JALANDHAR: When the issue of appointment of Bhakra Beas Management Board (BBMB) members is heating up in Punjabit has come out that the Dam Safety Act, 2021, which was passed by the Lok Sabha on August 2, 2019, and Rajya Sabha on December 2, 2021, through which two central bodies and two state bodies were created for surveillance, inspection, operation and maintenance of all specified dams across the country, pertained not only to inter-state river dams but also to intra-state river dams.
In its analysis on the issue, PRS Legislative Research, a Delhi-based independent research institute, has already flagged the question whether Parliament has the jurisdiction to regulate dams on rivers flowing entirely within a state.
It may not have been discussed by the political leadership in Punjab but DMK MP S Ramalingam had moved the Madras high court, challenging its constitutional validity, stating that it was contrary to the federal structure and reduced powers of the states.
“As per the Constitution, states can make laws on water, including water storage and water power. However, Parliament may regulate and develop inter-state river valleys if it deems it necessary in public interest. The question is whether Parliament has the jurisdiction to regulate dams on rivers flowing entirely within a state,” PRS Legislative Research noted in its analysis.
The Act created the National Committee on Dam Safety, National Dam Safety Authority and two state level bodies — State Committee on Dam Safety and State Dam Safety Organisation.
Citing National Register of Large Dams, 2019, maintained by the Central Dam Safety Organisation, it cited that out of the 5,745 large dams (including those under construction) in the country, 5,675 were being operated by states, 40 by central public sector undertakings and five by private agencies.
The specific Bill mentioned applies to all specified dams with above 15 metre height, or between 10 metres and 15 metres height, and satisfying certain additional design conditions such as, reservoir capacity of at least one million cubic meter, and length of top of the dam at least 500 metres.
“This includes dams on both inter and intra-state rivers. The question is whether Parliament has the jurisdiction to frame a law on intra-state dams,” PRS analysis added.
“As per Entry 17 of the State List, states can make laws on water supply, irrigation and canals, drainage and embankments, water storage and water power, subject to Entry 56 of the Union List. Entry 56 of the Union List allows Parliament to make laws on the regulation of inter-state rivers and river valleys if it declares such regulation to be expedient in public interest. The Bill declares it expedient in public interest for the Union to regulate on a uniform dam safety procedure for all specified dams,” it claimed.
However, given Entry 17, it is unclear how Parliament would have the jurisdiction to frame a law for dams on rivers where the river and its valley are entirely within a state,” it further pointed out on the issue.
It also noted that the Dam Safety Bill, 2010, was introduced in Lok Sabha under Article 252 of the Indian Constitution.
“This Article allows Parliament to make laws on subjects in the State List if two or more states pass resolutions requiring such law, and the law applies only to those states. Other states may adopt the law by passing resolutions. Andhra Pradesh and West Bengal had passed resolutions requiring a law on dam safety. The Preamble of the 2010 Bill stated that Parliament has no powers to make laws for states with respect to providing uniform dam safety procedure.”
Schedules to the Bill
Stating that the functions of National Committee on Dam Safety, National Dam Safety Authority and State Committee on Dam Safety are listed in Schedules to the Bill, the PRS analysis also pointed out: “These Schedules can be amended through notification. This implies that the core functions of these bodies can be changed by the government through notification without prior amendment of the Act by Parliament. The question is whether the Bill should require an amendment by Parliament to change the core functions of such bodies.”
In its analysis on the issue, PRS Legislative Research, a Delhi-based independent research institute, has already flagged the question whether Parliament has the jurisdiction to regulate dams on rivers flowing entirely within a state.
It may not have been discussed by the political leadership in Punjab but DMK MP S Ramalingam had moved the Madras high court, challenging its constitutional validity, stating that it was contrary to the federal structure and reduced powers of the states.
“As per the Constitution, states can make laws on water, including water storage and water power. However, Parliament may regulate and develop inter-state river valleys if it deems it necessary in public interest. The question is whether Parliament has the jurisdiction to regulate dams on rivers flowing entirely within a state,” PRS Legislative Research noted in its analysis.
The Act created the National Committee on Dam Safety, National Dam Safety Authority and two state level bodies — State Committee on Dam Safety and State Dam Safety Organisation.
Citing National Register of Large Dams, 2019, maintained by the Central Dam Safety Organisation, it cited that out of the 5,745 large dams (including those under construction) in the country, 5,675 were being operated by states, 40 by central public sector undertakings and five by private agencies.
The specific Bill mentioned applies to all specified dams with above 15 metre height, or between 10 metres and 15 metres height, and satisfying certain additional design conditions such as, reservoir capacity of at least one million cubic meter, and length of top of the dam at least 500 metres.
“This includes dams on both inter and intra-state rivers. The question is whether Parliament has the jurisdiction to frame a law on intra-state dams,” PRS analysis added.
“As per Entry 17 of the State List, states can make laws on water supply, irrigation and canals, drainage and embankments, water storage and water power, subject to Entry 56 of the Union List. Entry 56 of the Union List allows Parliament to make laws on the regulation of inter-state rivers and river valleys if it declares such regulation to be expedient in public interest. The Bill declares it expedient in public interest for the Union to regulate on a uniform dam safety procedure for all specified dams,” it claimed.
However, given Entry 17, it is unclear how Parliament would have the jurisdiction to frame a law for dams on rivers where the river and its valley are entirely within a state,” it further pointed out on the issue.
It also noted that the Dam Safety Bill, 2010, was introduced in Lok Sabha under Article 252 of the Indian Constitution.
“This Article allows Parliament to make laws on subjects in the State List if two or more states pass resolutions requiring such law, and the law applies only to those states. Other states may adopt the law by passing resolutions. Andhra Pradesh and West Bengal had passed resolutions requiring a law on dam safety. The Preamble of the 2010 Bill stated that Parliament has no powers to make laws for states with respect to providing uniform dam safety procedure.”
Schedules to the Bill
Stating that the functions of National Committee on Dam Safety, National Dam Safety Authority and State Committee on Dam Safety are listed in Schedules to the Bill, the PRS analysis also pointed out: “These Schedules can be amended through notification. This implies that the core functions of these bodies can be changed by the government through notification without prior amendment of the Act by Parliament. The question is whether the Bill should require an amendment by Parliament to change the core functions of such bodies.”