sachin warghade and subodh wagle - infrastructure ... warghade and subodh wagle 22 now penetrated...

IntroductionTh e achievements and failures of eff orts in the develop-ment of the water sector are well-known. While on the one hand, these eff orts have contributed signifi cantly to food security as well as improvement in the qual-ity of life in many Southern nations, there have been many and equally signifi cant gaps and unintended negative impacts on nature and society. Over the years, the marginalized and disadvantaged sections of society have been further disempowered as they have lost control over the process of making decisions related to the development of the water sector. As a result, they have been subjected to a disproportionately high burden of costs of development in the sector, while the benefi ts, both direct and indirect, that have actu-ally reached them have been insignifi cant. A bigger problem associated with the development of the water sector has been disempowerment of the marginalized and inequity. In this background, the eff orts aimed at restructuring and reforming the water sector acquire special importance. Sectoral reforms in the water sector began in 1990s in India as a part of pilot projects funded by interna-tional fi nancial institutions (IFIs). Th ese reforms have

Water Sector Reforms

Implications on Empowerment and Equity*

Sachin Warghade and Subodh Wagle

22

now penetrated into policy and legal frameworks of water governance at the national as well as state levels. Th ese reforms are crucial for many reasons. First, the reforms acquire importance because of the centrality accorded to them in sector governance. Second, re-forms are making fundamental changes to the values and principles underlying laws and policies. Th ird, these reforms are comprehensive, covering all impor-tant aspects and elements of the sector. Fourth, and most importantly, many of the reforms have brought in changes in not only policies and laws but also in the institutional structures and even ground conditions that are very diffi cult to reverse. It is argued that the water sector requires huge invest-ments for infrastructure development and upgradation, which most governments would fail to provide. Th e most common solution proposed to address this prob-lem consists of market-based reforms, which include operating the system on a full cost recovery principle and commercialization or private sector participation of varying degrees (Prasad 2007). While arguing in favour of cost-based water pricing, a World Bank (2005a: 54) document states that ‘although the massive distortions

* Th is chapter is developed based on the paper presentation in Fourth South Asia Water Research Conference organized by SaciWaters on ‘Interfacing Poverty, Livelihood and Climate Change in Water Resources Development: Lessons in South Asia’ held in Kathmandu, Nepal on 4 May 2009.

326 India Infrastructure Report 2011

in the pricing of water services are justifi ed “in the name of the poor”, it is, paradoxically, the poor who are the major victims of these distortions’. Th e document further argues that ‘[t]he situation in India remains one in which public monopolies face no competition. Th e one over-riding lesson from the global revolution in the provision of public services is that competition matters’ (the World Bank 2005a: 44). Reforms, in this context, are justifi ed mainly on two grounds: (i) improving effi ciency and economy, and (ii) enhancing equity and empowerment. First, it is claimed that diff erent elements of reforms will bring in improvements in performance, which implies reducing, if not eliminating diff erent types of losses and ineffi ciencies. Th is improvement in perfor-mance will result, on the one hand, in improvements in the economic and fi nancial health of the organiza-tion in the sector as well as of the sector as a whole. Th e Government of India in the World Bank’s ‘Water Forum’ stated that ‘[t]he sector is characterized by serious under-performance, and this crisis will continue unless there is a fundamental reform of service arrange-ments’ (GoI 2002a: 2). On the other hand, increased effi ciency will also result in a decrease in consumer prices and an increase in the quality of services given to consumers and users. Second, it is argued that the many elements of reforms will empower consumers against the mighty utilities—both public and private owned. Th e reforms will have special instruments and mechanisms to deal with grievances of water users. Further, it is also argued that reform elements, which would improve overall transparency and accountability in the functioning of the sector, will empower water users too. Reforms will bring in a level playing fi eld to all water users, and help users who face economic, political, or social challenges. It is also argued that the improved functioning of the sector will bring in private investments and reduce the burden on government funds, which can be meaning-fully utilized for supporting the interests of disadvan-taged sections within or outside the water sector (the World Bank 2005a). Hence, such reforms in the policy and legal instru-ments require an assessment of their potential contribu-tion to equity and empowerment. Such an assessment can provide valuable inputs for the future direction of reforms. Th is chapter presents the outcomes of an

assessment of key reform instruments in the water sector in India.

Framework for AssessmentTh e terms ‘equity’ and ‘empowerment’ need to be interpreted in a manner that is relevant to the water sector. Th e main issue in the equity dimension is the distribution of costs and benefi ts among diff erent stakeholders. In the water sector, apart from fi nancial costs, the main costs involved are social and envi-ronmental costs, which are the result of developing infrastructure required for generating water sources and distributing water. Th e main benefi t from the sector is water services, including eff ective access. Eff ective access to water is seen to be dependent on the availability of water to a particular user—which, in turn, is aff ected by physical, economic, political, and social factors. In assessing the equity implications of reforms, both costs and benefi ts, need to be investigated. While the fi nancial costs are borne by the state and national governments, the decisions on the social and environ-mental costs are made through policy and legal instru-ments that lie outside the water sector. For example, in Maharashtra, land acquisition for water projects is carried out by the revenue department using special land acquisition laws. Similarly, decisions on environ-mental matters are handled by the agencies under the purview of the Ministry of Environment and Forests (MoEF), whereas issues of water quality are handled by pollution control agencies under separate laws. Empowerment here implies increased infl uence on the governance of the sector, especially on the functions of decision-making and regulation. Infl uence on gov-ernance is a function of participation, accountability, and transparency. Th e ability to get decision-makers, implementing agencies, and regulators to be account-able is a key measure of the infl uence of that water users and citizens have on the governance of the sector. Simi-larly, true and meaningful participation in all functions and all stages of governance is necessary to ensure that the needs, aspirations, and demands of the stakeholders are refl ected in the outputs and outcomes of gover-nance processes. Transparency—defi ned as ‘timely and unrestricted access to information’—is a precondition to eff ective extraction of accountability and meaningful participation.

