1. INTRODUCTION PANEL DISCUSSION – 4 INTER-LINKING OF RIVERS PROJECT – ACHIEVEMENTS AND WAY FORWARD WATER LAWS AND GOVERNANCE IN INDIA CHALLANGES, ISSUES AND SOLUTIONS IN PRESENT SCENARIO WITH SPECIAL REFERENCE TO CLIMATE CHANGE DR. AVDHESH PRATAP WATER LAW & MANAGEMENT EXPERT

2. SIGNIFICANCE OF WATER Water is elixir of life, the 'stuff of life' and a basic human right. Fresh water is a scarce resource and it is finite resource with no alternate and upon which there is total dependence. We can well understand the significance of water by the words of Mikhail Gorbachev : "Water, like religion and ideology, has the power to move million of people. People move when there is too little of it. People move when there is too much of it. People journey down it. People write, sings, and dance about it. People fight over it. And all people, every where and every day need it.“ Water legislation in India is made up of a number of different instruments that do not necessarily make up a comprehensive framework to deal with water related issues and challenges properly and strictly. Water law in India has amended significantly and re- drafted over the past few years and is still evolving.

3. Water Jurisprudence is found under the Common Law Regime and Roman Law as well. Common law established, 'reparian rights' doctrine under the domain of natural rights of water and it was well defined in Chasemore v. Richards (1859) 7 H.L. Cas 349. The concept and development of water jurisprudence was well defined in Kautilya's Arthashastra, Vedas, Puranas, Manusmriti, Ramayana, Mahabharata and Quran also. Punishment provision was also there for violation of provisions to conserve and manage water in Kautilya's governance. In ancient India, people believed that forests were the mothers of rivers and worshipped the sources of these water bodies. DEVELOPMENT OF WATER JURISPRUDENCE

4. The seeds of water legislation were shown in the Bengal Regulation VI introduced in 1819. The very purpose was revenue generation through water diversion. First Law drafted was Embankment Act, 1829 and was amended in 1866, 1873 and 1882. The other major law was "Northern India Canal and Drainage Act, 1873". A Prime Law for Rivers Conservation was drafted as the "Madras Rivers Conservancy Act 1884". For the purpose of drinking water supply the law drafted was "Jharia Water Supply Act, 1914". The major shift was initiated in water legislation regime through enactment of "Government of India Act, 1935" and most elements of water were placed in provincial list. WATER LEGISLATION IN INDIA (1819-2016) PRE-INDEPENDENCE ERA The framers of the Indian Constitution almost copied the provisions of Government of India Act, 1935 with regard to water. Irrigation, water supply, hydropower, canals, drainage and embankments, water storage were kept with state list (List-II, Entry-17), whether regulation and development of inter-state rivers and river valleys (List-I, Entry-56) a specific article 262 is incorporated in the Constitution of India to resolve inter-state water disputes, Inter-state Water Disputes Act, 1957 had been enacted and was amended in 1988 and further amended through the recommendations of Sarkaria Commission in 2002. Another act River Board Act, 1957 was also drafted and presently redrafted and renamed as, "River Basin Management Bill, 2012". Most recent draft in this regard is National Water Framework Bill, 2013. Some other laws were enacted by Union as well as State Governments till date need not to be discussed here. POST INDEPENDENCE POSITION

5. Ground water governance has place under Indian Easement Act, 1882, till date. However, Indian Apex Court rejects this legal dilemma and shift water under the domain of "Public Trust" through the verdict of M.C. Mehta V Kamal Nath (1997) 1 SCC 388. Recognizing the need for ground water use the central government proposed a model bill as early as the 1970 to regulate and control its development and management. This bill has been revised several times (1992, 1996 and 2005). GROUND WATER LEGISLATION The Environment Protection Act of 1986 established a Central Ground Water Authority (CGWA) to regulate and control ground water. A Number of states like Andhra Pradesh, Goa, Tamil Nadu, Kerala, West Bengal, Himachal Pradesh, Bihar, and Union Territories of Chandigarh, Dadra and Nagar Haveli, and Lakshadweep went ahead and enacted the Ground water (Control and Regulation) Acts, following the scheme of the model bill, and established a groundwater authority. 8 These statutes proceeds to empower state agencies or the Ground Water Authorities to issue 'permits' or `licenses' to well 'users' on a presumption of the state's superior powers to control groundwater. Presently the Model Bill, 2011 is drafted around the need to regulate unreasonable uses of ground water. The National Water Policies 1987, 2002 and 2012 are the drafts to regulate water management of the Nation as well.

