This explanatory note by the Planning Commission on the national water law begins with an account of why a national water law is necessary. It was the recognition of the need for a minimal national consensus on certain basic perceptions, concepts and principles that led to the adoption of the National Water Policy of 1987 and the NWP of 2002. Currently the process of considering further revisions to the National Water Policy is in progress. However, a national water policy has no legal status. A national water law is necessary.
The next section explains the nature and scope of a national water law in India. It states that the proposed national water law is not intended to centralise water management or to change the Centre-State relations in any way. No administrative machinery or institutional structure (except for a national water Information system) is envisaged at the Centre under this framework law, and consequently no penal provisions are envisaged.
This is not intended to exclude the necessary administrative machinery, institutional structure and penal provisions in State laws within this framework. However, the law is intended to be justiciable in the sense that the laws passed and the executive actions taken by the Central and State Governments and the devolved functions exercised by PRIs will have to conform to the general principles and priorities laid down in the framework law, and that deviations can be challenged in a court of law.
The explanatory note then deals with how the law will be enacted. Given the present constitutional division of legislative powers between the Union and the States, it will be necessary to follow the procedure adopted in the case of the Water (Control and Prevention of Pollution) Act 1974, or more recently in the case of the Dam Safety Act 2010, i.e., a certain number of State assemblies can be persuaded to pass resolutions and then the Centre can enact this law. An Act so passed will be applicable to the States that had passed the resolution and to other States that adopt the Act. There is every reason to believe that most States will adopt the Act, and that the Act will become truly national, the note states.
The note then presents the draft National Water Framework Act, which would provide a broad overarching national legal framework of general principles on water as a vital and stressed natural resource, under which legislation and executive action on water at all levels of governance, as also water-use and actions relating to water.
Draft National Water Framework Act
The Act in the section on “Water: Heritage, ecology, eEquity” states that water is a common natural heritage of humanity and shall be used, protected and preserved as such. Rivers, water bodies, aquifers and wetlands shall be recognised as ecological systems in themselves and as parts of larger ecological systems, and protected from over-use/depletion, abuse, pollution/ contamination, and degradation. There shall be minimum interference in existing natural river flows; in the natural state of water bodies and wetlands; and in flood-plains and river-beds which shall be recognised as integral parts of the rivers themselves.
Ecological considerations, social justice and equity shall be the prime principles governing water policy, plans and management, having regard to the essentiality of water for life, its importance for livelihoods and economic activity, and its proneness to become the subject of conflict.
Water in its primary aspect as a sustainer of life shall take precedence over water in any other aspect, the Act says. Notwithstanding anything contained in any other law, water, that is to say, water in its natural form, such as river, stream, spring, natural surface-water body, aquifer and wetland, is neither state property nor private property but a common pool resource of the community to be managed by the community or by the state for the community.
The draft Act states that “the state shall hold water in public trust for the people. It shall exercise its legislative and executive powers in relation to water in the capacity of trustee for the people.
Having regard to the growing pressure on the finite availability of freshwater in nature, the prime principles governing water-use of all kinds shall be equity, economy, efficiency, minimisation of waste, resource-conservation, and ecological sustainability.
Basin and aquifer would serve as guiding frameworks and the Act states that every water-related activity in any part of a river-basin, or a sub-basin of a large basin, whether it is a large project involving a dam, reservoir and canal system, or a diversion barrage, or a small-scale local water-harvesting structure, or the extraction of groundwater, shall be undertaken with due regard to (a) the hydrological and ecological characteristics and features of the basin or sub-basin as a whole; (b) the land-use appropriate to the relevant area; (c) the relationship between surface water and groundwater; and (d) a holistic view of the relationships of all such activities with one another and with the basin or sub-basin as a whole.
The Act states that water-use decisions shall have due regard to the land-use appropriate to the relevant area, and in turn, the proper land-use for an area shall be decided with due regard to the availability of water. It notes that every human being, and livestock or other domestic animal or bird, shall have the right to sufficient and safe water to meet the requirement of water for life.
In all allocations of water by governments at any level, or by any other duly authorised body or agency or institution, public or private, the first and over-riding priority shall be for water for life, followed by water required for all other uses, viz., water for livelihoods for vulnerable sections, water as a social good, and water for agricultural, industrial, commercial, recreational and other uses, the Act states.
Appropriate institutional arrangements, shall be established at all levels within the State and beyond up to an inter-State river-basin, to obviate and/or resolve emerging inter-State river-water disputes through negotiations, conciliation or mediation, or other such means, at the earliest stages before the disputes become acute, so as to avoid recourse to adjudication as far as possible, according to the Act.
As per the Act, “all large projects involving dams or barrages or other structures on rivers to store or divert their waters for irrigation, hydroelectric power generation, flood control, or other purposes, including run-of-the-river projects, shall be guided by a cautious, minimalist approach, and by the precautionary principle as regards their environmental, ecological, social, human and other impacts and consequences.”
It further states that “the people likely to be displaced or otherwise affected in any manner by a project shall have the first claim on the benefits expected from the project.”
On groundwater, the Act states that it’s extraction shall be brought under regulation for ensuring equity, resource-conservation, and water quality.
Decentralised local rainwater-harvesting and micro-watershed development shall be the preferred route for water augmentation and management, and shall be undertaken wherever technically and socially feasible.
The national water framework law also mentions that water supply, being an essential service and a fundamental right, shall be the responsibility of the state. Water markets shall not be encouraged to flourish and proliferate in an uncontrolled manner, but may be allowed to function subject to careful regulation in the interests of equity, social justice, resource-conservation and the protection of the aquifer.
The pricing of water shall be based on a differential pricing system in recognition of the multiple roles of water as fundamental right, social good, economic good, and part of history, culture and religion.
The state at all levels shall take all appropriate steps to protect the rights, interests, and special water and sanitation needs of women.
Subject to the provisions of the Environment (Protection) Act 1986 and Water (Control and Prevention of Pollution) Act 1974, the approach to the prevention and control of pollution and contamination of water sources shall include: (i) reducing water-use in all categories of use; (ii) minimising the generation of waste in all water uses; (iii) recovering, to the extent possible, water for some uses from waste; and (iv) ensuring that nothing that does not meet certain stringent quality standards, to be prescribed, is allowed to enter water sources.
The answer to the problems of water-short, arid or drought-prone areas shall be primarily local, and it is only after exploring all local possibilities, or determining that there are no such possibilities, that recourse to water from external sources may be considered.
In relation to periodical river floods, the emphasis shall shift from structural flood-control measures.
While further studies and research may be needed for obtaining detailed, precise and area-specific information on the impact of climate change on water resources, and on the vulnerabilities of certain areas and settlements such as coastal or low-lying areas, anticipatory action for mitigation and adaptation need not wait for those studies, but shall be taken in hand immediately.
To design and build an excellent, nation-wide, detailed, professional water information system, a National Water Information Agency (NWIA) shall be set up.
All existing water-related laws at the Central and State levels shall be reviewed and amended where necessary to ensure conformity to the provisions of this Act.
A copy of the note can be downloaded from below: