Water laws in India

Introduction

Water remains the basic need of humanity. This need has become one of the basic human rights in India. Despite the eternal value of water, the development of the right to water in India appears to be very slow. In India, water law consists of several elements at international and national levels. There are a number of government policies that require thorough review and implementation issues are often asked without adequate solutions being provided. The main responsibility for the provision of clean drinking water lies with the state government and also with the respective local authorities. These governments and municipal companies are involved in their own governance problems and often complain of shortages or lack of funds, depriving the poor of water for daily use, which remains their fundamental and fundamental right.

In recent decades, increasing water pollution and decreasing availability per capita have resulted in connection rectifiers for various measures, such as water quality regulation and water supply, particularly in cities, as measures related to the environment.

To date, however, the water law is largely sectoral. At the international level, water regulation was aimed entirely at navigating international watercourses. It has progressed to take into account problems related to the high seas exchange. In India, water law consists of different parts. Includes international contracts, federal and state laws. It also contains a number of less formal regulations and water and water policies than the usual rules and regulations.

Right to water

The right to “clean water” and the right to access “drinking water” were read as part of the “right to life” under Article 21 of the Indian Constitution. This has been possible thanks to a liberal and activist interpretation of the fundamental right to life by the Supreme Court and the Supreme Courts of the country in several cases before them. After first talking about the right to water in relation to pollution, courts have issued an increasing number of judgments on the most basic concerns about access to clean water and the right to clean water as a fundamental right.[1]

In a case related to the shortage and contamination of drinking water in Guwahati city, it was determined that the municipal body is responsible for the supply of sufficient drinking water.[2] The local authority stated in its affidavit that although it was aware of its obligations regarding the provision of drinking water for its citizens, it was unable to expand its existing facilities due to its financial limitations. The court clarified that “Water and clean water are vital for all times. It is not necessary to take into account that it contains the provisions of Article 21 of the Constitution. “

Similarly, the High Court, in a petition from a lawyer for adequate addresses to ensure regular water supplies for the citizens of Allahabad, reaffirmed the fundamental right to clean water.[3] The court, with the approval of the Supreme Court decision, cited that the need for a decent and civilized life includes the right to food, water, and a decent environment.[4]

In another case, the Supreme Court ruled: “Drinking is the most beneficial use of water, and this need is so important that it cannot be subordinated to any other use of water, such as irrigation so that the right to use water exists for the domestic use would take precedence over other needs.”[5]

The constitution guarantees all citizens the fundamental rights to equality, life and personal liberty. Article 15 (2)[6] also states that no citizen may be subject to a restriction on “the use of wells, tanks, and Ghats”.

Several courts have confirmed that the right to safe and clean water is an aspect of the right to life. For example, in Narmada Bachao Andolan v Union of India[7] (2000), the Supreme Court declared: “Water is a basic necessity for human survival and part of the right to life and human rights established in Article 21 of the Constitution of India.

However, trials do not constitute a law or a policy; at best, they give instructions for formulating laws and policies. So far, no laws or policies have been formulated that affirm that water is a fundamental and inviolable right that all citizens of the country enjoy.

Ownership of Water

India has no specific laws that define ownership and rights to water sources. Rights arise from different laws and traditional beliefs.

From an economic perspective, water is an economic asset and a limited resource like any other. The price of water is unreadable to be owned, sold or used in any way like any other physical thing. This type of water is contested by the claim that water should be treated as a social and cultural good and not primarily as an economic good[8]. When access to water is so limited that it poses a human rights problem, water treatment and transportation will be quite expensive and someone will have to pay for it. The company that built the facility and produced the clean water has a reasonable and legitimate interest in owning the water and selling it at a profitable price. This can lead to situations where an increase in prices to finance the construction of water treatment plants leads to civil wars or riots[9]. Giving priority to the right to water over the right to property prevents potential investors from participating in the water supply.