Water Sector Reforms 327

It is also argued that the location of decision-making is important for exercising infl uence on governance. Th e geographic distance as well as procedural remote-ness are considered as adversely aff ecting the ability of water users and citizens in infl uencing governance. Decision-making at the local level is preferred from the point of view of water users. Th e term ‘reform’ is used in a limited sense—to designate measures aimed at ‘structural reforms’ or ‘sectoral restructuring’, especially those measures that are aimed at changing the governance-related role given to the state. Apart from these, other reforms too have been introduced in the water sector, like those aimed at increasing the participation of farmers in the manage-ment of irrigation. However, these participation-related reforms are more focused at the project or sub-project level. Th ough they aff ect the role of the state, they are focused on shifting the role in management of irrigation systems away from the state and in favour of water users (discussed in Chapter 9). As against this, ‘structural reform’ instruments are primarily aimed at changing the distribution of governance roles in the sector, away from the state and in favour of non-state actors. In choosing ‘structural reform’ instruments for this assessment, the criteria used are the comprehensiveness or depth of the reform instruments, which have impli-cations for the core of sector governance. Th e follow-ing three sets of reform instruments are identifi ed for assessment: (i) National Water Policy, 2002, (ii) State water policies, and (iii) Legislations for establishing independent regulatory authorities. Water is a state subject. But there are certain issues that are supposed to be governed or guided by national interests. Th e National Water Policy (NWP) represents the overall policy direction for the water sector that shall be followed at the national as well as the state levels. While the fi rst NWP was formulated in 1987, the new revised NWP was launched in 2002. NWP 2002 is seen as the turning point in the governance of the water sector in India. For the purpose of the current assessment we have selected state water policies (SWPs) of six states in India, Madhya Pradesh (GoMP 2003), Uttar Pradesh (GoUP 1999), Rajasthan (GoR 1999), Maharashtra (GoM 2003), Karnataka (GoK 2002), and Andhra Pradesh (GoAP 2008), where water sector reform projects are

being intensively implemented. Th e third category of the reform instruments chosen for the assessment includes diff erent legislations for establishing indepen-dent regulatory authorities (IRAs). IRAs for the water sector have been established by enacting special laws in the three states of Maharashtra, Arunachal Pradesh, and Uttar Pradesh. Th e other states are also planning to establish IRAs in the water sector. Laws pertaining to participatory irrigation management (PIM) are not the primary focus of this chapter, though they have been touched upon in the current assessment. Th e scope of this assessment of these reform instru-ments is restricted to the following key substantive issues:

• Centralization (especially ‘nationalization’) of water sector governance: What are the latest trends and their possible impacts on ‘empowerment’?

• Emergence of IRAs in the water sector: What could be their impact on ‘empowerment’?

• Emergence of the ‘water entitlement system’: Th e laws establishing IRAs delegate setting entitle-ments as one of the primary functions of the IRAs. What could be the impact of the new emerging entitlement regimes on ‘equity’, especially in water distribution? What is its relation with ‘water mar-kets’ and the possible impact of these relationships on ‘equity’?

• Emergence of the new ‘water tariff system’: What could be the possible impact of the new tariff system on ‘aff ordability’ and hence ‘access’ to water services?

Key Findings

Centralization of Governance of theWater Sector

Th e distribution of decision-making powers between the local, state, and national actors aff ects the level of empowerment that can be achieved. With this view, many social movements as well as innovative fi eld experiments in the water sector have demanded delegation of power to local level functionaries and communities regarding crucial decisions related to the distribution of water, decisions about new water proj-ects, and funds allocation. Such eff orts seem to have led to a widespread acceptance of the need to decentralize


the governance and management of sectoral functions. Emergence of legislations related to participatory irrigation management could be seen as the outcome of the demand for decentralization, though there have been much criticism of these instruments on the same count (Koppen et al. 2002). Th e following fi ndings pertain to the issue of centralization of governance.

National Water Policy: Foundation for ‘Nationalization’ of Water Resources

As per Entry 33 of List II of the Indian Constitution, the development and management of water is a ‘State Subject’. Hence, the water sector has remained pre-dominantly under the control of the states and has been governed by state level ministries and authorities. Th is allows citizens of the state to participate, lobby, and infl uence the state government machinery in achieving water access and equity. As against this conventional understanding, recent reform instruments seem to indicate that these reforms bring to the fore national level concerns over and above the state or local level concerns. Some examples are:

• National Water Policy (NWP), 2002, in Sections 1.1 and 1.4, defi nes water as precious national asset or resource (emphasis added) (GoI 2002b).

