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24 July 2013
The Honourable Minister
Ministry of Water Resources
Government of India
We are writing to you to convey the comments of the Forum for Policy Dialogue on Water Conflicts in India on the draft National Water Framework Law Bill.
The Forum is a loose network of more than 150 organisations and individuals who have been working in different areas in the water sector of the country and include many of the senior experts, activists and academics (see www.waterconflictforum.org for details).
Our comments on the draft National Water Framework Law Bill are as follows. Before we present our comments on the substance of the draft Bill, we urge you that as the Water Framework Law is a very important piece of legislation, the time given for comments is too short, and the method of inviting comments (by putting the Bill on the website, that too in English), is very limiting and exclusionary. We suggest that the deadline be extended, that the Bill be translated in various regional languages and that wide-spread consultations are held all over the country.
1. First of all, we would like to state that the apart from the Bill drafted by the Committee set up by MoWR, headed by Dr. Alagh (Alagh Draft), there is also another draft of the National Water Framework Law. This is the draft prepared by the Sub-group of the working group set up by the Planning Commission in 2011, which was headed by Prof. Ramaswamy Iyer (Iyer draft).
2. The Iyer draft, we feel, has many important features and provisions and we would urge that any discussions and any action taken by the MoWR / Government of India on the draft National Water Framework Law Bill must consider the Iyer draft and not just the Alagh draft.
3. In fact, we strongly believe that the Iyer draft represents a far more detailed and nuanced drafting, and includes many of the key ideas and principles that such a Framework Law should have; and that the Alagh draft lacks many of these key features. Hence, we feel that in the further process of finalising the National Water Framework Law Bill, it is the Iyer draft that should be used as a basis to build upon. The Alagh draft can be used as an input to the process.
4. Because of this, our comments also draw from and include references to the Iyer draft.
5. We feel that the Alagh draft, though it has several important and useful provisions, has many shortcomings (which are outlined in detail below). Due to all of these shortcomings, adopting the Alagh draft runs the risk of creating a law that essentially maintains and supports the status quo, and helps maintain the current principles and ways of managing the water sector.
6. The basic rationale for the proposed Law, and what should be its fundamental objectives is captured by very first paragraph of the Order issued by the MoWR for the Alagh Committee, which also reflects the country’s new water policy adopted in Dec 2012 (Sec 2.1 and 2.2). It states:
Even while it is recognized that States have the right to frame suitable policies, laws and regulations on water, there is a felt need to evolve a broad over-arching national legal framework of general principles on water to lead the way for essential legislation on water governance in every State of the Union and devolution of necessary authority to the lower tiers of government to deal with the local water situation. Such a framework law must recognize water not only as a scarce resource but also as a sustainer of life and ecology. Therefore, water needs to be managed as a community resource held, by the state, under public trust doctrine to achieve food security, livelihood, and equitable and sustainable development for all.
Unfortunately, the Alagh draft fails to meet these basic objectives or expectations. On the other hand, the Iyer committee does capture these well.
Lack of Fundamental Perspective
7. Preamble, para 1
This is the only paragraph of the preamble that actually provides a background to the act. It simply reiterates a limited background focused on a managerial understanding of water and entirely sidelines social (inequalities in access to water etc), environmental (protection issues), legal (constitutional bases etc) issues.
8. The Alagh draft does not capture what should be the defining basis of the new law, namely, the recognition of water as a “a sustainer of life and ecology”. It gives much more weightage to water as an economic resource. The very start of the Alagh draft clearly indicates this. The first section (after definitions) is titled Basic Principles of Water Management and begins with the clause “1) The planning and management of water resources shall be integrated appropriately with the management of all resources and shall take into account in an integral manner the local, regional, State and national needs.” Thus, the focus is on human needs and water management for human needs. The clauses following these do articulate the principles of ecology, equity, ecological flows etc. but the formulations are quite weak.
In contrast, the Iyer draft begins the main part of the Law (after the definitions) with a section titled Water: Heritage, Ecology, Equity, and the subsections in this section capture the nature of the water as common heritage of humanity, recognise that all water bodies are ecosystems by themselves and also parts of the larger ecology, and draw out the primary implications of this for water management, namely , the need to protect and conserve them, the need for minimum interference in the flows, and the need to reverse the adverse impacts of the interventions made till now.
Many other key aspects are elaborated in the sections that follow.
9. The Alagh committee has not dealt with the basic principles emanating from the nature of water as a central element of ecology, or from the issues of equity, sustainability in any holistic or comprehensive manner. It has mentioned various aspects of these in parts, spread over various sections. But they don’t add to a comprehensive perspective based on water as an element of ecology, nor do they base water management on the norms of equity, sustainability. Moreover the goals of food security and livelihoods are also not built into the structure of the law.
