August 2, 2019
Mahua Moitra speaks on The Dam Safety Bill, 2019
Thank you Honourable Chairperson Sir. Again I rise to … unfortunately the Minister, though I hold him in high esteem, he leaves me with no option but to … oppose this Bill which you have brought in. As the poet Auden very succinctly put it: thousands have lived without love but not one without water. So it is my job to stand here and plead for both the share of your Government’s love and an equitable share of this nation’s water. When we talk about water as a resource, water resource is governed by the legal framework of three doctrines the world over, and India is no exception.
First is the doctrine of public trust which says when we are talking about resources, like air, sea water, like forests. These are of such vital importance to everybody that nobody can be excluded from it. So the result is that we can’t put them in private ownership; they are held in ‘trusteeship’ by the Government. So that is the first principle that governs anything like water.
The second principal is the doctrine of riparian rights. Now riparian rights again are of two things, one is your natural flow, do you own the land in which the river flows through or the water body flows through, then you naturally have a right over it. The second right is the right to reasonable use, that is, if you are an adjacent owner you also have right over it. Now the Indian laws give rights to both the natural flow users and reasonable users so both people are looked after.
The third is the doctrine of prior appropriation which means as a first user, I have the right to use the water but I must use it for beneficial use and I must use it for the purpose I am supposed to be using it for. For example during water scarcity, if I am allowed water for irrigation, I cannot use it for washing my car and whatever is left over, the second user may use it for appropriation. So these are the three doctrines which govern things like water and this is the basic principle on which any kind of law or bill which governs water.
In India when we are talking about water, it fortunately falls as a State subject and that’s entry 17 on list two. Water is such a thing that every State wants to have control over. So it’s fortunate in that way and it is entry 17 on the State list. So water supply, irrigation canals, drainage and embankments and water power are all on the State list. However it is subject to provisions of entry 56 on List 1, which is the federal list. Now the Union list deals with the regulations and development of inter-state rivers and waterways to the extent of which regulations and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. Now in this particular Bill you have brought in is taking away the power of the State Government to manage dam safety for dams even being constructed by its own resources and which don’t have an inter-state ramifications. So in this case the provision of 56 in List 1 doesn’t apply.
The basic problem with this Bill is that it is infringing upon the federal structure and upon the power of the State. If you want to bring in something for safety as a Central Government, you have a right to talk about safety that affects all people. But do that in consultation with the State. It should not be a directive, a mandamus. Everything this Government does is in the nature of a directive. We are saying please consult the State. Do something which does not infringe upon the federal structure of the Constitution. But this Bill seek to do exactly that.
This Bill is completely silent on the devolution of funds from the Centre to the State to carry out various measures for dam safety. In the last five years for example, in West Bengal we have spent Rs 243 crores dam safety, which is still ongoing. This Bill is silent, you tell us that you are saving but if you look at the financial memorandum of this Bill, it tells me that you are spending 33 plus 14 – Rs 47 crores to set up the authorities and structure. You are completely silent on what the flow of funds are going to be to look after dam safety. So what I understand is that we look after everything and we pay for everything but you tell us how to do it. That doesn’t seem very fair.
Now if we go through this Bill chapter by chapter, few of the speakers before me have touched upon these very same points. We are talking about the National committee of dam safety. You set up a 21-member committee, you have got the Chairperson and then you have 10 people who are nominated by the Central Government, seven people from the State who are also nominated by the Central Government and three experts who are also nominated by the Central Government. So you have a body of 21 people where all 21 are nominated by the Central Government. How do you have a body where you have 10 members from the Centre and only seven members from the State, when the States are where the dams are physically located and this is even rotated every three years. Every single State in which a large dam exists should have representation on this and the State should have full freedom to nominate to the committee. Here you are saying that I will give you the majority of the members but I will also not let you choose who you send. I will choose who you send. So, basically you can ride roughshod over everything; all the decisions that you pass will only be sent for Government decision, and there is no question of any state having any say on the national committee. So there is something very wrong in Chapter 2, Clause 5.
