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Regulating the Stuff of Life

Water and the Laws in India edited by Ramaswamy R Iyer

BOOK REVIEW

Regulating the Stuff of Life

Jayanta Bandyopadhyay, R Rajesh Babu

The book is divided into seven parts. In the first part, a comprehensive editorial introduction encapsulates the content while in the seventh and the final part, Iyer establishes a connection across the

“Water is the stuff of life and a

basic human right”.1 The

right to water as a fundamental right is manifest in the right to life enshrined under Article 21 of the Constitution of India. Water is everyone’s business and hence, water has also become no one’s commitment. In terms of contemporary notions of governance, laws describe the way water will be made available and used by the humans. While the ecology of water is highly integrated, policy and laws on water have remained highly fragmented. In a pioneering effort, at a period in history when water laws have changed fundamentally in many countries, Iyer has put together in a single volume several diverse aspects of water laws in India.

In the Indian Constitution, water is included in the state list. This entry is subject to the centre’s power in relation to the regulation and development of interstate river waters and river valleys provided by entry 56 of the union list. The Parliament of India has, for this purpose, enacted the Inter-State Water Disputes (ISWD) Act 1956 and the River Boards Act 1956. In addition to the private property rights associated with water, each state has its own legislation regulating various aspects of the use and distribution of water, including irrigation, water rates, etc. Owing to the lack of an entry on the environment in the union list, the Parliament has been using its residual powers to legislate on environment-related matters with regard to water regulation. This has a direct effect on the states’ regulatory authority. Another addition in recent years was the 1992 Constitutional Amendment authorising municipal and panchayat responsibility for uses of water at the local level.

Despite the existence of an extensive legal and jurisprudential framework, the Indian legal system has remained ineffective in ensuring a cohesive framework for the management of water in the country. The existing legal frameworks, many of

Water and the Laws in India edited by Ramaswamy R Iyer (New Delhi: Sage Publications), 2009; pp 670, Rs 995.

which are rooted in the pre-independence era, are not compatible with each other and have led to inconsistent and contradictory judgments. While Article 262 of the Constitution bars the jurisdiction of the Supreme Court in entertaining interstate water disputes, the repeated intrusion of the apex court has further complicated the dispute settlement process, leading to failure or delay in outcomes.

As India enters an era of intense water scarcity, largely resulting from unwise management, Iyer’s book shows the difficulty of making a more effective and comprehensive, yet simpler, legal framework for water in India. The law relating to water have undergone a substantial change all over the world. However, India seems to pay scant attention to developing a coherent legal framework for management of water resources. Iyer’s prime aim is to highlight this concern. In so doing, the book addresses the complex relationship between different stakeholders – the centre, the states and the people – and exposes the risk posed by lack of clarity in the current framework for water management in India.

The book has made a commendable effort in bringing together experts from various streams of expertise to identify the lacunae plaguing the existing framework and explore ways to address these from diverse perspectives. The contributors are in general agreement that the legal regime for water management in India needs updating. At a broader level, most authors seem to favour a bottoms-up approach and concur that the legal and institutional framework should be oriented towards enhancing the rights and responsibilities of the people over water. This requires decentralisation of the decisionmaking process, inculcating a sense of ownership, and giving primacy to negotiations and dispute resolution.

various chapters. Part one contains a rich preliminary overview by Vaidyanathan and Jairaj which sets the stage for the other sections to follow. In part two, Sankaran provides a broad overview of the constitutional status of water in the Indian federal structure while Nariman presents a review of the difficulties facing the resolution of interstate water disputes. It is a more realistic perspective on the need to avoid quick judgments and understand people’s aspirations in interstate water disputes. The authors provide a critical overview of the legal framework for the regulation of water from a historical and contemporary perspective. They highlight the dichotomy in the current legal framework and recommend several sets of solutions to ameliorate the current crisis. Sankaran, for instance, while emphasising the federal structure, shows how the residual power of the Parliament has been used to expand its supremacy over water. This trend seems to receive support from the courts through favourable interpretation of the Constitution. Even after the creation of the panchayati raj system, the conversation has always been between Parliament and the states in these matters. The decisions are made at top instead of allowing percolation of these rights to the people.

