Académique Documents
Professionnel Documents
Culture Documents
Sustainable
Management of
Water Resources in
India
Water and Natural Resources Law
Surabhi Chaturvedi
2011 BA LLB 98
1
Contents
INTRODUCTION...............................................................................................................4
2
Government Initiatives for Sustainable Water Management.............................................40
Public Private Partnerships (PPP) in Water: PSP Options and Regulatory Issues.........42
Local Self Governance Institutions and Recent Initiatives in Water Supply and
Watershed Development................................................................................................44
Conclusion.........................................................................................................................45
Bibliography......................................................................................................................47
3
INTRODUCTION
together; that concerns on access to water and quality of water are simultaneously met;
that a harmony between inter-se uses of water - Drinking Water, Irrigation water and
Water for industry - is achieved; that both latent and manifest water conflicts are
recognized and addressed; and Institutional Sustainability Issues, Issues relating to rights
and participation and finally at a federal level issues between Centre and States and
The above statement shows that the question of conservation and sustainable use of water
has many dimensions that cover prevention of pollution but also go well beyond it. Thus
the concerns of water polices and laws include determination of priorities of allocation of
water, ensuring safe drinking water, optimizing availability of water for other purposes
like irrigation and Industry, ensuring management of drought and floods, ensuring
individuals, between States and also between the Centre and States in a federal country
like India. In this light a Working Group on environmental aspects of the Union Ministry
of Water Resources also suggested that water resources management must be developed
(a) human health (half of the world population suffering from waterborne diseases
The points made above should also suggest that the problems of water management are
multidimensional and thus the approach to deal with it also needs to be multi -pronged
and multi -faceted. The problem of water pollution, of depletion of water sources, of
access to drinking water and for the need of better water management and regulation are
all interconnected and a few words on their inter-connections are in order here.
Water pollution takes place from two type of pollution sources Point Pollution Sources
and Non Point Pollution Sources. The legal mechanism for prevention of pollution from
point sources exists under the Pollution Control Act and primarily to the Water Act 1974.
useful for control of non point pollution sources unsustainable agricultural practices like
massive use of chemical fertilizers, insecticides and pesticides. The control of such
sources of pollution by administrative measures alone may not be feasible and this
campaign for education of the people in this regard may all be needed.
1 Report of the Working Group under National Commission for Integrated Water Resources
Development Plan; Government of India. 1999.
5
A larger more comprehensive approach may also be needed because sustainability of
water resources has both ecological and social dimensions in India, as in any other
country. If water pollution is one aspect of the problem then its depletion and access to
drinking water itself reflect the other side of the same coin. Vast regions of the country
suffer severe drought and drought like conditions. There has been a range of suggestions
for resolution of the problem of access to fresh water including introduction of a rational
encouraging widespread rain-harvesting, amongst others. Together they also suggest that
more than the shortage of rainfall, the wanton overuse of scarce water resources and the
the pollution and access issues in water are inevitably tied up with water management
issues. There have been suggestions here too. There is a clear need to strengthen the
also an ever increasing buzz on the need to replace Government oriented centralized
supply driven rural water programs with People Oriented, decentralized and demand
6
Integrated Water Resource Management
One of the approaches in water management that has been steadily gaining ground in
recent years especially in developing countries and which essentially applies the
sustainable development prism and mandate to the water sector is Integrated Water
many low-income Asian and African countries IWRM has been aggressively promoted
by international agencies in recent years and that the IWRM package has basically
2) A water law and regulatory framework for coordinated action for sustainable
3) Recognition of the river basin as the unit of water and land resources planning and
territorial/functional departments;
especially outside lifeline uses, to reflect its scarcity value so that it is efficiently
7
5) Creation of water rights, preferably tradable, by instituting a system of water
withdrawal permits;
subsequent sections throw light on each of the ingredients of the IWRM package in the
Indian context and with special reference the water law and regulatory framework in the
Country.
8
Water Regulation in India
Under the Constitution of India water is a state subject. The State legislatures are
competent to legislate on Water, that is to say, water supplies, irrigation, and canals,
drainage and embankments, water storage and water power. 3 This is however subject to
the power of the Union Parliament to regulate on inter State rivers and river valleys. This
is clear from the entry in the Union list under the seventh schedule of the Constitution of
India that reads thus: Regulation and development of inter-state rivers and river valleys
to the extent to which such regulation and development under the control of the Union is
262 of the Constitution provides for adjudication of disputes relating to waters of inter
state rivers or river valleys. It further says that Parliament may by law provide that
neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of
In addition to the above the 73rd Amendment of the Constitution had cast a Constitutional
imperative on all the State Governments to come up with appropriate Panchayat Raj Act
Specifically, it empowers States to endow Panchayats with such powers and authority to
9
Management, Minor Irrigation and Watershed Development as subjects under the
jurisdiction of Panchayats.
