Land Related Issues
While
successful implementation of land
reforms in rural areas in the 1950s and 1960s abolished intermediaries
and considerably abated agrarian unrest, it resulted in the emergence of a new
class of proprietors. Ceiling on agricultural holdings has had limited success
in granting landless labourers and small and marginal farmers access to land
ownership. The benefits of consolidation of land holdings visible in a few
States appear to have petered out as is evident from the stagnation in
agricultural production and renewed agricultural land fragmentation. Clearly,
land is at the heart of the crisis being faced by our agrarian communities and
the issue has the potential of precipitating major conflicts.
Similarly, the imperatives of a buoyant
economy create parallel demands for land, generating its own tensions in a
country where the share of agriculture in the GDP may have shrunk from around
60% in 1951 to 27% in 2002-03 but where more than 67% of population continues
to be dependant on agriculture.
The demand for land for non-agricultural use
including development projects and the growing impulse to urbanise, create
further scope for conflicts.
4.2 Land and the Agrarian Conflicts including
Farmers’ Suicides
1. While the tragic spurt in suicides by
farmers in some of the States has drawn attention to the brewing agrarian
crisis, the ‘land dimensions’ of the larger malady needs to be properly flagged
to assess its total ‘conflict generation potential’. Attention in this
connection may be drawn to the following facts:
• The average size of agricultural holdings
for the country as a whole declined from nearly 2 Hectares (Ha) in 1951 to
1.41Ha in 1995 to 1.32 Ha in 2000. It is worth noting that holdings of less
than 2 Ha are considered to be only marginally economical. There is no reason
to believe that this downward trend has been arrested and going by the current holding size, India has one of the
lowest average holding sizes anywhere in the world.
• The decrease in the average size is accompanied by an
increase in the number of holdings - from 11.58 crores in 1995 to 12.08 crores
in 2000, attesting to the fact that even larger number of families are tilling
shrinking parcels of land.
• The percentage of marginal (holding size of <1 Ha)
and small farmers (holding size of 1-2 Ha) accounted for 82% of farmers in
2000.
• With ceiling laws envisaging redistribution of 2 Ha of
surplus land to each landless/ marginal/ small farming household, the total
quantum of land required will be of the order of 6.72 crores Ha for small and
marginal farmers and around 10 crores Ha for landless labourers18 while the net
sown area in the country is no more than 14
crores Ha. In other words while land reforms need to be
pursued with greater vigour for a variety of reasons; they have limits in the
Indian context which must be properly understood.
• Apart from being uneconomical, small and marginal
holders are particularly vulnerable to uncertainties of weather, market
fluctuations and even moderate increases in inputs costs etc - in short, small
and marginal farmers and even the ‘small-medium’ farmers (holdings of 2-4 Ha)
are in the throes of one crisis or the other all the time.
2 The difficulties entailed by increased land
fragmentation have been compounded by rising indebtedness of farmers due to a
multiplicity of causes such as resort to non-formal sources like private money
lenders for short term credit at usurious interest rates due to the long lead
time taken by the formal institutions; inability of the farmers to deploy
credit for productive purposes due to the necessity of utilising it to meet
immediate consumption needs; failure to generate enough surplus from the
activity for which loan was obtained to repay the debt etc.
Lack of resources to repay outstanding loans often forces
the farmer to go in for fresh borrowings, creating a vicious circle which
causes deep distress. This debt burden often drives the farmer to suicide.
According to data of the National Crime Records Bureau
(NCRB), during the period 2001-05, 86922 farmers committed suicide out of whom
54% were from four States, viz, Andhra Pradesh, Karnataka, Kerala and
Maharashtra. Even more significantly, the ‘Suicide Mortality Rate’ or SMR,
which indicates suicide death per 100000 of population for farmers in States is much higher
than the national average of 17.5: Kerala (195), Maharashtra (51), Karnataka
(41) and Andhra Pradesh (33). Clearly, suicides by farmers in States are a
reflection of the prevailing agrarian distress.
Studies reveal that the causes for such large incidence
of suicides are; indebtedness, crop failure, decline in economic status, crop
failure, dent in social position and inability to meet social obligations etc.
While measures for
relief and rehabilitation of the bereaved families under the Prime Minster’s
special economic package and the steps taken by the State Governments concerned
have provided some succour, treatment of the root causes of agrarian distress
need specific policy interventions.
it is clear that the difficulties of the agrarian
community have the potential of engendering serious conflicts.
The measures
recommended include:
• Expanding the agricultural base by giving more support
to small and marginal farmers primarily through ‘Self Help Groups’ (SHGs) and
Cooperatives.
• Transferring informal debt to formal institutions.
• Rejuvenation of natural resource base particularly in
rain fed areas.
• More effective risk coverage to protect the farmers
from risks like price and demand fluctuations, vagaries of weather and natural
calamities.
