People and environments are missing
The seven principles that are supposed to
govern the bill (a) Participation; b) co-operation; c) equitable and
sustainable utilization of water; d) conjunctive management of water; e)
integrated management; f) water is a common pool state owned resource to ensure
food security, support livelihoods, sustainable and equitable use; g) demand management
by efficient use of water to avoid wastage) as stated in the proposed bill
would have been laudable and deserving of appreciation; however none of them
speak about the people in the concerned river basin and do not take explicit
account of environmental needs and this fact vitiates their meaning and renders
them inoperative and unacceptable. For example participation is in the context
of basin states to develop, manage and regulate interstate waters; or
co-operation is referred to in the context of national interest and for mutual
benefits to the states or conjunctive use or integrated management or other
principles, but nowhere do the needs and requirements of fulfilling the needs
of the people and the flora fauna of the concerned river basins acquire central
place. In fact, underlying the draft is an old-school governance attitude that
does not sit well with the modern multi-stakeholder bottoms up approach that is
essential for good governance.
No norms for water sharing and distribution, within as well
as across states
Similarly, the bill does not tackle the
most contentious issue of how to share the waters between and within states.
The river basin master plan could have become a powerful tool to lay out
norms and criteria for sharing of inter-state waters, and specifying
participative and bottom up processes of governance to develop, implement and
monitor that plan. By not doing this the bill reduces the master plan to an
ineffective wish list. Moreover, it completely ignores the various basin level institutions that the individual
states have already put up and the existing arrangements. It could be well
argued that the companion water sharing policy note would supplement the bill,
but that policy itself needs to be grounded within this bill by providing it
with the necessary norms and institutional structures.
An associated weakness is that it does not
even lay out any criteria for equitable sharing of water and participative and bottom up processes of
governance to develop, implement and monitor such sharing arrangements within
the basin either. Because the principles and criteria for water priorities
and allocations of different users are clearly laid out, all the verbal
commitments to equity, sustainability, ensuring food security elsewhere in the
bill are rendered ineffective and become lipservice.
Mishandles centre-state balances and inter-state matters
The bill vests the power of demarcating and
establishing a River basin authority with the Central government and it can do
this with a unilateral central notification. This sweeping provision eliminates
the role of the states in what is otherwise a state subject.
Moreover, as pointed out earlier, the Bill
does not say anything on how or whether existing river basin corporations
already formed within different states for inter-state rivers would be
integrated within the proposed legal framework. At present there are several
tribunals and awards on different interstate rivers but the proposed bill does
not take any cognizance of these existing water sharing arrangements. Would the
proposed RBAs could be preparing River basin plans ab novo or on the basis of
the current, often non sustainable and inequitable, water allocations? None of
this is clear. By allowing for participation of states in the Governing Council
and the executive board, the bill sanguinely hopes for consensus on a single river basin master plan that will
also be implemented. It is unlikely that co-basin states would be able to
evolve a consensus on a river basin master plan in this manner.
Weak in its commitment to principles
At the root of this is a basic flaw that
runs through the bill. While it is liberal in enunciating, using and referring
to laudable principles, there it very little commitment to making them work and
providing them with legal backing so that they would have the necessary teeth.
It does not create any legal bindings through its use of these principles. For
example equity and sustainability are mentioned as principles, but there is no
attempt to provide a legal definition of what they mean within the act, nor are
there any specific criteria laid out for their assessment. On top of this is
the timidity to switch to recommendatory phrases instead of legal bindings. For
example, conjunctive management of surface and ground water is a stated
principle, but it is only recommendatory in nature and so is integrated
management, and in both cases the states are to “make their best
efforts“ to do so. This is bad law
as well as bad policy.
It is sad to see such an important bill so
badly drafted. As such the present draft is entirely unacceptable to us and
will need to be suitably redrafted in its entirety by bringing the people who
occupy them and the ecosystems that comprise them as central to the objectives
as well as the means of achieving those objectives, taking note of the ground
situation in respect of inter-state matters, and with a firm commitment to
create legal binding to the principles that it enunciates and recommends. We
demand that the draft be thrown out in its entirety and an alternative draft
prepared allowing wider consultation allowing sufficient time to evolve
consensus and ensure commitment to core principles in terms of legal bindings.
We would emphasise that a bad draft that hurriedly tries to address the legal
gap the bill tries to fill is worse than letting the gap lie as it is.
Lokabhimukh Pani Dhoran Sangharsha Manch