Version classiqueVersion mobile

Law, land use and the environment: Afro-Indian dialogues

 | 
Christoph Eberhard

Perspectives indiennes / Indian Perspectives

Water Law Reforms in India

Philippe Cullet

Résumé

Les réformes du droit de l'eau en Inde.

La réglementation de l'eau douce est de plus en plus importante en Inde au niveau national et des états. Cela est dû à divers facteurs. D'une part, il y a une pénurie croissante d'eau douce qui peut se manifester tant au niveau d'un village spécifique qu'au niveau national. Cette pénurie peut être absolue ou liée à une qualité de l'eau insuffisante pour la consommation ou à des règles niant l'accès à l'eau pour certaines personnes ou groupes de personnes. D'autre part, le droit positif de l'eau en Inde est caractérisé par son insuffisance et son manque de cohérence. Ainsi, alors qu'il existe un grand nombre de règles et de lois dans divers états réglementant en particulier l'utilisation de l'eau pour l'irrigation, il n'existe aucune loi sur l'eau au niveau d'états ou de l'Union qui offre un cadre général pour la conservation et l'utilisation durable de l'eau. Par ailleurs, le droit existant est constitué d'un grand nombre de principes et de lois concernant différentes catégories de ressources en eau. Ceux-ci coïncident parfois mais ils peuvent aussi être en opposition. Dans le cas des principes gouvernant l'accès aux eaux souterraines et des eaux de surface, il y a une opposition entre la reconnaissance par les tribunaux du principe selon lequel les eaux de surface sont un héritage commun et l'existence de règles qui offrent à chaque propriétaire terrien le contrôle des eaux souterraines situées sur leurs terres.

Ces problèmes sont liés en partie au fait que différentes règles qui n'étaient pas forcément conçues comme ayant un lien intrinsèque avec différentes utilisations de l'eau ont évolué au cours du temps. Ainsi, bien que le droit de l'eau a toujours été en évolution, le manque d'une perspective globale n'a pas permis l'émergence d'un droit universellement applicable à toutes les situations et prenant en compte les divers problèmes devant être réglementer.

Il est apparu au cours des trois dernières décennies que des réformes en profondeur du droit de l'eau étaient nécessaires. Cela est dû, par exemple à l'augmentation de la population et aux nouvelles technologies permettant aujourd'hui d'extraire l'eau souterraine avec des pompes mécaniques puissantes. Sur cette nécessité de réformer le droit de l'eau s'est greffée la nouvelle politique économique proposée d'abord au niveau international puis depuis quinze ans par le gouvernement indien. Ainsi, alors que la réforme du droit de l'eau est nécessaire, l'influence de la nouvelle politique économique et le manque d'une perspective sociale a rendu ces réformes très controversées.

Les réformes mises en place sont contestées parce qu'elles ne semblent pas répondre aux besoins réels de changements. Les réformes du droit de l'eau proposées sont basées sur un nombre limité de principes dont il est suggéré qu'ils constituent la solution appropriée pour tous les pays en développement. Elles mettent en avant le fait que l'eau doit être considérée comme un bien économique. Par ailleurs elles cherchent à forcer les individus à prendre des responsabilités de plus en plus importantes dans leur approvisionnement en eau sous couvert du principe de participation.

Différentes interventions ont été proposées. Premièrement, sur recommandation de diverses institutions internationales, plusieurs États (Andhra Pradesh, Maharashtra and Arunachal Pradesh) ont établi de nouvelles structures pour réglementer la gestion des ressources en eau. Ces nouvelles autorités sont censées reprendre une partie des fonctions de différents départements des gouvernements régionaux. Leur légitimité provient du fait qu'elles sont «indépendantes» des administrations existantes. Ces autorités fonctionnent sur la base du principe de rentabilité et ont donc très peu de compétences au niveau des besoins sociaux en eau.

Deuxièmement, de nombreux États ont introduit des lois ou mesures similaires pour promouvoir la formation d'associations d'usagers. Ces structures sont censées donner aux usagers directs d'eau d'irrigation de surface un contrôle plus important sur l'eau qu'ils reçoivent. Cet effort de décentralisation et de participation est cependant limité. Ainsi, il ne donne pas aux agriculteurs de contrôle effectif sur l'eau d'irrigation mais leur impose de prendre en charge la gestion au niveau local des projets. Par ailleurs la «participation» des agriculteurs signifie aussi un transfert des responsabilités financières du gouvernement vers les agriculteurs.

Troisièmement, l'accroissement massif de l'utilisation des eaux souterraines pour l'irrigation et autres usages a amené le gouvernement central à considérer la nécessité d'introduire une législation sur l'utilisation des eaux souterraines. Etant donné que la compétence pour légiférer se situe au niveau des Etats, le gouvernement fédéral n'a pas pu faire plus que de proposer une législation modèle. Cette législation proposée pour la première fois en 1970 a été actualisée plusieurs fois. C'est seulement au cours de la dernière décennie que quelques États ont adoptés des lois. Ces lois qui reflètent souvent la législation modèle limitent les droits des propriétaires terriens sur l'eau souterraine en imposant un système de permis. Ces mesures sont les bienvenues pour enrayer la surexploitation des eaux souterraines mais ne constitue pas une réponse effective aux problèmes posés. En effet, les mesures proposées déplacent simplement le contrôle d'un acteur à un autre mais ne prennent, par exemple, pas en compte la nécessité de donner une priorité effective aux besoins vitaux en eau potable.

Les réformes actuelles sont significatives. Elles vont redéfinir le cadre juridique du droit de l'eau pour les décennies à venir. Elles sont cependant insuffisantes parce qu'elles ne prennent pas en compte la totalité des questions qui se posent. En particulier, les réformes actuelles ne prennent pas suffisamment en compte la priorité qui doit être accordée au droit de l'homme à l'eau et aux autres aspects sociaux de l'eau. Il est donc impératif de repenser les réformes actuelles pour faire en sorte qu'elles offrent des solutions non seulement du point de vue économique mais également du point de vue humain.

Texte intégral

INTRODUCTION

1The regulation of freshwater uses has been a subject of growing attention in recent years at national and international levels. This is connected with an increasing scarcity of physical and social water (Barlow 2004) and is also related to the inadequacy of existing laws and treaties in the water sector, which often lack the dimensions of human rights and environment (Hildering 2004).

2The existing framework of water law in India is characterised by the co-existence of a number of different principles, rules and acts that have been adopted over many decades (Singh 1991). These include common law principles and irrigation acts from the colonial period as well as more recent regulations pertaining to water quality and the judicial recognition of a human right to water.

3The lack of a comprehensive water legislation has ensured that water law has until now been made up of different instruments, principles and judicial decisions, which are not necessarily fully compatible with each other (Iyer 2004). Thus, the claims that landowners have over groundwater under common law principles are today difficult to justify in the context of the realisation of the human right to water and in view of the fact that groundwater has often become the main source of drinking water, while land-based access rules do not contribute to a social perspective on water.

4The existing lack of a comprehensive and clear legal framework leads to a situation in which there is a lack of clarity with regard to the rights and obligations of all concerned individuals and institutions. This is further compounded by the fact that formal water law is supplemented by a number of customary and religious rules concerning water use and control, which continue to be applied in many places.

