Why Water should be placed in Union or Concurrent List?

Recently, the standing committee on water resources in its report on augmentation of ground water has recommended the Centre to build consensus on inclusion of water either in the Union or the Concurrent.

Current position of Water in Constitution of India

Please note that Constitution of India lays down the legislative and functional jurisdiction of the Union, State and local Governments regarding ‘Water’.

In 7^th Schedule

Water is a state subject as per constitution of India and Union’s role comes into only in the case of inter- state river waters.

The State List of the Seventh Schedule has the following as Entry 17 :

“Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I.

Entry 56 of List I (Union list), reads as follows:

“Regulation and development of inter- state rivers and river valleys to the extent to which such regulation and development under the control of the Union, is declared by Parliament by law to be expedient in the public interest”.

Thus we see that Union has important role to play in solving disputes among the riparian states.

Article 262

Constitution has a specific article (Article 262), dealing with adjudication of disputes relating to matters of inter- state rivers or river valleys, which read as follows:

Article 262 (1): Parliament may by law provide for the adjudication on 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).

11th and 12th Schedule

Further to the above provisions, the 1992 amendments to the Constitution regarding Panchayats and Municipalities introduced the following entries in the schedules listing the subject-areas in which the State Governments and legislatures may devolve functions to such bodies, so as to make them evolve as local self-governing institutions:

• In the Eleventh Schedule (Part IX) dealing with Panchayats, the subjects, ”Minor irrigation, Water management and Watershed development”, “drinking water” and “maintenance of community assets” are listed.
• In the Twelfth Schedule (Part IX A) dealing with municipalities, the subjects “water supply of domestic, industrial and commercial purposes” is listed. Functional responsibilities are, thus, visualised for local Governments in respect of several aspects of water use.

Acts Passed:

Using the power of Article 262 and Entry 56 of List I (Union List) two acts were passed as follows:

1. Inter-State Water Disputes Act, 1956 (as amended up to 1980)
2. River Boards Act, 1956.

Please note that Constitution does not have an entry in 7^th schedule relating to ‘Environment’. So using the residual powers, the Union has enacted
laws on environment and control of pollution, which have effect on water use including ground water and its exploitation. A large number of Acts dealing with irrigation, canals and their maintenance, water rates and cess, command area development and maintenance of tanks are in force in each state. Some of the Acts are as old as the 1860s and 70s.

The recent parliamentary panel report says that

• Taking note of the recurrent disputes between certain states and regions over water sharing, the Committee hardly need to underline the need for evolving national planning development, conservation, exploitation and distribution of water in an equitable and sustainable manner.
• The Committee would urge the government to initiate steps in right earnest to strive to build national consensus to bring water either in the Union list of the concurrent list after due consultation with state governments.
• The committee notes that as per analysis of ground water by the ministry in May 2009, as compared to the levels of the previous decade, ground water levels had shown a 55% decline during the period. Fall in water level of more than 2 metres on a long-term basis was observed in parts of Madhya Pradesh, Uttar Pradesh, Gujarat, eastern Rajasthan, Haryana, Punjab and eastern Maharashtra. The committee urged the government to regulate exploitation of ground water in such a manner that the usage does not exceed the rate of replenishment.