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In Muddy Waters

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The National Water Framework Bill and a Model Bill for Conservation, Protection and Regulation of Groundwater are meant to regulate the use of water. However, they are vague and the government has the final say in its use  

By Dinesh C Sharma

There has been a lot of focus recently on cleaning up major rivers like the Ganga and the Yamu-na, depleting groundwater levels and linking up some rivers. While there are a large number of legal instruments available to combat these issues, they have not helped in either preventing pollution, degradation of the water system or in handling water-related disputes.

The poor in India face a daily struggle for water, like in Sanjay Colony in South Delhi
The poor in India face a daily struggle for water, like in Sanjay Colony in South Delhi

Among the plethora of laws that govern rivers are state Irrigation and Drainage Acts, Interstate River Water Disputes Act, 1956, River Boards Act, 1956, Interstate Water Dispute Tribunal Awards and EIA Notifica-tion of September 2006, besides Water Prevention and Control of Pollution Act 1974 and the Environment Protection Act of 1986. Yet, there is no law that mandates that pere-nnial rivers should have freshwater flow all round the year even when a dam is constructed or water is diverted for power projects.

During the British era, there was an act called River Conservancy Act (Madras Act IV of 1884) but it had more to do with regulating the use of land within river banks rather than the river itself. The Waterman of India, Rajendra Singh, has been demanding a water security law to guarantee equitable access of water for all. Some states do have laws for groundwater regulation, but their implementation is lacking.

NEW LEGISLATION

In the context of all this, the central government has made a move to bring in new legislations. A committee was constituted under the chairmanship of Mihir Shah, former member of the Planning Commission, to prepare drafts of two bills—National Water Framework Bill and a Model Bill for Conser-vation, Protection and Regulation of Gro-undwater. As the name suggests, the Nat-ional Water Framework Bill provides an overarching national legal framework under which legislation and executive action on water at all levels of governance can take place. The draft claims that it is based on “principles for protection, conservation, regulation and management of water as a vital and stressed natural resource”.

“Nirmal Dhara”, unpolluted flow of a river, is one of the aims of the government
“Nirmal Dhara”, unpolluted flow of a river, is one of the aims of the government

The draft bill on groundwater, on the other hand, is supposed to be used by states as a model for regulating groundwater. It says it’s based on “the principles of subsidiarity, equitable distribution in an integrated approach”. It reiterates that the state should act as a public trustee of groundwater, which should be treated as “a common pool resource to make sure that groundwater is protected, conserved, regulated and managed”. The two drafts have been opened up for public debate.

The National Water Framework Bill is not a law by itself but a framework for specific legislation relating to water, as well as executive actions. It talks of “Right to Water for Life”, but the terminology used is rather vague. It says that “every person has a right to sufficient quantity of safe water for life within easy reach of the household regardless of, among others, caste, creed, religion, community, class, gender, age, disability, economic status, land ownership and place of residence, provided that the precise quantity of safe water for life shall be determined by the appropriate government from time to time”. So while right to water is being offered, it is not absolute but will be defined by the government from time to time. Water has been dubbed a “common heritage of the people of India” for everyone to use but “subject to reasonable restrictions”.

COMMON RESOURCE

In its natural state, such as rivers, streams, springs, natural surface water bodies, aquifers and wetlands, water is a common pool resource, not ame-nable to ownership by the state, communities or persons. While water

is called a common heritage, the state has been made a trustee (“The state at all levels holds water in public trust for the people and is obliged to protect water as a trustee for the benefit of all”). In effect, the government will have full control of all water resources.

“River rejuvenation”, a pet subject of the government, has been codified in the draft framework bill. It says that “appropriate government shall strive towards rejuvenating river systems with community participation, ensuring: “Aviral Dhara” (continuous flow in time and space including maintenance of connectivity of flow in each river system); “Nirmal Dhara” (unpolluted flow so that the quality of river waters is not adversely affected by human activities) and “Swachh Kinara” (clean and aesthetic river banks). The use of the word “aesthetic” means that the government is opening doors for riverfront development—a long-standing demand of real estate and engineering lobbies. The bill has sections on water quality, river basic management plans and water security plans.

However, expert opinion on the utility of the two drafts is divided. “Both bills are on subjects that are essentially the domain of states as per India’s constitution. It is up to states to adapt, enact and implement the groundwater bill. The Framework Bill also depends on approval from some state legislatures before the center can pass it. Even then, it will only remain like a guideline for states to follow, it cannot be a strictly enforceable law,” explained Himanshu Thakkar of South Asia Network of Dams, Rivers and People.

Manoj Misra of Yamuna Jiye Abhiyan said: “While the water Framework bill has a lot to commend it, what disturbs one is its total anthropomorphic focus, as if no other species other than man inhabits the planet Earth and all the water that it contains is meant exclusively for human benefit and use. This attitude is rather strange as the Bill otherwise has several forward-looking features.”

LIP-SERVICE

Moreover, operationalizing words like “Aviral Dhara” are challenging when big dams are being constructed in the hills, reducing mighty rivers to dried-up streams. “If you see the track record, Aviral Dhara, Nirmal Dhara and now Swachh Kinara amount to just paying lip-service. There is absolutely no move from the center to take any effective or decisive move to achieve such flows even for Gan-ga, leave aside other rivers,” said Thakkar.

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Further, the institutional mechanism proposed under the model groundwater bill can only further complicate its governance. Under the proposed law, every gram panchayat will be required to constitute a groundwater sub-committee as part of the village water and sanitation committee and be vested with all the functions and powers required to protect and manage groundwater resources. In cities, every ward of a municipality, where groundwater is extracted for use, shall form a Ward Groundwater Committee. These committees will determine the minimum quantity of water for life to be supplied from groundwater and/or surface water, depending on their respective availability. The ward committees will also prepare a “ward groundwater security plan” and present it to a ward sabha for approval.

The riverfront of Sabarmati is the preferred model among pro-development lobbies
The riverfront of Sabarmati is the preferred model among pro-development lobbies

Thakkar pointed to the fact that the central government had circulated a draft groundwater bill in the 1990s. “Only a few states adapted it. But there is no real regulation of groundwater happening anywhere in the country. Even the constitution of Central Ground Water Authority under the Environment Protection Act 1986, following Supreme Court orders in 1996, has been a complete failure,” he said.

“The center does not seem particularly serious about groundwater regulation. Oth-erwise, it could have easily mandated implementation of groundwater regulation as given in the model bill or could have directed regulation of groundwater in smart cities and such other centrally funded schemes,” said Thakkar.

Photos: Courtesy Anil Shakya 

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