5There is very little disagreement over the fact that water law needs to be reformed in a situation in which water scarcity is increasing year after year. This recognition has led to a flurry of activity over the past couple of decades on the part of national and international agencies to propose new water law principles, rules and acts. The process of reform, which can be said to have formally begun in the late 1980s with the adoption of the first national water policy, has since then led to the introduction of a number of changes at the national level and in a number of states. This process of water law reform is now intensifying for a variety of reasons, among which is a strong policy push from international aid agencies.

6This article is divided into four main sections. The first section focuses on some of the principles underpinning water sector reforms that have been highlighted in national and international policy documents. This provides a conceptual background for understanding recent legislative changes, which are introduced in the second section. It is argued there that these instruments focus on a limited number of regulatory changes proposed in recent years to put the water law framework in line with proposed policy initiatives. The third section then provides a general analysis of changes in law and policy that have been introduced until now. Finally, this article provides pointers for moving beyond present reforms with a view to correcting some of the perceived shortcomings in existing water law reforms.

Principles for Water Sector Reforms

7Water sector reforms have been proposed in many countries as a way to address diminishing per capita availability, increasing problems in water quality and increasing competition for the control, access and use of available freshwater. They seek to comprehensively reform governance in the water sector. These changes in governance are underpinned by a number of principles guiding the whole reform process, some of which have been outlined in various policy documents. This section focuses on a number of these principles as found in documents that have been of particular importance in the drafting of the acts and bills examined in the second section of this paper.

Water as a Natural Resource and Economic Good

8The first central principle guiding the reform process is that all uses of water should be seen from the perspective of its economic value, because the absence of an economic perspective in the past explains the existing unsustainable uses of water (Dublin Statement 1992). As a result, the emphasis is on water as a natural resource, which must be harnessed to foster the productive capacity of the economy, from irrigation water for agricultural production to water for hydropower. Thus, the National Water Policy laments the fact that an insufficient percentage of water is currently harnessed for economic development and even calls for ‘non-conventional’ methods of water utilisation such as inter-basin water transfers and seawater desalination as large-scale, high-technology solutions to improve overall water availability (National Water Policy 2002: Section 3.1-2). This message is also found in the recently drafted report by the World Bank, which emphasises that India has not developed enough large water infrastructures (Briscoe 2006).

9Beyond the relatively old characterisation of water as a natural resource, the underlying proposition for water sector reforms is that water is to be seen as an economic good. This implies an important shift in terms of the rights of control over and access to water. In fact, this leads to a complete policy reversal, that is, from the perspective that water is a public trust to the introduction of water rights and the possibility to trade water entitlements. As such, water-related rights are not new and there is already a vast corpus of law pertaining to control over water. This includes, for instance, the absolute rights that the state may claim over water (Madhya Pradesh Irrigation Act 1931: Section 26 and Madhya Pradesh Regulation of Waters Act 1949: Section 3), as well as the rights and privileges that common law principles bestow on landowners. The novelty introduced by the reforms is that water rights are now created in favour of water users (Uttar Pradesh Water Policy 1999: Section 17(1)d). These rights are the necessary premise for participation in the management of water resources, for the setting up of water user associations and for the introduction of trading in entitlements (Maharashtra State Water Policy 2003: Section 4.2).

10Another important change brought about by the notion that water is an economic good is that all water services must be based on the principle of (full) cost recovery (World Bank 1998). In a situation in which the provision of drinking and domestic water as well as irrigation water is substantially subsidised, this implies a significant policy reversal. At the national level, the policy is now to make water users pay at least for the operation and maintenance charges connected with the provision of water (National Water Policy 2002: Section 11). This strategy is already being implemented in the context of irrigation water in which farmers are made to pay for operation and maintenance costs (World Bank 1998). A similar strategy has also been introduced under the Swajaldhara guidelines, which suggest that water users should assume partial responsibility for the capital cost of new drinking water infrastructures and full responsibility for operation and maintenance (Guidelines on Swajaldhara 2003: Section 3.1).

11The notion of cost recovery is directly linked to the environmental component of water sector reforms. Indeed, they are conceived as part of a single strategy (World Bank 2000: Section 2.b). Moreover, cost recovery is seen by the Asian Development Bank, for instance, as the first instrument for conserving water (Asian Development Bank 2003: Section E).

Decentralisation and Participation

12Water sector reforms are also based on the need to promote decentralisation and participation that involves water users. This is meant to provide a framework for decentralising decision-making to the lowest level and to allow ‘beneficiaries and other stakeholders’ to be involved from the project planning stage onwards (National Water Policy 2002: Section 6.8). The rationale for decentralisation is the perceived inability of the state to deliver appropriate benefits. The state is thus called upon to change its role from that of a service provider to that of a regulator. In the case of irrigation, this implies transferring part or full control of irrigation systems to users by both allowing and forcing them to assume responsibility for the upkeep of irrigation systems, along with the financial costs involved, and for sharing the allocated water among themselves (Uttar Pradesh Water Policy 1999: Section 17.1).

13In principle, participation is conceived as an umbrella term that covers participation from policy planning and project design to the management of water infrastructures. In practice, the focus is on participation in the final stage of the process. In fact, the word participation is a misnomer of sorts. On the one hand, what is envisaged is not so much the possibility for farmers and users to participate in taking decisions that affect them, but the blanket imposition of a new system of local water use and a control scheme based on commercial principles-even where successful systems of water governance are already in place. On the other hand, the participation as envisaged at the local level is not that of everyone using water. Schemes that have been set up by water user associations in recent years generally provide that their members be landowners and land occupiers. The focus on land ownership and occupation as a basis for governing the use and control of water is likely to reinforce inequalities in access to water between those who have access to land and all those who do not.

Redefinition of the Role of the Government

14Water sector reforms contain several proposals that affect the role of the government in the water sector. Included are both measures to restrict the role played by the government as well as measures that seek to increase government control.

15On the one hand, the main thrust of water sector reforms is to transform the role of the government by transferring part of the existing government prerogatives to users and private actors. This involves the transfer of operation, maintenance, management and collection of water charges to user groups (Karnataka State Water Policy 2002: Section 6.7). The idea is to promote a sense of ownership at the user level, something the government with its overbearing presence in the water sector was unable to do. A second thrust of the reforms is to set up new bodies at the local and state levels to take over part of the functions of the government. Among the latter would be the establishment of water user associations to locally manage irrigation schemes in the place of local bureaucrats and, on a much broader scale, the consitution of new water regulatory bodies.

16The reduction of the role of the state in the water sector is also linked to the introduction of incentives to ensure that water is more efficiently and productively used (Maharashtra State Water Policy 2003: Section 1.3). The main consequence of this is the call for private sector involvement in all aspects of water control and use, from planning to development and administration of water resources projects (National Water Policy 2002: Section 13). One area singled out for private sector participation is urban water supply (Rajasthan State Water Policy 1999: Section 9).

