Water Laws in India, and

Right to Water
HUL376: Political Ecology of Water
Dr Vibha Arora, IIT Delhi
2019; Lecture 6-7
 recap
Philosophical position & perspective guiding laws (freshwater and salt
water/oceans (fisheries, oil, transportation, recreation):
1.  a critical bio-political source of life and a resource (absolute need)
2.  a public good and culturally integrated with society (relative needs
& resource)
3.  Increasingly becoming a scarce commodity (need, good, resource)
I.  Quantity - reliability and availability; green, blue, grey water
II.  Quality – (related to human health and environmental health)
III.  Satisfies multiple needs and multiple users - allocation between
different sectors
4.  Mobility – boundaries and flowing capacity (carries pollutants,
causes disaster when in shortage or excessive)
5.  Water and virtual water (embedded in production, consumption,
and circulation)
 Our precious resource
•  Evolved into a form of private good/property in independent India.
•  Require laws governing its use and control, ownership, sale or
transfer of access,
•  discussing obligations and duties can emerge [should not pollute,
use wisely, conserve water, payment for water and ecosystem
services, not obstruct its flow, not exploit groundwater, not let it
run-off, behavioural changes in personal consumption and so on] –
laws being framed on how it should be shared, and not polluted by
companies.
•  Can we think of having rights to water? global campaign – 2011:
Interlinked with livelihood and economic development (collective, corporate,
individual)

Interlinked today with right to life, right to food, goal of sustainable

development
 Who owns?
•  Political ecology of Water and Land
–  Interrelated yet distinct (not merely question of topography)
–  Formal legally enforceable laws of state and its institutions (duty to legislate, protect,
ensure fairness and social justice in distribution, conservation, resolve conflict,
regulate distribution, provision for infrastructure, and so on) and customary laws and
civil society institutions can be divergent and sometimes even hostile.
–  Can laws used for governing land be applied to water? Fixed land vs Fluidity of water

•  Differentiate between Right to ‘own’ and ‘Right’ to use (usurfruct)

…can these right include right to spoil/destroy, collect and sale, or withhold?

•  Rain is Falling and adds to surface flow of streams, groundwater recharge,

and river waters.
–  Who does it belong to?
–  Is it owned by the state or individual on whose property it falls or flows through?
–  Who has right to control and conserve through rain-water harvesting?
–  How do we interpret the interception of rain-water by private groups?
–  Does someone who owns the land also own the ground-water?
–  how much can the owner of land draw from the underground groundwater?
 Complicated governance
1. Drinking water and Domestic water:
•  Is it going to cover merely drinking water or extends to subsistence
needs such water for cooking, washing and personal hygiene or basic
requirements of water?

2. Drinking quality water and reliable water:

•  Should it be right to water or right to safe water?
•  To address issues of contamination and pollution, and associated
health what laws are necessary?

3. Water supply can not be separated from sanitation

•  How do we price drinking water ?
•  How do we price domestic water?
•  How do we differentiate between different consumers (individuals,
commercial, business, industry, government)?
 What are our ‘commons’?
•  Commons refers to mean any shared and unregulated resource (atmosphere, oceans,
rivers, fish stocks, or even an office refrigerator)

•  It is in the interests of the users of a commons to manage it prudently, and complex

social schemes (sanctions, religious values) are often devised by them for maintaining
common resources efficiently.

•  A common property system is a particular social arrangement regulating the

preservation, maintenance, and consumption of a common-pool resource.

•  Common pool resource is a type of good consisting of a natural or human-made

resource system (e.g. an irrigation system or fishing grounds), whose size or
characteristics makes it costly, but not impossible, to exclude potential beneficiaries
from obtaining benefits from its use.

•  Common-pool resources may be owned by national, regional or local governments as

public goods, by communal groups as common property resources, or by private
individuals or corporations as private goods. When they are owned by no one, they
are used as open access resources.
 Tragedy of the commons
u  G. Hardin pointed out the problem of individuals acting in rational self-interest by
claiming that if all members in a group used common resources for their own gain and with
no regard for others, all resources would eventually be depleted.

u  He argued against relying on conscience as a means of policing commons, and suggesting

that this favors selfish individuals – often known as free riders – over those who are more
altruistic.

u  Free access and unrestricted demand for a finite resource ultimately reduces the resource
through over-exploitation, temporarily or permanently. This occurs because the benefits of
exploitation accrue to individuals or groups, each of whom is motivated to maximize use of
the resource to the point in which they become reliant on it, while the costs of the
exploitation are borne by all those to whom the resource is available (which may be a wider
class of individuals than those who are exploiting it). This, in turn, causes demand for the
resource to increase, which causes the problem to snowball until the resource collapses
(even if it retains a capacity to recover).

