INTER-STATE WATER DISPUTE

INTER-STATE WATER DISPUTE

– GEETHANJALI K.V., Legal Associate, CEERA-NLSIU;

SNEHLATA CHATURVEDI, 4th Year Student, KLE Society’s Law School, Bengaluru

MAHEK JAIN, 5th Year Student, Bishop Cotton Women’s Christian Law College, Bengaluru

Introduction

Water is ‘the stuff of life and a basic human right’.[1] 70% of the Earth’s surface is composed of water; it covers the oceans, the rivers, and underground water we consume. Water is an imperative fundamental for life and human survival. Water law is compiled of distinct dimensions comprising of human rights, economic, environmental and cultural aspects. The prime concern of the spectrum is to develop laws to provide access and control over the water.  Water laws are formulated comprising both formal and less formal arrangements. Formal arrangements include treaties, federal and state acts, less formal arrangements include water and water-related policies, customary rules and regulations.

In India the basic human need of water is fulfilled by various water sources like lakes, ponds and underground water, rivers etc. India is a country with 14 major and 44 medium rivers[2] and these fill up about 85% of the Indian Territory[3] and 9 among them are inter-State rivers. Indian federalism has one exigent issue in hand, the Inter-State Water Dispute. In a Semi-Federal country like India, every state claims its right over natural resources; this becomes disputable especially in case of water because all principle rivers flow through several states. These disputes are highly potent and thus they often end up in widespread unsatisfaction. Resolving such disputes without giving them a political colour is vital to avert violence. The Central Government has time and again failed to set up an efficient mechanism for such disputes. The Inter-State Water Disputes are a result of inept confluence of federalism, dispute resolution machineries and legislations.

Some of the major Inter-State Water Disputes in India are Godavari Water Dispute, Krishna Water Dispute, Ravi & Beas Water Dispute, Narmada Water Dispute and Cauvery Water Dispute. Many of these disputes have lingered on for years due to delay in constitution of Tribunals or poor implementation of Tribunal Award. Even though there are a plethora of Legislations in India, Inter State Water Disputes continue to create disharmony amongst neighboring states and the same has been analyzed in this post along with the Cauvery Water Dispute in particular.

Constitutional Provisions Relating To Inter-State Water Disputes

Part 3 of the Indian Constitution enshrines Fundamental Rights to its citizens and incorporates the notions of universal human rights.  The Supreme Court has sporadically interpreted the Constitution to deliver justice and aprobate social and economic rights. Even though, Right to water is not explicitly stated as a fundamental right, the Supreme Court has majestically interpreted and read it through the Right to life.[4] The Supreme Court held that right to water is a right to life, and thus a fundamental right.[5]

In Narmada Bachao Andolan v Union of India (2000) it was held that, water is a part of Right to Life not to mention a basic human right and a basic need for the survival of human lives and livelihood.[6]

In India, laws related to Water is a state subject as per Schedule 7 of the Constitution of India. Government of India Act, 1935 delivers powers to the States to legislate in their respective areas. Therefore, States have the exclusive power to regulate water supplies, irrigation and canals, drainage and embankments, water storage, hydropower and fisheries.[7] However, the powers conferred upon the States are not absolute in nature and have certain restrictions as well.[8] The power to legislate on subjects that pertain to shipping and navigation on national waterways as well as powers to regulate the use of tidal and territorial waters shall fall under the ambit of Union legislation.[9] As per the Constitution of India the Union also has the right to adjudicate matters comprising of inter-state water disputes.[10] In this regard the Union enacted the Inter-State Water Disputes Act and adopted it in 1956.[11] This Act provides for establishment of Tribunals to adjudicate the matters pertaining to inter-state water disputes that could not be resolved through negotiation.[12] The River Boards Act was enacted by the Parliament to set up advisory River Boards by the Central Government to provide assistance and advice to the State regarding inter- state or river valley development.[13]  The River Boards aims at assisting States in matters relating to conservation, control and efficient utilization of water resources, the promotion and operation of schemes for irrigation, water supply or drainage or the promotion and operation of schemes for flood control.[14] However, the Act has never been used in practice. The early existing concept of riparian rights became the origin for rule of surface water. In order to provide similar quality, quantity and undiminished flow of water to all riparian owners as a basic rule, riparian owners had a right to use the water of a stream flowing past their land equally with other riparian owners.[15]  With time the concept took a firm position and now focuses on recognising water as public trust.[16]

Legislative Competence

(a) The State list vests power in States to legislate (State list, entry 17), with respect to the following subject: “Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, subject to the provisions of Entry 56 of List 1.”