It may also be noted here while discussing water under the Indian Constitution that the
Right to pollution free water and the right of access to water has also been read as part of
Right to Life under Article 21 of the Constitution of India. This has been possible by a
liberal and activist interpretation of the Fundamental Right to life both the by the
Supreme Court and the High Court of the Country in a series of case before them. These
Notably the National Commission that reviewed the Constitution recently also
recommended that a new Article in the Constitution be inserted thus: Every person shall
have the right- (a) to safe drinking water That recommendation of the National
Commission reiterates what the Higher Courts has been holding in similar words in the
last few years. In that sense one may argue that the National Commission is merely
Based Instruments
The Water (Prevention and Control of Pollution) Act, 1974 lays down a regulatory frame
work under which the authorities created lay down specific water standards and ensure
10
1) The establishment of Pollution Control Boards
This approach results in licensing type controls whereby permission is required before a
potentially polluting activity may be carried on. Additionally, any on-going activity is
also required to comply with the terms of the permission granted by a Pollution Control
Board.2 The act achieves this objective by authorizing the Board to issue consent orders
upon conditions deemed necessary for the abatement of the pollution. Non compliance
Despite the existence this apparently well defined - and established - strategy, the past
experience has shown that the implementation of the Act has been slow. The Central
Pollution Control Board has complained in the past that its lacks the requisite staff
strength. Inspectors of the Board cover from 500 to 20,000 factories. This is compounded
by the fact that there not enough experts. The problems however go beyond those of the
watchdog agencies. It has been suggested that the mechanisms under the Act
predominantly used the command and control approach which have resulted in high cost
and this will increase the administrative expenditure on environmental regulation. The
burden of expenses on the agencies would be high as the onus of proof in pollution
2 This mechanism can be seen as creating two types of controls i.e. Anticipatory Controls
and Operational Controls. For an elaboration of these forms of controls for preventing
pollution see Ball S and Bell S; 1994; Environmental Law; Blackstone Press Limited.
11
matters is also on the regulatory agency.
pollution by policing behavior. Almost fifteen years back the British government stated in
instruments and its grounding in law has been experimented in the western countries
during the last decade. In the Indian context however, the effective use of market based
instruments and especially its grounding in law is yet to take effect. However, there is
Under the present Indian Legal System ground water is considered and easement
connected to the land. Thus traditionally the owner of land had an unrestricted right to
use the groundwater beneath it. However that position has changed substantially in
recent years. In fact the Andhra High Court has made clear in 200 that Deep
Underground Water is the property of the State under the doctrine of Public Trust. 4 The
holder of land has only a user right towards the drawing of water in tube wells. Thus
neither his action nor his activity can in any way harm his neighbours and any such act
3 See This Common Inheritance The Second Year Report (1992) as quoted in Ball S
and Bell S; 1994; Environmental Law; 2nd Ed.; Blackstone Press limited
that prima facie (Article 253 in) the Constitution and provision of the Environment
Protection Act, 1986 (EPA) empowers the centre to regulate ground water exploitation.
whereby the Court also directed the Union Ministry of Environment and Forests to
constitute the Central Ground Water Board as an authority Under Section 3 (3) of the
EPA.5
In pursuance of the above order of the Supreme Court the Ministry of Environment and
Forest constituted the Central Ground Water Authority (CGWA) as an authority under the
EPA to regulate over exploitation of under ground water in the country. Specifically,
and to issue necessary regulatory directions in this regard. 6 The authority functions under
the administrative control of the Union Ministry of Water Resources and has jurisdiction
over the whole of India. The CGWA since drafted Environment Protection Rules for
Development and Protection of Ground Water which was also circulated to all states for
Besides the above, with a view to regulate ground water resources the government of
5 See M.C. Mehta vs. Union of India 1997 (11) SCC 312
6 The authority exercises his power of issuing directions under Section 5 read with Section 3(2) of the
EPA. Besides it can also resort to the penal provisions contained in sections 15 to 21 of the said Act.
7 The authority exercises his power of issuing directions under Section 5 read with Section 3(2) of the
EPA. Besides it can also resort to the penal provisions contained in sections 15 to 21 of the said Act.
13
India had formulated a draft model bill in the year 1970 for regulation of ground water
which was revised thrice in 1992, 1996 and in 2005. However the proposed ground water
bill has not become law for various reasons. A Working Group on Legal, Institutional and
Financing Aspects constituted by the Union Ministry of Water Resources had pointed out
that the states have not shown inclination to adopt the draft modal bill and the draft rules.
