Drops of Federalism

Anmol Mittal 

A spate of floods in a self-declared water-stressed country has shed light on the governance of water ‘resources’ in India. The assumption of control over Water by the Union is an encouraging sign.

India, already a self-declared water-stressed country, faces an immense challenge.[1] Behaviorally, there is not too much evidence to suggest that water is even considered a ‘resource’ in the minds of the average Indian. Unlike other renewable resources, water has yet to find its place in the minds that occupy South Block, and even their detractors in Khan Market. Till only about six-months ago, Hydro-energy was not even considered as ‘renewable energy’ by the government,[2] and was exempt from the obligations under renewable energy purchase obligations for State Electricity Boards. Even now, while obligations exist on States to meet a proportion of their energy demands through the use of renewable energy,[3] no such standards exist for minimum use of ‘recycled water’, suggesting that water is still considered as a ‘resource’ only in so far as it produces energy. This requires serious revision.

In International Law, there is near unanimity that global commons create an ‘equal’ right amongst the nations of the world.[4] Res Communes include, in a strict sense, ice-caps and the ozone layer, and more loosely can be understood as the oceans of the world. There exists an ‘Equal’ right since the conservation and use of these resources can be achieved only through internationally concerted actions, monitored through International agencies. Regulation by International Conventions, and follow-ups through Conference of Parties is the model in practice.

Domestically, however, the Constituent Assembly in its wisdom decided a model opposite to the global consensus, by placing ‘Water’ as a subject in the State List.[5] Effectively, states according to their own ‘perceptions’ of the urgency of the water crisis are free to decide whether to and how to legislate on matters of water. While a plain reading of the constitutional text would leave us with this imprint, the reality seems to be in contrast.

The Union govt. has always, either through the existence of a Central Sector/Centrally Sponsored schemes or by the creation of National Regulatory agencies, maintained its presence in a ‘big brotherly’ role even in subjects reserved for the States. It’s a phenomenon pervasive in our entire constitutional scheme, where even though States have been made responsible for certain subjects and receive grants to take care of matters related to those subjects, the Union Govt. still runs a parallel administration on such subjects. Agriculture and Health, for instance, are both State subjects for which states have the primary responsibility to legislate, but there still exist huge ministries of Agriculture[6] and Health.[7]  The National Water Resources Council [NWRC], the National Water Board [NWB], the Central Water Commission [CWC], the Central Groundwater Authority [CGWA] and also various inter-state river basin boards[8] exist as examples of a strong centralizing tendency when it comes to water governance specifically.

While there exist criticisms of Union taking ‘responsibility’ for subjects mentioned in the State list in view of urgent requirements, it would be beneficial to investigate the basis of such criticisms. The central premise on which federalism and other protests against ‘centralization’ are based is the increased distance between power and people.

When government exists at many levels, such as States and the Union, the people have a representative ‘closer’ in distance to it at the State level, both in terms of the impact of every single vote and the comfort that an average voter ‘feels’. The representative at the Union level may very well be a sincere parliamentarian, it, however, does not impact the ‘distance’ that an average voter feels. This forms the basis of self-government, where the voter, through the State government can feel a closer form of self-government, something which even though in theory exists with the Union government too, but does not ‘seem’ to be as such. Conversely, it is this connection that justifies the delegation of certain subjects to States, since they are ‘closer’ to the people and can more adequately understand the needs of the people and implement decisions. Police and Land Administration, found in the State list, were placed there precisely due to this rationale.

While the idea both ways is sound, it does seem to falter when an action, the success of which is dependent on its coordinated execution is to be undertaken. The differing needs of the people in a specific state may be a good reason for that state to choose to take/not take a set of actions, but because such choice will have a direct impact on the fulfilment of similar choices made by all other states, there is a need for centralized decision making.

This centralizing tendency over water, however, is being achieved by empowering, in a radical move, the most de-centralized bodies, i.e. Panchayati Raj Institutions and Urban Local Bodies. There is an attempt by the Union to emulate the Swachh Bharat Model and create direct linkages between local self-government institutions and the central machinery by deputing Joint Secretary Level officers to personally over the water management planning in defined geographical areas. While the monitoring by the Union will remain, it will now communicate with the lowest level of self-government, bypassing the state governments. This will create an empowered 3rd tier of government, which will be even ‘closer’ to the people and the average voter. Since management of water clearly falls in the remit of PRI and ULB subjects,[9] the Union is betting on ‘Jan Andolans’ to renew public faith in the 3rd tier governance structures.

Overall, there is a recognition that a centralized command structure with the ability to influence decisions and impose penalties is required in the governance of a common resource such as water. The federal structure, while having borne fruits in several other areas, has not shown signs of success when it comes to increasing India’s water efficiency. The rectification of both these anomalies can be done through the strategy of radical (de)-centralization, by empowering local self-government institutions while also bringing them under the direct supervision of the Union and its administrative machinery.

[1] Composite Water Management Index, NITI Aayog, 14th June 2018. Accessible at: https://www.niti.gov.in/writereaddata/files/new_initiatives/presentation-on-CWMI.pdf

[2] https://www.thehindu.com/business/Economy/hydro-policy-target/article26561711.ece

New Hydro Policy to Help Meet Renewables Target, TCA Sharad Raghavan, The Hindu. Last Accessed at 21st August 2019.

[3] Order No. 23/03/2016, Government of India, Ministry of Power. Accessible at: https://powermin.nic.in/sites/default/files/webform/notices/RPO_trajectory_2019-22_Order_dated_14_June_2018.pdf

[4] Barcelona Traction, Light and Power Co., Ltd. (Belgium v. Spain) 1970 I.C.J. 3. Global Commons, Surbhi Ranganathan, The European Journal of International Law, Vol 27 no. 3, Oxford University Press, 2016.

[5] Entry 17, List-II, 7th Schedule, Constitution of India.

[6] Entry 14, List-II, 7th Schedule, Constitution of India

[7] Entry 6, List-II, 7th Schedule, Constitution of India.

[8] Review of draft Indian Water Legislation and comparison with the European Water Framework Directive, Flore Lafaye de micheaux, 2015, accessible at: http://eeas.europa.eu/archives/delegations/india/documents/report_review_india-eu_water_legislation.pdf. Last accessed on 20/8/2019.

[9] Schedule 11 &12, Constitution of India.

The author is a 5th-year law student at National Law University, Delhi.

Image: Gulf News


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