Then we come to the National Dam Safety Authority that you are setting up. The National Dam Safety Authority is going to be the single body that you say is going to look after dam safety in all of India, in which case you are putting somebody in the rank of additional secretary.That’s it? Is that the level of confidence required, competence required for a body of this nature? That is something which is absolutely stark.
The third thing that you are setting up is the State Committee on Dam Safety. Here again in Chapter 4,Clause 11, by name you are calling it a State Committee; but the constitution of the State Committee, you are laying out in the Bill. For the State, you are telling the State who I can put on it, who its members should be; You are spelling all this out. What the timing should be, 180 days, you are spelling out. How long will it be, you are putting down. So sir, you are inviting yourself to my house for dinner, you are telling me who I should invite and you also telling me I can only serve dhokla and chhanch. You are setting the menu also. That’s unfair. So if you are setting up the State Committee, please leave it to the states to see what can be put there. Otherwise you are infringing completely on the State, there is no question of any federal structure.
Let’s look into the other provisions. The Union Government will take under its control the regulation of uniform Dam safety. Again there is no question of funding. You don’t tell us… you say you will exercise control, you will give directions, but you will not take any financial responsibility. This is not fair. When we go into the State Dam Safety Organisation, which is in Chapter 4, Section 14, West Bengal already has a State Dam Safety Organisation, which was set up in 2006 under the Irrigation and Waterways department. It performs very similar functions to what you laid out in 16 to 20 of the Bill. You should have a provision here which says that States which already have a State Dam Safety Organisation, it should be an exception for those states. It should only be for the States that do not have a State Dam Safety Organisation as of the date of commencement of the bill. Because if you already have one, are you going to put that body aside? Are you going to set up a new body to override an existing body? The Bill is again silent on that. It seems that the existing West Bengal body is going to become defunct from the commencement of this Bill and that you will put something on our head. That is not acceptable.
When you go to Section 41, you deal with punishment for obstruction of duty. It’s a very draconian section. It says whoever obstructs any employee of the National committee or the State Committee, which by the way you have nominated, it can be punishable by up to one year in prison. That seems a bit too much. Sometimes you have control of everything, now you can have some non-implementable directives which are given, which may not be of interest to the states. So if a State Government official goes and says I don’t think that this is right for that local authority to do it right now, you can tell them to go to prison.
Now you set up the National Dam Safety Authority. Subsection 3, Section 9 you say every decision of the said authority is final and binding. You are giving yourself supreme power. It should be supportive, this shouldn’t be directive. Please substitute giving directive with giving advice. Give us the right to accept it, give us the right to reject it, make it consultative. You bring in a Bill without consulting the State. You are setting up committees but we don’t have representation which is only for your nominees. We understand that you care about the safety of the country but the States too care about the safety of the dams which are located on their territory. You cannot take away what the Constitution gives us.
Now when we are coming to the conflict of interest, you’ve got the chairman of the Central Water Commission, who is the ex-officio chairperson of the National Committee of Dam Safety. This is a regulatory body, he is the chairperson. But CWC is also involved in policy making. So you have the same person who is making policy, who’s guiding design, who is doing the financing, who is also doing the regulation. This is a basic conflict of interest.
In the light of all the objections, in this world “jiski lathi, uski bhains”, you’ve got the 303, you can do anything. That’s not the point. You can put the 303 everywhere, that’s not the point. The point is we are speaking from the States, please do not continue to bring in pieces of legislation that ride roughshod over the right of the State. You are doing this with everything. I really hold the Minister in great esteem and I really hope that for once, you will rise above the directives of whoever this is and try and see where we are coming from and withdraw this Bill. Take it back and let us incorporate the changes that we and other members of the Opposition are bringing up. We are all interested in dam safety. These are the dams on our territory, we have to have a say about them and we hope you’ll do that. Thank you