Towards Water Wisdom: Limits, Justice, Harmony

Towards Water Wisdom

Select Reviews of WATER: Perspectives, Issues, Concerns by Ramaswamy R. Iyer “This is a work of encyclopaedic scope…the volume is a veritable storehouse of knowledge for scholars interested in the political economy of water resource management in South Asia.” Kanchan Chopra, Delhi “...Iyer is thus uniquely placed to provide an informed assessment of the various issues related to water resource planning and management. Besides being informative, the essays are remarkable for explaining key issues in a language that is comprehensible to the non-professional lay audience.” A. Vaidyanathan, Chennai “Ramaswamy Iyer’s book is an informed and stimulating account of the competing perspectives, seminal and topical issues, and a priori concerns that the author succinctly exposes after years spent working in India’s water world. The book is a must read for anyone engaged in the field of water resources in India, and provides lessons that can be applied more generally to the global water problematic.” Dan Goodacre, University of Bristol, UK “The importance of the book is in bringing into a logical framework the various perceptions and dimensions of the problems of water within India and its relationship with neighbouring countries...” Late P.K. Dave, Delhi

Towards Water Wisdom Limits, Justice, Harmony

Ramaswamy R. Iyer

Copyright © Ramaswamy R. Iyer, 2007 All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system, without permission in writing from the publisher. First published in 2007 by Sage Publications India Pvt Ltd B1/I1, Mohan Cooperative Industrial Area Mathura Road New Delhi 110 044 www.sagepub.in Sage Publications Inc 2455 Teller Road Thousand Oaks, California 91320 Sage Publications Ltd 1 Oliver’s Yard, 55 City Road London EC1Y 1SP Sage Publications Asia-Pacific Pte Ltd 33 Pekin Street #02-01 Far East Square Singapore 048763 Published by Vivek Mehra for Sage Publications India Pvt Ltd, typeset in 10.5/13pt Minion by Star Compugraphics Private Limited, Delhi and printed at Chaman Enterprises, New Delhi. Library of Congress Cataloging-in-Publication Data Available Culture and the making of identity in ation—1947. 2. Feminism—India. 3. India—Historiography. 4. Science— Study and teaching—India. I. Ganesh, Kamala. II. Thakkar, Usha. III. Asiatic Society of Mumbai. DS428.2.C87 306'.0954'09045—dc22 2005 2005003590 ISBN: 978-0-7619-3585-8 (Pb)

978-81-7829-746-0 (India-Pb)

The Sage Team: Sugata Ghosh, Janaki Srinivasan, Sanjeev Sharma

To the memory of the late Prof. K.J. Shah of Dharwar, friend, philosopher, mentor, who continues to be badly missed twelve years after he left us. In 1949 he brought Wittgenstein into my ken and forever changed my thinking; some years later he unsettled my thinking again by forcing me to grapple with Gandhi; and still later, he began to educate me on Bhartrhari and Bharata, but alas, left that process sadly incomplete. I should like to think that he would have approved of this book.

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Preamble

7

Contents Preface Acknowledgements

9 11

PREAMBLE: UNDERSTANDING WATER

12

I. UNDERSTANDING THE CRISIS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Water Crisis: The Mainstream View The Water Scene in India Water Governance The Question of ‘Politicisation’ Re-examining Past Thinking The Question of ‘Demand’ Crisis or Crises? Crisis of Understanding Apotheosis of Fallacy: ILR Project Supply-side Conundrum

17 21 28 31 34 36 41 44 46 58

II. UNDERSTANDING CONFLICTS: RIVER WATER DISPUTES 11. 12. 13. 14. 15.

Indus Treaty: A Re-examination Differences Over Baglihar The Cauvery Dispute: Continuing Impasse The Punjab Water Imbroglio River Water Disputes: Some Reflections

63 79 86 95 106

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III. CONFLICTS OF OTHER KINDS 16. Narmada: Abandoning the Displaced 17. Profit versus Life 18. Privatisation, Markets

119 134 139

IV. MAKING SENSE OF LAWS AND POLICIES 19. Legal Inadequacies and Perplexities 20. Policies: Muddled or Worse? 21. Transforming the Laws: A Constitutional Declaration on Water? 22. Transforming the Laws: A National Water Law?

151 162 172 175

V. TAKING NOTE OF OTHERS’ THINKING 23. Issues and Concerns in the Neighbourhood 24. Some International Formulations: A Critique 25. A Parenthesis on a Different View

181 201 213

VI. DRAWING THE THREADS TOGETHER 26. Some Glimmers of Hope 27. Towards Wisdom on Water 28. The Larger Framework: New Thinking for a Changing World EPILOGUE

221 224 231

241

Appendix: List of Author’s Writings Drawn Upon

249

References and Select Bibliography

254

Index

263

About the Author

271

Preamble

9

Preface The present book began as a sequel or a companion volume to my earlier book (WATER: Perspectives, Issues, Concerns, 2003), updating some old topics and covering some new ground not traversed earlier. However, in the course of writing it became a different kind of book. While the first book was planned as a compendious handbook on water for the general reader and covered a wide range of themes and issues extensively, the present one is slimmer and less extensive in coverage, and more focussed on its central concern. It is essentially ‘argumentative’, to use a term now given currency by Amartya Sen, but not (I hope) at the cost of precision or reasonableness. It preaches change. Its plea is encapsulated in the three terms of the title: Limits, Justice, Harmony. Each of these has multiple meanings and all three are interrelated. ‘Limits’ on water-use are necessary for ensuring equitable sharing (‘justice’) and for avoiding conflicts with others and with nature (‘harmony’), ‘justice’ means justice to other users of the resource, to those whose lives and livelihoods are likely to be disrupted by our plans, to other forms of life, and to future generations (that harks back to ‘limits’ and forward to ‘harmony’); and ‘harmony’ means harmony with fellow human beings within and beyond political borders and with nature (that refers us back to ‘limits’ and ‘justice’). Everything is connected with everything else; and the water crisis is merely a part of a larger crisis of ‘development’. But I must restrain myself and not begin the argument at the threshold.

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The aim of this book is not to offer new knowledge or research findings but to place before the reader the results of some hard and sustained thinking. It is for the reader to judge the usefulness of that effort. The structure of the book seems clear enough from the Contents page, and it seems unnecessary to outline it here. The book must speak for itself. An effort has been made to refrain from going over ground already covered in the first book, but repetition has occasionally (and minimally) been necessitated by considerations of self-contained intelligibility and completeness. In a few instances, this book looks at an already discussed issue from a slightly different perspective or sets forth the results of further thinking. (The minimisation of repetition between the two books as well as between sections of this book has necessitated recourse to the device of cross-referencing.) Finally, the book does not presume to offer wisdom but makes a plea for it. Ramaswamy R. Iyer June–August 2006 New Delhi

Preamble

11

Acknowledgements Permissions for drawing upon material that has been published or is under publication, received from various sources, are gratefully acknowledged. A list of those writings is given in Appendix I. (However, the extent of use varies from the negligible or minimal to the significant; this is not a compilation of earlier writings.) The writing of this book was a personal effort carried on at home, without benefit of academic associates, research or secretarial assistance or office facilities. The book may show traces of those limitations. However, the intellectual debt that I owe to a large number of friends and colleagues in government, Centre for Policy Research (CPR), academia, and among NGOs, activists, the media, organisers of and fellowparticipants in seminars and conferences, others working on water, those who made me think about certain issues by asking me to write or speak, those who challenged my conscience and made me half an activist, and so on, is enormous. It is hereby duly acknowledged, though the names are too numerous to list. I must thank Suhasini Ramaswamy (my wife) and Rajeswari Raina (my colleague in CPR) for going through the full manuscript and giving me some very useful comments. May I also express my appreciation of the strong support that I have received from all those concerned with this book at Sage Publications, and, in particular, Sugata Ghosh and Neha Kohli.

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Preamble: Understanding Water This book will begin with a statement that ought to be obvious and unnecessary, but alas, is not: water, a simple and familiar feature of our daily life, is in fact a highly complex phenomenon with multiple aspects. Water occurs in many forms: precipitation (snow, sleet and rain), snowmelt, glaciers, rivers, streams, lakes, ponds and other surface water bodies, groundwater aquifers (shallow and deep; active, trapped and fossil), springs, wetlands, soil moisture and atmospheric moisture (leaving aside the oceans). That all these are manifestations of water is not common knowledge, though it may seem self-evident when pointed out. Even less common is the knowledge of the concepts of hydrosphere,1 hydrological cycle,2 hydrological unity 3 and the finite 4 nature 1

All water on earth. Precipitation → water retained in the atmosphere or the soil; surface runoff; seepage or percolation underground → evaporation from land (including transpiration by plants) and from sea → precipitation. 3 The source of all freshwater on earth is precipitation (rainfall and snowfall); water may take the form of ice on mountains and in glaciers, atmospheric or soil moisture, groundwater, surface water bodies, rivers and streams, wetlands, and so on, but it is all water and constitutes a unity. 4 Given the hydrological cycle, the quantum of water on earth remains the same for millennia and does not change. We cannot create new water, nor can we destroy water: all consumed or used water reappears in another (though not always usable) form, and whatever evaporates comes down later as rain or snow. 2

Preamble

13

of the quantum of water on earth; these terms are mostly used by specialists. Though all water constitutes a unity, different forms of water have distinct characteristics; give rise to different issues in the context of utilisation and management; and the governing laws are different. In its occurrence water is highly variable. In so far as India is concerned, it is common knowledge that most of the water that the landmass receives by way of rainfall comes down in a relatively short period in the year, and that even within that period, the intensity is concentrated within a few weeks. We also know that precipitation varies widely over the Indian landmass, ranging from 100 mm in some parts of Rajasthan to 11,000 mm in the Northeast (Cherrapunji). Water is an essential life-support substance, even more essential than food, and almost as important as air. Water is also needed for cooking and cleansing (one’s person, clothes, habitat). These may be clubbed together as ‘basic water requirements’. Water for irrigation and water for industrial uses (process, cooling, steam generation) are inputs into economic activities.5 Water for the generation of hydroelectric power is a special category; in a sense it is a raw material, but it does not get consumed in the process: it is a special variant of water for industrial use. Water is also a medium for navigation; here again it does not get consumed, but a certain level of flow has to be maintained, and this may limit the availability for other uses. Water for municipal uses such as sanitation or firefighting or in hospitals can be regarded as a ‘social good’. (Incidentally, water supply and sanitation are the obverse and reverse of the same coin. We cannot talk about water without talking about sanitation6.) Water has also (partly) a destructive aspect in the form of floods. Water plays a role (or roles) in, and is an inextricable part of, our society, culture and history (think of the Thames, the Seine, the Rhine, 5

Water for livestock is both life-support (if one looks at livestock as animals needing water) and an input into economic activity (if one looks at livestock as part of the assets maintained for agriculture, dairying, etc.). 6 There are two reasons for that statement: first, the ingestion of water or food must necessarily lead to excretion, and so water supply must be accompanied by sanitation services; and second, the greater the supply of water, the greater the generation of waste and the problem of its disposal. This applies to all uses of water.

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the Danube, the Nile, the Indus, the Ganga, the Brahmaputra, the Mississippi, the Amazon, and so on, and the related countries and continents); and it is also regarded in many cultures as a sacred resource or as a divinity in itself. Water sustains not merely human life, but also the lives of animals and birds; and it sustains and is sustained by the ecological system of which it is an integral part. It plays a crucial role on Planet Earth. Against that background, it is not surprising that water is perceived in diverse ways, the perceptions often being limited to particular aspects. Such divergent perceptions lead to divergent recommendations and prescriptions. Those divergences will need to be reconciled, or choices will have to be made among them. The understanding of water outlined above is offered as a preamble to all the discussions that follow.

I

UNDERSTANDING THE CRISIS

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Water Crisis: The Mainstream View

17

1 Water Crisis: The Mainstream View

There is a widespread view that a water crisis is looming on the horizon. The National Commission on Integrated Water Resources Development Plan (NCIWRDP), in its report submitted to the Government of India in 1999, projected a difficult situation requiring urgent measures, but did not use the term ‘crisis’. The distinguished economist Y.K. Alagh has referred to this at several meetings, and pointed out that the Chairman of the Commission (S.R. Hashim) had taken a more sombre view of the future in one of his lectures. We need not enter into that debate. Whatever term we choose to employ, it is clear enough that water is going to be a major area of concern for us. Some might say that a water crisis is already upon us. John Briscoe of the World Bank (WB) talks about a ‘turbulent future’ (Briscoe and Malik 2006). This writer has no quarrel with any of those formulations. Granting that there is going to be a crisis, one can still ask questions about the nature of the crisis, the causative factors and the things that we need

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to do to avert or mitigate the crisis. However, we must first take note of the prevailing ‘mainstream’ view of the crisis. In that view, the demand for fresh water is likely to increase sharply and rapidly because of the growth of population, the pace of urbanisation and the processes of economic development. The pressure on the available (finite) supply, already acute, is likely to become more severe. This could lead to conflicts between different uses, user groups, areas, political units, and so on. That is a general statement often heard in both international and Indian conferences. Viewed thus, the crisis is one of availability. If so, the answer would lie in increased ‘production’ (as in the case of consumer or industrial goods), i.e., increasing the availability of water for use, i.e., in bringing more of the finite quantum of water available in nature into the ‘usable’ category through supply-side solutions in the form of big projects. That is the engineer’s and the bureaucrat’s response. In the WB’s language, we need additional water infrastructure. In February 2001, while rejecting the Report of the World Commission on Dams (November 2000), the Government of India (Ministry of Water Resources) declared its intention of building a further 200 billion cubic metres (BCM) of storage by 2025. Later, in August 2002, the Government of India announced its massive project for the inter-linking of rivers (ILR Project). Another answer, also favoured by the WB (and by Asian Development Bank [ADB] and some of our own economists), is water markets. The recommendation is: ‘define water rights, and allow trading’. The argument is that if market forces were given free play, with the state playing only facilitatory and regulating roles, and if policy changes are made to enable ‘private sector participation’, there will be a supplyside response to the growing demand, the necessary investments will take place, prices will be right and conflicts will get resolved by the market. There are many issues here, but in the present context, we need merely note that this is also a supply-side answer: if the state steps back and leaves water to market forces, the expectation is that supply will match demand. Both these responses implicitly or explicitly regard water as a commodity like any other (or as an ‘economic good’, slightly modified to ‘economic and social good’), and subject to the same market forces and the laws of supply and demand. There is a convergence of these

Water Crisis: The Mainstream View

19

two approaches, because (it is argued) supply-side solutions need investments; these need financial resources; these are of magnitudes that the governments of developing countries cannot easily muster; those governments are also plagued by planning and managerial weaknesses; and therefore private sector investments are the answer, and government policy should facilitate this. That convergence finds support in the ideological predilections of western governments, of international financial institutions and of economic ‘reformers’ or ‘liberalisers’ in the developing countries themselves. Further, it appears that the corporate world, particularly the handful of big international water corporations, have begun to sense profits in increasingly scarce water, which some apparently see as the next big business prospect after oil.1 The advocacy of ‘private sector participation’ continues to be strong, though it is now fashionable to talk of ‘Public–Private Partnerships’ or PPP (see Chapter 24). However, there is also strong resistance to that advocacy. There are two broad groupings (each consisting of multiple groups) at international conferences on water, such as the World Water Forum (held at three-year intervals), the annual Stockholm Water Week, etc. One consists of governments (of ‘developed’ countries and others of the same persuasion); institutions such as the WB , ADB, and the UN family in general; international ‘water’ institutions such as the World Water Council, Global Water Partnership, etc.; and the Corporates. This group argues for water being regarded as a tradable commodity, water markets, globalisation, privatisation, corporatisation, public–private partnership, and so on, and of course for big projects. The other is a loose group of NGOs, social activists, civil rights people, left-wing intellectuals, and so on. Their concerns vary widely, but they tend to come together on certain beliefs and predilections: e.g., treating water as a basic or human right, a Common Pool Resource and not a tradable commodity; a feeling that the profit 1 ‘Water promises to be to the 21st century what oil was to the 20th century: the precious commodity that determines the wealth of nations.’—Fortune Magazine, May 2000. ‘Where else can you find a business that is totally international, where the prices and volume, unlike steel, rarely go down?’ —Gerard Mestrallet, CEO of Suez. (Quoted by Punam Kumari in her article on the commodification of water in Mainstream, 9 August 2003.)

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motive is irreconcilable with that view; a deep suspicion of the corporates; and a strong sympathy with the community and civil society as against the state. Cutting across that divide are two other concerns: (a) environmental and ecological concerns, the movement against dams, etc.; and (b) movements for the rights of the poor and the disadvantaged, for the protection of the people, particularly aboriginal, tribal communities, from displacement, from the loss of rights of access to their natural resource base, etc. Superficially, there is some common ground among those groups. Everyone agrees that water is getting scarcer, that water is a basic need and therefore a basic right, that the natural environment must be protected, that people likely to be affected by a project should be consulted right from the start and should participate in its planning and execution, and so on. However, beyond that point there is a clear division between those who argue for big projects, for private investment, for water markets, etc., and those who argue for local, community-level action and civil society initiatives, and are very worried about the loss of control over natural resources first to the domestic corporate sector and then to the foreign or multi-national companies. That broad division is found both internationally and in India. Granting that there is or will be a water crisis, this writer’s understanding of the nature of the crisis is different from the mainstream one just outlined. In his view, the crisis is not (or not mainly) one of availability; it is, in the Indian context, at any rate, a crisis of gross mismanagement, and globally, a crisis of rapacity. We shall return to the latter aspect in due course; the present section is concerned only with the first aspect. ‘Gross mismanagement’ is strong language. Is that kind of adverse judgment warranted? The reader is requested to consider the picture presented in the next chapter.

The Water Scene in India

21

2 The Water Scene in India

What this chapter seeks to present is not a detailed account of the water situation in India with numbers and tables, but a broad, impressionistic, but nevertheless—it is hoped—recognisable and accurate picture of the water scene in the country. Some of the elements in that picture are matters of daily experience, and others are familiar enough from the literature; those elements are brought together here in a synoptic and panoramic picture.

FOOD PRODUCTION Let us begin with a positive statement. In a fairly short period of time, the production of foodgrains in the country went up from around 50 million tonnes to 200 million tonnes. Roughly two-thirds of the increase in production came from irrigated areas, partly from

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groundwater-irrigation and ‘minor’ surface water irrigation, and partly from ‘major’ irrigation (largely dams and reservoirs). There is a controversy as to how much of the increase is attributable to water as distinguished from other factors such as seeds, fertilisers, etc., and again, to dams as distinguished from other sources of irrigation. Ignoring those complications, we may note that irrigation undoubtedly played a crucial role in the dramatic increase in foodgrain-production, and accept this as a success story, at least a temporary one followed by problems. Unfortunately, that seems to exhaust the positive side in so far as water management is concerned.

URBAN SCENE Taking the urban scene first, the general experience in most of our cities is one of a limited, intermittent, unreliable supply; poor water quality; an unresponsive administration; a grossly inequitable distribution of the available water over different areas and among different groups; an implicit subsidisation of the rich through low water rates; and an inadequate coverage of the poor by the public system, forcing them to buy water at much higher rates from private sources. Even the rich, while they get more than adequate water from the public systems and at low prices, can have no confidence in the quality of the water. The result is a burgeoning and thoroughly unnecessary bottledwater trade (that must necessarily draw raw water for processing from the water sources of the community and also cause problems through the disposal of the waste water generated by the processing). The use of large quantities of precious and scarce fresh water for the disposal of human waste through flushing toilets; the absence of sanitation facilities for large numbers of people; the enormous generation of waste of all kinds—domestic, municipal, industrial—in urban areas; the very partial treatment of such waste; the discharge of untreated and partially treated sewage and effluents into the rivers, turning them into sewers; the contamination of aquifers; and so on, are also widely recognised and deplored urban maladies.

The Water Scene in India

23

RURAL WATER SUPPLY As for rural water supply, the curious (and by now familiar) fact is that despite five decades of planning and more than a decade of ‘Drinking Water Missions’, targets for covering ‘uncovered villages’ are repeatedly achieved, but the numbers grow larger rather than smaller. What this conundrum means is that some ‘covered’ villages are lapsing back into the uncovered category, and that newer villages are being added to this class. (A significant aspect of the scarcity of water in rural areas is of course that the burden of bringing water from distant sources falls on women, including girl children.)

FAILURE TO ENSURE BASIC RIGHTS Taking both rural and urban areas together, it is clear that India is not going to be able to meet the Millennium Development Goals (MDG) in relation to safe drinking water and sanitation. Leaving aside the MDG, there is a failure even with reference to our own national principles. The National Water Policy (NWP) 1987 assigned the highest priority to drinking water, and this has been repeated in the new NWP 2002, but like most statements in the NWP, this has remained a mere declaration on paper. Moreover, under Indian law, as interpreted by the Courts, the right to water is part of the right to life. The failure to ensure that right to all citizens is a serious reflection on the state. Further, considering that even the right to clean air and environment has been recognised by judicial determination in this country, it is surely possible to argue that the right to reasonably private and hygienic sanitation (not necessarily flushing toilets) is also a fundamental right. Here too there is a failure on the part of the state.

IRRIGATION (FROM MAJOR AND MEDIUM PROJECTS) Let us look at irrigation, the largest user of water. Canal water for irrigation is good when available, but unreliable. The supply is generally

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not provided in the time or the quantities needed. The systems are in many cases in disarray because of poor maintenance and operation. The farmer is dependent on the irrigation bureaucracy which is a control structure and is not by orientation and training service-oriented. There are also serious equity issues in the operation of major/medium irrigation projects. The problem of tail-end farmers in the command getting very little water is well known. The system is also amenable to manipulation and distortion by the influence of the rich and the politically powerful. Low irrigation charges and lower recoveries accentuate the revenue deficits of states; these result in inadequate budgetary allocations for the operation and maintenance of systems; this leads to poor service; and this in turn leads to resistance to any increase in charges for irrigation water, thus creating a vicious circle. The inability of the state to operate the large projects properly and provide satisfactory service (combined with other factors such as the prescriptions of the WB, ADB, etc., and the perspectives of civil society movements) leads to ‘reforms’ such as the Participatory Irrigation Management (PIM) or Irrigation Management Transfer (IMT), but these have had only limited success so far. They suffer from some deficiencies and are not the panaceas that they are said to be.

WATER USE IN IRRIGATED AGRICULTURE If the irrigation service from major/medium public systems has been poor, the use of the water made available has been equally poor. It is an acknowledged fact that both the efficiency of water use in irrigated agriculture in this country, and yields from irrigated agriculture, are low by international standards, and even by standards achieved in some parts in this country. Besides, the availability of canal water from major/medium projects leads to the adoption of water-intensive cropping patterns, creating demands for more water for more irrigated agriculture of the same kind. The practice of irrigated agriculture also leads over the years to the emergence of waterlogging and salinity, and to the often irreversible loss of good agricultural land. This has

The Water Scene in India

25

happened, and is continuing to happen, in Punjab, Haryana and Rajasthan.

RAIN-FED AGRICULTURE A substantial part of our agriculture is, and will continue to remain, ‘rain-fed’. (That term is somewhat problematic, but let us leave that aside for the time being.) The productivity of that agriculture is low. There is general agreement that it needs to be, and can be, significantly enhanced, but that recognition has not so far led to adequate action.

INTER-STATE WATER DISPUTES A major area of concern is that relating to inter-State river water disputes. The constitutionally mandated conflict-resolution machinery (adjudication under Article 262 of the Constitution and the InterState Water Disputes Act 1956, amended in 2002) seemed to be working reasonably well earlier, but it has run into difficulties in recent years. Some of these disputes will be discussed later in this book. Here, we need to merely note that the disputes are characterised by bitterness, tend to get enmeshed in party politics, and become intractable. The curious fact is that India has been able to resolve its river-water disputes with neighbouring countries through Treaties that seem to be working moderately well, but seems unable to resolve internal disputes within the federal structure.

GROUNDWATER A new anxiety that has emerged in recent years relates to groundwater. While irrigation was earlier associated with dams, reservoirs and canals, there was an unforeseen and unplanned explosion of groundwater exploitation from the 1980s onwards, and this has been a significant factor in the increase in agricultural production. However,

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while the short-term gains have been dramatic, the long-term prospects seem bleak. The draft on groundwater has now reached alarming proportions. In many parts of the country the aquifers are getting depleted and/or contaminated. There is general agreement that the use of groundwater must be regulated, but with 21 million tubewells, largely privately owned and operated for ‘self-supply’, i.e., outside the purview of supply systems, public or private, regulation is very difficult. Both law and politics are to blame here: the existing legal position makes regulation difficult, and this is compounded by political factors. Despite the existence of the Central Groundwater Authority for eight years, and some attempts at legislation at the State level, there is no real regulation of groundwater use (see also Chapter 25).

FLOODS Turning now to floods, the initial response to flood damage was to try to ‘control’ floods through structural means such as dams or embankments. Over the years, serious doubts have emerged about the appropriateness of these means. Broadly speaking, it can be said that while dams may moderate flood flows to a limited extent under normal conditions, provided they are planned and operated for that purpose among others, they may aggravate the position if (in the absence of a flood cushion) water has to be suddenly released in the interest of the safety of structures. (The recent floods in Gujarat—in July–August 2006—seem to illustrate this.) As for embankments, there is serious doubt about their efficacy as flood-control measures; they have often proved a remedy worse than the disease. There is a growing recognition that what we must learn to do is not so much to ‘control’ floods as to cope with them when they occur and minimise damage, partly through ‘flood-plain zoning’ (i.e., regulation of settlement and activity in the natural flood plains of rivers) and partly through ‘disasterpreparedness’. However, that view is not universal; the notion of ‘flood control’ continues to hold sway over people’s minds, and to influence official thinking. Without entering into that controversy, let us merely note that both flood-related damages and expenditures on relief have been mounting. As for disaster preparedness, very little has been done.

The Water Scene in India

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WATER POLLUTION Water pollution seems to be getting out of hand. There are pollution control laws and institutions, but these have not been able to prevent the growing pollution and contamination of water sources and systems, which in effect makes much of the ‘available’ water resources unusable. On the one hand we are trying to augment supplies, and on the other we are destroying a part of the existing supply. As mentioned earlier, we have reduced many of our rivers to sewers (e.g., the Yamuna), or turned the water into poison (e.g., the Palar in Tamil Nadu). There are also problems of fluoride content in groundwater in some places, and arsenic, earlier found in West Bengal (as in Bangladesh though not on the same scale) has now begun to appear in Bihar. The contamination of aquifers by industrial effluents and agricultural residues is also a matter for anxiety in many places. Water pollution is in fact as great a threat (if not greater) to security as the ‘scarcity’ about which alarm bells have been ringing. What needs to be done has been written about extensively, but not much of it has begun to happen as yet.

A BLEAK PICTURE That was a bird’s-eye view of a vast subject. The picture is a bleak one and may seem to some to be ‘negative’. However, the various statements made above cannot easily be contested. (Supporting material is available in abundance: see for instance the Report of the Committee on the Pricing of Irrigation Water, Planning Commission 1992; the report of the NCIWRDP 1999; the special issue of Seminar, 478, June 1999; Tushaar Shah 2004; etc.) The failures are manifest: there has been a comprehensive mismanagement of water. The statement made at the end of the preceding chapter seems fully warranted.

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3 Water Governance

Some of the failures mentioned above may be described as failures of ‘governance’. Two questions arise. First, is ‘water governance’ something special? Is it not part of overall governance? Second, can we separate water governance issues from water policy or water management issues? The two questions are interrelated. To the extent that corruption, inefficiency and non-performance in water-related institutions are merely reflections of the general state of affairs in the country, this does not tell us much about water per se. However, to the extent that ‘governance’ problems relating to water stem from wrong approaches, bad policies or misdirected planning, water governance cannot be discussed in isolation from water policy or resource management. What then are the ‘governance’ problems in relation to water? The problems relating to urban and rural water supply, major/medium irrigation, groundwater management (or the absence of it), and so on, mentioned in the previous chapter, are largely problems of governance.

Water Governance

29

In the context of large projects, ‘governance’ generally presents a high-handed, violent and cruel aspect to those who face displacement/loss of livelihood and delayed and badly flawed rehabilitation. To them, governance often means the police. The social activists and non-government organisations (NGOs) that seek to mediate between such project-affected people and the government are likely to perceive ‘governance’ in terms of callousness to suffering, denial of human rights, repression, the use of force in response to resistance, and so on. Those concerned with environmental issues will tend to fault ‘governance’ on violations of environmental laws, rules and procedures, and will find serious limitations and inadequacies in Environmental Impact Assessments (EIAs). From the financial, economic and management points of view, low water rates and the consequent ills of poor revenues, losses in financial terms, inadequacy of funds even for O&M (operation and maintenance) and non-availability of funds for capital-renewal and new investment, will constitute bad governance. From the point of view of the governmental agencies concerned with water—the municipal authorities and the Irrigation Departments— proper governance will undoubtedly seem hamstrung by a chronic inadequacy of budgetary allocations; a shortage of water (in many cases) for the service that they are expected to provide; the pressures of the rich and the politically well-connected; a powerlessness to deal effectively with those who violate the law or bend or circumvent the procedure; improper directions from the political levels; and the pervasive presence of corruption. (The reference is to the perceptions of the upright and conscientious officials; others may prefer to conform to the prevailing ethos and make their ‘adjustments’.) The various water governance problems and deficiencies enumerated above are usually seen piecemeal, and many partial remedies and fragmented reforms such as Participatory Irrigation Management (PIM), privatisation, water markets, proper pricing of water, and so on are proposed. (We shall return to some of these later.) Other kinds of reforms are urged by environmental and social activists and mobilisers, such as pleas for a revision of the National Rehabilitation Policy (2003); the full operationalisation of the new Right to Information Act (2005); the drastic modification of the

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Official Secrets Act (1923); a thoroughgoing reform of the Land Acquisition Act (1894); full adherence to The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996; due conformity to the provisions of the Environment Protection Act; proper implementation of the requirement, now mandatory, of a public hearing in the case of large projects; and so on. Reforms in the area of governance are indeed very necessary. However, if we consider any ‘water governance’ issue carefully, we will find ourselves led beyond governance in a narrow sense into larger issues (political, economic, social, ecological, legal, constitutional), and beyond the sphere of governments into the domains of water-users, private sector agencies and civil society. We must therefore look at a much wider canvas. This book in its totality is such an effort. However, at this juncture, a few explanatory remarks on ‘water politics’ seem necessary.

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4 The Question of ‘Politicisation’

We often talk about the ‘politicisation’ of water issues, but it must be recognised that water, as a basic life-support substance and as an important factor in livelihoods, is bound to figure in politics. The absence or shortage or poor quality of water in an area is a legitimate political issue. However, water or any other matter can be said to become ‘politicised’ in a negative sense when political calculations (unconnected with the issue in question) tend to influence and distort policies and decisions and render rationality difficult. Water seems more liable to politicisation in this sense than most other matters. Consider urban and rural water supply. If we are unable to improve supplies to the ill-served areas and groups and bring down the consumption of the affluent areas and groups; to adopt a rational, socially just, resource-conserving, waste-minimising pricing system; to ensure the proper billing and collection of charges for supplies; and to enforce the existing rules and regulations and penalise infractions; the explanation seems to lie in a combination of ‘politics’ and corruption.

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Turning to ‘major/medium’ irrigation or multi-purpose projects, promises to undertake such projects play an important role in electoral politics, and their locations and important features are often influenced by political considerations. (The alleged politician–bureaucrat– technocrat–consultant–contractor nexus is a different matter, one of corruption rather than politics.) The differential incidence of the social costs and benefits of such projects on different groups, and the generally inequitable distribution of their benefits among the beneficiary groups, are part of the ‘political economy’ of the projects. A special case, namely the head-reach/tail-end conflict in an irrigation command, tends to become political as the two groups organise themselves and exert pressure on the Irrigation Department: one of the two groups (generally the head-reach group) might become politically more powerful and influential with the Department. Again, the idea (often advocated) of resettling and rehabilitating project-affected persons in the command area of the project and giving them a share in the benefits of the project, and the Acts that have been passed in this regard in some States, run into difficulties in actual practice because of the resistance of those who are already in the command area: this is a political difficulty. It is also politics that is responsible for the reluctance of most State Governments to raise (canal) irrigation water charges appropriately (as recommended by many Committees and Commissions), creating the vicious circle of low revenues, meagre resources, inadequate provisions for operation and maintenance, poor service, and resistance to tariff increases; and their readiness to give electricity to farmers at very low rates or free, leading to (or at least facilitating) the reckless mining of groundwater. Issues of equity, power and caste relations, ‘gender’, and so on, arise in the context of the establishment of Water Users’ Associations under the scheme of Participatory Irrigation Management, watershed committees for managing water-harvesting or watershed development initiatives, and tank farmers’ associations (in the southern States). These involve both social and political questions. Further, rural/urban or agriculture/industry water conflicts tend to get politicised. For instance, the conflict between the polluting industries and the farmers and other rural inhabitants in the Palar

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Basin in Tamil Nadu has political dimensions. We are often told that in Maharashtra sugarcane plantations get assured water throughout the year but there are acute drinking water problems in the adjoining villages: this too is a political fact, as it attests to the greater power and influence of the sugarcane lobby. On the use of groundwater, there is general agreement on the need for regulation, but regulation has so far proved very difficult for both legal and political reasons. Returning to rivers, there is again general agreement that a river basin or sub-basin, as a hydrological unity, is the proper unit for planning, but there is strong political resistance to that idea in practice (see also Chapter 15). Inter-State river-water disputes are in fact the most visible manifestation of water politics. The Cauvery and Ravi–Beas Disputes are dealt with in later chapters. Other instances include the Alamatti dispute between Andhra Pradesh and Karnataka, and the grievances that Kerala has over the old agreements with Tamil Nadu on the Mullapperiyar and Parambikulam Aliyar Projects. Without going into the details of those cases, what we need to note here is the fact that the implications of the disputes for party politics are of enormous importance at both the State and Central levels. In the international arena, water relations are important components in (and determinants of) India’s political relations with Pakistan, Nepal and Bangladesh. Some of these are dealt with later in this book.

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5 Re-examining Past Thinking

Returning now to the diagnosis of mismanagement, the inference that the author would draw from this is that quite apart from reviewing issues of project-planning and administrative efficiency, we have to re-examine the rightness of past thinking. Looking back at the past, we can see that our thinking about water was influenced by the following factors: • •

•

irrigation loomed large in our thinking (though later we began to be concerned about industrial demand as well); the entire thrust in policy and planning was to make more water available for use, i.e., a supply-side response to projected or imagined demand; and the thinking was primarily in engineering terms.

The engineering-dominated supply-side approach meant that the attention was focussed on what is referred to as ‘water resource

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development’; the manner in which water was used or managed received little attention. (Moreover, as mentioned in Chapter 1, implicit in the engineering approach of ‘increasing supply’ was a view of water as a commodity, and a failure to recognise other aspects and dimensions of water.) That view continues to hold sway in the Indian Water Establishment. They see the problem in terms of (a) spatial and temporal variations in the availability of water, and (b) a crisis looming on the horizon. As stated earlier, their answer once again is more supply-side engineering.

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6 The Question of ‘Demand’

While there may be a measure of agreement with the thesis of mismanagement, it may be felt that this does not invalidate the projection of a crisis of availability. It is that projection that has been driving our policy and planning. We must therefore consider this further. Let us take note of the basic numbers for India as a whole:1 • • • 1

precipitation over the Indian landmass: 4,000 billion cubic metres (BCM); available surface water resources (as measured near the terminal points of river systems): 1,953 BCM;2 available groundwater resources: 432 BCM;

The source of the statistics: the National Commission on Integrated Water Resources Development Plan (hereafter NCIWRDP) Report, September 1999. 2 There is some difference of opinion as to whether the river-flow figure of 1953 BCM includes a part or the whole of the groundwater availability of 432 BCM. However, we need not go into that question here.

The Question of ‘Demand’

• • •

37

usable surface water resources: 690 BCM; usable groundwater resources: 396 BCM; total usable water resources: 1,086 BCM.

As against these numbers, the National Commission on Integrated Water Resources Development Plan gives a low estimate of 970 BCM and a high estimate of 1,180 BCM as the country’s total water requirements by 2050. This is what gives rise to predictions of scarcity or crisis. The ‘crisis of availability’ theory assumes that water scarcity is a natural phenomenon, that there is not enough water to meet the projected demand, and that we must somehow enhance the availability of water for use. That seems plausible, but it must be noted that ‘demand’ is a crucial factor here, and that this will in turn depend crucially on how we use water. ‘Demand’ is therefore what we should look at first, and very carefully, before we even begin to think of supplyside answers. Before proceeding further, it seems necessary to make what may seem to be a semantic point. In relation to water, a basic life-support substance, the very language of ‘demand’ and ‘supply’ seems questionable. We can talk about the need for water; or about the fundamental right to drinking water; but ‘demand’ seems the wrong word. Similarly, the word ‘supply’ seems (misleadingly) to imply ‘production’ as with other goods. This is not a quibble about words: the terminology assimilates water to the general run of consumer and industrial goods and reduces it to a commodity subject to the market forces of supply and demand. Without entering into an elaborate discussion of that issue, the author would venture the following statement: the usual approach prevalent in the case of consumer or industrial goods, of projecting a future demand and bringing about a supply-side response to meet that demand, will be inappropriate in the case of water; instead, reversing that approach, we must start from the fact that the availability of fresh water in nature is finite, and learn to manage our water needs within that availability. Having taken note of that point, let us leave it aside and revert to current usage. The important point is that the ‘demand’ projections (accepting that term) need to be stringently reviewed. In every kind

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of water-use, major economies are desirable and possible, though undoubtedly difficult. Taking agriculture first, the benefits of irrigation are evident, but as a water-user it has much to answer for. It is the largest user of water (over 80 per cent); it is also an extremely inefficient user. There are three problems here. First, water-use efficiency under major/medium irrigation projects is low; it is put at around 35 to 40 per cent by the NCIWRDP. (It is argued by some that this is fallacious thinking, as water that is lost from canals through seepage, as well as water that is applied on the field in irrigation, is partly recovered as groundwater recharge and as ‘return flows’ further down. That half-truth is not a reason for tolerating inefficient conveyance or excessive use in irrigation. The used water may not be fully recoverable, and it may not always be recovered in usable form.) Second, yields in irrigated agriculture in India are quite low. Even the NCIWRDP projects a modest yield of only 4 tonnes per hectare in 2050. Substantial improvements in efficiency in water-use in agriculture (in conveyance systems, crop-water requirements, irrigation techniques, yields) are needed, and if achieved, could sharply cut down the agricultural demand for water. The third and most important point is that supply creates demand and necessitates more supply. The availability of irrigation water leads to the adoption of water-intensive cropping patterns (e.g., paddy in Punjab where it was unknown earlier, multiple crops of paddy in the Tanjavur Delta in Tamil Nadu, sugarcane in Mandya in Karnataka, sugarcane again in Maharashtra). More water is needed even to continue with this kind of agriculture; and of course, there is a desire to expand that agriculture, creating a demand for still more water, until the demand becomes unsustainable. There is always a demand for more water and still more water. So Karnataka and Tamil Nadu fight over the Cauvery, and Punjab terminates all water accords. We have to get away from this kind of competitive, unsustainable demand for water. In rural and urban water supply, the tendency is to project future needs on the basis of per capita norms which are fairly high: 140 litres per capita per day (lpcd) in urban areas and 70 lpcd in rural areas. The NCIWRDP wants to raise these to 200 lpcd in urban areas and

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150 lpcd in rural areas in the future. However, are norms of that order needed? Peter Gleick puts the basic water requirement for human needs (drinking, sanitation services, bathing, cooking and kitchen) at 50 litres per person per day (Gleick 1996). We must add a provision for cleaning the house, washing clothes, etc., but a common norm of 100 lpcd for both urban and rural areas would seem prima facie to be adequate. That may need further examination, but it seems unnecessary to enhance the norms. In some European cities the norms for water supply are being reduced. Be that as it may, in Delhi, the actual supply by the Delhi Jal Board is upwards of 200 lpcd, which is higher than the current norm and higher than the supply in other cities. That is of course an average figure. The problem is that it is unevenly and inequitably distributed. There are areas where people—poor people— have to manage with 30 lpcd or less, and other areas where people— the middle classes and the rich—use 400 to 500 lpcd or more. What we need to do is to enforce economies on those (whether in rural or urban areas) that use too much water, and improve availability to groups or areas that receive too little. If this were done, it might not be necessary to raise the average. While the poor might have to be provided with a certain quantum of water at affordable prices, and the very poor might have to be given some free water, there is no reason why the middle and affluent classes should not be charged the full economic price. In fact there should be penal pricing, and perhaps even a denial of service, beyond certain levels of use. In industrial use of water, multiple recycling and re-use needs to be insisted upon, allowing minimal make-up water. We must move towards a situation in which 90 per cent of the requirement of water for industry would be met through recycling. That might be very difficult today, but it must be our goal. Strenuous efforts need to be made to maximise what we get out of each drop of water in every kind of water-use. Further, the amount of waste that is taking place in every use needs to be tackled: the waste must be reduced, and a part of it must be recovered for certain uses. The Centre for Science and Environment (CSE) has been repeatedly drawing our attention to the enormous quantity of fresh water that is being used for the transportation of human waste in urban areas. Are there effective alternatives to flushing toilets? If not, can we at least

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minimise the requirement of water for this use? The CSE also points out that while our cities generate huge quantities of waste, the citizens (including the very rich) not merely pay low prices for water, but pay practically nothing at all for the disposal of their waste. The CSE refers to this as ‘the political economy of defecation’. All this needs to change, and if we do attend to all these matters, the projected water demand will not remain the same.

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7 Crisis or Crises?

In the light of what has been said so far, it is clear that there are several aspects or dimensions to the water crisis. Each of the following unfortunate developments can be described as a crisis in itself: • • • • •

grossly inequitable distribution of the available water; the distressed state of our rivers and groundwater aquifers; the decline of traditional water management and conservation systems; the disappearance of once-numerous water bodies; the damage to ecological systems from the interventions in nature in the form of water resource development (WRD) projects (arising not merely from wrong notions of ‘development’ and ecological blindness, but also from centralised, techno-centric, non-democratic, non-consultative decision-making);

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•

•

(also arising from that kind of decision-making) the infliction of hardship, inequity and injustice on poor, disadvantaged communities, particularly tribal ones, and on women; and the uncontrollable, unmanageable generation of waste of all kinds, and the consequent reduction in the availability of water.

These are not ‘natural’ crises, but humanly created ones. The plural term is perhaps appropriate, but the various crises are not independent of one another. They are interrelated and have this commonality that all of them spring from what Gandhiji would have called ‘greed’. (We shall revert to this.) We seem to be simultaneously enlarging demand and destroying supplies. There are also multiple perceptions of the crisis or crises. To the Water Establishment, as already mentioned, it is a crisis of availability. To the neo-liberal economist, the crisis is one of the failure to recognise water as an economic good and the absence of a clear delineation of property rights in water. To Vandana Shiva,1 the central crisis is one of the loss of control over natural resources by both civil society and the state to corporate interests, the conversion of a common pool resource and a basic need and right into a commodity governed by market forces, and the intrusion of the profit motive into an area where it has no legitimacy; she would also deplore the absence of ‘water democracy’. To Sunita Narain2 it is a crisis of the criminal waste of a precious resource, and an indefensible subsidisation of the rich. There is also a crisis of ‘dying wisdom’, i.e., the decline of traditional ways of managing natural resources. To Medha Patkar,3 in her anguish at the human tragedy that is being enacted in the Narmada Valley, the crisis is essentially one of injustice, immiserisation, and inhumanity: a sacrifice of the poor and the marginalised at the altar of what goes by the 1

Head of Research Foundation for Science, Technology and Ecology, and that of the NGO Navdanya; activist on WTO, patent and privatisation issues. 2 Director of Centre for Science and Environment, known for advocacy on environmental issues, winner of Stockholm Water Prize (2005). 3 Leader of Narmada Bachao Andolan, well known activist on environmental and displacement issues, former member of World Commission on Dams.

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name of ‘development’. In the eyes of B.D. Sharma4 the infringement of tribal rights and the violation of the Panchayats (Extension to Scheduled Areas) Act 1996 or PESA are grave enough matters warranting the term ‘crisis’. To some others (including Rajendra Singh5) the crisis may seem to be one of the relationship between state and civil society, with the state asserting its control over or even ownership of natural resources, and questioning the legality of civil society initiatives. (This is a reflection of the absence of ‘water democracy’ referred to earlier.) It is also now widely accepted that the special problems of women in relation to water, and the non-recognition of the rightful place of women in water management, are matters of urgent concern. To round off that enumeration, it may be added that to some the water crisis is a part of a larger crisis of wrong ideas of ‘development’ and a pathological relationship to nature. We shall return to that theme later. The identification of certain names with certain positions, above , was merely a matter of convenience. Each of them has a cluster of concerns and the clusters overlap; and there are many in the country who share some of the elements of those clusters.

4

Former Scheduled Castes and Tribes Commissioner, now an activist and champion of the rights of tribal communities. 5 Well-known promoter of water harvesting and social mobiliser of Rajasthan. Winner of Magsaysay Award.

