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Case for National Water Law
By Archana Vaidya

There is scope of Residuary legislative power in the context of water conservation, sustainable use of water as a resource and water use efficiency.



A lot needs to be done to ensure equitable water usage in India

India is a quasi federation very different from a federation, with strong centralizing tendencies. In our constitutional scheme central government can alter, diminish, or increase the size of states by altering its boundaries and also has superintendence power over the state governments. The central government in case of an emergency can even impose president’s rule on the states.

Given the circumstances where water has been acknowledged as an area of national concern requiring a national perspective for its planning, management and conservation, it is important to have some national framework water law. This kind of a law is of critical importance to have uniformity of application of some pivotal principles of water management, to ensure conservation of water as a resource, to ensure its sustainable and efficient use across all water using sectors and to have a national perspective while planning and managing water.

There is no dispute whatsoever that water is a state subject. If we closely look at the entry 17 in the state list it reads: "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 I".

Entry 56 of list I read as: "Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest".

There is no denying the fact that water has assumed a unique strategic importance due to ever increasing demand from all sectors and likely impacts on its availability due to climate change.

Entry 56 gives power to central government to make law for regulation and development of interstate river valleys. This entry clearly indicates that in case of water also, whatever at that time when the constitution was being drafted, could be understood of national importance, having national implication has not been left in the state’s domain but given to the central government to ensure a national perspective. In today’s context when it is established beyond doubt that we need a national, holistic and integrated approach to water planning, management and its conservation, it is important that there is a national framework water law which establishes and makes certain principles mandatory, uniformly all across the country for every water management project or work that a state undertakes.

The state list entry on water does not mention conservation of water or sustainable and efficient use of water at all. The emphasis of this entry is only on the supply of water, it does not speak of planning, management and sustainable use of water. There is no mention of the need to conserve water as a resource. Nothing has been left to imagination as it uses the words water that is to say; after mentioning water it goes on to explain as to what it will include in its ambit.

However if one interprets this entry liberally it can mean to include that when water is to be supplied it has to be done efficiently and the source of the water has to be used sustainably. Similarly when water is to be used for irrigation through canals the same has to be managed efficiently. It can also be interpreted to include that it is assumed that water as a resource would be conserved and used sustainably and efficiently for the state to be able to continue doing what it has been categorically given authority for.

It is important that there is a national framework water law which establishes and makes certain principles mandatory, uniformly all across the country for every water management project or work that a state undertakes.

The experience so far however is not in consonance with what we have assumed in the above interpretation. If it were so we would not have needed a national law mandating these principles.

Given the need to have a national perspective on water planning, management and conservation this entry should be interpreted in a manner that best suits the national interest. National interest would be best served when we make it mandatory at the national level to conserve water as a resource and to ensure that sustainability and water use efficiency are the cornerstones of any water management practice in any state. The central government should have the authority to intervene in any state water management project if they have not satisfactorily incorporated these principles in their plans and projects. A water surplus state cannot be allowed to be lax in their water management when there are others which don’t have enough to even drink.

This is only possible if entry 17 is not given farfetched interpretation and is interpreted using fundamental principle i.e. giving words used in the text the meaning that is attributed to them in common parlance. While interpreting this entry we should refrain from importing words in the meaning of the entry so as to include things which were not even acknowledged as existed at the time when constitution was framed.

There is no denying the fact that water has assumed a unique strategic importance due to ever increasing demand from all sectors and likely impacts on its availability due to climate change. If the central government can use its residuary legislative power to fill this critical gap it cannot be said to be an encroachment of the state’s legislative power. The state would continue to have unfettered legislative power in regard to subjects mentioned in the entry 17. However, if such a national water law is enacted, the states would have to mandatorily incorporate into their water management projects, principles of resource sustainability, water use efficiency and conservation. The states can be held accountable and the same standard of these principles would be applied uniformly all across the country.

Archana Vaidya  |  archana.ielo@gmail.com

Archana Vaidya is managing partner in Indian Environment Law Offices (IELO), a natural resource management and environment law firm based out of New Delhi, India.

Write to the Author  |  Write to d-sector  |  Editor's Note

Corruption Watch

The bad news is that corruption has not only sustained but has grown in size and stature in the country. With scams being a regular feature, seventy per cent respondents in a survey have rightfully opined that corruption has continued to increase in India. One in every two interviewed admit having paid a bribe for availing public services during last one year. Transparency International's latest survey reveals that the political parties top the chart for the most corrupt public institutions, followed by police force and legislatures. No wonder, India continues to make new records on the global corruption arena!

The shocking revelation is that the health and education sectors haven't remained untouched by this phenomenon. With 5th and 6th positions respectively for these sectors on the public perception chart on corruption, corruption has crept insidiously into these sectors of hope for the masses. With bureaucracy being fourth in the list of corrupt institutions in the country, corruption seems to have been non-formally institutionalized with little hope if public services would ever be effective in the country. With economic growth having literally institutionalized corruption, are we now expecting corrupt to be socially responsible - a different CSR.

Poor. Who?

Not giving 'aid' to India is one thing but calling it 'rich' is quite another. If one in three of the world's malnourished children live in India, what does average daily income of $3 indicate? It perhaps means that there is a relative decline in poverty - people are 'less poor' than what they used to be in the past. But having crossed the World Bank arbitrary threshold of $2 a day does not absolve the 'developed' countries of their obligation to part with 0.7 per cent of their Gross National Income in development aid. Should this three-decade old figure not be revised?  

An interesting debate in UK's House of Commons delved on future of development assistance by the British Government. While prioritizing limited resources has been a concern, there has been no denying the fact that development aid must be guided towards tangible gains over a short period of time to start with. There are difficult choices for elected governments to make - should they invest in long-term primary education or in short-term university scholarships? Which of these will bring gains and trigger long-term transformation in the society. As politicians continue to be divided on the matter, poverty persists!!   

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