This working paper published on the International Environmental Law Research Centre (IELRC) site maps out the relevant legal framework concerning water in India. The first section delineates water law as it evolved until recently. The second section then examines proposed and ongoing water law reforms that are in the process of completely redrawing India's water legal framework.
Drinking water is directly essential for human life. Water is also indirectly essential, for instance, as an indispensable input in agriculture. Yet, despite the central role that water has always played in sustaining life, human lives and human economies, the development of formal water law has been relatively slow and often patchy. At the domestic level, colonial legislation first focused on the regulation of water for economic reasons, for instance, through the development of legislation concerning irrigation and navigation.
Over the past few decades, increasing water pollution and decreasing per capita availability have led to the development of other measures such as water quality regulation and an emphasis on water delivery, particularly in cities, as well as environment-related measures. Yet, water law remains largely sectoral to-date. At the international level, water regulation first focused mostly on navigation in international watercourses. It has progressively evolved to encompass issues concerning the sharing of international waters. International water law has, however, not yet reached the stage where it provides an overall regime for the regulation of water uses.
In India, water law is made of different components. It includes international treaties, federal and state acts. It also includes a number of less formal arrangements, including water and water-related policies as well as customary rules and regulations. Existing water law is made up of a number of different instruments. This is the case at the international level where only certain aspects of water law have been developed and where no international water law treaty exists.
This is also the case within India where it remains difficult to identify a coherent body of comprehensive law concerning water. This is related to the fact that distinct concerns have been addressed in different enactments. This is also due to the division of powers between the centre and the states and the fact that water regulation is mostly in the hands of the states. While water law reforms are more than welcome given existing problems with water, it is unlikely that law reforms based on the principles put forward in the water sector reforms constitute an appropriate response.
The paper ends by arguing that the ongoing water law reforms may contribute to enhancing water management ,but they are conceptually incapable of addressing the human right, social, environmental and health aspects of water. This is regrettable because any water law, which is not based on the constitutional right to water and the principle of public trust, is bound to fail as a legal tool and in its implementation as far as the overwhelming majority of people is concerned.
However, while the adoption of a comprehensive federal water legislation is not a precondition to ensure that water law achieves its social, human rights and environmental goals, this would constitute an appropriate starting point to realise the right to water and the principle of public trust throughout the country.
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