Is Water Policy the New Water Law? Rethinking the Place of Law in Water Sector Reforms

Water law and policy are in principle clearly distinct at the national and international levels. The former is binding while the latter is not. Yet, over the past two decades, the respective space of water law and water policy has evolved to the point where the distinction between the two is sometimes sidelined. At the international level, the increasing pre‐eminence of water policy is due in part to the absence of binding legal frameworks in various key areas of the water sector. This has led international water governance to be significantly different from other sectors. At the national level, reforms in the water sector over the past 20 years have often been heavily influenced by the non‐binding international water policy instruments. This article explores the trajectory of water law and water policy at the international level and in India over the past two decades. It highlights the specificities of the water sector in this regard and some of the problems that arise when policy ends up either replacing law or as a framework superseding law, thereby throwing out of gear most of the basic principles around which democratic legal orders are based.