AS PART OF ‘POLICY CHALLENGES – 2019-2024: THE BIG POLICY QUESTIONS FOR THE NEW GOVERNMENT AND POSSIBLE PATHWAYS’
CPR WATER RESEARCH
By Srinivas Chokkakula
Interstate rivers and national water security
India’s 29 states and 7 UTs (Union Territories) share its 20 major river basins. This simple framing presents how India’s water security is embedded in a canvas of deeply-interdependent interstate hydrogeographies. India’s water security is defined and determined by how its interstate rivers are governed.
The state of policy and institutional set up for interstate river water governance does not inspire confidence though. Interstate river water disputes emerge and recur frequently. Their adjudication incurs long delays, marked by adversarial litigations. States often defy judicial directives from either the tribunals or the Supreme Court, leading to constitutional crisis. Implementation of the tribunal awards/decisions suffers from an acute absence of reliable interstate institutional models/mechanisms. Each escalation or recurrence of disputes incur huge costs to the economy. Antagonistic politics and politicization characterize interstate river water relations.1 On the other hand, implementation of interstate river development projects and rejuvenation programmes too, are impaired by the larger void of a robust interstate coordination or collaboration ecosystem.
The history of interstate river water governance of India partly explains this state of affairs. Since independence, it has been that of exigency-driven contingent responses. The policy ecosystem is primarily set to respond to the exigencies of conflicts and remained oblivious to the idea of interstate cooperation. There is practically no ecosystem for interstate coordination and collaboration over river waters. A simple fact extends support to this assessment. The Interstate (River) Water Disputes Act 1956, for resolving interstate river water disputes, has been amended at least a dozen times. Yet another amendment bill has been tabled before the Parliament in 2018. In contract, the River Boards Act 1956, enacted at the same time as the former and meant to enable interstate collaboration has never been touched since its inception. Further, it has never been used to create any boards, not even once! For some inexplicable reason, the river boards so far created draw on alternative and ad-hoc channels – either of notifications of the government, or state-bifurcation laws, or sometimes through separate acts of Parliament. The act has remained untouched even when it was found unusable for the purpose it was intended for.
The constitutional division of powers with respect to water, and its practice is the other reason. The subject of water is listed under the Entry 17 of the State List. This however is subject to the Entry 56 of the Union List pertaining to the regulation and development of interstate rivers.2 In the initial years of single party dominance, the negligence of carving its role definitively – some called it, “wilful abdication of its role” – has led to the states assuming unfettered and exclusive powers over water governance.
This trajectory of evolution has contributed to the entrenchment of territorialized perceptions and competitive approaches of states towards water resource development. This has been aided generally by the transformation of Indian state and polity over the years. The initial single party dominance has given in coalitional politics giving greater room for subregionalism and territorial assertion of states.
An outcome of this for the centre-state relations over water governance is the increasing resistance of states to any attempt of the centre’s assertion of its role under the Entry 56, over interstate river water governance. Central institutions like CWC and CGWB are perceived increasingly irrelevant. States pursue their respective territorial visions of water resource development with little or no appreciation for the cumulative impact, with adverse implications to national water security.
Ambitious plans and ambiguous foundations
Several practical reasons necessitate this revisiting of interstate river water governance with particular focus on centre-state relations. The country has set itself ambitious plans for greater economic growth and these depend on strong and reliable interstate river water cooperation. These plans have both development and conservation goals. The development projects are not just the conventional supply augmentation, but also include inland waterways. The proposed inland waterways over 105 national waterways poses new challenges for interstate river water governance.3 The interlinking of rivers, though much contested, has received patronage from consecutive governments – yet could not make much headway due to, partly the hurdles of interstate coordination.
The flagship programme of Ganga rejuvenation is a response to the intensely stressed river ecosystems. It has received unprecedented attention and investments. Yet the ‘blind spot’ with respect to the tenuous centre-state and interstate relations remains an unaddressed challenge. This centre’s fully-funded programme may effect some temporary impact. But sustaining it over longer term will require a deeper institutionalization of the programme among the states, in addition to closer interstate coordination and collaboration.
The vital shift towards Integrated Water Resource Management (IWRM) mooted by the National Water Policy 2012 will itself require a consensus among states. An articulation of national policy simply will not achieve states’ compliance. The historical geographies of uneven water resource development among states will warrant deliberating over the tradeoffs in shifting to IWRM. The shift has to be led by the centre with the consent of the states.
Above all, there are new challenges of climate change linked risks. This big unknown adds to the challenges of interstate coordination with its uncertainties over space as well as time. Interstate collaboration and cooperation is central to coping with the risk of disasters such as floods.
Shift focus to enabling cooperation
In order to realize the development goals of these ambitious projects, and in the interest of longer term water security, the government has to begin proactively engaging with the challenge of interstate river water governance. This requires a fundamental strategic shift, away from the current reliance on conflict resolution, and make deliberate efforts to enable and nurture an ecosystem for interstate river water cooperation. Such an ecosystem is useful for disputes resolution as well in essential terms. Interstate river water disputes resolution often fails because there are no reliable mechanisms for implementing the tribunal awards or decisions. It can only be possible when the party states collectively contribute to “giving effect” to the decisions. Thus, interstate river water cooperation ecosystem is a necessary condition for effective conflict resolution.