17On the other hand, some of the existing reforms support increased state involvement in the water sector. The state seeks in a number of areas to either maintain its de facto prerogatives or to extend them. National policy clearly states that the government should be able to provide for the transfer of water from one river basin to another (National Water Policy 2002: Section 3.5). This is now being taken up in the context of a mammoth scheme to interlock rivers. At the state level, an increasing number of states seek to control and regulate groundwater, the use of which has until now been linked for the most part to land ownership.

Water Law Reforms

18A number of water law reforms have been introduced in recent years. They are mainly based on the principles discussed above. This section considers three types of legal intervention. The first is the introduction of independent water regulatory authorities. The second is the introduction of legislation and schemes to promote user participation in the delivery of water services. The third type of intervention is the introduction of groundwater laws to move away from principles of control over and access to water that are associated with land ownership.

19These three examples constitute some of the most recent legal interventions in the water sector. They have been chosen here partly because of their significance in the broader process of water sector reform and partly because they are among the most recently proposed or passed legal instruments.

Managerial Reorganisation

20As noted above, one of the central concerns of water sector reforms is to restructure the way in which water services are delivered. One of the avenues suggested to achieve this aim is the setting up of water regulatory authorities intended to assume some of the functions of existing government departments.

21The first experiment undertaken in India in this regard took place in Andhra Pradesh, where a Water Resources Development Corporation Act was adopted as early as 1997 (Andhra Pradesh 1997). This act in particular sought to devolve existing government powers to a new institutional structure entrusted with the mandate to advance water sector reforms. Since 1997, much though has been given in policy-making circles to water sector reforms and the type of measures that need to be taken to move the agenda forward. As a result, the latest act constituting an independent water institution, the Maharashtra Water Resources Regulatory Authority Act, 2005, is quite different from the one adopted in Andhra Pradesh.

22Three main features of the Maharashtra Water Resources Regulatory Authority Act, 2005, are noteworthy. These concern the composition of the authority, its powers and the policy framework within which it is called upon to function.

23The Authority consists of three members and five so-called special invitees. The chairperson must be an existing or former civil servant. The other two members, however, are meant to be independent experts with special knowledge in the fields of water resources engineering and water resources economy. The five special invitees are to represent five different regions of the state and must be experts in at least one field related to water resources. While most of the members and invitees are meant to be independent experts, their appointment is controlled by civil servants, inasmuch as the selection committee consists entirely of senior civil servants. In comparison to the Andhra Corporation, the composition of the Maharashtra Authority is noteworthy for the attempt to completely exclude political leaders from the power structure. In general, the main shift to be observed is that the more recent act goes much further in attempting to delink the new body from the government, at least at the level of its membership. In practice, while the Maharashtra act takes a clear stand on paper to insulate the Authority from political interference, the bureaucracy still has an important (in)direct role. The actual independence of the Authority will thus have to be judged in practice rather than on the basis of the act.

24The Maharashtra Authority has been given a number of significant tasks. Its first broad prerogative is to establish a regulatory system for the water resources of the state, including surface and ground waters, to regulate their use and apportion entitlements to use water among the various recognised categories. Concurrently, the Authority is to promote the efficient use of water, to minimise wastage and to fix reasonable criteria for use, as well as allocating specific amounts to specific users or groups of users according to the availability of water. It is further required to establish a water tariff system as well to fix the criteria for water charges. This is to be done on the basis of the principle of full cost recovery in the management, administration, operation and maintenance of irrigation projects.

25One of the important tasks entrusted to the Authority concerns its role in laying down criteria for the issuance of water entitlements. According to Section 11 (g)ii, criteria are to be established for the issuance of bulk water entitlements for all the main uses of water, including irrigation, rural and municipal water supply as well as industrial water supply. The Authority seems to have significant latitude in determining priorities of use among the main uses, considering that the act does not provide specific guidelines.

26Another task assigned to the Authority is the specification of criteria for trading in water entitlements or quotas. Since the very idea of trading in water entitlements is novel, the act specifically indicates that the premise for trading is that entitlements ‘are deemed to be usufructuary rights which may be transferred, bartered, bought or sold on annual or seasonal basis within a market system and as regulated and controlled by the Authority’.

27It is apparent from the above depiction of the Authority’s powers that they are extensive, but confined to a number of specific tasks focusing on the management of existing water infrastructures. This can be compared to the powers that were given to the Andhra Corporation. The latter is endowed with what can be seen as a more diffuse mandate, but one that covers a much broader array of functions previously undertaken by the government. Among these functions are the planning, construction and management of irrigation projects and of drinking water and industrial water supply schemes. This can be largely explained by the much more direct control exercised by the government in the case of the Andhra Corporation.

28With regard to the principles underlying the Maharashtra Authority’s activities, the act specifically indicates that it must operate within the framework of the state water policy and additional principles found in the act, some of which need to be highlighted at this juncture. First, the authority has to work on the basis of the ‘polluter pays’ principle with regard to the question of water quality. This constitutes an important shift towards the integration of environmental principles in the water sector. Second, the volumetric amount of water made available to holders of water entitlements is to be fixed according to specific criteria. These include, for instance, the need for equitable distribution of water between all landholders and the grandfathering of existing private sector lift-irrigation schemes for five years. Finally, any person with more than two children has to pay 50 per cent more than the prevailing rates to be entitled to water for agriculture. These three elements indicate the breadth of factors that the Authority must take into account.

29Another characteristic of these guiding policies is that they have the potential to conflict. Thus, a small landowner with three children may have to pay 50 per cent more for his/her water than a neighbouring big farmer, even though the principle of equitable distribution would ordinarily be understood as giving priority to meeting the water needs of small and poor farmers. It is also noteworthy that the principle of equitable distribution only seems to apply among land occupiers. This implies that one who does not occupy land is not covered by this provision.

30An important consequence of the establishment of a water regulatory authority concerns the proposed strengthening of the control over water resources. The act provides as a general principle that any water from any source can only be used after obtaining an entitlement from the respective river basin agency. This is qualified by a few exceptions such as wells (including bore and tube wells) used for domestic purposes or the grandfathering of existing uses of water for agriculture, at least in an initial phase. This illustrates the fact that while the role of the government is curtailed through the constitution of an independent authority, this does not necessarily translate into less regulatory intervention as far as water users are concerned. The overall impact is therefore as much to reduce the government’s role as to transfer and possibly strengthen control over water resources.

Decentralisation and Participation

31In recent years, two of the buzzwords in water policy-making circles have been decentralisation and participation. Two main examples of the specific contexts of participation and decentralisation are introduced here. The first is water user associations (WUAs), bodies that are being introduced in various countries around the world in the name of participatory irrigation management (PIM). The second is Swajaldhara, a programme spearheaded by the union government and based on the same philosophy as WUAs, but focusing more specifically on drinking water.

32WUAs have been introduced in different forms in different parts of the country and different areas of the world. However, a number of common characteristics can be identified in many schemes. This includes the fact that WUAs are meant to be governed and controlled by people who both pay for the services offered by the association and who receive benefits. WUAs are not commercial entities but must be financially independent and therefore need to receive an income that is sufficient to avoid bankruptcy. Further, WUAs are in most cases subject to regulatory control by the state because they are deemed to provide a service of benefit to the public (Hodgson 2003).

