This article has been written by Vartika Jain and Shalini Mishra.

Introduction

There have been several inter-state river water disputes in India. Most of these disputes arise because of lack of adequate water resources for farmers in the states. The researcher looks into the constitutional and statutory provisions in India for dealing with such disputes. What makes such disputes complicated is the fact that water resources are under the State List, while the Parliament has the power to make laws regarding inter-state rivers under the Union List. The researcher also looks into the causes and proceedings of ongoing and resolved river water disputes in India. 

The Cauvery and Godavari water dispute have been considered for analyzing the ongoing and resolved water disputes respectively. The paper also looks at the various suggestions which have been provided:

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.

A] Article 262 of the Indian Constitution

Article 262(1) provides that Parliament may adopt legislation for the settlement of disputes or complaints concerning the use, distribution or control of transboundary waters in a river or river valley. According to Article 262(2), Parliament may adopt a law which may impede the jurisdiction of the Supreme Court or of any other court in relation to the dispute/appeal referred to in Article 262 (1).

According to Rule 262(1), Parliament may “enact” a specific law. This shows that it is up to Parliament to pass such a law. Article 262(2) also states that ‘Parliament may legislate …’. For the purposes of Article 13(3) of the Constitution, the term “law” may therefore include law, order, law, regulation, regulation, notification or legal force in India. The topic of such a right could be a transnational river or river valley.

Article 262(2) begins with the phrase “despite this constitution …”. This means that other provisions of the Constitution that violate Article 262(2) are not applicable. For example, when examining Article 262(2), Article 131 does not apply, which provides for the primary jurisdiction of the Supreme Court in disputes between two or more States. If Parliament loses jurisdiction of the Supreme Court for cross-border river water disputes, it must do so through the mechanism referred to in Article 13(3), as the term “legal” is used.

If the Parliament has not enacted any legislation under Article 262(2), it may refer to the Supreme Court or higher court. The term “may” is used here, which means that the introduction of such a law depends on Parliament’s discretion. 

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

Entry 17 of Schedule II (List of Countries) of Schedule 7 includes water sources, irrigation and canals, drainage and oak, reservoir and hydropower. The provisions for water supply, irrigation or hydropower apply to transnational rivers. Most cross-border disputes over rivers are related to these issues. Therefore, the government would have the right to adopt laws on these issues. However, this competence of the national government depends on the provisions of Article 56 of Schedule I.

List I (Union List), read in conjunction with Article 246(1) of the Constitution, entry 56 gives Parliament the right to adopt laws on the regulation and development of the river and valleys. Countries to the extent that these regulations and Parliament confirm that development is in the public interest. Entry 17 explicitly states that the provisions of point 56 of Annex I apply to such government power. 

Entry 17, which is contrary to the law adopted by Parliament under point 56 of Schedule I, would not prevail. Article 246 of the Constitution is also important in this debate. ” 246(1) uses the words “Regardless of what is in paragraphs 2 and 3”. This means that, notwithstanding the provisions of Article 246(2) and (3), Parliament has the exclusive right to authorize the subjects listed in List I in legislation. the words “points 1 and 2” and state that the government has the exclusive right to legislate on the subjects listed in List II, taking into account paragraphs 1 and 2).

Thus, while water resources are a national responsibility, Parliament has considerable legislative powers in this area. These powers of Parliament are important enough to be able to prevent any legislation adopted by those countries that is in conflict with their parliamentary provisions.

C] 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.

D] Inter-State River Water Disputes Act, 1956

The 1956 Law on Water Disputes was adopted pursuant to Article 262 of the Constitution. The center plays a very important role in the law. Article 4(1) of the Act, which is empowered to establish a water court to challenge water law on the basis of a county government. 

Pursuant to Article 5(2) of the Act, the Civil Service Tribunal shall, within three years, send a report to the central government containing the facts and the decision thereon. The decision of the court is published by the central government in the official gazette. After publication in the Official Journal of the European Union, the decision has the same value as the order or order of the Supreme Court.

Thus, the central government can deal with the Commission, which is obliged to execute court orders. The government can make judgments. The Center can dissolve the tribunal. Sec. 11 excludes the jurisdiction of the Supreme Court and other courts pursuant to law.

This law does not exclude the central government, but interferes with various aspects of the court. The arbitral tribunal shall submit its report to the central government and shall therefore have jurisdiction. In the resolution of disputes concerning river water, the central government is in the hierarchy of the respective state governments and their dependent court.

E] River Boards Act, 1956

Although the Rivers Act was passed in 1956, no river basin was formed under this Act. However, it is important to study this law in order to analyze the role of the Center in the dispute between rivers between states, as set out in this Act.

According to Section 2 of the Act, the Center should control the development and development of transnational rivers and river valleys. At the request of a regional government, the Center may establish a river council. The term used herein is “may”, which means that the flow rate depends on the discretion of the central government. The Agency may prepare, amend or reject river or river development projects between countries.

By law, the central government gives the Council the power to perform its tasks. The term used here is “as deemed necessary by the central government”, which means that the amount paid to the Board of Directors clearly depends on the discretion of the central government, which is an annual report to the central government and the governments of the countries concerned.

This shows that the Council is responsible for its actions towards the central government. The central government has the opportunity to develop rules for achieving the goals of the law. It therefore appears that the termination of the Board of Directors seems necessary “if the central government agrees”.