• Increased public investment not only in agriculture but
for diversification of the non-farm sector within the rural areas to generate
alternative livelihoods for farmers.
• Poverty alleviation programmes to more specifically
cater to the needs of poorer farmers with farmers’ organisations being involved
in the design of such programmes.
4 The Commission, while endorsing the above
recommendations, also shares the view of the Group that tenurial reforms,
including empowerment of the tenants on the lines of ‘Operation Barga’ of West
Bengal are still highly relevant for empowerment of poor farmers, particularly
for giving them access to credit from financial institutions and increasing
their stake in the growth of agriculture.
For similar reasons, consolidation of land holdings should
be carried forward to the next stage. Pursuing agricultural growth through a
slew of measures including empowerment of small and marginal farmers and
continuing land reforms measures, apart from
achieving the macro and micro economic objectives, would also go a long way in
preventing major rural unrest.
5 The recent decision of the Government to
establish the National Council of Land Reforms with the Prime Minister as its
head and to constitute an Expert Committee under the chairpersonship of the
Minister for Rural Development to provide inputs to the National Council are
welcome steps to bring land reforms back to the mainstream of public
policy discourse.
4.3 Displacement
1 Displacement of people from their lands has
been a source of conflict, even when government acquires land for a public
purpose under the provisions of the law. Lands may be acquired for small
projects like installation of a small sub-station involving very little
displacement or for large projects like the major hydel projects resulting in
large scale displacement. Lands are acquired under the
Land Acquisition Act, 1894 or similar State laws. The laws prescribe the
procedure to be followed while acquiring lands and also lay down the norms for
compensating the title holders.
2 Acquisition of land is necessary for the
larger socio-economic development of a country. Putting land to more economic
use and thus increasing the economic returns to the society is the underlying
principle for acquisition of land. But it has been experienced that the person
who loses land feels that he has been given a raw deal while compensating him.
Acquisition of lands is generally problematic as the persons dependant on the
land are deprived of various benefits they derive from it – at times even
livelihood.
4 A closely associated issue is the rehabilitation of
persons who have lost their land, and consequently their livelihood. There was
no comprehensive policy for rehabilitation of such persons until 2003 when
Government of India formulated a National Policy on the Resettlement and
Rehabilitation of Project Affected Families which was notified in 2004. This
policy was in the form of broad guidelines and executive instructions for
guidance of all concerned and was available to projects displacing 500 families
or more enmasse in plains areas and 250 families enmasse in hilly areas, Desert
Development Programme (DDP) blocks and areas included in the 5th and 6th
Schedules of the Constitution. The objectives of the policy were:
(a) To minimize displacement and to identify
non-displacing or least-displacing alternatives;
(b) To plan the resettlement and rehabilitation of
Project Affected Families (PAFs), including special needs of Tribals and vulnerable
sections;
(c) To provide better standard of living to PAFs; and
(d) To facilitate harmonious relationship between the
Requiring Body and PAFs through mutual cooperation.
5 The policy stipulated that the scheme/plan for the
Resettlement & Rehabilitation of the Project Affected Families in
consultation with representatives of Project Affected Families should be
prepared and funded by the body for which the land was being acquired. It also laid
down norms for giving a rehabilitation package to the affected families.
6 Displacement of persons to accommodate projects and
enterprises is not unique to India. Many countries have solved similar problems
with considerable success; it will, therefore be useful to briefly note how
similar problems were handled in other countries.
6.1 Colombia: Starting in the early 1990s, Colombia began allocating a
percentage of benefits from hydropower plants to the development of areas in
which the displaced populations were relocated. In 1993, a law was enacted for
‘benefit transfers’. It was followed in 1994 by official regulations which laid
down the details of giving effect to the legislation. In 1996, another
legislation was passed which created an “Environment Compensation Fund”,
financed through revenue from development projects.
Shortly thereafter, the allocations to this compensation fund were increased to
20 per cent of project revenue. The Colombian laws also define the proportion
of revenues to be returned to the ‘relocation areas’. For instance, 3.8 per
cent of the revenue of hydroelectric plants is to be transferred to the
region’s watershed agencies for new productive investments in water saving and
local irrigation;1.5 per cent of the project revenue must be transferred to the
municipalities bordering the reservoir; and another 1.5 per cent is allocated
to upstream municipalities etc.
.6.2 Brazil: In
Brazil, the construction of hydropower plants led to large-scale displacements
which the government was not equipped to handle – the social consequences were
adverse and affected people were severely impoverished with many of them moving
into slums around big towns. An amendment to the country’s Constitution in 1988 introduced the principle of reinvesting a percentage of
royalties from hydropower projects in the resettlement areas. Subsequent to
this, a series of laws were enacted in rapid succession to define entitlements
and specific amounts of transferable royalties, together with procedures for
assuring a regular timetable for such allocations. A 2004 assessment reveals
that 137 hydropower plants with 145 reservoirs paid the requisite royalties and
financial compensation to 22 of Brazil’s state governments and 593
municipalities. Of these, 252 municipalities received financial compensation,
16 received only royalties, and 325 municipalities received both royalties and
compensation. Annually, the amount of financial compensation and royalties
exceeded US $400 million.