u  The rate at which depletion of the resource is realized depends primarily on three factors:
1.  the number of users wanting to consume the common in question
2.  the consumptiveness of their uses
3.  the relative robustness of the commons.

u  Global warming appears to present a classic "tragedy of the commons." These arise when a
collectively owned sustainable resource is wasted through individual over-use. Consumers
of an otherwise sustainable resource squander it by failing to limit their consumption.
 Reflecting on the past
Water was managed as a common property resource by the community in historic past:
In pre-colonial India
•  there were a wide range of structures, practices, traditions and institutions governing the
management, use, and conservation of water in different parts – kings, chiefs, village
panchayats, tribal councils, religious institutions (shaped by ecology, availability of water,
caste, social stratification, etc).
ü  Management around step-wells, tanks, johads, etc have been widely documented in water history,
and continued discussion.
ü  We also had discussion of canal irrigation and riparian disputes (laws)

Under colonial rule

•  Many community institutions were replaced by modern systems (laws, courts, conception
of rights to use) and water-use took a limited form of referring to needs of irrigation
(canals, technologically mediated access to water)
ü  The irrigation acts vested overall supremacy and control over surface water to the state – area of
eminent domain which was interpreted to largely mean ownership of water.
ü  An engineering approach was used to manage river water through canals, channels of irrigation
that were centrally managed and operated by the government.

²  Very little discussion on groundwater in th colonial period, and later in our Indian
constitution.
 Rights to water supply
The legal right to use a designated water supply is known as a
water right

•  A) Riparian rights (owner of adjacent land to any stream, owner of land has
access to groundwater, etc). It emphasizes the recognition of equal rights to
the use of water by all owners of land abutting a river, as long as there is no
resulting interference with the rights of other riparian owners.

•  B) the prior appropriations model, the first party to make use of a water
supply has the first rights to it, regardless of whether the property is near the
water source. The cardinal rule of the doctrine is, that priority of
appropriation gives seniority of rights.

•  C) According to the theory of community of interest, a river passing through

several States is one unit and should be treated, as such, for securing the
maximum utilization of its waters.
 Perspectives can clash
Why do we need to reframe laws and sort governance issues?

Nationalization of rivers and increasing bureaucratic control of

surface water and pollution control, sewage and sanitation

Versus

Shift in paradigms
•  towards recognizing that community is the rightful custodian
of water – admitted by the PM in 2002 [in conflict with view
of state as owner and controller of water];
•  Towards participative, essentially local management of
water resources;
•  Accountability of government to the public for providing safe
affordable reliable water supply
 Best managed by local bodies
•  Post-colonial India – community initiatives have
lead to a decline in centralized control of water.

•  Decentralized water management with rainwater

harvesting and micro-watershed development by
NGOs and civil society have been able to promote
water security and address scarcity – success stories
1.  Rajendra Singh of Tarun Bhagat Singh in Rajasthan
2.  Ralegan Siddhi under Anna Hazare’s leadership in
Maharashtra
 Public trust doctrine (PTD)
•  Water is far too important substance for any single person or institution to control
or appropriate or own it. Hence, it should be held as part of public trust, and it can
not be privatised.

•  State is perceived of not as sole owner of the water resources of the country, but as
holding them in trust for the people (including the future generations). As a trustee
the state is empowered to legislate, regulate, allocate, and manage the resource.
However, the role of trustee is of a differential kind from that of a sovereign with
an eminent domain.

Trusteeship allows collaborative relationship between state and non-state actors and
civil society. It is desirable for resource conservation, inter-generational equity, and
ecological sustainability to treat water under PTD.

Cases:
ü  Subhash Kumar vs State of Bihar 1991;
ü  MC Mehta vs Kamal Nath 1996;
ü  Susetha vs State of Tamil Nadu 2006.

Issues: Ownership of land carries ownership of groundwater (water is chattel to land

and there is private ownership of groundwater) Plachimada, Coke factory
Watershed committees and Panchayats (local water rainwater harvesting)
 3 positions on right to water [Iyer]
Mixed response:
1)  water is like any other commodity – it is an economic good (demand and
supply function governed by market forces so property rights should be well-
defined for use and control and water infrastructure is better managed and
efficiently by market forces)

2) Water is not a commodity; it is a basic human need and a right and the state
has a responsibility to ensure none is denied this right. State has public sector
responsibility and considerations of profit can not influence delivery of adequate
water.

3) Water is a common pool resource that should be managed by the

community and there is no role for private corporations or a centralized state here.
Only decentralized institutions like panchayats should be involved.

•  Mixed responses persist – muddled picture.

