This article is written by Smriti Singh, studying LLM from National Law University and Judicial Academy, Assam. The article has been edited by Smriti Katiyar (Associate, LawSikho).
“Good drinking water and basic sanitation are intrinsic to human survival, well-being and dignity and are important yet vulnerable development assets for maintaining eco-system health” Ban Ki-moon.
India is a federal democratic country gifted with many rivers that are the carriers of life-sustaining waters. The flowing river water across the state boundaries definitely constructs an efficient and impartial system for dispensing or allocating river flows is a significant, lawful and constitutional issue. According to the 2011 Agricultural Census of India, an estimated 61.5% of the 1300 million Indian population is rural and dependent on agriculture. And according to the Indian economic survey 2017-18, the agriculture sector employs more than 50% of the total workforce in India and contributes around 17-18% to the country’s GDP. The well-being and economic prosperity of a country that heavily relies on the field of agriculture are undoubtedly based on harnessing water resources, in particular the utilization of river water. It can be said that proper maintenance of irrigation or agriculture largely depends on the availability of river water. So, the sharing of river water resources plays an important role for the welfare of the people especially to the people who are directly attached to the agricultural field or for flora and fauna, environment, ecology and so on and so forth and indirectly to everyone for their livelihood. It is a bare necessity for human existence and necessary for the generation of power for industrialization and for a better quality of life, comfort and luxuries of life also. All people feel entitled to the highest quantity of water so as to derive maximum benefit and there arises, unfortunately, a clash of interest amongst the people of the area, the river winds its way through.
Geographically, all the major rivers in India are inter-state in character. Over time as a result of the development of the river, water resources has led to the creation of many multi-purpose river valley schemes in which several riparian states have cooperated to derive optimum benefits. Unfortunately, the sharing of river waters has become a perpetual source of conflict between the States since Independence, differing by each other as per the case. Inter-state water disputes are a persistent phenomenon in India. Each State prefers to use the river waters to the maximum extent irrespective of the mutual agreements. This invariably leads to inter-state disputes, sometimes un-ending. In this context, the Central Government has a pioneering role to play in resolving the disputes relating to water rights between the States. Further, in giving technical clearance to the irrigation projects proposed by the States, the Central Government has to shoulder an important responsibility.
Non-cooperation between states
A prime example of the lack of the required interstate co-operation is the Krishna basin. There have been many other disputes that have festered over decades with no end in sight in the Indian peninsular region. Numerous policy papers have been submitted, also numerous bodies have been constituted to no avail as the four states of Maharashtra, Karnataka, Telangana and Andhra Pradesh to date continue to feud over the issue of their riparian rights.
The author in this paper attempts to look into the framework into framework and structure surrounding the disputes at the inter-state level with regard to water and the resolution in the light and context of the Krishna water dispute, to identify the lacunae in the current scenario which hinders a resolution which is satisfactory and also to analyze the alternatives. The author also talks about the problems that can arise from lack of coordination between the Center and State, various issues which arise as a result of conflicting statutory and constitutional powers, the cause of inaction and to help increase the cooperation between states and union various remedies have been suggested. Globally, many countries are attempting to work on sustainable development, by fixing the goals to transform the world into a better phase. For instance, Prime Minister Hani Mulki of Jordan gave his words that “Water security is increasingly being addressed by many countries as part of their national security strategic approaches and an essential element for cooperation rather than conflict initiation.
Important questions the author is addressing through this paper
- What are the key issues behind the Krishna Water dispute?
- Whether the constitutional and statutory provisions governing inter-state water disputes are appropriate or not?
- What is the role and scope of the union in dispute resolution?
- Why hasn’t the dispute been resolved yet, also what are some viable alternatives and remedies to get over the situation.
The Indian Constitution provides for the Centre-state relations under Part XI and XII from Article 245-293. India being a federal country has a characteristic feature of the division of power (Legislative, Executive and Financial) between Centre and State. The powers divided between Centre and State is explained by three types of relations i.e. Legislative relations (245-255), Administrative relations (256-263) and Financial relations (264-293).
Legislative relations is divided into two aspects; Firstly, ‘Territorial jurisdiction’ which includes where and on which matters Centre or State can make laws and Secondly, ‘Subject matter jurisdiction’ which means on which matter they need to make laws for example; agriculture, electricity, education, water projects, etc. which is simply categorized under the seventh schedule. This includes three lists i.e. Union List (97 subjects), State List (66 subjects), Concurrent List (47 subjects). Here each union or state is supreme in their allotted spheres. The Parliament or the state legislature both can make laws for the whole or any part of the territory of India i.e. the States, UTs and any other area for the time being or for whole or any part of the state respectively. Though both can make laws on their respective subjects in case of conflicts between the two, the law of the Centre prevails.