6.4 Canada: Canada
has embarked on a systematic programme of building major dams. Indigenous
tribal populations, with customary land rights recognised under the Canadian law,
inhabit some of the areas where many of such projects are under implementation.
In 1971, Hydro Quebec, Canada’s major power utility announced plans for the
James Bay project, which would include construction of as many as 20 dams with
the potential of negatively affecting the entire homeland of the tribal Cree
Indian population. The Cree organised themselves, protested intensely and
publicly, and resorted to legal action as well.
The Canadian courts decided in their favour and stopped
project construction. The protests of the Cree, who were later joined by the
indigenous Inuit populations, along with NGOs advocating indigenous rights and
environmental protection, led to significant changes in the position of the
Canadian government and its public utilities. To address the needs of this population
and to recognise their contribution to the country’s hydroelectric development, Canada’s government and hydroelectric utilities adopted a
strategy of partnering with the local indigenous communities. Hydro Quebec
announced that it would enter into agreements with the affected indigenous
groups for equity-sharing in the envisaged hydropower capacities. The key
premise in these agreements is that local indigenous communities are also direct investors in hydro projects,
by contributing their lands. Even though up-front compensation is being paid to
the Inuit population for the land, and also for helping them to adjust their
productive fishing activities, the option of equity-sharing was made available
as well. This equity enables the tribal Inuit communities to receive a share of
project benefits as a partner, for the long term, proportionately with their
land share in the construction of the project. The power utility provides the
full financing and constructs the dam and power plant, the indigenous
populations provide the lands, and then they proportionally share in the
profits. This approach avoided the economic displacement of local communities
and the risks of impoverishment from under-compensated displacement, by
recognising their shareholding status and financial entitlement as a part of
the project’s
benefits. This economic and financial arrangement is
currently in full operation.
4.3.6.5 Japan:
4.3.6.5.1 In an attempt to minimise the tensions and
conflicts inherent in land expropriation and population relocation, Japan has
conducted land-leasing experiments. When the series of three Jintsu-Gawa small
dams were built – the Jintsu-Gawa Dam Nos 1, 2 and 3 – the Japanese Government,
rather than applying the country’s expropriation law, decided to only lease the
land required for the reservoirs from its owners. Payment for the land lease was
structured into two types of financial transfers, deliberately designed to keep
revenue accruing to the affected people for a long period rather than to make
only a one-time compensation payment and dislocate them.
.6.5.2 Two kinds of financial transfers were made:
(i) Payment upfront to the land owners leasing land for
the reservoir, which would enable those farmers to develop for themselves
alternative livelihoods, and invest the money received into non-land-based
income generating activities;
(ii) Regular rent payments for the leased land, to be
continuously paid to the local small holders for the life of the project. This
way the leased land, although now deep under the reservoir waters, remains
nevertheless a source of constant income for the affected farmers and their
children. Rent payments supplement the initial upfront compensation and help to ensure livelihood sustainability
even if the new alternative economic activities do not succeed from the outset
or do not produce adequate returns.
6.5.3 Such two-pronged financing proved to be effective and
the test of time has validated it. Recent data reveals that the power companies
are still paying the rents today, 50 years after the construction of the three dams.
The payments are not a significant burden on the power companies and they
accrue to the new generation of families of the initial landowners. Japan has pursued another
innovative strategy in planning the largescale Numata Dam, whose reservoir was
anticipated to displace about 10,000 people. To procure new lands for this
sizeable population, the government made plans to convert 1500 Hectares of dry land
on the slopes of Mount Akagi into paddy rice fields, introducing irrigation at government’s cost. The defined objective
was to achieve physical resettlement with improved livelihoods for the resettled
people. Each resettler was to receive an area approximately twice as large
compared to what they had previously owned. When part of the land of a certain
family was to be submerged,
government planned to pay rent for the submerged portion
as if the submerged land was leased by the farmers to the State, rather than
merely paying a one-time compensation [Nakayama and Furuyashiki 2007].
Construction and resettlement plans were ready for implementation, but for
other macro-economic reasons the construction of the Numata Dam was cancelled
in 1972. Yet, this original, creative approach in Numata planning is relevant
for possible replication and actual future testing.
6.5.4 The benefit-sharing strategy outlined above thus
entails utilisation of a part of revenue from land acquisition to finance
resettlement. The processes involve the following mechanisms:
• Establishment of revolving development
funds through fixed allocations.
