DEVELOPMENT OF IRRIGATION LAWS AND POLICY IN INDIA -DR. AVDHESH PRATAP Water Law & Management Expert

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DEVELOPMENT OF IRRIGATION LAWS AND
POLICY IN INDIA
DR. AVDHESH PRATAP
Water Law & Management Expert
INTRODUCTION
Irrigation in India has a history extending over millennia. Not only in India,
but in most eastern countries, irrigation works, for artificial application of
water to the land for purposes of agriculture as a means of supplementing the
natural rainfall, which are unknown in Northern Europe, have existed from
time immemorial.
In India, this is a natural result of conditions of climate. It contains large
rainless tracts in the North and West where there can be no cultivation
without irrigation. In the Deccan plateau cultivation is exceedingly precarious
owing to the great irregularity of the rainfall and the long intervals during
which crops may be exposed to the fierce heat of the sun and to dry and
scorching winds. In such regions, there may be an almost complete failure of
crops in a year of short or badly distributed rainfall and a succession of two or
more unfavourable seasons might result in severe drought conditions
bordering on famines. In other more favoured tracts such as the Himalayan
sub montane districts a serious failure is seldom or never known, yet here
also irrigation works which are usually of a simple kind, such as can be
constructed by the people themselves, are of the greatest value in improving
out turn of crops. Lastly there are districts which ordinarily receive so copious
a rainfall that rice is almost the only crop grown; but for this, water is
required at certain critical periods when there may be a break in the rains,
and a full harvest can only be secured by irrigation.
The existing indigenous systems of irrigation in India which have evolved with
reference to topography and climate, have thousands of years of tradition
behind them.

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THE PUBLIC WORKS MANAGEMENT SYSTEM
The advent of military officers into the revenue administrative system
proved to be the turning point in the matter of irrigation in 1790. Civil
Engineers of the army were inducted into the administration of irrigation
works in their capacity as collectors. Further, a civil engineer was appointed
as Superintendent of Tank Repairs in 1809 which was the first modern
irrigation office created.
The other circumstance which influenced the methods of irrigation
management in the early days of British rule arose from the fact that the
executive responsibility for public works in British India rested with the
Military Board, the supreme authority for military affairs, until 1850, when civil
departments of public works were set up for the Government of India and
several presidencies and Provinces.
Arthur Cotton, who designed and executed an improvement to the
Cauvery Anicut in Tiruchirapalli, based on indigenous technology in 1838, paid
glowing tributes :
'It was from them (the native Indians) we learnt how to secure a foundation
in loose sand of unmeasured depth. In fact, what we learnt from them made
the difference between financial success and failure, for the Madras river
irrigations executed by our engineers have been the first the greatest financial
successes of any engineering works in the world, solely because we learnt
from them ... with this lesson about foundations, we built bridges, weirs,
aqueducts, and every kind of hydraulic work .... We are thus deeply indebted
to the native engineers'.
DEVELOPMENTS IN IRRIGATION POLICY IN THE POST-1858 ERRA
The establishment of the Department of Public Works in the Presidency
in 1852, the first in British India, with irrigation as its chief concern, cemented
a process that was forever afterwards prejudicial to the exercise of power

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over irrigation sources, by the village community as a political unit. All
legislation that followed in the matter of irrigation served the purpose of
defining and protecting the powers of Government in the shape of the PWD
and the Revenue Departments, directed at a commercial exploitation of water
for irrigation.
Private Enterprises in Irrigation were introduced but resulted in
complete failure. The failure of private companies in making irrigation a
profitable enterprise convinced the Government that heretofore the State
should undertake all the irrigation works.
The system of irrigation that already existed - thousands of tanks, river
anicuts, channels which were only improved or modified by the Company's
government - had limited the administration's responsibility to the distribution
of irrigation water to the river works - anicuts and connecting channels and
where applicable, to tanks; the executive engineer appointed to each system
of works with his establishment saw to the regulation of water supply in toto
and there his jurisdiction ended. The water from the main controlling works
was carried by a myriad of privately owned water courses. The Government
was not concerned with the construction or maintenance of these channels.
IRRIGATION LAW AND ADMINISTRATION
Legislative declaration of government control over water resources evolved in
a process in the second half of the nineteenth century in response to
problems associated with administration and management of water resources.
Between the period 1855 and 1947, six legislations were enacted and ten bills
were attempted to be passed into law.
The Bills of 1855 and 1856 were the first legislative declarations of
Government's control; the Bill of 1855 was meant only to protect from willful
injury, irrigation works such as the heads and banks of channels, canals and
rivers, reservoirs and tanks. The opinion generated on this Bill led to the
drafting of another Bill of 1856 which widened the scope.