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8 Crisis of Understanding

Taking all that into account, and turning the title of this section around, we might say that there is in fact a crisis of understanding. As mentioned earlier, the entire thrust in policy and planning so far has been on what is referred to as ‘water resource development’; the manner in which water was used or managed received little attention. There is an oddity here. A century ago, or even half a century ago, no one was worried about water scarcity. The general feeling was that there was an abundance of water in nature, and that all that we had to do was to build dams wherever possible to store river-waters for human use. That feeling of an inexhaustible supply has now been lost, but paradoxically enough, the new anxiety about an impending water crisis seems to lead to the same conclusion as before: ‘build more dams’, or ‘bring water from long distances’, and not ‘change our ways’. Incidentally, a good part of the water provided for any use— domestic, municipal, agricultural, industrial—will return to plague us as waste of one kind or another. Thus, the greater the supply of

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water, the greater the generation of waste and the problem of its disposal. This is an additional reason for extreme economy in water-use and the avoidance of a ready resort to supply-side projects. The readiness with which we fall into supply-side thinking is illustrated by the persistence of the slogans ‘Ganga–Cauvery Link’ and ‘Garland Canal’ in the popular mind long after they were examined and found impractical. The new Inter-linking of Rivers Project bears testimony to the continuing appeal of those ideas, and the next chapter will attempt a conceptual critique of the Project. (The Project had been taken note of and briefly discussed in the author’s earlier book.)

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9 Apotheosis of Fallacy: ILR Project

INTRODUCTORY The National Democratic Alliance (NDA) Government had announced a massive ‘Inter-linking of Rivers’ Project (ILR) in 2002. While this was welcomed by many, serious doubts and reservations were expressed by others. Subsequently, a change of Government took place, and the Common Minimum Programme of the United Progressive Alliance (UPA) Government stated that a comprehensive assessment of the Project would be made in a fully consultative manner. In partial pursuance of that indication, the Government set up a Committee of Experts, including a few persons from outside the governmental circles. There were also indications that the Government proposed to take up the links individually in a selective manner. Meanwhile, however, the Supreme Court continues to monitor the Project, and the Government appears to have assured the Learned Judges that it is proceeding with the Project.

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Moreover, in various speeches on different occasions, the Hon’ble President of India has also been commending the Project as an answer to the country’s problems of flood and drought, and future water scarcity. These well-meant interventions make a rigorous and objective examination of the Project by governmental agencies somewhat difficult.

TWO AMBIGUITIES As we proceed to look at the project, we encounter two basic ambiguities. (a) One claim, often heard, is that this is a ‘mega’ project, a major initiative, one of the biggest undertakings in the world, bigger than China’s Three Gorges Project, and so on. There is much professional pride and nationalistic sentiment in such statements. On the other hand, it is also stated that this is only a concept and not a project, and that it will be proceeded with gradually and carefully, link by link. There is either a lack of clarity here, or a deliberate ambiguity. (b) Similarly, we are sometimes told that much work has been done on the project, that there are pre-feasibility studies relating to almost all the proposed links, and that in respect of several links feasibility reports are available, but on other occasions it is stated that there is no project as yet and that things are at a very preliminary stage. The following questions arise: Are we talking about a concept or about a project? In the latter case, is it one ‘mega’ project or 30 individual projects? Has a good deal of work been done on them or are we at the earliest stages?

‘CONCEPT’ Let us look at the ‘concept’. It is a rather odd concept, though we may have failed to notice this. One would expect the water planners to

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start from the identification of the needs of water-scarce areas in Rajasthan, Madhya Pradesh, Maharashtra, Karnataka, Andhra Pradesh and Tamil Nadu, and work out area-specific answers to their problems. In each case, if we wish to proceed scientifically, the following questions will have to be asked: What is the extent of the problem? To what extent can local and intra-basin answers be found? Is there an inescapable need for bringing in water from outside? If that is so in a given case, and if that necessitates the linking of two rivers as the best answer, one can take a careful look at such a proposal. However, the project inverts that logical sequence: it looks at a map of India, decides a priori that the rivers of India should be linked, and then proceeds to consider the modalities of doing so. References are made to a ‘national water grid’ on the analogy of a power grid or the linking of highways. The analogy is inapt and misleading. In a power-grid or a highway-link, the movement can be in both directions, but that is not the case with a river-link; water will flow only in one direction. Apart from that, highways and power lines are human creations and can be manipulated by humans. Rivers are not human artefacts; they are natural phenomena, integral components of ecological systems, and inextricable parts of the cultural, social, economic and spiritual lives of the communities concerned. They are not pipelines to be cut, turned around, welded and rejoined.

JUSTIFICATIONS FOR THE PROJECT Continuing at the ‘concept’ level, let us take note of the two main justifications offered for the ‘inter-linking of rivers’. The first is that it is an answer to the occurrence of floods in some parts of the country and drought in other parts; that the project will transfer water from the former areas to the latter, providing some relief from floods to the former areas and making more water available to the latter. The second is that some river basins are ‘surplus’ in water while others are ‘deficit’, and that the project will transfer water from the former to the latter.

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It must be noted that these are two distinct propositions, but they are often mixed up.

‘Surplus’ and ‘Deficit’ Taking first the justification of transfers from surplus to deficit basins, there is the crucial question of how ‘surpluses’ and ‘deficits’ are determined. The assumptions behind the calculation of a ‘surplus’ will have to be gone into thoroughly, and even small changes in those assumptions and other parameters may affect the calculation substantially. This has been shown by Dr A. Vaidyanathan in an article in the Economic and Political Weekly (2003). Other scholars have also pointed out the problematic nature of the notions of ‘surplus’ and ‘deficit’ rivers (see for instance the paper by Jayanta Bandyopadhyay and Shama Perveen in Alagh et al. 2006). Further, apart from meeting the needs of drinking water, irrigation, industrial uses, etc., the river also serves ecological and other purposes, so that any diversion of waters from it, however small, is bound to have some consequences, major or minor. Similarly, it will be necessary to examine whether a projected ‘deficit’ is in fact the result of bad water management and unsustainable demands. If it is, the deficit will disappear with better water management. Careful, economical and sustainable intra-basin management should come first, and bringing water from elsewhere should be the last recourse. Moreover, even in the States that are presumed to be water-rich (e.g., Bihar, Orissa, Andhra Pradesh) there are problem areas, and ‘surpluses’, if any, should perhaps be first used in those areas rather than sent to distant places. Only a detailed examination of the pre-feasibility and feasibility reports (now beginning to be available in the public domain) will show whether all these aspects have been considered by the National Water Development Agency (NWDA). The fact that the first feasibility report so made available, namely the FR of the Ken-Betwa Link, has been examined by three scholars and found seriously wanting in many respects, is not reassuring.

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Flood Diversion Turning to the first justification, i.e., the diversion of flood waters, the ‘paradox of flood and drought’ is a formulation often heard in India. There is neither ‘paradox’ nor ‘irony’ here: floods and droughts are merely natural phenomena that impinge on our lives, depending on where we live. (It is hot and humid in Kolkata and Chennai and cool and pleasant in Darjeeling and Ooty, but no one has found any irony or paradox here or suggested that the temperature variations should be evened out!) What we should do about the occurrence of floods in one area, and what we should do about the water needs of arid or drought-prone or water-short areas, are two separate questions. Areaspecific ways of coping with these features of nature have to be, and can be, worked out. This is where the challenge lies. Unfortunately, the wrong perception of a paradox or irony here leads to the wrong answer, namely, the ‘inter-linking of rivers’ to divert flood waters to arid areas. The very idea of flood control has been questioned by some, but leaving that aside, it is not quite clear how the linking of rivers will contribute to the objective of flood control. A significant moderation of floods will call for a massive diversion of flood waters which may not be feasible at all, or if technically feasible, it may have serious impacts on the river regime downstream of the diversion point, on the diversion route and in the recipient areas. On the other hand, if only small fractions of the flood flows are to be diverted (as seems to be the intention), there will be hardly any flood moderation. Even if all the river-linking proposals are implemented, the contribution that this will make to the mitigation of the flood problem will not be substantial. Bharat Singh, Professor Emeritus at the Water Resources Training Centre at the IIT, Roorkee, and Member of the National Commission for Integrated Water Resources Development Plan (1996–99), has observed categorically that ‘any water resources engineer will immediately discard the idea of the inter-linking of rivers as a flood control measure.’1 However, if we wish to put aside those doubts and undertake a more detailed examination of this matter, the questions to be considered 1

‘A Big Dream of Little Logic’, The Hindustan Times, 9 March 2003.

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will be the following: (a) How much of the flood is proposed to be transferred? (b) What degree of flood moderation will this provide to the area in question? (c) What has been the past experience with floodmoderation through big projects? (d) What will be the impact of the diversion on the downstream river regime, aquatic life, livelihoods of riparian communities, water quality and self-purifying capacity, groundwater re-charge, estuarine conditions, etc.? (e) What will be the impacts (good and bad) of the water en route as it travels to the destination? (f) What will be the impacts (good and bad) of the transfer of water on the recipient river/area? (g) Are the floods in the ‘donor’ area and the droughts in the recipient area synchronous, and if not, where will the waters be stored temporarily, and what will be the impacts of those storage projects? (These questions will also be relevant in the examination of transfers of surpluses to deficit areas.)

Power Generation A further justification offered for the project is that there will be a net generation of electric power (of upwards of 30,000 MW). This seems questionable and in need of careful examination, but it is a secondary aspect that need not be gone into here.

Answer to Drought? It is primarily in the context of drought that the project might appear to be needed. However, two points must be noted. In the first place, the proposed river links (reportedly mainly by gravity, with a few modest lifts) are no answer to drought-prone areas. Linking a river to another will merely provide additional water to areas already served by rivers. Most of the uplands and dry lands of this country are distant from rivers, and at elevations of 300 m to 1,000 m above mean sea level. The ILR will serve very few such areas. The second and complementary point is that fortunately no such long-distance transfer is necessary. There are several well-known examples of the transformation that can be brought about through

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local rainwater-harvesting and watershed development even in lowrainfall areas. In brief, the primary answer to drought has to be local; it is only thereafter, and in some very unpromising places where rainwater-harvesting may not be feasible or may yield meagre results, that the bringing in of some external water may need to be considered.

Water for Irrigation? Turning to water transfers for irrigation, these may be proposed either for providing additional water to areas already under irrigation or for extending irrigation to arid or ‘rainfed’ areas. In both cases, difficult questions arise. In irrigated areas, the question is whether large demands for additional irrigation water should be unquestioningly accepted and met through supply-side solutions such as large dams or inter-basin transfers. Should not serious attempts be made to improve water-use efficiency in irrigated agriculture, get more value out of a given quantum of water, reduce the water-demand, and minimise the need for supply-side projects? In the context of the prevailing low efficiency of water-conveyance in canal systems and water-use in irrigated agriculture, bringing in more water from another basin would really amount to the provision of more water for being wasted. It would also mean that there would be no motivation at all for changing cropping patterns and shifting from water-intensive crops to crops that need less water; on the contrary, the tendency to grow water-consuming crops would receive strong encouragement. In arid or drought-prone areas, the introduction of irrigated agriculture of a kind appropriate to wet areas may be unwise. It can be argued that the Rajasthan Canal Project was not a good idea but a misconceived one. That may be a controversial statement, but the slogan of ‘making the desert bloom’ is not necessarily a sound one. ‘Development’ in arid areas should perhaps take other, less water-intensive forms. In both irrigated and rainfed areas, the importation of external water may also have other secondary consequences: the increased incidence of conditions of waterlogging and salinity (a concomitant of

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irrigated agriculture in many places); the possibility of the repetition of the ‘Green Revolution’ patterns of agricultural development and the related problems (which need not be spelt out) and so on. These are not unavoidable consequences of additional water, but they are dangers that have to be kept in mind: given more water, there would be a natural tendency to slip into familiar agricultural practices.

Minimal Lifts? It has been claimed that the flows will be largely by gravity with lifts (not exceeding 120 m) at a few selected points, and that the need for a transfer of water through natural barriers will be obviated. Two questions arise. First, such an approach may be possible in some cases, but its feasibility in some thirty projects seems prima facie doubtful. This, like the claim referred to earlier that the project will be a net generator of large quantities of electricity, needs to be looked at very carefully, case by case. Second, if indeed the links are to be largely by gravity with a few modest lifts, will not such an approach limit the extent of water transfers and the scope of the project? Can large claims still be made for the project? There seems to be a dilemma here: if we want an ambitious project we must go in for massive lifts and incur the related costs and risks of gigantism; alternatively we must content ourselves with a modest project, in which case, we cannot present this as the answer to the country’s future needs.

IMPACTS AND CONSEQUENCES The project will be a major intervention in nature and is potentially fraught with serious consequences. It will necessarily involve dams, reservoirs, diversion of waters, canal systems, and so on. By now there is adequate knowledge of what all this entails, and it is not necessary to spell that out in detail. (That kind of hubris, one thought, was a thing of the past, but it appears that one was wrong.) Leaving aside submergence, displacement, impacts on flora and fauna, and so on,

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let us take note of one point, namely, that before diverting waters and reducing downstream flows we must make sure that serious consequences will not follow. Let us remind ourselves of the river-diversions by the former Soviet Union that led to the virtual death of the Aral Sea. A degree of caution seems warranted before the Government embarks on this enterprise. (Those who advocate caution are apt to be accused of timidity and exhorted to look at China. The fact that the Government of China has been able to push the Three Gorges Project through does not prove that it is a good project. Only the future can tell us whether it is a boon or a disaster. The opposition to Three Gorges in China is muted because dissent is not easy in that country; but it exists.2 Those who are envious of China’s ability to ‘get things done’ must reflect on how far they are prepared to go in emulating that system.)

GENERATING NEW CONFLICTS? We have not so far been able to persuade states within a basin to share river waters (e.g., the Cauvery Dispute); instead of resolving such intrabasin disputes through the better, more economical and more cooperative management of the resources of the basin, should we try to bring water from another and more distant basin? Further, even if we assume that the conflict within a ‘water-short’ river-basin will be eased by the importation of external water, such an effort may initiate new conflicts between basins. Several State Governments are opposed to, or lukewarm about, the river-linking project. Bihar, West Bengal, Punjab, Maharashtra and Kerala are examples. Kerala is stoutly opposed to the proposed Pamba-Achankovil-Vaippar link. There is also some opposition on the part of Karnataka to the idea of the eastward diversion of west-flowing rivers. It may be argued that we should not allow ourselves to be deterred by such political difficulties, but is it really necessary to generate several new inter-State conflicts? 2 There are doubts both within China and outside about the wisdom of this kind of interventionism. See Ma 2004 and Economy 2004.

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The NWDA proposals include a Brahmaputra–Teesta (or alternatively, a Brahmaputra–Ganga) link, but one wonders whether major diversions from the Brahmaputra are likely. Perhaps we need not discuss this further except to say that the sensitivities of the northeastern States must be kept in mind. It seems hardly necessary to add one more element of discord in an already difficult situation. Turning to international aspects, there are serious apprehensions about this project in Nepal and Bangladesh. These may be justified or misconceived, but criticisms of the kind that one heard in earlier years from Nepal in relation to the Kosi and Gandak projects and from Bangladesh in relation to the Farakka Barrage are being voiced again. It is very necessary for the Government of India to explain matters and minimise if not eliminate misunderstandings.

DIVERSIONS FROM THE GANGA? A link between the Himalayan and Peninsular components seems envisaged (Ganga–Damodar–Subarnarekha–Mahanadi). This has caused concern not only in Bangladesh but also within India, in Bihar and West Bengal. When this point was raised sometime ago, it was stated by a senior official of the Ministry of Water Resources that ‘at no point would waters of the Ganga be transferred to any of the Himalayan or Peninsular rivers’ (Radha Singh 2003 [a]). If no transfers are envisaged, there is nothing more to be said. However, the proposals of the NWDA did include some transfers from the Himalayan rivers westwards and southwards. It is that kind of expectation that gives the project its popular appeal, particularly in the south. Here again there is some (perhaps inadvertent) ambiguity. Does the river-linking project include any diversion from the Ganga, and if so, how are the apprehensions of Bangladesh, Bihar and West Bengal going to be set at rest? If no such diversions are intended—at any rate the Himalayan links seem to have been deferred for the time being—how is the Government of India going to disabuse the southern States of the wrong impression that waters from the north will flow to the south in large quantities under this project?

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NEED FOR EXAMINATION OF INDIVIDUAL LINKS If we proceed from the ‘concept’ or umbrella project to the individual links, it is clear enough that in each case there will have to be an examination of the calculation of surplus and deficit, the need for the transfer/link, whether it represents the best out of the available options, its techno-economic soundness and viability, the projected benefits, the environmental/ecological implications and remedial measures, the human aspects (displacement, resettlement and rehabilitation, and the rights and risks of the affected people), the international dimensions (if any), and in the light of all these, a comprehensive technosocio-economic-ecological analysis of the balance of costs and benefits (including the non-quantifiable aspects) and an appraisal of the project for an investment decision. We do not know what the outcome of that process will be: all projects may pass the test; all may fail; or some may survive a stringent scrutiny while others may not. In advance of that process, a project was announced in 2002 and expectations were raised in the general public. There was reason to fear that this might compromise the whole process of examination, evaluation and clearance.

PRE-EMPTING OF RESOURCES The undertaking of this mammoth project, not reckoned earlier in the planning processes, may lead to serious distortions in the planning and budgeting processes, a pre-empting of resources, and a distraction of attention from the things that need to be done.

PRIVATE INVESTMENT? PRICING OF WATER? Apart from the pre-empting of resources, the huge costs involved in the linking of rivers and long-distance water transfers will make the water at the receiving end very costly indeed. There is hardly any possibility of recovering even a fraction of those costs from the users,

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who will doubtless argue that this is infrastructure development and that the state must bear the cost. However, the possibility of private sector investment is also being explored, and the question arises whether the investors will be able (or should be allowed) to charge full commercial prices. The Enron case comes to mind. Moreover, the question of private sector investment also raises the issue of entrustment of control over natural resources into private (and perhaps even foreign or multinational) corporate hands. These aspects and dangers can only be flagged at this stage. There is not enough information at the moment for a proper discussion of these matters.

CONCLUSION What this chapter has attempted is a broad conceptual critique. It is clear that there are many questions that need to be gone into, both in relation to the project concept and in relation to each specific link. The ‘consultative’ approach promised by the Government and the setting-up of an Expert Committee for the purpose tend to focus attention on particular links and offer no opportunity for a fundamental examination of the grand design.

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10 Supply-side Conundrum

To obviate misunderstanding, it needs to be stated that the position taken here is not that supply-side action is unnecessary. A few words need to be said about this. There are only three ways in which water available for use can be augmented: rainwater-harvesting, groundwater drilling and large projects (for storage, i.e., dams and reservoirs, or for long-distance water transfers such as the ILR Project).1 Each of these would have its impacts and consequences. The impacts and consequences of large dams are by now fairly well known. In recent years, the reckless exploitation of groundwater and the consequent depletion and/or contamination of aquifers have begun to cause serious concern. Rainwater-harvesting has barely begun to be promoted, but some critics have already started cautioning against extensive recourse to this.2 1 At a recent meeting, it was pointed out that moisture in atmosphere and soil was also a source of water and needed to be conserved. The validity of the point is acknowledged. 2 See articles in The Hindu by T.N. Narasimhan, the author and Chetan Pandit on 6 January, 27 January and 10 February 2004.

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There seems to be a dilemma here. Local rainwater-harvesting, if carried too far, may (according to some) reduce the run-off that eventually goes to form rivers; and once the river is fully formed and flowing, a dam on it has a damaging impact on the river regime. The dilemma can be dramatically posed as follows: shall we intercept the run-off through rainwater-harvesting and impede rivers from forming, or shall we let the rivers form and flow and then kill them with a dam? It is an unreal dilemma. Local rainwater-harvesting, if carried out judiciously and with proper hydrological guidance, need not reduce the run-off significantly or have any perceptible impact on river-flows. Given the fact what is available in nature is not just the river-flow (1,953 BCM) but rainfall which is a much larger figure (4,000 BCM), we can hypothesise that prima facie, and speaking subject to correction, there is some scope for capturing a little more of the rainfall, adding to the availability of water for use. This is a matter for research, but some scholars have projected a figure of ‘additional run-off capture’ of 140 BCM (Chopra and Goldar 2000). That number may be questioned, but it suggests that this could be a significant component of water planning. In any case, if we rule out big dams because they have serious impacts, if we rule out rainwater-harvesting because it disrupts run-off, and if we rule out groundwater-extraction through power-driven tubewells and borewells because of the danger of resource depletion, what options are left? Perhaps the right answer is that all these means may be used but wisely, in moderation, and in a sensible combination, but how is that excellent prescription to be translated into practice? And what would constitute a sensible combination? The author’s own recommendation would be the treatment of local, community-led augmentation as the first choice, with big dams and long-distance water transfers as projects of the last resort, to be adopted only where they are the unique option or the best of available options; and the imposition of severe restraints on the exploitation of groundwater. What is the justification for that reversal of the long-established thinking that treats big projects as the first choice? First, if (as argued earlier) the approach of local augmentation holds promise of some addition to availability, then special emphasis needs to be laid on it;

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that will not happen so long as the orientation continues to be towards big projects. A change in that orientation is therefore necessary. Second, the option of local augmentation, where available, seems preferable to bringing in water from large and distant storages, with related costs, losses and other problems, except where the latter is the only course open or the best of available options. Third, big projects have formidable impacts and consequences (ecological, social, human); those of small local interventions are far more manageable. While accepting the need for some augmentation of supply, it needs to be repeated that the primacy that we have so far given to supplyside thinking must be shifted to the restraining of demand, the maximisation of value (i.e., utility or benefit) from each unit of water, the minimisation of waste, and the remedying of injustice and inequity; and that this must be accompanied by a transformation of our ways of thinking about water on the lines outlined in the Preamble. Bringing about such a transformation would of course be very difficult. It would be much easier to build a dam or drill deep for water. However, it should be clear enough from what has been said so far that the easier or seemingly more realistic course is not necessarily the wiser one. That kind of thinking has brought us to the brink of disaster; persistence in it will merely hasten our passage across the brink; it will not lead us out of disaster.

II

UNDERSTANDING CONFLICTS: RIVER WATER DISPUTES

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11 Indus Treaty: A Re-examination

This section of the book is concerned with river-water disputes between countries and between political units within a country. We begin with the Indus Waters Treaty 1960 between India and Pakistan. This chapter presents to the readers an understanding of that Treaty which is somewhat different from the generally prevalent view, and argues that differences such as those relating to the Baglihar and other projects are the inevitable outcome of, and are almost built into, the Treaty.

THE TREATY IN OUTLINE First, however, the background must be very briefly outlined. In 1947 the line of Partition of the Indian subcontinent cut across the Indus river system, leading to the disruption of well-established irrigation

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systems. The newly created Pakistan felt that it was vulnerably dependent on Indian goodwill, and in fact there was a disruption of flows in April 1948 through an act of the provincial Punjab Government, though Nehru intervened and rectified this. Negotiations began soon thereafter, and were tortuous and difficult. Prolonged talks between the two Governments, assisted by the good offices of the WB, led to the signing of the Indus Waters Treaty in 1960. The water-sharing under the Treaty (ignoring the details given in the Annexes and Appendices) was quite simple: the three western rivers (the Jhelum, the Chenab and the Indus itself) were allocated to Pakistan, and the three eastern rivers (the Ravi, the Beas and the Sutlej) were allocated to India. However, on the western rivers India was allowed some limited uses (agriculture, drinking water, non-consumptive uses, hydroelectric power generation, etc.) subject to fairly severe restrictions and conditions. India was not allowed to build storages on the western rivers, except to a very limited extent as mentioned in the Treaty; and even run-of-the-river hydroelectric projects had to conform to certain technical stipulations. There were also provisions regarding the exchange of data on project operation, extent of irrigated agriculture, and so on. The Treaty further mandated certain institutional arrangements: there was to be a permanent Indus Commission consisting of a Commissioner each for India and for Pakistan, and there were to be periodical meetings and exchanges of visits. Provisions were included for the resolution of the differences that might arise. (Questions, if any arose, were to be resolved within the Commission; if agreement could not be reached at the Commission level, the matter was to be referred to the two Governments; if they too failed to reach agreement, the ‘question’ would become a ‘difference’ to be referred to a Neutral Expert (NE). The Neutral Expert’s findings on the differences referred to him would be final and binding. If the NE decided that the matter was in fact a ‘dispute’, it would have to go to a Court of Arbitration.) The Treaty also included the provision of international financial assistance to Pakistan for the development of irrigation works for utilising the waters allocated to it, and India too paid a sum of £ 62.06 million as laid down in the Treaty.

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PREVAILING VIEWS OF THE TREATY International View Internationally, the Indus Waters Treaty 1960 is regarded as a successful instance of conflict-resolution between two countries that have otherwise been locked in conflict. It is customary to draw attention to the fact that the Treaty has remained in place despite three wars between India and Pakistan. It even survived the serious deterioration in the relations between the two countries following Kargil. It was also the practice until recently to express satisfaction at the fact that the arbitration provisions of the Treaty had not so far been invoked, but that position has changed now.

Dissatisfaction in India and Pakistan That favourable view of the Treaty as a successful instance of conflictresolution is prevalent to a large extent in India and Pakistan as well, but there is also a measure of dissatisfaction with the Treaty in both countries. There is a body of opinion that the division of waters under the Treaty was unfair, but the unfairness alleged in one country is the exact opposite of that alleged in the other country. There is extensive writing on the subject in India. The Pakistani dissatisfactions with the Treaty have also found expression in articles in the media, including one in the issue of Economic and Political Weekly, Mumbai, dated 26 February 2005 (Gazder 2005). Quite apart from the fairness of the sharing of waters in terms of percentages, the real difficulty from the Indian point of view is that certain projects that India has planned on the western rivers are stalled because of Pakistan’s objections. One such project, the Salal Hydroelectric Project on the Chenab, was under prolonged discussion at the Commission level and later between the two Governments, and was eventually accepted by Pakistan (with some agreed changes) in the 1970s. However, differences over other projects—Tulbul or Wullar,

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Baglihar and Kishenganga—are unresolved. Work on Tulbul was stopped 15 years ago, and has not been resumed. On Baglihar, Pakistan invoked the arbitration clause of the Treaty for the first time, a Neutral Expert was appointed, and his work is still in progress. The process might end with the Neutral Expert’s findings (which will be final and binding) on the points of difference referred to him, or if he finds that there is a ‘dispute’, it might go to a Court of Arbitration. Tulbul and Kishenganga have been under discussion, but the impasse continues.

Unhappiness in Jammu and Kashmir All those projects are in the State of Jammu and Kashmir (J&K). There is much unhappiness in that State at the fact that the restrictions placed on India in relation to the western rivers make it virtually impossible for that State to derive any benefits by way of irrigation, hydroelectric power, navigation, or other from the waters of rivers Jhelum and Chenab that flow through the State. Successive Jammu and Kashmir Governments and Legislatures have complained that the Treaty did not take care of the interests of the State. That feeling is shared by the people, media, academics, and others in the State. From time to time there have even been calls for a scrapping of the Treaty.

Post-Kargil Calls for Abrogation The dissatisfaction in some quarters in India with the water-sharing proportions, and the sense of frustration at the stalling of projects, were aggravated in 2002 by anger at the harm that Pakistan was perceived to be inflicting on this country through what came to be known as ‘cross-border terrorism’. This resulted in the advocacy by some commentators of the abrogation or re-negotiation of the Treaty. One does not know whether any such proposal was ever considered at the governmental level or not, but no such move was actually made. The relations between the two countries have since shown signs of improvement.

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SOME QUESTIONS From that brief account of the Treaty and the prevailing views about it, let us proceed now to a consideration of some of the questions that arise.

Successful Conflict Resolution? First, is the Treaty really a successful example of conflict resolution? The answer has to be ‘Yes and No’. One must give due credit to the fact that the Treaty has managed to survive three wars, that the Indus Commission has continued to meet even when the political relationship between the two countries was extremely bad, and that at the working level the relationship between the officials of the two countries has been marked by cordiality. However, the water-sharing under the Treaty was (as mentioned earlier) a simple division of the rivers, with no continuous water-sharing on the same river. The Treaty itself was doubtless the resolution of a conflict, but once the Treaty was signed, there was nothing much thereafter to ‘operate’. The high praise of the Indus Treaty as a successful instance of conflict-resolution seems somewhat exaggerated. Echoing E.M. Forster on democracy, one might say that two cheers are quite enough for the Indus Treaty, and that three cheers are not called for.

Surgery on the River System Second, what the Treaty did was to carry out a surgery on the river system, dividing it into two segments, one for Pakistan and one for India. The ‘surgery’ on the river-systems (Indus in the west, Ganga– Brahmaputra–Meghna in the east) was of course a part of the surgery on the subcontinent. That surgery is now a fact of history. However, without entering into a discussion of that division, it must be noted that in deciding whether the subcontinent should be divided, little if any attention was paid to the fact that major river-systems were going to be cut across. That did not figure as a factor in the decision-making

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but was only considered later as a consequence of a decision taken on other grounds. It can be and has been argued that dividing the river-system into two segments was not the best thing to do, and that the better course would have been for the two countries jointly to manage the entire system in an integrated and holistic manner. However, given the circumstances of Partition and the difficult relationship between the two newly formed countries, it would have been naïve to expect that such a joint integrated cooperative approach would work. Even now, with the improvement in the political climate and the resumption of talks, one is not sure that the vision of more enlightened cooperation on the river system will be easy to realise.

Why Not River-wise Sharing? If the ideal solution—joint integrated management of the system as a whole—was unavailable, then the choice had necessarily to fall on the second-best solution. However, one would have expected that secondbest solution to take the form of a water-sharing on each of the six rivers constituting the system. That would surely have been technically feasible. It would no doubt have been difficult to operate. Continuous sharing on each river with joint monitoring arrangements and so on might have proved cumbersome, difficult and productive of endless disputes. However, would that process have been more contentious than the present situation? Why then was a division of the system into two agreed upon? We shall return to this.

Fair Sharing of Waters? Third, was the sharing of waters fair? Many in India feel that the allocation of 80 per cent of the waters to Pakistan and 20 per cent to India was an unfair settlement foolishly accepted by the Indian negotiators; and many in Pakistan argue that the territories that went to India under Partition were historically using less than10 per cent of the Indus waters, and that the Treaty was generous to India in giving it 20 per cent of the waters. Both are fallacious arguments. A share of 20 per cent is

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not ipso facto low; on the other hand, the level of historic use (10 per cent or whatever) does not necessarily determine a country’s future needs or entitlements. A multiplicity of factors and criteria have to be applied, having regard to all the relevant circumstances; no a priori view on what is fair is possible. All that one can say is that when prolonged inter-country negotiations by teams acting under governmental briefings leads to a Treaty, and the Treaty is approved and signed at the highest levels, it must be presumed that it was the best outcome that could have been negotiated under the given circumstances; either side is then precluded from saying that it was unfair, unequal, poorly negotiated, etc. If a degree of dissatisfaction with the Treaty arises in the course of operation of the Treaty, that would be a matter for inter-country discussions within the ambit of the Treaty, or a re-negotiation of the Treaty. (We shall return to that question also.)

Arbitration Regrettable? Is the invocation of the arbitration provisions a matter for regret? The answer is ‘No’. The Treaty provides for arbitration. That would also be action under the Treaty, and not a breakdown of the Treaty. The outcome of the process (findings by the Neutral Expert or a decision by the Court of Arbitration, if that contingency arises) will have to be accepted by both sides, even if one side has (or both sides have) reservations on the result. (Presumably the two sides are not precluded from continuing their discussions, arriving at an agreement and reporting it to the NE or the Court of Arbitration, as the case may be.)

HOW DO THE DIFFERENCES ARISE? We now come to the crucial question: why are certain differences (using that term in the ordinary sense) proving intractable? Broadly speaking, the Pakistani position is that the Indian projects on the western rivers constitute violations of the Treaty by India; India denies this. Which party is right? That question cannot be easily answered because we (the general public) are generally not in possession of all the technical details of

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the projects and are not privy to the discussions that take place between the two governments. Even if we were, our view of which side is right will be only one more opinion, without any authority. It is really for the two Governments to reach an agreed position, or to seek arbitration. However, we can try and understand how the differences over these projects arise. To put it very briefly, they arise from different approaches to, and interpretations of, various provisions of the main text of the Treaty, but even more, of the detailed provisions and specifications contained in the numerous Annexures and Appendices to the Treaty. Ignoring the complexities involved and simplifying matters, one may say that Article III(4) of the Treaty basically precludes the building of any storages by India on the western rivers, except to a limited extent carefully laid down in Annexures D and E, which also specify technical conditions relating to run-of-the-river hydroelectric projects, such as limits on raising artificially the water level in the operating pool, pondage levels, the placement of the gates (where a gated spillway is considered necessary), location of intakes for the turbines, and so on. One can immediately see how differences arise. One party can claim to be in full conformity with the criteria laid down in the Treaty, and the other party can say that this is not the case. That is exactly what has been happening. The technical divergences between the two sides were doubtless rendered more intractable by the bad political relationship between the two countries over a long period, but the likelihood of differences was inherent in the nature of the Treaty. There are two reasons for that statement, which are explained below.

Two Basic Factors (a) A Highly Technical Treaty The first reason is the density of technical detail in the Treaty, which provides ample opportunities for differences among engineers. It is interesting to compare this Treaty with the Mahakali Treaty between India and Nepal, or the Ganges Treaty between India and Bangladesh. The latter two are relatively non-technical documents that are easy to understand, even for non-engineers. On the other hand, while the

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main part of the Indus Treaty is fairly slim and not too dense, the devil is in the detail: the Treaty is accompanied by several Annexures and Appendices of a highly technical nature. It is these Annexures and Appendices that determine the overall character of the Treaty. The engineers on the two sides can have a field day disagreeing on the meaning and precise application of the various technical features and criteria that the Annexures and Appendices contain. The Treaty provides a happy hunting ground for technical disagreements.

(b) Nature of Division under Treaty The second reason is the nature of the division of waters under the Treaty. Having basically allocated the western rivers to Pakistan and allowed some limited use by India, the Treaty imposes strict restraints on Indian projects on those rivers to safeguard Pakistan’s interests. Thus, the Treaty is both permissive and restrictive towards Indian projects—particularly big projects—on the western rivers. India wants to use those permissive provisions to the full. It is aware of the dissatisfaction in the State of J&K, and would like to remove that grievance. It therefore formulates projects such as Salal, Tulbul, Baglihar, Kishenganga, and so on. However, the Treaty requires India to send all the technical details of such projects to Pakistan in advance, providing that country with an opportunity to satisfy itself that the restrictive provisions are fully complied with. It is entirely proper that it should do so. Unfortunately, this also provides an opportunity for the divergence between the two countries to become manifest.

Divergent Approaches The Indian and Pakistani approaches to Indian projects on the western rivers are bound to be fundamentally different. The Indian engineers would tend to plan and design projects on the western rivers exactly as they would anywhere else, but try to make them conform to the criteria laid down in the Treaty and Annexures D and E. As professionals, their orientation would be to plan and design techno-economically sound projects that would yield the best benefits in the given physical

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circumstances. In doing so, they would doubtless keep in mind the limitations imposed by the Treaty, but their primary concern would be with techno-economic soundness. (It must be mentioned that the need for techno-economic soundness and satisfactory operation is recognised in the Treaty.) On the other hand, in their examination of the Indian plans and designs, the Pakistani engineers would be primarily concerned with protecting Pakistan’s interests under the Treaty and not with the necessity for or viability of the Indian projects. They would tend to start from the Treaty provisions and limitations as the governing and paramount considerations, and treat techno-economic considerations as secondary. It is the Indian view that Pakistan is negatively inclined and tries to find grounds for rejecting all Indian proposals. Even if that is not true, Pakistani officials may apply the Treaty criteria far more stringently than their Indian counterparts, and suggest changes, modifications or alternatives that may appear techno-economically less sound or less attractive to the latter. The upshot is that Pakistan tends to accuse India of planning works that are violative of the Treaty, and India complains about what it perceives as Pakistan’s negativism and deliberate obstruction of any effort by India to utilise even the limited rights given to it on the western rivers.

ADVERSARIAL SITUATION CREATED BY TREATY Pakistan, as the lower riparian, tends to look with anxious eyes at any attempts by India to build structures on the western rivers. Structures give control, and Pakistan is reluctant to agree to India acquiring a measure of control over rivers that stand allocated to Pakistan. Pakistan is apprehensive of the structures in question enabling India either to reduce water-flows to Pakistan or to release stored waters and cause floods. Its objections are thus partly water-related and partly securityrelated. The requirement of advance information and the opportunity of raising questions give Pakistan virtually a veto power over Indian projects on the western rivers, which Pakistan, with security anxieties prominently in mind, would (not surprisingly) tend to exercise in a stringent rather than accommodating manner.

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The Indian position is that the security fears are misconceived as India cannot flood Pakistan without flooding itself first and that its capacity to reduce flows to Pakistan is very limited. Besides, the only circumstance in which Pakistan can be completely free from anxiety would be the total absence of any structures in India on the western rivers; but that is not what the Treaty says. It permits such structures, subject to conditions that would take care of Pakistani concerns. It follows that what Pakistan can ask for is conformity to the Treaty: that would give Pakistan the protection that it seeks. The argument goes on. Thus, though the Treaty did resolve the water-sharing issue, it created a potentially adversarial situation in relation to the Indian use of the western rivers.

POLITICAL DIMENSION There is a further political dimension to these differences that must be kept in mind. One can speculate—and this is no more than speculation—that Pakistan is perhaps not keen on letting these projects go forward because (a) they are in what it regards as disputed territory, and (b) the benefits of the projects would go to J&K under Indian auspices. Hence (presumably) the stalemate Tulbul, Baglihar, etc., might not have proved so difficult to resolve if they had been located not in J&K but elsewhere. However, Pakistan did at one stage let Salal proceed under certain conditions; that has not happened in the case of Baglihar or Kishenganga, for whatever reason.

ALLOCATION: WHY DID INDIA AGREE? Essentially then, the intractable differences arise from the fact that under the Treaty India has limited rights on the western rivers and cannot undertake projects on those rivers without providing all the details to Pakistan and dealing with Pakistan’s objections. Why did India put itself in that position? The answer is that if Pakistan got the nearexclusive allocation of the three western rivers, India for its part got the eastern rivers. This was important from the point of view of the

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Indian negotiators, because the water needs of Punjab and Rajasthan weighed heavily with them in seeking an adequate allocation of Indus waters for India. As early as in 1953, many years before the Treaty, thinking had begun on the transfer of waters from the eastern rivers to Rajasthan through a canal. In the 1950s again, Bhakra Nangal was already under construction. If the Ravi, Beas and Sutlej had not been allocated to India, Pakistan would have had the usual lower-riparian rights over these rivers, and would have had to be consulted about these projects, and would surely have raised objections. The projects might not have come up at all, or might have had to be substantially smaller. In a sense, one might say that the allocation of the eastern rivers to India under the Indus Treaty removed Pakistan from the picture in relation to these rivers, and retrospectively legitimised the Bhakra Nangal and Rajasthan Canal Projects. The price paid for this was the sacrifice of rights over the western rivers. The difficulties that this would lead to in due course, and the discontent that this would cause in J&K, were perhaps not anticipated. Having signed away the western rivers to Pakistan, India has since been trying to remedy the situation to the extent possible within the four corners of the Treaty, and coming up against the contours of the Treaty as well as resistance by Pakistan.

WHERE DO WE GO FROM HERE? If the fact that India has limited rights on the western rivers makes it very difficult for it to build projects on those rivers, what should it do? It could decide to abide very strictly by the restraints placed on it by the Treaty, and stop trying to undertake big projects on the western rivers. If that is not considered possible or desirable, it could continue to try to persuade Pakistan that the projects are in compliance with the Treaty, or get a favourable finding from the Neutral Expert or the Court of Arbitration. Alternatively, it could try and seek a revision of the Treaty. Abrogation of the Treaty is out of the question, but re-negotiation is a theoretical possibility. To revert to a point made earlier, India could

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seek a water-sharing on the western rivers. That would give India a position vis-à-vis the western rivers which it does not have at present. However, there are three difficulties here. First, Pakistan may not agree to a re-negotiation, or if it does, it may (understandably) want to improve its position on the western rivers. (Incidentally, some Pakistani writers have raised questions about India’s right to talk about the rivers that flow through J&K, though the Indus Treaty implicitly recognises this; that question too may get raised in the new negotiations.) Second, even if India manages to negotiate a somewhat better position on the western rivers, the lower riparian’s anxiety over upper riparian control might still necessitate conditions and restrictions on Indian structures on the western rivers; that problem may not disappear. Third, India cannot expect to restrict the re-negotiation to the western rivers; the eastern rivers will also be part of the agenda. If India wants to seek more rights on the western rivers, it may have to give Pakistan some rights on the eastern rivers. Is that feasible at this stage? Would that not open a Pandora’s Box? The issues that might arise if the eastern rivers are opened to re-negotiation need not be spelt out here. (Parenthetically, even an abrogation of the Treaty—apart from the wrongness of such a course—is not necessarily an advantageous step for India to take: it may extinguish Pakistan’s special rights on the western rivers, but that country would continue to have normal lowerriparian rights under international law on those rivers; and its lowerriparian rights on the eastern rivers, now overridden by the Treaty, would stand revived.) Having regard to all those complications, perhaps it would be better to leave things as they are, and hope that with improving political relations a more reasonable and constructive spirit will prevail in the future than in the past. That applies to both sides. India may legitimately expect Pakistan to be more positive and reasonable in its examination of Indian proposals relating to the western rivers, but equally, India will have to be scrupulously mindful of the limitations and criteria laid down in the Treaty, and not chafe at them as being unduly restrictive. That may not appear to be a wonderful or innovative solution to the difficulties that have been discussed, but given the complexities involved, nothing better seems available.

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‘INDUS II’? At this stage, we must take note of a vision of possibilities of constructive India–Pakistan cooperation over the Indus, going beyond the existing Indus Treaty, that B.G. Verghese has been putting forward under the title of ‘Indus II’.1 No one would wish to deprecate such a vision. However, there is a basic difficulty here. The Indus Treaty 1960 is essentially a partitioning treaty, a coda to the partitioning of the land. How can we build cooperation on that basis? How can there be any joint projects under the Treaty as it stands? Verghese cites Article XII which talks about modifications to the Treaty, but that Article has no great significance: it merely says that the Treaty can be modified by another Treaty. Essentially what this means is that if you want to bring about a change you have to negotiate a new Treaty. Even without Article XII, that could have been done. The point is that a new Treaty of cooperation would have to be fundamentally different from the existing Treaty of division and cannot be built on it. Verghese refers to Article VII about ‘Future Cooperation’, but what kind of cooperation does the Article envisage? It begins by referring to ‘common interest in the optimum development of the rivers’ and of cooperation towards that end, but proceeds to such instances of cooperation as the establishment of hydrological and meteorological stations and sharing of costs on drainage works. That is a very limited understanding of cooperation. Clause 1(c) does talk about cooperation in engineering works, but Clause 2 reverts to the general adversarial relationship embodied in the Treaty (the supply of advance information about engineering works to the other party, etc.). The point is that Article VII, and in particular Clause 1(c), is at odds with the rest of the Treaty. How can cooperation in ‘the optimum development of the rivers’ and the joint undertaking of ‘engineering works on the rivers’ be reconciled with a division of the river system into two segments, one for Pakistan and one for India? Hypothetically speaking, if the two countries were to agree to undertake a certain project (say Tulbul or Baglihar) jointly, does that mean that the restraint imposed by Article III(4) of the Treaty 1

See for instance The Tribune, 25–26 May 2005.

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on the building of storages by India on the western rivers, and the detailed provisions of Annexures D and E stipulating conditions about pondage, placement of spillway gates, and so on, will not apply to such projects? In other words, does Article VII override the provisions of Article III and Annexures D and E? Where in the Treaty is there any basis for such an understanding? There are no detailed provisions applicable to joint projects in the Treaty. The Treaty is basically about a division, restricting India’s rights on the western rivers and Pakistan’s on the eastern rivers; two isolated sentences about ‘cooperation’ and about ‘undertaking engineering works’ cannot change the entire nature of the Treaty. It appears to the author that the existing Indus Treaty offers no scope for the kind of ‘Indus II’ that Verghese has in mind. If we want a new relationship between the two countries on the Indus (and all of us would agree with Verghese on this), a totally new treaty will have to be negotiated; it cannot grow out of the existing Treaty; and questions will immediately arise about the co-existence of two divergent treaties. Even if we ignore that aspect, any negotiation on an ‘Indus II’ will provide an opportunity for a re-opening of all the old settled issues, and the various difficulties mentioned earlier will arise. Perhaps when the Kashmir issue has become a thing of the past, and the relations between India and Pakistan have ceased to be adversarial, we can think of a better Treaty on the Indus in replacement of the existing one; for the time being, it might be wiser to leave the existing Treaty as it is, and try to bring about a more constructive and cooperative approach to its working.