•  Economic rights of some should not impinge on human rights of others.
•  Supreme Court has played a major role in adjudicating here.
•  Water is also a social asset.
 Big projects - laws exist
Application of Water Resource Development (WRD) – big projects need
statutory clearances and several legal instruments are in place – many
are mandatory.
Ø  Tribal areas: Environment Protection Act (EPA) 1986
Ø  Tribal areas: Forest Conservation Act (FCA),
Ø  Panchayat (Extension to Scheduled Areas) Act 1996 (PESA; gram sabhas
will govern their natural areas in Fifth Schedule Areas),
Ø  Environment Impact Assessment (EIA)

However,
•  Many case studies reveal their poor adherence and implementation
•  Mostly, lip service is paid to the principle of stakeholder
consultation
 Responses to global debates
1.  Civil society perceives water as a common pool resource;

2.  View of water as the eminent domain of state is declining;

3.  Administrative reforms on decentralization have been

carried out for village panchayats and municipalities:
Functional responsibilities are, thus, visualised for local
governments in respect of several aspects of water use.
Ø  In the Eighth Schedule (Part IX) dealing with Panchayats, the
subjects, ''Minor irrigation, Water management and Watershed
development", "drinking water" and "maintenance of community
assets" are listed.
Ø  In the Twelfth Schedule (Part IX A) dealing with municipalities,
the subjects "water supply of domestic, industrial and
commercial purposes" is listed.
 Biopolitical need; global recognition
•  Distinguish between water rights & water as a human right

•  The right to water to satisfy basic human needs for personal

and domestic uses has been protected under international
human rights law. Since 201o – UN resolution on right to
water and sanitation.

•  Governments and the state are given the primary

responsibility to ensure that people/citizens have access to
"sufficient, safe, accessible and affordable water, without
discrimination”

Ø  Let’s understand the evolution of this human right

 Hague Declaration (22 March 2000)
Ministerial Declaration on Water Security in the 21st Century

Water is vital for the life and health of people and ecosystems and a basic
requirement for the development of countries, but around the world women,
men and children lack access to adequate and safe water to meet their most basic
needs. Water resources, and the related ecosystems that provide and sustain
them, are under threat from pollution, unsustainable use, land-use changes,
climate change and many other forces. The link between these threats and
poverty is clear, for it is the poor who are hit first and hardest. This leads to one
simple conclusion: business as usual is not an option. There is, of course, a huge
diversity of needs and situations around the globe, but together we have one
common goal: to provide water security in the 21st Century. This means ensuring
that freshwater, coastal and related ecosystems are protected and improved; that
sustainable development and political stability are promoted, that every person
has access to enough safe water at an affordable cost to lead a healthy and
productive life and that the vulnerable are protected from the risks of water-
related hazards.

http://www.africanwater.org/hague_declaration.htm
Main Challenges under water security (Hague Declaration)

1.  Meeting basic needs: to recognise that access to safe and sufficient water and
sanitation are basic human needs and are essential to health and well-being, and to
empower people, especially women, through a participatory process of water
management.
2.  Securing the food supply: to enhance food security, particularly of the poor and
vulnerable through the more efficient mobilisation and use, and the more equitable
allocation of water for food production.
3.  Protecting ecosystems: to ensure the integrity of ecosystems through sustainable
water resources management.
4.  Sharing water resources: to promote peaceful co-operation and develop synergies
between different uses of water at all levels, whenever possible, within and, in the case of
boundary and trans-boundary water resources, between states concerned, through
sustainable river basin management or other appropriate approaches.
5.  Managing risks: to provide security from floods, droughts, pollution and other
water-related hazards.
6.  Valuing water: to manage water in a way that reflects its economic, social,
environmental and cultural values for all its uses, and to move towards pricing water
services to reflect the cost of their provision. This approach should take account of the
need for equity and the basic needs of the poor and the vulnerable.
7.  Governing water wisely: to ensure good governance, so that the involvement of the
public and the interests of all stakeholders are included in the management of water
resources.
 Role of State in Managing water
How does our ‘current’ Indian Constitution engage with water?
–  offers a very limited view of water
–  reflects the thinking of that time when our Constitution was being written
post-independence.
–  no specific laws relating to either surface water nor about groundwater.
–  no explicit mention of water as essential part of the ecological system.

