Udita Saraf, National Law University Orissa
As most rivers in India are interstate, there have arisen several long standing conflicts regarding the proportionate usage of such rivers, including control and distribution. Legislation in this field can be traced back to pre-independence era, and consists of several legislatures, as well as Articles 262, 263, and 131, which provide the mechanism for settlement of inter-State disputes (via the Parliament). Both the Parliament and State can legislate in respect of water supplies, irrigation, etc. Important legislations include The River Boards Act, 1956 and The Inter-State Water Disputes Act, 1956, both which have been elaborated upon in this paper, detailing their provisions for adjudication of disputes, advisory opinions, negotiations, and so on. Two bodies have also been created to promote river-water development, namely the National Water Development Agency and the Resources Development Council with the Prime Minister as its Chairman. This paper also details the approach that the Hon’ble Supreme Court has taken in inter-state water disputes (notably, the Cauvery case) and determined the rights of states in the disputes. Finally, certain hurdles faced by Tribunals have been highlighted, along with potential solutions, such as granting powers of contempt for enforcement, removal of delays, comprehensive legislation, and so on.
History and Origin
Water being a primary natural resource, fulfilling basic human need and also for various other country’s development activity stands as a precious asset. Therefore planning, development and management of such a resource attracts national attention. Most of the principal rivers of India, their tributaries and sub-tributaries are interstate rivers[i]. Due to this, there are long standing conflicts between different states regarding usage, control or distribution of such rivers.
The history and origin of legislation in this field can be traced back to pre-independence era. In GOI Act 1919, irrigation was made a provincial subject while on the other hand matters affecting relations of one province with any other territory were under central legislature. Then in GOI Act of 1935, attention was given on river disputes between different provinces. Section 130-134 of the Act dealt with subject of “water”. This in turn led to the draft article of 239-242 of the draft Constitution of India. During the consideration of the Draft Constitutional provision, Dr. Ambedkar proposed an amendment for the necessity of setting up a permanent institution to deal with the disputes, the incidence of which was bound to increase with full utilization of such waters for the purpose of irrigation and generation of power in independent India. In the light of these considerations, the present Art.262 was adopted in the Constitution[ii]. The varieties of mechanisms available under the Constitution of India for the settlement of inter-State disputes are Article 262, 263 and Article 131.
A law covering the rights of States in respect of waters of inter-State rivers under the Constitution of India is almost identical to the law under the provisions of the Government of India Act, 1935.[iii] For instance, in Entry 19 of List-2 of the 7th Schedule of the Act of 1935, identical legislative powers were conferred on States by Entry 17 of List-2 to the 7th Schedule of the Constitution of India. The Article states that no state can use inter-state water in a manner that may lead to prejudice to the interest of other state. Any ownership or territorial right over inter-state water bodies had been safeguard by the Constitution of India as they are under the control of the Union and utilised for the welfare of the people. Article 263 contemplates for Inter-state council to be constituted by the President for the settlement of dispute but this provision has been rarely used.[iv] In article 131of the Constitution another alternative mechanism for resolving inter-state dispute is given. The article traces its origin from section 204 of the government of the India Act, 1935. It enables settling of disputes between states and between union and state. But the proviso of 131 excludes the Court’s jurisdiction in respect of certain treaties, etc. Article 131 can only be invoked if so far as the dispute involves any question on which the existence of a legal right which has been elaborately construed by the Supreme Court in various cases[v].
However, it is important note that Constitution itself does not provide for a mechanism for solving disputes relating to water[vi]. The responsibility is on the Parliament to decide and take action in the concerned matter by virtue of Entry 56 of List I of the Constitution. States have also been given power to legislate in respect of water supplies, irrigation and canals, drainage and embankments, water storage and waterpower under Entry 17 of List II but it is subject to the legislative power of the Union.
