The Union government should dispel the States’ fears of centralisation if it wants to rescue the idea from total rejection
The idea of a national water framework law mooted by the Central government has run into strong opposition from the Chief Ministers of several States. The aim of this article is to clarify the issues involved for the information of the general public.
I am obliged to strike a personal note here, for reasons which will become clear as this article proceeds. So far as I know, I was the first person in this country to talk about a national law on water, more than 10 years ago, and the first to use the term ‘national water framework law.’ The idea made no headway at all until the Planning Commission, as part of the preparations for the 12th Plan, set up a number of working groups and sub-groups, including a sub-group on a national water framework law with me as chairman and five other members. We produced a complete draft of the law that we were advocating. It is available on the website of the Planning Commission.
That draft was not adopted by the Ministry of Water Resources, but it did accept the idea, picked up the term ‘framework law’, and set up a new committee to draft the law under the chairmanship of Dr. Y. K. Alagh. That committee has presumably not yet concluded its deliberations, but meanwhile the idea of a national water framework law appears to have been mentioned at a Conference of Water Resources Ministers as well as the recent NDC meeting, and has drawn a negative response. That response is regrettable. A national law on water is very necessary, and it must be a framework law.
Why is a national law on water necessary? There are several reasons.
(1) Under the Indian Constitution water is primarily a State subject, but it is an increasingly important national concern in the context of:
(a) the judicial recognition of the right to water as a part of the fundamental right to life;
(b) the general perception of an imminent water crisis, and the dire and urgent need to conserve this scarce and precious resource;
(c) the severe and intractable inter-use and inter-State conflicts;
(d) the pollution of rivers and other water sources, turning rivers into sewers or poison and contaminating aquifers;
(e) the long-term environmental, ecological and social implications of projects to augment the availability of water for human use;
(f) the equity implications of the distribution, use and control of water;
(g) the international dimensions of some of India’s rivers; and
(h) the emerging concerns about the impact of climate change on water and the need for appropriate responses at local, national, regional, and global levels.
It is clear that the above considerations cast several responsibilities on the Central government, apart from those of the State governments. Given these and other concerns, the need for an overarching national water law is self-evident.
(2) Several States are enacting laws on water and related issues. These can be quite divergent in their perceptions of and approaches to water. Some divergences from State to State may be inevitable and acceptable, but extreme and fundamental divergences will create a very muddled situation. A broad national consensus on certain basics seems very desirable.
(3) Different State governments tend to adopt different legal positions on their rights over the waters of a river basin that straddles more than one State. Such legal divergences tend to render the resolution of inter-State river-water conflicts extremely difficult. A national statement of the general legal position and principles that should govern such cases seems desirable.
(4) Water is one of the most basic requirements for life. If national laws are considered necessary on subjects such as the environment, forests, wildlife, biological diversity, etc., a national law on water is even more necessary. Water is as basic as (if not more basic than) those subjects.
(5) Finally, the idea of a national water law is not something unusual or unprecedented. Many countries in the world have national water laws or codes, and some of them (for instance, the South African National Water Act of 1998) are widely regarded as very enlightened. The considerations behind those national codes or laws are relevant to India as well, although the form of a water law for India will clearly have to be guided by the nature of the Indian Constitution and the specific needs and circumstances of this country.
Let us now consider the term ‘framework law’. My purpose in adopting that term was precisely to avoid the danger of centralisation. In introducing our sub-group’s draft we stated clearly that the proposed national water law was not intended to change the Centre-State relations in any way; that what was proposed was not a Central water management law or a command-and-control law of the usual kind, but a framework law, i.e., an overarching statement of general principles providing a framework within which the Centre, the States and the local governance institutions will exercise their respective legislative and/or executive (or devolved) powers.
However, the framework law was intended to be justiciable in the sense that the laws passed and the executive actions taken by the Central and State governments and the devolved functions exercised by PRIs would have to conform to the general principles and priorities laid down in the framework law (on the basis of a national consensus), and that deviations can be challenged in a court of law. The point will become clearer if we think of the proposed national water framework law as something like the Directive Principles of State Policy, but different in the sense that it would be justiciable.
If such a national law is considered desirable, there are ways in which Parliament can enact it. We need not go into those modalities here.
The reason for my mentioning our sub-group’s draft law must now be clear. The purpose was not to advertise that draft or to appeal to the government to adopt it — though we will of course be gratified if that happens — but to draw attention to the difference in approach between the sub-group and the Ministry. Though both the subgroup and the Ministry want a national law on water, the purposes in view are different. What the sub-group wanted was to bring about a national consensus on certain general principles relating to water, whereas the prime concern of the Ministry was apparently to strengthen the hands of the Centre. That was presumably why it put aside our draft and set up a Committee to prepare a new draft.
This also explains why the Centre was unable to persuade the State governments to accept the idea of a national water framework law. The manner in which the Centre put forward that idea at the Water Resource Ministers’ Conference and the NDC must have given indications of the underlying desire to strengthen the hands of the Centre. In fact, though the Ministry uses the term ‘framework law’, what it has in mind is not really a framework law but a conventional operational one. This must have set the alarm bells ringing in the minds of the Chief Ministers.
As a result, the very idea of a national water framework law has become suspect in their eyes. Even if the Alagh Committee comes up with a draft of a genuine framework law with no elements of centralisation, it will now be an uphill task to persuade the States to accept it. This is a setback to an important initiative.
The purpose of this article is to commend for the government’s consideration an approach that would rescue the idea of a national water framework law from total rejection by the States. Their fears of centralisation need to be dispelled in a convincing manner, and what is put forward must be a real framework law.
(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)