Negotiation with an Under-Informed Bureaucracy: The Case of Water Rights on System Tanks of Bihar

Abstract

"Although there exists voluminous literature about the modern Indian legal system, and some about land and forest rights, there is little about rights to other natural resources. In general, the colonial government left most natural resources with poorly defined property rights. In the post-independence years the bureaucracy made great inroads through its different functions, using the possibilities for open access, but did not improve much on granting of rights. De Facto rights, however, have existed all along. Whenever contested, by private parties or by the government, conflicts and negotiations ensued. The resolutions of these disputes were essentially spontaneous self- organization processes.

"In recent years there has been growing attention to local management of common property resources, and a recognition of the potential of farmer-managed irrigation systems. Many indigenous irrigation systems provide good examples of farmer management and are therefore, being studied for learning principles of management. But these studies often overlook that the 'traditional' irrigation systems no longer exist in the traditional settings. Their functions are now conducted in an environment of formal rights. In some areas the bureaucracy is careless and ignorant about the norms, customs, and performance records of the spontaneous organizations or may interpret them as static 'customary rights,' a favorite construct of formal law. One section of researchers are blind to such inconsistencies and tend to accept that formal laws actually regulate the irrigation systems. The other section rejects these inadequate legal traditions and tend to treat the traditional systems as if they exist in isolation. Actually, even if misinformed, bureaucratic or legal interpretations always impinge on the local negotiation process, delineating the space for forum shopping as various local parties use the threat of external intervention to reach settlements (see Spiertz, Chapter 6 in this volume, von Benda-Beckmann and van der Velde 1992).

"This paper describes how farmers negotiate water rights in such a warped setting. If self-organisation processes are possible, the de facto rights are defined again and again even in traditional systems. In such a case a rigid concept of customary rights makes no sense. However, some efficient principles may sustain over a long period. Particular attention has been paid in this article to bring out the existence of such efficient and sustained principles through a historical case study of how rights to traditional irrigation tanks were negotiated as the colonial and post- independence Indian bureaucracy expanded its influence. The chapter moves from macro to micro, beginning with an overview of water rights in India, and treatment of indigenous irrigation systems. It then takes up the example of traditional pynes in Bihar, and negotiations in Supi Desiyain Pyne in particular. The final sections highlight the contrast between bureaucratic definitions of rights and farmers' own conceptions."