10. Iyer sub group report does take a strong environmental perspective whereas this gets watered down in Alagh committee report. Iyer sub group talks about minimum interference with the rivers, minimum extraction of water, diversion, etc., whereas Alagh Committee draft, though does talk of environmental needs, sees it in terms of minimum ecological flows (see page 7 of Alagh committee draft). We feel that unless a strong environmental perspective drives the core of the new Law (as is expected from the TOR and the Water Policy 2012 which talk about the Framework Law recognising the nature of water as a sustainer of life and ecology), there will not be any fundamental change in the way water is seen or managed.
11. Whereas the Alagh Committee draft sees water more in terms of economic good, the Iyer sub group draft plays more importance in seeing water as a social good and this difference has implications for various things like inter-sectoral water allocation, pricing, etc. We feel that there is a clear need for the new Law to emphasise water as a social good, as the TOR and the Water Policy clearly require that “water needs to be managed …to achieve food security, livelihood, and equitable and sustainable development for all.” These goals can be met only if water is seen as a social good and this defines its management.
Right to Water
12. The need to have a Right to Water recognised by the Alagh draft, but its elaboration is very limited. The Right is recognised only for potable water, not even for water for other domestic uses. Though it does mention the purpose of this potable water to include health and hygiene, its minimum quantity mentioned (25 lits per person per day) falls short of meeting any needs except that of drinking and cooking. The issue of quality is also not mentioned as an integral part of the Right to Water.
The Iyer draft has a much broader notion of Right to Water. First of all, it talks about the Right to Water for the “requirement of water for life”. Thus, we can assume that this includes water for all domestic needs.
The right includes right to the “sufficient” (quantity) and “safe” (quality) water. Further, this right is not restricted to human beings but is also extended to livestock and any domestic animal or bird, and protects the access of other wildlife to water from any human action.
However, one drawback common to both the drafts is that that neither considers water for livelihoods as a part of the basic right to water.
We urge that the Right to Water be considered more broadly, that it should include water for all basic human needs, for domestic cattle, that it should also include water for livelihoods, and that it should also include the right to adequate quantity and quality of water.
Water Regulatory Authorities, Privatisation
13. The Alagh draft seems to be propagating the same model of Water Regulatory Authority (WRA) as pushed by the agencies like the World Bank as a part of water sector reforms. In this, the WRA is seen primarily as a tariff setting agency that protects the interest of (private) water suppliers.
While the Alagh draft also mentions that the purpose of the WRA includes “ensuring equitable access to water to all” (apart from setting the prices), the inclusion of the WRA in the section on Water Pricing clearly indicates how Alagh draft sees these Authorities. It may be mentioned that the only such authority with some years of experience in the country is in Maharashtra and this has failed abjectly.
We would urge that a much broader view be taken of “regulation” itself, that the need for water regulatory authorities (especially on the lines of the MWRRA) not be taken for granted but rather subject to more discussions, and that any regulation must be structured fundamentally for ensuring equity and sustainability.
Again, here we would like to recommend the more cautious approach taken by the Iyer sub-group and also see the Water Regulatory Authorities as only one element of the larger institutional structure.
14. Alagh draft does not see any significant issues with privatisation (though it rightly emphasises that responsibility of the state as a public trustee remains in spite of privatisation) or adopting the Water Regulatory Authorities in the current format. We feel that this can be a very risky approach.
We feel that the approach of the Iyer sub-group should be followed. The Iyer sub group takes clear stand against privatisation of the resource itself and talks of privatization of service delivery only under very stringent conditions. It also takes a clearer stand on water markets especially on bottling of water or industries using raw water and puts certain conditions.
Lack of Emphasis on Participation
15. The Alagh draft is weak on the recommendations for participation of the people in the planning and management of water resources. For example, the entire section 7 on Integrated River Basin Development & Management that includes the need to make River Basin Master plans, does not mention any participation by the people. Similar thing is seen in the case of floods, or in the issue of reservoir operations. (Sec 9).
Section 10 on Project Planning and Management does mention participation, but its formulation is very weak and betrays a limited understanding of what participation should mean. Section 10(6) says:
(6) Local authorities, like Panchayats, Municipalities, Corporations, and Water Users Associations, wherever applicable, shall be empowered and involved in planning and management of the projects.
Similarly, Sec 15 on Participatory Water Management seems to mainly talk of Water Users Associations, an important, but only limited part of participation.
We suggest that participation should be a core element of the new Law, and should be made an integral part of the institutional structure of the Law.
Section 15 does not correct the basic problem of the relationship between constitutionally sanctioned bodies of ‘participation’ (local democratic governance bodies) and water user associations. Panchayats/municipalities are already equipped to deliver on ‘participation’, ‘decentralisation’, ‘subsidiarity’.