• Equity sharing in the new, project-created
enterprises and other productive assets through various forms of co-ownership.
• Special taxes paid to regional and local
governments, additional to the general tax system, to supplement local
development programmes with added initiatives.
4.4 New National Rehabilitation and
Resettlement (R&R) Policy
1 Government of India, in October, 2007,
approved a new national policy on Rehabilitation and Resettlement. The new
Policy and the associated legislative measures aim at striking a balance
between the need for land for developmental activities and, at the same time,
protecting the interests of the land owners, and others, such as the tenants, the
landless, the agricultural and non-agricultural labourers, artisans, etc whose
livelihood depends on the land involved.
2 The benefits to be offered under the new
Policy to the affected families include; land-for-land, to the extent
Government land would be available in the resettlement areas; preference for
employment in the project to at least one person from each nuclear family within
the definition of the ‘affected family’, subject to the availability of
vacancies and suitability of the affected persons; training and capacity
building for taking up suitable jobs and for self-employment; scholarships for
education of eligible persons from the affected families; preference to groups
of cooperatives of the affected persons in the allotment of contracts and other
economic opportunities in or around the project site; wage employment to the
willing affected persons in the construction work in the project; housing
benefits including houses to the landless affected families in both rural and
urban areas; and other
benefits. Special provisions for the STs and
SCs include preference in land-for-land for STs followed by SCs; a Tribal
Development Plan which will include a programme for development for alternate
fuel and also a programme of development for alternate fuel and non-timber
forest produce resources, consultations with Gram Sabhas and Tribal Advisory Councils,
protection of fishing rights, land free of cost for community and religious gatherings,
continuation of reservation benefits in resettlement areas, etc.
3 A strong grievance redressal mechanism has
been prescribed, which includes standing empowered in this regard. The Policy also provides that
land acquired for a public purpose R&R Committees
at the district, and at the project levels, and an Ombudsman duly cannot
be transferred to any other purpose but a public purpose, and that too, only
with prior approval of the Government. If land acquired for a public purpose
remains un-utilized for the purpose for five years from the date of taking over
possession, the same shall revert to the Government concerned. When land
acquired is transferred for a consideration, eighty per cent of any net
unearned income so accruing to the transferor, shall be shared with the persons
from whom the lands were acquired, or their heirs, in proportion to the value of the lands acquired.
4 Entitled persons shall have the option to take up to
twenty per cent of their rehabilitation grant and compensation amount in the
form of shares, if the Requiring Body is a company authorised to issue shares
and debentures; with prior approval of the Government, this proportion can be
as high as fifty per cent of the rehabilitation grant and compensation amount. Government has already decided to
bring in legislation to provide statutory backing to this new Rehabilitation
and Resettlement Policy, and also to suitably amend the Land Acquisition Act,
1984.
5 In the light of the lessons learnt and as a conflict
resolution measure for those displaced, there is need to introduce the concept
of benefit-sharing in development-induced displacement in India. While it is
true that comprehensive amendments made in 1984 to the Land Acquisition Act
have improved matters to some extent, the Act is still based on the concept of
cash compensation. The old concept of paying compensation based on the market
value of land should be replaced with assessing the true value of land for all
those who depend on it and then compensating them adequately. Under the
circumstances, there is need for enacting a new legislation that apart from
laying down norms of fair compensation also incorporates the principles of
income-sharing and creation of a resettlement development fund in addition to compensation payment. Also the
compensation/rehabilitation should not be confined only to the title holders of
land but should include all those who derived sustenance from the land. The
Union Government has introduced The Land Acquisition (Amendment) Bill, 2007 and
The Rehabilitation and Resettlement Bill, 2007 in the Parliament.
6 The land acquisition and the subsequent
rehabilitation processes often become time consuming. Complaints of corruption
and indifferent attitude of the officials involved do exist. Therefore it is
necessary that the field machinery has the right skills and attitude so that
the new policy could be implemented in letter and spirit. Capability building
measures and internal supervision mechanisms would need to be strengthened.
4.5 Special Economic Zones
1 With a view to overcome the shortcomings
experienced on account of the multiplicity of controls and clearances; absence
of world-class infrastructure, and an unstable fiscal regime and with a view to
attract larger foreign investments in India, the Special Economic Zones (SEZs)
Policy was announced in April 2000. This policy intended to make SEZs an engine
for economic growth supported by quality infrastructure complemented by an attractive fiscal package, both at the Centre
and the State level, with the minimum possible regulations. SEZs in India
functioned from 1.11.2000 to 09.02.2006 under the provisions of the Foreign
Trade Policy and fiscal incentives were made effective through the provisions of
relevant statutes.
