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Thematic Subgroup on the Legal-institutional Framework for Conflict Resolution

The type of conflict resolution suggested by many scholars working in this field received very little support from the legal system and that it was important to critically look at the present constitutional and legal framework (including customary law) and institutional structures in the light of water conflicts. Water is a state subject and it has a close association with property. The law has so far considered the interest of the propertied class and so in reality, especially in issues involving water conflicts, water has been treated as an economic asset for economic prosperity or as a matter of ownership rights in the sense of who has the right of ownership of water. This is far removed from treating water as a regulated 'natural resource' in the fullest sense. In this context the Forum felt the need to bring in three important perspectives – namely a human rights perspective (including that of food security), a right to livelihood perspective and an environmental rights perspective – to bear on the present constitutional and legal framework and identify how we should proceed in building an enabling legal and institutional framework conducive to an equitable, sustainable and just resolution of water conflicts. It is also important to engage with the debate surrounding the rapidly changing context around us. Within this broad framework, the Forum has proposed to set up a sub-group to prepare a position paper that would focus following key questions:

  • What are the legal provisions necessary to make the independent regulatory bodies act the way we want: for example make them take into account the rights perspectives we want (the human rights, livelihood rights and environmental rights?
  • What legal freedoms or restrictions must they have in order to do so about water?
  • How centralized must such a body be in order to ensure effective conflict resolution? How does a viable decentralization sit with the law?
  • How does one ensure rights, and whether we can do so, while leaving avenues open for profit-making and economic activity generally?

The group would include following members:
1. Philippe Cullet: Coordinator of the Sub group, IELRC, New Delhi
2. Himanshu Thakkar, SANDRP, Delhi
3. M. K. Ramesh, National Law School, Bangalore
4. M. S. Vani, Development Centre for Alternative Policies, New Delhi
5. Suhas Paranjape, Senior Fellow, SOPPECOM, Pune
The first meeting of this subgroup was held on 2 July 2009 at Delhi.  All members of the group, i.e. Philippe Cullet, Himanshu Thakkar, M. K. Ramesh, M. S. Vani, and Suhas Paranjape were present for the meeting. K J Joy and Shruti Vispute also participated in the meeting.
 
On the content and objectives of the position paper the group discussed that:

  • We should brainstorm on what obstructs the realisation of human rights, livelihood rights, and environmental rights? What are the problems with implementation of existing laws?
  • The group decided that status paper/reform paper would be like reinventing a wheel, so the final output will be a position paper by the subgroup.
  • The subgroup can also think of alternative propositions in the currents legal framework
  • Cultural perspective about water, social, economic practices should be considered while thinking about customary laws. It should not be considered as a static body of law. Infact ‘customary law’ is not an appropriate term, ‘legal pluralism’ would be more appropriate.
  • Customary laws didn’t allow Dalits to access water – how different sections would interact with customary law will be important to consider.
  • Customary laws are different in different contexts; it is also a process of creating norms- why, which institutions are needed? Who should be doing, clarifying these aspects would be important to consider?
  • The group should also consider community ownership- state ownership conflicts in the paper.
  • It is difficult to summarise water laws in India so the group should briefly review the larger water law and see how the constitution has dealt with water issues?
  • Issue of large dams and laws related to that, climate change, governance issues, sustenance of rural water supply will be considered in the paper.
  • The subgroup should include issues related to groundwater independently in the paper.
  • The subgroup should consider rights perspective from all levels – macro, meso and micro.
  • There is a need to develop sector-wise legal strategies as it is very difficult to have one set of laws/information for the whole country.
  • There is a need to relook at the law sector to have legal framework for conflict resolution.
  • Lessons from other cases of conflict resolution can be included in the paper.
  • What we want as reforms and what we do not want as reforms should be included in the position paper.
  • We do have fundamental right to water, but no legislation on that, so we can demand water security law and present demand on the basis of this paper.
  • On the basis of the position paper the Forum can push UPA government for Water Security Law.

Currently the group is in a process of finalising the position paper.