While Sec 15(4) mandates that the appropriate government shall specify the relationship between the two, this is something that must be taken up in this legislation since this is a constitutional issue in the first place, hence not something to be left to administrative directions.
Interstate Water Sharing
16. One of the major gaps has been that there is no clear cut understanding and norms around the issue of how to share river waters across different riparian states. Alagh Committee draft does not throw much light on this except a very general statement like the following, “The appropriate Government shall lay down principles for allocation of water resources for amicable resolution of differences and disputes”. Iyer sub group gives an elaborate set of guidelines and principles in this regard. It (Iyer sub group) also provides detailed institutional framework – nested and federated – to be built from below and also puts more emphasis on the principle of subsidiarity.
17. A major legal requirement in interstate water sharing, which is also highlighted by the Iyer sub-group, is that complete diversion of flows should not be allowed in any inter-state water sharing. Only such flows after allowing for the ecological and livelihood needs of the river basin and basin communities riparian state (s) shall enter into the sharing formula.
18. Another major area of omission in the Alagh Committee draft is with regard to large projects. In fact one of the conflicting issues in India, apart from inter-state disputes, is how we go about the large projects. Alagh Committee draft does not say much on this issue whereas Iyer sub group draft lays out in detail the processes, principles that need to be adhered to – assessment of all options, selection of least cost options (both environment and social), prior informed consent of the affected people and proper rehabilitation on a pari pasu basis – which are in line with the World Commission on Dams (WCD) recommendations.
19. We also would recommend that the Framework Law should outline how the already existing large projects in India should be dealt with. First of all, these projects should be subjected to a periodic assessment with respect to their performance, capacity, ecological impacts, sedimentation, risk analysis, etc., with the participation of river basin communities. Fresh Environmental Impact Assessments (EIAs) and Social Impact assessments (SIAs) every 25 years should be recommended.
20. For the already existing dam cascades, environmental flows allocation below and between dams should be assessed and implemented taking into consideration the present and future needs of the basin. Reviewing and reorganizing Reservoir Operations Management (ROM) wherever found as an optimal option to improve downstream flows should be made mandatory.
Need to Modify Current Laws
21. There is the issue of which drives what – should the existing laws and legal framework around water shape the water framework law or should the existing laws be revised in the light of water framework law? Of course it cannot be black and white and there could be a relationship between the two. However, the Alagh Committee draft is more in line with the former whereas the Iyer sub group draft is in line with the latter. If one agrees that the existing water related laws are not very well informed by the bio-physical and socio-cultural peculiarities of water as a resource then one could say that what the Iyer sub group has done stands a better chance in restructuring the water sector in more sustainable, equitable, efficient and democratic lines.
It should be pointed out that the new National Water Policy 2012 clearly indicates that the old laws need to be modified in line with the new framework law, when it says that “Existing Acts may have to be modified accordingly.” [according to the new framework law which would be based on the nature of water as a sustainer of life and ecology, and require water to be managed as a community resource held, by the state, under public trust doctrine to achieve food security, livelihood, and equitable and sustainable development for all] (Sec 2.2 Water Policy 2012).
River Basin Master Plans
22. Among the important recommendations of the Alagh draft is the need to have, for all rivers, basins, sub-basins, a River Basin Status Report and subsequently a River Basin Master Plan. The latter is to include the environmental protection plan including cumulative impact assessment. (Section 7). An important part of this structure is that all water resource projects would have to conform to the Master Plan. (Section 10(2)).
Of course, since participation is not emphasised in the making of this Master Plan, there is a danger that it can end up being a techno-bureaucratic exercise. Moreover, since the fundamental principles of water as a sustainer of ecology and life have not been laid down so clearly, the Master Plans may not reflect these critical principles.
Section 7.2 which says ‘River basin or sub-basin shall be developed with unified perspectives of water and ensuring holistic and balanced development of both the catchment and the command areas, following the principle of integrated water resources management’ is an outdated concept. It should be changed to recommend ensuring restoration of the catchment area and improved management of the command area.
We strongly urge that the Framework Law must include such provision for status report and river basin master plan, however, both must be prepared with the full and meaningful participation of river basin communities and civil society.
23. Another important recommendation in the Alagh draft is that of preparing nationally standardised water footprints for all activities and products, and that demand for various uses shall be assessed based on these standardised footprints and these demand assessments will guide water allocation in the River Basin Master Plans. (Sec 3(14))
This important feature should be included in the new Law.
Water Quality Issues Missing
24. However, while 3(14) contains basic principles for water management devotes and a whole sub-section to water footprints but water quality standards which are much more crucial only find a mention at Sec. 4 in a section which is much more specific (whereas quality standards are a general issue that needs to be addressed in the general sections).