A FINAL CAVEAT The discussion in this chapter has been with reference to the provisions of the Treaty, the perspectives of the two Governments, and the issues that tend to figure in the talks between them. It does not go into the question of proper water-management in the Indus Basin. The waters of the Indus are being badly mismanaged on both sides of the border, as evidenced (for instance) by the serious incidence of waterlogging

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and salinity and the intensity of internal water-related conflicts (interState/ inter-provincial) in both countries. With better and saner waterresource management, the situation in both countries may be very different, and conflicts may diminish or disappear. The kind of change in thinking that this would call for is one of the themes of this book.

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12 Differences Over Baglihar

As stated in the previous chapter, the Indus Treaty allocates the western rivers (the Indus, Jhelum and Chenab) to Pakistan, but allows some limited uses of the waters of those rivers by India, including the generation of hydroelectric power through what are known as ‘run-of-theriver’ schemes, subject to certain fairly stringent technical conditions and restrictions. If India wishes to undertake such a project, it has to provide advance information to Pakistan, providing an opportunity to Pakistan to satisfy itself that the conditions and parameters laid down in the Treaty are being adhered to by India. Baglihar is one such project. It is a ‘run-of-the-river’ hydroelectric project on the Chenab. As required by the Treaty, all the relevant information and documentation has been provided in advance to Pakistan. Differences have arisen between the two countries about the conformity of the Baglihar Project to the Treaty. What are the Treaty requirements and stipulations? The Treaty does not lay down any limits on the power-generation capacity that can be

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created, or even on the height of the dam. However, it does lay down certain parameters and conditions to which the design of the project and its engineering features must conform. (a) The Treaty requires India to let the waters of the western rivers flow to Pakistan. In using the waters for power-generation, India may have to withhold them temporarily and release them later, and the Treaty permits variations within a range (50 per cent to 130 per cent) but only within a seven-day period; the necessary adjustments must be made within that period.1 There is no scope for any disagreements here. (b) While the Treaty permits India to construct ‘run-of-the-river’ schemes for hydroelectric power, India cannot create any storage on the western rivers (except to a limited extent as specified in the Annexures to the Treaty). (c) While ‘storage’ by India on the western rivers is not allowed, ‘pondage’ is permitted. This refers to the limited quantum of water that can be held behind the dam for operational purposes in the ‘Operating Pool’, i.e., between the maximum water level and the ‘dead storage level’ (the level below which the water is not used). The ‘pondage’ must not exceed twice the pondage required for ‘firm power’. (‘Pondage’ is defined in the Treaty with reference to variations in the turbine operations based on the load curve. ‘Firm power’ is defined as that which can be generated with the Minimum Mean Discharge.) (d) The design of the project must not be such as to enable India to raise artificially the water level in the Operating Pool above the Full Pondage Level. (e) If gated spillways are considered necessary in the conditions obtaining at the site, the bottom of the gates shall be located at the highest level consistent with sound and economical design and satisfactory construction and operation.

1 This applies to projects located above a certain point (Rambhan); below that point, i.e., closer to the India–Pakistan border, the variations have to be managed within a day.

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(f) Similarly, the water intake for the power plant shall be located at the highest level consistent with satisfactory and economical construction and operation. (g) There shall be no outlets below the dead storage level, unless sediment control or other technical considerations necessitate this. The Project has to conform to these parameters and conditions. Here are the features of the Project: • • • • • • • • • • •

Power plant capacity: 450 MW. Top of the dam: El 844.5 m, i.e., elevation above mean sea level. Maximum Water Level (MWL): El 840 m. Free board (the space between MWL and the top of the dam): 4.5 m. Dead Storage Level (DSL): El 835 m. Operating Pool: the water between MWL and DSL (5 m). Pondage (water that can be held in the Operating Pool for operations): 37.7 million cubic metres. Maximum flood for which project is designed: 16,500 cumecs (cubic metres per second). Placement of water intake for the power plant: at El 818 m. Number of gated spillways: 6 (offered to be reduced to 5). Placement of the bottom of the spillway gates: at El 808 m.

Pakistan says that the design and certain features of the Project are not in conformity with the provisions of the Treaty, and therefore constitute a violation of the Treaty. India claims that it is fully in compliance with the Treaty. The differences between the two countries over this Project stand referred in terms of the Treaty provisions to a Neutral Expert (NE). Professor Raymond Lafitte of Switzerland, the NE appointed under the Treaty, is proceeding with his work, and in due course will give his final and binding findings on the points of difference. What are these points of difference? During the course of the discussions at the meetings of the Indus Commission many matters had come up. For instance, Pakistan had queried the need for a high dam

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and suggested the consideration of a low weir. However, after extensive discussions, the points of difference formulated by Pakistan for reference to the NE relate to (a) the design of the Project; (b) the extent of pondage; and (c) the placement of the spillway gates and the water intake. The positions of the two countries on these points are briefly explained below (in a simplified fashion, omitting many complexities), without comment. (i) Pakistan contends that the design of the project is not in conformity with the Treaty provisions. It questions the probable maximum flood (PMF) of 16,500 cumecs as also the need for gated spillways. It fears that with some minor adaptations the gates could be so operated as to ‘artificially raise the water level’. In particular, it feels that the ‘free board’ (see definition above) does not have to be 4.5 m; that 1.5 m would be adequate; and that excessive free board will enable India to raise artificially the water level in the Operating Pool above the Full Pondage Level. India defends the project design in all respects. It justifies the PMF figure. It is firmly convinced that in the given site conditions gated spillways are necessary. It says that what is at issue now in terms of the Treaty is whether the ‘works themselves’, i.e., without changes and modifications, are capable of raising the water level above the Full Pondage Level (which it denies); and points out that it cannot make any design changes or modifications without advance notification to Pakistan, giving an opportunity to that country to raise objections. As for the free board, India argues that it is a standard safety feature; that using it to store more water would compromise the safety of the structure and cannot be done; that a free board of 4.5 m is the bare minimum; and that more free board would in fact be warranted. (ii) Pakistan argues that the planned pondage of 37.7 mcm is excessive, i.e., more than twice the pondage needed for firm power. India says that its calculation of the pondage required is correct, and has given the details. The difference between the two countries here arises from their divergent understandings of the

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definitions of the two key terms ‘pondage’ and ‘firm power’. This argument will not be gone into detail here. (iii) Pakistan says that the placement of the spillway gates and that of the water intake are not at the highest possible positions as required by the Treaty. This is a somewhat complicated issue. India draws attention to the provisos (in the relevant clauses) regarding techno-economic considerations and satisfactory operations, and justifies the placements in a two-step argument: first, the position of the water intake has to be such that there is an adequate body of water (‘water seal’) above it to prevent the formation of swirls or vortices which might draw air into the power plant as the water is taken in; and second, that once the position of the water intake is settled, the bottoms of the spillway gates have to be well below that level to ensure that silt goes through the spillways and not into the waterintake. Pakistan does not accept this argument; it says that there are other ways of dealing with silt and with vortex-formation. India argues that the alternatives suggested by Pakistan are unsatisfactory second-best arrangements that may not work properly, and that it has gone by accepted practice. (Incidentally, the Treaty prohibits the placement of outlets below DSL unless this is required for technical considerations such as sediment management. This brings in questions of how best the sediment can be managed, and of how floods are to be discharged. All this is relevant to the discussion of the placement of the spillway gates and the water intake. In brief, the Indian position is that the spillway gates and water intake are in fact placed at the highest possible levels consistent with the needs of flood-discharge, sediment-management, and protection of the turbines from damage by the sediment.) On all these points, Professor Lafitte will give answers in due course. If he does find any of the Pakistani objections valid, India will have to make changes in the Project. If he rules in favour of India on all the points, Pakistan will have to accept the rulings. Whatever his findings, they will be final and binding; there is no question of not accepting them.

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However, if the NE takes the view that these are not just ‘differences’ as defined in the Treaty but amount to a ‘dispute’, the matter will then have to go to a Court of Arbitration in the manner laid down in the Treaty. That completes the story as far as Baglihar is concerned, but certain larger questions remain. These have already been discussed in the previous chapter. To recapitulate that discussion briefly, India would like to use the limited leeway given to it on the western rivers by the Treaty to the fullest possible extent without violating the Treaty, and to accelerate that use; Pakistan would like to retard the process, compress the leeway and minimise the scope for Indian use, because its primary concern is with the protection of its own interests as perceived by it. A related question is whether the requirement of advance information to Pakistan (to enable it to ask questions or raise objections) implies that its clearance is required for the start of construction, and if so, whether India was wrong in starting construction in this case. That is the Pakistani view. The Indian reply is partly technical (that the Treaty does not specifically say that construction should not start without Pakistan’s clearance), and partly practical, based on past experience. Work on the Tulbul Project was halted pending further discussions with Pakistan on its objections, but Pakistan (according to India) has shown no interest in resuming discussions, and the Project has remained stalled for 15 years. India fears that if Pakistan’s concurrence is held to be necessary for the start of work, it can use the power of raising objections and rejecting the answers given to stall a project indefinitely. (This is an explanatory and not a judgmental statement by the author.) It may be added that this question is not within the purview of the NE.

POSTSCRIPT Neutral Expert’s Findings (February 2007): On 12 February 2007, Professor Raymond Lafitte, the Neutral Expert, gave his ‘determinations’ on the points of difference referred to him, as follows:

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(a) For the ‘probable maximum flood’ (PMF), he has considered it prudent to accept the Indian figure of 16,500 cumecs. (b) He has not accepted Pakistan’s position that gated spillways are not necessary. He points out that for a PMF of 16,500 cumecs, the standard modern practice would be to provide gated spillways. (c) He has not accepted Pakistan’s contention that the bottoms of the spillway gates are not at the highest possible level. Having regard to the two purposes of sediment control and the evacuation of the design flood, and in accordance with international practice and the State of the art, he finds the placement of the spillway gates acceptable. (In fact, he feels that they should be 8 m lower.) He has recognised the need for annual drawdown sluicing for proper reservoir maintenance. As for the placement of these outlets below the dead storage level, he has pointed out that while the portion below the DSL cannot be used for operational purposes (i.e., for power-generation), there is no prohibition of its use for maintenance purposes. He has stressed that maintenance is an absolute necessity. (d) As against the Indian design of a free board of 4.5 m and the Pakistani proposal of 1.5 m, he has recommended a free board of 3 m (i.e., a reduction of dam height by 1.5 m; India had in fact volunteered a reduction of 1 m). (e) He has not accepted the Pakistani calculation of a pondage of 6.22 mcm, but has found the Indian design of 37.7 mcm excessive, and has suggested a reduction to 32.5 mcm. Correspondingly, he has proposed that the DSL be raised by 1 m. (f) He has suggested that the placement of the water intake for the power plant be raised by 3 m. He has stated that certain steps can be taken to take care of the vortex problem. On the whole, India has reason to be somewhat more satisfied than Pakistan with these findings, as the Project per se stands vindicated, and the changes suggested are relatively minor. On the ‘differences’ referred to the NE, his findings are final and binding. If Pakistan wishes to invoke a Court of Arbitration, it will have to formulate a ‘dispute’ afresh. One must hope that this will not happen, but if it does, the technical determinations of the NE will be binding even on the Court of Arbitration.

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13 The Cauvery Dispute: Continuing Impasse

From inter-country disputes we move to inter-State disputes within India.1 In the interest of self-contained intelligibility, a brief recapitulation of the background may be in order. The Cauvery Dispute was (and is) a fairly simple water-sharing conflict between lower and upper riparians, rendered difficult and intractable because of the considerations of party and electoral politics (within each State, between States, and at the Central level), creating doubts in people’s minds about the efficacy of the constitutionally mandated conflict-resolution mechanism. The dispute has a long history going back to the nineteenth century, but we are now concerned with the acute phase that began in the 1970s. Talks between the State Governments produced no results. The Government of India made 1

The author’s earlier book brought the Cauvery story up to early 2003, and in an appendix it reported the discussions that had taken place at a small private meeting at Bangalore in October 2002. This chapter will not go over all that ground again, but will report further developments.

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unsuccessful efforts to bring about an agreement. In July 1986, Tamil Nadu made a formal request to the Government of India under the Inter-State Water Disputes Act 1956 to set up a tribunal to resolve the dispute. After some delay, and under a direction by the Supreme Court of India, the Government of India established the Cauvery Waters Tribunal on 2 June 1990. On a petition from Tamil Nadu, the Tribunal gave an Interim Order in 1991 which gave rise to a secondary dispute between the contending States (leading briefly to violence). This dissension was dealt with in a not wholly satisfactory manner in 1998. In 2002–03 there were hectic developments, with the Chief Minister of Tamil Nadu repeatedly going to the Supreme Court, and the Chief Minister of Karnataka at one stage defying the Supreme Court and coming close to being punished for contempt. However, things quietened down thereafter, and there were some expectations that the Tribunal would give its Final Order before long. That did not happen. The Final Order is still awaited. Let us now take note of the developments during the last three years. The (mis-named2) Cauvery River Authority and its Monitoring Committee have not been very active. There has been no progress on a water-sharing formula for distress years. The adjudication process has been inching forward slowly, and there have been some disturbing developments in that context in recent months. The only promising development has been the initiative on the part of the Madras Institute of Development Studies (MIDS) to bring the farmers of Tamil Nadu and Karnataka together in an effort to promote mutual understanding and harmony. Taking the last-mentioned point first, we must go back to the early 1990s when the late S. Guhan3 tried to organise meetings on the 2 A ‘River Authority’ or Commission is usually a technical or professional body charged with control, planning and management functions in respect of the river or river basin in question, and empowered to carry out those functions. The so-called Cauvery River Authority is not a body of that kind. It is merely a political body for overseeing the implementation of the Interim Order of the Tribunal and settling differences between the State Governments, i.e., it is a high-level political committee for defusing crises. That is why it has been described here as ‘mis-named’. 3 Formerly of the IAS, then a distinguished academic at the Madras Institute of Development Studies, author of a monograph on the Cauvery dispute (see Bibliography).

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Cauvery issue at Chennai and Bangalore under non-official auspices to promote understanding between the two States at the level of the people. After a couple of meetings that initiative lost steam. Later, when inter-State dissensions at the political level on Cauvery were at their height in 2001–02, the author of this book wrote several articles strongly urging a civil society initiative to break the governmental logjam; as a first step, he convened a small and informal meeting at Bangalore at the house of the former Chief Justice of Karnataka Justice Nittor Srinivasa Rao (now, alas, no more). That was a meeting of intellectuals; what was needed was a meeting of farmers. The Madras Institute of Development Studies, with the old Guhan legacy in mind, were of a similar view, and they undertook an exercise of bringing the farmers of Tamil Nadu and Karnataka (the two principal contending States) together. (This effort, under the coordination of Professor S. Janakarajan, was partly influenced by the experience of the ‘MultiStakeholder Dialogue’ that MIDS had been attempting in the Palar basin in the context of a prolonged and severe conflict resulting from the heavy industrial pollution of water sources.) In early 2003, when the MIDS initiative on Cauvery began, feelings were running high in both States, and there were serious apprehensions that the meeting might be fractious and disagreeable and might quickly break down. That did not happen. The very first meeting of around a hundred farmers from both States (Chennai, April 2003), with some academics, engineers, NGOs, and media people associated, was characterised by a spirit of warmth, friendliness and fraternity, and a concept of ‘Cauvery Family’ emerged. There was a general recognition that the farmers of the ‘Cauvery Family’ must live together in harmony and constructive cooperation, and must learn to make the necessary adjustments. That spirit was found again in the second meeting at Bangalore (June 2003) and has continued to prevail in the further meetings (three or four) that have since taken place in locations in both States. The farmers from either State have visited areas in the other State and have developed a better mutual understanding of problems and needs. Some mutual misperceptions have been partially if not wholly removed. It cannot be said that a sharing agreement or a formula for years of distress has emerged out of this process so far, but the warmth of the ‘family’ relationship that has been established and the spirit of goodwill

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and harmony that has come to prevail among the farmers from the two States are very remarkable. The atmosphere is dramatically different from that of 1992. This is a great gain, even if nothing more concrete comes out of this process. Unfortunately, it is difficult to find anything positive to say about developments at the governmental level, or about the functioning of the Tribunal. The Central Government which was at one stage trying to find a formula for years of low flows (‘distress-sharing’) seems to have given up the effort as hopeless. Opinion in Karnataka, primarily at the political and governmental levels, but through their influence even at the level of the intelligentsia and the general public, seems to continue to be hostile to the adjudication process. A wholly misconceived petition for the reconstitution of the Tribunal was filed in 2004, and it was supported by the Karnataka Government. The Supreme Court saved the adjudication process by rejecting the petition, but the fact that it was made at all is a disturbing indication of a continuing negativism on the part of Karnataka towards adjudication, which is not reassuring. For its part, the Tribunal has not covered itself with glory. Some time ago, there were disturbing reports of differences within the Tribunal. One hoped that these would be quickly settled, but they were publicly aired in an un-edifying fashion. The two members (by a majority view with which the Chairman was in disagreement) proposed to ask the Government of India to set up an expert committee to determine the crop water requirements in the contending States. Such a proposal, coming at a late stage after 16 years of proceedings and the submission of voluminous documentation by all the States, seemed thoroughly irresponsible. One wondered whether the members were confessing their inability to understand the material and arguments submitted to them. It seemed more probable that the Tribunal (or a majority within it) had lost its nerve because of the intensely political nature of the dispute, and was trying to shift its responsibility to a governmental committee. The move attracted considerable criticism, and all the four State Governments expressed disapproval and asked the Tribunal to go ahead and finish its task quickly. The Tribunal dropped the idea of a committee, but still seemed reluctant to proceed with adjudication. Instead, again by a majority decision, it decided to

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postpone the onerous task of decision-making by sharing some internal technical papers—i.e., the Assessors’ Report—with the State Governments, presumably to test the waters (if one may use such a metaphor in this context). That may seem an uncharitable interpretation of the developments, but it seems difficult to think of an alternative explanation. All this has caused considerable damage to the adjudication process as well as to the standing of the members themselves. Whether a part of that lost standing can be recovered will depend on what they do in the months to come. If they are able to reach an understanding among themselves and come out with a unanimous Final Order, some of their dimmed lustre may still be restored, and the damage done to the adjudication process may be reversed. One ardently hopes that this will happen, but must accept the possibility that it may not. The differences between the Chairman and the two members may persist, and the Tribunal’s Award may be a divided one. That would be very unfortunate, but if that happens, the majority view will of course prevail, and there will still be a binding decision. We shall have to live with that un-ideal situation. Returning to the recent developments, it appears that the Assessors’ Report has been made available only to the parties to the dispute. So far as one knows, it has not been put into the public domain. However, some reports of their contents have appeared in the media. In particular, some ‘irrigation requirement’ figures have been mentioned. (Prima facie, the reported numbers—which will not be repeated here—seem somewhat similar to those of the ‘understanding’ that was attempted in the 1970s but failed. However, the matter will need to be gone into carefully.) Some of these reported numbers are likely to evoke reactions among the general public, and in particular, on the part of the farmers in the states concerned. Criticisms may appear in the media. The Governments have to submit their comments within five weeks. In this context, the following would have to be kept in mind by all. (a) As technical material that would be used by the Tribunal in its decision-making, the Assessor’s Report is undoubtedly of some importance, but the Tribunal’s decisions are still to be made. The Chairman has (perhaps unnecessarily) indicated his

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acceptance of the technical assessment, but he has yet to make his final decision; and the two members have not indicated their reactions to the Assessor’s report. (b) It appears that the Assessors have been concerned only with irrigation, and have not dealt with drinking water, industrial use, etc. (c) The numbers mentioned in the media reports are not ‘allocations’. They are estimated irrigation requirements. Even if they are regarded as ‘shares’ in the use of the total flows of the Cauvery, the share of Tamil Nadu and the quantum that will have to flow from Karnataka are two different things; further, that flow will have to be stated in terms of a monthly and/or weekly schedule; and (this is very important) a formula will have to be laid down to govern the sharing in difficult years. So far as one knows, the material made available does not cover these aspects. If so, what has been released is of no great significance. The intelligentsia and the general public in the disputing States may still be interested in examining the Assessors’ Report and raising questions or objections. One hopes that they will do this in a calm and reasonable manner, and not in an angry, contentious, chauvinistic spirit. It appears to the author that the public debate will gain immeasurably in strength and usefulness if it is conducted in the language of reason. In particular, good relations between the States at the peopleto-people level are enormously important, and nothing should be done to impair them. A particular responsibility rests in this context on the farmers of Karnataka and Tamil Nadu who have been meeting and fraternising over the last three years under the auspices of MIDS. They have built up a substantial fund of goodwill and harmony during these years, and it is for them to ensure that the spirit of understanding that prevails among them extends beyond them to the larger community of which they are members. In a way, recent developments have enhanced their importance. With the adjudication process running into difficulties, and with the Award getting further delayed, the farmers of the two principal contending States have an exciting opportunity of working

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out the elements of a settlement or an approach to it, and presenting it to the governments and to the Tribunal. If that were to happen, it would be an event of tremendous importance in the history of this country, and a new chapter in the evolution of our federalism. Turning now to the Governments, they should certainly examine the Assessors’ Report and state their comments and criticisms clearly, but one hopes that that they will do this in a constructive and not an adversarial spirit. The Assessors may be right or wrong, but there is no reason to believe that they are inclined towards one side or the other. Flaws, if any, in the facts, methodology or reasoning of the assessors will certainly need to be pointed out. However, it is not necessary to tear their report to tatters or state the criticisms in harsh language. More than anything else, it is the responsibility of the State Governments to ensure that they do not by their words or actions unwittingly generate or aggravate negative feelings among the general public in their respective States. If a recurrence of the violence that broke out in 1992 is to be avoided, a great deal will depend on how the State Governments conduct themselves. The new Chief Minister of Karnataka is (one hopes) unburdened by the legacy of the past; and the new/old Chief Minister of Tamil Nadu had made strenuous efforts at one time to engage in constructive talks with his counterpart in Karnataka. May one hope that there will be a significant change in the relationship between the two Governments, that confrontation is a thing of the past, and that they (and Kerala and Pondicherry) will bring a calm and reasonable frame of mind to the examination not merely of the Assessors’ Report but also of the Final Order of the Tribunal when received? As for the Tribunal, it was not quite necessary for it to release the Assessors’ Report and ask for comments, because its Final Order itself will not really be ‘final’; it will be an occasion for further comments. The Inter-State Water Disputes Act 1956 (ISWD Act) provides for a reference back to the Tribunal by any of the States (or by the Central Government) within three months of the publication of the Award, and the scope of that reference is quite large. The States can raise all kinds of questions, and the Supplementary or Further Order of the Tribunal can be significantly different from the original one. However, the Assessors’ Report is now with the State Governments, and they will give their comments. The point is that the ultimate

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responsibility for a decision rests squarely with the Tribunal, and that decision has to be a judicial one. It is somewhat disturbing to note that the Tribunal has been showing undue sensitivity to the political dimensions of the dispute. One understands that judges cannot be wholly oblivious of the political implications of their judgments. However, that awareness should not be carried too far. Ultimately, judges must judge, leaving political considerations to politicians and law and order to the Governments. What is likely to happen in the next few months? (a) The State Governments will file their comments on the Assessors’ Report. (b) The Tribunal will take these into account and issue its Final Order. One hopes that this will happen by August or September 2006. One hopes further that the Final Order will include a formula or method for water-sharing in years of low flows, and lay down the institutional arrangements for the actual operation of the Final Order. (c) There is little hope of a unanimous Order; a divided Order seems probable, with the majority Order constituting the decision of the Tribunal. (d) The Central Government will (one hopes without delay) notify the Order in the Gazette. (e) Parts of the Order may be unpalatable to one party or the other. One must hope that the adverse reactions, if any, will not spill out on to the streets. (f) It is very likely that one or all of the parties to the dispute will make a reference back to the Tribunal on certain points within 90 days and ask for clarifications or a supplementary or revised order. There is no time-limit for the issue of that Supplementary or Further Order by the Tribunal, but one hopes that there will be no delay. (g) That Supplementary or Further Order will be gazetted by the Central government. (h) If the Tribunal’s Final Order includes any institutional arrangements for operations, these will need to be established and made functional.

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It is necessary to ensure that all this happens smoothly and without trouble or delay at any stage. The Governments, media, intelligentsia, water-users, institutions such as the MIDS, and the ‘Cauvery family’, have (all of them) a role to play in this.

POSTSCRIPT Tribunal’s Final Order (February 2007): On 5 February 2007, the Cauvery Tribunal gave its Final Order. It has allocated an annual availability of 740 TMCft in the Cauvery (on a ‘50% dependability’ basis) as follows: Tamil Nadu 419, Karnataka 270, Kerala 30, and Pondicherry 7. That leaves 14 TMCft, out of which 10 is meant for ‘environmental protection’, and 4 represents ‘the inevitable escapages into the sea’. Karnataka has to release 192 TMCft from Billigundulu out of which 10 TMCft are meant for environmental purposes, leaving 182 TMCft for Tamil Nadu. Tamil Nadu in turn has to ensure the availability of 7 TMCft for Karaikal (Puducherry). For years of low rainfall, the Award envisages a proportionate adjustment of the allocations. The Award also recommends the establishment of a Cauvery Management Board which will monitor the monthly schedules and (with its committees) function as a ‘Regulatory Authority’. There is a strong sense of grievance in Karnataka over the Award. An all-party meeting has passed a resolution of non-acceptance of the Award. This is primarily a response at the political level. However, a sense of grievance or injustice is highly infectious: it spreads fast. By now, the feeling that the Award does injustice to the State is fairly widespread in Karnataka. In Tamil Nadu, the initial reactions to the Award seemed positive, but dissenting voices were soon heard. There is a degree of dissatisfaction in that State as well, though it is not as strong and widespread as in Karnataka. Both Tamil Nadu and Karnataka, and perhaps Kerala, are likely to submit petitions to the Tribunal within three months as provided for in the ISWD Act, asking for a Supplementary or Clarificatory Order. There is also some talk of going to the Supreme Court. We are nowhere near the end of the Dispute.

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14 The Punjab Water Imbroglio

INTRODUCTORY In July 2004, the Punjab legislature, at the instance of the State Government (i.e., the Chief Minister) passed an Act terminating past agreements and accords over river waters. This dramatic action reverberated for several weeks in the media, and was received with dismay in Haryana and Rajasthan. There was much uneasiness in the country as to what this action portended for the rule of law and federalism in this country. There was also some perplexity as to what made Punjab do this and how the tangle was going to get resolved. The Central Government made a Presidential reference to the Supreme Court under Article 143 of the Constitution for opinions on the validity and constitutionality of the Punjab Act. The Supreme Court has not so far given its opinion. The issue ceased to be ‘news’ a long time ago, but it remains pending, and the Supreme Court will at some stage

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give its opinion. It is an important matter that needs to be properly understood. This chapter will try to explain the background to the developments and clarify the issues involved. The attempt will be to ask questions and not answer them, but where any opinions are expressed, they should be taken as tentative, and subject to whatever the Supreme Court may say hereafter.

HISTORICAL BACKGROUND First, let us take a brief look at the historical background. (a) In 1955 the Union Minister of Works and Power helped in securing an agreement on the following allocations of the surplus waters of Ravi and Beas, then estimated as 15.85 million acre feet or MAF after excluding the pre-Partition use of 3.13 MAF: Jammu and Kashmir (0.65 MAF); Patiala and East Punjab States Union (PEPSU; 1.30 MAF); Punjab (5.90 MAF); and Rajasthan (8.0 MAF). (b) The share of Punjab (7.2 MAF with PEPSU merged) had to be divided between Punjab and Haryana after the reorganisation of states. This ran into difficulty, but in 1976, the Government of India settled the dispute by a Notification under Section 78 of the Punjab Reorganisation Act 1966, allocating 3.5 MAF to each State, with the remaining 0.2 MAF going to Delhi. In order to help Haryana to make full use of its allocation, the construction of the Sutlej–Yamuna Link Canal was proposed. (c) Punjab was not happy with the decision and filed a suit in the Supreme Court, and Haryana too filed a suit to compel Punjab to implement the decision. (d) In 1981, Prime Minister Indira Gandhi brought about an agreement among the Chief Ministers of Punjab, Haryana and Rajasthan. Under that Agreement the allocations to Punjab and Haryana were 4.22 MAF and 3.5 MAF respectively (out of a total availability which had been revised from 15.85 to 17.17 MAF). Punjab and Haryana withdrew their petitions from the Supreme Court.

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(e) However, the dispute continued and figured in the discussions between Prime Minister Rajiv Gandhi and Sant Harchand Singh Longowal. The Accord between them of 24 July 1985 includes a paragraph regarding the sharing of Ravi–Beas Waters, and it was in pursuance of that Accord that the Ravi–Beas Tribunal (the Eradi Tribunal) was set up. (f) The Tribunal gave its award in 1987 allocating 5.00 MAF to Punjab and 3.83 MAF to Haryana, thus increasing the shares of both States. It was able to do this by taking into account some additional availability of waters ‘below the rim stations’. (g) At that time, it was found politically difficult to gazette the Award because it was unacceptable to Punjab, which was then in a troubled state. A reference back to the Tribunal was made raising certain issues (as is provided for under the Inter-State Water Disputes Act 1956), and the outcome in the form of a clarificatory or supplementary report is still awaited. (h) Moreover, Punjab has all along been stoutly opposed to the construction of the Sutlej–Yamuna Link (SYL) Canal which was meant to enable Haryana to use its share of the waters, and it still remains incomplete. Haryana has been going to court over this, and the Supreme Court has been asking the Central government to ensure the expeditious completion of the SYL Canal. It is against that background that we have to view the developments of 2004. What the Punjab Assembly did was to pass unanimously the Bill brought forward by the Government terminating all past watersharing agreements and accords with other States; and with the Governor’s prompt assent, the Bill became an Act. It was in respect of that Act that a Presidential Reference to the Supreme Court was made. That reference is still pending.

POLITICAL ASPECTS It was clear from the start that what we were witnessing in Punjab was as much a political game as a water dispute. Early indications of this came from the promptness with which the Governor gave his assent

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to the Punjab Bill terminating all past water-sharing agreements and accords with other States. It was also significant that the Central government, when it got wind of what was going on in the Punjab Assembly, did not advise the Governor informally to reserve the Bill for the President. When it comes to water, even the ‘national’ parties such as the BJP and the Congress seem to divide along State lines. One had seen this in the case of the Cauvery Dispute. In Punjab, there was a closing of ranks, with even bitter political opponents supporting the Chief Minister on this issue. In Haryana and Rajasthan also the different parties seemed at one on the water issue. At the Centre, the Congress was in a difficult situation: it evidently did not wish to antagonise its own party people either in Punjab or in Haryana. That was why the Central Government refrained from public pronouncements, and seemed inclined to leave the matter to the judiciary.

LEGAL QUESTIONS The Punjab action gives rise to several questions of a legal nature. First, can an agreement to which there are two or more parties be repudiated unilaterally by one party? Reference has been made to the sovereign rights of states, but is there in fact any question of ‘sovereignty’ at the State level under our Constitution? Even in the case of fully independent sovereign countries, would their sovereign rights extend to the repudiation of covenants entered into with other equally sovereign countries? The legality of such action seems even more doubtful in relation to States within a federal or quasi-federal structure. Punjab’s action seems to strike at the heart of federalism. Further, agreements and accords are entered into by executive governments; can they be terminated by an Act of the legislature? All these questions will doubtless be answered authoritatively when the Supreme Court responds to the Presidential reference. Second, it has been argued that Rajasthan and Haryana are not ‘basin States’ in relation to the Ravi and Beas, and have no riparian rights. This aspect does not specifically figure in the Presidential reference, and it is not clear whether the Supreme Court’s opinion will deal with it. Let us examine this briefly. Ravi and Beas are part of the Indus

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system; we have to talk about the Indus Basin and not about the Ravi Basin or the Beas Basin. We shall return to that question, and to the case of Rajasthan. Confining ourselves to Haryana for the present, it was earlier a part of Punjab, and the State as a whole was surely a ‘riparian’ in relation to Ravi and Beas. The allocation of waters was made to the State as a whole and not to a part of it. Does a part of the State lose its riparian character because of a division of the State? Assuming hypothetically that Punjab is further divided, will each such division mean that certain portions cease to be riparians? These are not meant to be rhetorical questions or debating points; they are expressions of puzzlement. That leads us to the third and very important point, namely, that unlike the Cauvery Dispute which is a straightforward upper-riparian/ lower-riparian dispute, this is really a dispute relating to allocations of river waters made in pursuance of a reorganisation of States. As mentioned earlier, the Central Government issued a notification in 1976 under the Punjab Reorganisation Act 1966, allocating the erstwhile Punjab’s share of Ravi–Beas waters to the new States of Punjab and Haryana, with a small allocation to Delhi. Even assuming that a State Legislature can terminate agreements entered into by the State Government, can it terminate an order or notification issued by the Central Government? (This question is covered in the Presidential reference.) The legality and fairness of the 1981 agreement brought about by Prime Minister Indira Gandhi (modifying the 1976 allocations) are being questioned in Punjab. (This is also covered in the Presidential reference.) All that one can say is that following the 1981 agreement, both Punjab and Haryana withdrew their pending petitions from the Supreme Court. That seems to indicate that the agreement was found acceptable; this is also borne out by the White Paper issued by Punjab government, hailing the agreement. (The Punjab Legislature subsequently passed a resolution disowning the agreement, but the precise implications of that are not clear; the agreement evidently remained alive, as the Punjab Assembly has now considered it necessary to terminate it by legislation.) General opinion in Punjab is also dismissive of the Rajiv–Longowal Accord of 24 July 1985. That Accord is deemed to be dead, perhaps because many elements in that Accord have remained unimplemented.

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Be that as it may, it provided for a Tribunal on Ravi–Beas Waters, and the Tribunal was in fact set up. To obviate possible objections from Punjab, the Punjab Government was fully consulted before the Tribunal was set up.1 For certain reasons the Tribunal was not set up by a simple notification under the Act, but was established following an Amendment adding a new and specific Section 14 to the Act. This again was within the knowledge of, and presumably acceptable to, the Punjab Government. That Punjab acquiesced in this whole process was evident from the fact that it duly participated in the proceedings of the Tribunal and presented its case to it. So too did Haryana. The Tribunal in fact gave its Award, though that Award has not yet been notified. Whether Punjab can now argue that the very establishment of the Tribunal was wrong and illegal seems doubtful, but it will need to be gone into. (Besides, the Punjab legislation seems tantamount to changing the entire history that has been presented to the Tribunal.) As and when the Tribunal gives its clarificatory or supplementary report in response to the reference made to it in 1987, both the original and the supplementary reports will have to be notified, and will be final and binding, and will have the status of a decree of the Supreme Court, in terms of the ISWD Act 1956 as amended in 2002. On the other hand, if for any reason there is no supplementary report (though that contingency is hard to imagine), the original report will surely become the final report and will have to be notified; it cannot be treated as non-existent and consigned to oblivion. Let us now turn to the Sutlej–Yamuna Link Canal. Right from the beginning Punjab has been opposed to the idea and reluctant to construct the Canal. At the height of the Punjab violence, an engineer engaged on the project was killed. Construction never really picked up, and the Canal remains incomplete. Haryana has been going to court over this, and at one stage the Supreme Court asked the Central Government to take over the project and complete it. The Central Government was to have reported the take-over to the Supreme Court by 31 July 2004. It was presumably in order to forestall this that Punjab hastily terminated all past water agreements. This destroys the basis 1

This statement and the ones that follow are based on the writer’s personal knowledge as Secretary, Water Resources at the time.

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for the SYL Canal and therefore for the Supreme Court’s direction. The question arises whether it was proper for Punjab to remove the basis for the Supreme Court’s direction. (This is covered in the Presidential reference.) We come now to the question of Rajasthan. Punjab denies that Rajasthan has any rights to Ravi–Beas waters. How then has an allocation been made to it? For an answer to this, we have to go back to 1947. Soon after Partition, talks began between India and Pakistan on the sharing of the Indus system, and after many years of negotiation and with the assistance of the WB, the Indus Treaty was signed in 1960. The settlement could conceivably have taken the form of a joint integrated management of the entire Indus system by the two countries together; or of a sharing of the waters in each of the six rivers (Indus, Jhelum, Chenab, Ravi, Beas and Sutlej) by the two countries. The state of political relations between the two countries probably ruled out the first. The second might have been very difficult and cumbersome to operate; in any case, it was not adopted. What was agreed upon was the allocation of the three western rivers to Pakistan and the three eastern rivers to India. Under this settlement roughly 80 per cent of the waters went to Pakistan and 20 per cent was given to India. In Pakistan, it is often argued that this represented an act of generosity on its part, as the portion of territory that went to India was historically using only 8 per cent of the Indus waters. Indian sources put it at a higher figure, but it seems clear that the allocation of Indus waters to India was higher than the level of past use. This was because India, in putting forward its claims to the waters, argued for a substantial allocation to the desert State of Rajasthan. Even as the negotiations were proceeding, Indian planners began to initiate action towards the eventual full utilisation of the three eastern rivers. Links between rivers to pool the waters of all three rivers together were planned. In 1953, thinking began on a scheme that later became the Rajasthan Canal Project. In anticipation of the allocation of waters, work began on Bhakra– Nangal. In 1955, the Central Government brought about an agreement on the allocation of Ravi–Beas waters to J&K, PEPSU, Punjab and Rajasthan. Thus, the allocation of 8 MAF to Rajasthan goes back to 1955, and was linked to the negotiations with Pakistan. Without that

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component the Indian share in the Indus system might have been smaller. Let us consider what the situation would have been (a) if there had been no Indus Treaty, or (b) if the Treaty had envisaged a sharing between the two countries on each of the six rivers. In either case India’s rights as the upper riparian on the Ravi, Beas and Sutlej would have been circumscribed by Pakistan’s rights as the lower riparian. Bhakra– Nangal might have required Pakistan’s concurrence. It might not have been built or might have been a smaller project. The total availability of waters from the three eastern rivers to Punjab might have been less than it is now. It was the exclusive allocation of the three eastern rivers to India under the Treaty that removed the constraint of lower-riparian rights on Indian use. Punjab benefited by this. But this would not have come about if Rajasthan’s needs had not been added to the arithmetic. It follows then that Rajasthan’s claims on these waters may not be riparian claims, but they derive from the case that was built up for the Indus negotiations.

WATER NEEDS Turning from legal issues to the water dispute per se, we must note that there is a strong sense of grievance in Punjab. There is a tendency to regard the Ravi–Beas waters as Punjab’s own waters which others are taking away. So far as one knows, there is no ownership or proprietary rights over flowing waters. For instance, taking a southern example, neither Karnataka nor Tamil Nadu owns the Cauvery; both have use-rights. Similarly, Punjab has use-rights over Ravi–Beas waters; it does not own them. This has been clearly stated in the Report of the Ravi–Beas Tribunal. The Harmon Doctrine2 that territorial sovereignty 2 The Harmon Doctrine which holds that territorial sovereignty includes exclusive or sovereign rights over the waters flowing through the territory, and that upper riparians may use this right as they like irrespective of the effect of their action on other riparian states, was put forward by the US Attorney General Harmon in 1896 in connection with the controversy between the United States and Mexico over the use of waters of the river Rio Grande. The Harmon Doctrine has never held complete sway. Even the countries asserting the doctrine have yielded rights to the lower riparian

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implies sovereignty over waters running through the territory is a discredited doctrine. However, the question of water needs must be considered. Punjab has been contending that the availability of water has to be re-assessed; it says that it is less than the 17.17 MAF estimated earlier. If this is true, and if allocations to Rajasthan and Haryana remain unaltered, the residue remaining with Punjab might be less than the share allocated to it. This needs to be gone into. Punjab goes beyond that argument and says that it needs more water, without which certain areas will fail to receive irrigation. Haryana has a sense of grievance at the non-completion of the SYL Canal and the consequent nonavailability of the quantum of waters allocated to it. Rajasthan is worried about its allocation of 8 MAF not fully materialising. Delhi is apprehensive not only about losing its small allocation of 0.2 MAF from Ravi–Beas, but even more about the possibility of Haryana responding to Punjab’s unilateral action on Ravi–Beas by backing out of the agreement with Delhi on the Yamuna. These are matters to be resolved by agreement, conciliation, mediation or adjudication and not by unilateral action. We shall doubtless be told that there were strong political compulsions behind the Punjab action, but can we accept the position that those compulsions justify actions that are prima facie unlawful, or contrary to the spirit of federalism or in defiance of the Supreme Court? All this cannot be left to the Supreme Court alone to handle. The Central Government has a responsibility to intervene and find an acceptable settlement. The crucial question here is whether the three States really need the quantities of water that they are asking for. The term ‘need’ is an emotion-charged word, and we must be careful about using it. We are not talking about the basic need for and right to water as life-support (i.e., drinking water) here. That is indeed a fundamental right or a human (and animal) right which cannot be denied. What we are concerned with here essentially is water for irrigation, i.e., water as an input into economic activity. Moreover, we are not talking about owners for various reasons. In fact, it would be fair to say that the doctrine stands discredited. Even the USA quietly abandoned the doctrine when it came to negotiating with the upper riparian Canada.

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subsistence agriculture, but market-driven agriculture. There is no special sanctity about this ‘need’: what is involved is merely a question of how much water is available and how best it can be used. The approach so far has been the opposite. First, the availability of water (from projects such as Bhakra Nangal or Rajasthan Canal), acting in conjunction with certain economic policies, leads to the introduction of water-intensive crops and water-demanding practices; then the implicit assumption that that kind of agriculture must be sustained and expanded leads to large projections of future water needs, and to complaints about inadequacy of water; and this inevitably brings about conflicts. This entire approach needs to be re-examined. Already irrigation in Punjab and Haryana has over the years resulted in a significant incidence of waterlogging and salinity. Should they ask for more water or learn to manage water better? One is not necessarily suggesting, as some have done, that these States should shift from wheat and rice to other crops. Such decisions are influenced by a number of economic factors. One can, however, suggest that they should try and grow whatever they want to grow with less water and get the maximum productivity per unit of water. As for Rajasthan, it has been an inhabited area, with centuries-old traditions of good water-management. With growing populations, the old traditions of local augmentation of water-availability may need to be supplemented by some external water. However, while the desert can and must be made a bit more livable, it does not follow that we must introduce into arid zones or desert areas irrigated agriculture appropriate to wet areas, and generate an unsustainable demand for water (not to mention the emergence of waterlogging and salinity). Economic development in such areas should surely take forms that are not waterintensive. We must therefore re-examine whether Punjab, Haryana and Rajasthan require the quantities of water earlier allocated to them, or need more water, or can manage with less. The author would venture to suggest that with better water management all of them can meet all their needs with much less water than they project. With proper water management all round, the dispute may disappear or become more manageable. That is the real answer to this vexed problem.

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This cannot be left entirely to the Governments. A civil society initiative in this regard seems very desirable. In the case of the Cauvery dispute, a non-official initiative led by the Madras Institute of Development Studies has managed to bring a number of farmers from the contending States together, promote better mutual understanding, and build friendly, constructive and harmonious relations at that level. This may not immediately provide an answer to the dispute, but it will certainly facilitate that process. Perhaps there is little scope for such an initiative in the Punjab–Haryana case, but should not a group of eminent people respected in both States at least make an attempt?

POSTSCRIPT There have been no significant developments in this story. The Supreme Court has not yet given its answer to the Presidential reference made to it in 2004. Perhaps that delay on the part of the Supreme Court is in itself a matter of some significance.

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15 River Water Disputes: Some Reflections

INTRODUCTORY From the discussion of specific disputes in the last four chapters let us proceed to some general reflections. Water-related conflicts can take many forms, and can arise in relation to river waters or other surface water bodies or groundwater; between different uses, areas, or political units; in many different contexts; and over diverse issues. The last few chapters have been concerned with only one part of that vast canvas, namely, conflicts over river waters between States within the quasifederal structure of India, and between India and its western neighbour. There is currently a fashionable thesis, often heard in seminars and conferences, that water-related conflicts will increase in frequency and intensity in the future and will lead to ‘water wars’. That thesis has in

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turn been criticised as unsound and unhistorical by some thinkers (Postel and Wolf 2001: 2–9; see also Chapter 24). ‘Water wars’ do seem unlikely, but as the pressure on the world’s finite supplies of fresh water increases for a number of reasons, conflicts between uses, areas, groups, States or provinces, or countries may well become acute. There are already many instances of such conflicts, some resolved through treaties or agreements or adjudications, and some still simmering.

CONFLICTS: FACTORS, CONCERNS How do such conflicts emerge? Broadly speaking, and ignoring for the present deeper questions of proper water-use, there are two basic factors here: first, structures on rivers such as dams or barrages that interfere with natural flows, and second, a wide divergence of perceptions between upper and lower riparians.

Projects as Loci of Conflicts It is interesting to note that conflicts over river waters, whether intercountry or intra-country, seem often to arise in the context of large projects. Farakka, Baglihar, Alamatti, Narmada (Sardar Sarovar), Tehri, Mullapperiyar,1 Parambikulam Aliyar, and so on, are examples. Kalabagh in Pakistan can be added to that list. It would appear that large projects like these tend to become the foci of conflicts. This is essentially because (a) they tend to alter geography and hydrological regimes, sometimes drastically; and (b) they involve issues of control, power and political relations, social justice and equity.

