Law Opinion
Securing water rights through law and policy enforcement
Dr. Vandana Asthana
Water is essential for life and survival of the ecosystem. Due to the inherent and intrinsic value of water on earth, procedures, rules and regulations to manage this resource have remained in existence since the early day of human in-habitation on this earth.
These practices started with prudent strategies of managing water resources through customs and precedents, through scriptures and codes of law that later evolved into a body of customary, state, federal acts and international treaties.
Since international institutions recognise water as an important aspect of human rights dimension, it becomes a core concern of law. From a legal perspective then water law becomes a key instrument in providing water and human security to the society vis-a-vis access, quality and control over water.
The goals of water law and policy are to ensure that drinking water is available to all; just allocation of water is provided to different sectoral users; the fundamental right to water is protected; appropriate water quality is maintained for the different users; and water contributes to poverty eradication in the country.
Water law in India is growing, but in many instances follows the colonial legislation that is still in place and specific reform and changes are not taking place. There is a lack of a comprehensive legislation called water law in India and therefore legal regulation of water is made up of several components that include both formal and informal rules of engagement with water. There seems a gap in water law and policy for securing water, firstly to meet sectoral needs amongst the various users in India, and secondly, conserving it for its own flows, habitat and ecology. Despite policy initiatives, constitutional, legal and administrative enactments, the problem of implementation and enforcement persist, leading to a lack of efficient water governance to ensure basic human rights to water.
A process for change is imperative to build existing initiative, strengthen management capabilities and processes, and improve the quality of delivery along with fundamental reforms needed in India to capture water allocated between sectors, delivered to users and managed. A comprehensive approach combines mechanisms in policy institutions, legal and regulatory framework, economic and financial incentive framework and strengthening data, technology and information.
Water is a state subject in India and the center can intervene only in regulation and development of interstate rivers to the extent it is declared by the parliament by law in public interest. State governments with an overall guideline from the center set most regulations and standards. The specificity of governance in the states has to be local and context specific but there are certain common features reflecting the inadequacies of good water governance in most states. Legal and institutional reform is seen as a complex and politically difficult process to tackle within the region. Such a stalemate has led to worsening of situations of scarcity and shortages, equity and access, increasing pollution and falling water tables with no signs of better management and prudence in water use. Weak governance prompts inadequacies of rules regarding access, use and control of water and pursuit of policies that encourage over exploitation of this resource.
The current governance of water resources demonstrates that piecemeal legislation and governance measures have failed to account for interdependencies among agencies, jurisdictions and sectors. Excessive reliance on governmental agencies negating economic pricing, financial accountability, user participation and service to the poor has not fostered good governance in the water sector. This has led the judiciary to step in through several court judgments' and interpret the fundamental right to water in India under the fundamental right to life.
Despite this well-developed jurisprudence affirming the justifiability of the right to water and imposing a duty on the State to protect the environment and water resources, all citizens do not have adequate access to water, demonstrating that an enabling legal regime is by itself insufficient. Political will along with a comprehensive policy framework with regulatory structures, decentralized management and delivery structures and greater reliance on pricing and participation of stakeholders will go a long way in establishing good governance in the water sector. Governing water wisely, managing it under the 'public trust doctrine' would ensure a secure water future for societies across South Asia.
Water plays a pivotal role for sustainable development and poverty reduction in South Asian societies. Being agrarian economies water is critical to their survival and livelihood. The use and abuse of, and competition for this precious resource have intensified over the past few decades. Increasing population, advances in agricultural technology and industrialization have led to indiscriminate exploitation of water resources. While the importance of conservation and efficient use figures prominently in public discourses but in government plans and practices there is no basic change in the legal principles and policies.
Therefore, water crisis and insecurity can be directly linked to issues of law and governance. The goals of water law and policy are to provide a legal basis for water allocation and distribution. A credible, transparent and accountable framework can contribute to water security by creating management systems that are equitable and based on principles of equality and justice.
However, its success depends only on appropriately drafted laws that set standards, procedural mechanisms and penalties to ensure implementation on the ground. By identifying certain legal obligations of the states towards society, individuals and communities towards each other, and monitoring and assessing its compliance and implementation, water law and policy can create a form of water governance. Radical changes in the institutional and legal structures are imperative to regulate the development and management of water resources in South Asia with special reference to India. If India intends to achieve the UN Millennium Development Goals, where 'water for all' is a key component, an understanding of legal principles and appropriate policies underpinning governance are essential to the success of ensuring water rights.
[The article is based on author's lecture entitled “Challenges of Securing Water Rights through Law and Policy Enforcement in India” on 19 September 2011 in Dhaka which was hosted by the South Asian Institute of Advanced Legal and Human Rights Studies (SAILS).
The writer is an Associate Professor at the Government Department, Eastern Washington University in Washington State, U.S.A.