It is argued that Inter-state River and power sharing should be a state subject and supremacy should be envisage to them. However, since several princely states joined the Indian Union on conditions of certain amount of autonomy[vii] and many of these States were agrarian economies, they refused to part with regulatory powers over water thus the Constitution had to acknowledge this. States being quasi-sovereign bodies cannot be treated as ordinary entities involved in property disputes. This is perhaps the rationale for the Article 262, enabling the Parliament to make separate laws for adjudication of water disputes between States[viii].
Constitutional Mechanism and its Implementation
Certain laws and statutes have been passed by the parliament to address the issue of water disputes. The regulation of inter-state river was one such item which led to enactment of the River boards Act 1956, and other such as the Narmada Control Authority, that are only involved at operational level.[ix] Union has other water-related powers that it can exercise, for instances, in the context of the impact assessment of large projects that require an environmental clearance.[x] In order to better understand the constitutional mechanism of inter-state water dispute, two important legislation passed by parliament needs to be analyzed, that are The River Boards Act, 1956 and The Inter-State Water Disputes Act, 1956.
Inter-State Water Dispute Act, 1956
The genesis of the Inter-State River Water Disputes Act, 1956 lies in the Government of India Act, 1935. It contains provision similar to Sections 130 to 132 of the Act of 1935.This act had been passed in pursuance of Article 262 of the Constitution. However, in a purely legal sense, water Tribunals owe their existence to the decision of the framers of the Indian constitution to make water the responsibility of state governments. When distributing subjects according to whether they should be dealt with by the states, the union or concurrently by both, water was placed on the state list.[xi]
The act gives the meaning of water disputes and provides for complains regarding water disputes from various states to Central government. It also provides for the adjudication of disputes relating to waters of Inter-State Rivers and River Valleys. The act enables setting up of tribunals to settle disputes on Inter-State water or river when the Central government is of the view that the matter cannot be solved by negotiations. It had been recommended by The Sarkaria Commission to set up a Tribunal within one year of complaint by the State Government and to declare its decision within five years.
According to the act, decisions given by the tribunals so constituted will be final and binding and no appeal can lie in Supreme Court. Thus the jurisdiction of the Supreme Court and other courts is clearly barred in such matters. However, the tribunal is only vested with decision making role, the implementation of such decision is not its outlook.
Furthermore, tribunal’s responsibility is not limited only to adjudicate the matters but also investigation of matters which are of public importance like water pollution, flood control, sustainability of river basin productivity, climate change effects and others.
Under the act, though Union government had set up many water tribunals like the Krishna Tribunal, the Narmada Tribunal, The Godavari Tribunal, the Cauvery Tribunal, The Ravi, Beas Tribunal etc. However the functioning of such tribunals is not satisfactory as there is delay at every stage in the working of the tribunals.
The board is true to the spirit of the constitution, as it upheld the view that water is a state subject, since only at the request of the concerned state the tribunal functions. Also, since the decision of the board is binding, it merges the skills and reputation of the judiciary.
Though the act had given quite clear guidelines for any water dispute but even then different disputes had followed different paths to settlement as law permits considerable discretion.
River Boards Act, 1956
In pursuance of the power provided under Entry 56 of List I, the Parliament passed the River Boards Act in the year 1956. This Act is the only instance when the Parliament has used its power allowed to it under Entry 56. The board was mainly having two functions, first, to ensure proper and optimum utilization of the water resources of the inter-state rivers and secondly to monitor different schemes of irrigation, water supply, hydroelectricity power generation. However the nature of work of the board is advisory in nature and is meant only for the purpose to give advice and suggestions. Therefore the act has been rendered as a dead letter by not appointing River Boards[xii]. Thus the act had not been effective and one of the major cause for this is that Entry 56 confers a vast and unfettered power on the Union, which, in conjunction with its large resources, enables it to encroach upon an area which is within the jurisdiction of the States[xiii]. There are River Boards set up under separate legislation, but these were set up to implement a mutually agreed sharing agreement between States, e.g. Upper Yamuna River Board, Betwa River Board. River Boards cannot be set up to monitor the working and functioning of Tribunal awards.
