Monday 1 April 2013

THE NATIONAL WATER POLICY - 2012 - AN AFFRONT ON FEDERALISM by Justice Dr. A.K.RAJAN



                                            
                                   
1.        As per the scheme of the Constitution of India, “water” is a State subject;  List II Entry 17 reads, as follows:-
“Water, that is to say, water supplies, irrigation, and canals, drainage   and embankments water storage, and water power subject to the provisions of entry 56 of List I ”.  Further ‘Agriculture’, falls under entry 14 List I I; and ‘right over land ‘ falls under  Entry 18 List II.                                                                           Entry56 List I reads thus :-                                                                                                                     “Regulation and development of inter-State rivers, and river valleys to the extent of which such regulation and development under control of the Union is declared by  Parliament by law to be expedient in public interest.”
A combined reading of the above entries would make it clear that, power to make law on water related matters, including the ground water,is vested with the States: It is made subject only to matters related to “inter-state rivers, and “ river valleys “. It also clear that the power to make law by the Parliament is limed, by the constitution, to make law only on inter-state rivers and river valley systems..
1.2;     That is, the Union Govt. has power to make law or to regulate only matters relating to inter – state rivers or river valleys. With respect to all other matters, outside those aspects, are beyond the legislative competency of the Union. Therefore, on matters relating to water- supply, irrigation, canals, ground- water, drainage etc. only the States have the legislative competency to make law or to regulate.
2.        While so, surprisingly, the Union Govt. has framed the ‘National water policy 2012’, (NWP) as recommended by the National Water Board (NWB).  In view of the distribution of legislative powers by the Constitution, as stated above, National Water Policy can be made by NWB only if it is relatable to inter-state rivers and/ or river valleys. But the said policy made by NWB and approved by the Union Cabinet goes beyond the executive or legislative power conferred by the Constitution on the Union Govt. Therefore, the NWP as recommended by the NWB, except as regards inter-state rivers and river valleys is ultra vires the Constitution
3:        The object of NWP is ‘creation of a system of laws and institutions and for a plan of action with a unified National perspective’.                      -2-
The NWB is of the view, inter alia, that
 i) water is need to be managed as a common pool community resource;                               ii)water may be treated as ‘economic goods;                                                                     iii) an agricultural system should be evolved, to economise the water use and bring  maximum efficiency and to avoid wastage;                                                                         iv) water quality and quantity should be managed in an integrated manner;               v) the allocation and use of water  should be governed by the principle of equity and     social justice;  
The above aspects appear to be in the nature of some directions issued by the Union to States on matters relating to the regulation on use of water. But as per the Constitutional scheme, relating to Administrative relations between the Union and the States, such administrative directions cannot be issued by the Union Govt. Art. 257 (1) provides that the  “ the executive power of the Union shall extend to the giving of  such directions to a state as may appear to the Govt. of India to be necessary for the purpose of ” ensuring the executive power of the State are exercised in such a manner “ not to impede  or prejudice the exercise of executive power of the Union”.   Art. 257(2) provides that Union govt. can give directions to a State on the construction and maintenance of means of communication declared in the direction to be of national or military importance. Art. 257(3) empowers the   Union Govt. for “giving of directions to a State as to the measures to be taken to for the protection of the Railways within the State.” Therefore, it is clear that the Union Govt. can   give any executive or administrative direction only (1) for ensuring that the exercise of executive power by a State  does not impede or is not prejudicial to   the executive power of the union . (2) on matters of means of communication declared to be of National or military Importance , (3)on measures to be taken for the protection of Railways within the State . Hence the directions, given in the name of National Water Policy, by the NWB  do not fall within the Constitutional Scheme of Administrative Relations between the Union and States.
