. But the bureaucracy-dominated decision-making process dumped that draft and came out with a new draft NPRR in October 2006. In a strange move, on 4 October 2006, the Ministry of Rural Development issued a notice in The Times of India stating that the National Rehabilitation Policy 2006 has been put up on the Ministry of Rural Development website for comments before 11 October 2006, that is, just a week from the date of advertisement. This short notice, with provision of the Draft policy only on the website and that too only in English was strongly protested by many groups all over India. The Ministry, in a hurriedly called meeting on 27 December 2006, claimed that they accepted the comments received even after the deadline, but that explanation does not help wash the impropriety of the process. In the 27 December meeting, it was unanimously suggested to the Ministry to translate the draft policy along with the NAC draft into the Indian languages of India and hold public consultations, the process to be completed in six months by an independent, credible committee. The Ministry said that this was too time-consuming a process, even though the cabinet passed the draft only 10 months later. The Government of India declared16 on 11 October 2007, ‘The Union Cabinet today gave its approval for the National Policy on Rehabilitation and Resettlement, 2007,17 to replace the National Policy on Resettlement and Rehabilitation for Project Affected Families, 2003’. The announcement was notable for another statement: ‘The Cabinet also decided to bring a legislation on the lines of the new Rehabilitation and Resettlement Policy, and to suitably amend the Land Acquisition Act, 1894.’ However, there has been no time line as to when this legislation will come about. Even on 27 December 2006, the ministry officials said that they were discussing a legislation on the lines of NRRP with the Law Ministry. Ten months down the line, there seems to be little progress on that front. At a meeting in Delhi on 19 November 2007, held to discuss the NRRP 2007, the Union Minister for Rural Development announced that he would make available the draft Act for NRRP 2007 and also the draft amendment Act for the Land Acquisition Act, but his ministry, later that day, conveyed that the drafts could not be made available till they were tabled in the Parliament. 16 Press Release of Press Information Bureau, Government of India, dated 11 October 2007. 17 Henceforth, NRRP 2007.

Displacement in the Name of Development 423

The Minister on that day announced that the draft would be tabled in the Parliament within days. Let us look at the NRRP 2007 in some detail. The NRRP 2007 has many interesting statements. For example, Section 1.4 says: The aim should be to minimise large-scale displacement, as far as possible. Only the minimum area of land commensurate with the purpose of the project may be acquired. Also, as far as possible, projects may be set up on wasteland, degraded land or un-irrigated land. Acquisition of agricultural land for non-agricultural use in the project may be kept to the minimum; multi-cropped land may be avoided to the extent possible for such purposes, and acquisition of irrigated land, if unavoidable, may be kept to the minimum. Prior to initiating the acquisition of land for a project, the appropriate Government should, inter alia, take into consideration the alternatives that will (i) minimise the displacement of people due to the acquisition of land for the project; (ii) minimise the total area of land to be acquired for the project; and (iii) minimise the acquisition of agricultural land for non-agricultural use in the project. The options assessment may be in terms of the alternative project plans, potentially suitable sites, technological choices available, or a combination of these. Suitable institutional mechanism should be developed and adopted by the appropriate Government for carrying out the task in a transparent manner.

The trouble with all these statements is that there is no mechanism to verify if this is indeed being done and without such compliance ensuring mechanism, these statements are not useful at all for the affected people. The fact that the provision to ensure a minimum displacing option existed in the NPRR 2003 and yet nothing was done to ensure its implementation does not inspire confidence about such provisions in the NRRP 2007. More shockingly, the policy, even when it provides for some land, these provisions are qualified with terms such as far as possible,18 or if Government land is available in the resettlement area19 or to the extent possible 20 or if Government land is available in the resettlement area.21 The policy also says that even such land can be provided only when it does not lead to additional displacement. First, these qualifications in reality would mean that no displaced people will get any land under this policy as there is no vacant cultivable government land available in India, that is not being put to some use by some people. Secondly, such qualified statements are not acceptable 18

Section 5.5 (vi) and Section 7.22.4 (a) & (b) of the NRRP 2007. Section 7.4.1 of the NRRP 2007. 20 Section 7.4.2 of the NRRP 2007. 21 Section 7.21.3 of the NRRP 2007. 19

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in an R&R policy. Thirdly, since land is the only productive means of livelihood for most people dependent on land in India, if the policy cannot ensure land-based R&R, it cannot be a just R&R, as is evident from the cash compensation-based policies of the past. Similarly when the NRRP 2007 talks about providing employment to affected people, the provision is qualified with subject to the availability of vacancies and suitability of the affected person for the employment.22 Such qualifications cannot have any place in any just policy and render the provisions non-mandatory, and hence not likely to be implemented. While mentioning the need for providing amenities and infrastructural facilities at the resettlement sites23 the policy does not give even norms for the provision of such facilities, nor deadlines as to when they should be provided. The 2007 policy does have some welcome features, for example the need for Social Impact Assessment24 (when a project involves ‘involuntary displacement of 400 or more families en masse in plain areas, or 200 or more families en masse in tribal or hilly areas, DDP blocks or areas mentioned in the Schedule V or Schedule VI to the Constitution’) and the mandatory nature of SIA clearance,25 among others. There is also a promise to bring in a legislation to make the R&R policy legally binding. But that remains an empty promise till an appropriate bill is passed and implemented. Similarly, implementation of many other crucial aspects of the NRRP 2007 awaits the procedures, rules and mechanisms that have been promised in the policy. On the issue of compliance, which is the biggest lacuna in government projects, the policy falls far short of the basic requirement to ensure compliance. For example, Section 5.10 of the policy says, ‘The Commissioner for Rehabilitation and Resettlement shall be responsible for supervising the formulation of rehabilitation and resettlement plans or schemes and proper implementation of such plans or schemes’, but the policy is silent as to what powers the commissioner has to achieve this, and what is to be done when the commissioner is found wanting in ensuring achievement of this objective. Section 8 describes the Grievance Redressal, including the ombudsman, but this is lacking in crucial details about the powers and resources of the ombudsman, and about ensuring his independence and seeing to it that his orders are implemented. Similarly, the policy mentions the provision of Internal Oversight (Section 9.4) and External Oversight (Section 9.5), but both are lacking in basic details. 22

Section 7.13.1(a) of the NRRP 2007. Section 7.22.1 of the NRRP 2007. 24 Section 4.1 of the NRRP 2007. 25 Section 4.6 of NRRP 2007. As defined in the R&R Bill, ‘DDP block’ means a block identified under the Desert Development Programme of the Government of India. 23

Displacement in the Name of Development 425

The NBA, in its comment26 on the announcement of clearance of the NRRP 2007 by the Union Cabinet, said: With keeping the Land Acquisition Act intact, the UPA government has resorted to partial betrayal of the farmers and all others who are made to sacrifice for development projects … the policy would be facilitative more to the interests of the corporates and developers than the affected populations.

Commenting on the NRRP 2007, well-known expert Shripad Dharmadhikary of Manthan Adhyayan Kendra said, ‘There is real danger that the policy will again end up paying lip-service to the affected people with the mistaken hope that this will pacify the protests against large scale displacement taking place all over the country.’

Legal Situation The Indian state has the right to acquire land and other properties in the name of development, affecting millions of people, but it does not have the legal obligation to ensure that the people affected by projects taken up in the name of public purpose are resettled in a just way so that people are not worse off due to such projects. This is an unacceptable situation. People do not have a legally enshrined right to resettlement or to rehabilitation. One exception was the case of the SSP, where the Narmada Water Disputes Tribunal Award (NWDTA, which has a legal force under the InterState Water Disputes Act) described the steps to be taken for R&R of the affected people. This made it mandatory on the part of the governments to follow the order of the NWDTA and resettle the affected people accordingly, and when the state failed to do that, the affected people had the right to go to the courts and demand R&R as per the NWDT Award. Unfortunately, the Indian judiciary has failed to protect that legal right too, as we will see in the following section.

Land Acquisition Act The Land Acquisition Act (LAA) 1894, amended from time to time, has remained the legal instrument for the acquisition of land and related 26

NBA Press Release, 17 October 2007.

426 Himanshu Thakkar

resources in the name of ‘public purpose’. That Act only talks about cash compensation for the land acquired; there is no provision for the R&R of the affected people in LAA or any other Act. The cash compensation amount is not designed to buy equivalent new land and most of the time it is too low to buy even 2 ha of land, which is equal to the holding of a small farmer. The compensation amount has been challenged in the courts and, in many instances, the courts have enhanced the amount, but only a few resourceful and relatively better-off farmers have benefited from this. Even the enhanced compensation was rarely, if ever, sufficient to buy replacement land. Most importantly, the decision about the project being for a public purpose was not open to legal challenge.

The Role of the Judiciary The issue of R&R of the people affected in the name of development projects seems so clear-cut that one would have thought that the judiciary would have no problems in interpreting the Right to Life to include the Right to Just Rehabilitation and also ensuring that just R&R indeed happens. But the situation is deeply disappointing here. As mentioned earlier, the affected people in an overwhelming majority of the cases have been unable to get just R&R as a basic right, even with judicial interventions. The Judiciary has enhanced the compensations in some cases, as mentioned earlier, but this has been far from adequate for the affected people to get properly resettled. Even in a case like the projects in the Narmada Valley, where the combined impact of the struggle of the affected people, the NWDTA and accepted government policies provided a more than sufficient explicit legal force, the judiciary has not been able to ensure that R&R happens as legally required. For example, even in the case of SSP, where the maximum number of people affected by the reservoir came from Madhya Pradesh, the government of that state told the court in an affidavit that they do not have the land and hence has decided to give cash compensation to the affected people in complete violation of the legal stipulations. The Supreme Court did not intervene to ensure that what was legally required and what was necessary for the justice to the affected is indeed implemented, in spite of numerous agitations, articles in the national media and petitions before the Supreme Court. As Jain27 notes about the majority judgement in the Supreme Court in the Sardar Sarovar case in October 2000: 27

Jain, Dam v. Drinking Water, p. 3, emphasis in original.

Displacement in the Name of Development 427 The ideology it has propounded has a tone of finality about it. Sad to say the Majority Judgement views the displacement of the Tribal population from their place and their past of mode of life, as a desirable goal by itself, and thus bestows general amnesty to the displacement of the Tribals. (Emphasis in original.)

So in spite of some welcome orders, the role of the judiciary has largely been disappointing in ensuring just R&R for the displaced people.

The Struggles Because of the injustices that millions of people affected by big dams have suffered and because the system was unable to provide justice to them, there have been many agitations around such projects. These agitations range from those demanding just R&R before or after the project to those opposing the projects themselves. Such agitations have been occurring from the early twentieth century onwards, and some of the recent projects where such agitations have come to light include the SSP, Indira Sagar, Omkareshwar, Maheshwar, Tehri, Koel Karo, Auranga, Bedthi, Indravati, Inchampalli Bhopalpatanam, Polavaram, Karcham Wangtoo and Allain Duhangan.

The Proposed Act As noted earlier, on 11 October 2007 the Government of India announced that it plans to bring legislation on the lines of the NRRP 2007. This is a welcome step, with the qualification that how good this step is would depend on the details of the legislation when it comes about and how serious the government is in implementing the legislation. This would be a welcome step because this will make R&R a legally enforceable right, which at present it is not. All along, the government has been using the eminent domain principle to acquire land and other resources of people, without giving people the right to just resettlement. Right to just resettlement can be easily read into the right to life of the Constitution, but the governments and the judiciary have not found it necessary to do so in the explicit and detailed manner that is necessary. Even the NRRP 2007 mentions the exercise of the principle of eminent domain in its Preamble, ‘Provision of public facilities or infrastructure often requires the exercise of legal powers by the state under the principle of eminent domain’, which could have been avoided. Moreover, the announcement of the Government of India on 11 October 2007 makes it clear that the colonial LAA will remain in place with

428 Himanshu Thakkar

some amendments. How the LAA will function along with the new proposed legislation will not be clear till the proposed legislation and the changes in LAA are in the public domain.

The WCD Recommendations In November 2000, the report of the World Commission on Dams (WCD) was made public.28 The WCD process was unique in the global development debate in terms of the inclusive, open, transparent, participatory and rigorous process that it went through. Hence, the recommendations of the WCD report provided an important opportunity for progress in resolving the issues surrounding large dams, including R&R issues. Some of the major recommendations of the WCD that are relevant to the issues under discussion here are given as follows.

Gaining Public Acceptance Public acceptance of key decisions is essential for equitable and sustainable water and energy resources development. Acceptance emerges from recognising rights, addressing risks and safeguarding the entitlements of all groups of affected people, particularly indigenous and tribal peoples, women and other vulnerable groups. Decision-making processes and mechanisms that enable informed participation by all groups of people will result in a demonstrably acceptable set of key decisions. Joint negotiations with adversely affected people result in mutually agreed upon and legally enforceable mitigation and development provisions. In cases where the projects affect indigenous and tribal people, such processes should be guided by their free, prior and informed consent.

Comprehensive Options Assessment To explore all alternatives, the needs of water, food and energy should be assessed and clearly defined. The appropriate development response is identified through a range of possible options. The selection is based on a comprehensive and participatory assessment of the full range of policy, 28

World Commission on Dams ‘Dams and Development’.

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institutional and technical options. In the assessment process, social and environmental aspects have the same significance as economic and financial factors. The options assessment process continues through all stages of planning, project development and operations. Increasing the effectiveness and sustainability of the existing water, irrigation and energy systems is given priority in the options assessment process. Options assessment and decisionmaking prioritise the avoidance of impacts, followed by the minimisation and mitigation of harm to society and the environment.

Addressing Outstanding Social Issues Opportunities must exist to identify, assess and address outstanding social issues and strengthen the mitigation measures of existing dams. Processes and mechanisms should be developed with the affected communities for this. Releasing the required environmental flows can help maintain the downstream ecosystems and the communities that depend on them.

Ensuring Compliance Ensuring public trust and confidence requires that governments, developers, regulators and operators meet all the commitments made for the planning, implementation and operation of dams. Compliance with applicable regulations, with criteria and guidelines, and with project-specific negotiated agreements must be secured at all critical stages in project planning and implementation. For each large dam, there should be an independent empowered committee that includes the representatives of the affected people, to the extent of 50 per cent of the committee members, which would monitor and ensure compliance. The committee will have the power to stop work on the project when compliance is not in place, and in case of other violations. However, as Iyer29 has noted, ‘Official attitudes to the WCD were perhaps more hostile in India than anywhere else’, and the Ministry of Water Resources, Government of India, said that they were rejecting the WCD report. It was clearly a loss of a great opportunity. The aforementioned recommendations need to be included in any just R&R policy.

29

Iyer, ‘Towards a Just Displacement and Rehabilitation Policy’, p. 3104.

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Conclusion In an otherwise bleak situation, the NRRP 2007 and the announcement of the legislation on the lines of the NRRP 2007 appear to provide a glimmer of hope. However, closer reading shows that at least the NRRP is a huge disappointment. As far as the proposed legislation on the lines of NRRP 2007 is concerned, it is not clear if and when that hope will turn into reality. In the meantime, the affected people have no choice but to keep fighting for their rights and opposing displacement when just resettlement and democratic decision-making is not possible.

Postscript30 As this book went into its final editing phase in December 2007, ‘The Rehabilitation And Resettlement Bill, 2007’ ( Bill no. 98 of 2007) and its companion bill, ‘The Land Acquisition (Amendment) Bill, 2007’ ( Bill no. 97 of 2007),31 were introduced in the Lok Sabha. Both bills were then referred to the Parliamentary Standing Committee on Rural Development. The Parliamentary Standing Committee was to send its report to the Parliament with its recommendations.The Standing Committee in turn invited memorandums from the various interested individuals and groups across the country on the two proposed bills. The last deadline for the submission of such memorandum was 22 February 2008. The Standing Committee, after going through the submissions and also hearing some of the invited experts, would submit its report for consideration of the Parliament. This process would take a few months before the two Acts become a reality. The contents of the two bills leave a lot to be desired. The R&R bill is in fact almost a carbon copy of the R&R policy, so all the criticisms mentioned above about the R&R policy apply to the proposed bill, possibly even more strongly, as an Act would have a greater force than a policy. Moreover, civil society groups also publicly demanded that both bills be translated into the recognised Indian languages, hard copies be made available at the Panchayat

30

Added on 8 March 2008. Both bills available in Hindi and English on the website of the Department of Land Resources, Ministry of Rural Development, Government of India, at http://dolr.nic.in/ (last accessed on 14 November 2007). 31

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level among the affected groups and others, and a broad-based public consultation be carried out before finalising the bills.

References Central Water Commission (CWC). 2002. National Register of Large Dams. New Delhi: Government of India. Dharmadhikary, Shripad. 2007. ‘Resettlement is Still a Mirage’. Available online at http:// southasia.oneworld.net (last accessed on 14 November 2007). Government of India (GOI). 1999. Integrated Water Resource Development: A Plan for Action. Report of the National Commission for Integrated Water Resources Development. New Delhi: Ministry of Water Resources, Government of India. ———. 2004. ‘National Policy for Resettlement and Rehabilitation’, Gazette of India: Extraordinary, 17 February. ———. 2007. ‘National Rehabilitation and Resettlement Policy’, Gazette of India: Extraordinary, 31 October. Iyer, Ramaswamy R. 2007. ‘Towards a Just Displacement and Rehabilitation Policy’, Economic & Political Weekly, XLII(30): 3103–7. Jain, L.C. 2001. Dam v. Drinking Water: Exploring the Narmada Judgement. Pune: Parisar. Planning Commission. 2000. Mid-Term Appraisal of Ninth Five Year Plan (1997–2002). New Delhi: Government of India. Rao, K.L. 1978. Cusecs Candidate: Memoirs of an Engineer. New Delhi: Metropolitan Book Co. Pvt. Ltd. Roy, Arundhati. 1999. The Greater Common Good. Bombay: India Book Distributors. Singh, Shekhar and Pranab Banarji. 2002. Large Dams in India: Environmental, Social & Economic Impacts. New Delhi: Indian Institute of Public Administration. Thakkar, Himanshu. 2000. ‘Large Dam Projects & Displacement in India’, a submission to the World Commission on Dams, New Delhi. Available online at http://www.dams. org/docs/kbase/contrib/opt161.pdf Thakkar, Himanshu and Bipin Chaturvedi. 2007. ‘Over One Crore Acres Submerged by Large Dams in India’, Dams, Rivers & People, 5(4–5): 8–9. WCD. 2000. ‘Dams and Development: A New Framework for Decision Making’, Report of the World Commission on Dams. London: Earthscan.

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Groundwater Law in India 433

Groundwater

434 M.S. Vani

17

Groundwater Law in India: A New Approach M.S. Vani

Introduction Groundwater is one of the most important natural resources. Replenishable groundwater resource is mostly derived from precipitation. The National Commission on Integrated Water Resources Development has estimated that of the 431 billion cubic metres (bcm) of groundwater available in the country, 396 bcm is annually recharged and can be used.1 India has in the last three decades witnessed a rapid expansion of groundwater use, resulting in improved agricultural production, and access to water for drinking and domestic use, and for industrial and other purposes. Groundwater provides 80 per cent of water required for domestic use in rural areas and about 50 per cent of water for urban and industrial areas.2 Altogether, however, these account for only 7 mha. About 36 mha are used for irrigation, accounting for nearly 60 per cent of the total irrigation potential in the country, irrigating about 32.5 mha compared to the 25.8 mha irrigated by all major and medium irrigation projects put together.3 The stage of groundwater development for the country as a whole works out to be 37 per cent.4 Development of groundwater has been mostly achieved through individual and cooperative efforts of farmers. The main groundwater structures are dug wells, shallow tube-wells and public tube-wells. The number of such structures as estimated by the 3rd Minor Irrigation Census (2001) is 18.5 million (9.6 million dug wells, 8.3 million shallow tube-wells, and 0.05 public tube-wells). 1

Phansalkar and Kher ‘A Decade of the Maharashtra Groundwater Legislation’. Government of India, Master Plan for Artificial Recharge to Groundwater in India. 3 ISRO, ‘Targeting Groundwater Using IRS-1C Data’. 4 Government of India, Master Plan for Artificial Recharge to Groundwater in India. 2

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Groundwater distribution is not uniform and is subject to wide spatiotemporal variations.5 India is a vast country with varied hydro-geological situations resulting from a diversified geological, climatological and topographic set-up.6 The rock formations, which control the occurrence and movement of groundwater, vary widely in composition and structure7. The physiography varies from the rugged mountainous terrains of the Himalayas, Eastern and Western Ghats and the Deccan Plateau to the flat alluvial plains of the river valleys and coastal tracts, and the Aeolian deserts in the western part.8 Similarly, the rainfall pattern also shows region-wise variations. In spite of a favourable situation regarding the availability of groundwater in the country, several problems have emerged in the groundwater sector, mostly in the nature of depletion and scarcity. In many parts of the country where groundwater resources are limited, utilisation of groundwater has reached a peak, resulting in a drastic decrease in water levels and the drying up of existing wells. Three problems dominate groundwater use:9 z z

z

depletion due to overdraft; waterlogging and salinisation mostly due to inadequate drainage and insufficient conjunctive use; and pollution due to agricultural, industrial and other human activities.

With respect to depletion, 5.4 per cent of the total 4,272 blocks in the country have been categorised as ‘over-exploited’, where the stage of groundwater development exceeds the annual replenishable limit and 2.5 per cent blocks are ‘dark’, that is, where the stage of groundwater development is more than 85 per cent.10 However, the most common symptom is the secular decline in water tables.

5

Government of India, Master Plan for Artificial Recharge to Groundwater in India. Ibid. 7 Ibid. 8 Ibid. 9 Shah et al., The Global Groundwater Situation. 10 In Andhra Pradesh, Gujarat and Maharashtra, groundwater resource assessment has been carried out on the basis of mandals, talukas and watersheds, respectively. In Andhra Pradesh, six mandals have been categorised as ‘over-exploited’ and 24 as ‘Dark’, out of 1,104 mandals. Similarly, out of 184 talukas in Gujarat, 12 are ‘over-exploited’ and 14 are ‘Dark’, and out of 1,503 watersheds in Maharashtra, 34 are ‘Dark’. See Phansalkar and Kher, ‘A Decade of the Maharashtra Groundwater Legislation’. 6

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The types of groundwater problems are not the same everywhere in the country. Besides the general problem of decline in reserves, specific ones also occur. Each region, with its own specific geo-hydrological characteristics, exhibit specific acute symptoms. Some of these are as follows:11 z z

z z

z

z

z

z

z

Overdraft and salinity in Punjab, Haryana and western Rajasthan. Fluoride contamination of groundwater in north Gujarat and southern Rajasthan. Arsenic contamination in West Bengal. Saline ingress into coastal aquifers and damage to fragile ecologies such as wetlands in coastal areas. A particular example is Saurashtra, Gujarat. Alarmingly depleted tables in urban areas due to the high density population and urban industrialisation. Large drinking-water schemes for cities are affecting the water availability in rural areas. Many parts of Gujarat, for instance, exemplify this situation.12 By the early 1970s, 6 mha of canal irrigated areas were suffering from waterlogging and salinisation. These have increased substantially since then.13 Salinity—1 mha of major commands; salinity with waterlogging in many arid and semi-arid areas. Pollution of aquifers in Tamil Nadu and Gujarat due to tanneries, and textile and chemical industries.

Impacts of Groundwater Degradation The widespread problems that have arisen due to mismanagement of groundwater have many adverse impacts, socially, economically and environmentally. Use of groundwater presents one of the most important opportunities for the poor. To small and marginal farmers with no access to irrigation commands, groundwater is the only option for productive agriculture, and a difference between mere subsistence and a productive life. With groundwater depletion, such farmers with no financial capacity for deeper explorations or 11

Phansalkar and Kher, ‘A Decade of the Maharashtra Groundwater Legislation’. Vani et al., ‘A Drinking Water Supply to Rural Gujarat’. 13 Gupta et al., ‘Water Resource Management’. 12

438 M.S. Vani

alternative occupations face a relapse into acute poverty. It further deepens the disparity between developed and underdeveloped regions. The different regions’ capacity to feed their growing population is impaired. According to David Seckler, Director General, International Water Management Institute (IWMI) , a quarter of India’s harvest may well be at risk from groundwater depletion.14 Health problems arising out of groundwater contamination through pollution or overdraft, and inter-sectoral conflicts between industry, agriculture, domestic and drinking water as well as between urban and rural areas in terms of access to groundwater are additional impacts related to the inappropriate management approaches to groundwater, and water and land resources in general.

Causes of Groundwater Problems The depletion of groundwater reserves needs to be viewed in the overall context of the status of water and land resources in the country. India’s annual per capita water availability is expected to go below the water-scarce threshold level of 1,700 cubic metres within the next two decades. In six of the country’s 20 major river basins (with less than 1,000 cubic metres of annual per capita availability), water resources are under stress and depleting. By the year 2025 five more basins will become water-scarce, and by 2050, only three basins in India will remain water-sufficient.15 A primary reason for the depletion of water resources is the total neglect, since the inception of the colonial mode of resources governance, to adopt a monsoon-based strategy for the development and management of water resources. With respect to land resources, according to estimates made by the Ministry of Agriculture in March 1980, as much as 175 mha out of a total of 305 mha for which records exist were subject to environmental problems.16 The concept of land management has never replaced the revenueadministration approach to land resources bequeathed by the British to India. With the exception of Kerala, which now has a draft policy, none of the States in India have had land use policies for the last more than half a century since independence.17 Post-independence, the agriculture policy, with its focus on 14

Phansalkar and Kher, ‘A Decade of the Maharashtra Groundwater Legislation’. Selvarajan, ‘Sustaining India’s Irrigation Infrastructure’. 16 Government of India, Sixth Five Year Plan. 17 Vani, ‘Political Economy of Rainwater Harvesting in India’. 15

Groundwater Law in India 439

enhancing food production, took no note of the environmental consequences of the so-called Green Revolution package of hybrid seeds, intensive water use, chemical fertilisers and pesticides. The inter-relatedness of groundwater and surface water has been wellestablished. The management of surface water has fundamental implications for both groundwater quantity and quality at all stages and points of the hydrological cycle.18 There has been a significant level of deterioration in both the extent and the quality of forest cover in the country. It has been estimated that the actual forest cover is only 19.39 per cent of its total geographical area as against the recorded forest area of 23.28 per cent. The per capita availability of forests is 0.08 hectare acres, which is much lower than the world average of 0.8 hectare acres.19 About 41 per cent of forest cover of the country has already been degraded and is losing its crown density and productivity continuously.20 The current problems associated with groundwater in India may be perceived to be the direct result of the failure or neglect to follow an integrated approach to natural resources use and management, not only since independence but also for at least 150 years, since centralised administration of resources began under colonial rule. A major reason for this situation is the obsession with large-scale irrigation projects in the country since 1951, which has prevented the adoption of scientific and ecologically viable methods of water management such as river diversions (such as traditional anicuts), reduction of run-off losses and conservation of groundwater resources.21 Policy approaches for the integrated, participatory natural resource management that have been witnessed over the last decade or so around the country are yet to be translated into law. Economic reform processes in the natural resources sector are engendering change in legal frameworks, introducing yet another dimension and direction (market economy) that divert from the fundamental need to adopt an ecological approach to the governance of natural resources. Groundwater law in the country as it prevails today is firmly located in the same unsustainable legal frameworks on natural resource.

18

FAO, ‘Groundwater Management: The Search for Practical Approaches’. Dogra, India: Eroding the Gains from Forest Protection. 20 Government of India, National Forestry Action Programme. 21 Leelakrishnan, Environment Law in India. 19

440 M.S. Vani

Purpose of Groundwater Law Many governments around the world have introduced legislation to regulate groundwater development to address issues that affect groundwater availability and quality.22 While the particular objectives of such statutes may reflect the specific concerns and requirements of the legislating governments, a common purpose is to achieve an effective, equitable and sustainable management of groundwater resources. The management approach for achieving this end may also differ according to the prevailing political economy of resource management in the legislating country. In India, the objectives of groundwater legislation need to be closely related to the specific issues, problems and concerns affecting this sector. First, to address the main concern of sustainability and quality of groundwater resource across the country, the primary strategy, as the Central Ground Water Board has pointed out23 would be the recharge of groundwater by harnessing monsoon run-off through artificial recharge techniques, to augment both surface water, which is the primary source water for groundwater, as well as groundwater aquifers directly. Since the monsoon rainfall is the primary source of water in the country, a management approach—in terms of institutional structures, functions, skills and technologies—is required to harness monsoon water at the appropriate time and place, and for the subsequent management of the harvested resource—both surface and groundwater—conjunctively. A legislative framework for groundwater should enable such an approach. Since rainwater harvesting is primarily conducted on land surfaces, groundwater legislation also needs to be linked organically to land use laws that regulate the use of public as well as private lands. This calls for an integrated legislative framework. The second issue of concern is that of equitable rights to groundwater. Being dependent on land, groundwater access is closely linked to access rights to land. It is well-known that inequity in access, use and ownership rights to land resources is a characteristic feature of land tenure systems in India. The issue of land rights is significant not only in rural areas but also in urban areas of the country, where a significant percentage of the poor and disadvantaged sections of the nation’s population reside. In the context of continuing inequity in land rights and a lack of effective legal and policy measures to address it, as well as the environmental criticality of groundwater resource, 22 23

Phansalkar and Kher, ‘A Decade of the Maharashtra Groundwater Legislation’. Government of India, Master Plan for Artificial Recharge to Groundwater in India.

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there is a need to redefine property rights in water to reflect a commonality of interests, rather than private interests. The nature of rights to groundwater, as of all water resources, may depend on the particular use of the resource. It may assume the nature of a basic, natural right in the context of water for drinking and domestic use. Use of the resource for agriculture may be for the purpose of securing basic livelihoods, or it may be for commercial agricultural purposes. Groundwater is also used extensively for industrial and other purposes. The nature and strength of the right need to reflect the priority of use that is set down in policy. The function of groundwater legislation would be the definition and effective regulation of such rights, inter-sectorally. A third important objective of groundwater legislation is the provision of appropriate institutional mechanisms for conflict resolution. The water resources sector as a whole, due to increased environmental degradation across the country, has given rise to wide-ranging conflicts involving a wide range of users of water for various purposes such as drinking and domestic use, agriculture, water-based industries and occupations, fisheries, urban use, industrial use, etc. Conflicts centre on issues related to the quantity and quality of water. Groundwater is equally a subject of conflicts as surface water, with, however, no comparable means of conflict resolution as the latter has under law. Groundwater conflicts frequently occur in the context of surface water and land-use patterns, which fall under independent administrative and regulatory regimes, which offer no scope for an inclusive approach. In the following section, the prevailing law on groundwater in India on the aforesaid main themes—rights, equity, institutional framework, integrated management and conflict resolution—is highlighted and discussed.

Current Law on Groundwater Nature of Groundwater Rights The questions that require to be answered in connection with rights to groundwater are: What laws constitute the source of this right? What is the nature of the right, public (state) or private (individuals or legal individuals like corporations) or common property? Rights to groundwater are derived from both statutory or written law as well as unwritten law, that is, customary law. It must be noted that groundwater use in India dates back to many centuries prior to the advent, courtesy

442 M.S. Vani

the colonial era, of modern, statutory law in India.24 India has a very long tradition of natural resource use and management under indigenous legal systems.25 Local law or customary law, which incorporates locally evolved norms, institutions and behaviour, can be found to be in practice in the use and management of natural resources in India. Much of groundwater use and management belong to such locally developed norms and practices, which have adapted to the changing environmental, social, economic and political conditions. Even while they change and adapt, the characteristic of local decision-making in many aspects of resource use has endured. In spite of the centuries-old legal tradition of water resources rights and management, current conceptions on water rights, including groundwater rights, in India are largely derived from one of the two prevailing European legal traditions—the common law tradition (the other being the civil law tradition).26 The following section discusses the laws applicable to groundwater in India, not as it has been derived from indigenous legal traditions, but as transplanted from the English common law tradition. Nature of Rights in Groundwater under Formal Law—Constitution, Central and State Legislation CONSTITUTIONAL RIGHTS In India, constitutional recognition of water itself as a basic human right is absent.27 Courts of law, however, have attempted to remedy the lacuna by 24 Archaeological evidence of wells was found in the urban sites of the Harappan Civilisation, circa 3rd to 2nd millennia bc. At Mohenjodaro and various other Harappan sites (for example, Kalibangan, Lothal, Surkotda, Chanhudaro, etc.), buildings have also yielded evidence of individual wells serving residential units. In fact, an archaeological survey suggests that every third house had a well. Besides private wells, there were also public wells. Evidence from one of the smaller Harappan culture sites—Allahdino (near Karachi)—suggests the possibility that the Harappans may have used wells for irrigated agriculture too. See Hooja, ‘Channeling Nature’. 25 Vani, ‘Customary Law and Modern Governance of Natural Resources in India’. 26 The common law tradition emerged from the law of England. Examples of jurisdictions where the common law tradition applies include the United States, Canada, Australia, Singapore, New Zealand, India, Pakistan, those African countries that are not in the civil law tradition as well as some other Commonwealth countries and a number of countries in the Middle East. The civil law tradition, sometimes described as the ‘Romano-Germanic family’, applies to most European countries (including the formerly socialist countries of Central and Eastern Europe), nearly all countries of Latin America, large parts of Africa, Indonesia and Japan as well as the countries of the former Soviet Union. See Hodgson, Land and Water—The Rights Interface. 27 South Africa is a rare case, where the right to access to water is embodied in the Constitution. Section 27(1)(b) of the Constitution states that everyone has the right to have access to sufficient

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conferring a Fundamental Rights status to water by recognising the right to clean and safe water as an aspect of the right to life. In this context, Articles 14 and 21 assume importance in the subject of groundwater law. The Supreme Court has recognised that the right to clean and safe water is an aspect of the right to life.28 The fundamental rights to equality, life and personal liberty have been held by courts to be violated by actions that adversely affect the availability of groundwater supplies.29 In the Dehradun Quarrying case, though the orders of the court did not articulate the fundamental right to a clean and healthy environment, the petition was treated as a writ under Article 32, which implied that the court was seeing this right in the light of a fundamental right. The Supreme Court explained the basis of this jurisdiction in the later case of Subhash Kumar v. State of Bihar where the court held that ‘the right to life is a fundamental right under Article 21 of the Constitution and it includes right of enjoyment of pollution free water, air for full enjoyment of life’, and that ‘if anything endangers or impairs the quality of life, in derogation of laws, a citizen has a right to have a 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 idea of right to a clean and healthy environment as part of fundamental rights has been concretised by the Supreme Court and High Courts in other cases as well.30 An important case is the Olga Tellis case31 in which the Supreme Court interpreted the right to livelihood as an integral part of the right to life, and any person who is deprived of his right to livelihood by law can challenge the deprivation as offending the right to life conferred by Article 21.32 However, judgements of the courts do not reflect the day-to-day practice in the exercise of rights, but constitute a final recourse to protect or uphold rights through specific litigious action, case by case. The operative law on groundwater has to be looked for elsewhere.

water. Section 27(2) requires the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right. France does not provide for a right to water in its Constitution, but the French Water Act adopted in 1992 stipulates that the use of water belongs to everyone. See Scanlon et al., ‘Water as a Human Right?’ 28 AIR 1991 SC 420. 29 1990 (1) KLT 580. 30 Pani, Comparative Analysis of Environmental Activism through Constitutional Rights. 31 AIR 1986 SC 180. 32 Ibid.

444 M.S. Vani

GROUNDWATER—A PRIVATE PROPERTY RIGHT, NOT AN EASEMENT A fundamental issue in groundwater legislation is that of the nature of the right in groundwater. Reference may be found to this in the Indian Easement Act, 1882. Under the Indian Easements Act, 1882, right to groundwater is described not as an easement as has been interpreted by some scholars33 but as a right attached to land, which may be restricted by easements. Easements are defined (Section 4) as rights that the owner or occupier of a certain land possesses, as such, for the beneficial enjoyment of that land (termed the ‘dominant heritage’), to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own (termed the servient heritage). Thus with respect to an easement, two distinct parties are by definition involved—the dominant heritage/owner who claims the easementary right and the servient heritage/owner on whose land the easementary right is to be exercised. Right of way, right to light and air, right to standing or flowing water not on one’s own land, easementary rights to support, etc., are some examples of easements. Thus, the existence of two heritages or tenements (dominant and servient) belonging to different owners is absolutely essential to establish an easement.34 Ownership and easement are inconsistent and cannot coexist in the same person.35 By this definition, the right in groundwater can by no means be defined as an easement, as in the exercise of this right, no servient heritage is required. It is a natural incidence to land which a landowner may enjoy, but which may be restricted by other easements. The Easements Act (Section 7) refers to groundwater (all water under the land which does not pass in a defined channel) as an illustration of a ‘natural advantage’ that is coexistent with the right possessed by every owner of immovable property (subject to any law for the time being in force) to enjoy that property without disturbance by another. The right to groundwater is thus not an easementary right, attached to a ‘dominant heritage’ but a right attached to land. The Easements Act does not define the nature of the right, whether ownership or usufructuary,

33 Singh, Water Rights and Principles of Water Resources Management. Also Saleth, ‘Groundwater Markets in India’. 34 AIR 1978 Orissa 211: (1978) 46 Cut LT 52: ILR (1978) 1 Cut 577: (1978) 1 Cut WR 348 (DB). 35 1957 MPC 588: 1957 MPLJ 665: AIR 1958 Madh Pra 153.

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but merely describes it as a right ‘to collect and dispose within his own limits of all water under the land which does not pass in a defined channel ’ (emphasis added by the author). Provisions in the Transfer of Property Act, 1882 have been invoked by some scholars to describe the rights of transactions related to groundwater.36 Section 6 of the Transfer of Property (TP) Act states that property of any kind may be transferred, subject to the provisions of that Act and other laws in force. Section 6(c) states that an easement cannot be transferred apart from a dominant heritage. Based on the erroneous interpretation of groundwater right as an easementary right, the provisions of the TP Act have been relied upon by writers to conclude that groundwater right cannot be transferred apart from land.37 While in practice this may be true, it is based on the right to land and its products, and not as an easement. Treating groundwater as an easement would give rise to innumerable legal actions for remedy whenever the act of any person in digging or otherwise doing any thing on his or her land results in a diminution of water in the well of an adjacent owner. We know from experience that such legal remedies are not being sought even though such diminution takes place on a widespread scale. Courts would have been flooded with cases, and the issue of groundwater rights would have been dealt with again and again by the courts. However, we know for a fact that this is not so. However, as there is no clear definition of groundwater in the Easements Act as well, we need to refer to common law principles. The cases of Acton v. Blundell and Chasemore v. Richards have settled the law in regard to natural rights to underground water.38 The former case (Acton v. Blundell ) clarified two points. One, that there is no easementary right in groundwater, and second that groundwater is a property right attached to the land. In this case, the Court of the Exchequer Chamber decided that a man has no natural right to the water under his own ground, whether it is collected in a well or is passing through springs or streams flowing in no defined or known course, and that any diminution of such water by his neighbour can be treated only as damnum absque injuria (damage without injury), and gives no ground for action. The question that

36 Moench, ‘Allocating the Common Heritage’; Saleth, ‘Groundwater Markets in India’; Singh, Water Rights and Principles of Water Resources Management. 37 Moench, ‘Allocating the Common Heritage’; Saleth, ‘Groundwater Markets in India’; Singh, Water Rights and Principles of Water Resources Management. 38 Peacock, The Law Relating to Easements in British India.

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was considered by the judges was whether the right to the enjoyment of an underground spring, or a well supplied by such an underground spring, is governed by the same rule of law as that which applies to, and regulates, a watercourse flowing on the surface. In the latter case (surface water), the law is well established. Such a proprietor of the land has a right to the advantage of the stream flowing in its actual course over his land, to use the same as he pleases for any purposes of his own, which is not inconsistent with a similar right in the proprietors of the land above or below. Neither can any proprietor above diminish the quantity or injure the quality of the water which would otherwise naturally descend, nor can any proprietor below throw back the water without the license or the grant of the proprietor above. The judges held that there was a marked and substantial difference between the two cases (that is, surface water and groundwater), and that they are not to be governed by the same rule of law. The various circumstances under which groundwater was used, which distinguished it from surface water, were noted. The reasoning of the judges was that: [T]he concealment of the course and channels in which underground water may flow; the possibility of its percolations in numberless unascertained directions; the impossibility of telling what changes in the underground sources may take place from time to time; the ignorance of the landowner as to how much water he receives and how much is taken away from him by adjoining landowners; the difficulty or impossibility consequent upon all these circumstances, of any interruption on the part of the proprietor against whom the right might be claimed, are all powerful arguments against the acquisition of an easement in the flow of underground water, the sources and direction of which are hidden and unknown. (emphasis added by the author)39

It was consequently held that groundwater was not to be covered by the law that applies to rivers and flowing streams. Rather, it fell … within that principle which gave to the owner of the soil all that lies beneath its surface; that the land immediately below is his property, whether it be solid rock, or porous ground, or venous earth, or part soil, part water; that the party who owns the surface may dig therein and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from underground springs in his neighbours’ well, this inconvenience to his neighbour falls within the description of damnum absque injuria, which cannot become the ground of an action.40 39 40

Ibid. Ibid.

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The principle to be inferred from Acton v. Blundell was clearly established by the House of Lords in Chasemore v. Richards.41 In a unanimous decision, the judges noted that the law respecting the right to water flowing in definite visible channels is inapplicable to the case of subterranean water not flowing in any definite channel. The result of this case was to establish beyond all doubt that the principles regulating the rights of landowners in water flowing in known and defined channels whether upon or below the surface of the ground, do not apply to underground water, which percolates through the strata in unknown channels. This case further clarifies that easements cannot be acquired in the latter case. It is significant that these common law principles that emerged more than a century and a half ago in Britain continue to be followed in groundwater law today not only in India but also in other countries that follow the British common law traditions. The development of science and its application in understanding physical, natural phenomena—such as groundwater flows— has advanced by leaps and bounds over the last century, and thus there is no longer any logical basis to separate surface and groundwater legal regimes on the argument of lack of scientific information regarding the nature of these natural resources. The right to groundwater as an inalienable part of the right to land is supported both by custom and by statutory law in India. GROUNDWATER RIGHTS UNDER STATUTORY LAW Statutes that declare state sovereignty over all water sources by vesting their ownership in the state—such as Land Acts and Irrigation Acts—exclude groundwater by omitting all mention of it.42 Existing Irrigation Acts, for instance, do not define ownership of sub-surface or groundwater.43 Land Acts, such as for instance the Madras Land Encroachments Act of 1905, the Maharashtra Land Revenue Code 1966, the Madhya Pradesh Land Revenue Code 1959, and the Orissa Prevention of Land Encroachment Act, 1972 refer to all water sources over which the rights of the state and private persons are defined, except groundwater.44

41

Ibid. Moench, ‘Allocating the Common Heritage’; Singh, Water Rights and Principles of Water Resources Management. 43 Jacob and Singh, Law Relating to Irrigation. 44 Section 2 of the Madras Land Encroachment Act, 1905, declares the Government’s right of property in ‘… rivers, streams, nalas, lakes and tanks, and all backwaters, canals and water courses 42

448 M.S. Vani

In summary, it may be stated that State-level land and water legislation do not define rights to groundwater thereby leaving it in the realm of common law doctrine. Rights in groundwater are thus not limited by any ‘wrinkles’ in the Easement Act or Irrigation Laws45, but are absolute, protected implicitly by irrigation and land laws in the country. CUSTOM In customary practice as well, landowners generally regard wells as ‘theirs’, and view others as having no rights to restrict or otherwise control their rights to extract water.46 However, there are evidences that such customary practices also envisage both conservation and social control over groundwater extraction, particularly in the context of traditional water harvesting traditions.47 In the case of traditional irrigation tanks in Tamil Nadu and Karnataka, for instance, wells are forbidden under local customary law within the irrigation command of the tanks. Secondly, in using the water of the tanks

and all standing and flowing water …’ (emphasis by the author) except when they are the private property of certain categories of persons. Groundwater is not explicitly mentioned in the list of water sources. The Maharashtra Act similarly declares the sovereign power of the government over all land and water sources which are not privately owned, thereby excluding groundwater from government control. The recently enacted Maharashtra Water Resources Regulatory Act 2005 does not make any attempt to redefine rights in groundwater by declaring it out of the private property regime and into the public domain. At the same time, the Act provides for the acquisition of ‘entitlements’ to groundwater, issued by appropriate river basin agencies, for wells situated within the command of surface projects, as a means to regulate groundwater use, which had been the rationale underlying the issue of ‘permits’ or ‘licenses’ earlier. The Madhya Pradesh Land Revenue Code 1959 (Section 57) declares the State’s rights to land, standing and flowing water, mines, quarries, minerals, forests—reserved or not—and all rights in the subsoil of any land. However, any rights of any person subsisting at the coming into force of the Code in any such property have been saved. The water sources listed in the Orissa Prevention of Land Encroachment Act, 1972, do not include groundwater. Rights to groundwater, either of persons or of the government, were not, until 1993, defined under any legislation. In that year, through an amendment of the Irrigation Act, ‘sub-soil water’ was included in the definition of ‘Government Water Source’ and declared the property of the government. This amendment, however, is currently under challenge before courts of law. 45 Moench, ‘Allocating the Common Heritage’. 46 Ibid. 47 This customary rule, however, has been slowly breaking down under the pressure of government policy to promote groundwater use through power subsidy and credit. Official permission to install pumps and wells do not take into account the existence of surface water bodies from which wells draw their water reserves, nor the existence of local rules for conservation and equity. See Vani, Role of Panchayat Institutions in Irrigation Management.

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for irrigation, a minimum storage level is maintained in order to facilitate the recharge of wells in the village that lie outside the tank command area. The rule is incorporated in the design structure of the tank, in which the lowest level sluice for water drawal is located above the minimum storage mark. This rule benefits not only members of the community who have access to groundwater for drinking and for irrigation outside the command area but also those social groups who depend for their livelihood on duck rearing or fisheries in the tank. IMPLICATIONS OF GROUNDWATER BEING A PRIVATE PROPERTY RIGHT As we have seen, rights in groundwater belong to the landowner and can be transferred legally only if the land is transferred. (However, on an informal level, there is a vast and active ‘market’ in groundwater.) This legal reality restricts the right to landowners and leaves out vast numbers of people with no land, particularly the rural poor. Groundwater is a valuable resource for small and marginal farmers with no access to canal irrigation, but at the same time, the inequality in land rights gives large landowners (either individuals or institutions) a disproportionately larger access to groundwater. Disproportionate extraction by large landholders for commercial purposes results in dropping water tables, which impacts smaller and poorer farmers more.48 Inequity manifests itself between earlier users using groundwater unrestrictedly and later users who have to contend with already depleted sources. Downstream/upstream imbalances in access also occur due to unregulated groundwater use based on private property rights. Tenant farmers as against owner-cultivators are at a disadvantage, as they are disqualified from acquiring institutional credit for groundwater development. Access to land makes a difference in urban areas as well, where home owners either in individual plots or in residential apartments are at an advantage compared to the homeless and poor living in unregularised colonies, who have to depend entirely on erratic municipal supply of drinking water, due to lack of access to land. A new trend has emerged worldwide of separating land and water rights, so that water rights could be an independently tradable commodity, thus making it potentially available to all. This trend, however, has its own equity implications, which are discussed in the following section.

48 Azariah and Thomson, ‘Need For Ground Water Laws and Water Abstraction Ethics For Industrial Use’.

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Groundwater Rights in International Law Under Roman Law, groundwater was the property of the owner of the overlying land. Most countries following the civil law tradition (including France, Spain, and many African and Latin American countries) inherited this legal legacy. The common law tradition, as discussed in the previous section, also recognises the absolute proprietorship of the landowner over groundwater. This principle was inherited, sometimes with substantial modification, by those countries deriving their legal system from England, such as the United States, Canada, Australia, Singapore, New Zealand, India, Pakistan, some African countries as well as other Commonwealth countries and a number of countries in the Middle East.49 In some Moslem countries, groundwater has been viewed as a ‘gift of god’ that could not be privately owned. 50 However, given the ownership of some surrounding land (harim), wells could be privately owned. The use of groundwater was governed by customary rules (urf ), which were effectively enforced by the community. However, these rules were inevitably local and variable, and did not generally take into account downstream or broader aquifer interests.51 In the United States, there has been an evolution of groundwater law from the original ‘English Rule’, wherein groundwater is an unrestricted property right. Three new doctrines that emerged from common law in the US are the Reasonable Use Rule, the Correlative Rights Rule and the Prior Appropriation Rule.52 Of these, only the last is not connected to landownership. With a better understanding of groundwater movement and the water cycle, the legislative trend in many countries around the world has been to change the concept of groundwater from a private property right to a public resource.53 This change enables the state to adopt the position of guardian 49

Nanni et al., ‘Groundwater Legislation and Regulatory Provision’. Ibid. 51 Ibid. 52 In Reasonable Use, groundwater is a property right. However, water may only be used for ‘reasonable’ purposes. A property owner may use the water on the land from which it came or elsewhere, so long as his or her use is reasonable in comparison with the water needs and uses of his neighbours. In Correlative Rights, the amount of water each landowner can use depends on the amount of land he or she owns. The landowner cannot pump more than his/her share of water even for use on his/her own land if other water users do not have enough water to meet their needs. The Prior Appropriation Rule is also called the rule of ‘first in time, first in right’. Groundwater rights under this doctrine are not connected to landownership. A person has a right to use groundwater if he or she has obtained it and put it to beneficial use. Appropriation rights may be sold or given to others. 53 Nanni et al., ‘Groundwater Legislation and Regulatory Provision’. 50

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or trustee of groundwater resources, to grant rights and introduce measures to prevent aquifer depletion, groundwater pollution and water resources planning at the level of an entire aquifer or river basin.54 In countries such as Indonesia, Australia and Peru, groundwater is considered a public good, either through legal tradition or through the suppression of private ownership rights and the transfer of the resource to the public domain.55 In 1977, the Ground Water Act of Thailand was enacted to bring groundwater activities within designated groundwater areas under government control.56 The same trend of bringing private waters into the public domain legislatively can be observed in Mediterranean States such as Spain (Water Act of 1985), Italy (Act of 1994) and France (Water Act of 1992).57 The same principle is enshrined in diverse legislations adopted by a number of States at different times: Greece in 1997; Morocco in 1995; Algeria in 1993; Libya in 1992; Tunisia in 1975; Jordan, dating back to the 1980s and Israel in 1959, which was one of the first pioneers in introducing this concept.58

Groundwater Legislation in India—Position of Groundwater Rights The Government of India took the initiative of promoting legislation on groundwater by providing draft model groundwater bills in 1970, 1972, 1992, 1996 and lastly in 2005. In pursuance of this initiative, several State Governments have enacted groundwater legislation over the years. A perusal of some of these statutes59 and the Central Model Bill shows that 54

Ibid. Azariah and Thomson, ‘Need For Ground Water Laws and Water Abstraction Ethics For Industrial Use’. 56 Ibid. 57 Burchi, ‘Water Management Legislation and Administration in Selected Mediterranean Countries’. 58 Ibid. 59 Model Bill to Regulate and Control the Development of Groundwater, Ministry of Water Resources, Government of India, 2005; The Madhya Pradesh Peya Jal Parirakshan Adhiniyam, 1986 (Act 3 of 1987); The Tamil Nadu Ground Water (Development and Management Act), 2003; Control and Regulation of Groundwater in Pondicherry and Karaikal Regions, G.O.Ms. No. 39/Ag dated 21/9/88; [1]Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993 [Act No. XXVIII of 1993]; [2] The Maharashtra Water Resources Regulatory Act, 2005; The Bombay Irrigation (Gujarat Amendment) Act, 1976 [Act 45 of 1976]; Kerala Ground Water (Control and Regulation), Act, 2002. 55

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no attempt has been made to redefine property rights in water. Provisions for the regulation of rights by the State are included in the statutes without any declaration of State ownership over the resources, or without even a declaration of the State’s powers to control groundwater except for the Tamil Nadu Act. The Central Model Bill as well as the State Acts deal with ‘groundwater users’ without referring to ownership rights.60 These various laws attempt to regulate existing rights without changing their ownership status. The regulation is generally in the form of restrictions of groundwater use in various ways. The statutes proceed to empower state agencies or the Ground Water Authority to issue ‘permits’ or ‘licenses’ to well ‘users’ on a presumption of the state’s superior powers to control groundwater. The Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993 implicitly recognises private rights by providing for the payment of compensation for loss due to permanent or temporary sealing or closure of wells. The Maharashtra Water Resources Regulatory Authority (MWRRA) Act of 2005 envisages ‘sub-surface entitlement’. Entitlements means an individual or bulk water entitlement to a volumetric quantity of water to be extracted in the command area of the irrigation project from a tube-well, bore-well or any other well or by any other means of extraction of sub-surface water, or a group or fields or wells duly and legally permitted. The Maharashtra Act states that no person shall use any water from any water source without obtaining the entitlement from the respective River Basin Agency. The main characteristic of such entitlements, which distinguish them from ‘permits’ or ‘licenses’ in other Acts, is their recognised potential for tradability, for which provisions have been included in the Maharashtra Act. The Tamil Nadu Act also makes provision for the transportation of groundwater to areas outside, after acquiring a permit to do so. This legislative approach of avoiding a change in property structure, while attempting to extensively regulate the rights, to the extent that the ‘exclusiveness’ of the property right is substantively negated, has invited challenges before courts not only in India61 but also in other countries.62 In the latter case, such challenges alleging inconsistencies with the constitutional provisions protecting private ownership and requiring payment of compensation when rights are compulsorily negated, have usually been rejected on the grounds that regulating groundwater abstraction arises from 60 An earlier version of the Central Bill included a person who ‘owns’ groundwater in the definition of ‘user’; this, however, is absent in the latest version. 61 Moench, Selling Water. 62 Nanni et al., ‘Groundwater Legislation and Regulatory Provision’.

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the need to safeguard the public interest.63 In India, a clear social or judicial response to groundwater legislation is yet to emerge simply because the laws have not been seriously implemented as yet. The types of restrictions in groundwater use that are to be found in State laws are: z

z

z

z

z

The Madhya Pradesh Act regulates by preventing use in specified areas without prior permission. The Tamil Nadu Act mandates the registration of wells in the notified area and other areas; prohibits the use of groundwater for purposes other than drinking in notified areas without a license. Wells for domestic use and wells of small and marginal farmers are exempted from the restrictions. The Pondicherry Order prohibits the use of groundwater altogether within 6 kms of the coastline. This amounts to a complete suspension of rights. Beyond that distance, new digging or rejuvenation has been made subject to permission. A measure of equity has been introduced by giving preference to small and marginal farmers in issuing permits. Again, the implementation of this law on the ground needs to be examined. The Maharashtra Drinking Water Act restricts the use of groundwater at specific points, specific areas and specific periods of time. The Gujarat Act restricts the use of wells in specific circumstances in notified districts.

None of the Acts discussed above nor the Central Model Bill deals directly with the issue of groundwater rights for the purpose of redefining them in the context of groundwater management. All the laws are aimed at regulation of the use of wells through licensing. However, the success of such restriction of private rights depends entirely on the extent to which the inventory, registration and licensing of wells is carried out. This is precisely the problem area. The capacity of the government to centrally control millions of groundwater structures is questionable. The various State laws have never been properly implemented in fact they have not been implemented at all. The very attempt to do so is likely to invite legal challenge before courts as being restrictive of property rights. Moreover, the issue is also politically sensitive as ruling governments are seldom prepared to alienate the farming community, particularly the wealthier segments of it which are the more heavier users of groundwater. 63

Ibid.

