SEMINAR COURSE REPORT
TOPIC- Water Law & Policy in 21st Century
Scholar Supervisor
Utsav Mishra Prof. Divyasheel Tripathi
BALLB- Sec B Asst. Professor
2018016131 SOL
WHAT IS WATER LAW?
Water law is the area of law dealing with ownership, access and control of water.
It is also concerned with the inter-state and transboundary dimensions of water,
the division of powers between the Government of India (or the ‘Central
government’), states, local bodies (such as municipalities in urban areas and
panchayats in rural areas), the public and private actors,
aswell as the issue of water quality together with its environmental and health
implications.
In popular usage, the term ‘laws’ refers to the whole body of rules relating to one
subject, oremanating from one source.
In the context of water laws in India, the term ‘law’ includes:
The Constitution of India
Laws or Acts
Decisions of the Supreme Court of India, High Courts, district courts and nyay
panchayats
Common law or law developed by English judges through judicial decisions, as
applied inIndia.
Customary norms or rules of behaviour that may be unwritten but established by
long practice or usage. However, they can be trumped by a law passed by the
Parliament.
OBJECTIVES OF WATER LAW?
Allocation of water for different uses;
Setting up of priorities among different uses of water;
Conservation of water resources;
Implementation of the fundamental human right to water;
Maintain the quality of water sufficient for its various uses;
Ensure water for human survival and poverty eradication;
FUNDAMENTAL HUMAN RIGHT TO WATER
Over the past two decades the present legal framw ork is been concerning about
water’s legal perspective and included it by Human Rights Dimension ,
The core message is that all human beings are
entitled to equal and non-discriminatory supply of a sufficient amount of water.
India, the fundamental right to water has been
confirmed by the courts. In these cases, the right has been asserted on the basis of
fundamental rights under the Constitution (Articles 14, 15(2), 17 and 21). In some
cases courts have made it clear that the government has an obligation to provide
water Besides court judgments, there is relatively little in the legal framework
making the fundamental a reality.
In fact, key documents like the National Rural Drinking Water Programme
(NRDWP) only speak of a ‘basic need’ rather than a ‘fundamental right’. Similarly,
the National Water Policy, 2002 calls water a ‘basic human need’ rather than a
‘basic human right’ (para 1.1). Also, while a large number of laws have been passed
regarding water and water-based resources, they pay scant attention to the
implementation of the fundamental right to water.
Also, while a large number of laws have been passed regarding water and water-
based resources, they pay scant attention to the implementation of the fundamental
right to water. Owing to this obscurity, it is not clear whether the government can be
held legally liable forthe failure to respect, protect and fulfil the fundamental human
right to water.
CASE REGARDING WATER AS A FUNDAMENTAL HUMAN RIGHT
Subhash Kumar v. State of Bihar.
Narmada Bachao Andolan case
F.K. Hussain v Union of India and Others on 26 February 1990
Shajimon Joseph vs State Of Kerala on 4 December, 2006
SOURCE BASED AND USE BASED EVOLUTION OF RULES
The development of different rules for different sources and uses of water forms a
distinct feature water laws in India. Hence, the rights of individuals and powers of
government are different in the case of different sources and uses of water.
Power of State-
Regarding Surface water- Government exercises predominant control over all
surface water sources and is responsible for their allocation.
Regarding Ground Water- Individuals have controls over groundwater.
Power of Individual-
Regarding Surface Water- The link between access to surface water and land rights
is recognised and the principle of riparian rights is applied. So, landowners do not
own but can use surface water passing through or bordering their lands for private
use.
Regarding Ground Water- Groundwater is part and parcel of the land and there is
no separate title of ownership over groundwater. So, the landowner has the right to
collect and dispose of all the water under his land.
WHAT ARE THE BASES FOR WATER REFORMS?
WATER AS AN ECONOMIC GOOD
The most influential aspect of the ongoing water sector/law reforms is the principle
that views water as an economic good. This principle envisages use of water as a
commodity. It comes from the criticism against the traditionally following practice
that views water as a free natural resource that needs only to be collected from a
source and supplied. The criticism further says that the system of free water leads
to the wastage of the resource. On the contrary to this, the economic good approach
advocates a system of well defined private property rights over water resources.
That means, for example, there will be a pre-fixed quantity of water that an
individual can use. And in case that person is not using it, he can sell that water. It
is a highlighted advantage of this system that it will result in a more productive use
ofwater.
SHRINKING THE ROLE OF THE GOVERNMENT
Traditionally, the government has focused mainly on the development of water
infrastructure such as dams, irrigation canals and water treatment plants. The
Government of India has spent a huge amount of money on water supply and 10
other related infrastructure. In the first several decades of independence, the major
focus was on enhancing supply. For instance, in the case of irrigation, more and
more dams and canals were built. In the case of sanitation, the government
emphasised on providing subsidy to build toilets. Water law reforms recommend a
change in this approach of the government, that is, the government’s role as
supplier,regulator, financier and engineer.
DECENTRALISATION AND PARTICIPATION
Decentralization and participation are other two major bases of water law reforms
in India. Decentralisation and participation, in the context of water law reforms,
indicate transferring of the duties and responsibilities of water resource
management and allocation to the local level. It further indicates the involvement
of the users. The idea of decentralisation and participation means the withdrawal
of the government from major functional responsibilities and transfer of
responsibilities upon users, private companies, NGOs and local governing bodies
such as panchayats and municipalities. However, the ongoing reforms adopt a
limited understanding of these terms.
PRIVATIZATION
The reforms have encouraged private sector participation, particularly in urban
water supply. It is believed that private sector participation would ensure more
efficient management and delivery of water services, and would provide the
necessary investment. In the water sector,
privatisation can take the form of:
(i) Transfer of water supply responsibilities to private companies.
(ii) The public utility starts behaving like a private company (in urban areas) by
introducing cost recovery. This means pricing the actual cost of water supply.
(iii) Privatisation of water resources, such as flowing surface rivers. For instance, the
State of Chhattisgarh permitted a private company to build a dam over the river
Sheonath to provide water to users and assert rights over fishing in the area close to
its dam. The issue became controversial as 11 the company began to stop farmers
living near the river from pumping water from the river.
PUBLIC-PRIVATE PARTNERSHIPS (PPPS)
Ongoing water sector reforms use the term ‘public-private partnership’ instead of
‘privatisation’?
This may be due to the strong public sentiment against the idea of
privatisation of water. This may be the reason why new names are being used such as
public- private partnership or private sector participation. As the new names
indicate, it is slightly different from what we understood as privatisation. Here,
services or some works related to services are delivered by the private sector while
the ownership and major responsibilities rests with the government.
Some of the Major policies are
National Water Policy, 2002-13.
Jawaharlal Nehru National Urban Renewal Mission (JNNURM)
THANK YOU!!
