Constitutional Provisions on Water Resources PDF

Legal Aspects of Water Resources  Water – a Vital Resource Essential for: – Life – Livelihood – Ecology Vital for Economic Development Crucial for: – Food Security – Energy Security  Water Resources Ever increasing demand for water Increasing competiti...

Legal Aspects of Water Resources  Water – a Vital Resource Essential for: – Life – Livelihood – Ecology Vital for Economic Development Crucial for: – Food Security – Energy Security  Water Resources Ever increasing demand for water Increasing competition for dwindling water resources among nations, states, basins, districts, users Need to have proper rules for governing the development & use of this resources and proper mechanism for dispute resolution  Water Resources : Issues Water quantity & quality issues Floods & Droughts Inefficient Use & Wastage in Every Water Use Sector GW over exploitation Inadequate R & M Inter-state, Intra State & Inter Sectoral Conflicts Inequitable Distribution Low Awareness About Overall Scarcity & Economic Value of Water Fragmented Approach by different levels of  Role of the GOI in WRD&M Union Ministry of Jalshakti is responsible for – General policy on water resources development as a national resource – Technical and financial assistance to the States for irrigation, flood control, safe and adequate drinking water to rural India, ground water exploration, command area development, drainage, sea erosion problems, dam safety etc. Important role to play for resolution of Inter-state water disputes. It also has role for regulation and development of inter- State rivers Water related issues are also handled by other Central Ministries. – Ministry of Urban Development – Ministry of Power –Water beingofaEnvironment Ministry State subject,and the State Governments have primary Forests responsibility – Ministry for use and control of this resource. of Rural Development  Law Water Resources Use & Management Policies Institutio / ns progra ms  Indian Constitution is our fundamental law. All other laws passed by the Constitutional Central or State legislative Provisions authorities as well as all subordinate legislations Laws/Acts have to conform to the constitutional provisions. Rules/Procedures Whichever legislation or part of it falls out of the Interpretation & ambit of the constitutional Implementation provision becomes unconstitutional and hence can be declared as illegal and inoperative.  Constitutional provisions Pertaining to the water of rivers Main basis of legislative and executive framework which govern the use, development & management of India’s water resource. Laws relating to water in India have diverse origins, – Ancient traditions – Local customs – The British Common Law – GOI Act 1919 and 1935 – Constitution of India  Provisions for Inter-state matters Article 263 of the Constitution Inter- of India provides of co- State council ordination between the States Article 263 by order and therefore establishment of of Presiden Inter-State Council. t Article 262 is a special provision dealing with disputes Inter- and development of inter-state State water Article dispute rivers and river valleys. 262 resolution Special provision overrides the by Parliamen t Law general provision and therefore Article 262 is important for  Article 262 Provides for the adjudication of disputes relating to the waters of Inter-state rivers or river valleys. Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of , or, in any Interstate-Rivers or River valleys., Notwithstanding anything in the Constitution, Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause List-I ( Union List-Schedule VII ) Entry No.56 “Regulation and Development of Inter State Rivers and River Valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.” List - II ( State list-Schedule VII ) Entry No. 17 “Water, that is to say, water supplies, irrigation and canals, drainage and embankment water storage, water power, subject to the provisions of entry No 56 of List I”  Entry 97 of List-I 97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.  CONSTITUTIONAL PROVISIONS Fundamental Rights : “Right to life and personal liberty” guaranteed under Article 21 Right to equality before the law and equal protection of the laws guaranteed under Article 14 would require non-discrimination and absence of arbitrariness in the matter of access to water. Directive Principles of State Policy : Article 39(b) directs the State to adopt policies with a view to secure that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good.  