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Water Federalism

A state cannot have autonomous powers even in respect of a river flowing entirely within its territory, because of associated environmental and other consequences in neighbouring states; e.g., independent action by a State may affect the groundwater aquifers across its boundaries.

Govind Bhattacharjee | New Delhi |

Water is a fundamental gift of nature. The many rivers that flow through the length and breadth of the country are the primary sources of our water. For us Indians, rivers are much more than mere providers of water. They bind us together and entwine our lives, culture, religion, folklore, and our joy, sorrow and love. Lakhs of people who congregate at the Kumbh melas believe that a bath in the river would wash away their sins. Rivers are our salvation, but we are guilty of criminal neglect of them. Part of the problem is attitudinal, and part institutional. Most of our rivers span multiple states, but an efficient federal framework for water management is singularly missing.

Rivers and water remain embedded in the multi-layered constitutional entanglements, which make them both Central and State subjects. Entry 56 in the Union List includes the regulation and development of inter-State rivers and river valleys, making them a Central subject, while Entry 17 in the State List gives the state legislative control over “water supplies, irrigation and canals, drainage and embankments, water storage and water power”, but subject to the provisions of Entry 56 of the Union List. Besides, Article 262 of the Constitution gives supreme power to Parliament to make law regarding the adjudication of inter-state of disputes on river waters, and makes such law nonjusticiable in any court including the Supreme Court.

Water sector infrastructure in India remains among the most neglected, with inadequate institutional reforms. There is no policy for groundwater storage or management; the major focus of our policy is towards irrigation and flood management, which explains the government programmes like Accelerated Irrigation Benefits Programme, Command Area Development, Flood Management, and National Project for Repair, Renovation and Restoration of Water Bodies directly linked to agriculture, etc. Growing demand, increasing drought, declining groundwater quality and non-availability of safe drinking water continue to plague our water sector.

As pointed out by Mr Ramaswamy Iyer way back in 1994, Parliament has made little use of Entry 56. Many river wuthorities have been established, but not vested with the powers of management. Under the River Board Act of 1956, river boards with only advisory powers were created, instead of River Basin Authorities with complete powers of water management. The Damodar Valley Corporation (DVC) was earlier modelled on the Tennessee Valley Authority, but never functioned as such. In March 1948, the Damodar Valley Corporation Act was passed by Parliament, requiring the Central government and the governments of Bihar and West Bengal to participate jointly in the DVC which was the first multipurpose river valley project of independent India.

Today it is almost a defunct organisation, with a huge debt, uncollected dues and various organisational problems. Similarly, the Brahmaputra Board, set up under a Parliamentary Act, was vested with the powers of project execution like a river basin authority, but has remained a weak and ineffective entity with its role limited only to the preparation of a master plan. By and large, State governments still determine the allocation of river waters, and since rivers flow across different states, disputes are bound to occur in this institutional framework. Inter-state river disputes are adjudicated under the Inter- State Water Disputes Act of 1956, enacted under Article 262, which includes provisions for the establishment of tribunals to adjudicate where direct negotiations have failed.

The result of such arbitration is binding upon the disputing states and there is no appeal against it in any court of law, obviously to avoid protracted litigation and consequent failure to resolve the dispute. In most cases, however, agreements or awards have followed protracted negotiations, like in the case of Krishna, Godavari or Narmada Tribunals. But in many cases, post-award disputes have also arisen, like in the distribution of Ravi-Beas waters among Haryana, Jammu and Kashmir, Rajasthan and Punjab. Even Central intervention has not helped. No unambiguous institutional mechanism for settling inter-state water disputesl exists in the country. It is obvious that a state cannot have autonomous powers even in respect of a river flowing entirely within its territory, because of associated environmental and other consequences in neighbouring states; e.g., independent action by a State may affect the groundwater aquifers across its boundaries.

There are also water surplus and water deficit states, but no policy or institutional mechanism for equitable sharing of water resources between states. Thus there has to be a national coordination mechanism, which was why the National Water Resources Council (NWRC) was established in 1983, but it has remained practically a non-starter in this respect. All that it had done was to frame a National Water Policy in 1987, which stated: “Water is a scarce and precious national resource, to be planned, developed and conserved as such, and in an integrated and environmentally sound basis, keeping in view the need of the states.” Thus water becomes a national resource only if states give their consent. Right to life is a fundamental right under Article 21 of the Constitution, and water is fundamental to life.

But this implicit fundamental right to water is subject to the state’s consent as per this policy, which is an untenable position. The National Water Policy was reviewed and updated in 2002 and again in 2012, when water was treated as “an economic good” and allowed privatisation of water delivery services. The policy, which abolished the priorities for water allocation of both the 1987 and the 2002 policies, was adopted despite opposition from many states, with major issues like water pollution or exploitation of ground water for commercial purposes left unaddressed. A National Water Board was constituted in 1990 to review the progress of implementation of the National Water Policy for reporting to the NWRC and also for systematic development of the country’s water resources, towards which precious little has been done so far.

The oldest institution dealing with water in the country is the Central Water Commission (erstwhile Central Waterways, Irrigation and Navigation Commission) dating from the pre-independence days in 1945. It is a technical organisation that coordinates with the states on conservation and utilisation of water resources, flood control, irrigation and dam safety, navigation, drinking water supply, water power development, etc. The institutional framework of water includes a number of other entities dealing with water, like the Central Ground Water Board, Central Water and Power Research Station, Ganga Flood Control Commission, Farakka Barrage Project, Upper Yamuna River Board, besides a number of statutory bodies like the River Boards in respect of Tungabhadra, Betwa, Brahmaputra, Godavari and Krishna, besides the Narmada Control Authority.

There are also autonomous entities like the National Mission for Clean Ganga, National Water Development Agency, National Institute of Hydrology and the North Eastern Regional Institute of Water and Land Management, besides two Central Public Sector Undertakings dealing with water ~ the National Projects Construction Corporation Limited and the Water & Power Consultancy Services Limited (WAPCOS Ltd.). All these bodies have now been brought under the single Ministry of Jal Shakti which was formed in May 2019 by merging the two erstwhile water ministries ~ the Ministry of Water Resources, River Development and Ganga Rejuvenation and the Ministry of Drinking Water and Sanitation, for coherence and effective coordination ~ a move that was long awaited.

The third tiers of the governments, Municipalities and the Panchayats are entirely missing from the picture, where most water usage takes place. They also have to be involved in the management of water. The existing framework needs revisiting to address these issues, including a Constitutional assertion that water is a national resource fundamental to life, which will make it implicit that this resource should be shared equitably and used responsibly with heavy penalties for wastage or negligent preservation and conservation. State and citizens must together share the responsibilities and costs. These challenges can only be addressed through effective horizontal and vertical coordination among governments in a true spirit of cooperative federalism.

(The writer is a commentator. Opinions are personal)