Especially in deserted regions, the output of the people living there may not be enough to pay for it. The water they need to have a decent standard of living. This should be a reason for them to changetheir place of residence or profession, instead of being asked by society to support them.[10]

Rights Over Surface Water

Water rights in rivers and lakes are defined by state and land irrigation laws. These laws were first formulated in the colonial era and expressly state that the government has the absolute right to this water. For example, the North India Drainage and Canal Act of 1873 states that the government has the right to use and control the water in all rivers and streams that flow in natural channels and in all lakes for public purposes.

The irrigation laws or their rules determine who can use canal water for what purpose. Only usage rights are granted, no property rights. In general, usage rights are only granted to people who have land in the command areas.

Rights over groundwater

The Supreme Court rulings in India after independence have confirmed that natural resources, resources inherently intended for public use and enjoyment, are held in public trust by the state.

For example, in M.C. Mehta v Kamal Nath[11], the Supreme Court declared that “the state is the administrator of all-natural resources”; As a trustee, the state has “a legal obligation to protect natural resources” and “these resources for public use cannot become private property.”

However, the legal position on whether groundwater is a resource intended for public use is unclear, and India does not have a law that explicitly defines the ownership of groundwater (Orissa made an amendment to the irrigation law to enforce the state’s right to groundwater but this was challenged in court).A “relief” is a right that the owner or user of a particular country has for the benefit of that country. An example of relief is the right of way, the right to light and air, and the right to stagnant or flourishing water that is not on its own land.

Pursuant to Section 7 (g)[12] of the Indian Easement Act, each owner has the right to “collect and dispose” of all water below ground within its own limits and all water on its surface that does not flows in a defined channel. Strictly speaking, in accordance with this law, a property owner does not “own” the groundwater or surface water of the land. You only have the right to collect and use the water.

However, throughout India, it is common for a well on a property to belong to the owner of that country, and others have no right to take water from the well or to limit the owner’s rights to use the water. This belief and practice are indirectly supported by various laws, such as land laws and irrigation laws, which list all the things to which the government is entitled. Groundwater is not mentioned in these acts.

The interpretations of the Property Transfer Act of 1882 and the Property Purchase Act of 1894 also support the position that an owner has property rights to groundwater; it is linked to the “dominant legacy” (land) and cannot be transferred separately from the land. However, ownership in India is not absolute. It is not a fundamental right and the government has the power to restrict it for the common good. Therefore, the government has the right to take over everyone’s land to build dams, build roads, etc.,it is undeniable. In addition, the government is bound by the guiding principles of the constitution to promote justice, social, political and economic justice, and the protection of the environment. Article 39 (b)[13], for example, states that in particular, the state will direct its policies so that property and control over the material resources of the community are distributed in such a way that the common good is preserved as best as possible. Article 51A (g)[14] states that it is the fundamental duty of every citizen to “protect and improve the natural environment, including forests, lakes, rivers …”. Therefore, the government has the right and duty to regulate the use of groundwater in the interests of justice, equity and environmental protection.

Responsibility for Providing Water

In India, there is no legislation that governments must provide water to citizens. As mentioned above, the courts have ruled that the right to water is part of the constitutional guarantee of the right to life. Since independence, it has also been implicitly accepted that central and state governments have the primary responsibility for providing potable water, and then for other purposes. The supply of drinking water has been made in all the five-year plans and the responsibility has been explicitly established in the 20-point program, drawn up in 1975 and modified in 1982 and 1986. Consequently, several programs have been framed and implemented at the central level and state, such as the Accelerated Rural Water Supply Program and the Rajiv Gandhi National Drinking Water Mission. A number of laws have also been developed, including:

  • Laws establishing water authorities for urban water supply.
  • Laws on water supply in major cities.
  • Statewide water supply laws.
  • Laws that regulate the extraction and use of groundwater.
  • Laws to protect water sources.
  • Water supply laws for certain industrial areas.

