Securing water commons in scheduled areas
ACCESS to safe drinking water is a fundamental right in India.1 The right to clean and safe drinking water is considered as embodied in Article 21, known as the ‘right to life’, under the Constitution of India.2 This right becomes even more significant due to the effects of climate change that are felt at both levels – global and local. Studies suggest that climate change is likely to adversely impact water resources in India resulting in an unpredictable hydrological cycle, affecting the overall water scenario.3 As a result, our ability to meet the requirements of different water-intensive sectors such as agriculture, for drinking purposes, sanitation and industrial use is likely to face increased challenges. Community water resources such as village ponds, tanks, reservoirs, johads, and community wells are also likely to be affected due to changes in the hydrological cycle.
In such a scenario it is necessary for the government to take appropriate measures for securing common property resources of the poor and vulnerable tribal communities who will be disproportionately impacted by climate change. Community water resources, or water commons, thus assume greater significance as they are crucial to the climate vulnerable forest-dwelling and pastoral communities who are heavily dependent on them for their very survival. The changes in the hydrological cycle may have varied and unpredictably impacted water resources in the past, beyond the comprehension of tribal communities dependent on these resources.
In India, a significant portion of the tribal population that is listed under the Constitution as ‘Scheduled Tribes’ live in areas classified as Scheduled Areas. These areas are treated differently under the Constitution for administrative purposes.4 They are provided special protection and governance because their population is perceived to be socially, educationally and economically backward, and hence easily distinguishable from the mainstream population. They need special protection to preserve their culture, identity and community resources.
The Constitution of India provides for the allocation of subject matters that are to be regulated by the central and state governments. Under the present constitutional scheme, water is listed as a state subject, wherein the states have control over water resources, its supply and management. Notwithstanding this constitutional mandate, states have achieved precious little regarding water supply for drinking purposes to both urban and rural areas. Irrigation, being the most water consuming sector, has also remained unregulated, resulting in an excessive withdrawal of groundwater and consequently an exponential fall in the water table in many states.
States have also failed to formulate and implement norms for industry. Moreover, little has been done for the protection of common water resources. While certain policies regulating fisheries in common village ponds do exist, little progress has been made in conserving community water resources.
Water law framework in India comprises of a number of policy and legal instrument, at both national and state levels. The institutional framework to implement water related policies and programmes is also complex and comprises of multitude of agencies in the local, state and central government. Besides a multiplicity of agencies, there are overlapping and unclear mandates both at the central and state level for management of water resources for various purposes such as drinking, irrigation, sanitation and industry. This complex network of policy instruments, programmes, schemes and implementation agencies results in poor governance with overlapping responsibilities.
Thus, for example, the Central Water Commission (CWC) in the Ministry of Water Resources is tasked with the responsibility for regulating the use of surface water for irrigation, industry and for drinking purposes. At the same time the Central Groundwater Board (CGWB) has an over-arching mandate for monitoring groundwater levels and rates of depletion, as well as production of water resource inventories and maps, and the Central Pollution Control Board (CPCB) is responsible for controlling basin-wide pollution control strategies.
Similarly, the Ministry of Agriculture is involved in planning, formulation, monitoring and reviewing various watershed-based developmental project activities, the Rajiv Gandhi National Drinking Water Mission under the Ministry of Rural Development in the central government is charged with policy formulation and setting standards, funds and technical assistance to the states for rural water supply and sanitation, and so on. Clearly, there is no streamlined framework for a single coordinated institutional arrangement. Moreover, the current institutional mechanism does not factor in the involvement of gram sabhas and village panchayats in water management and supply services.
The regulation and use of groundwater in the country also faces a number of challenges. One reason for excessive withdrawal of groundwater is the extreme subsidizing of energy for irrigation pump sets. Other reasons that directly affect water balance include an alarming rate of deforestation and loss of tree cover, loss of common lands, and a complete disregard for traditional management systems, such as tanks in South India. The current policy framework at the central or state level does not factor in these issues, which are important for effective groundwater regulation in the country.
In the early seventies, free electricity to farmers and heavy subsidies on water pumps resulted in an excessive withdrawal of groundwater, leading to its rapid depletion nationwide. The Central Water Commission in the early nineties suggested measures to regulate overuse of groundwater. The states were given the prime responsibility for drawing up new regulations, water being a state subject. However, few states in the country have so far formulated a robust regime of regulations, and groundwater depletion in the country continues to be a serious concern, especially in the paddy growing states such as Chhattisgarh.
In this complex scenario, with the increasing risk of unpredictable effects of climate change, it is necessary that community water resources are secured and managed by the communities themselves to mitigate the effects of climate change. The legal and institutional regime for ensuring community participation exists and needs to be understood. An attempt to summarize key elements of the existing legal regime has been made below.
With the 73rd constitutional amendment, the panchayati raj system was extended throughout the country and elected representatives from villages could form part of the block panchayat samitis. However, the amendment was not applicable to scheduled and tribal areas referred to in article 244 of the Constitution. Nevertheless, the Parliament had the discretion to extend the provisions of part IX to scheduled and tribal areas referred to in article 244, with such exceptions and modifications as may be specified by law. Clearly, scheduled areas were kept out of the purview of the 73rd constitutional amendment whose provisions were to be applied only with exceptions and modifications.
