Maharashtra Water Resources Regulatory Authority (MWRRA), formed under the MWRRA Act 2005 has been the first Regulatory Authority formed in India, on the explicit directions of the World Bank. While the focus of the World Bank was more on tradable Water Rights, Water use entitlements and generally pushing water as an economic good, the Authority found itself dealing with more substantial issues of equitable water distribution soon after it was formed. Even at the time of its constitution, several organizations had cautioned about its bureaucrat-heavy and exclusive constitution, looking at the vast challenges Maharashtra faces. In its past 10 years, the Authority has always been in the news and not always for the right reasons.
In the 2012-13 drought, the Authority was paralyzed by the non-appointment of Chairperson and Members, which invited ire from the High Court. Two times in the past, it has been the Court which has ordered immediate resuscitation of the slumbering MWRRA, without members.
The situation is same now, Chairperson has retired, term of Member (Economy) has ended and Member (Water Resources Engineering) had to resign under duress, following an embarrassing conflict of interest in a court matter[i].
The Authority has not been in existence for more than 4 months now, despite a High Court order to constitute it within a week. Again, like in 2012-13 drought, this has happened when the state was facing one of its worst water crisis, conflicts were rife and a third party impartial quasi-judicial authority was needed to put some semblance of order in the lawless water sector of Maharashtra.
Following protests, PILs from experts like Pradeep Purandare, increasing public awareness about the existence of this authority and the Chief Minister’s apparent interest in the functions of the State Water Council (which he heads) and the MWRRA, an Ordinance was passed in June 17th 2016 to amend the MWRRA Act, specifically the constitution of the Authority, signed by the Hon Governor Vidyasagar Rao. This ordinance may be discussed in the Assembly which is ongoing in Mumbai currently.
The 5-page ordinance includes a statement from the Governor which says that it was passed “after considering the recommendations of a study group set up under the Chairpersonship of HT Mendhegiri to suggest changes to the MWRRA Act in view of difficulties being faced while implementing the provisions of the MWRRA Act and to suggest the suitable provisions which may be technically feasible and can be implemented in actual practice”.
The report of Mendhegiri study group was submitted to the Government in July 2014 itself, but the Government took two years to act on it. More importantly, the report itself is not available in the public domain, so we do not know what its recommendations were. Several organisations, including SANDRP had sent formal suggestions to the Mendhegiri Study Group about MWRRA Act and had also taken part in Study Group Discussions. We have no idea what happened to that.
The current Ordinance limits all amendments to the Constitution of the Authority, when the Act itself needs important amendments. Before going into the nitty grittys of the Amendment, we appeal to the government to make Mendhegiri Committee report open to Public.
Ordinance deals exclusively with the constitution of the MWRRA Authority. Major changes are indicated in the table below:
|Old Act||New Act|
|MWRR Authority consists of Chairperson and Two Members: Member Water Resources Economy and Member Water Resources Engineering||MWRR Authority will consist of Chairperson and four members:
Economy, Engineering, Groundwater and Law
|Chairperson who is or who was of the rank of Chief Secretary or equivalent||Chairperson who is or who was the Officer of the State Government of the Rank of Chief Secretary or equivalent or Retired High Court Judge|
|Five special invitees from different River Basin Agencies from areas like industries, law, infrastructure, etc.,||Same, with an addition of: ecology and environment. At least one invitee a woman|
|Selection Committee for appointing Chairperson and Members under the Chairpersonship of the Chief Secy and 8 other secretaries of different departments||Selection Committee for appointing Chairperson and Members under the Chairpersonship of Chief Secretary, three secretaries, Director of IIT and one person nominated from the Govt from a reputed institute|
|The Government shall, within one month from the date of occurrence of any vacancy of the Chairperson or Member, and six months before the end of tenure of Chairperson or any Member, make a reference to the Selection Committee for filling up of the vacancy.||No such reference. But a temporary committee to take over in case of delay in constituting the Authority|
Reinsertion of a New section: “3A. When the Authority cannot be reconstituted for whatever reason, the powers, functions and duties of the Authority may be exercised by a Committee, to be appointed by the Government, by notification in the Official Gazette, consisting the Additional Chief Secretary or equivalent, as a Chairperson and the Secretary (Water Resources Management and Command Area Development), Water Resources Department and Principal Secretary/Secretary, Finance Department, as Members. This Committee shall cease to exist after six months or when the Authority is reconstituted, whichever is earlier.”
As can be seen from the table above, apart from expanding the ambit of the Authority, including Retired High Court Judges as MWRRA Chair and a new temporary committee when the Authority does not have members, the Ordinance does not make any major changes to the Act. All of this is limited to the constitution of the Authority.
Here too there are problems.
- The temporary committee includes Secretary of the Water Resources Department as one of the members. This is specifically problematic as MWRRA has to hear cases where WRD is a respondent. In almost all of the cases heard by MWRRA so far, WRD was implicated by petitioners. The objectivity and unbiased stand of MWRRA is directly in conflict with having WRD Secretary as its member and any interference of WRD should be unacceptable for MWRRA.
- While on one hand the Act says that the Chairperson cannot hold any other office of profit, the qualification of the Chair says She/he can be a serving Chief Secretary also.
In fact, six months-period for constituting a new committee is too long and there is no justification to this long gap. The older version of the Act did not have any such provision, but the selection committee was supposed to start their process a month before retirement of the members. That it did not happen in reality and the Authority was dysfunctional close to a year and now for over four months is unfortunate.