Sophisticated institutional mechanisms for water supply have been established. The mechanism in Maharashtra is briefly discussed below.

Government’s obligation

In addition to the constitutional space for basic water law, parts IX and IXA of the constitution, which was incorporated by the now known amendments 73rd and 74th of the Indian constitution, are the other relevant spaces for water rights and management. The 73rdamendment of the constitution had all state governments imposed a constitutional imperative to develop an appropriate Panchayat Raj law detailing the significant democratic return of functions, officials and funds. In particular, it empowers states to provide panchayats with such powers and powers so that they can function as self-governing institutions and then lists “drinking water”, “water management”, “small irrigation” and “water catchment area development” as topics under the Panchayat jurisdiction theme.[15]

Similarly, Amendment 74 to the Indian Constitution recognizes local self-government as an enforceable ideal and obliges state governments to form local urban bodies (“ULB”).[16] Amendment 74 also requires that “a state’s legislation may, by law, give municipalities the powers and powers necessary for them to function as self-governing institutions.[17]” Water for domestic, industrial and commercial use”, among others.[18]

Amendments 73rd and 74th to the Constitution resulted in changes to existing panchayats at the state level, local businesses and local council laws to align with the mandate of the constitutional changes. It is important to understand these renewed state laws in terms of rights and obligations. To take an example from state law, consider the provisions of the 1955 Hyderabad Municipal Corporation Act, which states: “The Corporation will make reasonable provisions to ……Management and maintenance of all municipal hydraulic work as well as construction and acquisition of new work that is necessary for an adequate water supply for public and private purposes, [Section 112 (17)] this provision is under the heading “Matters to be provided by the company “as opposed to” Matters which the company can regulate at its own discretion” (section 115) and therefore an “obligatory obligation” of society. In interpreting this mandatory corporation obligation in a “parallel section” similarly worded in the Bombay Provincial Municipal Corporation Act of 1949, the Gujarat Supreme Court had said the following:

Therefore, it is clear that it is a mandatory obligation of the company to take adequate measures for adequate water supply for public and private purposes in the municipal area. In other words, the company cannot deny citizens the basic water supply service that is provided to all other residents according to their plans. The obligation is directed towards the administration, maintenance and acquisition of hydraulic work in order to ensure adequate water supply.[19]

New State Laws

In the past two decades, significant attempts have been made to involve farmers, the beneficiaries of irrigation canals, in the operation and maintenance of irrigation systems in India, as is the case in many parts of developing countries. Direct participation of farmers in the management of irrigation systems by WUAs is now seen almost everywhere as a permanent response to systemic deficiencies in irrigation. It is believed that where the state has failed in the past, farmers will not, and that operations and maintenance of the irrigation system by the farmers themselves can change things. The result was that state by state in India, and more recently 15 states specifically passed new laws between 1997-2010, created WUAs and supported ‘Participatory Irrigation Management (PIM)’[20].

Some of these states include:The Andhra Pradesh Farmer’s Management of Irrigation Systems Act, 1997; Madhya Pradesh Sinchai Prabandhan Me Krishkon Ki Bhagidari Adhiniyam, 1999; The Tamil Nadu Farmer’s Management of Irrigation System Act, 2000; Kerala Irrigation and Water Conservation Act, 2003; Orissa Pani Panchayat Act, 2002; Karnataka Irrigation Amendment Act, 2003; Maharashtra Management of Irrigation System by Farmers Act 2005; The Chhattisgarh Sinchai Prabandhan Me Krishkon Ki Bhagidari Adhiniyam, 2006; and The Uttar Pradesh Participatory Irrigation Management Act, 2009.