(b) Entry 56, of the Union list reads: “Regulation and development of inter-State rivers and river valleys, to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.”

Article 262.

Article 262 of the Constitution talks about, adjudication of disputes relating to waters of inter-State rivers or river valleys: Any dispute or complaint with respect to the use, distribution or control of the waters of, in any inter-State river or river valley the Parliament shall have the right to adjudicate the matter.

Article 13(3) of the Indian Constitution may in furtherance with “law” include law, order, law, regulation, regulation, notification or legal force in India pertaining to the transnational river or river valley.

Notwithstanding anything in this Constitution, Parliament may, by law, provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1)”Act of 1956.

  • The Inter-State Water Disputes Act, 1956 was enacted by the Parliament withstanding under Article 262 of the Constitution.

Section 3 of the Act contemplates the reference of a “water dispute” to a Tribunal.

Section 2(c) defines “water dispute”, meaning dispute between two or more State governments concerning water issues.

  • An individual cannot directly make a complaint, the State Government is provided to request to the Centre Government for resolving the dispute or any matter related whatsoever.
  • Articles 131 and 136 of the Constitution.

The matters related to inter-State rivers are frequently brought before the Supreme Court via Special Leave Petitions. Article 32 gives the Supreme Court only original jurisdiction. Article 131 of the Constitution gives the court original as well as an exclusive jurisdiction as it can solve disputes that arise out of the Presidential and vice-presidential elections.[17] The Tribunals have the power to resolve disputes between the States under the Provision of Inter-State Water Dispute Act, 1956; however, the Supreme Court has the power to bind the award.[18]  In the case of State of Rajasthan v UOI, it was held that the Supreme Court has the power to provide legal relief to procure the rights of the affected state.[19]

  • Article 143(1) of the Constitution.

The Central Government (via President) can seek opinion from the Supreme Court under its advisory jurisdiction on the matters concerning inter-state river disputes. However, the SC has the right to dismiss the matter and decline its opinion although the reasons should be indicated.[20]

Doctrine Of Equitable Apportionment

The doctrine of equitable apportionment originated in the United States of America through several decisions of the US Supreme Court.[21] India has recognised the theory of equitable apportionment and its vagueness therein. “Equitable apportionment”, states that every riparian State is entitled to a fair share of water of an inter-State river. The doctrine has been adopted by the legal system in India through several inter-state water dispute tribunals. They are as follows:

  • The Indus Commission (1943).[22]
  • The disputes shall be settled by agreements.
  • Each party shall get a fair unit of water of the common river, therein applying the rules of equitable apportionment.
  • As per the circumstances, the equitable apportionment can be ceased.
  • The Krishna Water Disputes Tribunal.[23]
  • It was observed, every party should enjoy the fair unit of water of the common river. However, the principle cannot be applied in all the matters. The principle shall be applied according to the necessity and circumstances to the issue.
  • The Narmada Water Disputes Tribunal.[24]
  • The doctrine of equitable apportionment can be interpreted on case-to-case basis. Puting it in a straitjacket formula constraints it’s application.
  • While adjudicating the matter, a fair regard should be spared to the agreements, judicial decisions, awards and customs that are binding upon the parties.
  • Considering these factors, the court otherwise if fails to comply with these aspects, the decision should be made concerning the social and economical needs of the state.
  • The other matters that Tribunal considers are (i) the volume of the stream; (ii) the existing usage by States concerned (iii) areas of land still un-watered; (iv) State’s physical and climatic characteristics; (v) land’s relative productivity  in the concerned States; (vi) State-wise drainage; (vii) dependency on water supply  (viii) alternative method to satisfy the needs; (ix) amount of water contributed by States to the inter-State stream; (x) water evaporation in each State; and (xi) efficiency in utilization of water by the concerned States.

