Comments on Draft National Water Framework Law, 2013

Overall Comments

1.    First of all, we would like to state that the apart from the Bill drafted by the Committee set up by MoWR, headed by Dr. Alagh (Alagh Draft), there is also another draft of the National Water Framework Law. This is the draft prepared by the Sub-group of the working group set up by the Planning Commission in 2011, which was headed by Prof. Ramaswamy Iyer (Iyer draft).

2.    The Iyer draft, we feel, has many important features and provisions and we would urge that any discussions, and any action taken by the MoWR / Government of idnia on the draft National Water Framework Law Bill must consider the Iyer draft and not just the Alagh draft.

3.    In fact, we strongly believe that the Iyer draft represents a far more detailed and nuanced drafting, and includes many of the key ideas and principles that such a Framework Law should have; and that the Alagh draft lacks many of these key features. Hence, we feel that in the further process of finalising the National Water Framework Law Bill, it is the Iyer draft that should be used as a basis to build upon. The Alagh draft can be used as an input to the process.

4.    Because of this, our comments also draw from and include references to the Iyer draft.

5.    We feel that the Alagh draft, though it has several important and useful provisions, has many shortcomings (which are outlined in detail below).  Due to all of these shortcomings, adopting the Alagh draft runs the risk of creating a law that essentially maintains and supports the status quo, and helps maintain the current principles and ways of managing the water sector.

6.    The apparent reasons for setting up a new committee, as given in the Alagh Committee document are two: 1) drafting of a water framework act/bill would require wider consultation and wider consultation and the Iyer sub-group did not attempt this, and 2) Iyer sub grtoup “stipulated ideal propositions but lacked stipulations for actions by Central / States Governments”.  After going through the AC document we don’t  get any feel that they had indulged in any sort of wider consultation and except may be in a couple of places there does not seem to be any stipulations of actions by the central government or state governments.

7.    In fact providing too many stipulations and prescriptions can go against the spirit of the Framework law itself especially in the context of centre-state relations. The main purpose of a framework law is to come up with a set of binding principles and norms within an upper bound approach so that the different states can have enough flexibility and freedom to evolve their own principles and norms.

8.    The basic rationale for the proposed Law, and what should be its fundamental objectives is captured by very first paragraph of the Order  issued by the MoWR for the Alagh Committee, which also reflects the country’s new water policy adopted in Dec 2012 (Sec 2.1 and 2.2). It states:

“Even while it is recognized that States have the right to frame suitable policies, laws and regulations on water, there is a felt need to evolve a broad over-arching national legal framework of general principles on water to lead the way for essential legislation on water governance in every State of the Union and devolution of necessary authority to the lower tiers of government to deal with the local water situation. Such a framework law must recognize water not only as a scarce resource but also as a sustainer of life and ecology. Therefore, water needs to be managed as a community resource held, by the state, under public trust doctrine to achieve food security, livelihood, and equitable and sustainable development for all.”

Unfortunately, the Alagh draft fails to meet these basic objectives or expectations. On the other hand, the Iyer committee does capture these well.

Detailed Comments

Lack of Fundamental Perspective

9. The Alagh draft does not capture what should be the defining basis of the new law, namely, the recognition of water as a “a sustainer of life and ecology”. It gives much more weightage to water as an economic resource. The very start of the Alagh draft clearly indicates this. The first section (after definitions) is titled Basic Principles of Water Management and begins with with the clause “1) The planning and management of water resources shall be integrated appropriately with the management of all resources and shall take into account in an integral manner the local, regional, State and national needs.” Thus, the focus is on human needs and water management for human needs. The clauses following these do articulate the principles of ecology, equity, ecological flows etc. but the formulations are quite weak.

In contrast, the The  Iyer draft begins the main part of the Law (after the definitions) with a section titled Water: Heritage, Ecology, Equity, and the subsections in this section capture the nature of the water as common heritage of humanity, recognise that all water bodies are ecosystems by themselves and also parts of the larger ecology, and draw out the primary implications of this for water management, namely – the need to protect and conserve them, the need for minimum interference in the flows, and the need to reverse the adverse impacts of the interventions made till now.

Many other key aspects are elaborated in the sections that follow.

10. The Alagh committee has not dealt with the basic principles emanating from the nature of water as a central element of ecology, or from the issues of equity, sustainability in any holistic or comprehensive manner. It has mentioned various aspects of these in parts, spread over various sections. But they don’t add to a comprehensive perspective based on water as a element of ecology, not do they base water management on the norms of equity, sustainability. Moreover the goals of food security and livlihoods are also not built into the structure of the law.