33The establishment of water user associations (WUAs) has been taken up with increasing intensity over the past decade and WUA legislation has been introduced in a number of states, ranging from Andhra Pradesh and Madhya Pradesh to Orissa and Rajasthan (Andhra Pradesh 1997a, Madhya Pradesh 1999, Orissa 2002, Rajasthan 2000). These acts have been adopted at different points in time and the schemes proposed have evolved over time, although the basic principles are fairly similar in each situation. This section does not seek to provide a comparative analysis of these different acts. Rather, it focuses on the latest act adopted in Maharashtra, for it is unlikely that other states, which are yet to adopt legislation in this field, will revert to older schemes.

34WUAs under the Maharashtra Management of Irrigation Systems by Farmers Act, 2005, are set up to promote the secure and equitable distribution of water among its members, to maintain irrigation systems, to ensure the efficient, economical and equitable distribution and utilisation of water so as to optimise agricultural production, as well as to protect the environment. While the act provides for decentralisation aimed at farmer involvement in irrigation at the local level, it also gives significant powers to the Maharashtra Water Resources Regulatory Authority or other designated authorities. In particular, they have the power to determine the command area of an irrigation project for which a WUA must be constituted. Further, the same authority can also amalgamate or divide existing WUAs on a hydraulic basis and ‘having regard to the administrative convenience’ (Maharashtra 2005: Section 5.5). In other words, the power granted at the local level is limited by the fact that authorities have the essentially discretionary power to make and break WUAs.

35The system set up under the act is restrictive insofar as once a WUA has been constituted, no water will be individually supplied to anyone outside the WUA framework, and the scheme is binding on all landholders and occupiers. In this sense, WUAs are forced to assume the burden of administering the irrigation system and are basically left to determine the manner in which they want to achieve this. Further, the act provides a uniform model of WUAs, regardless of existing arrangements at the local level and notwithstanding their success in equitably and sustainably using water.

36The framework provided under the act seeks to balance benefits and burdens. On the one hand, WUAs are meant to benefit from a more assured water supply and more control over the water allocated to them. Further, it is the authority’s duty to supply the amount of water they are entitled to receive. They also have the right to use groundwater in their command area in addition to the entitlement they receive from canals. On the other hand, the act gives WUAs a number of powers that are in fact responsibilities. Involved are such functions as the regulation and monitoring of water distribution among WUA members according to the assessment of members’ water shares, the equitable supply of water to members, the collection of service charges and water charges, the maintenance and repair of the canal system and the resolution of disputes among members. These are extensive and possibly burdensome powers. WUAs are not only given the task of managing the infrastructure, but are also to furnish an institutional structure that equitably offers all the services that a public authority would provide. While such arrangements would be appropriate if WUAs were linked to panchayati raj institutions (PRIs), it is difficult to see how an association of landholders lacking democratic legitimacy can ever perform all these tasks in an equitable and sustainable manner for its members and for the broader society around it. To take but one example, while there are now a number of rules intended to ensure the participation of women and lower castes in PRIs, it is quite likely that WUAs will generally be dominated by male upper caste members. In other words, the existing legislation is both onerous for WUAs, which seem to be saddled with more responsibilities than rights, and is at the same time unlikely to provide a framework leading to a more socially equitable access to and sharing of water.

37The section pertaining to the powers and responsibilities of WUAs is complemented by a section concerning financial arrangements. As specified under Section 54, the main sources of funding for WUAs will not be provided by the government. WUAs are meant to meet their expenses from the proceeds of water charges, loans and donations. In other words, the act seeks to ensure that WUAs are financially independent and viable, a fact which is confirmed by the encouragement given to WUAs to engage in additional remunerative activities, including the distribution of seeds, fertilisers and pesticides or the marketing of agricultural produce that are only indirectly related to irrigation.

38In addition to the constitution of WUAs, the union government has proposed a scheme known as Swajaldhara, which proposes to foster new types of intervention to ensure better drinking water availability in villages. The guidelines on Swajaldhara are the direct outcome of Swajal, a pilot project sponsored by the World Bank, and adopt the same philosophy (World Bank 1996). Apart from the direct link between the World Bank project and Swajaldhara, it is also noteworthy that this potentially significant scheme, which now covers the entire country, is not part of any legislation submitted to parliament.

39The guidelines are meant to bring about a change in the role of the government from direct service delivery to that of facilitating activities largely undertaken by people themselves. In other words, the guidelines propose the progressive withdrawal of the state from the provision of the fundamental right to drinking water. The argument put forward by the government is that people perceive water as a fundamental right, in part because it has been provided free by the government. The government estimates that the public has not understood that water is scarce and represents a socio-economic ‘good’. It is therefore proposed to shift from what is seen as a supply-driven approach to one which focuses on the needs of end-users, who will then get the service they want. The fundamental change of approach required by this demand-focused strategy is that people will receive the service they ‘are willing to pay for’ (Guidelines on Swajaldhara: Section 1.2). In fact, the basic economic rationale of Swajaldhara is that people should be made to pay for part of the capital costs of drinking water projects and for all operational and maintenance costs.

40Swajaldhara is premised on a number of principles. First, it proposes the introduction of a demand-focused approach involving some level of community participation. Second, it seeks to devolve ownership of drinking water assets to the appropriate panchayat, which is given the power to undertake all activities related to water supply and sanitation, from planning to maintenance. Third, Swajaldhara imposes on communities a contribution of at least 10 per cent of the capital costs for a service level of forty litres per person per day and requires that they take full responsibility for operation and maintenance. It also requires that at least 50 per cent of the community contribution to capital costs should be in cash. Further, under Swajaldhara, only individuals or households that make the first 10 per cent contribution will benefit from the implemented schemes. Others are simply excluded.

From Private to Government Control: Groundwater

41Legislative interventions concerning groundwater are significant for two main reasons. First, from a legal perspective, they constitute a major organised attempt to redraw the rules concerning control and use of groundwater, which is still otherwise mainly based on common law principles, according to which groundwater is among the resources a landowner can use with but little outside control. Second, the legislative interventions constitute a response to the fact that over time groundwater has in various areas become the most important source of water. It provides in particular 80 per cent of the domestic water supply in rural areas and supports around 70 per cent of agricultural production (United Nations 2003). This strengthens the case for ensuring the sustainable use of groundwater.

42Groundwater has until recently been governed mostly by old legal principles that are primarily connected with land ownership. Further, as in many other countries, from a legal perspective, groundwater has hitherto generally been treated independently from surface water, even though links have increasingly been acknowledged. As a result, until a few decades ago, there was little by way of statutory provisions concerning groundwater use and control, and the central government’s intervention in this area was even less prominent than in the case of surface water. The increasing use of groundwater has led a spurt of legislative activity.

43At the national level, even though the central government would find it difficult to justify groundwater legislation with reference to the Constitution, several attempts have been made over the past few decades to provide a model law that can be adopted by individual states. The first attempt, dating back to 1970, had little success since virtually all states ignored it. More recent versions of the model bill, including the latest version unveiled in early 2005 (Model Bill 2005), have greater influence on legislative activity because groundwater regulation has become a priority in many states. In fact, several states have proposed groundwater-related laws that are similar to the model law, for instance the Kerala Ground Water (Control and Regulation) Act, 2002, and the Delhi Water Board (Amendment) Bill, 2005. The following paragraphs therefore focus on the model bill, as it provides the framework most states are likely to adopt.

