Debate: Should water be brought under Centre's control to settle inter-state disputes?

Sushmita Sengupta curates a debate among India's top water policy experts

By Sushmita Sengupta
Published: Thursday 30 June 2016

Against the spirit of decentralisation

The rationale for shifting water from the Concurrent to the Central List of the Constitution is that this will help the Centre to deal with inter-state water disputes better. But this may not be the case. First, this is against the spirit of decentralisation. Second, most of the states would not agree as this would be seen as taking away their powers. Third, the Centre already has powers to effectively intervene in inter-state water issues and disputes through the Interstate River Water Disputes Act, 1956 (IRWD Act) and the River Boards Act, 1956. Our experience with water tribunals has been dismal, and governments have never made serious attempts to implement the River Boards Act for political reasons. There is a need to revisit both these acts to ascertain whether we can streamline them and make them more effective.

If water is moved to the Central List, then the ambitious project of river interlinking will become easier. In fact, this is one of the primary reasons for pushing this agenda. The so-called “surplus” states are already up in arms against the interlinking project. So shifting water to the Central List would give more powers to the Centre to push this agenda, which in any case will not solve the problem of water scarcity.
Shifting water to the Central List will become essential

Water is not a commodity to be handled at the local level. It is a complex subject, as someone knowingly or unknowingly can use somebody else’s water. It should be handled in a manner as recommended in the National Water Policy. The approach should be at the basin level.

Shifting water to the Central List will become essential in the long run. No doubt, solutions can be local, but the implications will be at basin level only. It is time to think of demand management, rather than source exploitation.

Every time there is a dispute among the states, a tribunal is constituted. Our aim should be to avoid setting up tribunals. If you create basin boards, then we can avoid conflicts between states. States should have a clear understanding about their share of water. There are scientific tools available to quantify resource availability; to measure how much of it is surface water; and, how much is groundwater. Even environmental flows can be quantified. A demand agreement can be worked upon.

Once water comes under the Central List, the pollution problem can be tackled easily.

We need to legislate for this.

We need to ensure that the river water is clean before it leaves a certain state and enters another state. An adequate observational approach needs to be put in place, which can be done by the Union government.
Water is a common heritage

The need for local regulation of water has become more pertinent since groundwater extraction has increased significantly since the Constitution was adopted. Cooperation among states has become paramount since water needs to be addressed simultaneously, both at the local and global levels. This implies that the State—whether at the level of panchayats, state or Union level—cannot assert ownership or exclusive control over water because its regulation needs to take into account its multiple functions at multiple levels. Ultimately, water needs to be seen as a common heritage. At the same time, the fact that water is a state subject does mean that the Union government has no role to play; it needs to be a subsidiary. The Waterways Act, 2016, is an assertion of this centralisation, and this can be done within the existing constitutional framework—a number of rivers have already been given the “national” tag.

The real issue is how to resolve conflicts arising over allocation of water to different uses. One of the shortcomings of the River Boards Act is that it does not offer a framework to solve disputes. So each water tribunal has to adjudicate without any legal framework. This explains, in part, the length of the proceedings and the difficulty in getting awards implemented.
Against the grain

The proponents of this line of thinking, base their argument on the following: the difficulty in the resolution of longstanding inter-state water conflicts under the existing scheme of things and the present practice of states, being non-uniform, discourages a national consensus on water-sharing principles, and a shared national concern for conservation, and equitable use.

This argument flies in the face of certain systemic aberrations, institutional incapacities and conceptual problems inherent in legal formulations.

Much has been written about the Constitutional difficulties in making the law work effectively in relation to resolution of inter-state water conflicts. The reference is obviously to the Inter-State Water Disputes Act, 1956. This has, indeed, been used as a handle for strengthening the arguments on centralisation of law-making power with the Union. There is hardly any concrete evidence available to demonstrate, in very clear terms, that such a route is more desirable and effective than trusting the states in that regard.

The problem is, essentially, the attitude of the central bureaucracy. A message attempted to be conveyed through this is that the Centre has the monopoly of wisdom, vision and direction for better management of resources. This, if not anything else, is undemocratic and against the grain of the Constitutional evolution leading to decentralisation of not just political power, but in the management of resources as well, ushered through the 73rd and 74th Amendements.
It will push privatisation

Shifting water to the Central List will not solve inter-state water disputes, such as the Mullaperiyar water dispute. In longstanding issues like the Mullaperiyar, the judgement of the Supreme Court and legal recourse taken by Kerala is binding, even if water is shifted to Central List. The solution lies in a combined strategy of local water harvesting, improving irrigation efficiency and ecosystem-based river basin planning for Tamil Nadu. As for Kerala, the river Periyar has lost much of its flows due to dams and diversions, which were built after the Mullaperiyar dam. It is presently struggling to reach the sea. The changed circumstances over the last 120 years since the Mullaperiyar dam was built compel us to take a holistic approach towards resolving inter-state water disputes.

Importantly, it is suspected that such a move by the Centre is to provide legality to the interlinking of rivers and push for privatisation of waterbodies.

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