6. U.S., British and Indian Higher Judiciary also contributed in water regulations following are some of the important decided cases in this regard : 1.F.K. Hussain v. Union of India AIR 1990 Ker 321. 2.Pepsico India Holding Pvt. Ltd. v. State of Kerala and others (2008) 1 KLJ 218. 3.Rajendra Singh and others v. Government of N.C.T. of Delhi and others (2009) 8 SCC 582. 4.State of Orissa v. Government of India and another (2009) 5 SCC 492. 5.Mullaperiyar Environment Protection Forum v. Union of India and Ors. AIR 2006 SC 1428. 6.M.C. Mehta v. Kamal Nath and Ors. AIR 2000 SC 1515. 7.Perumatty Gram Panchayat v. State of Kerala 2004 (1) KLT 731. 8.Hindustan Coca-cola Beverage (P) Ltd. v. Perumatty Gram Panchayat 2005 (2) KLT 554. 9.Hinch Lal Tiwari v. Kamla Devi & Others AIR (2001) 6 SCC 496. 10.Re-networking of rivers 2012 (3) SCALE 74. 11.Appa Rao v. Seetharamayya ILR (1939) Mad. 45. 12.Illinois Central Railroad v. Illinois 146 US 387, 454 (1892). 13.New Jersy v. New York 283 US 336, 342 14.R v. Prince (1875) L.R. 2 CCR 154. 15.R. v. Steplicus (1886) L.R. 1 Q.B. 702. JUDICIAL INTERVENTIONS

7. Climate Change is projected to have vast adverse effects on India's water resources and further complicate and impact intensity, spatial and temporal variability of rainfall, evaporation rates, and temperature in different agro climatic zones and river basins. Estimates of the rise in temperatures in India are based on different models and they come with considerable uncertainty, however, there is high confidence that the temperature increases will be above any levels experienced in the last 100 years. CLIMATE CHANGE IMPACT Geographically the mountains of The Himalayas and The Hindu Kush confine the monsoon to the region and influence the water geography of the region in fundamental manner. They also provide upstream freshwater to many of south Asia's river basins with their snow melts and glacial waters. The impact of glacial melt and change in precipitation patterns directly affects people's livelihoods and economies of the countries of the region." There are some other water sectors which will be directly effected by climate change and these are as under: (a) Hydrology and River flows. (b) Water Scarcity (c) Floods (d) Sea- level rise (e) Biodiversity (f) Sedimentation (g) Agriculture and Food Security (h) Hydropower Production (i) Water Availability (j) Water Quality (k) Trans-boundary and Interstate challenges.

8. The Union Ministry of Water Resources, River Development and Ganga Rejuvenation is responsible for coordination, development, conservation and management of water as a natural resource. The ministry supervise the general policy on water resource development and management, technical and external assistance to the states for irrigation, multipurpose projects, ground water exploration and exploitation, command area development, drainage, flood control, water logging, sea erosion problems, dam safety and hydraulic structures for navigation and hydropower production. The technical support to the ministry is provided by agencies like the Central Water Commission, National Water Development Authority and Central Ground Water Board. The Command Area Development Authority looks into the canal network for the command area under irrigation. Presently Ministry of Power is looking after River Front construction and River Ghats Development and Rejuvenation. INSTITUTIONS IN WATER GOVERNANCE The Ministry of power manages hydropower and the Ministry of Urban Development handles water supplies and sewage disposal in urban areas, the Ministry of Rural Development takes care of water supply in rural areas. The ministry of Environment and Forests and Climate Change, does the overall co- ordination at the national level. Other institutions in water governance are as under: (a) Central Pollution Control Board and State Pollution Control Boards. (b) Urban Local Bodies and Panchayat Raj Institution.

