09 Nov

Inter-State River Water Issues

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Content

• Background
• Constitutional Provisions regarding Inter-State River Water Disputes
• Laws formed by the Parliament
• What is the need of extra judicial machinery to set inter-state water dispute?
• Planned amendment to the 1956 act

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Background:

• In 2018, TN had moved the court against Karnataka’s work on check dams and diversions’ structure on the river.
• The Union Cabinet has filed an affidavit before the Supreme Court to apprise it that, pursuant to its order, the centre submitted a proposal to cabinet secretariat for formation of Pennaiyar Water Dispute Tribunal to resolve the Pennaiyar river water dispute between TN and Karnataka.

Experts question timing of Chhattisgarh’s release of water into Mahanadi (April 2023)

• Water experts and political leaders accused the neighbouring state of attempting to mislead the Mahanadi Water Dispute Tribunal led by Supreme Court Justice A.M. Khanwilkar.
• As per Odisha, Chhattisgarh has opened 20 gates at Kalma Barrage through which 1,000 – 1,500 cusecs of water is flowing into Mahanadi in Jharsuguda district – a rarity as Chhattisgarh hardly releases water during non-Monsoon season.

Note: Mahanadi Water Disputes Tribunal was formed in March 2018. This tribunal has been asked to submit the report by 2025.

Introduction

• Inter-state river water disputes have become one of the most contentious issues in the Indian federalism today. Disputes are no longer just about water allocation, but have become hugely politicized.

Constitutional Provisions regarding Inter-State River Water Disputes

1. Article 262 of the constitution say that Parliament may by law will provide for adjudication of any inter-state river water dispute and the Parliament may also provide that Judiciary will not exercise any jurisdiction in respect of any such dispute.

2. Schedule 7 distributes legislative power concerning water between Centre and States to ensure optimum utilization while balancing the interests of the states.

• Entry 56 of Union list gives power to the Union Government for the regulation and development of interstate river valleys to the extent declared by Parliament to be expedient in public interest.
• Entry 17 of the state list deals with water i.e., water supply, irrigation, canal, drainage, embankments, water storage and water power.

Laws formed by the Parliament

• Under the provisions of Article 262, the parliament has enacted two laws

i. The River Boards Act (1956)
ii. Inter-State Water Dispute Act (1956)

• The River Board Act provides for the establishment of river boards for the regulation and development of inter-state river and river valleys. A river board is established by Central Government on the request of state governments concerned to advise them.
• The Inter-State Water Dispute Act (1956) empowers central government to set up an ad hoc tribunal for the adjudication of a dispute between two or more states in relation to the waters of an inter-state river or river valley.
• The decision of the tribunal is final and binding on the parties to the dispute.
• Neither Supreme Court nor any other court is to have jurisdiction in respect of any water dispute which may be referred to such a tribunal under this Act.

What is the need of extra judicial machinery to set inter-state water dispute?

• The supreme court would indeed have jurisdiction to decide any dispute between states in connection with water supplies, if legal rights or interests are concerned; but the experience of most countries has shown that rules of law based upon the analogy of private proprietary interests in water do not afford a satisfactory basis for settling disputes between the states where the interests of the public at large in the proper use of water supplies are involved.

India has 25 major river basins, with most rivers flowing across states. As river basins are shared resources, a coordinated approach between the states, with adequate involvement of the Centre, is necessary for preservation, equitable distribution and sustainable utilization of river water.

However, interstate rivers in India have become sites of contestations.

• For e.g., Pennaiyar river dispute (between Karnataka and TN); Mahadayi River dispute (between Karnataka and Goa), Krishna Water Dispute (Andhra, Telangana, Maharashtra and Karnataka); Cauvery Water Dispute (TN, Kerala, Karnataka, Puduchhery)

Sources of Inter-State River Water Disputes:

• Imprecise distribution of power between the Centre and the States, creating federal jurisdictional ambiguity.
  • Union list mentions ‘interstate water’, the State List simply uses the term “water” to signify what is essentially “surface water” confined within the boundaries of the state.
  • This has allowed states to legislate on the entire extent of surface water available within its borders, regardless of whether the source of the river or its tributary is located outside its boundary or the river is draining into another state.
• Evolving state borders:
  • The changing borders complicate the existing jurisdictional and resource-sharing agreements and eventually become source of inter-state political contestation, leading to histori-geographical ambiguity in inter-state river water governance.
• Institutional Ambiguity regarding which body is ultimate adjudicatory power on ISWDs in India.
  • 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.
• Hostile hydro-politics at subnational level:
  • Identity politics, coupled with demand for resources, have triggered major mass-based political mobilization in the country.
• Increasing water scarcity
  • Depleting ground water, drying rivers and increasing droughts are leading to long legal wrangles between states.

Some problems in Current Water Dispute mechanism

i. Delays

• • Constitution of Adhoc tribunal itself takes a lot of time on many occasions
  • Protracted Proceedings and Extreme delay in resolutions
    • Cauvery water resolution took more than 25 years.
  • Delay in government notification of the final tribunal order also in some cases have been a cause of concern.

ii. Absence of baseline data agreeable by all states

iii. Opacity in institutional framework and guidelines that define these proceedings

• • “There are too many options, and there is too much discretion at too many stages of the process.”
  • This leads to litigations and counter litigations and thus cases go on for years.

iv. Ensuring compliance of the order of tribunal has become a problem

• • Generally states go to Supreme Court challenging the tribunal awards and ensuring compliance of the tribunal’s verdict becomes difficult

v. No upper age limit for the Chairman or the Members

• • Affects efficiency of tribunals

vi. Politicization of Inter-State water dispute makes any compromise on the part of any party difficult.