All of these laws generally empower the “project authority” to delineate each command area under each of the “hydraulic-based irrigation systems, which may be administratively feasible “and declare them as a water user area. Each area of   water users is divided into territorial constituencies. The laws then provide for the establishment of a democratically elected WUA for each area of   water users. Each WUA must consist of all water users who are landowners and members in a water use area.[21]

Groundwater Law Regime

The third legally active area in the past decade has been groundwater.[22] Before these last ten years, only a few states in India had enacted specific groundwater laws. These laws apply in restricted areas, have limited purposes and generally suffer from a low level of implementation. Most include: (i) limiting the depth of wells/bore, wells/tube, wells; and (ii) declaring groundwater protection and protection zones, especially near drinking water sources. The implementation of these provisions, including all measures to be taken under these laws, generally fell to the district collector, with no particular role played by village/community level institutions. The “new” laws of the decade maintain all of these basic characteristics.

These include:The Karnataka Ground Water (Regulation for protection of sources of drinking water) Act, 1999; The Kerala Ground Water (Control and Regulation) Act, 2002; The Andhra Pradesh Water, Land and Trees Act, 2002; The West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005; The Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005. One essential feature of these laws is that they create a groundwater authority at the state level.

The 2005 Himachal Pradesh Groundwater (Regulation and Control of Development and Management) Act, also contains some useful additional provisions. For example, the law stipulates that every groundwater user in a designated area must pay the license fees of the state government for groundwater extraction at the prescribed rates and in the prescribed manner. However, a groundwater user who irrigates less than one hectare of land, either owned or leased or both, is exempt from royalties. In addition, the authority to improve the groundwater situation can identify groundwater recharge areas and issue guidelines for the introduction of rainwater use for groundwater recharge in these areas.

Conclusion

The creation of a fundamental right to water in India was significant, but in certain cases, the judicial approach can be ad hoc and with flaws embedded in it. These and other good reasons, discussed in the first part of the chapter, suggest why an explicitly recognized and well-defined right to water must find direct access to the Indian constitution. We have to leave behind a certain ambivalence of the judiciary, which threatens to reduce a legal regime to a right without legal remedies. The basic state obligation, which results from the right of everyone to water, has not been specified and established in India by the legislature or the courts. You can feel that the time for this is here and now.

Water is a necessary prerequisite for the maintenance of life. The great civilization of history existed and often developed around water sources. Water law is particularly important in regions where water is a very limited resource.

Human rights to water can be derived from legally binding documents. Countries’ ability to meet their commitments in this area varies widely and will gradually become a more important issue in the near future.

References

Books & Articles

  • Cullet, Philippe (2009), Water Law, Poverty, and Development, Oxford University Press New York, USA,(2011).
  • Dellapenna, Joseph W & Gupta, Joyeeta, The Evolution of the Law & Politics of Water, Springer Netherlands Publication, 2009.
  • Gardner, A, Bartlett, R & Gray, J, Water Resources Law, Lexis Nexis Butterworths, 2010.
  • Iyer Ramaswamy R, Water& The Laws in India, Sage Publications Pvt Ltd, 2009.
  • Justice T.S. Doabia, Environmental and Pollution Laws in India Lexis Nexis; 2nd Ed.2010.
  • Philippe Cullet & Sujith Koonan, Water Law India: An Introduction to Legal Instruments, Oxford University press, 2011.

Websites

Case laws

  • Chameli Singh v. State of UP (1996) 2 SCC 549.
  • Delhi Water Supply and Sewage Disposal Undertaking v. State of Haryana, AIR 1996 SC 2992.
  • Diwan Singh and another v. The S.D.M. and other 2000 ALL. L.J. 273.
  • Gautam Uzir & Anr. v. Gauhati Municipal Corpn. 1999 (3) GLT 110.
  • M.C. Mehta v. Kamal Nath and Others, (1997) 1 SCC 388.
  • Mukesh Sharma v. Allahabad Nagar Nigam & Ors., 2000 ALL. L.J. 3077.
  • Narmada Bachao Andolan v Union of India, [2000] 10 SCC 644.
  • S.K. Garg v. State of UP 1999 ALL. L. J. 332.
  • S.K. Garg v. State of UP. 1999 ALL. L.J. 332.
  • Wasim Ahmed Khan v. Govt. of AP, 2002 (5) ALT 526 (D.B.).

