WATER LAWS AND POLICIES IN INDIA: A CRITIQUE ON EXISTING FRAMEWORK By- Drishti Tiwari
WATER LAWS AND POLICIES IN INDIA: A
CRITIQUE ON EXISTING FRAMEWORK
Authored By- Drishti Tiwari
Llm Candidate (Environment & Natural Resources Law)
At
Teri School Of Advanced Studies, New Delhi
INTRODUCTION
Water is the most basic necessity for human life, it is the very
factor survival for a human is based upon. it is necessary that water is
preserved, and utilized in the most optimal manner possible. United
Nations also places water in the category of basic human rights, which gives
the importance of water a legal dimension, and given the scarcity of water in
the country and across the globe it can be rightly pointed out that water needs
protection as well as preservation and to place an obligation for proper
utilization of water upon the state and its citizens legal perspective is
required. However, when we talk about water laws it should be noted that water
laws is a mixture of various components such as environmental aspect, social
aspect, economic aspects, and agricultural aspects.
Water is nowhere specifically defined
but what constitutes water bodies has been provided in the section 2(j) as
“stream” includes— (i) river; (ii) water course (whether flowing or for the
time being dry); (iii) inland water (whether natural or artificial); (iv)
sub-terranean waters; (v) sea or tidal waters to such extent or, as the case
may be, to such point as the State Government may, by notification in the
Official Gazette, specify in this behalf.[1] Water
is a state subject and the regulation of water is taken up by the individual
states whereas the central government has very little say in interstate water
transactions and regulations. The scarcity of water has been a point of concern.
It is believed that governmental planning for the use of water resources should
be done in order to accomplish the greatest good and obtain the maximum
advantages from the available sources of water.
National policy for the development
and utilisation of India's water resources should be developed by an apex
authority. The management of water is essential for the socioeconomic growth of
the nation since it is a valuable resource. In addition to creating policies
and procedures to guarantee effective and sustainable use of water resources,
an apex organisation would be in charge of coordinating the work of various
government departments and agencies involved in water resource management. Such
a committee would also be in charge of analysing and monitoring how these
regulations are being implemented, as well as taking any required remedial
action. A climate should be created in which national water plans are prepared
keeping in view the national perspective as well as State and regional needs.
In that context, the Council welcomed the proposal of the Government of India for
setting up of National Water Resources Council.[2] The
right to get clean water is universally acknowledged. “The human right to
water is indispensable for leading a life in human dignity” according to
the United Nations General Assembly. The right to an appropriate standard of
life, which is guaranteed by various international human rights treaties,
notably the ICESCR, is strongly related to the human right to water. By
guaranteeing that everyone has access to sufficient and clean water,
governments are required to respect, safeguard, and realise the human right to
water.
EVOLUTION OF WATER LAWS
AND POLICIES IN INDIA
The evolution of water laws in India
has been a gradual process, with various laws and policies being enacted at
different times to address specific issues related to water resource
management. The major reform in the water regulations began with the colonial
era. Three main influences resulted from colonisation: the shift from a
resource-gathering and food-producing economy to a commodity-oriented economy;
a modification of lengthy social structures and traditions as social and
community relations and social cohesion declined; and the growth of the market
and the emphasis placed on wealth.[3]
The fundamental component of British
colonial water law was the gradual introduction of common law concepts, which
focused on landowners' access rights while regulating ownership over and rights
to water. Riparian rights give a landowner the authority to take a fair share
of a watercourse's flow in the case of surface waters. Landowners enjoyed
almost unrestricted access to groundwater beneath their property. The Indian
Easements Act (1882), codified common law principles, changed throughout
time.[4] It
also provided for the regulation of water rights and the resolution of disputes
related to water.
