Towards a new horizontal water federalism

Where do the aspirations of riverine ecosystems and communities fit in a federalist set-up?
Odisha and Chhattisgarh have locked horns over the distribution of waters of the Mahanadi river at Hirakud dam (Image: Makarand Purohit, India Water Portal) Odisha and Chhattisgarh have locked horns over the distribution of waters of the Mahanadi river at Hirakud dam (Image: Makarand Purohit, India Water Portal)

The execution of India’s institutional framework for preventing and solving conflicts over river water is still evolving. A new thinking on federalism in the field of water management to meet local aspirations and national ambition is needed. A one-day conference 'Towards water federalism 2.0 - Perspectives from the Ganga and Brahmaputra' was held recently at New Delhi. The conference was a joint effort of Asian Confluence, a Meghalaya-based think tank and Hanns Seidel-Stiftung (HSS), a German political foundation which conducts and supports political development projects in 60 countries.

Lawmakers from the Centre and states, experts from think tanks and civil society organisations were invited to debate on scientific and environmental developments, and contribute to the political discourse.

"Climate change is upon us and signs that global mitigation strategies are urgently needed to stave off further environmental damage and human suffering is all around us. Young people are pointing to a gloomy future. Industrialized nations should take responsibility for their historic emissions. They should contribute funds and transfer of technologies to developing countries for climate change mitigation," said Walter J. Lindner, German Ambassador to India in his special address at the conference.

Lindner spoke about Germany’s 2030 Climate Action Programme, where the government is shouldering the financial burden. It has presented a far-reaching climate strategy that aims to put Germany on track towards reaching its emissions reduction contributions under the Paris Agreement. The policy package contains crucial measures such as introducing a price on carbon emissions in the transport and buildings sector.

“The need is to not just to meet ambitious national developmental targets and regional cooperation goals, but also to meet the regional aspirations of states. For the recently created Ministry of Jal Shakti to put these plans into action, the rivers Ganga and Brahmaputra, which are the lifelines for trade, tourism, agriculture and industry, are key. Their efficient management and rejuvenation is crucial to deal with water security issues in order to achieve the Sustainable Development Goals and fight the effects of global warming,” says Sabyasachi Dutta, Asian Confluence.

"There is a need to formulate more inclusive, people-friendly mechanisms in managing water resources effectively. Water conservation, along with water harvesting and judicious and multiple use of water are key to tackling the water challenges that India faces," said U P Singh, Secretary, Department of Water Resources, Ministry of Jal Shakti.

Centre-state water relations

Session I of the conference on 'Centre-State Water Relations (Federalism)' dealt with:

  • The legal and institutional framework for centre-state water cooperation
  • Inter State Water Dispute (Amendment) Bill, 2019 – Centre’s perspectives on how it can enable better dispute resolution and align with the Centre's policy intent
  • Centre-state water cooperation – issues, challenges and solutions for the Ganga and Brahmaputra river systems

"Resolving river water disputes between two states is difficult because water allocation comes under the Water Disputes Tribunal constituted as per the Inter-State Water Disputes Act, 1956 enacted under Article 262 of the Constitution of India. Intervening in the issue of use, control and distribution of an interstate river is difficult as states hold such 'widely divergent' views. This despite the fact that Article 262 of the Indian Constitution provides a role for the central government in adjudicating conflicts around inter-state rivers that arise among state and regional governments," says Mr. A K Bajaj, Former Chairman, Central Water Commission. This Act underwent subsequent amendments, the most recent being in 2002. 

Under the 1956 River Board Act, every state was to have a river board to regulate and develop inter-state river basins and valleys. They were supposed to advise the Centre on development opportunities, coordinate development activities and resolve disputes, while promoting basin development projects. Decades later, not a single river board is really functioning.

Need for multilevel federalism

Multilevel governance and federalism was seen as an obvious way to develop federalism in water related decision-making in a federal and inter-state context. "Sharing is essential to the notion of federalism. Our centralized federalism has many adjectives attached to it – coercive, competitive and cooperative," says Professor Balveer Arora, Centre for Multilevel Federalism.

With respect to shared rivers, it was highlighted that a common feature of treaties and agreements amongst states and countries is segmentation of integrated systems. A holistic, ecologically sound approach is missing. Interstate disputes in a federal system are almost like international disputes, often more complex in nature due to various externalities.