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In the absence of a determined implementation of groundwater law, other measures are adopted for the restriction of groundwater exploitation. This is in the form of indirect administrative measures adopted by institutional finance agencies who by and large insist on technical clearance of the schemes from authorised groundwater departments of the respective States that look into various aspects of groundwater availability.64 Other controls are in the form of imposing spacing criteria between groundwater structures and denial of power connections. However, these administrative measures do not prevent affluent farmers from constructing wells in critical areas. An affluent farmer with his large capital investment can construct a high-capacity well which affects shallow wells in the neighbourhood.65 Equity in Groundwater Rights Broad principles regarding sustainable and equitable use of resources for the common good are contained in Part IV (Directive Principles of State Policy) of the Indian Constitution. The Directive Principles define the duty of the state to secure a social order for promotion of welfare of the people, in which justice, social, economic and political shall inform the institutions of public life [Article 38(1)]. The state has, in particular, to direct its policy towards securing that (a) the ownership and control of material resources of the community are so distributed as best to subserve the common good and (b) the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment [Article 39(b)(c)]. While these principles have not particularly influenced the governance of groundwater resources per se, the extent to which they have motivated the achievement of equity in land rights is important for an understanding of equity in groundwater rights, as the two are inextricably linked together. The status of land rights today is largely a result of the land reform measures undertaken in the first couple of decades after independence. Land distribution at the time of independence was extremely skewed. Fifty-three per cent of the land was held by 7 per cent of the landowners whereas 28 per cent of landowners with sub-marginal and marginal holdings owned about 6 per cent. Land distribution across the States was also quite skewed.66 Land reform policy was spelt out in the First Five-Year Plan. The core issues in this policy were a just distribution of land resources to be achieved 64

Ibid. Ibid. 66 Deshpande, Current Land Policy Issues in India. 65

Groundwater Law in India 455

by abolition of the intermediaries, tenancy reform and the redistribution of land using land ceilings. If we look at the current status of land rights in India, the following picture emerges. z

z

z

z

z

About 10 per cent of rural households were reported to be landless, that is, owning land either nil or less than 0.002 ha. The corresponding urban share was 49 per cent. The percentage of landless households in the rural sector was highest in Sikkim (31 per cent), followed by Arunachal Pradesh (22 per cent), Maharashtra (18 per cent) and Tamil Nadu (17 per cent).67 The absolutely landless and the nearly landless (those owning up to 0.2 ha of land) account for as much as 43 per cent of the total peasant households.68 The per household average area of land owned in the rural sector for the year 2003 came to 0.725 ha, about 27 per cent less than the corresponding figure in 1992.69 The share of marginal holdings (area less than or equal to 1.000 ha) in the rural areas was 80 per cent in the year 2003 compared to 72 per cent in 1992 and 67 per cent in 1982.70 In the rural sector about 2.8 per cent households reported leasing out of land while 11.5 per cent households reported leasing in of land, of which 40 per cent were sharecroppers.71

If we look at the distribution of landholdings by social groups, it becomes evident that the Scheduled Castes (SCs) and Scheduled Tribes (STs), which are the groups that have the highest concentration of poor in India, are at the bottom of the scale. z

67

In the rural areas, the share of land owned by different social groups was 11 per cent for STs, 9 per cent for SCs, 44 per cent for OBCs and 36 per cent for Others. The per household land area owned by them was 0.767 ha, 0.304 ha, 0.758 ha and 1.003 ha, respectively.72

Government of India, ‘Household Ownership Holdings in India’. Mearns, ‘Access to Land in Rural India’. 69 Government of India, ‘Household Ownership Holdings in India’. 70 Ibid. 71 Ibid. 72 Ibid. 68

456 M.S. Vani z

The participation of lower social groups in the land lease market is also marginal and concentrated on small fragments of land. Only 82,000 ha were leased by cultivators belonging to the SCs in 1990–91, which is about 0.62 per cent of their total operated area, of which more than 34 per cent comes under the marginal farmers’ group.73

In addition to the inequity of landholding, demographic and economic pressures have caused the fragmentation and marginalisation of holdings. The number of holdings smaller than 1 ha and especially those smaller than 0.5 ha have been increasing over the decades.74 Fragmentation of holdings has occurred on a mass scale as a means to escape land ceiling laws, resulting in the lowering of their economic efficiency. To address this issue, policies and law for the consolidation of holdings were promoted after the 1970s. Although legislative provisions for consolidation were adopted in 15 States, for the most part (except in Punjab, Haryana and Uttar Pradesh) these laws and associated consolidation programmes have failed to achieve their goals because of a lack of political will, administrative difficulties and many loopholes in the law.75 Another aspect of land rights that has significance for groundwater rights is that of tenancy. The implementation of tenancy reforms has generally been weak, non-existent or counterproductive,76 as a result of which tenants’ security of tenure has been adversely affected. The legal regulation of tenancy has been poor in most States, with some exceptions such as in West Bengal, and to a lesser extent in Tamil Nadu and the Vidharbha area of Maharashtra.77 The net result of tenancy reforms is said to have been the loss of access by the rural poor to around 30 per cent of the total operated area.78 On the whole, while the abolition of intermediaries and tenancy reforms (at least in some States) appears to have been more successful in reducing poverty,79 the defining features of the land rights scene in India today are significant landlessness, a vast majority of marginal holders, marginalisation or shrinking of landholdings and insecure tenancy status for a significant proportion of farmers.

73

Deshpande, Current Land Policy Issues in India. Ibid. 75 Ibid. 76 Mearns, ‘Access to Land in Rural India’. 77 Deshpande, Current Land Policy Issues in India. 78 Ray, ‘Land System amd its Reform in India’. 79 Besley and Burgess, ‘Land Reform, Poverty Reduction and Growth’. 74

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The cause underlying the present structure of land rights is the fact that in the implementation of land reform policies, the abolition of intermediaries was relatively successful, but tenancy reform and land ceilings met with less success.80 The former was supported by the high and middle-caste tenants (who wielded significant political power after independence), as they were the beneficiaries of this policy. The same group, however, subsequently strongly opposed ceilings on landholdings, supported by former intermediaries who became rich agro-industrialists on the strength of the heavy compensation paid to them on the abolition of their former tenures.81 As this group either constituted the ruling elite, or were represented by it, land reform laws were either not thoroughly implemented or were manipulated with the help of administering institutions.82 It has been estimated that that over a period of 35 years, ceilings have been enforced and land redistributed on less than 2 per cent of the total operated area.83 In this situation, the importance of groundwater for the livelihood security of a vast proportion of small and marginal farmers is significant. At the same time, the inequity in land rights spells inequity in groundwater rights as well. Current groundwater legislation does not address the issue of equity at all, as it fails to take inequity in land rights into account. It ignores the inequity between the land ‘haves and have-nots’, as well as the inequity within the ‘haves’. A couple of States make token gestures towards equity. In Tamil Nadu, the provisions of the Act for regulation of wells exclude those sunk by a small or marginal farmer. The Pondicherry law gives preference to small and marginal farmers in issuing permits for digging wells or for rejuvenation. However, these concessions make no difference to the inequity in land rights, which predetermine access to groundwater. The MWRRA Act of 2005, in introducing the concept of ‘entitlements’ and ‘quotas’ to be granted by the designated Authority to cover both surface and groundwater for all uses (including domestic, agricultural, industrial and other purposes), attempts to separate land and water rights, converting the groundwater right to a usufructuary right that is tradable [Section 11(i)(2)]. However, in the absence of a redefinition of property rights in groundwater, such an administratively granted right does not detract from its character as a 80

Ibid. Deshpande, Current Land Policy Issues in India. 82 Ibid. 83 Mearns, ‘Access to Land in Rural India’. 81

458 M.S. Vani

property right.84 At the same time, the Act also provides for the determination of the ‘quota’ of water85 by the Water Resources Authority at the basin level, sub-basin level or project level on the basis of land in the command area of a project. This further confirms the retention of the land right-groundwater right link. The Maharashtra Act attempts to achieve some measure of equity by providing that every landholder in the command area (of a river basin) is entitled to water, and that in times of scarcity, each landholder shall, as far as possible, be given a quota adequate to irrigate at least 1 acre of land [Section12(6)(a) and (b)], and that the Water Resources Authority shall ensure that the principle of ‘tail to head’ irrigation is implemented by the River Basin Agency [Section 12(7)]. These provisions contemplate equity only among landholders, but not among other sections of the population. They also, by implication, restrict water rights to landholders, which seems contradictory to the objective of the Act, which is stated to be to ensure a judicious, equitable and sustainable management, allocation and utilisation of water resources for all purposes— agriculture, industrial, drinking and other. Since groundwater rights are an issue that is of critical interest to a vast section of the rural population (small and marginal farmers as well as large landholders), governments are reluctant to interfere in this right due to political compulsions. If groundwater rights are not to be interfered with, then the solution seems to lie in more rigorous land reform measures, so that land rights are available to all. Such measures are not likely to be opposed by the majority of small/marginal farmers. Rather, redistribution of surplus land would be welcomed by the landless and land-poor. However, this is where political will fails. In the current era of liberalisation and globalisation, new policy directions are being set with respect to land issues. Policy discussions concerning rolling back land ceiling laws have assumed prominence.86 Land ceilings are being viewed as detrimental to achieving higher investments in the agricultural sector and diversification into high-tech agriculture. Secondly, the emphasis is placed on improving land revenue administration and, in particular, clarity in land records, so that titling and registration would bring about security in land tenure, an important pre-requisite for the introduction of land markets. 84 For example, intellectual property rights in the form of trademarks and patents are usually acquired through an administrative procedure; see Hodgson, Land and Water—The Rights Interface. 85 Quota refers to a volumetric quantity of water made available to an Entitlement holder, which is derived by multiplying an Entitlement by the annual or seasonal allocation percentage. 86 Deshpande, Current Land Policy Issues in India.

Groundwater Law in India 459

This is similar to the clarity in water rights that is sought to be achieved, through the World Bank-sponsored water-sector reforms, to enable water trading. What the State failed to do to achieve equity in natural resources rights is now being sought to be achieved through market mechanisms. However, how the resource-poor sections of the population will acquire the competence to participate and compete in the market is a moot point. The history of land and water resource use since independence has shown that it is the affluent sections of the population who have benefited most from improved technologies and institutions. Land Use and Groundwater The importance of land use to groundwater is apparent in terms of both availability and quality. Since precipitation/surface waters constitute the source of groundwater, the nature of land use and management determines the quantity and quality of groundwater. As stated earlier, governance frameworks for natural resources in India have not, until recently, shifted from the colonial mode of administration—which focuses on resource exploitation and use—to the detriment of the management. The emerging trends in approach, on the other hand, are clearly in support of the fundamentals of market economy—liberalisation, privatisation and globalisation. Both these approaches ignore the ecological reality in India—that the management and use of land needs to serve the primary purpose of harvesting monsoon rainwater, which is the only source for all water bodies, and which occurs only during a very short interval of time. In its country report to the Commission on Sustainable Development in 2002, the Government of India admitted: ‘Although some progress has been made in Land resource management in India, it is still in its infancy.’ 87 This is in spite of the fact that as long ago as 1986, a National Land-Use Policy Outline (NLPO) with a 19-point Action Programme had been approved by the National Land-Use and Wasteland Development Council in its first meeting that year. The NLPO had been circulated to all States for the preparation of a land use policy for enactment. By 2002, only Uttar Pradesh and Kerala had prepared a draft Land-Use Policy. There has been no response from any other States. A host of institutions are in existence at the Central and State levels.88 There are a host of programmes and schemes as well, all initiated by the Central Government, implemented 87

Government of India, ‘India Country Profile, Johannesburg Summit’. The Land-Use and Wasteland Development Council, the Department of Land Resources, the National Land-Use and Conservation Board, the National Wastelands Development Board, the National Eco-Development Board and the State Land-Use Boards in all the States. 88

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in a ‘project mode’ without the support of any policy at the State level, to reflect the States’ conditions and requirements. The casualties of non-integration of land and water resources management have been two-fold—one, the harvesting of rainwater and conservation of surface waters, and two, the control of pollution. With respect to the first, the extent of past neglect can be gauged from the fact that the Department of Land Resources, Ministry of Rural Development, GOI, has estimated that at the current level of outlay, it would take around 75 years for watershed treatment to be completed across the country.89 For the work to be completed by 2020, the government needs to invest Rs 10,000 crores per annum for the next 15 years. The Central Ground Water Board, in its Master Plan for the Artificial Recharge of Groundwater, has proposed the construction of 39 lakh surface and sub-surface artificial recharge and water conservation structures in the rural and urban areas of the country at an estimated cost of Rs 24,500 crores. This plan is envisaged to be implemented in a phased manner over a time period of 10 years with an annual outlay of Rs 2,400 crores.90 It is probable that the two different agencies have independently arrived at these estimates without any inter-coordination. A further illustration of the lack of agency coordination is that land and groundwater-related agencies have not taken into account the nearly 642,013 water harvesting structures or ‘minor irrigation surface flow systems’ already in existence, which are under the administrative control of Irrigation Departments in the States. In the promotion of surface and groundwater recharge through watershed development/rainwater harvesting structures through programmes and schemes, an important equity implication is lost sight of. While implementing these schemes, the ‘participation’ of the local community is sought and local labour (usually the landless or land-poor) is involved in building the structures. Although these sections of the community participate in developing the resource, they derive no rights to use the resource. Pollution of groundwater is another serious problem that requires appropriate land-use management and regulation for redressal. Two sources of pollution are recognised—point sources and diffuse sources. While the former are easier to identify and control through regulatory measures, the latter is a dimension of pollution that is insidious and difficult to control.91 This type of pollution is caused by the fertilisers and pesticides that are used on agricultural land and get washed down by run-off into groundwater and 89

Government of India, ‘From Hariyali to Neeranchal’. Government of India, Master Plan for Artificial Recharge to Groundwater in India. 91 Burchi, ‘Water Management Legislation and Administration in Selected Mediterranean Countries’. 90

Groundwater Law in India 461

surface water sources. Since the specific source of such pollutants cannot be identified, they cannot be controlled or regulated as waste water discharges (which are examples of point source pollutions) can. The alternative approach is, therefore, to control the use of chemical inputs in agriculture and in the use of land as well.92 This again calls for an integrated management of land, surface and groundwater resources. The question arises as to how far the currently prevailing groundwater legislation in the country takes these critical issues—recharge of groundwater and pollution control—into account and makes provisions for them. The latest Central Model Bill 2005 has included the concept of ‘artificial recharge’ of groundwater. One of the functions assigned to the Groundwater Authority is to take steps to ensure that the exploitation of groundwater does not exceed the natural replenishment to aquifers. Whenever there is a mismatch, steps would be taken to ensure the augmentation of groundwater in addition to regulation. A separate section (Chapter III) on rainwater harvesting for artificial recharge has been added. Here, however, the actions by the Authority in rural areas and municipalities, and local authorities in the urban areas for rainwater harvesting have not been mandated, but are only optional. None of the State Acts examined, except the Maharashtra and Tamil Nadu Acts, refer to this aspect. The Maharashtra Act includes, in the functions of the Groundwater Authority, the responsibility for promoting and implementing sound water conservation and management practices in accordance with the State Water Policy. However, at the same time, it also provides for other options in times of water scarcity. The Water Resources Authority is empowered to adjust the quantities of water to be made available to all entitlement holders, and to permit the ‘temporary transfer’ of water entitlements between users and categories of users in accordance with the approval of River Basin Agencies. In other words, water trading is to be allowed in times of scarcity. This approach derives from the European experience, where a peak had been reached in the development of water resources through the construction of dams during the 1970s and 1980s, as no more good, natural sites were available.93 In addition, political pressure against dams built up due to increasing environmental awareness. The strategy adopted, when the expansionary era ended, was to adjust water entitlements among old and new users through economic instruments. In India,

92

Ibid. Bjornlund and O’Callaghan, ‘Property Implications of the Separation of Land and Water Rights’. 93

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however, 92 per cent of groundwater is considered replenishable, and in this context rainwater harvesting and surface water management are far more realistic and socially acceptable options than inter-user transfer of entitlements. The Tamil Nadu Act addresses the issue of recharge in a limited manner. The Act attempts to offset the decline in groundwater due to the mining and quarrying of minerals and rocks by empowering the Groundwater Authority to direct that mine water be disposed in a manner that enables it to be used by farmers as well as for recharging groundwater. The inclusion of groundwater recharge responsibilities in groundwater legislation is very important because at present, groundwater regulation and development are implemented independently of each other. As a result, one finds situations on the ground where a watershed development project is implemented and rainwater harvesting structures are built, while at the same time another agency enables a farmer to dig a well downstream of such a structure and draw private benefits from a public/community enterprise. The integration of land use and groundwater management also brings into its fold the conjunctive use of surface and groundwater. At present, surface water is managed in isolation from land use (witness the absence of a land-use policy in all the States). In a continuation of colonial natural resources policy, surface water resources are considered as ‘given’, reflecting a temperate climate-based approach where rain occurs throughout the year, as in Britain. A shift in consciousness to a monsoon-based ecology would compel the integration of land, surface and groundwater in management approaches. Of the groundwater statutes examined, only the Tamil Nadu Act includes provisions for the conjunctive use of ground and surface water. The Groundwater Authority is given the responsibility to identify and notify suitable areas for the conjunctive use of surface water and groundwater to stabilise the existing use or to improve or increase the use of water. With respect to pollution, the Central Bill and almost all the State Acts, except the Maharashtra Act, are silent. The Maharashtra Act introduces the polluter pays principle, and puts the onus of the enhancement and preservation of water quality on the Water Resources Authority. The reason for the absence of provisions in groundwater legislation on controlling pollution generally is the fact that there is a Central legislation on the subject—the Water (Prevention and Control of Pollution Act), 1974, and the Environmental Protection Act, 1986. These statutes establish a separate and independent institutional framework at the Centre and States levels, which is expected to deal with pollution problems across the country, including those that affect millions of wells.

Groundwater Law in India 463

Institutional Framework for Governance of Groundwater Resources Under the Constitutional framework of water resources, and by implication, groundwater falls under the legislative jurisdiction of the States by virtue of Article 246, by which States have powers to legislate on water—that is, water supplies, irrigation, canals, drainage, embankments, water storage and water power (List II of Seventh Schedule). The constitutionally recognised and mandated local elected bodies in urban and rural areas—the municipalities and Panchayati Raj Institutions— are also given a role in water resources management though such a role is not mandated. The Eleventh and Twelfth Schedules of the Constitution list certain subjects in relation to which powers and responsibilities may be transferred by the State Governments under whose legislative jurisdiction these bodies are included. With respect to Panchayati Raj Institutions, the subjects in the 11th Schedule related to water resources include land improvement, land consolidation and soil conservation, minor irrigation, water management and watershed development, fisheries, social forestry, drinking water and maintenance of community assets. With respect to urban local bodies, the subjects include urban planning, regulation of land use, water supply for domestic, industrial and commercial purpose, public health, sanitation conservancy and solid waste management, urban forestry and cattle ponds. It must be clarified that these lists are not ‘legislative’, and do not indicate any legislative powers of local elected bodies, as has been erroneously reported94 and generally misunderstood. Not only is this list merely advisory in nature, but the operative articles in the Constitution (243G and 243M) provide for the transfer of powers ‘for the preparation of plans and implementation of schemes’. In other words, the constitutional amendments envisage the transfer of only administrative powers and not legislative or regulatory ones. The decision as to the extent of even such limited administrative powers is left to the choice of the States. Whatever powers or functions are devolved will be subject to the provisions in existing enactments. This implies that the powers of local bodies to manage natural resources will be subsidiary to those of the States and the Central Government. In effect, this means that institutions below State level—such as the constitutionally recognised local elected bodies at district, intermediate or village levels—do 94

Upadhyay and Upadhyay, Handbook on Environmental Law.

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not hold independent powers of control over natural resources. They may exercise only such powers as may be delegated to them. In no State in India have powers of control over natural resources been shared with elected bodies below the State Government level. In the matter of groundwater resources, States have taken advantage of this constitutional position on local elected bodies and have not envisaged any role for them in the control and management of groundwater. Central Level Institutions Groundwater being a State subject has not precluded the Central Government from taking initiatives in this sector and setting up its own institutions at the national level. At present, these institutions are the Central Ground Water Board (CGWB) and the Central Groundwater Authority. Groundwater investigation, exploration, development and management are being dealt with by the CGWB. Regulation and control of groundwater management is in the hands of the Central Groundwater Authority. The CGWB was set up under the Ministry of Agriculture in 1972. Its precursors were the Ground Water Division of the Geological Society of India (1929) and the Exploratory TubeWell Organisation (1954), which were combined to form the Board. The Central Groundwater Authority was constituted under the Environment Protection Act 1986 under Section 3(3) following directions by the Supreme Court of India in M.C. Mehta v. Union of India. This is a unique case, in which the Government of India was itself sceptical of establishing a centralised regulatory authority as it did not have legislative jurisdiction over water resources, and also because it considered groundwater management and regulation needed to be done in a decentralised manner at the State level. However, the Supreme Court, under the insistence of well-meaning but shortsighted ‘public interest’ litigants, prescribed a legislative strategy to the Government of India to establish the CGWA under the Environment Protection Act, 1986. The Supreme Court further advised on the nature of powers to be conferred on the Authority for the purpose of regulation and control of groundwater management and development, and clarified that the Authority could resort to the penal provisions contained in Sections 15 to 21 of the Act. Functioning of the CGWA As a result of the over enthusiasm of the Supreme Court in prescribing legislative and administrative solutions to groundwater problems in the country, we now observe the absurdity of a centralised national regulatory authority seeking to identify specific areas and wells around the country

Groundwater Law in India 465

to regulate and monitor. Some of the activities that the Authority has undertaken—such as declaring ‘Notified Areas’, scrutinising and clearing applications from industries for sinking deep tube-wells, registration of drilling agencies, conducting mass awareness programmes, conducting training on groundwater management and rainwater harvesting techniques, etc.—duplicate the functions of the State and local-level bodies. State Level Institutions In all the statutes reviewed, the state is the only institution that has a role to play in the regulation of the resource.95 No other partners are envisaged. In the 95

Centre/States

Institutions

Central Bill

1. State Government/Union Territory 2. Groundwater Authority 3. Courts not below Metropolitan Magistrate or Magistrate for the first class for trial of offences 1. State Government 2. District Collector 3. Divisional Commissioner 1. State Government 2. Groundwater Authority 3. Local bodies—Municipal Corporation, Municipality, Town Panchayat, Cantonment or village Panchayat, for purpose of consultation only 4. Courts not below Metropolitan Magistrate or Magistrate for the first class for trial of offences, only if cases are instituted by Govt. or Authority Government

Madhya Pradesh Tamil Nadu

Pondicherry/ Puducherry Maharashtra [1] Maharashtra [2]

Gujarat Kerala Source: Author.

1. 2. 3. 1. 2. 3. 4. 5. 6. 7. 8. 1. 2. 1. 2.

State Government District Collector Commissioner State Government Maharashtra Water Resources Regulatory Authority State Water Council State Water Board River Basin Agencies for Krishna, Tapi and Godavari Rivers, and the Konkan and Vidharba Irrigation Development Corporations Water Resources Department [GOM] Dispute Resolution Officer Water Users’ Entities/Water Users’ Associations State Government Regional Canal Officer State Government Groundwater Authority

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Maharashtra Act of 2005, there are a host of state institutions for planning, management and regulation. The public features only as ‘consumers’ or ‘users’, in the form of water user entities and associations. Four of the States have groundwater authorities. There is a distribution, rather than delegation of powers among the State-level agencies. The lowest representatives are the District Collector and the Canal Officer. Local elected bodies and community institutions are conspicuous by their absence in management. The institutional framework in all the States for groundwater management continues the ‘command and control’ approach of colonial law. In Maharashtra alone, the framework attempts to reform this approach by envisaging the planning, development, management and regulation of water by the State on a river-basin level. There are no participatory approaches with the public, who are merely consumers. This Act sets the stage for the market orientation of groundwater resources. Both these approaches, however, are bound to fail, as they are not conducive to an ecological approach to groundwater management. Due to the peculiarities of the monsoon rainfall, an intensively participatory approach for harvesting monsoon water—the major source of water in India—and for conjunctive land-surface water-groundwater management is required for the sustainable use and management of natural resources in India, of which groundwater is an integral part. Neither can the public be treated as ‘recipients’, ‘beneficiaries’, ‘objects to be ruled’, nor purely as ‘consumers’. By necessity, the public has to be given its due role as equal participant. Institutional Functions Since all the statutes examined are primarily regulatory in nature, the main function of the state is seen to be prohibiting or restricting the use of wells in notified areas and issuing licenses or permits for their use on certain conditions and terms. The exception is the Maharashtra Act (2), which provides for powers of planning and management in addition to regulation and the Tamil Nadu Act, which also provides for development and management. The Maharashtra Act (2) exempts domestic wells and also allows existing wells for agriculture (dug, bore or tube) on the command area of a project till such date as may be notified by the Authority. The Madhya Pradesh, Gujarat, Maharashtra (1) and Pondicherry Acts, realising the magnitude of the task, have not attempted to register existing wells in notified and other areas96 whereas the Tamil Nadu and Kerala

96 In Gujarat, the legislative assembly passed a groundwater bill as far back as in 1974, but the Chief Minister refused to sign it into a law. His reasons were convincing. First, he was unable

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Acts contain provisions for this purpose. In the Maharashtra Act (2), the mandating of entitlements of all water uses serves the purpose of registration. However, Pondicherry, Maharashtra (1) and Gujarat provide for regulating existing wells in notified areas. How this is to be done without registering such wells is a question left unanswered.

Prohibitions and Mandatory Provisions A main feature of a regulatory legal regime is the prohibitions it imposes and the duties it mandates on subjects of the law. Some of the prohibitions and duties imposed by the groundwater statutes in question are as follows: Prohibitions z

z z

z

z

z

z

Sinking of wells in notified areas/scarcity areas without prior permission. Carrying on of the business of sinking wells. Taking water by any means from any source in water scarcity areas for irrigation or industrial purposes without permission. Setting up industries requiring more than 10,000 litres of potable water within 6 kms of the coastline. Sinking of wells within prescribed distance to drinking water source or within an over-exploited watershed anywhere in the State without prior permission. Extracting water during certain periods from existing wells in overexploited watersheds. Sinking of wells beyond the specified depth on agricultural land anywhere in the State.

Mandatory Provisions z

z

z

Every future user of groundwater in notified areas to apply for permit/ entitlement. Every existing user of groundwater in the State/Union Territory (UT) to apply for certificate of registration. Registration of new wells in non-notified areas/whole state/UT.

to see how the law could be effectively enforced against a million small private-well operators scattered throughout a huge countryside. Second, he was certain that it would become one more instrument for rent-seeking for the local bureaucracy. See Shah et al., Limits to Leapfrogging, cited in Hodgson, Land and Water.

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Offences and Penalties Five different types of offences are defined under the different Acts. The offences are—failure to provide information, illegal sinking of wells, violating the conditions of permit, extraction of water from any source without permission, or damaging any public water system. The sanctions include fines and imprisonment to varying degrees. The efficacy of these provisions is to be tested in the actual implementation of the law. The system of regulation prescribed in the Acts—a centralised, non-diversified, monolithic regulatory institution attempting to control millions of individual well owners—implies the prosecution of individual violators case by case, ad infinitum. The logistic impossibility of such a task renders these provisions somewhat meaningless. Offences by Companies In law, property can vest not only in individuals but also in institutions, which are considered legal persons. Industrial and commercial institutions are major users of water resources, particularly groundwater available on their own property. The land so used is no less a part of a hydro-geological system as any other, and requires the enforcement of the same management policy. Special provisions recognising the liability of such institutions and procedures to prosecute them are very essential. However, among the Acts studied, three statutes (Maharashtra [2], Tamil Nadu and Kerala) and the Central Bill contain provisions relating to offences committed by companies. The other Acts/Orders (Gujarat, Madhya Pradesh and Maharashtra [1]) failed to take up this politically challenging task.

Summary of Groundwater Law and Recommendations From the above analysis, it is clear that both the prevailing and the proposed or envisaged law on groundwater are far from adequate in meeting the multifarious problems associated with groundwater use in India. First, the prevailing rights structure—derived from English Common Law—upholds absolute individual property rights over the groundwater attached to land whereas a situation has been reached when it should be declared as common property under law, for which sufficient constitutional scope and protection is available.

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Groundwater legislation—both the ‘model’ bill provided by the Central Government as well as that attempted by several States—make no effort to redefine groundwater rights in the interest of ecological and social sustainability and equity. Any radical redefinition of rights, however, is a political risk that not many governments around the country would be prepared to take, even if they acknowledge the necessity for doing so. Further, since groundwater problems are not ubiquitous, a practical problem exists in the requirement for selective control of rights in distinct areas within States where such problems do exist. Nevertheless, a reform in rights structure is a sine qua non for the sustainability of this resource for the future. The doctrine of Public Trust, envisaged in the Draft National Environmental Policy 2004,97 though yet to be operationalised with respect to any environmental resource in India, requires to be applied to groundwater resources in the country. Political, social or legal challenges to such a move can be met by utilising the potential of the Ninth Schedule of the Constitution, which has given protection to a host of laws enacted in the public interest. A mere declaration of public trust is, however, insufficient without simultaneous reform in institutional structures and mechanisms for operationalising the concept. In such a reform, devolution of the powers of control and management assumes primary importance. Secondly, groundwater statutes present a completely sectoral approach to the resource, in an inexplicable indifference to simple physical truths regarding the inter-relatedness of natural resources. Groundwater law has to be located in land, water and forest laws, which themselves need to be integrated. Failure to do so endangers both ecological sustainability and social equity. Thirdly, the present groundwater statutes tend to address the single issue of water scarcity and ignore all other problems associated with land—such as waterlogging, salination and pollution. These require a comprehensive land management approach as well as aquifer management. Management and regulatory functions that are scattered among a plethora of institutions need to be consolidated. 97 The Draft National Environmental Policy 2004 lists a set of principles that are intended to guide strategies towards achieving the objectives of the policy. One of these principles is the Public Trust Doctrine. The Draft NEP states:

The State is not an absolute owner, but merely a trustee of all natural resources, which are by nature meant for public use and enjoyment, subject to reasonable conditions, necessary to protect the legitimate interest of a large number of people, or for matters of strategic national interest.

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Most of the statutes discussed here project the view that restricting the digging of wells or regulating their depths are the main measures required to address groundwater problems in India. A holistic approach that includes planning, implementation, regulation, resolving conflicts as an integral system of management needs to be adopted and reflected in the law as well. The Maharashtra (2) Act attempts this, but there are several lacunae in this approach as well. Last, and not the least, there is a total absence of concepts and strategies for decentralised governance of groundwater resources. As stated earlier, an integrated approach to resource management necessarily requires a decentralised approach. Local elected bodies should also be viewed as ‘organs of the State’ instead of as merely ‘implementation agencies’, and sufficient legislative, executive and regulatory powers should be devolved on such institutions for the purpose of natural resources management, including groundwater. They should be enabled by capacity-building in information, skills and technologies in order to undertake this task in partnership with local communities. The functions of the State should be restricted to enabling micro-governance and consolidating such initiatives at the basin level. This could constitute an alternative, viable governance model.

References Agarwal, Anil and Sunita Narain. 1997. Dying Wisdom—Rise, Fall and Potential of India’s Traditional Water Harvesting Systems. New Delhi: Centre for Science and Environment. Azariah, Jayapaul and Jacob C. Thomson. 2000. ‘Need For Ground Water Laws and Water Abstraction Ethics For Industrial Use’, in Norio Fujiki and Darryl R.J. Macer (eds), Bioethics in Asia, pp. 196–98. Eubios Ethics Institute. Besley, Timothy and Robin Burgess. 1998. ‘Land Reform, Poverty Reduction and Growth: Evidence from India’, STICERD – Development Economics Papers 13, Suntory and Toyota International Centres for Economics and Related Disciplines, LSE, cited in Deshpande, R.S., Current Land Policy Issues in India. Bjornlund, Henning and Brian O’Callaghan. 2003. ‘Property Implications of the Separation of Land and Water Rights’, Ninth Annual Pacific-Rim Real Estate Society Conference, Brisbane, Queensland, 19–22 January. Burchi, Stefano. ‘Water Management Legislation and Administration in Selected Mediterranean Countries’, available online at http://www.isgi.cnr.it/stat/pubblicazioni/sustainable/119. pdf (last accessed in August–September 2007). Deshpande, R.S. Current Land Policy Issues in India. Bangalore: Institute for Social and Economic Change. Available online at http://www.fao.org/docrep/006/y5026e/y5026e0b.htm 9. (last accessed in August–October 2007). Devi, Rema P. 1991. ‘Groundwater Development’, Journal of the Indian Law Institute, 33(4): 614–19.

Groundwater Law in India 471 Dogra, Bharat. 2000. India: Eroding the Gains from Forest Protection. InterPress Service. Food and Agricultural Organisation (FAO). 2003. ‘Groundwater Management: The Search for Practical Approaches’, FAO Water Report 25: Rome: FAO. Government of India (GOI). 2002a. Master Plan for Artificial Recharge to Groundwater in India. New Delhi: Central Ground Water Board, Ministry of Water Resources, Government of India. ———. 2002b. ‘India Country Profile, Johannesburg Summit’. ———. 2002c. National Forestry Action Programme. New Delhi: Ministry of Environment and Forests, Government of India. ———. 2003. ‘Household Ownership Holdings in India’, NSS Report No. 491 based on the sixth nationwide Land and Livestock Holdings Survey, 59th round of National Sample Survey Organisation (NSSO). New Delhi: Ministry of Statistics and Programme Implementation, Government of India. ———. 2006. ‘From Hariyali to Neeranchal’, Report of the Technical Committee on Watershed Programmes in India. New Delhi: Department of Land Resources, Ministry of Rural Development, Government of India. Gupta, S.K., P.S. Minhas, S.K. Sondhi, N.K. Tyagi and J.S.P. Yadav. 1999. ‘Water Resource Management’, in Natural Resource Management for Agricultural Production in India, Conference Proceedings, ‘International Conference on Managing Natural Resources for Sustainable Agriculture in the 21st Century’, 14–18 February, New Delhi. Hodgson, Stephen. 2004. Land and Water—The Rights Interface. Development Law Service, Food and Agriculture Organization, Rome. Hooja, Rima. ‘Channeling Nature: Hydraulics, Traditional Knowledge Systems, and Water Resource Management in India—A Historical Perspective’, Infinity Foundation Book Project. Available online at http://www.infinityfoundation.com/hooja_book.htm ISRO. ‘Targeting Groundwater Using IRS-IC Data, ISRO. Available online at http://ceas.cnes. fr.8100/cdrom-oob/ceasl/casestud/ground/ground.htm Jacob, Alice and S.N. Singh. 1972. Law Relating to Irrigation. Mumbai: N.M. Tripathi Pvt Ltd. Leelakrishnan, P. 2000. Environment Law in India. New Delhi: Butterworths India. Mearns, R. 1999. ‘Access to Land in Rural India’, Policy Research Working Paper 2123. World Bank: Washington D.C. Moench, Marcus (ed.) 1994. Selling Water: Conceptual and Policy Debates over Groundwater Markets in India. VIKSAT, Pacific Institute, Natural Heritage Institute. Moench, M. 1998. ‘Allocating the Common Heritage: Debates over Water Rights and Governance Structures in India’, Economic and Political Weekly, XXXIII(26). Nanni, Marcella, Stephen Foster, Charles Dumars, Hector Garduño, Karin Kemper, Albert Tuinhof. 2000. ‘Groundwater Legislation and Regulatory Provision: From Customary Rules to Integrated Catchment Planning’, GW-MATE Briefing Note 4. World Bank: Washington D.C. Pani, S. 2002. Comparative Analysis of Environmental Activism through Constitutional Rights: Two Case Studies: India and Hong Kong. Hyderabad: National Academy of Legal Studies and Research (NALSAR), University of Law. Pathak, A. 1994. Contested Domains: The State, Peasants and Forests in Contemporary India. New Delhi: Sage Publications. Peacock, Frederick. 1922. The Law Relating to Easements in British India. Calcutta and Shimla: Thacker, Spink and Co. Phansalkar, S. and Vivek Kher. 2006. ‘A Decade of the Maharashtra Groundwater Legislation: Analysis of the Implementation Process’, Law, Environment and Development Journal, 2(1): 67.

472 M.S. Vani Pisharoty, P.R. 1990. Speech at the Seminar on Traditional Water Harvesting Systems in India, Centre for Science and Environment, New Delhi (cited in Agarwal and Narain). Ray, S.K. 1996. ‘Land System and its Reforms in India’. Indian Journal of Agricultural Economics 51(1&2): 220–37. Saleth, Maria R. 1994. ‘Groundwater Markets in India: A Legal and Institutional Perspective’, in Marcus Moench (ed.,) Selling Water: Conceptual and Policy Debates over Groundwater Markets in India. VIKSAT, Pacific Institute, Natural Heritage Institute. Scanlon, John, A. Cassar and N. Nemes. 2004. ‘Water as a Human Right?’ IUCN Environmental Policy and Law Paper No. 51, IUCN. Selvarajan, S. 2001. ‘Sustaining India’s Irrigation Infrastructure’, Policy Brief 15, National Centre for Agricultural Economics and Policy. Shah, T., D. Molden, R. Sakthivadivel and D. Seckler. 2000a. The Global Groundwater Situation: Overview of Opportunities and Challenges. Colombo: International Water Management Institute. ———. 2000b. Limits to Leapfrogging: Issues in Transposing Successful River Basin Management Institutions to the Developing World. IWMI, Colombo: IWMI. Singh, C. 1991. Water Rights and Principles of Water Resources Management. Indian Law Institute: New Delhi. Upadhyay, Sanjay and V. Upadhyay. 2002. Handbook on Environmental Law, Vol II. New Delhi: LexisNexis. Vani, Vina, Vishwa Ballabh and Tushaar Shah. 1995. ‘Drinking Water Supply to Rural Gujarat’, Paper Presented at the International Conference on the ‘Political Economy of Water in South Asia: Rural and Urban Action and Interactions’, Madras, February. Vani, M.S. 1992. Role of Panchayat Institutions in Irrigation Management: Law and Policy. New Delhi: Indian Law Institute. ———. 2002. ‘Customary Law and Modern Governance of Natural Resources in India— Conflicts, Prospects for Accord and Strategies’, in Rajendra Pradhan (ed.), Legal Pluralism and Unofficial Law in Social, Economic and Political Development, Vol. I, Papers of the XIIIth International Congress, 7–10 April, pp. 409–46. Chiang Mai, Thailand, and Kathmandu: ICNEC. ———. 2005. ‘Political Economy of Rainwater Harvesting in India: Reflections in Central and Regional Law and Policy’, XII International Rainwater Catchment Systems Conference, New Delhi, November.

Statutes 1. Model Bill to Regulate and Control the Development of Groundwater, Ministry of Water Resources, Government of India, 2005. 2. The Madhya Pradesh Peya Jal Parirakshan Adhiniyam, 1986 [Act 3 of 1987]. 3. The Tamil Nadu Ground Water (Development and Management Act), 2003. 4. Control and Regulation of Groundwater in Pondicherry and Karaikal Regions, G.O.Ms. No. 39/Ag, dated 21/9/88. 5. [1] Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993. [Act No. XXVIII of 1993].

Groundwater Law in India 473 6. [2] The Maharashtra Water Resources Regulatory Act, 2005; The Bombay Irrigation (Gujarat Amendment) Act, 1976 [Act 45 of 1976]. 7. Kerala Ground Water (Control and Regulation), Act, 2002.

Law Reports 8. The Quinquennial Digest 1966–70, AIR Publications Nagpur, Vol. 3. 9. The Quinquennial Digest 1976–80, AIR Publications Nagpur, Vol. 3.

Case Laws 10. Subhash Kumar v. State of Bihar AIR 1991 SC 420; Attakoya Thangal v. Union of India 1990. 11. Olga Tellis v. Bombay Muncipal Corporation AIR 1986 SC 180. 12. Attakoya Thangal v.Union of India 1990 (1) K.L.T. 580. 13. Rural Litigation and Entitlement Kendra v. State of U.P., WP 8209 & 8821 of 1983 (1985.03.12). 14. AIR 1978 Orissa 211: (1978) 46 Cut LT 52:ILR (1978) 1 Cut 577: (1978) 1 Cut WR 348 (DB). 15. 1957 MPC 588: 1957 MPLJ 665: AIR 1958 Madh Pra 153. 16. Acton v. Blundell 12 M. & W. 324[1843], cited in F. Peacock. 17. Chasemore v. Richards 7 H.C.L. Cas 349 [1860].

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18

Indian Laws and Acts on Traditional Tank Irrigation Systems DHAN Foundation∗

Introduction In India the use of natural resources and their associated technologies and laws have their origins from a very early period and, in many instances, they have their own jurisprudential base. The governance of important natural resources such as village water resources was decentralised and had its legal basis almost entirely in custom. Custom is a law not written but established by long usage and consent of our ancestors (The Law Lexicon). In the legal sense, custom means a long-established practice that is considered an unwritten law. In another sense, custom depicts a long-practised usage having the force of law. Custom mostly takes the place of law and regulates the conduct of men in the most important concerns of life. At times customs too die away or are abolished or superseded by statutory laws. Nevertheless, custom has been a source of law independent of other known sources, namely religious or ethical doctrine and texts or royal decrees, as far as traditional Indian jurisprudence is concerned. We can observe that these customary practices are even now in vogue in landholding patterns, traditional water technologies, forest use, agriculture and fisheries. The legal frameworks based on customs provide a wealth of information on sustainable resource use and management. Food security plays a crucial role in addressing the needs of a growing population and it is inextricably linked to poverty alleviation. Water as timely ∗The chapter is from DHAN Foundation (www.dhan.org). Please e-mail at [email protected]. net.in for comments and clarifications.

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rainfall or irrigation is a crucial input for enhancing crop production and providing food security. Minor irrigation tanks seen in large numbers over the nation and especially in the Deccan Plateau have been supplying rainwater for agriculture by effectively harvesting and storing the monsoon rains. Indeed, they have been traditionally managed by the local communities who have over the years evolved certain regulations for the distribution and integrated management of water. These regulations adapted by the community to suit the changing situations over the years have now become the customary rights in tank management.

Water Laws Related to Tanks in Tamil Nadu: A Brief Overview There is no comprehensive law on water management applicable throughout the country comparable to the India Penal Code. The reason is obvious. z

z

z

The power to legislate ‘on water’ is with the State Government (item 17 of the State list 2 of Constitution of India). The Central Government can legislate only on the ‘regulation and development of inter-State rivers’, as per Central list 1. Under Article 252, Parliament can enact laws on matters listed in State list 2, if two or more State legislatures agree to such measures.

Fourteen Acts on water, enacted in the erstwhile Madras Presidency and present-day Tamil Nadu are as follows. But these laws and Acts could not enforce strict regulations for tank management for ensuring better living conditions to the people who are dependent on them. 1. 2. 3. 4. 5. 6. 7. 8. 9.

The Madras Compulsory Labour Act 1858 (Central Act 1 of 1858) Tamil Nadu (T.N.) Irrigation Cess Act 1865 T.N. Land Encroachment Act 1905 T.N. Irrigation (Voluntary Cess Act) 1942 T.N. Irrigation (Requirement, Improvement and Construction ) Act 1943 T.N. Irrigation Works (Amendment) Act 1945 T.N. Irrigation Tanks (Improvement) Act 1949 T.N. Irrigation (Levy of Betterment Contribution) Act 1955 T.N. Irrigation Work (Construction of Field Bothies) Act 1959

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10. The T.N. Water Supply and Drainage Board Act 1971 11. The Madras Metropolitan Area Groundwater (Regulation) Act 1987 12. T.N. Irrigation (Levy of Betterment Contribution Amendment) Act 2000 13. The T.N. Farmers Management of Irrigation System Act 2001 14. T.N. Groundwater (Development and Management) Act 2003 The Act at No. 1 deals with a particular aspect of protection of tanks during emergency, by compulsory customary labour. Acts at Nos 2, 4, 8 and 12 deal with cess or tax on agricultural land for supply of water from government sources for improvements effected. The Act at No. 3 deals with eviction of encroachers on government lands and water bodies. Acts at nos 5, 6 and 9 deal with the procedures for improvements undertaken in irrigation systems. The Act at No. 7, the T.N. Irrigation Tanks (Improvement Act 1949), is the one Act that specifically deals with increasing the capacity of tanks by the government and collectors. The Act at No. 10, the T.N. Water Supply and Drainage Board Act 1971, deals with the duties of the Water Supply Board to provide drinking water to villages and towns in Tamil Nadu. Acts at Nos 11 and 14 deal with groundwater regulation. The Act at No. 13, the T.N. Farmers’ Management of Irrigation Systems Act 2000, deals with formation of Water Users’ Associations in irrigation system. It also gives limited power to Water Users’ Associations in canal command areas to manage the irrigation sub-systems, distribute water equitably to ryots and collect water tax, mainly below the second sub-main canals. However, none of these Acts provides for a strong stand against the encroachers, polluters and real estate promoters for the destruction of tanks. In addition to tanks, other small-scale water resources in the village ecosystems, namely ooranies (dugout ponds for rainwater harvesting), ponds and odais (streams), do not find a place in these Acts.

Customary Rights in Tanks: A Unique Right for Local Management Customary rights to tank water and other associated usufructs have been exercised from time immemorial by farming as well as non-farming villagers,

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according to the norms evolved with their consensus. The DHAN Foundation felt it necessary to understand the prevailing customary rights that had been indigenously developed and practised by the community, the manner in which other interventions have changed them over a period of time and the implications of such changes for the community as well as for the resources themselves. A study of customary rights carried out during 2003–04 was based on the available records as well as on intensive field studies, and its goal was mainly to document the present pattern of intra and inter-tank management systems. The study undertaken with the support of the Development Centre for Alternative Policies (DCAP), New Delhi, had the following objectives: 1. To investigate the historical and still existing customary rights in tank systems in Tamil Nadu and their relation to the past and present customary management of tanks. 2. To review the current irrigation law and policy of the State in relation to institutions and management processes, including a review of the institutionalisation of irrigators under the official modern tank management policies and through non-governmental organisations’ (NGOs) initiatives. The study was conducted in the tanks situated in the southern districts of Tamil Nadu. Archival and public records and other literature, government orders and court verdicts were reviewed for a proper understanding of the issues in general and specific to the study areas. Selected individual farmers were interviewed through a standardised interview schedule.

Customary Irrigation Rights: A Recorded Mamul Nama in Vellore District In the early years, irrigation rights in tanks were largely governed by custom and local practices. But many of them were not in a proper recorded form. It is quite interesting to observe the recorded irrigation rights of pattadars of 188 tanks of Vellore Taluk in ad 1815 under the heading ‘Water Mamul Namas’. These were printed by the British in the year 1907.1 The Mamul Namas have been written in Tamil and signed or attested with a thumb impression by the ‘Karnam’ (the village Accountant) and the important

1

Pattadars represent the owners of land by entitlement.

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farmers of the village.2 It is astonishing to note how meticulously the Mamul Namas have been written, recording the period in which the tanks got water supply, the quantity of water available during particular months, the area that could be irrigated when the tanks got full supply and during the distress period, the mode of irrigation, the permissible number of wells that could be sunk in the ayacut (command area), the crops that could be cultivated in the area, etc. Even though many of the irrigation rights and practices were not recorded at other places, they were meticulously observed by the ryots and the community from time immemorial. However, some customary rights could be ascertained from the ‘A’ register maintained by the revenue department and the old settlement records. These customary rights along with Kudimaramath systems were followed with high dedication and vigil by the ryots and villagers during the Zamindari system and even under the East India Company’s rule for some time. But after the introduction of ryotwari settlements by the middle of the nineteenth century, the effectiveness of the traditional system deteriorated progressively, with the result the tanks were not maintained well in the country.

Custom that Prevailed in Water-scarce Area in relation to Tanks and Drinking Water Ponds (Ooranis) in Tamil Nadu Ramanathapuram district in south Tamil Nadu is renowned for its customs in the management of tanks and ponds. Being a water-scarce district in a drought-prone region coupled with saline groundwater, the surface water bodies remain its lifeline; and, as is well understood by the people, the customs are strictly adhered to as any change in this may lead to conflicts and communal disharmony. Mudukulathur Big Tank is located in Mudukulathur taluk of Ramanathapuram district. The tank irrigates an ayacut area of 312 ha. The farmers who live in the surrounding villages of Mudukulathur, Thoori, Ettiseri, Kizhasakkulam and Selvavinayagapuram own the ayacut lands. Traditionally, Thoori villagers were maintaining and managing the Mudukulathur Big Tank. Till the mid-1980s, the villagers from Thoori used to invite the ayacutdars from the other villages for mobilising voluntary labour to clean 2 An English version of the Mamul Nama extracted from G.O. No. 660 I, Government of Madras, dated 8 February 1918. Cited in Sivasubramanian, ‘Irrigation Institutions in Two Large Multi-village Tanks of Tamil Nadu’.

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up the feeder channel from its original source, Ragunatha Cauvery which is a tributary of the Gundar River. After the 1980s, the practice was changed to mobilising money rather than labour from the same villages for the cost equivalent of their labour. This happened because of the behaviour of one or two villagers who did not send an adequate number of labourers. This practice also collapsed in the mid-1990s. During 1999, Thoori villagers had alone spent Rs 25,000 to clean the supply channels and fill the Mudukulathur Big Tank. Thereafter, they vehemently refused to release any water to the other villagers even after the Public Works Department engineers tried to open the sluices. Thoori farmers put forth the argument, ‘No payment for the clearing of channel and hence No water’. After a lot of tension and arguments, the defaulting villagers paid Rs 16,000 and got their share of water. These types of customenforced tank management issues are common in such drought-prone arid plains of south Tamil Nadu. The alluvial formations in a few pockets and in the proximity of the Gulf of Mannar coast are attributed to salinity in groundwater in Ramanathapuram district. The general custom was for the villagers in many parts of the district to fill their ooranis from the tanks. This occurs at the beginning of the rainy season (September), at the end of the season (December) and once again during summer (June). This has been the way of life and the source of their drinking water, which they could not separate from irrigation tanks for ages. It is also enforced and practised that nobody should pump or bail out the water below the sill level of the sluice outlets of the irrigation tanks, as that much of dead storage could be used by the livestock in the village.

Synopsis of Cases on Customs and Customary Rights in Tank Management Customary rights on the use of water have always been recognised by law, but this customary right is not an absolute right and is subject to the paramount right of the state to regulate and control the supply of water for irrigation purposes. The customary right of the ryots has also undergone a change after the enactment of the Madras Irrigation Tanks (Improvement) Act 1949 and the Constitution of India. In Indian law, the state possesses the right to regulate the supply of water in public streams in order to mobilise it to the best advantage. The rights and the obligations as between the state and ryots in India in the matter of

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irrigation rest largely on unrecorded custom and practice. Whenever customary rights were violated, courts did not approve the violations and awarded compensation to the ryots who suffered due to such violation. By the Tamil Nadu Land Encroachment Act 1905, the government assumed full ownership and control over the water bodies. Along with this, the Tamil Nadu Irrigation Tanks (Improvement) Act 1949 empowered the government to increase the capacity of the tanks through appropriate activities. Legal suits against such actions were also barred under Section 4 of the latter Act. Therefore in all the decisions of the court, the customary right which was against the Government Act was not upheld, but the customary irrigation right of the community against the individuals was recognised by the courts. Also, the customary rights in regard to the enjoyment of benefits from usufructs from tanks were upheld by the higher courts after long and tiring legal battles against the villagers as a collective. The following paragraphs capture a few such cases in Tamil Nadu in ensuring the management of tanks through customary rights by the community after a legal tussle.

Case 1 In a case arising in Dindigul district of Tamil Nadu, it was feared that the customary right and prescription for water enjoyed by a particular village would be affected by a channel that was proposed to be dug to feed another village. Hence, the villagers brought a suit for a declaration of their exclusive right to the water flowing in the channel and for an injunction restraining the government from carrying out the proposed diversion of the channel. They based their claim on customary right and prescription. The villagers claimed that they were enjoying the exclusive use of water from the channel for over 100 years. The court held that the claim based on prescription was precluded by the relationship between the plaintiff and the defendant, and though the plaintiff was entitled to the accustomed supply of water for irrigating their lands, they could not acquire any exclusive right to the detriment of the paramount right of the state to regulate and control all supply of water in public streams and channels. The court also held that the extent of the right of the plaintiff villagers to take water from the channel for the irrigation of their lands should be determined with reference to the accustomed uses of the water by the plaintiffs and not with reference to the entries in the registry. The court laid down the dictum that the custom cannot give exclusive right to the detriment of the state. In Indian law, the state possesses the right to regulate the supply of water in public streams so as to utilise it to the best advantage. The rights and obligations as between the State and the ryots in India in the matter of

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irrigation, rest largely on unrecorded custom and practice. It has generally been stated that the ryotwari holder is only entitled to claim that the supply of water required for the cultivation of his registered wet lands should not be materially diminished by any act of the government. Subject to this condition government in this country has claimed absolute right to change the source of irrigation or the method of irrigation by which the ryot has been supplied and to regulate the use of water of all public or natural streams in the best interest of the people (Secretary of State v. P.S. Nageswara Iyer and others).3

Case 2 In another case decided in 1939, the water from the Cholavaram tank and Redhills tank was proposed to be diverted to Madras city for drinking water purposes. The proposed diversion was detrimental to the existing ayacut of over 5,000 acres. The question which arose for decision was whether the government was entitled to supply water to Madras city without regard to the rights of the cultivators in the old ayacut as they existed in 1860. The court held that in the Madras presidency, the ryot was entitled to receive the water that his lands had been accustomed to for irrigation purposes without interference from the government or anyone else. The government cannot be required to supply water when none is available, and it has the right to conserve and distribute the water available in the interest of the particular ayacut. Also, in years of shortage, the only obligation of the government is to make an equitable distribution of water. But the ryot has a claim against the government when it withholds from him the water which he has a right to demand taking into consideration the supply available. A ryot holding lands under the old ayacut in a tank bed area can successfully sue the Secretary of State for a declaration that he was entitled to sufficient supply of water for the cultivation of one crop per annum, subject to the power of the government to control the distribution of the available water in the interest of the landholders, whose lands comprise the old ayacut. It was pointed out that the rights and obligations as between the state and the ryot in this country so far as supplying water for irrigation purposes was concerned, vested largely on unrecorded custom and practice. In this particular case the court awarded damage of Rs 450 for the loss suffered by the ryot (C.N. Marudhanayagam Pillai v. Secretary of State for India).4 3 4

AIR 1936 Madras 923. MLJ 939: 176.

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Case 3 In Lachuma Goundan v. Pandiappan, 1950,5 the court had an occasion to decide the irrigation right of a ryotwari proprietor to water and the liability of the government. The court held that the obligation of the government was to supply water necessary and sufficient for the accustomed requirements of the ryotwari proprietor so long as such supply is not adversely affected by natural causes such as deficiency of rainfall or scarcity of water in the rivers from which the supply channels take off. The ryotwari proprietor has a claim when the government diverts, to his prejudice, water that is available in the channel, so as to materially diminish the supply of water that he has been accustomed to receiving from the channel for the cultivation of his wet lands. In other cases the interference by the government with the existing rights of irrigation from artificial channels constructed by government is not an actionable wrong, and the ryotwari proprietor is not entitled to insist that the entire volume of water which has been flowing through the artificial channel should, for all time, be allowed to run along the channel without diminution or diversion by the government. Damage to the ryotwari proprietor, whether actual or inevitable, is the gist of action as well as the basis of the liability of the government.

Case 4 When the Manjalar Dam was constructed, the lower down ayacutdhars affected by the proposed construction approached the court for injunction against the construction. They succeeded in the lower court in getting the injunction. But on appeal, a division bench of the Madras High Court held as follows: A reference to Section 2 of the Indian Easements Act, 1882, may also be usefully made to highlight the intention of the legislature and statutory recognition of the prerogative right of the State to regulate the supply of water. Section 2, states that nothing in the Act shall be deemed to affect any law not expressly repealed or to derogate from any right of the Government to regulate the collection, retention and distribution of the water of the rivers and streams flowing in natural channels and of natural lakes and ponds or of the water flowing, collected, retained or distributed in or by any channel or other work constructed at the public expense

5

MLJ 658.

486 DHAN Foundation for irrigation. That apart, with the march and development of the Concept of Law and Justice, the feudal principles or theory of ‘Laissez Faire’ yielding place to ‘Socialistic’ pattern of society and principles of social and distributive justice coming to hold the field with the advent of the Constitution of India, some of the anachronistic ideals of the past have undergone slow but steady reformation and change. Article 39(b) of the Constitution of India enjoins the State also to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and the words ‘material resources’ have been assigned wide meaning to include not only natural but physical resources. The Governance of the country has to be in conformity with the basic tenets and fundamental principles of Rule of Law with its essential attributes of equality of opportunity and equal protection of laws. Therefore it would be difficult to countenance a plea or accept and approve a claim opposed to the basic tenets of the principle of equality. In the fact of a public oriented scheme and the construction of a dam known as ‘Manjalar Scheme’ by spending public funds, to collect, regulate and distribute water for an effective irrigation of agricultural lands, the claim that the plaintiffs and villagers similarly placed would be entitled to water for raising two crops even if the single crop lands get water or not, cannot commend the credibility of acceptance with courts of justice. The paramount and absolute rights of the State Government, to regulate and distribute the supply of water for irrigation to one and all whose lands form part of the ayacut under an irrigational source cannot be whittled down or undermined by the Civil Courts granting any blanket orders of injunction or stay or even any direction or declaration annulling particular scheme or project devised in the larger and general interest and welfare of people and the society at large. Coming to the facts and circumstances of the case, we find that the right of the plaintiffs for the supply of water for one crop is not in any manner interfered with or infringed. It would be unjust, inequitable and unreasonable to deny others even water for one crop to provide water to the plaintiffs for raising the second crop in their lands merely on account of the fact that they stood registered as ‘double crop’ wet lands, when the irrigation source as such came into existence with public funds, though of natural river channel.

Case 5: Usufruct Rights from Tanks in Dindigul District Athoor is a traditional zamin6 village bound by its heritage and the cultural practices of a multi-caste community in southern Tamil Nadu. It is situated 6 Zamins were appointed by the colonial rule to collect various taxes from the villagers and each zamin was responsible for a few villages. Such villages are called zamin villages.

