Inter State Water Disputes in India

Inter State Water disputes arise when there is a dispute between two or more states on the use, distribution and control of rivers flowing in two or more states. When the concerned states cannot resolve disputes through negotiations then the Central Government constitutes a water dispute tribunal for resolving the water dispute.

Introduction

In India, numerous inter-state river water disputes have arisen primarily due to insufficient water resources for farmers across states. To address these conflicts, researchers have examined the constitutional and statutory provisions in India that pertain to such disputes. The complexity arises from the allocation of water resources falling under the State List, while the Parliament holds the authority to legislate on matters concerning inter-state rivers, listed under the Union List. The researcher also delves into the reasons behind ongoing and resolved river water disputes, studying their causes and legal proceedings in India.

The paper focuses on analyzing both the ongoing Cauvery water dispute and the resolved Godavari water dispute to gain insights into inter-state river water conflicts. Additionally, it examines various suggestions that have been put forth to address such disputes effectively.

a) For ensuring such inter-state river water disputes don’t arise in the first place, and

b) For effectively resolving such disputes.

The researcher studies the implications that such disputes have for Inter-State and Centre-State relations in India. Lastly, the researcher looks into how such disputes affect relations between the disputant states.

Constitutional and statutory provisions

The Constitution contains some provisions on water and related issues. Parliament has also adopted Legislation to settle transboundary river water disputes. Some of these provisions and legislation have been developed below.

Article 262 of the Indian Constitution

Article 262(1) grants Parliament the authority to pass legislation for settling disputes or complaints concerning the use, distribution, or control of transboundary waters in a river or river valley. According to Article 262(2), Parliament can enact a law that limits the jurisdiction of the Supreme Court or any other court with regard to the disputes or appeals mentioned in Article 262(1).

The use of the term “enact” in Rule 262(1) signifies that the responsibility lies with Parliament to pass such legislation. Additionally, the term “law” in Article 262(2) includes various legal instruments like orders, regulations, notifications, or other legally binding actions in India. The subject matter of such legislation may involve transnational rivers or river valleys.

Article 262(2) begins with the phrase “notwithstanding anything in this Constitution,” indicating that other constitutional provisions that contradict Article 262(2) do not apply. For instance, Article 131, which deals with the primary jurisdiction of the Supreme Court in disputes between states, does not apply when examining Article 262(2). If Parliament intends to exclude the jurisdiction of the Supreme Court from cross-border river water disputes, it must do so through the mechanism mentioned in Article 13(3), using the term “legal” as defined.

If Parliament has not enacted any legislation under Article 262(2), it may choose to refer the matter to the Supreme Court or a higher court. The use of the term “may” implies that the enactment of such a law is at the discretion of Parliament.

Entry 17 of Schedule II (List of Countries) of Schedule 7

Entry 17 in Schedule II of the Union List encompasses water sources, irrigation, canals, drainage, oak, reservoirs, and hydropower. Provisions related to water supply, irrigation, or hydropower apply to transnational rivers, making them relevant in most cross-border river disputes. The government holds the authority to enact laws on these matters. However, this authority is subject to the provisions of Article 56 in Schedule I.

Under List I (Union List), in conjunction with Article 246(1) of the Constitution, Entry 56 grants Parliament the power to legislate on the regulation and development of rivers and valleys across the country as long as they are in the public interest. Entry 17 explicitly indicates that the provisions of Entry 56 in Schedule I apply to the government’s jurisdiction over such matters.

If Entry 17 conflicts with any law enacted by Parliament under Entry 56 of Schedule I, the latter would prevail. Article 246(1) emphasizes Parliament’s exclusive authority to make laws on subjects listed in List I, regardless of what is specified in paragraphs 2 and 3. Consequently, while water resources fall under national responsibility, Parliament holds significant legislative powers in this domain, capable of overriding any conflicting legislation passed by the states.

Articles 131 and 136 of the Indian Constitution

There have been cases where countries have used Articles 131 and 136 of the Constitution in cross-border river basin disputes. For example, Tamil Nadu filed a preliminary complaint in 2001 of Article 131, in which it stated that interim measures were not effectively regulated. The States of Karnataka, Tamil Nadu and Kerala, disturbed by the decision of the Cauvery Water Dispute Tribunal in 2007, have applied for a special permit pursuant to Article 136. The Supreme Court accepts them.

Inter-State River Water Disputes Act, 1956

The 1956 Water Disputes Act was enacted under the provisions of Article 262 of the Constitution, signifying the central government’s crucial role in the law. As per Article 4(1) of the Act, the central government holds the authority to establish a water court, which can adjudicate water-related disputes between county governments.

According to Article 5(2) of the Act, the Civil Service Tribunal must submit a report to the central government within three years, detailing the facts and the decisions made. The central government then publishes the court’s decision in the official gazette, granting it the same authority as an order from the Supreme Court.

Hence, the central government possesses the power to enforce court orders through the Commission. Additionally, it has the ability to pass judgments and even dissolve the tribunal as per Section 11, which excludes the jurisdiction of the Supreme Court and other courts as prescribed by law.

While this law does not eliminate the central government’s involvement, it does affect various aspects of the court’s functioning. The arbitral tribunal is accountable to the central government, thereby placing the central government in a hierarchical position in relation to the respective state governments and their dependent courts during the resolution of disputes concerning river water.

River Boards Act, 1956

Although the Rivers Act was passed in 1956, no river basin was formed under its provisions. Nonetheless, studying this law is crucial for understanding the Center’s role in inter-state river disputes. Section 2 of the Act grants the Center the authority to oversee the development and management of transnational rivers and river valleys. The Center may establish a river council upon request from a regional government. The term “may” indicates that the decision rests with the central government’s discretion. The Council can formulate, modify, or reject projects related to river development between states, and its powers are defined by the central government. The Council is accountable to the central government, submitting an annual report to both the central government and the concerned state governments.