1 The dispute in respect of Mullapperiyar arises from Tamil Nadu’s desire for more water from the Periyar river and Kerala’s anxiety about the safety of the old dam and its capacity to support a higher water level. The issue which was simmering for a while has now become a major dispute between Tamil Nadu and Kerala. In this case as well as in Parambikulam Aliyar, Kerala has a strong sense of grievance. (See the author’s article ‘Towards Good Sense on Mullapperiyar’ in the Economic and Political Weekly, 6 January 2007.)

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Riparian Divergences As for the divergence between upper and lower riparians, it takes many forms and varies from case to case. However, the upper riparian often tends to assume a primacy of rights, with only the residuary flows going to the lower riparian, and the latter tends to assert its rights to established uses and to object to any diminution in flows. The upper riparian has control over the waters and tends to exercise that power sometimes unimaginatively and in an insensitive manner; whereas the lower riparian tends to develop an acute anxiety over the possibility or reality of control by the former, and to become excessively sensitive and touchy on this score. (Both the India–Bangladesh case and the Karnataka–Tamil Nadu case are good illustrations of this.) The anxiety of the lower riparian becomes more acute if the upper riparian is a stronger and more powerful entity (e.g., India vis-à-vis Bangladesh). However, there are also cases in which the lower riparian is more powerful and is able to impose its will to some extent on the relatively weaker upper riparians (for instance, the case of Egypt vis-à-vis Ethiopia and the Sudan in relation to the Nile, though the Nile Basin Initiative, which began in 1998, seems to have ushered in a less adversarial relationship2).

Environmental Concerns The reduction of flows because of upstream dams or barrages or even because of heavy upstream water-use (apart from affecting the availability of water) can also have serious environmental/ecological impacts in the downstream areas within a country or beyond its borders. This was an important component in Bangladesh’s complaints about 2 See Global Policy Forum, ‘Nile River Politics: Who Receives Water?’, 10 August 2000; ‘Smoothing the Waters: the Nile Conflict’, by Robert O. Collins, Institute on Global Conflict and Cooperation, IGCC Policy Briefs, University of California, MultiCampus Research Unit, 1999; ‘Averting Conflict in the Nile Basin’, The New Courier, no. 3, October 2003, UNESCO; ‘The Nile Water Conflicts’, Science in Africa (online science magazine), May 2003.

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the Farakka barrage, and is now a part of its objections to India’s RiverLinking Project. Environmental concerns lie at the heart of the dispute between Hungary and Slovakia over the half-completed GabcikovoNagymaros Project on the Danube (Jansky et al. 2004).

Security Concerns Lower–riparian concerns about water needs can grow into serious worries about ‘water security’. Given the importance of water for lifesupport and livelihoods, a sense of insecurity in relation to water can loom very large in the consciousness of the lower riparian and become visceral. In the past, Bangladesh has felt this sense of insecurity vis-à-vis India in relation to Ganga waters,3 and Tamil Nadu experiences it in relation to the Cauvery. The Indian River-Linking Project has given rise to acute ‘water security’ apprehensions in Bangladesh. Security concerns about water can go beyond worries about availability, and become apprehensions of deliberate harm or damage, or the use of water as a weapon of war. The lower riparian can entertain fears about the upper riparian drying up the river and denying water to the lower riparian, or holding back the waters and then releasing them suddenly and in large quantities with a view to causing harm to the lower riparian through heavy flooding. Such fears may be unfounded in many cases, but they are often keenly felt. Fears of this kind lie behind Pakistan’s objections to some of the proposed Indian projects on the Jhelum and the Chenab rivers in the Indus system. Security concerns in the military sense are not the subject of this chapter. What we are dealing with here is the possibility of conflicts arising over the use—domestic, municipal, agricultural, industrial— of scarce natural resources, and over the consequences of such use.

3

See the author’s paper ‘Water and Security: A Reexamination’ in Najam (2003).

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PRINCIPLES What principles are available for obviating or resolving such disputes or conflicts?4 Putting together both the Helsinki Rules and the UN Convention of 1997, we can say that what has commanded a fair degree of international acceptance is the principle of equitable sharing for beneficial uses (in the Helsinki language) or of utilisation in an equitable and reasonable manner (UN Convention). What is ‘equitable’ has of course to be determined with reference to many criteria, and there is enormous scope for differences here, but there is at least a consensus on the principles of equity and reasonableness. Similarly, there is agreement that the upper riparian must not cause harm to the lower riparian, though the wording has changed from ‘substantial harm’ in the Helsinki Rules to ‘significant’ adverse effects in the UN Convention. In other words, if countries straddled by river-systems that cross or run along boundaries wish to avoid conflicts over the use of the waters, there are enough principles and guidelines to go by. To put it in a nutshell (even at the risk of sounding platitudinous), the upper riparian, in exercising its powers of control over waters, must avoid causing harm to, or infringing the rights of, the lower riparian; and the lower riparian, in asserting its rights over the waters, must not be oblivious of the needs and interests of the upper riparian or seek to impose unreasonable restrictions on legitimate activities. Given that understanding, conflicts will either not arise at all or can be resolved without much difficulty when they do. Unfortunately, understanding of that kind often proves elusive. This is particularly true in this part of the world. Rivers here are parts of culture, history and even religion, and tend to evoke strong emotions in the minds of the people on either side of a political boundary (whether between provinces or States or countries), making rationality difficult. Moreover, disputes over river waters quickly become ‘politicised’, i.e., enmeshed in party and electoral politics, and this makes them extraordinarily difficult to resolve. 4

This was discussed by the author in his earlier book (Iyer 2003: 142–43).

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WATER AND POLITICS The Ganga Waters issue became heavily politicised in the sense indicated above (more in Bangladesh than in India). Politicisation not only made the Cauvery Dispute more difficult, but it also seriously impaired the working of the constitutional conflict-resolution mechanism, and even led temporarily to a defiance of the Supreme Court. Politicisation also plays a part in the intractability of the differences that emerge under the seemingly successful operation of the Indus Treaty between India and Pakistan. Again, if the Mahakali Treaty between India and Nepal has become virtually inoperative, the cause lies less in water-related issues than in the complexities of the political relations between the two countries.5 (The ‘big-country/small country’ complexities in the India–Bangladesh and India–Nepal relations that tend to cloud the water issue are not gone into in this book.)

Track II Initiatives However, there is one positive factor that must be mentioned here, namely the constructive (but admittedly modest) role played by nonofficial or ‘Track II’ initiatives in the processes that led to the Ganges Treaty of 1996 between India and Bangladesh. A similar non-official initiative has been undertaken by the Madras Institute of Development Studies to bring the farmers of Karnataka and Tamil Nadu together to promote understanding and find a way out of the impasse on the Cauvery Dispute. Such initiatives help to counter the harmful effects of politicisation to some extent.

REGIONAL COOPERATION In the context of inter-country river-water disputes, regional cooperation is often strongly urged. There is much force in that advocacy, 5 See author’s article ‘Delay and Drift on the Mahakali’ in June 2001 issue of Himal magazine, Kathmandu, in response to an article by Ajaya Dixit and Dipak Gyawali in the preceding issue.

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but it tends to become doctrinaire. There are some problems and issues that are best dealt with on a national or local basis; some that call for cooperation between two countries or units; and others that demand a regional approach. The circumstances vary from case to case, and in each case the most appropriate route needs to be followed. What is called for is pragmatism rather than doctrine.6

INTER-STATE AND INTER-COUNTRY A comment often made is that it has been easier for India to resolve issues and enter into Treaties with other countries (Bangladesh, Pakistan) despite uneasy political relationships, than to resolve interState river-water disputes within the country. This apparent paradox is easily explained. The Indus Treaty was signed at a fairly early stage in the history of India–Pakistan relations; it might have been much more difficult to enter into such a Treaty after the 1971 War in the east or the worsening of the Kashmir issue and the escalation of violence in the late 1980s. Besides, mediation by the WB also played a role. In the Ganga Waters case, there were new Governments at both Delhi and Dhaka in 1995, and they were determined to improve the political relations between the two countries. The perceived importance of better India–Bangladesh relations tended to override the seemingly intractable differences over water-sharing. No such positive extraneous (i.e., non-water) factors operate in the domestic context to mitigate the acuteness of the water conflict; on the other hand, negative forces (namely those of party and electoral politics) do operate and make the water conflict more difficult to resolve.

6 To mention one instance, the Ganges Water-Sharing Treaty between India and Bangladesh, signed on 12 December 1996, took only a few months to negotiate. Politically, it was a highly sensitive matter, and quick negotiation was essential; and it was important that it should be in place by 1 January 1997 when the 1997 lean season would begin. If a ‘regional’ approach had been adopted and four countries had sat at the negotiating table, one wonders how long it would have taken to reach finality, and whether it would have been reached at all.

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INTEGRATION AND SEGMENTATION When hydrological and ecological unities are cut across by political divisions, whether within a country or between countries, there are three possibilities: (a) the joint, cooperative, integrated planning and management of the river as a system; (b) separate actions by the different political entities involved but with some degree of institutionalised coordination; (c) separate, segmented actions by the different entities without any integration or coordination. The division of the river system into two segments in the Indus case is an extreme example of segmentation or surgery, but the ‘sharing’ in the Ganges case and the allocations to different states by Tribunals under Indian law are not very different: they are all instances of segmentation. Each political entity (country or State or province) is given a certain allocation of waters and left free to do what it deems fit with it. That may seem an un-ideal thing to do, but two points must be noted. First, a Treaty or an Agreement or even an adjudication is better than dispute and discord, and if the ideal is not feasible, then the second-best solution has to be accepted. Second, there are dangers even in the ‘integrated’ approach. The general recommendation is ‘integrated river basin management’, as the basin as a whole forms a natural hydrological unit.7 That seems unexceptionable, but the hidden danger here is that such an approach carries with it a bias in favour of a centralised, technologydriven planning of big projects. That bias is of course not inevitable and can be guarded against, but we need to be aware of that possibility.

RIVER BASIN ORGANISATIONS Subject to that caution, some degree of integration or at least coordination at a basin or sub-basin level seems desirable to obviate or resolve conflicts, and this calls for an institutional arrangement or an 7

A ‘basin’ may be a hydrological concept but it is not necessarily an ecological one. The basin approach is better than the discrete planning of isolated projects, but it may tend to focus exclusively on the river and ignore everything else: groundwater aquifers, land, the ecological system of which the river is a part.

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organisation. It is curious that while such an institutional arrangement exists in the international cases—the (India–Pakistan) Indus Commission and the India–Bangladesh Joint Rivers Commission—no such arrangements exist within India.8 There is strong resistance to the idea of River Basin Organisations (RBOs) on the part of the State Governments (Iyer 2003: 69–74). That resistance has rendered the River Boards Act 1956 (RBA) a dead letter. The RBA, enacted under Entry 56 of the Union List, provided for the establishment of river boards with a wide range of functions. It also included provisions for conflict-resolution through arbitration. Arbitration under the RBA and adjudication under the Inter-State Water Disputes Act 1956 were mutually exclusive courses.9 However, for arbitration under the RBA the pre-requisite was the existence of a River Board established under the Act for the river in question. No such Board has been established, largely because no State Government was in favour of such a course. (In the Krishna Tribunal’s Award, ‘Scheme B’ that envisaged a Krishna River Authority was not made mandatory and never came into operation. In the Cauvery case, as we have seen, attempts to establish a standing, professional-cum-bureaucratic Cauvery River Authority had to be abandoned and a political authority set up essentially as a mediating body.) One must hope that at some future date a more enlightened attitude will come to prevail.

ADJUDICATION: SOME LIMITATIONS The ISWD Act has of course been active, and several Tribunals have been set up under it. The adjudication process seemed to be working well, and the Krishna, Godavari and Narmada Tribunals can be regarded as successful instances of conflict-resolution; but the process ran into difficulties with the Ravi–Beas and Cauvery cases. Apart from the 8 The Narmada Control Authority is concerned with specific projects and is not really an RBO. The Cauvery River Authority is also not an RBO, vide footnote 2 in Chapter 13. 9 Incidentally, there is no reason to believe that arbitration under the RBA would have been significantly different procedurally or substantively from adjudication under the ISWDA.

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procedural and operational difficulties for which solutions have been attempted through amendments to the Act in 2002, there are certain substantive points out of which three may be noted here (see also Iyer 2003: 28–30). (a) Adjudication may not be the best way of resolving a dispute. However, the provisions for adjudication do not rule out other means such as negotiations, conciliation or mediation; they merely offer a last-resort mechanism for the settlement of disputes when other means have failed, and such a last-resort mechanism is very necessary. (b) It is often argued that adjudication promotes maximal claims on either side, and becomes an adversarial and divisive process. That could indeed happen but is not an unavoidable characteristic of adjudication. It should be possible to go through an adjudication process in a non-divisive, non-adversarial spirit. If such a spirit is absent, other routes such as negotiation, conciliation, etc., would also run into difficulties. (c) A more serious and perverse consequence of the adjudication process is that the States concerned might tend to build dams and barrages not necessarily because they are needed but with a view to showing that they are utilising the shares allocated to them, or creating vested rights with an eye on future reviews of the award. (There are some actual examples, but they are not being identified here.) However, it seems clear that despite difficulties and deficiencies the adjudication of inter-State river water disputes is a necessary last-resort option, and that is what Article 262 of the Constitution and the ISWD Act provide. These provisions are important features of Indian federalism in relation to water.

ROOT CAUSE OF CONFLICTS Conflicts over water often arise because of claims and counter-claims. In the Indus Waters case, each side (India, Pakistan) wants more water

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than the Indus Treaty gives it. In the Ganga case, before the Ganges Treaty was signed, each side (India, Bangladesh) used to lay claim to the totality of the flows in the river in the crucial period (the leanest part of the lean season). In the Ravi–Beas case, Punjab feels that its water is being taken away by others, but Haryana and Rajasthan feel that their allocations are under threat. In the Cauvery case, both Karnataka and Tamil Nadu want a larger share of the waters. In the attempts at conflict-resolution, the stated claims are taken and some kind of a compromise is worked out. But how much water do the parties in question really need? That is not an easy question to answer, but it can be said without fear of contradiction that there is substantial mismanagement of water by all parties in all these cases. Consider the incidence of waterlogging and salinity in the Indus Basin. It is massive in Pakistan and is a major national problem (Bengali 2003: 17); remedial measures are being implemented (see Chapter 23). In the Indian part of the Indus Basin— in Punjab and Haryana—the same problem is being experienced, and valuable agricultural land is going out of use. We have even managed to create waterlogging and salinity conditions in the desert State of Rajasthan. This is surely evidence of mismanagement of water and land. With better water management it seems probable that each of the contending parties can make do with much less water than it thinks it needs. Another point is that supply creates demand and necessitates more supply (see Chapter 6). There is always a demand for more water and still more water. But where will this ‘more water’ come from? It has to be brought from somewhere. So big dams, canals and long-distant water transfers are planned. These will in turn generate new conflicts. Agreements, accords and Treaties may temporarily bring peace, but the conflict will erupt again unless we learn to re-define ‘development’. That is a large and complex theme which will call for a separate book, but the subject will be briefly referred to later in this book.

III

CONFLICTS OF OTHER KINDS

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16 Narmada: Abandoning the Displaced

There is often a conflict between the ‘developmental’ goals and plans of the state and the lives and rights of people who live in the areas selected for the location of projects. In recent times, the Sardar Sarovar Project on the Narmada (SSP) has been a dramatic illustration of this kind of conflict. In this chapter we are concerned with recent developments, particularly from April 2006 onwards. However, for the sake of continuity, let us briefly recall the story of the petition by the Narmada Bachao Andolan (NBA) before the Supreme Court (SC).

FROM 1994 TO EARLY 2006 The NBA had gone to the SC in 1994 alleging flaws and deficiencies in the processes of examination based on which a ‘conditional clearance’ had been given to the Project in 1987; subsequent non-compliance with the conditions prescribed; serious failures on the environmental

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and displacement/rehabilitation aspects, involving much environmental damage as well as human hardship and suffering; and the questionable nature of the techno-economic viability of the SSP and the impossibility of financing it without distorting the whole planning and budgeting processes of the state. On these grounds, it called for a suspension of work on the SSP pending a comprehensive review. The SC admitted the petition and stayed the work on the Project pending the disposal of the petition. In October 2000 the SC pronounced judgment. A minority judgment (one out of three judges) found the processes of examination and clearance of the Project deficient and ordered a fresh examination; but this had no legal force. The majority judgment (which is the legally effective judgment) rejected the petition, commended dams in general, allowed the SSP to proceed, made no response to the failures and lapses brought before the Court, inveighed against Public Interest Litigation (PIL), passed severe strictures on the NBA, expressed confidence in the existing machinery for overseeing the environmental and rehabilitation aspects, put forward the doctrine that the existing machinery must be presumed to be working, but reiterated the link between construction and rehabilitation, and added that further progress on the project would be subject to checks at every stage (each increase of 5 m in height) on compliance with the environmental and rehabilitation requirements. It also made the Prime Minister the final arbiter in the event of any differences in the ministerial Review Committee which is above the Narmada Control Authority (NCA). The NBA had lost its legal battle against the Project, but it could and did continue its fight against lapses, non-compliance with conditions, hardship, injustice, and so on, with reference to the Tribunal’s Award and the SC’s judgment itself, in various forums. It was a difficult and disheartening battle. The dam kept rising inexorably; people were being displaced in large numbers; resettlement and rehabilitation continued to be problematic; and the SC’s presumption that the existing machinery is working was being disproved everyday. Rehabilitation quickly fell behind construction; and there was much injustice and distress. A great human tragedy was being enacted in the Narmada Valley. However, civil society’s interest in that tragedy tended to decline;

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and for the media it was no longer news. (A similar statement could be made about the Tehri Project.)

APRIL–MAY 2006 That was the situation in the early months of 2006, but the story became front-page news again because of a decision taken by the NCA. Based on reports by the Environment and Rehabilitation Sub-groups, the NCA approved the raising of the height of the dam from 110 m to 121 m. This would mean further displacements of people. The NBA protested against the decision on the ground that rehabilitation work was already incomplete in numbers and poor in quality with reference to the displacements corresponding to the height of 110 m, and that there could be no question of raising the height without first completing the lagging rehabilitation work satisfactorily, and fulfilling the prescription of the things to be done in advance of further construction. The NBA stated that the NCA had taken its decision on the basis of wrong reports. Memoranda and representations brought no results. At a meeting the Prime Minister promised a response within two days but that did not happen. Protests, ‘dharna’, speeches, marches, rallies, and so on, brought the media to the protest site (near Jantar Mantar) in Delhi. Medha Patkar and two of the displaced persons went on an indefinite fast. The Prime Minister then deputed a team of three ministers (Saifuddin Soz, the new Minister of Water Resources, Meira Kumar, Minister of Social Welfare and Prithviraj Chauhan, Minister in the PMO) to visit the Valley and report. Their report was damaging and seemed to corroborate NBA’s contentions. It was questioned by the Gujarat and Madhya Pradesh State Governments. The ministerial Review Committee was divided on the issue. The Prime Minister seemed unwilling to exercise the power of decision-making vested in him. The SC reaffirmed that the PM had the power, re-emphasised the importance of rehabilitation, threatened to stop the work if rehabilitation was lagging, and asked for comments on the Soz report. The PM decided to set up a Rehabilitation Oversight Group to undertake a survey of the

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actual situation. Medha Patkar and her associates were persuaded to end their fast as the matter was coming up before the SC. At the hearing on 8 May, the SC refused to stay the work, decided to wait for the report of the Oversight Group (OSG) and the PM’s decision on it, and said that it would hear the matter again in July. The OSG is currently getting a survey of the rehabilitation work done by the National Sample Survey Organisation.

SOME QUESTIONS Is SSP a Good Project? Having narrated that story, let us consider the questions that arise. First, are big dams in general good or bad? More specifically, is the Sardar Sarovar Project a good project? It seems pointless to raise such questions at this stage. Whether dams are good or bad, and whether SSP is a well-conceived project or not, it is a reality. There is a standing dam wall of 110 m, and it seems too late to consider hypothetical alternatives in this case, though lessons can and must still be drawn from this case for the future. In the present case, we have to consider how best the dam already constructed can be put to good use, how some benefits can be extracted out of the social and human costs already incurred, how the existing injustices and hardships can be remedied and how further hardship and injustice can be avoided or minimised.

Status of Rehabilitation? Is the SSP, as currently under implementation, in conformity with the prescribed conditions on the environmental and rehabilitation aspects? There are strong indications that it is not. The NBA has been arguing that resettlement and rehabilitation are lagging badly in terms of numbers and seriously deficient in terms of conformity to

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conditions, the result being considerable hardship and injustice to many. The NBA’s argument seemed persuasive not only to the author, but to many others—writers, academics, activists, former civil servants, intellectuals, eminent figures in public life, who appeared at the dharna site to express solidarity with the NBA. It received some corroboration from the report of the group of three ministers, which was a severe indictment of the state of rehabilitation. Even assuming that there were errors in the report needing correction, it was indisputably clear that all was not well on the rehabilitation front. The extent of failure might be in dispute, but not the fact of failure. Further, implicit in the appointment of an ‘Oversight Group’ (the Shunglu Group) to look at the status of rehabilitation work in the Narmada Valley was an acknowledgement by the Government of India—or at least a suspicion on its part—that all was not well on the rehabilitation front.

Why Should Construction be Stopped? Assuming that there was a failure on the rehabilitation front, why did the NBA not confine itself to talking about remedying that failure? Why was it insisting on the stoppage of construction? The answer is that in terms of the Narmada Tribunal’s Award (1979), the conditions of clearance of the Project (1987), and the Supreme Court’s judgments of October 2000 and March 2005, construction is not allowed to outpace rehabilitation work. Land has to be allotted one year before submergence, and rehabilitation completed six months in advance of submergence. These were carefully considered prescriptions in the interest of ensuring that construction would not be pursued at the cost of neglecting rehabilitation, and they have legal force. The NBA was not asking for something new; it was merely asking for compliance with prescribed conditions, not imposing its own. The fact that construction had gone far ahead of rehabilitation constituted an illegality. Some may argue plausibly that construction can be allowed to proceed and that rehabilitation can be separately attended to and the backlog cleared, but that is not the legal position emerging from the Tribunal’s Award and the Supreme Court’s judgment. However, for whatever

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reasons, the Prime Minister who ought to have stopped the work and had the authority to do so, did not. Even the Supreme Court satisfied itself with the observation that it may have to stop the work at some future time.

Acceptance of Illegality All this seems to add up to an acceptance of illegality and an amnesty for all failures so far. How can we explain this? In so far as the Executive is concerned, dams are doubtless equivalent to ‘development’, and extremely difficult to stop (for good political and economic reasons; we refrain from speculating about bad ones). On the other hand, the infliction of hardship on the people, the nonfulfillment of promises made to them, the clear departure from the prescriptions of the Tribunal and the Supreme Court, may seem less serious to the authorities. Perhaps we will be told that we should take a ‘practical’, ‘pragmatic’ view of these things. However, whatever the rationale of Executive thinking, it is difficult to understand the learned judges’ disinclination to stop the construction at least until the next hearing. At one stroke, the learned judges, in their Order of 8 May 2006, have done something unthinkable: they have de-linked construction from rehabilitation. They have gone against their own earlier orders and re-written the ‘immutable’ Award of the Tribunal. If in July they find that there had indeed been failures in rehabilitation and that the continuation of construction was illegal, what will they do? Will they shrug their shoulders and accept the fait accompli? One was about to say that their order was illegal and unjust, but that would be wrong: by definition the Supreme Court cannot do anything illegal or unjust because what it delivers is ipso facto justice, and what it pronounces is ipso facto law. The point can be stated differently: what was injustice and illegality till the morning of Monday 8 May 2006 ceased to be unjust or illegal by that afternoon by virtue of the Supreme Court’s Order. This judicial volte-face is not easy to understand.

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Abandonment of PAPs It appears—one says this with deep reluctance—that both the Executive and the Judiciary share a particular understanding of ‘development’ and implicitly subscribe to the proposition that the infliction of suffering on the project-affected persons (PAPs) must be accepted as the ‘cost’ of that development. The PAPs must now reconcile themselves to the fate ordained for them. They have been abandoned by the state and Central Governments, and have received little solace from the Supreme Court. The judgment of October 2000, unsatisfactory as it was, seemed at least to hold out a tenuous hope of future justice. The order of 8 May 2006 extinguishes that hope. The immiserisation of the PAPs is euphemistically described as ‘social costs of development’. More bluntly, it can be described as human sacrifice at the altar of ‘development’. The PAPs must presumably learn to bow before the powers that be and say, as the gladiators used to do before Caesar, ‘Those who are about to die salute you’ (morituri te salutant). The Governments, State and Central, will then doubtless say an unctuous word of farewell to those who are being abandoned (echoing Nehru’s words to Assam in 1962): ‘Our hearts go out to the people of the Narmada Valley’.

Meaning of Pari Passu The discussion of the principal issues involved is more or less complete, but a few words about the pari passu principle may be in order, as it has figured in the media. How this expression gained currency needs to be explained; and it is a personal explanation. In 1985–86, the Ministry of Water Resources and the Ministry of Environment and Forests (T.N. Seshan as Secretary MoEF and the present writer as Secretary WR) were discussing whether the SSP was ripe for a clearance. The MoWR was arguing for a strictly conditional clearance to the project, but MoEF felt that once a conditional clearance was given, construction would proceed apace and other things such as environmental and rehabilitation measures would become secondary and be neglected.

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It was in that context that Secretary WR (this writer) suggested that such a possibility could be prevented by stipulating a strict pari passu condition such that construction is not allowed to outpace environmental and rehabilitation work. The idea was that the pace of work on environmental and rehabilitation measures would determine the pace of work on construction. Unfortunately, the pari passu principle was subsequently misinterpreted and turned on its head. The people who wanted to get ahead with the Project argued that the building of the dam and the filling of the reservoir were slow processes that would take many years, and that there was plenty of time to take care of environmental and rehabilitation matters as the construction work proceeded. This meant (a) that the sense of urgency on the environmental and rehabilitation aspects was lost, and (b) that it was the pace of construction that would determine that of environmental and rehabilitation work and not vice versa, reversing the relationship that had been originally intended. The pari passu principle (so understood) was severely attacked by the Morse Commission and by Baba Amte. They also questioned the very idea of a conditional clearance. Later developments, i.e., lapses and noncompliance with every one of the conditions when reviewed in 1993, seemed retrospectively to prove MoEF right and MoWR wrong in their 1985–86 discussions. (However, ‘conditional clearances’ are unavoidable in the case of big projects. Even if the clearance of SSP had been deferred by three years and various studies and actions had been completed, the clearance at the end of that period would still have had to be ‘conditional’ and not absolute. The failure lay not in granting a conditional clearance, but in the reluctance or inability to enforce the conditions strictly, and impose penalties for non-compliance, including the cancellation of the clearance.) The pari passu principle as originally intended most definitely implied that in the event of failures on the rehabilitation front construction work must stop. The authority to proceed with construction work disappears if work on the environmental and rehabilitation aspects lags behind. In fact, faced with such failures, the MoEF would be justified in withdrawing the conditional clearance. There can be no other meaning to the concept of ‘conditional clearance’. There

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has been a reluctance to accept this logic, not only on the part of the executive government but even on the part of the Supreme Court.

Cost of Delay In justification of not stopping the project, it has been argued that each day’s delay adds a huge sum to the cost of the Project. This is a familiar point; one has heard it on the review committees with which one has been associated. It has some plausibility. If we assume hypothetically that the project was well-formulated and rigorously scrutinised, that every relevant aspect was duly taken into account, and that all affected categories were taken into confidence and their concerns dealt with, prior to the approval of the project, then delays are certainly undesirable. However, if during the course of implementation of a project, it becomes clear that there were serious flaws in the conception and formulation of the project; that important aspects had been overlooked; that new developments have emerged that call the basics of the project into question; that many categories of project-affected persons had not been consulted or even identified at the projectformulation stage; that the Project would cause much more misery and inequity than had earlier been foreseen; or that the Project as originally conceived was simply no longer viable; under those circumstances, should we still proceed with the Project on the theory that ‘there must be finality at some stage’, or ‘there cannot be endless reviews’? Further, let us take the argument against delay and turn it around: have those who are worried about project costs asked themselves what each day’s delay in rehabilitation means (in money and pain) to the project-affected persons?

In Defence of NBA Some may ask: in a parliamentary democracy like ours, is there room for people’s movements like the NBA’s? Are not the people’s interests taken care of by their elected representatives in Parliament and the state legislatures? This need not be discussed at great length. It is clear

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enough that representative parliamentary democracy cannot always be presumed to be fully representative of or responsive to the people. Civil society initiatives, people’s movements, rallies, public interest litigation, and so on, do have a place. This is accepted even in the ‘advanced’ societies of the west. Let us recall the environmental (‘green’) movement, the anti-Vietnam-War movement, the NGO gatherings that are held in parallel with major international conferences, the World Social Forum, and so on. All this is self-evident and does not need to be argued from first principles. When the protest was at its height at Jantar Mantar in mid-April 2006, people in the bureaucracy were reported to have asked with real or feigned indignation: ‘Can we give a veto power over governmental decision-making to an individual?’ That fell strangely on one’s ears. What veto power? The juggernaut was rolling on, heedless of protests. The Chief Minister of Gujarat was reported to have said that nothing must be allowed to stop the project. What power have the people been able to exercise? One can in fact turn that around and ask—as some have done—the opposite question: ‘are peaceful protests ineffective? will the state respond only to violence?’ If fasting is coercion, so are strikes, bandhs, hartals, and other forms of protest. Unfortunately, it is the absence of response to letters, memoranda, resolutions, and even personal pleas at meetings, that drive people to such confrontational methods. If there had been early and constructive responses to Medha Patkar’s pleas she could have avoided recourse to such an extreme step. Let us note that it was only when she went on a fast and her condition started deteriorating that ministers came to the dharna site. Who then is to blame for her decision? The NBA is often accused of delaying the SSP by several years. The NBA’s petition to the Supreme Court led to a hiatus in the Project from 1994 to 2000, and this six-year delay is laid at the doors of the NBA. However, when it filed its petition in 1994, did NBA ask the SC to take six years to deliver judgment? The SC could have refused to entertain the petition; it could have refused to order the suspension of work on the project; if it admitted the petition and ordered the stoppage of work, it must have found some substance in NBA’s complaints. Having done so, it could have disposed of the case in six months instead of six years; can the responsibility for that delay be laid at the

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NBA’s doors? In the end, the majority judgment went against the NBA, but at least one judge found the processes of examination and clearance wanting and ordered a re-examination of the project. Being a minority judgment it had no legal effect, but it showed that NBA’s petition was not a frivolous or ill-conceived one. Subsequently, NBA has been drawing attention to non-compliance with conditions, violations of human rights, hardship, and so on. Faced with these things, should the NBA have kept quiet on the ground that complaints will cause delays? Should the responsibility for such delays be attributed to the complainant or to those whose omissions and commissions made the complaints necessary? Are protests against lapses ‘perverse’ (to cite one of the adjectives used for Medha Patkar in a newspaper article)? She has also been described as an ‘ideologue’, using that term in a pejorative sense. Leaving aside the question whether it is bad to be an ideologue, we need to ask whether that term applies only on one side of a divide. What is curious is that ardent advocates of ‘development’ as now understood (big projects, huge shopping malls filled with the world’s merchandise, roads bursting with automobiles, and so on) are not described as ideologues; but those who argue that such ideas of development have brought the world to the brink of disaster and that we must pull back from the brink before it is too late, are castigated as ideologues. Medha Patkar is not alone in holding such views; there is a worldwide groundswell of opinion that humanity must alter its ways if it and Planet Earth are to survive. There are indeed many who hold the opposite view, and they are entitled to do so; but they are not entitled to dismiss those whom they consider wrong with scorn and contempt. In any case, the current protest in relation to the SSP has been largely about failures in rehabilitation, non-compliance with conditions, denial of human rights, infliction of injustice and suffering, and so on. Fasting as a protest was referred to briefly earlier, but a word needs to be said about Narendra Modi’s retaliatory fast. The fast by three NBA persons (including Medha), whether we approve of it or not, was a protest against failures in rehabilitation work and the resulting hardship and injustice. There were only two possible answers to that protest: to remedy the failure, or to show that the protest was based

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on wrong facts. A counter-fast was a wholly inappropriate answer. It trivialised the issue. If Medha’s fast was a fast against injustice, then Modi’s fast was a fast for injustice. He was virtually saying: ‘Rehabilitation is all very well, and I will do what I can, but I cannot be excessively bothered about it. My priority is dam-construction, and I will allow nothing to come in the way of that priority.’ In conclusion, considering the severe criticism to which NBA and Medha Patkar have been subjected in some quarters, this author will make a personal declaration. The NBA is a great mass movement, one of the most important ones since independence; it—and the Tehri movement—have forever altered our understanding of such projects. Medha Patkar is one of the great Indians of our time, to be saluted for her nobility of spirit, her indomitable courage, and her steadfast commitment to the cause that she has espoused.

A NOTE: DEVELOPMENT AND DISTRESS Sardar Sarovar, the Inter-Linking of Rivers Project, gigantic industrial, mining and other projects, and so on, are all manifestations of a certain idea of ‘development’. Broadly speaking, the pursuit of that developmental path gives rise to two sets of questions concerned with (a) sustainability and (b) justice and equity. The first draws attention to the draft on natural resources and the despoliation of nature that this path involves, and the impossibility of sustaining this much longer. The second focuses on the differential and unjust incidence of costs and benefits (both terms being defined comprehensively) on different groups of people. These are two distinct questions, but the emerging area of study known as ‘environmental justice’ tries to link them in some ways (see Ageyman et al. 2003). The concern for ecological soundness and sustainability leads to demands for a radical re-examination of what constitutes ‘development’ and the advocacy of ‘alternative’ developmental paths. We shall return to this in the final section of this book. The narrower question in the present context is whether, within the framework of ‘development’ as now generally understood, we can bring about greater equity and social justice and minimise the incidence of hardship and pain.

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The crucial fact here is that for various reasons large projects, whether dams or mines or industries, are generally located in remote and sometimes pristine areas, often inhabited by aboriginal or tribal communities that have been living there for long, in some cases for centuries, with a close and integral relationship with the river or mountain or forests in question. The project violently disrupts that relationship. Similarly, the processes of urbanisation and urban expansion often lead to the painful ‘clearance’ of slums with the use of force. With the most enlightened of policies and the most liberal of rehabilitation packages, the trauma of uprooting cannot be eliminated; it can only be mitigated to some extent. The justification that is offered for this is that the projects in question will bring many benefits. Unfortunately the burden of ‘social costs’ (usually under-estimated) falls on one set of people (generally the poor, weak and disadvantaged, and often Scheduled Caste or tribal communities); and the benefits (usually over-stated) go to other and relatively more prosperous groups (farmers in the command areas, urban populations, and so on). Attempts to extend the benefits of the projects to the PAPs have not so far been very successful, despite the existence of laws in some States. What then can we do? In the long run, we must re-think our notions of development, but meanwhile, we can and must adopt more humane and enlightened policies on displacement and rehabilitation. The theory that some people should ‘sacrifice’ (or be sacrificed) for ‘development’ should be abandoned. ‘Least displacement’ and ‘minimum environmental impact’ ought to be among the selection criteria for projects and programmes. We shall return to these themes in a later chapter on Policies (see Chapter 20).

POSTSCRIPT OSG Report and After Early in July 2006 the Oversight Group (OSG)—the Shunglu Group— submitted its Report on the status of rehabilitation in the Narmada Valley. While the Report did mention some deficiencies, the overall impression that it gave was that the status of rehabilitation work in

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the Narmada Valley was reasonably satisfactory. The Prime Minister considered that Report to be a fair account of the situation and took the view that the work on the dam should not be stopped, and that the rehabilitation work should be brought up-to-date taking advantage of the stoppage of construction work during the monsoon period. Taking note of this, the Supreme Court, at the hearing on 10 July 2006, decided (a) not to stop the construction, (b) to ask the parties to file their comments on the OSG’s Report within two weeks, with a further week for rejoinders, and (c) to hear the matter again in September. The NBA has prepared a detailed critique which draws attention to serious errors and omissions in the Report. The critique is extremely damaging to the Report. This is corroborated by another study. A group consisting of persons from the Council for Social Development, JNU, and other institutions—persons at least as worthy of respect as the members of the OSG—visited a number of villages and has prepared a report. Their findings are substantially at variance with the OSG’s. Further, and regrettably, the OSG has grossly and inexcusably exceeded its mandate. It was expected to check conformity to the Tribunal’s Award and the related Supreme Court Orders, but it ventures to criticise the Tribunal. It seems to be of the view that people must be made to move under the threat of submergence; it evidently considers ‘land for land’ impracticable and commends the SRP (Special Rehabilitation Package; in this case, cash compensation in lieu of land); it talks about the PAFs (Project-Affected Families) ‘opting for SRP’, but fails to put the blame where it belongs, namely, invalid and unacceptable offers of land by the authorities which virtually forced the PAFs to accept cash. It is an astonishing and totally improper performance. Finally, it must be noted that the OSG’s own report shows that rehabilitation is incomplete and deficient in some respects—if not to the extent indicated by NBA and the Group of Ministers, then to a lesser extent. The Prime Minister’s statement also implicitly acknowledges this. It strains one’s credulity to believe that the backlog in rehabilitation work in terms of numbers and quality can be cleared within three months; in all probability it will take much longer. It

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follows that construction work should not be promptly resumed after the monsoon; rehabilitation should be fully completed first. The PM’s statement fails to say so. One must hope that the SC will take note of this at the next hearing. A Further Postscript (February 2007) The Project is proceeding inexorably. Resettlement and rehabilitation continue to be in disarray. Human misery continues. The case is still before the Supreme Court.

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17 Profit versus Life

As we pursue the path of economic growth, newer forms of conflict over water emerge: industry versus agriculture; industry and agriculture versus drinking water; urban versus rural demands for water, etc. At the same time, industry and commerce tend to pollute and contaminate rivers, aquifers and public supply systems. If we put forward the proposition that the economic rights of some must never be allowed to endanger the fundamental rights of others, it would find general acceptance. However, what most of us would consider undesirable is precisely what is happening. In the Narmada case dealt with in the previous chapter, the construction of a project for providing irrigation and electricity (i.e., economic benefits) to certain groups of users uproots large numbers of people from their homes and fields, deprives them of old, established accesses to river and forest, and subjects them to severe hardship. In Tamil Nadu (Tirupur, and Palar basin), water for economic uses (industries—textiles, leather) takes away water from, and makes water unusable for, basic needs and sustenance

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livelihoods.1 In Plachimada (Kerala), the borewells of the Coca-Cola Company are said to have had an impact on the water sources of the surrounding villages. In Chhattisgarh, the leasing of a stretch of River Sheonath to a corporate body seems to undermine the community’s and even the State’s control over its natural resources. In Delhi, the attempted (but shelved) contracting out of water distribution function to private corporate bodies seemed to be an abdication by the state of its responsibility to ensure basic needs, and the introduction of the profit motive into the domain of a life-right. All these cases are mired in legal complexities, as will be clear from the following. In Chhattisgarh, the contractual rights conferred on a corporate body came into conflict with the fundamental rights of the people, and seemed to empower the former to the detriment of the latter. There was a public outcry against this; the state tried to cancel the contract; but it found that there were serious legal and financial difficulties in doing so. The problem remains unresolved so far. In Plachimada, the Coca-Cola Company’s (licensed) operations entailed the daily extraction through six powerful borewells of a huge quantity of groundwater (said to have been of the order of 1.5 million litres a day), and the impact of this on the aquifer could hardly have been benign. The villagers in the surrounding areas alleged that there were severe impacts on their wells and other water sources. Perhaps the cause–effect nexus has not been firmly established, but the villagers’ grievance cannot be dismissed as their ‘perception’. They did experience difficulties and did not imagine them; nor would they have challenged a mighty corporate giant and risked the loss of economic benefits to the area from the presence of that giant, unless their difficulties were real and they were firmly convinced of the connection between those difficulties and the operations of the company. The panchayat went to the Kerala High Court, and a single-judge bench 1 Curiously enough, Tirupur is cited by the World Bank as a good example of ‘public-private partnership’ (Briscoe and Malik 2006). Industry in Tirupur caused, and continues to cause, severe pollution and contamination problems in the area through its effluents. It may also be participating in a water supply scheme, but that in effect means taking water out of the rivers and making more water available for use and therefore for pollution. As mentioned earlier, the greater the supply the greater the generation of waste. This is clearly not a matter for celebration.

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gave a judgment in favour of the panchayat. In doing so, the Judge invoked the public trust doctrine. He held that water as a natural resource that was essential for life could not be privately owned but must be held by the state in trust for the community. This was briefly celebrated as the people’s victory over the giant corporation, but on an appeal, a Division Bench of the Kerala High Court overturned the single-judge order. It rejected the public trust doctrine and affirmed the landowner’s ownership of the water under the land. It also accepted the findings of a committee2 set up by it on the availability of water and allowed the Coca-Cola Company to extract 5 lakh litres of water per day. Now the case is before the Supreme Court. We must hope that as and when the Supreme Court delivers judgment, the confusion over the ownership of groundwater, the validity of the public trust doctrine under Indian law, and its desirability, will be cleared up. While we wait for that clarification, let us take note of some of the questions that come to mind. What exactly is Coca-Cola (or PepsiCola) doing? It is not quenching anyone’s thirst; Coke is not water. A human being has a basic need for, and therefore a basic right to, water; there is neither a need for nor a right to Coke. However, it is clear that some people—perhaps many people—desire to drink Coke (or Pepsi or Limca or other drinks). It is that desire that Coca-Cola, Pepsi-Cola and other soft-drink manufacturers are trying to satisfy; and the desire is also partly created by them through advertisements that make exaggerated (if not false) claims for the product. Without passing a value judgment either on the desire or on the means used to stimulate it, we may surely make the minimal statement that the soft-drink companies are not meeting any basic need but merely selling a commodity (for which there is a certain real and/or artificially created demand) and making profits. One has no quarrel with that, but the problem here is that the commodity in question is made out of an essential life-sustaining natural resource. It is of course true that industry in general (and not merely the soft-drinks industry), and indeed agriculture, make use of this life-sustaining resource for economic purposes (process use, cooling and steam-generation in industry, and irrigation in agriculture), and this does lead to conflicts; but the conflict 2

The composition of the Committee has been questioned.

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becomes most acute when freshwater itself becomes the raw material and is converted from a life-support to a pleasure-providing substance. This might be a matter of no consequence if there were an abundant and unlimited supply of water in nature, but that is not the case. Given the quantities in question, the conversion of water into soft-drinks of any kind (including bottled ‘mineral’ water and ‘pure’ drinking water) will inevitably mean a heavy draft, for commercial purposes, on a liferesource; and also the discharge of waste water. Generally, the manufacturers will have permissions or licences, i.e., a contractual right, to extract water from aquifers or lift water from rivers or lakes; or they may buy land and get the right to extract the water under it. The question arises whether such contractual rights or other rights (used for commercial purposes, i.e., from the company’s point of view, the making of profits, and from the consumer’s point of view, the enjoying of a certain kind of pleasure) can be placed on the same footing and given the same weight as the local people’s right to life? To the author this seems an important question, but others may feel that it is a romantic and sentimental way of looking at things. We must wait for an authoritative answer from the Supreme Court (assuming that the question is put to the Court on these lines by the lawyers). In the Palar case, many people will see a dilemma. It may seem to them that the industry involves important economic activity, generating employment, wealth, exports and foreign exchange earnings; that this is an essential part of ‘economic growth’; and that water is needed for this activity. On the other hand, water is also needed for drinking, washing and cooking, and for sustenance agriculture that provides livelihoods. The former impinges on the latter; and this may seem a dilemma. However, the dilemma disappears if we reflect that the industry not merely takes away water from domestic or agricultural uses, but also inflicts severe damage on the resource itself; and that all efforts to remedy or limit that damage have so far been unsuccessful. If an economic activity is destroying an essential life-support resource, then there is no dilemma involved in disallowing that activity. The Court despaired of remedial measures and did order the closure of the industry at one stage. However, ‘economic compulsions’ have prevailed and even the judicial decision has failed to over-ride them. The conflict between profits and life is continuing. The Madras Institute

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of Development Studies has been engaged in an exercise in conflictresolution through a ‘Multi-Stakeholder Dialogue’ (MSD). It seems to have achieved a degree of success in promoting better mutual understanding and a reduction of hostility. However, it does so at a price: a life-destroying activity gets partly legitimised. Perhaps that is realism. In any case, the MSD has not gone beyond a point. This again is an unfinished story.

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18 Privatisation, Markets1

Having discussed some instances of conflict between commercial corporate bodies and the people, it seems appropriate at this stage to take note of the question of privatisation of water services. There has been a controversy in this regard in Delhi, with the Delhi Jal Board (DJB) and the WB being challenged by Parivartan, a prominent Delhi NGO, and by Vandana Shiva and her organisation. There were two elements in that controversy: (a) the manner in which the consultants PricewaterhouseCoopers were selected, and (b) the proposed areawise contracting out of the water distribution function to a number of private corporate agencies. The opposition to the first was on the grounds of propriety and the appearance of undue interest on the part of the WB in the selection process (which was denied by the Bank); and the opposition to the second was on the grounds of the high costs 1 The inclusion of this chapter under the section on ‘Conflicts’ is deliberate. (The subjects of privatisation and markets were also discussed in Iyer 2003: 112–14.)

