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Session #4: Saturday, 10 January, 11.30 - 13.15 (CSLG)
Panel coordinator(s): Philippe Cullet, International School of Oriental and African Studies (SOAS) (pcullet@soas.ac.uk)
Chair/discussant: Navroz K. Dubash, Associate Professor, Centre for the Study of Law and Governance, JNU (ndubash@gmail.com)
Panel description
Panelists, paper titles, and abstracts
Water laws in India have been changed drastically in the last two decades. The legal framework for the management of water resources, the role/rights of the government and users, and the institutional frameworks are some of the important areas where considerable reforms have been happened or are happening. Ongoing reforms tend to incorporate a number of norms into the legal framework, such as participatory management, viewing water as an economic good and redefining the role of government from ‘service provider’ to ‘independent regulator’. These norms are not unique features of water law reforms in India. Ongoing reforms, in this respect, seem to have relation with the policies of international financial institutions, such as the World Bank. The nature and extent of these norms could be varied for different competing uses, such as domestic, agriculture, industrial and commercial. The reforms, as above stated, are largely applicable to surface water resources. The reforms in the legal regime of ground water have been initiated and to some extent implemented in an entirely different background. Previously, ground water was considered as part of land rights and therefore was in a ‘private domain’. The reforms brought about significant change in this legal position by a shift from ‘private domain’ ‘government control’. The ground water legal reforms provide a legal and institutional framework to regulate ground water use. Ongoing reforms of the ground water legal regime seem to work in a different plane. Ongoing reforms in water laws have invited mixed responses. The evaluation of the water law reforms are mainly based upon the norms of equity, human rights, caste and gender. Another base for evaluation could be the ‘environmental concerns’, that is, the protection and preservation of the resource in the larger interest of present and future generations.
Ongoing water sector reforms and water law reforms are premised on the fact that turning water into an economic good will foster better management of water and thus benefit everyone similarly. Case studies undertaken show that existing inequalities in access to drinking water and other water that have had a strong caste basis in the past have not been addressed by ongoing reforms. This paper analyses existing rules applying in selected villages and examines the extent to which ongoing reforms have specifically caste discrimination in access to water as part of their reform agenda.
Reforms of water law in the broader context of water sector reforms include a number of new laws. In the context of drinking water, which is arguably one of the most fundamental aspects of water law because of the direct link with the human right to water, neither Parliament nor Legislative Assemblies have been involved in ongoing reforms. Rather, the significant reforms that have been progressively put in place over the course of this decade have been introduced through series of government proposals that have not been put to the test of parliamentary scrutiny. Since the new policies propose a system which is likely to restrict access to drinking water for the poorest that should be the primary beneficiaries of any new scheme, this raises significant questions concerning the realisation of the human right to water. This paper examines proposed drinking water reforms and their broader impacts.
Groundwater plays a major role in meeting irrigation, industrial and drinking water needs. Groundwater in India largely remains as a part of private property right. This facilitates uncontrolled extraction of groundwater for various purposes. The subsidized power supply for agricultural purposes also catalyses the large scale extraction of groundwater. The purity and consistency in availability of groundwater coupled with the insufficiency of surface water promote the uncontrolled extraction of groundwater. Hence the growing needs, the ‘favourable’ legal framework, availability of technology etc. seems to have caused the deterioration of quantity and quality of groundwater across the country. One of the major reasons for this continuing deterioration can be attributed to the existing law and policy framework. India, even after, independence, followed the colonial laws and principles. So is the case with the groundwater legal regime. As a result, groundwater largely remained as a part of land right. The right over groundwater was considered as, more or less, a real property right. This legal framework made groundwater a resource that could be enjoyed by the propertied class in an uncontrollable manner. The technological development and policies of the government such as electricity pricing, lending policy etc. also facilitated the indiscriminate extraction of groundwater. A shift in this legal regime started recently. One of the major features of the evolving legal regime is the shift from uncontrolled private regime to government control. This shift could be traced from the model bill prepared by the Ministry of Water Resources in 1970. Subsequently, several states have enacted separate groundwater laws. This process is not yet completed because some states are in the process of enacting separate laws while some other states do not feel it necessary to enact such laws. Apart from the statutory framework, there are policy documents, principles and doctrines forming part of the groundwater legal regime in India. In this background of multiplicity of laws, policies and institutions, this paper attempts to analyse the groundwater legal regime in India.
Efforts to introduce privatization in the water sector in India have increased in the last one decade. It could be seen as a part of the new economic policy introduced in 1991 in the country. There are several examples showing the rapidly growing privatisation of water services and resources in India. Privatization in the water sector involves all elements such as hydropower, industrial, irrigation and drinking water supply. Privatization as a policy has been introduced as a ‘panacea’ to address many ills of the public sector such as insufficient finance, bad management etc. However, experiences from developing countries reveal a different picture showing that ‘promises’ for which the privatisation has been introduced were hardly met. Moreover, implications of privatisation on equity and human rights were severe. Despite of the worst experiences from across the world, the privatisation policy in the water sector is being promoted and implemented in India. The privatisation agenda could be seen as an important part of the ongoing water sector reform in India. By promoting norms such as full cost recovery, creation of tradable water tights, elimination of subsidy, removal of public stand posts, creation of independent regulators etc., ongoing reforms tend to transform water sector into a fully commercial and market based operation. At the same time, civil society resistance against water privatisation has been remarkable. The public resistance against the proposed water privatisation in Delhi and the Sheonath project could be considered as examples of the growing civil society resistance against water privatisation and the privatisation policy in general. The public resistance in India needs to be viewed as part of resistance movement at the global level. Apart from criticising the policy of water privatisation, the resistance movement remarkably presents some alternatives also. Hence, it is critical to understand the motives, driving forces and implications of water privatisation and the ongoing water reform in India. It is equally relevant to record the civil society resistance and some of the public alternatives.