This section seems to borrow some concepts from the Planning Commission’s groundwater model bill, 2011. This is interesting but is not sufficient in this context. Two main points can be noted:
25. A principle like the principle of subsidiarity (12.2) is valid not just for groundwater but for all water. There is no basis for distinguishing surface and groundwater on this score.
26. Section 12 borrows interesting elements from the Model Bill, 2011 but there is not enough coherence to what is borrowed to provide an overall framework for groundwater regulation within which, say, the Model Bill, 2011 could be taken up. In a sense, it needs more drafting work.
Definitions (Section 2)
Some comments on the definitions
Definition of appropriate government
The definition of appropriate government concerns only interstate rivers and river valleys. In fact, this definition should concern all water.
Definition of common pool resource
The definition is fine in socio-economic terms. However, this is a proposed legislation and what matters is a definition of the different individual and common entitlements over water. Recognising that there are common entitlements indeed of primary importance but this must be done in such a way that they can be realised. The present definition does not provide a basis for the same.
Definition of community based institutions
Whereas ‘water user associations’ may be described as community based institutions even though this is misleading since they exclude non-landowners from the membership, it is not appropriate to put panchayati raj institutions at the same level since in legal terms they are completely different due to their constitutional recognition.
Definition of environmental impact assessment
This definition needs to be tied in with the Environment Protection Act and subordinate instruments, in particular the EIA notification.
Definition of public trust
This should make it clear that it is the ‘state’ at all levels from panchayats to the union government that is concerned.
Some other Suggestions
Inter-sectoral and inter-ministerial co-ordination is critical to water management since water is an all-encompassing natural resource, and this should be added as an underlying guiding principle in water resources management.
In the section on promotion of innovation and technology, we suggest the addition that the appropriate governments shall encourage community monitoring of river flows and related ecological parameters as to enable effective implementation of river basin master plans.
We also strongly urge that accountability and transparency of institutions should be made legally enforceable and a punishable offence if violated. This should be added as a principle in the section on institutions.
We also think that the Water Framework law should have a subsection on women. The Iyer sub group draft has a small separate section on women, being sensitive of women’s special needs. However, the Alagh draft is completely women blind.
Given all the above, we would like to reiterate our major conclusion that the Alagh draft, though it has several important and useful provisions, has many shortcomings (which have been outlined in detail above). Due to all of these shortcomings, adopting the Alagh draft runs the risk of creating a law that essentially maintains and supports the status quo, and helps maintain the current principles and ways of managing the water sector.
Next Steps / Way Forward
One of the most important issues with both the drafts is that there is a need to sharpen various provisions and principles. By definition, the Framework Law is a “broad over-arching national legal framework of general principles on water” and hence it will essentially have principles, perspectives and approaches laid down. These are by nature broad. At the same time, if this is a law, it necessarily has to be justiciable in a court of law. (In fact, this has been presented as one of the reasons behind the need for such a law, as against a policy). It means that the principles must be so articulated as to enable proper (judicial) interpretation. This is necessary not only for a judicial interpretation in case of contestation or challenge, but also to ensure easy and proper implementation and to ensure consistent implementation by different states and different agencies.
This should be the next step or next task in taking the Framework Law forward.
Formulating the New Law
The Ministry of Water Resources and the Planning Commission now need to initiate wide-spread consultations on the Framework Law. While the draft by the Alagh committee would be a useful input to these consultations, given its inherent weaknesses, a more appropriate process would be to make the Iyer sub group draft as the basis of discussion, and the aim to arrive at better and more specific and clear-cut articulations of the principles and provisions so that they are justiciable.
Also, since the Water Framework Law would have very serious implications there should be more discussions and debates on it and the MoWR should not be in a hurry to finalise it. This would mean the following:
1) Extend the deadline of 31st July by another six months or so
2) Make both the drafts available in various regional/local languages, and
3) Hold extensive consultative meetings (at different levels) in collaboration with NGOs/CSOs and academic institutions
Hope you and the ministry would engage with the above mentioned comments and suggestions while deciding on both the content of the Framework law and the processes for finalisation of the same.
Steering Committee Members: Forum for Policy Dialogue on Water Conflicts in India (Forum)
Amita Shah, Eklavya Prasad, Gorky Chakraborty, Himanshu Kulkarni, Janakarajan S., Josantony Joesph, Joy K. J. Latha A., Partha J. Das, Philippe Cullet, Shripad Dharmadhikary, Soma K.P., Suhas Paranjape
K. J. Joy
Phone: 020-25886542, 9422505473
 The comments and suggestions contained in this note reflect a consensus amongst the Steering Committee members and may not reflect all the members of the Forum as we did not have sufficient time for a wider consultation amongst all the members.