• NWP further states that planning, development, and management of water resources need to be governed by the national perspectives (emphasis added) (refer to Section 1.1 of the Act) (GoI 2002b).

• About inter-basin transfer of water, NWP states that water should be made available to water short areas by transfer from other areas based on the national perspective (refer to Section 3.5 of the Act) (GoI 2002b).

• About the inter-state water disputes, NWP says that water sharing/distribution among states should be guided by the national perspective (refer to Section 21.1 of the Act) (GoI 2002b).

Each of these policy provisions reiterates that the water sector should be guided and governed by the national perspective. In doing so, NWP clearly lays down the foundation for increasing national level intervention in the governance of the water sector.

Attempt to Develop Constitutional Basis for Nationalization of Water Resources

Th e Ministry of Water Resources of Government of India published in December 2006, a report titled Report of the Working Group on Water Resources for the Eleventh

Five Year Plan (2007–12) (GoI 2006). Th e

Report recommendeds developing a Constitutional basis for bringing central control on key decisions in the water sector. Th e Report also suggested that water and water resources’ projects must be considered as national assets and there must be a platform, such as the (national) water regulatory authority to timely and eff ectively settle all inter-state issues in a national perspective. Th e national level regulatory authority is seen as a mechanism for making decisions on a state’s matters at the national level. Such recommendations to centralize key decisions in the water sector at the national level are evident from policy directions. Th is kind of nationalization is seen to be necessary if national projects like inter-linking of rivers are to be successfully completed.

State Level Centralization of Water Governance

Similar trends on centralization of governance are also visible at the state level. Th e new laws for establishing water regulatory authorities provide for concentration of key decisions in the hands of state level actors such as state government departments and state regulators, without much space for intervention by citizens or water users. For example, both the Maharashtra Water Resources Regulatory Authority (MWRRA) and Uttar Pradesh Water Management and Regulatory Commission (UPWMRC) Acts provide for developing integrated state water plans (GoM 2005; GoUP, 2008). Th ese plans are to be prepared by the respective state governments. Th e particular laws do not provide any space for public participation in the preparation of such plans. Hence, eventually the planning process may remain outside the domain of the public and it may merely turn into a centralized top-down bureaucratic exercise. Another important example is the case of legal provisions for determining and distributing ‘water entitlements’. As per the regulatory laws, the state level regulator will determine entitlements based on the rules framed by the state government. Here again it can be seen that the laws do not make any provision for


consultations with, and participation of, stakeholders in taking such a crucial decision on water distribution (GoM 2005; GoUP 2008). Th is clearly shows that while on one side attempts are made to decentralize the governance of the water sector, on the other side there is centralization of key decisions in the water sector at the level of the state government.

Th e Impact of Centralization and Nationalization on Empowerment

Th e discussion so far suggests that there are strong tendencies to centralize the governance of the water sector at the national level as well as at the state level. Once such enormous powers related to crucial sectoral decisions get concentrated in the hands of the top bureaucracy, top regulators, or dominant vested interests, then empowerment will merely remain in the form of delegating the implementation functions at the local level. A major negative impact of ‘centralization’ and ‘nationalization’ of water sector governance will be on empowerment of the citizens and other stakeholders. It must be noted that there might be genuine con-cerns that prompted calls for giving due importance to the national perspective. Th ese would include concerns over the increasing instances and increasing severity of inter-state disputes or concern over repeated failure of the state level machinery and other instances, which would justify intervention, mediation, coordination, or control by the national government or other national level agencies. But it also needs to be noted that such attempts of giving an increasing role and control of the sector governance in the hands of national level agen-cies, without adequate thought to the dencentralization framework, would certainly lead to an adverse impact on the empowerment of state and local level actors.

Establishing IRAs: Impact on Empowerment

Th ree states have established IRAs in the water sector. Other states are considering setting up of IRAs. Th e fi ndings related to this development are now discussed.

Genesis of IRAs: Not Grounded inPublic Debate and Demand

National Water Policy discusses regulation as a policy measure mainly in relation to groundwater and fl ood management (GoI 2002b). Th is policy does not make

any mention of the need for a regulatory authority in the water sector. SWPs of various states also do not give any policy direction for setting up IRAs in the water sector. Th e only exception in this case is the policy of the state of Uttar Pradesh (UP) (GoUP 1999). Th is suggests that the initiative towards setting up of IRAs in the water sector at the state level is not grounded in policy debates at the state or national level, which are supposed to refl ect in the respective water policies. Similarly, the need for IRAs does not seem to emerge from an informed public debate or demands from stakeholders. Th e initiative to set up IRAs seems to be largely due to an externally driven stimulus, which became active mainly after the articulation of the NWP and SWPs. Th e major external stimulus in this regard is provided by the water sector improvement/restructuring projects undertaken in various states, which were funded by the World Bank. Th ese projects were initiated in Madhya Pradesh (MP) in 2004, Maharashtra in 2005, and Rajasthan and Uttar Pradesh in 2001. It can be seen that state policies in MP, Rajasthan, and Maharashtra were declared before undertaking these World Bank-funded projects. Further, the project appraisal documents of these World Bank-funded projects include establishing regulatory authorities as one of the conditions of the loan agreement (World Bank 2005b). Th is suggests that the move towards the formation of state level IRAs in the water sector has been an externally driven phe-nomenon. Th e main rationale provided by the World Bank for bringing in IRAs is to bring rationality in the decisions on key economic and fi nancial matters, such as tariff and entitlements, which is shown as the necessary precondition for increasing private participa-tion in the sector. Th is reform has no connection with the state or national level policy debates, but is created by an external stimulus with the intention that has nothing to do with empowerment. It is equally inter-esting to undertake a state-specifi c assessment of the process of establishing IRAs. Th e fi ndings of such an assessment are:

• Maharashtra became the fi rst state in India to pass a law for establishing IRA in the water sector. In 2005, the state passed the Maharashtra Water Resources Regulatory Authority (MWRRA) Act. It is interesting to note that the bill in this respect


was passed in the state legislative assembly on the last day of the session through voice vote, without much discussion on the revised draft. Th e World Bank loan for sector improvement was sanctioned by the Bank’s board immediately after the Act was passed.

• Arunachal Pradesh was the second state to pass such a law. Th e state literally copied the entire Act passed by Maharashtra. An assessment shows that many provisions in the Act are totally irrelevant to the specifi c context of the water situation in Arunachal Pradesh. For example, the legislation provides for removal of irrigation backlog in backward re-gions. Th e issue of irrigation backlog is relevant to Maharashtra and not Arunachal Pradesh. Here again there was no attempt to ensure empowerment through public participation and consensus on crucial decisions, such as the setting up an IRA.

• Uttar Pradesh passed a legislation for establishing an IRA in the water sector following the conditions stipulated in the contract for the World Bank supported water sector reform project. Neither civil society organizations nor any other key stakeholders in the state were consulted in the process of forming the law for this purpose (PRAYAS 2009a).

Th us, the sources or roots of these laws have nothing to do with empowerment; and even the processes of passing these laws are, without exception, are marked by complete disrespect to the basic tenets of public participation or transparency. In summary, it could be said that the assessment of the genesis of the laws for establishing IRAs indicates that there is hardly any consideration of empowerment or equity in either the genesis or passage of these laws.

Water Sector IRAs: Disempowering Tendencies

Major concerns regarding the setting up of IRAs in the water sector are about their ‘accountability’ to citizens and common water users. Th eir status—as quasi-judicial bodies—defi ned by the respective laws make them immune to political pressures or political activities. In eff ect, unlike the elected representatives who are held accountable by the public through the mechanism of elections, there is no formal mechanism to hold the IRAs accountable to the public.

IRAs are expected to be governed by the law that created them as well as by the rules and regulations for conduct of their business (which the IRAs are expected to articulate). To ensure that the IRAs adhere to the laws and regulations, the process adopted by them to arrive at decisions, has to be transparent, participatory, and accountable to their stakeholders, including common water users. An assessment of IRAs was carried out by comparing provisions of the Act for establishing state regulatory authorities in the water and electricity sectors (GoM 2003, 2005). After comparing the Electricity Act, 2003 and MWRRA Act, 2005, it was found that the Electric-ity Act contains much better provisions for transpar-ency, public participation, and accountability of state regulatory commissions. In contrast the MWRRA Act is very weak in all these aspects. Some of the fi ndings of the comparative analysis of the two acts are (PRAYAS 2007): • Section 3 (4) of the Electricity Act (E-Act) provides

for public participation in preparing the national electricity plan. In contrast to this, the MWRRA Act does not provide for participation in preparing the integrated state water plan.

• Section 181 (3) of the E-Act makes it mandatory on the regulatory commission to make regulations subject to the condition of previous publication. Th e condition of prior publication keeps open the opportunity for public awareness and participation in forming the regulations before they are fi nalized. Th ere is no such condition of previous publication in the MWRRA Act for provisions related to the powers of the regulator to make regulations.

• Section 86 (3) of the E-Act makes it mandatory on the regulatory commission to ensure transpar-ency while exercising its powers and discharging its functions. Th is provides blanket acceptance and unrestrained scope for transparency. Unfortunately, the MWRRA Act does not provide any concrete measure for transparency.

• Th e MWRRA act requires participation of water users only while setting tariff . It does not require participation of water uses while making decisions on important matters, such as determining water entitlements or project assessment.


Th ese examples show that the MWRRA Act, which is often been proposed as a model regulatory act for replication by other states, is, in fact, not supportive of the cause of empowerment of citizens and other stakeholders in the water sector. Th ere is another major hindrance in common water users infl uencing the functioning of IRAs. Th e IRAs are expected to ensure economy and effi ciency in water use. As a result, the focus of their deliberations is on technical, economic, and fi nancial aspects of issues on which decisions are to be taken. In order to infl uence these deliberations, the participants in the delibera-tions require a high level of technical, economic, and fi nancial expertise. Moreover, all proceedings of IRAs are supposed to be carried out in a quasi-judicial format and thus participants are also required to have adequate legal knowledge and skills for eff ectively participating and infl uencing the proceedings. Most civil society organizations, common water users, or their organiza-tions do not possess knowledge, expertise, or skills in these areas; neither do they have fi nancial resources to hire expensive professional services. Th is is not the case with dominant actors like the state and corporate houses, who often have both expertise and resources. In such situations, the proceedings and deliberations before IRAs may be controlled and captured by these dominant actors, often at the cost of the interests of other stakeholders. In other words, the nature of the proceedings and deliberations before IRAs tend to eff ectively disempower common water users. Th e experience of proceedings by MWRRA vindi-cates this analysis. Th e authority, which was conduct-ing the process for determining water tariff for farmers, initially chose to restrict itself to a website as the only means of communication for reaching out to farmers. It did not take into consideration the fact that these farmers were spread in remote rural areas, most of them did not even get electricity beyond 6 to 7 hours a day, and certainly did not have connectivity to the internet. Similarly, it also required all participants in the public