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(1) It sought to declare Government ownership over rivers and
natural streams as well as springs in unoccupied land.
(2) It sought to empower Government to construct works of
irrigation and to levy reasonable tax for the use of water.
(3) It sought power to punish injury and recover cost, and to punish
wasting and stealing water.
(4) It sought to regulate and legalize customary labour, prescribing
punishment for non-performance.
The Madras Compulsory Labour Act of 1858" and the Madras Irrigation Cess
Act of 1865 were passed at this time in fulfillment of some of these
objectives. The latter legislation empowered Government, in view of the large
expenditure incurred by the State in the construction and improvement of
irrigation and drainage works to the great advantage of the proprietors as
well as tenants of land, to impose an irrigation cess in addition to the
assessment, whenever water was supplied or used for irrigation from any
river stream, channel, tank or work belonging to or constructed by
Government. In this Act, it was provided that arrears of water cess should be
realized in the same manner as arrears of land revenue, and that no action
should be taken against any officer for anything done relating to the levy of
water rates imposed with the sanction of the Government.
In the absence of any law declaring clearly the rights of Government,
courts at the time were following English Common Law principles relating to
water use. The Indian Easements Act of 1882 was thereafter passed to
protect the Government's rights in such cases; while the Act recognized
riparian rights, by virtue of Section 2, no prescriptive rights of easement could
be claimed against the Government in the waters of rivers, streams etc. The
law of easements contained in the Act would not derogate from any right of
the Government to regulate the collection, retention and distribution of the
water or rivers, and streams flowing in natural channels, and of natural lakes

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and ponds or of the water flowing, collected, retained or distributed in or by
any channel or other work constructed at the public expense for irrigation.
The ordinary right of land holders against the Government to get water
sufficient to irrigate their fields is not an easement within the meaning of
Section 4 of the Indian Easements Act; Section 2(a) of the Act expressly
saves the right of government in the water of natural rivers and streams and
other public irrigation works.
All the irrigation Bills proposed during this period - 1855, 1856, 1882,
1884, 1906, 1914, 1922, 1930 and 1947 - attempted to fulfill these
objectives. Government's proprietorship over standing and flowing water and
even ground water, which by percolation reached the land or water source of
a land holder for this material benefit; Government's powers to construct
irrigation works, to repair and maintain them; the power to levy cess; the
power to define offences and punish violations- these were in short the wide-
ranging powers that Government sought to assume, and empower its officers
to exercise.
EVOLUTION OF PARTICIPATORY IRRIGATION MANAGEMENT
REGULATION
The Northern India Canal and Drainage Act 1873 thus entitled the
government 'to use and control for public purposes' all surface waters, apart
from ponds or other collections of water created by humans. This was
reinforced over time and later irrigation acts, such as the Madhya Pradesh
Irrigation Act 1931, asserted that rights in all surface water vest in the
Government. The main result of the regulatory framework was thus to
extend government control over irrigation water and by extension most
surface water.
This new regulatory framework vesting increasing rights in the
government had the correlative impact of restricting or extinguishing

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traditional rights enjoyed by individuals and communities over water for
irrigation or other purposes. Existing scholarship does not provide a
comprehensive picture of the customary rights that individuals and
communities enjoyed but available evidence shows that there were well-
established and functioning systems in place in many parts of the country and
that in the absence of centralized control, irrigation was managed at the local
level by beneficiary communities.
While irrigation laws on the whole significantly strengthened the power
of the government, there was a realization even by the colonial government
that a completely centralized system would not work efficiently. The talk was
not necessarily about giving rights to irrigators but there was at least a
recognition of the need to involve them. For instance, both the first irrigation
commission (1901-1903) and the royal commission on agriculture (1928)
recommended participatory management in irrigation. Additionally, the
Madhya Pradesh Irrigation Act 1931 provided for the setting up of irrigation
panchayats for every village. This scheme did not correspond to a democratic
process of decentralization since the establishment of the irrigation panchayat
was itself at the discretion of the collector. Additionally, the irrigation
panchayats were conceived with very limited autonomy and rather tasked on
the whole with assisting government officers in their work. This constitured,
nevertheless, a recognition that complete centralization was not an
appropriate strategy.
Changes with regard to the devolution of irrigation structures to irrigators
over die past few decades can be divided into two separate components. On
the one hand, different experiments have been carried out since the mid-
1970s, for instance, through the implementation of pilot projects. These
became progressively more organized and systematic and for the past decade
participatory irrigation management has been a core element of attempts to
restructure the irrigation sector. On the other hand, the regulatory framework
started evolving later. The relatively recent Bihar Irrigation Act 1997 is, for

