Water Management – Law And Policy In India

If there is magic on this planet, it is contained in water. - LORAN EISELY, The Immense Journey, 1957


In any organized society, right to live, as meeting does not ensure a human being only the animal needs of men. It is secured only when he is assured of all facilities to develop him and is freed from restrictions, which inhibit his growth. All human rights are designed to achieve this subject. Right to live guarantee in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.

Air and water, the most precious gifts of the nature, are very essential not only to the mankind but flora and fauna also. All living creatures on the mother earth have a right to environment in order to survive them. According to section 2 (a) of the Environmental Protection Act, 1986 'Environment' includes (i) water, air and land (ii) the inter relationship which exists among and between, (a) water, air and land, and (b) human beings, other living creatures, plants, microorganisms and property.

There is an inseparable relationship between man and environment. It is, therefore, our bounden duty to protect our environment for the peaceful survival of the mankind as well as flora and fauna. In order to protect the environment and the ecology of man, a special strategy has been started since stock home conference on Human Environment, 1972. Since then Indian government has also taken several legislative and executive measures, in addition to the constitutional amendments to protect and preserve the environment. The judiciary has also played vital role for the environmental protection through its dynamic interpretation of Articles 21, 48A and 51 A (g) of the Indian Constitution. The Indian scenario with regards to the availability of water is a paradox.

The country accounts for 2.45 per cent of the total land area and 4 per cent of the water resources of the world. Nevertheless, water is a scarce national resource with demands on it increasing on account of a growing population of over one billion.

Since water is a scant resource, its sharing and distribution requires a regulatory framework, which is brought about through not only written laws but also traditional and customary practices. In terms of statutory development, irrigation laws constitute historically the most developed part of water law. Statutory water law also includes a number of pre- and post-independence enactments in various areas. These include laws on embankments, drinking water supply, irrigation, floods, water conservation, river water pollution, rehabilitation of evacuees and displaced persons, fisheries and ferries.

Article 21 of the Indian Constitution guarantees to all persons a fundamental right to life. As Supreme Court observed that right to life is not confined to mere animal existence but extends to the right to live with basic human dignity. A.P High Court observed that enjoyment of life and its attainments and fulfillment guaranteed by Article 21 of the constitution embraces the protection and reservation of the nature's gifts, without which life cannot be enjoyed. The court further observed that protection of environment is not only the duty of the citizens but is also the obligation of the state and all other state organs including the courts". The Supreme Court in while dealing with Article 21 of the Constitution has held that the need for a decent and civilized life includes the right to food, water and a decent environment.

The Supreme Court further observed:
"Water is a gift of nature. Human hand cannot be permitted to convert this bounty into a curse, an oppression. The primary use to which water is put being drinking, it would be mocking nature to force the people who live on the bank of a river to remain thirsty." The Supreme Court further observed that "drinking is the most beneficial use of water and this need is so paramount that it cannot be made subservient to any other use of water, like irrigation. So the right to use of water for domestic purpose would prevail over other needs."

In general, water law in India is largely state based. This is due to the constitutional scheme, which since the Government of India Act, 1935 has in principle given power to the states to legislate in this area. Thus, states have the exclusive power to regulate water supplies, irrigation and canals, drainage and embankments, water storage, hydropower and fisheries.

There are nevertheless restrictions with regard to the use of inter-state rivers. Further, the Union is entitled to legislate on certain issues. These include shipping and navigation on national waterways as well as powers to regulate the use of tidal and territorial waters. The Constitution also provides that the Union can legislate with regard to the adjudication of inter-state water disputes. While no substantive clauses could be adopted at the time of the adoption of the Constitution, a specific act, the Inter-State Water Disputes Act was adopted in 1956. This introduces a procedure for addressing disputes among states concerning inter-state rivers that have not been solved through negotiations.
A human rights dimension complements the existing legal framework concerning water.

While the Constitution does not specifically recognize a fundamental right to water, court decisions deem such a right to be implied in Article 21. Also, Article 39 (b) mandates that 'the State shall, in particular, 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.' Article 51-A (g) casts a fundamental duty on every citizen of India 'to protect and improve the natural environment including forests, lakes, rivers, wild life and to have compassion for living creatures.'

The right to water can be read as being implied in the recognition of the right to a clean environment. In Subhash Kumar v. State of Bihar, the Supreme Court recognized that the right to life 'includes the right of enjoyment of pollution free water and air for full enjoyment of life'. In the Sardar Sarovar case, the Supreme Court went further and directly derived the right to water from Article 21. It stated that 'water is the basic need for the survival of the human beings and is part of right of life and human rights as enshrined in Article 21 of the Constitution of India'. While the recognition of a fundamental right to water by the courts is unequivocal, its implementation through policies and acts is not as advanced.

Water is the most important of the elements of the nature. In State of Himachal Pradesh v. Umed Ram Sharia the Supreme Court has held that every person is entitled to life as enjoined in Article 21 of the Constitution, that he has also the right under Article 21 to his life and that right under Article 21 embraces not only physical existence of life but also the quality of life.