This intricate link in fact accentuates the emerging understanding about the nature of transboundary relationship when rivers are shared between territorial entities. The binary of either conflict or cooperation is a flawed premise to address the challenges of transboundary river sharing. Instead it is increasingly evident that the complex political ecology of transboundary river water sharing constitutes a coexistence of conflict and cooperation.4 The design of policy and institutional solutions has to acknowledge this character, and cannot rely on legal instruments alone. It has to be supplemented with other elements of ecosystem: policy, institutions, and politics.
First, there has to be clearly articulated policy intent. The National Water Policy has to declare that creating and nurturing an ecosystem for interstate river water cooperation as one of its priorities, and enunciate specific steps towards setting the process in motion.
Second, politics have to make the policy reforms possible. In view of the historical evolution of centre-state-water relations in practice, the policy and institutional reforms for interstate cooperation will have to build on a political consensus for setting out on this path. At the core of this consensus will be how the centre has to (re)position itself. The political process has to aim at redefining the centre’s role under the Entry 56 of the Union List, considering the emerging challenges of interstate river water governance. This does not mean reorganizing the constitutional division of powers, which will likely to face vehement resistance from states. Instead, the goal will be to redefine the existing centre-state division of powers in terms of functional and operational responsibilities required to pursue the ambitious plans and programmes. In other words, the water agenda has to be elevated for a federal consensus, say, along the lines of the GST reforms.
The idea of building federal consensus for water reforms is not entirely new. The need for such political process and forum was felt before as well. For instance, the National Water Resources Council has been created under the aegis of the Ministry of Water Resources. The National Development Council is another forum for such federal deliberations. These forums failed to deliver for variety of reasons. A key reason is their failure to assuage states about their neutrality and objectivity in enabling deliberations; these are perceived as politically-subjective and serving the agendas of the particular political regimes in power.
The Interstate Council may be nurtured as an institutional space for these federal deliberations. The constitution provides for the Interstate Council, for the specific purpose of interstate coordination. Yet this vision for the Council has been lost for inexplicable reasons. This crucial federal forum has been neglected, and undermined due to its ill-conceived purpose and location. The Interstate Council has been ill-conceived as a department of the executive – a politically subjective space. Instead, it should have been conceived and cultivated as an institution at par with other institutions serving key constitutional functions for deliberative democracy.
The Article 263 providing for Interstate Council incidentally follows the peculiar Article 262 providing for barring the jurisdiction of the Supreme Court. The constitutional framers were conscious of the limitations of the courts in addressing challenges posed by interstate river water disputes; and, that a robust deliberative process is essential for their resolution. The success stories of water reforms in other comparable federal contexts are often celebrated, say from Germany or Australia. Central to these success stories is a strong institution offering a space for federal deliberations: the LAWA (Working Group of the Federal States) in Germany, or the COAG (Council of Australian Governments) in Australia. The Interstate Council has to serve a similar function to pursue the proposed reforms. Just as these deliberative spaces, the Interstate Council can be a permanent deliberative forums to take forward reforms. The Council’s scope however may not be restricted to water resources alone, but can have working groups for different sectors serving the purpose of interstate coordination.
The third element is to develop strong and resilient institutional models for interstate coordination, or compliance or collaboration – primarily to give effect to any interstate project, programme or agreement. A River Basin Management Bill 2018 has been proposed, replacing the River Boards Act 1956, for the purpose. But it assumes that centrally driven river basin authorities can serve these functions. Some states have already resisted this conception. It is unlikely these authorities will be effective without a consensus about the functional roles of the centre and states, and the operational domain of river basin authorities. The bill does not build on such a consensus; instead assumes that including representations from states is sufficient to make the institutions work. River Basin Authorities or any other form of interstate institutional models need to emerge from, and build upon the contours of the respective functional spaces emerging from the federal consensus. An enduring and empowered deliberative forum, such as the Interstate Council will enable such consensus building and evolution of collaborative solutions.
The fourth is pursuing an effective strategy for interstate river water disputes resolution. It requires a course correction. A historical understanding of the unusual approach – of barring courts’ jurisdiction and setting up tribunals for adjudication – reveals that these arrangements were conceived with an intent of ensuring finality to the resolution, and in a swift manner. Deliberative approaches were integral to tribunals’ adjudication of the disputes. This was the approach used by the first generation of tribunals, constituted for Krishna, Godavari and Narmada disputes. Over time, the subsequent amendments to the act have turned tribunals into courts and increasingly relying on adversarial litigations. This is one of the reasons for extended delays in giving away awards. The recent decision of the Supreme Court modifying the Cauvery tribunal award is just another instance of this trend. Extending Supreme Court’s jurisdiction opens up additional layers of judicial litigation. The processes of adjudication by tribunals needs to be reviewed, with due attention to courts’ limitations in addressing interstate river water disputes. It has to consider strengthening the adjudication with deeper integration of deliberative processes, and building on the cooperation ecosystem. The Interstate River Water Disputes amendment bill 2018 proposing a Permanent Tribunal has made a feeble attempt to incorporate this element, while continuing with the adversarial character of tribunals’ functioning. A Disputes Resolution Committee has been proposed, to attempt resolution through mediation. Its proposed composition does not inspire confidence though.
Other pieces as part of CPR’s policy document, ‘Policy Challenges – 2019-2024’ can be accessed below:
1 To illustrate, the Supreme Court is currently deliberating on the suit filed by the Tamil Nadu for a compensation of Rs 25,000 crore for crop losses due to alleged failure of Karnataka to release Cauvery waters in time in just one season.
2 This was the basis for enacting the River Boards Act 1956.
3 The National Waterways Act 2016
4 Mirumachi N (2015) Transboundary water politics in the developing world. Routledge, Oxon