CONSTITUTIONAL PROVISIONS Fundamental Duties – Article 51A imposes the duty on every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for all living creatures. Eleventh Schedule (Powers of Panchayats: Article243G) – 3. Minor irrigation, water management and water-shed development – 11. Drinking water – 13. Roads, culverts, bridges, ferries, waterways and other means of communication – 29. Maintenance of community assets Twelfth Schedule (Powers of Municipalities: Article 243W)  CONSTITUTIONAL PROVISIONS Centre’s control over State Legislation – Article 252: Power of Parliament to legislate (on state subjects) for two or more States by consent and adoption of such legislation by any other State. – Article 253: Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. – Article 356 : Parliament's power to legislate under in case of emergency breakdown.  Existing Central Legislations Inter-State Water Dispute Act, 1956 River Board Act, 1956 The Water (Prevention and Control of Pollution) Act 1974 The Environmental (Protection) Act (EPA), 1986 Dam Safety Act-2021 The Indian Easement Act 1882 Legal Initiatives by MoJS Amendment to Inter State River Water Dispute Act 1956 Draft Model National Water Framework Bill State Bill on River Basin Management Bill Integrated Water The Model Ground Water Bill Resource Draft National River Ganga Development (Rejuvenation, Protection and Management) Bill 2019 and Management Model Bill for Flood Plain Zoning (Regulation and Control), 2021 Draft River Regulation Zone Bill (by MoEFCC) Existing Central Legislations Inter-State Water Dispute Act, 1956  Inter-State River Water Dispute Act - 1956 By virtue of the Authority given by Article 262 – The parliament has enacted the Inter-State River Water Dispute Act in the year 1956 – For the adjudication of disputes, involving the issues of the use, distribution and control of the Inter-state River waters. – And also provided for the exclusion of the Jurisdiction of all Courts including the Supreme Court of India in this matter.  ISRWD Act-1956 If a State Govt. complaints to GOI about a water dispute with other state/s – GOI has to constitute a water dispute tribunal within one year and refer the dispute to it, – The Tribunal shall consists of a Chairman & two members nominated by CJI – GOI may appoint two or more persons as Assessors in consultation with the Tribunal – The tribunal shall have same powers as Civil Court  ISRWD Act-1956 Tribunal have to submit its report/Decision within 3 years Time can be extended by 2 more years GOI / States can seek guidance or explanation from the tribunal within three months of its decision Tribunal may give its Decision on this within 1 years ( again extendable )  ISRWD Act-1956 Decision of the tribunal to be published in Official Gazette The published decision will have same force as an order or decree of supreme court GOI may frame schemes and establish an authority to give effect to the decision of the Tribunal Give composition, powers, jurisdiction, funding, functions, conditions of service etc. complete Inter-State water disputes under ISRWD-1956 Constitution River(s) States Date of Award of Tribunal Maharashtra, Andhra Pradesh, May 1976 Krishna April 1969 Karnataka Rajasthan, Madhya Pradesh, Narmada October 1969 December 1979 Gujarat, Maharashtra Krishna Narmada Inter-State water disputes under ISRWD-1956 Constitution River(s) States Date of Award of Tribunal Maharashtra, Andhra Pradesh, Godavari Karnataka, Madhya Pradesh and April 1969 July 1980 Orissa Report /Decision given in Ravi-Beas Punjab, Haryana, Rajasthan April 1986 April 1987. Further report is pending. Godavari Inter-State water disputes under ISRWD-1956 River(s) States Tribunal Date of Award Report u/s 5(2) received 5.2.2007 Kerala, Karnataka, Tamil Order notified on 20 -2-2013. Cauvery Nadu and Union Territory of June 1990 Final SC Judgement on 18-feb Pondicherry 2018. CWMA formed Karnataka, Andhra Pradesh Report given in December 2010. Krishna April 2004 and Maharashtra SLPs filed by states. Krishna Cauvery Inter-State water disputes under ISRWD-1956 River(s) States Tribunal Date of Award Report / Decision given on 14-8- Mandovi/ Goa, Karnataka and Mah Nov 2010 2018. Further report is pending. Mahadayi/ Award Published on 27-2-2020 Report /Decision given on 13-9-2017. Aug 2009/ Feb Further report given on Vansadhara Andhra Pradesh & Orissa 2010 23.09.2019. SLPs filed by states. Under adjudication. Report / Decision Mahanadi Chhatisgarh & Odisha March 2018 awaited. Mahadayi Inter-State water disputes under ISRWD-1956 River(s) States Tribunal Date of Award Under adjudication. Report / Mahanadi Chhatisgarh & Odisha March 2018 Decision awaited. Mahanadi April 1986/ April 1987 Mahanadi Chhattisgarh/Odisha March 2018 September 2019 /August 2018 Amendments of the Inter State Water Dispute Act 1956 The Act was amended in 1980 and Section 6A was inserted to accommodate directions of NWDT. This Section provides for framing a scheme for giving effect to a Tribunal's award. The Act was amended in April, 1986 to set up a Tribunal known as “Ravi Beas Waters Tribunal”, suo moto, or on the request of concerned State Government and Section 14 was inserted. The Act was further amended in August, 2002 as a follow up to the Recommendations of Sarkaria Commission on Centre State relations & was renamed as Inter-State River Water Disputes (ISRWD) Act, 1956  Why Bar SC Historical