11. Iyer sub group report does take a strong environmental perspective whereas this gets watered down in Alagh committee report. Iyer sub group talks about minimum interference with the rivers, minimum extraction of water, diversion, etc., whereas Algh Committee draft though does talk of environmental needs it sees it in terms of minimum ecological flows (see page 7 of Alagh committee draft). We feel that unless a strong environmental perspective drives the core of the new Law (as is expected from the TOR and the Water Policy 2012 which talk about the Framework Law recognising the nature of water as a sustainer of life and ecology), there will not be any fundamental change in the way water is seen or managed. 

12. Whereas the Alagh Committee draft sees water more in terms of economic good, the  Iyer sub group draft plays more importance in seeing water as a social good and this difference has implications for various things like inter-sectoral water allocation, pricing, etc. We feel that there is a clear need for the new Law to emphasise water as a social good, as the TOR and the Water Policy clearly require that “water needs to be managed …to achieve food security, livelihood, and equitable and sustainable development for all.” These goals can be met only if water is seen as a social good and this defines its management. 

Right to Water

13. The need to have a  Right to Water is recognised by the Alagh draft, but its elaboration is very limited. The Right is recognised only for potable water, not even for water for other domestic uses. Though it does mention the purpose of this potable water to include health and hygiene, its minimum quantity mentioned (25 lits per person per day) falls short of meeting any needs except that of drinking and cooking. The issue of quality is also not mentioned as an integral part of the Right to Water.

The Iyer draft has a much broader notion of Right to Water. First of all, it talks about the Right to Water for the “requirement of water for life”. Thus, we can assume that this includes water for all domestic needs.

The right includes right to the “sufficient” (quantity) and “safe” (quality) water. Further, this right is not restricted to human beings but is also extended to livestock and any domestic animal or bird, and protects the access of other wildlife to water from any human action.

However, one drawback common to both the drafts is that that neither considers water for livelihoods as a part of the basic right to water.

We urge that the Right to Water be considered more broadly, that it should include water for all basic human needs, for domestic cattle, that it should also include water for livelihoods, and that it should also include the right to adequate quantity and quality of water.

Water Regulatory Authorities, Privatisation

14. The Alagh draft seems to be propagating the same model of Water Regulatory Authority (WRA) as pushed by the agencies like the World Bank as a part of water sector reforms. In this, the WRA is seen primarily as a tariff setting agency that protects the interest of (private) water suppliers.

While the Alagh draft also mentions that the purpose of the WRA includes “ensuring equitable access to water to all” (apart from setting the prices), the inclusion of the WRA in the section on Water Pricing clearly indicates how Alagh draft sees these Authorities. It may be mentioned that the only such authority with some years of experience in the country is in Maharashtra and this has failed abjectly.

We would urge that a much broader view be taken of “regulation” itself, that the need for water regulatory authorities (especially on the lines of the MWRRA)  not be taken for granted but rather subject to more discussions, and that any regulation must be structured fundamentally for ensuring equity and sustainability.

Again, here we would like to recommend the more cautious approach taken by the Iyer sub-group and also the see the Water Regulatory Authorities as only one element of the larger institutional structure.

15. Alagh draft does not see any significant issues with privatisation (though it rightly emphasises that responsibility of the state as a public trustee remains in spite of privatisation) or adopting the Water Regulatory Authorities in the current format. We feel that this can be very risky approach.

We feel that the approach of the Iyer sub-group should be followed. The Iyer sub group takes clear stand against privatisation of the resource itself and talks of privatization of service delivery only under very stringent conditions. It also takes a clearer stand on water markets especially on bottling of water or industries using raw water and puts certain conditions. 

Lack of Emphasis on Participation

16. The Alagh draft is weak on the recommendations for participation of the people in the planning and management of water resources. For example, the entire section 7 on Integrated River Basin Development & Management that includes the need to make River Basin Master plans, does not mention any participation by the people. Similar thing is seen in the case of floods, or in the issue of reservoir operations. (Sec 9).

Section 10 on Project Planning and Management does mention participation, but its formulation is very weak and betrays a limited understanding of what participation should mean. Section 10(6) says: “(6) Local authorities, like Panchayats, Municipalities, Corporations, and Water Users Associations, wherever applicable, shall be empowered and involved in planning and management of the projects.”

Similarly, Sec 15 on Participatory Water Management seems to mainly talk of Water Users Associations, an important, but only limited part of participation.

We suggest that participation should be a core element of the new Law, and should be made an integral part of the institutional structure of the Law.

One of the important reasons for the Water Framework law is that it can help in resolving inter-state conflicts. 