In terms of administrative relations, both work to achieve a smooth working relationship between the two levels. Parliament can give directions to the state relating to the exercise of executive power of the state. Also, both can delegate their functions to each other, with mutual consent. Indian Constitution provides for sources of income for the Centre and State by completely separating the Central-State taxing powers. Our concerned topic i.e. water dispute comes under the administrative head which is handled by the Parliament by law. Though Centre and State work cordially but at the same time there is also a state-state relation which is called ‘Exclusive Original Jurisdiction’. According to Article 131 of the Indian Constitution, the SC shall, subject to the exclusion of any other court, have the original jurisdiction in any dispute between the government of India and one or more states or between the government of India and any state or states, if the dispute involves any question whether of law or fact on which the extent of a legal right depends.
In Gandhi Sahitya Sang vs. Union of India, the Supreme Court has held that an Inter-state water dispute can only be brought by a state and not by an individual or society. In case of water dispute between the two States, individual or society has no locus standi to file water dispute or challenge the validity of the Inter-state Water Dispute Act or setting up Tribunal and also to the reference of Cauvery water dispute for adjudication to the Tribunal.
Inter-state water dispute
Disputes arising among the states for sharing the water resources (Rivers) are called Interstate water disputes. This type of dispute is high in India in sharing the river water between the upstream states and downstream states who mainly share the river flow. It is a matter dealt with under administrative relations of Centre and State. According to Section 2(c) of the Inter-State River Water Disputes Act, 1956, “Water Dispute” means any dispute or difference between two or more State Governments with respect to-
- The use, distribution or control of the waters of, or in, any inter-state river or river valley; or
- The interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or
- The levy of any water rate in contravention of the prohibition contained in
In India, there are many water disputes, for example-
- Krishna water dispute between states of Maharashtra, Karnataka, Andhra Pradesh.
- Godavari water dispute between states of Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh, Orissa.
- Narmada water dispute between states of Rajasthan, Madhya Pradesh, Gujarat, Maharashtra.
- Cauvery water dispute between states of Karnataka, Kerala, Tamil Nadu, and Union Territory of Pondicherry.
- Mahadayi / Mandovi water dispute between states of Goa, Karnataka and Maharashtra.
- Vansadhara water dispute between states of Andhra Pradesh, Orissa.
Reasons for water dispute
The issues and challenges that the states face out of inter-state river water extend to the problems relating to sharing of waters of an inter-state river or stream by the different states(s). If we try to categorize them they will be as follows-
- Problems relating to apportionment of benefits of a project that is jointly constructed by more than one state and sharing of construction costs;
- Problems relating to compensation to be paid to a state that may have been prejudicially affected by the implementation of a project by any other state;
- Problems from disputes arising out of interpreting an agreement, complaints relating to utilization or excess withdrawal of water by a state, sharing of additional water, and construction of dams canals etc.
There may be many reasons for this. Some of the reasons are that states have more flowing rivers and they have enough water for their irrigation and the production of electricity. Due to this uneven distribution of water resources, some of the states are going to be deficient in water and they will depend on the available resources. Another reason is the variation of rainfall in states. Upper stream states have more advantages of the usage of river water than the downstream states. So, mostly the disputes will arise from the downstream states. The construction of more dams across the river also creates disputes among the states. Because of these dams, downstream regions will not get water for irrigation projects and multi-purpose projects. Due to these reasons, demand for the river water increases and generates disputes among the states.
Dispute relating to Krishna River and utilisation of its water
The water disputes between States in India in which the dispute related to Krishna River and utilization of its water have Andhra Pradesh and now Telangana objecting to construction of dams and other hydro-electric projects by the upper riparian states of Maharashtra and Karnataka as they apprehend that the constructions will affect its utilization of water based on the customary flows in the Krishna River. Some other examples where such a problem persists are that of Cauvery, Narmada etc. In most cases, the disputes haven’t been solved yet. There have been few instances where the disputes have been settled amicably like the Chambal Valley project where two state governments agreed not to charge any compensation to the project for the government property to be submerged in the respective territories. Whereas in some cases there have been disputes regarding the interpretation of agreements entered into by the states with respect to the allocation of inter-state river waters like the Cauvery Water dispute between Tamil Nadu and Karnataka and the dispute between Punjab and Haryana for allocation of the Ravi-Beas waters.
