Draft National Water Policy (Hindutva & Justice Series - Part 2)

In the last post, we had set in motion an initiative to enhance awareness on and participation in law-making as part of the larger goal to encourage the creation of a better-informed electorate. This is also with a view to elevate the nature of issues and quality of discussion on standard issues which occupy our mind space during elections. Accordingly, in this post, we begin with a primer on the Draft National Water Policy:

DRAFT NATIONAL WATER POLICY 2012 and DRAFT NATIONAL WATER FRAMEWORK ACT

1. What is the draft National Water Policy (NWP) 2012?

A. The draft NWP is a discussion paper released by the Ministry of Water Resources under the recommendation of the National Water Board, which deals with co-ordinated water planning and governance in the country.

2. What does the NWP envisage or propose?

A. The NWP proposes a central legal framework which could pave way for future state legislations which incorporate the “general principles” laid down in the central framework.

3. What does the NWP mean when it proposes a “framework law” (Para 2.2 of the NWP)?

A. It appears a National Water Framework Act is in the offing which has been prepared by the Planning Commission’s Working Group on Water Governance. According to the NWP, the proposed Act will be a “framework law” which is expected to be an “an umbrella statement of general principles governing the exercise of legislative and/or executive (or devolved) powers by the Centre, the States and the local governing bodies.”

4. Will the proposed law usher in centralization of water management? If yes, what about the rights of the State under the Constitution?

A. According to the Working Group on water governance, the proposed law is not a Central water management law. Consequently, it does not entail or envisage the creation of administrative machinery under the Central Govt. The law basically sets the outer boundaries within which State Water laws will have to operate. Does this raise questions of Constitutionality?

Water supplies, irrigation and canals, drainage and embankments, water storage and water power fall under Entry 17 of the State List of the Constitution, meaning thereby that State Governments have the sole power to enact legislations over the said topics. The only limit on this power of the States is Entry 56 of the Union List, which is the power of the Central govt to govern regulation and development of inter-State rivers and river valleys.

Simply put, no law of the Central government can interfere with the right of the States to enact laws on water. This also means the Centre cannot force a State to enact a law. Therefore, the enactment of water governance laws by States would largely depend on Centre-State relations.

4. Will the proposed Act alter the character of ownership of water?

A. In Para 2.2 of the NWP, it says “water needs to be managed as a community resource held, by the state, under public trust doctrine to achieve food security, livelihood, and equitable and sustainable development for all. Existing Acts, such as Indian Easements Act, 1882, Irrigation Acts, etc., may have to be modified accordingly in as much as it appears to give proprietary rights to a land owner on groundwater under his/her land.”

5. What on earth is the “public trust doctrine”? What is the long and short of treating water as a “community resource held by the state under public trust doctrine“?

A. The doctrine of public trust appears to have its roots in Roman law (Probably, Classical Indian jurisprudence too has its own version of the doctrine- could that be used to evolve a Hindutva version of the doctrine?). It means certain natural resources are to be treated as “property of the entire community” which is held by the Government on behalf of the community. In short, it would be impermissible for the Government to create any private right in a resource which is held in public trust. This also means, there is no right of ownership created in favour of the Government.

The Government merely has the right and a duty to regulate the use of such property in a manner which ensures that the public nature of the property is not eroded. The Supreme Court has recognized the doctrine of public trust as being part of Indian law, specifically as being implicit under Article 21 of the Constitution (M.C.Mehta v. Kamal Nath – 1997).

By applying this doctrine to ownership of water, the proposed Act could take away private ownership of groundwater, and vest only the Government with the right to govern its use as a public resource.

6. What could be the potential implications of such alteration in character of ownership of water?

A. (i) Would farmers’ rights over the groundwater under their land stand abridged or abrogated?- It appears so. In the draft legislation released by the Working Group, it says:

“(1) Notwithstanding anything contained in any other law, groundwater, like surface water, shall be regarded as a common pool resource held in public trust by the state.

(2) (a) Groundwater extraction shall be brought under regulation for ensuring equity, resource-conservation, and water quality.

(b) Such regulation may be through various means as appropriate, including control through the electricity tariff, the restriction of the availability of electricity for groundwater-pumping for agricultural use to a certain number of hours, and the community management of groundwater as a common pool resource.”