Given the emotional attachment, interstate river water disputes inevitably become an issue of party politics, making resolution even more difficult. There too much emphasis on arbitration and disputes, and insufficient attention given to negotiation and resolution. 

With over centralisation, state governments are merely implementing the policies designed at the Centre. Their constitutional role is diminishing day by day, and the establishment of several central institutions has been instrumental in bypassing the state governments. States too have been lethargic in the management of the waters resulting in judicial intervention. "Vertical federalism has outstripped the growth of horizontal federalism and we seem to be moving towards command and control federalism," says Arora. What we need is a central act that can be a legal basis for certain principles to be agreed across the centre and the states. There is a need to build channels of communication between states and centre and leave space for resolution of disputes. Arora concluded by saying that for water sharing horizontal federalism offers promise.

Mr. Shawahiq Siddiqui, Founding Partner, Indian Environment Law Organization spoke about the concept of shared rule versus self rule in the context of water federalism in India. He stressed on the role and performance of institutions created under the federal structure. "As far as the Ganga-Brahmaputra basins are concerned, the federal relationships are at three levels: transboundary, state-centre and between states where water federalism is manifest in its might. Where does the 73rd constitutional amendment, or the aspirations of riverine people for that matter, fit in this federalist set-up with its legal gaps and regulatory islands?” asks Siddiqui.

State of water in Brahmaputra and Ganga

The conference shed light on the future of India’s water federalism and focused on two major river systems – the Ganga and Brahmaputra – given their critical importance for ecology, economy and society at large. Sessions 2 and 3 of the conference dealt with the state of water in the Brahmaputra and Ganga. The issues discussed were: 

  • Overview of the scientific situation – health of the Brahmaputra and Ganga river system, sustainability and other related issues
  • Key policy and action from the government – ongoing projects and institutions,
  • Inter-state water sharing and cooperation issues – legal and socio-economic framework
  • Participation of civil society in water cooperation discourse

Martina Burkard, GIZ spoke of the role of River Basin Organisations (RBOs) in supporting and enabling river rejuvenation. She focused on institutional set-ups that are needed for RBOs to achieve and implement effective river basin management towards a joint objective. "Through the use of river basin management tools, processes are coordinated in large river basins making use of RBOs and related institutional set-ups at all implementation levels," says Burkard.

"The conflicts are not just over use of water but also on definition of property rights. There is a need to look for measures to reduce the water demands of stakeholder states as well as to create institutional arrangements for conflict resolution," says Nilanjan Ghosh, Observer Research Foundation, Kolkata. 

NITI Aayog is emphasizing the need to leverage the potential of cooperative and competitive federalism for achieving a resolution to water disputes. In cooperative federalism the centre and states share a horizontal relationship, where they “cooperate” in the larger public interest. In competitive federalism the relationship between the central and state governments is vertical and between state governments is horizontal. It is an important tool to enable states’ participation in the formulation and implementation of national policies. Competitive federalism is not part of the basic structure of Indian constitution. It is the decision of executives.

The distribution of legislative powers has been divided into three lists: the Union List, the State List and the Concurrent List. A disconcerting trend has been observed in the attempt to take water out of the state list, making competitive federalism the new fault line of centre-state relations.

Professor Jayanta Bandyopadhyay, Environmental Scientist and Former Professor, IIM Calcutta speaking on the Brahmaputra basin highlighted the paradox of "ample water, ample poverty" in the area. "The notions of surplus and deficit rivers, lack an ecosystem perspective, creating a void in India's policymaking and practice. This is especially true in the case of the management of the Brahmaputra sub-basin," he said.

"The situation is not expected to improve in the future, and the governance of the Brahmaputra will continue to be a huge challenge," says Professor Chandan Mahanta, Professor and Head, Department of Civil Engineering, IIT Guwahati. He raised concerns related to the probable environmental and social impacts of hydropower dams.

"We are focusing on hydration of economy at the cost of dehydrating ecosystems. The focus is not on water in fluvial landscapes but on manufactured water made available for human use. Technologies, policies and legislations focus exclusively on water for human needs," says Venkatesh Dutta, Associate Professor, School of Environmental Sciences, Babasaheb Bhimrao Ambedkar University.

The conference concluded by stating that efficient management and rejuvenation of India’s rivers are crucial and there is need for a mass movement to save our rivers.

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