2 To instill confidence in investors and
signal the Government’s commitment to a stable SEZ policy regime and with a
view to impart stability to the SEZ regime the SEZ Act, 2005, was enacted. The
main objectives of the SEZ Act are:
(a) generation of additional economic
activity;
(b) promotion of exports of goods and
services;
(c) promotion of investment from domestic and
foreign sources;
(d) creation of employment opportunities;
(e) development of infrastructure facilities.
3 The establishment of Special Economic Zones
(SEZs) has become a source of conflict, leading frequently to violence. In
Nandigram (West Bengal) for example, where a SEZ is proposed to be established,
14 persons died on 14th March, 2007 following the attempt by the police forces
to enter the area. Displacement of people in the name of development is quite
common, but what is unprecedented is the violence and the subsequent loss of lives
that took place to protest against a proposal to set up a relatively small size
SEZ in West Bengal.
4 The Special Economic Zones Act, 2005 is a
comprehensive law which provides for larger tax incentives. It provides for
several aspects such as establishment of zones, operation and fiscal regime.
The Special Economic Zones Act, 2005 makes quite a few incremental changes over
the SEZ policy of 2000. They are (a) Corporate
I.T. exemption increased to a block period of
15 years: 100% I.T. exemption for 5 years, 50% for the next five years and 50%
of ploughed-back profits for the last five years (b) Other fiscal incentives in
the form of exemption from Service Tax and Securities Transaction Tax (c)
Greater operational freedom, e.g., freedom to fix user charges (e) Approval
committee for each zone to provide ‘single-window’ clearance in all matters and
(f ) SEZs are declared as public utilities under the Industrial Disputes Act.
4.6 Chinese Experience with SEZ
1 Establishment of SEZs in China started soon
after the onset of the reforms in 1978 and these have contributed to the rapid
economic growth of China. The SEZs in China are reported to have achieved
considerable success because of (a) their unique locations – of the five SEZs,
Shenshen, Shantou and Zhuhai are in Guangdong Province adjoining Hong Kong. Fourth,
Xiamen, is in Fujian Province and nearer Taiwan (b) large size with government and local authorities providing
improved infrastructure with foreign collaboration (c) Investment-friendly
attitude towards Non-resident Chinese and Taiwanese (c) Attractive incentive
packages for foreign investment (d) Liberal customs procedures (e) Flexible
labour laws providing for contract appointments for specified periods and (f )
Powers to Provinces and local authorities to frame additional guidelines and in
administering the Zones.
2 However, despite these successes there have also been
negative fallouts of the Chinese SEZs.
4.7 Administrative Arrangements for Conflict
Resolution for SEZs
1 The source of conflict in respect of the
SEZ policy in India arises from displacement, loss of agricultural land and the
potential for real estate speculation. There is also criticism that a scramble
has been generated among developers to grab cheap agricultural land in order to
make quick profits or evade taxes and little attention has been paid to
achieving the real objective of generating industrial investments for
employment and export. It has also been pointed out that while China had
permitted a limited number of very large sized SEZs, in India hundreds of SEZs
have been approved including some that are only 10 hectares in size. The 25%
cap on processing activity in multi-product SEZs has also been criticised as
too little since it is felt that without strict land use regulations, this
would lead to speculative real estate activity rather than job creating
manufacturing activities. Finally it has been alleged that the tax breaks given
which can continue for as long as 15 years will lead to revenue loss as well as
diversion/displacement of units, particularly IT units which will all move to
SEZs because their existing tax-breaks would expire in 2009. All the elements
of the Chinese SEZ policy that led to negative consequences are also present in the Indian SEZ policy. It is
therefore necessary to be vigilant about the social costs and consequences of
the SEZ policy since it may lead to conflicts. The Group of Ministers
constituted by the Government of India to look into the SEZ policy has already recommended
that State Governments should not normally acquire the bulk of the lands for
the SEZs. This is a good decision because establishing SEZs to allocate land to
private companies cannot be termed as furtherance of a public purpose. The
Commission also feels that a better approach would be to have a limited number
of large SEZs preferably in backward areas so that they lead to infrastructure
creation. In addition, it would be desirable that the proportion of land
allowed to be used for ‘non-processing’ activities should be minimised.
2 The livelihood of those ousted should,
however, be the prime concern in conflict resolution. While the Group of
Ministers has suggested that the rehabilitation package should include a job
for at least one person from the affected family, such a stipulation is not adequate.
In fact, many entrepreneurs have already proposed rehabilitation packages, but they
do not go far enough. Rehabilitation packages should be based on an
income-sharing strategy, the details of which have already been described
earlier in the this Chapter. The idea, on the whole, should be to make the
oustees primary stakeholder partners rather than one-time beneficiaries or
spectators of SEZ development. Thus, the Mangalore SEZ project’s R&R
package defines tenants dependant on land, encroachers living off government
/forest land and agricultural laborers, all as Project Affected Persons who are
to be allotted alternative land sites of varying sizes along with those losing
their land to the project. In addition to sites in lieu of land, an ex gratia
housing grant, a transportation grant, a subsistence grant, a rehabilitation
grant for loss of land, vocational training and employment to one member of
each affected family constitute part of the package.