9. Challenges and Issues in Water Governance are as under : 1.In spite of large number of laws enacted and policies enunciated by the central and state governments, the gap between expectation and performance has widened in regulatory policy. The increasing demand for water due to urbanization, population growth, industrialization, food security challenges and modern life style, the Government of India has initiated number of steps and drafted legislations, but despite policy initiatives, constitutional, legal and administrative enactments, the problem of implementation and enforcement persists. 2.The implementation of the law requires a totally different set of policy contexts. Water law in India is an assemblage of various formal and informal components from the colonial to the present status, and it lacks uniformity and formal, integrated framework. Therefore, it represent a great challenge to implement policy for a vast country like India. 3.The biggest challenge before governance in inter basin water transfer is successful installation of inter linking of rivers project in India whereas many inter-state water disputes remain unresolved till date. ISSUES : 1.Water conservation and wetlands preservation. 2.Revival of Traditional and Indigenous knowledge to conserve natural and man- made water bodies. 3.Water Education and awareness among people (specially in younger generation) to keep clean our water resources. 4.Public / Stake Holders participation in water management. CHALLENGES AND ISSUES

10. The proposed solutions are as under : 1.An integrated watershed approach is one of the most effective strategies in ensuring sustainable source augmentation. It is not enough to build check dams to collect water, it is important to ensure that the rate of runoff is reduced (via plantations with special focus on locally adapted varieties ) and percolation is enhanced. It has been observed that the best interventions are those that keep in mind, local socio-cultural sensibilities. Revive traditional structures, small earthen dams etc. to ensure local water recharge without disastrously hampering minimum flows and downstream regions. 2.Precipitation is a major source of fresh water. However, besides the little water that accumulates in natural water bodies and manages to percolate; most of it is lost as surface run-off. Thus the primary concern should be that of collection and using water as it falls where it falls. This is also reducing pressure on ground water. Rain water is mismanaged resource, therefore, it is an urgent need to promote individual and community harvesting structures. Besides construction, there is also an urgent need to influence behavior change of communities to accept rain water as pure. 3.The governance of water should lie with the community. Water falls under the purview of the public trust domain, indicating that it belongs to the community, for use by all, under the trusteeship of government. Hence, communities should have a stake in the planning and management of water resources at a local level. Communities should decide the allocation of water for various uses in a consultative manner. Special Programmers should be made in government plans and programmes for awareness generation, to keep the communities and village level institutions involved as the recycling issues need lot of behavioral change at the individual level. SOLUTIONS

11. 4.The Central Ground Water Board/State Ground Water Organizations/Universities may develop simple and Cost Effective Technology for water harvesting, recharging the aquifers and share these technologies with the farmers/ public for adoption. 5.State Government may adopt necessary legislation to regulate use of groundwater and promote community irrigation structures instead of individual projects in water scarce areas. Irrigation Laws must be amended/ re-drafted according to present and future challenges of climate change and with modern technology and engineering aspects. 6.State Ground Water Organization should be strengthened to study and innovate cost effective, eco-friendly rain water harvesting techniques in coordination with Agriculture Universities, State Soil Conservation and Ground Water Organizations. The programme of water education and training must be continued with the publicity and awareness mechanism of Ministry of Water Resources, River Development and Ganga Rejuvenation. 7.The Ministry of Water Resources, River Development and Ganga Rejuvenation must set up a integrated water disputes tribunal, it would be a step forward to resolve inter-state water disputes timely and successfully. This type of permanent dispute resolution mechanism will therefore proved to be economic. 8.Forest cover is a key element to regulate hydrological cycle therefore forest cover must be protected and its covered area must be enhanced. To enhance the forest cover, social forestry should be encouraged on the pattern as one of the army unit is doing its work in Uttarakhand State. More states and Non-Government agencies should be involved in forestry task. It is not until the well runs dry, that we know the worth of water. – Benjanmin Franklin