                                                                                                                                                                          4.      A recommendation has also been made that i)  A National Legal Frame work and necessary authority to deal with local situation should be created ; and (ii) such a legal frame work must recognise water as a scarce resource  of  the State. That is a law should be made by Parliament creating “National Level Authorities”, to be under the control of Union Govt., to govern matters relating to water. This suggestion or recommendation is an affront to Constitutional scheme. It creates a genuine doubt, whether these recommendations are made deliberately or oblivion of the provisions of the Constitution.                         -3-
 5.       Another startling and shocking recommendation is that ‘The proprietary rights    created by the Indian Easements Act 1882 and the Irrigation Acts,  on the land owners on the ground water under his lands, should be modified’, and  ‘The proposed law should be a statement of GENERAL PRINCIPLES governing exercise of legislative  and/or executive ( or devolved ) powers by the Centre, State, and the local governing bodies’. If this principle becomes a law, it is likely to result in far reaching consequences on the agriculturists in the entire nation. The law and order situation over the entire Nation is likely to become uncontrollable. That may create a chaotic situation in every piece of land. The agricultural land owner cannot have any control over his own well since others also can claim right over the water in the well. This suggestion is tantamount to saying that the legislative entry ‘water’ should no longer be a State subject.
6.        Other important directions are that
i)‘ Use of water for domestic, agricultural, recreation, hydro- power, thermal power, and navigation , should be optimised;
ii). Community based water management should be institutionalised; community to be sensitised to adapt utilisation of water as per local availability;
7.        Agriculturists presently determine the crop pattern according to the availability of water within his reach; but the NWP requires that ‘strategies for compatible cropping pattern and improved water application methods such as drip/ sprinkler irrigation to enhance water use efficiency should be adopted’. There is no difficulty in accepting the drip irrigation or sprinkling method of irrigation.  But even the Crop - pattern will have to be followed as per the directions of the authorities.  That is, even if a land owner has sufficient water for the crop he intends to grow in his lands, yet he can grow only the crop suggested by the authorities. This would directly violate the fundamental right to carryon ones profession.  
8. The other recommendations are that  ‘ i) availability  of water and its use  in various basin  should be scientifically assessed every five years  for planning ; ii) Inter- basin  of transfers of water should be considered  on the basis of merits of each case after evaluating the environmental ,economic and social impacts of such transfers. iii)an institutional arrangement for efficient use of water at basin/sub- basin level will be established at National level.
9. Water Pricing:
The NWB has given a few directions as follows:-                                                 -4-
i)                   Water should increasingly be subjected to allocation and pricing on economic principles;
ii)                 Water regulatory authority  should be established in each State .It will, inter alia, fix and regulate the water tariff system and charges and  such tariff will be periodically reviewed;
iii)               Water users Associations (WUA) should be given statutory powers to fix rates and to collect and retain a portion; it can manage the volumetric quantum of water allotted to them and maintain distribution system; WUA should be given freedom to fix the rates subject to the floor rates fixed by WRA.
The use of the words ‘economic principles’  is capable of varied interpretation ; basically it will be relatable to costs and out-put; that  is unless it is a  profitable proposition water may not be allotted  in certain cases. Each State is compelled to establish a Water regulatory authority for fixing water tariff and to periodically revise the tariff.  It is also required that water user association (WUA) should be established with Statutory Powers. 
CONSERVATION OF RIVER CORRIDORS, WATER BODIES AND INFRASTUCTURE:
10.   River corridors and water bodies should be conserved by not allowing encroachments and restoring the encroachments already made should be restored to the earlier level to the extent possible. There can be no difference of opinion on this aspect. But the next direction is that “ diversion of water bodies like(rivers, lakes, tanks, ponds etc.)................. must not be allowed; wherever it has taken place it has to be restored to the extent possible , and maintained properly.” If this principle is examined closely it may extend to Mullai Periyar, Parambikulam, Aliyar, Siruvani rivers as these are  systems of diversion of water flow; similarly it may also apply to  diversion of Cauvery waters by Karnataka to Mandya and other areas.  The consequences of any attempt to restore to the original flow of these rivers are unimaginable. That may result in virtual war between the concerned States. Further it is contrary to the policy  of linking all the rivers , as advocated by many leaders, including the former president A.P.J. Abdul Kalam.