The River Boards Act, 1956

The Act was enacted by the Parliament on 12th September 1956. It aims at formulating and regulating the development of inter-state rivers and river valleys.[25] To achieve the same it also provides for the establishment of River Boards.

The River Boards was introduced to assist the Central Government in endeavoring development opportunities, infrastructure, dispute resolution among states, and function other cordial activities. The Board was formed to advice and assist the government in matters relating to rivers and inland water activities. The Board functions in advisory capacity and not adjudicatory. To suffice the needs of different inter-state rivers and valleys there can be different boards. The Board takes matters related to, irrigation and drainage schemes, development of hydro-electric power, flood control plans, promotion of navigation, control and prevention of soil erosion and pollution.

In span of over 50years the government has constituted no such River Board.

The Inter-State Water Disputes Act, 1956

The Parliament of India has enacted the Inter-State Water Disputes Act, 1956 in pursuance of Article 262 of the Constitution.  The Act empowers to establish water courts to resolve the disputes among States regarding distribution and procurement of transnational rivers, and river valleys. The Act was enacted to dissect the national conflict between States. The salient features of the Act are summarized below:

  • The State Governments shall send a request to the Central Government for adjudicating the waterway disputes.
  • The Central Government can transfer the matter to the Tribunal if it fails to negotiate the matter.
  • The Tribunal shall consist of a Chairman and two other members, nominated by the Chief Justice of India from among persons who, at the time of such nomination, are Judges of the Supreme Court.
  • The Tribunal can appoint an assessor for any advice during the case.
  • The Tribunal employs its decision in the Report.
  • The same is published and is binding to the parties.
  • The Supreme Court and other courts are barred from any jurisdiction in respect of a dispute referred to the Tribunal.
  • To implement the Tribunal’s decision, the Central Government may frame a scheme.

The Inter-State River Water Disputes (Amendment) Bill, 2019

  • The Minister of Jal Shakti, Mr. Gajendra Singh Shekhawat, introduced the Bill in Lok Sabha on July 25, 2019. It is an amendment to the Inter-State River Water Disputes Act, 1956.  The Act provides for the adjudication of disputes relating to waters of inter-state rivers and river valleys.
  • The State Governments shall send a request to the Central Government for adjudicating the waterway disputes.
  • Disputes Resolution Committee (DRC) shall be set up by the Central Government and seek to resolve a dispute for 1 year (extendable to 6months).
  • The Central Government can transfer the matter to the Tribunal (within three months from the receipt of the report from the DRC) if it the Committee fails to negotiate the matter.
  • The Tribunal shall consist of a Chairman and two other members, nominated by the Chief Justice of India from among persons who, at the time of such nomination, are Judges of the Supreme Court and two experts serving in the Central Water Engineering Service as assessors to advise the Bench in its proceedings.
  • The Decision by the Tribunal should be delivered within 2years, which may extend to one year.
  • The Report of the Tribunal shall be submitted to the Central Government within a period of 1 year, which may extend to 6 months.
  • The decision of the Bench of the Tribunal shall be final and binding on the parties involved in the dispute.
  • The Central Government may frame a scheme to give effect to the decision of the Tribunal.
  • The Central Government may frame Data Banks and information system at the national level for each river basin and an Agency shall be formulated to procure information and maintain Data Banks nationwide.

The Bill was proposed before the Parliament due to lack of adequacy in the Inter-State Water Disputes Act, 1956. The former Act had a shortfall in its operation and adjudication due to no time limit adjoined to it. The Central Water Commission (CWC) and Central Ground Water Board of India (CGWB) are the independent bodies and stand no common forum for the States to communicate on water management.