Following the spirit of the 73rd constitutional amendment with respect to scheduled areas, the Parliament passed the Provisions of the Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA Act, 1996).5 The PESA empowers people in the villages of the scheduled areas to address issues that affect their daily lives. It is a simple yet powerful law that provides for decentralized governance in the scheduled areas in the country to enable people to govern themselves. Such decentralization requires an institutional structure, as well as an allocation of powers and responsibilities. The PESA, therefore, recognizes the village community as a basic unit of governance and prescribes the creation of panchayati raj institutions at different levels.
One of the important features of this important legislation is that it prescribes the recognition of the gram sabha or the village assembly as a central unit of village governance and vests it with such powers and functions as may be necessary for governance.6 The PESA, further, politically empowers the village community for planning village development, managing natural resources and resolving conflict in accordance with traditional customs and practices. Such empowerment is through the panchayati raj institutions mentioned above.
The PESA tries to empower panchayati raj institutions through six basic methods. These are:
1. By recognizing the central role of customary laws, social and religious practices and traditional management practices of community resources in the lives of the tribals and making them the founding principle of self-governance in scheduled areas. Further, PESA accepts the competence of the gram sabha in safeguarding and preserving the traditions and customs of the people, their cultural identity, community resources, and customary mode of dispute resolution. Accordingly, the act dictates that all state legislation on panchayats must be in accordance with customary laws, social and religious practices and traditional practices for management of community resources.
2. By exclusively according some powers to the gram sabha. These powers include, among others, the power to approve developmental plans, programmes and projects for social and economic development, the power of identifying and selecting beneficiaries for poverty alleviation and other programmes, and the power to grant certificates of utilization of funds or plans, programmes and projects implemented by the gram panchayat.
3. By giving the panchayat at appropriate levels (PAL) the exclusive power for planning and managing minor water bodies to secure community water resources such as village ponds, johads and ghats, with the active involvement and participation of the gram sabha.
4. By empowering the gram sabha or PAL to hold consultations before land acquisition for development projects and resettling or rehabilitating persons affected by such projects, and for prior recommendation in granting a prospecting license or mining leases for minor minerals, as well as for grant of concessions for the exploitation of minor minerals by auction.
5. By empowering the gram sabha and PAL through powers that are perhaps the most important for the lives of tribal people. These powers make the gram sabha a necessary unit of empowerment, along with any other level of panchayat and include: enforcing prohibition, regulation or restriction on the sale or consumption of any intoxicants; ownership of minor forest produce; prevention of alienation of land in scheduled areas and taking appropriate action to restore unlawfully alienated land of a scheduled tribe; control over institutions and functionaries in all social sectors; management of village market; control over moneylending; and control over local plans and resources for such plans, including tribal sub-plans.
6. By necessitating proportional representation and reservations for scheduled tribe members. Proportional representation means that if the scheduled tribe population in a village is 80% of the total population, then a similar percentage of members must be represented in the gram panchayat. Moreover, for facilitating local leadership from the tribal community, the posts of sarpanch and up-sarpanch in the scheduled areas are reserved for members of scheduled tribes.
Thus one finds that Panchayat Extension to Scheduled Areas Act, 1996 provides enough legal space for the protection of village commons, especially community water resources in scheduled areas. As per PESA, water commons in scheduled areas are to be managed by the panchayat at the appropriate level (PAL) and if the state government so decides, the control and management of community water resources can also be entrusted to the gram sabha. Thus, central PESA provides that the state may exercise its discretion in allocating this power to either tier of the village governance system.
Consequently, different states have adopted different arrangements in allocating this power to institutions for managing the water commons. Thus for example, in Madhya Pradesh and Orissa, the zilla parishad is tasked with the management of water bodies. But this arrangement violates the basic spirit of PESA wherein village water bodies and all common resources are to be managed by the gram sabha through consensus. Therefore, a prerequisite for securing community water resources is the effective implementation of PESA and its adaptation for subject matters falling within the states’ jurisdiction. In order to secure the resource base of communities, their involvement is essential for which creative use of the legal mandate and constitutional imperative of village self-governance must be realized.
1. Subhash Kumar vs State of Bihar, AIR 1991 SC 420.
2. A.P. Pollution Control Board II v Prof. M.V. Naidu and Others (Civil Appeal Nos. 368-373 of 1999). Cited from John Lee ‘Right to Healthy Environment’, Columbia Journal of Environmental. Law, Vol. 25, 2000; Also see Bandhua Mukti Morcha Vs Union of India Case Judgment.
3. See study by Ministry of Environment and Forest, Impact of Climate Change on Water Resources in India, 2009 www.envirofor. nic.in
4. The Constitution defines scheduled areas as falling under either Schedule V or Schedule VI. The fifth schedule under article 244(1) of the Constitution defines ‘Scheduled Areas’ as such areas as the President may by order declare to be scheduled areas after consultation with the Governor of that state. The sixth schedule under article 244(2) of the Constitution relates to those areas in the North East, which are declared as ‘tribal areas’ and provide for district or regional autonomous councils. These councils have wide-ranging legislative, judicial and executive powers.
5. The PESA Act seeks to extend the provisions of part IX of the Constitution as referred to in clause (1) of article 244 and calls for the legislature of a state not to make any law under that part (i.e. part IX) which is inconsistent with any of the features given under section 4 of the act, some of the important features of which are that the state legislation should be in tune with the customary law, social and religious practices and traditional management practices of community resources.
6. A gram sabha elects a gram panchayat, which is the body of elected representatives of the gram sabha. At the block level, it mandates the creation of the panchayat samiti, and at the district level the zilla parishad. The gram panchayat, the panchayat samiti and the zilla parishad are collectively called the panchayat at appropriate levels (hereafter PAL).