consultation to submit written petitions, when most farmers lack skills and resources to articulate their grievances on paper. In fact, it initially asked all partici-pants to make legal affi davits. Th e authority was forced to set aside this requirement due to strong protest by farmers (PRAYAS 2009b).

Water Entitlements: Regime of Inequitable Water DistributionAn assessment of the new legislations enacted in Maharashtra, Arunachal Pradesh, and Uttar Pradesh for establishing IRAs in the water sector shows that the creation, management, and regulation of the water entitlement system (WES) is at the heart of the regula-tory framework of IRAs in the water sector. As part of WES, various water users and groups of users shall be allotted certain shares of water as their ‘water entitle-ment’. UPWMRC and the MWRRA are empowered, through their respective legislations, to determine and regulate water entitlements to diff erent user groups (GoM 2005; GoUP 2008).1 Th e MWRRA Act states that entitlements are deemed to be usufructuary rights, (refer to Section 11 (i) (i) of the Act). Water entitle-ments are certainly not ownership rights but they are ‘rights to use’ (in short ‘use rights’), which are also called ‘usufructuary rights’. Th us, entitlements are legally recognized, registered, near-perpetual, and regulated rights over use of water. Such a system of water entitlements will drasti-cally change the way water resources are shared among various users. Th e system will usher a completely new mechanism for determining, recognizing, and allocat-ing rights over the use of water among contending stakeholders.

Narrow Interpretation of ‘Equity’: Creating Water Lords

Both the UPWMRC and MWRRA acts specifi cally mention in their preambles that the regulator shall en-sure judicious, equitable, and sustainable management

1 While the paper was under printing there was an amendment to the MWRRA Act which was passed in 2011. As per this amendment the powers of determining inter-sectoral allocations have been transferred from MWRRA to the Cabinet. Th e criteria for ‘equitable’ entitlement that existed in the earlier law now stands abandoned as per the amendment. Th e key feature of the amendment is the provision that legalizes all the past decisions of water allocation that led to water diversion from irrigation to non-irrigation use. Th ese decisions were made by a ministerial group by bypassing the powers of MWRRA.


and allocation of water resources. Th us, the legislations accept equity as the key principle that shall guide the allocation of water resources. Based on this acceptance, it is expected that there will be equitable distribution of entitlements, thus making the poor and other dis-advantaged sections including the landless, entitled to their due share of water resources. A thorough assessment of the UPWMRC Act shows that except for its preamble, the term equity is not mentioned in any of the legal provisions in the Act. In fact, there has been no attempt to legally defi ne the criteria for equitable allocation of water resources. Th e absence of a practically implementable defi nition of equity will not help the regulator to implement the principle of equitable distribution in practice. Th us, in practice, the provision for equitable distribution will not yield any results. Th e term equity is mentioned in the MWRRA Act four times in its main provisions, apart from being mentioned in the preamble (GoM 2005). Th e main provisions related to these in the MWRRA Act are:

• ‘for equitable distribution of water in command areas of the project, every land-holder in the com-mand area shall be given a quota’.

• ‘the quota shall be fi xed on basis of the land in command area, (refer to Section 12 (6) (a) & (b) of the MWRRA Act).

Th ese provisions clearly indicate that water will be made available to only those people who have land in the command area and it will be in proportion to the landholding. Hence, this defi nition of equity includes only landowners in the command area of an irrigation project. Th e defi nition totally ignores the rights of landless communities, including land tillers, agriculture labourers, and women cultivators. By making this law, the state has actually given legal sanctity to such a nar-row defi nition of equity. Th e reform instrument fails to evolve an inclusive interpretation of the principle of equity. Th e combination of two factors: (i) establishing the entitlement regime (legally recognized and perpetual use rights over water), and (ii) interpretation of ‘equity’ in terms of the land owned will allow big landlords to gain immense control over water resources that would not only have the government’s support but also have

legal sanctity. Th e WES with a narrowly defi ned prin-ciple of equity may thus lead to the emergence of water lords. Th is will ultimately reinforce the fi nancial and political clout that the dominant group holds today and would lead to further erosion of space for disem-powered sections to assert their rights. Th e problem gets further accentuated when we explore the linkages between WES and the creation of water markets.