44Basically, the model bill is to provide for the establishment of a groundwater authority under the direct control of the government. The authority is given the right to notify areas where it is deemed necessary to regulate the use of groundwater. The final decision is taken by the respective state government. There is no specific provision for public participation in this scheme. In any notified area, every user of groundwater must apply for a permit from the authority, unless the user only proposes to employ a hand pump or a well from which water is drawn manually. The authority’s decisions to grant or deny permits are based on a number of factors, including technical matters such as the availability of groundwater, the quantity and quality of water to be drawn and the spacing between groundwater structures. Although the authority is also mandated to take into account the purpose for which groundwater is to be drawn, the model bill, which mirrors in this respect the acts analysed above, does not prioritise the domestic use of water. It is noteworthy that even in unnotified areas, all wells sunk need to be registered.

45The model bill provides for the grandfathering of existing uses in that it only requires the registration of such uses. This implies that in situations in which water is already scarce, an act modelled after these provisions will not provide an effective basis for controlling existing overuse of groundwater, but will at most provide a basis for ensuring that future use is more sustainable.

46Overall, the model bill constitutes an instrument seeking to broaden state control over the use of groundwater by requiring the registration of all groundwater infrastructures and providing a basis for introducing permits for groundwater extraction in regions where groundwater is over-exploited. While providing a clear framework for the assertion of government control over the use of groundwater, the model bill shows only a limited concern for the sustainability of use. The model bill and the acts based on it can thus be seen a welcome development that should provide scope for better control over the use of groundwater in general. However, further thought should be given to making the model bill sensitive to social concerns. Important provisions are currently lacking, such as the need to prioritise among uses and to make drinking and domestic water the first priority. Further, the model bill does not differentiate between small and big users of groundwater, commercial and non-commercial uses, and fails to take into account the fact that those who neither own nor occupy land are by and large excluded from the existing and proposed systems, in which the focus is on the rights of use of landowners.

Implications of Ongoing Regulatory Reforms

47The changes iN policies and laws as outlined above are momentous. Overall, they seek to redraw the regulatory framework governing control over and use of water. It is necessary to extract the main points arising from these reforms in order to make sense of their implications, since changes in the regulatory framework will probably continue to take place, even in states that have recently introduced new laws. In fact, institutions like the World Bank, which are spearheading water sector reforms, view specific water restructuring projects as part of a long-term agenda that will take years to fully implement, partly because it is understood that a number of these reforms will encounter significant resistance. To take but one example, proponents of water sector reforms would ideally like to see that water infrastructure projects are completely independent financially. However, this is politically impractical at this stage and explains why the Swajaldhara guidelines for the time being propose to limit to 10 per cent the share of capital costs that people pay. Nevertheless, policy documents specify that the goal is to progressively move towards 50 per cent cost recovery (World Bank 2003). The Asian Development Bank (ADB) goes further and proposes that

[c]onsumers will be expected to meet the full operation and maintenance costs of water facilities and service provision in urban and rural water supply and sanitation schemes subject to subsidy considerations (Asian Development Bank 2003: Section 44).

48This also applies to the poor, whom the ADB has found to be ‘increasingly willing to pay for water services that are predictable and effective’ (Asian Development Bank 2003: Section 45). Consequently, the phased elimination of direct subsidies to the poor for access to basic water services is promoted.

49An understanding of ongoing water regulatory changes needs to take into account not only the laws and policies put in place, but also the conditions under which these are introduced. In the documents mentioned in the previous sections, clear links can be identified between national and international water policies in the last decades, which to an extent represents a parallel development. This does not, however, provide a complete picture. On the one hand, debates have taken place in higher circles of policy-making at the national level concerning changes in water laws and policy (Planning Commission 1992). On the other hand, a number of these changes originated in proposals made at the international level, while other changes have been adopted as conditions of development aid. The latter can be observed in the context of the Madhya Pradesh Water Sector Restructuring Project, in the context of which the state is bound to draft new water legislation (World Bank 2004: 10). In other words, the significant similarity between the types of interventions called for by such institutions as development banks and the laws and policies adopted at the union and state levels indicates, at the least, the strong influence of international policy-making bodies. This is illustrated by the fact that many of the key prescriptions in the World Bank’s water report for India of 1998 have been incorporated in most of the recent policies and laws adopted in the country (World Bank 1998). These include a demand-led approach, cost sharing for investments, the constitution of WUAs, the establishment of water rights, the reduction of the role of the government in the water sector and an increase in water charges.

50Turning to the instruments examined above, several overall trends can be noted. First, even though water is still a state matter, there is significant and possibly increasing uniformity among the laws adopted by individual states. This may come as a surprise, given the diversity of climates and types of water-related problems in different states. However, this could be an indirect acknowledgment of the perceived need for some form of national regulation of water in addition to existing state-level instruments.

51One of the consequences of this uniformity is to slowly diminish the relevance of state control over water use. This is reinforced, in the case of groundwater, by the union government’s attempt to suggest specific groundwater laws to states by developing the model bill on analysed above.

52Second, as indicated by the development of laws promoting the establishment of water user associations, one of the main trends in current policy-making is to impose new responsibilities and rights on end-users of water infrastructures. This process, which seeks to increase the participation of users and to decentralise water governance, is in principle a welcome change. Nevertheless, the specific mode of implementation is proving problematic. On the one hand, participation and decentralisation are seen as concurrent elements that imply a progressive withdrawal of the state from certain water-related functions, in particular with regard to the provision of funding. Thus, the main rationale for this process of decentralisation does not seem to give end-users more control over water, but rather forces them to assume part of the role previously played by the state, irrespective of their willingness or ability to do so. On the other hand, the participation as envisaged under participatory irrigation management (PIM) is much less developed than the decentralisation as foreseen in constitutional amendments 73 and 74. In fact, most schemes provide for the establishment of WUAs separately from PRIs. Some authors justify this on the technical ground that WUAs should be established on a hydrological basis, as well as on the grounds that panchayats are already overburdened, that they may lack the expertise to manage water, and that they are caught up in party politics and factionalism (Gulati 2005). This gives little credit to the fact that panchayats are constitutionally-sanctioned democratic institutions for local governance that have been envisaged as the proper forum for overseeing issues of drinking water, minor irrigation, water management and watershed development in areas under their control.

53The fact that WUAs are established independently from PRIs implies that their basic structure is unrelated to the democratic structure of the latter. This can be seen in the membership of these associations, which is limited to landowners or land occupiers. Consequently, WUAs tend to be established on the basis of old common law principles that give landowners significant control over the water that flows through their land and over groundwater. It is thus apparent that WUAs cannot be expected to contribute significantly to the reduction of existing inequalities in access to water. In other words, because of their limited membership, WUAs cannot be expected to contribute to the realisation of the fundamental right to water for landless people or, generally, to foster greater social equity than has been achieved until now under existing legal principles.

