Arrange again

What water managers know could rejuvenate the law on resolving water-related conflicts

Last Updated: Sunday 28 June 2015

Arrange again

Is it time for Union minister of water resources Arjun Charan Sethi to pay heed to traditional methods to resolve disputes? Out of India's 18 major rivers, 17 are inter-state rivers. All are embroiled in conflicts over sharing of water. In no case is a solution visible. Sethi admits that the search for solutions to such disputes has exhausted all sources. "If we can't solve the water disputes among states the central government will create a centralised agency that will take over all disputes," he recently said.

Alternatively, he could turn to water managers. "As the literature on international water negotiations continues to grow, one resource of expertise remains untapped - that of indigenous population," says Aaron T Wolf, a professor of geography in the department of geosciences at Oregon State University, USA, and has been working on indigenous ways of conflict resolution and their relevance to contemporary conflicts. Videh Upadhyay, a Delhi-based lawyer, explains how the expertise should be tapped: "These customary practices and unwritten codes of dispute resolution have to be validated into formal law, so that we can draw lessons from these."

What water managers know, and practice, possesses four principles that could inject much-needed energy into the ongoing, urgent - even desperate - work of resolving water-related conflicts.

Don't allocate by volume of water. Allocate time. This method allows for local management of a fluctuating supply without even creating a storage structure - such as a dam - at the local level. Existing water agreements between states go by quantity of water. It creates a difficult situation, when the flow of water is less but states downstream place a demand for the agreed amount.

Plan the priority of local uses before embarking on water distribution. This is very helpful in times of scarcity. In the traditional practices, in a time of scarcity, traditional managers quantified water availability and the demands. Accordingly they suggested a cropping pattern change and per capita water availability in the gram sabha. In inter-state water disputes, there is no such provision; there is no way to institutionally respond to such circumstances

Strong mechanism for equitable downstream and minority rights. This is the most important. Depending on local topography and needs, water distribution always starts from the downstream to the upstream, but without any inequality in water allocation. The existing agreements don't have provision for such kind of resolution, again because quantity of water is the basis for water distribution. Also, no contemporary assessment of water needs has been done to guide water distribution in an equitable way

Alternative dispute resolution mechanisms. In the Indian federal structure, water disputes can only by resolved by tribunals, after parliamentary approval. Tribunals take time and usually operate in fixed terms, leaving little scope for innovation.

But in India today
Rivers are managed in terms of colonial agreements. The codes laid down between the British government and princely states were dictated more by political and military needs, making for inflexible laws. These laws - and so the entire institutional edifice - fail to respond to the circumstantial needs of the present. Independence hasn't led to institutional innovation. In India no state has been given an entirely free hand in respect of a common source of water, such as an inter-state river. Under the Government of India Act, 1935 even though water supplies, irrigation canals, drainage and embankments come in the state list, Section 130 to 132 of the Act imposes certain limitations on the provinces in the use of inter-state river waters. These limitations still apply, via a constitutional provision that debars a co-riparian state from developing an inter-state river, regardless of the harm to other co-riparian states. In addition, Article 262 of the Constitution empowers Parliament to provide for "the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley". Article 262 (2) of the Constitution lays down that all inter-state water disputes are to be resolved through special tribunals through Inter State Water Disputes Act of 1956.

Problem is, these tribunals have hardly stood the test of time. They don't deal with community needs. They are bad at dispute resolution. For example the Krishna water dispute, or the Cauvery spat of 13 years, have not been resolved, as also the Punjab-Haryana conflict. Indeed, disputes stretching back to imperial times are still on.

Cauvery, for example
Consider the legal cauldron the Cauvery dispute is still cooking in. The Cauvery treaty is governed by an imperial treaty signed in 1924. It entitled Tamil Nadu to get 60 per cent share over the river's waters. At that time Tamil Nadu was under colonial rule and Karnataka, a princely state. The latter had to honour this unfair treaty, which still governs Cauvery water use. So every year, with irrigation demand growing at about five per cent in upstream Karnataka, the states fight over water share.