No participation: Repeating the old mistakes, the Ordinance again gears up for a bureaucrat and government-heavy authority. While the Ordinance calls for five special invitees from 5 River Basin Agencies, firstly River Basin Agencies are not formed yet in Maharashtra even after 10 years after promulgating the Act! Secondly, most of the River Basin Organizations across the World are specialized bodies with multi Sectoral representation. Specific emphasis is laid on stakeholder participation. Typical RBO may consist of working groups from sectors like ecology, groundwater, climate change, water quality, disaster management, flood management, fisheries, etc. The aim of an RBO is to further Integrated River Basin Management. Most of the successful RBOs lay great emphasis on stakeholder participation, which is completely absent in the Irrigation Development Corporations.
MWRRA however limits itself to a self-selected committee of government and bureaucrats which denies any chance of true river basin representation or perspective.
Mandate of the Irrigation Development Corporations, which are simply expected to be converted into River Basin Agencies has been limited to building water resource projects. River Basin management, which is the function of an RBO/ RBA goes much beyond their ambit.
Irrigation development corporations in Maharashtra are under scanner for severe irregularities affecting the end users. The performance of irrigation development corporations has been significantly non-transparent, non-participatory and opaque and these institutions do not inspire hope or confidence as River Basin Agencies and should not be entrusted with this task.
Having said this, the Ordinance does not go beyond constitution although the Mendhegiri Study Group had taken consultations about amending very Act itself. Some of the suggestions we had made to Mendhegiri Committee:
- ‘Equitable Water Distribution’: Equitable Water distribution features from the Preamble of the Act, however, there is no explicit definition of ‘Equitable’ in the Act or Rules.
Ø Defining ‘Equitable water distribution’ is imperative so as to reduce subjective interpretations in the implementation of the Act. The MWRRA Rules (which were subsequently taken back) had said that Authority will try to allocate water equitably at project level and as far as technically possible and practicable, in the sub basin and basin level. (Translated and emphasis added)
Ø Principle of equitable distribution should be sacrosanct to MWRRA Act. Equitable Distribution in a Sub Basin or Basin should not be at the mercy of subjective terms like “technically feasible and practicable”. In the level of priority, equitable distribution in sub basin or basin should come before project-wise distribution.
- Exclusion of participation in the MWRR Authority, RB Agency, State Water Board or Council:
AS stated above, the MWRR Authority, selection committee, State Water Board (Secretaries of various Departments) while and State Water Council (Chief Minister, Ministers and secretaries from various departments.) are top heavy institutions and are prone to political and bureaucratic influences. The extent of this influence has been witnessed by the people of Maharashtra, the High Courts as well as the MWRRA itself in the drought of 2013 and later. From these lessons, it is imperative that the composition of Authority, River Basin Agency, the State Water Council and well as the State Water Board needs to be modified radically to reduce the political and bureaucratic pressures and to make it accountable and transparent. There is a need to include stakeholders from multiple sectors, water users associations, representatives of landless laborers, non-official members, non-government organizations, and representatives from social sectors, environmental sectors, etc.
Ø Sub Basin and River Basin Plans as well as the State Water Plan should evolve organically as a bottom up process coordinated by the River Basin Agency by integrating watershed level plans, which are in turn put together by the local residents. In effect, the Sub Basin or Basin plan should be a synthesis and upscaling of locally appropriate plans. Such sub basin or Basin Plans should then be integrated into a State Water plan. In the current form of MWRRA Act, there is no scope for participation at all as the RB plan is made by RBA, Integrated State Water Plan is made by State Water Board and approved by State Water Council.
- Priority to Environmental Flows, Ecology and Environment
Preamble of the MWRR Act states that the Act is to “facilitate and ensure judicious, equitable and sustainable management, allocation and utilisation of water resources”. It also states that “Category of Use” shall mean use of water for different purposes such as for domestic, agricultural irrigation, agro-based industries, industrial or commercial, environmental, etc., (emphasis added).
There is no discussion further on environmental water requirements or environmental flows (eflows) in the entire Act. There should be a specific section on the duty of MWRRA to assess, allocate and monitor eflows. MWRRA is best placed to play this role.
The Act and Rules should specifically reflect on the need for eflows from the existing dams and the planned/ under construction dams for sustenance of downstream ecosystems and communities and the principles of implementing this. This is essential as per the priority accorded to environment enshrined in the National Water Policy 2012 and State Water Policy 2003.
The author was a member of the subcommittee on Environmental Flows constituted by the MWRRA, unfortunately before the report could be finalized, the Authority ceased to function and hence the report lies languishing.
In the past 10 years, several lessons have been learnt from the MWRRA experience. All experiences point to the fact that the Authority needs to be insulated from political and bureaucratic influence to which it is very vulnerable. It needs wider participation from the river basin constituents, it needs more independent voices, it needs independent corpus and should not depend on the WRD for funds or favors, it needs to act truly as an Appellate Authority and not a pseudo-canal-officer performing the duties best performed at regional levels, but were not because of the non-performance of Water Resource Department.
While MWRRA needs autonomy and power, it also needs to shed its bureaucrat and top-heavy image. Only a wide participation and independent voices can keep it safe from political influence and hegemony of the WRD. The current ordinance makes it more vulnerable to interference from WRD, while not increasing independent participation at all. We hope the above suggestions are kept in mind while amending the Act. It is an opportunity that should not be missed.
Parineeta Dandekar, SANDRP, firstname.lastname@example.org