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20 kms southwest of the district headquarters, Dindigul. The Athoor Village Committee was established even before 1900 with a view to helping the village to gain certain benefits from the then government. The late Savarimuthu Pillai was active in the welfare of Athoor and Sempatti villages, and he was considered to be a charismatic leader. He is reported to have laid the foundation for the Athoor Pattadhars (Landowners) Committee (APC). It was registered in the year 1993. The Executive Committee consisted of four office-bearers, namely President, Vice President, Secretary and Treasurer, and 13 Executive Committee members who constituted the apex body in the decision-making process. Athoor village comprises a series of tanks, namely Pulvettikulam, Karunkulam and Pagadaikulam. These tanks are all situated in a line, from east to west of the village. They receive water supply from the rain-fed nonperennial River Kundaar. The ayacut area commanded by these tanks is given in Table 18.1. Table 18.1: Tanks in Athoor Village Tank Pulvettikulam Karunkulam Pagadaikulam Total

Water Spread Area (ha) 68.750 20.030 33.085 121.865

Command Area (ha) 165.505 34.075 88.480 288.06

Cultivated Area (ha) 156.005 31.520 81.580 269.105

Source: Revenue registers maintained at village administrative office.

These lands belong to 703 farmers. Of them, about 73 per cent belong to the category of marginal farmers, and only 1.5 per cent are big farmers while the remaining are small farmers. Water had to be distributed by the agreed (customary) rules formed by the APC. They are as follows: z

z

z

Maniams (irrigator or water manager) have to distribute the water in an orderly manner sequentially (head to tail end). If any one needs water beyond their requirement, they have to request the APC only, which in turn will suitably instruct the concerned maniam. During the periods of scarcity, water delivery time will be fixed on the basis of availability and certain pre-fixed norms to provide equitable distribution.

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Fishing Rights from Tanks Fishing rights from these tanks, as per the custom, have been with the villagers under which they auction the fishing rights. The returns from the auction are used for temple and tank-related purposes only. All religions get their share of the revenue for their respective religious festivals and this is made known to all villagers. They have been adhering to this norm for more than 40 years. The customary rights followed by a consensus-based decision-making process of the APC were: z z z z

z z

Irrigation rights as per the (customary) rules formed. Appointment of maniams for irrigation. Fishing rights. Segment (kandam)-based Watch and Ward system through the appointment of guards. Cattle rearing and recreational activities. Auctioning right over the use of kalam (threshing floor) at the time of harvesting.

Dispute on Fishery Usufructs: Loss of Rights Way back in 1946, the government tried to cancel the fishery rights of the APC by levying a tax called meenpasi (fish tax). But the then president, Thiru I. Savarimuthu Pillai, fought against it in courts, and finally a stay was awarded by the Madras High Court, preventing the takeover of the tank fishery rights from the villagers. Again, in the mid-1980s, the Tamil Nadu government brought the tanks under the Fish Farmer Development Agency Act and declared it as one of the pilot tanks where fishery was proposed to be promoted. In 1988, the Assistant Director of the Fisheries Department, Dindigul, requested the Tahsildar to cancel the APC’s customary right to fishery. The APC put up more than 10 years of legal battle in the court of law. But in the year 1998 the High Court announced that the right to fishing from the tank has been vested with the Assistant Director, Fisheries Department, Dindigul. So the APC lost its enjoyment of fishing rights from 1998 onwards. Like Athoor, Sithayankottai Town Panchayat, situated 20 kms southwest of Dindigul, lost its customary fishing rights enjoyed by the Village Farmers Protection Sangham for a period of over five decades to the fishery

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department during the year 1998. In this village, even now, the mainstay of the people, agriculture, is practised under two rain-fed tanks, Thamaraikulam and Puliyankulam, and also in the direct ayacut area of Thamaraikulam Rajavaikkal. The direct ayacut of Rajavaikkal and the two tanks command a total area of 471.065 ha. In this village, Mr N. Abdul Khader (who was later elected as Rajya Sabha MP) organised the farmers and started a formal association, namely the Sithayankottai Grama Vivasaigal Pathukappu Sangam. This sangam (association) undertook the following tank-related activities from 1980 onwards: z z z

z

Clean the Rajavaikkal every year. Regulate water distribution. Purchase land for the Puliyankulam Tank Farmers Association’s building construction. Fish-rearing activities in the tank.

Such a well-performing sangam which had been traditionally enjoying all the usufruct rights including fishery in the tanks, witnessed a problem with the fishery department during the year 1988. The association approached the Madras High Court to pass an order in favour of the sangam on the basis of their age-old customary practices. While the case against the fishery department was pending with the High Court, the association continued to enjoy the rights, using the injunction granted by the court. During 1998, the fishery department invited contractors for fishing in the tank, but no one came forward to apply for the contract, fearing that the sangam and the villagers would not allow any fishing which was much against the prevailing customary practice. The case now stands dismissed, and the government’s right to fishing has been upheld. Appendix 1 provides the legal issues on which the sangam fought the case.

Encroachments and the Rights of Cultivators: The Case of Rasingapuram Village in Theni District Rasingapuram is one of the village panchayats in Bodinaickanur block of Theni district. It is a multi-caste village wherein more than 12 caste people are residing with traditional and cultural bonds. This village is situated 23 kms southwest of Theni. The total geographical area of the village panchayat is 2,618.28 ha with around 1,640 households. The total population of the village

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is 6,426 (male 3,272 and female 3,154). The main village, Rasingapuram, is surrounded by four hamlets within its Panchayat jurisdiction. Kurumba goundar is the dominant caste in the village. There is a tank called Goundankulam in the village fed by a non-perennial stream. This village was one of the frontliners in getting electricity in the late 1950s. This combined with free electricity and agricultural credit to sink wells in the early 1970s led the villagers to sink more than 250 wells. Encouraged by such facilitation, the farmers started drilling 100 feet and dug deeper bore-wells inside the open well of 80–100 feet depth, virtually mining the groundwater. Because of their over-dependence on wells, coupled with the state ownership of tanks, the farmers neglected the tanks. Using this opportunity, a few power hungry and greedy farmers encroached upon the feeder channel and also ploughed the tank bed, sunk two wells, got electricity supply by unfair means and were cultivating crops and coconut trees. They enjoyed these benefits for more than 20 long years. The villagers’ continued effort to vacate the encroachments failed to yield any positive result. By the year 1997, the total waterspread area of 5.17 ha of tank bed had been reduced to around 1.20 ha, with complete dismantling of the bund. The villagers who owned lands in the ayacut as well as the others tried to protect the waterspread area since 1985, but they failed. In total, 10 farmers have encroached upon the land, as shown in Table 18.2. Table 18.2 The Encroachments Reported as Legitimate Patta Sl. No

Name of the Encroacher

SF No.

1 2 3 4 5

Krishnasamy S. Ramuthai K. Kariappan C. Srinivasan S. Keppammal S.

6

Malarkodi S.

7 8 9 10

Ondiveeran Thangamani Perumal O. Subramani P. Total

346/1 346/2 346/3A1 346/3A2 346/3B1 346/3B2 346/43 46/5 346/6 346/6 346/6 346/6

Patta No.

Extent of Encroachment (ha)

45 1553 139 2148 2149 348 – – – – – –

0.445 0.515 0.230 0.040 0.035 0.220 0.230 0.295 0.300 0.300 0.300 0.800 3.700

Source: VAO records collected by the tank association promoted by us.

During the year 1996, the farmers had approached DHAN Foundation, Madurai, to help them remove the encroachments and revive the tank. The

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farmers were interested in restoring the tank after evicting the encroachments. They felt that their efforts until then had not been successful and so the organisations like DHAN could guide them properly to get rid of the encroachment problem. They formed a formal Tank Farmers’ Association (TFA) and arrived at a consensus for making contributions to the rehabilitation works of the tank. The Association then approached the District Collector for funding the tank rehabilitation project, and they got the funds. The works to the value of Rs 88,000 were allotted to the TFA under the Namakku Namey Thittam (Self-Help Project). After a great deal of struggle in 1997, a land survey was organised by the Tahsildar and the boundary was established for the tank, at least on paper, by the villagers. They completed the reconstruction of the tank bund after removing parts of the encroachments in an area of 0.485 ha under the S.F. No. 346/1, 346/3A1 and 346/3B1. However, the encroachers were continuously threatening the Association members as well as taking legal steps to stop the revival of the tank through any means. Since part of the tank had been revived, many wells in the vicinity got rejuvenated by the next year (1998), and many villagers started pressing for the complete eviction of all encroachers. The villagers again tried to obtain funds from the Panchayat Union for reviving the rest of the tank. This time they evicted around 1.00 ha of encroached land using force and coercion and spent Rs 1.80 lakhs on tank restoration work. Then the encroachers joined together and consulted lawyers and filed a case against the District Collector for illegal eviction of their lands. The village farmers were agitated and jointly decided to evict all the encroachments at any cost and collected Rs 25,500 from among themselves. Using this as their contribution, they got a sanction order for water harvesting work for an amount of Rs 1.02 lakhs under the Village Self-Sufficiency Scheme. This time they formed a stable and big bund around the revived waterspread area. Also they completely evicted the supply channel encroachers by clearing it using coercive means. Through this exercise, they encircled the entire area of the tank bed. The encroacher sitting in the middle of the tank bed went on an all-out offensive against the villagers. He was successful in getting an interim injunction on the works sanctioned by the government. Now the case is pending in the High Court, Chennai. Presently, the villagers are confronted with the question of whether the retrieved tank bed land will remain common property in the court battle. In case the court upholds the patta given to the encroacher in the 1980s, what would be the fate of the tank? Their efforts to get impleaded in the court case

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have also not met with success because of the Government Pleader’s assertion that it is not necessary for them to get impleaded in the case.

Encroachments in Tank System and Supply Channel One of the challenges faced in storing rainwater in the tanks up to their designed capacity is the encroachments that are being made along the supply and surplus channels and tank waterspread areas. Such encroachments constrain the carrying capacity of the channels, resulting in only a partial inflow of run-off into tanks from their catchment areas. The encroachments also induce the encroachers to wilfully break the surplus weirs or tank bunds in order to protect their standing crops in the encroached tank bed area from damage. The low storage of tanks caused by such encroachments deprives the poor from having access to the tank water. Supply (feeder) channels are the lifelines of tanks as they carry the rainwater from the catchment area or the river water from a diversion weir. Any obstruction to flow through these channels due to siltation, weed infestation, neglect or encroachment would seriously affect tank storage even during years of normal or excess rainfall. So they have to be meticulously cleaned and maintained by the locals. There are many tanks situated in the peri-urban areas of cities and towns. Those tanks have unfortunately been chosen as dumping yards for solid waste and sewage water disposal basins, resulting in their decreased storage capacity and pollution and affecting the nearby residents’ health and well-being. Even though many such cities have their piped and ‘protected’ drinking water supply, a considerable number of citizens still depend on their dug wells for their other domestic uses. The degradation of tanks caused by urbanisation has severely affected not only the farmers who were using the tanks for agriculture but also the other local people, forcing them to buy water from water tankers. If only a serious and persistent effort is made by the authorities concerned to restore these tanks and their supply channels and revive their local management along with the rainwater and roof water harvesting works being undertaken, it will largely mitigate the water problems faced by the people. Under the existing circumstances, enforcement of the prevailing laws to evict the encroachments is time consuming and is only partially effective.

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In government, there exists a rule that no water body should be encroached upon by any individual or organisation, and no patta right can be given to any one to use such land for any purpose other than for conservation of the water body. This rule has also been, in recent times, upheld by both the Madras High Court and the Supreme Court. Yet it is not strictly followed in all cases.

Recent Judicial Interventions in Preventing Encroachments The Supreme Court of India and the various High Courts have come down heavily on the encroachments in water bodies, and enjoined upon the government and local bodies to evict them and preserve and protect the water bodies. The Supreme Court of India observed in its judgement delivered in 2001 as follows: Judiciary in Prevention and Eviction of Encroachments on Water Bodies It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain, etc., are the nature’s bounty. They maintain a delicate ecological balance. They need to be protected for a proper and healthy environment, which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the revenue authorities should have bestowed their attention to develop the same which would on one hand have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment of land in community water bodies sites.7

S.C. 3215. The Madras High Court in a P.I.L. Observed It is imperative for the State to maintain the natural resources with a view to keep the ecological balance intact and thereby provide a healthy environment to the public at large in the State of Tamil Nadu. Having regard to the precarious water situation prevailing in the major part of the year, it is imperative that such noted water storage resources as tanks, odais, Ooranies, canals, etc., are not obliterated by encroachers.

7 Judgement of the Honourable Supreme Court Hinch Lal Tiwari v. Kamala Devi and other (AIR 2001).

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Judgement of Chief Justice Markandey Katju and Justice Kalimullah on a Public Interest Litigation against encroachment of ODAI Poramboke, 2005 The High Court Bench also took the opportunity and directed the State Government to identify all natural water resources in different parts of the State and wherever illegal encroachments are found, to initiate appropriate steps in accordance with the relevant provisions of the law for restoring such natural water storage resources which have been classified as such in the revenue records to their original positions so that the suffering of the people of the State due to water shortage is ameliorated. The above judgements reiterate the role of the state and particularly the Revenue Department in the prevention and eviction of encroachment on water bodies, and the significance of maintaining water resources. Laws on Removing Encroachment Commonly, encroachment takes place in water bodies that vest with the Revenue Department, Public Works Department (PWD), Municipality and Panchayat. The Revenue Department has standing orders, and hence has the sole responsibility of the removal of encroachments. The Prohibitory Order Book (PO Book) in the Revenue Department lists out the poramboke (unassigned government) lands (Tank Poramboke, Odai Poramboke, Oorani Poramboke, etc.) where encroachment should not be permitted. The procedure for evicting encroachment is also clearly spelt out in the Tamil Nadu Land Encroachment Act. With regard to the encroachments on water bodies in Panchayats, as per Section 131 of the Tamil Nadu Panchayat Act for lands that are owned, vested and are in present use by the Panchayat, the Panchayat concerned ought to take action to remove the encroachment within a period of three months. Then it has to report the matter to the Revenue Authorities for initiating proceedings against the encroacher as per the Tamil Nadu Land Encroachment Act. But the Act is not clear in terms of the process and procedure to remove the encroachment. In the 1920 Tamil Nadu District Municipal Act, there is a provision wherein the police department can be approached for evicting the encroachment whereas a similar provision is not available in the Tamil Nadu Panchayat Act 1994. Similarly, as per Section 22–s, under the functions of Farmers Organisation of the Tamil Nadu Farmers Management of Irrigation System Act 2000, the Water Users’ Associations have been given the role to identify encroachments and proceed with eviction process. But here again the Act

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has not specified the process to be followed and procedures to be adopted to remove the encroachments.

Role of Panchayats in Water Management Panchayati Raj Institutions have been accorded constitutional power through the 73rd Amendment to the Constitution. A list of subjects has been provided in the Eleventh Schedule. If the State so desires, it may transfer powers and responsibilities to the Panchayats to implement the schemes related to these subjects (Article 240g). The subjects include Minor Irrigation, Watershed Development and Water Supply for Domestic Uses. The provision makes it clear that the devolution of powers is not mandatory, but at the discretion of the State. Although the Tamil Nadu Panchayats Act 1994 contains some provisions relating to the maintenance of tanks by the Panchayats and Panchayat Unions, the tanks could not be maintained effectively because of the lack of adequate financial allocations, staff and powers. Of late, even the very limited allotments given to the Panchayats for the maintenance of the tanks have been stopped. As a result, the Panchayats have to utilise the provisions made under the Centrally sponsored schemes for the maintenance of the tanks.

Provisions in Tamil Nadu Panchayats Act, 1994 1. Section 236: Public roads, markets, wells, tanks, etc., to be opened to all. All roads, markets, tanks, reservoirs and waterways vested in or maintained by a Panchayat shall be open to the use and enjoyment of all persons, irrespective of their caste or creed. 2. Section 110(g): It is the mandatory duty of the village Panchayat to provide water by sinking and repairing wells, the excavation, repair and maintenance of ponds or tanks and construction and maintenance of waterworks for the supply of water for drinking, washing and bathing purposes. 3. Section 112(aa): It is the duty of the Panchayat Union Council to provide for the construction of waterworks for the supply of water for drinking, washing and bathing purposes. 4. Section 132: Vesting of communal property or income in the village Panchayat.

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5. Section 133: Maintenance of irrigation works, execution of kudimaramath (local community management), etc. 6. Section 143: Precaution in case of dangerous tanks, wells, holes, etc. 7. Section 257 to be read with Schedule IV of the Act (Eleventh Schedule of Constitution of India). 8. The State may empower the Panchayats to carry out functions relating to i. minor irrigation, water management and watershed development (Entry 3 of the Schedule) and ii. drinking water (Entry 11 of the Schedule). 9. Section 257A: Provision of rainwater harvesting structures in all buildings. Similar provisions are available in municipal Acts.

Tanks and Influence of Well Irrigation Although during the five decades from 1950 to 2000 most farmers chose to have their own independent wells for irrigation, thanks to the campaign launched by government agencies, banks and electricity boards by way of subsidies, easy loans for sinking wells, and subsidised or free electricity supply for irrigation—which resulted in steady neglect and degradation of tanks and the decline of groundwater and environmental health—they are now realising the importance of the traditional water bodies like tanks and ponds, and that of watershed development works to recharge groundwater and maintain its potential, if not enhance it. There is a well-planned awareness creation programme being adopted by both government agencies and voluntary organisations to motivate the rural and urban communities to conserve water and use it economically, which will hopefully be followed by the people.

Learnings Customary Practice in Vogue The rural communities had their own norms, inherited from their ancestors, regarding the management of irrigation tanks and various related issues. The

Indian Laws and Acts 497

tank management by and large still remains with the villagers. The informal/ formal Tank Farmers’ Associations (TFAs) take care of such functions. More important is the water acquisition in the chain of tanks, which is dealt with by the villagers, and the government authorities stay away from this activity. The aforementioned cases stress the importance of collective action on the part of villagers by organising committees with stipulated roles and responsibilities. The TFAs also follow routine operation and maintenance works by either appointing water guides/maniams for irrigation or contributing labour or money for cleaning the channels and surplus courses.

Revenue from Usufructs In all the selected villages, the farmers reported that they were earlier enjoying full rights over irrigation water from tanks and they had power to utilise the usufructs as desired by them. However, in recent years, such use of the usufruct revenues by them is objected to by the government authorities— mainly the Revenue Department and not by the Public Works Department (PWD) or the local Panchayats. The Revenue Department collects taxes for 2 C patta 8 based on the type of trees planted, and recognises the right of individuals who planted and guarded the trees, allowing them to derive monetary benefits from them. However, the tank users of present times want to generate some form of revenue from the tanks as a matter of right rather than resorting to ‘illegal’ means. Moreover, the villagers as a forum demand that the customary rights to usufructs which they were enjoying earlier be restored to them, with the Panchayats overseeing that the funds are utilised for the maintenance of the village tanks. They would prefer this to undertaking illegal practices.

Way Forward As a way forward, the existing laws need a thorough review in order to make them much more stringent so that the customary rights of village communities as well as small village water resources, namely tanks and ponds, can be conserved before they become extinct. Like the Reserved Forest Protection Act, an Act to conserve all traditional village water bodies from social evils 8

Patta is legal entitlement to one to possess land.

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needs to be introduced in the Parliament. DHAN Foundation mooted the Conservation Council for Small Scale Water Resources Management comprising eminent water experts, scientists and practitioners in Tamil Nadu during 2000 and had discussed this issue in great detail. In one of its meetings in 2002, the council proposed a bill to the legal department, entitled the Tamil Nadu Water Sources (Conservation, Development and Management) Bill (Appendix 2). This unique bill needs to be considered by various State Governments with modifications as appropriate to the local context and relevance, passed as an Act by the legislators, and followed up by the framing of rules under the Act. DHAN Foundation made a presentation of a Policy Brief on the need for eviction of encroachments in water bodies in Tamil Nadu to the Chief Secretary and a group of secretaries to the Government of Tamil Nadu, based on its field experience. It is gratifying to note that this move led to the enactment of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act 2007.9 In this globalisation era, for achieving the Millennium Development Goals with water as a tool to alleviate poverty, the government has the responsibility to take up legal as well as policy reforms in favour of community managed natural resources. It is important to recognise that the native water wisdom existing over several centuries could be utilised for developing the traditional water bodies and the rural economy. The small scale village water resources have to be revamped to be able to ensure water and food security in the coming years. Appropriate policies and resource allocation empowering village communities to own, maintain and manage these small-scale tank systems need to be turned into a new law. In the three southern states of Andhra Pradesh, Karnataka and Tamil Nadu, massive programmes on restoration of the traditional water bodies like tanks and ponds are planned and implemented with the World Bank funding. While the overall objective of this programme is laudable, the actual planning and implementation of the rehabilitation by the local communities is not well facilitated by the agencies concerned. Our experience of working with the rural communities dependent upon these village tanks clearly shows the following: 1. Their local knowledge and wisdom in identifying the reasons for the degradation of these water bodies is not given due importance except in Karnataka. 9

G.O.Ms. No. 320 Public Works (W2) 28 September 2007 vide Tamil Nadu Government Gazette No. 273 & 274, October 2007.

Indian Laws and Acts 499

2. They are only consulted about the various restoration works planned for implementation by the outside engineers and are not given the opportunity to take the initiative to diagnose the status of the water bodies and plan the measures needed to revive those systems optimally. 3. The local community of water users is totally sidelined from the implementation of the tank restoration works. The works are planned for execution by an outside contractor. The people are not allowed even to monitor the quality and progress of the works planned during their implementation. But they are expected to take over the restored tanks for post-rehabilitation maintenance and upkeep. This in our considered opinion and experience will never work. The local people will continue to be passive observers or may be indifferent to the works done or even become only critics. They will never own the tank or its management and will continue to depend on the government agencies for maintenance of the restored tanks. If other efforts to preserve the traditional water bodies do not fructify, the Central Government too has the responsibility for the preservation of the water resources in the country by bringing them under the ‘Concurrent list’ of the Constitution if that can prevent the encroachments and the resulting degradation. In addition, the resources allocated for the revival of these vital village water resources to harvest the rainwater and manage the demand for water by multiple stakeholders effectively, need to be increased manifold.

Appendix 1 The issues raised in the Case are as follows. The Petitioner Sangam consists of the farmers making a livelihood from the tanks for ages: 1. The farmers are the right holders of the water and the government is only undertaking tax collection, recognising our rights. Petitioner Sangam has held the fishing rights for ages and has been spending the proceeds for the benefit of the tanks and the village. No individual gets the benefits of the fishery. The revenue resettlements have also confirmed the rights of the Petitioner Sangam.

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2. The proceeds from the fishery are only marginal compared to the stakes on water and agriculture. Therefore, the Petitioner Sangam will always give priority to farming and will use the entire water for agricultural production even if the proceeds from fishery are to be fully affected in the village. This cannot be the case if the Fish Farmer’s Development Authority (FFDA)-appointed contractors come into the picture. 3. The FFDA has been in existence only to promote inland fishery from the water resources in the district. The modern fishery might affect the customary practice of fish farming and will not be suitable for agricultural areas and tanks because the use of chemicals and others may affect the agriculture, sanitation and hygiene. 4. The right of the fishery is a natural or common law and right vested with wet landowners, and cannot be taken away by the state. An attempt to take away these natural and common rights infringes upon the fundamental rights of the petitioners. 5. Right of fishery has been vested with the Petitioner from time immemorial and is inseparable from agrarian and irrigation rights. Such a right of occupation, trade or business cannot be taken away from the citizens through executive orders without due process of law. 6. The fishery contractor may not allow water for irrigation at times of water scarcity, forgoing his losses in scarce years. Considering the paddy production and their value to be put in risk for the sake of fishery production, it is not a workable economic exercise. No data is made available of such losses to the villagers in such eventualities. No consultation is made before taking away the rights. 7. When the government is collecting Mean Pasy (fishery right) from the Petitioner, how can it give the same rights to the FFDA for the same activity? 8. The common interest of the village will get affected and the unity, integrity and communal harmony of the villagers will be affected by such action by the government. 9. When the government still focuses on agricultural production for basic need fulfilment, how can an enterprise like fishery be made out at the cost of agriculture as the fishery production would need a certain quantity of water in storage at the cost of agriculture. After 10 years of waiting for the court’s decision, the Association was unable to continue the legal battle for want of finances. Therefore, the court dismissed the case as not pressed and upheld the government’s right over fishing in the tank.

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Appendix 2 The Tamil Nadu Water Sources (Conservation, Development and Management) Bill, 2002 Statement of Objects and Reasons Encroachment and destruction of irrigation sources spell danger to agriculture and food production besides causing ecological imbalance and leads to environmental deterioration. This has also led to the depletion of groundwater resources. The continued neglect of water sources and their degradation unless prevented immediately will result in a serious situation not only affecting agricultural activities but will also pose threat to human and animal survival and social and economic development. Waste products dumped in the water sources are contaminating available water sources. Untreated or partially treated sewage, agricultural chemicals and industrial effluents are seriously affecting the quality of water for domestic and other uses. Until today, water conservation and efficient use of water and protection of water sources have not received the attention they deserve. No comprehensive legislation is available for the conservation, protection and development of water sources. It is therefore necessary to conserve the water sources, improve their capacity and protect them from encroachment. The main sources of irrigation in Tamil Nadu are tanks and irrigation wells. There are 10,711 PWD tanks of which 17 have been abandoned. Twenty-Nine thousand and three minor irrigation tanks are under the control of Panchayat Unions and Panchayats. Besides a good number of tanks having an ayacut of below 10 acres in Pudukottai district were not transferred to Panchayats or Panchayat Unions and are maintained privately. Thus there are more than 40,000 tanks in Tamil Nadu. According to one estimate nearly 3,000 tanks do not exist and are only on records. According to Tank Information Report, December 1999 of the PWD, Chennai city and its suburbs Chennai once had nearly 200 tanks which are all now abandoned for irrigation due to urbanisation (Adayar minor basin memoir). Many tanks have gone completely defunct due to various reasons such as heavy siltation, urbanisation and encroachments resulting in extremely poor storage capacity. Many tanks are destroyed due to effluent discharge from tanneries and factories. Tanks are the most important sources for storage

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of rainwater. They also facilitate recharge of groundwater. Groundwater is fast depleting in Tamil Nadu and posing a great threat to the availability of water. There is a great need to enact legislation for this purpose. The existing ‘Madras Metropolitan Area Groundwater (Regulation) Act (XXVII of 1987)’ is applicable to Madras city and 229 villages in Kanchipuram and Thiruvallur districts. The groundwater legislation for the entire Tamil Nadu is in the offing. As regards tanks, the important Acts dealing with the improvement and protection of irrigation sources are (a) The Tamil Nadu Compulsory Labour Act (I of 1858), (b) The Madras Irrigation Cess Act (VII of 1865), (c) The Madras Irrigation (Levy of Betterment Contribution) Act (III of 1955) and (d ) The Madras Irrigation Tanks (Improvement) Act (XIX of 1949). These Acts deal with particular aspects of protection of tanks during emergency by compulsory customary labour or improvement of tanks by government by making some levy. They do not take into consideration the encroachment, pollution and destruction of tanks by urbanisation and by other means of reducing the capacity of the tanks. These Acts do not deal with other water sources like ponds, ooranies, rivers, etc. There is no comprehensive legislation for preservation and improvement of the irrigation sources and for protecting them from encroachment and pollution. Hence the need for a new Act encompassing all measures for the conservation, protection and improvement of irrigation sources. 1) Short Title Extent and Commencement a) This Act may be called The Tamil Nadu Water Sources (Conservation, Development and Management) Act 2002. b) It extends to the whole of Tamil Nadu. c) It shall come into effect on such date as may be notified by the Government in the official gazette. 2) Definitions In this Act, unless the context otherwise requires a) ‘Govt.’ means the Govt. of Tamil Nadu. b) ‘Water source’ means and includes reservoirs, tanks, rivers, irrigation wells, ooranies, swamps, spring heads, streams, lakes, all backwaters, canals, percolation ponds and water-courses and all standing and flowing water, open head channels, diversion systems, lift irrigation schemes, waterfalls, creeks and the like. c) ‘Collector’ means the collector of a revenue district.

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d) ‘Officer in charge of a water source’ means an officer not below the rank of the Tahsildar of the Dept. of Revenue, PWD, Forest, and Highways & Rural Works, Panchayat or Panchayat Union which owns or with whom the water source is vested or entrusted. e) ‘Pollution’ means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may or is likely to create a nuisance or render such water harmful or injurious to public health or safety or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organism. f ) ‘Sewage effluent’ means effluent from any sewerage system or sewage disposal works and includes sullage from open drain. 3) Restriction on the Reservation or Use of Land Occupied by the Water Sources for Non-irrigation Purposes Notwithstanding anything contained in any other law for the time being in force, no authority other than Govt. shall make any order directing: a) that any land in which a water source exists or existed be used for any non-irrigation purpose. b) that any land or any portion thereof in which a water source exists or existed may be assigned by way of lease or otherwise or permitted to be used by any person or authority, corporation agency or any other organisation. 4) Duty to Maintain and Improve the Water Sources It is the primary duty of the officers in charge of the water sources to maintain and improve the sources and their capacity by getting grants from the government and enlisting cooperation and active involvement of the landowners or by invoking the provisions of the Tamil Nadu Compulsory Labour Act (I of 1858), or The Madras Irrigation Cess Act (VII of 1865) or The Madras Irrigation Tanks (Improvement) Act (XIX of 1949). 5) No Rights shall be Acquired over Land Occupied by the Water Sources Except as hereunder Provided No right of any description shall be acquired in or over the land on which a water source exists or existed except under a grant or contract in writing made by or on behalf of the Govt. or on behalf of some person in whom

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such right or other power to create such right was vested when this Act comes into force or by succession from such person; Provided that no patta shall without previous sanction of the Govt. be granted for any portion of land included in the water source and every patta granted without such sanction shall be null and void. 6) Sinking of Wells in or Near the Supply Channel or Tank Bed or Preventing the Flow of Water in the Supply Channel Prohibited No person shall be permitted to sink a well in the supply channel or within 10 metres from the channel or the tank bed of the water source which will have the effect of reducing the flow of water or depletion of groundwater except with the permission of the collector or the officer in charge of the water source. 7) Liability of Person Unauthorisedly Occupying Any Portion of Land in a Water Source etc., to Summary Eviction i) Any person unauthorisedly occupying any portion of land in a water source shall be summarily evicted by the officer in charge of the water source or by a person authorised by the water users’ association, or distribution committee or project committee having jurisdiction over the area in which such land is situated by exercising the power under Sections 22(s) or 23(q) or 24(m) respectively of the Tamil Nadu Farmers Management of Irrigation Systems Act 2000 (Tamil Nadu Act 7 of 2000). Any crop or other product raised on such land, shall be liable for forfeiture and any building or other construction erected or anything deposited thereon shall also be liable for forfeiture. Forfeiture under this section shall be adjudged by the authorised person, association or committee referred to above and any property so forfeited, shall be disposed of in such manner as may be prescribed. Provided that no eviction or adjudication under this section adversely affecting a person shall be made or adjudged, unless a) such person has been given a notice in such manner as may be prescribed; and b) the representation, if any received in pursuance of such notice, has been duly considered by the officer in charge of the water source or by such authorised person, association or committee.

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ii) The power of eviction of encroachment referred to in subsection (i) of Section 5 is without prejudice to the exercise of powers of eviction conferred on the executive authority of the village Panchayat or the Panchayat Union Commissioner under the Tamil Nadu Panchayats Act 1994 (Act 21 of 1994) in respect of the water sources vested or regulated or belonging to the Panchayat and Panchayat Unions. iii) If the removal of the encroachment has not been secured within three months, the officers of the revenue department shall institute proceedings under the Tamil Nadu Land Encroachment Act 1905 and secure removal. 8) Duty of Village Administrative Officer It shall be the duty of the village administrative officer of every revenue village to report immediately of any encroachment on water sources and the poramboke lands attached to them, to the concerned executive authority of the village Panchayat, Panchayat Union Commissioner and the concerned water users’ association besides the officers of the revenue department. The village administrative officer concerned should also assist the officers and authorities referred to above in getting the encroachment evicted. 9) Duty of Revenue/Survey and Land Record Officers Officers of the revenue department, and survey and land records department shall, on receipt of request from village Panchayat, Panchayat Union or water users’ association, immediately undertake field survey, identify and fix survey stones depicting the boundary of the Govt. land, which will facilitate the eviction of encroachment if any over the water sources. 10) Prevention of Contamination of Water Sources Notwithstanding anything contained in the water (prevention and control of pollution) Act 1974 (No. 6 of 1974) or the Environment (protection) Act 1986 (No. 29 of 1986) or the rules made thereunder or any other law for the time being in force, officers in charge of water sources or water users’ associations responsible for maintenance of water source vested or entrusted to them shall have the power to prevent the pollution of water sources by persons, institutions or industrial concerns by letting in wastes, contaminated water, sewage, sewage effluent or chemicals or poisonous, noxious or polluting substances in the water sources. Anyone doing so even after the notice issued by the above organisations or officers in charge of water sources is liable for prosecution and punishment.

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11) Prohibition against Removal of Sand, Earth, Stones, Gravel or Silt from Water Sources or Deposit of Such Materials a) No one shall, except with the written permission of the govt., collector or the officer in charge of the water source remove sand, earth, stones, gravel or silt from a water source. b) Deposit any material on the tank or bed of any water source, which will affect the quality of water or reduce the capacity of the water source. c) Any person violating this provision shall be committing an offence and shall be liable for prosecution. Besides, the vehicle and equipment used for the purpose are liable for seizure. 12) Review of Encroachment and Pollution in Water Sources The district collector shall review the encroachment and pollution in the water sources periodically and take effective steps for the removal and prevention of encroachment and pollution. The failure of the officers, authorities and institutions entrusted with the responsibility of the maintenance of water sources to prevent and remove encroachment and pollution shall be viewed seriously and appropriate action taken against them. 13) Penalties for Damaging Water Sources and Activities Prohibited in such Water Sources Any person who a) encroaches on the water sources b) damages, alters or removes any part of the construction, embankment, sluice, surplus weir or other structures c) deposits wastes, filth or lets in contaminated or polluted water or sewage or otherwise damages the water sources, will be deemed to have committed an offence under this Act. On the prosecution of offender in a competent court, he will be liable for a punishment with imprisonment for a term of 3 months or with fine of Rs 1,000 or with both. 14) Duties of Police Officers i) It shall be the duty of every police officer to assist the executive authority of the village panchayat, Panchayat Union Commissioner, authorities of the water users’ association, distributory committee and

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apex committee constituted under the Tamil Nadu Farmers Management of Irrigation Systems Act 2000, reasonably demanding his aid for the lawful exercise of any power vesting in the authorities referred to above. ii) Any police officer who avoids or refuses to perform any duty imposed on him by this Act shall be deemed to have committed an offence under Section 10 or under Section 44 of the Madras District Police Act 1859. 15) Bar of Jurisdiction of Courts Notwithstanding anything contained in any law for the time being in force, no order passed or proceeding taken by any officer or authority of the State Govt. or authorities of water users’ association or distribution committee or apex committee under the Tamil Nadu Farmers Management of Irrigation Systems Act 2000, shall be called in question in any court, in any suit or application and no injunction shall be granted of any action taken or to be taken by such officers or authority or the State Govt. in pursuance of any power conferred by or under this Act. 16) Appeal An appeal shall lie a) To the district collector from any decision or order passed by the officers and authorities referred to in Section 7 of this Act. b) To the commissioner of land administration from any decision passed by the collector on appeal. c) The appeal to the district collector and commissioner of land administration should be preferred within 30 days from date of receipt of order or decision. 17) Power to Make Rules Every rule or order made under this Act shall, as soon as possible after it is made, be placed on the table of the legislative assembly and if, before the expiry of the session in which it is so placed or the next session, the assembly makes any modification in any such rule or order, or the assembly decides that the rule or order should not be made, the rule or order thereafter will have effect only in such modified form or be of no effect as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or order.

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18) Protection of Action Taken in Good Faith No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made hereunder.

Bibliography DHAN Foundation. 2004. Study on Customary Rights and their Relation to Modern Tank Management in Tamil Nadu, India. Madurai: DHAN Foundation. Gurunathan, A. and C.R. Shanmugham. 2000. ‘Customary Water Rights and Jurisprudence in Tank Management: Case Studies from a Community Livelihood Perspective’, Paper presented at the workshop on ‘Law and Administrative Practices in Water and Related Issues’, National Law School of Indian University, Bangalore. Lele, Sharachchandra, A.K. Kiran Kumar and Pravin Shivashankar. 2005. ‘Joint Forest Planning and Management in the Eastern Plains Region of Karnataka: A Rapid Assessment’, CISED Technical Report, Bangalore. Sivasubramanian, K. 1995. ‘Irrigation Institutions in Two Large Multi-village Tanks of Tamil Nadu’, Ph. D. thesis, MIDS, Adayar, Chennai. Vani, M.S. 2002. ‘Customary Law and Modern Governance of Natural Resources in India— Conflicts, Prospects for Accord and Strategies’, Paper submitted to the Commission on Folk Law and Legal Pluralism, XIII International Congress, Chiang Mai University, Thailand.

PART VI

WATER LAW REFORM

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19

Water Law Reforms in India: Trends and Prospects Philippe Cullet and Roopa Madhav

Introduction Over the past two decades, institutional changes as well as legal and policy reforms in the water sector have been dramatically transforming the landscape of water. The regulation of freshwater uses has been a subject of increasing attention. This is due in part to increasing water scarcity and, in part, to the inadequacy of existing policy, laws and principles in the water sector. The existing water law framework in India is characterised by the coexistence 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; parallel realms of water jurisprudence that emanate from traditional water management systems and community ownership of water commons, as well as the more recent regulation of water ownership, conservation and quality, and the judicial recognition of a human right to water. The lack of a comprehensive water legislation in India has ensured that, to-date, water law is made up of different instruments, principles and judicial decisions which are not necessarily fully compatible with each other. To illustrate, the claims that landowners have over groundwater under common law principles are today difficult to justify in the context of the realisation of the human right to water since groundwater has often become the main source of drinking water and land-based access rules do not contribute to fostering access to drinking water for all. There is very little disagreement over the fact that water law needs to be reformed to address ever-increasing water scarcity and ensure equitable

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access to water, particularly drinking water. This recognition has led to a flurry of activity over the past couple of decades on the part of national and international agencies to propose new water law principles, Rules and Acts. The process of reform which can be said to have formally started in the late 1980s with the adoption of the first national water policy has, since then, led to the introduction of a number of changes at the national level and in a number of States. This process of water law reform is now picking up for a variety of reasons which include a strong policy push from international aid agencies.

Origins and Conceptual Framework of Water Law Reforms Water law has been continuously evolving. However, the evolution witnessed over the first four decades after independence must be distinguished from recent and ongoing trends. Until the 1970s, water law was in part settled and in part growing organically in response to evolving concerns. The past couple of decades have witnessed the beginning of a fundamental reworking of water law. This is taking the form of reforms, which are changing and will change the existing water law, as well as expanding the scope of regulation. The reasons for water law reforms include physical as well as institutional factors. 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 and increased demand due to economic and population growth. This is also due to increased pollution of the existing finite water resources, which not only restrict the 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. This, coupled with poor management practices and lack of funding for maintenance and renovation of infrastructure has further contributed to the present crisis. 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 waterrelated issues. Water pollution has been addressed through the introduction of environmental measures to control and reduce it.1 Access to domestic 1 Water (Prevention and Control of Pollution) Act, 1974, available at http://www.ielrc. org/content/e7402.pdf.

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water has been the object of various governmental and other programmes.2 The provision of irrigation water and water to cities has, for instance, been taken up in the context of the construction of large dams.3 There have also been progressive calls for changes in the law and policy framework concerning water. This is due to two broad factors. First, 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 the 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 the ongoing water law and policy reforms. Water-sector reforms have been proposed to foster better management of water resources. The emphasis is thus put on ensuring that water is seen as an economic good. Since the public sector is seen as unable to deliver better management, water-sector reforms propose comprehensive governance reforms, including the setting up of independent water regulatory authorities and private-sector participation.

National and State Water Policies By the 1980s, it became evident that while water was largely a State subject, the lack of a national policy on water was a major impediment to the development of a coherent set of policies on water at the State and national levels. This led to the development of the Water Policy, 1987. The rapidly deteriorating water scenario and the significant economic policy changes that occurred throughout the 1990s led to the reformulation of the water policy in 2002.4 The two documents are quite similar to each other. They focus on developing a databank, estimating the available water, prioritising water 2 See, for example, Government of India, Accelerated Rural Water Supply Programme Guidelines. 3 See, for example, concerning the Sardar Sarovar Project, Narmada Control Authority, Drinking Water from Sardar Sarovar Project, 1991, reproduced in Cullet ed., The Sardar Sarovar Dam Project, p. 101. 4 National Water Policy, 1987, available at http://www.ielrc.org/content/e8701.pdf and National Water Policy, 2002, available at http://www.ielrc.org/content/e0210.pdf

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(with access to drinking water accorded priority), developing groundwater, meeting drinking water needs, developing irrigation facilities, encouraging the participation of stakeholders in water management, monitoring water quality, promoting conservation consciousness, developing a flood control and management system, using cost-effective measures to minimise erosion, maintenance and modernisation of waterworks, ensuring the safety of structures built on water bodies, the development of science and technology relevant for water management and training of personnel. The key differences between the two policy documents are that the 2002 policy focuses on the development of an improved institutional framework with a focus on improving the performance of the institutions, promotion of rehabilitation schemes for the displaced, enhancing participation by private parties in water management, creating an effective monitoring system, and ensuring that States share the waters of a joint river. The national policy has been supplemented by the adoption of a number of State water policies.5 The national and State policies are based on a set of principles that are broadly similar. First, the emphasis is on water as a natural or economic resource that can be harnessed to foster the productive capacity of the economy, from irrigation water for agricultural production to water for hydropower. Secondly, policies tend to introduce prioritisation of water uses. Several of the policies provide that water should be allocated in the following order: drinking water, irrigation, hydropower, ecology, agro-industries and non-agricultural industries, navigation, and other uses.6 There is a clear emphasis on domestic uses of water as the overriding priority in water allocation. Nevertheless, several of these policies also provide that this priority list can be changed if circumstances so require, thus ensuring that there is in fact little substance in the prioritisation.7 Thirdly, policies generally provide that ‘beneficiaries and other stakeholders’ should be involved from the project planning stage.8 The most noteworthy aspect of the participatory provisions of recent water policies is that they seek to link participation with decentralisation. Thus, at the core of the participatory provisions is the need to devolve the control of irrigation 5

See, for example, Rajasthan State Water Policy, 1999, available at http://www.ielrc. org/content/e9903.pdf; Uttar Pradesh Water Policy, 1999, available at http://www.ielrc. org/content/e9904.pdf, and Maharashtra State Water Policy, 2003, available at http://www. ielrc.org/content/e0306.pdf. 6 See, for example, National Water Policy, 2002, Section 5 and Rajasthan State Water Policy, 1999, Section 8. 7 See, for example, Maharashtra State Water Policy, 2003, Section 4 and Rajasthan State Water Policy, 1999, Section 8. 8 See, for example, National Water Policy, 2002, Section 6(8).

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systems to users. This is largely premised on the perceived inability of the State to deliver appropriate benefits to farmers. The basic idea is to transfer part or full control of irrigation systems to users by both allowing them and forcing them to take responsibility for the upkeep of the irrigation systems as well as for the financial costs involved and for sharing the water allocated among themselves.9 Fourthly, recent water policies generally promote the use of ‘incentives’ to ensure that water is used ‘more efficiently and productively’.10 The main consequence that 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.11 An area that is singled out for private-sector participation is urban water supply.12 Fifthly, water policies propose the introduction of water rights. Waterrelated rights are not new per se, and there is already a vast corpus of law related to control over water. The policies try to do two different things. On the one hand, some policies restate the proposition that the State is the ‘sole owner of the water resources’.13 On the other hand, policies propose the creation of water rights in favour of users.14 These rights are said to be 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. Trading is specifically proposed in certain policies.15 Finally, the policies seek the introduction of wide-ranging legal and institutional reforms. These include the introduction of various amendments to existing laws as well as the introduction of new laws. Three main aspects are singled out. These are the introduction of a legal framework for the formation of Water User Associations (WUAs) to decentralise water governance; the introduction of laws providing for the establishment of a water resources authority whose primary characteristic is to be largely independent from existing irrigation and other water resource departments and the regulation of groundwater.16

9

See, for example, Uttar Pradesh Water Policy, 1999, Section 17(1). See, for example, Maharashtra State Water Policy, 2003, Section 1(3). 11 See, for example, National Water Policy, 2002, Section 13. 12 See for example, Rajasthan State Water Policy, 1999, Section 9. 13 Orissa State Water Policy (draft 20), Section on Multipurpose River Basin Plan. 14 See, for example, Uttar Pradesh Water Policy (1999), Section 17(1)(d). 15 See, for example, Maharashtra State Water Policy (2003), Section 4(2). 16 See, for example, Karnataka State Water Policy (2002), Section 7. 10

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Water Law Reform: Sectoral Issues Groundwater The extremely rapid increase in groundwater use for irrigation and other uses over the past 50 years has led to the rapid lowering of water tables in many parts of the country. The desire of the state to regulate the use of groundwater together with the need to address groundwater use, have progressively led to the development of a number of rules and principles in this area. From a legal point of view, the progressive shift from the use of surface water as the main source of irrigation water to groundwater due to new technological opportunities led to the realisation that land-based rules of groundwater appropriation were becoming inappropriate. This led the Central Government to formulate a model bill for groundwater, which was first put forward in 1970 and then periodically reintroduced.17 At the Central level, other measures were later taken under the Environment Protection Act, in particular the setting up of the Central Groundwater Authority to regulate and control the development and management of groundwater resources in the country.18 Since the Central Government does not have the authority to introduce a Central Groundwater Protection Act to regulate its use, the measures that it can take are, by definition, limited. The adoption of groundwater Acts by the States is thus necessary. For a variety of reasons, State Governments have been slow in heeding the call of the Central government but over the past decade a number of States have adopted Groundwater Acts.19 The various Acts that have been adopted are different, but several follow the scheme of the model bill whose

17 Model Bill to Regulate and Control the Development and Management of Groundwater, 2005, available at http://www.ielrc.org/content/e0506.pdf 18 See The Environment (Protection) Act (1986), Section 3(3), and Ministry of Environment & Forest, Gazette Notification No. 30, Part II, Section 3, sub-section (ii), 14 January 1997. 19 See, for example, Kerala Ground Water (Control and Regulation) Act (2002), available at http://www.ielrc.org/content/e0208.pdf, Andhra Pradesh Act to Promote Water Conservation, and Tree Cover and Regulate the Exploitation and Use of Ground and Surface Water for Protection and Conservation of Water Sources, Land and Environment and Matters, Connected Therewith or Incidental Thereto (2002), available at http://www.ielrc.org/content/e0202.pdf, and Goa Ground Water Regulation Act (2002), available at http://www.ielrc.org/content/ e0201.pdf

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main features are the following: (a) the establishment of a groundwater authority under the direct control of the government; (b) the authority is given the right to notify areas where it is deemed necessary to regulate the use of groundwater; (c) the final decision is taken by the respective State Governments; (d ) in any notified area, every user of groundwater must apply for a permit from the authority unless the user only proposes to use a handpump or a well from which water is withdrawn manually; (e) decisions of the authority in granting or denying permits are based on a number of factors, including technical factors such as the availability of groundwater, the quantity and quality of water to be drawn and the spacing between groundwater structures; ( f ) the authority is also mandated to take into account the purpose for which groundwater is to be drawn but the model bill does not prioritise the domestic use of water over other uses; (g) all wells, even in non-notified areas, need to be registered. The model bill provides for the grandfathering of existing uses by only requiring the registration of such uses.20 This implies that in situations where water scarcity already exists, an Act modelled after these provisions does not provide an effective basis for controlling the 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. Besides legislative developments, courts have also addressed the issue of control over groundwater. The most significant recent case in this area is the decision of the High Court of Kerala ruling that groundwater is a ‘private water resource’, and accepting the proposition of law that landowners have proprietary rights over groundwater (Hindustan Coca-Cola Beverages (P) Ltd v. Perumatty Grama Panchayat ).21 It also refrained from accepting that Panchayats have rights over this essentially private resource. An appeal is pending before the Supreme Court.

20

Model Bill. See note 17. Writ Appeal No. 2125 of 2003, W.A. No. 215 of 2004, W.A. 1962 of 2003 and W.A. No. 12600 of 2004, 7 April 2005. 21

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Drinking Water The provision of drinking water is primarily the responsibility of the States. Yet the Central Government has played a very important role in fashioning the policies that States apply and has provided significant funding to ensure access to water in rural areas. The most important body at the national level is the Rajiv Gandhi National Drinking Water Mission (RGNDWM), which functions within the Department of Drinking Water Supply established under the Ministry of Rural Development. It has been the key institution with regard to the development of policies and the administration of the rural drinking water sector. Among the schemes it implements, the Accelerated Rural Water Supply Programme (ARWSP) which is funded by the Government of India and State Governments plays a central role. The ARWSP was first introduced in 1972. Apart from an interruption during the 1970s, it has been a central component of the government’s attempts to ensure full coverage of all habitations throughout the country. It continues to provide the basis for the Central Government’s interventions in rural drinking water. The ARWSP guidelines provide the core framework used by the RGNDWM in ensuring the provision of drinking water to all habitations in the country.22 The guidelines provide several key policy elements. First, they define the different levels of coverage. Non-covered habitations are defined as having access to less than 10 lpcd; partially covered habitations are those having access to 10–40 lpcd and covered habitations are defined as having access to 40 lpcd. The figure of 40 lpcd used to determine the minimum level of coverage necessary to define a habitation as covered, has been determined through an amalgamation of figures for different basic minimum uses of water. These include 3 litres for drinking, 5 litres for cooking, 15 litres for bathing, 7 litres for washing utensils and the house, and 10 litres for ablutions. Quantity itself is not the only criterion to determine whether a habitation is covered. The source of water also needs to be within 1.6 kms or at 100metre elevation in mountain areas. The water should also not be affected by quality problems even though no specific standards for determining quality are included. Another criterion is that a given public source of water such as a handpump should not be used to serve more than 250 people. The ARWSP guidelines also acknowledge the direct link between drinking water for human beings and water for cattle. Consequently, in a certain 22

Government of India, Accelerated Rural Water Supply Programme Guidelines.

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number of States especially affected by drought, the guidelines mandate that an additional 30 lpcd should be provided for cattle.23 The minimum level of 40 lpcd is acknowledged by the RGNDWM as a minimum level of coverage that should be increased over time. Thus, in States where all habitations have been covered at the level of 40 lpcd, the Government of India has approved that the next level of service should be 55 lpcd within 500 metres of the house or at a 50-metre elevation in mountain areas.24 In the context of the overall water-sector reforms, the Government of India came up in 2002 with a new scheme known as Swajaldhara, which proposes to foster new types of intervention to ensure better drinking water availability in villages. The guidelines on Swajaldhara are the direct outcome of a World Bank-sponsored pilot project called Swajal and adopt the same philosophy.25 Swajaldhara meant to foster a change in the role of the government, from direct service delivery to that of facilitating activities largely undertaken by people themselves. In other words, the guidelines propose the progressive withdrawal of the state from the provision of the fundamental right to drinking water. The argument put forward by the government is that people perceive water as a fundamental right in part because it has been provided free by the government. The government estimates that the public has, therefore, not understood that water is scarce and is a socio-economic ‘good’. It is therefore proposed to shift from what is seen as a supply-driven approach to one that focuses on the need of end users who will then get the service they want. The fundamental change in approach required by this demand-focused strategy is that people will get the service they ‘are willing to pay for’.26 In fact, the basic economic rationale of Swajaldhara is that people should be made to pay for part of the capital costs of drinking water projects and for the whole cost of operation and maintenance. Swajaldhara was premised on a number of principles. First, it proposes the introduction of a demand-focused approach, which involves some level of community participation. Secondly, it seeks to devolve ownership of drinking water assets to the appropriate panchayat, which is given the power to undertake all activities related to water supply and sanitation, from planning 23

Ibid., Section 2.2.2. Rajiv Gandhi National Drinking Water Mission Department of Drinking Water Supply, Submission to the National Advisory Committee (2005). 25 On the Swajal project, see for example World Bank, Staff Appraisal Report—Uttar Pradesh Rural Water Supply and Environmental Sanitation Project (Report No. 15516-IN, 1996). 26 Section 1(2), Ministry of Rural Development, Guidelines on Swajaldhara, 2002, available at http://www.ielrc.org/content/e0212.pdf. 24

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to maintenance. Thirdly, Swajaldhara imposes on communities a contribution of at least 10 per cent of the capital costs for a service level of 40 litres for one person per day, and imposes that they take 100 per cent responsibility for operation and maintenance. It also imposes that the contribution of the community to capital costs should be at least 50 per cent in cash. Further, under Swajaldhara, only individuals or households that make the first 10 per cent contribution will benefit from the schemes being implemented. Other people are simply not part of the scheme.

Irrigation Irrigation laws in the country vest control and ownership over water resources, in the government. Reforms in this sector have in the past sought to address issues of equity and rights, regulation and conservation, governance, management and finance, and water pricing.WUAs have now gained primacy within the institutional and legal reforms framework within the country. WUA schemes have been introduced in different forms in different parts of the country. However, a number of common characteristics can be identified in many schemes. This includes the fact that WUAs are meant to be governed and controlled by people who both pay for the services the association offers and receive benefits. WUAs are not commercial entities but they have to be financially independent and therefore need to receive an income that is sufficient to allow them not to go bankrupt. Further, WUAs are in most cases subject to regulatory control by the state because they are deemed to provide a service of benefit to the public.27 The setting up of WUAs has been taken up with increasing intensity over the past decade and a number of States have introduced WUA legislation. These range from Andhra Pradesh and Madhya Pradesh to Orissa and Rajasthan.28 These Acts have been adopted at different points in time and the schemes proposed have evolved over time even though the

27

See Hodgson, ‘Legislation on Water Users’ Organization’. Andhra Pradesh Farmers’ Management of Irrigation Systems Act, 1997, available at http://www.ielrc.org/content/e9701.pdf; Madhya Pradesh Sinchai Prabandhan Me Krishakon Ki Bhagidari Adhiniyam, 1999, available at http://www.ielrc.org/content/e9902.pdf; Orissa Pani Panchayat Act, 2002, available at http://www.ielrc.org/content/e0211.pdf; and Rajasthan Farmers’ Participation in Management of Irrigation Systems Act, 2000, available at http://www. ielrc.org/content/e0004.pdf. 28

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basic principles are fairly similar in each situation. One of the most recent and most evolved WUA Acts is the Maharashtra Management of Irrigation Systems by Farmers Act, 2005. WUAs under the Maharashtra Act are set up to foster secure and equitable distribution of water amongst its members, maintain irrigation systems, and ensure efficient, economical and equitable distribution and utilisation of water to optimise agricultural production as well as protect the environment.29 While the Act provides a decentralisation scheme towards farmer involvement in irrigation at the local level, it also gives significant powers to the Maharashtra Water Resources Regulatory Authority or other designated authorities. In particular, they have the power to determine the command area of an irrigation project for which a WUA must be constituted. Further, the same authority can also amalgamate or divide existing WUAs on a hydraulic basis, and ‘having regard to the administrative convenience’.30 In other words, the power granted at the local level is limited by the fact that authorities have the largely discretionary power to make and break WUAs. The system set up under the Act is constraining in so far as once a WUA has been set up, no water will be supplied to anyone individually outside the WUA framework, and the scheme is binding on all landholders and occupiers. In this sense, WUAs are forced to take on the burden of administering the irrigation system and are largely left to sort out ways in which they want to achieve this. Further, the Act provides a uniform model of WUAs regardless of the existing arrangements at the local level and their success in using water equitably and sustainably. The framework provided under the Act seeks to balance benefits and burdens. On the one hand, WUAs are meant to benefit from a more assured water supply and greater control over the water allocated to them. Further, it is the authority’s duty to supply the amount of water they are entitled to receive. They also have the right to use the groundwater in their command area on top of the entitlement they receive from canals. On the other hand, the Act gives WUAs a number of powers, which are in fact responsibilities. This includes a number of functions ranging from the regulation and monitoring of water distribution among WUA members to the assessment of members’ water shares, the responsibility for supplying water equitably to members, the collection of service charges and water charges, the carrying out of maintenance and repairs to the canal system, and the resolution of dispute among members.31 These are extensive and 29

Section 4, Maharashtra Management of Irrigation Systems by Farmers Act, 2005, available at http://www.ielrc.org/content/e0505.pdf. 30 Ibid., Section 5(5).