Priority of Water Allocation: No Clear Mandate for Equitable Water Distribution

Th e IRAs have to follow the policy guidelines given in state water policies while determining water entitle-ments for agriculture or industry (GoM 2005). Th e national water policy as well as most of the state water policies in their list of priority use of water, give higher priority to water requirements in agriculture water than to industrial water requirements. Th e only exception to this is Maharashtra, which has allocated higher prior-ity to industrial water use as compared to agriculture water use (GoM 2003). Th is prioritization of industrial users over agricultural users in a state facing semi-arid conditions and water scarcity is seen by many as a clear case of inequity in water allocation as far as the water demands of farmers are concerned. Th e higher priority to agriculture water use in com-parison to industrial use provided in NWP as well as most other SWPs is, however, not unequivocal. Th ese reform instruments include a provision allowing for modifying the priority based on specifi c needs of cer-tain regions and purposes. Th us, the policies are in a way non-committal in giving higher priority to agricul-ture use in water allocation. Almost half of the SWPs that were assessed included such a provision allowing modifi cation of priority. Such discretion could be used in future to change the original priority list, resulting in inequitable distribution of water resources among contending users, disfavouring the small and disadvan-taged stakeholders. NWP, which acts as a guideline to all states, included the following categories in defi ning priority for water allocation: drinking, irrigation, hydropower, ecology, agro-industry, non-agriculture industry, and naviga-tion. Similarly, SWPs in some states (there are some exceptions) also have very short lists, neglecting water needs of diverse livelihood practices of rural people in this vast and diverse country. Th ese livelihood practices


which need water include aquaculture, aff orestation, and livestock, which are important rural, agro-based livelihood practices. Exclusion of these categories of water uses would lead to disadvantages to some sections of the rural population.

Entitlement as Precursor to Water Markets: Impacts on Equity

According to Section 11(i) of the MWRRA Act, the regulator is accorded the powers to fi x criteria for trad-ing of water entitlements. Further, the law states that, ‘entitlements … are deemed to be usufructuary rights which can be transferred, bartered, bought or sold … within a market system’ (refer to Section 11(i) (i) of the Act) (GoM 2005). Th us, emergence of formal water markets is not just hypothetically linked with entitle-ments; it has already penetrated the regulatory frame-work and received legal sanctions in one of the states in India. Th e assumption underlying the creation of water markets is that market forces will ensure allocation of water to the most high-value application or most eco-nomic use of water. Th is has already been implemented in countries like Australia and Chile (GoAu 2005) (Saleth and Dinar 1999). One of the most comprehensive studies done on the distributive impacts of water markets in Chile concludes that farmers’ share of water rights decreased signifi -cantly after formal water markets backed by the system of property use rights (entitlements) were introduced (Romano and Leporati 2002). Th is led to deterioration in the standard of living. Th e study further concludes that the share of the agricultural sector in water rights as a whole decreased while that of non-agricultural sectors increased. Such impacts would be detrimental to the agro-economy and the overall rural economy in India. Th is will further deprive the vulnerable sections of their rights to water resources.

Water Tariff Systems and Inequity

An assessment of the legislations for establishing IRAs also indicates that establishing a tariff system and regu-lation of tariff is one of the key functions of IRAs. Th e UPWMRC Act as well as the MWRRA Act entrust the responsibility of determining and regulating water tariff to the respective regulatory authorities. Water tariff has been a politically controversial and emotive issue. Th is is primarily due to its direct impact on the

aff ordability that, in turn, aff ects access to water for common citizens, especially, for vulnerable sections of society.

Paradigm Shift in Tariff System: From ‘Aff ordability’ to ‘Cost Recovery’

It should be noted that in many parts of India water charges are based on the (explicit or implicit) criteria of aff ordability for water users. As a result, in many places water is being provided free or at highly subsidized rates to certain areas or to certain sections of society. And for the same reasons expenditure for water services was sub-sidized using the revenue generated from general taxes. Th us, historically water services were predominantly considered social services and water was considered a social good. Th e new tariff regime that will be implemented as part of water sector reforms attempts to reverse this principle and replace it with the principle of water as economic good. Th ere is an emerging consensus that water services should either be run like a business, or become a business (Kessler 2005). A business-like operation would require full cost recovery from the water tariff charged to individual consumers. In eff ect, this requires charging of water services based on market principles. An assessment of state water policies shows that almost all the states in India have accepted the principle of cost recovery for determining water tariff . But, there was no formal mechanism to establish the tariff regime based on this principle. So this has been secured by making relevant provisions in the new regulatory laws, such as the UPWMRC Act and MWRRA Act, which eff ectively provide legal sanction to the paradigm shift in the perspective towards economic water services and tariff . Both the laws empower water regulatory authori-ties to establish tariff systems based on the principle of cost recovery, and to determine and regulate water tariff s. Such a shift from aff ordability to cost recovery will have a strong bearing on the cost burden of water services on the poor and marginalized sections of soci-ety. An application of the cost recovery principle will naturally increase water tariff s.