Nariman draws on his experience to show the slow and cumbersome nature of the dispute settlement mechanisms for interstate water disputes. He notes that the constitutional mechanism and the ISWD Act 1956 are ill-equipped to effectively settle interstate water disputes. He suggests repealing of the act. The author places his trust in the Supreme Court for adjudication of all interstate disputes within its original jurisdiction. D’Souza, on the other hand, explores the increasing involvement of the Supreme Court in interstate disputes despite an explicit constitutional prohibition, and challenges the call by some for doing away with Article 262 of the Constitution.

Part three covers some major waterrelated legal themes, such as the riparian

april 24, 2010 vol xlv no 17

EPW
Economic & Political Weekly

BOOK REVIEW

rights, ownership, the constitutional and fundamental right to water, conflict resolution, women’s issues, etc. Puthucherril makes an exhaustive study of riparian rights in India against the background of water scarcity. He notes that one of the primary reasons for the trouble over water in India is the lack of water laws as an effective management tool. He reasons that earlier doctrines relating to riparianism cannot suffice as a basis for water distribution in a modern legal system, primarily since the principles are inadequate to meeting the challenges posed by the emerging rethinking on water scarcity. He, thus, envisages greater state regulation to manage scarce resources.

Upadhyay addresses the question of ownership of water and demonstrates how the state has asserted its control and sovereign right over water, sidelining the rights of people and communities. He argues for greater people’s participation and for a legal regime which creates a sense of ownership grounded in the people’s right to water. In a similar vein, Vani talks about “community engagement” as essential for proper groundwater management. The author argues for a legitimate legal space for the engagement of people as citizens rather than as consumers or end users. The author expresses the need for a holistic approach in the governance of water and urges a shift from “eminent domain” to “public trust”, from bureaucracy to democracy and policy-based governance to governance by law.

Joy and Paranjape explore the increasing conflict over water allocation and sharing among different uses and users within the overall normative framework. The authors outline certain principles for allocation and suggest legal and institutional mechanisms to resolve these conflicts by setting up a single organisation. At the same time, higher emphasis is placed on evolving forums for inclusive dialogue, negotiation and settlements. Sivaramarishnan explores the fundamental right to water, as interpreted as part of right to life. He notes that despite several judgments to this effect, the status of water as a fundamental right has not been recognised by the authorities and there is nothing in the Indian legal system that makes the authorities feel

Economic & Political Weekly

EPW
april 24, 2010

that the right to water is a fundamental obligation.

Lahari-Dutt adds the much talked about gender perspective to the debate on water management in India. The author points out that even though women bear much of the burden of providing water for domestic use and irrigation, their concerns are not reflected in the legal regime. Baxi considers future options, suggesting that satisfaction of basic water needs should be accepted as a human right independent of the interpretation of right to life, unlike what has been understood till now.

In part four, the legal aspects of some major water-related problems are presented. Mishra analyses the difficult topic of how to understand floods and how to internalise ecology in the legal framework. Tyagi does the same for the case of water quality management. The major water conflicts within the country are addressed in part five. Menon and Kohli address the very important question of internalising environmental dimensions in large water projects, an aspect thoroughly disliked by the government engineers. Divan exposes the difficulties in making comprehensive impact assessments while Thakkar throws light on the large-scale displacement and lack of adequate rehabilitation accepted as a price to be paid by the poor for economic development. The Dhan Foundation has

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vol xlv no 17

taken up the much talked about issue of restoration of irrigation systems based on water tanks.

Part six has two very important contributions on the reform of water law. Cullet and Madhav identify both sectoral and general directions for reform, while Narasimhan adds the much-needed dimension of science and philosophy. Ecological inputs into water law have been absent so far, but to be practicable, the laws need to respect ecological options and limits.

The book is a commendable achievement that reflects the editor’s creativity and reflection on the question of water. This is too important a matter to be left under the exclusive control of engineers trained in traditional models of engineering. The book is a useful contribution to the literature on the social dimensions of water, and will be essential reading for education and research in the various dimensions of development studies, water management as well as law.

Jayanta Bandyopadhyay (jayanta@iimcal. ac.in) and R Rajesh Babu are at the Indian Institute of Management-Calcutta.

Note

1 United Nations Development Programme (2006):

Human Development Report 2006 – Beyond Scarcity: Power, Poverty and the Global Water Crisis

(New York: UNDP), 1.

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