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possibly burdensome powers. WUAs are not only given the task to manage the infrastructure but also have to provide an institutional structure that equitably provides all the services that a public authority would provide. While such arrangements would be an appropriate choice if WUAs were linked to Panchayati Raj Institutions (PRIs), it is difficult to see how an association of landholders that has no democratic legitimacy can perform all these tasks in an equitable and sustainable manner for its members and for the broader society around it. To take one example, while there are now a number of rules attempting to ensure the participation of women and lower castes in PRIs, WUAs are often dominated by male upper-caste members. In other words, the existing legislation is both onerous on WUAs, who seem to be saddled with more responsibilities than rights, and is at the same time unlikely to provide a framework leading to a more socially equitable access to and sharing of water. The section concerning the powers and responsibilities of WUAs is complemented by a section concerning financial arrangements. As specified under Section 54, the main sources of funding for WUAs do not come from the government. WUAs are meant to meet their expenses from the proceeds of water charges, borrowings and donations. In other words, the Act seeks to ensure that WUAs are financially independent and viable, a fact which is confirmed by the encouragement given to WUAs to engage in additional remunerative activities, including the distribution of seeds, fertilisers and pesticides or marketing of agricultural produce, which are only indirectly related to irrigation.32

Broader Issues Regulatory Authorities As noted above, one of the central concerns of water sector reforms is to restructure the way in which water services are delivered. One of the avenues suggested to achieve this aim is the setting up of water regulatory authorities that are meant to take over part of the functions of existing government departments. The first experiment undertaken in India in this regard took place in 31 32

Ibid., Section 52. Ibid., Section 4(2).

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Andhra Pradesh, where a Water Resources Development Corporation Act was adopted as early as 1997.33 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 policymaking circles concerning water sector reforms and the type of measures that need to be undertaken to move the agenda forward. As a result, the more recent Acts setting up independent water institutions, like the Maharashtra Water Resources Regulatory Authority Act, 2005 are quite different from the Andhra legislation. Some features of the Maharashtra Water Resources Regulatory Authority Act, 2005, stand out. These concern the composition of the Authority, its powers and the policy framework within which it is called upon to function. The Authority is made of three members and five so-called special invitees. The chairperson of the Authority must be an existing or former civil servant. The other two members, however, are meant to be independent experts with special knowledge in the fields of water resources engineering and water resources economy.34 The five special invitees are to represent five different regions of the State, and must be experts in at least one relevant field related to water resource. While most of the members and invitees are meant to be independent experts, their appointment is controlled by civil servants since the selection committee is made up entirely of senior civil servants.35 In comparison to the Andhra Corporation, the Maharashtra Authority composition is noteworthy for the attempt that has been made to completely exclude political leaders from the power structure. In general, the main shift that can be observed is that the more recent Act goes much further in attempting to delink the new body from the government, at least at the level of its membership. In practice, while the Maharashtra Act takes a clear stand on paper to insulate the Authority from political interference, the bureaucracy still plays an important (in)direct role. The Maharashtra Authority has been given a number of significant

33 See An Act to Create the Andhra Pradesh Water Resources Development Corporation for Promotion and Operation of Irrigation Projects, Command Area Development and Schemes for Drinking Water and Industrial Water Supply to Harness the Water of Rivers of the State of Andhra Pradesh and for Matters Connected Therewith or Incidental Thereto Including Flood Control, Act No. 12 of 1997, available at http://www.ielrc.org/content/e9702.pdf 34 Section 4(1), Maharashtra Water Resources Regulatory Authority Act, 2005, available at http://www.lead-journal.org/content/05080.pdf 35 Ibid., Section 5(1).

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tasks.36 Its first broad prerogative is to establish a regulatory system for the water resources of the State, including surface and groundwaters, to regulate their use and apportion entitlements to water between different recognised categories of use. Concurrently, the Authority has to promote the efficient use of water, minimise wastage and 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 on the basis of the principle of the full cost recovery of management, administration, operation and maintenance of irrigation projects. One of the important tasks entrusted to the Authority concerns its role in laying down the criteria for the issuance of water entitlements. According to Section 11(g)ii, criteria are to be laid out for the issuance of bulk water entitlements for all the main uses of water, including irrigation, rural and municipal water supply as well as industrial water supply. The Authority seems to have significant latitude in determining priorities of use among the main uses since the Act does not provide specific guidelines. Another task assigned to the Authority is the setting up of criteria for trading in water entitlements or quotas. Since the very idea of trading in water entitlements is novel, the Act specifically indicates that the premise for trading is that entitlements ‘are deemed to be usufructuary rights which may be transferred, bartered, bought or sold on annual or seasonal, basis within a market system and as regulated and controlled by the Authority’.37 As is apparent from the above depiction of the Authority’s powers, these are extensive but confined to a number of specific tasks focusing on the management of the existing water infrastructure. With regard to the principles underlying the Maharashtra Authority’s activities, the Act specifically indicates that the Authority must act within the framework of the State water policy and the additional principles found in the Act.38 Some principles need to be highlighted at this juncture. First, the Authority has to work on the basis of the polluter pays principle with regard to the question of water quality. This constitutes an important shift towards the integration of environmental principles in the water sector. Secondly, the volumetric amount of water made available to the holders of water entitlements is to be fixed according to specific criteria. These include, 36

Section 11. Section 11(i)i. 38 Ibid., Section 12. 37

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for instance, the need for equitable distribution of water between all landholders and the grandfathering of existing private-sector lift irrigation schemes for five years. Thirdly, any person with more than two children has to pay 50 per cent more than the prevailing rates to get entitlement of water for agriculture. These three different elements indicate the breadth of factors that the Authority has to take into account. Another characteristic of these guiding policies is that they have the potential to conflict with one another. Thus, a small landowner with three children may have to pay 50 per cent more for his/her water than a neighbouring big farmer even though the principle of equitable distribution would ordinarily be understood as giving priority to meeting the water needs of small and poor farmers. It is also noteworthy that the principle of equitable distribution only seems to apply between land occupiers. This implies that anyone not occupying any land is not covered by this provision. 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.39 This is qualified by a few exceptions such as wells (including bore and tube-wells) used for domestic purposes or the grandfathering of the existing uses of water for agriculture, at least in the 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.

Decentralisation and Participation Water-sector reforms are also based on the need to foster decentralisation and participation involving water users.40 This is meant to provide a framework for decentralising decision-making to the lowest level and to allow ‘beneficiaries and other stakeholders’ to be involved from the project planning

39

Section 14. See for example, the Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment, Dublin, 31 January 1992, available at http://www.ielrc.org/content/e9209.pdf 40

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stage.41 The state is thus called upon to change its role from that of a service provider to that of a regulator.42 In the case of irrigation, for instance, this implies transferring part or full control of irrigation systems as well as the responsibility for the financial costs involved, and the powers for sharing the water allocated, among themselves. Similarly, in the case of drinking water schemes, greater community participation is being envisaged.43 In principle, participation is conceived of as an umbrella term that covers participation from policy planning and project design to the management of water infrastructure. In practice, the focus is on participation at the tail-end of the process. In fact, the word participation is some sort of a misnomer. On the one hand, what is envisaged is not so much the possibility for farmers and users to participate in taking decisions affecting them but the blanket imposition of a system of water governance already in place. On the other hand, the participation which is envisaged at the local level is not that of everyone using water. With regard to irrigation, the focus has been on land ownership and occupation as a basis for governing the use and control of water. In the case of drinking water, new measures put the ability to pay as the governing principle. Both measures are likely to reinforce existing inequalities in the access to water. Water users associations are being experimented with across the country—both in the irrigation sector and drinking water schemes. The WUAs are primarily governed and controlled by the people, with relative autonomy in decision-making and financial structuring. The fiscal crunch faced by the States both in the irrigation sector and the drinking water sector provided the basis for the States being pressurised into accepting many principles of reform, including decentralisation. These newly constituted institutions exist alongside the PRIs. The powers and functions of the PRIs overlap with those of the WUAs being set up by legislations throughout the country. The process of decentralisation, not unlike the earlier experiments with PRIs, have been tentative, with limited powers being granted to the user associations, presaging their limited scope for growth. Further, while granting exclusive control to specific groups set up through a legislative mandate may in the long run aid better resource management, at present, however, some of the problems of decentralisation

41 See for example, Section 6(8), National Water Policy, 2002, available at http://www.ielrc. org/content/e0210.pdf 42 Section 37, Asian Development Bank, Water for All. 43 See for example, Section 17(1), Uttar Pradesh Water Policy, 1999.

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are replicated within these new institutions, such as a lack of awareness and capacity building among members, lack of financial safeguards, excessive political interference hampering genuine participation and the process of decentralisation.

Privatisation The water policy changes in the country reflect changes at the global level. Globally, international water instruments such as the Dublin Statement and the Ministerial Declarations of the World Water Forum44 have sought to recast water as an ‘economic good’ and a ‘human need’, which necessarily sidelines concerns embedded and inherent in perceptions of water as a ‘public good’ or ‘social good’, and that of water as a ‘human right’. These initiatives are in tandem with the reforms being pushed across the world by international financial institutions such as the World Bank, the International Monetary Fund and the Asian Development Bank (ADB), the primary emphasis of which is the rolling back of the state in a bid to allow greater private-sector participation. Global water companies have also demanded that governments undertake legal, regulatory and institutional reform that is conducive for private investment in the water sector of developing countries. India is also under intense pressure to reform its water sector. In fact, the World Bank has been a key player in India, working behind the scenes in building consensus over water policy reform both at the Centre and in the States. In many cases, these reforms promote as a single model the commoditisation of water, creating institutional and legal structures conducive to greater involvement of the private sector in the provision of water services, corporatisation of State providers and the implementation of full cost recovery principles. As a result, there has been a change in the focus of the State as a provider of water for all citizens to distant facilitator or regulator. The National Water Policy, 2002 explicitly encourages private-sector participation in planning, development and the management of water resources projects for diverse uses, wherever feasible. It envisages this private participation to introduce innovative ideas, generate financial resources,

44 Dublin Statement on Water and Sustainable Development; World Water Forum II— Ministerial Declaration on Water Security in the 21st Century, 2000, available at http://www. ielrc.org/content/e0012.pdf; and World Water Forum III—Ministerial Declaration, 2003, available at http://www.ielrc.org/content/e0317.pdf

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introduce corporate management, and improve service efficiency and accountability to users. Further, it states that ‘(d)epending upon the specific situations, various combinations of private sector participation, in building, owning, operating, leasing and transferring of water resources facilities, may be considered’.45 The objective of increased private-sector participation is being promoted in several States. For instance, Karnataka adopted a State Water Policy as well as a State Urban Drinking Water and Sanitation Policy in 2002, and simultaneously amended the Karnataka Municipal Corporations (Water Supply) Rules to provide for the entry of private operators in the urban water delivery systems. In Gujarat, the Gujarat Infrastructure Act, 1999 provides for private participation in the financing, construction, maintenance and operation of infrastructure projects in Gujarat, including water supply and sanitation. Proponents of privatisation argue that the public sector has failed in providing quality water services. This failure is attributed primarily to inadequate funds, the inefficiency of the bureaucracy, lack of incentives and competition, absence of commercially oriented management, political interference, low cost recovery, unwarranted subsidies and heavy staffing in public-sector undertakings. Privatisation, it is believed, will ensure more efficient management and cost recovery, greater private participation, and will bring in the much needed finances to fund the water-sector reforms. Privatisation of urban water services is still in its infancy. In some cases, attempted reforms have had to be at least temporarily abandoned. This is, for instance, the case of Delhi where a proposed privatisation project backed by the World Bank had to be abandoned due to popular opposition. Yet, a number of projects have either been proposed or are ongoing. This is, for instance, the case in Tirupur and Hubli/Dharwad.46 The participation of big water service companies is the object of ongoing reforms. Yet, private actors are not unknown in water service delivery. Thus, drinking water has often been supplied by tankers and other small entrepreneurs. These activities are the object of a different set of concerns because they often operate beyond the confines of the law.

45

Section 13, National Water Policy, 2002. See Madhav, ‘Tirupur Water Supply and Sanitation Project—Impediment to Sustainable Water Management?’ 46

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Reforms: Trends and Prospects The policy and law changes outlined above are momentous. On the whole, they seek to redraw the regulatory framework governing control over and use of water. It is necessary to draw out the main points arising from these reforms to make sense of their implications since changes in the regulatory framework will probably go on, even in States that have introduced new laws in the recent past. In fact, institutions like the World Bank, which are spearheading water-sector reforms, see specific water restructuring projects as part of a long-term agenda that will take years to fully implement,47 partly because it is understood that there will be significant resistance to a number of these reforms. To give but one example, proponents of water-sector reforms would ideally like to see water infrastructure projects be fully financially independent. This is politically impractical at this stage and explains, for instance, why the Swajaldhara Guidelines propose to restrict for the time being the share of capital costs that people pay to 10 per cent. Nevertheless, policy documents outline that the goal is to progressively move towards 50 per cent cost recovery.48 The ADB goes further and proposes that [c]onsumers will be expected to meet the full operation and maintenance costs of water facilities and service provision in urban and rural water supply and sanitation schemes subject to subsidy considerations.49

This also applies to the poor whom the ADB has found to be ‘increasingly willing to pay for water services that are predictable and effective’.50 As a result, the phased elimination of direct subsidies to the poor for access to basic water services is promoted.51 An understanding of the ongoing water regulatory changes needs to take into account not only the laws and policies put in place but also the

47 See for example, World Bank, Project Appraisal Document on a Proposed Loan to the Republic of India for the Maharashtra Water Sector Improvement Project (Report No. 3 1997-IN, 2005), p. 6. 48 World Bank, Implementation Completion Report (CPL-40560; SCL-4056a) on a Loan to the States of Uttar Pradesh and Uttaranchal for Uttar Pradesh and Uttaranchal Rural Water Supply and Environmental Sanitation (Swajal) Project (Report No. 27288, November 2003). 49 Section 44, Asian Development Bank, ‘Water for All’. 50 Ibid., Section 45. 51 Ibid.

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conditions under which these are being introduced. In the case of documents mentioned in previous sections, clear links between national and international policymaking on water over the past couple of decades can be identified. These partly take the form of parallel developments on both levels. This does not, however, provide a complete picture. On the one hand, there have been debates in higher policymaking ranks at the national level concerning the changes to be made to water laws and policy.52 On the other hand, a number of these changes have had their origin in proposals made at the international level and other changes have been adopted as part of development aid conditionality. The latter is, for instance, visible in the context of the Madhya Pradesh Water Sector Restructuring Project, in which context the State is bound to draft new water legislation.53 In other words, the significant similarity between the types of interventions called for by institutions like development banks and the laws and policies adopted at the Union and State levels indicates at the least the strong influence of international policymaking bodies. This, for instance, is illustrated by the fact that most of the key prescriptions of the World Bank’s water report for India of 1998 have been incorporated in most of the recent policies and laws adopted in the country.54 These include, for instance, a demand-led approach, cost sharing for investments, the setting up of WUAs, the establishment of water rights, the reduction of the role of the government in the water sector and an increase in water charges. From the instruments examined above, several overall trends can be noted. Firstly, even though water is still a State subject, there is a significant, and possibly increasing, uniformity between the laws adopted by different States individually. On the one hand, this may be seen as surprising given the diversity of climates and types of water-related problems in different States. On the other hand, this may be an indirect acknowledgement of the perceived need for some form of national regulation of water in addition to existing State-level instruments. One of the consequences of this uniformity is to slowly make the relevance of State control over water use less significant. This is reinforced in the specific case of groundwater through the attempt by the Union Government

52 See, for example, Planning Commission, Report of the Committee on Pricing of Irrigation Water; Planning Commission, ‘Rural Water Supply and Sanitation’. 53 World Bank, Project Appraisal Document on a Proposed Loan for the Madhya Pradesh Water Sector Restructuring Project (Report No. 28560-IN, August 2004), p. 10. 54 World Bank, India—Water Resources Management Sector Review.

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to suggest specific groundwater laws to States by developing the model bill on groundwater, analysed earlier. Secondly, as indicated by the development of laws fostering the setting up of WUAs, one of the main trends in current policymaking is to thrust new responsibilities and rights upon the end users of water infrastructure. This process, which seeks to increase the participation of users and decentralise water governance is in principle a welcome change. Nevertheless, the specific mode of implementation is proving problematic. On the one hand, participation and decentralisation are seen as concurrent elements which imply a progressive withdrawal of the State from certain water-related functions, in particular with regard to the provision of funding. In other words, the main rationale for this process of decentralisation does not seem to give end users more control over water but rather to force them to take on part of the role previously played by the State, irrespective of their willingness or ability to do so. On the other hand, participation envisaged under the participatory irrigation management (PIM) is much less developed than decentralisation, as envisaged under the 73rd and 74th amendments to the Constitution. In fact, most schemes providing for the setting up of WUAs establish them separately from PRIs. This is sometimes justified on the ground that WUAs should be established on a hydrological basis and on the grounds that panchayats are already overburdened, that they may lack the expertise to manage water, and that they are caught up with party politics and factionalism.55 This gives little credit to the fact that panchayats are constitutionally sanctioned democratic institutions for local governance, which have been envisaged as the proper forum for overseeing issues of drinking water, minor irrigation, water management and watershed development in areas under their control.56 The fact that WUAs are established independently from PRIs implies that their basic structure is unrelated to the democratic structure of the latter. This is, for instance, visible in the membership of these associations, which is limited to landowners or land occupiers.57 This tends to establish WUAs as institutions based on old common law principles that give landowners significant control over the water flowing through their land and over groundwater. This makes it apparent that WUAs cannot be expected to

55 See, for example, Gulati et al., Institutional Reforms in Indian Irrigation, p. 202; and Hooja, ‘Below the Third Tier: Water Users Associations and Participatory Irrigation Management in India’. 56 Article 243(g), Constitution and Eleventh Schedule. 57 Section 2(w), Maharashtra Management of Irrigation Systems by Farmers Act 2005.

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make a major contribution to reducing the existing inequalities with regard to access to water. In other words, because of their restricted membership, WUAs cannot be expected to contribute to the realisation of the fundamental right to water for landless people, and can generally not be expected to foster greater social equity than what has been achieved until now under the existing legal principles. Thirdly, recent policy initiatives seek to give the state enhanced control in some fields. This is clearly illustrated in the case of groundwater where, after decades during which the legal regime left most of the control over groundwater to landholders and occupiers, new groundwater legislation seeks to give increasing power to the state to regulate its use. This is in principle a welcome development in a context where groundwater is now the main source of both drinking and irrigation water in most places, and where the Central Ground Water Board does not have a sufficiently broad mandate to comprehensively regulate it. However, the proposed legislation does not go far enough in seeking to provide an equitable and socially just sharing of existing groundwater. Further, new laws do not include sufficient provisions to ensure that poorer users of groundwater will not be harmed by the new controls and charges. The very reasonable aim of allowing the government to regulate groundwater use in view of diminishing per capita availability needs to be placed in the context of the state’s progressive withdrawal from water-related functions. Attempts by the state to maintain significant control over water governance while decentralising are also visible in the cases of the Maharashtra or Rajasthan legislation where authorities are given the power to dismember WUAs, thereby indicating that the control given to the new decentralised institutions is in fact weak since WUAs can be made and broken from above. The lack of institutional stability will seriously hamper local people’s effective control over water. Fourthly, while the state is attempting to regain control in areas like groundwater, the main trend in the past few years has been towards the devolution of power to quasi or non-governmental entities. The basic premise for doing so is the perceived inability of the government to effectively administer the existing water infrastructure, provide water in an economically efficient manner to users and muster further financial resources to infuse in the water infrastructure. The perceived inability of the government to deliver leads to a number of policy prescriptions. As noted above, one of the main novelties introduced through recent Acts is the setting up of independent water regulatory authorities, which are meant to take away part of the powers of government bodies and provide similar services without political

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interference. Alongside the setting up of regulatory authorities, recently adopted Acts foster the view that water must be seen as a scarce economic good. This leads to the perception that water needs to be regulated and managed on a commercial basis like any other market good. As a consequence, all water-related institutions are called upon to ‘manage’ water on commercial lines. This implies that any pre-existing social perspective on the provision of water is largely sidelined. Further, while the first consequence of this approach is the corporatisation of public-sector water utilities, the second is the promotion of the participation of the private sector in the water sector. In other words, the State is both withdrawing from water-related activities and encouraging their development along commercial lines by other actors. This is the consequence of a largely unidimensional view of water as an economic good, which is increasingly seen as being capable of private appropriation, and which eventually leads to the introduction of private ‘water rights’ which can be traded like any other commodity.

Concluding Remarks Water sector reforms are significant. One of the aims of the current watersector reforms is the introduction of new water policies and laws that are different from, and sometimes opposed to, existing regimes. It is imperative that all water users, or, in other words, everyone should be aware of the scope of ongoing and proposed reforms. At present, despite the possibly numerous consultations that have taken place in policymaking circles over water sector reforms, there is little awareness of the unfolding changes at the level of individual rural and urban citizens, individual farmers, PRIs or the municipal bodies most likely to be affected by these changes. A comprehensive participatory process that provides opportunities to unravel all the implications of the proposed interventions is therefore necessary before further reforms are implemented. The lack of effective participation and democratic decision-making has become increasingly contentious, as exemplified by the controversy over the adoption of the World Bank driven water sector reforms in Delhi. Reforms in the water sector are required to take into account the social and hydrological challenges that have surfaced over time. The law and policy framework needs significant updating because it is neither adapted to existing challenges nor provides a comprehensive framework that incorporates all dimensions of water. In particular, existing water laws largely fail to

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operationalise the human right to water, and fail to effectively address social challenges in the water sector. Proposed water sector reforms spearheaded by the international community, the World Bank as well as governments at the Centre and the State levels are not effectively addressing these challenges. In fact, they are likely to contribute to increasing inequalities in the access to and control over water. A comprehensive rethinking of the proposed reforms is therefore necessary to ensure that any further reforms in the water sector effectively benefit the poor, focus on drinking water and prevent the complete commercialisation of a sector directly concerned with the fulfilment of human rights.

References Asian Development Bank. 2003. Water for All: The Water Policy of the Asian Development Bank. Asian Development Bank. Cullet, Philippe (ed.). 2007. The Sardar Sarovar Dam Project: Selected Documents. Aldershot: Ashgate. Gulati, Ashok, Ruth Meinzen-Dick and K.V. Raju. 2005. Institutional Reforms in Indian Irrigation. New Delhi: Sage Publications. Hodgson, Stephen. 2003. ‘Legislation on Water Users’ Organizations—A Comparative Analysis’, FAO Legislative Study 79, Rome. Hooja, Rakesh. 2004. ‘Below the Third Tier: Water Users Associations and Participatory Irrigation Management in India’, Indian Journal of Federal Studies, 1. Available online at http://www.jamiahamdard.edu/cfs/jour4-1_4.htm Madhav, Roopa. (forthcoming 2009). ‘Tirupur Water Supply and Sanitation Project: A Revolution in Water Resource Management?’ in Philippe Cullet, Alin Crowland Gualtieri, Roopa Madhav and Usha Ramanathan (eds), Water Law at the Crossroads National and International Perspectives with Special Emphasis on India. New Delhi: Cambridge University Press. Planning Commission. 1992. Report of the Committee on Pricing of Irrigation Water. ———. ‘Rural Water Supply and Sanitation’, Tenth Five Year Plan (2002–07). World Bank, India 1992—Water Resources Management Sector Review—Report on the Irrigation Sector (Report No. 18416–IN, 1998).

20

Water Law for India: Science and Philosophy Perspectives∗ T.N. Narasimhan

Introduction India is the world’s largest democracy. Together, India’s economic and population growths have imposed enormous stresses on its water resources. Currently, major concerns exist about providing elementary supplies of safe drinking water and water for hygiene for India’s poor, meeting urban, industrial, and agricultural water needs, protecting surface water and groundwater from pollution and preserving aquatic habitats. This critical situation exists partly due to the lack of adequate attention given to water in India’s Constitution and the legal system. Direct references to water in the Constitution are limited in number, and there is no National Act or Code for water. Instead, there are many different laws relating to or having a bearing on water at the Central Government and the State Government levels.1 This lack of a coherent national water policy provides the motivation to examine

∗Thanks are due to Nick Buchanan, graduate student in Science, Technology and Society, Massachusetts Institute of Technology; G.J. Hobbs, Jr., Justice of the Colorado Supreme Court; Vicki Kretsinger-Grabert, Luhdorff & Scalmanini Consulting Engineers; Sharadchandra Lele, Centre for Interdisciplinary Studies in Environment and Development and Jean Moran, Stetson Engineers for a thoughtful review of the draft of the chapter and constructive comments. Thanks are due to M.S. Vani, Development Centre for Alternative Policies, for discussions on the concept of dharma and to Michael Warburton, Public Trust Alliance, for insightful discussions on public trust over many years. This work was supported partly by the Agricultural Extension Service, through the Division of Natural Resources, University of California. 1 Iyer, ‘Water and the Laws of India’.

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what a legal framework might be that would facilitate a wise and equitable use of India’s water resources. Water resources management can be approached in two ways. If water availability were unlimited, and if water use were without any negative impacts, then the task of assuring efficient water use will merely be one of enacting suitable laws to encourage its free and aggressive exploitation. In this case, water resources management may be said to be ‘policy-limited’. On the other hand, if water availability were finite and vulnerable to temporal uncertainty, and if water use can have negative impacts, then water management entails strategies that combine the beneficial use of water, minimisation of negative consequences, and provisions to accommodate the uncertainty of future availability. To this end, policies must foster a beneficial and equitable use of water, duly accounting for the constraints imposed by the attributes of the resource and the human values to which society is committed. In this case, water management may be said to be resource-limited. The present work is based on the premise that managing water in India is resource-limited in the above sense. Thus, exploring what a legal framework might be that facilitates wise and equitable use of India’s water resources must logically have a science component and a human component. The purpose of this work is to combine scientific knowledge and social values so as to formulate a philosophical framework that can guide water law. The perspectives offered are those of an earth scientist who has attempted to comprehend the connections among science, social values and law. It is to be expected that some elements of the perspectives presented are already part of the legal principles that govern India’s water laws at present. A detailed examination of India’s water laws is beyond the modest scope of this chapter. What follows is organised into five sections. The first section is an outline of the current knowledge of the attributes of water on the Earth with special reference to India. The next section is a narration of California’s evolution from aggressive water resources development to integrated water and natural resources management over the past century and a half, and the role the doctrine of public trust has played in it. The third section examines the goals of water resources management that a water law must help to achieve. The following section is an examination of public trust as it relates to India, and a discussion of a framework for water law, comprising a Constitutional mandate and tenets intrinsic to water law. The final section enumerates the challenges confronting the success of a water law.

Water Law for India 537

Water on the Earth The Hydrological Cycle The Earth is unique in the cosmos for hosting life as we know it. Life, in turn, does not exist without water. All life and the geological processes that shape the Earth are driven by the hydrological cycle. Deceptively simple, and yet profoundly challenging to the most sophisticated scientific research, the water cycle constitutes the conceptual basis necessary for rational water resources management. Water on the Earth is in a continuous state of motion, being subjected to two opposing forces. Gravity causes it to move downhill, and the Sun’s heat causes it to evaporate and rise to higher elevations. The resulting motion is circulatory as shown schematically in Figure 20.1. Atmospheric water vapour condenses and falls to the ground as rain or snow. A part of this water runs over the land as surface water, continuously moving downhill, seeking to Figure 20.1 Hydrological Cycle

Source: Drawn by the author.

538 T.N. Narasimhan

reach the ocean. Another part infiltrates downwards into the ground to recharge the groundwater reservoir. Groundwater, which is pulled down by gravity into the Earth, is gradually deflected upward towards the land surface because of the presence of impervious earth layers and because of the Earth’s internal heat. Thus deflected, groundwater moves up to be discharged at the land surface in lakes, wetlands, springs and perennial streams. Once on the land’s surface, water goes back to the atmosphere evaporated by solar heat or by transpiration, a process associated with photosynthesis of plants. This simple process, going on for billions of years, has been responsible for the unusual geological and biological conditions that set the Earth apart from any other known cosmological body. Rapid reuse of water is responsible for unusual geological and biological conditions not known to exist anywhere except on Earth. Although living things have been thriving on fresh water for billions of years, the total amount of fresh water available in rivers, lakes, the soil and groundwater constitutes only about 0.6 per cent of all the water present on the Earth. Most of this fresh water is present as groundwater, of which only a fraction is extractable by wells.2 As it happens, humans and other living things on land derive sustenance from about 0.01 per cent of all the water present on the Earth. The reason why so little can do so much is that this small quantity of water is cycled over and over again with great rapidity among the land, the oceans and the atmosphere. It has been estimated that, on an average, all atmospheric water gets replenished over a period of about nine days. Of the total rain falling on the land annually, about 62 per cent goes back to the atmosphere through evaporation and transpiration by plants.3 Surface water and groundwater together make up the balance. In addition to transporting water itself, streams and rivers erode and transport enormous quantities of sediments (for example clay, silt, sand, gravel) and dissolved salts (nutrients) from higher elevations, and deposit them at lower elevations in stream channels and flood plains. Plant and animal communities distributed along a river course depend on these sediments and nutrients for habitation and sustenance. Thus, these communities are indicative of the long-term evolutionary adaptation of plants and animals to the river’s patterns of water and sediment transport. Whereas water gets circulated in the atmosphere in a matter of days, the average time for water to move from the head waters of a major stream to the ocean may be of the order of a few years to decades. 2 3

Van der Leeden et al., The Water Encyclopedia. Brutsaert, Hydrology: An Introduction.

Water Law for India 539

The average time taken by a sediment particle to move from the mountains to the ocean may vary from centuries to millennia. Like water, nutrients and sediments are also reused over and over again. Thus, the nutrient cycle and the erosional cycle are interwoven with the hydrological cycle. Simultaneously, life sustains itself through these cycles, and in the process influences their functioning. Between the land surface and the water table lies the soil zone, where the soil pores are filled with water and air. Most plants and agricultural crops require soil water for extracting nutrients, and soil air for root respiration. Because water is held strongly by the attractive surface forces of soil grains, it cannot be extracted by wells from the soil zone. Below the water table, where all the pores are completely filled with water, groundwater can move down by gravity to depths of many kilometres. Water extracted by human societies for sustenance occurs from land surface to a depth of about 1,000 metres, rarely deeper. All this water is of meteoric origin, having originated as rainfall. Groundwater from some deep aquifers may represent rain that fell hundreds of thousands of years ago.

Watersheds Experience shows that climate cannot be controlled. Humans have to accept and adapt to the variability and uncertainty of rainfall, and the large quantity of water (over 60 per cent of rainfall) transferred from land to the atmosphere as evapotranspiration. Given this, a wise use of water resources requires judicious management of what remains, surface water and groundwater. The logical unit for such management is a watershed. By definition, a watershed (drainage basin or catchment) is associated with a stream or a river. All water in a stream or a river comes from rain falling over its watershed. A watershed, as shown in Figure 20.2, is enclosed by a water divide. Watersheds have a hierarchical structure. At the highest elevations, close to the water divide of a large stream, exist the smallest watersheds of incipient streams. The streams of these watersheds, usually having an area of less than a sq. km, join together to form larger streams. This process of the merging of smaller streams goes on in steps, each step leading to larger streams with progressively larger watersheds. For example, the watershed of the Godavari, the second largest river of India, has an extent of over 310,000 sq. kms.4 Comparing this area with that of the incipient streams, one readily 4

Brutsaert, Hydrology: An Introduction.

540 T.N. Narasimhan Figure 20.2 Watershed of a Large Stream

Source: Drawn by the author.

sees that the Godavari watershed must be made up of tens of thousands of smaller watersheds of many different sizes. An important consequence of this hierarchical structure is that all these watersheds are connected together by water, sediments and nutrients. In general, at higher elevations where the land is steep, streams act as sources of recharge for groundwater. At lower elevations, over relatively flat lands, streams gain water from groundwater. Water flow in perennial streams during non-rainy seasons, referred to as base flow, is entirely sustained by groundwater. All watersheds, large and small, are interconnected through water, nutrients and sediments. Except under some unusual geological situations, surface water basins and groundwater basins coincide. Over these basins, surface water and groundwater constitute a single, interconnected resource. The lifecycles of plant and animal communities that live in estuaries and coastal waters adjacent to the seashore depend on the waters discharged to the ocean by rivers. Consequently, reductions and diversions of a stream’s natural discharge to the sea will impact the lifecycles of the plant and animal communities of coastal areas downstream of the diversions. It is a misconception to assume that the water that runs off to the ocean is wasted. The headwaters of a major stream have an intrinsic connection to the estuaries of the sea coast.

Water Law for India 541

Synopsis of India’s Water Resources To facilitate a discussion of water resources, India can be conveniently divided into three distinct physiographic provinces (Figure 20.3): the Himalayan Belt, the Indo-Gangetic Plains and Peninsular India. The nature of occurrence and availability of water in these provinces are quite distinct and require different strategies of management. Figure 20.3 India’s Three Physiographic Provinces

Source: http://www.gsi.gov.in/geolmap.htm

542 T.N. Narasimhan

The arcuate Himalayan Belt, concave to the north, extends from Kashmir on the west to Arunachal Pradesh on the east, where it turns sharply to the southwest, extending as far as Mizoram. Except for parts of western Kashmir, this Belt receives between 100 and 250 cm of annual rainfall on an average, with the easternmost parts being the wettest. Geologically, the mountain ranges comprise relatively soft, folded sedimentary rocks that are susceptible to erosion by vigorous streams. The streams and rivers of the Himalayan Belt supply large quantities of sediments to the Indo-Gangetic Plains, and ultimately to the Bay of Bengal. The narrow forested belt known as Bhabhar, and below it the marshy grasslands known as the Terai, extend from the Yamuna on the west to the Brahmaputra on the east, separating the Himalayan Belt from the Indo-Gangetic plains. The Himalayan Belt occupies roughly 18 per cent of India’s land area and hosts about 6 per cent of the population. The Indo-Gangetic Plains extend from Gujarat, Rajasthan and Punjab on the west to West Bengal on the east. Parts of Gujarat and Rajasthan lie on the Indus plains, and the rest of the area lies on the plains of the Ganges and the Brahmaputra. Bordered by the Vindhya Mountains on the south and the Himalayas on the north, this region is characterised by a fairly gentle topography. The western half of the plains are arid to semi-arid, with annual rainfall decreasing from about 100 cm near Lucknow to less than 20 cm in the western desert of Rajasthan. To the east, the annual rainfall increases to about 150 cm in West Bengal. Geologically, the Gangetic Plain represents a deep depression in front of the Himalayan Range, which has been gradually rising over the past 50 million years or so. At its deepest portions, this trough is filled with thousands of metres of sediments (clay, silt, sand and gravel) brought down by the rivers of the Himalayas and the Vindhyas. Both because of its relatively gentle topography and the abundance of groundwater that occurs in its thick sediments, the Indo-Gangetic Plains have been known for agriculture over millennia. These plains occupy about 32 per cent of India’s area and account for some 48 per cent of the country’s population. The topography of Peninsular India is characterised by marked relief except for narrow strips of plains bordering the Arabian Sea and the Bay of Bengal. Peninsular India benefits from the southwest monsoon (summer: from the Indian Ocean to the Asian landmass) as well as the northeast monsoon (autumn: from the Asian landmass to the Indian Ocean). Although the narrow coastal strip between the Western Ghats and the Arabian Sea experiences between 150 cm and 250 cm of annual rainfall, the rest of Peninsular India is semi-arid, receiving between 50 cm and 150 cm annually. Except for the Narmada and the Tapti, which flow into the Arabian Sea,

Water Law for India 543

Peninsular India is drained by east-flowing rivers, the largest being the Godavari. Unlike the Himalayan Belt and the Indo-Gangetic Plains, which are occupied by relatively soft geological formations, Peninsular India is occupied by a variety of very old formations, some of them nearly 4 billion years old.5 Over 90 per cent of Peninsular India is underlain by ‘hard rocks’, comprising igneous and metamorphic rocks, volcanic lava flows and highly consolidated sedimentary rocks. This geologic situation has much significance for water resources. Whereas in the Indo-Gangetic Plains groundwater may circulate down to thousands of metres below land surface within the soft sedimentary formations, groundwater circulation in the hard rocks of Peninsular India is shallow. Most of the groundwater extracted for human use comes from within 100 metres of the land surface, seldom deeper. As a consequence, the available groundwater storage is quite limited, and groundwater availability is closely tied to seasonal and annual rainfall variability. Additionally, coastal aquifers in the deltas of rivers from the Mahanadi in the north to Thambraparani in the south are vulnerable to seawater intrusion during droughts or due to groundwater pumping. Large parts of the Deccan plateau in Maharashtra, Madhya Pradesh and Gujarat, as well as portions of Karnataka, Andhra Pradesh and Tamil Nadu are occupied by highly swelling black soils. Although these soils, with high moisture-retention properties, support cotton cultivation, they are known for containing poor quality of water. In these areas, obtaining drinking water for domestic purposes may be difficult especially in summer months. Overall, the Himalayan Belt is the wettest and is characterised by high relief. Population density is relatively small, and water supplies from surface water and groundwater sources are adequate to satisfy societal needs. The major concerns of this belt arise from erosion induced landslides and floods. The Indo-Gangetic alluvium enjoys excellent topographic conditions, and abundant sources of surface water and groundwater for domestic, industrial and agricultural uses. However, high population density and industrial expansion without adequate planning severely degrades both surface water and groundwater resources. Peninsular India occupies about half of India’s area and hosts about 45 per cent of the population. Compared to the two regions to the north, Peninsular India receives much less rainfall on an average, possesses far less ability to store groundwater and has a more varied distribution and availability of water. Historically, the people of Peninsular India have been creative in adapting to the limited availability of water. To

5

Balasubrahmanyan, ‘Geology and Tectonics of India’, p. 53.

544 T.N. Narasimhan

protect against rainfall variability, surface water reservoirs (locally known as eri, kanmai, kere or cheruvu) have been constructed through the centuries to meet domestic and irrigation needs. In Tamil Nadu, Karnataka and Andhra Pradesh, taken together there are about 127,000 such tanks.6 At present, the water resources of Peninsular India are in a state of serious stress because of increased domestic and industrial demands, over-pumping of groundwater, and contamination of surface water and groundwater. Research over the past two decades has shown that India’s monsoons are part of larger global atmospheric circulations, and their interactions with the world’s oceans. Therefore, the monsoons are subject to annual and long-term oscillations and fluctuations. Consequently, India is vulnerable to droughts and flood events, which cannot be predicted reliably. Droughts lasting for several years to decades can occur. An important challenge for water resources management is to provide for contingency supplies to meet prolonged periods of drought. India’s diverse populations of plants and animals exist in all three provinces mentioned earlier as a result of the evolutionary adaptation to climatic, physiographical and geological conditions over geologic time. These adaptations being subtle and delicate, the health and habitats of these populations could be significantly jeopardised if the natural availability of water is unduly disturbed by human action. Thus, ‘water management’ is more than just manipulating and redistributing water to meet human needs. It includes the task of providing water to satisfy the needs of the environment, ecosystems, and flora and fauna. From the foregoing, it is apparent that India’s water resources are finite and are in a state of considerable stress. An imperative exists for careful management of these resources. A legal framework for water, therefore, must give due consideration to the attributes of India’s water resources portrayed above.

California’s Water Experience and Public Trust India is not alone in experiencing a water crisis and feeling the imperative for wise water management. The world is now in a state of transition in regard to water. For two centuries following the Industrial Revolution (circa 1780),

6

Agarwal and Narain, Dying Wisdom, p. 289.

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the industrial societies of Europe and North America vigorously devoted their energies to harnessing water through technology, lifting it from great depths within the Earth, storing it in reservoirs behind large dams, and transporting it over hundreds of kilometres through canals, pipelines and tunnels. Water so harnessed, helped impressive growths in agriculture, industries and urban communities. However, the second half of the twentieth century has revealed that these feats of engineering have noticeably impacted the delicate interrelationships among the hydrological, erosional and nutrient cycles. Subsidence of land due to over-pumping of groundwater, salinisation of agricultural lands due to prolonged irrigation, chemical degradation of water resources due to industrial waste disposal, disappearance of wetlands caused by massive reclamation efforts and damage to watersheds due to soil erosion induced by deforestation constitute some examples of the adverse impacts of aggressive technological development of water resources. Responding to these adverse impacts, the very same industrial societies have begun moderating their expectations of benefits from water resource systems, and are developing innovative adaptive strategies to achieve resource development that can be sustained over the long term within the natural constraints of these systems. To facilitate adaptation, these societies are thoughtfully modifying their water laws, codes and policies, and amending Constitutions where needed. In this regard, the water history of California constitutes an excellent example of a society that has, over a short period of a century and a half, transformed itself from a mindset of economic prosperity through control of Nature to one of controlled economic prosperity through deliberate adaptation, as illustrated below. California has a land area of about 400,000 sq. kms (about one-eighth of India’s area) and a population of over 30 million. Its climate, physiography, flora and fauna are as varied as those of India. Its Great Central Valley is among the richest agricultural regions of the world, having significant similarities to the Indo-Gangetic Plains. California’s economy, in which agriculture plays a major role, will rank as the tenth largest in the world if California were a separate nation.7 Due to fortuitous circumstances, California’s statehood in 1850 coincided with the discovery of placer gold in the river beds of northern California. This led to a gold rush, with immigrants pouring in by the thousands. The Native American inhabitants, whose lifestyles had marginal impacts on the land, were fully displaced. The diverse landscape, with its abundant water

7

Central Intelligence Agency, World Fact Book.

546 T.N. Narasimhan

resources in the form of snow-fed streams and artesian basins, promised great potential for prosperity. California chose to follow the British Common Law, along with honouring the pre-existing Spanish legal tradition. Along with the common law came riparian rights to those who owned land adjoining stream courses. Additionally, to stimulate economic growth, a new form of ownership known as appropriation rights were freely given to those who ventured to divert water from streams for mining and agriculture. Policies and legislation also encouraged the sale and marketing of water obtained through water rights. By 1910, nearly 90 per cent of the State’s 1.8 mha of wetlands had been converted to agriculture. Major cities such as Los Angeles and San Francisco constructed spectacular aqueducts hundreds of kilometres long to fuel urban growth. Profiteering from land speculation and water marketing became a serious concern. The deep-well turbine pump, introduced around 1910, led to vigorous over-pumping of water from deep aquifers. Soon, free-flowing artesian wells disappeared. To stem water abuse and profiteering, the voters approved a water code in 1914, asserting State sovereignty over water, giving municipalities priority for water over agriculture and mining. A State Water Commission was established, and all water users were required to obtain permits for specific quantities of surface water. Meanwhile, farmers with riparian rights stood in the way of the construction of hydro-electric projects. Alarmed at the misuse of water, the people of California amended the State’s Constitution in 1928, requiring that water use must be reasonable and beneficial, and prohibiting wasteful and unreasonable use. This amendment captured the spirit of public trust, a doctrine that has roots in sixth-century Roman Law, inspired by earlier Greek philosophy. The spirit of public trust can be stated thus: The things which are naturally everybody’s are: air, flowing water, the sea and the sea shore. So nobody can be stopped from going on to the sea shore. But he must keep away from houses, monuments and buildings. Unlike the sea, rights to those things are not determined by the law of all peoples.8

Following the Great Depression of 1930, California witnessed phenomenal growth in the construction of multipurpose dams, aqueducts, tunnels and canals moving billions of cubic metres of water over many hundreds of kilometres for irrigation and urban water supplies. California came to be known as the nation’s bread basket.

8

Birks and McLeod, Justinian’s Institutes, p. 52, Section 2.1.1.

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However, aggressive economic growth came at the cost of significant environmental and ecological damage in the form of loss of salmon fisheries, salinisation of irrigated lands, pollution of groundwater aquifers by fertilisers and pesticides, degradation of coastal aquifers, and significant alteration of the salt balance and ecosystem of the San Francisco Bay Delta. Even as technology was exploring ways of overcoming these problems, the California Supreme Court gave a ruling on water law that brought unprecedented attention to public trust. During the 1940s, the City of Los Angeles, to meet the growing water needs of the expanding metropolis, acquired lands bordering the snow-fed streams feeding Mono Lake, a fully land-locked water body in the high Sierra Nevada Mountain Range. Sea water contains about 3 per cent of its own weight as dissolved salt. The salt content of Mono Lake water seasonally varies from 6 per cent to 9 per cent of the water weight. The lake’s setting supported a rare ecosystem of highly salt-tolerant insects, invertebrates and birds. Taking advantage of riparian rights, Los Angeles diverted all the waters from the lake’s feeders and transported the water via an aqueduct to Los Angeles over a distance of about 530 kms. By the early 1970s, the water level in the lake had dramatically fallen, increasing its salinity and causing a great threat to the fragile ecosystem. Alarmed by this, a group consisting of university students and environmental organisations sued the City of Los Angeles, arguing on the basis of public trust that the State, as the trustee of its water, had the responsibility to protect the Mono Lake ecosystem.9 In a historic 1983 decision, the California Supreme Court agreed in The National Audubon Society v. The Superior Court (Mono Lake). Based on public trust, the Court (Supreme Court of California 1983) held that maintaining the integrity of the ecosystem was indeed an important public benefit and that the benefit to the citizens of Los Angeles cannot occur at the cost of the Mono Lake ecosystem. A key aspect in the Court’s decision was that it had to declare Mono Lake to be a navigable water body. This was because, by historic American tradition, public trust concerned itself with access of the common citizen to navigable waters. Having declared Mono Lake to be navigable, the Court extended public trust provisions to the tributaries that were not themselves navigable. This decision forced the City of Los Angeles to work with local communities to develop a plan that would enable it to have access to Mono Basin water after the needs of the lake’s ecosystem were satisfied. 9

Hart, Storm over Mono Lake.

548 T.N. Narasimhan

A little over a decade later, the public trust doctrine was upheld even more strongly in the State of Hawaii. In the matter of water use permit applications for the Waihole Ditch, the Supreme Court of Hawaii held that restriction of public trust to navigable and tidal waters offers only a partial picture of the water resources trust of Hawaii (Supreme Court of Hawaii, 94 Haw. 97; 9 P.3d 409). Under the Hawaiian Constitution, the State had both the authority and the duty to preserve the rights of present and future generations in the waters of the State. The Court recognised that the State must strike a balance between private and public use in deciding reasonable and beneficial water use. But it asserted that such a balancing of public and private purposes begins with the presumption in favour of public use, access and enjoyment. Not all States subscribe to public trust with the same breadth as California and Hawaii. The public trust theory has been rejected in Kansas, on the grounds that in order to recognise public rights of use in waters not navigable for title, there must be a legislative declaration of a public trust.10 Some legal scholars hold that public trust is applicable only to navigable waters and tidal lands. Nevertheless, many western States such as Arizona, Colorado, Nevada, New Mexico, Nebraska and Texas are moving towards a more general interpretation of public trust in regulating water through water codes and legislation. Yet, because of the common law tradition, groundwater is not treated within the scope of public trust in California.

Goals for Water Utilisation Considering that water availability is limited, variable, uncertain and subject to natural phenomena beyond human control, the goal of water management is to achieve a reasonably stable availability of water for beneficial purposes, assuring equitable distribution among all citizens. In doing so, it is also necessary to preserve the integrity of water resource systems for future generations. The simplicity of the stated goal is deceptive. The hydrological cycle, the nutrient cycle and the erosional cycle inexorably link together surface water, groundwater, the landscape, soil, and communities of plants and animals. The linkages occur due to the repeated cycling of an almost insignificant fraction of all the water present on Earth. Modern science shows that at any given time,

10

Sax et al., Legal Control of Water Resources.

Water Law for India 549

the linkages are delicately balanced. If the balance is disturbed, the streams, the landscape, groundwater and ecosystems will be driven by natural forces to seek a new balance. The ensuing readjustment can often be detrimental to human society. Examples include global warming, salinisation of soils, encroachment of deserts, triggered earthquakes, disappearance of species and reduced availability of fresh water. Technology, which earlier promised prospects of conquering nature to improve the human condition, has begun to substantially perturb existing linkages among earth systems, resulting in unintended and unacceptable consequences to humans. Despite spectacular advances in science, the challenge India faces is to extract its needs of water and nutrients from water resource systems in such a way that the natural equilibrium of its water resources base is disturbed as minimally as possible. The emphasis on ‘minimally’ is important because it is humanly impossible not to perturb a system when extracting resources from it. A second challenge is to allocate water equitably. Here, it is especially necessary to protect the interests of those in society who do not have the resources to speak legally and politically for themselves.11 A final challenge is to preserve the integrity of the resource for future generations. Considering the uncertainties associated with the future behaviour of earth systems to human actions and natural causes, this challenge demands a strategy of adaptation of water use patterns to unforeseen consequences. Water allocations cannot, therefore, be made in perpetuity. These goals necessitate a coming together of science and social values in unprecedented ways. By carefully monitoring earth systems even while extracting resources, science can provide information on how resource systems are responding to human actions of sustenance. Whether such responses are minimal is a societal judgement that needs to be based on human values. Additionally, judgement is also involved in choosing strategies to minimise unacceptable system responses and adapting to system constraints. Given this philosophical mindset, India’s water management goals should be to achieve a balance between the country’s natural endowments and its democratic values as set forth in the Constitution.

Towards a Water Law for India Given the nature of India’s water resources and the goals of water utilisation, we may explore a conceptual framework for water law to facilitate a national 11

Hobbs, ‘Twenty Basic Elements of a Good Water Policy’.

550 T.N. Narasimhan

water policy combining both. In the United States and in Europe, the doctrine of public trust is playing an important role in rapidly evolving environmental and natural resources laws. Accordingly, it is pertinent to briefly summarise the status of public trust in the United States and elsewhere, and to examine its relevance to India.

Public Trust in the United States The efforts of Roman jurists to protect natural resources common to all (res communes) from private control influenced medieval England. In 1225, King John, defeated by English barons, signed the Magna Carta, guaranteeing personal liberties of the people, including access to natural resources such as rivers and streams.12 With this, access to tidal lands and navigable streams became part of British common law. Soon after American independence, the public trust doctrine was incorporated into the Northwest Ordinance of 1787, specifically to assure free access to the navigable waters of the Mississippi and the St. Lawrence rivers. Inspired by this Ordinance, public trust became part of the Constitutions of the many States that subsequently joined the Union and adopted the framework of British common law. The essential features of public trust within the American legal system was summarised by Sax.13 Despite active debate among legal scholars, one perception of public trust having much support is that certain interests (for example, water, navigability, fishing) are so vital to every citizen that society must be especially vigilant that no individual or group acquires the power to control them. A consequence of public trust, as manifest in water law, is that one does not own a property right in water in the same way as one owns a right in other material things. Rather, one’s right is usufructuary; it is a right to benefit from a resource, implicitly recognising the needs of others. While deriving a benefit, the source of the benefit itself is not to be altered or damaged. Thus, governments have the responsibility to regulate water uses for common benefit, recognising the physical inter-dependency implicit in the resource. Public trust has three attributes that make it amenable to use as a tool to approach the management of natural resources. These are (a) it asserts a legal right in the general public without owning specific property

12 13

Narasimhan, ‘A Finite World, Earth Sciences, and Public Trust’. Sax, ‘Public Trust Doctrine in Natural Resources Law’.

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rights; (b) it enables action that is enforceable against the government; and (c) it enables interpretation consistent with evolving concerns about the human environment. Later, Sax14 elaborated on the practical implications of public trust. First, governments hold natural resources in trust for the public and have a fiduciary responsibility for actively protecting such resources. Secondly, governmental responsibility is not merely one of preventing private ownership from gaining control of the resources, nor is it merely one of banning the use of the resource so as to protect it. Rather, governmental responsibility is one of assuring stability in the sustained use of natural resources by citizens. Implicit here is a recognition that natural systems do change, both because change is intrinsic to the Earth and because human sustenance will cause some change in the natural system. Thus, ‘stability’ implies reasonable avoidance of unacceptable, destabilising change. For example, the slow disappearance of species because of evolutionary changes is inevitable, but the sudden disappearance of species because of human action is not. In the free American society that has evolved in a climate of subduing the Earth for acquiring wealth, private right to property is a cherished legal privilege. Intrinsic to the legal rights of private property is the association of reasonable expectation of enjoyment and title to property.15 Contrary to this association, public trust asserts expectation without formal title. This diffuse notion of expectation without explicit title to property has in the past inhibited some courts from ruling in favour of public trust claims. However, other courts have held that legislatures have a responsibility to enact laws for public purposes and that public trust is part of that responsibility. Both the medieval Magna Carta and the Northwest Ordinance of 1787 focused on the accessibility of all citizens to navigable waters and fishing. Until the beginning of the twentieth century, when groundwater hydrology became established as a scientific discipline, groundwater was regarded by the courts as a mysterious and occult phenomenon (Frazier v. Brown 1861) with little connection to surface water. These perceptions supported a nineteenth-century American legal view which stated that public trust is restricted to navigable waters and tidal lands. By the common law philosophy of precedence, this restricted view has carried on to the twentieth century. However, modern technological society moves large quantities of water horizontally over many hundreds of kilometres, vertically over hundreds of metres and chemically contaminates millions of cubic metres of vital fresh 14 15

Sax, ‘Liberating the Public Trust Doctrine from its Historical Shackles’. Ibid.

552 T.N. Narasimhan

water resources. To account for these drastically changed situations, the scope of public trust has to expand beyond navigable waters. The Mono Lake decision of the California Supreme Court and the Waihole Ditch decision of the Hawaii Supreme Court in fact represent a gradual broadening of the scope of public trust within the common law framework of making judicial decisions based on prior case histories.

Public Trust in Europe The public trust doctrine, which became part of the American legal system via British common law, followed a different evolutionary path in Europe through the civil law tradition. Broadly, the difference between the two systems is that common law draws abstract rules from specific cases (precedents), while civil law starts with abstract rules that form the basis for judicial decisions. As it has to base its decisions on previous cases, common law reasoning is sometimes thought to be less philosophically ambitious than civil law reasoning. Civil law decisions are based on codes and statutes. In Europe, public trust is closely associated with the tradition of commons of medieval times. For example, a regional French law in the eleventh century stated, ‘the public highways and byways, running water and springs, meadows, pastures, forests, heaths and rocks ... are not to be held by lords, ... nor are they to be maintained ... in any other way than that their people may always be able to use them.’16 During the middle of the thirteenth century, Alfonso the Wise of Spain set forth in Las Siete Partidas (the seven-part code) the following principle relating to water, ‘Every man has a right to use the rivers for commerce and fisheries, to tie up to the banks, and to land cargo and fish on them’.17 This principle became part of Mexican law, which was accepted by California at the time of statehood in 1850. The following discussion on modern natural resources law in Germany is based on an overview by Kube.18 Kube’s central finding is that although Germany followed a line of reasoning that was very different from that of the United States in building on Roman law principles relating to public property, the final result, as evidenced by the contemporary status of natural resources law in the two countries, is very similar. 16

Ibid., p. 189. Stevens, ‘The Public Trust’, p. 19. 18 Kube, ‘Private Property in Natural Resources and the Public Weal in Germany’. 17

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The German legal system in regard to the interplay between private ownership rights and natural resources is based on the framework of Öffentliche Sache (public matter; public concern). The constitutionality of Öffentliche Sache is associated with the abstract notion of Sozialpflichtigkeit (social duty, social obligation). The principal goal of natural resource law is to find a proper balance between public and private interests in natural resources. Prior to 1957, when the Federal Water Code was promulgated, 19 different water law regimes existed in Germany, with substantial differences relating to ownership of surface water and groundwater. Enacted by the Parliament in accordance with its constitutional authority, the objective of the code was ‘the attainment of a sensible and useful distribution of the surface water and of the groundwater regarding quantity and quality in the whole of the Federal Republic’. The Parliament felt that this aim could be achieved only ‘if the free disposition by private owners is restricted and if the consideration of the public weal is the starting point’.19 The code was amended in 1976 to clarify, among other things, that ownership as such does not entitle a landowner to the use of surface water or groundwater, and that any administrative decisions leading to a deterioration of the quality of water were prohibited.20 Except in cases where the quantity of water involved is insignificant, a prospective water user must obtain a permit to use water. Responding to emerging environmental concerns such as acid rain, the water code was further amended in 1985, requiring water administrators to consider water to be a part of an integral ecosystem. Obviously, the history of the German water code shows the incorporation of important scientific knowledge in developing water legislation. In addition to the powers stemming from the Constitution, the authority of the federal Parliament to issue legislation on natural resources is based on the argument that the scarcity of publicly valued natural goods implies a parliamentary responsibility to distribute and manage these resources. That such a responsibility includes a duty to sustain scarce natural goods is implied in a statement by the Constitutional Court: ‘The impossibility to increase area of land as well as its absolute importance to everybody prohibit leaving its use completely to the management through market forces.’ According to currently developing perspectives, no private property exists at all from the outset where a natural resource is statutorily assigned to the public.21

19

Ibid., p. 869. Ibid., p. 874. 21 Ibid., p. 863. 20

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Public Trust in New Zealand and South Africa Towards the close of the twentieth century, New Zealand and South Africa enthusiastically embraced the spirit of public trust in modernising their natural resources and water laws. In 1991, New Zealand enacted a Resource Management Act, replacing common law with a renewable water permit system.22 The central theme of the Act was the sustainable management of natural resources to meet the reasonably foreseeable needs of future generations, safeguarding the life-supporting capacity of air, water, soil and ecosystem, and avoiding the adverse impacts of human activities on natural resources. South Africa’s National Water Act 34 of 199823 explicitly designates the government as the trustee of the nation’s water resources, and vests with the government the responsibility of judicious and equitable use of water resources, recognising justifiable economic and social growth and international responsibilities. The Preamble to the Act specifically recognises the role of the hydrological cycle in a finite earth by stating, ‘... water is a scarce and unevenly distributed national resource which occurs in many forms which are all part of an inter-dependent unitary cycle ... .’ Here, again, it is seen that science has influenced water law at a very basic level.

