Issue: Should water be in Concurrent List?

Time and again there has been a demand that water should be included in the concurrent list of the Constitution, not in the state list as is the case now. Latest in the series is a parliamentary panel in December 2015 which said that “looking into ground water scenario”, the centre should initiate “earnest” efforts to build national consensus to bring water in Concurrent List of the Constitution so that a comprehensive plan can be prepared for water conservation. In this article we try to understand the basic issues.

Water in the Indian Constitution

Water figures in three provisions in Indian constitution viz. Entry 17 in the State List, Entry 56 in the Union List, and Article 262.

The first provision makes water a state subject, however, the second provision via Entry 56 in the Union List allows regulation and development of water under the control of the Union declared by parliament to be expedient in the public interest. Further, Article 262 explicitly grants parliament the right to legislate over the matters in Entry 56, and also gives it primacy over the Supreme Court. In summary, while water supplies, irrigation and canals, drainage and embankments and storage fall in the State List, issues like development of inter-state rivers come under the Union List.

Issues with mechanism

However, this mechanism is not sufficient to deal with interstate disputes and have become a bone of contention between Centre-State disputes.

Article 262

Adjudication of disputes relating to waters of inter State Rivers or river valleys

(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter State river or river valley

(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1) Co ordination between States

The state governments dominate the allocation of river waters. Since rivers cross state boundaries, disputes are inevitable. The Inter-State Water Disputes Act of 1956 was legislated to deal with conflicts, and included provisions for the establishment of tribunals to adjudicate where direct negotiations have failed. However, states have sometimes refused to accept the decisions of tribunals. The centre has sometimes intervened directly as well, but in the most intractable cases, such as the sharing of the Ravi-Beas waters among Haryana, Jammu and Kashmir, Rajasthan, and Punjab, central intervention, too, has been unsuccessful.

Arguments for including water in concurrent list

Currently, water is a state subject. The reasons for making a clamour to include the subject in concurrent list are as follows:

• Water is a national resource and when states lay exclusive claim over it, it is against the basic tenets of the federalism. Since water is getting scarier resource with each day, there is a need for a comprehensive law for its proper allocation, conservation and usage. To bring a comprehensive law of legislation, it is necessary to bring it under concurrent list.
• Challenges in the water sector are too complex to be solved by Government initiatives alone and the concerted efforts by all stakeholders and active participation of the communities at the grass-root level are vital and hence, broad over-arching national legal framework of general principles on water is necessary to pave the way for essential legislation on water governance in every State.
• There should be central institutional and legal mechanisms without autonomy of states in national interest to resolve conflicts between different users and usage, in a participatory and open manner. Without central regulatory framework, without the reconciliation of the conflicts, it is difficult to resolve the question of sustainability, the question of livelihood, and the question of the environmental.
• The water policy cannot be considered in a stand-alone mode of states. Water is interlinked with soil conservation, ground water, irrigation, agriculture and allied activities. A state based policy always favours regional development rather than national one. While one state may benefit from it, nearby states in same way can face challenges. There is an urgent need for a central intervention in constitutional and legal mechanism for benefit of growing economy with sustainable livelihood with interest in all stakeholders. This can be achieved only by brining more power and authority by including water in concurrent list.

Arguments against

• Moving water off the state list would lead to further centralization and take away the right of the states to deal with basic issues related to water. Along with land, education, agriculture etc. water needs to remain only a state subject so that states can take actions proper allocation and usage of water.

• Under Concurrent list, the division of authority often leads to dilution of responsibility and ineffective coordination which results in not proper, efficient and equitable management of water. Such a move would go a long way in addressing inter-state water disputes and dealing with issues like inter-linking of rivers.

Critical Analysis

Water as a subject is larger than rivers; and constitutes a hydrological unity. It may seem practical the idea of moving water to the Concurrent List is logical. However, the political difficulty of doing so in immense. Putting water into the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development. Legislation and executive action must continue to be undertaken at the appropriate level (Central, State or local) in each case to tackle modern challenges like climate change, ground water exploitation etc. However, it is a welcome step out of the blue, even though Constitution-makers could not have anticipated the sense of water scarcity and crisis when constitution was form. 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. The national initiatives will definitely be called for and it may be make it easier to scroll through with proper political and regional will.