By Shashank Shekhar Shukla, Banaras Hindu University, Uttar Pradesh.
“Water is the most critical resource issue of our lifetime and our children’s lifetime. The health of our waters is the principal measure of how we live on the land.”
Our Constitution contains several provisions regarding water. Water is a State subject covered under the seventh schedule of our Constitution. Article 51A(g) provides that it will be a fundamental duty of every Indian citizen to protect and improve the natural environment including lakes and rivers. Article 39(b) of the Constitution casts a duty on the State to direct its policy towards ensuring that the “ownership and control of the material resources of the community are so distributed as best to subserve the common good”. Article 47 provides that improvement in public health will be the duty of the State. Our Supreme Court has declared the right to access to clean water as part of the fundamental rights under Article 21.
Even while the Supreme Court has made clear in several cases that there is a fundamental right to water, such a right is not expressly mentioned in the Constitution of India. However, in 2002, the National Commission to Review the Working of the Constitution (NCRWC), recommended in its report that a new Article 30D should be inserted in the Constitution according to which “Every person shall have the right to safe drinking water”.
The Water (Prevention and Control of Pollution) Act, 1974, was enacted to maintain and restore the wholesomeness of water and to prevent and control water pollution. Since water is a State subject under the seventh schedule, the central government had to take the path of Article 252, under which the legislatures of 12 States gave their consent to the Union to formulate a law on this subject. This law was made after the commencement of the United Nations Conference on the Human Environment organized in Stockholm in 1972. The Water Act prohibits the release of effluents into water bodies beyond certain standards and provides for penalties in case of non- compliance. It also provides for the establishment of Central and State pollution control boards, i.e., CPCB and SPCBs. The Act was amended in 1988 to revise it per the provisions of the Environment Protection Act, 1986.
Water Act makes rigorous provisions regarding the control and prevention of water pollution and consists of provisions to set standards for water bodies or streams. The stream includes watercourses, inland water, subterranean water, sea, tidal water, and rivers. This Act, which is considered a landmark in the history of environmental jurisprudence in our country, however, does not talk about standards for drinking water quality, and irrigation.
Water, although a part of the State list, is an increasingly crucial national concern for several reasons. The requirement of a national consensus on water sharing has been highlighted by the prevalent Inter-State Conflicts. Such conflicts must be resolved by guiding principles that have been accepted at the national level. Water resources are limited and are exploited for a variety of reasons. With rapid urbanization and industrial development, pressure on water resources is increasingly mounting. Water resources are in jeopardy due to the discharge of pollutants and sewage water. Also, there are long-term economic, social and ecological implications of efforts to increase the availability of water.
There is a lack of clearly defined criteria for determining the entitlements of different stakeholders to the common resources in a river basin straddling more than one State. Central legislation does not specify the principles for determining the shares of riparian States. The Harmon Principle and the Helsinki-Dublin Rules are the two principles that are advocated globally as the guiding principle for sharing water among different regions. Harmon principle recognizes the right of a State to use the water which flows through it while the latter rules are based on the optimum utilization of any basin’s resources for the maximum collective benefit of all the dwellers. In India, these principles have not been formally recognized even in respect of Inter-State rivers although tribunals tend to use a combination of these two principles. Vesting of eminent domain in the State without providing for certain limits to its discretionary power leaves plenty of scope for arbitrariness. The danger is hiked when all the functions regarding management, regulation, grievance redressal, and dispute resolution are handled by the executive.
Many States have enacted laws on water-related issues. These can be entirely different in their perception and approach. Different States develop and work on various projects and schemes. They also have distinct water policies and action plans regarding water-related issues. Different State Governments adopt divergent positions on the rights of other States over the waters of river basins that straddle multiple States. Legal differences render the resolution of inter-State water sharing conflicts even more difficult. Some differences in laws and policies may be unavoidable and acceptable, but they are required to be within plausible limits determined by a broad national consensus based on certain guiding principles. A national statement of the basic principles that should govern such cases is the need of the hour.
The idea of a National Water Act is not new or unprecedented. Several countries have national legislation on water. The EU Water Framework Directive took it one step further. This directive puts European Union Member States under a duty to achieve the good qualitative and quantitative status for all their water bodies, including marine waters up to one nautical mile from the shore. Its aims were to be achieved by 2015; the time limit has now been extended to 2027. Although it failed to achieve its objectives within the initially fixed period, it does provide us with a guiding principle. South African Laws now recognise the ‘right to water’. According to their Public Trust Doctrine, the State is the custodian of natural resources of the country including water, and holds them in public trust. They discontinued any association with their old private and riparian rights. The nature and characteristics of the Indian National Water Act will have to be guided by the provisions of the Indian Constitution and the specific circumstances prevailing in India.
