Law of equitable management

Syed Mohibullah Shah

Published Date: 05 March 2025

Published in: The News

Water is life. The birth of human civilisation also owes itself to the assured supply of abundant water from major rivers. It was on the banks of the Tigris–Euphrates river system that the ancient Mesopotamian civilisation was born.

It was the waters of the River Nile that gave birth to the Egyptian civilisation. And it was the waters of the Indus River that gave birth to an ancient civilisation 7000 years ago that goes by the name of the river itself – the Indus Valley Civilisation. And it was the waters of the Yellow River that produced the ancient Chinese civilisation.

Among several discoveries and inventions that enriched ancient civilisations, the people of the Indus Valley Civilisation have the distinction of being the first to discover from wild vegetation of jungles, the cotton plant in the fertile soil of the delta region of the Indus River and cultivate it on large scale to cloth naked human bodies before it spread out to rest of the world.

But now, it is this very delta region of the River Indus, where not only the fertility of the soil but the land itself is facing extinction under onslaught from two sides.

As waters downstream of Kotri Barrage have decreased and barely a trickle is reaching the sea, the sea levels have been rising. Over a million acres of land in the delta region have been damaged, some completely eroded by rising sea levels and the rest turned infertile by intrusions of salty sea water making it unfit for cultivation and ruining the lives and livelihoods of millions of people and biodiversity of the delta region.

But, instead of sympathy for the sufferings of fellow citizens, it is surprising to hear calls for completely drying out river flow with no river water reaching the sea — which they call a waste.

Let me share how people living in foreign countries treat the same issue. The Mississippi River in the US passes through 10 American states providing water for their drinking, household, agricultural, industrial and commercial uses. When it finally falls into the Gulf of Mexico, it is neither dry, nor with a trickle of water, but carries 600,000 cusecs of water per second as it falls into the Gulf.

The reason is that seawater is salty and dense, while fresh river water is light. Therefore, if the full flow of river water does not push the dense salty water fully back into the sea, it creeps up under the top layer of light river water and continues to damage fertile lands. So, if sufficient river water is not constantly flowing to keep pushing back the seawater, the delta region along with its biodiversity would cease to exist and there would be an exodus of people searching for living places and livelihoods.

The damage will not stop there as towns far away would also see damage to their properties and drinking water. In drought years, when these 600,000 cusecs of water per second did not fall from Mississippi into the Gulf of Mexico, the sea waters intruded upstream, damaging properties and polluting water supply as far as New Orleans, 80 miles away, causing panic among its residents.

The job of equitable management of water was entrusted to the Indus River System Authority (Irsa) set up in 1992 as a body corporate to carry out the purposes of the Water Accord of 1991. The accord was a landmark agreement which harmoniously resolved the issue of equitable distribution of water among provinces putting an end to a long-simmering dispute between Punjab and Sindh and helping in national consolidation.

However, it seems that the goodwill created by the accord has been neutralised by repeated complaints and protest marches against various decisions of Irsa, the latest being over the Six Canals project. When one looks closely at the structure and organisation of Irsa as it stands today, it appears in conflict with universally accepted principles of equitable management of common resources, when two or more entities come together in an enterprise, but the flow of benefits is sequential. This gives rise to the ‘agency problem’ among people who are rational, self-interested and want to take maximum benefits themselves, leaving little or nothing for subsequent beneficiaries. This agency problem is present in the corporate and political worlds where the flow of benefits is sequential, instead of simultaneous, as is the case with River Indus waters.

The solution to this ‘agency problem’ has been found in the law of equitable management, which lays down a strict mechanism that establishes trust which has enabled the mom-and-pop shops to grow into large corporations and city-states to join large countries to grow and prosper together.

In the case of a corporation, the principle of equitable management dictates that the ultimate beneficiaries – shareholders — should be the only ones on the board of directors. Their role is to hold accountable the preceding beneficiaries, such as management, banks, and vendors, ensuring that a fair share of benefits reaches the end recipients rather than being consumed entirely by those earlier in the chain.

This principle also applies in the political sphere, where citizen voters are the ultimate beneficiaries. They alone have the power — either directly through elections or indirectly through representatives — to hold leaders accountable, including presidents, prime ministers and high officials. This accountability is essential to prevent those in power from turning governance into a self-serving enterprise, leaving the people — the last in the sequence of benefits — neglected or with mere scraps.

It is the same with water issues with upper and lower riparians where the flow of benefits is sequential, and the agency problem would leave a trickle of water to reach the last riparian unless the law of equitable management of common resources is strictly implemented. We should also be clear in our minds about what ‘development’ really means. Development is guided by the ‘no-harm’ doctrine which says that ‘empowering’ some while ‘disempowering’ others does not constitute development.

If we put these best management practices together and learn from others how rivers within the same country are maintained until they finally fall into the sea, three recommendations stand out:

One, we need to scientifically check how much Indus River water should be falling into the sea so that sea levels do not rise — eroding lands and creating a human catastrophe for people in the delta region.

Second, we need to review the Irsa Act to remove flaws which prevent it from implementing equitable management of common resources with sequential benefits; otherwise, the agency problems will keep causing disputes and frictions among provinces and the federation.

Three, the dispute resolution mechanism has been provided under the constitution as the inter-provincial water is the exclusive domain of the Council of Common Interest under Article 155, and not the federal government. This mechanism should not be tampered with — otherwise, it would invite accusations of inequitable management and violation of the no-harm doctrine of development.

The law of equitable management and the ‘no-harm’ doctrine of development should guide us to harmoniously grow and prosper together.