It has suggested that the best option is to introduce participatory processes in the Ground
Water Management in which the role of the State could be that of a facilitator and the role
Ground Water sources provide for more than half of the total water supply for the
purposes of irrigation in India. In fact the run-offs from unsustainable agricultural and
irrigation practices is one of the major contributor to ground water pollution. In this light
regulation of irrigation procedures is also vital for improving efficiency of water use and
While some of the State have more than one legislation on irrigation others (e.g. North-
East States and Sikkim) have no legislation for irrigation. In the early seventies, the then
Ministry of Irrigation had prepared a draft model legislation for irrigation management
and circulated the same to the States for their consideration. The said Model Irrigation
Bill 1976 was a response to the felt need for an uniform Act due to the multiplicity of Act
and contradictory provisions largely due to re-organization of States. The objective was
8As per the National Commission For Integration Water Resources Development Plan; Government of
India 1999.
14
to being uniformity in the orderly water management and simplify administrative
machinery with primary responsibility fixed for the administration of the Act on the
Recent trends however, point out the need for Participatory Irrigation Management with a
shift of powers away from the officers of the irrigation department. Most states follow
canal Rules adopted under the colonial era while in some States there are no canal Rules.
Under existing rules the timing and allocation of irrigation water are under the control of
amounts of water, farmers tend to flood their fields, leading to inefficient water use. This
particularly true is areas outside the northwestern region (Punjab, Haryana and U.P.)
In this background it has been suggested that with the introduction of participatory
enacted by various State Governments. Several states in the recent past have come up
with major policy and legal initiatives that have transferred some responsibilities of
(WUAs). The formation of these associations is now generally seen as the most effective
agriculture. While some of these WUAs have been founded under government
resolutions, most states today have done so through enabling laws. States like A.P,
Rajasthan, Madhya Pradesh, Tamilnadu and Chattisgarh the law enabling farmers
9 As pointed out by the Report of the Working Group on Water Management under the National
commission for Integrated Water Resources Development Plan.
15
participation in Irrigation management comes by the enactment of the Farmers
3) to regulate the use of water among the various outlets under its area of operation
The Constitution of India empowers the Central Government to regulate and develop
inter State rivers under the Constitution of India. 10 Under Article 262 of the Constitution
the parliament enacted the Inter-State Water Disputes Act 1956. Under the Act the Central
2. The Central Government is of the opinion that the matter cannot be settled by
negotiations.
Till date five Inter-States Water Disputes Tribunals have been setup. These tribunals have
adjudicated disputes arising out of sharing of the waters of the Krishna, Godavari,
vested in the Central Government under the Entry 56 of the Union List the Parliament
enacted the River Boards Act in 1956. Under the Act River Boards were to be appointed
by the Central Government in consultation with the States Government. Such River
waters of Inter-State rivers and river valleys. The Act has fallen into disuse as since its
There are other central legislations enacted for better regulation and management of
specific Inter -State rivers. Thus the Brahamaputra Board Act, 1980 established the
Brahmaputra (River) Board for the planning and integrated implementation of measures
for the control of floods and bank erosion in the Brahmaputra valley. The Damodar
Valley Corporation Act, 1948 provided for the establishment of a Corporation for the
development of Damodar (a River) Valley in the States of Bihar and West Bengal.
Similarly for the Rajghat Dam Project on the Betwa river, a tributary of River Yamuna is
an interstate Project of the States of Madhya Pradesh and Uttar Pradesh, Betwa River
Board was created under the Betwa River Board Act , 1976 on an inter-state agreement
between the two States for the Project. These legislations have had a limited impact. For
example, the Brahmaputra Board has mostly carried out the planning part so far, it has
The limited impact of River Valley legislations and the fact that a Central legislation like
the River Boards Act,1956 is lying dysfunctional assumes greater importance when it is
17
realized that the various river action plans for cleaning the rivers the GANGA Action
Plan, The Yamuna Action Plan and the National River Conservation Plan require
different approach to preventing river pollution than the typical end-of-pipe controls or
permit system for effluent treatment pants under the Water Act 1974.
18
RIGHT TO WATER AND WATER RIGHTS REGIME
IN INDIA
Traditionally water has been a resource with free access and the notion of the property
rights over it was not well developed. However, riparian owners have had a natural right,
arising out of the ownership of the land abutting upon the stream. A riparian owner has a
right to use the water of the stream which flows past his land equally with other riparian
owners, and to have the water come to him undiminished in flow, quantity or quality and
to go beyond his land without obstruction. The natural riparian right also found a
statutory footing under the Indian Easements Act 1882. Some of the important decisions
of the court in the colonial era crystallizing the Riparian Rights regime are briefly
Neelamance
the State
With increasing population and consequent scarcity of water the need for regulatory
framework for the management of this resource was felt.One of the early legislations in
the area of water resource management was the North India Canal and Drainage Act
1873. The preamble to the Act says that the Provincial Government is entitled to use
and control for public purposes the water of all rivers and streams flowing in natural
channels, and of all lakes and other natural collections of still water. Likewise, the
Bombay Irrigation Act,1879 laid down that whenever it appears expedient to the State
Government that the water of any river or stream flowing in a natural channel, or any
lake or any other natural collection of still water, should be applied or used by the state
government .the State Government may, by notification declare that the said water will
Although the Easement Act 1882 legitimized customary rights of the people these were
subject to the overriding provision of any right of the Government to regulate the
collection, retention and distribution of the water of rivers and streams flowing in natural
channels, and of natural lakes and ponds, or of the water flowing, collected retained or
distributed in or by any channel. One of the first case that examined these provisions
was Fischer Vs. Secretary of State, which discussed the rights of the Government over
natural sources of waters against those of the riparian owners. The court ruled that the
20
Government had the power to regulate, in public interest, the collection, retention and
constructed works, provided that they do not thereby inflict injury on any other riparian
owners and diminish the supply that they have traditionally utilised.