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involved which would inevitably have led to sharp increases in the water tariff, and the neglect of the option of reforming the DJB itself. The campaign had the effect of making the Delhi Government shelve its plans for the time being. It has been argued by DJB and the WB that the attempted ‘reform’ in Delhi was not really in the nature of the privatisation of water. However, the reforms were widely perceived as the first steps towards privatisation; that was the concern underlying the campaign. That is the question that we need to consider here. The Delhi case has been mentioned here but there have been similar debates elsewhere too. The advocacy of ‘privatisation’ in relation to water is part of the prevailing economic philosophy. In the case of consumer or industrial goods—say, soap, steel, fertiliser, machinery—the argument is that it is not the business of the state to produce or market these things, that they should be left to the play of market forces (subject to regulation), and that if there are state-owned enterprises producing these things they should be ‘privatised’, i.e., their ownership should be transferred to private hands. By analogy, the same argument is extended to water. However, there are some difficulties with that analogy. First, in the case of consumer or industrial goods, if the price is too high, or if the supply fails for commercial reasons, we can at a pinch do without them or look for substitutes; we cannot do without water and there are no substitutes for it. We cannot reduce our intake of water (for drinking, cooking and washing) below a certain level. The supply cannot be allowed to fail. And rationing by price has only a partial application to water because the pricing out of any individuals or groups is unacceptable. While the pricing of water has to be generally based on certain obvious considerations (for instance, it must sustain the supply, discourage wasteful use and promote economy and conservation), no one should be denied this basic need merely because he or she cannot afford the price. How are we to resolve this conundrum? It is clear that the analogy with consumer and industrial goods is imperfect. Second, soap or steel or fertiliser can indeed be wholly left to the market; there is no obligation on the part of the state to provide these commodities, though it may have to regulate the market. However, if water is a basic need and therefore a basic right, the state does have a

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responsibility to ensure that no one is denied it. Even if the supply is entrusted to a private agency, the responsibility of the state does not disappear: in the event of a failure on the part of the private agency, the responsibility will revert to the state. Third, water is a vital and scarce natural resource of the community and the country, and a finite resource. It has to be protected from pollution, contamination and depletion, and conserved for future generations. It follows that the privatisation argument cannot forthwith be transferred from consumer or industrial goods to water. Keeping that in mind, let us consider what privatisation can mean in relation to water. It can mean the transfer or the contracting-out of the water supply function in a rural or urban area from the local municipality or corporation or other agency of the state to a private agency. In other words, a service that was being performed by a state agency would now be performed by a private agency. Alternatively, privatisation can mean the entrustment of a ‘water resource development’ (WRD) project to a private body, or the authorisation of such a body to undertake a WRD project, i.e., build dams, reservoirs, canal systems, etc., on a river, or install plant and equipment for the extraction of water from a river or river-bed or lake or aquifer. This may involve serious questions of control over natural resources, resource-conservation and sustainability, equity and social justice, and so on. A simplistic proposition might be to say that the privatisation of a service is acceptable subject to regulation, but that we must be wary of privatising the resource itself. However, such a distinction is difficult to maintain. The privatisation of the water supply service may sooner or later lead to the transfer of control over the resource. A private agency is unlikely to undertake the responsibility for water supply to a certain area without some degree of control over the source of supply (a stretch of the river or a lake or an aquifer or whatever). Even if it is not formally given the ownership of the water source, the transfer of control structures (a dam or a barrage or a borewell or a pumping station) to it (or the building of such structures) gives it a position of power which cannot easily be undone, and which can have serious implications. There are difficulties even with the privatisation of a water supply service. The prime motive—the raison d’être—of the private corporate

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sector is profit. The ‘accountability’ of the management is primarily to the shareholder, not to the customer or to the community. If considerations of profitability come into conflict with other considerations, profitability will prevail. How can such an approach be brought into the sphere of a basic life-support resource? Can profitability really be allowed to prevail over ‘other considerations’, when these include the protection and conservation of the resource, ecological sustainability, assurance of basic need, social justice and equity? Can these considerations be adequately taken care of through regulation? These difficulties get compounded when privatisation goes beyond the provision of a service. This does not mean that one is arguing for a dominant role for the state; but merely that the alternative to the state is not necessarily the corporate private sector. The author has serious apprehensions about the implications (for equity, social justice and environmental protection and sustainability) of the induction of the corporate sector (even the domestic one) into water services and water resource development. When that corporate entity is a foreign or a multinational one, there are further complexities, but that aspect will not be gone into here. Let us turn now to the related issue of the desirability of water markets. It would be unrealistic to rule them out on theoretical grounds. In any case, they already exist and are unlikely to disappear. Many would say that we need more of them, not less, and that the future lies in that direction. The prescription is: ‘define water rights and allow trading’. The difficulty is that the terms ‘title’ and ‘right’ can be used in different ways and can lead to different recommendations. We may regard water as basic life-support and the ‘right to water’ as a ‘fundamental right’ in terms of our Constitution, or as a ‘human right’ in UN terms; this will lead to the ascription of responsibility to the state to ensure that this right is not denied to any citizen or group of citizens. ‘Right to water’ is not the same thing as ‘water rights’; the latter term generally refers to use rights in the context of economic uses of water such as irrigation or industrial use. It is certainly desirable to define them clearly, but they arise from and are tied to certain uses, and cannot be divorced from them. When the WB or some of our own economists talk about rights or titles they mean something else: they are talking about property rights. This is allied to the doctrinaire advocacy of water

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markets (i.e., the state should step out of this area and leave it to market forces), an insistence on economic pricing or ‘full cost recovery’ (which market forces will ensure), and the more muted recommendation of the privatisation of water services. Without elaborate discussion, the following brief statements can be made: (a) it is doubtful whether a life-right or even a use-right can be converted into a tradable property right; (b) the economic rights of some must never be allowed to endanger the fundamental rights of others;2 (c) the principle of full cost recovery is applicable to economic uses but not to water as basic life-support, where other reasonable pricing principles (including subsidisation to some and even free supplies to the very poor) must be found; (d) we must be very wary of introducing commercial (i.e., profit) motivations into the sphere of a life-support substance; and (e) leaving aside ideological considerations, the privatisation of water services, if found necessary at all, should not lead to the privatisation of the resource itself. The first of those brief statements needs a bit of elaboration. Consider domestic water supply. We may say that the citizen (or the household) has a right in this regard, but what kind of a right is it? Assuming hypothetically that an individual is entitled to a supply of 100 litres per day, and a household of five members to 500 litres per day, can the individual or the household be allowed to sell that right to someone else? If the right to water (for drinking, cooking and washing) is a part of the right to life, how can it be regarded as a property right and made tradable? That objection seems unanswerable. Are the water rights of a farmer for irrigation, or those of an industry for industrial uses, property rights, and can they be made tradable? (We may ignore cases of purely contractual rights, such as those where a farmer or an industrial unit buys water from a private source, and confine ourselves to the context of surface water and public systems.) The water needs of a farmer for irrigation purposes may be determined 2

That statement has been made before, but it will bear repetition many times.

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with reference to the area of land in question or the crops to be grown or a combination of the two factors. In a situation of scarcity, limited quantities of water may be arbitrarily allocated by the state or other agency (e.g., water users’ association, if any) responsible for providing irrigation water. The important point is that the water is provided for irrigation. Similarly, an industrial unit gets an allocation of water from a state or municipal agency for certain uses (process, steam-generation, cooling, and so on). In both these cases, the entitlement to water is essentially linked to use. These ‘water rights’, if we wish to use that language, are use rights. They may be customary rights, rights of long standing, contractual rights or statutory rights, but they are (to repeat the point) use rights. How then can they be made into ‘tradable property rights’ as is often advocated? How can any individual or group or institution or corporate body be given a right to water unrelated to use? If the use ceases, the entitlement should surely cease. Temporarily, a possibility of trading in water may arise. A farmer may for certain reasons decide not to cultivate his or her land for a year or two, or may temporarily change to crops demanding less water. He or she may then have surplus water for sale during that period. An industrial house may decide to suspend operations for a certain period for various reasons, and may have water to spare. However, these are temporary situations. If the industry closes down for good, or if the farmer makes a long-term change to crops that need much less water, or decides to move out of agriculture altogether, should the old water entitlements still hold and be allowed to be traded in? That line of argument seems to lead to the conclusion that the prescription ‘define water rights and allow trading’ is untenable and cannot be followed. And yet, this has been done in certain countries. Farmers have been allowed to sell their water to industries or for urban water supply. States (having a ‘surplus’ of water) in a federal structure have been allowed to sell water to other States (which are short of water). Both those examples are taken from the United States of America. It is sometimes argued that water markets are the answer to conflicts over water, whether between uses (e.g., agriculture and industry) or between administrative or political units (e.g., States or provinces). In India too this proposition is occasionally urged. In seminars and discussions one has heard the argument that if water markets

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were to prevail, Orissa might be prepared to sell a quantum of Mahanadi waters, the conflict between Karnataka and Tamil Nadu over Cauvery waters might be eased, and farmers and industrial units (in say Palar) might find a way out of their bitter fight. This sounds plausible, but it is a dangerous and pernicious principle, and the mere fact that it seems to have worked in some instances in certain countries should not blind us to the dangers. The general principle has been that the lower riparian has certain rights and the upper riparian a certain obligation towards the lower riparian. That was enshrined in the Helsinki Rules and continued in the UN Convention of 1997. That principle also lay behind the Indus Waters Treaty 1960 between India and Pakistan and the Ganges Treaty of 1996 between India and Bangladesh. To say that the upper riparian can sell water to the lower riparian would be to negate that wellestablished principle or stand it on its head. Apart from the denial of the rights of the lower riparian, it would introduce a commercial motivation into the thinking of the upper riparian and might lead to an unsustainable exploitation of the resource. Further, the upper riparian province or State or country can sell water to the lower riparian only by acquiring control over the waters through structures: in other words, the upper riparian will first stop the water from flowing to the lower riparian, and then sell the water so blocked to the lower riparian. The unacceptability of the proposition is obvious and does not need to be laboured. Upper and lower riparians (or riparians and non-riparians) must share waters (where necessary) through the routes of agreement, treaty, conciliation, mediation, arbitration or adjudication, and not by a sale-and-purchase contract. As for farmers selling their water to industry or to urban areas, difficult questions arise. In Chennai, Metro Water has been buying water for water supply to the city from farmers in adjoining rural areas, and this has been commended. However, this can only be a temporary expedient. How can those farmers permanently trade in water? Can they become water-sellers instead of farmers on a regular basis? When they cease to be farmers, do they still own the water? Is it their water to sell? Besides, it is reported that they are willing to sell even more. Next, they will doubtless put in more borewells and offer still more water to

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the market. These are the disturbing implications of the advocacy of water markets. The supply of water by private tankers in urban areas and the burgeoning bottled-water trade are also instances of water markets. These ought not to be necessary at all. They become necessary and possible largely because of the failure of public systems in terms of the duration, regularity and dependability of supply and the quality of the water provided. If the public system provided an adequate, reliable and safe supply, the demand for tankers or for bottled water may diminish. Apart from that, these supplies (and the soft drinks business) have necessarily to draw raw water from somewhere, and that draft may be an unsustainable or inequitable one, as we have already seen. Water markets tend to emerge particularly in the context of groundwater extraction through tubewells and borewells, and they serve some useful purposes. They make possible the practice of irrigated agriculture by the poorer or less affluent farmers through the purchase of water from those who can afford to invest in tubewells or borewells. However, there are dangers of unsustainable extraction as also of inequitable relationships between sellers and buyers. Under Indian law, only those owning land can have rights over groundwater; the landless (including communities, tribal and other, who may have been using certain natural resources for centuries) can have no such rights. Further, this legal position leads to inequities of various kinds: a rich farmer can install power-driven tubewells or borewells in his (her) land and their operation can make dugwells in the neighbourhood run dry; he (she) can sell water so extracted to poorer neighbours even though the water may come from a common aquifer running under their lands; and he (she) can deplete the aquifer through excessive exploitation. At the root of this problem lies the right of the owner of a piece of land to the water under it, and his or her ability to exploit it or sell it. (That legal position lies at the heart of the Plachimada conflict.) If the right to groundwater were de-linked from ownership of land, and aquifers come to be regarded as akin to underground rivers or lakes and drafts on them are regulated, the whole situation will change. Under those circumstances only use rights will be recognised, and the extent to which a landowner (or a corporate body) can extract

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groundwater will be limited by law with reference to equity and resource-conservation. Water markets may still function but only to a limited extent and under a regime of regulation. Such a situation may not be easy to bring about, and some may not regard it as a desirable change; but it seems to this writer that it needs serious consideration. However, future lines of action or policy-change will depend on the final outcome of the Plachimada case.

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IV

MAKING SENSE OF LAWS AND POLICIES

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Legal Inadequacies and Perplexities

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19 Legal Inadequacies and Perplexities

The purpose of this chapter is not the provision of a comprehensive account of the laws relating to or having a bearing on water in India, but a narrower one of looking at the laws from the point of view of their bearing on the kind of transformation that is being advocated in this book.

LIMITED UNDERSTANDING OF WATER A rather complex understanding of water was set forth at the beginning of this book: does that understanding find support in the laws? It cannot be said that it does. In pre-colonial India, there was a wide range of structures, practices, traditions and institutions governing the management, use and conservation of water in different parts of the country. These were of varying degrees of effectiveness, and complaints of a decline were being

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made from early on.1 In any case, with the advent of colonial rule and modern engineering, the traditional ways were gradually overshadowed by the newer systems. Eventually, the position that came to prevail was that ‘water-use’ generally meant irrigation; irrigation meant canals; and canals were built and operated by government engineers. (There was also a familiarity with embankments built for flood control in some parts of the country.) In colonial India, the principal law relating to water was the one concerning canal irrigation. ‘Disputes’ meant riparian disputes. That way of thinking continued beyond the British period into independent India, and through the Government of India Act 1935 it went into the making of the Constitution. The identification of water with rivers, the preoccupation with irrigation, and the influence of the engineering way of thinking are evident in the basic entries relating to water in the Constitution, namely, Entry 17 in the State List and Entry 56 in the Union List. Again, Article 262 takes note only of inter-State river-water disputes; other possibilities of waterrelated conflicts do not figure in the Constitution. Some members of the Constituent Assembly might have been aware of traditional systems such as stepwells, johads, ahars and pynes, tanks, and so on, but that awareness is not reflected in the Constitution. Curiously enough, there is no explicit mention of groundwater. There is no evidence of recognition of water as an integral part of the ecological system. This is hindsight, of course; the Constitution doubtless reflects the climate of opinion of the time. Some of the newer concerns have come in through amendments at a later stage, and there have also been some enlightened laws. However, it cannot be denied that the view of water underlying the Constitution is a very limited one.

1 There has been a tendency to romanticise the past and to postulate retrospectively an imagined golden age of community-led water-management. However, while a healthy scepticism in this regard is in order (see Mosse 2003), it is surely not necessary to carry it too far. There is indeed a history of local water-management systems of diverse kinds in many parts of India; these functioned reasonably well for long periods. While the rulers and zamindars built some structures and made gifts and grants towards their upkeep, the community played an important role in the management of the systems; and while many went into decline for a number of reasons, several continued to function (if imperfectly) for long, and some have survived into the present.

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RECOGNITION OF A FUNDAMENTAL RIGHT The fundamental right to water as life-support is not explicitly stated in the Constitution. It has been brought in by judicial interpretation of the right to life. The question arises whether an explicit recognition is called for. There is a strong case for this, particularly when it is now recognised as a human right in the UN system. If it is to be put into the Constitution, several questions will need to be considered. The scope of the fundamental right will have to be carefully defined. Is it to be confined to drinking water, or should it include the minimal needs for cooking, washing and personal hygiene—what Peter Gleick would describe as ‘Basic Water Requirements’ or BWR? Should it be ‘right to water’ or should the word ‘safe’ be added? What about animal rights?2 Further, as water supply cannot be separated from sanitation, should the fundamental right to water be coupled with a fundamental right to safe, decent sanitation (which does not necessarily mean flushing toilets)? A related question would be the pricing of water. An approach to this was outlined in the chapter on ‘demand’ (see Chapter 6). Should the general principles underlying that approach be enshrined in a law?

THE STATE, LANDOWNER, CIVIL SOCIETY: A MUDDLE We now move to an issue on which there is considerable confusion. From the 1980s onwards, there have been several instances of social mobilisation towards the local augmentation of the availability of water through rainwater-harvesting or micro-watershed development.3 The movement has gathered strength and has now gained a 2

The reference here is to domestic animals, livestock, etc., which are dependent on human care. The needs of wildlife will have to be reckoned as part of the ecological imperative. 3 Anna Hazare’s Ralegan Siddhi in Maharashtra, Sukhomajri (initiated by the late P.R. Mishra) in Haryana and the Rajendra Singh (Tarun Bharat Sangh) initiatives in Alwar District in Rajasthan are celebrated examples. Hiwre Bazaar, also in Ahmadnagar District of Maharashtra and inspired by Ralegan Siddhi, followed under the leadership of Sarpanch Popat Pawar. Ahmadnagar is also the place from which the

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degree of acceptance even in official circles. Encouraging civil society initiatives in this regard, and promoting national programmes of water-harvesting and the restoration of old water bodies are now part of official policy.4 Underlying such initiatives is the view that water is a common pool resource (CPR) to be managed by the community. The view of water as CPR is virtually universal among NGOs, social activists and mobilisers, and campaigners for the empowerment of disadvantaged communities and groups, not only in India but across the world. Even the former Prime Minister of India, in his address to the National Water Resources Council on 1 April 2002, proclaimed that ‘the community is the rightful custodian of water’, and called for a ‘paradigm shift to participative, essentially local management of water resources’.5 However, is that view supported by the law of the land? The answer is that neither the law relating to surface water nor that relating to groundwater gives much support to the view outlined here. Taking surface water first, the Irrigation Acts or Irrigation and Drainage Acts of colonial times (which continued in force after Independence) vested control over rivers and other surface waters in the state. Even when certain activities by the people were permitted or Watershed Organisation Trust (WOTR) operates under the leadership of Crispino Lobo. The Sadguru Foundation and VIKSAT, among others, have done valuable work in Gujarat. So have the Dhan Foundation (Madurai) and MYRADA (Bangalore) in the southern States. In West Bengal, water-harvesting and watershed development activities are undertaken through the PRIs. 4 The Report of the National Commission on Integrated Water Resources Development Plan 1999 devoted a chapter to such local initiatives. More recently, the two budgets of the UPA Government have talked about national programmes of waterharvesting and restoration of old water bodies. 5 Even earlier, people’s participation was an essential part of the programme of participatory watershed development promoted by the Ministry of Rural Development. Its famous 1994 Guidelines on the subject were very enlightened and considerably ahead of their time. However, it must be mentioned—without implying agreement— that some thinkers regard the 1994 Guidelines as ‘administrative reform’ and therefore inferior to constitutional decentralisation under the Seventy-third and Seventyfourth amendments (see Farrington, Turton and James 1999). On the other hand, some critics feel that the revised Guidelines of 2001 (which shift the emphasis from watershed committees and other civil society institutions to PRIs) represent a retrograde step.

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encouraged (for instance, the practice known as kudimaramat in the old Madras Presidency), the overall supremacy and control by the state—sometimes loosely described as its ‘eminent domain’— remained. This doctrine implied total control, and that position has not formally changed. (Some State Governments take this to mean also the ownership of water, though that view does not command wide acceptance.6 However, there is not much difference in practical terms between control and ownership.) It is clear that there is a potential for conflict between the doctrine of the state’s total control over water and the view of water as CPR to be managed by the community. The conflict is not merely potential but has in fact actually occurred. The transformation that Rajendra Singh and Tarun Bharat Sangh brought about in many villages in Alwar District in Rajasthan through their water-harvesting movement is well-known and well-documented, and has become celebrated internationally through the conferment of the Magsaysay Award. However, the State Government (or a part of it) looks at Rajendra Singh with jaundiced eyes: to their way of thinking all rain that falls on the State belongs to the State and the interception of the rainwater by anyone is illegal. That particular dispute was somehow resolved for the time being, but the patched-up truce there is temporary; and similar conflicts can arise elsewhere. We must recognise that formal law (as perceived and practised by the state and its institutions) and community initiatives (and the appeal to customary law and civil society institutions) do not go well together. The former is not only not hospitable to the latter, but is often positively hostile. Community initiatives started with the best of intentions and for laudable purposes can unwittingly run counter to the formal law of the statute books. If it is the policy of the state to promote such initiatives and bring about ‘a paradigm shift’ (in the words of the former Prime Minister cited earlier), then the formal 6

It has been argued that ownership rights over flowing water were not recognised either in Roman law or in our own dharmashastras, and that only rights of use exist. There is also a widely held view that water, like air, belongs to the ‘negative community’ and that the right to water is a natural right, i.e., that it is merely recognised and not positively granted by the state. (See, for instance, Singh 1991, 1992.)

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law must be changed to support the role of civil society; and an effort must be made to harmonise formal law and customary law. Such a reform must necessarily entail the abandonment or substantial modification of the doctrine of ‘eminent domain’ (in the prevailing loose sense). The state has of course some important roles to play in relation to water, and it must be enabled to play them. It has to legislate on water; protect water sources and systems; promote resource-conservation; ensure fairness and social justice; regulate the use of water from diverse sources; where necessary, undertake the provision of the ‘water infrastructure’ (to use the language of the WB); prevent or resolve conflicts; oversee quality; enter into treaties or agreements with neighbouring countries over common river systems; and so on. In order to enable it to do all this, its role in relation to water has to be defined by law. If ‘eminent domain’ were to be given up, what can we put in its place? The answer proposed by some thinkers is the public trust doctrine. Under this doctrine, the state is perceived of, not as owning the water resources of the country, but as holding them in trust for the people (including future generations). As a trustee, the state will of course have to be empowered to legislate, regulate, allocate, manage, and so on, and all this must involve a degree of control. However, the role of trustee, unlike that of a sovereign with eminent domain, is not inherently confrontational, and may permit a constructive relationship between the state and civil society. We are told that the public trust doctrine in relation to water resources, ecosystems and the environment is now part of the constitution of several states in the USA (see Narasimhan 2002). Does it exist in India as part of the common law tradition? The position does not seem to be clear. However, we must take note of another aspect at this point. In India, the question of control over water has come up in three different contexts. First, assuming that a community initiative has been successful, rainwater has been harvested, and some recharging of aquifers has taken place, what control do the villagers have over the water so augmented by their efforts? Apart from the state laying claim to it (as in Rajasthan), how can the community prevent a rich farmer or industrialist downstream from extracting all that water through

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powerful tubewells or borewells? Social sanctions have worked in some places, but how reliable and powerful is that instrument? Should not the augmenters of water be given some rights over the water that they have caught and conserved? And if this conflicts with other people’s right to extract groundwater, should that right not be abridged? That brings us to the realm of groundwater law. The second context, namely the Plachimada case, also takes us to groundwater law, because the entire problem in that case arises from Coca-Cola’s ownership of land and the water under it. We have already seen that under Indian law the ownership of land carries with it the right to the water under the land (whether we call it a property right or not), and that water is chattel to land. In other words, private ownership of groundwater is recognised. How is this to be reconciled with the view of water as CPR? In an earlier chapter, we had argued for a de-linking of the right to groundwater from the ownership of land, and the introduction of the CPR or the Public Trust doctrine (or a combination), but that is not the position that prevails today. As already pointed out, the public trust philosophy propounded in the first judgment by a single judge of the Kerala High Court in the Plachimada case was overturned by a Division Bench, and the matter is now before the Supreme Court. The third context is that of the relationship between informal civil society institutions such as village watershed committees and the formally established Panchayati Raj Institutions (PRIs). Even if it is felt—and there is a body of opinion to this effect—that local rainwaterharvesting is best undertaken by informal civil society institutions and not by PRIs, it is clear that a proper working relationship with PRIs is essential. However, that issue will not be gone into further here, as it is not central to the subject of this chapter. Returning to rivers and streams and groundwater, and subject to whatever the Supreme Court may say in due course, it seems to this author that a change in the state’s position from one of total control and ownership to trusteeship in relation to natural resources is very desirable for ensuring resource-conservation, inter-generational equity and ecological sustainability, and for building a constructive and harmonious relationship between state and civil society; and that

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groundwater too must be brought within the purview of the public trust doctrine. Meanwhile, the present position is that eminent domain is claimed by the state; private ownership of groundwater is asserted by the landowner; the community’s control over CPRs is proclaimed by some panchayats and NGOs, and some Government policies support this; and contractual rights are asserted by certain other groups, and these are sometimes denied and sometimes upheld by the courts. That is a thoroughly muddled situation which needs urgent attention for bringing about clarity and cogency.

RIGHT TO WATER AND WATER RIGHTS That reference to contractual rights needs to be gone into a bit further, as it brings in a whole host of interrelated issues. Broadly speaking, there are three positions:

Position 1 Water is like any other commodity; it is an economic good, governed by the forces of supply and demand; if the state gets out of this area and leaves it to market forces, everything will be all right; demand will be met by supply, the prices will be right, full cost recovery will be assured, and the necessary investments will take place; but if markets are to function, property rights in water should be defined and protected, particularly if corporate investments, including foreign private investments, are to take place; and these are necessary if the needed water infrastructure is to be built.

Position 2 Water is not a commodity; it is a basic human need and right; the state has a responsibility to ensure that no one is denied this right; considerations of profit cannot be allowed to come in here; the

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privatisation of water services is unacceptable; this is a public sector responsibility.

Position 3 Water is a common pool resource to be managed by the community; there is no role for the corporate sector here, nor for a bureaucratic state; this is best left to civil society; if the state is to come in here at all, it must be at the most decentralised level, i.e., at the level of the PRIs.7 (It may be recalled that it was the panchayat that took on CocaCola in Plachimada.8) Some hold mixed positions that combine elements from positions (2) and (3). There are also instances of partial acceptance of position (1) in so far as the distribution function is concerned, subject to proper regulation. The focus of this chapter is on the laws; what do they say? As we have already seen, they present a muddled picture. The courts have indeed been willing to read new ‘rights’ (e.g., right to water, food, work, a clean environment, and so on) into the Constitution. Another promising feature is that under the Seventy-third and Seventy-fourth Amendments, water management is among the subjects listed in Schedules 11 and 12 for devolution to the panchayats and nagarpalikas. At the same time, the Courts have not been unwavering in their protection of the rights of people displaced by large projects such as Sardar Sarovar or Tehri. Judges are also members of society with views of their own and are not exempt from the influence of the climate of opinion on the desirability of ‘development’, big projects, industries, etc., and they may sometimes display an ambivalence towards the impacts of these on human beings or on the ecological system. Arguments about growth, exports, employment, etc., may seem weighty to them. 7

Curiously enough, the ‘subsidiarity’ principle in the Dublin-Rio principles seems to support this! 8 However, in Delhi, the campaigners against ‘privatisation’ were not asking for a transfer of responsibility to ‘civil society’; they merely wanted DJB to become more efficient and accountable.

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The upshot of all this is that on the various issues listed here, the law (and the judgments of the courts) may not always be clear and unambiguous. They may favour human rights, PRIs, civil society, water as CPR, etc., in certain cases, and economic or contractual rights in other cases. (For instance, what the division Bench of the Kerala High Court has done in the Plachimada case is to put the contractual rights of the Company and the fundamental rights of the people on an equal footing.) We enunciated earlier the principle that the economic rights of some must not be allowed to endanger the fundamental rights of others. That may seem axiomatic, and the elevation of certain rights (such as the right to water or the right to a clean environment) to the position of fundamental rights may seem to imply that they rank higher than non-fundamental rights. Similarly, the gram sabha’s rights of consultation under the Panchayati Raj system, and the special position of tribal communities under PESA,9 may seem to privilege them vis-à-vis commercial enterprises in the matter of access to or control over natural resources. However, one cannot confidently say that such a position is strongly or reliably supported by the laws or judicial decisions.

BIG PROJECTS In so far as the big ‘water resource development’ or WRD projects are concerned, there is no dearth of laws. While there may be no specific law governing such projects qua projects, they do need statutory clearances under the Environment Protection Act 1986 (EPA) and the Forest Conservation Act (FCA); if they are located in tribal areas, PESA applies; and the acquisition of land for the projects is done under the Land Acquisition Act. However, the situation is far from satisfactory. Environmental Impact Assessments (EIAs) under the EPA are often poor in quality and lack credibility; public hearings under the Act are mere formalities; no more than lip service is paid to the principle of ‘stakeholder consultation’; PESA is often more honoured in the breach than in the observance; ‘conditional clearances’ under the EPA and 9

The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996.

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the FCA are generally ineffective, as the conditions are not fully complied with, and non-compliance attracts no penalties; the Land Acquisition Act is universally condemned but has not been overhauled yet; the Official Secrets Act, also widely condemned, is still on the statute book; and the Right to Information Act has not yet become effective. However, it is not necessary to go into these matters in detail here. The point that is being made is that there are indeed a number of laws applicable to big projects, and that what is needed is their proper enforcement. The assurance of objectivity and professionalism in EIAs, and the full rehabilitation of displaced people, may necessitate some new laws; we shall discuss this in the next chapter.

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20 Policies: Muddled or Worse?

There are three main policy documents that have a bearing on water: the National Water Policy 2002; the National Rehabilitation Policy 2003; and the Draft National Environment Policy 2004. These may not be laws, but they do govern executive action; are sometimes taken note of by the Courts; and may at some stage become laws, or provide the basis for laws. We must therefore consider whether they will be of any assistance in the effort to bring about a transformation of thinking on water.

NATIONAL WATER POLICY 2002 The National Water Policy 2002 (NWP 2002) has been elaborately analysed elsewhere by the author (Iyer 2003: Chapter 5). What we need to note from the point of view of the present book is that it has little to offer towards the transformation that is being proposed here. The

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NWP 2002 starts with an affirmation of water as a life-sustaining resource (paragraph 1.3), pays lip-service to the ‘concerns of the community’ (the very last paragraph), but adds a whole new paragraph on private sector participation (paragraph 13). It has hardly anything to say about the various important issues discussed in this book. If we are looking for policy support for a national rainwater-harvesting campaign, or the restoration of traditional systems or water bodies that have fallen into decline, or a campaign for severe economies in wateruse, or restraints on groundwater-exploitation, or clarity on who should own or control water, we are unlikely to find it in NWP 2002. Its primary concern seems to be the building of more big projects, transferring water over long distances, and facilitating private sector investment in such projects. Even that may be a misstatement, because it is unclear that the document has any ‘primary’ or other concern. There is no evidence of any sustained or purposeful thinking behind the document. It is difficult to construct a coherent picture out of the various statements in the NWP 2002.

NATIONAL RESETTLEMENT AND REHABILITATION POLICY 2003 The displacement of people and their resettlement and rehabilitation have for long been major areas of concern in relation to big projects (dams, industrial or mining projects, highways, railway lines, power transmission and other). After almost two decades of ‘consideration’, the National Resettlement and Rehabilitation Policy 2003 (NRRP) was notified in February 2004. It was widely debated and found to be deficient in some respects. There were several conferences, and criticisms and suggestions were put forward by many NGOs and commentators. The National Advisory Council held consultations and undertook a review of the Policy statement. A revised draft Policy statement prepared by the NAC is now before the Government. Two basic points need to be kept in mind in this context. First, the theory that ‘development’ entails ‘costs’ and that this is a ‘sacrifice’ that some must accept in order that others might benefit, must be

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recognised to be disingenuous and sanctimonious; it must be firmly abandoned. Pain and hardship imposed by some on others cannot be described as a sacrifice by the latter. Acceptance of hardship must be voluntary, and must confer an entitlement to benefits. Second, ‘stakeholder consultation’ is another misleading and sanctimonious formulation. Both the beneficiaries of big projects (farmers receiving irrigation in the command area, industries and cities getting electricity, etc.) and those whose lands, livelihoods and centuries-old access to the natural resource base are being taken away, are lumped together as ‘stakeholders’ who must be consulted. In truth, the beneficiaries are stake-gainers whereas the project-affected groups are stake-losers, and the primacy of the latter over the former needs to be recognised. (The World Commission on Dams put the same point in another way when it advocated a ‘rights and risks’ approach, which involves asking whose rights are being taken away and who are bearing the risks of a project.) Broadly speaking, in the context of displacement and rehabilitation, the following principles/approaches seem important. (a) Avoid or minimise such development-related displacement. With the most enlightened of policies and the most liberal of rehabilitation ‘packages’, displacement involves a trauma, and distress is not totally avoidable. We must start with the principle that uprooting people is unacceptable; it must then be for the proposers of projects or other activities to establish (i) that the objectives in view are well conceived, (ii) that the project is a good answer and is properly formulated, (iii) that there are no reasonably acceptable alternative (less pain-causing) means of achieving the same purposes, and (iv) that the displacement of people is unavoidable and minimal. They must show that what they are proposing is the best of the available options, and the one that involves the least displacement. (b) The displacement (where it seems unavoidable) must take place with the free, prior, informed consent of the people concerned. The people likely to be affected must be taken into confidence and provided with the fullest information about the contemplated project from the earliest stages. As soon as a broad project concept is available, a public hearing must be held. The people

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of the area must be participants in the decision-making, and must accept the rationale of the displacement. Forced displacement must be avoided. (c) The acquisition of land must be made (i) contestable, (ii) procedurally more humane and equitable, and (iii) more just in terms of compensation. First, not merely the quantum of compensation but even the ‘public purpose’ for which land is proposed to be acquired must be open to contestation. To some extent, the public hearing mentioned earlier may help in this direction. Second, having regard to all the difficulties, harassments and hardships that people have experienced in past projects, the Land Acquisition Act 1894 must be thoroughly overhauled or another route adopted for acquiring land. In tribal areas, the requirement of consultation with the gram sabha under PESA must be scrupulously observed. As for the quantum of compensation, the real difficulty is that even if it is liberalised further, it is likely to fall short of the amount needed for buying land or property (house, shop) in the resettlement area, for a number of reasons. The rehabilitation package will have to cover this difference in some way. (d) A reasonably enlightened rehabilitation package must be adopted in the light of the norms and standards set by certain recent projects, as the minimum to be offered in future projects. This will not be gone into in detail here. Based on the experience of projects such as Sardar Sarovar, Tehri, etc., it should be possible to work out a national package. The crucial point is that ‘rehabilitation’ should leave the project-affected people (PAPs) better off than before, or at least as well off. (e) The affected people should be granted through legislation the first claim on the benefits of the project for which they were displaced, and preferably resettled in the command area of the project. This is self-explanatory and needs no gloss. (The discussion here relates to people displaced by a project. Besides displacement, a project may have impacts of other kinds on the lives and livelihoods of a wide range of people. The broad principles mentioned above will apply to them too, mutatis mutandis.)

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It is quite possible that the revised National R&R Policy prepared by the NAC covers most of the points mentioned above. One must hope that the Government will accept the NAC’s draft and notify it. Unfortunately, all indications are to the contrary. It was unrealistic to expect that a draft prepared by Aruna Roy and N.C. Saxena would have an easy passage in the bureaucracy. It seems very likely that the NAC draft will be scuttled and a drastically de-liberalised draft will be put to the Cabinet for approval. It may be even worse than the 2003 Policy in some respects! However, one keeps one’s fingers crossed. Who knows? Somewhere along the line a change of heart might occur and a reasonably good NRRP might scrape through. We must wait and see. (After all, it was the present Government that brought in the Right to Information Act and the National Rural Employment Guarantee scheme.1) Incidentally, a suggestion has been made by some that there should be a statutory National Rehabilitation Commission. The intention seems to be that the Commission will consider a project from the point of view of the principles stated in the Policy, and give a statutory clearance to the project, similar to the clearances now required under the EPA and the FCA. The Commission will also presumably oversee the rehabilitation processes. Whether there should be such a Commission, and if so what its remit should be, are matters that need further consideration. It seems very unlikely that the Government would accept this idea.

DRAFT NATIONAL ENVIRONMENT POLICY 2004 The Ministry of Environment and Forest put a draft National Environment Policy 2004 in the public domain for debate. The draft was received by many with profound misgivings. In the first place, the need for a Policy statement at this stage was not clear; there were certain 1

Unfortunately, Aruna Roy who had much to do with those developments is reported to have resigned from the NAC. Sonia Gandhi had of course resigned earlier. One wonders whether the NAC which seems to be in disarray will be reconstituted, whether Sonia Gandhi will become the Chairperson again, and so on.

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doubts in the minds of some about the considerations that prompted the Ministry to come forward with a draft Policy statement. However, the draft was carefully studied, and detailed comments were offered by many commentators. There was a consultation meeting in the MoEF under the auspices of the NAC on 15 February 2005. The draft was subjected to drastic criticism by the participants. Some of the points made by the author (among others) were the following. (a) The oft-quoted remark that poverty is the greatest polluter is profoundly misleading. It is not poverty but affluence—i.e., not basic needs but the pursuit of ever higher ‘standards of living’ or consumption levels—that brings about the greatest pollution. (b) The ‘Polluter Pays’ principle seems sound but it is in danger of being inverted from ‘if you pollute, you must pay’ to ‘if you pay you can pollute’.2 (c) The very word ‘environment’ is vitiated by a dualism. This can lead to the position that human needs must be given precedence over the protection of wildlife or nature. But humans, wildlife, vegetation, rivers, lakes, mountains, and so on, together form an indivisible whole. The term ‘ecology’ is perhaps less susceptible to a dualistic interpretation. The intention is not necessarily to suggest a change of language, but to draw attention to the implications of the terminology that we use. (d) ‘Integration of environmental concerns with development’ should not mean that we start with a fragmented approach and then try to fit the fragments together into a whole; the approach has to be holistic ab initio. (e) In the review committees with which one has been associated (Narmada, Tehri), one often heard the view that while environmental and rehabilitation aspects were very important and should be attended to, the project must proceed forward and must not be allowed to stop. That kind of a priori axiom that 2

In medieval Europe the Church used to sell indulgences: a person could commit a sin, go to a priest, pay money and purchase an indulgence that removed the sin, and was then free to commit more sins! The Polluter Pays principle could degenerate into something similar. That is also true of mechanisms like trading in carbon credits.

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‘the project must proceed’ cannot be accepted, and we must make sure that the NEP does not genuflect to such a principle. (f) What is meant by the ‘right to development’? This begs the whole question of what constitutes ‘development’. Details apart, the most important objection to the draft, voiced by a large number, was that it was characterised by an absence of coherence and vision, seemed implicitly to accept the industrialists’ or project-planners’ negative view of environmental concerns, was extremely defensive and apologetic in tone, and showed a constant deference to the economic point of view. As a matter of fact, a widely held view was that the objective of the Policy document was essentially to dilute the provisions of the Act, in the interest of making clearance procedures easier and faster, and facilitating industrial investment, particularly foreign private investment. There were apprehensions that the draft NEP 2004 was aimed at, or would have the effect of, weakening the law. Having regard to all this, it was felt that the draft NEP would have to be substantially redrafted starting from first principles, from a more holistic point of view, and in a fully open and consultative manner. Separately, another debate has been going on regarding Environmental Impact Assessments (EIAs). Environmental Impact Assessments are the essential instrumentalities through which the EPA is enforced. Unfortunately, they suffer from serious weaknesses. Without going into the matter in detail3 it may be noted that the criticisms are to the effect that EIAs as currently done are very poor in quality; that the primary concern is to get ‘projects’ (equated with ‘development’) cleared somehow; that EIAs are perceived by planners and projectproposers as negative, delay-causing, inconvenient external impositions that need to be gone through as a formality; and that Committees set up for environmental appraisals tend to be packed with inappropriate members. To obviate such criticisms, EIAs need to be made more rigorous and objective, and truly independent4 of the people preparing the 3

For a fuller discussion, see Iyer 2003, pp 130–31 and 304–5. That includes financial independence: Project proposers and approvers should not be the paymasters of EIAs (Iyer 2003). 4

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projects and those approving them. Environmental Impact Assessments should become a professional undertaking akin to the practice of law or medicine or audit, with a statutory charter under the EPA, a professional council, codes of conduct, disbarment provisions, etc. Such institutional arrangements are no guarantors of quality or integrity, as we know from our experience in relation to the other professions mentioned; but they will mark a great advance over the present situation. This needs to be worked out in detail, but the essential point is that EIA should be given a statutory basis. (Not only should EIAs be made more rigorous, but the Cost-Benefit Analyses that they lead to should be refined and supplemented by other kinds of analyses.) Undoubtedly, strict norms and stringent procedures will make the clearance of such projects more difficult. That would be a necessary and salutary difficulty. Defensiveness about such procedures and the feeling that they are ‘negative’ would be wholly inappropriate. Such major interventions in nature and human lives ought not to have an easy passage. It should be for the proponents to establish that the harm that the project will do to people and nature is unavoidable; that there are no better options; and that the harm can be substantially remedied or mitigated or compensated. Such projects should undergo the most stringent scrutiny. The MoEF did not undertake a radical redrafting of the draft NEP in a fully consultative manner as was strongly urged at the meeting on 15 February 2005, but presumably they internally took note of some of the points made. A revised draft of the document is said to have since been approved by the Cabinet. It will no doubt be soon announced. We shall then see whether the Policy has been significantly improved. That seems a very unlikely prospect.

WHAT NEEDS TO BE DONE? From the above discussion it is clear that we have • •

an inconsequential National Water Policy; a re-draft of the National Resettlement and Rehabilitation Policy prepared by the National Advisory Council that seems to be running into difficulties with the Government; and

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a disturbing draft National Environment Policy which is likely to be formally adopted shortly.

What needs to be done regarding these? The answers are clear. (a) The NWP 2002 needs to be scrapped and a fresh exercise undertaken in a fully open and consultative manner to draft a completely different and holistic water policy statement. (b) The draft NRRP prepared by the NAC seems to be good by all accounts and should be notified as soon as possible in replacement of the NRRP 2003. (One hopes that it will not be killed by the bureaucracy.) (c) The draft NEP 2004 should be abandoned,5 and efforts should be made to make the EPA more effective.

LAWS FOR REHABILITATION, EIAS? The preceding discussion of policies points to the need for a couple of new laws. First, once a reasonably good NRRP is notified, it should be made into a law. Without a statutory backing the Policy may not be effective. The displacement of people and their resettlement and rehabilitation are matters of great importance, and there should be a governing law. Second, in relation to the EPA a few steps seem necessary. (a) There should be an independent, statutory Environmental Regulatory Authority (ERA) established under the Environment Protection Act. Many of the functions now performed by the Ministry should be transferred to the Regulatory Authority. (b) If, as stressed earlier, the Environmental Impact Assessment is to become a full-fledged and independent profession, it would need a statutory charter either under the EPA or under a separate enactment. (c) EIAs so prepared by independent professionals will be placed before the two Appraisal Committees of the MoEF, but these should become committees set up by the ERA. (Institutional mechanisms are of course only as good as the 5

Unfortunately, there are reports that the NEP has been approved by the Cabinet.

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people who are appointed to them. As hinted at earlier, they can be co-opted or subverted through calculated manning. Alas, there are no easy remedies for this.) Third, assuming that we have (miraculously) a new, more enlightened and holistic Water Policy Statement, the question is whether it should then be made into a law. This gets subsumed under the question of the need for a national water law, which is discussed later.

POSTSCRIPT As had been feared, the revision of the National Rehabilitation Policy 2003 offered by the National Advisory Council was put aside, and the Ministry of Rural Development (RD) posted its own draft of a National Rehabilitation Policy 2006 on its website and gave seven days for comments. Subsequently, in response to widespread demand that limited period was extended. Many comments and criticisms were received by the Ministry and they have been under consideration. Meanwhile, it was evidently decided that instead of a non-statutory ‘Policy’ the enactment of a law should be attempted. The Ministry of RD has been working on this. They also sought the comments and suggestions of the Ministry of Tribal Affairs from the point of view of tribal communities. The Ministry of Tribal Affairs in turn set up a group to advise them on the suggestions that they should put forward to the Ministry of RD. The author was also a member of that group. Its Report has been submitted to the Ministry. We shall now to have to wait and see what kind of Bill is drafted by the Ministry of RD. In so far as the draft National Environment Policy 2004 was concerned, all the consultations and comments proved unavailing, and the Ministry’s draft without any significant changes has now become the National Environment Policy 2006. This is a very unfortunate development.

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21 Transforming the Laws: A Constitutional Declaration on Water?

We now proceed to the transformation (if any) that may be needed in the legal framework relating to or having a bearing on water. Three questions arise in this context. (a) In the light of the difficulties and problems that have been discussed in the various chapters of this book (and encapsulated in Chapter 19), what legal changes are needed? (b) Is there a case for a national water law? (c) Is there a case for a constitutional change? Questions (a) and (b) are interrelated. Leaving them for discussion in the next chapter, let us consider question (c) first.

