INTERSTATE RIVER WATER DISPUTE

Topic

INTERSTATE RIVER WATER DISPUTE

 


Context
The Inter-State River Water Disputes are one of the most contentious issues in the Indian federalism today.
Disputes are a continuing challenge to federal water governance in the country. Rooted in constitutional, historical & geographical, and institutional ambiguities, they tend to become prolonged conflicts between the states that share river basins.
Various Inter-State Water Disputes Tribunals have been constituted so far, but they had their own problems.

Background
• India has 25 major river basins, with most rivers flowing across states.
• However, interstate rivers in India have become sites of contestations, fueled by conflicting perceptions of property rights, flawed economic instruments for food security, the lack of an integrated ecosystems approach, and the prevalence of reductionist hydrology for water resource development.
• Such conflicts over the possession and control of river water have persisted since the inception of the Indian republic, with prolonged delays in resolution due to historical, institutional and political factors.
• In recent years, increasing water scarcity, a rapid rise in urban and rural demands for freshwater, and contentious political dynamics have further exacerbated the problem.

Constitutional Provisions
• Entry 17 of State List deals with water i.e. water supply, irrigation, canal, drainage, embankments, water storage and water power.
• Entry 56 of Union List empowers the Union Government for the regulation and development of inter-state rivers and river valleys to the extent declared by Parliament to be expedient in the public interest.
• According to Article 262, in case of disputes relating to waters:
     o Parliament may by law 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.
     o 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 mentioned above.

 

Major InterState River Disputes
River (s)States
Ravi and BeasPunjab, Haryana,
Rajasthan
NarmadaMadhya Pradesh, Gujarat,
Maharashtra, Rajasthan
KrishnaMaharashtra, Andhra Pradesh,
Karnataka, Telangana
VamsadharaAndhra Pradesh &
Odisha
CauveryKerala, Karnataka, Tamil Nadu and
Puducherry
GodavariMaharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh, Odisha
MahanadiChhattisgarh, Odisha
MahadayiGoa, Maharashtra, Karnataka
Periyar

Structural Ambiguities
There are three fundamental structural ambiguities that currently affect the system:
1. Federal-jurisdictional
2. Historico-geographical
3. Institutional
1. Federal-jurisdictional ambiguity: In independent India, legislative powers concerning water were distributed between the Centre and the states to ensure optimum utilization while balancing the interests of the states.

    o Schedule 7 of the Constitution distinguishes between the use of water within a state and the purpose of regulating interstate waters.
    o The Centre’s role is largely limited to resolving inter-state river water disputes. That, too, a detached one in setting up tribunals for their adjudication.
    o This approach towards the evolution of the legislative and constitutional mechanism regarding ISWDs has resulted in an imprecise distribution of power between the Centre and the states, creating federal-jurisdictional ambiguity.

2. Historico-geographical ambiguity: After independence, states were carved out and federated to form the Union of India.
    o The changing borders complicate the existing jurisdictional and resource-sharing agreements and eventually become sources of interstate political contestation, leading to historico-geographical
ambiguity in interstate river water governance.
   o Perhaps recognising the issues caused by such redrawing of administrative boundaries, the Union government enacted two other important acts in the same year to create a framework for governing and managing interstate rivers: the Interstate (River) Water Disputes Act, 1956 (ISRWDA) and the River Boards Act, 1956.

3. Institutional ambiguity: With regard to the resolution process for ISWDs, the Supreme Court has made limited intervention to adjudicated disputes, including the enforcement of tribunal awards, holding that such disputes can be resolved under Article 131.
    o According to Salve, the wisdom behind this decision is apparent: the courts, as a constitutional forum, command a certain degree of respect and authority due to its power to punish for contempt.
    o The tribunals lack such authority, thus failing to efficiently enforce an award, especially in disputes that get amplified due to political overtones.
    o However, within this framework, the Supreme Court’s role undermines that of the tribunals as adjudicators of ISWDs, despite the latter being established for the implementation of binding awards and their decision granted the same force as an order of the Supreme Court.
    o While Article 262 deters the highest judiciary from adjudicating ISWDs, Article 136 empowers it to hear appeals against the tribunals and ensure the implementation of the tribunal.

    o Thus, the apex court remains the adjudicatory body along with the tribunals, creating an institutional ambiguityregarding which body is the ultimate adjudicatory power on ISWDs in India.

Principles of water sharing
The tribunals have been using a number of principles while deciding about water sharing between
contending states:
—> The Helsinki rules were issued in 1966
—> United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses were finalized in 1997
—> The World Commission on Dams report came in November 2000
—> the Berlin Rules were issued in 2004

Mechanism for Inter-State River Water Disputes Resolution in INDIA
• The resolution of water dispute is governed by the Inter-State River Water Disputes Act, 1956.
    o According to its provisions, if a State Government makes a request regarding any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, then a Water Disputes Tribunal is constituted for the adjudication of the water dispute.
• The act was amended in 2002, to include the major recommendations of the Sarkaria Commission.
    o The amendments mandated a one year time frame to setup the water disputes tribunal and also a 3 year time frame to give a decision.

Need for greater Centre-States coordination
• There are a whole set of reasons- why a coordinated response from the Centre and states is vital. These include:
     o emerging concerns of long-term national water security and sustainability
     o the risks of climate change
     o the growing environmental challenges, including river pollution

• Greater Centre-states coordination is also crucial for pursuing the current national projects.

Measures to be taken
• As river basins are shared resources, a coordinated approach betweenthe states, with adequate involvement of the Centre, is necessary for the preservation, equitable distribution and sustainable utilization of river water.
• It is essential and necessary to have credible avenues for pursuing political solutions supplementing legal and institutional mechanisms.
• The strategy has to be multi-pronged, and legal approaches have to be supplemented with institutional and political solutions.

Role of Supreme Court
• Article 262 (1) bars the jurisdiction of the Supreme Court.
• But matters are still being taken there on legal, jurisdictional, environmental and constitutional issues.

The idea of building federal consensus for water reforms is not new. The need for such a political process and forum was felt before as well. For instance,The National Water Resources Council has been created under the aegis of the Ministry of Water Resources.The National Development Council is another forum for such federal deliberations.These forums failed to deliver for a variety of reasons. A key reason is their failure to assuage states about their neutrality and objectivity in enabling deliberations; they are perceived as politically subjective and serving the agendas of the particular
political regimes in power.

 

Conclusion
In order to resolve the interstate water disputes, the focus should be on the strengthening the existing and evolving institutional mechanisms, and accommodating political sensitivities to find a long-term and mutually amicable path for the governance of interstate river water.