54Third, recent policy initiatives seek to give the state enhanced control in some fields. This is clearly illustrated in the case of groundwater. After decades during which the legal regime left most control over groundwater to landholders and occupiers, new groundwater legislation seeks to give increasing power to the state to regulate its use. This is in principle a welcome development in a context in which groundwater is now the main source of both drinking and irrigation water in most places and in which the Central Ground Water Board does not have a sufficiently broad mandate to comprehensively regulate it. However, as analysed above, proposed legislation does not go far enough in seeking to provide for the equitable and socially just sharing of existing groundwater. Further, new laws do not include sufficient provisions to ensure that poorer users of groundwater will not be harmed by the new controls and charges. The very reasonable aim of allowing the government to regulate groundwater use in view of diminishing per capita availability needs to be put in the context of the state’s progressive withdrawal from water-related functions.

55Attempts by the state to maintain significant control over water governance while decentralising can also be observed in legislation in Maharashtra or Rajasthan, where authorities are given the power to dismember WUAs. This would indicate that the control given to the new decentralised institutions is in fact weak, since WUAs can be made and broken from above. The lack of institutional stability will seriously hamper effective control over water by the local people.

56Fourth, while the state is attempting to regain control in such areas as groundwater, the main trend in the past few years has been towards the devolution of power to quasi-or non-governmental entities. The basic premise for doing so is the perceived inability of the government to effectively administer existing water infrastructure or to provide water in an economically efficient manner to users, as well as its inability in the present context to muster further financial resources to infuse into water infrastructures. The perceived inability of the government to deliver leads to a number of policy prescriptions. As noted above, one of the main novelties introduced by recent acts is the setting up of independent water regulatory authorities that are meant to assume some of the powers of government bodies and provide similar services without political interference. Alongside the setting up of regulatory authorities, recently adopted acts foster the view that water must be seen as a scarce economic good. This leads to the perception that water needs to be regulated and managed on a commercial basis like any other market good. The consequence is that all water-related institutions are called upon to ‘manage’ water on commercial lines. This implies that any pre-existing social perspective on the provision of water is for the most part sidelined. Further, while the first consequence of this approach is the corporatisation of public sector water-related bodies, the second is the promotion of the participation of the private sector in the water sector. In other words, the state is both withdrawing from water-related activities and encouraging their development along commercial lines by other actors. This is the consequence of a largely unidimensional view of water as an economic good, which is increasingly seen as open to private appropriation and as eventually leading to the introduction of private ‘water rights’, which can be traded like any other commodity.

Beyond Water Sector Reforms

57The above analysis indicates that the main thrust of the reforms is an attempt to make water an economic good to be managed like any other commodity (Shiva 2002, Finger 2002). This constitutes a fundamental change from the existing understanding that water is either freely provided by god or by the state, or that it is a common entitlement, a public trust or a human right.

58There is no doubt that reforms in the existing framework of water regulation are necessary to revise water law to face the challenges of the twenty-first century. However, proposed changes not only fail to take into account the various functions of water in society, but they also fail to acknowledge that water has always been seen as fundamentally different from such natural resources as coal or timber because the availability of safe drinking water to every human being is necessary on a daily basis. The multi-faceted dimensions of water as a cornerstone of the survival of humans and animals and as a basic element in the fulfilment of our food, irrigation and energy needs and in economic development must be fully integrated into legal instruments.

59The need for changes in the pre-reform regulatory framework concerning water control and use is linked to two distinct, though related, factors. First, existing water law is mainly based on a model that puts the government and landowners at the centre of the regulatory framework. As long as the per capita availability of water was sufficient, this allowed private actors to make use of all the water they wanted, without preventing that the government also provide at least part of the population with drinking water. This model must be revisited in a context in which the use of water by landowners should be regulated like all its other uses. More importantly, this model needs to be revisited in the context of two fundamental changes: the recognition of the right to water as a fundamental right and the adoption of amendments 73 and 74 of the Constitution, which provide for increased control by panchayats over water use. Second, water law needs to be amended in view of new technical solutions that have, for instance, made possible the relatively large-scale extraction of groundwater from depths that would not have been reachable before the introduction of electrically driven pumps. This increasing use of water has taken place at the same time as water pollution from a multitude of sources has dramatically risen. The overall limited availability of freshwater, along with new concerns for water quality and sustainability, reinforce the need for a new regulatory paradigm.

60The reforms that need to be undertaken should be based on the recognition of the special nature of water and its importance as a source of human life and, more generally, of life on earth. Besides the substantive discussion that needs to take place, it is also important to ensure that the process is driven by local, regional and national priorities. This does not in the least exclude the need for collaboration with other countries in relevant areas. However, it indicates that policy-making should be overwhelmingly motivated by national needs and considerations.

The Place of Human Rights

61The first and most important element that needs to be reinforced in future water law reforms is the primacy of human rights, not only at the level of basic constitutional principles, but also in the more specific measures adopted in relevant acts and regulations. Further, all policies, acts and rules should include a clear prioritisation of water uses in which unambiguous primacy is given to drinking/domestic water.

62Water law reforms should be based on a set of basic principles that reflect the importance of water as a fundamental source of life for human beings and animals. Water is first and foremost a fundamental right of each and every human being. Water needs related to drinking, domestic and food security therefore take precedence over uses of water for activities related to economic development.

  • 1 F. K. Hussain v. Union of India, AIR 1990 Ker 321.

63The human right to water is widely recognised at international and national levels. This is the case with regard to the recognition of a human right to water per se, or the recognition of a human right to water that is read into existing human rights such as the right to life, health or food. At the national level, the new South African Constitution from 1996 expressly recognises the right to access to sufficient water in Section 27(l)b). Similarly, in Uruguay, since 2004, the Constitution provides that access to potable water and access to sanitation are fundamental human rights (Uruguay 2004: Article 47). In India, a fundamental right to water has been read into the right to life as protected under the Constitution1 (F. K. Hussain 1990). At the international level, the possible uncertainty concerning the status and content of the right to water has largely been laid to rest with the adoption by the Committee on Economic, Social and Cultural Rights of General Comment 15 pertaining to the right to water (Committee on Economic, Social and Cultural Rights 2002). While the reading of a human right to water as implied under articles 11 and 12 of the ESCR Covenant does not make the right to water formally binding, it does confirm that the right exists in present international law.

64A water regime that is based on the fundamental right to water is organised in ways that are different or possibly opposed to the proposed water sector reforms. The starting point is everyone’s entitlement to free domestic access to and use of water. Equity, human rights and environmental protection are core principles for allocating limited water supplies for other uses. One of the priorities of water sector reforms should thus be to ensure that the recognition of the human right to water by the judiciary is operationalised in the laws and other legal instruments that are adopted. In other words, it is necessary to bring the general claim of human rights to the level of each and every individual, for instance, by giving citizens a legislative basis for their entitlement to at least a minimum domestic water use. A figure needs to be adopted and it should not be lower than the basic minimum figure of 100 litres per day per person that is available on the premises through at least one tap (Howard 2003).

