Flaws in the laws

  • 14/08/2001

Water laws in India are archaic and anti-people. Made to disempower rather than empower communities, these are used to terrorise the people rather than assist them.

Secretary of tbs , Rajendra Singh received notices from the Rajasthan irrigation department stating that the johad constructed by the villagers of Lava ka Baas with assistance from tbs was unsafe and illegal. They were also warned that if the structure was not demolished, it could result in action under Sections 55 and 58 of the Rajasthan Irrigation and Drainage Act, 1954, which allows people accused to be arrested without a warrant.

According to Mohan Gopal, director of National Law School University, Bangalore, there has been no violation of laws in Lava ka Baas, either of the Rajasthan Irrigation and Drainage Act, 1954, or of the 1910 water sharing agreement between the then princely states of Alwar and Bharatpur. "In my opinion these structures should be left free and allowed to grow,' he says.

He further clarified that this Act of 1954 is applicable for major irrigation structures only and is not related to rainwater harvesting or recharge structures. "The impact of this structure on downstream Bharatpur should be decided on technical grounds and not on the basis of ambiguous laws, formulated by the British to keep power with themselves. None of the officials have even reviewed the material pertaining to this agreement nor have they seen the privy council decision,' he explains. Interestingly, the one official who did, saw it three decades ago!

Gopal opines that when any structure is built on individual or community land, the question of taking permission does not arise. However, for construction on government land there is a need to seek permission. According to Anil Agarwal, chairperson of cse , rather than expecting the villagers to take permission, the government should prepare guidelines for rainwater harvesting which can then be followed by the officials.

M S Rathore, senior fellow of the Institute of Development Studies, a non-governmental organisation based in Jaipur, has scorn for the 1954 Act. "This Act talks about control, maintenance and distribution of surface water. This is an act made for the states of Haryana, Punjab and Uttar Pradesh which experience heavy rains and water flows in the rivers perennially. Rajasthan, on the other hand, has hardly any rainfall, and a different topography. All the facts should have been taken into account while introducing any law. Such a law is not appropriate in a state like Rajasthan, where there is a huge scarcity of water. All states should not have similar laws.'

Rathore is concerned that there is no law that governs groundwater use. "Surprisingly, there is no mention of groundwater in the law, except for a small description in the Indian Easement Act of 1882 according to which land owner and tenant have the right to draw groundwater as much as they want!' he exclaims.

During Independence, the issue of water was never given the importance it deserved. As a result the laws introduced in the state today are inadequate and inappropriate. The laws enacted by the Britishers were replicated by the states without any change."It is high time that the water laws are looked into and amended accordingly,' feels Gopal.

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