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2016 | OriginalPaper | Chapter

10. Water Rights and Entitlements in India

Author : Rathinasamy Maria Saleth

Published in: Indian Water Policy at the Crossroads: Resources, Technology and Reforms

Publisher: Springer International Publishing

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Abstract

With increasing water scarcity in India, the need for establishing institutional mechanisms such as the water rights and entitlements (WR&E) system is widely recognized. But, there are many questions continue to persist as to the form and feasibility as well as the challenges and opportunities involved in establishing such a system in Indian context. This chapter tries to answer some of these questions by (a) discussing the legal, policy, and organizational aspects of WR&E system relevant for India; (b) tracing the evolution of informal and formal WR&E systems at various scales; (c) assessing the opportunity costs of missing or unclear WR&E system in terms of foregone benefits; (d) indicating the technical and institutional potentials as well as the political economy constraints for promoting the WR&E framework; (e) exploring how the WR&E framework can be introduced in areas with rudimentary water rights; and (f) Concluding with the identification of short and medium term options as well as paths and implementation strategies for promoting the WR&E framework for India.

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previous chapter Regulatory Instruments and Demand Management of Water: Potential and Prospects

next chapter Water Saving Technology in India: Adoption and Impacts

The terms ‘water rights’ and ‘water entitlements’ are used here interchangeably. Water entitlement, like water rights, is a legal right to access water. A water entitlement can be specified as a share of water from a consumptive pool of water as per a water plan or a fixed annual volume. But, there are subtle differences between the two as the water right can be legally obtained but water entitlement has both ethical and legal connotation.

Instances for such substitutions include the use of watermen in many canals systems in Tamil Nadu, Andhra Pradesh, and Karnataka, and the reliance on timing procedures involving local priest and community elders in the irrigations of Canary Islands, Spain (Mass and Anderson 1978: 22–24).

This is immediate from the familiar result of Coase (1937). That is when the rights are private and transferable (or, rentable), their reallocation will correct the inefficiencies associated with the initial distribution of rights. But, from an equity or income distribution viewpoint, the criterion matters as the allocation of rights amounts to asset transfers.

For, what is not owned cannot be priced because prices are just the payments for property rights or, more specifically, for the rights to use an asset (Dales 1968: 792).

Sometimes, communal and groups rights are also advocated (Devi 1991: 624). But, such rights can ensure only the accountability of the community/groups to the state but not that among individual members of the community/group.

This authority was created in 1997 in response to a 1985 Supreme Court judgment (Supreme Court of India, Civil Original Jurisdiction, I.A. no. 32 IN W.P. (C) no. 4677 of 1985) in 1995 asking to control groundwater depletion. It was notified in gazette (Gazette of India: Extraordinary, part 11, sec. 3, subsec. ii, no. 30, New Delhi, Tuesday, January 14, 1997).

Notably, this position was also reflected even in the irrigation and water supply acts enacted after independence. But, the Madras High Court in 1936 and the Bombay High Court in 1979 have declared that the government’s sovereign rights do not amount to absolute rights (Singh 1991: 30–34).

As per the ‘dominant heritage’ principle implied in the Transfer of Property Act IV of 1882 and the Land Acquisition Act of 1894, a land owner can have a right to groundwater as it is considered an easement connected to the dominant heritage, i.e., land.

As per Entry 17 in the State List under the Seventh Schedule of the Constitution, it is the states that have jurisdiction over water resources within their borders. But, the powers of states are subject to Entry 56 in the Union List that allows the central government to regulate and develop inter-state rivers and river valleys when this is declared by parliament as a matter of public interest. The central government also has regulatory roles in the water sector vide Article 252 related to inter-state water projects as well as in terms of the Forest Conservation Act of 1980, which requires the states to get central clearance for executing ecologically sensitive water projects. The central government also has an important role in resolving inter-state water disputes as per the provisions under Article 262.

For instance, the constitutional provisions relating to the fundamental rights to life are used as a basis for assigning top priority for drinking and domestic uses as well as irrigation and ecological water needs.

There are 58 independent water-related agreements among states concluded in the past—39 related to joint projects and 19 related to sharing of river waters—and all of these are under heavy pressure for renegotiation due to the increasing water requirements of concerned parties (World Bank 1998b). See Iyer (1999) for a review of some of these agreements.

Under this Act, the central government has so far set up five tribunals and three of them have come out with amicable decisions (Krishna in 1976, Godavari in 1979, and Narmada in 1979). These include also the tribunal dealing with the politically most sensitive Cauvery River dispute where only an interim award was given and even that is strongly contested by one of the concerned states.

Since the Act has failed to specify the authority to implement the decision as well as the time limit for tribunal decision, it was amended twice—first in 1980 for authorizing the central government to establish the implementation authority and then, in 2002 to specify a 6-year time limit for tribunal decision (Salman 2002; Richards and Singh 2002). Many experts argue that even the 6-year time limit specified by the 2002 amendment is too long for resolving such a sensitive issue as water sharing.

For instance, The Cauvery River Water Authority has been created to deal with the allocation conflict among the basin states. This entity—patterned after the Murray-Darling River Basin Organization of Australia—is unique in the Indian context as this is the first time that a basin organization is chaired by the Prime Minister with the chief ministers of all the concerned states as members.

For instance, in Chennai, in the mid-1960s, the then government bought water rights from ayacutdars of the Red Hills and Cholavaram tanks. In recent years, the city is also considering the transfer of groundwater from the Araniar-Kusaithaliayar aquifer area that holds an enormous promise for providing Chennai with a low-cost supply of high-quality water (Briscoe 1997).

This may be an overestimate of the magnitude of water marketing since all these areas may not be using hired services on a regular basis and the hired services may not involve water selling in all cases due to pure pump set rentals.

It is important to note that this bill behind this act has been widely discussed and also approved by the state cabinet, but it still remains as a bill before the state assembly and has not yet been passed.

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Title: Water Rights and Entitlements in India
Author: Rathinasamy Maria Saleth
Publisher: Springer International Publishing
Book: Indian Water Policy at the Crossroads: Resources, Technology and Reforms
Print ISBN: 978-3-319-25182-0

Electronic ISBN: 978-3-319-25184-4

Copyright Year: 2016
DOI: https://doi.org/10.1007/978-3-319-25184-4_10

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