8/6/2019 Should Water Be Moved to Concurrent List

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he Union Ministry of Water Re-sources has for long been arguingfor a shift of water to the Concur-rent List without any serious ex-

tation of its happening, but has nowun to pursue the idea more actively. Thehok Chawla committee, which was pri-

ily concerned with the question of ratio-sing the allocation of natural resources

h a view to reducing the scope for corrup-, was reported by the media to have rec-

mended inter aliathe shifting of water toConcurrent List. There seems to be no

h specific recommendation in the draft ofCommittees report that one has seen,the possibility is referred to in the textthere is an Annexe on the subject. These

elopments have revived the old debate.et us first be clear about the presentstitutional position in relation to water.general impression is that in India water

State subject, but the position is not quite

imple. The primary entry in the Consti-on relating to water is indeed Entry 17 inState List, but it is explicitly made sub-t to the provisions of Entry 56 in theon List which enables the Union to deal

h inter-State rivers if Parliament legisla-for the purpose. This means that if Parlia-nt considers it expedient in the public

rest that the regulation and develop-nt of an inter-State river, say the GangaYamuna or Narmada, should be undercontrol of the Union, it can enact a lawhat effect, and that law will give theon legislative (and therefore executive)

wers over that river. That enabling provi-n has not been used by Parliament. No law

been passed bringing any river under the

control of the Union. Under Entry 56, Parlia-ment did enact the River Boards Act 1956providing for the establishment of RiverBoards for inter-State rivers, but no suchboard has been established under the Act.That Act is virtually a dead letter. The rea-sons are political, i.e., strong resistance byState governments to any enhancement ofthe role of the Central government.

Is the present constitutional division oflegislative power relating to water betweenthe Union and the States satisfactory? TheCentre does not think so. None of the Com-missions that has gone into the subject so far

has recommended a change, largely becauseit seemed unrealistic. (The Sarkaria Com-mission thought that a change wasunnecessary.)

The present writer had earlier arguedagainst a move to shift water to the Concur-rent List on two grounds. First, a move to putwater into the Concurrent List at this stagewill be generally regarded as a retrogradestep that runs counter to the general trendtowards decentralisation and enhanced fed-eralism, and it will face serious political diffi-culty because there will be stout oppositionfrom the States. Secondly, an entry in theConcurrent List will mean that both theCentre and the States can legislate on water,but the Centre can already do so in respect of

inter-State rivers under Entry 56 but has notused that power. It seemed sensible to usethat enabling provision, and also re-activatethe River Boards Act, rather than pursue thedifficult idea of a constitutional amendmentto bring water on to the Concurrent List.

It will be seen that the above argumentsagainst pursuing the idea of moving water tothe Concurrent List are practical ones: thepolitical difficulty of doing so, and the factthat the Centre can do certain things evenwithout such a shift. That does not amountto a statement that there is no case for theshift. Let us ignore political and practical

considerations, and ask: if the Constitutionwere being drafted for the first time now,where would one put water? The obviousand incontrovertible answer is: in the Con-current List. There are several reasons forsaying so.

First, it appears that to the Constitution-makers water meant essentially river wa-ters and irrigation. This is quite evident fromthe wording of the entries. In that context, itmight have appeared appropriate to assignthe primary role to the States, and provide aspecific role for the Centre in relation tointer-State rivers. However, even from thatlimited perspective, a primary rather than asecondary or exceptional role for the Centremight well have been warranted: most of our

important rivers are in fact inter-State, andinter-State (or inter-provincial) river waterdisputes were an old and vexed problemeven at the time of drafting the Constitution.

Secondly, that limited perspective is infact inadequate. Water as a subject is largerthan rivers; ponds and lakes, springs,groundwater aquifers, glaciers, soil and at-mospheric moisture, wetlands, and so on,are all forms of water and constitute a hydr-ological unity; and there is more to waterthan irrigation. If the environmental, eco-logical, social/human, and rights concernsrelating to water had been as sharply presentto the makers of the C onstitution as they areto us, it seems very probable that the entriesin the Constitution would have been differ-ent. (Incidentally, there are serious concernsnow relating to groundwater rapid deple-tion of aquifers in many parts of the country,the emergence of arsenic and fluoride inmany States, etc. and it is interesting thatthere is no explicit reference to groundwateror aquifers in the Constitution.)

Thirdly, the Constitution-makers couldnot have anticipated the sense of water scar-city and crisis that now looms large. It isclear that while action will be called for atthe State and local levels, the perception of acrisis casts a great responsibility on the Cen-tre: national initiatives will definitely becalled for.

Fourthly, a new factor not foreseen even afew decades ago is climate change and itsimpact on water resources. This is a subjectwhich is still under study and research, but itis clear that coordinated action will be calledfor not only at the national level but also atthe regional and international levels. TheCentral government has necessarily to play alead role in this regard.

The theoretical case for water being in the

Concurrent List is thus unassailable. Of allthe subjects that are or ought to be in theConcurrent List, water ranks higher thanany other. The practical and political diffi-culties of shifting it there remain, but thesewould need to be overcome.

However, if those difficulties prove insu-perable, then we have to settle for the secondbest course (a modest one) of greater use bythe Centre of the legislative powers relatingto inter-State rivers provided for in Entry 56in the Union List, and re-activation of thedormant River Boards Act 1956. It wouldfurther have to be supplemented by recourseto the wide-ranging provisions of the Envi-ronment (Protection) Act 1986 (EPA). It is ofcourse possible for Parliament to legislate ona State subject if a certain number of Stateassemblies pass resolutions to that effect:that was the route followed in the case of theWater (Control and Prevention of Pollution)Act 1974.

At present, the EPA is being extensivelyused by the Centre for water-related action.For instance, the Central Groundwater Au-thority was set up in 1998 by a notificationunder the EPA. More recently, when it wasconsidered necessary to set up a NationalGanga River Basin Authority this was doneunder the EPA, instead of following the rightbut difficult course of enacting legislationunder Entry 56.

Finally, putting water into the ConcurrentList is not necessarily an act of centralisa-tion, though it could lead to such a devel-opment. That danger is real and needs to beavoided. Legislation and executive action

must continue to be undertaken at the ap-propriate level (Central, State or local) ineach case. The subsidiarity principle, i.e., theprinciple that decisions must be taken at thelowest appropriate level, will continue to bevalid.

Should water be moved to Concurrent List?maswamy R. Iyer Putting water on the Concurrent List is not

necessarily an act of centralisation, though it

could lead to such a development. Thatdanger is real and needs to be avoided.

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