Public Trust: Relevance to India The key tenet of public trust as articulated in the Justinian Institutes is that certain things identified as common resources (res communes) cannot be owned privately. They are governed by the law of all people or the law of nations (iuris gentium). Despite the fact that the United States (common law) and Germany (civil law) follow very different legal systems, Kube24 points out that they are not far apart in judicial decision-making in the areas of natural resources and water. Historically, laws in India have been guided by the concept of dharma. A simple interpretation of dharma is that it is a non-coercive external order that holds a community together, and leads towards a moral ideal. Etymologically, the word is derived from Sanskrit dhri, meaning to hold together.25 If dharma

22

New Zealand. http://www.mfe.govt.nz/rma/index.php South Africa. http://www.elaw.org/resources/text.asp?ID=1153 24 Kube, ‘Private Property in Natural Resources and the Public Weal in Germany’. 25 Singh, Law from Anarchy to Utopia, p. xii. 23

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can be understood as human conduct compatible with the nature of things, then the doctrine of public trust philosophically comes close to satisfying the concept of dharma in regard to human interactions with nature. Water is inevitably a source of economic and political power. However, exploitation of water for power is contrary to the values on which India’s Constitution is based. Therefore, water management must be based on tenets that all citizens can agree upon. In taking a philosophical view of law, Chhatrapati Singh argued:26 ‘The working and organization of every society necessitates acceptance of some rules, only some of which are laws. These form the basis on which a group of people can be a society. Hence there must be a general willingness to accept them. The rules which hold the people together are principles of dharma.’ Elsewhere, Singh has pointed out that independent India continues to be subject to the colonial legal position that water is owned by the State whereas civil society would opt for the state being the trustee of the people’s heritage, not the owner.27 According to Sankaran,28 much of the discussions on sharing of Constitutional powers in India has devoted attention to sharing of powers among governmental organs, rather than between the government and the people. Both the ideal of dharma as relating to humans and nature and the concept that the state should be a trustee (and not the owner) of natural resources resonate remarkably with the spirit of public trust. It is eminently reasonable that a water law framework for India draws support from the spirit of public trust in a manner that is compatible with India’s natural resources and cultural traditions. In retrospect, there are two very different historical traditions of legal perceptions of water in India. The ancient tradition, associated with the concept of dharma, consists in treating a common resource with reverence and communally sharing it. This perception inherently captures the spirit of public trust. The more recent colonial legacy is that water is owned by the state, and that there is no sharing of power between the state and the public at large in regard to water. It is not surprising that a colonial ruler would espouse such an authoritarian position. If we consider that the United States, Germany, New Zealand and South Africa are following the ideals of democracy in embracing the spirit of public trust, then it follows that India would do well to relinquish the colonial position of governmental authority over water and explore the applicability of public trust in the context of its own culture and traditions. 26

Ibid. Singh, Water Law in India, p. v. 28 Sankaran, ‘Water in India’. 27

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Constitution and Water Law India’s self-governance rests on the Preamble to the Constitution, which embraces values of justice, liberty, equality and fraternity. Authorised by the Preamble, the Constitution provides the framework for governance. In India’s tripartite system, the Legislature enacts laws; based on those laws the executive takes executive action and the judiciary interprets the laws. That simple statement needs to be amplified by the recognition that the executive often has to issue notifications that bring a law into force and frame rules for implementation (this is described as ‘subordinate legislation’); it also formulates policies, which again is partly a legislative Act. The Statement of Objects and Reasons that accompanies a piece of legislation and the marginal headings in the Act, give a broad indication of legislative intention, but the task of interpretation of the laws is essentially that of the judiciary. Both laws and executive actions and policies are subject to judicial review essentially from the point of view of conformity to the provisions of the Constitution (and, in the case of executive action, to the laws), but the scope of judicial review has been greatly extended in India. In a federal union such as India, policies and rules have to be formulated to guide water management within different States (intra-State management) of the Union, and among different States (inter-State management), giving consideration to existing and historical water use practices and local cultural traditions. Considering India’s breadth and diversity, it is necessary that the legal framework enables a uniform application of management principles throughout the country, analogous with what Germany sought to achieve with its water code in 1957. Historically, Constitutions of democracies such as those of the United States and India have focused attention on the ‘rights’ of the people. This focus reflects the peoples’ yearning to rid themselves of oppressive rulers. Nevertheless, the close of the twentieth century has witnessed a shifting of focus from inter-human relationships to the relationship between humans and Nature. Rather unexpectedly, Nature is found to demand responsibility from humans. It is remarkable that this responsibility constitutes the essence of public trust, as conceived two millennia ago by Greek and Roman scholars. In view of the foregoing, the creation of a national water law or water policy for India must start with a constitutional mandate, based on which the body of the law could be developed. Both these tasks are highly technical in nature, and should be undertaken by legal experts. Recognising this, what follows is an elementary exercise in exploring what a constitutional mandate

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may look like, and the important tenets that may have to be considered in developing the body of water law.

Constitutional Mandate Given, z

z

z

z

that the functioning of the hydrological cycle, the nutrient cycle and the erosional cycle are subject to immutable physical laws, as also solar energy and the thermal forces of the Earth’s interior that lie beyond human control, that these life-sustaining cycles are delicately inter-linked, and respond in complex ways to forces that cause them to change, that humans, with their extraordinary technical capabilities have now begun to disturb these delicate linkages leading to destabilisation of the sustenance of various types of living communities, including those of humans, and that water is vital for the sustenance of humans and all living things, all waters within the nation’s boundaries are deemed to be owned by the public, and the government holds these waters in trust for the public, and is responsible to manage water wisely and equitably for all citizens.

Tenets of Water Law In view of the Constitutional mandate that all water within the nation’s boundaries shall be managed wisely and equitably for all citizens, the following tenets are fundamental to assembling a water law for India: Tenet 1: Rain and snow, surface water, soil water and groundwater together constitute a single resource. Tenet 2: The natural attributes of water are such that the watershed constitutes the logical unit for its management. Tenet 3: Within a watershed, surface water and groundwater have to be managed together, duly considering the correlative dependence of upstream and downstream users. Tenet 4: Water shall be put to beneficial use, without waste. Water-use privilege is an usufruct in that the resource itself be not damaged in the process of beneficial use.

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Tenet 5: The usufructuary nature of water requires that every effort is made to minimise human impacts and to preserve integrity of water resource systems for future generations. Tenet 6: Government has the fiduciary responsibility of assuring beneficial water use without waste. This responsibility implies that action is enforceable against government. Tenet 7: Water shall be allocated through due process. Allocations shall be fair and equitable so as to meet justifiable social and economic needs. Tenet 8: Every citizen has a right to safe and clean water for drinking and hygiene. Tenet 9: In water allocation, providing safe drinking water shall have the highest priority. Tenet 10: Historical water-use privileges of indigenous peoples to maintain their traditional lifestyles shall be respected. Tenet 11: Allocation of water for industrial, agricultural and other economic benefits shall be subject to making adequate supplies of water available for maintaining ecological and environmental health. Tenet 12: Because water resource systems are inherently subject to change with time, water-use privilege cannot be granted in perpetuity. Tenet 13: Due process is essential to assure fair and proper allocation of water among competing beneficial uses, and to constructively resolve conflicts at various levels. Tenet 14: The rights of those citizens who are unable to speak for themselves in the legal and political process must be protected. Tenet 15: Institutions necessary for the continued gathering of scientific data to monitor system response, to interpret such data to enable timely detection of the unacceptable consequences of human action, and disseminate information, shall be established and funded. Tenet 16: India is endowed with a diverse landscape and a diverse population. Therefore, laws and statutes must account for varied local conditions and historical cultural traditions. Tenet 17: The highly complex task of introducing modernised law and institutions must be based on short-term and long-term objectives to minimise the undue disruption of normal life.

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Challenges Formulating a modern water law, though a challenge in itself, does not automatically assure a wise and equitable management of India’s water resources. Two additional challenges, one relating to science and the other to human attitudes, confront the success of an Indian water law as visualised in the foregoing.

Law and Governance India is diverse in natural attributes and in human traditions. The nature of occurrence and availability of water, and the laws governing water use are widely variable over the country. Yet, a national water law or policy must achieve a certain uniformity of legal principles so as to assure equity and fairness in water allocation, and to facilitate just sharing of water among communities and States. To achieve this, scientific knowledge of water must be combined with existing traditions and laws, and the resulting ideas clearly articulated in appropriate legal language. This is a task of exceptional complexity, demanding a coming together of a variety of talents and expertise, from the sciences to the humanities.

Science Infrastructure Following the Industrial Revolution in the late eighteenth century, developments in the physical sciences encouraged a perception that Nature could be predicted accurately and controlled at will to achieve economic growth. During the first half of the twentieth century, large dams, tunnels, canals and pumps helped store, lift and move enormous quantities of water over hundreds of kilometres. Millions of hectares of wetlands were converted to agricultural lands and deserts were made to bloom. Floods were controlled and electricity was generated. For a brief period, it seemed, man could indeed conquer Nature. However, the second half of the twentieth century provided evidence that feats of hydraulic engineering had noticeably interfered with the delicate interconnections among hydrological, erosional and nutrient cycles, and

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biological communities, leading to environmental degradation, alarming reductions in freshwater supplies, and endangerment of plant and animal species. Science came to recognise that natural resource systems, subject to unpredictable climates, possess a finite capacity to sustain the vital needs of humans and other living things. At the turn of the twenty-first century, science has begun to accept the inevitable need to develop water and natural resources by moderating human aspirations and adapting to Nature’s constraints. For example, in the field of conservation ecology, an emerging practice is to continuously monitor wildlife populations and iteratively use the information for optimal management decisions. This approach is referred to as adaptive management. The same rationale is applicable to water management. Adaptive management of India’s water resources poses formidable scientific challenges. To meet these challenges, appropriate scientific institutions have to be created and funded, and complemented by adequate education, research, and training in water and natural resources. Without a suitable scientific and technological infrastructure, a national water law can achieve little success.

Human Attitudes The challenges stemming from human behaviour and attitudes in India are even more daunting. Although India lacks a coherent national water policy and there are no indications that a holistic approach exists to manage fragile natural resource systems, many opinions exist about water. From a legal perspective, water is considered to be state property, with associated powers to enact laws. Accordingly, governments at various levels appear to view water as a source of power to enforce progress and democratic values. Whether water can be owned as a commodity or whether the state holds water in trust for the people are Constitutional issues of scholarly debate. The entrepreneurs believe that privatisation of water and the introduction of innovative technologies driven by market forces will solve India’s water problems. Those who believe in engineering as a means of social progress enthusiastically recommend linking India’s major rivers to homogenise variability of water distribution and availability over the country. Non-governmental organisations argue that the wisdom of ancient India in harvesting rainwater for the common good is being ignored by modern technological solutions that exacerbate water woes and lead to unintended resource damage. Social scientists, concerned with the welfare of the poor and with gender inequity, find water laws passed by the State to be coercive,

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rather than enabling self-governance. Those dealing with groundwater management are frustrated by the legal debate on whether groundwater is the private property of the overlying landowner or whether it comes within the scope of eminent domain, when in fact surface water and groundwater together constitute a single unified resource. Amidst these debates, citizens at all levels, from the poor to the affluent share a sense of despair. Despite the seeming diversity, these perceptions share a common thread, namely human aspirations. They represent what individuals, groups of individuals, or even the government may yearn to possess or achieve, and how water may be used to further these aspirations. Notably, though, water itself is not a matter of concern. The mindset is that adequate supplies of water exist, and that the requisite supplies can be met through carefully worded policies and incentives, aided by technology. The aspiration-motivated mindset is understandable. Following the Second World War, democracy, the preferred form of governance around the world, has nourished among all a sense of the ‘right’ to liberty, freedom and opportunity. India’s poor demand their right to water, health and education. Others insist on their rights to accumulate property without legislated limits. In this atmosphere, various segments of Indian society compete to exercise their respective rights. However legitimate the expectations might be, India’s water crisis shows that aspiration-driven human actions are incompatible with the laws that govern water as a natural phenomenon. Fifteen hundred years ago, Roman scholars showed great perspicacity in distinguishing between things that can be privately owned and things such as wind, flowing water, the sea and the sea coast that belong to all, and so cannot be owned privately. This recognition is still valid, the mere difference being that modern science has found more details to support its validity. Given this profound recognition, rational approaches to solving India’s water crisis must necessarily shift attention from human yearnings to the attributes of water resource systems, and devote attention to how the aspirations of various social segments can be balanced within the constraints of the natural, immutable laws that govern water. In essence, the democratic ideal of ‘right’ has to be tempered by a deference to Nature, manifested in the form of ‘responsibility’. How may rights be balanced with responsibilities? In a finite Earth where life and non-life are inexorably linked, adapting to Nature requires the concerted effort of all branches of human knowledge. Although science may superficially seem very different from the humanities (for example philosophy, history, justice, aesthetics), they are components of a single continuous spectrum. Thus, India’s water crisis demands for its resolution a coming together of all components of human knowledge. Nevertheless, what one finds is that

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water and natural resource policies appear to be made with a focus on human aspirations without significant scientific guidance. At a time when science has a critical role to play, India’s prestigious academies of science do not appear to be actively counselling the government on the imperative of scientifically sound natural resource policies. It may be that they are preoccupied with spectacular developments in materials technology and bioengineering, or that they have traditionally restricted themselves to intellectual pursuits, staying away from policy matters. At present, India is preoccupied with pursuing vigorous economic growth as a means of eradicating poverty and enhancing its own stature among the world’s nations. In the process, however, the Earth is being forgotten as the provider of water and natural resources, needed to sustain economic growth. It is clearly unwise to ignore the Earth. Laws and policies that ignore the Earth will eventually fail to achieve their intended purpose.

References Agarwal, A. and S. Narain. 1997. Dying Wisdom: Rise, Fall, and Potential of India’s Traditional Water Harvesting Systems. New Delhi: Centre for Science and Environment. Anonymous. 2006. ‘Godavari River’, Encyclopaedia Britannica Online. Available online at http://search.eb.com/eb/article-9037156 (last accessed in May 2007). Balasubrahmanyan, M.N. 2006. ‘Geology and Tectonics of India: An Overview’, Memoir No. 9, International Association of Gondwana Research, Department of Natural Environmental Sciences, Kochi University, Kochi, Japan. Birks, P. and G. McLeod. 1987. Justinian’s Institutes. Ithaca, New York: Cornell University Press. Brutsaert, W. 2005. Hydrology: An Introduction. New York: Cambridge University Press. Central Intelligence Agency. 2005. World Fact Book. Hart, J. 1996. Storm over Mono Lake. Berkeley, California: University of California Press. Hobbs, G.J. Jr. 2007. ‘Twenty Basic Elements of a Good Water Policy’, in R. Stein, O. Buendia and A. Iza (eds), The Public’s Water Resources, Articles on Water Law, History and Culture. Gland, Switzerland: Continuing Legal Education in Colorado, Inc. Iyer, R.R. Forthcoming. ‘Water and the Laws of India’, in Constitutional History, Subhash Kashyap (ed.). Kube, H. 1997. ‘Private Property in Natural Resources and the Public Weal in Germany—Latent Similarities to the Public Trust Doctrine?’ Natural Resources Journal, 37: 857–80. Narasimhan, T.N. 2003. ‘A Finite World, Earth Sciences, and Public Trust’, Ground Water, 41(1): 11–14. New Zealand. 2006. http://www.mfe.govt.nz/rma/index.php (last accessed on May 2007). Sankaran, K. 2009. ‘Water in India: Constitutional Perspectives’, in Ramaswamy R. Iyer (ed.), Water and the Laws in India. New Delhi: Sage Publications.

Water Law for India 563 Sax, J.L. 1970. ‘Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention’, Michigan Law Review, 68: 470–566. ———. 1980. ‘Liberating the Public Trust Doctrine from its Historical Shackles’, University of California Davis Law Review, 14: 185–94. Sax, J.L., R.H. Abrams and B.H. Thompson. 1990. Legal Control of Water Resources: Cases and Materials, fourth edn.. St. Paul, Minnesota: West Publishing Co. Scriven, M. 1959. ‘Explanation and Prediction in Evolutionary Theory’, Science, 130: 477–82. Singh, Chhatrapati (ed.). 1992. Water Law in India. New Delhi: Indian Water Law Institute. ———. 1985. Law from Anarchy to Utopia. New Delhi: Oxford University Press. South Africa. 2006. http://www.elaw.org/resources/text.asp?ID=1153 (last accessed on May 2007). Stevens, J.S. 1980. ‘The Public Trust: A Sovereign’s Ancient Prerogative Becomes the People’s Environmental Right’, University of California Davis Law Review, 14: 195–232. Supreme Court of California. 1983. 33 Cal. 3d 419, 189 Cal. Rptr. 346, 658 P. 2d 709, 1983. Supreme Court of Hawaii. 2000. 94 Haw. 97; 9 P.3d 409. Van der Leeden, F., F.L. Troise and D.K. Todd. 1990. The Water Encyclopedia, 2nd edn. Chelsea, Michigan: Lewis Publishers.

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PART VII

DRAWING THE THREADS TOGETHER

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21

A Synoptic Survey and Thoughts on Change Ramaswamy R. Iyer I. Preliminary Despite the number and diversity of the contributors to this book, there seems to be more common ground among them than one had expected. One commonality is a general dissatisfaction with the existing legal dispensation. Secondly, it is interesting that a number of authors starting from different points of departure seem to converge on an advocacy of the ‘public trust’ doctrine. Further, many authors place a stress on the ‘people’ as distinguished from the ‘state’. Several authors also agree on the need for greater recognition of custom and traditional practice. We shall go into these and other matters in the course of this chapter. This is a kind of summing up, but it is not a ‘synthesis’ chapter: given the diversity of writers and perspectives, an attempt to formulate a synthesis runs the risk of distorting or misrepresenting the thinking of the authors. Each of the chapters needs to be read in full and carefully. Subject to that caution, this chapter will attempt to bring together as many as possible of the multiplicity of themes and issues, some of them complex and wide-ranging, that have figured in this book, and put forward some propositions for consideration. To make it clear that this chapter reflects the editor’s personal thinking and does not purport to be a consensus, it will hereafter use the first person. It will proceed not by way of a sequential chapter-wise commentary, but thematically, taking note of what the authors have to say on each theme or aspect, and perhaps adding a few ideas. The themes are of course inter-related.1 1 I had written about many of the issues discussed in this book in my two previous books (Iyer, Water: Perspectives, Issues, Concerns and Towards Water Wisdom) and in a paper (‘Water and the Laws in India’) that I had contributed to a book on Constitutional History edited by Dr Subhash Kashyap (currently under publication). I shall draw upon those writings in this chapter.

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In what follows, wherever differences with the authors are expressed on some points, they are put forward in a non-dogmatic spirit as alternative views for the reader’s consideration.

II. Nature of Water The law or system of laws relating to water has to be based on a proper understanding of the nature of water. Let us therefore begin by asking: what is water? Water is clearly an essential life-support substance, needed for drinking, cooking and cleansing (one’s person, clothes, habitat). It is also a requirement for economic activities such as agriculture (irrigation) and industry; for navigation; and for municipal uses such as sanitation or firefighting or for institutions such as hospitals. It has (partly) a fearsome aspect in the form of floods. It is an inextricable part of our society, culture and history; and it is also regarded in many cultures as a sacred resource or as a divinity in itself. Water sustains not merely human life but also the lives of animals and birds; and it sustains and is sustained by the ecological system of which it is an integral part. It plays a crucial role on Planet Earth.2 Can it be said that such an understanding of water underlies our laws? The answer is clearly in the negative. The entries relating to water in the Constitution (Entry 17 in the State List and Entry 56 in the Union List) refer only to specific uses of water such as water supply, irrigation, etc.; irrigation looms large; and the reference to canals, embankments, drainage, water storage, and so on, shows the heavy influence of the engineering point of view. (Irrigation again is the main context in which ‘water disputes’, with which Article 262 and the Inter-State Water Disputes Act enacted under it are concerned, arise.) Water is not explicitly recognised as a basic need (and right) in the Constitution though such a recognition has come in through judicial interpretation. Water as part of ecology, history, culture and religion is unknown to the Constitution. I had drawn attention to the rather limited understanding of water that characterises our legal system in my earlier writings. Similar dissatisfaction has been expressed in this book by several authors with different concerns in mind. In her two contributions, M.S. Vani refers to the non-recognition of the characteristics of our ecology by our legal system. Joy and Paranjape

2 A fuller and more elaborate statement will be found in the Preamble to Iyer, Towards Water Wisdom.

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begin their chapter with an account of the complex nature of water as an ecosystem resource, a common pool resource, a local and non-local resource, and, by its nature, far removed from the classical idea of private property. T.N. Narasimhan wants our water policy and law to be based (as they are not at present) on a proper understanding of the role that water plays in the ecological system and on Planet Earth. In the light of the foregoing, some changes seem necessary to ensure that an understanding of water in all its complexity forms the bedrock on which an integrated system of laws relating to water rests. We shall return to this theme towards the end of this chapter. Meanwhile, a related, though more specific, point about rivers may be mentioned. The subject of protecting (or saving/rescuing) our polluted and dying rivers came up for discussion at many meetings, both official and non-official, held in the latter half of 2007. If legislation is to be attempted for the protection/conservation of rivers, as was advocated at some of those meetings, certain basic propositions about rivers will need to be kept in mind: for instance, a river must flow, if it is to cleanse and purify itself; a river needs space for accommodating floods when they come, as they will, and the floodplain must be recognised as an integral part of the river; a river is part of a larger ecological system, and therefore the protection of a river entails the protection of the ecological system; and so on.

III. Federalist Aspects If our legal system can be faulted for the absence of a proper understanding of the nature of water, can we at least say that it is satisfactory from the point of view of federalism? Some would argue that it is not; that the structure of entries relating to water in the Constitution is not appropriate; that water is essentially a State subject in our Constitution; that this limits the role that the Centre can play; and that water should be shifted to the Concurrent List. The Union Ministry of Water Resources has held this view for many years. More recently, a new slogan is being voiced by some (particularly in Tamil Nadu, but also elsewhere) that the major rivers of India should be ‘nationalised’ or treated as ‘national assets’. Recent reports in the media indicate that this is being given serious consideration in the Ministry of Water Resources. Before discussing these points, let us ask ourselves where ‘federalism’ in relation to water resides in the Constitution of India. It consists of (a) Entry 17 in the State List and Entry 56 in the Union List, (b) Article 262

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and the Inter-State Water Disputes Act 1956 (ISWD Act) as amended in 2002,3 and (c) the inclusion of water management in the list of functions to be devolved to the panchayats and nagarpalikas in terms of the 73rd and 74th Amendments and Schedules 11 and 12. There are also other federalist elements such as the Central Groundwater Authority set up in 1997 under the Environment (Protection) Act 1986 on the specific (and questionable?) directions of the Supreme Court and the Central Water (Prevention and Control of Pollution) Act 1974. We must also take note of the National Water Resources Council, presided over by the Prime Minister and including all the State Chief Ministers and LieutenantGovernors of Union Territories, as well as important Central Ministers. This could have become a major element in Indian federalism in so far as water is concerned, but has failed to do so; it meets infrequently and has not been very effective. Similarly, the National Water Policy 1987, which was the outcome of the first attempt to bring about agreement among the States on a minimal set of basic statements about water, remained a brief enunciation of generalities and was never operationalised. The new National Water Policy 2002 likewise remains a set of general statements that have not been made operational. This section will focus on the constitutional division of responsibilities relating to water between the Centre and the States. Let us first put aside the talk of ‘nationalisation’ of rivers as imprecise and misleading. In relation to industry, ‘nationalisation’ means the transfer of ownership of an entity from a private party to the state. That has no application to rivers. What ‘nationalisation’ in this context means is the transfer of control from the State or States concerned to the Central Government. In other words, what is being advocated is a change in the relative roles of the Centre and the States with reference to major rivers. What then are the relative roles at present? Is the general impression that water is a State subject in India correct? The answer is that it is broadly true but needs to be nuanced. Entry 17 in the State List is indeed the primary entry in relation to water, but it is subject to the provisions of Entry 56 in the Union List. Thus, while water is not in the Concurrent List, it is in both the State List and the Union List. The Constitution gives a potential role to the Centre in relation to inter-State rivers provided Parliament legislates for this; and Parliament has in fact legislated under this Entry: there is the River Boards Act 1956 (RBA). If it is felt that a certain inter-State river, 3 While Article 131 deals with inter-State and Centre–State disputes in general, Article 262 is specifically about inter-State river-water disputes.

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say the Ganga or Godavari or Narmada, is a river of national importance warranting Central planning or control or management, one of two things can be done: Parliament can pass specific legislation under Entry 56 bringing that river within the purview of Central action, or the Centre can set up a River Board for the river under the River Boards Act 1956. (For a new development, see postscript 1.) We have to recognise that these are only theoretical possibilities; in practice they will face enormous political difficulties. If the RBA has remained a dead letter, with no Board having been set up under it, and if Parliament has not passed any specific Act under Entry 56 bringing any river within the purview of the Centre, the reason is not legal or constitutional but political: the States are unenthusiastic about River Basin Organisations or about allowing the Centre to play a larger role.4 That political difficulty can be overcome only if the Centre can reassure the States that it is not seeking to impose its will on them, but building a truly representative body from the bottom up. It is also necessary to avoid the danger of excessive centralisation or bureaucratisation. However, Entry 56 in the Union List is only about inter-State rivers and not about water in general. It follows that the question about the appropriateness of the existing structure of Constitutional entries relating to water still remains. The Sarkaria Commission thought that it was quite appropriate; the National Commission on Integrated Water Resources Development Plan (Report, 1999) went into this but suggested no change; the National Commission to Review the Working of the Constitution was silent on this issue. The new Commission on Centre–State Relations set up by the present UPA Government will doubtless go into this afresh. Let us therefore look at this question de novo. It is possible to argue with hindsight that if the Constitution-makers had shared the present hydrological, ecological, social, historical and cultural perspectives on water, they would have placed water in the Concurrent List in recognition of the fact that both the Centre and the States had roles to play in relation to water. However, this is mere speculation; what we have to deal with is the structure of entries as they now exist in the Constitution. Should we now try to change that structure and shift water to the Concurrent List? 4 Radha D’Souza attributes the failure of the River Boards Act to the fact that the States were not ‘pro-active’, but, in fact, they were against the establishment of River Boards or River Basin Organisations because they were worried about a diminution of their own powers.

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Two of the authors, Radha D’Souza and Kamala Sankaran, would not approve of any move that might increase the powers of the Centre. Both of them, from different perspectives, are worried about excessive centralisation. Kamala Sankaran has criticised Central aggrandisement and judicial overreach. Radha D’Souza has blamed both the Central Government and the Supreme Court (particularly the latter) for upsetting the fine constitutional balance between the Centre and the States and among the three organs of state; she has been very severe on the Supreme Court for downgrading the States. Both these are scholarly, original and challenging papers that deserve the most careful attention, but their arguments go far beyond water and belong to the larger debate on federalism and the constitutional balance. I shall refrain from going into that larger debate except to a limited extent.5 Returning to the question under discussion, what an entry in the Concurrent List means is merely that both the Centre and the States can legislate on the subject. However, as pointed out earlier, the Centre can legislate now on inter-State rivers under Entry 56, but has made little use of that enabling provision and the River Boards Act 1956, which it did enact, remains a dead letter. Instead of pursuing the chimera of a constitutional amendment to shift water to the Concurrent List, the Centre could usefully explore the political possibilities of legislation under Entry 56, and of reactivating the moribund River Boards Act. (However, please see postscript 2.) Under the head of federalism, a word needs to be said about the ‘InterLinking of Rivers’ Project (ILRP). We are concerned here not with the merits of the project or even with the role of the judiciary in relation to it, but with the legal issues that arise. It is a project for water transfers. Such transfers could be long-distance or short-distance; intra-State or inter-State; intra-basin or inter-basin. Any water transfer could create a conflict, but a special question of legality arises in the case of inter-basin transfers. The Constitution recognises the category of inter-State rivers (Entry 56 in the Union List and Article 262), but makes no reference to inter-basin transfers. Does this mean that the Constitution does not permit inter-basin transfers, or that it does not prohibit them? It seems to me that this is a point of no significance. Whatever the legalities of the matter, no water-transfer of any kind can take place except on the basis of consent.

5 While agreeing with criticisms of distortions of the constitutional balance, I would add that federalism implies limits not merely on the Centre vis-à-vis the States but also on the States vis-à-vis the Centre, on each State vis-à-vis others, and on both the Centre and the States vis-à-vis the rule of law.

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Both Kamala Sankaran and Radha D’Souza (from their respective points of view) also refer to another aspect of federalism, namely the relation between the state and the people. It is an important theme that warrants separate discussion (see the section People, Civil Society, Community, NGOs, Panchayati Raj). A constitutional issue of some importance is that of the right to water, but it is not a federalist issue; it is discussed in the section on entitlements, priorities and rights .

IV. Inter-State Water Disputes Continuing with federalism, an aspect of it is the provision for the adjudication of inter-State river water disputes (Article 262 and the Inter-State Water Disputes Act 1956, as amended in 2002). Initially the conflictresolution mechanism provided by Article 262 and the ISWD Act seemed to be working well: the Krishna, Godavari and Narmada Tribunals’ Awards can be regarded as successful instances of the operation of this conflict-resolution machinery. (The fact that new differences emerged later or that public interest litigation arose in some cases does not invalidate that statement.) However, the system later ran into trouble. In the Ravi–Beas case, political difficulties in implementing the award led to a further reference being made to the Tribunal (as provided for in the Act) in 1987, and in 2008 the matter is still before the Tribunal. Meanwhile, Punjab enacted legislation terminating all water accords; this gave rise to some legal and constitutional issues; on these the Central Government made a Presidential reference under Article 143 to the Supreme Court, and at the time of writing (four years after the Reference) the Supreme Court has not yet given its opinion. In the case of the Cauvery Dispute, adjudication has been running a troubled course from the beginning. An Interim Order given by the Tribunal in 1991 generated a secondary dispute, which was never fully resolved. The Final Order given on 5 February 2007 after 17 years of proceedings has been referred back to the I share Kamala Sankaran’s doubts about the propriety of the Supreme Court’s direction to the Central Government to set up the Central Groundwater Authority (CGWA). However, she seems to go further and have reservations on the establishment of the CGWA under the Environment Protection Act (EPA) and even on the EPA itself. It seems to me that environmental protection cannot be left to divergent legislations by different States, and that we do need a national environmental law. If so, such a law must necessarily cover air, water, land, forests, trees, wildlife and nature in general, and some of these may fall into the State List; if that constitutes a transgression of the Centre–State division, the conclusion would be that there cannot be a national environmental law. I would be uncomfortable with such a position. On judicial over-reach and related issues, see Iyer, ‘Some Constitutional Dilemmas’, and ‘The Cauvery SLPs’.

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Tribunal through clarificatory petitions, and at the same time, challenged in the Supreme Court through Special Leave Petitions under Article 136. The history of operation of the ISWD Act, and in particular the experience of that operation in the Ravi–Beas and Cauvery cases, has led to serious dissatisfaction with adjudication as a means of resolving inter-State river-water disputes. Broadly speaking, there are five main criticisms of the prevailing adjudication process under the ISWD Act:6 (a) adjudication is not the appropriate means of settling such disputes, a negotiated agreement would be much better; (b) there are no water-sharing principles at the national level to guide the adjudication process; (c) the adjudication system under the ISWD Act is very dilatory and cumbersome; (d ) the proceedings are adversarial and divisive (and expensive) and (e) there are no effective means of ensuring compliance with the final decision. These criticisms are briefly discussed here. 1. Article 262 and the ISWD Act do not force adjudication on the disputing parties, nor do they preclude recourse to negotiation, conciliation or mediation; but when all these efforts fail, disputes still have to be resolved, and a last-resort mechanism is needed for the purpose. That is what Article 262 and the ISWD Act provide. 2. The Ministry of Water Resources did attempt a draft statement of water-sharing principles at one stage and the draft went up to the National Water Resources Council more than once, but the wide divergence of views among the States made it a non-starter; it remains in limbo. There seems to be little likelihood of an agreed statement emerging in the foreseeable future. Meanwhile, disputes have to be dealt with, and successive tribunals have referred to the Helsinki Rules, case law in India and elsewhere, reports of earlier tribunals, and so on. By and large, the principle adopted by the tribunals is that of equitable apportionment.7 Even if a national statement on watersharing had been agreed upon, it could hardly have laid down any principle other than that of equitable apportionment or sharing, and 6

Citations are not given as these are fairly widespread criticisms. In referring to ‘recognised principles’ of water-sharing, Vaidyanathan and Jairaj mention the Harmon Doctrine, ‘Prior Appropriation’, and ‘Optimum Utilisation’. There are also other principles such as prescriptive rights, community of interests, and so on. All these might have been asserted by various parties in diverse cases, but hardly any of them can be said to have won universal acceptance. The Harmon Doctrine is a discredited doctrine; it was adopted briefly by the USA and quickly abandoned. Our ISWD tribunals certainly do give some weight to prior use, but that is only one (and not necessarily the determining one) of the many factors that go into the allocations. The principle that has gained a measure of international acceptance and has generally been adopted by our tribunals is the Helsinki principle of ‘equitable apportionment 7

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it would necessarily have been a very general statement needing to be elaborated in detail in each case. (This is not an argument against such a declaration of principles. If at some stage a National Water Law were to be enacted in India, then water-sharing principles could be enunciated in such a law.) 3. Delays at every stage certainly presented a serious problem in the past. The Sarkaria Commission made some recommendations in this regard, and after prolonged consideration, they have been implemented through the amendments of 2002. Now the Central Government has to establish a tribunal within a year after a State Government asks for one. The tribunal has to deliver its award in three years, but can seek an extension of two years, making a total of five years in all. Delays can still take place at the stage of a supplementary or clarificatory report by the Tribunal in response to a reference made to it within three months after the Award, or in the notification of the Order by the Government of India in its Gazette. However, it seems probable that after the amendments of 2002, the problem of delays at various stages is likely to be substantially diminished. 4. Adversarial proceedings characterise all litigation in the courts, and as ISWD tribunals function like courts, their proceedings too are subject to this malaise. However, there is no law against a constructive, cooperative approach to adjudication. The proceedings can be substantially different. 5. The problem of non-compliance is indeed a serious one. Although the Award of an ISWD tribunal is said to be final and binding, there are no means of enforcing compliance with it. If a State Government refuses to obey the Order of such a Tribunal, there are not many courses open to the other parties to the dispute or even to the Central Government. The Centre can give directions, but if these too are not complied with, what sanctions are available? Article 356 (Central rule) is an extreme measure that cannot be lightly used, and in any case, what will happen when a popular government returns? The Sarkaria Commission had recommended that the words ‘final and binding’ for beneficial uses’. The UN Convention of 1997 also talks about the ‘equitable utilisation of the waters of an international water-course’. There is a difference between ‘equitable’ and the word ‘optimum’ that Vaidyanathan and Jairaj have used. An equitable allocation of shares in a river is not necessarily ‘optimal’. The latter word implies some degree of coordination and integration whereas ‘equitable allocation’ or apportionment means merely that each State is given a ‘share’ of the waters and left free to utilise it as it sees fit. That is perhaps not the best or optimal way of utilising the waters of the river in question, but in the absence of an integrated or holistic utilisation of the waters, agreement or adjudication on the basis of an allocation of shares may be the next best course.

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in the Act should be buttressed by conferring upon the Tribunal’s Order the status of an Order or Decree of the Supreme Court, and this has been done through the 2002 Amendment. However, this seems to have had no perceptible effect. (Perhaps the Supreme Court will make a pronouncement in this regard when it delivers judgement on the Special Leave Petitions in the Cauvery case.) Let us now consider Fali Nariman’s suggestion that the ISWD Act should be repealed and inter-State river-water disputes brought within the original jurisdiction of the Supreme Court. Such a suggestion had been made also by the National Commission to Review the Working of the Constitution. This arises largely from a sense of exasperation with the manner in which adjudication under the ISWD Act has been functioning. However, will the Supreme Court be able to cope with the enormous burden that this will cast on it? At the moment, there is the possibility of several such disputes being heard in parallel by different tribunals. If all of them have to be dealt with by the Supreme Court (in the exercise of original jurisdiction), will it take them up sequentially, or will it constitute several Benches to deal with them simultaneously? How feasible is the latter course? Besides, there is a danger that this may become the principal work of the Supreme Court, crowding out large numbers of other categories of important cases. Nor is it certain that proceedings in the Supreme Court will be speedier than in the tribunals. Even on the question of better compliance with the final decision, there are grounds for a degree of scepticism though an Order of the Supreme Court is perhaps less likely to be defied than an Order of a Tribunal. The repeal of the ISWD Act and the transfer of inter-State river-water disputes to the original jurisdiction of the Supreme Court is an extreme measure. I would like to suggest an alternative, which also brings in the Supreme Court but in a different way. The most important deficiency in our system is that the tribunal’s decision is a single, non-appealable verdict. If one or more parties are left with a sense of grievance or injustice, the aggrieved party has no remedy apart from a reference back to the same tribunal within three months. With a view to providing a better remedy, and at the same time improving the prospects of better compliance with the final decision, I have been proposing (for several years though without attracting any attention) that in partial modification of the bar of jurisdiction of the courts, the ISWD Act should be amended to provide for an appeal to the Supreme Court against an ISWD Tribunal’s Order.8 8 I had made this suggestion to the National Commission on Integrated Water Resource Development Plan as a member, but it was not accepted; it figures in my Note of partial dissent in the Commission’s Report of 1999.

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One knows all the arguments against this suggestion: every case will go to the Supreme Court; the cases will get further delayed; and so on. The answer is that every case does go to the Supreme Court even now, on some issue or the other, and the Supreme Court rarely ever says: ‘We do not have jurisdiction; go back to the Tribunal’,9 nor does it carefully refrain from entering into watersharing issues; it is clear that the parties do wish to go to the highest Court in the land, and it seems better to accommodate that wish. As for delays, the 2002 Amendments will cut down the time taken at different stages, and we can afford to provide a year or two for an appeal to the Supreme Court. It will be eminently worthwhile, if it assuages to some extent the sense of grievance felt by one or more parties. Further, as mentioned earlier, this might improve the prospects of compliance to some extent. It is submitted that this suggestion combines the advantages of our system of tribunals with those of the US system of a final decision by the Supreme Court.10 In passing, a further possibility may be mentioned: that of replacing the present system of setting up a Tribunal in each case by a Standing or Permanent Inter-State River-Water Disputes Tribunal with multiple benches, if necessary. If such a course were adopted, other features of the present system, namely a request by a State Government to the Central Government, a year’s time for exploring negotiations further, the reference of the dispute to the Tribunal by the Central Government, etc., should remain; and, as argued above, provision should be made for an appeal to the Supreme Court against the decision of the Tribunal.11

9 The Supreme Court’s cavalier treatment of the jurisdictional bar went too far when dealing with the State Governments’ Special Leave Petitions against the Cauvery Tribunal’s Final Order: it admitted those SLPs without even raising the issue of jurisdiction. On this, see Iyer, ‘The Cauvery SLPs’. 10 Kamala Sankaran does not consider it necessary to confer an appeal power on the Supreme Court over and above the judicial review power that it already has; her position is that judicial review is part of the ‘basic structure’ and cannot be ousted. However, Article 262 enables precisely such ousting in the case of river-water disputes referred to adjudication, and the ISWD Act has enacted it. If it is true that despite Article 262 and the ISWD Act the Supreme Court’s power of judicial review of a Tribunal’s decisions remains unaffected, then of course an appeal provision is not needed; but such a view would render parts of Article 262 and the ISWD Act inoperative, as it would amount to saying that there is in fact no bar on the jurisdiction of the courts in such cases. 11 If the dormant River Boards Act were to be re-activated and River Boards were set up for major rivers, arbitration under that Act will become available as an alternative to adjudication under the ISWD Act. It is, however, by no means clear that the arbitration process will be distinctly superior to adjudication.

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As for the other major problem of the present adjudication system, namely the adversarial nature of the proceedings, the tribunals are not obliged to adopt the court style of functioning. Instead, they can come down from their lofty position above the disputants and sit at a table with them, and adopt a consultative, interactive, fact-finding, solution-exploring Committee-style procedure, while retaining the ultimate responsibility for giving a judicial decision. This has been suggested by Fali Nariman, and there is much merit in it. (In fact, the tribunals can go further and become forums for conciliation as well as for adjudication.) Incidentally, the disputing parties under the ISWD Act are the State Governments concerned and not the people. The Tribunal does not hear the farmers and other water-users in the basin. It seems very desirable that any reform of the present system of resolution of inter-State river-water disputes should bring the people in as interested parties. ‘People’ in this context should encompass different categories of water-users, as also those who are likely to be affected by the projects that the Tribunal takes note of. In the Narmada case, the Narmada Water Dispute Tribunal not merely allocated the waters of the river but also mandated certain crucial technical features of two projects, one in Gujarat and the other in Madhya Pradesh, and even laid down the norms and conditions for the rehabilitation of people likely to be affected by the projects; but those people themselves were not parties before the Tribunal. In the Cauvery case, efforts have been made to bring the Cauvery farmers from Tamil Nadu and Karnataka together as members of the ‘Cauvery Family’ with a view to promoting mutual understanding and facilitating a resolution of the dispute, but such efforts have no legal backing. Neither the Tribunal nor the Supreme Court is likely to recognise the locus standi of the Cauvery Family. I agree with Kamala Sankaran that this needs to change. Turning now to Radha D’Souza’s criticisms, I leave aside the large general issues of federalism and constitutional propriety that she raises, but one point specifically relating to inter-State rivers needs to be taken note of. She finds much significance in the fact that the States Reorganization Act, the River Boards Act and the Inter-State Water Disputes Act were all enacted in 1956. That is an interesting point that one must reflect on. However, regardless of whether the States were re-organised on a linguistic or any other basis or at all, many of our major rivers would have been inter-State and suitable provisions would have been needed both for basin-wide coordination and for the resolution of inter-State conflicts. In other words, provisions on the lines of Entry 56 in the Union List and Article 262 in the Constitution

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would have been needed even if there had been no re-organisation of States. (In fact, in the form of inter-provincial disputes, the problem ante-dated the Constitution, and a dispute between Punjab and Sindh on Indus waters was dealt with by the B.N. Rau Commission shortly before Partition.) Apart from this, D’Souza questions the propriety of the Supreme Court’s direction to the Central Government in 1990 to set up a Tribunal on the Cauvery Dispute as asked for by Tamil Nadu; faults the Supreme Court for dealing with the question whether the Cauvery Tribunal had the power to grant interim relief; challenges the Supreme Court’s opinion that Karnataka’s Ordinance seeking to nullify the Tribunal’s Interim Order of 1991 was unconstitutional; and criticises the 2002 Amendments to the ISWD Act for declaring that an ISWD Tribunal’s Order will have the effect of an order of the Supreme Court, as also for adding the word ‘river’ before ‘Water Disputes’ in the title of the Act and thus (in her view) narrowing the scope of the Act. I have differences with her on these points but will not go into them as they are not central to the purposes of this chapter. Before proceeding to the next theme, I must take note of an intriguing point made by Kamala Sankaran about the re-organisation of States changing a riparian into a non-riparian at one stroke. She raises this question in the context of the Punjab–Haryana dispute over Ravi–Beas waters. I would suggest another way of looking at this matter. Whether ‘anti-federal’ or not, the re-organisation of States is permitted by our Constitution. The trouble here arises not from federalism but from our understanding of riparianism. If rights to the use of waters from a river can get extinguished by a mere redrawing of administrative or political boundaries, what kind of rights are they? If certain parts of a State had claims on a river, would those claims not continue even if the boundaries of the State change? We should question the ready assumption of the loss of riparian rights ‘at one stroke’ on re-organisation. There is an undetermined legal issue here; one must hope that it will be gone into by the Supreme Court when it deals with the Presidential reference.12 Finally, leaving aside the adjudication process and the views thereon, we must note that inter-State river water disputes are only a sub-set of the larger set of disputes over water resources in general, and indeed over all natural resources including water. The root cause of such conflicts is a competitive, unsustainable demand for water. That, however, is a much larger question that goes beyond law and therefore beyond the purview of this book.

12 I had dealt with this and other legal issues involved in the Punjab case in my book of 2007 (Iyer, Towards Water Wisdom, pp. 95–105).

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V. People, Civil Society, Community, NGOs, Panchayati Raj Institutions From a discussion of federalism, we proceed by an easy transition to ‘the people’. The heading of this section brings together a cluster of different terms because they are inter-related. The term ‘civil society’ is often used interchangeably with ‘community’. These terms also refer to the ‘people’ as loosely and perhaps informally organised, the intention being to distinguish them from the ‘state’. Non-governmental organisations often claim (sometimes with justification) to speak and act on behalf of the people; in some instances, they spearhead popular movements, the most well-known of them being the Narmada Bachao Andolan or NBA. Panchayati Raj Institutions (PRIs) as constitutionally recognised bodies are the outcome of the 73rd and 74th Constitutional amendments; the intention was to bring the government closer to the people, but even at that level the distinction between the state and the people does not disappear. From the 1980s onwards, there have been several instances of social mobilisation towards the local augmentation of the availability of water through rainwater-harvesting or micro-watershed development. Anna Hazare’s Ralegan Siddhi in Maharashtra, Sukhomajri (initiated by the late P.R. Mishra) in Haryana and the Rajendra Singh (Tarun Bharat Sangh) initiatives in Alwar District in Rajasthan are celebrated examples; books have been written and films made about them. (Another celebrated initiative was that of the late Vilasrao Salunkhe of Pune on Pani Panchayats.)13 Hiwre Bazaar, in Ahmadnagar District of Maharashtra like Ralegan Siddhi and inspired by it, followed under the leadership of Sarpanch Popat Pawar. Valuable work has also been done by the Watershed Organisation Trust (WOTR), Ahmadnagar, Maharashtra (under the leadership of Crispino Lobo); the Sadguru Foundation and VIKSAT, among others, in Gujarat; DHAN Foundation, Madurai; MYRADA in Bangalore and the PRIs in West Bengal. The climate of opinion in this regard today is very different from what it was two decades ago, and this change has seeped through even into official thinking. Encouraging such civil society initiatives, and promoting national programmes of water harvesting and the restoration of old water bodies are now part of official policy. This will be clear from successive Plan documents, 13 The original ‘Pani Panchayat’ of Salunkhe must not be confused with the World Bankpromoted Pani Panchayat scheme of Orissa where the evocative term was misapplied. See Sainath’s two-part article, ‘Little Pani, Less Panchayat’.

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the Report of the National Commission on Integrated Water Resource Development Plan and the then Prime Minister’s Address to the National Water Resources Council in April 2002 while commending the National Water Policy 2002 for adoption. In that Address Prime Minister Vajpayee called for a ‘paradigm shift to participative, essentially local management of water resources’. However, is that view supported by the law of the land? The short answer is ‘No’. The Irrigation Acts or Irrigation and Drainage Acts of colonial times (which continued in force after independence) vested control over rivers and other surface waters in the state. Even when certain activities by the people were permitted or encouraged (for instance, the practice known as ‘kudimaramat’ in the old Madras Presidency), the overall supremacy and control by the state remained.14 It is clear that there is a potential for conflict between the doctrine of state control over water and the encouragement of people’s initiatives. The conflict is not merely potential but has in fact actually occurred. The transformation that Rajendra Singh brought about may have become celebrated nationally and even internationally, but the State Government (or part of it) tended to look at him with jaundiced eyes: to their way of thinking the local initiatives that he had encouraged were illegal. That particular dispute was somehow resolved for the time being, but the patched-up truce is precarious; and similar conflicts can arise elsewhere. The people’s institution for coordination, social discipline and conflict resolution on the Arvari River, known as Arvari Sansad or Arvari Parliament, set up under Rajendra Singh’s initiative, is a purely informal body without any legal backing, and can be set aside at any time by the State Government. Let us now take note of what our authors have to say. Kamala Sankaran warns us of the danger of interpreting federalism entirely in terms of the power relationship between governments at the Central and State levels and stresses the importance of paying heed to the people’s voice, giving space for people’s initiatives and recognising that ‘law’ is also made outside the legislatures and governments. In Radha D’Souza’s definition of legal liberalism ‘we, the people’ are a crucial component in the constitutional scheme, and when she talks about the upsetting of the constitutional balance, she is referring not only to Centre–State relations but also to the state-people relationship. M.S. Vani talks about ‘community engagement’ 14 ‘Kudimaramat’ is a term in use in Tamil Nadu, coming down from colonial times, and meaning the community-management of irrigation tanks. The extent to which it was actually present is a matter of some controversy.

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as essential both for proper groundwater management and for extensive rainwater-harvesting. She argues for the provision of legitimate legal space for the engagement of the people as citizens rather than as consumers or endusers. She also deplores the supersession of custom and tradition as sources of law and the limiting of their legitimacy only to the extent of a formal (reluctant) recognition by statutory law. Videh Upadhyay as also Joy and Paranjape regret the polarisation of positions and the confrontation between the state and popular movements, and urge a harmonisation; Upadhyay recognises the role of the state but urges ‘people’s participation’ based on ‘a sense of ownership’ of water resources. He also refers to the shocking abolition of all water rights, customary or other, by the Kumaon and Garhwal Water (Collection, Retention and Distribution) Act 1975.15 Tony George Puthucherril recommends a more enlightened, regulated, people-centred riparianism. The DHAN Foundation chapter, in urging the restoration of tank irrigation, attaches much importance to community management. (In the preceding section we had noted the importance of providing legal recognition to initiatives such as the Cauvery Family.) Two things are clear. First, in general (with honourable exceptions) the government at the bureaucratic level (and often even at the political level) is not very comfortable with community/civil society initiatives and institutions or with appeals to customary law and traditional practice. Secondly, community initiatives started with the best of intentions and for laudable purposes can unwittingly run counter to the formal law of the statute books. If it is the policy of the state to promote such initiatives and bring about ‘a paradigm shift’ (in the words of the former Prime Minister cited earlier), then legal changes must be made to enable and facilitate the role of civil society; and changes must be brought about in the thinking and attitudes of the bureaucracy. On the role of PRIs, we must take note of Vani’s point that the ‘democratic decentralisation’, ushered in by the 73rd and 74th Amendments and often hailed as of revolutionary significance, was in fact rather limited in nature (no legislative power at the level of local self-governance; the devolution of specified—not wide-ranging—executive functions to that level not mandated but only enabled by the Constitution and even that devolution not proceeding apace because it is left to the State Governments). There is much force in her argument, but it seems to me that devolution cannot be treated as discretionary; the Constitution does require it though there is no deadline 15

In his view, this did no great damage because rules were not notified under the Act, but that view is questioned by M.S. Vani in a personal communication to the editor.

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for it and no sanctions are available in the event of non-compliance. In any case, with all these limitations, the 73rd and 74th Amendments are still of great significance. However, narrowing our focus to water management, the questions that arise are (a) whether local rainwater-harvesting and microwatershed development are better undertaken by PRIs or by institutions such as Village Watershed Committees and the like; and (b) in the latter case, what should be the relationship between such institutions and the PRIs. It is clear enough that a good working relationship between the two is very necessary. The DHAN Foundation’s chapter deals with this in the context of tank irrigation.

VI. Ownership of Water Any talk of ‘people’ or ‘civil society’ leads us sooner or later to the question, ‘Who owns water’? Is water state property, or private property, or a common property resource? State Governments tend to regard rivers, streams and lakes as belonging to them; this is even stated in some State laws. The view that water is an ‘economic good’ (part of the Dublin principles, and held by the World Bank, Asian Development Bank, most corporates, and others of a neoliberal economic persuasion) is generally accompanied by the related view that it is private property. Social activists and mobilisers and NGOs campaigning for the empowerment of the ‘people’ are likely to hold the view that water is a common property resource. Is it possible to make sense of this perplexing medley of views? As Upadhyay says, the question ‘Who owns water’ lies at the heart of all popular movements. The people of Plachimada protested against their water being (as they thought) taken away by the Coca-Cola Company. An explicit or unstated part of anti-privatisation movements (such as the public protest against the leasing of a stretch of the Sheonath River in Chhattisgarh to a private corporate body) is the assumption that water belongs to the community. In his Address to the National Water Resources Council on 1 April 2002, the then Prime Minister, Atal Bihari Vajpayee, declared that the community is the rightful custodian of water resources. More recently, farmers in Orissa, objecting to the allocation of waters from the Hirakud Dam to industries, claimed that the reservoir waters belonged to them. (Upadhyay points out that this was not maintainable as the reservoir was a government water source.) One answer to the question posed above (in relation to flowing surface waters) is: ‘No one’. It can be argued that ownership rights over flowing water were not recognised either in Roman law or in our own dharmashastras, and

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that only rights of use exist. The Eradi Tribunal on the Ravi–Beas Dispute had said in its Report that legislative power did not imply the ownership of water. (There is also a widely held view that water, like air, belongs to the ‘negative community’.)16 I have referred briefly and sketchily to a major and complex issue; I do not propose to enter into an elaborate discussion of that subject here. The reason is that the assertion of state control over water in India (in colonial times and later) is what we need to contend with, regardless of whether it implied ownership or not. Upadhyay points out that the colonial rulers, and following them the State Governments after independence, were really interested in the assertion of sovereign powers rather than the ownership of water sources. This is also sometimes loosely referred to as ‘eminent domain’.17 The crucial question here is whether this is conducive to the promotion of the kind of local civil society initiatives that we talked about in the preceding section. We noted there the conflict that arose between the state and civil society in Rajasthan over local water-harvesting initiatives and the related social mobilisation. Before proceeding further with that point, let us briefly take note of the ‘private property’ view. This arises primarily in the case of groundwater where the ownership of land carries with it the ownership of the water that lies under the land; we shall discuss that separately. In so far as surface water is concerned, leaving aside rivers, streams and lakes, it might appear that water allocated (under a licence or permit or entitlement-authorisation or contract) to a particular party (individual or institution or corporate body) for a certain use, say, irrigation or industrial use or institutional use (hospital, school, hotel, etc.), becomes private property thereafter; but it could be argued that what is granted is only a revocable use-right. This too will need to be discussed separately in relation to ‘rights’. (Joy and Paranjape point out that given the complexities of water, it is difficult to bring it within the purview of the classical private property framework.) 16 See Singh, Water Rights and Principles of Water Resources Management and Water Laws in India. 17 The term ‘eminent domain’ refers to the state’s sovereign right to take over private property on the payment of just compensation. The right itself was recognised in Britain and was part of the common law tradition, but it was known there as ‘compulsory purchase’. In India, the power is embodied in the Land Acquisition Act 1894. However, the term ‘eminent domain’ is part of American law and is not commonly found in Indian or British law. Nevertheless, it has gained currency in general discussion and is loosely used in the sense of the overriding power of the state, without specific reference to the acquisition of property. On the whole, it seems preferable to avoid the term and use the expression ‘sovereign power’ instead.

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We turn now to the third view on ownership referred to earlier, namely, water as common property resource (CPR). The view of water as CPR is strongly advocated and is attractive, but two points need to be noted. The first is that the notion of ‘CPR’ (as distinguished from private ownership) is of easy application in the context of a small lake or pond or tank or any other water body on common land; we can think of it as owned by the community. With larger water bodies and with streams and rivers, difficulties begin to arise in the form of ‘upstream versus downstream’ issues, riparian rights, and so on. However, we can still argue that the water-source belongs to the community as a whole, or to ‘civil society’, and that the conflicts that arise can be resolved within that overall framework (though that benign formulation tends to break down when rivers cross national boundaries or even political divisions within a country). The notion of CPR also runs into difficulties in the context of urban water supply systems (where an agency, whether public or private, supplies water to the citizens by a network of pipelines from its storages), or in that of the supply of irrigation water through canals from large reservoirs, whether state-owned or privately owned. However, that notion has a value even in such contexts; what we are trying to do is to deny the private or state ownership of water and to vest that ownership in the ‘community’ or ‘civil society’, the state being merely a trustee on behalf of the community. We shall return to that last point in the next section, but meanwhile it is clear enough from what has been said above that the question of ownership of water bristles with difficulties. The best course would be to bypass that question and reformulate it as one of state ‘control’ or ‘sovereign powers’ vis-à-vis the empowerment of the people or the community or civil society to play the role or roles that need to be played in relation to water. If, as Kamala Sankaran and Radha D’Souza argue, ‘the people’ are as important as ‘the Union’ and ‘the States’ to a genuine federalism and to our constitutional scheme; if, as Vani argues, our ecological conditions make rainwater-harvesting imperative and this is impossible without ‘community engagement’; if, as former Prime Minister Vajpayee proclaimed, the ‘community is the custodian of our water resources’; then the people or civil society or community must be enabled to play their role. It follows that the sovereign power which hinders this needs to be moderated. I have bypassed the ownership question, but Upadhyay feels that there is a merit in raising it. I do not know whether he would agree with me that eminent domain needs to be drastically changed, but he does say the following:

586 Ramaswamy R. Iyer Going beyond the local context to water in general, and assuming that States can continue to exercise control and regulation in the true spirit of a public trustee, it may not be a bad idea for the water laws to start declaring that water ‘belongs to the public’ or ‘is the property of the people of the State’. Such declarations can create just the right atmosphere to remove the polarity of positions that is always there in the water debates in the country and pave the way for ushering in reforms that will be owned and driven by the people for whom they are made.

