Introduction
As in the words of Ismail Serageldin, “The wars of the twenty-first century will be fought over water.” In this article, we will address the structure of inter-state water distribution mechanism in India and legal issues of water distribution among states. The article also covers various water dispute legislations, important water disputes, current tribunals and possible solutions.
Background
- Water is defined as a state subject under Entry 17 of the State List under the 7th schedule of the Indian Constitution. According to this State has jurisdiction over a river water use or its harnessing.
- However, union government can make laws on the development of inter-state rivers and river valleys when interest of larger public is involved. This provision is given under Entry 56 of the Union List, 7th schedule of the Constitution.
Constitutional Provisions
1. Article 262 of the Indian Constitution
Constituent Assembly anticipated the emergence of water disputes in future. A specific provision of Article 262 is mentioned in the constitution itself due to the sensitivity of such disputes.
In the water related disputes, Article 262 of the Constitution of India provides:
- The Indian Parliament may provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State 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.
Parliament has enacted two laws according to Article 262
1) River Board Act, 1956
This Act was enacted by the Union Government to create Boards for Interstate Rivers and river valleys in consultation with the various states of the Indian Federation. The main objective or aim of the Boards is to advise on the inter-state basin to prepare development scheme and to prevent the emergence of conflicts.
As per public information available, no river board has been created as per the above legislation.
2) Inter-State Water Dispute Act, 1956
Basic Overview of the Act
This act is confined to states of India and not applicable to Union Territories. Only concerned state governments are entitled to participate in the tribunal adjudication and non government entities are not permitted. The act was amended in 2002, to include the major recommendations of the Sarkaria Commission. Section 2 of this Act, validates the previous agreements (if any) among the basin states to harness water of interstate river/river valley.
Provisions of the Act: In case, if a particular state or states approach to Union Government for the constitution of the tribunal:
- Central Government should try to resolve the matter by consultation among the aggrieved states.
- In case, if it does not work, then it may constitute a tribunal.
Note: Supreme Court shall not question the Award or formula given by tribunal but it can question the working of the tribunal.
The composition of the River Water Tribunal
Tribunal is constituted by the Chief Justice of India and it consists of the sitting judge of Supreme Court and the other two judges who can be from Supreme Court or High Court.
The Present Mechanism to resolve the inter-state river water disputes in India
Thus it can be seen that – the resolution of water dispute is governed by the Inter-State Water Disputes Act, 1956. According to its provisions, a state government can approach the Centre to refer the dispute to a tribunal, whose decision is considered final.
Amendments in the Act in 2002
- In 2002, an Amendment was made in the Act by which the tribunal has to be constituted within a year of getting the request. This was done to award inordinate delays in setting up of the Tribunals.
- It has also been mandated that the tribunal should give the award within 3 years. In certain exigencies two more years can be given. Thus the time period is of 5 (max) years within which the tribunal should give the award.
- Tribunal award is not immediately implemented. Concerned parties may seek clarification within 3 months of the award.
- It has also been clarified that the Tribunal Awards will have the same force as the order or decree of Supreme Court. The award is final and beyond the jurisdiction of Supreme Court.
2. Article 263 of the Indian Constitution
Provisions with respect to an Inter State Council. If any any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of
(a)inquiring into and advising upon disputes which may have arisen between States;
(b) investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or
(c) making recommendations upon any such subject and, in particular, recommendations for the better co ordination of policy and action with respect to that subject, in shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organization and procedure.
Active River Water sharing Tribunals in India
- Krishna Water Disputes Tribunal II (2004) – Karnataka, Telengana,Andra Pradesh, Maharashtra
- Mahanadi Water Disputes Tribunal (2018) – Odisha& Chattisgarh
- Mahadayi Water Disputes Tribunal (2010)- Goa,Karnataka, Maharashtra
- Ravi& Beas Water Tribunal (1986)- Punjab, Haryana,Rajasthan
- Vansdhara Water Disputes Tribunal (2010)- Andra Pradesh & Odisha.
Recent Disputes Of River Water Sharing Between States
Cauvery River Dispute
- Cauvery is an interstate river basin which has its origin from the state of Karnataka and flows through Tamil Nadu and Puducherry before falling in Bay of Bengal. It has the most disputes of river water sharing in India.
- States concerned with this dispute are Karnataka, Kerala and Tamil Nadu and one UT i.e. Puducherry.
