John Briscoe is a Senior Water Advisor with the World Bank. He wrote recently in a major national daily about an emerging water rights regime in India. (Those Taps Needn't Run Dry, Times of India, October 10). I agree with Briscoe that India should evolve a formal water rights system, but this is simply a starting point - the recognition of rights has to move beyond this commonly agreed proposition. We must identify the precise nature of the water rights we are discussing, and also how to evolve them in the specific social and legal context of the country. Without this, the mere accordance or recognition of rights will be an illusory gain.
Briscoe notes that water entitlements need to be 'usufructory'; i.e. one wants the right to use water, and not just some nebulous claim of ownership over it. Yet his statement that 'ownership of water resides and must continue to reside with the state' is flawed. The Supreme Court itself has said that the government holds water in India as a trustee on behalf of its people and thus in the public trust. (The Court adopted the applicability of this 'public trust doctrine' in India in a landmark 1997 ruling.) It is dangerous to ignore this distinction between absolute ownership and public trust as mere abstract jural enquiry. Some of the provisions of the so called 'entitlements regime' in India can never be seriously questioned in law if absolute ownership of waters is granted to the state; the moment one accepts that the state is the owner then one will have to concede that like any other true owner it is free to regulate the resource.
The reality is much more complex. Access to water is a most fundamental human right and if the state as a trustee fails to regulate the resource to meet that objective, then it should invite legal liability for breach of trust.
Similarly, while Briscoe is dot on the button when he says that water entitlements should be separated from land rights, he seems to be oblivious of the fact that the new developments shaping the legal regime, being now precipitated in parts by the World Bank itself, has sought to intertwine water accessibility with land ownership. While there have been popular movements trying to separate water claims with land rights there has been absolutely nothing done in the formal legal regime to even remotely try and address these concerns. Recent laws passed by many State governments seeking to involve farmers in irrigation management have not clearly separated water rights from other ties; there is absolutely nothing available to individual farmers - or to their legally mandated group entities like Water User Associations (WUAs) - that even remotely resembles a right or an entitlement.
In this backdrop Briscoe's audacious claim that new legislation like the Maharashtra Water Resources Regulatory Authority Act, 2005 is creating a water entitlement merits closer scrutiny. True, the Act creates a high powered State Water Resource Regulatory Authority which is to oversee the issuance and distribution of water entitlements by designated river basin agencies and, among other things, is also responsible to fix the criteria for trading of water entitlements or quotas on the annual or seasonal basis by a water entitlement holder. But having thus explicitly equated entitlements with quotas the Act makes sure that neither the Authority nor the River basin Agencies can ever be questioned on the extent of distribution of these entitlements, creating thus a strange fiction - a system where 'entitlements' exist without corresponding obligations to ensure one receives them! This fiction continues brazenly with issuing of entitlements to WUAs under the above 2005 Act while also making sure simultaneously through other legislations like the ones providing for farmers' participation in Irrigation management that these entities are not vested with any rights!
One can see that the word 'entitlements' is increasingly being used, mostly by economists who are part of a select and selective community of 'policy experts', in a manner that violates the basic meaning of the word. An entitlement is something that one 'has a title to', and more importantly, has this title as a matter of right, i.e. a right to demand and receive. The new legislations in the water and irrigation sectors never as a rule create any enforceable right to water for farmers or other water users. One is thus forced to ask: What kind of 'entitlements' are these, and from which dictionary does the word derive?
The big question thus remains: does India have a true water entitlements regime? Well let me say this- If India had an entitlements regime than its citizens should be able to enforce access to a basic minimum quantity of drinking water (say 40 lpcd), but they can't. If India had such regime then irrigation waters - where they are inescapable for livelihood security needs - could have been seen differently by law makers, but this isn't the case either. If India had such an entitlement regime we would not repeatedly witness the peculiar spectacle of formal, yet 'right-less' water user groups, but they exist all over now. Just because Briscoe says that we are moving towards a water entitlements regime does not make that so.