65A human rights approach involves prioritising water uses in favour of drinking and domestic water. The water policies that have been adopted in recent years have all attempted to prioritise water uses. Several of the water policies provide that water should be allocated in the following order: drinking water, irrigation, hydro-power, ecology, agro-industries and non-agricultural industries, navigation and other uses. There is thus a clear emphasis on domestic uses of water as the overriding priority in water allocation. This is reinforced in some policies by a call for the government to provide adequate safe drinking water facilities to the entire population. Nevertheless, each of these policies also provides that this priority list can be changed if circumstances so require, thus ensuring that there is in fact little substance in the prioritisation.

66Further, these non-binding principles contained in water policies are not carried over into laws that are actually binding on all actors. Thus, in the case of the Maharashtra Water Resources Regulatory Authority Act, the prioritisation of uses found in the policy applies because the Authority is called upon to work ‘according to the framework’ provided by the water policy, but this does not amount to a clear and unambiguous prioritisation of uses in favour of drinking water (Maharashtra 2005: Section 12(2)).

67The need to prioritise also implies that every different use of water must be regulated and prioritised. This is, for instance, the case for water use in agriculture. Irrigation needs to be regulated not only to ensure that there is a fair and equitable distribution of water among irrigation water users, but also on social and environmental grounds. There is, for instance, a need to rethink water uses in agriculture from the point of food security rather than from the point of view of overall production, which tends to put cash crops and food crops on the same footing, regardless of their water intensity. In other words, water regulation should provide incentives that foster first of all the growth of food crops that directly contribute to meeting the food needs of all people, the poor and landless being priorities.

68The prioritisation of water uses also implies that there must be linkages between what may be separate regulatory regimes dealing with drinking water use, irrigation water use and industrial water use. Water sector reforms have until now emphasised certain distinct water-related issues. Thus, with regard to rural areas, water sector reforms concentrate on the establishment of WUAs to address issues related to irrigation water. While irrigation water is one of the prominent issues that needs to be addressed in any water reform, current reforms neither put much emphasis on drinking water nor give much scope for further legislative interventions to specifically address drinking water. Two points arise in this context. First, according to the priority list in which drinking water ranks first, governments should not undertake any reforms that do not also focus on domestic uses of water. Second, it is apparent that independent regulatory authorities are meant to comprehensively regulate water uses. However, while these authorities have a broad mandate with regard to the allocation of water in a given state, they do not focus on drinking water, in part because of the way they are set up.

The Question of Water Rights

  • 2 M. C. Mehta v Kamal Nath, 1997 1 SCC 388.

69The issue of water-related property rights needs to be revisited. Currently, a number of legal interventions are justified as a shift from government ownership to user control or ownership. Existing acts remain relatively vague on the question of actual property rights over water itself and usually refer to property rights over water infrastructures. However, the secondary literature that provides the justification for these interventions is sometimes clearer. It has been argued, for instance, that strengthening users’ water rights is more important than giving them rights over the physical infrastructures. It is also contended that current government ownership of water can be transferred to user rights when users start paying more of the costs (Gulati 2005: 292). In other words, water sector reforms provide the basis for a progressive transfer of ownership rights from the public sector to private actors. While the government has in certain cases attempted to claim ownership over water, it is generally agreed that it cannot claim rights over water; rather, it can at most harness water for the benefit of the public, as formalised under the notion of public trust2. In other words, existing water sector reforms cannot be seen as simply operating a transfer of rights from one holder to another. At least in some cases, reforms introduce a basically new category of private water rights.

70Where it is established that some form of property rights over water must be introduced to promote its more sustainable utilisation, this should first of all be done in the context of existing institutions of local, state and national governance, keeping in mind constitutional policy. In particular, there is a need to further regulate the use of water by landowners and land occupiers to ensure that private use does not occur at the expense of the broader needs of society, notably, with regard to drinking water and water required for growing food crops.

71Further, it is necessary to progressively delink water use claims from land occupancy. This is a measure which has been advocated in recent years to support the progressive commercialisation of the water sector. Delinking of water access and use from land control is indeed necessary, but for different reasons. A direct consequence of land-related water control is that those who do not control land are put at a serious disadvantage as concerns access to and use of water. Until now, existing customary rules in various parts of the country have generally provided a framework within which all individuals have at least some access to existing sources of water for domestic use in a given community. Further, many individuals and communities currently manage to obtain access to sources of water found on village or common lands. The progressive strengthening of state control over water access and use, coupled with the drive towards commercialisation and privatisation of the water system, is threatening to make access for landless and poor people even more difficult. As a result, reforms are needed to ensure that water access and use is not determined by the actions of landowners and land occupiers, whose own use of water is unlikely to be determined by social and human rights considerations. In other words, delinking land and water should be done in such a way that it benefits the poorest as a priority, rather than those who have capital or access to productive assets.

72The issue of water-related property rights and entitlements raises other questions. First, there seems to be an assumption that the introduction of water-related entitlements will automatically solve all matters pertaining to access to water because these entitlements are granted to water users. The problem is that water users as identified in recent policy schemes are either only landowners/occupiers, in the case of irrigation water, or people who can afford the charges being levied, as in the case of the Swajaldhara guidelines. Since people who are identified as water users are in fact a small subset of all users of water, there is a need to ensure that the entitlements they receive do not trump the rights of other users, in particular their fundamental right to domestic water.

Towards Effective Decentralisation and Participation

73Decentralisation and participation have been two key notions underlying water sector reforms. To a large extent, they provide the rationale for making reforms palatable to most people. As noted above, the kind of participation envisaged in the constitution of WUAs is at best limited, because their memberships are usually restricted and because they exist alongside the PRI, rather than within the constitutionally-sanctioned system.

74At the same time, the kind of decentralisation envisaged is limited because the power given to local bodies tends to be restricted. Whether it is the possibility regulatory authorities have to make and break WUAs or the necessity for WUAs to be financially independent, decentralisation as envisaged in existing reforms is as much a burden as an advantage for those who are made responsible for water infrastructure and services.

75One of the most important reforms required is to ensure that people can hold the government or other service providers accountable. Decentralisation and participation are fundamental to enabling people to have an effective say in projects that affect or benefit them and ensuring that they can hold the entities undertaking the schemes accountable according to clearly defined principles. Participation is not simply a process whereby people are consulted as to the acceptance or rejection of a pre-defined scheme, and it is not about imposing duties and obligations on people. In the sense of participatory or direct democracy, participation involves much more than thrusting decentralisation on people. It involves a process whereby people can have a measure of control over all aspects of the proposed changes, from the definition of a scheme to its eventual adoption or rejection.

76Another related issue concerns the scope of decentralisation. Existing water sector reforms are sometimes premised on the fact that involving water users is by definition better than the governance that can be provided by the executive. First, this dichotomy is only relevant as long as local bodies set up to govern access to and use of water are part of the democratic structure of governance instituted under the Constitution. Second, statements concerning the need for the local governance of water conceal the fact that reforms in the water sector do not actually envisage full control at the local level. At the same time as responsibility for certain aspects of access to and use of water is devolved at the local level, existing water sector reforms also promote the development of large infrastructures and inter-basin transfers, as is clearly seen in the project to interlink rivers. In other words, while a limited number of functions are decentralised, the control over surface water supply is mainly dependent on decisions taken at higher levels because WUAs or drinking water committees are given little control in the matter. This brings up another related point. While decentralisation is absolutely necessary, it is not possible to conceive of water governance exclusively at the local or at the national level. Given the multiple linkages between local, state, national and international water availability, water needs to be jointly and concurrently regulated at all levels.