Major Inter-State Water disputes Tribunals in India[26]

  • Godavari Water Disputes Tribunal
  • Krishna Water Disputes Tribunal –I
  • Ravi & Beas Water Tribunal
  • Narmada Water Disputes Tribunal
  • Cauvery Water Disputes Tribunal
  • Krishna Water Disputes Tribunal –II

Various Tribunals have been constituted so far to resolve these Inter-State Water Disputes. But only four tribunals have submitted reports and too after a delay of 28 years. In order to make efficient, speedy tribunals, we must rise above regional disputes and see the issue pf water scarcity in its totality. In 2019, Lok Sabha passed a bill for faster inter-state water dispute resolution, by moving Inter State Water Disputes (Amendment) Bill. The Bill emphasized on the need for a single Central Tribunal, where awards will be given within two years.

Recently disputes like Cauvery Water Dispute and Satluj Yamuna Link Canal are examples of how delay in verdict can not only hamper relationship between two states but it can lead to situations of aggregated violence.

Cauvery Water Dispute

The river Cauvery (Kaveri) is a sacred river flowing through Karnataka and Tamil Nadu. The river is also known as Dakshina Ganga and is famous for its scenic beauty and has been an integral part of Tamil Literature. It is the fourth largest river in South India. The Cauvery rises at the Talakaveri on the Brumaire range in the Western Ghats in Karnataka and the catchment of the river basin lies in the states of Karnataka, Tamil Nadu, Kerala and Union Territory of Pondicherry. 41.2% falls of the total basin area falls in Karnataka, 55.5% in the state of Tamil Nadu and 3.3 % in Kerala.

Cauvery River and Karnataka

Cauvery is a major source for drinking, irrigation and industrial use water in Karnataka. It works as lifeline for the agriculture sector in Mandya, Hassan, Thumkur, Ramanagarm, Mysore districts. The river becomes important for a city like Bengaluru that has become a hub for MNCs, pharmaceutical companies and several industries. Weak Monsoon, industrial growth, rapid urbanization has increased Karnataka’s dependency of the River Cauvery.

Cauvery River and Tamil Nadu

Agriculture is the prime and traditional occupation for the people of Tamil Nadu. Tamil Nadu has very few water resources to maintain its water supply, and thus it relies heavily on Cauvery River to sustain its agricultural needs. Cauvery becomes important for the livelihood of people and economy of the state.

Colonial Era

The once fertile Cauvery delta has turned into a minefield of controversies. Karnataka and Tamil Nadu have been on dispute over Cauvery Waters for centuries now. The origin of this dispute can be traced back to Colonial times in India. The 122-year-old dispute started in 1892, when Madras Presidency objected Mysore administration’s proposal of building irrigation system on the river. Tamil Nadu has always been dependent on water outsourcing due to its geographical location. It objected this system, as it was highly dependent of Cauvery waters. In order to maintain amicable relationship between both, the British Government made them sign an agreement, which implied mutual benefit to both parties.

In 1910, the Madras Presidency objected on construction of a dam on Cauvery river by the Mysore State. This dispute ended up in arbitration where arbiter gave permission to The Mysore State for construction of dam. The same was challenged. This led to an agreement between the states, which allowed Madras to build a dam at Kannambadi village. As per the agreement, Tamil Nadu and Puducherry would get 75% of the surplus water, while Karnataka would get 23%. The remaining would go to Kerala.  The agreement was to laps in 50 years and reviewed thereafter.

1970-2000

In 1970, Tamil Nadu (Madras) demanded increased water supply stating the growth in its irrigation land, this was opposed by the Karnataka (Mysore Presidency). The agreement between both the states ended in 1974. And in 1986, Tamil Nadu approached Centre for setting up a Tribunal that would probe into the Cauvery Water Dispute.

In Tamil Nadu Cauvery Neerppasana … vs Union Of India And Others (1990), The Supreme Court directed Centre to set up a tribunal and a Cauvery Water Disputes Tribunal (CWDT)[27], was set up under the Centre. It was headed by Justice Chittatosh Mookerjee. In 1991, CWDT passed an interim award, which resulted in dissatisfaction and violence in both the states. Centre constituted The Cauvery River Authority (CRA), to implement the interim award given by CWDT in 1998. Ever since the dispute both states have been in a perpetual tension.