Reasons Absence of any clear rules for allocation & use Dynamic nature & Ambiguity of factors involved Time taken for legal cases …  Why Bar SC- Remarks by USA SC “The reason for judicial caution in adjudicating the relative rights of States in such cases is that, while we may have jurisdiction over such disputes, they involve the interests of quasi sovereigns, present complicated and delicate questions and due to the possibility of future change of conditions, necessitate expert administration, rather than judicial imposition of a hard and fast rule. We say of this case, as the court has said of inter- State differences of like nature, that such mutual accommodation and agreement  Contradictions Bar of jurisdiction of supreme court and other courts In-spite of this, States approach SC and SC also admits the SLPs The routes adopted are Article 131 & Article 136  Article 131 Subject to the provisions of the Constitution the Supreme Court shall to the exclusion of any other Court , have original Jurisdiction in any dispute ---- a) between the Government of India and one or more States; or b) between the Government of India and any State or States on one side and one or more other States on the other; or c) between two or more States. It is also provided by the Art.131 that the Supreme Court shall have no jurisdiction to try any dispute relating to any State, if such jurisdiction is barred by the provisions of any treaty, agreement, engagement or the like.  Article 136 Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India (2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Existing Central Legislations River Board Act, 1956  River Board Act, 1956 In pursuance of Entry No.56 The enactment passed by the Parliament in the year 1956 This Act is called the River Boards Act 1956. The Preamble of this Act states as follows: – “It is an Act to provide for the establishment of River Boards for the Regulation and Development of Inter-­State Rivers and Rivers Valleys.”  Declaration as to expediency In this connection Parliament had passed the legislation of expediency in River Boards Act 1956. Section 2 of the said Act is as follows: – Declaration as to expediency of control by Central Government: It is hereby declared that it is expedient in the public interest that the Central Government should take under its control the regulation and development of inter-State Rivers and River Valleys to the extent hereinafter provided.  River Board Act, 1956 The Central Government may, on a request received in this behalf from a State Government or otherwise, by notification in the Official Gazette, establish a River Board for advising the Governments interested in relation to such matters concerning the regulation or development of an inter-State river or river valley or any specified part thereof and for performing such other functions..  River Board Act, 1956 …… different Boards may be established for different inter-State rivers or river valleys: Provided that no such notification shall be issued except after consultation with the Governments interested with respect to the proposal to establish the Board, the persons to be appointed as members thereof and the functions which the Board may be empowered to perform. …. Every Board so established shall be a body corporate having perpetual succession and a common seal, and shall by the said name sue and be sued. Provision for arbitration in case of dispute  River Board Act, 1956 There is a flood of legislation in our country but good numbers of law are only on the statute book without any operation. The living example is the River Boards Act, 1956. There is no appointment of any such Board since the inception of Act in 1956-57. Now it is high time to put into operation or modify it to make it more effective.  Existing River Boards (Established for specific purpose ) 1 Damodar Valley Constituted under ‘Damodar Valley Corporation Corporation Act, 1948’ as per Art 372 of Indian constitution. For Promotion and operation of river system for irrigation, water supply, drainage, hydro-electric and thermal power generation, flood control, navigation, afforestation, control of soil erosion, public health, agricultural, industrial, economic and general well being of people. 