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The term ‘constitutional change’ here does not refer to the frequently raised question of shifting water to the Concurrent List. That issue has been discussed by this author elsewhere, and will not be gone into here. The more important issue is that (as pointed out earlier) the understanding of water enshrined in the Constitution is a limited one: can we—should we—improve it? In an article in The Hindu of 15 December 2005, T.N. Narasimhan of the University of California, Berkeley, has offered a declaration or manifesto on water for adoption by India, and argues for its incorporation in the Constitution.1 Granting the case for a manifesto or declaration on water, and leaving aside the question of what its contents should be, the question for consideration here is whether such a declaration or manifesto needs to be incorporated in the Constitution of India. The Constitution is mainly the fundamental law that provides the basis for all other laws; policy essays cannot easily be incorporated into it. However, apart from equality before the law, prohibition of discrimination, fundamental rights, and other substantive and enforceable provisions, the Constitution does make certain policy declarations in the sections on Directive Principles of State Policy and Fundamental Duties. Should we add water to the cluster of subjects on which there is a constitutional declaration? The question may arise: why only water? The answer is clear enough: water is not like steel or cement or fertiliser; it is special and important enough to warrant specific mention in the Constitution. Given its roles in our daily lives, in the economy, in history, culture and religion, and in ecology; the pressures on this finite resource; the urgent need for minimising conflicts and promoting harmony; and the imperative of wise use for ensuring the survival of humanity and Planet Earth; the case for a special constitutional declaration on water seems persuasive. In any case, there are already certain provisions on related matters in the Directive Principles section: for instance, raising the level of nutrition (Article 47), organisation of agriculture (Article 48), and protection and improvement of the environment and safeguarding of forests and wildlife (Article 48A). Similarly, in the Fundamental Duties 1

This author’s article in response appeared in The Hindu, 27 December 2005.

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section, Article 51A(g) runs as follows: ‘to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures’. It is in fact surprising that there is no separate and special reference to water, which is more basic and fundamental than many of the matters actually mentioned. Perhaps the importance of water and the fact that it is integrally related to the ‘environment’ and other matters specified in the articles cited earlier were not adequately appreciated when those entries were put in. It seems clear beyond question that in both the Directive Principles and the Fundamental Duties sections, there should be carefully drafted statements about water. These cannot of course be detailed discourses; they will have to be brief, compressed entries, and they could then be elaborated in a separate policy statement or law. Those compressed statements must include some key elements from the points mentioned in the Preamble to this book. The entry in the Directive Principles section will indicate the responsibilities of the state, and that in the Fundamental Duties will mention the responsibilities of the citizens. This book will refrain from trying to draft the entries for inclusion.2 That is a matter for experts in legislative drafting. What is needed first is a consensus that a constitutional declaration on water is necessary. One hopes that what has been said above establishes the case for such a declaration.

2 However, the Declaration and Action Points attempted in Chapter 26 provide some indications of what ought to go into the constitutional entries as well as the national water law, if any.

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22 Transforming the Laws: A National Water Law?

The previous chapter postulated a brief constitutional declaration on water, to be elaborated in a law. However, the need for a national water law has to be gone into further. In Chapter 19 above, a number of legal issues were raised: the explicit declaration of a fundamental right to water; the related question of a right to sanitation; the need for clarity on the relationship between state and civil society; the provision of a legal backing to civil society initiatives on water-harvesting and watershed-development; the desirability of replacing the doctrine of the state’s eminent domain by a public trust doctrine (and the related doctrine of water as a Common Pool Resource or CPR); the necessity of introducing those doctrines in relation to groundwater as well, in replacement of the present law of ownership of groundwater based on ownership of land; the need to clarify the relationship between informal village watershed

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committees, tank-farmers’ associations, etc., and PRIs; the question of economic or contractual rights versus fundamental rights; the related question of privatisation of water services (discussed in Chapter 18); and so on. These will call for changes in the existing laws or new laws. However, these are general issues that arise in the country as a whole; they are not State-specific, and cannot be dealt with through a series of State-level laws. The question that arises is the following: is there a need for a national water law? (Whether it is feasible to bring in a national water law in India is a question that we shall return to.) This question had been somewhat sketchily discussed in an exploratory manner in the author’s earlier book (Iyer 2003: Chapter 10),1 but the author is now more firmly convinced than he was at that stage about the need for an over-arching law at the national level. Apart from the general desirability of commonalities and uniformities across the States on many matters, a national law seems particularly necessary on water. Some of the main reasons for this are the following. First, different State Governments tend to adopt different positions on riparian rights in the context of inter-State rivers. The upper riparians tend to favour the Harmon Doctrine, whereas the lower riparians tend to assert prescriptive rights, prior appropriation, etc. If each State were to enact a law reflecting its own position, there would be utter confusion and inter-State river-water disputes would become even more intractable than they are now. Some kind of a national position on the principles that should govern such cases seems desirable, though a consensus might be very difficult to achieve. Tribunals have generally been adopting the principle of equitable sharing for beneficial uses, but there might be some advantage in embodying such a statement in a law. Second, quite apart from river-water disputes, several States are enacting laws on water and related issues. For instance, Andhra Pradesh has a Water, Land and Trees Act (2002); Maharashtra has a Water Regulatory Authority Act (2005). These are quite divergent in their perceptions of water. If different States take different views of the nature of water, the roles of the state, civil society, corporate entities, markets, etc., and 1 That chapter was more concerned with considering what the contents of such a law should be; the case for a national law was not argued elaborately.

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embody them in laws, how can there be any coherence or convergence on a matter of such fundamental importance? For instance, one State may see water as CPR to be held by the state in public trust; another State may regard water as a commodity to be left to market forces; a third State may consider water to be the property of the state. Can we really accept such divergences? Of course, court cases may arise and may eventually result in Supreme Court decisions which bring about a measure of uniformity, but should we wait for that to happen? Third, under a number of Water Resources Consolidation Projects, different States are obtaining WB or ADB funds for ‘reforms’ in the ‘water sector’. As a part of this they are required to formulate State Water Policies, and we have the Orissa Water Policy, the Tamil Nadu Water Policy, and so on. Here again, significant divergences are possible. Conformity to the National Water Policy is not a binding requirement. This too points to the need for a national law or binding policy of some kind. Further, in the context of ADB or WB loans, individual States are under pressure to facilitate private sector participation or ‘publicprivate partnership’ in water-resource development and management, particularly in relation to water supply utilities. Thus, the privatisation of water services is being quietly promoted in a piecemeal manner. This might not have gone very far, but the trends are disquieting. Here again we need national policies; and they will have to be based on a certain view of water, which will have to be embodied in a national law. This is not an argument for centralisation. The intention is not to strengthen the Centre vis-à-vis the States. Indeed, water management ought to be primarily a local matter: the devolution to the panchayat/ nagarpalika must become real. What is being argued here is the need for a broad national consensus on certain basic questions about the nature of water, the vesting of control over it, assurance of equity and fundamental rights, and the protection of the resource and the ecological system. Within that framework there must of course be as much decentralisation as possible, or what the Dublin principles2 refer to as 2 Dublin-Rio Principles as agreed upon in the International Conference on Water and the Environment (Dublin) and the UN Conference on Environment and Development (Rio de Janeiro).

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‘subsidiarity’ (i.e., decisions at the lowest level, or at no higher level than necessary). If it is agreed that there is indeed a need for a National Water Act, then two questions will need to be considered: (a) the elements that should go into such an Act; and (b) the manner in which such a piece of legislation can be enacted by Parliament, given the entries on water in the State and Union Lists. In so far as the first question is concerned, the first paragraph of this chapter gives a summary indication. A more elaborate statement will be found in this author’s article in the inaugural issue of Indian Juridical Review.3 That article also answers the second question briefly as follows: Can such a law be enacted by Parliament on a subject that is primarily in the domain of the States? That is a question for legal and constitutional experts. All that one can say is that in the past ways and means have been found to enable Central legislation in matters that fall essentially within the purview of the States. The Water (Control and Prevention of Pollution) Act and the Act establishing the Central Ground Water Authority are examples. If there is a consensus that a national water law is necessary, the experts will doubtless find a way of making it possible. The real difficulty will be political and not legal.

3 Indian Juridical Review, the Journal of the National University of Juridical Sciences, Kolkata (vol. 1, 2004). See also footnote 2, Chapter 21.

V

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23 Issues and Concerns in the Neighbourhood

INTRODUCTORY From the Indian issues and concerns that we have so far been considering, we proceed to the regional perspective. This chapter aims at presenting a synoptic (and objective) overview of the principal national concerns and issues relating to water in the countries in the South Asia region (other than India). The term ‘South Asia’ here refers only to the mainland, leaving out the island countries. Besides, it is concerned largely with the northern part of the subcontinent where the different countries are linked together by the Himalayan rivers.

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NATIONAL PERSPECTIVES Pakistan The major part of Pakistan—leaving aside the inland drainage area of Balochistan, as also the southern coastal region—is in the Indus Basin. From the point of view of rainfall the country must be classified as arid or semi-arid, but the Indus system provides it with abundant waters. Balochistan depends heavily on groundwater, and there are problems relating to the over-use of that resource; the mountainous and coastal areas have traditions of rainwater-harvesting, and there are some issues here too. However, we are mainly concerned with the Indus Basin. Irrigated agriculture is the largest user of these waters (reportedly 80 per cent of the total water resources of the country). The main national concerns relating to water are (a) apprehensions of water scarcity and related worries about food security; (b) the severe incidence of waterlogging and salinity in the Indus Basin, leading to vast areas of good agricultural land going out of use annually and presenting enormous difficulties (and costs) in reclamation; (c) persistent and difficult inter-provincial conflicts over water-sharing; and (d) a sharp division of opinion over big projects for damming or diverting river waters.

Water Deficit? Most writings on the water resources of Pakistan refer to water scarcity (present or imminent), but no precise estimate of the deficit is available. One writer (Ahmed 2003) talks about ‘the need to provide for an additional 25 billion cubic metres in the next three years’, based on a projected rate of growth in the agriculture sector and the related (estimated) requirement of an annual increase in water availability. Another paper (Jehangir and Ali 2003) projects a deficit in foodgrain production of 12 million tonnes by the year 2013 and a shortfall in water availability of 107.8 MAF. Yet another paper (Malik 2003) gives a figure of 35 MAF as passing unused to the sea and argues for additional storage on this ground, but Kazi (2003) seriously questions

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such estimates of water going waste to the sea. Various assumptions go into these estimates and projections, and it is not clear how much of the projected water and food deficit will remain if the ills of poor water management and inefficiencies in irrigated agriculture (on which there is general agreement) are remedied, and the loss of agricultural land to waterlogging and salinisation is halted and reversed (if that is feasible). Considering the acknowledged abundance of water in the Indus system, projections of a water deficit seem prima facie unpersuasive. It would appear that better water management would greatly reduce if not eliminate the projected water and foodgrain deficits.

Waterlogging and Salinity While there is considerable and understandable pride in the fact that in the Indus Basin Pakistan has the largest contiguous irrigation system in the world, there is deep concern at the fact that the Basin is characterised by a massive incidence of waterlogging and salinity. The allocation of the three western rivers of the Indus system to Pakistan under the Indus Treaty, and the construction of dams, barrages and canals following that Treaty, made waters available in abundance for irrigated agriculture, and this certainly brought much prosperity to the country (or at any rate to some sections of the population), but an unanticipated outcome was the emergence and spread of the ills of waterlogging and salinity. This has been described as a case of ‘excessive water input and deficient drainage’; the drainage crisis is said to be ‘entirely man-made’, and ‘a by-product of the modern irrigation system’ (Bengali, 2003). Out of a total of 18 mha (million hectares) of irrigated land in Pakistan, about 6.22 mha are said to be affected by this menace (Jehangir and Ali, ibid). In response to this the Government of Pakistan launched different Salinity Control and Reclamation Projects (SCARP), starting in 1959. These do not seem to have been very successful. Among the criticisms of the SCARP approach are design defects, severe environmental impacts, and the creation of secondary problems that are as bad as the original ones that the plan was intended to remedy. The impression that one gets is that Pakistan is still struggling with a serious problem to which only partial answers have been found.

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Inter-Provincial Conflicts Another major national concern is the persistence of inter-provincial conflicts over water-distribution. These conflicts have a long history, going back to the middle of the nineteenth century when human intervention in the natural flow of the river through the construction of barrages and canals began. The old inter-provincial conflicts and the attempts to resolve them were followed after Partition (1947) by the India-Pakistan dispute over the Indus which was resolved by the Indus Waters Treaty of 1960. (Issues relating to that Treaty were dealt with in Chapter 11.) The problem of water-sharing among the provinces in Pakistan continued, and have been dealt with by several committees and commissions. The settlement currently in force is the Indus Water Accord of 1991. However, the dispute has not been finally resolved. There are important unresolved issues which have a crucial bearing on water-distribution. (Issues of flood management, not discussed here, also have inter-provincial angles.)

Kalabagh Controversy A new dimension has been added to water-sharing disputes by the contentious Kalabagh Dam Project. That Project is the centre of a major controversy in Pakistan similar to the controversies around the Narmada (Sardar Sarovar) Project and the Tehri Hydroelectric Project in India. The arguments are familiar. The case for the project is argued on the basis of a projected water shortage and the need for and possibility of one more dam on the Indus system; the apprehensions of the critics are dismissed as exaggerated or unfounded. The opponents of the project argue that water is not available for the dam, that the project is not needed, and that it will have serious environmental and human impacts. There is also an inter-provincial angle: Sindh is afraid that with the Kalabagh dam, more of Indus waters will be diverted by Punjab, with severe consequences for it (Sindh); and the North Western Frontier Province (NWFP), while it might derive some benefits, is seriously worried about submergence of land, displacement of people, and waterlogging problems.

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Two Approaches At the heart of the Kalabagh controversy lies the confrontation between two divergent approaches to water-resource policy, planning and management, encapsulated by one writer (Bengali 2003) as the ‘technocentric approach’ vis-à-vis the ‘socio-centric approach’. As summed up by him, the former relies wholly on technical expertise and engineering solutions, whereas the latter recognises that ‘development, management and conservation cannot be achieved in a vacuum, and social systems and structures and people’s cultures and lifestyles also need to be addressed’.

Other Issues There are also serious concerns in Pakistan about the pollution of rivers, the degradation of coastal zones, the problems of sewage disposal in urban areas, and so on, but they cannot be gone into here.

Nepal Nepal is a relatively small country of roughly rectangular shape situated on the southern Himalayan slopes between Tibet (China) and India, its immediate neighbours to the south being the Indian States of Uttar Pradesh, Bihar and West Bengal. (The northernmost tip of Bangladesh is not far away.) Nepal (like the other countries covered in this chapter) is a poor country looking for routes to prosperity; apart from the Terai region it is largely mountainous or hilly; it is well endowed with water resources; it is a landlocked country; and India looms large on its horizon. Those factors determine the country’s attitude towards its water resources. (At the moment the country is deeply troubled by violent internal insurgency, and all other matters have become secondary to the problem of peace and stability, but when normalcy returns in some measure and thinking about water resources is resumed, the same factors as before will continue to influence that thinking.) A large number of rivers and streams flow through the country and into India; all of them eventually join the Ganga system, and account for a significant part of the flows in that system, and even more

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so in the lean season. The mountainous/hilly terrain of the country limits the possibilities of irrigated agriculture; and its total water demand is also limited by its relatively small population. However, Nepal’s prime endowment is water, and the country is understandably anxious to derive the maximum benefit out of that endowment. The nature of the terrain immediately brings to mind the possibility of generation of hydroelectric power, and a number of sites for large projects have been identified. A longstanding estimate of the theoretical ‘potential’ for the generation of hydroelectric power in the Nepali Himalaya is 83,000 MW, and the practical or realisable figure is put at 48,000 MW. Only a small part of that power can be used in Nepal; the rest would have to be exported, primarily to India. India can also use all the waters that flow from Nepal for irrigation, and would further like to minimise the damage caused by the floods coming down those rivers from time to time. These possibilities give rise to the idea of large projects for building dams and reservoirs in Nepal. (Bangladesh for its part has for long been arguing for seven large projects in Nepal for augmenting the lean season flows of the Ganga at Farakka, where the waters are shared between India and Bangladesh.) Against that background, the view has grown in Nepal that the country’s water resources represent the route through which its visions of prosperity can best be realised; that water is to Nepal what oil has been to the Gulf countries, namely, the source of revenues and wealth; and that those revenues will come principally from the export of hydroelectric power to the neighbouring countries, mainly India. (It is also often argued that the other benefits such as regulated flows, flood-mitigation, etc., accruing to India through such projects in Nepal—and perhaps even water surplus to Nepal’s requirements—should be paid for, but these are controversial and debatable issues, whereas the sale of electricity is a straightforward proposition.) Several projects (Karnali, Pancheswar, Saptkosi, etc.) have been under discussion between Nepal and India for over three decades, but little progress has been made on any of them, for four main reasons. First, the long history of mistrust and suspicion characterising India–Nepal relations makes it very difficult for talks about such projects to move forward. There is a degree of ambivalence in Nepal about entering into close and binding economic arrangements with India. Second, while

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undoubtedly desirous of exploiting the natural endowment to the country’s advantage, the authorities in Nepal have perhaps not been wholly without doubts about the wisdom of embarking on such gigantic investments (even on one project) that would be vastly disproportionate to the country’s total GNP, quite apart from the formidable task of raising the resources. Third, over the years environmental concerns (and concerns about the displacement of people) have gathered strength internationally and the climate of opinion has become increasingly unfavourable to such projects anywhere, and particularly so in the seismically active Himalayan region. Fourth, there is a degree of dissent even within Nepal from the view that the route to prosperity lies in large-scale centralised generation of hydroelectric power for export. The mainstream or official view of water as Nepal’s oil has not so far had much success. Even in the one case in which a Treaty was entered into with India and instruments of ratification were duly exchanged (the Mahakali Treaty of 1996), action remains stalled. Possibilities of foreign (Indian or other) private sector investments in hydroelectric power generation in Nepal have also not made much headway. As mentioned earlier, there is an ‘alternative’ view in Nepal. It is a view that disfavours large, technology-driven, foreign-funded, exportoriented projects imposed by the state or foreign investors on the people, and favours decentralised, relatively small, environmentally benign projects (whether for irrigation or for hydroelectric power) primarily for Nepal’s own needs rather than for meeting the needs of other countries. Export of electricity is not ruled out, but large generation primarily for export to a single large buyer (India) under intergovernmental arrangements is not considered desirable; exports at a local level under arrangements between particular producing units in Nepal and the appropriate State Electricity Boards (or specific private corporate buyers) are felt to be preferable. It is difficult to say how widespread the ‘alternative’ view is, but that it commands a degree of influence cannot be gainsaid. Opposition to Arun III Hydroelectric Project did eventually result in the WB withdrawing from the project; this is regarded as a great loss by the Water Establishment and other proponents of the mainstream position, but celebrated as an achievement by the critics who argue that the abandonment of that unviable

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project made possible the emergence of a number of smaller, cheaper and quicker alternatives. Turning to another aspect, Nepal as a landlocked country attaches a great deal of importance to a navigational outlet to the sea (to a port in India or Bangladesh). At the moment this is not physically feasible, but creating such a possibility as a part of one of the projects that are being talked about remains an important objective of Nepal.

Bhutan Bhutan, close to Nepal and like it a mountainous country lying on the southern slopes of the Himalaya between China and India, is flanked on the western and eastern sides by the Indian States of Sikkim and Arunachal Pradesh, with Assam as the immediate southern neighbour. The country is heavily forested and richly endowed with water resources. The annual availability of water per capita is put at 75,000 m3 in the Bhutan Water Policy document, but The Environmental Information Portal of the World Resources Institute gives a per capita Internal Renewable Water Resources (IRWR) figure of 43,214 m3 for the year 2001. It is not clear how those two figures are related to each other, but it is clear enough from either figure that the country is exceptionally well-endowed with water, though even that abundance is expected to come under pressure in the future because of the growth of population and the processes of economic development. The most important point to bear in mind about Bhutan is its deep attachment to its cultural and natural heritage and its determination to preserve them. It has adopted what has been described as ‘the middle path’ to sustainable development. The approach is reflected in the following words of His Majesty the King Jigme Singye Wangchuk: Throughout the centuries, the Bhutanese have treasured their environment and have looked upon it as the source of all life. This traditional reverence for nature has delivered us into twentieth century with our environment still richly intact. We wish to continue living in harmony with nature and to pass on this rich heritage to future generations. (Royal Government of Bhutan, 2003)

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At the same time, the country is (understandably) not exempt from the aspirations that other countries entertain for economic development and prosperity. In particular, Bhutan, like Nepal, is very conscious of the potential that its rivers and mountainous topography hold for the generation of hydroelectric power and the earning of large revenues through the sale of that power to India. However, Bhutan wants to achieve ‘development’ without compromising on its commitment to the preservation of its natural environment and its cultural heritage. The contrary pulls of these two strands in Bhutanese thinking are evident in the Water Policy document. For instance, there are fine statements of the holistic ecological point of view and indications of social and human sensitivity (e.g., ‘Nature, Water and Human Life are interdependent, inseparable and must coexist in harmony and balance’, paragraph 2.1; ‘Water in Bhutan shall be a common good’, 5.6.2; ‘The state shall act as the trustee of water resources’, 7.2). At the same time, the language of economics, management and the market-place—the current international jargon of the WB and Global Water Partnership— is also found in many places (e.g., ‘comparative advantage in hydropower development’, 5.4.1; ‘its revenue-earning potential … shall be recognised’, 5.4.2; ‘the negotiation of tradeoffs’, 5.4.3; ‘the prospect of our mountain spring water as an environmentally clean product shall be encouraged’, 5.5.1; the ‘development of tourism’, the need to promote ‘the recreational potential of Bhutan’s watercourses’ because of the ‘additional opportunities’ that this will create, and the ‘potential’ of Bhutan’s hot springs ‘which have medicinal as well as recreational value’, 5.5.2; ‘capital-intensive programmes’, 6.1.3; the ‘economic and social value’ of water, ‘full cost recovery’, 6.3.1). Some of these statements are not very reassuring; and strangely enough, paragraph 7.5 which enumerates the areas for research makes no reference to environmental or ecological concerns. Is it really possible to reconcile the holistic and marketplace approaches? These comments are not intended in a critical or fault-finding spirit, but are meant to show the very careful balance that Bhutan is trying to maintain and the precariousness of such an exercise. Bhutan has adopted a challenging ‘middle path’ approach, and is bound to face conflicts and dilemmas from time to time. One wishes Bhutan all success in its undertaking, and hopes that the floodtide of ‘economic

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development’ and ‘modernity’ will not overwhelm it and make it indistinguishable from the rest of the world and subject to the same ills. In pursuance of the objective of earning revenues from the country’s hydropower potential, Bhutan has undertaken certain projects with Indian assistance. It is not within the scope of this chapter to go into the details of the projects that are in operation; under construction; and in the visualisation/formulation/planning stages (Chuka, Chuka II, Tala, Kurichu, Sunkosh, Manas, etc.). What needs to be noted is first, that Chuka is widely regarded as an example of successful intercountry cooperation for mutual benefit; and second, that the inflow of revenues from the sale of electricity to India has been very large in relation to the country’s GDP and has made the country prosperous in economic terms, with a per capita income much higher than that of its neighbours. (The price charged to India for Bhutanese electricity was low to start with in consideration of the Indian financing of the projects, but subsequent negotiated revisions took care of the Bhutanese dissatisfaction on this count at least partially. In any case, despite the pricing, there were substantial revenues from the sale of power.) It is often claimed (in India, at any rate) that Chuka has transformed Bhutan’s economy. The rise in per capita income is dramatic enough, but so far as one is aware, the question whether the transformation in the economy has been accompanied by ecological and social changes and whether these warrant any concern, has not been adequately debated. If further expansions of and additions to hydroelectric capacity take place as planned and the country moves towards an installed capacity of several thousand megawatts (the exploitable potential is said to be 6,000 MW out of a theoretical potential of 20,000 MW), would the construction and operation of large projects and the ensuing massive inflow of revenues leave the natural environment, bio-diversity, social harmony and cultural integrity unaffected? Would it be possible for Bhutan to continue to adhere to the middle path? That question is of course one for the Bhutanese to reflect on.

Bangladesh Bangladesh is the lowest riparian country in the Ganga, Brahmaputra and Meghna (Barak) systems. All these river systems come together

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in Bangladesh and join the sea. By virtue of that ‘common terminus’, the three systems can be regarded as constituting a single basin, and that is in fact the Indian view, but Bangladesh’s position is that they are three basins. Without going into that debate, we may note that the term ‘GBM’ (Ganga–Brahmaputra–Meghna) has gained currency, and that this implies a recognition of the fact that the three river systems are linked. Some 88 per cent of the total area of the country falls within the GBM region (Ahmad et al. 2001). Criss-crossed by rivers and streams, Bangladesh is a water-abundant country with a per capita water-availability of 8,444 m3 in 2002 (World Resources Institute). (Another study—[ibid.]—puts the annual per capita water availability at 12,162 m3 in 1991, 10,305 m3 in 2000, and 7,670 m3 in 2025.) It is a deltaic country formed by the deposition of sediment brought by the rivers from the Himalaya, and that process is continuing. As the country acts as a narrow funnel through which three major river systems drain into the sea, its major national problem is the periodical occurrence of disastrous flooding. The Ganga (the anglicised name ‘Ganges’ is preferred in Bangladesh) and the Brahmaputra are generally in high flood in different periods but once in a few years the high flows in the two rivers coincide, leading to heavy flooding, and this is aggravated when the incursion of tidal bores from the Bay of Bengal occurs simultaneously. There was catastrophic flooding in 1988 and again in 1998. However, though floods dominate the thinking of Bangladesh, there is also a perception of a critical shortage of water in the lean season in some parts of the country. Most Bangladeshi writings on water tend to make the point that 94 per cent of the water resources of the country originate beyond its borders, and that 54 rivers and streams flow into Bangladesh from India. This consciousness, combined with that of India’s size, colours Bangladeshi thinking and gives it a sense of vulnerability. The water establishment of Bangladesh is acutely aware that for water security as well as for flood-management, the country needs Indian cooperation. Against that background, we can discern four prominent concerns in the national thinking about water: flood-management; water-sharing with the upper riparian; internal water-resource management; and the protection and preservation of the natural environment.

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The massive floods of 1988 focussed international attention on this problem, and studies were undertaken by the UNDP, Japan, France and the USA, and by Bangladesh itself in collaboration with its neighbours. The WB played a coordinating role, and eventually, these efforts resulted in the Flood Action Plan (FAP) financed by a large number of donor countries. The FAP was a very large programme consisting of numerous studies and some pilot projects. However, it was subjected to severe criticism right from the beginning, and soon fell into disrepute, largely because it was perceived as a top-down, non-participative and essentially donor-driven plan. On water-sharing with upper riparians, thinking continues to be in favour of treaties or understandings with India on several rivers. A Treaty with India on water-sharing in the Ganges was signed on 12 December 1996. Similar understandings are felt to be necessary on at least eight or nine of the 54 rivers and streams that cross the India– Bangladesh border. Talks on water-sharing on the Teesta have been going on for some time but do not seem to be making much progress. (Another strong Bangladeshi perception is that of the need for the augmentation of the lean season flows of the Ganges, and the Government of India is in agreement with that view, but there is a divergence between the two countries on how the augmentation is to be brought about.) Turning to internal water-resource management, the principal concerns here are to ensure (a) water availability for future needs with special reference to food security; (b) the right of all citizens, and in particular the poor and the disadvantaged, to have secure access to water sources; (c) a voice for women in water planning and management; (d) proper priorities in allocation among different uses; (e) equity and social justice; (f) conflict-prevention or resolution; and (g) resource-conservation. As mentioned earlier, there was disenchantment with the FAP, but the work done under the aegis of the FAP provided useful inputs when, eventually, the preparation of a new National Water Management Plan and a National Water Policy was undertaken. (The National Water Policy was published in 1999, but it still remains largely a declaration of intent lacking in formal backing and not translated into operational plans.) In these new initiatives, the old

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top-down engineering and structural approaches were moderated by a greater awareness of non-structural measures; the importance of people’s participation in planning; environmental concerns; and institutional change. At the same time, the influence of the new processes of ‘economic reform’ is seen in the references to water as an economic good, the importance of pricing as an instrument of water management, private sector participation, and so on. The balancing of these divergent perceptions seems somewhat uneasy and precarious. Environmental concerns are now part of the climate of opinion and have acquired a degree of importance even in the Water Resources Establishment that was earlier primarily driven by engineering considerations. The concern is largely focussed on the control of the incursion of salinity from the sea and on the protection of the wetlands (the Sunderbans). In recent years, the presence of arsenic in groundwater has become a major concern. This problem has been experienced in parts of India as well, though perhaps not in as acute a form as in Bangladesh. Different explanations have been given for this phenomenon; expert opinions seem to vary on this (and therefore on the appropriate responses), and finality does not seem to have been reached. As groundwater ‘development’ has been extensive in Bangladesh, this is a serious national problem. Another emerging concern relates to the implications for Bangladesh of the predictions of climate change. This is a subject that is currently under study in both official and academic circles. As yet, there is much uncertainty as to what the future holds for the country. As the studies progress, this is bound to become a central concern.

CONVERGENCES AND DIVERGENCES Convergences The area that we are dealing with has a monsoonal climate; and the Himalaya is its principal water tower. Rainfall is seasonal and is received

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in three months in the year, within which again, the intensity is concentrated in a few weeks. Precipitation varies from very low (100 mm or less) in the extreme west to very heavy (more than 11,000 mm) in the extreme east. Correspondingly, conditions change from arid in the west to very wet in the east. However, a large part of the west is watered by the Indus system. Periodical floods and droughts are experiences common to all the countries in the subcontinent; the pressure of a growing population is another feature common to these countries; and all of them have embarked on paths of ‘development’ as that term is currently understood. These commonalities bring about some convergences. For instance, growing water needs for irrigation and for industrial use, and acute problems of water supply and sanitation in urban centres, are common experiences. It follows that there are shared concerns about food security and apprehensions of future water-scarcity across countries. The response to these concerns at the administrative, technical and planning levels in governments is generally characterised by a predilection in favour of big supply-side interventions, with some variations in the strength of that way of thinking from country to country. There is also some advocacy of ‘alternatives’ in all the countries, again with variations from country to country. As already mentioned, the philosophy of ‘middle path’ is strongest in Bhutan. The ‘alternative voices’ are moderately strong in Nepal, with a degree of influence on official thinking, but the mainstream view continues to regard water as Nepal’s oil, i.e., as a potential source of revenue and wealth. In Pakistan and India there is a strong polarisation between the believers in big, centralised, technology-driven, supply-side projects as the only answers to future needs, and those who oppose that approach as unsustainable, destructive and inequitable, and advocate local, small, community-led alternatives that are (in their view) environmentally benign and socially just. The polarisation is particularly marked in India, with an inadequacy or even absence of constructive civil discourse between the ‘dam-builders’ and the ‘environmentalists’, either side describing the other as a ‘lobby’. In Bangladesh, there are not many possibilities of big projects, but the official Water Establishment, as in India, continues to be dominated by the engineering point of view. Apart from the already completed Teesta Barrage, the proposed Ganges

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Barrage is perhaps the one big project in view, and it is regarded as very important. Essentially, however, the ‘big project’ point of view is reflected in the advocacy of several large dams in Nepal as a means of augmenting the lean season flows of the Ganges. There is also general agreement at the official levels and among the generality of the intelligentsia (especially the economists) on the ‘potential’ of hydroelectric power that exists in the river systems of the countries, and in particular in the Himalayan rivers, and the need to exploit as much of that potential as possible. The two main arguments advanced in favour of this course of action are (a) that a sound energy policy requires that there should be a certain proportion of hydroelectric power in the total power-generation, and (b) that hydroelectric power is ‘clean’, i.e., non-polluting. (As mentioned earlier, there is also the attraction—to Nepal and Bhutan—of generation of income and wealth through the sale of electricity.) The opponents of big centralised power-generation projects point out that the submergence of large areas under reservoirs is hardly environmentally benign; that the reservoirs generate greenhouse gases; that the need for such large projects can be minimised by a combination of demand management, efficiency in energy use, getting more energy out of capacities already created, extensive local decentralised generation, and so on. They also have strong doubts about the wisdom of building large reservoirs in the seismically active Himalayan region. The debate continues. Environmental concerns are widely shared, but are not equally strong or influential in all countries. This is of course a central concern in Bhutan. There are powerful movements in Pakistan, India and Nepal, but they are not often very effective, and despite the existence of Environment Ministries the concern cannot be said to be ‘mainstream’. At the official level, and among the neo-liberal economists who are influential in the ‘economic reform’ process, there is a tendency to juxtapose ‘development’ and ‘environment’ and to argue that the latter should not be over-emphasised to the detriment of the former. That point of view finds much implicit (and sometimes explicit) support from the officials of the WB and the ADB. Floods loom large in the thinking of both India and Bangladesh. Despite some disenchantment with structural measures for flood moderation, the ‘flood control’ philosophy still continues to be influential

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in official thinking in both countries. The FAP is no doubt in some disrepute in Bangladesh, but mainstream opinion in that country is not wholly negative about embankments. Similarly, the weaknesses and failures of embankments are recognised in India, but official thinking still considers them necessary. The use of groundwater is massive in India and quite substantial in Bangladesh. We have seen that the reckless exploitation of groundwater and the rapid depletion of aquifers in some parts of the country is a major problem in India, and one which has not been attended to in any significant measure. In Bangladesh, the main problem (as already mentioned) is the extensive presence of arsenic. This is also experienced, though perhaps not to the same extent, in West Bengal and Bihar in India. Another emerging concern in all the countries is the problem of pollution and contamination of water sources and systems. Potentially, this could be a major source of intra-country and inter-country friction. However, it cannot be said that there is adequate awareness of this problem in any of the countries. It follows that serious action to deal with this threat to resource availability has not begun, or even been thought of.

Divergences Divergences have occurred essentially in relation to water-sharing in (or projects on) rivers that cross (or flow along) national boundaries. Some of these have been resolved through treaties. The Indus system is shared by Pakistan and India; Nepal is entirely in the Ganga system, and many of the rivers of that system flow from Nepal to India; and the Ganga, Brahmaputra and Meghna systems are common to India and Bangladesh. On the Indus, there is a treaty between India and Pakistan; in the Ganga system, there have been agreements in the past between India and Nepal, and currently there is a treaty on the Mahakali River; and there is a water-sharing treaty on the Ganga (Ganges) between India and Bangladesh. The working of the Indus Waters Treaty 1960 and the differences over the Baglihar project have already been dealt with.

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The nature and history of the Ganga waters dispute between India and Bangladesh, and its resolution through the Ganges Treaty of 1996, will not be gone into here.1 The water-sharing under the Treaty seems to have been working fairly smoothly. The Treaty provided for a review at the end of five years, and that point was reached in December 2001. However, neither the Government of India nor that of Bangladesh appears to have moved for a review. What is the future of the Treaty? That is a political question, not a water-related one. The Treaty will continue to work well, assuming that goodwill and good sense continue to prevail on both sides. However, that assumption is contingent on the continuation of a favourable political climate. If the political relations between the two countries were to come under a strain for any reason, the operation of the Treaty may also come under a strain. Apart from the Ganga, there are many other rivers that cross the India– Bangladesh border, and agreements may be needed on some of them. Currently, talks are going on regarding the sharing of the waters of the Teesta, but they do not seem to be making much progress. There has also been much concern in Bangladesh over the implications of India’s Inter-Linking of Rivers Project. In recent years India–Bangladesh relations have suffered a serious decline, and some efforts are now being made to improve them. The troubled history of India–Nepal water relations is too big a subject to be gone into here. The point to note in the present context is that the Mahakali Treaty 1996 has been stalled by some differences, and has made no progress. Some time ago it appeared that there was some movement forward, but with the emergence of political uncertainties in Nepal, no progress was possible. Now a revolution has taken place, and the country is trying to build a new system. It will be some time before India–Nepal talks on water issues can be resumed. (Incidentally, we must also note that despite the Parliamentary ratification, there has been a body of opinion against the Mahakali Treaty in Nepal. There have been some doubts about the Treaty itself, about the wisdom of undertaking such projects in the seismically active Himalayan region, and about the whole development strategy of large projects 1

For a detailed account see Iyer 2003: Chapters 19, 20.

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for the export of energy for generating revenues. It is difficult to say how strong that body of opinion has been, and whether it will gather strength with the change of regime in Nepal.)

INDIA’S RIVER-LINKING PROJECT: IMPLICATIONS FOR NEIGHBOURS The Project itself has been discussed earlier. We are concerned here with the concerns felt in Nepal and Bangladesh. Those countries are concerned, not with the goodness or badness of the ILR Project as a whole (on which a controversy is going on in India), but essentially with the implications of the Project for them. They are certainly entitled to ask the Government of India for information for determining those implications, and to insist on prior consultation before activities that might have such implications are set in motion; and of course nothing can be done within those countries without their full involvement. Primarily, their concerns will relate to diversions, if any, from the Ganga and the Brahmaputra, and the hydrological, environmental and related consequences, if any, to them of projects on these river systems in India. In addition, both Nepal and Bangladesh have river treaties with India—the Mahakali Treaty and the Ganges Treaty— and conformity to the provisions of those treaties will be an important consideration in an examination of activities relating to the rivers in question. The ruling UPA Government at Delhi has given indications of a careful and phased approach. It has also stated that the Himalayan component of the Project is not being looked at for the present and that before doing so Bangladesh and Nepal would be consulted.

REGIONAL COOPERATION A view that has gained considerable currency in Nepal and Bangladesh (and to some extent in India) is that ‘regional cooperation’ has better

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solutions to offer to most problems than purely national or bilateral approaches (cf. Chapter 15 and Iyer 2003: 248–49). The plea for regional cooperation is doubtless often based on weighty economic arguments, but a desire to neutralise the perceived weakness of smaller countries in relation to India is also an unstated consideration. The apprehension that it would be difficult for Bangladesh or Nepal to negotiate on equal terms with their bigger neighbour leads to a stress on ‘regional cooperation’, in the hope that a multilateral forum will offset India’s size. Be that as it may, regional cooperation is obviously a good thing, and no one will argue against it. The question is: cooperation at what level, between whom, and for what purposes? Generally ‘regional cooperation’ tends to mean cooperation between governments, often in the context of big projects to be jointly undertaken. It is possible to think of cooperation in other ways. Given the commonalities mentioned earlier, there are many possibilities of close collaboration among these countries in relation to water. For instance, there is a massive incidence of waterlogging and salinity in the Indus Basin in Pakistan, and this is also a serious problem in the Indian part of the Indus Basin. The occurrence of arsenic in groundwater is a major affliction in Bangladesh, but the problem is also experienced in West Bengal, and more recently in Bihar. The great Sunderbans wetlands, shared by Bangladesh and India, have sadly deteriorated and are in need of urgent attention. The Himalaya is the water-tower of South Asia and special efforts for its protection are called for. The periodic floods in the Himalayan rivers, often severe and sometimes catastrophic, require an extensive network of observations, information-sharing, warning systems, and disaster-preparedness and damage-minimisation. With growing populations and the processes of urbanisation and economic development, the protection of the natural environment (air, forests, mountains, wildlife, etc.) from degradation, denudation or destruction, and of rivers, lakes and aquifers from the menace of pollution and contamination, necessitate understandings and protocols on standards, institutions and regulatory regimes. Local, community-led initiatives in water-harvesting and watershed development and the related social mobilisation and transformation, are taking place in all the South Asian countries; and movements for the

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protection of the environment and for safeguarding the rights and interests of the poor, the weak and the disadvantaged, and for the empowerment of women, are also a common feature. Inter-country solidarities in these matters and exchanges of knowledge and experience, already occurring to some extent, need to be expanded. These are among the areas in which inter-country cooperation will be very fruitful, and in some instances very necessary. Such cooperation can be at the level of governments, NGOs, academic institutions or ‘think tanks’, or ‘people-to-people’. Such possibilities have not received the attention they should have. Regional cooperation is certainly very necessary and important, but it can take many forms other than that of large inter-governmental (or private corporate sector) projects in the Himalayan region.

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24 Some International Formulations: A Critique

The ‘international water circuit’ (if one may so describe it) includes the triennial World Water Forum, the annual Water Symposium at Stockholm, the WB, ADB, UN agencies, the World Water Council, the Global Water Partnership and its national affiliates, the International Water Management Institute (Colombo), and academic institutions across the world which are concerned about water. Some of the formulations currently in vogue in these circles are briefly taken note of in this chapter.

WATER WARS One of these, made popular by Ismail Serageldin, is the statement that the next world war is going to be fought not about oil but about

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water. In all international (and some national) meetings and conferences, one may confidently expect to hear this quotation at some stage. The analogy with oil is misleading. A powerful country can go to war with a weaker one over the latter’s oil resources, acquire control over those resources, exploit them commercially through the establishment of corporations, convert them into products for export, or transport the oil itself through pipelines, tankers or bulk-carriers to distant parts of the world. None of this applies to water. Leaving aside a fairly large trade in bottled drinking water or soft drinks, there is no international bulk-trade in water comparable to that in oil, though there may be a few scattered instances. The water resources of one country can at best be used in the neighbouring countries, and not piped or transported by tankers or vessels to countries at enormous distances. One cannot look far into the future, but it is difficult to visualise a vast international trade in water. For one thing supplies are finite, and may not be able to sustain such trade; few countries are likely to have large exportable surpluses of water, and any big export proposals are likely to face serious national opposition. On the importing side, it is difficult to imagine a water short country importing water in bulk for irrigation—the largest use of water—from a distant source. Water resources are likely to be harnessed essentially for local use, ‘local’ here meaning one country or a few countries adjoining one another. Second, given that situation, those countries are much more likely to cooperate with one another and enter into agreements or treaties, or embark on joint projects for water resource development and utilisation, than to go to war. Here again, the analogy with oil breaks down. It may be feasible to conquer a country and take way its oil; it may not be so easy to take away a country’s water. It is only under very special sets of geopolitical circumstances that a country can hope to acquire control over headwaters or aquifers in a neighbouring country through military means. Even in such a case it may be simpler for the country needing water to enter into an agreement with the country which has the water resources. A war over water may be theoretically possible but it seems very unlikely to happen: not in Asia, and perhaps not even in the Middle East. In fact there are large numbers of examples of treaties, agreements, joint commissions, and so on, over water. The evidence seems to be overwhelmingly in favour of the thesis

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that countries will enter into understandings or agreements over water, and not in favour of the proposition that they will go to war.1

‘ECONOMIC AND SOCIAL GOOD’ The definition of water as an economic and social good goes back to the Dublin statement. It started with a stress on the economic value of water, and then the word ‘social’ was added as a recognition of noneconomic aspects. Even with that addition, it remains not merely a limited definition but a dangerously misleading one. Water is of course an economic good in some uses, and a social good in some others, but it is much more, and the very term ‘good’ (suggesting ‘goods’ or a commodity) seems inappropriate: it misdirects thinking. It is not necessary to deconstruct this phrase at great length, as a fuller and more complex understanding has been set forth in the Preamble to this book.

‘INTEGRATED WATER RESOURCE MANAGEMENT’ AND ‘DRAINAGE BASIN MANAGEMENT’ The phrase ‘Integrated Water Resource Management’ or IWRM has come into extensive use in recent years, particularly in the Global Water Partnership (GWP) and World Water Council (WWC) circles and at the World Water Forums. The related term ‘Drainage Basin Management’ is now well established in Stockholm. These terms may seem unexceptionable, but some reservations are in order. They represent advances on earlier thinking, but they continue to carry with them some limitations arising from the sources of their origin. That origin can be traced back to the earlier preoccupation with the planning of big projects and the dominance of engineering in that planning. At one time, these things were taken for granted,

1

See Postel and Wolf 2001: 2–9.

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and no one felt any doubts about the rightness of what they were doing. Then doubts began to emerge about the wisdom of discrete project-planning. The need for a larger framework was felt, and the planners began to talk about ‘basin planning’. The need for bringing in disciplines other than engineering was recognised, and so the word ‘integrated’ was added. The validity of environmental concerns was acknowledged, and the word ‘sustainable’ was tagged on. The crucial importance of water management was accepted, and so the formulation became ‘integrated, sustainable river-basin management’. At some stage, concerns about groundwater were taken note of, and the expression evolved into ‘Integrated Water Resource Management’ or IWRM. As already stated, this does represent an advance on earlier thinking, but the origins in engineering and in project planning have not wholly disappeared: it has been a process of adding on more dimensions. It seems to the author that IWRM does not represent true interdisciplinarity. Further, apart from the fact (mentioned earlier) that the terms ‘IWRM’ and ‘Basin Planning’ carry within themselves the seeds of centralisation and gigantism, they fail to incorporate adequately the elements of decentralised, local, community-led planning and management, and of traditional knowledge and wisdom. Without disrespect to any of the disciplines or organisations involved in those formulations, it needs to be said that we need to unlearn much of what we have learnt and start afresh. Instead of starting from a partial or fragmented approach and then trying to integrate the fragments, we have to start with a non-fragmented, interdisciplinary (not just multidisciplinary), holistic approach ab initio. ‘Holistic’ seems a better word than ‘integrated’. Similarly, while the expression ‘drainage basin’ is a technical term with a precise meaning, it is a very limited perception of one aspect of a river. To think of a river as a drain may be technically correct, but it is a reductionist view. How can anyone trained to think of a river primarily as a drain (or as a datum for designing dams or bridges—as ‘only a problem confronting the builder of dams’, adapting a line from a well-known poem) even begin to understand the roles played by the Thames, the Rhine, the Nile, the Ganga, and the Mississippi in the lives, cultures and civilisations of the countries concerned?