- The pre Independence agreement was based on the area occupied by Mysuru Kingdom and Madras presidency. The areas of South Canara (previously under Madras presidency), Coorg Province which were later merged with Karnataka have not been accounted to calculate the right of Karnataka`s water share. Although the River Cauvery originated on the Coorg Province, the Coorg province was not included in the agreement. This raises a question about the validity of bilateral agreements between Mysuru and Madras presidencies.
- Decades of negotiations between the parties bore no fruit, until the Government of India constituted a tribunal in 1990 to look into the matter. After hearing arguments of all the parties involved for the next 16 years, the tribunal delivered its final verdict on 5 February 2007
- Again in 2016, a petition was filed in Hon’ble Supreme Court seeking the release of water by Karnataka as per the tribunal guidelines. When the SC ordered the same, residents of Karnataka started vehement protests against the order.
Krishna River Dispute
- The Krishna River is the 2nd largest river in the Indian peninsular region. It originates from Mahabaleshwar in Maharashtra and runs through north Karnataka, Telangana and Andhra Pradesh before it empties into the Bay of Bengal.
- The Bachawat Commission under the chairmanship of Sri RS Bachawat went over the matter in detail and gave its final award in 1973. The Krishna Water Disputes Tribunal- I provided for a review of its awards after 31st May, 2000. However, no such review was asked or taken up for more than 3 years.
- In April 2004, a new tribunal Krishna Water Disputes Tribunal-II (KWDT-II) was constituted after a request from all the three states.
- The KWDT-II gave its draft award on 31st December 2010 and this time allocation was done according to 65% dependability, considering the records of flow of water in the past 47 years. This tribunal decided that the next review of allocation will be after 2050.
- Everything was going well, until the enactment of Andhra Pradesh Reorganization Bill, 2014. This led to the bifurcation of the then state of Andhra Pradesh into Telangana and Andhra Pradesh.
- Now, the newly formed Telangana state demands tribunal proceedings to start afresh as Telangana was not present during the final awards of KWDT-I and KWDT-II. The states of Karnataka and Maharashtra oppose this demand.
Mahadayi (Mandovi) River Dispute
- Mahadayi River rises from the Western Ghats, from the Bhimgarh Wildlife Sanctury in Karnataka. Flowing westward it enters Goa from the taluks of North Goa.
- The dispute over Mahadayi River began during the 80s and grew in the subsequent decades. The reason for this trigger was Karnataka’s move to design or built dams, canals and barrages; channeling the river water into Malaprabha basin.
- To this the state of Goa opposed because according to them the Mandovi River plays an important role in Goa as it is one of the sweet-water sources of the state.
MAJOR REASONS OF DISPUTES
A life sustaining resource: The first and foremost reason of these disputes is the importance of water. Water is a life supporting resource and states exercising control over it want the maximum share even if a huge chunk is not utilized properly.
Arrangement of Upper-stream state and Lower-stream state: This arrangement often leads to a dispute between the parties at two different ends. Generally the lower-stream state feels that the amount of water available to them is of low quality or even very less in comparison to their needs. They have sometimes also felt that the water sent or available to them is somewhat polluted in nature.
Dilemma of cost and benefits: The conundrum of cost and benefits tends to outweigh other reasons. The riparian states are customarily concerned with this problem at their hands as it is very difficult to point out that the cost meted out by one will also reap similar amount of benefits.
Conflictual Federalism: Despite the fact that ‘interstate water’ has been explicitly mentioned in the Union List, there is no such acknowledgement in the State List. This allows the states to delineate the “user rights” over waters in ways deemed best by them. To avoid controversies arising from such ambiguities, the Union Government has generally avoided any proactive approach towards basin-level governance in practice, and has confined its role in setting up Tribunals under exigencies of interstate water disputes. This creates a situation of interstate water conflicts: a phenomenon described as “conflictual federalism”.
Solution is Political Will
India has 2.4% of the World’s land, around 20% of world’s population but only 4% of the renewable water resource. Sufficient pre-emptory steps must be taken so that water distribution disputes between the states do not lead to a sectarian war. Inter-state river water disputes are a huge hindrance to the development of cooperative federalism and makes way for a very narrow mindset. Regional issues loom large over national issues and causes fissures in the Indian Polity. The issues can be resolved amicably in Inter-State Council rather than a slugfest in courts and tribunals.
This Article is authored by:- Bhoomika Singla ( DAV-36, Chd.)