Interstate Water Sharing

17. One of the major gaps has been that there is no clear cut understanding and norms around the issue of how to share river waters across different riparian states. Alagh Committee draft does not throw much light on this except a very general statement like the following, “The appropriate Government shall lay down principles for allocation of water resources for amicable resolution of differences and disputes”. Iyer sub group gives an elaborate set of guidelines and principles in this regard. It (Iyer sub group) also provides detailed institutional framework  – nested and federated -- to be built from below and also puts more emphasis on the principle of subsidiarity. 

Large Projects

18. Another major area of omission in the Alagh Committee draft is with regard to large projects. In fact one of the conflicting issues in India, apart from inter-state disputes, is how we go about the large projects. Alagh Committee draft does not say much on this issue whereas Iyer sub group draft lays out in detail the processes, principles that need to be adhered to– assessment of all options, selection of least cost options (both environment and social), prior informed consent of the affected people and proper rehabilitation on a pari pasu basis – which are in line with the World Commission on Dams (WCD) recommendations. 

Need to Modify Current Laws

19. There is the issue of which drives what – should the existing laws and legal framework around water shape the water framework law or should the existing laws be revised in the light of water framework law? Of course it cannot be black and white and there could be a relationship between the two. However, the Alagh Committee draft is more in line with the former whereas the Iyer sub group draft is in line with the latter. If one agrees that the existing water related laws are not very well informed by the bio-physical and socio-cultural peculiarities of water as a resource then one could say that what the Iyer sub group has done stands a better chance in restructuring the water sector in more sustainable, equitable, efficient and democratic lines.

        It should be pointed out that the new National Water Policy 2012 clearly indicates that the old laws need to be modified in line with the new framework law, when it says that “Existing Acts may have to be modified accordingly.” [according to the new framework law which would be based on the nature of water as a sustainer of life and ecology, and require water to be managed as a community resource held, by the state, under public trust doctrine to achieve food security, livelihood, and equitable and sustainable development for all] (Sec 2.2 Water Policy 2012) 

River Basin Master Plans

20. Among the important recommendations of the Alagh draft is the need to have, for all rivers, basins, sub-basins, a River Basin Status Report and subsequently a River Basin Master Plan. The latter is to include the environmental protection plan including cumulative impact assessment. (Section 7). An important part of this structure is that all water resource projects would have to conform to the Master Plan. (Section 10(2)).

        Of course, since participation is not emphasised in the making of this Master Plan, there is a danger that it can end up being a technocratic-bureaucratic exercise. Moreover, since the fundamental principles of water as a sustainer of ecology and life have not been laid down so clearly, the Master Plans may not reflect these critical principles.

        We strongly urge that the Framework Law must include such provision for status report and river basin master plan, however, both must be prepared with the full and meaningful participation of river basin communities and civil society.

21. Another important recommendation in the Alagh draft is that of preparing nationally standardised water footprints for all activities and products, and that demand for various uses shall be assessed based on these standardised footprints and these demand assessments will guide water allocation in the River Basin Master Plans. (Sec 3(14))

        This important feature should be included in the new Law. 

Conclusions

Given all the above, we would like to reiterate our major conclusion, that is, that the Alagh draft, though it has several important and useful provisions, has many shortcomings (which have been outlined in detail above).  Due to all of these shortcomings, adopting the Alagh draft runs the risk of creating a law that essentially maintains and supports the status quo, and helps maintain the current principles and ways of managing the water sector. 

Next Steps / Way Forward

One of the most important issues with both the drafts is that there is a need to sharpen various provisions and principles. By definition, the Framework Law is a “broad over-arching national legal framework of general principles on water” and hence it will essentially have principles, perspectives and approaches laid down. These are by nature broad. At the same time, if this is a law, it necessarily has to be justiciable in a court of law. (In fact, this has been presented as one of the reasons behind the need for such a law, as against a policy).That means that the principles must be so articulated as to enable proper (judicial) interpretation. This is necessary not only for a judicial interpretation in case of contestation or challenge, but also to ensure easy and proper implementation and to ensure consistent implementation by different states and different agencies.

This should be the next step or next task in taking the Framework Law forward. 

Formulating the New Law

The Ministry of Water Resources and the Planning Commission now need to initiate wide-spread consultations on the Framework Law. While the draft by the Alagh committee would be a useful input to these consultations, given its inherent weaknesses, a more appropriate  process would be to make the Iyer working group draft as the basis of discussion, and the aim to arrive at better and more specific  and clear-cut articulations of the principles and provisions so that they are justiciable.

Also, since the Water Framework Law would have very serious implications there should be more discussions and debates on it and the MoWR should not be in a hurry to finalise it. This would mean

1) extend the deadline of 31st July by another six months or so

2) make both the drafts available in various regional/local languages, and

3) hold extensive consultative meetings (at different levels) in collaboration with NGOs/CSOs and academic institutions.

Lokabhimukh Pani Dhoran Sangharsha Manch