Assessment of Levels of Cost Recovery

In the Water Week Panel on Political and Technical Issues in Cost Recovery organized by the World Bank


(February 2005), six diff erent levels of cost recovery were proposed and recommendations were made for moving to higher and higher levels of cost recovery. Th e lowest cost recovery level pertains to the level where even operations and maintenance (O&M) costs are not recovered while the highest level pertains to not only recovery of O&M costs but also recovery of capital investments and profi ts (Revels 2005). Th e movement from one level of cost recovery to a higher level, as proposed by the World Bank panel, is actually being implemented through the new water regulatory laws in India. Th e water tariff levels that exist in a majority of the Indian states fall in the fi rst level of cost recovery, that is, tariff levels at which even O&M costs are not recovered. Th is explains the need that was felt for moving to the next level as accepted in MWRRA Act. As per Section 11(d) of this Act, water tariff should be able to recover O&M costs. Th e UPWMRC Act makes a provision for going to a still higher level of cost recovery than that achieved by the MWRRA Act (which was passed three years before the UPWMRC Act). Th e UPWMRC Act provides for recovery of cost of not only O&M, but also the cost of depreciation, and subsidies. In eff ect, the UPWMRC Act gives legal sanction for a higher level of recovery of costs. Th e provision for cost of recovery of depreciation from water tariff in the UPWMRC Act makes way for allowing recovery of that part of the capital which gets reduced due to aging and use. In accounting terms, depreciation is often equated with the cost of repayment of a loan. Hence, part of the tariff can be used to repay the loan (principal amount) on capital assets. Th e depreciation amount collected as part of the tariff can also be used for renewal, rehabilitation, or replacement of capital assets. Th us, the UP Act makes a landmark decision for recovering a signifi cant part of the capital cost on a continuous basis from water tariff . Provision of recovery of capital costs in this manner paves the way for a higher level of commercialization of water services, which would result in increasing the

cost of services. Recovery of capital costs also creates a conducive environment for privatization in the water sector. Th is assessment shows that both the regulatory laws have still not made a provision for recovery of invest-ments or profi ts from water tariff s. Once this level of cost recovery is reached, the water sector will be able to attract private investors. Unlike the MWRRA Act, the UPWMRC Act makes a provision for recovery of subsidy from water tariff s. Th e MWRRA Act makes provisions for cross-subsidy, which comes from the revenue from water tariff , as well as from government subsidy. But the UPWMRC Act mandates the authority to fi x tariff such that the revenue from the tariff should also recover subsidy. Th us, the UPWMRC Act attempts to close the option of government subsidy by putting the entire cost burden of subsidy on revenue from water tariff . Such an attempt will lead to tremendous pressure on service providers to reduce the subsidy component of the costs to enhance the already limited revenue collected from water tariff s.

Pricing Out the Poor and Rural

Th e tariff regime being envisaged in the policies and legislations will lead to an increase in water tariff . Th e increase in water tariff will mostly be targeted at the agriculture and rural economy, since these are the categories that are subsidized either by industries or by the government. Th is inference could be justifi ed by looking at the water tariff increase proposed in the fi rst approach paper prepared for MWRRA by a consultant for determining tariff regulations (PRAYAS 2009b). Th e proposal envisages 39 per cent increase in the tariff for agriculture water use and an only 5 per cent increase in water tariff for industrial water use. Th e proposal also seeks to put in place cost recovery as the primary principle for determining tariff and totally neglects the principle of aff ordability.2

2 While this paper was under printing, the fi nal criteria for tariff determination were fi xed by MWRRA. Th ese include various social criteria related to aff ordability. Th ese criteria were accepted by MWRRA only after strong demands made during the intense public consultations conducted by MWRRA due to pressure from civil society groups. Hence, this was achieved after a high social cost incurred by civil society groups in analysis, awareness generation, and public participation in regulatory process. Th e social criteria based on aff ordability should be made part of the law to avoid reliance on such a high social investment. Such social investment is not always possible due to lack of resources and capacities among the marginalized groups.


Th us, the new tariff regime in the water sector is attempting to bring in practice major commercial prin-ciples of regulation like cost recovery and reduction in cross-subsidy. Such a move to commercialize the water sector will have detrimental impacts on the poor and the agro-based rural economy of the nation. Th is will put the price of water services beyond the paying capac-ity of the poor and marginalized sections of society.

ConclusionTh e fi ndings of an assessment of selected reform instruments pertaining to the four issues can be sum-marized as:

• Reform instruments like NWP have attempted to centralize and nationalize the water sector. Th is may lead to disempowerment of local and state level actors by denying them an opportunity to partici-pate and infl uence key sector level decisions in the water sector.

• Th e emergence of IRAs in the water sector raises the question of accountability of these new decision-making bodies to the public. Lack of adequate mechanisms for transparency, public participation, and accountability in the proceedings of IRAs further leads to the lack of infl uence of citizens and water users on the governance of the water sector. Th is will open avenues for dominant and vested interest groups to control the sector by indulging in a regulatory capture.

• Legal reform instruments usher in new mechanisms for determining, allocating, and regulating water entitlements. WES has the potential to strengthen the water rights of local communities and marginalized sections of society. But, the current legal instruments use a very narrow meaning of equity that links water entitlements to the quantum of land owned. Hence, in reality they strengthen and reinforce the already inequitable system of land ownership. Also there is no strong commitment of giving priority to the water requirements of agriculture water as against industrial water requirements. Further, the linkages of water entitlements to development of formal water markets poses a serious threat of diversion of water to urban-industrial elites by compromising on the water needs of rural, agro-based poor communities.