3 The SEZ law should also specify
establishment of vocational training centers. Provision of water, sanitation
and health facilities should precede the actual developmental activities in the
vicinity of the villages. There should be a clear provision in the SEZ law
allocating such responsibility to the entrepreneurs seeking to establish the
SEZs.
4 In order to prevent conflict situations
from arising and leading to violence, it is necessary that industrial
activities and SEZs are located in areas where they cause the least
displacement and dislocation, and do not usurp productive agricultural lands.
For the purpose, it may be desirable to prepare comprehensive land use plans
which could indicate where industrial activities and SEZs
could be located. It is necessary, however, to ensure that such land use plans
are finalized only after public consultations and inviting and taking into
account objections to the proposed land use planning. Once the land use plans
are finalised, they should be faithfully followed and should in effect be for a
specified number of years.
4.8 Land Records
4.8.1 The unsatisfactory state of land
records is a major source of dispute between individuals as also between
individuals and the government. Such disputes sometimes take a violent turn. The
problems of displacement of families by large scale acquisition are further
aggravated because of the poor status of land records. The Commission in its
Report on the Right to Information has emphasised the importance of land
records maintenance in our governance system. The Commission would be dealing
with this issue in further detail in its Report on District Administration.
Water Related Issues
The Prime Minister has said, “Rivers are a shared
heritage of our country … they should be the strings that unite us, not the
strings that divide us.” 25 However, water conflicts now divide every segment of our
society: political parties, states, regions, sub-regions within states,
districts, castes, groups and individual farmers. Water conflicts, not water,
seem to be percolating faster to the grassroots level in India.
5.1 Inter-State Water Conflicts
5.1.1 Constitutional Provisions and
Important Laws
The Constitution lays down the legislative
and functional jurisdiction of the Union, State and Local Governments in
respect of water. Water is essentially a State subject and the Union comes in
only in the case of inter-State waters. List II of the Seventh Schedule, dealing
with subjects in respect of which States have jurisdiction has entry 17 which
reads: 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: 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 the expedient in the public interest.
2 The Constitution contains a specific
Article - Article 262 – which deals with adjudication of disputes relating to
matters of inter-state rivers or river valleys, that reads:
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 water 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).
3 The two laws enacted under Article 262 and
entry 56 of List I are the River Boards Act, 1956 and the Inter-State Water
Disputes Act, 1956. The River Boards Act was enacted with the objective of
enabling the Union Government to create, in consultation with the State
Governments, boards to advise on the integrated development of inter-State
basins. The River Boards were supposed to
prevent conflicts by preparing developmental schemes and working out the costs
to each State. No water board, however, has so far been created under the River
Boards Act, 1956. The National Commission to Review the Working of the
Constitution observed as follows:
While a more radical suggestion has been made to place all
the inter-State rivers under the jurisdiction of an authority appointed to
administer them in national interest by law enacted by Union Parliament, it is
a fact that in relation to regulation and development of inter-State waters,
the River Boards Act, 1956 has remained a dead letter. Further, as and when occasions arose,
different River Boards have been constituted under different Acts of Parliament
to meet the needs in a particular river system according to the exigencies,
facts and the circumstances. The Commission, therefore, recommends that
appropriate Parliamentary legislation should be made for repealing the River
Boards Act, 1956 and replacing it by another comprehensive enactment under
Entry 56 of List I. The new enactment should clearly define the constitution of
the River Boards and their jurisdiction so as to regulate, develop and control
all inter-State rivers keeping intact the adjudicated and the recognized rights
of the States through which the inter-State river passes and their inhabitants.
While enacting the legislation, national interest should be the paramount
consideration as inter-State rivers are ‘material resources’ of the community
and are national assets.
Such enactment should be passed by Parliament after having
effective and meaningful consultation with all the State Governments.
4 The Inter-State Water Disputes Act provides for an aggrieved
State to ask the Union Government to refer a dispute to a tribunal. A water
disputes tribunal is appointed by the Chief Justice of India and consists of a
sitting judge of the Supreme Court and two other judges chosen from the Supreme
Court or High Courts. The tribunal, so appointed, can choose assessors and experts to advise it and the Award,
once given, is final and beyond the jurisdiction of courts.