I have no difficulty in going along with that view. However, if it is useful in some ways to declare that water belongs to the people, the empowering of the people cannot be at the cost of disempowering the state.18 The state too has important roles to play in relation to water and must be enabled to play them (constructively, and in cooperation with civil society). It has to legislate on water; protect water sources and systems; promote resourceconservation; ensure fairness and social justice; regulate water-use; prevent or resolve conflicts; oversee quality; enter into treaties or agreements with neighbouring countries over common river systems; and so on. It has to be legally enabled to do all this. Does that mean that we are bringing back the state’s sovereign power? In fact, sovereign power cannot be removed. How then can we empower the state and the people at the same time? The answer to that conundrum lies in the public trust doctrine.

VII. The Public Trust Doctrine Under this doctrine, the state is perceived, not as owning the water resources of the country, but as holding them in trust for the people (including future generations). As a trustee, the state will of course have to be empowered to legislate, regulate, allocate, manage, and so on; and all this must involve a degree of control. However, the role of sovereign as trustee, unlike that of a sovereign simpliciter, is not inherently confrontational, and may permit a constructive relationship between the state and civil society. As mentioned at the beginning of this chapter, there is a considerable convergence among the authors on the desirability of adopting the public

18 Videh Upadhyay would agree with me on this. It is interesting that Upendra Baxi uses similar language though his point is somewhat different. He says that though the disempowerment of the State is a necessary condition for the exercise and enjoyment of civil and political rights, its re-empowerment is also a necessary condition for the protection and promotion of social, economic, and cultural rights.

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trust doctrine (see Vaidyanathan and Jairaj, Tony George Puthucherril, Upadhyay, Vani, Joy and Paranjape, and T.N. Narasimhan). The theory that the state holds water and other natural resources in trust for the community seems attractive and persuasive. It reconciles the position that the resources belong to the people or community with the evident need for the state to play certain roles. Narasimhan has dealt with the evolution of the public trust doctrine (in different ways, reflecting different concerns) in Europe, England and the USA, and its prevalence now in several States in the USA. Given his elaborate discussion, I need not go over that ground here. Granting that the public trust doctrine in relation to water resources, ecosystems and the environment is now part of the Constitution of several States in the USA, the question that we need to consider is whether it is part of Indian law. It would appear that after M.C. Mehta v. Kamal Nath and Others,19 it is indeed part of Indian law, but can we be sure of this? In the Coca-Cola (Plachimada) case, the first judgement (single judge) invoked the public trust doctrine and went in favour of the Panchayat, but on an appeal by the Company, the Division Bench overturned the first judgement and allowed the Company to extract a certain quantity of water; the implications of this for the public trust doctrine are not clear. The case is now before the Supreme Court and one wonders whether the judgement, when it comes, will have something to say on the applicability of the public trust doctrine or will decide the case on other grounds. Meanwhile, recent reports say that in another case (Pudussery, Pepsi Cola) the Supreme Court has upheld the High Court’s Order allowing the Company to extract water on certain grounds (industrial area, government licence, etc.). We need not go into the details of that case—there are differences between that case and the Plachimada case—but the point is that it is by no means clear that ‘public trust’ is firmly a part of Indian law. One can only hope that this will be strongly reaffirmed by the Supreme Court in the Plachimada case. Incidentally, it seems to me that the public trust doctrine must apply not merely between the state and civil society but also between present and future generations, between humanity and other forms of life, and between humanity and Nature in general. The doctrine needs to be widened and given an ecological/philosophical underpinning.

19 These resources meant for public use cannot be converted into private ownership. Thus the public trust doctrine is a part of the law of the land (1997) I SCC P-388/389.

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VIII. Entitlements, Priorities, Rights Vaidyanathan and Jairaj recommend that the allocation of water should be governed by agreed principles and clear entitlements (not only at the interState level but also within a State) with proper institutional mechanisms for conflict resolution and an independent judicial authority. (They also stress the need to define both individual rights and collective rights.) Their primary concern seems to be with economic uses, particularly irrigation; they have not specifically referred to a possible conflict between basic need and economic demand. There could also be conflicts inter se among non-basic demands, calling for the setting of relative priorities. However, theirs is a broad overview, and the ‘agreed principles’ which they call for will doubtless cover all these matters. Joy and Paranjape advocate a biomass approach20 to water entitlements and allocations, and distinguish a rights-based entitlement from an entitlement based on economic opportunities. They postulate a hierarchy of rights with water as life-support coming first, closely followed by the right to waterbased livelihoods, the ‘rights’ of the environment/ecology coming next, and economic rights coming only thereafter. I have some difficulties here. The authors themselves recognise that some might treat ‘minimum environmental flows as a prior charge on water services’; I subscribe to that way of thinking though my language would be somewhat different.21 Leaving that aside without further elaboration, it seems to me that the figures of entitlements and allocations based thereon will depend on the use for which the water is meant. Drinking/domestic use will be common to all households and can be standardised, but beyond that the water requirements will depend on what the (rural or urban) household does: agriculture, craft or profession, cottage industry, or employment outside the home. Perhaps all this can be converted into a common biomass-based water entitlement in the rural areas but a 20 K.R. Datye has been urging a transformation from centralised fossil-fuel-based energyintensive ‘development’ (which is unsustainable) to a decentralised, biomass-based livelihoods approach to development. This envisages clusters of villages with a total population of, say, 5,000 to 10,000, in which biomass-based livelihoods are promoted. Water entitlements are determined with reference to the biomass equivalent of the activities. See Datye, Banking on Biomass: A New Strategy for Sustainable Prosperity Based on Renewable Energy and Dispersed Industrialisation. 21 I would talk about minimal interference with natural flows rather than ‘minimum flows’, and I find the term ‘water services’ somewhat misleading in this context. (Do we provide water services to nature?) As I have argued elsewhere, ecology determines the availability of water for our use; we cannot presume to ‘allocate’ water for ecology (whatever the priority we give it), but must be governed in our water-use by ecological imperatives.

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different framework may be needed in urban areas. (Even in rural areas, there may conceivably be some activities that are not biomass-related.) However, ignoring that point, water entitlements can certainly be fixed for each category of use (on stringent and not lax or generous norms) and corresponding allocations made, on the analogy of the ‘general authorisations’ that South African law provides for. As for relative priorities, the only absolute priority is drinking water (including a modicum for cooking, washing and personal hygiene); among other uses, relative priorities must depend on local circumstances. ( Joy and Paranjape would probably not disagree with that statement.) As mentioned earlier, they distinguish between rights-based entitlements and other entitlements, but all entitlements will become rights if they are enshrined in or backed by laws. The distinction that we need to make is between kinds of rights: fundamental and non-fundamental (or broadly speaking, economic). How is such a distinction to be linked with a biomassbased entitlement? Their normative estimation of 4,400 to 6,400 m3 of water per household per annum may be plausible, but others may arrive at different numbers. It seems to me that a fundamental right ought to be simple and self-evident and not a matter of contestable calculation. ‘Water as sustaining life’ (or ‘water for life’) is a clear, simple, self-evident concept, and lends itself readily to being treated as a fundamental right (and it can even be roughly quantified);22 when we bring in ‘water for livelihoods’ that clarity is lost, and the question whether the right in a given case is fundamental or not becomes debatable. (This is not to deny the importance of water for livelihoods.) Having postulated a normative household water entitlement as a ‘rights component’ Joy and Paranjape go further and postulate also a right to exogenous water with reference to that entitlement (that is, if the people of an area cannot get that entitlement within that area, they have a right to that quantum of water from outside). I have some difficulty with that proposition. If an area is ‘water-short’, there are three options: trim the water demand to the availability and manage the resource prudently and economically (as people in desert areas have been doing for centuries); or migrate to another area better endowed with water; or bring water from elsewhere (or import ‘virtual water’). Bringing water from another area has to be based on negotiations and consent, and not on a peremptory demand based on a 22 Peter Gleick estimates the Basic Water Requirement or BWR per person per day as 50 litres. South African law, recognising drinking water as a basic need, makes water supply free up to 20 litres per person per day.

590 Ramaswamy R. Iyer

‘right’. Creating a right to exogenous water is a dangerous proposition that might generate conflicts. Upendra Baxi weaves multiple strands into a rich tapestry to which I cannot do justice in any summary. (‘Human Rights’23 may not be identical with ‘fundamental rights’, but I shall ignore that distinction here.) Baxi makes many important points in his learned and complex piece of writing, among which are the following: the right to water needs to be separately stated and not merely as part of the right to life; the right to water as life-support must encompass the right of access to the resource for water-based livelihoods; the right to water needs to be an explicitly declared constitutional right and not merely a right read into the Constitution by judicial interpretation; the Indian Constitution lags behind the constitutions of some other countries in this regard; in India, limitations on access (based on caste, gender, etc.) seriously affect human rights; and so on. He sees a clear compelling advantage in a ‘constitutional right’ over a ‘national policy’.24 In his view, a constitutional enunciation will make it more difficult for ad hoc national policy pronouncements to treat water as a commodity; will provide a more secure human rights niche and a more democratic foundation for judicial activism and will constrain ‘sovereign government discretion’. He feels that the Human Right to Water is the last, if not the best, refuge for rethinking forms of water governance and activist resistance in a hyper-globalising world that is investor-friendly rather than people-friendly. I am in substantial agreement with much of what he says except for a minor reservation on the widening of the scope of the right to water to include the right of access to the resource base for livelihoods. I would give a cautious assent even to that proposition, but with the caveat that in any such widening of the right to water we must take care to avoid the risk of diminishing the fundamental nature of the right. When does a ‘basic’ or ‘sustenance’ livelihood become gainful employment? That uncertainty will give the ‘fundamental right’ fuzzy boundaries, and this might make it difficult to say in a given case whether the right is fundamental or economic. (This is similar to the point made earlier in relation to Joy and Paranjape.)

23 Elsewhere I have raised some questions about the idea of human rights (why only ‘human’? what about other forms of life? and why not talk in terms of responsibilities or obligations rather than ‘rights’?). I note with interest that Fali Nariman has made some remarks about rights and responsibilities in his chapter. That is a major debate that I do not propose to enter into here. 24 Vani similarly argues for law-based rather than policy-based governance. She also stresses the need for an explicit constitutional recognition of the right to water.

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Having taken note of what these authors say, let me make a brief statement of my own thinking on this subject, drawing largely on my earlier writings. This personal statement is offered as a tentative framework for the consideration of this cluster of issues. At the outset, to state the obvious, the right to water and water rights are quite different things,25 and there can be a conflict between them. In so far as the basic water requirement for drinking, cooking and washing is essential to life, the right to it is a fundamental right: the right to water has been treated by judicial interpretation as part of the right to life. (After General Comment 15, the right to water is also a human right in UN terms.) I share Baxi’s view that there must be an explicit constitutional recognition of the right to water. Once this is done, it would follow that the state has a responsibility to ensure that this right is not denied to any citizen or group of citizens, but it might be useful to make that responsibility also explicit. K.C. Sivaramakrishnan points out that though drinking water may be a fundamental right in constitutional terms (by judicial interpretation), that right is not explicitly and categorically recognised by the local authorities, and the corresponding obligation of provision on their part is also not clearly accepted. Moreover, the water supply function itself often gets taken away from the local authority (where it belongs in a constitutional sense) and vested in a corporate parastatal, with the result that what ought to be a right/obligation relationship becomes a contractual relationship. This is one more reason for suggesting that there should be a constitutional declaration of the right to water. What applies to drinking (or domestic) water does not necessarily apply to water for irrigation, industrial use, etc. There is no fundamental right to irrigation water or water for industrial use: these are (economic) use rights. It is certainly desirable to define them clearly, but they arise from and are tied to certain uses, and cannot be divorced from them. The right may be statutory (for instance, arising from the Irrigation Act); or contractual (arising from a contract with a private supplier); or government-granted (arising from a licence or permit governing a particular activity, say, an industry or a commercial activity); or customary (based on tradition or custom or longstanding practice); but it is in its nature a ‘use right’. 25 The ‘right to water’ relates to water as life-support (water for drinking, cooking, washing and personal hygiene), whereas the idea of ‘water rights’ usually arises in the context of water for irrigation, industrial or commercial use, etc.; that is, economic uses of water. The distinction will become clearer as we proceed.

592 Ramaswamy R. Iyer

When the World Bank or some of our own economists (of the neoliberal persuasion) talk about rights or titles, they mean something else: they are talking about property rights. Their standard prescription is twofold: ‘define rights and allow trading’. This is allied to the advocacy of water markets (that is, the state should step out of this area and leave it to market forces), an insistence on economic pricing or ‘full cost recovery’ (which market forces will ensure) and the more muted recommendation of the privatisation of water services. Against that background, and without elaborate discussion, I offer the following brief statements as axioms (if I may so describe them): (a) between a fundamental right (life right) and a non-fundamental use right, the former must always take precedence over the latter; (b) a life right cannot and must not be converted into a tradable property right; (c) even in the case of a use right, it is problematic to divorce it from the use, convert it into a property right and make it tradable; and (d ) the economic rights of some must never be allowed to endanger the fundamental rights of others. [When we talk about the primacy of fundamental rights, we must include not merely the right of all to safe drinking water but also 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.26 This is partly recognised by the Provisions of the Panchayats (Extension to Scheduled Areas) Act 1996—popularly known as PESA, but the recognition needs to be more general and explicit.]

IX. Riparianism Riparianism has been analysed at great length by Tony George Puthucherril, and we need not go over the same ground here. However, we need to ask ourselves where riparian rights figure in relation to the foregoing discussion on rights. The concept of riparianism really cuts across the framework outlined above. I doubt if the right to use the waters of a river arising from proximity to the river can be regarded as a fundamental right. It is also not necessarily an economic right because the claim on the waters is not linked to a particular use. It is nevertheless a right of some kind: not so much a question of what one can do with the water as one of what one cannot do: in using the waters of a river as it flows past, an upper riparian must not cause harm to a lower 26

The right of access to a life-support natural resource is not quite the same as the right to that resource as the means to a livelihood.

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riparian, and so long as substantial or significant harm does not occur, a lower riparian cannot object to an upper riparian’s use of the waters. However, assuming that clear entitlements are fixed for various uses and allocations made, is there still room or need for a riparian claim? Moreover, proximity to a river no longer has the significance it once had, as water can now be transported to places far away from the river, and even against gravity. Nevertheless, riparianism is part of water law and continues to be invoked by people, villages, States and countries. By postulating a kind of right, riparianism may serve a useful purpose as a moderator of the state’s extreme assertion of eminent domain; if, as Baxi says, the Human Right to Water might limit what he calls ‘sovereign government discretion’, riparian rights might perform a similar service though in a more modest way. It may also be a means of resistance to corporate or market intrusions into water, and to engineering enthusiasm for river diversions and transfers. It is particularly important in transboundary contexts, for instance in India’s water relations with Pakistan, Nepal, Bhutan and Bangladesh. Within India, riparianism is central to inter-State river-water disputes. It lies at the heart of the Helsinki Rules of 1966 and the UN Convention on the Non-Navigational Uses of International Watercourses (1997). It is in the domain of riparianism that principles such as ‘equitable apportionment for beneficial uses’, ‘equitable utilisation of the waters of an international watercourse’, no ‘substantial harm’ or ‘significant injury’ to the lower riparian, the obligation to inform and consult co-riparians, and so on, have emerged. It follows that riparianism cannot be dismissed as an obsolete doctrine. That is why Puthucherril, while noting the limitations and weaknesses of the doctrine, continues to find some residuary merit in it, and recommends its retention in a more enlightened form.

X. Conflicts, Institutional Arrangements The constitutional/legal conflict-resolution mechanism relates only to interState river-water disputes, which we have already dealt with. However, there can be many other water-related disputes—between uses, between users, between areas, between sectors, and so on. For the avoidance or resolution of such disputes, we need principles, entitlements, relative priorities and institutional arrangements. The section titled ‘Entitlements, Priorities, Rights’ took note of what Vaidyanathan and Jairaj as well as Joy and Paranjape have to say about some of those matters and proposed a set of axioms about rights, but did not discuss institutional arrangements.

594 Ramaswamy R. Iyer

Broadly speaking, we need three different kinds of institutions: an administrative or managerial institution, a regulatory body and an adjudicatory authority. While adjudication is a judicial function and regulation also has a judicial or quasi-judicial dimension, care has to be taken to see that the administrative or management function does not become ‘top-down’ or wholly the domain of the bureaucracy. Water management calls not merely for entitlements and allocations but also for the observance of limits, the discouragement of unsustainable competitive demand, the promotion instead of the idea of sharing, the ensuring of equity and social justice, and the harmonising of mutually conflicting claims. That kind of just, holistic, harmonious and sustainable management cannot be achieved by the state without the constructive cooperation of civil society. Earlier, we took note of initiatives such as the Cauvery Family, ‘Multi-Stakeholder Dialogue’, ‘Pani Panchayat’, and so on, as also instances of social mobilisation (Anna Hazare, Rajendra Singh). These cannot be treated entirely as ‘informal’ and left unrecognised by the state and by law. They need legal recognition of some kind. Governments must learn to function with them and through them; policymaking and implementation must be a collaborative, interactive effort between the government and civil society; at the same time, the civil society institutions must not lose their identity and character and become extensions of government offices. The provision of organisational and administrative blueprints is not within the scope of this book, which is concerned only with guiding principles and laws. The institutional set-up has to be worked out in detail in each case. The set-up must be decentralised, having regard to the principle of subsidiarity (that is, decisions being taken at the lowest appropriate level), and at the same time ensuring basin-level coordination and harmonisation. The National Commission on Integrated Water Resource Development Plan had in its 1999 Report suggested bottom-up, representative River Basin Organisations. The particular design that they had suggested may or may not be workable, but some further thinking using that as a starting point seems called for. As Joy and Paranjape suggest, there must be a nested set of water institutions from the micro-watershed level to the sub-basin or basin level. (In this context, it will be useful to look at the French and Dutch models of water-board organisations.) At every level there must also be mediation/conciliation mechanisms, and these must involve civil society and draw upon local knowledge, experience and wisdom. Entitlements and institutional mechanisms: are these not what the Maharashtra Water Resources Regulatory Authority (MWRRA) claims to be providing? Is the MWRRA the answer that we are seeking? Should this be the model for other States? One is very doubtful of this. Joy and

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Paranjape are quite critical of the MWRRA. We shall revert to this later when we discuss water law reform.

XI. Restraint, Economy, Conservation Restraining the growth of demand for water and preventing it from getting out of hand, promoting economy in water use, avoiding waste in all uses, getting the maximum benefit out of each unit of water, ensuring the careful conservation of the resource: these are not merely desirable objectives, they ought to be central to water policy and management, and should be regarded as imperatives. However, these are matters for advocacy, education, promotion of awareness, and a transformation of thinking and attitudes. Laws cannot bring about such changes. To an extent, systems of entitlements, allocations and priorities, institutional mechanisms such as River Basin Organisations and regulatory authorities, and of course pricing, can play a role in bringing about the needed transformation. Perhaps the prescription of a Fundamental Duty in this regard in the Constitution will be of some help (see the section ‘A Threefold Prescription’).

XII. Augmenting Water Despite measures of demand restraint and resource conservation, some supply-side augmentation may be necessary. Broadly speaking, there are three main ways in which water available for use can be augmented: big water projects, drilling for groundwater and local augmentation through rainwater-harvesting, micro-watershed development, tanks, etc. The debate on the relative merits and priorities of these is not a subject for this book. Assuming that all three means are likely to be used, we must consider the legal aspects.

Big Projects (Dams, Reservoirs, Canals, etc.) Statutory Project Clearance? There is no specific law governing what are known as ‘Water Resource Development’ or WRD Projects, but the State (meaning a State Government in this context) undertakes them by virtue of its executive power corresponding to its legislative power under Entry 17 in the State List, as also colonial

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legislation such as Irrigation Acts, Irrigation and Drainage Acts, etc., which (as we have seen) assert the state’s sovereign powers over surface waters. However, such projects are subject to certain statutory and non-statutory clearances. Depending on the investment involved, statutory clearances are needed under the Forest Conservation Act 1980 and the Environment (Protection) Act 1986; land acquisition for the projects will be governed by the Land Acquisition Act 1894; in tribal areas, the Gram Sabha will need to be consulted for land acquisition under the Panchayats (Extension to Scheduled Areas) Act 1996, known as PESA; and now a new National Rehabilitation Act is on the anvil. The most important non-statutory clearance for a project of this kind is the techno-economic examination and approval by the Advisory Committee on Irrigation and Multi-Purpose Projects (generally referred to as the Technical Advisory Committee or TAC), and, based on that, the acceptance of the Project by the Planning Commission for inclusion in the Five-Year Plan (often described as ‘investment approval’). The question that arises is whether it is desirable to institute a system of statutory clearance (or licensing, as in the USA) for a dam/reservoir/diversion/canal project per se apart from clearances under the EPA or the Forest Conservation Act, and if so, what aspects it will cover, what purposes it will serve and how it will operate. (One possibility is to make the ‘investment approval’ by the Planning Commission a statutory approval, but it is not clear whether this will be legally feasible.) In any case, the very idea of a statutory clearance for a project may seem strange and retrogressive in the context of ‘economic reform’, liberalisation, and so on. Why then have I mooted this idea? The reason is that the disparate clearances that exist now are precisely that, that is, disparate: they are concern-specific and project-specific. (They have also been weakened and whittled down over the years.) There is no integration of concerns, no basin-wide perspective, no harmonisation of scales, no holistic framework within which a given project is viewed. I shall refrain from elaborating this further, but it seemed to me that the issue needed to be flagged.

Environmental Impact Assessments Turning to clearances under the EPA and the Forest Conservation Act, and in particular the Environmental Impact Assessment (EIA) procedures, the criticisms made in the two chapters by (a) Shyam Divan and (b) Manju Menon and Kanchi Kohli are severe. Consider the following: EIAs of dubious or poor quality; an in-built bias in favour of downplaying environmental

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problems and arriving at positive findings; a reluctance to say ‘No’ to a project; packed appraisal committees; the a priori assumption that all projects represent ‘development’, and that the time spent in environmental examination and clearance is an unfortunate and delay-causing negative imposition; the overlooking of conditions, the grant of clearances when they are not warranted, the non-enforcement of prescribed conditions, the absence of consequences for non-compliance; the farce of public hearings and impatience with people’s apprehensions and grievances; the disappointing record of the Appellate Authority ; the absence of any system of ex post facto re-evaluations: all this adds up to a comprehensive indictment. Despite his recognition of many of these weaknesses, Shyam Divan—taking it for granted that there will be many more large-scale ‘Water Resource Development Projects’ and accepting that prospect—believes that good EIAs hold the promise of ensuring sound decisions. Manju Menon and Kanchi Kohli have made some specific recommendations for change. These include (a) a statutory backing for the regime; (b) sector-wide impact assessments prior to the planning of individual projects; (c) choice of the least cost (environmental, social) option; (d ) regional/basin carrying-capacity assessments; (e) coordination of environmental, forest and wildlife-related clearances; ( f ) serious action on violations; (g) constitution of a National Environment Impact Assessment Authority and (h) stringent post-clearance monitoring. To these may be added certain ideas that I had put forward in my earlier writings: EIAs to be professionalised on the analogy of the medical and accountancy professions and made truly independent of the proposers and approvers of projects; the nomination of the EIA consultant for a project and the payment to that consultant to be divorced from the project authorities; the appraisal committees to reflect relevant expertise and experience, represent a diversity of concerns and ‘stakeholders’,27 and be constituted by an independent authority; and so on. All this calls for legal, procedural and attitudinal changes, the last being the most important. The government as a whole, and the Ministry of Environment and Forests in particular, must believe in the EPA and the EIAs and must want them to work. If, however, they share (as they seem to) the project-sponsors’ negative perceptions of these as impediments in the way of ‘development’ and as inconvenient requirements to be complied with formally, then there is no ground for the hope that Shyam Divan has expressed at the end of his chapter. 27

I have some reservations on that term: please see Iyer, Water: Perspectives, Issues, Concerns, p. 88.

598 Ramaswamy R. Iyer

Displacement/Rehabilitation Apart from environmental impacts, the other major problem with big water projects is that they displace people. A debate on this subject has been going on for several decades, and there have been many writings calling for a national rehabilitation policy and setting forth the principles that should be enshrined in such a document.28 We are past that stage now. We no longer have to call for a Policy or an Act. There is now a Policy in force: in October 2007 the Government of India notified the National Resettlement and Rehabilitation Policy 2007. They followed it up with the introduction in the Lok Sabha of two Bills: the Rehabilitation and Resettlement Bill 2007, and related to that, the Land Acquisition (Amendment) Bill 2007. There have been several critiques of these pointing out serious deficiencies. Himanshu Thakkar’s chapter on this subject was written before the Bills were published, and he has added a brief postscript on the Bills.29 Let us take a quick look at the Bills. At first sight, the two Bills seem to include a number of elements that many of us have been urging for a long time. However, a closer look fills one with doubts and misgivings. A few illustrative points may be mentioned. 1. A Social Impact Assessment (SIA) should not be narrowly confined to physical assets, institutions, facilities, etc., but must be more broadly understood to include the disappearance of a whole way of life, the dispersal of close-knit communities, the loss of a centuries-old relationship with nature, and so on. Besides, who will do the SIA? It is good that the SIA will be reviewed by an independent multidisciplinary expert body, but it should first be prepared by a similar body. 2. The SIA clearance should be part of an overall clearance for displacement (subject to certain conditions and revocable), and it must come from an independent statutory authority and not from the bureaucracy. 3. The terms ‘minimum displacement’ and ‘non-displacing alternative’ are welcome, but these ought to be integral parts of project planning.

28

I had also written on the subject: see my article ‘Towards a Just Displacement and Rehabilitation Policy’. 29 Eventually, if the Bill becomes an Act, the Policy document may cease to be of much significance, but at present both documents are indicative of the government’s intentions and need to be studied.

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4.

5.

6.

7.

8.

9.

It is hardly reassuring that this crucial decision is left to a later stage and to the bureaucracy. An impressive structure of institutions (Administrator, Commissioner, project-level and district-level R&R Committees, Ombudsman, Monitoring and Oversight Committees, National R&R Commission) has been specified, but their responsibilities, powers and interrelationships have not been spelt out. Everything is covered by the phrase ‘as may be prescribed’. That process of ‘prescription’ can change the entire nature of the legislation. Words such as ‘wherever possible’, ‘wherever necessary’, ‘if government land is available’, ‘preferably’, and so on, are scattered throughout the Bill. They seem innocuous, but all of them involve decisions. Who will make them, and on what basis? The Ombudsman provision is a good one, but ‘grievance’ has been narrowly defined to cover only the case of ‘not being offered the benefits admissible’: grievances could relate to many other things. How the Ombudsman will be appointed, how he or she will function, etc., are left to be prescribed. The present Bill retreats from the earlier position that rehabilitation must precede submergence and requires only ‘adequate progress in rehabilitation’ prior to displacement. Further, the elements of the rehabilitation ‘package’ seem inferior to the policies already adopted in projects such as Sardar Sarovar and Tehri. Worse still, cash in lieu of land is envisaged in several places: eventually, cash may well become the main form of compensation. An important point is that there are no sanctions behind the provisions of the Bill. In the event of deliberate or inadvertent lapses or noncompliance or deviations, what consequences will follow? The Bill is silent on this. In fact, far from sanctions for non-compliance, there is a sweeping indemnity provision in Section 56! Finally, the bureaucracy looms large in the Bill. It is not truly ‘participatory’, and does not provide a significant role for the community or civil society.

There are many other points to be made, but the ones already mentioned should be enough to provide a basis for the doubts expressed earlier. As for the Land Acquisition (Amendment) Bill 2007, it is not the kind of radical overhaul of the Act that many have been urging. There are three main elements in it: the limiting of acquisition for private parties, the substitution of a Dispute Settlement Authority for the Courts and the establishment of

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links to the Rehabilitation Bill. Acquisition for private parties is not being eliminated; if the private party purchases 70 per cent of the required land through negotiation, the balance 30 per cent can still be acquired by the government for that party. The rationale of this is not clear. Moreover, it was necessary not merely to rule out (or limit) the acquisition of land for private parties but also to ensure that rural communities are not taken advantage of by corporate bodies in unequal negotiations. There is no such provision in the Bill. Again, the Land Acquisition Compensation Disputes Settlement Authority will apparently deal only with compensation issues. A long-standing criticism of the Land Acquisition Act has been that the ‘public purpose’ for which land is being acquired is not open to contestation. There seems to be no change in that position. Further, the question whether the bar on the jurisdiction of the civil courts and the establishment of a Dispute Settlement Authority instead is a change for the better needs to be gone into carefully.

Major/Medium Systems: Management There is no separate chapter on canal irrigation based on ‘major/medium’ projects, but the legal issues involved, such as the farmers’ entitlements to irrigation water, the absence of a clear definition of those entitlements, the pricing of irrigation water, and so on, figure in several chapters (see sections ‘Entitlements, Priorities, Rights’, ‘Conflicts and Institutional Arrangements’ and ‘Water Pricing’). The Participatory Irrigation Management (PIM) programme (the transfer of part of the system to the farmers for management) is also covered in the survey of water law reform in Philippe and Roopa’s chapter (see section on ‘Water Law Reform’).

Groundwater The two big problems in relation to groundwater in India are (a) reckless exploitation in many parts leading to an alarming depletion of aquifers, and (b) the pollution and contamination of aquifers. Regulation is urgently needed but there are three serious difficulties: legal (ownership of groundwater going with the ownership of land), practical (20 million tube-wells, mostly small, privately owned and operated for ‘self-supply’) and political (the political importance of tube-well owners). Nevertheless, regulation cannot be given up as impossible. What then must we do?

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Vani argues for moving away from the common law tradition of private property in groundwater to the declaration of groundwater as a Common Property Resource (CPR), to be held in ‘public trust’ for the community by the state, followed by institutional reforms. She points out that such legislation as has been attempted (the Central ‘Model Bill’ and some Statelevel legislation) makes no effort to redefine groundwater rights in the interest of ecological and social sustainability and equity. She urges a recognition of the inter-relatedness of all natural resources—land, forests, water—and the need for a holistic, integrated system of laws rather than separate sectoral laws; and stresses the importance of comprehensive land management as well as aquifer management. Finally, she strongly advocates the decentralised governance of groundwater with the participation of the local community, and for this purpose, the recognition of local elected bodies—PRIs—as organs of state and not merely as ‘implementation agencies’ performing limited delegated functions. We must take note of the recent Report (September 2007) of the Expert Group on Groundwater Management set up by the Planning Commission. It refers to the serious problem of over-exploitation and stresses the importance of limiting extraction to sustainable levels. It is sceptical of state control and talks about community management of the resource, user groups, involvement of PRIs, and so on. It does not recommend any change in the legal regime because of the difficulties involved and because of doubts about the usefulness of such a change. It places some reliance on the fact that the Central Government can play a role in relation to groundwater through the Environment (Protection) Act 1986, as also on judicial rulings that the state is the trustee of natural resources. Unfortunately, the Central Government has not so far been able to play a significant role despite the existence of the Central Groundwater Authority for almost a decade now. As for the public trust doctrine, we have already noted that occasional judicial pronouncements provide a rather fragile basis for the presumption that it is firmly part of Indian law: an explicit legal (or constitutional) recognition seems necessary. The most surprising part of the Group’s Report is its deprecation of legal change. Legal change by itself may not be enough, but it does not follow that it is unnecessary. To say ‘No legal change’ (meaning the continuance of land-related private property in groundwater as well as the state’s sovereign control), and at the same time to talk about ‘public trust’ or ‘community management’, and so on, seems somewhat inconsistent. (After writing the above, I have seen T.N. Narasimhan’s comprehensive critique of the Expert Group’s Report in the Economic & Political Weekly of 16 February 2008.)

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Local Small-scale Augmentation Rainwater Harvesting In her elaborate and complex chapter on the subject, M.S. Vani argues for a shift from large-scale, centralised, river-flow-based water management to decentralised, small-scale, local and rainwater-based water management as part of an integrated, holistic, natural-resource management;30 stresses that this calls for community engagement rather than state action; and points out that such community engagement is not favoured by the existing legal system, but has in fact to contend at all times with an adversarial state. She calls for a shift from ‘eminent domain’ to ‘public trust’, from ‘bureaucracy’ to ‘democracy’, and from policy-based governance to governance by law. We have already noted some of these points in the section titled ‘People, Civil Society, Community, NGOs, Panchayati Raj’).

Tanks With DHAN Foundation, the continuing importance of tanks in the rural economy and way of life, and the imperative of restoring them to their old position to the extent possible is an article of faith. After a historical, legal and analytical account, their chapter proceeds to make some recommendations. It stresses the importance of collective action for the restoration of tanks, and calls for a thorough review of the laws relating to local and small-scale water management. It recommends a Conservation Council for Small-Scale Water Resource Management and has proposed a Bill in this regard to the State Government. Its advocacy is claimed to have led to the formulation of the Tamil Nadu Protection of Tanks and Eviction of Encroachments Act 2007. It places emphasis on local knowledge and wisdom, and cautions

30 Referring to the monsoonal ecology of the subcontinent and the related variability of rainfall, Vani argues that as rain is local and ‘decentralised’, so too water-management must be local and decentralised; and that this calls for extensive local rainwater harvesting rather than large, centralised reservoirs behind dams. I am in broad agreement with her way of thinking, but I am not quite sure that a firm conclusion on these lines can be confidently drawn from ‘monsoonal ecology’. The same consideration of monsoonal ecology and variable rainfall is advanced by the Water Establishment and the engineering community as the argument for large centralised storages. That debate has to be pursued separately.

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that unless the people are involved ab initio in the planning of restoration and rehabilitation they are unlikely to show much interest in taking over tanks restored by others. It also argues that the Central Government has a responsibility for the preservation of the water resources of the country.

XIII. Floods Dinesh Kumar Mishra’s chapter on floods is a severe critique of wrong approaches to ‘flood control’, the harm done by embankments, fallacious ideas of ‘flood plain zoning’, and poor planning and administration of relief when a flood occurs. He also criticises the proposed flood cess on the ‘beneficiaries’ of flood control on the ground that they derive hardly any benefits but in fact suffer much harm from measures such as embankments. He makes the important point that while ‘dam safety’ is much discussed, ‘embankment safety’, which is equally important, is not talked about. He also recommends that as in the case of dams, flood control structures such as embankments should also be subject to the requirement of an environmental clearance. He stresses the need to ‘empower the people to take care of themselves and their problems with minimum of governance’. There is much to ponder over in his chapter, but it does not necessarily translate into laws or legal reforms.

XIV. Water Pollution Paritosh Tyagi makes a number of suggestions and recommendations for change, legal, institutional and procedural. I shall refer only to a few of them selectively here. A major proposal for change in law is to end the dichotomy between the Environment Protection Act and the Water Pollution Control Act, and to bring them together in one unified environmental law. Another important suggestion is that the Environmental Statement should be not merely a means of ensuring compliance with government orders but also a management tool for the conservation of water and energy. A third point is that penalties for pollution should be such as to make it unattractive to carry on litigation rather than install pollution control devices. In his view environmental control needs to be tightened rather than relaxed. (Unfortunately, the latter seems to be happening, judging from the National Environment Policy 2006 and the EIA Notification of 14 September 2006: see the earlier discussion on EIAs.) He advocates the adoption of modern approaches to environmental protection. The more detailed procedural and institutional suggestions are not reproduced here.

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XV. Water and Women Kuntala Lahiri-Dutt points out that women are not merely domestic managers of water but also play productive roles in farms and fields; that there is a lack of recognition of women as irrigators and water users and that they have not been allowed to play an active role in water governance. She points out that women’s water needs are to be related not merely to their domestic provision or reproductive functions or even health issues but also to their economic roles. She argues further that we need to go beyond the romanticism of ‘ecofeminism’ and focus on the core issues of gender equality and women’s empowerment. She stresses the need to make water an instrument of empowerment, and the importance of seeing women as active agents rather than as passive recipients. She makes the point that securing water rights would pave the way for the empowerment of women. This would of course follow from the recognition of women as farmers or as industrialists, but the unwritten gender bias works against this. That is what turns them into passive ‘recipients’ of water rather than active participants in decision-making on water. That problem has to be tackled and overcome if water rights are to secure the empowerment of women.

XVI. Water Markets, Privatisation None of our authors has chosen to write at length on water markets or the issue of privatisation though many of the things they say have a bearing on these themes. As the book may seem incomplete without a reference to them, let me cover the ground briefly. These are issues of economic philosophy or ideology, but that is not the debate I wish to enter into here. In the present context, we are concerned with legal aspects. For markets to exist, there should be a commodity; it should be owned by someone and it should be tradable. z

z

z

Is water a commodity? The answer has to be ‘Yes and No’. It is a basic life-need and therefore a fundamental right, but it is also an ‘economic good’, that is, a commodity, in some uses (commercial agriculture, industry). The question immediately arises as to the relationship between these two aspects; this has been briefly discussed earlier. Is water owned by anyone? We have already seen that the idea of ownership of water is fraught with difficulty. Is it tradable? A life-right is clearly not tradable. Even use rights (irrigation water, water for industrial use), if they relate to water from

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a river or a lake, can hardly be converted into tradable property rights. A farmer or an industrialist may have a temporary surplus of water under certain circumstances (for instance, temporary shut-down of industry; lands allowed to remain fallow for a year or two), but if the farmer abandons agriculture or if the industrialist shuts down his plant permanently, do they still have water to sell? Is it their property? Can a farmer become a water-seller on a permanent basis? (In so far as groundwater is concerned, its ownership goes with the ownership of land, but we have already argued that this must change.) It follows then that the legal basis for water markets is highly problematic. However, water markets exist and serve some useful purposes. It is not being argued here that they must not be allowed to exist; but there is indeed a case for arguing that they should not be allowed to proliferate and get out of hand; and they need to be carefully regulated in the interest of equity, resource conservation and ecological sustainability. Turning to the issue of privatisation, it is not easy to skirt ideology here, but if we do so and accept that a decision to privatise the water supply service is under consideration, four important points of a legal nature must be kept in mind. First, the entrustment of the water supply service to a private entity must in no way compromise every citizen’s basic right (fundamental or human or whatever we wish to call it) to water as life support.31 Secondly, and this follows from the first point, the state’s ultimate responsibility in this regard remains despite privatisation. Thirdly, the difficult distinction between the service and the resource must be maintained, and the privatisation of the former must not lead to the privatisation of the latter. Fourthly, given the nature of water, the privatisation of water services is generally likely to be accompanied by certain conditions (social obligations), and it needs to be ensured that the normal corporate primacy to profitability does not override them.

XVII. Water Pricing The question of water pricing was briefly referred to in the previous section, but something more needs to be said, particularly as it has not figured 31 This has two implications: the private supplier must supply rich and poor areas alike, and must not be allowed to ‘cherry-pick’ the former; and whatever pricing principles are adopted, no one should be denied water because he or she cannot afford the tariff. (Water pricing will be discussed further.)

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prominently in any of the chapters. There are two extreme views here: (a) that water is a basic need and right and therefore must be free and (b) that water is an economic good and must be priced accordingly to ensure ‘full cost recovery’. Neither can be maintained in an absolute manner. As already mentioned, no one should be denied the basic water requirements (water for life) because he or she cannot afford to pay the price. This means that the very poor must be given some water free, or, alternatively, a minimal quantum of water must be free to all (as in South Africa). Beyond that, there is no reason why the prosperous middle classes and the rich should not be charged the full economic price for domestic water. Indeed, there is a strong case for penal pricing beyond a certain limit to discourage profligate use, and perhaps even the denial of service beyond a further limit. Turning to economic uses (agriculture, industry, commerce), the case for full economic pricing is clear. However, what applies to industry and commercial agriculture may not apply to subsistence agriculture or modest livelihoods (the distinction is, of course, far from easy); water pricing may have to be kept at an affordable level for these. This is merely a broad outline of principles. It may be very difficult to work out an operational system based on these principles, but some approximation to them seems necessary. A practical set of rules may have to be devised and given legal backing.

XVIII. Water Law Reform During the last few decades, there has been much activity in relation to what is referred to as the ‘water sector’.32 There have been Water Policy Statements at the Central and State levels, draft Model Bills, major Central and State laws, and so on. Philippe Cullet and Roopa Madhav have provided a valuable analytical and compendious account of these initiatives. I take it that the readers have read it carefully. Without going over that ground again, let me indicate my own perception of the significance of these ‘water sector reforms’. Superficially, we may be tempted to believe that there is serious concern about water policy and legal issues. At an earlier stage, in the 1970s and 1980s, there was perhaps some ground for that belief, but that is no longer true. The feeling that groundwater use needed to be regulated resulted in several

32 I have serious reservations on the term ‘water sector’. First, it indicates an essentially economic perspective. Secondly, it downgrades water. Water is not a ‘sector’ of the economy; it is present in all sectors; it transcends all sectoral divides; indeed it transcends the economy itself.

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draft Model Bills on groundwater from the 1970s onwards; worries about flood-related damages led to a draft Model Bill on flood-plain zoning, also in the 1970s; concerns about inter-State river-water disputes were the origins of the National Water Resources Council, established in 1983; a desire to obtain a national consensus on a minimal set of statements about water resulted in the National Water Policy 1987; and dissatisfactions with the working of the Inter-State Water Disputes Act brought about the amendments of 2002. However, many of the more recent ‘reforms’ have arisen from external influences or from factors that have nothing to do with water policy concerns. For instance, the CGWA came into being not as a result of a governmental initiative but because of a direction of the Supreme Court in response to an environmental PIL. The growing inability of the State Governments to maintain or operate major/medium irrigation projects and provide reasonable service to farmers led to the PIM programme. The conditionalities of the World Bank and the ADB have prompted several State Governments to formulate State Water Policies and to enact sectoral legislation. The paucity of resources for investments led to a desire to facilitate ‘private-sector participation’, and this lay behind the most significant change in the revision of the National Water Policy in 2002. Behind most of these reforms lies a narrow economic perspective. In 1992, the Dublin Statement said some good things in Principles 1, 2 and 3, but its Fourth Principle (‘Water has an economic value in all its competing uses and should be recognized as an economic good’) was the beginning of the commoditisation of water that has gained strength over the years and is now the dominant philosophy underlying the lending programme of the World Bank and the ADB for ‘water sector reform’. Creating regulatory authorities for defining ‘entitlements’ (that is, tradable water rights) and setting tariffs (on the ‘full cost recovery’ principle); promoting water markets; privatising water services; facilitating private investment in water projects: these are the principal components of the reform. (The prime example of this kind of reform in India is the Maharashtra Water Resource Regulatory Authority Act of 2005. Joy and Paranjape are very critical of this reform, but leaving aside the philosophy behind it, the MWRRA is quintessentially a top-down, non-participatory, bureaucracy-dominated institution.) This seems to me the wrong kind of reform. I am not sure whether Cullet and Roopa will go all the way with me on this, but they seem to be at least in partial agreement, judging from their concluding observation: A comprehensive rethinking of the proposed reforms is therefore necessary to ensure that any further reforms in the water sector effectively benefit the poor,

608 Ramaswamy R. Iyer focus on drinking water and prevent the complete commercialisation of a sector directly concerned with the fulfilment of human rights.

T.N. Narasimhan approaches the subject of water law reform from a very different perspective. There are three intertwined arguments in his chapter. The first is that good water policy must be based on good water science, that is, a proper understanding of the place and role of water on Planet Earth; that in the pursuit of ‘development’, humanity has tended to perturb the natural balance in many ways; that this is unsustainable and that our water management goals must achieve a balance between the country’s natural endowments and our pursuit of development. In this context, he cites the commendable transformation in California from the old approach of control over nature to one of adaptation to nature. Such a transformation requires that we regard water not as state property or private property, but as the community’s resource held for it in public trust by the state. That is the second strand in the chapter. It traces the historical evolution of the doctrine of public trust and the different forms it has taken in Europe, England and the USA, and argues for its appropriateness for India. Those two strands are brought together in a prescription for India (this is the third strand): a constitutional declaration on the nature of water and the right approach to it on the part of the state and the citizen, and the adoption of the public trust doctrine as the basis for water law. My own position is in substantial agreement with Narasimhan’s though I have arrived at it from a different starting point and through a different route. I proceed to outline it in the next section.

XIX. A Three-fold Prescription My prescription is three-fold: a constitutional declaration, a national water law and a set of specific legal changes. In elaborating these ideas, I shall have to draw on my book33 where I had expounded them at some length.

A Constitutional Declaration To begin with, what is the case for adding water to the cluster of subjects on which there is a constitutional declaration in the sections on Directive 33

Iyer, Towards Water Wisdom.

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Principles of State Policy and Fundamental Duties? The answer lies in the nature of water as discussed in the section ‘Nature of Water’, its importance and the gravity of the challenge before us in relation to it. Given its roles in our daily lives, in the economy, in history, culture and religion, and in ecology; the pressures on this finite resource; the urgent need for minimising conflicts and promoting harmony; and the imperative of wise use for ensuring the survival of humanity and Planet Earth, the case for a special constitutional declaration on water seems persuasive. There are already certain provisions on related matters in the Directive Principles section: for instance, raising the level of nutrition (Article 47), organisation of agriculture (Article 48), and protection and improvement of the environment and safeguarding of forests and wildlife (Article 48A). Similarly, in the Fundamental Duties section, Article 51A(g) runs as follows: ‘to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures.’ It is in fact surprising that there is no separate and special reference to water, which is more basic and fundamental than many of the matters actually mentioned. Perhaps the importance of water and the fact that it is integrally related to the ‘environment’ and other matters specified in the aforementioned articles were not adequately appreciated when those entries were put in. It seems clear beyond question that in both the Directive Principles and the Fundamental Duties sections, there should be carefully drafted statements about water. These cannot of course be detailed discourses; they will have to be brief, compressed entries, which could then be elaborated in a separate Policy Statement or Law. The entry in the Directive Principles section will indicate the responsibilities of the state, and that in the Fundamental Duties will mention the responsibilities of the citizens.

A National Water Law Secondly, why do we need a national water law? Let me reformulate that question: There are plenty of laws relating to water at the State level, and the States can enact more laws if necessary; why then do we need a Central one? Starting as a sceptic, I have gradually come round to the view that a national law on water is very necessary. Many countries in the world have national water laws or codes, and some of them (for instance, the South African law) are widely regarded as very enlightened. Baxi mentions several examples in his chapter on the human right to water, and regrets the backwardness of

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India in this regard. Vani also cites a number of good international examples. A refusal to study and learn from that rich international experience and to argue that we know better would be myopic. However, I shall leave that argument aside and confine myself to the national context. Consider the following points. z

z

z

Several States are enacting laws on water and related issues. For instance, Andhra Pradesh has a Water, Land and Trees Act; Maharashtra has a Water Regulatory Authority Act. These are quite divergent in their perceptions of water. If different States take different views of the nature of water, the roles of the state, civil society, corporate entities, markets, etc., and embody them in laws, how can there be any coherence or convergence on a matter of such fundamental importance? For instance, one State may see water as CPR to be held by the state in public trust; another may regard water as a commodity to be left to market forces; a third State may consider water to be the property of the state. Can we really accept such divergences? Of course, court cases may arise and may eventually result in Supreme Court decisions which bring about a measure of uniformity, but should we wait for that to happen? Under a number of Projects and Programmes, different States are obtaining World Bank or ADB funds for ‘reforms’ in the ‘water sector’. As part of this, they are required to formulate State Water Policies, and we have the Orissa Water Policy, the Tamil Nadu Water Policy, and so on. Here again, significant divergences are possible. Conformity to the National Water Policy is not a binding requirement. This too points to the need for a national law or binding policy of some kind. Different State Governments tend to adopt different positions on riparian rights in the context of inter-State rivers. The upper riparians tend to favour the Harmon doctrine whereas the lower riparians tend to assert prescriptive rights, prior appropriation, etc. If each State were to enact a law reflecting its own position, there would be utter confusion and inter-State river-water disputes would become even more intractable than they are now. Some kind of a national position on the principles that should govern such cases seems desirable though a consensus might be very difficult to achieve. Tribunals have generally been adopting the principle of equitable sharing for beneficial uses, but there might be some advantage in embodying some such statement in a law. Such a law can only be a Central law.

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This is not an argument for centralisation. The intention is not to strengthen the Centre vis-à-vis the States. Indeed, water management ought to be primarily a local matter: the devolution to the Panchayat/nagarpalika must become real. What is being argued here is the need for a broad national consensus on certain basic questions about the nature of water, the vesting of control over it, assurance of equity and fundamental rights, and the protection of the resource and the ecological system. Within that framework there must of course be as much decentralisation as possible, or what the Dublin principles refer to as ‘subsidiarity’ (that is, decisions at the lowest level, or at no higher level than necessary). It might be argued that even if a National Water Act is considered desirable, it would be difficult to enact one because water is primarily a State subject; and that before a National Water Act can be enacted, water must first be shifted to the Concurrent List. I do not find that a persuasive argument. There are already some examples of Central laws or statutory Notifications on subjects that are in the State domain, for instance, the Water (Prevention and Control of Pollution) Act 1974, and the Central Groundwater Authority Notification of 1997. The precise route that was followed in these cases need not be gone into here; the point is that the possibility exists. If there is a national consensus on the need for a national water law, then ways and means of enacting such a law can be found within the existing constitutional framework.34 It is not necessary to go through a two-step process of first putting water into the Concurrent List and then enacting a national water law: the consultations with the States that would be required for the first step might as well be undertaken forthwith for the second.

Changes in the Laws As for the third part of my prescriptions, namely a specific set of legal changes or actions, these are scattered throughout this chapter and need not be repeated here. However, for ready reference the operative recommendations have been recapitulated in Section XXI. These will call for changes in the existing laws or new laws. It must be noted that these are general issues that arise in the country as a whole; they are not State-specific. Some of them 34 As we noted earlier, there is now a Rehabilitation and Resettlement Bill 2007. If that can be enacted, it should be possible to enact a National Water Act.

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may have to be incorporated in the proposed National Water Act and others dealt with through separate Central or State-level laws. My three prescriptions together would amount to a transformation of the existing legal dispensation relating to water. I am firmly convinced that such a transformation is needed.

XX. A Note on International Aspects This book is essentially concerned with the Indian context. However, a few words on the international aspects may be in order. 1. Water policy, water law in other countries—relevance to India: We need not expatiate on this here, as this has been taken note of in several chapters (for example, those by M.S. Vani, Upendra Baxi, and others). 2. Inter-country water relations: India shares her major Himalayan river systems with neighbouring countries, and has had disputes as well as agreements and treaties with Pakistan, Nepal and Bangladesh. With Bhutan, India has had project-based cooperation. These involve politico-economic relations and are matters for negotiations; they do not necessarily call for legal changes or special new laws within the country. As for international law, whatever applies to Treaties in general will apply to Treaties on rivers as well, and in addition, international principles and conventions relating to water, such as the old Helsinki Rules of 1966 and the UN Convention on the Law of the Non-Navigational Uses of International Watercourses 1997, will need to be kept in mind, even if they have no formal legal force and do not bind India. 3. The international ambience: The growing perception of the importance of water has led to intense international debate, research, conferences, and so on, during the last two decades and more. There was the Dublin Statement on Water and Sustainable Development of 1992, followed by Agenda 21 at the Rio Summit, also in 1992, followed further by the Bonn Ministerial Declaration on water (2001) and the Johannesburg Summit of 2002 (10th-year sequel to the Rio Summit). The controversy over dams led to the World Commission on Dams (Report, 2000), and the principles and criteria recommended by it for improving future decision-making on dam projects have been slowly gaining a degree of influence internationally though India has

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rejected the Report. From the 1990s onwards, several international institutions and forums have emerged, such as the Global Water Partnership and its regional and national affiliates, the World Water Council, the UN Secretary-General’s Advisory Board on Water and Sanitation, and its more recent adjunct, the UNSGAB High Level Expert Panel on Water and Disaster, and so on. There are the triennial World Water Forums and the annual Stockholm Water Week and Symposium. Some concepts such as Integrated Water Resource Management (IWRM), Virtual Water, Public–Private Partnership (PPP), and so on, have emerged at these forums and gained currency. These developments are not within the purview of this book, but have some relevance here because of the growing international pressure on governments to change their policies, treat water as an economic good, facilitate the privatisation of water services, promote PPP, set up regulatory authorities, adopt economic pricing policies, and so on; and of course, countering that pressure, the strong resistance to the commoditisation of water and its corporatisation and privatisation on the part of NGOs and civil society movements. The legal issues involved in these controversies have figured in various sections in this chapter. 4. The question of global governance: Concerns over the mounting pressure on the world’s freshwater resources because of the growth of population, the kind of ‘development’ that the countries of the world are pursuing, and the growing commercial exploitation of water in the expectation of profitability arising from scarcity are now accentuated by the reality of climate change and the impact that it might have on the availability of water. These concerns lead to increased interest in the global governance of water. Should there be a Global Freshwater Convention to protect this resource from wasteful use and unconscionable commercial exploitation and ensure resource conservation and ecological sustainability? Some thinkers argue for this.35 However, great care is needed to ensure that any such exercise is not hijacked by the more powerful countries or the big international water corporations for establishing their own hegemony over the world’s water.

35

See for instance the Manifesto proposed by Ricardo Petrella in The Water Manifesto and the Blue Covenant proposed by Maude Barlow in her recent book of that name.

614 Ramaswamy R. Iyer

XXI. A Recapitulation The following is a recapitulation of the operative observations and recommendations of this chapter.

Nature of Water 1. An understanding of water in all its complexity must be the bedrock on which the structure of water laws from the Constitution onwards rests. 2. The protection/conservation of rivers must be based on an understanding of a river as an ecological system in itself, and an integral part of a larger ecological system.

Federalism 1. Instead of pursuing the chimera of a constitutional amendment to put water in the Concurrent List, the Centre should try and use the legislative powers given to it by Entry 56 in the Union List, and reactivate the moribund River Boards Act. 2. Any River Basin Organisation that is set up must be on a consensual, representative, bottom-up basis. (See also item 5 under ‘Conflicts’.) 3. If at any time an inter-Basin or other long-distance water transfer is considered necessary, it will have to be based on consultations and consent; it is not necessary to think in terms of enabling legislation or constitutional amendment.

Inter-State River Water Disputes 1. Adjudication under Article 262 and the ISWD Act is available as a last resort. It does not rule out negotiation, conciliation and mediation. 2. If the River Boards Act is re-activated and River Boards are set up, then arbitration under that Act will be available as an alternative to adjudication.

A Synoptic Survey and Thoughts on Change 615

3. An agreed statement of water-sharing principles should be made part of the National Water Act, if one is enacted. 4. Tribunals under the ISWD Act need not follow court-like procedures. Instead, they could adopt a constructive, consultative, participatory, committee-style of functioning. While retaining the power of judicial decision at the end, they could also function as a conciliation agency. 5. The position given to ISWD Tribunals by Article 262 and the ISWD Act must be respected by the State and Central Governments as also by the Supreme Court, which should strictly observe the bar of jurisdiction laid down in the Act (subject to point 6 below). 6. To improve compliance with the final decision and remove the sense of grievance that one or more parties to the dispute may have, the ISWD Act should be amended to provide for an appeal to the Supreme Court against a Tribunal’s decision. 7. Any adjudication proceedings, whether at the Tribunal or in the Supreme Court, should be inclusive and provide space to the waterusers of all kinds and those likely to be affected by projects. Informal civil society initiatives such as the Cauvery Family should be given some legal recognition.

Civil Society, People 1. Legal changes must be made to enable and facilitate the role of civil society; and changes must be brought about in the thinking and attitudes of the bureaucracy. 2. Customary law and traditional practices should be given due recognition. 3. A good working relationship between civil society institutions and PRIs is very necessary.

Ownership, Control by State 1. The concept of sovereign power cannot be dispensed with but it must be moderated to enable the people (or civil society or community) to play their role. 2. It is useful in some ways to declare that water belongs to the people.

