India's policy on sharing of river water resources needs to be redrawn on the basis of the United Nations Convention on the Law of Non-navigated Uses of International Water Courses, 1977 and the South African model.
MAHATMA GANDHI said that the earth has enough to meet the needs of everyone, but not for their greed. This is certainly true of water. It is estimated that the total fresh water available in India annually is sufficient for both irrigation and drinking purposes. But the problem lies in wastage and faulty distribution. The updated draft of the National Water Policy estimates the total precipitation in the country at around 400 million hectare metres. Of this, the surface water availability is about 187 million hectare metres. About 50 per cent of this cannot be put to use because of topographical and other constraints. Floods and drought affect vast areas in the country, transcending State boundaries. A third of the country is drought-prone. Floods affect on an average around nine million hectares a year. The area susceptible to floods is around 40 million hectares.
Between 1950 and 1977, 288 major and 938 medium irrigation projects were completed. Many projects have spilled over to the Ninth Five Year Plan, with a spillover cost of Rs. 68,044 crores. At the end of the Eighth Plan period 32.96 million hectares of land had been brought under irrigation, against a target of 58 million hectares.
The National Water Policy was adopted by Parliament in 1986 and the guidelines to implement it are still under discussion. The policy, in its present form, lacks teeth. River water tribunals take on an average between 10 and 20 years to deliver their awards, and there is no guarantee that the awards will be implemented. In many cases the awards are actually reopened.
A negative fallout of the present model of water resource development has been the emergence of regional imbalances, and this, I believe, cannot be corrected unless there is an overall framework for water resource management. In relation to the Draft Water Policy, there are three major areas in which the States have serious reservations. The first is in the setting up of a River Basin Authority with statutory powers. Second, the proposed guidelines for the allocation of the waters of inter-State rivers among the basin States are discriminatory. Third, the States are unhappy that the Centre is trying to take control of the rivers and other water resources.
The National Water Policy and Guidelines are seen as having been drafted with a view to accommodating the narrow interests of a few privileged States. The guidelines will have no impact either on disputes pending decision, such as the Cavuery dispute, or any other dispute past or future.
In this context, South Africa's experience in resolving the issue of water resource management and distribution is instructive. South Africa's White Paper on Water Policy (April 1997) is an impressive document in which the water needs of every citizen are seen as a human right, while the tasks of distribution and management of water are raised to the level of a public trust. Indian policy-makers, political thinkers, social activists, non-governmental organisations (NGOs) and so on will do well to make a serious study of this document.
THE White Paper on Water Policy approved by the South African Cabinet on April 30,1997, represents an important stage in the review and reform of the water law in South Africa. The Water Policy was incorporated as a Bill of Rights in the Constitution of South Africa. The core theme of the Bill embodies the national value of reconciliation, reconstruction and development so that water is shared on an equitable basis, the needs of people without access to water in their daily lives are met, the productive use of water in the economy is encouraged, and the environment which provides water and sustains life and the economy is protected. The key principles underlying South Africa's water policy are:
1. The nation's water resources are an indivisible national asset;
2. The national government will act as the custodian of the nation's water resources and it will exercise its powers as a public trust;
3. All water in the water cycle, whether on land, underground or in surface channels, falling on, flowing through or infiltrating between such systems, will be treated as part of the common resource, and the extent required to meet the broad objectives of water resource management will be subject to common approaches;
4. Only that amount of water required to meet the basic human needs and maintain environmental sustainability will be guaranteed as a right;
5. The system of allocation must promote use that is optimal for the achievement of equitable and sustainable economic and social development;
6. The policy must promote equitable access to water for the disadvantaged groups for productive purposes such as agriculture; and
7. All major water user sectors must develop a water use policy. Conservation and protection policies and regulations will be introduced to ensure compliance with the policy in key areas.
It will be seen that here the principle of equity is central to the water law reform process and special attention has been given to addressing the needs of those who were historically denied access to water or the economic benefits of water.