11. The two other directions that I)Sources of water bodies should not be allowed to get polluted; and ii)It needs to be ensured that industrial effluents ,residues of fertilizer and chemicals etc. do not reach the ground water; are already  have became law. The Pollution Control Acts are already in force. Why another direction here is difficult to understand.                                                  -5-
12.      This is a National Water Policy; Hence the matter relating to safety of DAMS does not come within the ambit of water policy. Yet it has been provided for Dam safety as well. Thanks to the contribution of some                vested interests. There is the following direction as well;-                                                                                                                                                                    “Legally   empowered Dam Safety  services need to be ensured in the States as well as in Centre; Appropriate safety measures , including downstream flood management, for  each dam should be under taken on top priority”.
It looks tailor made for the benefit of Kerala State, as against the interest of Tamil Nadu. It would be difficult to dispel the view that it is motivated. Dam safety cannot be read   ‘ejusdem  generis’ with Water policy for regulation of supply, use , crop pattern, fixing of differential  price, for each use . Dam safety is beyond the scope of NWP. Hence it appears that it is a calculated attempt to defeat  all acts done and unsettle all the decisions by the Supreme Court  and rob all the  benefits accrued  over the years to the farmers of  Tamil Nadu. 
INSTITUTIONAL ARRANGEMENTS;
13.      Another and one of the  most important  and  most controversial directions is  that  water supply  which is one of  the  services provided by the States to its people,  is sought to be modified by transferring that service to Private Sectors. The NWP states that ‘Water resources projects and services should be managed with community participation; wherever State Govts. or local bodies so decide  the private sector can be encouraged to become a service provider in public private partnership model to meet agreed terms of service delivery’. This would prove to be a dangerous proposition, if implemented. The result would be disastrous; a situation the people of INDIA experience now on the fixation of price for petroleum products may become a lesser evil.
IMPLEMENTATION OF NATIONAL WATER POLICY:
14.      There is also a direction that  The State Water Policies should be  revised in accordance with this policy.     As seen above  the constitutional scheme is that water supplies, irrigation, and canals and embankments ,water storage etc except relating to inter- state rivers and river valleys  , fall within the legislative competency of the States ; and it is outside the purview of the Parliament’s power to make law or issue directions to any State. Yet these directions have been given .This is nothing but blatant violation of the constitutional provisions. Times of India reports in its 8th march 2013 issue that
                                                                                                                                                -6-
“ The 13th  finance Commission has recommended that the states set up                                          water regulatory authorities (WRA) for getting grants for water management. Each WRA is mandated to fix and regulate tariff and charges for surface and sub-surface  water used for domestic ,agriculture, industrial and other purposes”.    But Tamil Nadu representative has opposed the   proposal for fixing tariff for water.        
15:      At this juncture one gets reminded of the statement of N. A. Palkhivala, in his  famous book “ We, the people”:  While dealing with  the Centre –State relations he has stated   thus,
 “over a period of years the Centre has acted in a manner which at best has been contrary to the spirit of the Constitution and at worst has been tantamount to a fraud upon the Constitution” ...........................      “Without any amendment to the Constitution, ‘Industries’ has been nefariously transformed into a Union subject and has cease to be a State subject. ........there can be no doubt that this is an indefensible violation of the Constitution”. ..................... “The ways in which the Centre unduly dominates the States are beyond enumeration and are symptomatic of Centre’s attitude towards its “vassals”.
He has also stated in the book that
 Dr. K.Subba Rao wisely observed “ Unless the party  that happens to be in power in the Centre develops conventions to shed its party affiliations  in the matter of its relations  with the States, the federal Government cannot effectively function in our country”
It appears that it would be very difficult to deny or ignore these statements, even today. The Union Govt. has issued executive direction over a matter which does not fall within its competency, and without making any amendment to the Constitution. At the same time it tries to compel the States to fall in line with its directions, by using its financial powers. These things happen while most of the people are in dark. Unless the States become aware of the consequences and rise to the occasion the legislative entries 14,17and 18 of List II [ State List] will get obliterated.
Chennai  9th March 2013.
                                                                                                  Justice A.K.Rajan
E-mail justiceakrajan@yahoo.com



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