Insights into Editorial
Issue of bringing water into concurrent list being discussed with States
The Union Ministry of Water Resources has for long been arguing for a shift of water to the Concurrent List without any serious expectation of its happening, but has now begun to pursue the idea more actively.
The general impression is that in India water is a State subject, but the position is not quite so simple.
- The primary entry in the Constitution relating to water is indeed Entry 17 in the State List, but it is explicitly made subject to the provisions of Entry 56 in the Union List which enables the Union to deal with inter-State rivers if Parliament legislates for the purpose.
- This means that if Parliament considers it “expedient in the public interest” that the “regulation and development” of an inter-State river, say the Ganga or Yamuna or Narmada, should be “under the control of the Union”, it can enact a law to that effect, and that law will give the Union legislative (and therefore executive) powers over that river. That enabling provision has not been used by Parliament. No law has been passed bringing any river under the control of the Union.
- Under Entry 56, Parliament did enact the River Boards Act 1956 providing for the establishment of River Boards for inter-State rivers, but no such board has been established under the Act. That Act is virtually a dead letter. The reasons are political, i.e., strong resistance by State governments to any enhancement of the role of the Central government.
Is the present constitutional division of legislative power relating to water between the Union and the States satisfactory?
The Centre does not think so. The Sarkaria Commission thought that a change was unnecessary.
- The erstwhile Planning Commission has also suggested water law on the lines of the European Union where water is under one directive.
- The Public Accounts Committee (PAC) has also recommended bringing water in the concurrent list of the Constitution. The panel, in a report titled ‘Water Pollution in India’, urged the Centre to come up with a national legislation on water.
- The Parliamentary Standing Committee on Water Resources too had urged the Centre to initiate “earnest” efforts to build a national consensus for bringing water into the Concurrent List of the Constitution so that a comprehensive plan can be prepared for water conservation.
Why this may not be good move?
- A move to put water into the Concurrent List at this stage will be generally regarded as a retrograde step that runs counter to the general trend towards decentralisation and enhanced federalism, and it will face serious political difficulty because there will be stout opposition from the States.
- Besides, an entry in the Concurrent List will mean that both the Centre and the States can legislate on water, but the Centre can already do so in respect of inter-State rivers under Entry 56 but has not used that power. It seems sensible to use that enabling provision, and also re-activate the River Boards Act, rather than pursue the difficult idea of a constitutional amendment to bring water on to the Concurrent List.
But, why water should be placed in the concurrent list?
- Water as a subject is larger than rivers; ponds and lakes, springs, groundwater aquifers, glaciers, soil and atmospheric moisture, wetlands, and so on, are all forms of water and constitute a hydrological unity. Hence, keeping the environmental, ecological, social/human, and rights concerns relating to water, it seems necessary to place this subject under the concurrent list.
- In the recent past, there have been serious concerns relating to groundwater — rapid depletion of aquifers in many parts of the country, the emergence of arsenic and fluoride in many States, etc. It is also interesting to note that there is no explicit reference to groundwater or aquifers in the Constitution. Hence, in this context, some experts want the subject to be moved to the concurrent list.
- The sense of water scarcity and crisis now looms large. It is clear that while action will be called for at the State and local levels, the perception of a crisis casts a great responsibility on the Centre: national initiatives will definitely be called for.
- A new factor not foreseen even a few decades ago is climate change and its impact on water resources. This is a subject which is still under study and research, but it is clear that coordinated action will be called for not only at the national level but also at the regional and international levels. The Central government has necessarily to play a lead role in this regard.
- Finally, it appears that to the Constitution-makers ‘water’ meant essentially river waters and irrigation. This is quite evident from the wording of the entries. In that context, it might have appeared appropriate to assign the primary role to the States, and provide a specific role for the Centre in relation to inter-State rivers. But, since most of our important rivers are in fact inter-State, and inter-State river water disputes are on rise, it is argued that the centre should assume a greater role.
There is a need to recognise water as a finite and vulnerable resource. The Government should take urgent action to set the stage for enactment of a comprehensive national legislation on water after evolving a broad national consensus to bring it in the concurrent list and formulate an over-arching national legal framework for effective water management, conservation, development and equitable distribution with adequate provisions for devolution necessary authority to the lower tiers of Government. The existing legislations on water should also be comprehensively reviewed.
Putting water into the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development. That danger is real and needs to be avoided. Legislation and executive action must continue to be undertaken at the appropriate level (Central, State or local) in each case. The subsidiarity principle, i.e., the principle that decisions must be taken at the lowest appropriate level, will continue to be valid.
The theoretical case for water being in the Concurrent List is thus unassailable. Of all the subjects that are or ought to be in the Concurrent List, water ranks higher than any other. The practical and political difficulties of shifting it there remain, but these would need to be overcome.