2 Betwa River Constituted under the Betwa River Board Board Act, 1976 For Efficient, economical and early execution of Rajghat dam project 3 Brahmaputra Constituted in 1982 under Board Brahmaputra Board Act, 1980 For Master plan for the control of floods in the Brahmaputra Valley  Existing River Boards (Established for specific purpose ) 4 Tungabhadra Established through notification in Board 1955 under Andhra State Act, 1953 For Completion of the Tungabhadra project, maintenance and operation 5 Bhakra and Beas Established under section 79 of the Management Punjab Reorganisation Act, 1966 Board For Administration, maintenance and operation of Bhakra-Nangal project 6 Narmada Control Constituted under Section 6A(1) of Authority the Inter-State Water Disputes Act, 1956 to give effect to the decision of NWDT For Proper implementation of the decisions of the Tribunal  Existing River Boards (Established for specific purpose ) 7 Upper Yamuna River Set up as per the provisions of MoU Board signed on 12-May-1994 amongst Yamuna basin States. For Distribution of the available flows among co-basin states within the overall framework of the MoU. 8 Bansagar Control Board Set up vide GoI Resolution dated 30.1.76 in accordance with Bansagar Agreement. For Ensuring efficient, economical and early execution of Bansagar dam and connected works 9 Supervisory Committee Constituted in October, 2013 in on Babhali barrage pursuance of the directions of the Supreme Court 10 Godavari and Krishna Established in 2014 under Andhra- River Management Pradesh Reorganisation Act, 2014 Boards To achieve equitable sharing of Godavari and Krishna waters by States of AP & Telangana based on relevant Awards  Existing River Boards (Established for specific purpose ) 11 Cauvery Water Constituted in pursuance to the Hon’ble Management Supreme Court’s direction dated 16th Authority (CWMA) Feb, 2018. For Implementation of the Cauvery Water Disputes Tribunal award as modified by SC. 12 Ganga flood control Set up vide Resolution dated 18.4.72 for commission(GFCC) dealing with flood and their management in Ganga basin states To deal with floods and its management in Ganga Basin States. 13 Mahadayi Constituted under section 6A of the PRAWAH Inter-State Water Disputes Act, 1956 (Progressive River to give effect to the decision of Authority for Tribunal vide notification dated 22- Welfare And 5-2023 Harmony) For implementation of the decisions of the Tribunal Existing Central Legislations The Dam Safety Act 2021  Dam Safety Act The draft for Dam Safety Bill was prepared by MoJS. The bill went through many iterations and consultations before it was enacted. The Act enjoins responsibility on Central Government, State Governments and owners of specified dams to set up an institutional mechanism for ensuring safety of such dams  Dam Safety Act It defines the duties and functions of these institutions in relation to perpetual surveillance, routine inspections, operation and maintenance, maintenance of log books, instructions, funds for maintenance and repairs, technical documentation, reporting, qualifications and trainings of concerned manpower etc. Provisions have been made concerning the necessities of periodical inspections, instrumentations and establishment of hydrological and seismological stations. The Act addresses the issues of emergency action plan and disaster management, and also enlists the requirements of comprehensive dam safety evaluation. ( In 2007, Andhra Pradesh and West Bengal had passed resolutions, requesting Parliament to make a law on dam safety)  Dam Safety Act-2021 The Union Cabinet on 13th June 2018 approved the Draft Dam Safety Bill 2018. After lot of deliberations, The Dam Safety Bill 2019 (Bill No. 190 of 2019) was passed by the Lok Sabha on 02.08.2019 and The Bill is passed by Rajya Sabha on 2nd December 2021, The President gave accent 13-12- 2021. Parliament enacted the law under Article 246 of the Constitution read with Entry 56 and Entry 97 of the Union list.  Dam Safety Act-2021 Central Government vide Ministry of Jal Shakti Gazette notification, S.O. 757 (E) dated 17 February 2022 – Constituted The National Committee on Dam Safety (NCDS) – Notified the Rules related to NCDS – Constituted The National Dam Safety Authority (NDSA) – Notified the Rules related to NDSA State Committee on Dam Safety (SCDS), and establish State Dam Safety Organisation (SDSO) – 28 States and 3 UTs have have constituted the SCDS and SDSO in compliance of the provisions of the Dam Safety Act, 2021.  Existing Central Legislations The Water (Prevention and Control of Pollution) Act 1974 – The Act incorporates provisions for creating Central and State Pollution Control Boards The Environmental (Protection) Act (EPA), 1986 – In exercise of the powers conferred by this act, the Central Government constituted an authority known as “Water Quality Assessment Authority (WQAA)” and also “Central Ground Water Authority (CGWA)”.  Existing Central Legislations The Water (Prevention and Control of Pollution) Act 1974 – The Water (Prevention and Control of Pollution) Act, 1974 was enacted as per Article 252 of the constitution for prevention of pollution of water due to discharge of liquid effluents from industries. – Subsequently, another Act namely Water (Prevention and Control of Pollution) Cess Act 1977 was also enacted as per Article 252 for enabling the effective implementation of the earlier Act. – The Act incorporates provisions for creating Central and State Pollution Control Boards. – All the states adopted the Act by 1990 – Some States also have their own acts for pollution control. E.g. Orissa, Maharashtra.  