Under Section 17(1)(a) of the Water Act, the function of the State Board shall be to plan a comprehensive programme for the prevention, control and abatement of pollution of streams and wells in the State and secure the execution thereof. These provisions indicate the anxiety of the legislature to maintain the quality of water for which standards are required to be laid down. The above constitutional and statutory provisions clearly bring to fore the paramount duty of the State Government, Municipal and Panchayat authorities, the Area Development Authorities and other legal authorities, to protect and improve water-bodies as a part of environment and to ensure supply of safe water to the public. The State as the trustee of all natural resources meant for public use, including lakes and ponds, is under a legal duty to protect them. This obligation is of a positive nature requiring the State including the Area Development Authorities and the Local Bodies not only to shield the peoples' common heritage of lakes, ponds, reservoirs and streams, but to prevent them from becoming extinct and to rejuvenate and preserve them quantitatively by harvesting rainwater and qualitatively by prescribing and enforcing standards of their water.

There is ample legislation to arm these authorities with the power to preserve these natural resources and prevent their abuse. The duty of the State in this regard is clearly spelt out by the Apex Court in M.C. Mehta v. Kamal Nath , and that of every citizen to protect the natural environment including lakes in M. C. Mehta v. Union of India, The necessity to limit the construction activities in the close vicinity of the two lakes was recognized by the Supreme Court, as noted above. It is rather unfortunate that decades have passed with laws already governing the field being put to disuse by the apathy of the authorities to actively involve themselves in protection and preservation of water-bodies. The interim orders made in these petitions have, however, goaded them into some action and the final responses on behalf of the State Government, the Urban Development Authorities and the Municipal Corporation have raised a distinct ray of hope that may in near future glitter on the surface waters of the water-bodies that are promised to be reinforced and preserved.

In addition to all the laws, rules and regulation that make up water law, there is a substantial body of additional rules and regulations at the local level. These include the multiplicity of written or unwritten arrangements that regulate access to and use of water for domestic purposes or irrigation. An array of different rules governs, for instance, admittance to accessible sources of drinking water. They run in many cases along caste lines even though other rules of access also exist. With regard to irrigation water, all human structures such as tanks and check dams include a system of allocation. Rules of access and control have often evolved over long periods of time but are often unwritten or not formally recognised in the legal system. As a result, they often run in parallel to 'formal' water rules and regulations. Another consequence of the lack of visibility of local level arrangements is that they can easily be displaced or extinguished by new laws that may fail to even acknowledge their existence.

The universal depiction is that of a multiplicity of principles and rules, a multiplicity of instruments and the lack of an overall framework. Though we have started law making for utilization of water resources since 1873, even today there exists no competent statutory authority for formulating the water policy. More than 90% of the laws enacted for the utilization of water resources are state level legislation. At the time of enactment of these laws the environmental factor was not at all serious concern. Utilization of water was a priority area rather than conservation of water. Moreover the sharing of river waters in India between the States that constitute the Republic has given rise to long drawn legal battles. Among the early disputes regarding the sharing of waters was the one between the States of Gujarat, Madhya Pradesh, Maharashtra and Rajasthan over the sharing of the waters of the river Narmada.

So in this new age of globalisation it had become essential to have a fresh look at our water policy, taking into account of the new developments. At present, though the Centre formulates the water policy it has no constitutional mandate for implementing it, since water is a subject included in the State List. While law has predominantly tuned to the integrated approach, in practice adherence to its spirit has not been made in the sphere of inter-state river disputes. Lack of coordination between various bodies and levels of government has also been witnessed during the functioning of pollution control boards.

In P.R. Subhash Chandran v. Government of A.P , the A.P. High court held that "under the constitution, the role of the State to provide every citizen with adequate clean drinking water and to protect water from getting polluted is not only a fundamental directive principle in the governance of the state but is also a penumbral right under Article 21 of the constitution of India".

Generally speaking, although there is definite trend towards cooperative federalism and integrated approach, in view of the mammoth dimension of the problem, its network should be widened and its full potentiality should be tapped. Many countries such as Brazil and South Africa have adopted water laws that seek to provide a comprehensive regulatory answer to the problems identified. While the adoption of a comprehensive federal water legislation is not a precondition to ensure that water law achieves its social, human rights and environmental goals, this would constitute an appropriate starting point for ensuring proper management and conservation of our water resources.

Using the provisions of Art 252 and Art 263 can bring about the legislative competency for such an enactment. The parliament can also empower themselves by virtue of Article 249 to bring about an effective Central Statutory Regulation in order to effectively manage and conserve India's water resource. Thus, India can learn from the experiences of countries like Australia where the Department of Environment and Conservation, a Central body has been effective in forming policies and the guidelines for their implementation for the whole nation.

There is no meaning to the right to live without right to water. If right to water is not properly implemented the other fundamental rights such as right to health. Right to shelter, right to air, right to good environment, etc; would also become futile. In this connection we must remember the Gandhian philosophy emphasizing that: - Nature has provided everything for our need but not for greed"

End-notes:
# Krishan Lal v. Nirmal Kumar (2009) 154 PLR 285
#T. Damodar Rao VS. The Special officer, Municipal Corporation, Hyderabad (AIR 1987, AP 171)
# Chameli Singh v. State of U.P.
# Delhi Water Supply and Sewage Disposal Undertaking and Anr. v. State of Haryana and Ors
# Schedule 7, List 2, Entries 17 and 21, Constitution of India.
# Schedule 7, List 1, Entry 56, Constitution of India.
# Schedule 7, List 1, Entries 24, 25 and 57, Constitution of India.
# Article 262, Constitution of India.
# Subhash Kumar v. State of Bihar, AIR 1991 SC 420.
# Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.
# [1986] 1 SCR 251
# Reported in 1997 (1) SCC 388
# Reported in 1997 (3) SCC 715
# (2001 (5) ALD 771 (DB)

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