Even in colonial times it was clear that that the Government had the power to regulate, in
public interest, the collection, retention and distribution of water of rivers and streams
flowing in natural channels or in manually constructed works, provided that they do not
thereby inflict injury on any other riparian owners and diminish the supply that they have
traditionally utilized. Arguably, this obligation of the state has since acquired the shape of
a categorical fundamental right of every person. This has been made possible by a very
activist interpretation of the Constitution of India by the Supreme Court and the High
Today
The Supreme Court of India and the High Courts from across the country have together
given greater content and meaning to right to water especially over he last two decades.
The right pollution free water has been interpreted as part of right to clean environment
under Article 21 of the Constitution of India. The Supreme Court laid the foundation for
this right which has been developed explicitly by the High Courts. Besides, the higher
21
courts after applying right to water largely for pollution prevention and a part of the right
to clean environment, have lately felt the urge to take it further. Thus the need for access
It may be noted here that the Commission that reviewed the Constitution recently also
recommended that a new Article in the Constitution be inserted thus: Every person shall
Management
The understanding of the legal bases for water rights is relevant in the context of acute
shortage of adequate drinking water facilities. The demand for fresh water is also
continuing rising as with increasing population the need for water for domestic uses and
for industrial and agricutural needs is also rising . Competing claims over the scarce
water resources is inevitable. In the face of increasing competition for access to water the
development of Water Rights regime has become important. Water Rights are
system (head and tail reach) or between irrigation system (same basin in different states),
It is also clear that the evolving water rights regime in the country needs to mature more.
13 See Sivanappan R. K.; Water sharing : Problems and conflicts; The Hindu; July 25th 2000.
22
First, the fundamental right of access to clear water should lead to necessary changes in
various legislation on canals, irrigation supplies, and water management so that they
reflect the letter and spirit of the fundamental right. Besides, a comprehensive
documentation of all the gamut of water rights, beyond the constitutional right, needs to
be carried out at the local level. Further it is notable that what has been recognised by the
higher courts, as a fundamental right is a right to each individual and not to a group. In
the context of the fact that the recent initiative of the government have sought to vest
powers to formal and informal village groups and associations, this becomes an important
point. The water rights regime needs to evolve conditions under a group entity can
become a right holder so that an entity like a legally constituted water users association
can exercise such a rights to its advantage as we shall see later rights have begin to be
developing an understanding on the external water rights of the group, which it can use to
its advantage against every one outside the group, there is a need for better appreciation
for internal water rights laying down the right of the group members viz.a.viz each. A
more mature regime on group rights in the water management sector is critical to
resolving of existing and potential conflicts surrounding the access and control of water
resources.
23
Right to Water: Role of the Indian Judiciary
Both the Supreme Court and the High Courts have profoundly contributed to the shaping
of water laws and jurisprudence in India. Initial Court verdicts on water pollution under
the Water Act led the judiciary to also carve out a fundamental right to pollution free
water under Article 21 of the Constitution. Following this lead by the Supreme Court, the
High Courts from across the country after applying right to water largely for pollution
prevention in an urban context, defined the right further - and with far reaching
implications. The High Courts have also now repeatedly emphasized that access to clean
drinking water is also a fundamental right of every person. While shaping their judgments
environmental law as well as the landmark jural doctrine of public trust. The wide range
of judgments from pollution prevention to access to water for all itself suggests that the
Courts have been conscious of the suitable development paradigm while shaping judicial
responses in specific contexts. A brief review of some significant cases can establish the
A water pollution case where the Court adopted the Principle of Sustainable Development
is a useful starting point for the present paper. In a public interest petition directed against
pollution being caused by enormous discharge of untreated effluent by the tanneries and
other industries in Tamilnadu the Supreme Court issued directions for setting up an
authority under the Environment Protection Act, 1986 to deal with polluting industries in
24
State. 14 The Court added:
The traditional concept that development and ecology are opposed to each other, is no
concept to eradicated poverty and improve the quality of human life while living within
defined by the Brundtland Report means Development that meets the needs of the
present without compromising the ability of the future generations to meet their own
concept between ecology and development has been accepted as a part of the Customary
International Law through its salient features have yet to be finalized by the International
Law Jurists The precautionary Principle and The Polluter Pays principle are
The constitutional and statutory provisions protect a persons right to fresh air,
clean water and pollution free environment, but the source of the right is the
been founded on the British common law, the right of a person to pollution free
In another cas15e, the Supreme Court took notice of an article in a leading daily alleging
ecological damage in Kullu Valley due to illegal construction of a motel. It held that the
spill of the river and thus directed cancellation of lease deed in favour of the motel. 16Most
significantly in this case the Apex Court held the doctrine trust of public trust to be a part
The Public Trust Doctrine primarily rests on the principle that certain resources
like air, sea, water and the forest have such a great importance to people as a
whole that it would be wholly unjust to make them a subject of private ownership.