•  Community as the rightful custodian of water and requiring a

paradigm shift to participatory local management of water
resources is being emphasized, and gradually getting legal validity.
 Governing Water
The existing legal regime relating to groundwater in India has been subject to
severe criticism.
1.  Major criticism focuses on:
–  continuation of the rule introduced during the British colonial period that gives near
absolute right to land-owners to exploit groundwater.
–  The existing system of land-based groundwater right is directly in conflict with Public
Trust Doctrine (PTD) because PTD requires access to crucial natural resources like
water to be available to everyone equitably regardless of any socio-economic criteria.
–  Severe consequences for equity because it excludes landless people from accessing
groundwater.
2. Other criticisms include
–  little or no emphasis on protection and conservation,
–  lack of recognition of the link between groundwater and the water cycle,
–  lack of an aquifer-based regulatory approach (as opposed to a system focused on
individual extraction units.
 Water under Indian Constitution (1)
In our federal framework:
u Water is a state subject: “Water, that is to say, water supplies, irrigation and
canals, drainage and embankments, water storage and water power, subject to the
provisions of Entry 56 of List 1.”

u State has important roles to play with respect to water and legislate and protect it.
Decreasing per capital availability is a central concern. Conservation of water is an
important arena for state intervention.

u However, is the government/state the owner having overall supremacy and control
while others have merely rights to use to it?

Article 262 of the Indian Constitution:

Adjudication of disputes relating to waters of inter-State rivers or river valleys:
(1) Parliament may by law provide for the adjudication of any dispute or complaint with
respect to the use, distribution or control of the waters of, in any inter-State river or river
valley. 
(2) Notwithstanding anything in this Constitution, Parliament may, by law, provide that
neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any
such dispute or complaint as is referred to in clause (1)”
 Water under Indian Constitution (2)
•  No explicit acknowledgement of Water as a fundamental right as
part of life-support

•  Recently with the Supreme Court’s judicial interpretation of

right to life under Article 21 of the Indian Constitution (our access
to clean drinking water is being indirectly linked with the right to
food, the right to clean environment and the right to health).
P. Cullet:
•  Subhask Kumar vs State of Bihar 1991 [fundamental to sustaining
life];
•  M.C. Mehta vs Kamal Nath 1996 [water must be understood as a
public trust and no single individual or even the state can control it
and can not be fully provatized]

•  Potential for conflict exists between state, non-state actors

(corporate sector, civil society), and the community.
 role of state institutions (3)
•  State governments enacts laws on water issues

•  Promotes resource conservation

•  The River Boards Act, 1956, provides for the establishment of River Boards,
for the regulation and development of inter-State rivers and river valleys.
Board personnel must be persons having special knowledge and experience
in irrigation, electrical engineering, flood control, navigation, water
conservation, soil conservation, administration or finance.

•  Functionally subject-wise, they are very wide range, covering conservation

of the water resources of the inter-State river, schemes for irrigation and
drainage, development of hydro-electric power, schemes for flood control,
promotion of navigation, control of soil erosion and prevention of pollution.
But the functions of the Board are advisory and not adjudicatory.
 Cullet: law and reforms
•  Multiple challenges and we need to go beyond formal recognition of right to
water by the Supreme Court (Cullet 2011) [interconnect with debate on
water equity].

•  Number of Water sector reforms have been ushered in India by the Dublin
statement on ‘Water and Sustainable Development 1992’ that
–  have transformed water into a economic good;
–  to foster efficiencies in its management.
•  Now we are distinguishing between surface and groundwater increasingly.
Ironically, groundwater is becoming an important source of irrigation when
surface water is often equated with irrigation.

•  Given groundwater being a ‘local source’ therefore local institutions should

have primary rights and duties towards regulating its use and distribution.

•  Model Groundwater (Sustainable Management) Act 2016 should be

approved and adopted and supported by an institutional framework.
 Revising water governance
•  The existing groundwater regulatory framework in India follows a centralised command-
and-control approach.

•  The Constitution of India envisages a decentralised and participatory framework for natural
resource management. Therefore, decentralisation and participation are supposed to be the
key basic principles governing groundwater in India.

•  The federal government started an initiative in 2010 to draft a new model groundwater bill
to update the 2005 version. The first updated version was published in 2011 and the latest
one in 2016. Its yet to be approved and adopted.

Model Groundwater (sustainable management)Act, 2016.

http://wrmin.nic.in/writereaddata/Model_Bill_Groundwater_May_2016.pdf)

{January 2019 update: https://thewire.in/environment/knee-jerk-reactions-wont-solve-indias-groundwater-crisis]

Groundwater is a local resource, hence local institutions should have primary rights and duties
to manage it.

These will be also discussed in context of market environmentalism in water (K. Bakker
artciles)
 readings
•  Iyer: Legal Inadequacies and Perplexities
•  Cullet: Governing Water to Foster Equity
and Conservation: Need for New Legal
Instruments
•  Cullet (section): Realisation of
Fundamental Right to Water in Rural
Areas