In 1892, the Indian Irrigation Act was enacted, which aimed to regulate
the use of water for irrigation and to provide for the construction and
maintenance of irrigation works. attempted to regulate how much water was used
for irrigation and to provide provisions for the development and management of
irrigation systems and to make it easier to build, maintain, and develop
irrigation systems.[5] The Act
also established “riparian rights” a system of water rights to control the use
of water for irrigation, and a system of “water rates” that users of irrigation
water would be required to pay. It gave the government the authority to manage
the supply and distribution of water for irrigation, including the authority to
build dams, canals, and other water flow-controlling infrastructure. Later
statutes and laws have abolished the Act and replaced it.[6]
In 1974, the Water (Prevention and
Control of Pollution) Act was passed, which aimed to protect water bodies from pollution and to
provide for the establishment of a Central Pollution Control Board. The Water
(Prevention and Control of Pollution) Act, 1974 is an Indian law that aims to
prevent and control water pollution. The Act was enacted by the Indian
Parliament to provide for the prevention, control and abatement of water
pollution, and for the maintenance or restoration of wholesomeness of water.[7]
The Act establishes the Central
Pollution Control Board (CPCB) and State Pollution Control Boards (SPCBs) as
the main regulatory bodies for implementing the provisions of the Act. The CPCB
is responsible for laying down standards for the quality of water and for
monitoring the compliance of these standards by industries and other polluters.
The SPCBs are responsible for enforcing the provisions of the Act within their
respective states.[8] The Act also
provides for the establishment of monitoring and analysis of water quality, the
identification of polluted areas, the regulation of discharge of pollutants
into water bodies and the regulation of the disposal of sewage and sullage. The
Act also provides for the establishment of monitoring and analysis of water
quality, the identification of polluted areas, the regulation of discharge of
pollutants into water bodies and the regulation of the disposal of sewage and
sullage. [9] The
Act also empowers the central and state government to take necessary steps to
prevent and control water pollution, including the power to prohibit or
restrict the discharge of pollutants into any water body or to close any
polluting industry or process. The Act has been amended several times since its
enactment in 1974, to reflect the changing needs and priorities of the country
in terms of water resource management and to address specific issues related to
water pollution.[10]
National Water Policies
The National Water Policy was
created in 1987 with the intention of establishing a framework for the
coordinated management and development of the nation's water resources. In
1987, India's National Water Policy (NWP) was originally created, and it was
later updated in 2002 and 2012. The National Water Policy lays out the
fundamental principles and rules for the development and management of water
resources in the nation and offers a comprehensive approach to water resource
management.[11]
The main objectives of the National
Water Policy are:
· To ensure the availability of water
in adequate quantity and quality for various sectors including domestic,
agriculture, industry and environment.
· To minimize wastage, conservation and
augmentation of water resources through integrated water resources development
and management.
· To provide for a framework for the
equitable distribution of water among different sectors and regions.
· To promote the participation of local
communities, users and Panchayats in water resources development and
management.
· To strengthen the institutional
mechanism for the implementation of the water resources development and
management programme.
· To promote the efficient use of water
in irrigation and to encourage the use of water-saving technologies.
· To encourage the use of treated waste
water for various purposes.
· To ensure the water supply and
sanitation needs of the rural and urban areas.
· To protect and conserve the water
resources and aquatic ecosystems.
The National Water Policy highlights
the importance of an integrated and comprehensive approach to the development
and management of water resources, with the active involvement of regional
communities, users, and Panchayats. Additionally, it emphasises the necessity
of conserving and enhancing water resources as well as the preservation and
protection of aquatic ecosystems.[12]
In 2002, the National Water Policy was formulated, which aimed to
provide a comprehensive framework for the development and management of water
resources in the country. The 2002 National Water Policy expands on the ideas
outlined in the prior policy and offers a thorough framework for the integrated
and sustainable development and management of water resources in India, with a
focus on equitable distribution, conservation, and efficient use of water.
Local communities are actively involved in this process.[13]
Some of the key features of the 2002
National Water Policy are:
· Water is recognized as an economic
good and pricing of water is encouraged to reflect its economic value and to
promote conservation and efficient use.