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instance, largely premised on old principles highlighted above. Similarly, the
model irrigation bill proposed by the India Law Institute in the 1970s
suggested die formation of committees where the government found it
suitable and under conditions that put water committees at the mercy of the
government, for instance, by providing that members would hold office 'at the
pleasure' of the government.
Since the early 1990s, the regulatory framework for participation by irrigators
in the management of irrigation has completely changed. This is due to two
parallel, though largely unconnected developments. Firstly, the adoption of
the 73rd amendment to the Constitution provided a new legal basis for
reversing the trend towards centralization in irrigation regulation by
specifically seeking to endow panchayats with control over minor irrigation
schemes as well as more general water management and watershed
development. This appears to be an apt and sensible response to the
perceived widespread failure of centralized systems to deliver irrigation water
at the right time and in appropriate quantities to all farmers. Secondly, the
worldwide policy push for the setting up of water user associations was also
taken up in India in earnest from the early 1990s. This is visible in the context
of domestic policy documents as well as World Bank projects and policy
proposals. The recommendations put forward included the setting up of water
user associations but emphasized mostly the issue of transferring
responsibility of recovery of operation and maintenance costs to benefl-
ciaries:
Since the mid 1990s, there has been a dramatic increase in the rate of
change in various states. While forms of participation had been proposed
throughout the twentieth century, more widespread changes started with the
emergence of donor funding focusing on the setting up of water user
associations. The changes that have taken place in practice do not follow the
lead of the 73rd constitutional amendment seeking democratic
decentralization of irrigation governance but rather the model seeking to

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devolve certain rights and obligations concerning the management of
irrigation systems, in particular financial aspects.
POST-CONSTITUTIONAL DEVELOPMENTS IN PANCHAYATS AND
IRRIGATION
CONSTITUTIONAL POSITION ON IRRIGATION
Under the constitutional division of legislative power between the Union and
the States, the responsibility for the development of water resources rests
with the States. The states are given legislative competence through entry 17
of List II of the Seventh Schedule which is as follows:
"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"
The Union is given power under entry 56 of List I for the regulation and
development of interstate rivers and river valleys to the extent to which such
regulation and development under the control of the union is declared by
parliamentary legislation to be expedient in the public interest; Article 252 of
the Constitution also has a bearing on the matter.
Under this article, if the legislatures of two or more States desire that any of
the matters with respect to which Parliament has no power to make laws for
the States, be regulated in such States by Parliament and if resolutions to that
effect are passed by air the Houses of the legislatures of those States, it is
lawful for Parliament to pass such legislation. Such a law applies only to
States whose legislatures make the request or which subsequently adopt the
law.

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Thus States under the Constitution of India have legislative competence
regarding irrigation matters arising within the State and also between States.
THE GOVERNMENT OF INDIA ACT, 1935
The position under the Constitution of India is the same as under the
Government of India Act, 1935, where legislative competence was wholly
within the sphere of the Provincial Legislature. Entry 19 of the Provincial
Legislative List reads:
"Water, that is to say, water supplies, irrigation and canals, drainage and
embankments, water storage and water power".
There is no entry corresponding to entry 56 of List I; Article 252 of the
Constitution repeats the provisions of Section 100 of the Government of India
Act (1935); Sections 130-135 correspond to Articles 262 and 263 relating to
the settlement of Interstate Water Disputes.
LOCAL GOVERNMENT
Power to legislate for local government which includes village administration
rests with the states by virtue of entry 5, List II of the Seventh Schedule; the
provision is verbatim similar to entry 13 of the Provincial Legislative List of the
Government of India Act, 1935.