(Article) CSM - November 2012: Who should Control Water Resources

Who should control water Resources

Every State has Dispute in sharing water resources with its Neighbouring state. Then and there problems arising between Peoples of two states. They are not allowing neighboring state Vehicles to enter into their state. Some parts of India are flooded with Rain, they don’t have place to live till the flooded rain water gets drained, in some other parts people are longing to get water for irrigation and their basic needs. We can stop all these if we nationalize all water resources in India. But this is still under consideration from Government side, but no steps have been taken to implement this. Putting water on the Concurrent List is not necessarily an act of centralization, though it could lead to such a development. That danger is real and needs to be avoided.

The Union Ministry of Water Resources has for long been arguing for a shift of water to the Concurrent List without any serious expectation of its happening, but has now begun to pursue the idea more actively. The Ashok Chawla committee, which was primarily concerned with the question of rationalizing the allocation of natural resources with a view to reducing the scope for corruption, was reported by the media to have recommended inter alia the shifting of water to the Concurrent List. There seems to be no such specific recommendation in the draft of the Committee’s report that one has seen, but the possibility is referred to in the text and there is an Annexe on the subject. These developments have revived the old debate.

However the problems in implementing this I think are,

  • At present Water Resources in India are under the control of respective state government, to nationalize all water resources all state governments must accept it.
  • Detailed well planned architecture has to be prepared to connect all rivers without any city gets affected.
  • Lakhs and lakhs of Acres of Land will be needed to connect all rivers; this must be taken care by the respective state government.

Nationalization of water resources has both merits and demerits. Though it is a sensitive issue to be handled, considerations from different state governments are to be looked before doing any proceedings in this aspect. As different water resources cater different kinds of needs, it is to be clearly understood what type of resources are to be nationalized.

Merits are:

  • Nationalization can improve gross usage of water resources there by decreasing wastage
  • It creates employment to several people directly or indirectly
  • Future scope of utility of these can be estimated and implemented

Demerits are:

  • Political issues may concern the implementation of developmental activities
  • Corruption may go high
  • Inefficient monitoring leads to increased wastes of water resources

Should water be moved to Concurrent List?

Let us first be clear about the present constitutional position in relation to water. The general impression is that in India water is a State subject, but the position is not quite so simple. The primary entry in the Constitution relating to water is indeed Entry 17 in the State List, but it is explicitly made subject to the provisions of Entry 56 in the Union List which enables the Union to deal with inter-State rivers if Parliament legislates for the purpose. This means that if Parliament considers it “expedient in the public interest” that the “regulation and development” of an inter-State river, say the Ganga or Yamuna or Narmada, should be “under the control of the Union”, it can enact a law to that effect, and that law will give the Union legislative (and therefore executive) powers over that river. That enabling provision has not been used by Parliament. No law has been passed bringing any river under the control of the Union. Under Entry 56, Parliament did enact the River Boards Act 1956 providing for the establishment of River Boards for inter-State rivers, but no such board has been established under the Act. That Act is virtually a dead letter. The reasons are political, i.e., strong resistance by State governments to any enhancement of the role of the Central government.

Is the present constitutional division of legislative power relating to water between the Union and the States satisfactory? The Centre does not think so. None of the Commissions that has gone into the subject so far has recommended a change, largely because it seemed unrealistic. (The Sarkaria Commission thought that a change was unnecessary.) First, a move to put water into the Concurrent List at this stage will be generally regarded as a retrograde step that runs counter to the general trend towards decentralisation and enhanced federalism, and it will face serious political difficulty because there will be stout opposition from the States. Secondly, an entry in the Concurrent List will mean that both the Centre and the States can legislate on water, but the Centre can already do so in respect of inter-State rivers under Entry 56 but has not used that power. It seemed sensible to use that enabling provision, and also reactivate the River Boards Act, rather than pursue the difficult idea of a constitutional amendment to bring water on to the Concurrent List.

It will be seen that the above arguments against pursuing the idea of moving water to the Concurrent List are practical ones: the political difficulty of doing so, and the fact that the Centre can do certain things even without such a shift. That does not amount to a statement that there is no case for the shift. Let us ignore political and practical considerations, and ask: if the Constitution were being drafted for the first time now, where would one put water? The obvious and incontrovertible answer is: in the Concurrent List. There are several reasons for saying so.

First, it appears that to the Constitution-makers ‘water’ meant essentially river waters and irrigation. This is quite evident from the wording of the entries. In that context, it might have appeared appropriate to assign the primary role to the States, and provide a specific role for the Centre in relation to inter-State rivers. However, even from that limited perspective, a primary rather than a secondary or exceptional role for the Centre might well have been warranted: most of our important rivers are in fact inter-State, and inter- State (or inter-provincial) river water disputes were an old and vexed problem even at the time of drafting the Constitution.

Secondly, that limited perspective is in fact inadequate. Water as a subject is larger than rivers; ponds and lakes, springs, groundwater aquifers, glaciers, soil and atmospheric moisture, wetlands, and so on, are all forms of water and constitute a hydrological unity; and there is more to water than irrigation. If the environmental, ecological, social/human, and rights concerns relating to water had been as sharply present to the makers of the Constitution as they are to us, it seems very probable that the entries in the Constitution would have been different. (Incidentally, there are serious concerns now relating to groundwater — rapid depletion of aquifers in many parts of the country, the emergence of arsenic and fluoride in many States, etc. — and it is interesting that there is no explicit reference to groundwater or aquifers in the Constitution.)

