River Inc.

Is industry hijacking the law to undermine communities' rights to water?

By Videh Upadhyay
Published: Saturday 30 November 2002

A man now owns a 23.6 kilometre (km) stretch of a river. He has a monopoly on the supply of water from the Sheonath river in a 19 km radius near the Durg township in Chhattisgarh.

This has been made possible by a boot (build-own-operate-transfer) agreement that he has entered intowith the state government, by virtue of which a portion of the river has been ceded to him through a 22-year renewable concession.

Through that one document, the traditional access of thousands of villagers to river waters -- for drinking, bathing, fishing and irrigating crops -- has been abruptly, and most critically, 'legally' denied. This first 'water privatisation' scheme is indeed loaded with far-reaching and tragic consequences. An even greater tragedy, though, is our collective silence on the matter.

The 'man who owns a river' is Kailash Soni, chief executive officer, Radius Water Limited (rwl). While clarifying that he is not privatising water, but providing a service, he educates us on the fact that the country continues to lack a legal framework for the water sector.

Simply, and mildly put, this is just not true. It is another matter that nobody -- not the man, nor the government, and much less the industry -- wants to recognise the legal framework that exists today. It is in this context that an attempt to make visible the invisible, and examine the 'fuzzy' water rights in India, is necessary.

Since the central conflict in this case, as well as in future, would essentially revolve around the question of ownership, access and control over water, a brief background on this is in order. It is commonly understood and argued that surface waters in India belong to the state, and also that this has been a direct consequence of usurpation of traditional and customary rights by the state in modern times.

Indeed, the Chhattisgarh government would say that the State Land Revenue Code makes clear that all the surface waters, including rivers, are the property of the state, and thus it is well within its right to lease out any such property to any person.

However, such an argument defeats the logic of the Supreme Court's ruling in 1996, when it adopted the 'public trust doctrine' as the law of the land. The apex court asserted, "Public at large is the beneficiary of seashore, running water, air, forests and ecologically fragile lands. The state as a trustee is under a legal duty to protect natural resources. These resources, meant for public use, cannot be converted into private ownership (emphasis added)."

Whether the waters 'belong' to the state, however, requires closer legal examination centring on the nuances of the words 'ownership' and 'control'. It will be dangerous to see this as a needless and abstract legal inquiry. Whether it is the legal notice to villagers who make a check dam in Alwar, Rajasthan, or certain schemes of the government for water harvesting structures failing because of a lack of 'sense of ownership' over them, or the present case of a 'river-owner', the point is too important to be missed.

One of the early legislations in the area of water resource management, the North India Canal and Drainage Act, 1873, said, "The provincial government is entitled to use and control for public purposes the water of all rivers and streams flowing in natural channels...." Notably, without talking about ownership, the Act asserted the right of the state to use and control water.

However, there were judgments, even during the legally oppressive British rule in India, which ruled that the government had the power to regulate, in public interest, river waters "provided that they do not thereby inflict injury on any other riparian owners and diminish the supply that they have traditionally utilised." A clear limitation, and thereby an obligation, on the manner in which the state can regulate the use of river waters.

This obligation of the state is now acquiring the shape of a categorical fundamental right enforceable against it, powered by an activist interpretation of the Constitution of India by the higher courts in the last two decades.

The right to clean water, as exercised in courts of law, generally focuses on pollution matters. However, there is a clear need to take the potential inherent in this right further. There is no reason why the farmer's need for a fixed quantum of water for survival needs cannot find a sure legal footing in the form of a fundamental right to water. It is,therefore, easy to understand whyeminent jurists, like the late Chhatrapati Singh, argued that this new interpretation under the Constitution "has legitimised the customary right as a constitutionally guaranteed right".

The customary right need not rely entirely on a liberal reading of the Constitution for firm legal sanctity. The 12-year-old Easement Act, 1992, still in force all over the country, legitimises customary rights of the people, and provides two rules for their recognition: by long use or prescription, and by local customs. Both legal grounds are squarely available to villagers of settlements that were built alongside the Sheonath river centuries ago.

Apart from the statutes, the now well-settled 'riparian rights' doctrine provides that a riparian owner, having land appurtenant to a river, has the right to use river water that flows past his/her land equally with other riparian owners. The owner also has the right to have the water come to him/her undiminished in flow, quantity or quality. Soni, who has invested Rs 39 crore to store and sell water, would not be overly happy in the knowledge that there are a number of court verdicts that make one point clear: No riparian owner should face obstruction in flow by a dam, and any such interference is an actionable wrong.

These provisions notwithstanding, it could be observed that the post-1882 law on people's water resources has seen a slow shift in emphasis. From being a natural right, access to water is taking the shape of a proprietary right. Privatisation of a river today through 'legal' means, and encouraged by the government, is an extreme manifestation of this changing legal discourse.

Therefore, when water-activist Rajendra Singh talks about 'water for communities' or writer-activist Vandana Shiva points out that water rights as natural rights do not originate with the state, but "evolve out of ecological context in human existence", they speak good sense. But evidently the formal administrative machinery does not think so.

If this trend -- where law is used to deprive people of their right to water -- is to be stopped, it is imperative that the traditional access rules be redressed as state-sanctioned rights. For example, the judicially evolved fundamental right of access to clear water needs to reflect in the laws on irrigation supplies, canals and water management.

The fact that the right noises are being made, even in government circles, on people-oriented and decentralised water management, is encouraging. Recently, for example, panchayats and water users associations have been vested with definitive legal powers for water management at the local level. However, a mere vesting of rights cannot in itself ensure devolvement of rights. There is a need to think about the external water rights of such village groups, so that it may be exercised against everyone outside the group, including the government and the industry.

Pending maturity of water rights at the village level, the supposedly non-existent legal framework allows even a solitary affected villager enough power to throw a spanner in the works of Radius Water Limited. The law has the answer, but the point is: Will anyone raise the right question? This is a test case for a country where even the government has never had the kind of monopoly over river waters that a path-breaking, but law-smashing, entrepreneur now has.

Videh Upadhyay is a Delhi-based lawyer, and partner, Enviro-Legal Defence Firm

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