Legislation on water
Water in India is governed under three different Acts: the Environmental Protection Act (1986), the River Boards Act (1956) and the Inter-State Water Disputes Act (1956).
Water in Constitution of India
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. 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.’
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.
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.
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.
River Boards Act
The river boards have been established under the River Boards Act of 1956 for the regulation and development of interstate rivers and river valley, to prevent water pollution.
Inter-State Water Disputes (ISWD) Act, 1956
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 it can request the Central Government under Section 3 of the Act to refer the water dispute to a Tribunal for adjudication.
The act clearly lays down the details regarding the following:
- Constitution of the tribunal,
- Timeframe within which it has to be constituted,
- Adjudication of water disputes,
- Filling of vacancies,
- Publication of decision of tribunal,
- Power to make schemes for implementing decisions of tribunal,
- Prohibition of levy of seigniorage, etc.,
- Bar of reference of certain disputes to tribunal,
- Powers of tribunal,
- Maintenance of data bank and information,
- Bar of jurisdiction of Supreme Court and other Courts,
- Dissolution of Tribunal and power to make rules.
The act has been amended in 2002 to make sure that 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. Apart from this, a new section 9A has been inserted in the section on maintenance of data bank and information. The Central Government is now required to maintain a data bank and information system at the national level for each river basin which shall include data regarding water resources, land, agriculture, and matters relating thereto, as it may prescribe from time to time.
The State Government shall supply the data to the Central Government or to an agency appointed by the Central Government for the purpose, as and when required. The Central Government shall have powers to verify the data supplied by the State Government, and appoint any person or persons for the purpose and take such measures as it may consider necessary.
Scope of the Act
Sections 2c & 3 of IRWD Act are reproduced below to analyze its scope of ambit in defining a water dispute.
“Section 2c of IRWD Act: ‘Water dispute’ means any dispute or difference between two or more State Governments with respect to:
1) the use, distribution or control of the waters of / in any interstate river or river valley.
2) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement.
3) the levy of any water rate in contravention of the prohibition contained in this Act
Section 3 of IRWD Act:
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 any of the inhabitants, in the waters of an inter-state river, or river valley have been or are likely to be, affected 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;
- c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or control of such waters, the state Government may, in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a Tribunal for adjudication.”
IRWD Act is applicable only to interstate rivers / river valleys. An action of one state should affect the interests of one or more other states. Then only water dispute has arisen under IRWD Act. It can be divided in to two independent parts for clarity purpose in understanding the legal application of IRWD Act –
- Actions of a downstream state affecting the interest of upstream state: A downstream state’s action can affect the upstream state interest only in one case. I.e. when a downstream state is building a dam / barrage near its state boundary and submerging the territory of an upstream state on permanent / temporary basis. Other than this action, no other action of a downstream state could affect the upstream states interest which they have been using for economical, ecological and spiritual/ religious aspects. The meaning of the word ‘interest’ in this context is concern / importance / significance / relevance / consequence of losing the prevailing water use / purpose.
- Actions of an upstream state affecting the interest of downstream state: All the actions of an upstream state to use or control or distribute the water of an interstate river can affect the downstream states in one way or other.
Creation of the Tribunal
Whenever the riparian states are not able to reach amicable agreements on their own in sharing of an interstate river waters, section 4 of IRWD Act provides dispute resolution process in the form of a Tribunal. As per section 5.2 of the Act, the tribunal shall not only adjudicate but also investigate the matters referred to it by the central government and forward a report setting out the facts with its decisions. It implies that the tribunal responsibility is not limited to adjudication of issues raised by the concerned states and also investigation of other aspects which are in public domain such as water pollution, salt export requirement, water quality deterioration, flood control, sustainability of river basin productivity & its ecology, environmental flow requirements, climate change effects, etc.
When the tribunal final verdict issued based on the deliberations on the draft verdict is accepted by the central government and notified in the official gazette, the verdict becomes law and binding on the states for implementation. When pronounced in the ambit of IRWD Act, the tribunal’s verdict after its publication in the official gazette is equivalent to Supreme Court verdict as per section 6 of IRWD Act. In case the constitutional rights of states are ingressed upon by the tribunal award in any manner, central government, for extending purview of its enactment to implement the tribunal order, is obliged to take the consent of all riparian states under Article 252 of the constitution before publishing the tribunal awards in the official gazette.
Till now three tribunal awards are notified in official gazette by the Government of India. These are water dispute tribunals allocating river water use by the riparian states for Krishna (tribunal 1), Godavari and Narmada rivers. All these tribunal awards were issued before the year 2002 which cannot be altered by the new tribunals. The tribunals formed on sharing water of Ravi & Beas rivers, Cauvery / Kaveri river, Vamsadhara River, Mahadayi / Mandovi River and Krishna River (tribunal 2 ) are either yet to pronounce the verdicts or the issued verdicts are to be accepted by the Government of India.