While the main actors in the dispute are the respective national governments, how the conflict with the central government takes place is up. The mechanisms established for the adjudication of such disputes are accountable to the Central government and owe their very existence to the Central government. Thus, to say that water and Inter-State water disputes falls within the domain of State governments due to its presence in the State List is a fallacy. The Central government plays an equally, if not more important role in 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 is an indigenous Karnataka. It passes through Tamil Nadu and Pondicherry before the Bengal Gulf flows. In both countries, food production and livelihoods depend on the water in the Cauvery River. Tamil Nadu believes he is in need in the years of mercy in Karnataka, while he cannot release Tamil Nadu while water is not available to his peasants.

An agreement was reached between the Madras Presidency and the Principality of Mysore which ended in 1974. Between 1968 and 1990, 21 trilateral meetings were held with the ministers of Karnataka and Tamil Nadu and with the Union Ministers for Irrigation. Between 1972 and 1976, the Indian government played a mediating role, but no agreement was reached.

At the request of Tamil Nadu, the central government established the Cauvery Water Dispute Tribunal in June 1990. In 1991, the court issued a preliminary injunction ordering Karnataka to provide Tamil Nadu with one ton of cubic feet of water. Karnataka, who was dissatisfied with the temporary prize, received in 1991, in this scenario, the central government sent the case to the Supreme Court.

The Supreme Court in Re Cauvery Water Disputes Tribunal v. Respondent, declared the order of Karnataka must be ultra vires. There were protests in Karnataka where five people died. In 1998, the central government set up a monitoring committee under the Cauvery River Authority (CRA) and the ISRWD. The rating agency has ordered Karnataka to release 9,000 aquatic animals in Tamil Nadu. Karnataka and Tamil Nadu were satisfied with this order and Karnataka refused to implement this 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 case reached its peak in September 2016, when the Supreme Court asked the Karnataka government to release 15,000 water bodies in Tamil Nadu over the next 10 days. Karnataka applied court rulings on state protests. One person died and four were injured against the police. Tamil companies were attacked by the masses. Traffic on the Bengaluru-Mysore highway was paralyzed by violence. 

At the same time, at the request of the Attorney General, the Supreme Court set up a technical team to visit the Cauvery Basin to assess the site’s reality. The team reported to the Supreme Court in October 2016. The government of Karnataka was directed to release 2000 cu-secs of water. Hearings in this matter are still going on.

The Cauvery conflict has led to tense relations between Tamil Nadu and Karnataka. This was exacerbated by the violence and disorder that accompanied the conflict. The central government played a mediating role in the negotiations between the two countries. He established an arbitration panel and the technical team was also formed on the basis of the central government’s opinion. In addition, the Cauvery River Authority (CRA) oversaw the prime minister’s activities. Thus, the central government played the role of negotiator in a dispute between the two countries.

Conclusion

Transnational disputes over rivers have always been a source of political imbalance. These disputes include elements of national pride and prestige. National conflicts with water are also an important issue for politicians in elections. Politicians and governments have always promised to get the best possible offer for their country and people. This shows the important role that such disputes play in the political and federal system of India. Water and water supplies were mentioned in the Constitution as a national issue. List 56 of List I empowers the Center to regulate and develop rivers and valleys between countries.

Article 262 also gives Parliament the right to regulate intergovernmental dispute resolution in river waters, as well as the right to prohibit the Supreme Court and other courts from deciding on such matters. At first glance, however, national governments seem to be able to resolve cross-border disputes with water. A closer overview shows that the central government has actually invested in powers. The central government issued the 1956 ISRWD Act under Article 262. This means that states cannot set their own water dispute resolution laws and rely on ISRWD to resolve such disputes. The ISRWD Act gives the central government the right to resolve such disputes through the formation of courts, while states are only litigation. Thus, the central government has the real power to resolve cross-border disputes over water. Article 11 of the ISRWD Act excludes the jurisdiction of the Supreme Court.

The project also dealt with the disputes in Cauvery and Godavari. Cauvery dispute is pending when Godavari dispute is resolved. The Center has played a mediating role in these conflicts. These included the establishment of courts at the request of states, the convening of the same meeting, and the search for an agreement between them. In such disputes, the center is a negotiator with the countries at the top of the hierarchy.

Of course, such disputes have further deepened relations between countries. Transnational disputes have often shown the pride and prestige of the States Parties. Politicians, on the other hand, have brought the fire to political advantage. The Cauvery conflict has even become violent, with physical attacks on members of another. This development is not good for India.

In its report, the Sarkaria Commission has dealt with disputes between rivers. Some of its recommendations are included in the ISRWD Act. Proposals for creating a database, establishing a court within a year at the request of a state, and a recommendation for a court judgment is the same as that of the Supreme Court. Other proposals, such as the establishment of a court of its own motion and the enforcement of a court conviction over five years, although desirable, were not investigated. The law amending the 2017 ISRWD Act provides for the establishment of one permanent court.

The project also looked at the feasibility of connecting rivers, a proposal to eliminate water scarcity and thus avoid water conflicts between countries. However, such a project would bring huge capital and energy needs and would have disastrous consequences for the environment. It is therefore best to stay away from this practice.

The dispute over Godavari Falls has shown that negotiating between countries is often the best way to resolve water disputes. In both cases, intergovernmental agreements came into force decades ago. Nonetheless, the Contracting States follow this and there is no new dispute in this respect. On the other hand, cross-border disputes between courts on water have been solved for centuries without real development. When the Civil Service Tribunal announces its sentence, States Parties often refuse to enforce the sentence. This was observed in the Cauvery dispute. For example, negotiations between States Parties are the best way to bring about a quick and sustainable end to river basin disputes.

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