Wanted: rule of law

It is simple, true and bitter. Maharashtra’s irrigation sector is going from bad to worse. First an irrigation scam and now a drought.

The state’s irrigation statistics (see box: 'Status of canal irrigation in Maharashtra) speak volumes. Maharashtra consciously opted for large scale public sector irrigation projects in a very big way. However, it could not get the desired success. Bad planning and design, substandard construction, poor physical status of canals and distribution network, bandobast or jugad (improvisation) in the name of operation and management (O&M), criminal negligence in maintenance and repairs (M&R), only lip service to participatory irrigation management (PIM), poor recovery of water tariff, inequitable distribution and inefficient use of water, and virtual absence of the rule of law are some of the well known reasons for the dismal performance of Maharashtra’s irrigation sector. This article focuses only on rule of law because its operative details are generally not reported and discussed even if water conflicts of all types (see box: 'Water conflicts') are increasing both in numbers and severity at all levels within the state. Drought has only further worsened the situation.

Processes matter

Maharashtra has enacted several irrigation Acts (see box: 'Irrigation acts in force') to provide for various aspects of canal irrigation like construction, O&M, M&R, PIM, water tariff, compensation and, most important of all, control of water theft and unauthorised irrigation. It is needless to emphasize that all these processes are of vital importance to achieve the objectives of successful irrigation. The non-implementation of irrigation Acts means non-implementation of those processes too. That’s what has actually happened in Maharashtra. Failure to scrupulously adhere to the inherent processes has led to ad hoc decisions. Complete anarchy is the end result. It is, in fact, the genesis of the irrigation scam. The scam, in turn, has significantly contributed to virtually inviting the drought. Inordinate delays in completing irrigation projects and cultivation of sugarcane in drought-hit tanker-fed areas perhaps explain the unfortunate phenomenon.

The parent Act

Maharashtra Irrigation Act of 1976 (MIA 76) is a parent Act because it provides for foundation, frame and structure of water management in the State. Irrigation Development Corporation Acts (IDC), Maharashtra Management of Irrigation Systems by Farmers Act (MMISF) and Maharashtra Water Resources Regulatory Authority (MWRRA) Act (See box: 'Irrigation Acts in force') take it for granted that MIA 76 is in force and refer to the same time and again. It is hence needless to say that the implementation of IDC, MMISF and MWRRA Acts heavily depends upon the implementation of MIA 76. Let us examine some details – first in theory and then in practice.

1. Preparation of Rules (Section 114) to provide for the operative part of the Act and give details of day to day implementation of the Act.
2. Issuance of River (and its tributaries) Notification (Sec 11) to bring river water under the legal jurisdiction of Water Resources Department (WRD).
3. Issuance of Command Notification (Sec 3) to legally intimate the beneficiaries that Act and Rules of WRD shall be applicable in the notified command area.
4. Issuance of Notification regarding appointment of canal officers (Sec 8) to specify their jurisdiction
5. Allotment of Duties to canal officers (Section 10) and their empowerment through delegation of powers to them under Sec 110

A serious and in-depth review of the actual implementation of MIA76, however, would reveal the following failures which are inconsistent with the progressive image of Maharashtra:

1. Rules of MIA76 have not been prepared in the past 37 years from the time of enactment of the law. The Old Rules, namely Bombay Canal Rules, 1934, and Central Provinces and Berar [CPand B] Rules are still being followed. These old rules are based on old Acts, namely Bombay Irrigation Act, 1879 and CP and B Act respectively. Old rules are, of course, not compatible with MIA76 as water management practices have naturally changed tremendously with time. The old Acts have been repealed by MIA76 way back in 1976. Not having the rules of MIA76 is the single most serious crime against water management in the state. It makes irrigation in Maharashtra vulnerable in many respects. An unprecedented legal crisis appears to be in the offing.
2. Legal procedure regarding issuance of notifications with respect to rivers, commands, appointment of canal officers and delegation of powers is also reportedly not complete in many irrigation projects in the state. The magnitude of incompleteness can only be known if the Water Resources Department releases a white paper on the subject.
3. The absence of rules and pending notifications has obviously taken its toll. In absence of rule of law, a “free for all” situation exists in the state. Bandobast or Jugad (improvisation) has superseded efficient and equitable water management. Conveyance losses have crossed generally accepted limits. Theft of water has become a rule in itself. Those who somehow get water seldom get it in time and in required quantity. Regular and timely canal maintenance is conspicuous by its absence. Arrears of water tariff are increasing. Diversion of water from irrigation to non-irrigation has increased. The situation is alarming. It is in fact explosive and could probably trigger the proverbial “third world war on issues related to water”.

1. Integrated State Water Plan [ISWP] was supposed to be ready within six months from the date of enactment of MWRRA Act. However it is not ready even after eight years. In the meantime, MWRR authority is taking far-reaching decisions which are supposed to be taken within the framework of the ISWP.
2. The State Water Board (chairperson – chief secretary) and State Water Council (chairperson – chief minister) were constituted way back in 2005 through notifications in the official gazette as per MWRRA Act. But even after eight years, both the board and council have yet to officially begin their “historic” work. Not even a single meeting has been held so far.
3. The proposed Lift Irrigation Water Users Association has not been formed as per the MMISF Act even after eight years.
4. Non-profit Society for Promoting Participative Ecosystem Management (SOPPECOM) and Lokabhimukh Pani Dhoran Sangharsh Manch, a coalition of groups working for water rights in the state, have on several occasions pointed out that water users' associations (WUA) mostly exists only on paper. They have demanded joint inspection of WUAs. There has been no response from the authorities.
5. MWRRA is not functioning like an independent regulatory authority. In the context of drought, in general, and release of water for Jayakwadi project from upstream reservoirs, in particular, MWRRA - the so called first independent regulatory authority in India’s water sector—has been a silent spectator for all practical purposes.

Water governance

In view of above facts it is clear that there is hardly any water governance in Maharashtra’s irrigation sector. There is an urgent need to go back to basics. Things need to be streamlined and disciplined on war footing in the larger interests of the water sector. Equitable distribution, efficient use of water and resolution of water conflicts demand rule of law. Vested interests obviously do not want it. Will civil society act and act decisively and fast?

Pradeep Purandare was associate professor, irrigation management, at Water And Land Management Institute in Aurangabad till 2011