[1] These cases include Wasim Ahmed Khan v. Govt. of AP, 2002 (5) ALT 526 (D.B.); Mukesh Sharma v. Allahabad Nagar Nigam & Ors., 2000 ALL. L.J. 3077; Diwan Singh and another v. The S.D.M. and other 2000 ALL. L.J. 273; S.K. Garg v. State of UP. 1999 ALL. L.J. 332; Gautam Uzir & Anr. v. Gauhati Municipal Corpn. 1999 (3) GLT 110.

[2] Gautam Uzir & Anr. v. Gauhati Municipal Corpn. 1999 (3) GLT 110.

[3] S.K. Garg v. State of UP 1999 ALL. L. J. 332.

[4] The Supreme Court held in Chameli Singh v. State of UP(1996) 2 SCC 549: AIR 1996 SC 1051, ‘That right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration on Human Rights and Convention or under the Constitution of India cannot be exercised without these basis human rights.’

[5] Delhi Water Supply and Sewage Disposal Undertaking v. State of Haryana, AIR 1996 SC 2992.

[6] Constitution of India, 1950.

[7]Narmada Bachao Andolan v Union of India, [2000] 10 SCC 644.

[8] Committee on economic social and cultural rights. General comment no. 15, Geneva: s.n.,2002.

[9] Wolf, A.T., Yoffee, S.B. and Giorando, M. International waters: identifying basins at risk. Water Policy, 2003, Vol. 5.1.

[10] While it might seem as a cynical remark, long term supporting of an unproductive group of people consumes a lot of resources, which is contradictory to another big goal – the sustainable development.

[11] M.C. Mehta v. Kamal Nath and Others, (1997) 1 SCC 388.

[12] Indian Easement Act, 1882.

[13] The Constitution of India, 1950.

[14] The Constitution of India, 1950.

[15] The list can be se under the Eleventh Schedule to the Constitution of India.

[16] The 73rd and the 74th constitutional amendments which provide for local elected bodies to ‘function as institutions of self-government’ in rural and urban areas, respectively are thus important landmarks in the history of Constitutional law in India.

[17] See Article 243W of the Constitution of India, relating to powers, authority, and responsibilities of municipalities. It adds that such a law may contain provisions for the devolution of powers and responsibilities upon municipalities with respect to: (i) the preparation of plans for economic development and social justice; (ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule.

[18] See the Twelfth Schedule of the Constitution of India. Other related matters that may be entrusted to the municipalities include urban planning including town planning, planning for economic and social development; public health, sanitation conservancy, and solid waste management; safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded; slum improvement and up-gradation and urban poverty alleviation.

[19] National Consumer’s Protection Samiti and Anr v. State of Gujarat & Ors. 1994 (2) GLR 1043.

[20] PIM refers to the programmes that seek to increase farmers’ direct involvement in system management, either as a compliment or as a substitute for the state role.

[21] These farmer bodies have typical functions like: (i) preparing and implementing a warabandi schedule for each irrigation season, (ii) preparing a plan for the maintenance, extension, improvement, renovation, and modernization of irrigation system, (iii) regulating the use of water among the various outlets under its area of operation, (iv) maintaining a register of landowners as published by the revenue department, (v) monitoring the flow of water for irrigation, (vi) resolving the disputes if any, between its members and water users in its area of operation.

[22]It is pertinent to point out that in pursuance of a specific order of the Supreme Court of India, the Ministry of Environment and Forest, Government of India constituted the Central Ground Water Authority (CGWA) as an authority under the Environment (Protection) Act, 1986 to regulate over-exploitation of underground water in the country.

Leave a Reply

Your email address will not be published. Required fields are marked *