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The terms ‘IWRM’ or ‘drainage basin management’ may have their uses, so long as we understand their limitations. However, we need to transcend them and achieve a deeper and wider understanding of water in all its richness and complexity. There is also much talk about ‘capacity building for IWRM’. ‘Capacity building’2 is a modern term for what used to be called ‘training’. It suggests the imparting or improvement of skills. In the light of what has been said earlier, what is needed is a transformation of understanding and ways of thinking. That goes beyond ‘capacity building’. Certainly, ‘capacity building’ in the narrower sense of training in skills is very necessary, but it is also necessary to deepen and widen understanding and enrich perceptions. That leads us to the question ‘whose capacity?’. Certainly water users of all categories—industrial, agricultural, municipal, domestic, etc.— and indeed the ordinary people have to be made aware of the precious and scarce resource that water is, the roles that it plays in our lives and in nature, the need to conserve it, and so on. Ordinary people, NGOs, the community, may need certain kinds of knowledge and skills. However, water engineers, water planners, policy-makers, administrators, managers of systems, bureaucrats, technocrats, politicians, economists, agricultural scientists, and so on, also need to learn many things. Each category has specific knowledge and concerns, and each has specific limitations and weaknesses. All of them need to enlarge their understanding beyond their narrow concerns and perceptions, transcend the limitations that these impose, and learn to recognise and respect the knowledge and wisdom that lie outside their own domains. There is capacity at every level, and there are also limitations, myopia and prejudice at every level. (IWRM is discussed further in Chapter 25.)

2

Incidentally, the term ‘capacity building’ and indeed the word ‘management’ itself show the influence of the management discipline which originated in the world of business. One has doubtless to use the word ‘management’ in relation to water and natural resources in general, but this is very different from corporate management.

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MINIMUM FLOWS, ‘ENVIRONMENTAL FLOWS’, ‘WATER FOR NATURE’ These terms are much in currency now, but let us begin with a brief reflection on how they emerged. Not very long ago, the ‘use’ of the waters of a river meant their abstraction from the river, or their diversion through canals; ‘in-stream’ uses were not (or not adequately) recognised; and water flowing to the sea was generally regarded as ‘wasted’. The approach was to ‘harness’ river waters through dams, barrages or other structures to the extent technically feasible. The stress was on maximising ‘use’ as defined above, and this implied that flows downstream of the structures would be reduced. In some instances rivers dried up and failed to reach the sea. (The reference is not necessarily to Indian experience.) In course of time, the realisation began to dawn that this was not necessarily a good thing, and that the reduction of flows could have various adverse consequences. During the same period, environmental concerns were growing and gaining depth and strength. As a result, the idea that a river must not be totally dried up and that some flow must be maintained emerged and gathered strength. That was the origin of the term ‘minimum flows’. Later, the better-sounding terms ‘environmental flows’ and ‘ecological flows’ came into use. However, these are dubious phrases indicative of profoundly wrong ways of thinking. In the first place, expressions such as ‘environmental flows’ or ‘water for nature’ carry the implication that in allocating water for various purposes, an allocation must be made for ‘environmental’ purposes or for ‘nature’. The new National Water Policy 2002 lists ‘ecology’ as the fourth item in the list of priorities in water-allocation. This is to turn things upside down. We receive water from nature as a bounty; we cannot presume to allocate water to nature. Water itself is a part of nature, and sound ecological balance will determine the continued availability of water. Ecology, then, is prior to all water-uses, and it is absurd to make an allocation of water for ecology. Ecological considerations may impose restraints on the various uses of water, and on the draft that we make on nature: ecology itself cannot be treated

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as being among the competing recipients of allocations of water. Instead, ecological imperatives must guide our water-use. Second, while the idea of a ‘minimum flow’ or ‘environmental flow’ in streams and rivers is welcome in so far as some flow is better than no flow, this does not imply any major change in thinking: abstraction and diversion continue to be the norm, with a slight limitation by way of ‘minimum’ or ‘environmental’ flows. There is a danger here: the notion of a minimum flow seems to sanction by implication that of maximum abstraction. ‘Minimum flow’, intended to be the floor, may well become the ceiling: people may feel that so long as they have left that much water in the river, they are entitled to divert the rest. Rivers must flow, and we should be wary of interfering with the natural flows. What we need is not minimum flows, but minimum interference with natural flows. What is needed is not the grudging maintenance of a small flow (‘minimum’): we must ensure that the flow continues at desirable levels. What are desirable levels of flows? Flows are needed for maintaining the river regime, making it possible for the river to purify itself, sustaining aquatic life and vegetation, recharging groundwater, supporting livelihoods, facilitating navigation, preserving estuarine conditions, preventing the incursion of salinity, and enabling the river to play its role in the cultural and spiritual lives of the people. These multiple and diverse functions and purposes are not fully captured by phrases such as ‘ecological flow’, ‘environmental flow’, and so on. We have to go beyond these. Reversing present thinking, we must learn to regard natural flows as the norm and abstraction or diversion as the departure from nature, to be resorted to minimally and with care. It might be argued that the idea of ‘natural flows’ is problematic, but that is not so. One does not have to go back to pre-historic or preagricultural times. It is true that with human settlements on the banks of rivers and the beginnings of irrigated agriculture river waters began to get used, but the flows were not substantially affected until human intervention in the rivers through structures of some kind for the diversion or storage of waters began to take place. If we define ‘natural flows’ as flows as they were prior to such interventions, the concept is not an obscure or difficult one.

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‘VIRTUAL WATER’ The terms ‘virtual water’ and ‘virtual water trade’ are relatively recent but seem now to be well established. A water-abundant country can grow and export things such as rice or wheat or fruit and vegetables needing much water to produce, and a water-deficient country can import them. This is taken as equivalent to exporting/importing water. It is argued that developing countries that face growing pressure on their water resources need not use their water to grow such waterdemanding produce, but could import their requirements from waterrich countries (thus virtually importing water). Many would argue that a distinction needs to be drawn here between imports of staple food and imports of other things such as fruits and vegetables, and that a vulnerable dependence on food imports is not desirable. Opinion is divided on that issue, with some arguing that we can export whatever we can and import whatever we need (including food), and others stressing the importance of a degree of self-reliance in food. Leaving that aside, it seems to the author that there is an element of obfuscation in the concept of ‘virtual water trade’. Every import or export can be re-described as something else. Exports of rice and wheat can be treated as exports of water (among other things); exports of aluminium can be regarded as exports of electric power; exports of iron and steel originate in iron ore and can be regarded as exports of the soil of the country; and so on. This can serve the purpose of drawing our attention to the implications of certain kinds of trade. For instance, a water-stressed country or area within a country can be cautioned against producing, say, paddy for markets outside its borders. However, in international conferences and forums the concept of virtual water trade tends often to be used as one more means of persuasion directed at developing countries, extolling the virtues of markets and imports as against domestic production. We need to be wary of this insidious theory. It must also be noted that there is a conflict between the ‘virtual water’ theory and the Falkenmark concept of ‘water stress’. The water stress theory argues that a country’s endowment of water resources would need to be of a magnitude much larger than the ‘basic water

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requirement’ or BWR of its population if it is to avoid ‘water stress’ or ‘water scarcity’. Implicit in this is the assumption that the country must have a certain level of agricultural and industrial activity. It is the water requirement of that activity that generates ‘‘water stress’ in the country. On the other hand, if the virtual water theory is carried to its logical conclusion, all needs above BWR can be imported as virtual water and the concept of ‘water stress’ will be unnecessary.

‘WATER STRESS’ As we have referred to the term ‘water stress’, a few words of explanation might be in order, particularly as the term is widely and loosely used. We often come across statements to the effect that the per capita availability of water resources in India is declining, and that India is fast becoming a water-stressed country. There is a bit of confusion here that needs to be cleared up. We must understand clearly the distinction between ‘water stress’ as applied to a country and the stress that an individual will undergo if he or she is obliged to go without water. Annual Water Resources (AWR) per capita which measures the water stress or scarcity of a country is quite different from BWR per capita or the basic water requirement of a human being. ‘Water stress’ is a term that we owe to Falkenmark, and it is now an established concept. The degree of stress is measured with reference to the annual per capita availability of water resources in a country or region (AWR). An AWR of 1,700 m3 means that only occasional and local stress may be experienced; an AWR of less than 1,000 m3 indicates a condition of stress; and one of 500 m3 or less means a serious constraint and a threat to life. What we are measuring here is the quantum of water resources available to a country divided by the population. On the other hand, the basic water requirement per person or BWR is the quantity of water that a human being needs to meet his or her daily needs for drinking, cooking, bathing and sanitation. Gleick has estimated this as 50 litres (Gleick 1996). That works out to 18.25 m3 per person per annum. If we consider that a low estimate and double or triple it, it still comes to no more than 36.5 or 54.75 m3.

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Why then should a per capita availability of 1,000 m3 mean that a country is water-stressed in Falkenmark’s terms? The answer is that in addition to our direct and personal water needs, we also need food, consumer goods and various industrial products, energy, and so on, and water goes into their production. It follows that the totality of our water needs goes well beyond BWR in Gleick’s sense. That is what Falkenmark’s AWR norm measures. If the water available to a person falls below say 150 lpcd or 54.75 m3, that person, as a human being, will be in a state of stress. If the country as a whole has an annual water resource availability of less than 1,700 m3 Falkenmark argues that the country will be approaching a state of stress. The ‘stress’ of the country in this sense is not the same thing as an individual’s stress in the absence of water. In the latter case, we are referring to a pathological state, whereas in the former ‘stress’ is a metaphor for a difficult situation. This distinction is not always kept in mind in the discussions. (It is of course true that with a very low AWR level, a country may find it difficult to meet the people’s minimum needs for a reasonable quality of life, and that at that level the country’s economic stress may actually translate into physical stress for the people.) In some cases, a country that is not well endowed with natural resources may manage to meet a wide range of its requirements quite satisfactorily through imports. We may hold different views on how dependent we should be on imports for meeting essential requirements (this was referred to earlier in the paragraph on ‘virtual water’), but that is an economic or political point. What the ‘water stress’ theory implicitly assumes is that a country needs a WR endowment adequate to support a level of domestic production of goods and services, and that a country better endowed with water resources than another would be better placed both politically and economically than the latter. It seems clear that the water stress theory does not accept the proposition that the stress can be eliminated entirely through trade.

‘PUBLIC–PRIVATE PARTNERSHIP’ The advocacy of privatisation of water and sanitation services and the induction of private sector investment in what the WB calls ‘water

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infrastructure’ has been quite strong for many years, but in recent times the language has changed from ‘privatisation’ to ‘public–private partnership’ or PPP (sometimes stretched to PPPP or ‘public–private partnership for the poor’). This is now strongly urged in various international contexts. The new language does not represent any substantive change; it is merely the same old nostrum presented in a new package. The new terminology is intended to minimise the negative responses that the word ‘privatisation’ tends to generate. What is involved is essentially privatisation in some form: transfer of ownership or management contract or leasing-out or the award of a concession. None of this involves any ‘partnership’; the role of the public sector (if any) is at best one of regulation. However, all privatisation is theoretically supposed to be accompanied by regulation, and so this is nothing new. The element of partnership is hard to find.

NEED FOR CHANGE AT THE INTERNATIONAL LEVEL The idea of a Declaration on water in the Indian Constitution was mooted earlier. Thinking needs to be transformed at the international level also. The old Helsinki Rules and the UN Convention of 1997 (not ratified so far by the required number of countries) dealt only with one aspect of the water theme, namely, the sharing of international rivers (‘drainage basins’ or ‘water courses’) by the countries concerned; they did not set forth a view of water in all its complexity. It may be added that water now stands recognised as a ‘human right’ in the UN system but even this is a partial statement that fails to encompass the complexity and multidimensionality of water. At present there are three influential formulations on water in the international arena: the Dublin-Rio principles; ‘Integrated Water Resources Management’ or IWRM referred to earlier; and the persistent advocacy of water markets and the privatisation of water services. All these are limited and partial views. There is a need for fundamental and holistic re-thinking about water at the international level and the adoption of a basic Water Declaration or Convention in replacement

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of the existing theories and doctrines.3 However, great care is needed to ensure that any such exercise is not hijacked by the more powerful countries or the big international water corporations for establishing their own hegemony over the world’s water resources.

3

One such effort is the Manifesto proposed by Petrella ( 2001).

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25 A Parenthesis on a Different View

At this stage, before proceeding to the final section, it is necessary to take note of a point of view that is quite different from the argument of this book. Leaving aside the densities of scholarship and simplifying the complexities of the argument, the thesis (Shah and Koppen 2006) can be roughly encapsulated as follows: • •

•

The water endowment of a country and its water poverty are two different things. The ‘water access poverty’ (WAP) of a country is related not so much to per capita water availability as to the stage it has reached in its overall economic evolution. Standard prescriptions such as water policy, water law, regulation, demand management, etc., work well in highly evolved economies where water management is organised and formal,

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where most water-users are connected to a system, where a relatively small number of suppliers supply water to a large number of users and are amenable to influence by the aforesaid instrumentalities. Those measures do not work in countries where water is largely in the informal sector and where there are very large numbers of water-users functioning as their own suppliers, and not linked to any supply system. Under those circumstances, a number of informal arrangements and institutions have sprung up, and are functioning with varying degrees of efficiency. Instead of pushing one standard set of prescriptions in all countries, we must take note of local circumstances, see what works and what does not, and tailor our recommendations accordingly.

It is dangerous to summarise learned and complicated arguments, but one hopes that the above is not too inaccurate an account of the Shah and Koppen thesis. It is plausible, but only partly true, and is open to a number of questions. One has no serious quarrel with the de-linking of WAP from water endowment or scarcity. Incidentally, though S and K do not say so explicitly, this undermines the Falkenmark ‘water stress’ theory. S and K subsume a large number of ideas under the broad heading ‘IWRM’: for instance, a national water policy, water law, basin planning, regulation, the treatment of water as an economic good, pricing, full cost recovery, and so on. This seems questionable. First, in its origins, IWRM was the water planner’s attempt to widen the hitherto dominant engineering perspective by including and internalising environmental, social and human concerns, and to enlarge the planning horizon from isolated ‘projects’ to a larger hydrological framework such as a river basin.1 On the whole, S and K approve of IWRM, but argue that India is not yet ‘ripe’ for it. As already indicated, one has reservations on the concept of IWRM itself: it was an advance on earlier 1 As mentioned earlier, IWRM and ‘Drainage Basin Management’ are being propagated by Global Water Partnership, the World Water Council and the Stockholm Water Symposium.

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thinking, but continues to remain a refinement of the engineering tradition; and (in combination with the ‘basin-planning’ component) it has an in-built tendency towards centralisation and gigantism. Shah and Koppen evidently do not share those reservations. (Incidentally, both the idea of ‘integration’ and that of ‘basin planning’ antedate the emergence of IWRM; for instance, they were there in India’s National Water Policy 1987, though no one was talking about ‘IWRM’ at that stage.) Second, water as an economic good, pricing as the tool of regulation, the principle of full cost recovery, the creation of property rights in water and making them tradable, the privatisation of water services, and so on, derive from neo-liberal economics, and are part of the advocacy of economic reform and structural adjustment programmes by the WB, IMF and ADB. That advocacy began several years ago, and the advocates were not talking about IWRM at that stage. IWRM as conceived by the Global Water Partnership (GWP) and others may have incorporated some of these components later. Third, the advocacy of a national water policy and/or a national water law can be independent of both IWRM and neoliberal ‘economic reform’ programmes. The case for these has been argued on other grounds earlier in this book. Thus there are three separate streams: IWRM, neo-liberal market fundamentalism, and an advocacy of a national water policy and law. They may overlap, and each may incorporate some elements from the other two, but conceptually it is useful to keep them distinct. As for the proposition ‘don’t apply one standard nostrum to all countries; take note of what exists and has evolved’, one can agree with that up to a point. Indeed, one of the strongest criticisms of the Stuctural Adjustment Programme is that a standard set of prescriptions is imposed on all countries. However, ‘what has evolved’ may not always be good. For instance, water markets have emerged in India around tubewells and borewells: are they an unmixed blessing? India is the world’s largest user of groundwater: is that a good thing? S and K refer with evident approval to the local, innovative responses to the given circumstances, but it is those responses that have led to the alarming depletion of groundwater in India. Similarly, the availability of canal water under major/medium projects led to the adoption of water-intensive cropping patterns that in turn led to the demand for more and more and still more water, and to intractable conflicts.

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Clearly, whatever is, is not necessarily good. That is of course obvious, and S and K will not disagree with it. What then should we do? Shah and Koppen seem to come close to saying that nothing can be done about it, until India has become a wholly modern economy. To be fair to them, they are not advocating the passive acceptance of reality. They call for the adoption of locally relevant, circumstance-specific measures, but they do not spell out those measures. They are very good on the questioning of conventional wisdom and on challenging the nostrum of IWRM, but not equally forthcoming on positive recommendations. Incidentally, the central assumption underlying their theorising is that water in India is very largely outside the formal economy. There is a considerable measure of truth in that proposition, but is it wholly true? Canal irrigation under ‘major/medium’ projects has been a feature of Indian agriculture, and though its importance has declined, it still remains a significant factor; and it involves a relationship (once strong and now weakened) between irrigators and the PWD or Irrigation Department of the State Government. That relationship is governed by an Irrigation Act or an Irrigation and Drainage Act in most States. Major/medium irrigation has been riddled with inefficiencies, but it continues to function in a fashion. How can we possibly classify this under ‘the informal sector’? Similarly, are the tank farmers’ associations in the south wholly ‘informal’? As for groundwater, there may be 20 million tubewells, but are they all instances of ‘self-supply’? A large number of them may fit that description, but are there no tubewells owned by water companies, large industries, cooperative societies, panchayats, and the State Government or public corporations? Let us forget IWRM; let us forget also the WB/IMF/ADB prescriptions. What are India’s problems in relation to water? To repeat some points made earlier in this book, they are: inability to assure safe drinking water and sanitation services to all; competitive and unsustainable demand for ever more water, particularly in agriculture, leading to large supply-side projects with all their attendant problems; bitter and intractable inter-State and inter-use conflicts; destruction of aquifers; unmanageable generation of waste and huge problems of disposal in urban areas; pollution/contamination of water sources, turning rivers into sewers or poison, and rendering aquifers unusable; and so on.

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Faced with these problems, can we shrug our shoulders and say that policies, laws, regulation, pricing, etc., will not work? Or should we explore possibilities of making them work through better governance, education, innovative methods, and the mobilisation of civil society? One of the propositions running through this book is that ‘demand’ (greed in Gandhi’s language) is at the heart of most of our problems in relation to water. Can we afford to take the position that demand cannot be restrained?

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VI

DRAWING THE THREADS TOGETHER

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Some Glimmers of Hope

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26 Some Glimmers of Hope

So far, we have largely been concerned with mismanagement, fallacy, conflict, and so on. Moving away from that grim picture let us take note of some encouraging instances, some of which have figured in these pages already. First, local initiatives for water-harvesting and micro-watershed development, often under the leadership of an exceptional individual, have had some remarkable successes. Some of the names involved, such as Anna Hazare, Sarpanch Popat Pawar, Rajendra Singh, and so on, have become well-known. Much good work has been done, and the places in question have been able to cope with three or four successive droughts. Apart from these, there have also been institutions such as WOTR in Ahmadnagar or Dhan Foundation in Madurai. All these instances give us great hopes as to what can be achieved. Second, there is the impressive and inspiring Sulabh Sauchalaya movement initiated by Bindeshwar Pathak. He has been pursuing the

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cause of propagating and providing inexpensive hygienic sanitation facilities for all with fervour and zeal, and has won international acclaim. Third, the Centre for Science and Environment has been playing a commendable role of advocacy and activism in relation to environmental and other issues and has been leading a campaign for promoting water-harvesting. It is a matter for gratification and pride that their work has been recognised by the grant of the Stockholm Water Prize for 2005. Fourth, the Madras Institute of Development Studies has been engaged from 2003 onwards in a remarkable non-official initiative (the author has been closely associated with this) for bringing together the farmers of the Cauvery Basin in Tamil Nadu and Karnataka in an effort to promote goodwill and understanding and work towards finding an acceptable solution to the vexed Cauvery Dispute. No agreed formula has emerged so far, but the enormous amount of goodwill that has been generated and the warm relationships that have been established hold out much hope for the future. Fifth, civil society movements have had some significant successes. In Delhi, a local community, with the assistance of an NGO, was able to use the Delhi Right to Information Act (2001) to get access to the records of ration shops and bring about a remarkable improvement in the functioning of the Public Distribution System in that area.1 In Delhi again, a strong movement generated a public controversy over the Delhi Government’s plans to contract-out water distribution services to private corporate bodies, and led to the shelving of those plans. The impacts of popular movements in Chhattisgarh (the Sheonath case) and in Kerala (the Coca-Cola case in Plachimada) have already been referred to. Vandana Shiva has fought valiant legal battles abroad against the hijacking of our traditional plants and grain (neem, basmati rice) through foreign patents. Above all, there have been the heroic struggles of Medha Patkar and Sunderlal Bahuguna, who may have failed in their immediate 1 It is gratifying that this endeavour was recognised by the conferment of the Magsaysay Award on Arvind Kejriwal.

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objectives but were successful in changing the general understanding of what big projects mean to nature and to people. These examples serve to show the possibilities. They offer hope and also lessons. Inspiration and guidance for future action are likely to come from cases like these rather than from governmental policies or programmes, unless these are themselves based on and derived from those experiences.

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27 Towards Wisdom on Water

If we draw lessons from both the mistakes and follies of the past and the hopeful stories illustratively mentioned in the previous chapter, we can indeed move towards wisdom. Wisdom here can be taken to mean responsibility, using that word in multiple senses: responsible use of this scarce resource; reasonableness towards other users (within the State or country or beyond); awareness of what our actions and interventions mean to others, particularly the poor and the disadvantaged; and responsibility towards future generations, other forms of life and nature. So understood, the term ‘responsibility’ encompasses restraint, a sense of justice and moral obligation, and respect for our habitat: it comes close to the concept of dharma. Keeping that in mind, we can attempt first a Statement or Declaration on water, and then spell out the actions to be taken.

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A DECLARATION ON WATER The following translates the understanding set forth in the Preamble into a set of principles. It is a kind of résumé or encapsulation of the arguments running through the book, but a selective one limited to some basic or important points. 1. Water is primarily a life-supporting substance and only secondarily anything else. (That is ‘water for life’.) Next comes ‘water as social good’ (e.g., water for firefighting, hospital use, use in schools and public institutions, etc). We then have ‘water as commodity’ (‘economic good’), i.e., water for irrigation, industry, recreation, etc. That threefold categorisation needs to be supplemented by a recognition of water as part of culture and civilisation and water as a sacred resource. 2. ‘Water for life’1 is a basic need and right and cannot be denied to anyone. It must take precedence over the other two categories. Economic or other uses of water must not jeopardise ‘water for life’. 3. If we ask how much freshwater is available in nature, we are asking a hydrological question, but if we ask how much water will be needed by the year 2025 we are asking a question about many things including patterns of water-use, ways of living, their alterability, and so on. It follows that water is as much a matter of social science as one of natural science. It would be wrong to look for answers to social science issues in the realm of natural science.

1

The reference is to drinking water, defined so as to include water for essential domestic cooking and washing. Sanitation is also a part of this (but not necessarily in the form of flushing toilets). Access to rivers and forests that are sources of sustenance to certain communities would fall within the category of ‘life-support’. Water for food, i.e., irrigation, is also part of ‘water for life’, but only in the context of food for family consumption; food for the market is part of economic activity. Even domestic use beyond basic need must fall within the category of ‘water as commodity’. The provision of water in hotels must also be so classified.

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4. Within the sphere of social sciences, water is as much a matter for the sociologist, the social anthropologist, the historian, the cultural theorist and the lawyer, as a subject for economists— though the latter tend to assume a special and over-riding importance for their discipline. It would be wrong to look for answers to all social science issues exclusively in economics. 5. Water science is not the same thing as water-engineering. Water science means an understanding of the role(s) that water plays in nature and on Planet Earth.2 Besides, impressive and aweinspiring as some of the famous engineering marvels (Bhakra Nangal, Aswan, Hoover, Three Gorges) might be, they may be inconsistent with water science as defined above. In other words, not only is water engineering not water science, it may even be bad science in some cases. 6. Limits on our draft on natural resources, particularly water, set by ecological imperatives and the health of Planet Earth must not be exceeded. 7. Conflicts in relation to water arise largely from ‘greed’ in Mahatma Gandhi’s sense,3 i.e., consumption in excess of ‘need’. Conflicts can be avoided or resolved only through restraints on consumption and through the principle of equitable sharing in some form. 8. We cannot learn to live in harmony with our neighbours until we have learnt to live in harmony with nature. 9. In addition to harmony with nature, a concern for equity and social justice must be the governing consideration in whatever we plan or do in relation to water. 10. In relation to water, the state has certain roles to play. In playing those roles, the state should take care to facilitate and not hinder the role of the community. There has to be a constructive, cooperative relationship between the state and civil society. 2 T.N. Narasimhan, in a personal communication, draws attention to ‘how water plays its role in the earth through the hydrological cycle, and its strong links to erosional and nutritional cycles. Ultimately, these natural phenomena dictate how we should go about patterning our societies.’ 3 Cf. Gandhi’s remark, ‘The world has enough for everyone’s need but not enough for anyone’s greed.’

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11. There can be use rights but not property rights in relation to water. Use rights can be made tradable only to a very limited extent. 12. With those ‘axioms’4 in mind, we can look at our problems and formulate certain questions, to which science or technology or engineering may be able to help us to find answers; in ‘science’ here we must include ecology; and the answers may have to be read in conjunction with what the social sciences tell us. That fairly minimal declaratory statement is based partly on Indian experience, but it is the author’s hope and belief that it will be found to have wider application. The author further hopes that governments, civil society organisations, and international bodies such as the World Bank, World Water Council and Global Water Partnership, and others, will find it useful as the point of departure for a reexamination of their ideas and perhaps the re-formulation of their concepts, policies and prescriptions.

WHAT MUST WE DO? From those principles we must proceed to actions. Water is clearly among the most important problems facing this country, and a major national effort—a multi-pronged national campaign or movement on water (encompassing both the state and civil society)—is called for. Among other things such a campaign or movement will have to: (a) restrain and manage demand within availability; promote efficiency and economy in water-use (including multiple use of the same water) and resource-conservation; foster a consciousness of a scarce and precious resource; (b) lay down principles, processes and machinery for the obviation or quick resolution of conflicts; 4 That somewhat presumptuous term is deliberately used (‘not dogmatically but deliberately’ as Dr Samuel Johnson said in his Preface to Shakespeare in 1765).

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(c) lay down and enforce principles for the proper pricing of water in all uses (full economic pricing for some uses, including penal pricing or denial of service above a specified limit, reasonable pricing for other uses, subsidised pricing for the poor, and a modicum of free supplies to the very poor); (d) promote rainwater-harvesting and micro-watershed development throughout the country to the maximum extent technically feasible without adverse effects; (e) establish a constructive working relationship between civil society institutions such as watershed committees and Panchayati Raj Institutions; (f) ensure a voice for women in water-management and a proper place for them in water-governance institutions; (g) formulate a series of area-specific answers for the needs of arid, drought-prone or water-scarce areas, the stress being on local solutions, recourse to external water being exceptional, and avoiding ‘development’ of the water-intensive kind; (h) put large projects (where these are found necessary as a last recourse) through a stringent evaluation procedure (refining, making rigorous, and transcending the conventional CostBenefit Analysis; ensuring true independence and professionalism in EIAs; adopting the criteria of minimum displacement and least environmental impact; fully involving those who are likely to be affected right from the earliest stages); (i) revise the National Rehabilitation Policy to make it juster and more humane, and to give the affected people the first claim on the benefits of the project or activity in question; (j) rescue the environment and ecology from the National Environment Policy 2006; (k) arrest as quickly as possible the present disastrous overexploitation of groundwater; (l) arrest and reverse the loss of good water to pollution and contamination; (m) bring about the necessary changes in water laws needed for all this (explicitly recognising the fundamental right to water, treating water as a common pool resource to be managed by the

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community or held as a public trust by the state, de-linking control of groundwater from ownership of land, etc); and (n) bring about a major transformation in the way people think about water. Restraining demand has been put at the head of that list because it seems more important than anything else. The approach must be to meet the essential water needs and curtail the less essential or nonessential uses sharply, and restrain and manage the totality of demand within the availability to the extent possible, so that ‘demand’ (beloved of some economists and of course business) does not get out of hand. Demand (except for basic need) is not sacrosanct; it must be limited. Without such an effort no planning for the future is possible. The last item in the foregoing list calls for a transformation of thinking. The transformation that this book has been urging is fivefold: from folly and hubris (gigantism, blind belief in technology) to sanity (human scale, moderation, an understanding of limits); from rapacity (‘greed’ in Gandhi’s sense) to restraint; from injustice (examples: Narmada Valley, Tehri) to justice; from conflict (inter-country, interState, inter-area, inter-use) to constructive cooperation; and from an adversarial and sick relationship to nature, ecology and Planet Earth to a healthy and harmonious relationship. Unfortunately, these are not separate and distinct categories; gigantism, rapacity and a sick relationship to nature are interrelated; so are sanity, restraint and constructive cooperation. Narmada (Sardar Sarovar) and Tehri exemplify both gigantism and injustice; Plachimada illustrates not merely conflict but also rapacity; and Palar illustrates both industrial irresponsibility and a certain general understanding of ‘development’. As mentioned earlier, everything is connected with everything else. Why is a transformation of thinking necessary? That question was briefly answered at the end of Chapter 10. To put it in a different way, the point is that if we merely try to improve efficiency in administration and to find institutional or legal answers to political and attitudinal problems, we may indeed have some (limited) successes, and they will be very welcome, but the major concerns will remain unresolved. ‘Realism’ may suggest ‘practical’ solutions, but they will not take us very far. Wisdom is needed for avoiding disaster; the pursuit

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of wisdom will not be easy; but it will be realism in the true sense of the word. However, we need to look at a wider canvas. The water crisis is part of a larger crisis of ‘development’; water wisdom has to be part of a larger wisdom. That is too big a subject to be adequately dealt with in this book, but we must at least take note of it briefly.

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28 The Larger Framework: New Thinking for a Changing World

INTRODUCTORY In the development-environment debate two anodyne statements are often made. (a) ‘There is no necessary conflict between development and environmental concerns; the two can be harmonised.’ (This is supplemented by two related sub-points: that in the event of a conflict, primacy should be given to development; and that primacy should be given to the human over other forms of life and over nature.) (b) ‘Technology holds the key. It will provide answers to all problems, including problems created by technology.’ The author has serious difficulties with both those statements, and will state them in a forthright manner without qualifications and nuances. (See also Iyer 2003: 296–98.) His comments on the first cluster of points are the following.

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It would be right to say that there is no conflict between economic development and the environment if and only if our understanding of what constitutes ‘development’ undergoes a radical change. The idea of according ‘primacy’ to development in the event of a conflict rests on the assumption that such a choice is available, i.e., that environmental (or to be more precise, ecological) concerns can be set aside and ‘development’ achieved. That is a wrong assumption. Similarly, the postulation of a dichotomy between humanity on the one hand and flora and fauna on the other is wrong and shows a failure to understand the ineluctable relatedness of all of nature.

Those are terse and perhaps cryptic observations, but they will not be elaborated here. However, the idea of ‘development’ is central to this debate and needs to be gone into a bit further.

DEVELOPMENT AS DESTRUCTION Taking his cue from Amartya Sen’s phrase, ‘development as freedom’,1 the author tried out expressions such as ‘development as sustainability’, ‘development as harmony’, ‘development as sanity’, ‘development as wisdom’, and so on, but found none of them quite satisfactory. He then hit upon a negative formulation that seemed both striking and immediately intelligible: ‘development as destruction’. That apocalyptic phrase seemed to him to be an apt description of the prevalent understanding of what constitutes ‘development’. That statement needs to be elaborated. Consumption is at the heart of the prevailing notions of development. There is an implicit assumption that the higher the level of consumption the greater the degree of development, or in other words, that a civilisation which consumes more is more advanced than a civilisation which consumes less. Consumption requires production; and so we genuflect before the twin gods of consumption and production. 1

(Amartya Sen [1999], Development as Freedom, New Delhi: Oxford University Press).

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(This is not confined to the capitalist philosophy.) Given the demonstration effect of Western ways of living on the rest of the world, and given the reluctance of the West to accept any significant changes in its lifestyles, it seems improbable that there is going to be a general adoption of more modest ways of living. In this kind of developmental process, it is not possible to remain stationary at a certain level of production and consumption; each year’s production and consumption must be higher than the previous year’s, or else stagnation and decline will set in. Thus those who wish to pursue ever rising standards of living are firmly and inescapably mounted on the treadmill of ‘growth’. Inevitably, the draft on natural resources and the pollution and contamination of soil, air and water can only increase. The dysfunctional relationship between humanity and nature is creating a profound disorder, and this is increasing rapidly and seems irreversible. The word ‘entropy’ comes to mind, but one must refrain from venturing into the area of science. There are of course two views on this. Some believe that disaster lies ahead, and others are convinced that such fears are grossly exaggerated. Some would even question the intelligence and/or good faith of the ‘doomsayers’ as they are often derisively described. The author can only state his own position: it seems to him that ‘development’ as now generally understood is irreconcilable with ecological good sense. We must take note of the view put forward by some that ‘development’ is not merely not bad for the health of the environment but is in fact positively good. The argument is that as basic needs are met and countries become more prosperous, they will become more concerned about the state of the environment and will have the necessary resources to bring about improvement. (This is known as the environmental Kuznets curve argument.) It is indeed possible that as we grow richer we will begin to look after our surroundings better. However, this applies only to the immediate surroundings. London and Washington may improve the condition of the Thames and the Potomac, but their draft on the world’s resources will continue and may increase—as will India’s draft as it becomes richer—and may cause devastation elsewhere. Delhi, Mumbai and Chennai may become cleaner, greener and prettier, but the sources from which their needs

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are met may deteriorate. (In this context, it may be useful to remind ourselves of the new concept of ‘ecological footprint’.2) As all countries aspire to reach the condition of America (using ‘America’ as a symbol), the combined effect of their ‘higher standards of living’ is bound to cast an impossible burden on Planet Earth. It is simply not true that ‘development’ as now understood can be reconciled with ‘environment’, using that as a shorthand term. (We need to go beyond the limited and imperfect formulation of ‘Sustainable Development’ that has gained currency, but even that has been a non-starter.)

HYPERTROPHY OF TECHNOLOGY Let us turn now to the second point, namely, that technology has all the answers. Technology is of course part of our lives, and not all of it is sophisticated or ‘high’. Even the use of pulley, rope and bucket for drawing water from a well is technology; so are the humble screwdriver and pencil-sharpener. We use technology all the time; nor is technology something new in human history. The sharpening of a stone to turn it into a weapon, the appearance of the wheel, the turning of the first sod, the use of fire: all these were instances of technology. The Pyramids, the 2,000-year-old Grand Anicut in Tamil Nadu, and the 3,000year-old Maribu Dam in Yemen, were technological achievements. However, it is clear that after the Industrial Revolution there was a dramatic change in the magnitude, scale and complexity of technology, and a Technological Revolution followed. Consider the following illustrative instances of modern technology: 2 The Ecological Footprint is a resource management tool that measures how much land and water area a human population requires to produce the resources it consumes and to absorb its wastes under prevailing technology.... Today, humanity’s Ecological Footprint is over 23 per cent larger than what the planet can regenerate. In other words, it now takes more than one year and two months for the Earth to regenerate what we use in a single year. We maintain this overshoot by liquidating the planet’s ecological resources .... By measuring the Ecological Footprint of a population (an individual, a city, a nation, or all of humanity) we can assess our overshoot, which helps us manage our ecological assets more carefully. Ecological Footprints enable people to take personal and collective actions in support of a world where humanity lives within the means of one planet. Global Footprint Network, http://www.footprintnetwork.org

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deep power-driven borewells and tubewells sucking aquifers dry; mammoth dams that kill rivers (that may not be true of all dams, but it is certainly true of the big American dams); giant trawlers devastating marine life; gigantic oil tankers transporting crude and petroleum products, with the inevitability of oil spills from time to time, with dire consequences for aquatic life and for coastal areas; large modern metallurgical, chemical and petrochemical industries operating under horrendous temperatures and pressures, with the related grave risks, and causing pollution and contamination on a scale that is enormously difficult to remedy or control, and so on.

Destruction runs through that list. The process of paying for that Faustian pact began long ago: catastrophes such as Bhopal, Chernobyl, Exxon Valdez, etc., are not incidental occurrences but ineluctable concomitants to the process of technological advancement that we have embraced ardently. Life in the modern world is no longer human; it is daemonic. Consider for instance the ‘mad cow’ disease in Europe and the ensuing slaughter of millions of animals: that bizarre outcome of what goes by the name of ‘civilisation’ is a pointer to a deep sickness, brought on or mediated by daemonic technology. Again, the infliction of unbearable pain on and the sacrifice of millions of animals in medical research as well as in the pharmaceutical and cosmetics industries is an aspect of technology that we prefer to ignore. The photograph (which used to be well-known some years ago) of a monkey strapped to a chair with probes protruding from its head, was perhaps as defining a picture of modern science and technology as the photograph of a girl running with her back burnt by napalm was of the Vietnam war. (Napalm was technology too!) The pace of technological change began to accelerate some time ago, and has now become autonomous and uncontrollable. Technology is no longer humanity’s servant but its master. At a meeting some years ago, a scholar referred to ‘the mindless pursuit of technology’, but that formulation needs to be reversed. It is no longer we who pursue technology; it is technology that pursues us. Humanity is now under the tyranny of technological change. In any given instance,

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the change may be useful or transforming or trivial or unnecessary or dangerous, but the point is that we cannot opt out of change; we are riding a tiger and cannot dismount. Many will question that analogy as ‘loaded’. It does not occur to them that the ever-accelerating pace of technological change is not necessarily an indication of health but could be a pathological state. There is a story—Nabokov mentions it in a note in Lolita—that some caged apes were taught to draw and that the first picture they drew was that of the bars of their cage. Similarly we seem to be prepared to celebrate our enslavement to technological change. The argument that technology by itself is neutral and that it is the abuse of it that does harm is simplistic or disingenuous. Given the availability of deep borewell/tubewell technology, the depletion and contamination of aquifers is inevitable. Given the availability of advanced mining technology, the stripping or disembowelling of the earth was bound to follow. Given the possibility of the bulk transport of oil across oceans, oil spills and the resulting damage must be expected from time to time. If atom or nuclear bombs exist, as they do, someone is going to drop them somewhere at some time. The dangers are inseparable from the technology, and control is very problematic. Further, the belief that the answers to all the problems created by technology can be found through more technology is both naïve and dangerous. One is well aware of the difficulties of this line of argument. How much technology is good? At what point does it become bad? Was there a stage in the past—say, before the Industrial Revolution—when humanity could have said, ‘We have enough technology, let us stop further technological development’? The answer is that at each stage the next step in technological change seems logical, inevitable and welcome; at no stage are we conscious of crossing a dangerous line, a Lakshman rekha; and once a certain step has been taken, it is difficult to go back. Even if we feel that humanity is now on the wrong path, it is impossible to identify the particular stage at which we entered that wrong path, the particular moment when technological change acquired a life of its own and began to grow like a cancer. We have come a long way from that hypothetical point. We cannot rewrite history; we have to live in the present. However, it is one

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thing to say that we cannot go back to the past and change it, and another to say that we must proceed further unthinkingly towards doom and destruction. Whether that march can be reversed or even slowed down, one does not know; but we must at least begin to think along those lines.

A SICK CIVILISATION The author hastens to add that he is not insensitive to the remarkable demonstrations of human ingenuity and power that we see all around us. Some human achievements have indeed been awe-inspiring, and he is as susceptible to that sense of awe and wonder as anybody else. He also thrills to the sheer beauty of some engineering marvels: for instance, suspension bridges, the most notable one being of course the Golden Gate bridge. Nevertheless, he does believe that ‘civilisation’ as it has emerged in the West and has been adopted by the rest of the world is not a healthy condition but a sickness. Earlier in this chapter the phrase ‘development as destruction’ was offered. A variant of that could be ‘development as disease’. In The Magic Mountain Thomas Mann puts a striking sentence into the mouth of one of the characters: ‘A paradox is the iridescent surface of the rotting mind’. Something similar can be said about the shine and glow of giant modern metropolises. Having regard to the capacity of modern civilisation to inflict harm and damage on Planet Earth, the late Anil Agarwal described it as a ‘toxic’ civilisation’; but that is only a part of what we are talking about here. Consider life in a modern metropolis: unsafe streets, random violence, apartment blocks barricaded like fortresses, and so on. These are almost indices of development! This has nothing to do with the new preoccupation with security; it began long before 9/11. In the midst of all this madness there was a powerful voice of sanity in this country: that of Gandhi. Unfortunately, we have abandoned him. It is unrealistic to talk about Gandhi because nobody is going to listen. Lest these maverick views be described as ‘Luddite’ and obscurantist, it must be clarified that the author is not excoriating development but calling for a change in our understanding of what constitutes

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development. Development need not be destruction or disease; it could be sanity, balance and wisdom. Similarly, technology need not be malign; it could be benign. Even the promotion of handicrafts, local water-harvesting initiatives, rural development programmes, and so on, may need technological underpinning. The author is not asking for the abandonment of technology, but suggesting that it should be humanity’s slave and not its master. How these transformations are to be brought about, the author does not know. Like Abhimanyu in the Mahabharata who could break into a chakravyuha3 but could not get out, he has entered into large issues but finds it difficult to extricate himself. No neat conclusion suggests itself. People wiser than the author will surely find a way out of the labyrinth.

A NEW DIMENSION: A CHANGING WORLD We have not so far taken note of another important dimension to this debate, namely, climate change. The debate about economic development and ecological concerns has been going on for many decades, but despite the appearance of fierce opposition both the protagonists of ‘development’ and the advocates of ‘alternatives’ shared a certain world: a planet with its atmosphere, air, rain, snowfall, rivers, lakes, glaciers, rivers, springs, aquifers, mountains, forests, plains, estuaries, deltas, monsoons, floods, lean seasons, droughts, and so on. Both groups took for granted the continuance of that world yavat chandra divakarau (as long as the moon and the sun do last). One group was impatient to ‘harness’ natural resources for human use and get ahead fast, and the other urged the precautionary principle. That debate has now become a bit dated because the world (about which the second group entertained fears of possible future change) has perceptibly changed. 3 The reference is to a story in the Mahabharata. The brave warrior Abhimanyu knew how to break into a military formation known as chakravyuha, but had not learnt the technique of getting out of it, and got killed.

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One is not referring to natural disasters such as the tsunami that hit us in December 2004 or the earthquakes or volcanic eruptions that have been occurring in many parts of the world. However, consider the retreat of the Himalayan glaciers; the reported shrinking of the ice-caps in the Arctic and Antarctic regions; the unprecedentedly heavy rainfall in Mumbai during the south-west monsoon of 2005; and the sheer ferocity of the thunderstorms and cyclones, and floods of unaccustomed magnitude, in many different parts of the world (Mexico, New Orleans, Miami, parts of Europe, etc., and of course India). The frequency and severity of what are described as ‘extreme events’ appear to have increased, and at least some scholars seem to agree that these are manifestations of the ‘climate change’ that we have been fearing for some time.4 The world has indeed changed. It has changed at least partly because of human intervention for ‘development’: large industry, mining, dams, diversions of rivers, canal irrigation, groundwater-drilling, urban conglomerations, exploding automobile populations, highways (including expressways and flyovers) and railway lines, long-distance power transmission lines, and so on. All this has undoubtedly produced a spectacular world and created unbelievable prosperity (at least for some), but has also brought about or contributed to the irretrievable change that has now become manifest. Humankind appears to have already succeeded in partially damaging its habitat beyond repair. The author’s intention is not to seek cathartic relief by rhetoric, or blame earlier generations for folly. Eminent statesmen, scientists, technologists, engineers, economists, planners and administrators of the past were engaged in an effort to make India prosperous, and we cannot fault them by hindsight. (We are talking about India, but the point has wider applicability.) The pity is that we did not see the need for re-thinking early enough. Indeed, many do not see it even now, and become very angry with those who advocate such re-thinking. The point is not that in the old debates some were right and the others wrong, but that the old debate is now dated and a new debate (or preferably, consultation) is called for. What one is saying is that the world of 4 See for instance ‘Climate Change’, Weather Centre, BBC Homepage, 29 June 2006; Fred Pearce, ‘Note on Climate Change’, NewScientist.com, 19 January 2006.

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which the two opposing groups had divergent perceptions (which led to divergent prescriptions) no longer exists. We have moved into a different world, and have to start from scratch and learn the world afresh. It is of course true that an enormous amount of scholarly and research work on global warming and climate change has been going on all over the world. However, that is not the same as ‘learning the world afresh’. What is being produced is a vast body of new knowledge. Thinking afresh on the basis of that knowledge is another activity altogether. What is needed is not just the ‘factoring in’ of the new knowledge into old-style thinking and planning, but new thinking. Perhaps new thinking is taking place already here and there, but it is not (so far as one knows) widespread, and has not become a powerful current. The plea ‘The world has changed; let our thinking change’ is addressed not to any particular group but to all alike. What is being suggested is that eminent people of the most diverse kinds, such as scientists, engineers, technologists, administrators, politicians, economists, sociologists, environmentalists, social workers, activists, NGO leaders, campaigners for human rights or for the empowerment of disadvantaged groups or of women, and others, should turn aside from their respective activities briefly, sit together, reflect on our changing— changed—world, and chart new courses of action. That may strike some as a quixotic and laughable idea, but it is not a joke: it is meant seriously. It may be the voice of sanity or that of naïveté, but it is raised in all earnestness.