· Integrated Water Resource Management
(IWRM) is adopted as the overarching principle for the development and
management of water resources in the country.
· The policy lays emphasis on the need
for decentralized planning, management and participation of local communities,
users and Panchayats in water resources development and management.
· The policy recognizes the
inter-linkages between water, land and related natural resources and advocates
for their integrated management.
· The policy stresses on the need for
sustainable water use, conservation and augmentation of water resources and
protection and conservation of aquatic ecosystems.
· The policy aims to ensure an
equitable distribution of water among different sectors and regions and to
provide for the basic water needs of all citizens.
· The policy promotes the use of
treated waste water for various purposes and encourages the use of water-saving
technologies.
· The policy aims to strengthen the
institutional mechanism for the implementation of water resources development
and management programs.
· The policy also aims to provide for
the water supply and sanitation needs of the rural and urban areas.
In 2012, the updated National Water Policy
was introduced,
which aimed to provide for the integrated development and management of water
resources in the country. India must balance dealing with the global threat
posed by climate change with maintaining its rapid economic expansion. India
needs a national plan to, first, adapt to climate change and, second, improve
the ecological sustainability of India's growth route, while also cooperating with
the international community to address this danger[14].
In order to address these issues, the Government of India created the National
Action Plan on Climate Change (NAPCC). The NAPCC laid out the guiding
principles and identified the strategy to be used to address the challenges of
the impact of climate change through eight National Missions, one of which was
the National Water Mission.[15]
· The policy recognizes the integrated
and inter-sectoral nature of water management and emphasizes the need for a basin-based
approach to water resources management.
· The policy promotes the use of
traditional water harvesting and management systems, and encourages the active
participation of local communities and Panchayats in the management of water
resources.
· The policy promotes water
conservation, including the recharging of aquifers, and efficient use of water
through pricing and other economic instruments.
· The policy recognizes the need for
equitable distribution of water among different sectors and regions, and aims
to ensure the basic water needs of all citizens.
· The policy stresses the importance of
protecting and conserving water resources, including wetlands and other aquatic
ecosystems.
· The policy aims to improve the
availability and quality of water for irrigation, and promote the use of modern
irrigation technologies and practices.
· The policy recognizes the importance
of water for the growth of the agriculture sector, and aims to improve the
efficiency of irrigation systems and promote the use of rainwater harvesting
and other water-saving techniques.
· The policy also aims to ensure the
water supply and sanitation needs of the rural and urban areas, and promote the
use of treated wastewater for various purposes.
ROLE OF JUDICIARY IN WATER MANAGEMENT
The Indian Easements Act of 1882, the
Indian Limitation Act of 1963, and the Indian Water (Prevention and Control of
Pollution) Act of 1974 are the main statutes that govern water law in India.
Water pollution is governed in part by the 1977 Water (Prevention and Control
of Pollution) Cess Act. Additionally, the Directive Principles of State Policy
and the Fundamental Rights of India's Constitution also contain clauses
relating to water. According to one interpretation of Article 21, everyone has
the right to obtain clean, drinkable water. In India, there have been a number
of significant court issues involving water legislation. The Supreme Court of
India in the case of “Common Cause v Union of India[16]
held that the right to life under Article 21 of the Constitution of India
includes the right to access to clean and potable water.
In 2017, the Supreme Court in the Cauvery
River dispute case directed the central government to constitute a Cauvery
Management Board to manage the water distribution of River Cauvery among the
states of Tamil Nadu, Karnataka, Kerala, and Puducherry.