616 Ramaswamy R. Iyer

The Public Trust Doctrine 1. The public trust doctrine is presumably part of Indian law. 2. One hopes that this will be reaffirmed by the Supreme Court in its judgement in the Plachimada case. 3. The doctrine needs to be widened beyond the state-society context and given an ecological/philosophical underpinning.

Entitlements, Rights 1. The allocation of water should be governed by agreed principles and clear entitlements, with proper institutional mechanisms and an independent judicial authority. 2. There must be an explicit constitutional recognition of the right to water. 3. The state’s responsibility to ensure that this right is not denied to any citizen or group of citizens must also be made explicit. 4. The right to water and water rights are quite different things, and there can be a conflict between them. 5. (a) Between a fundamental right (life-right) and a non-fundamental use-right, the former must always take precedence over the latter; (b) a life-right cannot and must not be converted into a tradable property right; (c) even in the case of a use-right, it is problematic to divorce it from the use, convert it into a property right and make it tradable and (d ) the economic rights of some must never be allowed to endanger the fundamental rights of others. 6. The fundamental right to water must also include the rights of access of certain tribal and other communities to the natural resource base on which they have for centuries depended for sustenance.

Riparianism 1. Riparianism has lost its old importance but it continues to serve some useful purposes and cannot be dismissed as an obsolete doctrine. 2. It is particularly important in transboundary contexts.

A Synoptic Survey and Thoughts on Change 617

Conflicts, Institutional Arrangements 1. For the avoidance or resolution of conflicts, we need principles, entitlements, relative priorities and institutional arrangements. 2. We need three different kinds of institutions: an administrative or managerial institution, a regulatory body and an adjudicatory authority. 3. Just, holistic, harmonious and sustainable management cannot be achieved by the State without the constructive cooperation of civil society. 4. Civil society initiatives and efforts at social mobilisation and conflict resolution need legal recognition of some kind. 5. There must be a nested set of water institutions from the microwatershed level to the sub-basin or basin level. At every level there must also be mediation/conciliation mechanisms, and these must involve civil society and draw upon local knowledge, experience and wisdom.

Restraint, Economy, Conservation 1. These call for a transformation of thinking and attitudes. Laws cannot bring about such changes. 2. The prescription of a Fundamental Duty in this regard in the Constitution may be of some help.

Big Projects (Dams, Reservoirs, Canals, etc.) 1. It may be desirable to institute a system of statutory clearance for a dam/reservoir/diversion/canal project apart from clearances under the EPA or the Forest Conservation Act. 2. There should be a statutory backing for EIAs; the activity should be professionalised and made truly independent; the nomination of the EIA consultant for a project and the payment to that consultant should be divorced from the project authorities; the appraisal committees should reflect relevant expertise and experience and represent a diversity of concerns and ‘stakeholders’, and should be constituted by an independent authority.

618 Ramaswamy R. Iyer

3. The government as a whole, and the Ministry of Environment and Forests in particular, must believe in the EPA and the EIAs and must want them to work. 4. There are many deficiencies in the Rehabilitation and Resettlement Bill 2007 and the Land Acquisition (Amendment) Bill 2007. These need to go back to the drawing board.

Groundwater 1. We must move away from the common law tradition of private property in groundwater to the declaration of groundwater as a Common Property Resource (CPR), to be held in ‘public trust’ for the community by the state, followed by institutional reforms. 2. Groundwater rights must be redefined in the interest of ecological and social sustainability and equity. 3. There must be a decentralised governance of groundwater with the participation of the local community.

Rainwater Harvesting 1. Community engagement is not favoured by the existing legal system, but has in fact to contend at all times with an adversarial state. This needs to change. See ‘Civil Society’, ‘Ownership’, and ‘Public Trust’.

Tanks 1. A thorough review of the laws relating to local and small-scale water management is called for. 2. The people must be involved ab initio in the planning of restoration and rehabilitation of tanks. 3. The Central Government too has a responsibility for the preservation of the water resources of the country.

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Floods 1. ‘Embankment safety’ is as important as ‘dam safety’. 2. As in the case of dams, flood control structures such as embankments should also be subject to the requirement of an environmental clearance.

Water Pollution 1. The Environment Protection Act and the Water Pollution Control Act must be brought together in one unified environmental law. 2. The Environmental Statement should be not merely a means of ensuring compliance with government orders but also a management tool for the conservation of water and energy. 3. Penalties for pollution should be such as to make it unattractive to carry on litigation rather than install pollution control devices. 4. Environmental control needs to be tightened rather than relaxed. 5. The adoption of modern approaches to environmental protection is necessary.

Water and Women 1. Women’s water needs are to be related not merely to their domestic provision or reproductive functions or even health issues but also to their economic roles. 2. We need to go beyond the romanticism of ‘eco-feminism’, make water an instrument of empowerment and see women as active agents rather than as passive recipients.

Water Markets 1. The legal basis for water markets is highly problematic.

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2. Water markets exist and serve some useful purposes. However, there is a case for arguing that they should not be allowed to proliferate and get out of hand. 3. They need to be carefully regulated in the interests of equity, resource conservation and ecological sustainability.

Privatisation 1. The entrustment of the water supply service to a private entity must in no way compromise every citizen’s basic right to water as lifesupport. 2. The state’s ultimate responsibility in this regard remains despite privatisation. 3. The privatisation of the service must not lead to the privatisation of the resource. 4. The normal corporate primacy to profitability should not be allowed to override any conditions in the nature of social obligations that are laid down at the time of privatisation.

Water Pricing 1. The very poor must be given some water free, or alternatively a minimal quantum of water must be free to all (as in South Africa). 2. Beyond that, the full economic price should be charged for domestic water. 3. There is a strong case for penal pricing beyond a certain limit to discourage profligate use, and perhaps even the denial of service beyond a further limit. 4. In economic uses (agriculture, industry, commerce) the case for full economic pricing is clear. 5. However, water-pricing may have to be kept at an affordable level for subsistence agriculture or modest livelihoods. 6. A practical set of rules may have to be devised and given legal backing.

A Synoptic Survey and Thoughts on Change 621

Overarching 1. There must be statements about water in the Directive Principles of State Policy and the Fundamental Duties sections of the Constitution. 2. There must be a National Water Act.

Postscript 1 Very recently (February 2009), a body called the Ganga Basin Authority has been set up by a Notification under the Environment Protection Act. If cleaning up the Ganga had been the main concern, this would have been appropriate. However, there are references to ‘river basin management’. If that were the objective, one would have expected specific legislation about the river under Entry 56 in the Union List or the establishment of a River Board for the Ganga under the River Boards Act 1956. It is not clear why the route of a notification under the EPA has been followed. We have to wait and see how this new body evolves and functions.

Postscript 2 My view that the Central Government should try to use the legislative power available under Entry 56 in the Union List rather than pursue the difficult idea of a constitutional amendment to put water in the Concurrent List was based on practical considerations. It does not negate the logical case for the latter course. Recently, in the course of work in progress for the second Commission on Centre–State Relations I have argued that case as follows: First, if we are thinking primarily of river waters and of irrigation, as the Constitution-makers seem to have been doing, it might appear appropriate to assign the primary role to the States, and provide a specific role for the Centre in relation to inter-State rivers. However, even from that limited perspective, most of our important rivers are in fact inter-State, and inter-State (or interprovincial) river water disputes were an old and vexed problem even at the time of the drafting of the Constitution: a primary rather than a secondary or exceptional role for the Centre might well have been warranted. Further, even in single-State rivers, interventions might have consequences beyond the boundaries of the State in question.

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Secondly, Entry 56 in the Union List is only about inter-State rivers and does not enable the Centre to legislate on water per se. Water is larger than rivers; ponds and lakes, springs, groundwater aquifers, glaciers, soil and atmospheric moisture, and so on, are all forms of water and constitute a hydrological unity; and there is more to water than irrigation. Water is a basic need and right; an integral part of the environment and the ecological system, sustaining and being sustained by them; a part of society, culture and history; and, in the eyes of many, a sacred resource as well. Water projects often involve issues of environmental impacts and social justice. If the environmental, ecological, social and human concerns relating to water had been as sharply present to the makers of the Constitution as they are to us, it seems very probable that the entries in the Constitution would have been different. Besides, many laws and rules not directly about water have a bearing on water. The theoretical case for water being in the Concurrent List is very strong indeed. The practical and political difficulties remain, but these would need to be overcome. (Even if we settle for the second best course of greater use by the Centre of the legislative powers provided for in Entry 56 in the Union List, that would still entail considerable political effort.)

References and Select Bibliography Barlow, Maude. 2007. Blue Covenant: The Global Water Crisis and the Coming Battle for the Right to Water. The New Press: New York. Also published by Books for Change, Bangalore, in 2008. Datye, K.R. 1997. Banking on Biomass: A New Strategy for Sustainable Prosperity Based on Renewable Energy and Dispersed Industrialisation. Ahmedabad: Centre for Environment Education. Farrington, John, Cathryn Turton and A.J. James (eds). (1999). Participatory Watershed Development: Challenges for the 21st Century. New Delhi: Oxford University Press. Gleick, Peter. 1996. ‘Basic Water Requirements for Human Activities: Meeting Basic Needs’, Water International, 21(2): 83–92. Government of India. 1987. National Water Policy 1987. New Delhi: Ministry of Water Resources. ———. 1987–88. ‘Report of the Commission on Centre–State Relations’ (Sarkaria Commission), Government of India Press, Nasik. ———. 1994. Guidelines for Watershed Development. Ministry of Rural Areas and Employment. ———. 1999. ‘Integrated Water Resources Development—A Plan for Action’, the Report of the National Commission on Integrated Water Resources Development Plan, Ministry of Water Resources, September. ———. 2001. Guidelines for Watershed Development (Revised). Ministry of Rural Development. ———. 2002. National Water Policy. New Delhi: Ministry of Water Resources. ———. 2006a. National Environment Policy. Ministry of Environment and Forests.

A Synoptic Survey and Thoughts on Change 623 Government of India. 2006b. ‘Environmental Impact Assessment Notification’, Ministry of Environment and Forests, 14 September. ———. 2007a. National Rehabilitation and Resettlement Policy. Ministry of Rural Development, Department of Land Resources, Resolution dated 31 October. ———. 2007b. The Rehabilitation and Resettlement Bill. ———. 2007c. The Land Acquisition (Amendment) Bill. ———. 2007d. ‘Report of the Expert Committee on Groundwater Management’, Planning Commission, September. International Conference on Water and Environment. 1992. ‘Dublin Statement’, Dublin. International Law Association. 1966. Helsinki Rules on the Uses of the Waters of International Rivers. London: International Law Association. Iyer, Ramaswamy R. 2003. Water: Perspectives, Issues, Concerns. New Delhi: Sage Publications. ———. Forthcoming. ‘Water and the Laws in India’ in Constitutional History of India, Subhash Kashyap (ed.). ———. 2006. ‘Some Constitutional Dilemmas’, Economic and Political Weekly, 27 May: 2064–71. ———. 2007a. ‘Towards a Just Displacement and Rehabilitation Policy’, Economic and Political Weekly, 28 July, pp. 3103–07. ———. 2007b. Towards Water Wisdom: Limits, Justice, Harmony. New Delhi: Sage Publications. ———. 2007c. ‘The Cauvery SLPs: Some Intriguing Questions’, The Indian Advocate, XXXV, pp. 137–42. Narasimhan, T.N. 2008. ‘Groundwater Management and Ownership’, Economic and Political Weekly, vol. XXXV, 16 February, pp. 22–27. National Commission to Review the Working of the Constitution. 2002. Report. New Delhi: Universal Law Publishing Co. Pvt. Ltd. Petrella, Ricardo. 2001. The Water Manifesto. London: Zed Books, and Bangalore: Books for Change. Sainath, P. 2002. ‘Little Pani, Less Panchayat’, The Hindu, 15 and 22 September. Singh, Chhatrapati. 1991. Water Rights and Principles of Water Resources Management. Bombay: N.M. Tripathi (for the Indian Law Institute). ———. (ed.). 1992. Water Law in India. Bombay: N.M. Tripathi. South Africa, Republic of, National Water Act, Act No 36 of 1998. Tribunals’ Awards: Krishna Waters Dispute Tribunal, May 1976.∗ Narmada Waters Dispute Tribunal, December 1979. Godavari Waters Dispute Tribunal, July 1980.∗ (∗Date of notification of final awards in the Government of India Gazette). Ravi-Beas Waters Dispute Tribunal Report 1986 (not yet notified; further reference made to the tribunal). Cauvery Waters Dispute Tribunal Interim Order 1991. ———. Final Order February 2007 (not yet notified; further reference made to the tribunal, and SLPs before the Supreme Court). United Nations. 1992. UN Conference on Environment and Development (UNCED Earth Summit), Rio de Janeiro: Agenda 21. ———. 1997. ‘UN Convention on the Non-Navigable Uses of International Water Courses’, passed by the General Assembly. World Commission on Dams. 2000. Dams and Development: A New Framework for DecisionMaking, report. London and Sterling: Earthscan Publications Ltd.

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APPENDIX

626 Farhana Z. Khan

List of Selected Water and Related Statutes in India Farhana Z. Khan Central Laws 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Coasting Vessels Act 1838 Bengal Alluvion and Diluvion Act 1847 Shore Nuisances (Bombay and Kolaba) Act 1853 Northern India Canal and Drainage Act 1873 Northern India Ferries 1878 The Easement Act 1882 Land Acquisition Act 1894 Indian Fisheries Act 1897 Indian Ports Act 1908 Inland Vessels Act 1917 The Indian Forest Act, 1927 Coast Guard Act 1950 Tungabhadra Board Act 1953 River Boards Act 1956 The Inter-State Water Disputes Act 1956, Inter-State Water Disputes (Amendment) Act 2002. Merchant Shipping Act 1958 Wildlife Protection Act 1972 Betwa River Board Act 1976 Maritime Zones Act 1976 The Water (Prevention and Control of Pollution) Act, 1974, as amended up to 1988 The Water (Prevention and Control of Pollution) Cess Act, 1977, amended 1992 z

z

Water (Prevention and Control of Pollution) Cess (Amendment) Act, 2003 (19 of 2003) The Water (Prevention and Control of Pollution) Rules, 1975

628 Farhana Z. Khan z

z

z

The Water (Prevention and Control of Pollution) (Procedure for Transaction of Business) Rules, 1975 The Water (Prevention and Control of Pollution) Cess Rules, 1978 Central Board for the Prevention and Control of Water Pollution (Procedure for Transaction of Business) Rules, 1975, amended 1976

22. Territorial Waters, Continental Shelf, Exclusive Economic Zone 1976 23. Marine Fishing Regulation Act 1978 24. Forest (Conservation) Act, 1980 z

Forest (Conservation) Rules, 1981

25. Brahmaputra Board Act 1980 26. Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act 1981 27. National Waterway (Allahabad-Haldia Stretch of Ganga-Bhagirathi, Hooghly River) Act 1982 28. Inland Waterways Authority of India Act 1985 29. The Environment Protection Act, 1986 i. The Environment (Protection) Act, 1986, amended in 1991 ii. The Environment (Protection )Act 1986, amended in 1993 iii. Environment (Protection) Amendment Act, 2006 a. The Environment (Protection) Rules, 1986 b. The Environment (Protection) (Second Amendment) Rules, 1991 c. The Environment (Protection) (Third Amendment) Rules, 1993 d. The Environment (Protection) (Second Amendment) Rules, 1998 e. The Environment (Protection) (Second Amendment) Rules, 1999 f. The Environment (Protection) Amendment, Rules, 2001 g. The Environment (Protection) Second Amendment Rules, 2002 h. The Environment (Protection) Third Amendment Rules, 2002

List of Selected Water and Related Statutes in India 629

i. The Environment (Protection) Fourth Amendment Rules, 2002 j. The Environment (Protection) Amendment Rules, 2003 k. The Environment (Protection) Second Amendment Rules, 2004 l. The Environment (Protection) Second Amendment Rules, 2006 30. National Waterway (Sadiya-Dhubri Stretch of the Brahmaputra River) Act 1988 31. Hazardous Wastes (Management and Handling), Rules, 1989 32. National Waterway (Kollam-Kottapuram Stretch of West Coast Canal and Champakara and Udyogmandal Canals) Act 1992 33. Betwa River Board (Amendment) Act 1993 34. National Thermal Power Corporation Limited, the National HydroElectric Power Corporation Limited and the North-Eastern Electric Power Corporation Limited (Acquisition and Transfer of Power Transmission Systems) Act, 1993 35. National Environmental Tribunal Act 1995 36. National Environment Appellate Authority Act 1997 37. Bio-Medical Waste (Management and Handling) Rules, 1998 38. Electricity Regulatory Commission Act 1998 39. Municipal Solid Wastes (Management and Handling), Rules, 2000 40. Batteries (Management and Handling), Rules, 2001 41. Biological Diversity Act, 2002 42. The Offshore Areas Mineral (Development & Regulation) Act, 2002 43. Platforms on Continental Shelf Act 2002 44. Offshore Areas Mineral (Development and Regulation) Act, 2002 45. Electricity Act 2003 46. National Disaster Management Act 2005 47. Special Economic Zones Act 2005 48. Coastal Aquaculture Authority Act 2005 49. Environment Impact Assessment Notification No. S.O.1533 (E) dated 14 September, 2006

Bills 50. The Rehabilitation and Resettlement Bill 2007 51. Land Acquisition (Amendment) Bill 2007

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Some Central Water and Related Policies 1. 2. 3. 4. 5. 6. 7. 8. 9.

National Water Policy 1987 National River Policy, 1988 National Forest Policy 1988 National Land Use Policy Outline 1988 National Conservation Strategy and Policy Statement on Environment and Development, 1992 Policy Statement on Abatement of Pollution 1992 National Water Policy 2002 National Environment Policy 2006 National Rehabilitation and Resettlement Policies 2003 and 2007

State Acts

Andhra Pradesh 1. Andhra Pradesh Revenue Recovery Act 1864 2. Andhra Pradesh (Andhra Area) Irrigation Cess Act, 7 of 1865 3. Andhra Pradesh (Andhra Area) Canals and Public Ferries Act, 2 of 1890 4. Andhra Pradesh Ferries Act 1914 5. The Indian Fisheries (A.P.) Andhra Area Amendment Act 1927 6. Andhra Pradesh Canal and Public Ferries Amendment Act 1939 7. Andhra Pradesh (Andhra Area ) Public Health Act 1939 8. Madras Irrigation Voluntary Cess Act, 13 of 1942 9. Andhra Pradesh (Andhra Area) Irrigation Works (Repairs, Improvement and Construction) Act, 18 of 1943 10. Andhra Pradesh (Andhra Area) Irrigation Tanks (Improvement) Act, 19 of 1949 11. Andhra Pradesh (Andhra Area) Land Improvement Schemes (Contour Bunding and Contour Trenching) Act, 22 of 1949 12. Hyderabad Irrigation (Betterment Contribution and Inclusion Fees) Act, 5 of 1952 13. Andhra Pradesh (Andhra Area) Irrigation Works (Levy of Compulsory Water Cess) 1955

List of Selected Water and Related Statutes in India 631

14. Andhra Pradesh Irrigation (Levy of Betterment Contribution) Act 1955 15. Andhra Pradesh (Telangana Area) Irrigation Act, 24 of 1957 16. The Indian Fisheries (AP Extension and Amendment) Act, 1961 17. Andhra Pradesh Irrigation (Levy of Betterment Contribution) Act, 25 of 1965 18. Hyderabad Metropolitan Water Supply and Sewerage Act 1989 19. A.P. Marine Fishing Regulation Act 1994 20. Andhra Pradesh Panchayat Raj Act 1994 21. Andhra Pradesh Municipality Act 1994 22. A.P. Marine Fishing Regulation Act, 1995 23. Andhra Pradesh Ground Water (Regulation for Drinking Water Purpose) Act 1996 24. Andhra Pradesh Water Resources Development Corporation Act 1997 25. Andhra Pradesh Farmers Management of Irrigation Systems Act, 1997 26. Andhra Pradesh Electricity Reform Act 1998 and Rules 1999 27. The Andhra Pradesh Infrastructure Development Enabling Act, 2001 (AP IDEA 2001) 28. Andhra Pradesh Land, Water and Trees Act 2002

Arunachal Pradesh 1. Indian Electricity Act 1910 2. The Arunachal Pradesh Water Resources Management Authority Bill, 2006

Assam 1. Assam Betterment Fees and Mooring Tax (Dibrugarh) Act, 13 of 1953 2. Assam Embankments and Drainage Act, 1 of 1954 3. Assam Embankment and Drainage Act 1960 4. Assam Embankment (Amendment ) Act 1966 5. Assam Farmers Group Irrigation Act 1970 6. Urban Water Supply and Sewerage Board Act (Assam) 1985

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Bihar 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

Bengal Canals Act, 1864 Bengal Drainage Act 1880 Bengal Embarkment Act, 1882 Bengal Embarkments Act 1873 Bengal Irrigation Act of 1876 Jharia Water-Supply Act, 3 of 1914 Bihar Private Irrigation Works Act of 1922 Bihar Private Fisheries Protection Act 1935 Bihar Public Irrigation and Drainage Works Act, 10 of 1947 Bihar Emergency Cultivation and Irrigation Act, 22 of 1955 Bihar Lift Irrigation Act of 1956 Bihar Irrigation and Flood Protection (Betterment Contribution) Act, 28 of 1959 Bihar Irrigation and Field Channel Act 1959 Bihar Irrigation Field Channels Act 1965 Bihar Land Reforms Laws (Regulating Mines and Minerals) Validation Act, 1969 Bihar Irrigation Act 1997

Goa 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

The G.D.D. Land Revenue Code, 1968 Indian Fisheries (Goa, Daman and Diu) Application Act 1970 The G.D.D. Marine Fishing Regulation Rules, 1971 The G.D.D. Fisheries (Fishing Stakes) Rules, 1971 The Water (Prevention and Control of Pollution) Act, 1974 The G.D.D. Marine Fishing Regulation Act, 1980 The G.D.D. Fisheries Rules, 1981 The Goa Fisheries (Amendment) Rules 1982 The Electricity Laws (Amendment) Act, 1991 The Goa Revision of Tariff for Water Supply and Meter Rent Order, 1992 11. The Goa Marine Fishing Regulation (Relaxation of time limit for registration of vessels) Act, 1993

List of Selected Water and Related Statutes in India 633

12. The Goa Fisheries (Amendment) Rules, 1993 13. The Inland Waterways Authority of India (Amendment) Act, 1993 14. The G.D.D. Land Revenue (Record of Rights and Register of Cultivators) (Amendment) Rules, 1993 15. Goa Panchayat Raj Act, 1993 16. The Goa (Brackish Water) Fish Farming Regulation Rules, 1994 17. The Goa Land Revenue Code (Amendment) Act, 1994 18. The Goa [Extension of the Electricity (Supply) Act] Act, 1995 19. Plastics Manufacture Sale and Usage Rules, 1999 20. The Goa (Brackish Water) Fish Farming Regulation Act—date of enforcement of Act 1991 and The Goa (Brackish Water) Fish Farming Regulation Rules, 1994 21. The Goa Revision of Tariff for Water Supply and Meter Rent Order, 1995 22. The Goa Ground Water Regulation Act, 2002

Gujarat 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.

Ferries and Inland Vessels Act Bombay 1868 Bombay Irrigation Act, 1879 Land Revenue Code, Bombay 1879 Indian Forest (Bombay Amendment) Act, 1948 Indian Forest (Gujarat Unification and Amendment) Act, 1960 Indian Forest (Gujarat Amendment) Act, 1963 Water Supply and Sewarage Board Act, Gujarat, 1978 Gujarat Municipalities (Cost of Local Cess on Land Revenue and Water Rates) Rules, 1979 Gujarat Panchayat Act 1993 Gujarat State Disaster Management Act 20 of 2003 The Gujarat Water Supply and Sewerage Board (Amendment) Act, 2003 The Gujarat Fisheries Act 2003 Land Requisition Act, Bombay 1948 Special Economic Zone Act, Gujarat 2004 Water and Gas Pipelines (Acquisition of Right of User in Land) Act, Gujarat 2000

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Himachal Pradesh 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Himachal Pradesh Ferries Act, 1956 Himachal Pradesh Canal and Drainage Amendment Act 1958 Himachal Pradesh Canal and Drainage Amendment Act 1961 Himachal Pradesh Canal and Drainage Amendment Act 1963 Himachal Pradesh Canal and Drainage Amendment Act 1965 Himachal Pradesh Canal and Drainage Amendment Act 1964 Himachal Pradesh Water Supply Act 1968 Himachal Pradesh Minor Canals Act, 1976 Himachal Pradesh Fisheries Act, 1976 Himachal Pradesh Fire Fighting Services Act, 1984 Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005

Jammu and Kashmir 1. 2. 3. 4. 5.

Jammu and Kashmir State Canal and Drainage Act, 1963 Jammu and Kashmir Water Supply Act 1963 Jammu and Kashmir Fisheries Act 1960 Jammu and Kashmir State Ferries Act 1966 Kashmir Valley Embankments Act, 8 of 1992 (1935 AD)

Karnataka 1. Mysore Game and Fish Preservation Act 1901 2. Mysore Irrigation Act 1932 3. Mysore Irrigation (Levy of Betterment Contribution and Water Rates) Act, 28 of 1957 4. Bangalore Water Supply and Sewerage Act 1964 5. Mysore Irrigation Act, 16 of 1965 6. The Karnataka Irrigation and Certain Other Law (Amendment) Act, 2000—to amend the Karnataka Irrigation Act, 1965 7. Karnataka Irrigation Act 1967 8. Karnataka Water Supply and Drainage Board Act 1973

List of Selected Water and Related Statutes in India 635

9. Karnataka Inland Fisheries (Conservation Development and Regulation) Act 1996 10. The Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999 11. Karnataka State Water Policy, 2002 12. Karnataka Urban Drinking Water and Sanitation Policy, 2002 13. Karnataka Ground Water (Protection and Regulation for Drinking Water) Act 2003 14. Karnataka Municipal Corporations (Water Supply) Rules, 2004

Kerala 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Irrigation Cess Act 1865 Rivers Conservancy Act 1884 The Madras Canal and Public Ferries Act 1890 Public Canals and Backwaters Navigation Act 1892 Irrigation (Voluntary Cess) Act 1942 Irrigation Works (Repairs, Improvement and Construction) Act 1943 Irrigation Works (Construction and Levy of Cess) Act 1947 Irrigation Tanks (Improvement) Act 1949 Irrigation Tanks (Preservation and Improvement) Act 1952 Irrigation (Levy of Betterment Contribution) Act 1955 Irrigation Act 1956 The Travancore-Cochin Irrigation (Amendment) Act,1957 The Travancore-Cochin Irrigation (Amendment) Act, 1963 The Kerala Irrigation Works (Execution by Joint Labour) Act, 1967 Irrigation Works (Execution by Joint Labour) Act 1967 The Kerala Irrigation Works (Execution by Joint Labour) Amendment Act, 1969 The Travancore-Cochin Irrigation (Amendment) Act, 1974 The Irrigation Laws (Amendment) Act, 1978 The Kerala Water Supply and Sewerage Act, 1986 The Kerala Water Supply and Sewerage (Amendment) Act, 1993 The Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 Ground Water (Control and Regulation) Act 2002 The Kerala Irrigation and Water Conservation Act, 2003 The Kerala Water Supply and Sewerage (Amendment) Act 2005

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25. The Kerala Ground Water (Control and Regulation) Amendment Act 2005 26. The Kerala Irrigation and Water Conservation (Amendment) Act 2006

Madhya Pradesh 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Madhya Pradesh Irrigation Act, 14 of 1931 Rewa States Ferries Act 1935 Madhya Pradesh Fisheries Act 1948 Madhya Pradesh Regulation of Water Act 1949 Madhya Pradesh Land Improvement Scheme Act 1950 Madhya Pradesh Land Improvement Schemes Act, 10 of 1958 Madhya Pradesh Land Revenue Code, 1959 Madhya Pradesh Ferries Act 1980 Madhya Pradesh Panchayat Raj Adhiniyam, 1993 Madhya Pradesh Sinchai Prabandhan Me Krishakon Ki Bhagidari Adhiniyam, 1999 11. Madhya Pradesh State Water Policy, 2003

Maharashtra 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

The Bombay Ferries and Inland Vessels Act 1868 Bombay Irrigation Act, 7 of 1879 Bombay Land Improvement Schemes Act, 28 of 1942 The Ferries and Inland Vessels (Unification and Amendment) Act (Bom) 1959 Maharashtra Fisheries Act, 1960 Maharashtra Marine Fishing Regulation Act 1961 Maharashtra Municipalities Act 1965 Maharashtra Irrigation Act, 1976 Maharashtra Kharland Improvement Act, 1979 Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993

List of Selected Water and Related Statutes in India 637

11. 12. 13. 14. 15. 16. 17. 18.

Krishna Valley Development Corporation Act, 1996 Vidarbha Irrigation Development Corporation Act, 1996 Tapi Irrigation Development Corporation Act, 1997 Konkan Irrigation Development Corporation Act, 1997 Godavari Marathwada Irrigation Development Act, 1998 Maharashtra Project-Affected Persons Rehabilitation Act, 2001 Maharashtra Irrigation Act 2004 Maharashtra Krishna Valley and Konkan Irrigation Development (Amendment and Validation Continuance Act 2004 19. Maharashtra Water Resources Regulatory Authority Act 2005 20. Maharashtra Management of Irrigation Systems by Farmers Act, 2005

Manipur 1. Manipur Land Revenue and Land Reforms Act 1960 2. The Manipur Fisheries Act, 1988

Mirzoram 1. The Mizoram Water Supplies (Control) Act, 2004 2. The Mizoram Fisheries Act, 2005

Meghalaya 1. 2. 3. 4. 5. 6.

Electricity (Supply) Act, 1948 Tree Preservation Act, 1976 Forest Conservation Act, 1980 Forest Conservation Rules, 2003 Forest (Conservation) Amendment Rules, 2004 The Meghalaya Forest Regulation (Application and Amendment) Act, 1973

638 Farhana Z. Khan

Orissa 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

The Bengal Embankment Act 1855 The Bengal Embankment Act 1866 The Bengal Embankment Act 1882 The Bengal Ferries Act 1885 The Private Fisheries Protection Act 1889 The Bengal Embankment Act 1947 The Orissa Public Embankment Construction and Improvement Act 1950 Orissa Public Embankment (Construction and Improvement) Act, 13 of 1951 The Orissa River Pollution Prevention Act 1954 Orissa Betterment Charges Act, 2 of 1956 Orissa Irrigation Act, 14 of 1959 The Orissa Marine Fisheries Regulation Act 1980 The Orissa Pani Panchayat Act, 2002 Orissa State Water Policy, 2007

Punjab and Haryana 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

Northern India Canal and Drainage Act, 8 of 1873 Punjab Land Revenue Act 1887 Punjab Riverine Boundaries Act 1899 Punjab Minor Canals Act, 3 of 1905 Punjab Fisheries Act, 1914 Punjab Betterment Charges and Acreage Rates Act, 2 of 1953 The Punjab Betterment Charges and Acreage Act 1953 Punjab State Tube-well Act, 21 of 1954 The Haryana Canals and Drainage Act 1974 Punjab Water Supply and Sewerage Board Act, 1976 Haryana Municipal Corporation Act, 1994 Haryana Special Economic Zones Act, 2005

List of Selected Water and Related Statutes in India 639

Rajasthan 1. 2. 3. 4. 5. 6.

Rajasthan Fisheries Act 1953 Rajasthan Lands Special Irrigation Charges Act, 25 of 1953 Rajasthan Minor Irrigation Works Act, 12 of 1953 Rajasthan Irrigation and Drainage Act, 21 of 1954 Control of Water Pollution from Agriculture Act 1996 The Rajasthan Farmers’ Participation in Management of Irrigation Systems Act, 2000

Sikkim 1. Regulation on Holding of Land 1924 2. Prohibition of Washing Clothes, Utensils and Tying of Horses, Mules, etc., in Bazaar Compound 1946 3. Ban on Cultivating New Land 1948 4. Revenue Administration 1949 5. Prohibition from Bathing and Washing of Cloths, Utensil, and Other Dirty and Offensive Things in the Bazaar Premises 1954 6. Department of Irrigation & Flood Control had been Entrusted the Responsibilities as per allocation of Business Rules 1994

Tamil Nadu 1. 2. 3. 4. 5. 6. 7. 8.

Madras City Land Revenue Act 1851 The Madras Compulsory Labour Act 1858 (Central Act 1 of 1858) Madras Irrigation Cess Act, 7 of 1865 The Tamil Nadu Canal and Public Ferries Act 1889 T.N. Land Encroachment Act 1905 The Tamil Nadu Irrigation Cess Amendment Act 1913 Fisheries Act 1927 Bhavani Reservoir Irrigation Cess Act, 16 of 1933

640 Farhana Z. Khan

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

Periyar Irrigation Tanks (Preservation) Act, 5 of 1934 The Tamil Nadu Irrigation Cess Act 1940 Madras Irrigation (Voluntary Cess) Act, 13 of 1942 Madras Irrigation Works (Repairs, Improvement and Construction) Act, 18 of 1943 The Tamil Nadu Irrigation Act 1945 Irrigation Works (Construction and Levy of Cess) Act, 7 of 1947 The Tamil Nadu Marine Fishing and Regulations Act 1948 Madras Irrigation Tanks (Improvement) Act, 19 of 1949 Mettur Canal Irrigation Cess Act, 17 of 1953 Madras Irrigation (Levy of Betterment Contribution) Act, 3 of 1955 Tamil Nadu Irrigation Works (Construction of Field Bothies) Act, 25 of 1959 Madras Land Improvement Schemes Act, 31 of 1959 The Tamil Nadu Irrigation Act 1963 Madras (Additional Assessment and Additional Water-Cess) Act of 1963 Madras Land Revenue and Water Cess (Surcharge) Act, 34 of 1965 Tamil Nadu River Conservancy Act 1884 amended in 1969 The T.N. Water Supply and Drainage Board Act 1971 Tamil Nadu Irrigation Cess Act 1865 modified in 1980 The Madras Metropolitan Water Supply and Sewerage Act 1987 The Madras Metropolitan Area Groundwater (Regulation) Act 1987 Tamil Nadu Panchayat Act 1958 amended in 1997 Tamil Nadu Additional Assessment and Additional Water Cess Act 1963 The Tamil Nadu Marine Fishing Regulation Act 1980 T.N. Irrigation (Levy of Betterment Contribution Amendment) Act 2000 The Tamil Nadu Farmers Management of Irrigation Systems Act, 2000 Provision of Rain Water Harvesting Structure—Tamil Nadu Municipal Laws (Second Amendment) Ordinance, 2003 The Tamil Nadu Ground Water Regulation Act 2005

Uttar Pradesh and Uttarakhand 1. Northern India Canal and Drainage Act, 8 of 1873 2. Jharia Water Supply Act 1914

List of Selected Water and Related Statutes in India 641

3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.

Uttar Pradesh Minor Irrigation Works Act, 1 of 1920 United Provinces Private Irrigation Works Act, 2 of 1920 Cantonments Act, 1924 Kumaun Water Rules 1930 United Provinces State Tube-wells Act, 12 of 1936 Uttar Pradesh Panchyat Raj Act, 26 of 1947 United Province Fisheries Act 1948 Uttar Pradesh Irrigation (Emergency Powers) Act 1950 U.P. Zamindari Abolition and Land Reforms Act 1951 The Closing of Canals Act 1959 Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act 1960 Uttar Pradesh Kshettra Samities and Zila Parishads Adhiniyam, 33 of 1961 U.P. Soil and Water Conservation Act, 1963 The Kumaon and Garhwal Water (Collection, Retention and Distribution) Act, 1975 Uttar Pradesh Water Supply and Sewerage Act 1975 The Uttaranchal Panchayati Rules 2005

West Bengal 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

Calcutta Land Revenue Act 1850 Bengal Ferries Act 1855 Bengal Embankments Act, 1855 Calcutta Land Revenue Act 1856 Bengal Canals Act, 5 of 1864 Bengal Embankments Act, 1866 Bengal Embankments Act, 6 of 1873 Bengal Irrigation Act, 3 of 1876 Bengal Drainage Act, 6 of 1880 Bengal Embankment Act, 2 of 1882 Bengal Private Fisheries Protection Act 1889 Bengal Embankments Act, 1895 Bengal Sanitary Drainage Act 1895 Bengal Embankment (Sunderbans) Act, 4 of 1915 Bengal Embankments Act, 1915 Bengal Agriculture and Sanitary Improvement Act 1920 Bengal Development Act, 16 of 1935

642 Farhana Z. Khan

18. 19. 20. 21. 22.

Bengal Tanks Improvement Act, 15 of 1939 West Bengal Closing of Canals Act, 1959 West Bengal Irrigation (Imposition of Water Rates) Act, 26 of 1959 Bengal Fisheries Regulation and Acquisition Act 1965 The Calcutta Metropolitan Water Supply and Sanitation Authority Act 1978 23. West Bengal Inland Fisheries Act, 1984 24. West Bengal Ground Water Resource (Management, Control and Regulation) Act, 2005

Delhi 1. 2.

Delhi Jal Board Act 1998 Delhi Water and Waste Water Reforms Bill 2003

Lakshwadeep 1.

Land Revenue and Tenancy Regulations 1965

About the Editor and Contributors The Editor Ramaswamy R. Iyer, formerly Secretary, Water Resources, in the Government of India, was Research Professor at the Centre for Policy Research (CPR), New Delhi, where he worked on water-related issues, and in particular on cooperation on river waters by India, Nepal and Bangladesh (1990–99). He continues in CPR in an honorary capacity. He has been a member of many government committees and commissions, including the National Commission on Integrated Water Resources Development Plan (1997–99), and is the Chairman of a Task Force on Natural Resources, Environment, Land, Water and Agriculture, set up by the Commission on Centre–State Relations. From time to time, he has undertaken consultancy assignments for the World Bank; the World Commission on Dams (WCD); the International Water Management Institute, Colombo; United Nations Development Programme (UNDP), New Delhi; the European Commission; and others. He is currently (from August 2007) a Member of the UNSGAB High Level Expert Panel on Water and Disaster, an adjunct to the UN SecretaryGeneral’s Advisory Board on Water and Sanitation. He has published numerous articles and papers, and has authored the following books: A Grammar of Public Enterprises (1991); Water: Perspectives, Issues, Concerns (2003); Towards Water Wisdom: Limits, Justice, Harmony (2007). He has edited/co-edited Harnessing the Eastern Himalayan Rivers (1993); Converting Water into Wealth (1994); Mid-Year Review of the Economy 1993–94.

The Contributors Upendra Baxi is currently Professor of Law at the University of Warwick. He has served as Vice-Chancellor of the South Gujarat University (1982–85) and the University of Delhi (1990–94.) His most recent publications are The

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Future of Human Rights (3rd edn, 2008) and Human Rights in a Posthuman World: Critical Essays (2007). Philippe Cullet, a Reader in Law at the School of Oriental and African Studies (SOAS), teaches law related to the environment, natural resources and intellectual property. He is also the Programme Director at the International Environmental Law Research Centre (IELRC.org), and the Editor-in-Chief of the Journal of Law, Environment and Development (LEAD-journal.org). He studied law at the University of Geneva and King’s College, London (LLM), received an MA in Development Studies from SOAS and his doctoral degree in International Environmental Law from the Stanford Law School, Stanford University. His current research interests include biodiversity, bio-safety, global warming, water as well as the socio-economic aspects of intellectual property protection. Radha D’Souza is a Reader in Law at the University of Westminster, London. Her research interests include water conflicts, law and development, colonialism and imperialism, socio-legal studies in the ‘Third World’ and global social justice. She teaches Law and Development and has previously taught Sociology, Development Studies and Human Geography besides Public Law and Legal Theory. Earlier, she practised as barrister at the High Court of Mumbai. DHAN Foundation is a development organisation working towards bringing significant changes in the lives of the poor through innovative themes. It runs several field programmes and activities to help the poor. Their Tank-fed Agriculture Development Programme aims at rebuilding the small-scale reservoirs spread across the countryside for benefiting smallholder agriculture and providing access to drinking water. DHAN’s experimentation projects and activities are on making rain-fed agriculture more remunerative, enabling information technology to serve the poor and democratising the Panchayats through local action. The salience of the programmes of DHAN are placing high quality human resources to work with the poor and organising them into self-managed groups to avail their entitlements and run their services on a cooperative and self-help basis. DHAN always works in collaboration with individuals and organisations, including the government and businesses. DHAN Foundation has promoted India’s largest and most innovative community banking

About the Editor and Contributors 645

programme, serving the financial needs of about 650,000 poor people with a cumulative portfolio of about $100 million in Southern and Central India through its network of over 189 offices and 651 full-time staff, most of whom have professional qualifications. Shyam Divan was educated at Bombay and Berkeley. He is a Senior Advocate and practices at the Supreme Court of India. He is the co-author of Environmental Law and Policy in India (2001). Bharath Jairaj is a lawyer from the National Law School of India University, Bangalore and a former Indian Visiting Environmental Law Fellow at the Pacific Environment Resource Center, San Francisco, USA. Bharath’s principal interests are in law and developmental policy, specifically in the fields of environment protection and consumer protection. He joined Citizen Consumer and Civic Action Group (CAG) in 1997, and works on policy analysis and research issues, apart from guiding the overall direction of the group. Prior to joining CAG, he was part of the legal team in a leading environment group in Delhi. K.J. Joy has a Master’s degree in Social Work from the Tata Institute of Social Sciences, Mumbai. He has been an activist-researcher for more than 20 years and has a special interest in people’s institutions for natural resource management both at the grassroots and policy levels. His other areas of interests include drought and drought-proofing, participatory irrigation management, river-basin management and multi-stakeholder processes, watershed-based development, water conflicts and people’s movements. He has worked with Bharat Gyan Vigyan Samithi (BGVS), New Delhi, on its watershed development and resource literacy programme. He was a Visiting Fellow with Centre for Interdisciplinary Studies in Environment and Development (CISED), Bangalore for a year and was a Fulbright Fellow with the University of California at Berkeley. He has co-authored several books, including Sustainable Technology: Making Sardar Project Viable; Banking on Biomass: A New Strategy for Sustainable Prosperity Based on Renewable Energy and Dispersed Industrialisation; Watershed Based Development: A Source Book; Panlot Kshetra Vikasachya Navya Disha: Sadhan Saksharata, Shashvat Vikas, Samanyayi Vatap (Marathi); and has co-edited the book Water Conflicts in India: A Million Revolts in the Making.

646 Water and the Laws in India

Farhana Z. Khan is currently a fourth year B.A., B.L (Hons) Degree student at the School of Excellence in Law, The Tamil Nadu Dr Ambedkar Law University, Chennai, India. Besides excelling in her studies, Farhana is also proficient in sports and dramatics. Kanchi Kohli is a social and environmental activist who has been working on environment and forest clearance issues, and their impact on the local communities and the biodiversity of the affected area for the past nine years. After obtaining her degree in social work, she proceeded to work in the Uttara Kannada district of Karnataka for two years where she worked with local NGOs on issues related to the impact of development projects on the environment and the local community. In 2000, she moved to New Delhi and has been an active member of the organisation Kalpavriksh Environmental Action Group (KV). As part of KV, she has been central to the Campaign on Environment Clearance of Development Projects and the Campaign on Biodiversity. Writing and disseminating information are key components of Kanchi’s work. She writes regularly in the mainstream newspapers and magazines as well as websites. She has contributed to four publications related to environment and forest clearance of development projects, the special issue of Ecologist Asia on Dams in the North East titled ‘Large Dams in North East India: Rivers, Forests, People and Power’ (2003) and ‘Eleven Years of Environment Impact Assessment Notification, 1994: How Effective Has It Been?’ She has also compiled a book, Understanding the Biological Diversity Act: A Dossier. While she continues to be part of Kalpavriksh, she is independently coordinating the Forest Case Update in partnership with Ritwick Dutta. Kuntala Lahiri-Dutt is currently a Fellow at the Resource Management in Asia Pacific Program at The Australian National University, where she teaches a full course on gender and development at the Masters level. Kuntala has set up a Gender Water Network and is a member of the Steering Committee of Gender Water Alliance. She has written widely about water resources, and has guest edited ‘Water for People’ the special issue of the journal Development. Trained as a human geographer from Calcutta University, Kuntala has been closely associated with local-level movements working on water and related environmental issues in the Lower Damodar Valley region of West Bengal, India. She has been a member of SAARC Track III initiatives in water resource management, and a resource person for Panos Institute’s flood enquiry project in the waterlogged Kosi plains of North Bihar. Kuntala also teaches and conducts research on the social impacts of and community development

About the Editor and Contributors 647

in mining areas. She has written several papers and books, and her recent publications include an edited volume, Fluid Bonds: Views on Gender and Water (2006) and Women Miners in Developing Countries: Pit Women and Others, jointly edited with Martha Macintyre (2006). One of her interests is the subaltern rickshaw art, forthcoming as a book, Moving Pictures: The Rickshaw Art of Bangladesh. Roopa Madhav, a Research Fellow at the International Environmental Law Research Centre, holds an LLM from New York University and a BA/LLB from the National Law School of India University, Bangalore. She has been a visiting faculty at the National Law School, has worked with trade unions, and was the President and Founder Member of the Alternative Law Forum, Bangalore. Her research interests include labour law, human rights, environmental law and water law. Manju Menon, a member of Kalpavriksh, studies the implementation of and changes in environment laws and policies specifically the environment clearance regime in India. She has helped local groups respond to the environment clearance (EC) procedures and campaigns to address the loopholes in these procedures. Apart from work at the national level, her specific regional focus has been to highlight the environmental and social impacts of the large hydropower projects proposed in North-East India. For the preparation of the Eleventh Five-Year Plan, she served on the Planning Commission’s Task Force on Governance, Transparency, Participation and EIAs. Manju writes regularly in the popular media and academic journals on the above issues. Dinesh Kumar Mishra, is a graduate in Civil Engineering from Indian Institute of Technology (IIT) Kharagpur, an M. Tech in Structural Engineering, from IIT Kharagpur and Ph.D. from South Gujarat University. Based at Jamshedpur, he has been working on the flood issue in the Ganga– Brahmaputra Basins since 1984, and has written many books on the rivers of North Bihar. He has published over 60 articles in various journals, and is currently writing a book on the River Bagmati of Nepal/Bihar. T.N. Narasimhan is a geologist. He has specialises in hydrogeology and water resources. After 14 years with the Ground Water Division of the Geological Survey of India, he went on to obtain a Ph.D. in Geological Engineering from the University of California at Berkeley. He has been on the faculty of the University of California since 1977, and is also a senior scientist of the Lawrence Berkeley National Laboratory. Now retired, Narasimhan’s interest

648 Water and the Laws in India

in water includes science and engineering aspects, and human aspects such as history, philosophy and law. He actively publishes on these topics in archival journals and elsewhere. Fali S. Nariman is a Senior Advocate of the Supreme Court of India and President of the Bar Association of India. He appeared as Lead Counsel for the Government of Maharashtra before the Narmada Water Disputes Tribunal (from 1971–79). He appeared (from 1990 onwards) as Lead Counsel for the Government of Karnataka before the Cauvery Water Disputes Tribunal. He is currently appearing as Lead Counsel for the State of Karnataka before the Krishna Water Disputes Tribunal. Suhas Paranjape has a B. Tech (Chem.) from the Indian Institute of Technology Bombay. Has actively participated in different movements like the People’s Science Movement, Adivasi agricultural labourers’ movement, etc. He has participated as a core team member and consultant in many action research studies and pilot projects undertaken by the Centre for Applied Systems Analysis in Development (CASAD) and the Society for Promoting People’s Participation in Ecosystem Management (SOPPECOM), Pune, in the areas of participatory management of natural resources especially in the field of participatory irrigation management. From 1996–99 he worked as a core team member of the Bharat Gyan Vigyan Samiti (BGVS) in its watershed development project across the country. He was a Visiting Fellow with CISED, Bangalore, for a year. He has co-authored Sustainable Technology: Making Sardar Project Viable; Banking on Biomass: A New Strategy for Sustainable Prosperity Based on Renewable Energy and Dispersed Industrialisation; Watershed Based Development: A Source Book; Panlot Kshetra Vikasachya Navya Disha: Sadhan Saksharata, Shashvat Vikas, Samanyayi Vatap (Marathi); Sustainable Prosperity: Sustaining and Enabling Natures Productive Powers; Water: Sustainable and Efficient Use; Striya Ani Pani: Badalte Natesambandh (Marathi) and Community-based Natural Resource Management: Issues and Cases from South Asia. He has co-edited the book Water Conflicts in India: A Million Revolts in the Making. Tony George Puthucherril, J.S.D. Candidate Dalhousie Law School, Canada, holds an M. Phil in Water Resources Law from National University of Juridical Sciences (NUJS). He has also taught there. He was the editor of the special issue of the Indian Juridical Review (2004) on Water Law. During his stint as Research Fellow and later as Assistant Professor in the National

About the Editor and Contributors 649

Judicial Academy, he coordinated the national seminar on ‘Water and Energy Law’ for High Court Justices in addition to several training programmes for the judiciary on Environmental Law, which had significant components on water-related legal issues. He has several national and international publications to his credit. Kamala Sankaran teaches at the Campus Law Centre, Faculty of Law, University of Delhi. She has been Research Professor at the Indian Law Institute, Visiting Scholar on a Fulbright fellowship at the Georgetown University Law Center, Washington D.C., and was earlier at the Faculty of Law, Jamia Millia Islamia, New Delhi. Her research interests include international labour standards, constitutional law, and gender and the law. She has authored the volumes on Employment Law (Unorganized Labour) and Industrial Law’ of the Halsbury’s Laws of India and has co-edited Towards Legal Literacy: An Introduction to Law in India. K.C. Sivaramakrishnan is Honorary Visiting Professor and Chairman, Governing Board at the Centre for Policy Research, New Delhi. He has also been Senior Fellow, Institute of Social Sciences since 2003. After joining the Indian Administrative Services (IAS) in 1958 and holding various assignments in West Bengal, he moved to Delhi in 1985 in the Ministry of Environment. In 1988, he became Secretary in the Ministry of Urban Development. After his retirement from the IAS in 1992, Sivaramakrishnan joined the World Bank as Senior Advisor, Urban Management. Since his return to the country in 1996, Sivaramakrishnan has been associated with the Centre for Policy Research and the Institute of Social Sciences, New Delhi. Trained in economics, political science and law, he has authored several books and papers on urban management, decentralisation, electoral reforms and the environment. Himanshu Thakkar, an engineer from Indian Institute of Technology Mumbai, is currently coordinator of the South Asia Network on Dams, Rivers & People, and editor of Dams, Rivers & People. In the past he has been associated with the Narmada Bachao Andolan, Centre for Science and Environment, and the World Commission on Dams. Paritosh C. Tyagi is a civil engineer specialising in Public Health Engineering. He was an employee of the Local Self-Government Engineering Department of the State of Uttar Pradesh and worked on secondment in the Planning Commission, Water Department, Republic of Kenya and the

650 Water and the Laws in India

Asian Development Bank. He also worked as Chairman of the Uttar Pradesh Pollution Control Board and the Central Pollution Control Board of the Government of India. Since 1990, Mr Tyagi has been working as an individual consultant on short-term assignments related to environmental management, water supply and sanitation. Videh Upadhyay is an advocate and a legal consultant specialising in Development and Natural Resources Law. He practices in Delhi and has been a legal consultant to the Union Ministry of Environment and Forests, UNDP, World Meteorological Organization, Department for International Development (DFID), University of Cambridge, University of Birmingham, NIRD, amongst others. He has drafted legislations on specific aspects of water and irrigation laws for State Governments and provides regular legal advice to civil society organisations. He has been a Visiting Fellow, Centre for Law and Governance, Jawaharlal Nehru University, and an India Visiting Fellow at the Goldengate University, San Francisco and at the University of California, Berkeley. His books include Public Interest Litigation in India: Concepts, Cases, Concerns (2007), Public Interest Litigation (2005) and the three-volume Forest Laws, Wildlife Laws and Environment; Water Laws, Air Laws and Environment and Environment Protection, Land and the Energy Laws (co-authored). A. Vaidyanathan, former member of Planning Commission, currently Honorary Fellow of the Centre for Development Studies, Thiruvananthapuram, has researched the economic, social and institutional aspects of water resource management. His published works include Water Resource Management (1999), Tanks of South India and India’s Water Resources (2006). He has co-edited Managing Water Scarcity (2003). M.S. Vani is a research and development professional working with the Law and Governance Programme of the Development Centre for Alternative Policies, New Delhi. With an extensive background of grassroots experience in rural development in association with non-governmental organisations, she currently specialises in research, advocacy and training on Natural Resources Law and Policy, working with rural communities and civil society organisations on governance reform. She has also been associated with national and State Governments, international and bilateral agencies in the capacity of consultant.