This highlights the Council’s responsibility towards the central government, which also has the authority to establish rules to achieve the law’s objectives. If deemed necessary, the central government can terminate the Council with its agreement.

While the primary actors in inter-state water disputes are the respective state governments, the conflict resolution process involving the central government is critical. The mechanisms set up to adjudicate such disputes are answerable to the central government and owe their existence to it. Thus, claiming that water and inter-state water disputes solely fall within the domain of state governments due to their presence in the State List is a fallacy. The central government plays an equally, if not more important role in resolving inter-state river water disputes.

Ongoing and resolved water disputes in India

According to the Ministry of Water Resources, River Development and Territorial Rejuvenation, eight courts have been established under the ISRWD Act for the management of river waters. In addition, 114 intergovernmental agreements have been concluded to resolve water disputes. Some permanent and resolved river basin conflicts are discussed below.

Cauvery Dispute

The Cauvery River originates in Karnataka and flows through Tamil Nadu and Pondicherry before reaching the Bengal Gulf. Both states heavily rely on the water from the Cauvery for agriculture and livelihoods. However, disputes have arisen between Karnataka and Tamil Nadu, with Tamil Nadu claiming a shortage of water during drought years while Karnataka argues that it cannot release water without adequate supply for its own farmers.

Historically, an agreement was reached between the Madras Presidency and the Principality of Mysore, but disputes persisted. Several trilateral meetings were held between 1968 and 1990 involving ministers from Karnataka, Tamil Nadu, and Union Ministers for Irrigation, but no resolution was achieved. As per Tamil Nadu’s request, the central government established the Cauvery Water Dispute Tribunal in 1990. However, when the tribunal issued a preliminary order in 1991 directing Karnataka to provide water to Tamil Nadu, Karnataka was dissatisfied and appealed to the Supreme Court.

In response to the Supreme Court’s ruling in Re Cauvery Water Disputes Tribunal v. Respondent, Karnataka declared the order as ultra vires, leading to protests in the state, resulting in five deaths. Subsequently, in 1998, the central government formed a monitoring committee called the Cauvery River Authority (CRA) and the ISRWD. The committee ordered Karnataka to release 9,000 cubic feet of water per second to Tamil Nadu. While Tamil Nadu was content with the order, Karnataka refused to comply with the arrangement.

In 2007, CWDT received its final prize. The two agreements between Madrid and Mysore on water supply in Tamil Nadu between 1892 and 1924 were valid.

The main problems of Tamil Nadu were as follows:

(i) It wanted this final arrangement to be published in the Official Journal.

(ii) It wanted to create a Cauvery Management Board. This was finally done in 2013.

The Cauvery conflict reached a critical point in September 2016 when the Supreme Court ordered the Karnataka government to release 15,000 water bodies to Tamil Nadu within 10 days. In response, Karnataka faced protests within the state, resulting in one person’s death and injuries to four others during clashes with the police. The situation escalated with attacks on Tamil businesses, leading to violence and disruption of traffic on the Bengaluru-Mysore highway.

During this time, the Supreme Court appointed a technical team, at the request of the Attorney General, to assess the ground reality of the Cauvery Basin. The team submitted its report to the Supreme Court in October 2016, following which Karnataka was directed to release 2000 cu-secs of water. The hearings on this matter are still ongoing.

The Cauvery conflict has strained relations between Tamil Nadu and Karnataka, with violence exacerbating the situation. The central government played a vital role in mediating negotiations between the two states. It established both an arbitration panel and the technical team based on its recommendations. Additionally, the Cauvery River Authority (CRA) monitored the actions of the Prime Minister. Thus, the central government acted as a negotiator in the dispute between the two states.

Conclusion

Transnational disputes over rivers have historically caused political imbalances and often involve elements of national pride and prestige. Water conflicts also become significant issues for politicians during elections, with promises to secure the best possible outcomes for their countries and people. The Indian Constitution designates water and water supplies as national matters, empowering the Center to regulate and develop rivers and valleys through List I, Entry 56.

While Article 262 gives Parliament the right to regulate intergovernmental resolution of river water disputes and exclude the Supreme Court’s jurisdiction, it may seem that state governments can resolve cross-border water disputes independently. However, a closer examination reveals that the central government holds substantial powers. The 1956 ISRWD Act, enacted under Article 262, ensures that states cannot establish their own water dispute resolution laws, relying on the ISRWD for dispute resolution. The Act empowers the central government to form courts for dispute resolution, while states can only litigate. Hence, the central government holds the real power in resolving cross-border water disputes, and Article 11 of the ISRWD Act excludes the jurisdiction of the Supreme Court.

The Cauvery and Godavari disputes were addressed with the Center playing a mediating role, establishing courts at the request of states, facilitating meetings, and seeking agreements between them. Such disputes have strained relationships between the states and have been exploited by politicians for political advantage, leading to violent incidents, which is detrimental to India’s well-being.

The Sarkaria Commission’s report on river disputes influenced some recommendations in the ISRWD Act, aiming to establish a database, create a court upon a state’s request, and allow the court’s judgment to be equivalent to that of the Supreme Court. While the feasibility of interlinking rivers has been explored to mitigate water scarcity and prevent conflicts, the project’s environmental consequences and resource requirements make it impractical.

The Godavari Falls dispute demonstrated that negotiations between countries are often the most effective means of resolving water disputes. Existing intergovernmental agreements have stood the test of time, while disputes taken to courts have historically seen limited development, as states often refuse to comply with court verdicts. Hence, negotiations between the involved parties remain the best approach to swiftly and sustainably resolve river basin disputes.