Paper Presented by Deepa on Water law

The history of water law in India can be divided into ancient India (Hindu law policies of
water) and Medieval India (Islamic law policies of India) with the arrival of Mugals after
the sixteenth century. Water law in ancient India slowly from custom, religion and written
codes.

Ancient water law

The concern for management of water resources in India is seen since the “indus-valley
civilization” in its system of great baths along with well defined drainage, jabarbads and
nallas. But specific legal norms in this respect began to merge with the inception of vedic
social order, where the Dharma become the last-stone (though not always). For all laws for
their validity.

A survey of religious legal texts provides insight into the following main principles.

1. Property-rights in water
The dharma-sutra of abstamba, an authority on civil and criminal law, lays down that
one who has taken the property of another unintentionally shall be reprimanded. If
the property be, among other things, water. But if the same is don intentionally his
garmets shall be taken away.
As per other sutra the king as soureign has immunity from consequences of such acts,
he could take water from any place without its being considered a theif.
A manuscript- Arthashastra (Sci and Pol.) also discuss this fact that all water
belonged to the king and user were to pay water to with draw water from irrigation
system installed by the king.
2. Punishment destruction of embankments
It seems to be first technique used for artificial management of water, it would be
serve for two purposes 1) guarding a kingdom from harmfull effects of water and
storage of water. Because of their importance in the states security and prosperity,
protection of embankments was taken very seriously including capital punishment for
its distruction.
Rules related war
the exploitation of water destruction was permissible in the war of Manumiriti also
say that a king who wishes to conquer his enemy should first of all destroy dams in
his territory.
Rule on inter-village water supply
 The law book manu provides that boundaries between 2 village should be determined
by bank, ponds and other source of water, this is naturally with a consideration of
inter-village water supply so that constant water units. Flow of water between two
such units could be maintained.
Medieval water laws
During medieval times there was inducted another set of legal principles, governed by the
holy Quran and Sunna, in the existing system by an ethnic group with different socio-
economic background.

Water in, Islam is considered as perfect, indispensible and priceless element as the holy
Quran declare “we made from water every living thing”.

In general, medieval India witnessed a system of co-existance, adjustments and assimilation

of institutions and values.

It was only during the region of Feroz Shan Tughlag that some considerable activities are
noticed in this respect.

Colonical water and policies

A new era of legislative thinking began in India with the establishment of British colonial
rule. Their interest and consequent, legislative and administrative attitude, political and
practice, carried a wider implication in the area of water resources as well, affecting the then
existing legal structure with respect to access, use and distribution. As a result many changes
were brought about in the religious oriented indigenous system. Eg. Resource gathering and
food production economy into a community oriented economy. Colonial water or water
related to law may for the sake of convenience we broadly divide into 2 points
1) East India company
2) British (crown’s) take 1857

1)East India company and water policies

East india company focused on advancing trade and traffic and law development and through
practicing judicial process.

British colonial water law had wo main strands

1) First control water and right to water were regulated through the progressive
introduction of common principal, emphazing the rights of land owners 10 acers
water.
 For surface water, riparian rights allow a landowner the right to take a reasonable
portion of the flow of a watercourse.

For ground water, landowners had a virtually unlimited rights to access water under
their holding
Second a series of regulatory status were enacted, including laws to protect and maintain
embankments such law (Embankment Regulation 1829, Bengal embankments act-1885)
other laws regulated canal for navigation purpose and leiying taxes on the users, river
conservation and rules on ferries and fisheries

1) Northern India Feries act-1878,

2) Indian Fisheries act 1897

Regulation recognizing local practices and rules in villages were also enacted.

One of the most important enactments was the

“Northern India canal and drainage act-1873, which regulated irrigation navigation and
drainage while this act did not directly assert the state ownership over surface water, it
recognized the right of the government to use and control for public purpose water of all
rivers and streams flowing in natural canal, and of all lakes. This led to the progressive
strengthing of state control surface water the concomitant weakening of people’s customary
rights.

Colonial legislation also introduced the division of responsibilities between the centre and the
regions/states with regard to water. The Government of India Act (1935) empowered the
provinces to take decisions on water supply, irrigation, canals, drainage and embankments,
water storage and hydropower. Conflicts between provinces and/or princely states were
subjected to the jurisdiction of the Governor General who could appoint a commission to
investigate the sufficiently important conflicts (130–134)

Post constitutional water and water-based resources laws.

There occurred a completer change of legal perception with the constitution, back by the idea
of social walfare, coming into force. The law concerning water and water-based resources in
post-constitutional period may be boardly divided into three periods.
1) Constitutional provision
2) The laws in force immediately before the commencement of constitution.
3) The law enacted under the authority of constitution or post constitutional legislations.
Constitutional provision
The constitution provision for the contituation of all laws in force at the time of the adoption
of the constitution of India.
It generally follow the scheme introduced in the Government of India act (1935) where water
is a state subject. State have the exclusive power to regulate water supplies irrigation and
canals, drainage and embankments, water storage water power and fisheries.
The parliament also enacted the River Board Act (1956) to allow central government to
establish river Board to advise state government on the regulation or development of an
interstate river to river.
Article 372(1) of the constitution has incorporated the earlier existing laws in the present
legal system and provides that not with standing the repeat by this constitution of enactments
referred to in Article 395, but subject to other provision of the constitution.
Surface and ground irrigation
Surface water irrigation legislation until novelty in terms of basic legal principles. The
Rajasthan irrigation and drainage act-1954 maintains the right of the state to determine
weather surface.
Water is to be used for irrigation or damage schemes based on wheather the scheme serves
public purposes.
Recent and ongoing water law and policy reforms
1) National and state water policies.
2) Water sector reforms in India.
3) The river linking projects.
National and state water policies
By the 1980s, it become that while water was largely a state subject the lack of national
policies. This led to the development of National water policy (1987) that was reformulated
in 2002.
These two policies are similar focusing on developing a data bank, estimating the available
water, prioritizing water developing ground water rules, mating drinking water needs,
developing irrigation facilities, developing a flood control and management system.
The river linking projects
The ideology behind this project that some parts of India are facing water shortage other parts
have excess water.
It was first proposed in August 1980, when the ministry of water resources prepared a
National Perspective.
Humans Right and the social and environmental Aspects of water
While the constitution does not recognize a fundamental right to water, court decisions deem
such a right to be implied in Article-21. The right to water is arguably implied in the
recognition of the right to a clean water.
Regarding water pollution one of the most important development was the adoption of the
water acts (1979).
This act seeks to prevent and control of pollution.
Dam
In the past 6 decades, 100 of big dam have been built in India to promote development. The
first major post-independence irrigation project, the Bhakra Dam and some other are Sardar
Sarovar project, Hirakund and so on.
The rational for big dam remains to increase the irrigation potential to foster poor security, to
generate power