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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