To address the burgeoning issues being faced by our country, the following measures could be deliberated on:
- The new and updated Water Act needs to be applicable all over India. The present Act was passed using Article 252 of the Constitution, under which it was made applicable only on those States which would adopt it. Although all the States have approved the implementation of the Water Act as enacted in 1974, the 1988 amendments are yet to be adopted by all States. Therefore, the new water legislation needs to be passed using either Article 249 or 253 so that it could be applied uniformly on all the States, and so that we could have a uniform law applicable all across the country.
- A new competent and statutory national body should be set up to monitor the implementation of the Act. State Pollution Control Boards are packed with nominees of State government and representatives of public sector companies. There is no independent voice on the boards to represent the environmentalists or affected citizens. The new body should consist of members representing these communities. Bodies at the State level should have direct power to exact fines, order imprisonment or ensure compliance with their orders other than the penalty imposed under Section 33A of the present Act for which Courts have to get involved.
- Under the present Act, penalties are too low to deter the violators. Penalties should be substantially increased.
- Compensatory costs should be awarded to citizens who are able to help the State in successfully prosecuting a violator under the provisions of Section 49 of the present Water Act.
- The scope of the Act should be beyond point discharges and industrial discharges to include various parameters like municipal wastewater, agricultural runoff, and oil spills.
- Water rights should be separated from land rights thereby providing a sound framework for the conservation and use of groundwater in both rural and urban areas. Traditionally, water rights have closely been related to land rights. One who owns the land usually has the right to collect and dispose the groundwater beneath its surface. This rule has evolved over the years owing to common law principles, customary rights and provisions of Indian Easements Act, 1886. Although the Central Ground Water Authority established under Section 3(3) of the Environment Protection Act, 1986, is regulating the withdrawal of groundwater in certain areas, much of the implementation is to be done by the State governments. So far, only ten States have enacted laws to regulate and protect groundwater resources. The new Water Act should address this problem by including provisions for conserving and regulating groundwater which should be applicable all over India. The Draft Model Bill for the Conservation, Protection and Regulation of Groundwater circulated by the Ministry of Water Resources could be used as a basis for this purpose.
- The CPCB usually faces the problem of lack of funds. Government should provide more funds for strengthening the labs of the Central and State Boards, infrastructure expansion and water data base management. These Boards at both levels, could reduce their dependence on government funds by providing technical services such as sample testings, trainings and providing technology to various stakeholders.
- Rainwater harvesting, de-salinization, preservation, development and utilization of water tanks should be promoted through the new Act. Rejuvenation of water bodies in and around urban settlements should be prioritized, and the Central program for Conservation, Rejuvenation, and Restoration of water bodies should be coordinated with the committees to be established under the new Act. We need a policy framework for water harvesting systems because existing policy statements do not address this. Local institutions should be empowered through the law. The new law should make sure that the local communities and government institutions work closely for establishing and maintaining the rainwater harvesting system. The updated Act should provide for establishment of committees at the Village, Taluka and District level. These committees should be permitted to settle disputes amongst users and be given powers to penalize defaulters. These committees should be empowered to raise funds from the State and other stakeholders.
- Water Regulatory Authorities should be established in each State to fix and regulate the water tariff system for all systems including irrigation.
- A National Water Portal (NWP) should be developed which could provide all relevant data regarding water resource management and the quality of water across the country. The new central body established under the Act should handle the process of data collection, its management and publication. The data should be accessible to all, besides the government authorities, policymakers, regulatory institutions, civil society organisations, and research institutions that are directly involved in the process.
- Adequate attention should be given to promote the development of ecologically sustainable solutions through Research and Development (R&D).
There is a requirement of ensuring justice in the distribution and control of water resources among different States, areas, sectors and generations. The transnational character of many important Indian rivers makes the need for national legislation even more apparent. Concerns about climate change are increasing. India’s vulnerability to the danger of climate change warrants a comprehensive approach at the national level. These aspects cannot be brought within the ambit of the existing Central laws. Given these concerns, the need for a new and updated National Water Act becomes self-evident.