The Environmental (Protection) Act (EPA), 1986 It was passed by the Union Parliament in 1986 under article 253 of the constitution and was notified by the Union Ministry of Environment and Forests. The act was passed in the wake of Bhopal Gas Tragedy, to implement Stockholm Declaration of UN conference on Human Environments, to which India is a signatory. This Act covers different facets of “environment” including water as well as items interrelated to water. In exercise of the powers conferred by this act, the Central Government constituted an authority known as “Water Quality Assessment Authority (WQAA)” and also “Central Ground Water Authority (CGWA)”. Model Bill for regulation of GW Development Central Govt has Circulated Model Bill for regulation of GW development from time to time. 21 States/UTs have adopted it till now. Central Ground Water Authority (CGWA) Guidelines to regulate and control GW extraction notified on 24.09.2020. Subsequent amendment on 29.03.2023. CENTRAL WATER COMMISSION  WATER: Ownership Right The Indian Easement Act 1882 – Though this act is of British times, it remains in force after Independence as per the article 372 of the constitution – An easement is a right which the owner or occupier of certain land possesses as such for the beneficial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own  The Indian Easement Act 1882 It states that (a) “The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel”.  WATER GOVERNANCE INSTITUTIONS Central & State Legislature National Water Resources Council National Water Resources Board Central Ministries & Organizations State Ministries & Organizations District Administration Block Level & Panchayat level institutions  Central Ministries DoWR, RD &GR (MoJS) Principle agency responsible for water resources in India Ministry of Commerce & Industry Planning and development of water resources : Ministry of Power for industrial use Development of hydroelectricity Ministry of Environment , Forests Quality of surface and ground water & Climate Change Ministry of Rural Development Integrated Watershed Management / Integrated Drought Prone Management/DPAP Ministry of Urban Development Drinking water & sanitation in urban areas Ministry of Agriculture Water Use Efficiency, National Watershed Development of Rainfed Area; PMKSY-MCPD Dept. of Drinking Water & Rural Water Supply, Sewage, Jal Jeevan Mission Sanitation (MoJS) Ministry of Earth Science Meteorology, Evaporation, Rainfall data, Climate, Temperature, Integrated Coastal Area & Marine Zone Management Ministry of Science & Technology National Natural Resources Management :WRIS/RS & GIS Ministry of Shipping Inland Waterway, Navigation, National Waterways  Central Organisations Central Water Commission Central Ground Water Board Central Ground Water Authority Central Pollution Control Board /State PCB Central Water & Power Research Station Central Soil & Materials Research Station National Institute of Hydrology River Boards Etc.  State Level legislation Irrigation Acts Canal Act/Rules Management of Irrigation systems by farmers (PIM) Irrigation Utilisation and Command Area Development Act Ground Water Development & Management Act Pollution Control Water Supply and Sewerage Act Acts related to Panchayat & Municipalities, Embankment and Drainage Act Soil And Water Conservation and Land Development Act Water and Waste Water Reforms Water Resources Regulatory Authority Act PARTICIPATORY IRRIGATION MANAGEMENT State & UT Institutions Role of District & Local Administration LEGISLATIVE INITIATIVES BY MoJS Amendment to Inter State River Water Dispute Act 1956 National Water Framework Bill (PP) River Basin Management Bill (BM) The Model Ground Water Bill (CGWB) Draft National River Ganga (Rejuvenation, Protection and Management) Bill 2019, (NMCG) Model Bill for Flood Plain Zoning (Regulation and Control), 2021, (FM) Draft River Regulation Zone Bill (NRCD) (by MoEFCC) Draft Model State Bill on Integrated Water Resource Development and Management  Draft Model State Bill on Integrated Water Resource Development and Management MoU between DoWR, RD & GR and M/s Vidhi Centre for Legal Policy Amalgamating the six draft Bills under the consideration of the Ministry, as under: a. Draft National Water Framework Bill 2016, (PP Division) b. Draft River Basin Management Bill 2018, (BM Division) c. Draft National River Ganga (Rejuvenation, Protection and Management) Bill 2019, (NMCG) d. Model Bill for Flood Plain Zoning (Regulation and Control), 2021, (FM) e. Model Groundwater (Sustainable Management) Bill 2021,(CGWB) f. Draft River Regulation Zone Bill. (NRCD) Once approved within the ministry, then the same will be sent to other Central Ministries and State Governments for their comments/observations.  Central Schemes PMKSY-AIBP Jal Jeevan Mission PMKSY-CADWM R&D in water sector PMKSY-MCPD (MI & HRB/Capacity Building SWMI) Flood Mgmt program PMKSY-WD DWRIS NHP Atal Bhujal Yojana-National DRIP Ground water management NMCG improvement scheme RRR National Aquifer Mapping and IEC Management Programme Etc. Thanks