Concluding Remarks

77Water sector reforms are significant and one of their current aims is the introduction of new water policies and laws that are different from, and sometimes opposed to, existing regimes. It is imperative that all water users, in other words everyone, should be aware of the scope of ongoing and proposed reforms. At present, despite the numerous consultations that have taken place in policy-making circles on water reforms, there is little awareness of the unfolding changes at the level of individual rural and urban citizens, individual farmers or the panchayati raj institutions most likely to be affected by these changes. A comprehensive participatory process that would provide opportunities to unravel the implications of the proposed interventions is therefore necessary before further reforms are implemented. The lack of effective participation and of democratic decision-making has become increasingly contentious, as exemplified by the controversy over the adoption in Delhi and Bangalore of water sector reforms instigated by the World Bank.

78Reforms in the water sector are required to take into account the social and hydrological challenges that have surfaced over time. The law and policy framework needs significant revision because it is neither adapted to existing challenges nor does it provide a comprehensive framework incorporating all dimensions of water. In particular, existing water laws essentially fail to operationalise the human right to water and do not effectively address social challenges in the water sector. Proposed water sector reforms spearheaded by the international community, the World Bank and central and state governments also fail to approach these challenges adequately. In fact, they are likely to contribute to growing inequalities in access to and control over water. A comprehensive rethinking of the proposed reforms is therefore necessary to ensure that further reforms in the water sector effectively benefit the poor, focus on drinking water and prevent the total commercialisation of a sector directly concerned with the fulfilment of human rights.

Bibliographie

Bibliography

ANDHRA PRADESH, 1997, An Act to Create the Andhra Pradesh Water Resources Development Corporation for Promotion and Operation of Irrigation Projects, Command Area Development and Schemes for Drinking Water and Industrial Water Supply to Harness the Water of Rivers of the State of Andhra Pradesh and for Matters Connected Therewith or Incidental Thereto Including Flood Control, available at http://www.ielrc.org/content/e9702.pdf.

ANDHRA PRADESH, 1997a, Farmers Management of Irrigation Systems Act, available at http://www.ielrc.org/content/e9701.doc.

ASIAN DEVELOPMENT BANK, 2003, Water for All-The Water Policy of the Asian Development Bank.

BARLOW M. & T. Clarke, 2004, Blue Gold, New Delhi, LeftWorld.

BRISCOE J. & R. P. S. MALIK, 2006, India’s Water Economy: Bracing for a Turbulent Future, New Delhi, The World Bank and Oxford University Press.

COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, 2002, General Comment 15: The Right to Water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C. 12/2002/11.

GULATI A., R. MEINZEN-DICK & K. V. RAJU, 2005, Institutional Reforms in Indian Irrigation 202, New Delhi, Sage.

HILDERING A., 2004, International Law, Sustainable Development and Water Management, Delft, Eburon.

HODGSON S., 2003, Legislation on Water Users, Organizations-A Comparative Analysis, Rome, FAO.

HOWARD G. & J. BARTRAM, 2003, Domestic Water Quantity, Service Level and Health (WHO Doc. WHO/SDE/WSH/03.02).

IYER R. R., 2004, “Towards a Re-ordering of Water Law in India”, 1 Indian Juridical Rev. 18.

MADHYA PRADESH, 1931, Irrigation Act.

MADHYA PRADESH, 1949, Regulation of Waters Act.

MADHYA PRADESH, 1999, Sinchai Prabandhan Me Krishakon Ki Bhagidari Adhiniyam, available at http://www.ielrc.org/content/e9902.pdf.

DUBLIN STATEMENT, 1992, on Water and Sustainable Development, International Conference on Water and the Environment.

FINGER M. and ALLOUCHE J., 2002, Water Privatization-Trans-National Corporations and the Re-Regulation of the Water Industry, London, Spon Press.

GUIDELINES ON SWAJALDHARA, 2003, Ministry of Rural Development, available at http://www.ielrc.org/content/e0212.pdf.

KARNATAKA, 2002, State Water Policy, available at http://www.ielrc.org/content/e0205.pdf.

MAHARASHTRA, 2005, Water Resources Regulatory Authority Act, available at http://www.lead-journal.org/content/05080.pdf.

MAHARASHTRA, 2003, State Water Policy, available at http://www. ielrc.org/content/e0306.pdf.

MODEL BILL, 2005, to Regulate and Control the Development and Management of Ground Water, available at http://www.ielrc.org/content/e0506.pdf.

NATIONAL WATER POLICY, 2002, Government of India, available at http://www.ielrc.org/content/e0210.pdf.

ORISSA, 2002, Pani Panchayat Act, available at http://www. ielrc.org/content/e0211.pdf.

PLANNING COMMISSION, 1992, Report of the Committee on Pricing of Irrigation Water.

RAJASTHAN, 1999, State Water Policy, available at http://www. ielrc.org/content/e9903.pdf.

RAJASTHAN, 2000, Farmers’ Participation in Management of Irrigation Systems Act, available at http://www.ielrc.org/content/e0004.pdf.

SHIVA V., 2002, Water Wars-Privatization, Pollution and Profits, London, Pluto Press

SINGH C., 1991, Water Rights and Principles of Water Resources Management (Bombay: Tripathi).

UNITED NATIONS, 2003, World Water Development Report-Water for People, Water for Life.

URUGUAY, 2004, Constitución política de la República Oriental del Uruguay de 1967 (actualizada hasta la reforma del 31 de Octubre de 2004).

UTTAR PRADESH, 1999, Water Policy, available at http://www.ielrc.org/content/e9904.pdf.

WORLD BANK, 1998, India-Water Resources Management Sector Review-Report on the Irrigation Sector (Report No. 18416 IN, 1998)

WORLD BANK, 2000, OP 4.07 Water Resources Management.

WORLD BANK, 2003, Implementation Completion Report (CPL-40560; SCL-4056a) on a Loan to the States of Uttar Pradesh and Uttaranchal for Uttar Pradesh and Uttaranchal Rural Water Supply and Environmental Sanitation (Swajal) Project (Report No. 27288).

WORLD BANK, 2004, Project Appraisal Document on a Proposed Loan for the Madhya Pradesh Water Sector Restructuring Project (Report No. 28560-IN).

WORLD BANK, 2005, Project Appraisal Document on a Proposed Loan to the Republic of India for the Maharashtra Water Sector Improvement Project (Report No. 3 1997-IN).

Notes

1 F. K. Hussain v. Union of India, AIR 1990 Ker 321.

2 M. C. Mehta v Kamal Nath, 1997 1 SCC 388.

© Institut Français de Pondichéry, 2008

Conditions d’utilisation : http://www.openedition.org/6540

Cette publication numérique est issue d’un traitement automatique par reconnaissance optique de caractères.

Acheter

Rechercher dans OpenEdition Search

Vous allez être redirigé vers OpenEdition Search