5 The Sarkaria Commission in its report at Chapter XVII
on Inter-State River Water Disputes recommended that:
• Once an application under Section 3 of the Inter-State
River Water Disputes Act (33 of 1956) is received from a State, it should be
mandatory on the Union Government to constitute a Tribunal within a period not
exceeding one year from the date of receipt of the application of any disputant
State. The Inter-State River Water Disputes Act may be suitably amended for this purpose
• The Inter-State Water Disputes Act should be amended to
empower the Union Government to appoint a Tribunal, suo-moto,
if necessary, when it is satisfied that such a dispute exists in fact.(Para
17.4.14)
• There should be a Data Bank and information
system at the national level and adequate machinery should be set up for this
purpose at the earliest. There should also be a provision in the Inter-State
Water Disputes Act that States shall be required to give necessary data for
which purpose the Tribunal may be vested with powers of a Court.
• The Inter-State Water Disputes Act should be
amended to ensure that the award of a Tribunal becomes effective within five
years from the date of constitution of a Tribunal. If, however, for some
reasons, a Tribunal feels that the five years period has to be extended, the
Union Government may on a reference made by the Tribunal extend its term.
• The Inter-State Water Disputes Act, 1956
should be amended so that a Tribunal’s award has the same force and sanction
behind it as an order or decree of the Supreme Court to make a Tribunal’s award
really binding.
6 The Inter-State Water Disputes Act was
amended in 2002 and the following important changes were made:
• Government of India to establish a Tribunal
within one year on a request by a State Government.
• The Tribunal to investigate the matters
referred to it and give its Report within a period of three years (Government
of India may extend the period by another two years).
• The decision of the Tribunal, after its
publication in the Official Gazette by the Central Government, shall have the
same force as an order or decree of the Supreme Court.
5.2 Lessons Learnt from Inter-State River
Disputes
5 The most significant lesson from the past is that the
Union Government has not been able to act decisively and has generally taken a
‘minimalist’ attitude. The other lesson is that the time lost in delays due to
wrangling both before and during tribunal proceedings is very costly, in terms
of loss of production, loss of farmers’ income growth and the rising cost of
constructing irrigation systems. Increasingly, States are becoming resistant to
compliance with Awards of tribunals in spite of express provisions in the
Constitution regarding the finality of such awards. Another lesson is that a long
time is taken to constitute tribunals and giving awards and in pronouncements
of interim Awards that have led to further complications. After an Award is
given, there are problems of interpretation and implementation and there is no
mechanism to enforce the binding character of such Awards. Courts are barred from
reviewing the Awards of the tribunals, but matters are still taken to the
Supreme Court on related issues. The questions raised before the Supreme Court
are usually not so much on the subject of allocation of waters, but on
questions of its sharing during years of poor rainfall and on those relating to
environmental aspects, displacement and rehabilitation of people and human
rights in the context of specific projects. Such references delay the settlement
of disputes and implementation of projects for years.
6 The Commission would therefore like to suggest that the
Union Government, through the Ministry of Water Resources should be made a
party to proceedings before the Tribunals and there should be an enforcement
mechanism to implement the awards given by the Tribunals. Article 262 (1)
already bars the jurisdiction of the Supreme Court but matters are still being
taken there on related legal, jurisdictional, environmental and constitutional issues. Since Article 262 is the only Article in the
Constitution that bars the jurisdiction of the Courts, it would be
necessary for Courts to take note of this constitutional provision.
7. As a measure of conflict resolution in case of
inter-State rivers, the Commission would like to suggest that resource planning should be done for a hydrological unit such as
the drainage basin as a whole. In this respect, the National Commission f o r
Int e g r a t ed Wa t e r Resources Development that gave its report in 1999
had recommended setting up of River Basin Organisations (RBOs) as a body
in which the concerned State Governments, local governments and water users would have representation and
which would provide a f o r um f o r mu t u a l discussions and agreement. The
National Commission had recommended that the RBO should consist of a General
Council consisting of a Minister as a representative of the State Government,
the leader of the Opposition, representatives of selected Panchayats and urban
local bodies from each district in the basin and representatives of water
districts from each district in the basin. The National Commission had also
recommended that, in addition to the General Council, there should be a
standing committee with a permanent secretariat.
8 The Commission fully endorses the suggestion of the
National Commission for Integrated Water Resources Development for
establishment of RBOs in the manner as suggested. As the French, Australian and
Chinese experience suggests, river-basin planning and implementation is the
ideal system to follow. The system has worked well in those countries and the
experience in Australia is relevant for us as it has a federal set-up.
The Commission would like to recommend the enactment of a
legislation in place of the River Boards Act, 1956 that could provide, in
addition to the establishment of River Basin Organisations for each inter- State
river, the following by way of goals, responsibilities and management for the
RBOs:
A. Goals:
a) E n u n c i a t i o n o f principles for the development
of the basin
b) Issuing guidelines for major projects
c) Prescribing technical standards
d) Maintaining and improving water quality for all beneficial
uses
e) Prescribing a framework for development of ground
water
f ) C ontrolling land degradation
g) Rehabilitation of land resources to ensure
their sustainable utilisation and conservation of the natural environment of
the basin
B. Responsibilities:
a) Water allocation to the States and
administration of various key natural resources strategies
b) Technical responsibility for water
quality, land resources, nature conservation and community involvement
c) C ollection of data
C. Water Management Responsibilities:
a) Regulation of inter-state rivers and a
programme of water quality monitoring to maintain flows and water quality for a
range of purposes including supply to domestic users and for irrigation
b) C oordination of river management to
encourage appropriate land-use practices, best practical means of
waste-treatment and off-river disposal
c) Responsibility for developing programmes
for the preservation of the ecosystem and for coordination of management of
wetlands.
