India Has Legislative Solutions to Its Water Management Problems, But Will They Work?

India's water policy and governance is mostly disconnected from global trends and scientific knowledge, and is increasingly driven by populist politics.

India has the world's highest number of people without access to clean water. Credit: PTI/Files

India has the world’s highest number of people without access to clean water. Credit: PTI/Files

The prediction that wars will be fought over water seems to be coming true. While India is considering repealing the Indus Water Treaty as an alternative to a military strike on Pakistan, states are fighting over water sharing across their borders. The recent tussle between Karnataka and Tamil Nadu, and the emergent conflict between Chhattisgarh and Odisha are signals of the future water wars. As water resources shrink, there is an increasing demand for a rightful share, resulting in conflicts between competing uses and users.

India, with 18% of the global population, has only 4% of its water resources. The annual per capita availability of water has been on the decline, from 6,042 cubic metres in 1947 to 1,545 cubic metres in 2011. Groundwater aquifers have been under serious stress and face a crisis of sustainability. Big dams that once created huge potential for irrigation now face the challenge of effective utilisation. If the current pattern of demand and usage continues, it is predicted that by 2030 about half the demand for water will be unmet. Growing population, rapid industrialisation and urbanisation, and climate change will further affect water availability. In this context, it is important for India to consolidate water resource management through rational estimates and regulation.

The government seems to recognise the urgency. The water resources ministry has recently put up two draft legislations for public inputs. The draft National Water Framework Bill (NWFB) seeks to fill an overdue void for a national legal framework for water resource governance. The current legal framework for water in India is spread across a variety of instruments, legislations, legal principles and a range of judicial precedents – often not in harmony with each other. The root of this inconsistency lies in water being a state subject, except for the inter-state disputes where the Centre has a say.

Although India has a National Water Policy since 1987 (updated in 2002 and 2012), there has been a strong demand for a legal framework to consolidate the governance gap across states. Furthermore, it has been argued that owing to the lack of a strong legal framework, conflicts on allocation and use of water between different stakeholders are unnecessarily adjudicated by the court.

The second draft legislation, Model Bill for the Conservation, Protection, Regulation and Management of Groundwater, seeks to guide the states to enact their own laws to restore and ensure groundwater security. At present, the vintage Easement Act, 1882 treats groundwater as a private property resource, which makes it difficult to regulate use. The proposed legislation seeks to treat groundwater as a common pool resource.

While these Bills seem to be follow ups to the National Water Policy, 2012, the demand for these legislations has been there for more than a decade. The first versions of the Bills came in 2011 from the working groups of the 12th five year plan. A subsequent draft of the NWFB was commissioned by the government in 2013, which drew much criticisms. While some saw it as essentially maintaining the status quo, others saw it as propagating the World Bank model of water reforms. It was also criticised for its techno-economic emphasis that is, focusing on water as an economic good rather than social good and its disregard towards social aspects like inequalities in water access, lack of public participation in water resource management and environmental protection. Subsequently, the draft was stalled. However, in response to the 2011 draft for the groundwater Model Bill, eleven states and four union territories enacted groundwater legislations, as on July 30, 2015.

Despite the importance and urgency, both Bills have not attracted much public debate so far. However, the Bills suggest major improvements in many aspects over earlier drafts. They have broadened the definition of ‘water for life’, which is a positive step towards realising the right to water. They recognise water as common heritage and talk about people centred water management. Current drafts emphasise both efficiency and intra-generational and inter-generational equity in water. While the drafts emphasise the right to ‘sufficient quantity of safe water for life’, without any discrimination on the basis of caste, creed, religion, community, class, gender, age, disability, economic status, land ownership and place of residence, there is no clarity on how to tackle the entrenched gendered and caste-differentiated nature of water access in India.

The Bills also lack adequate clarification on agencies and mechanisms for enforcement. Where there do exist, laws and agencies with overlapping jurisdictions (and sometimes with conflicting mandates), these ambiguities may result in a delay in enforcement. Though the NWFB retains focus on river basins and proposes river basin authorities and water regulatory authority, the composition and role of these authorities are not clearly defined. Moreover, their engagement with Centre and state governments remain ambiguous. It is unclear if the authorities will have any regulatory power over the state governments and their agencies.

The NWFB makes an important recommendation regarding differential and full-cost pricing of water. However, it is not clear if the cost will reflect the scarcity value and the ecosystem services costs or merely cover the cost of supply. The Model Bill on groundwater suggests pricing industrial and bulk groundwater use, while much of the regulation is expected to be chalked out by proposed groundwater security plans.

The NWFB emphasises data sharing, which is expected to bring transparency in water data. However, the Bill does not specify which agency will be responsible for data compilation. This ambiguity may result in multiple agencies involved in data compilation and thus, inconsistency in data. Though water quality has several mentions, there is no clarity on the institutional mechanism for quality monitoring. Similarly, while climate change has been recognised as an emerging threat, it has been poorly integrated in both the Bills.

The Bills have come at point when the world is shifting towards a new paradigm of water management. However, water policy and governance in India has largely been disconnected from the global trend and scientific knowledge, and is increasingly driven by populist politics. But this cannot much further. While the success of the proposed Bills will depend on adoption and support from the states, the Centre needs to consolidate and align the agencies and policies. It must set coherent policy signals, with an interdisciplinary perspective and integrated approach to both surface and groundwater resources.

Sarada Prasanna Das and Ashwini K. Swain are with Centre for Energy, Environment & Resources, New Delhi. Das is also affiliated with Institute for Governance, Policies & Politics.