National Water Policy, 1987
The board is formulated under the Ministry of Water Resource to regulate the development and planning of water and to ensure their optimum utilization. Specifically, Section 21 of this water policy deals with distribution of water amongst the states. It has stressed the need for development and management of water resources in a holistic and integrated manner covering different needs through participatory approach. Other function of the board includes to ensure proper allocation of water resource, prevent any form of exploitation, establish a standardized national information system with a network of data banks and data bases and other such related functions.
This national water policy of 1987 was amended in 2012, now the board emphasis on development of water bodies by giving them the status of ‘economic good’.
The center has created two more bodies to promote river-water development. The National Water Development Agency is a non-statutory body with all State irrigation ministers as its members. The functions of the agency is to carry out surveys, investigations and studies for the peninsular rivers development, component of the national water plan. The agency is to promote optimum utilization of country’s resources. This envisages the use of surplus water of all rivers in the country. The other body is the water Resources Development Council with the Prime Minister as its Chairman and all state Chief Ministers as members.
Over the years, several inter-State river water disputes have come up before the Supreme Court with reference to a variety of issues such as the competence of the Tribunal to deal with a request for an interim allocation (Cauvery); the non-implementation of an Order of the Tribunal (Cauvery); failures on the environmental and rehabilitation fronts (Narmada); the constitutionality of an Act of a State Legislature terminating all past water accords (Punjab); [xiv]etc. In each of these cases, what went before the Supreme Court was not the water-sharing issue, which had been adjudicated or was under adjudication by a Tribunal, but some other related legal or constitutional issue.[xv]
Analyzing the decision of the Supreme Court in inter-state water disputes, it can been seen that Supreme Court point to a constitutive tension between “we the people” and “sovereign socialist secular democratic republic” of India. [xvi]It is important to understand and reflect on the tension before quick and ready prescriptions are given out to inter-state water conflicts. Inter-state disputes over water are of two types. One type of dispute relates to the rights of states and scope of their rights within the Union. With the exception of reopening the terms of unification, the states may apply to the Supreme Court to resolve questions of rights flowing from the constitution[xvii]. Inter-state rivers; on the other hand do not involve questions of rights flowing from the constitution itself.
The Cauvery Case
The main issue of the Cauvery dispute case is related to the re-sharing of waters that are already being fully utilized. The Cauvery cases are important because first, they paved the way for the involvement of the Supreme Court in inter-state water disputes, and without a constitutional mandate to do so the Supreme Court could not play an effective role. The origin of this case can be traced back to two agreement of 1892 and 1924, between Karnataka (old Mysore) and Madras government. It is claimed by the Karnataka Government that because of the agreement, the state do not get its due share of water and because of this reason the state is of the opinion to re-enact the agreement which should be based on “equitable sharing”. Contrary to this, Tamil Nadu government contends that since it had already developed plans in furtherance of the agreement and any change in the agreement pattern will greatly affect the many. The agreement rejects the Original jurisdiction of the Supreme Court under Article 131of the Constitution of the India. However, the question before the court is the implementation of the Tribunal’s Interim Order, and the related issue of compliance with the decisions of the Cauvery River Authority and with the directions of the Supreme Court itself[xviii] which is entirely within the Supreme Court’s jurisdiction.
A series of discussion took place between the two states and central government and finally a report prepared by Cauvery Fact Finding Committee was accepted. Yet again disputes arose regarding expiry of agreement. A request was laid before the government by the state of Tamil Nadu to refer the matter to a tribunal under Inter State River Water Dispute Act 1956. However this request was not taken into consideration and thereafter Tamil Nadu approached the Supreme Court with the same issue and also to order to the state of Karnataka not to proceed with its new project, which might cause loss of livelihood. Nevertheless, Karnataka went ahead with the construction of its project.
In the year 1990, a tribunal was finally constituted by an order of the Supreme Court. Soon Tribunal passed an interim order in June 1991. Firstly, Karnataka was directed to ensure that 205 TMC feet of water was made available at Metter, from its reservoirs in a twelve-month period from June to May until the final adjustment of the dispute by the Tribunal. Secondly, Karnataka was directed not to increase its area of irrigation from the Cauvery waters beyond 11.2 lakh acres.
