Policies and Practice for People's Water Management must be bridged, says Videh Upadhyay.
October 2002 - Now that focus from the severe spell of widespread drought has shifted away, discussing some larger issues affecting water management in India may not make good media sense. Yet, in a dominant intellectual tradition of generating wisdom in hindsight it is still not too late to talk about such issues. The need to say something on the subject is however more important than being just expedient. The misery of drought this year was compounded by the fact that we are still not trying to draw the right lessons from it. All that we had was the information that the dry spell severely affected vast parts of the country, the news one after another on formal declarations of droughts by the States, the cries of the States for hundreds of crores of rupees for help from the Centre, and a very general, though increasing, lament of the intelligentsia on the 'human tragedy'. All that still does not translate into wisdom and it's time that we start thinking about it seriously. Drought-Proofing in a new policy climate The drought this year called for a decisive shift from drought management to drought proofing. This requires a sustained initiative for water conservation and measures for efficient water use. In straightforward terms - collecting and saving water for the non-rainy day!. This is a task that cannot be left to an understaffed and underfunded bureaucracy beset with ever increasing developmental functions. In fact, Union Ministers in the recent past have emphasized the need for decentralized, people oriented and demand driven water management as opposed to a centralized, government oriented and supply driven regime. There is now a definite political and policy climate where the right noises are being made in the relevant government and non-government circles. Project managers and resource consultants are swearing by the terms 'Participatory Irrigation Management' and 'Participatory Water Management'. One mustn't be too cynical about these high-sounding words, because shorn of their sophisticated use by the educated elite, they do reflect those core ideas that can provide solutions to the problem of water conservation and management in India. The central concern however is not that there is no policy level awareness of the imperatives of involving people in water management. Indeed one has seen over the last decade that thousands of check dams and watershed structures have sprung up all over the country, that a number of village level user-groups have been created for water management; that a hierarchy of farmers' associations have been legally empowered to give effect to the policy of Participatory Irrigation Management and that Panchayats have been given powers by the Constitution of India itself for water management, watershed development and for ensuring drinking water. Yet none of these could provide even small effective answers to the big questions that the drought this year has raised. Participatory Water Management - Universal Appeal, Unclear Approach All the above initiatives, however, clearly suggest two things. One, that Participatory Water Management as a national policy commands almost a universal appeal and two, the approach to it still remains unclear. Take the case of check dams and watersheds. In one of the most severely affected states in the drought - Madhya Pradesh, which has recently seen deaths out of fights for water - the government is now taking out public advertisements that "over seven lakh water harvesting structures by people to conserve water. are needed" While the Chief Minister of the state is on record saying that it is for the people to sustain such structures while the State Government's role is limited to that of a facilitator. Meanwhile, elsewhere the stance is different; the last Chief Minister of Gujarat (Mr. Keshubhai Patel) and the Irrigation Minister of Rajasthan took the view that Irrigation and Public Works Development departments will maintain such structures in their states. These conflicting stands assume significance as there is now growing feeling that without a sense of ownership villagers including farmers will not participate in the maintenance of the structures. This is even more so in areas where water resources have been generated and then managed without any intervention or help from the governments. This was the case, for example, in areas near Alwar in Rajasthan, where large scale constructions of Johads have transformed the designated Dark Zones, and have revived perennial rivers in the region. Yet last year there was a major controversy when one of such locally created structure in Lava - Ka - Bass village was deemed by the Irrigation Dept. of the State as unsafe and was nearly demolished, after the villagers were notified under the State Irrigation and Drainage Act. Incidents like this suggest that the people's right to water and their ownership over the check dams are not abstract issues for legal consideration. They are clear pointers that in the face of increasing competition over access to water, the development of a Water Rights regime is critical. There are some other questions searching for answers. Several states in the recent past have come up with major policy and legal initiatives that have transferred some responsibilities of Irrigation Management from government agencies to Water Users Associations (WUAs). The formation of these associations is now generally seen as the most effective strategy for ensuring farmer/users participation in management of water for irrigated agriculture. But when it comes to providing an enduring support to the initiatives, there are differences in the approaches of the States. While some States have founded WUA's on Govt. resolutions, some others have made them statutory bodies through enabling laws specifically creating them, (e.g. MP, AP, Rajasthan) and still others have provided for Farmers Association by amending the Command Area Development Acts (e.g Goa) or Irrigation Acts (e.g Karnataka). Despite their differing basis in laws and policies, the functions assigned to these Associations in the various States are typically similar. They include acquisition and distribution of water, maintenance and repairs, fixation and collection of water charges, punishing defaulters within the areas of the WUA and resolving disputes among water users in the area of operation. However, the polices and laws on WUAs do not take into account the fact that the scope of the associations can "vary from being only marginal (in which users association interacts with the agencies in delivering water according to a time schedule) to an effective and coherent association willing to own part of the irrigation system and be responsible for all