The doctrine enjoins upon the Government to protect the resources for the
enjoyment of the general public rather than to permit their use for private
the pubic trust; first, the property subject to the trust must not only be used for a
public purpose, but it must be held available for use by the general public;
second, the property may not be sold, even for a fair cash equivalent; and third
Thus the Court concluded by saying that [our legal system] includes the public trust
doctrine as part of its jurisprudence. The state is the trustee of all natural resources which
16The motel was also asked to pay compensation by way of restitution of the environment and ecology
of the area. See M.C. Mehta Vs. Kamal Nath, 1997 (1) AD SC I
26
The biggest factor in activating the executive to take seriously the rampant pollution of
rivers has been judicial activism in this area and their has been a series of cases for saving
rivers from various parts of the Country. In a case filed by lawyer M.C. Mehta relating to
the pollution of river Ganges17, the Court passed comprehensive directions to the central
government, the UP Pollution Control Boards, District Administration and even the
for violation of fundamental rights) despite remedial mechanism available under Water
Act. Noting the utter disregard of the tanneries discharging trade effluents into the rivers,
the Court directed these tanneries to set up Primary Treatment Plants. In another case by
the same lawyer M.C. Mehta the Supreme Court gave directions to the Kanpur
Municipality in State of Uttar Pradesh to ensure that pollution of the river Ganges doesnt
happen in the jurisdiction of the Municipality. Even though the Court in these cases did
not explicitly lay down any right to pollution free water or of clean environment, the
As against this early approach of the Supreme Court the High Courts came up with
explicit enunciation of the fundamental right to environment and the right to pollution
free water as part of it. One of the first cases where this approach was taken was a case in
theKerala HighCourtwhere the Court dealt with the problem of excessive ground water
27
extraction.18In a scheme for pumping up groundwater for supplying potable water to
Lakshwadeep Islands was challenged on the ground that that this would dry up the
resource and lead to intrusion of salt water into the aquifers. While holding that the
make inroads into the fundamental right under Article 21The right to sweet water (and
the right to free air), are attributes of the right to life, for, these are the basic elements
On similar facts in a village in Rajasthan the Supreme Court also found that authorities
have not taken the action required of them by law and that their inaction is jeopardizing
In similar line of cases the Andhra Pradesh High Court has also recently held that Deep
Underground Water is the property of the States under the doctrine of Public Trust. 21 The
18 1990 KLT 580. Also see Hamid Khan v. State AIR 1997 mp 191
28
holder of land has only a user right towards the drawing of water in tube wells. Thus
neither his action nor his activity can in any way harm his neigbours and any such act
Courts
The higher courts after applying right to water largely for pollution prevention and a part
of the right to clean environment, have lately felt the urge to take it further. Thus the need
for access to clean drinking water is being increasingly seen as a fundamental right,
especially by the High Courts. Thus in addition to the fact that many PILs have raised the
issue of water pollution there is now a body of cases on the more fundamental concerns
of access to drinking water and on the right to safe drinking water as a fundamental
right.22 In two petitions filed in Public Interest relating to the scarcity and impurity of
potable water it was contended that the corporation is responsible to supply sufficient
drinking water23. The municipal corporation in its counter affidavit said that while it is
well aware about its duties with regard to supply of drinking water to the citizen, due to
22 include Wasim Ahmed Khan v. Govt. of AP, 202 (5) ALT 526 (D.B.); Mukesh Sharma v.
Allahabad Nagar Nigam & Ors., 2000 ALL. L.J. 3077; Diwan Singh and another, v. The S.D.M. and
other 2000 ALL. L.J. 273; S.K. Garg v. State of U.P. 1999 ALL. L.J. 332; Gautam Uzir & Anr. V.