INDIA shares many historical commonalities with South Africa. Both countries have a legacy of colonial rule. Water was mostly used by a dominant group, which had privileged access to land and economic power. In India the privilege of access to water was substantially ensured to those States that were ruled directly by the British as against the princely states, which were ruled by the vassals of the British. In post-Independence India the judiciary and the executive were inclined to approve the status quo, which was sustained by inequitable conventions.
India needs a thorough review of its water policy on the lines of the South African model and the United Nations Convention on the Law of Non-navigated Uses of International Water Courses, held in New York on May 21, 1977. Fifty-three years after Independence this major nation-building problem remains unresolved. The Government of India must be persuaded either to refer the entire issue of the National Water Policy and guidelines to the Law Commission or redraft it on the lines of the South African Water Policy and the U.N. Convention of 1977.
To resolve water disputes on reasonable and equitable lines, the following parameters must be made part of the water policy: The extent of river basin drainage area in each State; the contribution of water to river basin by each State; the climate in the river basin; the population dependent on the water in each State; the cultivable area that requires irrigation; availability of other water resources, including ground water; the extent to which wastaage can be avoided in water utilisation; the degree to which the need of a State may be satisfied without causing substantial injury to a co-basin State; and the extent of arid and semi-arid areas in each State.
The draft guidelines now circulated by the Government of India are vague and omnibus in nature. Clause 5.9 in the draft guidelines guarantees the protection of existing utilisation, particularly when the use has been in existence since the pre-Plan period, or has been approved by the National Planning Commission. It further said that the protection of uses by projects constructed during the Plan period but not approved by the Planning Commission could be considered on merit. This perpetuates the colonial mindset and at one stroke exposes the projects in the Cauvery basin ("unapproved" non-Plan projects of Karnataka) to re-scrutiny. This violates the principles of equity and even the U.N. Convention of May 1977.
The basin States' contribution to basin flows should have a relationship to the the extent of land that is already under irrigation. States whose groundwater position is uncertain because of reduced dispatch, deep water table and low storage should be given weightage in the allocation. States that have only one regulator without any carry-over storage into the next season and therefore let the water out into the sea may have to be discouraged. The quantum of water thus let into the sea must also be a factor that must be considered while allocating the share of the lower riparian area. The upper riparian States cannot be expected to suffer because of the wastage on the part of the lower riparian States. This is the typical case between Karnataka and Tamil Nadu. Even if well over 205 tmc feet of water flows into the Mettur dam, it cannot be counted when deciding the allocation for the upper riparian States. According to a United Nations Development Programme (UNDP) Report, Mettur serves only as a regulator. It is estimated that 20 per cent of the total water available for distribution at the Grand Anicut in the Cauvery delta in Tamil Nadu is not used for irrigation and flows into the sea.
Clause 4.10 of the draft policy states: "Protection of existing inter-State agreements, whether approved by co-basin States or not, shall be accommodated in the Scheme."
From all this it appears as if the Government of India intends to give tacit approvals for all inequitable agreements without subjecting them to any sort of scrutiny. Karnataka or similarly situated States cannot think of obtaining any relief. The draft guidelines appear to be performing the rituals of burying all development schemes well in advance. Those who drafted the guidelines apparently forgot the fact that the colonial law-makers tried to harness the law in the interest of the dominant classes, groups or States that had privileged access to national water. The principles of democracy demand that the national water use policy and water laws be revised on the basis of fairness, equity and growth. The draft guidelines may have to be redrafted in accordance with these principles. They should at least conform to the U.N. Convention of May 1977 and the South African water laws. Article 33 of the U.N. Convention and the Report of the Western Water Policy Review Advisory Commission of the United States (1998) show how the settlement of disputes can be achieved, with mediation or conciliation by a third party. In India adjudication under the Inter-State Water Disputes Act, 1956 can be proceeded if it is found that a dispute cannot be resolved through mediation. India, which has always championed the cause of peace, must be able to show the way in resolving the conflicts over water, which have affected the country's agricultural prosperity in the absence of a firm, objective and equitable water policy and guidelines. The draft National Water Policy and Guidelines blurs and distorts the national goal of providing water for all who need it. This will make the country's survival as a nation in the 21st century difficult.
M. Veerappa Moily is a former Chief Minister of Karnataka.
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