Panel Abstract: Water law and water policy have evolved over time in tandem in their respective sphere. Over the past two decades, however, their relationship has evolved to the point where the very distinction between the two has become unclear.
On the one hand, water policy (general water policies) and policy instruments in the water sector (for instance concerning drinking water supply in rural areas) have evolved rapidly over the past two decades. On the other hand, there have been major reforms of water, in particular in the past decade.
While the respective roles of water law and water policy are theoretically well established and distinct, today water sector practitioners often think that water policy ‘is’ the regulatory framework that is binding on all actors. This is not helped by the fact that some water laws tie themselves to policy documents (eg water regulatory authorities acts). Further, the government has also (ab)used the possibility to adopt and change at will policy instruments without reference to the legislature. This is particularly visible in the context of drinking water.
This panel will seek to explore the increasingly controversial relationship between policy and law and will seek to clarify the implications of recent developments in the water sector for water law and policy as well as in the broader context of ongoing neoliberal reforms.
Panelists:K.J. Joy & Suhas Paranjape, SOPPECOM, Pune
Abstract: In respect of water there is another issue that we think may need serious reconsideration. The distinction between the judicial functions of the state – the enforcement of enacted laws and safeguarding of rights overseen by the judicial system – and executive functions of the state – including the policy making prerogatives of the government of the day – often presumes a strict, or at least a great deal of relative separation between law and policy. In view of the differences that characterise water entitlements from classical private property, we may have to reconsider this link. It is possible that ensuring basic human rights in the water sector will also need a scrutiny of water policy and its actual interpretation and implementation including the kind of prioritisation between contending uses that it may imply. Policy impacts much more closely on water rights. Thus in the case of water legal reform and policy reform advocacy may be much more closely tied together than they are in the case of other resources.
Title: Exploiting the Conundrum around Water Law and Water Policy: Case of Water Distribution Reforms in Maharashtra
Abstract: The state of Maharashtra has been on the forefront with regard to formulation of water policies and water laws. It is the first state in India to pass the law for establishment of ‘Independent Regulatory Authority’ and ‘Entitlement System’ in water sector. The state is undergoing major reforms in the distribution of water and creation of use-rights to water. In spite of the numerous legislations, there is a major legal void that is being exploited by the government, for allocating water to urban-industrial users at the cost of water-rights of the rural-agriculture users. The study of fifteen dams in Maharashtra shows that the space for exploiting the legal void is created by using ‘State Water Policy’ as ‘pseudo’ legislation. Such an interpretation of the policy instrument has given rise to a conundrum surrounding the role of the law vis-à-vis the policy.
This paper begins with the analysis of various legal provisions on water distribution in Maharashtra, including the Maharashtra Irrigation Act 1976, the Maharashtra Management of Irrigation Systems by Farmers Act 2005, and the Maharashtra Water Resources Regulatory Authority Act 2005. These provisions are then compared to the corresponding provisions in the policy documents like the Maharashtra State Water Policy 2003 and the Government Resolution on ‘Reservation of Water for Non-Irrigation Users’. The paper further examines, in light of these legal and policy provisions, the actual government-level decisions on water distribution in dam projects in Maharashtra.
The paper infers that the rapid urban-industrial growth, fuelled by the pro-market reforms, implemented over last two decades, is benefiting from the legal void and the conundrum surrounding the relationship between the water policy and the water law. The ever increasing water demands of the growing urban and industrial sectors are being met by exploiting this conundrum at the loss of agriculture-based rural livelihoods. Thus, the paper brings forth the relationship between the law and the policy and the blurring line between these two in the era of pro-market reforms.
Panelist: Philippe Cullet, SOAS (London) & CPR (Delhi)
Title: Realisation of the Human Right to Water: Contributions and Limitations of Water Policy
Abstract: The fundamental human right to water is well established under Indian law. Yet, the various judicial decisions concerning the right to water fail to specify its actual content in detail. Further, there is no framework drinking water law – nor for that matter any general framework water law – that fills the gap.
This is not to say that the government has failed to take any initiatives to realise the human right to water. In fact, in particular in the context of rural areas, the Union Government has been very active in policy terms. Thus, the Accelerated Rural Water Supply Programme Guidelines provided from the 1970s to 2009 a framework for the realisation of the fundamental right to water. This framework was progressively modified over the past decade, leading eventually to a completely new policy framework for the eleventh plan, renamed National Rural Drinking Water Programme.
The evolving policy framework for drinking water is particularly remarkable because it does not follow the evolution of the development of the human right to water by courts. This paper seeks to analyse the implications of the increasing use of policy instruments ‘instead’ of laws. This trend is particularly remarkable in the water sector where practitioners now often equate ‘water policy’ with what lawyers would call water law. This is part of a broader trend which sees the sidelining of constitutionally sanctioned law making and law implementing agencies. The case of study of the human right to water is particularly striking because it touches a key fundamental right.