2000s

In 2007, CWDT passed the final award. The allotment was so that, 30 tmc to Kerala would receive 30 tmc, Karnataka 270 tmc, Tamil Nadu 419 tmc and 7 tmc to Puducherry. Additionally, 14 tmc was reserved for environmental “inevitable escapages” into the sea.  Tamil Nadu moved to SC in 2013 seeking constitution of the Cauvery Management Board and damages from Karnataka for not following order given by CWDT. In 2016, SC directed Karnataka to release 15000 cusecs water per day while Karnataka released only 10000, this resulted in widespread unrest in the entire state.

In 2017, Karnataka sought a reduction in water release from 192 tmcft to 132 tmcft. In State of Karnataka by its Chief Secretary Vs. State of Tamil Nadu by its Chief Secretary & Ors. (2018)[28], The Supreme Court (Bench comprising CJI Dipak Misra and Justices A.M. Khanwilkar and Amitava Roy) reduced Tamil Nadu’s share of Cauvery river water from 192 tmcft as allocated by CWDT in 2007 to 177.25 thousand million cubic feet (tmcft) .

Conclusion

Resolving an interstate dispute is not easy, especially when both states are highly dependent on a single resource. The recent climate shift has brought several instances of weak monsoons, drought, floods, etc., across India. In such situation, the chances of Interstate disputes are higher and thus the Central Government and Supreme Court must gain trust of the states to act as mediators and solve these disputes before they become a political propaganda and turn violent.

Image Sourced from – https://interstatedisputes.wordpress.com/2013/10/05/inter-state-water-disputes-in-india/

[1] United Nations Development Programme, Human Development Report 2006 – Beyond Scarcity: Power, Poverty and the Global Water Crisis 1

(New York: UNDP, 2006).

[2] Valsalan, Inter-State Water Disputes in India (Central Board of Irrigation and Power), (1997), pages 11-12, para 2.3, 2.4.

[3] C.V.J. Varma, Foreword to Valsalan.

[4] What Price For The Priceless? : Implementing The Justiciability Of The Right To Water? 120 HARV. L. REV. 1067 , 1068-1069 (2007)

[5] State of Karnataka v State of Andhra Pradesh (2000) SC.

[6] Narmada Bachao Andolan v. Union of India and Others, Writ Petition (C) No. 319 of 1994.

[7] Schedule 7, List 2, Entries 17 and 21, Constitution of India.

[8] Schedule 7, List 1, Entry 56, Constitution of India

[9] Schedule 7, List 1, Entries 24, 25 and 57, Constitution of India

[10] Article 262, Constitution of India.

[11]Inter-State Water Disputes Act, 1956, available at http://www.ielrc.org/content/e5601.pdf

[12] Narmada Water Disputes Tribunal, Final Order and Decision of the Tribunal, 12 December 1979

[13] River Boards Act, 1956

[14] Id. Section 13.

[15] Hanuman Prasad v. Mendwa, AIR 1935 All 876.

[16] M.C. Mehta v Kamal Nath, 1997 1 SCC 388.

 

[17] Dr. K.C Joshi, The Constitutional Law of India, (462), (Central Law Publications, Allahbad, 2nd edition, 2013)

[18]  Ibid  at 463 and 464

[19] H.K Saharay, The Constitution of India , An Analytical Approach, (450) ( Eastern Law House, Kolkata, 3rd edition, 2002)

[20] M. Ismail Faruqui v. Union of India (AIR 1995 SC 605)

[21] Connecticut Vs. Massachusetts, (1931) 282 US 670; New Jersey Vs. New York, (1931) 283 US 336; Nebraska Vs. Wyoming, (1945) 332 US 54.

[22] Indus Commission (1943) (Report, pages 5-75)

[23] The Krishna Water Disputes Tribunal [Report, pages 52 and 93]

[24] The Narmada Water Disputes Tribunal [Report, 1978, Vol. 1, pages 109-113]

[25] The River Boards Act, 1956.

[26] Ministry of Jal Shakti, Department of Water Resources, RD & GR, Government of India, India.

[27] Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasaigal Nala Urimai Padhugappu Sangam vs Union Of India And Others, AIR 1990 SC 1316.

[28] State of Karnataka by its Chief Secretary Vs. State of Tamil Nadu by its Chief Secretary & Ors., 2018, 109 SC

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