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Epilogue This book was planned to end with the preceding chapter. This Epilogue is an unplanned afterthought. The last chapter constituted a declaratory statement—a personal manifesto—of a certain position on the environment/development debate. It was deliberately stated in a fairly simple and uncomplicated (perhaps even a simplistic and naïve) manner. However, there is a vast literature on these matters, and a wide range of divergent positions have been articulated by many writers. It seemed necessary to indicate to the reader roughly where this book stands in relation to that rich, complex and perplexing diversity of positions. Hence this Epilogue. Without attempting a literature survey, a few books will be referred to, which, taken together, cover most of the strands in the debate. Sandra Postel’s booklet Liquid Assets: The Critical Need to Protect Freshwater Ecosystems (Worldwatch Paper 170, The Worldwatch Institute, Washington DC, 2005) is essentially a plea to all to pull back from the brink. She is not (so far as I can see) a dissenter—as I am— from the prevailing view of ‘development’, the dominant philosophy of capitalism, market forces and globalisation, and the celebration of technological change. However, she feels strongly that the limits on humanity’s drafts on natural resources and its impacts on nature have been reached, and that disaster lies ahead if we do not make radical changes. I found in her book strong support for my own plea in the last chapter.

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John S. Dryzek’s The Politics of the Earth: Environmental Discourses, (Oxford University Press, 1997), offers a comprehensive survey of the terrain and a very useful categorisation of attitudes to environmental/ ecological issues. In that categorisation,‘Survivalists’ do not question capitalist development but feel that there are limits to what humanity can do by way of drafts on natural resources and the damage it can inflict on nature, and that these limits are in danger of being crossed, if they have not been crossed already. (Sandra Postel would fall into this category.) ‘Prometheans’, on the other hand, firmly adhere to the philosophy of human dominance over (conquest of ) nature and believe that there are no limits to this; that there is no such thing as ‘carrying capacity’; that as certain resources get depleted, substitutes and alternatives would emerge; that the problem is not one of ‘limits’ that we must not cross but of the damage that we cause; that this can be remedied through technology; and that ‘development’ as now conceived can go on indefinitely. (For good measure, they also advance the dubious environmental Kuznets Curve argument. 1) ‘Radical Greens’ share the Survivalists’ perception of limits but go beyond them in questioning the prevailing concept of ‘development’ and calling for alternatives. ‘Administrative Rationalists’ take short-term views and believe in finding piecemeal procedural or institutional solutions to specific problems as they emerge. ‘Economic Rationalists’ believe in translating all problems into economic ones for which economic answers (prices, incentives, disincentives) can be found. This category includes those who believe that the answers to all problems lie in free markets. Dryzek finds limitations in almost all these approaches, and makes a plea for ‘ecological democracy’ which essentially means bringing together the holders of divergent views and bearers of divergent interests and concerns in an effort to find a reasonable, negotiated consensus, or an acceptable modus vivendi. 1 This is the argument that as countries embark on the developmental path the curve of damage to the environment may go up, but as they become more prosperous, they will become more concerned about the environment and will have the resources to put into its protection, and the curve will come down steeply. This was referred to in Chapter 28. Apart from the criticism offered in that Chapter, it may be added that the figure of a rising and then declining curve proves nothing: it is merely the graphic representation of the prose argument and adds nothing to it by way of corroboration.

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Mark Sagoff is one of the writers that Dryzek cites, but his position in Price, Principle and the Environment (Cambridge University Press, 2004) is rather strange. He agrees with the Prometheans as against the Survivalists on the doctrine of ‘limits’. At the same time, he sharply criticises the environmental and ecological economists for accepting the hegemony of economics, trying to quantify environmental/ecological values in terms of money, justifying them on economic grounds, and regarding the ecological system and the natural environment essentially as ‘resources’ for human use or as sources of ‘ecological services’. He strongly believes that the natural environment—forests, rivers, lakes, wildlife, etc.—have an intrinsic value in themselves, and not merely as resources for human use, and need not and should not be brought into any cost-benefit calculus through the route of assignment of economic value. Just as one is about to put him in the category of Radical Greens or even in the school of Gaia,2 he proceeds to surprise one by revealing an equally strong belief in market forces and free enterprise. How he manages to combine those two beliefs is not entirely clear to me. (There is a school of thought that believes that environmentalist objectives can be achieved through markets, but I doubt whether Sagoff would accept that proposition. In my view, ‘market environmentalism’ is an oxymoron.) A phenomenon that Dryzek mentions but does not discuss extensively is the Environmental Justice movement in the USA. Environmentalism began as a concern for nature, the wilderness, rivers, salmon, etc., and had little to say on issues of social justice; it could even have been described as elitist in its approach and orientation. Separately, another set of people were espousing the cause of the inequities and injustices suffered by disadvantaged groups such as the hispanics, the coloured people, the native American tribes, etc., and fighting for their rights; they had no special interest in environmental issues. However, the two movements tended to converge as it began 2 If the Wordsworthian attitude to nature had prevailed in the West, the postulation of a mystique or religion of ‘Gaia’ might not have been necessary. It is not necessary in the Hindu tradition because the right relationship between humanity and nature, and the integration of the two into a harmonious whole, are implicit in the concept of dharma.

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to be found that environmental degradation tended to affect the poor, the coloured, and so on, more than the whites and the rich, and further that the efforts of the latter groups to preserve the quality of their own environment often resulted in transferring pollution and contamination (toxic dumps, landfills, etc.) to the poor and depressed areas. The growing recognition of this tended to add a social justice dimension to the environmental movement, and thus the Environmental Justice Movement was born. This has made much headway in the US and is now spreading to other countries. Let me also draw the reader’s attention to a recent and strikingly original book: The Environmental Endgame by Robert L. Nadeau (Rutgers University Press, 2006). It is a strongly interdisciplinary book of formidable scholarship in a wide range of fields, characterised by much passion and eloquence. Its argument is roughly as follows: •

•

•

•

By now, there is a strong body of hard scientific evidence to show that humanity has inflicted enormous and almost irreversible damage on its habitat; if disaster is to be averted, this process must be arrested and reversed very soon; the time available for this is extremely short. However, no such corrective action can take place in the world as at present constituted and governed, because it is divided into sovereign nation states each of which, faced with crucial choices between global concerns and perceived national interests, will invariably choose the latter. Corrective action is also unlikely and impossible in the context of the prevailing economic philosophy; neoclassical economics is simply incapable of incorporating ecological concerns. It follows that if a radical change of course is to be brought about and disaster averted, there is need for (a) a new system of world government, and (b) a new economics.

Underlying that diagnosis and prescription is a radical criticism of classical physics, neoclassical economics and politics, the central point of which is that none of them is based on the right view of the parts and the whole. The following is a very rough summary of the thesis:

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The ecological system—the world—as a whole is a highly complex, integral, inter-related system or set of systems. The whole is not the sum of the parts. The right relationship between the whole and the parts was not recognised in classical physics, and consequently not recognised in other disciplines that consciously based themselves on classical physics, such as neoclassical economics or even Darwinian evolution theory. Attempts by environmental and ecological economists to bring environmental and ecological concerns within the ambit of neoclassical economics were bound to fail, and are in any case not recognised by mainstream economists. The lines drawn by politics on the globe, dividing the world into nation states, have nothing to do with the reality of the totality of a complex, inter-related Planet.

I hope that the capsule summary above does not unduly distort Nadeau’s elaborately argued thesis. Discussions of his criticism of physics and economics, and of his advocacy of a new global governance system, are beyond the scope of this book. For my present purpose, I take note of his warning of impending disaster and his call for urgent corrective action transcending the prevailing economics and the religion of markets. Having presented that broad canvas on environmentalist thinking of diverse kinds, let me now indicate where I stand in relation to that picture. I find myself accepting and using bits and pieces of the different positions, but the one position which I wholly reject is that of the ‘Prometheans’. Their theory that substitutes will be found for depleting resources may be partially true, but a massive and relentless draft on natural resources cannot go on forever. Besides, the distinction between draft on and damage to nature, and the argument that the former can go on and that the latter can be remedied, seem to me to be specious. The continuous infliction of damage on nature must sooner or later result in the reduction of the availability of natural resources; the ‘pollution’ argument and the ‘limits’ argument tend to converge. Further, the facile assumption that the harm done by humanity to Planet Earth can be remedied seems difficult to accept. That there are

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indeed limits, that some of them have perhaps been crossed and that the harm that humanity has done to its habitat is perhaps becoming irreversible, is being brought home to us every day. The shrinking of glaciers, the melting of the Arctic ice cap, the increased intensity of extreme events, and so on, are deeply alarming; and many if not all scientists seem to believe that human activity is responsible for this. Without expressing any dogmatic opinions on these difficult issues, it is possible to say that continued adherence to Prometheanism, whatever its plausibility in an earlier age, is simply not possible any longer. Further, while substitutes or alternatives may be found for oil or natural gas, it is clear enough that there is no substitute or alternative for water; that we are putting an increasing and unsustainable pressure on that resource through our insatiable demand for it; that through the generation of waste and through pollution and contamination of water sources we are reducing supply; that the ‘limits’ argument does indeed apply to water; and that the limits have been reached, if not crossed. It seems to me that one can maintain a position that combines elements from the different categories that Dryzek identifies, except of course the Promethean one. One can be a ‘radical green’ in the sense that one believes in the intrinsic and existential value (rather than an instrumental one) of rivers, lakes, forests, and nature in general. One can have a sense of reverence for nature that comes close to being mystical or religious. One can deplore the adversarial relationship between humanity and nature that has emerged under the western, Promethean legacy of defiance of the gods, and draw attention to the contrasting Indian legend of Bhagiratha who brought the Ganga to earth in a prayerful, reverential spirit. The adoption of such a position does not preclude one from borrowing the concept of ‘limits’ from the ‘Survivalists’. ( I would, however, add a Gandhian dimension to the survivalist position: see the quotation about ‘need’ and ‘greed’ in Chapter 27, footnote 3.) One may argue for a radical change from the prevailing ideas of ‘development’, but while hoping and waiting for such a transformation to happen (which may take a very long time indeed, if it ever comes), one can point out to those who live in the ‘real world’ of resurgent capitalism and globalisation that their world is under threat. Similarly,

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while asserting the inherent value of nature and expressing reservations about quantifying that value and putting it into an economic calculus, one may nevertheless use the language of economics and talk about Cost-Benefit Analyses, Environmental Impact Assessments, etc., in particular contexts—for instance, when discussing a project such as the Inter-Linking of Rivers Project or the Sethusamudram Project— to show to the proponents of the Project that it does not make sense in their own terms. (One could even find some use for the ‘administrative rationale’ of limited procedural and institutional correctives.) If economic and/or administrative rationale enables us to ward off one bad project or defeat one unsound ‘developmental’ decision, that in itself is clearly a gain. However, Sagoff ’s warning must be kept in mind; we must be wary of being corrupted by the language that we use and of being co-opted into a group to which we do not wish to belong, or of being influenced by a way of thinking to which we do not subscribe. As for Dryzek’s ‘ecological democracy’, it is a good idea and one can assent to it. Cooperation is certainly better than confrontation, and dialogue is preferable to dispute. However, two points must be noted. First, not all conflicts can be resolved through dialogue; some conflicts may be too deep and bitter to be so resolved. Besides, in some cases, one side may be wholly right and the other wholly wrong, and in such a situation it is not clear that resolution through dialogue (meaning a compromise) would be a good thing to bring about. In certain cases, a hard choice may have to be made between contending groups. Second, ‘ecological democracy’ is not a guarantor of sanity or wisdom. For instance, if a national referendum had been held in India on the ILR Project, the proponents of the Project might have won by a large margin. That would have been a democratic decision; but would it necessarily have been a sane or wise one? While wholly accepting the need for bringing decision-making out of the closed rooms of bureaucrats, technocrats and experts into the world of the people and making it fully contestable, consultative and participatory, it is necessary to make sure that the debate is an informed one, and that all aspects are fully taken note of. In that context, we need not merely the scientists, engineers, economists, sociologists and so on, but also and particularly the radicals, the passionate espousers of

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causes, the activists and social mobilisers. Without all of them, there can be neither openness nor wisdom. In conclusion, there are three strands in this debate: (i) limiting our ‘ecological footprints’; (ii) keeping in mind the imperatives of equity and social justice; and (iii) ensuring harmony between different groups, between countries, and between humanity and nature. Those indeed are the concerns of this book, and are highlighted in its sub-title.

Note: Thomas Homer-Dixon’s latest book The Upside of Down came to my knowledge too late for discussion in the Epilogue. The Reports of the Inter-Governmental Panel on Climate Change are also just coming in (April–May 2007).

Appendix I

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Appendix I List of Author’s Writings Drawn Upon

The following recent writings (from 2003 onwards) by the author have been used to varying degrees from the negligible or minimal to the significant.

A. Books WATER: Perspectives, Issues, Concerns, New Delhi: Sage Publications, 2003.

B. Papers/Chapters Contributed to Edited Books ‘Water and Security: A Reexamination’, in Adil Najam (ed.), Environment, Development and Human Security— Perspectives from South Asia, Lanham, New York and Oxford: University Press of America, Inc., 2003.

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Contribution to the Chapter on ‘Water’ in Tim Dyson, Robert Cassen and Leela Visaria (eds), Twenty-first Century India—Population, Economy, Human Development, and the Environment, Oxford University Press, 2004. ‘Water: India’s Relations with its Neighbours’, Chapter 16, in K. Santanam and Ramakant Dwivedi (eds), India and Central Asia: Advancing the Common Interest, New Delhi: Institute of Defence Studies and Analyses and Anamaya Publishers, 2004. Paper in Dolly Arora (ed.), Social Sector Development—From Outlays to Outcomes, Delhi: IIPA and Daanish Books, 2005, pp. 97–104. ‘River-Linking Project: A Critique’ in Yoginder K. Alagh, Ganesh Pangare and Biksham Gujja (eds), Interlinking of Rivers in India: Overview and Ken-Betwa Link, New Delhi: Academic Foundation, 2006. ‘Transboundary Conflicts’ in Joy, K.J., Biksham Gujja, Suhas Paranjape, Vinod Goud and Shruti Vispute (eds), Water Conflicts in India: A Million Revolts in the Making, Routledge, New Delhi, 2006.

C. Articles in Journals and Newspapers ‘Water in Pakistan’, (review of Kaiser Bengali [ed.], The Politics of Managing Water), The Book Review, vol. 27, no. 9, September 2003. ‘Himalayan Waters of Hope’, (review of Bhim Subba, Himalayan Waters, Panos South Asia, Kathmandu, 2001), Infochange Books and Reports, http://www.infochangeindia.org/bookandreportsprint49.jsp ‘Water: Some Crucial Questions’, The Indian Journal of Public Administration, vol. 49, no. 3, July–September, 2003 (Special Number on Water Resources Management). ‘Water Harvesting: A Policy Perspective’, The Hindu, 27 January 2004. ‘Water through the Security Lens’, Contemporary India, Journal of the Nehru Memorial Museum and Library, vol. 2, no. 2, April–June 2003. ‘Towards a Re-Ordering of Water Law in India’, Indian Juridical Review, vol. 1, National University of Juridical Sciences, Kolkata, 2004. ‘Beyond Drainage Basin and IWRM: Towards a Transformation of Thinking on Water’, paper on the Website of the University of California, Santa Cruz, e-Scholarship Repository, 2 May 2004, http://www.repositories.cdlib.org/ cgirs/CGIRS-2004–07. ‘Looming Threat to Water Security’ (review of ‘Blue Gold’ by Maude Barlow and Tony Clarke, LeftWord Books), The Hindu, 25 May 2004.

Appendix I

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‘A Water Miscellany’ (review of Patrice Cohen and S. Janakarajan [ed.], ‘Water Management in Rural South India and Sri Lanka….’, Institut Français de Pondichéry, 2003), The Book Review, May–June 2004. ‘The UPA and the Cauvery Dispute’, The Hindu, 14 June 2004. ‘Punjab on the Rocks…’ (article on the Punjab Assembly’s Termination of Water Agreements Act), The Indian Express, 15 July 2004. ‘The Centre Can Legislate on Water’, under ‘Should Centre Apportion Waters?’ in The Economic Times, 16 July 2004. ‘Rising Rivers, Arid Lands’, editorial page, The Times of India, 20 July 2004. ‘Punjab Water Imbroglio’, The Hindu, 26 July 2004. ‘Reassess Water Needs—Better Management Can End SYL Crisis’, The Tribune, 26 July 2004. ‘Punjab Water Imbroglio: Background, Implications and the Way Out’, Economic and Political Weekly, 31 July 2004. ‘Cauvery: Disappointments, Appeals’, The Hindu, 9 November 2004. ‘Preserving Proprieties’, The Hindu, 14 December 2004. Reproduced in The Indian Advocate, vol. 32, 2004. ‘Towards a Deeper Understanding of Tank Irrigation’, The Book Review, vol. 28, no. 12, December 2004. ‘Indus Treaty: “Core” and Other Issues’, Economic and Political Weekly, 12 March 2005. ‘UNICEF’s Experience in Rural Water Supply’, review of Water—A Matter of Life and Death by Maggie Black with Rupert Talbot, New Delhi: Unicef and Oxford University Press, The Hindu, 26 April 2005. ‘South Asian Water Concerns’, South Asian Journal, April–June 2005, Lahore. ‘Indus Treaty and Baglihar: An Overview’, South Asian Journal, April–June 2005, Lahore. ‘Water in South Asia: Inter-Country Relations’, paper included in the booklet for the SAFMA South Asian Parliamentary Forum, Bhurban, Murrie, Pakistan, 14–21 May 2005. ‘Water: A Plea for Change’, The Great Concern, Journal of Indo-Global Social Service Society, vol. 30, no. 1, 2005. ‘Baglihar, Neutral Expert and Differences’, The Hindu, 9 June 2005 (a clarification in a subsequent issue.) ‘River-Linking Project: Learning from Experience’, a review of S.P. Ravi, Tragedy of Commons: Kerala Experience in River-Linking , Kerala: River Research Centre, and Delhi: South Asia Network on Dams, Rivers and People, 2004, The Book Review, New Delhi, 6 June 2005. ‘Indus Treaty: A Different View’, Economic and Political Weekly, 16 July 2005.

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‘Water: Striving for Sustained Supply’, The Tribune, Chandigarh, Special Issue for 125th Anniversary, 24 September 2005. Article in the Section ‘Debate: Is a Water Crisis Imminent in India?’ The Economic Times, 18 October 2005. ‘Baglihar: The Points at Issue’, The Hindu, 19 October 2005. ‘The Politicization of Water’, Infochange Agenda, Issue 3, October 2005. ‘Water Policy, Pricing and Regulation and Related Issues’ (Wateraid Workshop Keynote Address), Wastelands News, vol. 21, no. 1, August–October 2005 (Journal of SPWD). ‘Beyond Outlays and Outcomes: The Water Scene in India’, The Indian Journal of Public Administration, vol. 51, no. 3, July–September 2005 (Special Number on Social Sector Development). ‘Towards Universal Guidelines on Water Use’, The Hindu, 27 December 2005. ‘Differences over Baglihar’, South Asia Politics, vol. 4, no. 9, January 2006. Review of Ganesh Pangare, Vasudha Pangare and Binayak Das, Springs of Life: India’s Water Resources, Academic Foundation, New Delhi 2006, Economic and Political Weekly, 25 February 2006. ‘River Dispute and its Impact on Environment’, review of Libor Jansky et al., The Danube: Environmental Monitoring of an International River, UN University Press, 2004, International Studies, Journal of the School of International Studies, JNU, vol. 43, no. 1, January–March 2006. ‘Notions of Water Scarcity’, review of Lyla Mehta, The Politics and Poetics of Water, New Delhi: Orient Longman, 2005, The Hindu, 21 March 2006. ‘Narmada Project: The Points at Issue’, The Hindu, 13 April 2006. ‘Narmada Project: Clearing the Confusion’, The Hindu, 17 April 2006. ‘Some Questions for the Cauvery Tribunal’, The Hindu, 24 April 2006. ‘Does Development Entail Deprivation?’, The Economic Times, Perspectives, 25 April 2006. ‘Narmada: The Cost of Delaying Rehabilitation’, The Hindu, 1 May 2006. ‘Abandoning the Displaced’, The Hindu, 10 May 2006. ‘Cauvery Dispute: Making Sense of the Muddle’, The Hindu, 16 May 2006. ‘For an Equitable Rehabilitation Policy’, Hindu, 19 October 2006. Water Resource Management: Some Comments’, Economic and Political Weekly, 4 November 2006. ‘Damned if they Do’ (on the Mullapperiyar Issue), Indian Express, editorial, 27 November 2006. ‘Towards Good Sense on Mullapperiyar’, Economic and Political Weekly, 6 January 2007. ‘River Disputes, Development, Imperialism: A New Analysis (A review of Radha D’Souza’s book), The Book Review, January 2007.

Appendix I

253

‘Cauvery Award in Constitutional Perspective’ The Hindu, 7 February 2007. ‘Cauvery Award: Some Questions and Answers’, Economic and Political Weekly, 24 February 2007. ‘Baglihar: Resolving the Differences’, The Hindu, 1 March 2007. ‘A Dispute Runs Through It’, The Indian Express, 10 March 2007. ‘Cauvery Award and Karnataka’, The Hindu, 13 March 2007.

D. Unpublished ‘Water in South Asia: a Tour D’Horizon’, paper contributed to a book being edited by Kuntala Lahiri-Dutt (under publication). ‘Water Governance, Politics, Policy’, paper contributed to a book edited by Vishwa Ballabh, IRMA, Anand (under publication). ‘Water and the Laws in India’ paper for Subhash Kashyap’s book on the Constitutional History of India (under publication). Lecture on ‘Development As Destruction’ at the Centre for Environment and Food Security’s Fifth Debate on Economic Growth versus Ecological Security, 5 September 2005. Lecture at the Opening Plenary in UNDP-Jal Bhagirathi Regional Conference on ‘Towards a Sustainable Water Future: Strategies to Address Competing Claims’, Jodhpur, 29–30 March 2006. Lecture on ‘Water: Understanding the Crisis’ for CEFS Freedom from Hunger Series, 10 May 2006. Lecture on the occasion of releasing Shobita Jain and Madhu Bala (eds), The Economics and Politics of Resettlement in India, Pearson/Longman, 2006, at New Delhi, 6 July 2006.

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Index

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Index Abhimanyu, 238 Action Plan on water, proposed, 224ff Administrative rationalists, 247 Agarwal, Anil, 237 Agriculture, irrigated, 24 (see irrigation); rainfed, 25 Ageyman, Julian, 130 Ahars and pynes, 152 Alagh, Y.K., 17, 49 Alamatti Dam, dispute, 33, 107 Amazon River, 14 Amte, Baba, 126 Andhra Pradesh, 33, 49; Water, Land and Trees Act (2002), 176 Annual Water Resource (AWR), 209–10 Aquifers, depletion and contamination of, 22, 26–27, 41, 146, 156 Aral Sea, 54 Arsenic in groundwater, 193 Asian Development Bank (ADB), 18, 177, 201, 215–16 Available and usable water resources, 36– 37, 59 Baglihar Project, 66, 71, 73, 79–85, 107 Bahuguna, Sunderlal, 222 Balochistan, 182

Bandyopadhyay, Jayanta, 49 Bangalore, 88 Bangladesh, 33, 55, 108, 111, 191ff Basic Water Requirement (BWR), 202ff, 205 Beas River, 64, 96, 98, 101 Bengali, Kaiser, 116, 183, 185 Betwa River, 49 Bhakra-Nangal Project, 74, 101–02 Bhopal Gas Tragedy, 235 Bhutan, development/water/ environment policy of, 188, 189 Bihar, 49, 54–55, 185 Brahmaputra River, 14, 55, 67 Briscoe, John, 17, 135fn Cauvery basin, 38, 222; Dispute, 33, 54, 86ff, 90–92, 94, 98, 111, 222; Family, concept of, 88, 94 (see also Track II); River, 38, 101; River Authority, 87, 114; Tribunal, 87, Assessors’ Report, 90–93, differences, 90, Interim Order, 87, Final Order, 93–94 Central Groundwater Authority, 26 Centre for Science and Environment, 39, 42fn, 222 Chakravyuha, 238fn

264

Towards Water Wisdom

Chhattisgarh, 135, 222 Chauhan, Prithviraj, Minister of State, 121 Chenab River, 64–66, 79, 101, 109 Chennai, 50, 88 Chernobyl, 235 China, Three Gorges Project, 47, 54 Chopra, Kanchan, 59 Chuka Project, 190 Civilisation, 237 Civil society/community, 20, 43, 88, 152– 60, 175–76, 222, 226–28 Climate change, 238–40 Coca Cola, 135, 157 Collins, Robert O, 108fn Commodity (tradable commodity, economic good), water as, 18–19, 35, 158, 203 Common pool resource (CPR), water as, 19, 42, 157 Conflicts, forms of, 134ff, river water disputes: factors, concerns, principles, 106–10, 112, 115, 120; (See also InterState river water disputes) Constituent Assembly, 152 Constitution of India, Article 262, 25; basic entries relating to water, 152; limited understanding of water, 151– 52; case for a constitutional statement on water, 173ff; Seventy-third and seventy-fourth amendments, 159 Cost-Benefit Analysis (CBA), 247 Crisis, water (also crises), 17–20; perceptions of, 41–43; of availability, 18, 36; of understanding, 44–45 Dams, large, 59–60; as foci of conflicts, 106ff Danube River, 14, 109 Darjeeling, 50 Declaration on Water, A, 224ff Delhi Government, 139, 222 Delhi Jal Board, 39, 139, 140, 159

Delhi Public Distribution System, 222 Delhi Right to Information Act, 222 Demand for water (agricultural, industrial, municipal, domestic) for, 36– 40; concept of water demand, 37 Development, 129; and Distress, 130ff; and Environment, 231ff, 246; as destruction, 232; as disease 237, goals, 119–20; redefinition of, 116 Devolution to PRIs, 157 DHAN Foundation, 154fn, 221 Dharma, 224, 243fn Displacement, resettlement and rehabilitation, 20, 29, 32, 56, 120, 164 Disputes, Inter-State: (see Inter-State river water disputes; see also Conflicts) Dixit, Ajaya, 111 Drainage Basin Management, 203 ‘Drinking Water Missions’, 23 Drought, 48, 51–52 Dryzek, John 242–43 Dublin–Rio principles, 177fn, 203, 211 Ecological democracy, 242 Ecological flows (see Minimum Flows); footprint, 234, 241; systems, 48 Economic and Political Weekly, 49, 65, 107fn Economic rationalists, 242 Economy, Elizabeth, C., 54fn Egypt, 108 Eminent domain, 155 Enron case, 57 Environment Policy, National (see National Environment Policy) Environment (Protection) Act 1986, 30, 160 Environmental flows (see Minimum Flows) Environmental Impact Assessment (EIA), 29, 160, 170, 247 Environmental Justice movement, 243– 44 Environmental Kuznets Curve, 233, 242

Index Eradi Tribunal (see also Ravi-Beas), 97 Establishment (Indian water establishment), 35, 42 Ethiopia, 108 Expert Committee on ILR Project, 46 Exxon Valdez accident, 235 Falkenmark, Malin, 108–09 Farakka Barrage, 55, 107 Faustian pact, 235 Federalism, 106 Flood Action Plan (Bangladesh), 192 Flood(s), 13, 26; and disaster preparedness, 199; and drought 47–48, 51, 194; and embankments, 196; and intervention in nature, 53; and water transfer, 52; control, 50, 195; diversion of, 50; moderation, 195; plains, 51 Food production, increase in, 21–22 Forest Conservation Act, The, 1980, 160 France, 192 Gabcikovo-Nagymoros Project, 109 Gaia, school of, 243 Gandak River, The, 55 Gandhi, Indira, 96, 99 Gandhi, Mahatma, 217, 226, 226fn, 237, 246 Gandhi, Rajiv, 97, 99 Gandhi, Sonia, 166fn Ganga (Ganges), 14, 109, 111, 204; system, 185, 190, Water Sharing Treaty, 70, 108–09, 112fn, 145, 192; Cauvery Link, 45; Damodar-SubarnarekhaMahanadi Links, 55 Ganga-Brahmaputra-Meghna system (GBM), 67, 190 Garland Canal idea, 45 Gazder, Haris, 65 Gleick, Peter, 39, 153 Global Policy Forum, 108fn Global Water Partnership (GWP), 19, 189, 201–03, 214fn, 227

265

Godavari Water Disputes Tribunal, 114 Goldar, Biswanath, 59 Governance, water, 28–30 Government of India, 18, 46, 55, 57 Green Revolution, 53 Groundwater use (exploitation, mining, re-charge, depletion), 22, 25–26, 28, 33, 38, 58–59, 145–47; ownership of, 157–58, regulation, 33, 213ff (see also aquifers) Group of Ministers (on Sardar Sarovar rehabilitation), 121–23, 131–32 Guhan, S., 87–88 Gujja, Biksham, 49 Gyawali, Dipak, 111fn Harmon Doctrine, 102, 176 Harvesting, water, 52, 58–60, 58fn, 153, 153–54fn, 155, 156 (see also rainwater harvesting, watershed development) Haryana, 95, 96 Hashim, S.R., 17 Hazare, Anna, 152fn, 221 Head-reach farms, 32 Helsinki Rules, 110, 145 Himal (journal), 111fn Himalayan rivers, 181, 186, 188, 191, 194, 199 Hindu, The, 58, 173 Hiwre Bazaar, 153fn Homer-Dixon, Thomas, 248 Hungary, 109 Hydroelectric potential in the Himalayas, 186, 187, 190; power, 13 Hydrological cycle, 12; unity 12, 33, 113 Hydrosphere, concept of, 12 India, 63–65, 68, 70, 72–77, 108, 111–15, 184, 187, 194, 199; pre-colonial, 151; and South Asia; 194ff Indian Juridical Review, 178 Indus Basin, 183; waterlogging and salinity in, 183

266

Towards Water Wisdom

Indus Commission, 64–66 Indus River, 14, 63–64, 76; system, 63, 68 Indus Waters Accord 1991 (in Pakistan), 184 Indus Waters Treaty, 65–77, 79–84, 183; Court of Arbitration, 69 Inter-Linking of Rivers Project (ILR), 45, 46–57, 58; Brahmaputra–Ganga Link, 55; Brahmaputra–Teesta Link, 55; Concerns of Bangladesh and Nepal, 198–99; Himalayan component, 55; Peninsular Component, 55 Integrated Water Resource Management (IWRM), 203–05, 211, 214, 216 Intergovernment Panel on Climate Change (IPCC), 248 International Conference on Water and Environment, Dublin, 177fn International Convention on Freshwater, need for, 211 International Monetary Fund (IMF), 216 International Water Management Institute (IWMI), 201 Inter-State river water disputes; InterState Water Disputes Act 1956 (amended 2002), adjudication under, 25, 33, 87, 92, 97, 100, 110, 112, 114– 15, 116 Irrigation (from groundwater, surface water, large dams, canals), 13, 22–26, 28, 29, 32, 34–35, 38, 216; charges 32; Management Transfer (IMT), 24; Participatory Irrigation Management (PIM), 32; water for, 52, 152 Irrigation Acts, Irrigation and Drainage Acts, 154 Jammu and Kashmir (J&K), 66, 71, 75, 77, 96, 101 Janakarajan, S., 88 Jansky, Libor, 109 Jhelum River, 64, 66, 101, 109

Johads, 152 Johnson, Dr Samuel, 227fn Joint Rivers Commission, 114 Kalabagh project (Pakistan), 107, 184, 185 Kargil, 65, 66 Karnali Project, 186 Karnataka, 33, 48, 86–89, 91–92, 94, 102, 108, 145 Kashmir issue, 66 Kejriwal, Arvind (see also Parivartan), 222 Ken-Betwa Link, 49 Kerala, 54, 91, 94, 107fn, 135 Kerala High Court (see also Plachimada), 135, 136 Kishenganga Project, 66, 71, 73 Kolkata, 50 Koppen, Barbara van, 213ff (see also Tushaar Shah) Kosi River, 55 Krishna Waters Dispute Tribunal, 114 Kumar, Meira, 121 Kumari, Poonam, 19fn Kurichu Project, 190 Lafitte, Raymond, 81, 83, 84 Land Acquisition Act 1894 (LAA), 30, 160 Large Projects, 58, 59 Longowal, Sant Harchand Singh, 97 Lifts (to high areas), 51, 53 Limits, 9, 242–43, 246, 248 Lobo, Crispino, 154fn Lolita, 236 Ma, Jun, 54fn Mad cow disease, 235 Madhya Pradesh, 48 Madras Institute of Development Studies, 87, 88, 91, 105, 111, 137–38, 222; Cauvery Initiative of MIDS, 222 Magic Mountain, The, 237

Index Magsaysay Award, 43fn, 222fn Mahabharata, The, 238fn Mahakali Treaty, 70, 111, 111fn, 187, 196–98 Mahanadi waters, 55, 145 Maharashtra, 33, 38, 48, 54, 153fn, 176, 239 (Mumbai) Maharashtra Water Regulatory Authority Act, 176 Mainstream, 19fn Major and Medium (M&M) Projects, 22, 24, 32, 215 Malik, R.P.S., 135fn Management, water, 35, 77, 159 Mann, Thomas, 237 Markets, water, 18, 143–44, 146, 147, 211 Meghna River, 67, 190–91, 196 Mestrallet, Gerard, 19fn Metro Water, Chennai, 145 Millennium Development Goals (MDG), 23 Minimum flows, 206ff Ministry of Environment and Forests, 25, 126, 166, 169 Ministry of Rural Development, 171 Ministry of Tribal Affairs, 171 Ministry of Water Resources, 18, 55, 121, 125–26 Mississippi River, 14 Morse Commission, 126 Mosse, David, 152fn Mullapperiyar Dispute, 33, 107, 107fn Multi-Stakeholder Dialogue, 138 MYRADA, 154fn NGOs, 29 Nabokov, Vladimir, 236 Nadeau, Robert L., 245 Napalm, 235 Narain, Sunita, 42 Narasimhan, T.N., 58, 173, 226 Narmada Bachao Andolan (NBA), 42fn, 119, 123, 127ff

267

Narmada Control Authority, 120–21; Project (see also Sardar Sarovar) 107; valley, 42, 120, 123, 131, 229; Water Disputes Tribunal, Award, 123–24, 132 National Advisory Council, 162–63, 169 National Commission on Integrated Water Resource Development Plan (NCIWRDP), 3, 27, 36ff, 50 National Democratic Alliance (NDA), NDA Government, 47 National Environment Policy (draft) 2004, final 2006, 162, 170–71 National Rehabilitation Commission (suggested), 166, 170–71 National Rehabilitation Policy (Draft) 2006, 162 National Resettlement and Rehabilitation Policy 2003, 29, 163, 169 National Rural Employment Guarantee Act, 168 National Water Development Agency (NWDA), 55 National Water Law, case for, 176ff National Water Policy (NWP) 1987, 23, 162, 169, 206, 215 National Water Policy (NWP) 2002, 23, 162, 206 Natural Flows, 207 Navdanya, 42fn Needs, water (see also demand), 103–04, 116 Nehru, Jawaharlal, 64 Nepal, 33, 55, 111, 185; Nepali Himalaya, 186; projects in, 186ff Nepal’s view of water, 187–88 Neutral Expert (Indus Treaty), 79–85 Nile Basin Initiative, 108 Nile River, 14, 204 Official Secrets Act 1923, 30 Ooty, 50 Operation and Maintenance (O&M), 29 Orissa, 49, 145

268

Towards Water Wisdom

Oversight Group (Narmada Rehabilitation), 121–23, 131ff Ownership of water (see Water) Pakistan, 33, 63–65, 68–69, 71ff, 79ff, 101–02, 182ff, 194; Inter-provincial conflicts in, 184; Kalabagh controversy, 184; Salinity Control and Reclamation Projects (SCARP), 183; Water-logging and salinity in the Indus basin, 183 Palar Basin, River, 27, 32–33, 134, 137, 145 Pamba-Achan Kovil–Vaippar Link, 54 Panchayati Raj Institutions (PRIs), 154fn, 157, 159–60 Pancheswar Project, 186 Pandit, Chetan, 58fn Parambikulam Aliyar Project, 33, 107 Pari passu clause (Sardar Sarovar Project), 125ff Parivartan (NGO) (see also Kejriwal), 139 Participatory Irrigation Management (PIM), 24, 32, 99 Partition (1947), 63, 67–68, 76 Patiala and East Punjab States Union (PEPSU), 101 Parveen, Shama, 49 Pathak, Bindeshwar, 221 Patkar, Medha, 42, 122, 128–30, 222 Pawar, Popat (Sarpanch), 153fn, 221 Pepsi Cola, 136 Periyar River, 107fn Petrella, Riccardo, 212fn Plachimada, 135, 146, 157, 222 Politicisation of water, 31ff Pollution and contamination of water, 22, 27 Postel, Sandra, 107, 203fn, 241–42 President of India, 47 PricewaterhouseCoopers, 139 Pricing of water, 56, 57, 140, 143, 214– 15, 228

Private sector participation, private investment, privatisation, 19–20, 29, 56, 139–47, 159 Prometheans, 242–43, 245–46 Provisions of the Panchayats (Extension to Scheduled Areas) Act 1996, The, (PESA), 30, 43, 160fn Public Interest Litigation (PIL), 120, 128–29 Public-Private Partnership, 19, 210–11 Public Trust doctrine, 156–57 Punjab, 95–105 Punjab Reorganisation Act 1966, 96 Punjab Termination of Agreements Act 2004, 95 Radical Greens, 242–43, 246 Rainfed areas, 52 Rainwater-harvesting, 52, 58–59, 153, 156 (see also watershed development) Rajasthan, 48, 96, 98, 101, 104, 155 Rajasthan Canal, 52, 74, 101, 104, 180 Rajendra Singh (see also Tarun Bharat Sangh), 43, 153fn, 155, 221 Rajiv-Longowal Accord, 97, 99 Ralegan Siddhi, 153fn, 221 Ravi River, 64, 74, 101 Ravi-Beas dispute, Tribunal, 33, 95–105 Regional Cooperation, 111–12, 198– 200 Rehabilitation (see Displacement; also National Rehabilitation Policy) Research Foundation for Science, Technology and Ecology, 42 Resettlement (see Displacement; also National Rehabilitation Policy) Rhine River, 13 Right to Information Act 2005, 29, 161, 166, 222 Right to water and water rights (fundamental, human, economic, tradable, property, riparian), 23, 110, 142–46, 153, 157–60 (see also riparian differences, principles)

Index Riparian differences, rights, principles, 98, 108, 110, 145 River Basin Organisations, 113–14 River Boards Act 1956, 114 Roy, Aruna, 166, 166fn Rural water supply, 23 Sadguru Foundation, 153fn Sagoff, Mark, 243, 247 Salal Project 65, 71, 73 Sanitation, 12fn, 23 Sapt Kosi Project, 186 Sardar Sarovar Project (also referred to as Narmada), 119–20, 122, 125, 130 Saxena, N.C., 166 Science in Africa, 108fn Sen, Amartya, 9, 232 Seine River, 13 Serageldin, Ismail, 201 Setusamudram Project, 247 Shah, Tushaar 27, 213ff (see also Barbara van Koppen) Sharma, B.D., 43 Sheonath River, 135, 222 Shiva, Vandana, 42, 139, 222 Singh, Bharat, 50 Singh, Radha, 55 Slovakia, 109 South Asia, India and, 181–200 Soviet Union, Former, 54 Soz, Saifuddin, Prof., Minister of Water Resources, 121 Srinivasa Rao, Nittor, 88 Stepwells, 152 Stockholm Water Prize, 222 Stockholm Water Week/Symposium, 19, 201, 203, 214fn Stress, water, 208–09 Subsidiarity principle, 159fn Sudan, 108 Suez (international water company), 19fn Sugarcane plantations, 33 Sukhomajri, 153fn

269

Sulabh Sauchalaya movement, 221 Supply-side thinking, engineering, 34– 35, 45 Supply-side conundrum, 58ff Supply creating demand, 38, 116 Supreme Court, 46, 87, 95, 98, 103, 105, 119; and displacement/rehabilitation, 120ff; Judgment on the Narmada case (October 2000), 120, 123; Order of 8 May 2006, 124; Presidential reference on Punjab Act, 95 Surplus/deficit basins, concept of, 49 Survivalists, 242 Sutlej River, 64, 74, 101; Yamuna Link (SYL) Canal Project, 96–97, 100–101 Tail-end, 32 Tala Project, 190 Tamil Nadu, 33, 38, 87–88, 91–92, 94, 102, 109, 116, 134, 145, 222 Tanks, 152 Tarun Bharat Sangh, 153fn, 155 Technology, hypertrophy of, 234–37 Tehri Hydroelectric Project, 107, 121 Teesta Barrage (Bangladesh), 194 Thames River, 13, 204 The New Courier, 108fn Three Gorges Project, 47, 54 Tibet, 185 Tirupur, 134, 135fn Track II (non-official) initiatives (see also Cauvery Family), 87–89, 91–92, 94, 111, 222 Trading in water, 145–46 Traditional Systems, 152 (see also ahars and pynes, johads, stepwells, tanks) Tribune, The, 76 Tulbul Navigation Project (see also Wular), 65, 71, 73 United Nations (UN) agencies, 19, 192, 201 UN Conference on Environment and Development, Rio de Janeiro, 177fn

270

Towards Water Wisdom

UN Convention on the Non-Navigational Uses of International Water Courses, 1997, 110, 145 United Progressive Alliance (UPA), 47, 198 United States of America, 144, 156, 234 Urban water supply, 22, 31, 38 Usable water resources (see Available water resources) Use, water, in industry, 39; in irrigated agriculture, 24–25, 38; municipal, domestic, 38–39 Uttar Pradesh (UP), 185 Vaidyanathan, A., 49 Verghese, B.G., 76 Vietnam, 235 VIKSAT, 154fn Virtual water, 208, 209 Wanchuk, King Jigme Singye (Bhutan), 188 Water, as life-support, 153; as social good, 13, 203; forms, complexity and understanding of, 12, 44–45; ownership of (including groundwater), 136, 141, 145–46, 155, 155fn, 156–58; part of history, culture and religion, 14, 110, 207; role in nature, ecology, Planet Earth, 14, 205–07, 225ff; laws and policies at the State level, 176– 77; a Constitutional Statement on, 173ff; a national Law on, 176ff; towards wisdom on, 224ff; in the changing world, 231ff (see also related entries on Action Plan, Commodity, Common Pool Resource,

Conflicts, Constitution of India, Crisis, Demand, Development, Displacement, Floods, Harvesting, Inter-State water disputes, Irrigation, Management, Markets, National Environment Policy, National Rehabilitation Policy, a National Water Law, Needs, Rainwater harvesting, Right to water and water rights, Riparian differences and principles, Stress, Trading, Use, Virtual water) Water Access Poverty, 213 Water in South Asia, 181ff Water Resource Consolidation Projects, 177 Water Resource Development (WRD), 34–35, 44, 141 Water Organisation Trust (WOTR), 154fn, 221 Watershed development, 52, 153, 156 (see also water-harvesting) Water Users’ Association, 32, 144 Water wars, 201–02 West Bengal, 27, 54–55, 185, 196, 199 World Bank (WB), 17–19, 64, 139, 177, 192, 201, 215–16, 227 World Commission on Dams (WCD), 18, 42fn, 164 World Watch Institute, 242 World Water Council (WWC), 19, 201, 203, 227 World Water Forum, 19, 201, 203 Wordsworth, William, 243fn Wular Barrage Project (see also Tulbul), 65 Yamuna River, 27

About the Author

271

About the Author Ramaswamy R. Iyer is Honorary Research Professor at the Centre for Policy Research, New Delhi. A former civil servant, he was Secretary, Ministry of Water Resources in the Government of India from 1985 to 1987. After leaving the Government, he worked as Research Professor in the Centre for Policy Research from 1990 to 1999. Iyer was a member of important review committees on the Sardar Sarovar and Tehri Projects (1993–97); of the National Commission on Integrated Water Resources Development Plan of the Government of India (1997–99); and of a Panel set up by the Government of India to assist it in its work in the context of the examination by the Neutral Expert of the India-Pakistan differences over the Baglihar Project under the Indus Waters Treaty (2005–06). He has been a consultant on different occasions to the World Bank, World Commission on Dams, UNDP, IWMI, and the European Commission, among others. He has been closely associated with the efforts under the aegis of the Madras Institute of Development Studies to bring the farmers of Tamil Nadu and Karnataka together in a ‘Cauvery Family’ for the promotion of understanding and cooperation. Iyer has written extensively on water-related issues. He has published a book WATER: Perspectives, Issues, Concerns (Sage: 2003), written numerous papers and articles, as well as contributed chapters to several edited books.