Subject Index Access (right of, equitable) xii, 157, 173, 186, 220, 222, 298, 590, 592fn Adjudication xii,12, 25–7, 33–9, 47–8, 50–7, 63, 153, 573–9, 594, 614–5 See also dispute resolution, tribunal Agenda 21 (UNCED) 297, 612 Air (Prevention and Control of Pollution) Act 1981 336, 337, 343, 346 Alamatti Dam Dispute 77 Allain-Duhangan Hydroelectric Project 379, 401 Allocations of water, entitlements 6, xiii, 3, 7, 10, 11, 119, 120, 220, 221, 523–4 biomass-based 221, 588 integrated approach to 222–6 norms for 226 et seq priorities in 226, 514 right-based and other 221, 588 trading in 120fn, 122fn, 459, 461, 515, 524, 592, 607 entitlements and rights 589, 616 See also ‘Rights’ and ‘General Authorisation’ Ambedkar, Babasaheb 158fn, 164fn Andhra Pradesh 9, 51, 77 et seq, 99, 170, 264–7, 311, 365, 374, 380, 384, 419, 436fn, 498, 520, 523, 543–4, 610 Andhra Pradesh Farmers’ Management of Irrigation Systems Act 1997 520fn Andhra Pradesh Farmers’ Management of Irrigation Systems Rules, 2003 146fn Andhra Pradesh Municipalities Act 1965 254 Andhra Pradesh Water, Land and Trees Act 2002 5fn, 516fn Andhra Pradesh Water Resources Development Corporation Act 1997 523

Appiko movement 153 Arbitration 43, 55fn, 577fn, 614 See also River Boards Act Arunachal Pradesh 268, 366, 371, 372, 376, 383, 401, 455, 542 Arvari River, Sansad 581 Asian Development Bank, (ADB) 526fn, 527, 529, 583 Assam 253, 311, 319, 372, 376, 401 Athirappally Project 366, 376, 384, 401, 404 Augmentation of water xiii, 595 et seq. See also local augmentation Bachawat Tribunal. See Krishna Waters Disputes Tribunal Baghmati River 311 Baglihar Project 53 Bairabi Project 376 Bangalore Water Supply and Sewerage Board 258 Barapani, Meghalaya 340 Bargi Project 418 Basic Water Requirement (BWR) 589fn Beneficiaries, beneficiary participation. See stakeholders Bengal Irrigation Act 135 andfn Benthamite principle 37, 124fn Bhagirathi River 382 Bhakra Nangal Project 359, 418 Big projects. See dams Bihar Irrigation Act 137, 141 Bihar Land Reform Act 100 Bihar, State of, Government of, 100–2, 141, 253, 267, 311–2, 315, 317–8, 321–7, 371, 443 Bihar Vidhan Sabha 321, 325 Bihar Water Policy 141

652 Water and the Laws in India Biodiversity 159, 375–8, 400, 411, 415 Biodiversity Act (2002) 336 Bisalpur Project 418 Bishnoi movement 153 Bombay Irrigation Act 1879 135 Bombay Irrigation (Gujarat Amendment) Act 1976 5fn, 451fn Bombay Municipal Corporation Act of 1888, 255 Bombay Natural History Society (BNHS) 370 Bombay Provincial Municipal Corporations Act, 1949 254 Bonn Ministerial Declaration 2001 254, 612 Burhi Gandak River 311 Calamity Relief Fund (CRF) 314 Calcutta Corporation Act 1980 256 Calcutta Municipal Corporation Act, 1980 256, 259 California’s water experience 544–8, 608 New California Water Systems Simulation Model (CALSIM) 234fn Cambodia 161 Canals, canal irrigation 178–84, 192, 262–3, 293, 363–4, 392–4, 406, 415–7, 479, 493, 521, 545–6, 559, 568, 585, 595, 600, 617 Cauvery Family 231, 246, 578, 582, 594, 615 Cauvery Waters Dispute, Tribunal 19, 25–7, 29–33, 34–5, 43–4, 48, 49fn, 52–6, 58, 66–70, 91, 99fn, 213fn, 220, 231, 246, 573–9, 582, 594, 615 Interim Order 48, 573 Karnataka Ordinance, Presidential Reference 48, 573 Final Order 34, 573 Special Leave Petitions 34, 574, 576 Central Empowered Committee of the Supreme Court 367fn, 370, 371, 380, 386 Central Groundwater Authority (CGWA) 267, 344, 464 et seq, 516, 570, 573fn, 601, 607, 611

Central Groundwater Board (CGWB) 20, 170, 267, 440, 460, 464, 532 Central Model Bill on Groundwater 20, 267, 451 andfn, 452, 516–7, 601 Central Pollution Control Board (CPCB) 330, 332, 343, 344, 353, 367 Central Public Health and Environmental Engineering Organisation (CPHEEO) 271, 272 Central Water Commission 42fn, 77, 79, 310, 323, 361, 417, 419 Centre for Housing Rights and Evictions, (COHRE) 161fn, 163 Centre for Interdisciplinary Studies in Mountain and Hill Environment (CISMHE) 383 Centre for Science and Environment 137fn, 140fn, 146fn, 207 First Citizens’ Report 332 Chalakudy River 366, 404 Chamera II Project 401 Chandigarh 253 Chandil Dam 100, 102 Chhattisgarh 125, 260 Chhattisgarh Sinchai Prabandhan Me Krishkon Ki Bhagidari Niyam, 2006. 146fn Chikotra movement 246 Chipko movement 153, 160, 207 Civil Rights Protection Act 158 Civil society 134, 144, 158, 215, 229, 236, 246, 298, 366, 430, 573, 580–7, 594, 599, 602, 610, 613, 615–8 Climate change 98, 155, 170, 208, 373, 390, 391, 410, 613 Coal India Ltd (R&R Policy) 407 Coastal Regulation Zone 20, 411fn CRZ Notification 20 Coca Cola case 114fn, 130fn, 239, 268, 517, 583, 587. See also Plachimada, public trust Code of Criminal Procedure, 1973 103fn Colonial legacy 176 et seq, 184 Commission for Sustainable Development 459

Subject Index 653 Commission on Centre-State Relations (Sarkaria) 25, 64fn, 65, 571, 575 Commission on Centre-State Relations (Second) 571 Commodity/economic good, water as; commoditisation of water, ix, 12, 228–9, 514–5, 519, 583, 604, 607. See also Markets Common law, British xi, xiii, 104fn, 115, 185, 442fn, 546 Common Property/Pool Resource, water as See Ownership of water Community-based organisations (CBO) 344 Community initiatives, engagement, management ix, xii, 167–209, 581, 582, 585, 602, 618. See also civil society, local water management, rainwater harvesting Compact Clause (USA) 40–1 Compensatory afforestation 380 Conflicts—inter-use, inter-sector, inter-area, inter-State ix, xi, 3, 4, 12, 218 et seq, 593, 617 resolution 229. See also contending, contested water uses Conservation, economy, restraint. See ‘restraint’ Constituent Assembly 61, 62, 88 Constitution of India, Articles 3, 4–27 12–22 13–19, 24 14–185, 443 17–158 19–185 21–35, 111fn, 259, 406fn, 443 25–19 31A, 31b–185 32–26, 28, 29, 66fn, 443 36–34 38(1)–454 39(b) and (c) 6fn, 100, 259, 454 47–111fn

48A–111fn 51A–111fn 119, 123, 209, 213, 240, 262, and para 5 (2) of Sch. V–24fn, 495; 131–26, 29, 50,54, 63fn, 77, 570fn 143–68 145–54 243G, H,M,W—187, 253, 463, 531fn 243 ZD, ZE—265 245–55–18fn 246–25, 42fn, 62fn, 188, 463 248–18, 23 andfn, 24, 188 252–478 253–21 254–25, 188 262–28, 38, 50, 51, 63fn,76, 87, 568, 569, 570fn, 573 et seq, 614 263–91 280–81–89fn 300A–185 338–70 Constitution of India Concurrent List, suggested transfer of water to, 127, 228, 230fn, 569, 571 et seq, 611, 620 Declarations on water in Part IV (Directive Principles of State Policy) and Part IV A (Fundamental Duties), suggested, 556–7, 595, 608 et seq, 617, 620 Entries relating to water in 4, 19fn, 21, 29, 42, 188fn, 238, 478, 568, 569, 570 et seq, 578, 614 Limited perception of water in, 568 et seq right to water not explicitly recognised in 186, 237, 442, 590 Schedule V areas 145 Third tier in (73rd and 74th amendments, Eleventh and Twelfth Schedules, devolution) 23, 145, 187 et seq, 188, 229, 253, 256, 258, 463, 495, 531, 570, 580, 582, 583

654 Water and the Laws in India See also democratic decentralisation, district Planning Committees ‘We, the People’ 36, 59, 61, 70, 71, 88, 581, 585 Constitutionalism 17, 60 Contending, contested water uses 219 et seq Correlative rights rule (US) 450fn Custom and traditional practices, custom as a source of law, customary laws xi, 10, 19, 24, 30, 31, 105fn, 124, 136–44, 155, 172–8, 183–5, 190–9, 214, 218, 237–8, 379, 441–2, 447–8, 463, 477–89, 496–7, 500, 502, 567, 582, 591, 615 and formal laws 237, 582 Dam projects, debates xiii, 359, 360, 414, 595 et seq statutory clearance for, suggested 596, 617 mismanagement of 373. See also displacement, environmental clearances, EIAs, project-affected persons, social impact assessment Dandeli Mini Hydel Project 370, 399 Darbhanga 311 Democracy 36, 37, 58–9, 75, 83 Democratic decentralisation District/Metropolitan Planning Committees 265. See also Constitution (third tier), panchayati raj Dharma, dharmic law, dharmashastras 174 andfn, 583 Displacement 406, 407, 414–31, 598 et seq. See also dams, Land Acquisition Act and Amendment Bill, National Resettlement and Rehabilitation Policy and Bill, resettlement and rehabilitation Disputes. See conflicts Drinking water 251–74, 518–20, 591 and groundwater 266 et seq and rainwater-harvesting 268 fundamental right to, obligation of the state, municipal bodies xiii, 251 et seq, 271

relegation to parastatals 260–1 Accelerated Rural Water Supply Programme (ARWSP) 518–9 Alma Ata Declaration 1978 189fn See also Rajiv Gandhi National Drinking Water Mission, and Swajaldhara Dublin Principles, Statement 6, 153, 159, 160, 296, 297, 525fn, 527, 607, 611 Due process 12, 185 Easement rights and property rights 444 Ecology, monsoonal 200 et seq, 602fn. See also Hydrology Economic good, water as. See Commodity Economy in water use. See restraint Embankments 309 et seq breaches 316 EIAs for 327 safety 324, 603, 619 Emergency, the 66, 90, 103 Eminent domain xii, 8,9,13, 124, 177, 185, 209, 237, 405, 427, 561, 584 andfn, 585, 593, 602 See also sovereign powers Entitlements. See allocations Environment (Protection) Act, 1986 20, 21, 267, 336, 337, 343, 346, 349, 362, 363, 365, 381, 393, 462, 464, 516, 570, 573fn, 596, 601, 603, 618, 619, 620. See also National Environment Policy 2006 Environmental flows 240, 588 Environmental guidelines 361, 362 Environmental Impact Assessment (EIA), clearance xiii, 359–86, 390–412, 596, 617, 618 Legal framework for 392 et seq Coordinated clearances, need for 383 EIA Notifications 1994–2006 348, 362, 363, 364, 365, 367, 374 box, 393 et seq, 603 Expert Appraisal Committees 365, 366, 383, 386, 396, 397, 400 EIA for Water Projects 398 et seq Regional/sectoral/river-basin/strategic impact assessments 381, 382 Environment Management Plan 393 et seq

Subject Index 655 Environment Pollution (Prevention and Control) Authority for National Capital Region 344 Environmental Statements 342, 351, 603 Equitable apportionment, sharing, utilisation 41, 45–8, 574fn, 575fn Eradi Tribunal. See Ravi-Beas tribunal Erosion of banks 319 Erosional cycle 538–9 Expert Appraisal Committees. See EIA Expert Group on Groundwater Management 601 Exploratory Tubewells Organisation 464 Food and Agricultural Organization (FAO) 277fn, 285fn, 439fn Farmers’ Organization, (FO). See Water Users’ Association Federalism xii, 15, 59, 63, 82, 86–91, 569, 572, 614 Federal Water Code (Germany) 553 Floods, flood control xiii, 309–27, 603, 619 Model Bill 323 Flood cess 325–6 Flood Plain Zoning 323–4, 603 See also embankments Forests Forest Advisory Committee 368 Forest clearance process 368 et seq Forest (Conservation) Act, 1980 336, 362, 368, 370, 410, 596 Forest Conservation Rules 2003 369 Forest Rights Act 2006 (The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006) 117fn Gandhi, Indira 35 Gandhi, Mahatma 37–8, 164fn Gandhi, Sonia 421 Gandhisagar Project 418 Ganga Basin Authority 620 Geological Survey of India, Groundwater Division 464 Gender issues. See ‘women’ Gender and Water Alliance 287fn, 297 General Authorisation (South Africa) 589

Glacial Lakes Outburst Floods (GLOF) 373 Global Freshwater Convention, question of 613 Global water governance xiv, 613 Global Water Partnership (GWP) 287, 613 Globalisation 97, 100, 151, 152, 209, 214, 227, 235, 239, 243, 279, 410, 458, 459, 498 Goa Groundwater Regulation Act, 2002 5fn, 516fn Godavari river, watershed 539–40 Godavarman case 370, 411fn Governance/management of water xi, 156, 167, 559 decentralised management 172, 174, 525, 602, 618 participative management 228, 525, 581 policy-based and law-based governance 602 rainfall-based and river-based 168, 602 role of NGOs in governance 207 water and land management 168 See also Community initiatives/engagement, and Land management Government of India Act, 1935 44, 61 Gram Sabha 140, 145, 196, 206, 596 Grievance Redressal Authority (SSP), 75, 76 Groundwater xiii, 20–21, 170, 266, 285 and fn, 435–70, 516, 600 et seq position under Indian law (Central and State), 441–9, 451–4 regulation—State-level institutions 465 et seq rights in groundwater/land rights/land reform 454–60, 601 rights under international law 450–1 riparian rights in 113–5 sectoral vs holistic approach 469–70, 601 sovereign powers/eminent domain/ public trust/common property resource 469–70, 601, 618

656 Water and the Laws in India See also The Indian Easements Act; easement rights vs property rights; and land use Groundwater—pollution, contamination of 462 Groundwater Authority, Board, Central. See under ‘C’ Groundwater, Central Model Bill. See under ‘C’ Groundwater Management, Expert Group on. See under ‘E’ Gujarat 27, 33, 35, 72, 75, 170, 207, 219, 231, 254, 262, 264, 267, 272, 283, 292, 310, 360, 373, 403–8, 420, 436fn, 437, 451fn, 453, 465, 466–8, 528, 542, 543, 578, 580 Gujarat High Court 404 Habermas, Jûrgen 160fn Halsbury’s Laws of England—100fn, 105fn, 111fn, 113fn, 134 Harmon Doctrine 6, 43fn, 574fn Haryana Municipal Act, 1973 256 Haryana Panchayati Raj Act, 1994 121 Hazardous Wastes (Management and Handling) Rules 342 Hazare, Annasaheb 580, 594 Helsinki Rules 1966 xi, 6, 78, 574, 593, 612 High Level Expert Panel on Water and Disaster (UNSGAB) 613 Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005 5fn Himachal Pradesh High Court 405 Hindon River 332 Hindu Succession Act, 1956 285fn Hirakud Dam, protest movement 142 et seq, 359, 418, 583 Hivre Bazaar 580 Holistic approach, governance, management 98, 208–9, 384, 470, 560, 575fn, 594, 596, 601–2, 617 Holmes, Justice Oliver Wendell 46–7 Household Hazardous Waste 344, 346, 353 Human Development Report 290fn

Human rights 99, 117, 149–65, 235, 245, 297–8, 379, 534, 590, 608 Universal Declaration of 37, 297 Human right to water xii, 99fn, 117fn, 149–64, 239, 246, 511, 534, 590, 593, 609 Human River, Project, Maharashtra 370, 376, 401 Huxley, Julian 37 Hyderabad Metropolitan Water Supply and Sewerage Act, 1989 254 Hydrology, monsoon 410. See also Ecology Hydrological cycle 537–9, 554 India—water resources, physiographic provinces 541–4 Indian Easements Act 1882, 5, 5fn, 6, 103fn, 106, 107fn, 115, 122, 135 andfn, 141fn, 192, 444 Indian Forest Act 1927 117fn, 186 Indian Independence Act 1947 33, 61 Indian Law Institute 157fn Indian Penal Code, 1860 103fn, 110fn, 335 Indus Commission 78 Indus Waters Treaty 1960 53, 154 Institutions, institutional arrangements/ mechanisms xiii, 213 et seq, 230, 594, 617 Integrated Water Resource Management (IWRM) 277fn, 297, 613 Inter-basin transfers 204fn, 572, 614 Inter-country water relations 612 Inter-governmental Panel on Climate Change (IPCC) 391fn Inter-Linking of Rivers Project (Networking Rivers) 22–3, 58, 84–5, 87, 572 ILR Pr. and riparianism 126–8 Inter-ministerial Conference on Freshwater, Bonn 2001 296 International Covenant on Economic, Social and Cultural Rights (ICESCR), 2002, 298 International Decade for Action, Water for Life (2005–15) 298 International Monetary Fund (IMF) 527 Inter-State river water disputes ix, xii, 4, 25, 32, 38–9, 63, 574 et seq

Subject Index 657 Roots of 579. See also conflicts, disputes Inter-State river water agreements 42 Inter-State rivers 4, 19fn, 28, 41–3, 50, 63–5, 74, 90, 123, 189fn, 238fn, 570–8, 610, 621, 622 Inter-State Water Disputes Act 1956, Amendment Act 2002, xii, 4, 28 and fn, 32, 38, 39, 40, 42, 44, 51–2, 53–6, 63, 64, 66, 76, 81, 82 andfn, 86, 91, 568, 570, 573 et seq, 579, 614 bar of jurisdiction of courts 29, 51, 68, 577 and fn See also Tribunals Irrigation Acts, and Drainage Acts xi, 4, 99fn, 135, 581, 596 Management, Participatory (PIM), Transfer (IMT) 514–5, 520 et seq Irrigation, Minor 189 et seq, 205 Iyer, V. R. Krishna 126fn Jaikwadi Project 418 Jawaharlal Nehru National Urban Renewal Mission 252 Jharkhand 101, 102fn, 145 andfn, 253, 322 Jharkhand Panchayati Raj Act 2001 145 Jhumming. See Shifting Cultivation Johad 130fn Johannesburg Summit 2002 612 Judicial activism, excess, over-reach 20–2, 86 et seq, 572 Judicial review 26–9, 68, 72, 76, 556, 577 Justinian, Institutes of 104fn, 546fn Kameng Project 376 Kamla River 311 Karcham Wangtoo project 376, 401 Karnataka 25, 26, 34, 43fn, 48, 52, 66–70, 77–80, 85, 91, 207, 231, 246, 257, 261, 265 269, 365, 372 andfn, 403–4, 407fn, 448, 498, 528, 543, 544, 578, 579 Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999 5fn

Karnataka Municipal Corporations Act, 1976 257 Karnataka Municipalities Act, 1964 257 Karnataka Resettlement of Project Displaced Persons Act, 1987 407fn Karnataka State Water Policy 2002 515fn Kerala 23, 27, 34, 52, 114fn, 126fn, 130fn, 170, 203, 257, 267–8, 289fn, 295, 360, 361, 365, 366, 376, 384, 401, 438, 459, 465, 466, 468, 517 Kerala High Court 366, 517 (strengthening EIA procedure) 404 Kerala Groundwater (Control and Regulation) Act, 2002 5fn, 451fn, 516fn Kerala Municipality Act, 1995 257 Kosi River, embankment, flood 309, 317, 325 Krishna Cases 77–80, 86 Krishna Waters Disputes Tribunal (Bachawat Tribunal) 54, 56, 76 Kudimaramat 481, 581 Kumaon and Garhwal Water (Collection, Retention and Distribution) Act 1975 140 et seq, 183fn, 187fn, 198 et seq, 582 Kumaun and Uttarakhand Zamindari Abolition Act, 1960 198 Kumaon Water Rules 1917, 1930 137, 183, 197 Land Acquisition Act 1894 5fn,185, 405, 406, 407, 409, 425, 426, 427, 596 Land Acquisition Act Amendment Bill 2007 430, 598 et seq, 618 Land acquisition and compensation, corruption in 406 Land management, use 173, 174, 459 and water management, use 168 et seq and groundwater management 440, 461 Institutions at central and State levels 459fn Lava ka baas 130fn Law Commission 402 Law-making outside the organs of state 18, 23–4, 30, 581 Laxman, R.K. 338 Legal framework 3, 236 et seq, 511 et seq

658 Water and the Laws in India See also water law reform Legal pluralism xii, 31, 238 Liberalism, legal 60, 65, 78, 86, 581 Limitation Acts 123fn, 135 Livelihoods, right to 217, 240, 242, 295, 588–90 Lobo, Crispino 580 Local water augmentation, management ix, xii, 580, 595. See also Community engagement, and Tanks Locus standi 27, 29, 578 Lohari Nag Pala 384 Longowal, Sant 28, 81. See also Rajiv Gandhi Loss of Ecology (Prevention and Payments of Compensation) Authority for Tamil Nadu 344 Lower Subansiri Project 372, 376, 379, 380, 382, 383, 401 M.C. Mehta case (groundwater) 19, 103fn, 118, 464. See also Central Groundwater authority M.C. Mehta case (Span Motels) 9, 128, 129, 143fn. See also Public Trust Madhya Pradesh 33, 35, 36fn, 75, 125, 170, 253, 257, 360, 373, 386, 407fn, 408, 419, 420, 426, 453, 465–6, 468, 543, 578 Madhya Pradesh Irrigation Act, 1931 137, 191et seq Madhya Pradesh Land Revenue Code 191 et seq, 447–8fn Madhya Pradesh Panchayat Raj and Village Self Government Act, 1993 196 Madhya Pradesh Peya Jal Parirakshan Adhiniyam, 1986 5fn, 451fn Madhya Pradesh Sinchai Prabandhan Me Krishkon Ki Bhagidari Adhhiniyam, 1999 194, 520fn Madhya Pradesh Water Sector Restructuring Project 530 Madras Land Encroachment Act 1905 447fn Madras Presidency, Province 33, 34, 581 Mahadayi River. See Mandovi Mahadayi Bachao Andolan (Save Mahadayi Movement) 372fn

Maharashtra 33, 35, 75, 122fn, 207, 214, 220–4, 231–2, 240, 245, 252, 254, 257, 265, 267, 310, 360, 370, 373, 407fn, 408, 419, 420, 435, 436fn, 437fn, 438fn, 455–6, 466–70, 523–4, 532, 543, 580, 610 State Water Policy 2003 121, 514fn, 515fn, 524 Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993 5fn, 451fn, 452 Maharashtra Land Revenue Code 1966 447fn, 448fn Maharashtra Management of Irrigation Systems by Farmers Act 2005 243–4, 521, 531fn Maharashtra Water Resources Regulatory Authority, MWRRA Act 119 andfn, 120,125fn, 244, 264, 448fn, 451fn, 452, 458, 470, 521, 523 et seq, 594, 607 Maheshwar Project 386 Major/Medium projects 600 Malaprabha River 372 Management of water. See Governance Mandovi River (Mahadayi R) 372 Manipur 268, 323, 374–6 Mann Project 418 Mark Twain 98fn Markets, Water 122fn, 444fn, 445fn, 592, 604–7, 619–20 Marx, Karl 151 Mettur Dam 359 Middle Siang Hydroelectric Project 366, 374, 376, 401 Millennial Development Goals 153, 277, 297, 298, 498 Minimum Flows xii, 588 andfn. See also Environmental flows Ministry of Agriculture 438fn Ministry of Environment and Forests 343, 344, 348, 362, 365, 367, 368, 370, 371, 376, 378, 381, 383fn, 386, 391fn, 392, 393, 396, 397, 401, 419 Ministry of Home Affairs 419 Ministry of Panchayati Raj 252 Ministry of Power 360, 381

Subject Index 659 Ministry of Rural Development 252, 421, 460, 518 Ministry of Social Justice and Empowerment 419 Ministry of Tribal Affairs 419 Ministry of Urban Development 258 Ministry of Water Resources 309fn, 324fn, 381, 429 Minor Irrigation Census, Third 435 Minor Irrigation tanks 478 Mishra, P.R. 580 Model Municipal Law 258 Mono Lake case 9, 547. See also Public Trust Monsoonal climate, ecology, hydrology. See ecology, hydrology Mullapperiyar case, dam, project 27, 28, 29, 403 Multi-Stakeholder dialogue, platform 229, 231–6, 594 Muslim Personal Law Shariat (Application) Act, 1937 285fn MYRADA 207, 580 Mysore State 33, 34, 43 Najafgarh drain 331 Narmada Bachao Andolan, case, judgement 71–4, 153, 160, 207, 386fn, 402, 406, 408, 420, 425, 580 Narmada River, dispute, cases, judgement 32 et seq 70–7, 86, 403, 417, 578 Narmada Sagar Project 418 Narmada Waters Dispute Tribunal 33, 35, 76, 408, 420, 425, 426, 578 National Academy of Agricultural Sciences 292 National Advisory Council 421, 422 National Board for Wildlife 371 National Calamity Contingency Fund 314 National Coastal Zone Management Authority 344 National Commission on Floods. See Rashtriya Barh Ayog National Commission on Integrated Water Resource Development Plan 65, 419, 435, 571, 576fn, 581, 594

National Commission to Review the Working of the Constitution 26, 59fn, 117fn, 571, 576 National Environment Policy 2006 603 Draft NEP 2004 469 National Environment Tribunal Act 1995 342 National Environmental Appellate Authority 344, 367fn, 368, 374 box, 402, 405, 597 National Environmental Appellate Authority Act 1997 381, 384, 394, 401 National Environmental Impact Assessment Authority (suggested) 385 National Forest Policy 203 National Highways Authority of India (R&R Policy) 407 National Hydro-Power Corporation 366, 370, 373, 376, 383, 386, 398 NHPC R&R Policy 420 National Institute of Urban Affairs 266, 272 National Land Policy Outline 1986 203, 459 National Project for Repair, Renovation and Restoration of Water Bodies Directly Linked to Agriculture 144 National Rehabilitation and Resettlement Policy 2003, 2007 408, 409, 421, 422 et seq, 598. See also Displacement. National Rehabilitation and Resettlement Bill 2007 430, 598 et seq, 618 See also Land Acquisition Amendment Bill 2007 National Thermal Power Corporation (R&R Policy) 420 National Water Act for India, case for 608– 11, 619. See also ‘water law reform’. National Water Policy 1987, 2002 203, 243, 264, 267, 275, 419, 512, 513, 514, 515fn, 526fn, 527, 570, 581, 607 National Water Resources Council 570, 574, 581, 583 Nationalising rivers 85, 87, 570 Nayabad and Wasteland Grant Rules 1884 136 Nepal 327

660 Water and the Laws in India Networking Rivers. See Interlinking of Rivers NGOs 207–8, 344, 406, 580, 583, 613 Norms/standards for water supply 270, 271 North Eastern Electric Power Corporation (NEEPCO) 375 Northern India Canal and Drainage Act, 1873 124fn, 135, 177 et seq, 198 Notified Eco-sensitive Areas 367 Nutrient cycle 538–9 Ombudsman 424, 599 Omkareshwar Project 418 Ooranis 481 et seq 493 Operation Barga 285fn Optimum utilisation, optimal use 5, 6, 12, 574fn, 575fn Orissa Irrigation Act 1959 142 Orissa Pani Panchayat Act 2002 520fn Orissa Prevention of Land Encroachment Act, 1972 447–8fn Orissa State Water Policy 515fn Oudh Rent Act 1868 180fn Ownership of water ix, xi, 134–47, 173, 217–8, 511, 581–6, 604, 615 water as common property/pool resource xii, 12, 226, 228, 583, 585; as private property 217, 226, 584; as state property 185 et seq, 227 Ownership, sense of 146–7, 582 Pakistan 35, 78 Pala Maneri Project 368, 384, 401 Panchayati Raj Institutions (PRIs) 23, 145, 187 et seq, 200, 229, 463, 495, 522, 526, 580, 582, 583, 601, 615 Panchayati Raj (Extension to Scheduled Areas) Act 1996 (PESA) 145, 196, 592, 596 Pani panchayats 351, 580, 594 in Orissa 580fn in Maharashtra 240 Parambikulam Aliyar Project, case 7, 8 Parambikulam Aliyar Project (Regulation of Water Supply) Act, 1993 7

Parthasarathy Committee 169fn, 170fn, 206, 207 Participatory Irrigation Management (PIM) 145–7, 205, 600, 607 Patkar, Medha 74 Pawar, Popat Rao 580 People 30, 567, 578, 580 people’s initiatives xii, 31, 581 participation, people’s 204, 205, 399fn, 525 et seq, 582 voice to people 30–1 “we the people”. See Constitution See also ‘access’, ‘state’, locus standi People’s Science Institute, Dehra Dun 144fn Phad system 220, 223fn Plachimada 239, 268, 583 Planning Commission 77, 79, 89, 310, 384fn, 385fn, 417fn, 530fn, 596 Eleventh Five-Year Plan 324, 359fn Polavaram Project 374 box, 380, 384, 418 Pollution, pollution control xiii, 329–54, 603. See also Water (Prevention and Control of Pollution) Act 1974, Central Pollution Control Board Polluter pays principle 524 Pondicherry and Karaikal Regions, Control and Regulation of Groundwater in, G.O.Ms. No. 39/Ag dated 21/9/88 5fn, 451fn Pong Dam 418 Population Foundation of India 391fn Precautionary principle xii, 104fn Prescriptive rights 192, 574fn, 610 Pricing of water 605–6, 620 full cost recovery principle 120, 606, 607 Principles of water-sharing. See Sharing Prior appropriation, use 5, 6, 12, 41, 450fn, 574fn Prior Appropriation Rule (US) 463 Priorities in water allocation. See Allocation Privatisation of water, private sector participation 122fn, 125, 146fn, 152, 165, 227, 242, 244, 274, 459, 515, 527–8, 560, 583, 592, 604–6, 613, 620

Subject Index 661 Project-affected persons 414, 419. See also Dams, displacement, social impact assessment Property, proprietary rights in water, 136. See also Ownership of water Protected Areas 371, 380, 384 Public Interest Litigation (PIL) 86, 87,117fn, 607 Public Liability Insurance Act (1991) 336 Public Participation. See people Public-private partnership (PPP) xii, 613 Public purpose 8, 9, 129, 135, 178–80, 185, 405, 425–6, 600 Public trust 8, 9, 13, 128–31, 143, 209, 226, 259–60, 469–70, 546–8, 567, 586–7, 601, 602, 608, 616 in the US 550–2 in Europe 552–3 in New Zealand and South Africa 554 relevance to India 554–5 Punjab–Haryana dispute. See Ravi–Beas dispute Punjab Minor Canals Act 1905 181 Punjab Reorganisation Act 1966 28, 81 Punjab Termination of Agreements Act 2004 573 Quota. See Entitlements Rainwater harvesting xii, 168 et seq, 268 et seq, 440, 618 Rajasthan 33, 35, 81, 130fn, 203, 255, 260, 274, 277, 311, 323, 419, 437, 520, 532, 542, 580, 581, 584 Rajasthan Farmers’ Participation in Management of Irrigation Systems Act, 2000 520fn Rajasthan Municipalities Act, 1959 255 Rajasthan Spinning and Weaving Mills 378 Rajasthan Water Policy 1999 514fn, 515fn Rajendra Singh 580, 581, 594 Rajiv Gandhi—Sant Longowal Accord 28, 40, 81 Rajiv Gandhi National Drinking Water Mission (RGNDWM) 518–9,fn Ralegan Siddhi 580 Ramaswami, Justice V. 33

Rao, K.L. 418 Rashtriya Barh Ayog 310, 311 Rathong Chu River 378 Rau, B.N., Rau Commission (Indus) 43 et seq, 579 Ravi–Beas dispute, tribunal, cases 28, 40, 81–84, 86, 89, 91, 573, 579, 584 Reasonable Use Principle (US) 450 andfn Reform of water law. See water law reform Regulation, regulatory mechanisms, authorities 3, 243, 515, 523, 607 Resettlement and rehabilitation policies, packages xiii, 406, 407, 409, 415 et seq, 598 State policies, organisations’ policies, project-specifc policies 419–20 Role of judiciary 426 Struggles 427 See also displacement, National Resettlement and Rehabilitation Bill, Land Acquisition Amendment Bill, Coal India, National Highways Authority of India, World Bank Residuary powers. See Constitution Resource Management Act 1991 (New Zealand) 554 Restraint in water use, economy, conservation 595 et seq, 617 Right to Information Act, (RTI) 234, 409 Right to water 237, 239, 442fn, 443, 532, 589, 590, 616 and water rights 591 See also Constitution, Human right to water and International Covenant Rights 11 ambiguity in 10 fundamental, other 590, 591, 616 hierarchy of rights 240 et seq, 588 rights/obligations/duties/responsibility 37, 38, 175, 561–2, 590fn water rights (life rights, property rights, use rights, tradable rights) 10, 12, 242, 286, 515, 591, 592, 607, 616 See also ‘access’, ‘allocations’ and ‘human rights’ Rights publicis juris 27

662 Water and the Laws in India Rio Summit 1992 Riparianism, riparian rights xii, 10–1,13, 97–133, 135, 286, 592–3, 616 and the reorganisation of States 28, 579 regulated riparianism 128–31 in transboundary contexts 593 people-centred 582 regulated riparianism, Model Code (US) 118 et seq Rivers basic propositions regarding 569 basins (including inter-basin, intrabasin, sub-basin) 11, 169, 359, 438 of national importance 571 River Basin Organisation (RBO), Authority, Agency, River Boards 119, 120, 230, 452, 458, 571, 594, 614, 620 River Boards Act 1956 4, 42, 43–7, 64, 570, 571, 572, 576fn, 578, 614 River-linking Project. See Inter-Linking of Rivers Project Roman law 105, 450, 546, 552, 583 Sadguru Foundation 207, 580 Salunke, Vilasrao 214, 580 South Asia Network on Dams, Rivers and People (SANDRP) 190fn, 373fn Sardar Sarovar Dam, Project 33, 35, 36, 70, 71, 360, 402, 408, 417, 418, 421, 426 SSP R&R Policy 420, 425, 513fn Sarkaria Commission. See Commission on Centre-State Relations Scheduled Castes and Tribes Commissioner 70–71 Sen, Amartya 150, 289 Separation (division) of powers 17–9, 60, 67 Sharing of water (and principles) 4, 6, 7, 10, 42, 86–7, 118, 127, 154, 214, 216, 218, 228, 265,392, 515, 522, 526, 530, 532, 555, 559, 574, 575, 577, 594, 610, 615 Sharma, B.D. 71, 408

Sheonath River 125, 260 Sh. R. privatisation controversy 125–6, 239, 583 Shifting cultivation (Jhumming) 375 Sikkim 366, 378 Concerned citizens of 378 Silent Valley 360 Siyom River 366 Social Impacts (and S. I. Assessment) 414 et seq, 424, 598 Social mobilisation 580, 594 Society for Promoting Participative Ecosystem Management (SOPPECOM) 234fn South Africa (Constitution, National Water Act) 129fn, 161, 163, 442fn 554, 589, 606 riparianism under Apartheid 99fn South Australia Natural Resources Management Act 2004 202 Sovereign powers xii, 122–5, 138 et seq, 173, 584, 585, 615 Sovereignty, Austinian 24 Special Economic Zones 160 Special Master (US) 38, 41 Specific Relief Act 1877 135 Stakeholders, stakeholder participation 202, 228–36, 396, 499, 514, 525, 597, 617 State and the people/civil society, 60, 61, 567, 582, 586, 617 control xii,134 et seq, 532, 581, 615 State Environmental Appraisal Committee 343 State Environmental Impact Assessment Authority 343, 367, 384, 396, 397 State Pollution Control Boards 337, 338, 343, 345, 349, 353, 396 State regulatory bodies 386 States Reorganisation Act 1956 27, 29, 61, 578 States Reorganisation, S.R. Commission 64 State Water Policies 514 Status, women’s. See ‘women’ Stockholm Water Week 613 Subansiri River 380

Subject Index 663 Subarnarekha River 100 et seq Subsidiarity principle xii, 23 andfn, 261, 594, 611 Suketi Khad 333 Sukhomajri 580 Supreme Court 22–6, 34, 35, 38, 58–94, 126, 156, 394, 402, 403, 408, 426, 464, 574, 576, 579, 615 reinterprets FCA 370 Sutlej Yamuna Link Canal 28, 81 Swajaldhara 519 et seq Tale Valley sanctuary 373, 376, 379 Tamil Nadu 7, 8, 22, 27, 34, 48, 52, 58, 66–70, 85, 87, 124, 220, 231, 246, 252, 261–7, 273, 311, 344, 419, 437, 448, 453–68, 480–2, 486–8, 493–4, 501–7, 543–4, 569, 578–9, 581fn Water Policy 610 laws relating to water 478–9 Tamil Nadu Groundwater (Development and Management) Act, 2003 5fn, 451fn, 452 Tamil Nadu Irrigation Tanks (Improvement) Act 1949 483 Tamil Nadu Land Encroachment Act 1905 483 Tamil Nadu Municipal Laws Second Amendment Act of 2003 269 Tamil Nadu Panchayats Act 1994 495 et seq Tamil Nadu Protection of Tanks and Eviction of Encroachments Act 2007 498, 602 Tanks in South India 544, 618 customary management, cases 482 et seq customary rights in 479–81 encroachments in beds, tank systems, supply channels 489–93 Farmers’ Associations 229, 497 irrigation 477–508, 602 et seq judicial interventions 493–5 influence of well irrigation 496 et seq usufruct rights 486 et seq, 497 fishing rights 488 et seq Tankers, water 350

Tarun Bharat Sangh 207, 580 Tata Iron and Steel Company Ltd 100–3 Tawa Project 418 Teesta Basin Carrying Capacity study 383 Teesta Project III, V 366, 367 andfn, 370, 378, 382, 383, 384, 386, 401 Teesta River 367, 382 Tehri Hydroelectric Project, case 360, 403, 408, 416, 418 Tehri R&R Policy 420 Tembu lift irrigation scheme 220, 231fn Three Gorges Project 36–7 Tipaimukh Project 374 box, 375, 376 Track II 30 Transfer of Property Act 5fn, 114fn, 445 Tribunals under the ISWD Act 4, 25, 33, 573 et seq composition, style of functioning, problems 575, 615 suggestions for improvement 51–2, 53–6, 576 et seq, 615 See also Cauvery T., Krishna T., Narmada T., Ravi-Beas T. Tuivai Project 376 Unaccounted water 271 UN Conference on Human Environment, Stockholm 1972 339 UN Convention on the non-navigational uses of international water courses 1997, 78 andfn, 575fn, 593, 612 UNDP 290 UNESCO 37 UN ESCR Committee General Comment No. 15 164, 239, 297–8, 591 UN–HABITAT 277fn UN Human Rights Commission (UNHRC) 37 UN International Drinking Water and Sanitation Decade 1981–90 296 Union Territories Pollution Control Committees 353 United Nations Environment Programme 97fn United Nations Environment Network on Climate Change 98fn

664 Water and the Laws in India UN Secretary General’s Advisory Board on Water and Sanitation 613 UNSGAB High Level Expert Panel on Water and Disaster 613 Urban water supply, coverage 270 et seq responsibility of municipal bodies 271, 591 US environmental legislation 390 and fn US Environmental Protection Agency 202 US Public Law 566 201 US system of adjudication of inter-State river water disputes 38–9 US Supreme Court 38–9, 41 Uttar Pradesh, Uttaranchal, Uttarakhand 136, 139 et seq, 183fn, 197 et seq, 200, 203, 253, 260, 311, 319, 322, 327, 419, 456, 459, 519, 529fn UP Water Policy 1999 514fn, 515fn, 526fn UP Water Supply and Sewerage Act of 1975 198, 199 Uttarakhand Zamindari Abolition Act 1950 140 Vajpayee, Atal Bihari, Prime Minister 581, 582, 583, 585 Venezuela 161, 163 VIKSAT 580 Village watershed committees 207, 229, 583 Virtual water 589, 613 Wainganga–Godavari basin 370 WAPCOS 366 Water bottled water 350 nature, multi-dimensionality of water ix, xi, xii, 215–6, 225–9, 568, 606fn, 614 For all other water-related themes, see respective entries, e.g., allocation, augmentation, commodity, drinking water, governance, institutions, management, markets, ownership, property, pollution, pricing,

privatisation, rights, sharing, etc. See also Constitution of India and National Water Policy. Water law framework, diverse origins xi–xii, 511 Water law reform xiv, 99, 511–34, 556 et seq, 600, 606–8 Science and philosophy perspectives 535–62, 608 See also Irrigation, PIM, WUA, and National Water Act for India Water Manual Mamul Nama Vellore 480–1 Water (Prevention and Control of Pollution) Act 1974 103fn, 335, 337, 343, 345, 346, 462, 512fn, 570, 603, 611 regulatory authorities 352, 396, 513, 522, 532, 533, 595, 607, 613 Water (Prevention and Control of Pollution) Cess Act 125fn, 336, 337, 351, 619 Water Resources Projects. See Dams Watershed—definition 539–40 Watershed development 145, 193, 195, 200–6, 219, 224, 229, 246, 253, 460–3, 495–6, 531, 580, 583, 595 Watershed Districts Act, Minnesota, USA, 1955 201–2 Watershed Organisation Trust (WOTR) 170fn, 207, 580 Water Users’ Association, WUA 145–7, 194, 229 et seq, 515, 520 et seq and women 282 and PRIs 522, 526, 531, 583 West Bengal Groundwater Resources (Management, Control and Regulation) Act, 2005 5fn Wildlife 376 Wildlife (Protection) Act (1972) 336, 367, 371, 411fn Clearances under 371 et seq Women, water and xiii, 275–305, 604, 619 Women and the Constitution of India 275, 287–8, 291 Women, Beijing Fourth World Conference on, 1995 299

Subject Index 665 Women’s Environment and Development Organization (WEDO) 298, 300fn World Bank 160, 164fn, 243, 260, 277, 420, 459, 519, 527, 529, 530fn, 583 WB R&R Policy 407 WB water sector reforms 459, 529 World Commission on Dams 158, 213fn, 359, 368fn, 417, 428–9, 612 World Development Report 2006 290

World Health Organization (WHO) 260, 270 World Water Council 613 World Water Development Report 98 World Water Forum, I to V 297,527, 613 Yamuna River 22, 117fn, 331–2 Y. pollution case 85 Yangtze River 36

Case Index 1957 MPC 588: 1957 MPLJ 665: AIR 1958 Madh Pra 153. 444fn A. Venkata Reddy v. State (1953) CriLJ 520 (Mad) 10 and fn Abbasali Hasanali Peerjade v. Shaikh Munir Shaikh Dagu AIR 1953 Bom. 305. 109fn Acton v. Blundell 12 M. & W. 324 [1843] cited in F. Peacock. 445fn Ah Li v. U San Baw AIR 1939 Ran. 446. 112fn AIR 1978 Orissa 211: (1978) 46 Cut LT 52: ILR (1978) 1 Cut 577: (1978) 1 Cut WR 348 (DB). 444fn Annapurnabai Gopal v. Govt. of Bombay AIR 1946, Bom. 204. 105fn A.P. Pollution Control Board v. Prof. M.V. Nayadu I&II (1999) 2 SCC 718, (2001) 2 SCC 62. 26fn, 104fn, 402fn Arizona v. California (1963), 376 US 340 = 11 L Ed. 2d 757 (1964). 41fn Arundhati Roy case, AIR 2002 SC 1375. 75 and fn Athirappally Grama Panchayat v. Union of India and Ors. W. P. (C) 9542, 11254 and 260763 of 2005. 366fn Athirappally Grama Panchayat v. Union of India, judgement of the Kerala High Court dated 23 March 2006 in W. P. (C) Nos. 9542, 11254 and 260763/2005. 405fn Attakoya Thangal v. Union of India 1990 (1) K.L.T. 580. 443 B.D Sharma v. Union of India 1992 Supp (3) SCC p. 93 at p. 94 para 2. 71 and fn, 75, 408fn Babaji Ramaling Gurav v. Appa Vithavja Sutar AIR 1924 Bom. 154. 115fn

Baldev Singh v. State of H.P. 2006 (3) Shim LC 135. 405 and fn Bela Singh v. Bali Ram AIR 1923 Lah. 257, 258. 112fn Bheemagiri Bhaskar v. Revenue Divisional Officer, Bhongir AIR 2001 AP 492, 497. 117fn Cauvery Water Disputes Tribunal, In re: 19fn, 25 Centre for Social Justice v. Union of India, AIR 2001 Guj 71. 404fn Chalakudy Puzha Samrakshna Samithy ‘Chaithanya’ v. State of Kerala, judgement of the Kerala High Court dated 17 October 2001 in O.P. 3581/2001. 404fn Chasemore v. Richards 7 H. C. L. Cas 349 [1860]. 445fn C. Kenchappa v. State of Karnataka 2000 (4) KAR LJ 1. 404fn C.S. Kappuraj v. State of Tamil Nadu, Writ Petition (C) No. 33493 of 2003 order dated 19 April 2004 of the Madras High Court. 394 and fn Collector of Nasik v. Shamjim Indian Law Reports (1883) 7 Bombay 209. 139fn Collector of Panchmahals v. Desai Keshavlal Panalal AIR 1969 Guj. 276. 103fn C.N. Marudhanayagam Pillai v. Secretary of State for India M.L.J. 939: 176. 484 C.V. Muthuvelas Velappan v. K.V. Narayanan Nair AIR 1964 Ker. 252. 110fn Connecticut v. Massachusetts 282 US 660, 670 (1931) 46 and fn C. Sankareswaran & R. Arunagiri v. The Commissioner, Land Ceiling and Land Reforms in the High Court of Madras

Case Index 667 (Madurai Bench) W.P. (MD) Nos. 3536 of 2005 & 943 of 2006. 130fn CWDT Reference: Re: Cauvery Water Disputes Tribunal AIR 1992 SC p. 522. 68 and fn D.L.F. Universal Ltd. v. Prof. Lakshmi Sagar (1998) 7 SCC 1. 103fn Debi Pershad Singh v. Joynath Singh I.L.R. 24, Cal. 865, 874. 109fn Dehradun Quarrying case 443 Delhi Water Supply & Sewage Disposal Undertaking and Another v. State of Haryana (1996) 2 SCC 572. 117 and fn, 259 and fn Dr. K. Anantha Bhat v. K.M. Ganapathy Bhatta AIR 1981 Ker. 102. 110fn Duraiswamy Udayar v. Venkatachala Reddiar AIR 1960 Mad. 385. 113fn Emani Lakshminarasu Avadhanulu v. Secy. of State AIR 1919 Mad. 1152. 105 and fn Embrey and Another v. Owen 6 EX.353 and The Magistrates of Linlithgow v. Elphinstone, 3 Kames’ Division, p. 331, cited in Embrey v. Owen 361, 362. 104fn Emperor v. Nama Rama (1904) VI Bom LR 52. 10fn First SYL Canal case: State of Haryana v. State of Punjab AIR 2002 SC 685 para 11, page 697. 65fn First SYL Canal case: State of Haryana v. State of Punjab AIR 2002 SC 685 p. 699 para 14. 81 et seq Fischer v. Secretary of State. 6fn, 136 Forum for a Better Hyderabad (Confederation of Voluntary Organizations of Hyderabad) v. Govt. of A.P. 2001 (4) ALT 275. 130fn Forum for a Better Hyderabad (Confederation of Voluntary Organizations of Hyderabad) v. Government of A.P. 2004 (1) ALT 500. 403fn Frazier v. Brown 1861. 551 Gandhi Sahitya Sangh Trust v. Union of India, decided by the Supreme Court

on 26 October 2004 by a 2-judge bench. 27fn Gandhi Sahitya Sangh v. Union of India and Ors (2003) 9 SCC 356, 3-judge Bench. 27fn, 29 Harihar Mahapatra v. Hari Otha AIR 1950 Ori. 257. 108fn Hinch Lal Tiwari v. Kamala Devi and other (AIR 2001) 493 Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat 2005 (2) KLT 554. 130fn Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat Writ Appeal No. 2125 of 2003, W.A. No. 215 of 2004, W.A. 1962 of 2003 and W.A. No. 12600 of 2004, 7 April 2005. 517 and fn In Re: Networking of Rivers 2002 (8) SCALE 195; In Re: Networking of Rivers 2003 (1) SCALE 2. 126fn In the Matter of: Cauvery Water Disputes Tribunal 1993 Supp. (1) SCC 96 (II) 139. 99fn Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212. 104fn Indian Council for Enviro-Legal Action v. Union of India ILR 1997 KAR 2956. 403fn Intellectual Forums case (Intellectuals Forum, Tirupathi v. State of Andhra Pradesh) AIR 2006 SC 1350. 9 and fn Intellectuals Forum, Tirupati v. State of A.P. AIR 2006 SC 1350. 129fn J.R. Parashar, Advocate & Ors. v. Prashant Bhushan & Ors. AIR 2001 SC 3395. 74 and fn Javed v. State of Haryana (2003) 8 SCC 369. 121 and fn Judgement in the matter of Athirappally Grama Panchayat v. Union of India and Ors. W.P.(C) 9542, 11254 and 260763 of 2005. 385fn Kanpur Municipality’s case (1988) 1 SCC 471. 101fn

668 Water and the Laws in India Kansas v. Colorado 206 US 46 (1907) at pp. 97–98. 46 and fn, 48 Karjan Jalasay Yojana Assagrasth Sahkar Ane Sangharsh Samiti v. State of Gujarat AIR 1987 SC 532. 407 and fn Karnataka Industrial Area Development Board v. C. Kenchappa (2006) 6 SCC 371. 404fn Kaw La v. Maung Ke (1916) 3 AIR LB. 90. 109fn Krishna Ayyar v. Venkatachala Mudali 7 M.H.C.R. 60. 139fn L. Krishnan v. State of Tamil Nadu AIR 2005, Mad. 311. 111fn Lachuma Goundan v. Pandiappan, 1950, M.L.J. 658. 485 Lachuma Goundan, son of Pachiappa Goundan v. Pandiyappan alias Annamalai Goundan AIR 1951 Mad. 679. 124fn M. & S.M. Railway Company v. Maharaja of Pithapuram AIR 1937 Mad 703. 10fn M. Kanna v. T. Chathu 1973 KLT 124. 108fn M.C. Mehta (II) v. Union of India (1988) 1 SCC 471. 103fn M.C. Mehta v. Kamal Nath (Span Motels) case (1997) 1 SCC 388, 389, 413. 9 and fn, 128 and fn, 129, 259 and fn, 587fn M.C. Mehta v. Union of India (1987) 4 SCC 463. 103fn M.C. Mehta v. Union of India (1988) 1 SCC 471. 103fn M.C. Mehta v. Union of India (1997) 11 SCC 312. 19fn M.C. Mehta v. Union of India. AIR 1988 SC 1115, 1126. 118 and fn M.P. Rambabu v. District Forest Officer. 130fn Madras v. Mohammad Ghani AIR 1959 Mad. 464. 139fn Mahankali Lakshmiah v. Karnam Narayanappa 34 M.L.J. 425 (1918). 123fn Maharaja of Pittapuram v. Province of Madras AIR 1909 Privy Council 3. 138fn

Mahomedans of Lonar v. Hindus of Lonar AIR 1945 Nag. 106. 114fn, 115 Malayam Patel Basavana Gowd v. Lakka Narayana Reddi AIR 1931 Mad. 284. 114fn, 124fn Manturabai v. Ithal Chiman AIR 1954 Nag. 103, 104. 115fn McCartney v. Londonderry and Lough Swilly Railway (1904) A.C. 301, 307. 107fn Medarametla Seshareddy v. Korrapati Gopala Reddy AIR 1987 AP 1. 123 and fn Mrs. Susetha v. State of Tamil Nadu AIR 2006, SC 2893. 111fn Mullaperiyar Environmental Protection Forum v. Union of India AIR 2006 SC 1428, 3 SCC 643. 27fn, 99fn, 403fn N. Arivudai Nambi v. State of Tamil Nadu AIR 1990 Mad 240. 11fn, 111fn N. Sankappa Shetty v. State of Karnataka ILR 1992 Kar. 2529. 124fn N.D. Jayal v. Union of India (2004) 9 SCC 362. 408fn Nagina Singh v. Malhi, AIR 1921 Lah. 286, 287. 105fn Narasimuhulu v. Bhadrayya AIR 1933, Mad. 10. 111fn Narmada Bachao Andolan (NBA) v. Union of India 2000 (10) SCC 664. 26fn, 35, 37fn, 117fn, 391fn, 402fn, 408fn National Audobon Society v. Superior Court of Alpine County, 33 Cal 3d 419 (Mono Lake case). 9 and fn, 547 Narmada Bachao Andolan v. Union of India & Ors) AIR 1999 SC 3345. 71 and fn NBA v. Union Case 27 AIR 2000 SC 3751.72 and fn Narmada Bachao Andolan v. Union of India & Ors. AIR 2005 SC p. 2994. 75 and fn Networking of Rivers In re: (2004) 11 SCC 358, (2004) 11 SCC 359, (2004) 11 SCC 360, (2004) 11 SCC 363. 22fn, 23fn Networking Rivers cases: Re: Networking of Rivers. ‘In (2002) PIL SCALE, 274 SC; Re: Networking of Rivers in (2003) PIL SCALE? SC; Re: Networking of

Case Index 669 Rivers.’ In (2003) 1 SCALE 2: SC; Re: Networking of Rivers. In (2004) SCALE: SC. 84–85 New Jersey v. New York, 283 US 336 (1931). 46 and fn Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180. 443 Order of the Kerala High Court in the matter of Ravi, S.P and Ors v. State of Kerala and Ors. O.P. No. 3581 of 2001. 385fn Orient Papers and Industries Ltd. v. Tahsildar-Cum-Irrigation Officer (1998) 7 SCC 303. 102fn Parambikulam A.P.O.A. Assn. v. State of Tamil Nadu (1999) 7 SCC 626. 124fn Parambikulam Aliyar Project Assn. v. State of Tamil Nadu, AIR 1999 SC 3092. 7 and 7fn Parbat Jetha Ahir v. State of Gujarat (2001) 4 GLR 2960. 124fn Pazha Karuppiah v. State of Tamil Nadu AIR 1997 Mad. 144, 155. 124fn Pernell v. City of Henderson 16, S.E.2d 449, 451, 220 N.C. 79. 101fn Perumatty Grama Panchayat v. State of Kerala 2004(1) KLT 731. 130fn Ponnuswamy v. The State of Tamil Nadu through the District Collector of Ramanathapuram District and the District Collector of Kamarajar District (2000) 4 MLJ 122. 122–3 and fn Raja Srinath Roy and Others v. Dinabandhu and Others AIR 1914 Privy Council 48. 138fn Rajah Tadakamalla Seetharamamchandra Rao v. Sree Rajah Kotagiri Stayanarayana Rao AIR 1940 Mad. 656. 110fn Ram Kripal Singh v. Hanuman Singh AIR 1921 Pat. 51, 52. 112fn Ramachandra v. Narayanasami I.L.R. (1893) 16 Mad. 333. 139fn Ramsewak Kazi v. Ramgir Choudhury, AIR 1954, Pat. 320. 105fn Ranganathan and another v. Union of India and others 6 SCC p. 26. 69 and fn

Ravi, S. P. and Ors v. State of Kerala and Ors. O.P. No. 3581 of 2001. 366fn Research Foundation for Science Technology and Natural Resource Policy v. Union of India (2007) 11 SCALE 75. 403fn Robert Fischer v. The Secy. of State for India in Council 2 I.C. 325, 332 (1909). 123fn Robert v. Secretary of State 2 Indian Cases 325 (1909). 139 and fn Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388. 22 and fn Rural Entitlement and Legal Support Centre, Patna v. The Government of Bihar, 5212 (1985) 318 Rural Litigation and Entitlement Kendra v. State of UP, WP 8209 & 8821 of 1983 (1985.03.12) 473 S. Kumarasamy Gounder v. The Government of Tamil Nadu, rep. by its secretary to Government, Municipal Administration and Water Supply Department Chennai 2000 (4) CTC 351. 128fn S.K. Garg v. Union of India AIR 1999 All. 41, 42. 117fn S.N. Ranade v. Union of India AIR 1964 SC 24. 104fn Sankaravadivelu Pillai v. Secy. of State for India in Council I.L.R. 28 (Mad.) 72, 74–76. 123fn Secretary of State v. Ambalavana Pandara Sannadhi AIR 1914 Mad 552. 11fn, 109fn Secretary of State v. Nageswara Iyer AIR (1936) Mad. 923 at p. 926. 123fn, 138 and fn, 484 Secretary of State v. Palaniyappa Pillai 41 Indian Cases 24 (1917).138 and fn Secretary of State v. Sannidhiraju Subbarayadu AIR 1932 PC 46, 49. 11fn, 102fn Secy. of State v. Kattari Nagayya Kama Rajendra Ramaswami Kamya Naicker Zamindar of Saptur AIR 1938 Mad. 180, 182. 108fn Secy. of State v. Kannepalli Jankiramayya AIR 1914 Mad. 534. 105 and fn Sethuramalinga Ayyar v. Ananda Padayachi . AIR 1934 Mad. 583, 585. 108fn

670 Water and the Laws in India Shanmugavel Goundar v. Venkitaswami Asari, AIR 1936 Mad 202. 10 and fn Special Reference No. 1 of 2001, In re: (2004) 2 SCC 489. 27fn Sree Rajah Venkatadri Appa Rao Bahadur Zamindar Garu v. Morivineni Seetharamayya AIR 1938 Mad. 816, 818. 110fn Sri Vuppalapati Suryanarayaneswara Jogi Jagannadharaju v. Rajah of Vizianagaram AIR 1937 Mad. 310, 311. 108fn State of Andhra Pradesh v. State of Karnataka AIR 2001 SC 1560. 77 and fn, 78, 79, 80 State of Bombay v. Laxman Sakharam Pimparkar (1960) 62 BOMLR 106. 107fn State of Haryana v. State of Punjab (2004) 12 SCC 673, para 77, 2-judge bench. 28fn State of Haryana v. State of Punjab I & II (2002) 2 SCC 507, (2004), 12 SCC 673. 99fn State of Karnataka v. State of Andhra Pradesh (2000) 9 SCC 572, 710. 51fn, 117fn, 131 State of Karnataka v. State of Andhra Pradesh AIR 2001 SC 1560. 8fn, 99fn State of Karnataka v. UOI 1977 (4) SCC 608 at page 648. 49fn State of Madras represented by the District Collector, Tirunelveli v. S.K.S.O. Muhammed Ghani Tharoganar AIR 1959 Mad. 464. 110fn State of Madras v. Krishnasawmi Ayyangar (1959), 2 Mad. L.J. 127. 111fn State of Maharashtra & Others v. B. Atmaram Sadashiv Dongarwar & Others (Madhya Pradesh Law Journal 1979, p. 1). 192 State of Tamil Nadu and Ors v. State of Karnataka and Ors, 1991 Supp (1) SCC 240. 25 and fn Subhash Kumar v. State of Bihar AIR 1991 SC 420 424. 117fn, 443

Subraya Bhatta v. Lingappa Gowda. AIR 1973 Kant. 171. 106 and fn T.N. Godavarman Thirumulkpad v. Union of India and Environmental Awareness Forum, Jammu and Kashmir v. State of Jammu and Kashmir (Godavarman case) 370 T.N. Godavarman Thirumulpad v. Union of India, AIR 1997 SC 1228; AIR 1998 SC 769. 411fn Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v. Union of India. (1990) 3 SCC 440. 29 and fn 99fn Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Sangam v. Union of India AIR 1990 SC 1316. 58 and fn, 66fn Tata Iron & Steel Co. Ltd. v. State of Bihar 2004 (3) BLJR 1948. 102fn, 123fn Tehri Bandh Virodhi Sangharsh Samiti v. State of U.P., (1992) Supp (1) SCC 44 and N.D. Jayal v. Union of India, (2004) 9 SCC 362. 403fn The Secretary of State for India v. The Rameshvaram Devasthanam (1934) 36 Bom. L.R. 539. 124fn The State of Bombay v. Laxman Sakharam Pimparkar AIR 1960 Bom. 409. 108fn TN v. Karnataka case SCR (2) 1991 502. 68 and fn Town of Purcellville v. Potts, 19 S.E.2d 700, 703, 179 Va.514, 141 A.L.R. 633. 101fn Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647. 104fn Waman Bapuji v. Changu Has Patil (1906), 8 Bom. L.R. 87. 109fn Wyoming v. Colorado, 259 US 419, 465 (1922). 46 and fn Yesu Sakharam Pujari v. Ladu Nana Savant Bhosale (1927) 29 Bom. L.R. 291. 112fn