Encroaching State's rights

Dam Safety Bill 2019, Surveillance, Inspection, Operation, Mechanism, Maintenance, Irrigation, Lok Sabha, Rajya Sabha, Encroachment

Dam Safety Bill 2019 seeking to set up an institutional mechanism for surveillance, inspection, operation and maintenance of specified irrigation dams across the nation was passed by the Lok Sabha in August 2019 and awaiting to be cleared by Rajya Sabha also.

This Bill is the third one on rivers in India, which could have serious impact on the federal structure of the power distribution as per the Constitution.

This Bill will apply to all specified dams in the country which have height of more than 15 metres, or between 10 metres and 15 metres.

The Bill envisages a two-tier structure at national as well State level to ensure safety of dams in the country.

The Parliament has the legislative competence to draft such law on the ground that inter-State river-disputes is the subject of Union List I, while the 'water' falls under States power (List II).

The government justifies the Bill saying that there is a need to have a common protocol for safety of dams and it has a concern for lives of people, property and flora and fauna.

Official statistics say that there are 5,745 reservoirs in the country of which 293 are more than 100 years old. The age of 25 per cent of dams is between 50 and 100 years and 80 per cent are over 25 years old, safety of which need to be ensured.

A total of 40 dams have collapsed in India since Independence and worst such disaster occurred in Gujarat in 1979 leading to loss of thousands of lives of people.

The dam collapse could become an international issue, apart from being a matter of national shame reflecting negligence in maintenance. As many as 92 per cent of these dams in the country are on inter-State river basins, to manage which the Centre has brought two more Bills- River Basin Management Bill and Inter-State River Disputes (Amendment) Bill 2019.

According to Union Water Minister, the country needs a centralised mechanism to ensure constant maintenance and inspection of big dams, especially those that are over 100 years old (293 of the 5,344 big dams come in this category).

This Bill also seeks to resolve the inter-State issues concerning maintenance and safety of dams. The Minister claimed that the Bill would help resolve inter-State disputes, considering that nearly 92% of the dams are built on inter-State rivers.

The Bill was first introduced in 2010, but had been referred to a standing committee, which submitted its report in 2011.

It was again introduced in 2018 but lapsed with the dissolution of the House. Subsequent attempts to get Parliamentary nod have failed following opposition from States.

The Bill envisages constitution of a National Committee on Dam Safety headed by the Chairman, Central Water Commission, which will formulate policies and regulations regarding dam safety standards, for prevention of dam failures, and analyse causes of major dam failures and suggest changes in dam safety practices.

National Dam Safety Authority

This is yet another bill which gives more powers to a bureaucrat. It proposes setting up of a National Dam Safety Authority (NDSA) to be headed by an officer not below the rank of an Additional Secretary, who will be appointed by the Central government.

The National Dam Safety Authority is supposed to implement the policies formulated by the National Committee on Dam Safety, resolving issues between State Dam Safety Organisations (SDSOs), or between a SDSO and any dam owner in that State, specifying regulations for inspection and investigation of dams.

The NDSA will also provide accreditation to agencies working on construction, design and alteration of dams.

At State level also this Bill proposes constituting a State Dam Safety Organisation whose functions will be to keep perpetual surveillance, inspection, monitoring the operation and maintenance of dams, keeping a database of all dams, and recommending safety measures to owners of dams.

The Offences & Punishment

The Bill stipulated for two types of offences - obstructing a person in the discharge of his functions and refusing to comply with directions issued under the proposed law, and the offenders will be punishable with imprisonment of up to one year, or a fine, or both.

If the offence leads to loss of lives, the term of imprisonment may be extended up to two years.

A citizen cannot complain!

Very interesting point is the people or individuals have no authority to complain against the loss of life because of the dam breaking or negligent maintenance. Only the government will have authority to file a complaint.

The Bill says the offences will be cognisable only when the complaint is made by the government, or any authority constituted under the Bill.

There are serious concerns raised by this Bill. (a). This is focused on structural safety and ignores the operational safety, (b) there is inadequate compensation to the people affected by dams, (c) there is need for an independent regulator as well as for a precise definition of stakeholders, (d) it encroaches upon the sovereignty of States to manage their dams, and violates the principles of federalism enshrined in the Constitution, (e) it is feared as an attempt by the Centre to consolidate power in the guise of safety concerns.

Like other two Bills this also ensures centralisation of the authority and transfers that authority to the bureaucrats of the Central Water Commission. This has naturally raised the apprehensions about the powers of the States and their right over the rivers flowing in their states.

Responding to the apprehensions raised by the Opposition about centralisation of powers through this Bill, 2019, Jal Shakti Minister Gajendra Singh Shekhawat explained that the Centre had no intention of taking over the powers of State through this draft law.

The Minister asserted that through this law the Centre does not want to take control of the dams, water or power generated by it and that there will be no interference on part of the Centre or the Central Water Commission officials.

This is in fact, the real apprehension of the States. What one needs to remember is that the law is enforceable and the assurance though given in Lok Sabha is not.

Consultation with States

States should have been consulted extensively before finalising the draft of the Bill. The Minister stated that States were consulted in 2016 on the Bill and most agreed as that was better than the 2010 draft.

In the name of ensuring uniform safety regulations for dams across the country, the Centre is trying to have complete control over the rivers depriving of autonomy of the States, that raises several questions over federalism, that was declared by Supreme Court to be the basic structure of Indian Constitution which cannot be amended by the Parliament.

One apprehension as to how these Bills could affect the autonomy of States is that of Tamil Nadu, which exercises rights over four dams that are located in Kerala, based on previous agreements.

This Bill might have the statutory effect of dissolving the rights of Tamil Nadu over ensuring the safety of these dams as they are in another State. The Centralised NDSA headed by an additional secretary would decide whether management of the dams was faulty or not, wherein Tamil Nadu would have no say at any stage.

Because the Bill provides the constitution of the National Dam Safety Authority that will play the role of the current State Dam Safety Organisation to resolve inter-state water conflicts. The 'water' is on the State List, which means the States alone have power to legislative over it.

With this Bill the Centre gains right to access and control over the resource, in blatant violation of federal principles of distribution of powers as per three Lists in Schedule 7 of our Constitution.

The water is an asset that is shared by states and a centralised mechanism becomes as an adjudicator of disputes.

With strong political rivalries and vested political interests an objective assessment will almost impossible.

The Additional Secretary level officer as Central Authority over inter-state Rivers would be a subordinate employee of the Central government, who cannot independently discharge the duty of making impartial decisions on inter-State river water claims and safety issues.

Besides, the States apprehend is a potential threat of bias in favour of the "friendlier" State, or States' rules by the same party at Centre and States.

The RSP member raised an important concern about an additional secretary rank official being the chairman of the Dam Safety Authority without there being an appellate authority, would be totally against principles of natural justice.

Another question is why not the States have a say on dams built across rivers that drain their land. There is a basis in criticism that the Bill is an onslaught on the federal structure.

The Congress, the DMK and the TMC members expressed apprehensions that the Bill impinges on the powers of States and the federal structure.

The Centre's three pieces of legislation would have combined effect of over-centralisation and bureaucratisation of powers over the rivers and deprivation of State's authority.

(The writer is former Central Information Commissioner and Dean of Law, Bennett University)