Two new bodies were set up by the government in the year 1997, namely Cauvery River Authority and Cauvery Monitoring Committee which were vested with the duty to ensure the implementation of the Interim Order. These powers included the power to take over the control of dams in the event of the Interim Order not being honored. Also, the body comprised of experts and other officers to look into the matter and report to the government. Yet again the mechanism failed and a series of controversy continued for over a long span of time.
In 2007, final award was given by the tribunal after holding many discussion and debates for almost 17 years. It was decided that Tamil Nadu will get 419 thousand million cubic ft(against the demand for 562); Karnataka 270 thousand million cubic; Kerala 30 and Puducherry 7 thousand million cubic ft. Karnataka will have to release 192 thousand million cubic ft on a yearly basis and from that 7 thousand million cubic ft will be diverted to Puducherry. Also, some quantity of water was reserved for the purpose of environmental protection and inevitable escapade into the sea. The order was accepted by the state of Tamil Nadu and Puducherry but the government of Karnataka was not satisfied with it and it lead to massive protest in the state.
In pursuance of the 2007 award, Cauvery Water (Implementation of the Order of 2007) Scheme, 2013 a temporary body was introduced by the government. The body is given the responsibility of implementation of the decision of the Cauvery Water Dispute Tribunal. However, the order is yet to be implemented as a Special Leave Petition on the matter remains pending in the Supreme Court.
The dispute over sharing water of Cauvery River had attracted national importance. It is without any doubt, one of the most controversial inter-state river water disputes in India. Due to the complexity of the nature of the dispute, it becomes indispensable for the government to intervene and contribute positively.
Lacunas and Recommendations
The mechanism dealing with inter-state water disputes functions ineffectively because of several reasons. The most prominent problem faced by it is that it do not have any effective authority for the implementation of the order of the tribunal. The Tribunal can only give an award but cannot enforce its implementation. It has not been clothed with powers of punishment for ‘contempt’. In the event of non-implementation of an ISWD Tribunal’s award by a state government, the central government can (failing persuasion) issue a direction to the erring state and then invoke Article 356, but that seems an extreme step; besides, when a popular government comes back it may once again refuse to implement the award. There is no easy answer to this problem[xix]. Cauvery water dispute case is a classic example showcasing complicated scenario of river water management and governance in India. When there is shortage, when developmental projects grow, and riparian States do not enjoy equal access to the source, inter-state problems are bound to rise in sharing.
It has been recommended by the Sarkaria Commission that the tribunal award’s should be equated with the status of the decree of the Supreme Court. Appeals to the court in large number to the court reflects the failure of the government in the handling water related disputes.
Though the issues relating to the water allocation involves special technicalities but entrusting the adjudicatory power to the tribunal leads to undermining the status of the Federal government. This may lead to creating of more obstacles rather finding a solution. The tribunal also lacks the power of enforcement of its decision which Supreme Court is endowed with. Thus such matters which involves public importance should be guided and decided by the court.
The Provision under Article 262 seems to be insufficient. It would have been better if a machinery had been written into the Constitution itself. Then it would not be left to the Parliament to provide a machinery. 5 years passed before the Inter-State Water Disputes Act was passed in 1956. Article 262 grants power to make a law; it does not impose a duty, for no court can issue a mandamus to the legislature to make a law[xx]. Also no provision of the Constitution can be held ultra-vires, but any law, or part of law made under Article 262 can be held ultra-vires[xxi].
Also there are always inordinate delays in the setting up of tribunals and deciding the award. The right to have a dispute referred to a tribunal under IWSDA is dependent on the opinion of the Central Government that the matter cannot be settled by negotiations[xxii].
