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