5.3 National Water Resources Council
1 The National Water Resources Council was
set up by the Government of India in March 1983 to discharge the following
functions:
(a) To lay down the national water policy and
to review it from time to time
(b) To consider and review water development
plans submitted to it by the National Water Development Agency and the River
Basin Commission
(c) To recommend acceptance of water plans
with such modifications as may be considered appropriate and necessary
(d) To give directions for carrying out such
further studies as may be necessary for full consideration of the plans or
components thereof
(e) To advise on the modalities of resolving
inter-State differences with regard to specific elements of water plans and
such other issues that arise during planning to implementation of the projects
(f ) To advise on practices and procedures,
administrative arrangements and regulations for the fair distribution and utlisation
of water resources by different beneficiaries keeping in view optimum
development and the maximum benefits to the people
(g) To make such other recommendations that
would foster expeditious and environmentally sound and economical development
of water resources in various regions.
2 The Prime Minister is the Chairman, the
Union Minister of Water Resources is the Vice-Chairman and the Minister of
State for Water Resources, concerned Union Ministers/ Ministers of State, Chief
Ministers of all States and Lieutenant Governors/Administrators of Union
Territories are the members of the Council. The Secretary, Ministry of Water Resources
is the Secretary of the Council. This Council first met in October, 1985 and adopted
a National Water Policy in 1987. Although the Council is supposed to meet once
a year, this does not often happen. As far as coordination of river basin
planning and management and effective water use are concerned, the Council has
not had much impact. The result has been that India has failed to develop its
water resources through integrated river basin development, and internecine
conflicts over rivers between States have become common and contentious.
3. Since it is such a high-powered body, the
Council should play a much more positive role. What is really required is that
the Council and its secretariat should be more proactive, suggest institutional
and legislative reforms in detail, devise modalities for resolving inter- State
water conflicts, and advise on procedures, administrative arrangements and
regulation of use of resources by different beneficiaries keeping in view their
optimum development and ensuring maximum benefits to the people.
The Chairman of all the River Basin Organisations, as and when formed, may be
made members of the Council.
5.4 Need for a National Law on Water
there is need for much greater efficiency in the use of
water and a greater public awareness on the criticality of water conservation.
This would call for efforts to develop, conserve, utilise and manage water on
the basis of a framework that incorporates national perspectives.
3 A national water policy was formulated by the Ministry
of Water Resources, Government of India in September 1987, but it is yet to be
operationalised because of lack of guidelines. A better way to articulate and
operationalise a national perspective on water will be through the
instrumentality of a law. The Commission would therefore like to recommend that a national water law that keeps in view
the interests and needs of the States should be enacted. It is necessary that
the law, at the minimum, should incorporate the following :
a. The national water law should be subject to and
consistent with the Constitution in all matters including the determination of
public interest and the rights and obligations of all parties with regard to
water.
b. The use of all water, irrespective of where it occurs
in the water cycle, should be subject to regulation by prescribed bodies.
c. The location of water resources in relation to land
shall not in itself confer preferential rights to usage.
d. The unity of the water cycle and the inter-dependence
of its elements where evaporation, clouds and rainfall are linked to
groundwater, rivers, waterbodies, wetlands and the sea, and where the basic
hydrological unit is the catchment, needs to be recognised.
e. Resource planning should be done for a hydrological
unit such as a drainage unit as a whole or for a sub-basin. All projects and
proposals should be formulated and considered within the framework of such an
overall plan for a basin or sub-basin so that the best possible combination of
options can be made.
f. Subject to the provisions of the Constitution and
relevant laws, responsibility for the development, apportionment and management
of available water resources will vest with the basin or regional level in such
a manner as to enable the interested parties to participate fully.
g. Water required to ensure that everyone has access to
sufficient drinking water should be reserved. The quantity, quality and
reliability of water required to maintain the ecological functions on which
human beings depend should also be reserved so that the use of water by human does
not individually or cumulatively compromise the long term sustainability of ecosystems.
h. Provision should be made for the establishment of one
or more regulatory bodies to ensure the implementation of the proposed law.
i. There should be a standardised national information
system with a network of data banks and databases integrating and strengthening
the central, state and basin-level agencies and improving the quality of data
and the processing capabilities.
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