Jurisdiction of Supreme court over Water
Disputes
Krishna Water Dispute
In State of A.P. v. State
of Karnataka[17] ,
respondents raised the objection regarding the jurisdiction of the Supreme
Court, it was held that the court is assessing whether the tribunal's award is
legal rather than examining into the water issue. Regarding the building of the
Almatti dam and the increasing of the height, the court stated that the
tribunal's decision is clear and that parties may contact the tribunal for any
additional clarifications since it has not been disbanded. The Supreme Court
instructed the parties to make an appeal to the tribunal since it can interpret
it but cannot decide the case. However, there is no obstacle to the Supreme
Court's jurisdiction over the aforementioned matter.[18]
Cauvery Water Dispute
The claims are disputed by Tamil Nadu based on two pre-Independent
India treaties between the Madras Presidency and the former Kingdom of Mysore.[19]
The Cauvery Water Dispute Tribunal was constituted under the Inter-State Water
Disputes Act, 1956.[20]
The dispute of establishing a water dispute tribunal came in the T.N.
Cauvery Case[21]. In
accordance with Section 3 of the Inter-State Water Disputes Act, 1956, the
petitioner requested directions from the Supreme Court by filing a writ
petition under Article 32 to establish a water dispute tribunal for the
administration of the Cauvery river. Plaintiffs also requested that the State
of Karnataka should stop building dams and reservoirs over the aforementioned
river or any of its tributaries.[22]
The State of Karnataka and the Union of India opposed the jurisdiction of the
Court on the basis of Section 11 of the Act[23].
The Supreme Court provided states with time to reach a negotiated solution.
According to Section 4[24]
of the Act, the Central Government must establish a Tribunal for the
adjudication of the issue if it believes that the water dispute cannot be
resolved by dialogue in Section 3[25].
The Supreme Court ruled that the Central Government must comply with its legal
duties and publish a notice in the official Gazette announcing the formation of
a suitable tribunal for the resolution of the Water Dispute within a month.[26]
EXISTING LEGAL FRAMEWORK
Compared to international water law,
national water law is more advanced. India does not, however, have a
comprehensive system to control freshwater in all of its forms. The
cohabitation of numerous various concepts, norms, and acts established over
many decades characterises the current water legal system in India. These
include common law concepts, colonial-era irrigation laws, more contemporary
water quality control, and the legal acknowledgement of a human right to water.
Because there is no overarching national law, various state and central legal
actions and other principles may not always agree and may even be at odds in
some circumstances.[27]
India lacks a comprehensive system to control the diverse aspects of water.
Currently, there are several legislative rules, common law doctrines, and court
rulings that comprise India's water law. This variety of methods has
occasionally shown to be incompatible.[28]
According to Article 21 of the Indian
Constitution, the right to drinking water and clean water are a part of the
right to life. [29]
This has been made possible by the Supreme Court's liberal and active
interpretation of the fundamental right to life in several instances that have
come before them. Courts have increasingly ruled on the most fundamental issues
of access to clean water and the right to clean water as a fundamental right
after initially discussing the right to water in connection to pollution.[30]
Water control at the global level,
initially, was only focused on navigating global channels. It has advanced to
account for issues with the high seas exchange. The water legislation in India
is divided into several sections which include federal and state
laws, as well as international contracts. Additionally, it includes a variety
of less formal laws, regulations, and policies regarding water and water usage.[31]
A number of pre- and
post-independence enactments in many fields are also included in statutory
water law.[32] Laws
have also aided in the prevention of water pollution, conservation, the
availability of clean water, fisheries, and other issues. Water legislation in
India is mostly depending on the state. The states have been granted the
authority to enact legislation in this field and control the provision of
water, irrigation, drainage, storage, etc. since the Government of India Act,
1935.[33]
Shortcomings with the Existing Legal
Framework for Water in India
There are several drawbacks in the existing
water laws in India-
· Lack of coordination and integration
between different laws and acts: The existing water laws in India are often fragmented and
lack coordination and integration, making it difficult to implement a
comprehensive approach to water management. Despite the presence of several
laws and acts, implementation and enforcement of water laws in India remains
weak due to a lack of political will and inadequate resources.
· Limited applicability to ground water: Most of the existing water laws in
India primarily focus on surface water and do not adequately address the
management and regulation of ground water.