Planned amendment to the 1956 act.

i. Inter-State Water Disputes (Amendment) Bill, 2019: Permanent Tribunal, Benches and Dispute Resolution Committee

• The bill seeks to amend the Inter-State River Water Dispute Act, 1956 with a view to streamline adjudication of inter-state river water disputes and make the present institutional architectural robust.
• Key Provisions of the Bill:
  • Dispute Resolution Committee (1Y+6m);
  • Single Permanent Tribunal[2Y+1Y; fix term and age limit];
  • Benches for each dispute from permanent tribunal;
  • Assessors to provide technical support to tribunals;
  • Data Collection agency at national level to maintain databank;
  • Decision final and binding

Analysis of the bill

• Positives

1. Dispute Resolution Committee will contribute towards reduce the cases going to the Tribunal. By bringing two sides on negotiating table, it will also be helping in promoting cooperative federalism.

2. Single Permanent Tribunal should improve the quality of judgement as well as the efficiency of it. It will ensure a permanent infrastructure for river water dispute resolution and delays which are caused in the process of getting a tribunal formed will end.

• • • Earlier, delays used to be caused due to delays in finding judges for the tribunal etc. Now the permanent tribunal will do away with such limitations.

3. Faster Awards: Time bound mechanisms ensure an improvement over the current mechanisms.
4. Automatic Awards

• • A reason for delay in the earlier mechanism was that sometimes center took years to notify the award of the ad-hoc tribunal. e.g. – this took three years for the Krishna award.
  • Now, the proposals are that the award will be notified automatically by
    the tribunal.

5. Expert agency to collect data on rainfall, irrigation and surface water flows would be very beneficial

• • Party states have a tendency to fiercely question data provided by other side.
  • A permanent forum having reliable data in its hands sounds like an ideal mechanism to apportion water.

6. Dispute resolution committee may help in reducing the unnecessary litigations.

• • But its benefit will depend on the mechanism’s efficiency.
• Limitations

1. Difficult for a single tribunal to deal with all the inter-state water sharing issues

• • • Given the number of ongoing inter-state disputes and those likely to arise in future, it may be difficult for a single institution with a former Supreme Court judge as its chairperson to give its ruling within three years.

2. Ensuring compliance will still be a problem

• • • It’s interlocutory order as well as final award are likely to be challenged in the Supreme Court.
    • In Dec 2016, in a landmark verdict, the Supreme Court said it had unfettered power to hear an appeal arising from a river water dispute tribunal under Article 136 of the constitution. It has interpreted the ouster clause in the Inter-State Water Disputes Act as one that merely bars the court from entertaining an original complaint or suit on its own, but not its power to hear appeals against the tribunal decision.
    • Thus finality and enforcement of tribunal’s award may remain elusive.

3. Transparency would still be an issue

• • • Opacity in proceedings and guidelines have not been resolved in the new mechanism.

4. Tribunal only deal with infrastructural and architectural mechanisms. Political postures and brinkmanship will remain an issue.

5. States don’t tend to agree over a particular piece of data

• • • Challenge is not about gathering of data, but more about states agreeing over a particular piece of data. The challenge is also about tapping the data to produce knowledge that can be used for decision making.

 Way Forward:

• Focus on avoiding/preventing water conflict. Here water harvesting, planning of resource use etc is going to play a key role.
• There needs to be development of consensus among states about a critical role that centre will play in the river water dispute resolution.
• Without cooperation between states, the inter-state river water disputes will keep raising its head. The problem will only be resolved if there are robust and replicable institutional model for inter-state cooperation. The River Board mechanism which is supposed to facilitate interstate collaboration over water resources should be reinvigorated.
• There should be a mechanism to regularly monitor the implementation of the tribunals order.
• A robust institutional mechanism which is not only fast but also transparent is must to placate states and public.
• Consensus at electoral level also needs to be achieved for long term resolution of dispute.
  • It can be achieved by the “Positive politicization” of the issue, which can only happen when the electorate is sensitized regarding the tangible economic and ecological costs of prolonged disputes.
  • Here, political parties, which are chief mass mobilizers, will have no immediate incentive. Instead, other institutions must create the narratives: the media; civil society; academia; and social political and environmental activists working at the grassroot level.
• Involvement of Local People in the dispute resolution process: A mechanism should be devised to consider inputs from civil society in a transparent manner.

Conclusion

• River water disputes are very crucial issues and have implications for India’s integration. The 2019 bill brings in the infrastructural changes, but India still needs to work upon policy level changes. There needs to be more focus on defining key principles to enhance transparency in functioning of Tribunals, increasing cooperation between states, integrating river water dispute resolution with India’s water policy and finally, increased focus on environmental protection.

Example Questions:

1. Constitutional mechanism to resolve the inter-state water disputes have failed to address and solve the problems. Is the failure due to structural or process inadequacy or both? Discuss [12.5 marks, 200 words] [CSM, 2013]

2. Disputes between the riparian states on sharing of river waters in post-independence era India are becoming increasingly complex. Objectively analyze the major disputes in this connection with special reference to the southern states? [CSM 2010]

3. Riparian rights are a source of disputes. How are they resolved in a federal system? [10 marks Mains 1986]

4. Discuss the key challenges and gaps in the institutional and political fabric of inter-state river water governance within the Indian federal system. [15 marks, 250 words].

5. Setting up of a permanent tribunal to adjudicate river water dispute among states is a positive step forward. Critically Evaluate [10 marks, 150 words]

6. Discuss the key factors behind origin of the river water disputes. Why, in recent years, the river water disputes are becoming more and more difficult to resolve? [12.5 marks, 200 words]