• Water tariff systems based on commercial principles like cost recovery and cutting subsidies are also man-datory aspects of the new legal reform instruments. Such commercialization of the water sector will fur-ther put water services beyond the reach of common water users, especially of the poor and vulnerable sections of society.

Overall, the analysis indicates that the reform instru-ments do not provide adequate measures for enhance-ment of equity and empowerment. In fact, many of them are working against equity and empowerment. Th is calls for urgent and proactive measures to ensure that public interest, especially the interests of the vulnerable sections of society, are not compromised in the process of reforms in the water sector. Some the important measures that should be undertaken are:

• Participatory deliberations with wider participa-tion of farmers’ organizations, organizations of agriculture labourers, environmental organizations, and other marginalized sections should be held to review policies and legal instruments used for water sector reforms. Such a review should lead to neces-sary changes that will result in pro-equity and pro-empowerment frameworks and mechanisms.

• Th ere is an urgent need to evolve a normative framework for water governance based on the prin-ciples of equity and empowerment. Th is normative framework should be legally enforceable so that all future reform instruments, including IRA laws, follow the principles and norms laid down in the framework.

• Th ere is a need for rethinking of the IRA models being implemented in the water sector, especially because of its peculiar multi-dimensional nature. Water is a life and livelihood sustaining resource. Unlike commercial sectors which rely on eco-nomic principles alone, water regulation should be approached with proper integration of the social, environmental, economic, and political dimensions of water resource. Th e focus should be on develop-ing a regulatory system comprising of decentralized nested institutions rather than total reliance on an apex level authority.


Government of Andhra Pradesh [GoAP] (2008), Andhra Pradesh State Water Policy, Irrigation & CAD Depart-ment, Hyderabad.

Government of Australia [GoAu] (2005), Water Access En-titlement, Allocations and Trading, Australian Bureau of Statistics, Australia.

Government of India [GoI] (2002a), ‘Indian Reform Initia-tives In Water Sector’, Ministry for Rural Development, Government of India, Presented at Water Forum orga-nized by the World Bank, Washington DC.

———— (2002b), National Water Policy, Ministry of Water Resources, New Delhi.

———— (2006), Report of the Working Group on Water Resources for the Eleventh Five Year Plan (2007–12), Ministry of Water Resources, New Delhi.

Government of Karnataka [GoK] (2002), State Water Policy 2002, Water Resources Department, Bangalore.

Government of Madhya Pradesh [GoMP] (2003), State Water Policy 2003, Water Resources Department, Bhopal.

Government of Maharashtra [GoM] (2003), Maharashtra State Water Policy 2003, Mumbai.

———— (2005), Maharashtra Water Resources Regulatory Authority Act 2005, Mumbai.

Government of Rajasthan [GoR] (1999), Rajasthan State Water Policy, Jaipur.

Government of Uttar Pradesh [GoUP] (1999), Uttar Pradesh State Water Policy, Lucknow.

———— (2008), Uttar Pradesh Water Management and Regulatory Commission Act 2008, Lucknow.

Kessler, T. (2005), Social Policy Dimensions of Water And Energy Utilities: Knowledge Gaps And Research Opportu-nities, Th e World Bank, Washington DC.

Koppen B., R. Parthasarathy, and C. Safi liou (2002), Poverty Dimensions of Irrigation Management Transfer in Large-Scale Canal Irrigation in Andhra Pradesh and Gujarat,

India, International Water Management Institute, Colombo.

Prasad, N. (2007), Social Policies and Water Sector Reform, United Nations Research Institute for Social Develop-ment (UNRISD), Geneva.

PRAYAS (2007), ‘Suggestions for the Process of Preparing the Regulations’, Letter to Maharashtra Water Resources Regulatory Authority, Mumbai.

———— (2009a), Water Regulatory Authority: Process, Anal-ysis and Community Impacts of Water Reform Programs, Resources and Livelihoods Group, PRAYAS, Pune (in Hindi Jal Niyamak Ayog: Jalkshetra ‘Sudhar’ karyakramo ki prakriya, vishleshan aur samudayon par prabhav).

———— (2009b), Bulk Water Tariff Determination: Process and Content, Resources and Livelihoods Group, PRAYAS, Pune (in Marathi Th ok Jala Dar Nischiti: Prakriya Wa Ashay).

Revels, C. (2005), ‘“Equitable” Cost Recovery—Do we all mean the same thing?’, Presentation at Water Week 2005, the World Bank.

Romano, D. and M. Leporati (2002), ‘Th e distributive im-pact of the water market in Chile: A case study in Limarí Province, 1981–1997’, Quarterly Journal of International Agriculture, Vol. 41, Nos 1–2, pp. 41–58.

Saleth, Maria R. and Ariel Dinar (1999), Water Challenge and Institutional Response: A Cross-Country Perspective, Th e World Bank, Washington DC.

Th e World Bank (2005a), India’s Water Economy: Bracing for a Turbulent Future, Agriculture and Rural Development Unit, South Asia Region, the World Bank.

———— (2005b), ‘Project Appraisal Document on WB Loan of US$325 Million for Maharashtra Water Sector Improvement Project’, WB Report No: 31997-IN.

References

sachin warghade and subodh wagle - infrastructure ... warghade and subodh wagle 22 now penetrated...

Documents