· Insufficient participation of local
communities and users: The existing water laws in India do not adequately provide for the
participation of local communities and users in the management and regulation
of water resources.
· Lack of efficient dispute resolution
mechanism: The
existing legal framework for water in India lacks an efficient dispute
resolution mechanism, leading to prolonged disputes and delays in the
resolution of water-related conflicts.
· Overlap in jurisdiction and lack of
clear responsibilities: The existing water laws in India often have overlapping jurisdiction,
leading to confusion and lack of clear responsibilities among different
agencies and departments.
These drawbacks in the existing water
laws in India highlight the need for a comprehensive and integrated approach to
water management and the need for proper implementation and enforcement of
existing laws to ensure sustainable and equitable use of water resources in the
country.
CONCLUSION
India requires a comprehensive legal
framework to manage its water resources because it is a critical resource for
the socioeconomic growth of the nation. A thorough legislative framework would
offer a distinct and uniform set of guidelines for the management and
development of water resources, as well as aid in ensuring their effective and
long-term usage. A detailed framework will aid in addressing the myriad issues
India has with its water resources, such as water scarcity, water pollution,
and legal conflicts. A thorough framework would offer a precise and uniform set
of guidelines for dealing with these issues and settling conflicts, as well as
aid to guarantee that the interests of all parties are safeguarded.
Additionally, a comprehensive
legislative framework would support the equitable and open management of water
resources with the full involvement of all parties, including the government,
local communities, and the corporate sector. This would make it easier to
guarantee that water resources are managed sustainably and that everyone enjoys
the advantages of water resource management. A specific legal framework for
water management in India is necessary for the socioeconomic development of the
nation because it would establish a set of rules and regulations for the
management and development of water resources, assist in addressing the various
problems India faces with regard to its water resources, and guarantee that water
resources are managed fairly and openly.
National policy for the development
and utilisation of India's water resources should be developed by an apex
authority. The management of water is essential for the socioeconomic growth of
the nation since it is a precious resource. In addition to creating policies
and procedures to guarantee effective and sustainable use of water resources,
an apex organisation would be in charge of coordinating the work of various
government departments and agencies involved in water resource management. Such
a committee would also be in charge of analysing and monitoring how these
regulations are being implemented, as well as taking any required remedial
action.
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[3] Gadgil, M., & Guha, R. (1992).
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[4] Philippe Cullet & Joyeeta
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R. Iyer, Water and the Laws in
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[10] Masood Ahmed & Eduardo Araral, Water
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[11] nwp-lectnote6.pdf,
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[12] India_Water_Compiled.pdf,
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(last visited Jan 11, 2023).
[13] Philippe
Cullet & Joyeeta Gupta, India: Evolution of Water Law and Policy, in
The Evolution of the Law and Politics of
Water 157 (Joseph W. Dellapenna & Joyeeta Gupta eds., 2009),
http://link.springer.com/10.1007/978-1-4020-9867-3_10 (last visited Jan 12,
2023).
[14] Eduardo Araral & Shivani Ratra,
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administration, 18 Water Policy
14 (2016).
[16] Appeal (civil) 3988-3989 of 2001
[18]
Water
Disputes in India: Constitutional Mechanism and Judicial Control of Disputes on
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(last visited Jan 12, 2023).
[19]T.N. Cauvery
Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu
Sangam v. Union of India, (1990) 3 SCC 440 : AIR 1990 SC 1316.
[21]
T.N.
Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam
v. Union
of India (1990) 3 SCC 440 : AIR 1990 SC 1316.
[22]
Girish, Supra note 9.
[24] Id.
[25] Id.
[26] Girish, Supra note 9
[29] Chameli Singh v. State of UP(1996) 2
SCC 549: AIR 1996 SC 1051
[30] Wasim Ahmed Khan v. Govt. of AP,
2002 (5) ALT 526 (D.B.)
[31] Water laws in India - Indian Law
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12, 2023).