In light of the prevailing loopholes in functioning of the system, certain recommendations can be considered. Firstly, there is a need to set up a permanent tribunal for such disputes instead of creating one each time. Then it has been suggested by the NCRWC that the Inter-State Water Disputes Act, 1956 be repealed and in its place a more comprehensive parliamentary legislation should be enacted. It is of the view that it is not necessary to exclude Inter-State Water Disputes from the original jurisdiction of the Supreme Court under article 131 of the Constitution and that such disputes should also be made to fall within the exclusive jurisdiction of the Supreme Court[xxiii]. The rationale behind this is that almost in every case either of the party approaches Supreme Court seeking judicial review of the order or for the enforcement of the Fundamental rights. This leads to involvement of two forums in decision making. Also, parliament needs to exercise its powers under Entry 56 List I effectively. According to National Water Policy, this can be done by setting up of river boards.
Alternatively, it has been suggested by some scholars that the Supreme Court should only be granted appellate jurisdiction, if an appeal to the Supreme Court is possible, at least no state can reasonably nurse a sense of grievance and as the Supreme Court’s decisions are still being respected and obeyed in this country, the non-implementation problem will disappear.[xxiv]
Edited by Neerja Gurnani
[i] Gulhati N.D., Development of Inter-State Rivers (1972), pp. 5
[ii] D.D.Basu, Commentary on the Constitution of India, 8th Ed, pg 9112.
[iii] Report of the Narmada Water Disputes Tribunal, Volume-1, page 108, para 8.2.9].
[iv] Roundtable on Mechanisms of Intergovernmental Relations in India, Institute of Social Sciences, New Delhi, 22 April 2002
[v] (i) State of Rajasthan v. Union of India, AIR 1977 SC 1361; (1977) 3 SCC 592 (Rajasthan Assembly Dissolution Case). (ii) State of Karnataka v. Union of India, AIR 1978 SC 68, paras 141-149, 159-165, 198-203 (1997) 4 SCC 608. (iii)State of Bihar v. Union of India, AIR 1970 SC1446: (1970) 1 SCC 67
[vii] Haokip T., Theoretical Considerations of Political Integration and the Indian Experience, IJSAS 4(1) 2011, pp.221-234.
[viii] D’Souza, R., Nation Vs Peoples: Interstate Water Disputes In India’s Supreme Court, in Water and the laws in India., ed. R. R. Iyer, 58-93
[ix] Mohiel AD, ‘Government Policies and Programmes’ in J Briscoe & RPS Malik, Handbook of Water Resources in India- Development, Management and Strategies (New Delhi: The World Bank and Oxford University Press, 2007) 10.
[x] Government of India, The Environmental Impact Assessment Notification 2006.
[xi] Pani N, The Place Of The Tribunal In Inter-State Water Dispute, Vol. 2 Issue 1.
[xii] Supra note 2, pg 9113
[xiii] Sarkaria Commission Report (1988), Chapter XVII, para 17.4.01
[xiv] Sainath P., Little Pani, Less Panchayat’(2002),The Hindu,15 and 22 September.
[xv] The Supreme court and river water disputes, Ramaswamy R. Iyer, The hindu , 17/09/12
[xvi] Petrella, R. The Water Manifesto. London: Zed Books, and Bangalore: Books for change
[xvii] The Constitution Of India, Article 131
[xviii] Cauvery Dispute: An Instance of Judicial Fallacy, Mr. Naresh Pareek, Manupatra.
[xix]Inter-State Water Disputes Act 1956: Difficulties and Solutions, Ramaswamy R. Iyer, Economic and Political Weekly, Vol. 37, No. 28 (Jul. 13-19, 2002), pp. 2907-2910, Economic and Political Weekly.
[xx] Seervai H.M., Constitutional Law of India, Vol.3 ( 4th Edition) pp. 3243
[xxii] The Inter-State Water Disputes Act, Section 4(1)
[xxiii] NCRWC, Report of the NCRWC, Vol. 1(31st March, 2002), para 8.11.4
[xxiv] Iyer R.R., Inter-State Water Disputes Act 1956: Difficulties and Solutions, EPW, Vol. 37, No. 28 (Jul. 13-19, 2002), pp. 2907-2910