(ii) Would the implications be similar for landowners in urban areas? What would the implications be for private water tankers/suppliers? What about industries which use water extensively like beverage/liquor-based industries?- The Working Group’s take on this issue may be found under the heading “Water Markets”. According to the Working Group:

“(1) Water markets shall not be encouraged to flourish and proliferate in an uncontrolled manner, but may be allowed to function subject to careful regulation in the interests of equity, social justice, resource conservation and the protection of the aquifer.

(2) In particular, the bottled water and soft drinks industries shall be reviewed to ensure (a) that the need for bottled water is reduced by the better provision of adequate, safe and reliable water supply through public systems; (b) that the industries’ draft of raw water from water sources of any kind for processing is not such as to affect adversely the availability of water for life or livelihoods in the community dependent on the water source in question; and (c) that the disposal of process material and waste or reject water does not have an adverse impact on the water source or on the soil in the surrounding area.”

(iii) Would the proposed legislation distinguish between essential use and frivolous use of water? Would frivolous use of water be penalised as an offence? Or will the Government create another stream of revenue by pricing water differentially? Para 7 of the NWP specifically deals with water pricing and the establishment of a Water Regulatory Authority (WRA). In Para 7.1 of the NWP, it says:

“For the pre-emptive and high priority uses of water for sustaining life and ecosystem for ensuring food security and supporting livelihood for the poor, the principle of differential pricing may have to be retained. Over and above these uses, water should increasingly be subjected to allocation and pricing on economic principles.”

7. What are the principles or metrics which should govern water-pricing?

A. In Para 7.3 of the NWP, it says : “In order to meet equity, efficiency and economic principles, the water charges should preferably / as a rule be determined on volumetric basis.” Apart from using volume and nature of use as metrics to price water, can there be other metrics which could be used in the interest of preventing frivolous use under the garb of essential use?

8. How does the proposed legislation intend to monitor or check if water allocated for a particular use is not being diverted for another activity? Does the proposed legislation rely on “self-regulation”? If yes, is that a feasible model in this country?

9. Does the proposed Act envisage roping in private players? If yes, at what stage?

A. In Para 12 of the NWP, which deals with “Institutional Arrangements”, it says:

“Water resources projects and services should be managed with community participation. Wherever the State Governments or local governing bodies so decide, the private sector can be encouraged to become a service provider in public private partnership model to meet agreed terms of service delivery, including penalties for failure”

10. What is the scope of “services” for which the private sector may be engaged? To what extent will private players have a say in the use of water?

A. Para 18 of the Draft Act states the following take on privatisation and corporatization of Water Services:

“(1) Water supply, being an essential service and a fundamental right, shall be the responsibility of the state.

(2) If for any reason the state wishes to entrust this responsibility to an autonomous or corporate body, public or private, this shall not affect people’s fundamental or human rights in any manner.

(3) The state’s responsibility for ensuring people’s right to water shall remain despite corporatisation or privatisation of water services.

(4) The privatisation of the service, if considered necessary and appropriate, shall not lead to the privatisation of the resource.

(5) Considerations of profitability shall not override such social conditions and obligations as are imposed on the autonomous or corporate body as a part of the corporatisation or privatisation of water services.”

Are we comfortable with private players being engaged to handle a precious resource such as water? If no, why aren’t we? It cannot be our contention that the quality of services rendered by private players would be inferior or less reliable than the services of the State. If private players can handle supply of electricity, why should it be any different for supply of water? Or should it?

Since private players would essentially be performing a sovereign function on behalf of and at the behest of the State, can their actions be challenged by way of writ petitions before appropriate High Courts? Yes, private entities which step into the shoes of the Govt to perform what are essentially the functions of the Govt, are subject to Writ powers of High Courts under Articles 226 and 227 of the Constitution.

Thoughts

On first blush, although the Working Group’s draft of the proposed legislation appears to address major concerns, the amount of detail appears insufficient, probably because this is still a work-in-progress.

What is surprising though is that there is a detailed 62-Page Report of an Expert Group on “Ground Water Management and Ownership” released by the Planning Commission in September 2007, and yet the NWP makes no reference to the observations of the Report of the Expert Group.

Before our “well-meaning” law-makers rush with the Bill, it would help to receive diverse perspectives on various aspects of the Bill. We will continue with the discussion in the next post as well. In the meantime, we look forward to comments and opinions from our readers.