In the absence of norms, political expediency becomes the norm for water transfers
Obviously, we need to privilege the water needs of those within the basin over 'outsiders'. However, it is not as simple as it looks, and it needs a more nuanced understanding of the complex and layered issues involved.
Should a community have control or full right over the entire water that flows through its area? This question can be posed at different levels: like at that of a micro-watershed, a sub-basin, a basin and so on. This implicates our view of rights, and one could say that all communities—irrespective of the scale of the unit—should have a right to utilise as much of the water resource as they can to fulfil their livelihood needs. But this also means that water use beyond fulfilment of livelihood needs does not form part of this right and moreover cannot be at the cost of the livelihood of others. This viewpoint is closely related to the view that water is both a local and non-local resource.
How to determine fair share
Water rights—allocations as well as transfers—depend on our approach to water as property. Water should be seen as a social, common property as distinct from state property, and the state as a trustee of that property. As a trustee, it is the duty of the state to ensure access to a fair share of that water for reasonable use to every citizen as a right. An integrated approach suggests that citizens have the right to water use (and not ownership over water), subject to the concepts of fair share and reasonable use. The main problem lies in determining what a fair share is and what constitutes reasonable use. There are two aspects to this: the norms that govern the determination of needs and the process through which they shall be determined.
With respect to norms for regional water use, water allocation in proportion to the livelihood needs of the population in the region should be the starting point to determine what is a fair share. We also need to take into account priorities of water use: the order of priority should be drinking water (including water for cattle and domestic use), environmental needs and livelihood needs, in that order. All other needs come later and the sectoral priority between surplus agricultural production, industry, tourism could depend on the particular character of a region. This means that unless domestic, environmental and livelihood water needs of a basin are satisfied, no water should be transferred outside. In many states in India, there are sub-basins not able to meet these three critical needs of their population and would need supplemental intra-basin transfers to fulfill them and these should be given priority.
The stumbling block
The principle of prior appropriation or first user cannot be used to jeopardise the right of the sub-basin or basin communities to reasonable use of water. It cannot be a license to continue wasteful and unsustainable water use patterns for surpluses and depriving other communities from their rightful needs. In fact, prior appropriation and prior rights very often freezes the inequitable access to water between as well within regions. Many established water use patterns that lie behind the rhetoric of prior appropriation need to be critiqued with the lens of reasonable use tied to livelihood needs. However, the type of intra-state transfers that is taking place presently is not based on such an understanding. The core issue here is the absence of clear-cut norms of equitable water allocation and distribution, and in the absence of such norms, political expediency becomes the norm for water transfers.
K J Joy and Suhas Paranjape are senior fellows with the Society for Promoting Participative Ecosystem Management (SOPPECOM), a non-profit based in Pune. They are also part of the Forum for Policy Dialogue on Water Conflicts in India
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