Gauhati Municipal Corpn. 1999 (3) GLT 110
23 Gautam Uzir & Anr. V. Gauhati Municipal Corp. 1999 (3) GLT 110
29
its financial constraints it could not augment its existing plant 24. The court made clear25
that Water, and clean water, is so essential for life. Needless to observe that it attracts the
In a Petition filed by an advocate for suitable directions to ensure regular supply of water
to the citizen of Allahabad the High Court reiterated the fundamental right to drinking
water26. The court cited with approval the Supreme Courts decision 27 holding that the
need for a decent and civilized life includes the right to food, water and a decent
environment28. In another case the Supreme Court had observed, Drinking of the most
beneficial use of water and this need is so paramount that it can not be made subservient
to any other use of water, like irrigation. So that right to use of water for domestic
purpose would prevail over other needs 29. In view of these decisions the Allahabad High
Court directed that a high powered committee be setup to look into the problem of access
24 Para 6 of the affidavit in opposition filed by Gauhati Municipal Corporation and quoted in
1999 (3) GLT 110
28 Id.
29 Delhi Water Supply and Sewage Disposal Undertaking v. State of Haryana, (1996) 2 SCC 572: AIR
1996 SC 2992.
30
to water and decided on the ways and means to solve it on a war footing 30. The Andhra
Pradesh High court reiterated this position saying that right to safe drinking water is a
fundamental right and can not be denied to citizens even on the ground of paucity of
funds.31
In this line of cases in 2006 a public interest litigation was decided by the Kerela High
Court ventilating the grievances of the people of West Kochi who have been clamouring
for supply of potable drinking water to them, for the last more than three decades. Noting
that the petioners have approached this Court as a last resort the Court felt that the
genuine and eminently deserving appropriate orders from this Court. The Court further
said that since April, 2000 the government authorities have been submitting before this
Court that steps are being taken to complete projects for the supply of water to people of
West Kochi, but nothing concrete in the form of actual supply of water has emerged so
far. Even the latest statement made under the Courts directions also does not give any
concrete proposal as to when exactly the people of West Kochi would actually get regular
should be on the top of the list. However, for the past more than three decades,
successive Governments who have ruled this State have given scant attention to
the need for potable drinking water of the residents of West Kochi. This is indeed
30 Id.
deprecated in very strong terms. We have no hesitation to hold that failure of the
State to provide safe drinking water to the citizens in adequate quantities would
Government, which has its priorities right, should give foremost importance to
providing safe drinking water even at the cost of other development programmes.
Nothing shall stand in its way whether it is lack of funds or other infrastructure.
Ways and means have to be found out at all costs with utmost expediency instead
In the above circumstances, the Court directed the state governments to take and
complete all steps necessary for supplying drinking water to the people of West Kochi
within six months from the judgment and added We categorically make it clear that on
completion of six months from today, the people of West Kochi should be getting potable
water in sufficient quantities through an efficient water supply system without fail.
The case fits well into a pattern where the higher courts after applying right to water
largely for pollution prevention for a long time, have indeed taken it further. If one sees
closely the categorical and specific pronouncement of the Kerala High Court above has
the capacity to let the cat loose amongst the pigeons. Most critically however the court
saw through the standard plea of unavailability of resources while making clear that
32
Nothing shall stand in its way whether it is lack of funds or other infrastructure. The
33
Transboundary Water Management Issues
The Supreme Court of India more than a decade ago held that it had no hesitation in holding
that Sustainable Development as a balancing concept between ecology and development has
been accepted as a part of the Customary International Law through its salient features have
yet to be finalized by the International Law Jurists. There are very good reasons for why the
Apex Court in India saw Sustainable Development as a part of the Customary International
Law. It is worth noting that all major environmental and water instruments in international law
explicitly impose on the concerned states, the obligation to carry their activities in the
direction of sustainable development. It is also thus argued that the concept of sustainable
general rule of law. The principle of sustainable development has also become the basis of
decisions of the International Court of Justice in specific cases. Finally, Institutions like the
World Bank, ADB and other MDBs have also sought to integrate considerations for
sustainable development into their lending polices and this assumes importance as they are
34
International Watercourses and pollution: Surface
Waters
The understanding of the term International Watercourse can range from simply that portion
which crosses or defines a boundary; to the entire watershed or river basin, with its associated
lakes, tributaries, groundwater systems, and connection watersways wherever they are located.
Modern bilateral and regional treaties have adopted the latter interpretation of the term. This
Stockholm Conference on the Human Environment and the UN Water Conference held at Mar
International Watercourses defines the watercourse as a system of surface waters and ground
waters constituting by virtue of their physical relationship a unitary whole and normally
flowing into a common terminus. This is clear from the Article 2 of the Convention which
defines Watercourse as a system of surface waters and ground waters constituting by virtue
of their physical relationship a unitary whole and normally flowing into a common terminus.
Further it adds that International watercourse means a watercourse parts of which are
situated in different States.34 Having said this it may also be noted that the narrower
interpretation of International Water Course as water course that traverses the territory more
Particularly the States enjoying an upstream position has shown resistence to the to the basin
33 See Birnie and Boyle; International Law and the Environment ; Clarendon Press Oxford; 1992
35
approach for powllution control and utilisation of water. It has been argued that the difference
between the two approaches may not be very relevant for the purposes of pollution control.