Thirdly, the Constitution-makers could not have anticipated the sense of water scarcity and crisis that now looms large. It is clear that while action will be called for at the State and local levels, the perception of a crisis casts a great responsibility on the Centre: national initiatives will definitely be called for.

Fourthly, a new factor not foreseen even a few decades ago is climate change and its impact on water resources. This is a subject which is still under study and research, but it is clear that  coordinated action will be called for not only at the national level but also at the regional and international levels. The Central government has necessarily to play a lead role in this regard. 

The theoretical case for water being in the Concurrent List is thus unassailable. Of all the subjects that are or ought to be in the Concurrent List, water ranks higher than any other.  The practical and political difficulties of shifting it there remain, but these would need to be overcome.

However, if those difficulties prove insuperable, then we have to settle for the second best course (a modest one) of greater use by the Centre of the legislative powers relating to inter-State rivers provided for in Entry 56 in the Union List, and re-activation of the dormant River Boards Act 1956. It would further have to be supplemented by recourse to the wide-ranging provisions of the Environment (Protection) Act 1986 (EPA). It is of course possible for Parliament to legislate on a State subject if a certain number of State assemblies pass resolutions to that effect: that was the route followed in the case of the Water (Control and Prevention of Pollution) Act 1974.

At present, the EPA is being extensively used by the Centre for water-related action. For instance, the Central Groundwater Authority was set up in 1998 by a notification under the EPA. More recently, when it was considered necessary to set up a National Ganga River Basin Authority this was done under the EPA, instead of following the right but difficult course of enacting legislation under Entry 56.

Finally, putting water into the Concurrent List is not necessarily an act of centralization, though it could lead to such a development. That danger is real and needs to be avoided. Legislation and executive action must continue to be undertaken at the appropriate level (Central, State or local) in each case. The subsidiarity principle, i.e., the principle that decisions must be taken at the lowest appropriate level, will continue to be valid.

Interstate River Water Disputes of central government

In India, during the British rule, the interstate river water disputes were settled by the central government because the irrigation projects were virtually under the control of the Central Govern ment.

The Republic of India upon adopting a Consti tution made irrigation a state subject. Accordingly state governments, at present virtually exercise full control on planning, development, regulation, dis-tribution and control of water flowing through their territories. Under Article 262 of the Constitution the Parliament is empowered to provide for the adjudi cation or control of the water of any interstate river. Under the Voter Dispute Act, 1956 a tribunal con-sisting of three sitting judges of the Supreme Court or High Court has to be constituted by the central government for the settlement of an interstate water dispute when a request is received from a state government.

According to the Interstate Water Dispute Act, 1968 the Central Government has also been given the responsibility of regulation and de velopment of interstate rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by the Parliament by law to be expedient in the public interest.

The Parliament has also enacted the River Board Act, 1956 which authorizes the central gov ernment to constitute river boards in consultation with the state governments for regulation and devel-opment of interstate rivers. The Government of India formed rules on June 30, 1959, to settle inter state water disputes.

Among the important interstate water disputes mention may be made of the Kaveri Water dispute between Karnataka, Kerala and Tamil Nadu; the Krishna water dispute between Maharashtra, Karnataka and Andhra Pradesh; the Tungbhadra river water dispute between Andhra Pradesh and Karnataka; the Parambikulam, Aliyar and Bhivani river water dispute between Tamil Nadu and Kerala; the Godavari river water dispute between Maharashtra, Andhra Pradesh, Madhya Pradesh, Karnataka and Orissa; the Narmada river water dispute between Gujarat, Madhya Pradesh, Maharashtra and Rajasthan; the Mahi river water dispute between Gujarat, Rajasthan and Madhya Pradesh; the Ravi and Beas river water dispute between Punjab, Haryana, Rajasthan, Delhi, Jammu and Kashmir; the Yamuna river water dispute between Uttar Pradesh, Haryana, Himachal Pradesh, Punjab, Rajasthan, Madhya Pradesh and Delhi; the Karmanasa river water dispute between Uttar Pradesh and Bihar; and the Barak river water dispute between Assam and Manipur.

Many of these interstate water disputes have been settled on the basis of equitable apportionment which is the universally accepted principle (Sukhwal, 1987, pp. 56- 76). But still there are some interstate water disputes whose final solution, acceptable to all parties, has not yet been worked out. The Kaveri river water dispute belongs to same categories which besides embittering the relations between Tamil Nadu and Karnataka have even threatened the stabil-ity of the Central Government.

In a developing country like India, the interstate river water dispute must be resolved quickly so that water resources could be utilized and harnessed properly for economic development. One of the measures could be to declare all the major rivers as national property and national schemes under the central assistance should he launched for the development of their total command area with partial involvement of the concerned states. Separate corporations on the line of the Damodar Valley Corpo ration may be useful in this direction. Thus I feel that Water resources should be nationalized. If the Government nationalizes them, the government thinks of the need of the water in each state. Government supplies the water to each and every state as the demand of the water. Some stages have huge amount of water in there reservoirs and some don’t have a single drop. Water is essential for everyone. If government takes the responsibilities then all the land comes under cultivation and it will increases the productivity of the land and there by decrease the importing of goods from other countries and increase the number quality and quantity of the goods exported to the other countries by which it will increase the Indian economy. We are still a developing country we should use each and every path to make India a completely developed country.

By making the rivers nationalized the land becomes fertile and can be used for cultivation there are by the Indian labors can get some work, some food, and even Indian goods quality can also be increased.

Pankaj Kumar