Isn't it is an irony that India has not paid heed to its many decentralised forms of water dispute resolution? "If water management is entrusted to the state there will be no community control but political manipulative biases and endemic unfairness. We have, therefore, not just to look at distribution of water between states but at people's own community based systems, which has a lot to teach us," says lawyer Rajiv Dhawan. This could be why the Cauvery or the Krishna have become major political issues.

Three doctrines
Three doctrines govern inter-state water disputes worldwide. The first gives the upper riparian state the right to use water as it feels within its territory. In the Cauvery dispute, Karnataka, though an upper riparian state, does not have this right, thanks to agreements made in 1892 and 1924. However, all parties concerned ask for this right. The second entitles the lower riparian state to receive the natural flow, and prohibits the upper riparian from stopping water altogether except for drinking purposes. Tamil Nadu demands this (and to some extent also receives, by agreement). The third doctrine is called 'equitable apportionment'. Both Karnataka and Tamil Nadu have to balance their respective demands without affecting the river's flow.

India adopts the 'equitable apportionment' formula to resolve inter-state conflicts. This formula is motored by the principle of equitability, and not equality. It is the most widely used principle in the US and UK. It gives the maximum benefit accruing to all the riparian states of the river, keeping in view the economic and social needs of different riparian states. The convention on the non-navigational uses of international watercourses, adopted in 1997 by the UN General Assembly, also highlights this as one of the important principles for joint management of such watercourses.

A problem with this principle is that it is not dynamic and practical (see box: How effective...?). It is difficult to evolve a way to determine the equitable share of each riparian state, in a way that applies to all cases or situations. In the Cauvery dispute, for example, Tamil Nadu got a bigger share of water because in colonial times it was a leading irrigated state. In Karnataka, irrigation developed later. Now when it demands more water, there is no way the right can be settled.

It is more than 30 years that governments, including the Union government, have been trying to quantify the water demand of the two states. Last year, a bad monsoon resulted in less flow in the river. The dispute took a violent turn. Farmers committed suicide in Karnataka, protesting against release of water to Tamil Nadu. In all this while, villages with strong traditional managers smoothly sailed over the water scarcity without any conflicts.

The problems of each state and river are unique and a solution in one case may not be feasible in another. Working out an equitable share of each basin state requires an analysis of complex technical and economic data, and the judicious balancing of conflicting claims on, and uses of, the river. Further, the demand for water in states occurs differentially - the cropping season, or the kind of crops grown, may be different. The quantum of drinking water needs, too, may be different. The present mechanism, and so the agencies evolved to solve such disputes, is unable to address this circumstance.

Traditional practices, on the other hand, are responsive to precisely such situations. It is inherent in the institutional character of such practices. The gram sabha prescribes strict water use, on advice from the water manager. Being a decision enforced through consensus, everybody adheres to it.

"Equitable apportionment based on 'macro-needs' as applied to inter-state basins is a different concept. It is distinct from equitable allocation of water between and within villages. But both these concepts must intersect to incorporate justice. Water must be looked at as a community asset," says Dhawan.

This is precisely where traditional practices become relevant. "They are unique and give power to the powerless. Based on equity principles, they give priority to the disadvantaged communities. These community systems are genuinely 'sarvajanik'," says Dhawan. "If these institutions are revived and an attempt is made to build them up - starting from the minor head level, to the distributary level, and on to project basin level - water disputes can be easily resolved. It is important to build up this organisational chain," says Bhogle of WALMI.

In fact the Dhan Foundation is organising association of the traditional managers from village to district level. From the March 10 convention of the traditional managers, many associations have been formed in Tamil Nadu and Andhra Pradesh. "The most important lesson is to incorporate the principles of these practices into inter-state disputes," Addhinarayanan says.

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