This is because even where pollution obligations are placed only on a particular portion of an
international water course, such as the boundary waters, it will still be necessary for states to
control pollution of the wider drainage basin to the extent necessary to produce the desired
International law
The Convention on the Law of the Non-Navigational Uses of International Watercourses lays
down that Watercourse States shall in their respective territories utilize an international
watercourse in an equitable and reasonable manner. 36 This theory of equitable and reasonable
utilization of Internationally shared water resources has displaced the earlier notions under
international laws that states enjoy absolute sovereignty over waters within their territory. The
needs and interest of each state. Article 6 of the Convention points out all the relevant factors
and circumstances that needs to be taken into account for utilization an International
35 See Lammers, Pollution of Internaional Watercourses ( Hague 1984) as quoted here in Birine and Boyle
supra.
36
1) Geographic, hydrographic, hydrological , climatic, ecological and other factors of a
natural character;
4) The effects of the use or uses of the watercourses in one watercourse State on other
watercourse States;
6) Conservation, protection, development and economy of use of the water resources of the
The listing of factors however, still means that balancing of the various interests of the States
need to be done although parameters for this are laid down by the above mentioned relevant
factors. Significantly, as has been observed by various commentators, the listing of factors
says nothing about the priority or weight given to each one, or how conflicts are to be
reconciled leaving the principle of equitable utilization with uncertain legal implications. It
has also been critically argued that the Convention does not seem to differentiate between
needs of the watercourse states within the basin and those outside the basin. This assumes
significance when appreciated with the fact that it is difficult to imagine that basin nations of
an international river would concede any right on its water to non basin nations.37
Another important principle laid down by the Convention is that watercourse States shall, in
37
prevent the causing of significant harm to other watercourse States. 38 The obligation not to
cause harm to other State should be read with the principle of the equitable utilization of the
Besides there is also settled requirement under International Law generally including the law
on International Watercourses that States should cooperate, consult and negotiate in cases
where the proposed use of a shared resources may cause serious injury to their rights and
interests. Therefore, the Convention on the Law of the Non-Navigational Uses of International
Watercourses requires Watercourse States shall exchange information and consult each other
and, if necessary, negotiate on the possible effects of planned measures on the condition of an
international watercourse. Finally, the general principle that states must notify each other an
co-operate in cases of emergency to avert harm to other states applies also to international
watercourses. This aspect is elaborated in the later section under the review of the
Like surface water, groundwater knows no political boundaries. Many huge aquifers are
shared by several countries, sometimes in areas where water is a coveted resource. There is a
wide spread feeling in the international community that while intergovernmental organizations
have spared no effort in developing legal principles for surface water, the same cannot be said
where ground water is concerned. Almost all international treaties on water are limited to
39 Report of the Working Group on Interbasin Transfer of Water under National Commission For Integrated
Water Resources Development Plan; Government of India 1999.
38
surface water problems. They fail to encompass ground water, with the result that the legal
principles which are followed for surface water have not yet passed the tests presented by
groundwater problems.40
Protocols. For example the 1968 African Convention on the Conservation of Nature and
Natural Resources recognizes the importance of common ground water resources and says :
Where surface or under groundwater resources are shared by two or more of the Contracting
States, the latter shall act in consultation, and if the need arises, set up inter-State
Commissions to study and resolve problems arising from the joint use of these resources, and
for the joint development and conservation thereof.41 Besides, the 1992 ECE Helsinki
Convention on the Protection and Use of Transboundary Watercourses and International Lakes
defines transboundary waters to mean: any surface or ground waters which mark, cross or
are located on boundaries between two or more States;. Likewise ground water is
considered in the principles concerning Transfrontier Pollution adopted by the OECD in 1974.
The Helsinki rules developed by the International Law Association also provides the useful
basis for negotiations for the ground water resources shared by the countries.
It had been reasonably predicted that despite the relative inactivity in the field of international
groundwater law in the past, international relations concerning groundwater resources are
likely to develop further. In fact whatever principles of international surface water may exist,
they should be adaptable to ground water if the physical difference of ground water vis--vis
Management
Integrated Water Resource Management (IWRM) may be understood in three ways. Firstly, it
may imply systematic consideration of the various dimensions of water, i.e., surface and
ground waters in terms of quality and quantity. Secondly, it can mean addressing interactions
between water, land and the environment with recognition that changes in any one of the
resources may have consequences for the others. Finally, the broadest interpretation of the
concept would mean approaching water management with reference to the interrelationship
between water and land resources the social and economic development. 43 It is this third
approach which is most liberal and extensive and reconciles economic necessities with
ecological imperatives - that has to be kept in mind while addressing issues associated with
Bruce. (Ed.)