its activities including operations and maintenance, deciding water rates and collecting them, appointment of staff etc." ( excerpted from a recent report of a working Group of the Union Ministry of Water Resources ). Further, mere formal vesting of powers do not ensure the success of such village level associations. It depends on socio-economic factors like water availablity, size of holdings, kind of crops being planted, extent of education of people etc. The experience of WUAs in the past in various states emphatically underlines this point. WUAs now have a fairly long history. Thousands of village level committees managing water resources had been created in the past under various Command Area Development Acts (CADA). However, few of them have survived and fewer have been successful. There is a range of socio-economic political and cultural factors behind this failure. A recent study of WUAs under CADA in Kerala points to factors like minimal farmer participation, top-down approach of CADA, and the failure to adopt group farming practices, as being responsible for the largely ineffective functioning of the WUAs. Farmers' non-participation alone accounts for one third of the failures, and this is alarming. It is a pointer that proliferation of participatory institutions does not automatically translate into greater participation. However, from an essentially legal perspective, it is clear that the single biggest reason behind the ineffectiveness of these WUAs has been that while they have been given responsibilities, they have not been given the requisite authority to back their efforts. There is a lesson in the above for project-driven, village level watershed committees and associations, typically informal associations not registered under any of the formal laws of the state concerned. Such village groups are required to be given legal legitimacy and definite legal status. One reason why this is important is that implications of watershed development might extend beyond the watershed area. Since watershed development leads to greater recharge of ground water, the additional water resource should belong to the watershed community. On this logic a recent technical group of the Union Ministry of Water Resources has recommended that the watershed community must be involved in regulating ground water. Consider this with the recommendation of another sub-group of the same Union Ministry suggesting that in 'dark' and 'over exploited areas', the Gram Sabha as a whole may decide on ground water management and that the use of ground water for irrigation and sale should be approved by the village community. When seen together these conflicting studies underline the need to evolve a satisfactory functional relationship between the watershed community and the Gram Sabhas under the the Panchayat Raj framework.. There is an obvious overlap of jurisdiction between Panchayat Raj Institutionss, WUAs and watershed committees. Their structural inadequacies and political nature apart, it needs to be realized that PRIs exist, have strong historical traditions in independent India and have recently acquired constitutional status. The 73rd Amendment of the Constitution has empowered the Panchayats on various aspects of water resource management including minor irrigation and water shed development. Subsequently enacting the letter and spirit of the 73rd Amendment to Scheduled Areas ( predominantly tribal areas) of the country the Panchayats (Extension to Scheduled Areas) Act 1996 has been passed which lays down that "planning and management of minor water bodies in the Schedule Areas shall be entrusted to Panchayats at the appropriate level". In light of this Constitutional mandate, there is a need to evolve functional linkages between the panchayats and the existing formal and informal village groups. The Andhra Pradesh government, in its 1995 resolution adopting Participatory Irrigation Management in the state, categorically said that WUAs should be co-terminus with village. Significantly in most cases the Gram Sabha is also coterminous with the village. In such cases can the Gram Sabha not itself be the WUA? Again can the WUA, or a part of the association be made responsible for managing the watershed which today is seen as lowest unit for water resources development? In how many cases can the watershed be co-terminus with the Gram Sabha so that the latter itself becomes the Watershed Association? Further, what should be the role of Panchayats in Groundwater Management, especially on its possible interface with the Watershed Community? Answers to all these questions could be situation- specific and localized, but they exist, and must be discovered. Developing Water Rights There are a number of other areas where the administrative and legal regime needs to mature to bridge the gap between what is eloquently professed and what is ultimately practiced, especially on the question of water rights of the people. As mentioned above, there is the crucial question of how the law and jurisprudence has to respond to the need of the people for 'sense of ownership' over water and water harvesting structures. Besides there are some specific things in law that needs to be done. First, the fundamental right of access to clear water should lead to necessary changes in various legislation on canals, irrigation supplies, and water management so that they reflect the letter and spirit of the fundamental right. A comprehensive documentation of all the gamut of water rights, beyond the constitutional right, needs to be carried out at the local level. Further it is notable that what has been recognized by the higher courts as a fundamental right is a right to each individual and not to a group. In the context of the fact that the recent initiatives of the Government have sought to vest powers to formal and informal village groups and associations, this becomes an important point. The water rights regime needs to evolve conditions under which a group entity can become a right holder so that a body like a legally constituted water users association can exercise such rights to its advantage. Apart from developing an understanding on the external water rights of the group, which it can exercise against every one outside the group, there is a need for better appreciation for internal water rights laying down the right of the group members vis-a-vis each other. A developed regime on group rights in the water management sector is critical to resolving existing and potential conflicts surrounding the access and control of water resources. Videh Upadhyay
October 2002 Videh Upadhyay is a lawyer in the Supreme Court Of India. He writes extensively on the legal contexts of development and public interest issues and is a co-founder of Enviro Legal Defence Firm (ELDF).