40
There is now a body of Policy documents and discourses in official reports speaking of the
need and significance of integrated resource management. It is now widely recognized that
management of water resource needs to be done in an integrated and holistic manner rather
than being managed in a compartmentalized approach. In fact the Union Ministry of Water
Management and a series of sub-groups constituted under the Commission and policies on all
aspects of water management before giving final recommendations in their report in 1999. 44
That Report has been followed by a series of other reports and vision documents emphasizing
While it is true that the government policies have recently emphasized integrated resource
management there has been little reflection of these pronouncements in the legal regime on
water. In realizing policy mandates for integrated approach legal regimes would need to go for
structural changes. For example it may be easy to say as a policy that Water resource
development and management shall be planned for a hydrological unit but it is an open
question as to how this approach can be implemented and taken to the ground when the
existing legal regime is based only on administrative boundaries and just doesnt recognize
44 The Report of the National Commission for Integrated Water Resources Development
45 Vision For Integrated Water Resources Development and Management, Ministry of Water
Resources, New Delhi, 2003. See`also Theme Paper on Integrated Water Resources
The UN Human Development Report 2006 points out that the balance of the private and
public sector involvement in water has been vigorously debated. Part of the problem lies in
not understanding the nature and scope of public-private partnerships in water management. In
this context the Human Development Report makes an insightful comment when it says that
the diversity of public-private partnerships cautions against lumping of all private sector
participation in water supply and sanitation projects. Both the Urban local bodies (ULBs)
and the Rural local Bodies (RLBs) are empowered through laws to enter into a contract
with any person (thus including any registered private entity) for a supply of water.
There has been suggestions that there needs to be State level Water Regulatory Authorities which
should maintain an arms length relationship with stakeholders including government as well as local
bodies, to regulate segments of water supply. Such a Regulatory Authority could facilitate private
sector participation and help develop appropriate water management policies that serve both the need
of the industry and the consumer. However, for such an Authority to take effect there may be a need to
enact a new legislation. As there are no precedents for such legislation creating Water Regulatory
Authority in any state in India enactment of such a law would need a decisive political will on the part
of the State governments. Besides, this would entail significant Amendments in a range of laws.
Whether and how the creation of such Water Regulatory Authority be compatible with the 74 th
Amendments to the Constitution of India seeking to empower urban local bodies would also be a moot
question. This is important because whatever form the private sector participation make take under
any water supply project - and the exact nature of responsibility of the private operator
notwithstanding - there is no escaping from the fact that legally the accountability for provision of
water supply and sanitation rests with the Municipal Corporation, the Municipal Councils and the
Panchayats. The institutional arrangements in exercise of any of the option of service contract,
Management Contract, Lease or any other form of the concession agreement shall have to recognize
In addition to the above under the existing state legal regimes certain PSP options may be
43
Management Contract may not have to contend with any major legal or a regulatory
barrier. However, any option that involves the sale or transfer of water and sanitation
assets to the private operator like Divesture may not be legally sustainable.
right could have direct implications in terms of cost recovery for operation and
maintenance of water utilities, in laying down norms and standards for water tariffs as
Development
It has been pointed above that the 73 rd Amendment of the Constitution had cast a
Constitutional imperative on all the State Governments to endow Panchayats with such
subjects under the jurisdiction of Panchayats.51 In pursuance of this mandate the Central
water management.
44
Conclusion
The urban water management situation in India is dire and there is a lot of scope and
opportunity for GWP and its local partners to carry out activities that can make a
significant difference. The good news is that there is strong political will in the country to
improve water management. Already the government has initiated a few programmes,
like 100 smart cities, the National Mission to Clean Ganga and the Total Sanitation
Programme.
Participation of key stakeholders coming from the public, private and social
water in urban areas. There can be many stakeholders involved but an agreement
needs to be reached with the representatives of local government who remain the
main convener.
resources and its waste in a new integrated way, with a focus on: considering the
whole urban water cycle as one system within the watershed; aiming for water
security through diversity and optimum use of all potential sources of water and
matching water quality with purpose of use; aiming for a better utilisation of
water, effluents and water demand and hygiene behavior; strengthening leakage
45
management and maintenance; strengthening resilience of urban water systems
Wastewater is a resource that can be used productively. Grey water can be reused
depending on the purpose of its use and its legislation; nutrients in wastewater
(grey and black) can be used for energy production and fertiliser production.
land, institutional set up and more; and this includes green infrastructure and low
cost and energy efficient options, natural systems and innovative technologies
46
Bibliography
2. John P. Cunha, DO, FACOEP. "Travelers' Diarrhea: Learn About Antibiotics and
Treatment". MedicineNet. Retrieved 29 July 2015.
3. http://www.fullstopindia.com/2010/01/10-ways-to-avoid-travelers-diarrhea-in-
india/
4. Survey by Dr Ashish Mittal, reported by Rupa Jha for the BBC on 7 February
2009 'My life cleaning Delhi's sewers'
7. Global Water Intelligence: Chennai to get more desal after Nemmeli award, 7
January 2010
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