The mechanism for inter-state river water disputes resolution
“Where there is a loss there is a remedy”, similarly there is a mechanism to resolve such disputes provided under the law. The resolution of water disputes is governed by the Inter-State River Water Disputes Act, 1956. 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 same. In 2002, the Act was amended to include the major recommendations of the Sarkaria Commission to meet the needs. The amendments mandated a one-year time frame to set up the water disputes tribunal and also a 3-year time frame to give a decision.
As a result of the same, some tribunals have been made, for example, Krishna Water Tribunal I in 1969 and Tribunal II in 2004, Mahanadi Water Tribunal in 2018, Mahadayi Water Tribunal in 2010, Vansadhara Water Tribunal in 2010, etc. Among all these authors would like to proceed further with reference to the Krishna water dispute to explain the dispute and the related matter.
History of Krishna water dispute
In the process of federalism, water disputes are inevitable between the states. The origin of the Krishna river is in the western ghats of Maharashtra, further streams through the states of Andhra Pradesh, Karnataka and Telangana before emptying into the Bay of Bengal. Disputes regarding this river have continued to occur from time to time, and we need to locate the dispute in its historical context in order to understand the complexities. The dispute mainly is over the issue of ‘allocation of waters’ to the respective states which date back to the colonial era.
Post Independence Era
India after independence during the time of the first five-year plan began a large-scale development of power and irrigation with the utilization of the river resources. The states had a common view that the schemes which were proposed by one should not have an unfavourable and adverse effect on the other riparian states, this paved the way for the need to have an MoA over allocations of rivers. In July 1951, an inter-state with the objective of discussing the allocation levels of water in the Godavari and Krishna, subject to review after 25 years. The states of Madras, Hyderabad, Bombay, Mysore were interested in the river Krishna; however, the MoA was not ratified by the State of Mysore. Maharashtra and Mysore questioned the validity of the 1951 MoA on the grounds of ‘territorial changes’ which were a result of the reorganization of states on a linguistic basis in the year 1953.
The major issues
Broadly, four main issues were problematic with regard to the MoA. They are as follows-
- The first issue, regarding the 1951 MoA was that it should have been in the form which was prescribed in Article 299 of the Indian Constitution and whether states ratification was necessary.
- Secondly, the issue of reduced water supply to the lower riparian states because of the excessive westward diversion of waters by the state of Maharashtra.
- Thirdly, the objection raised by the state of Andhra Pradesh regarding the proposal of the upper riparian states to construct reservoirs, which would result in the restriction of its flow in the months of May and June. But the Right of Andhra Pradesh was in itself a question.
- Fourthly and finally, in excess of the legitimate share of Andhra Pradesh, other states claim Andhra Pradesh wanted to store more water in Nagarjunasagar.
Even though a do novo reconsideration of the issue was being lobbied by the states, the objection was raised by Andhra Pradesh for any alteration in the MoA before the time which was stipulated. In May 1961 under the union ministry of irrigation and power, The Krishna-Godavari commission was set up but it was unable to provide a clear solution. The transfer of the dispute to the tribunal as a result of the request received from the state of Andhra Pradesh led the government of India to transfer the two disputes to the two tribunals which separated the Godavari and Krishna Dispute. When negotiations failed, on April 10, 1969, the “Krishna Water Dispute Tribunal” was set up. The tribunal was presided over by the then sitting Judge of the Supreme Court, ‘Justice R.S. Bachawat’. The Award was given in 1973. One of the observations of the tribunals was that despite the fact that there was an oral agreement which was concluded in 1951 with regard to the allocation of the Krishna water, because of Karnataka’s want of ratification, there was no agreement that was legally binding.
Relying on the case of Jainarain Ram Lundia v. Surajmall Sagarmall the tribunal had arrived at a conclusion that no perfect contract was possible without the agreement and without a clear understanding of what the other side of the party wants and needs to be a party to the agreement. On the grounds of equity, if a case is made for enforceability, the part which is non-consenting has to prove and show that it would result in substantial injustice.
In its report the tribunal offered two schemes: Scheme A, on the day of publication in the gazette, came into effect which dealt with the allocation which was based on the 75% dependability, In scheme B different ways were recommended to share the water which was surplus, after the publication the award became binding on Karnataka, Andhra Pradesh and Maharashtra. It provided that 2060 Tmcft was the total quantum of water which was available, out of which Karnataka was awarded 700 Tmcft, Andhra Pradesh was awarded 800 TMC and Maharashtra was awarded 560 TMC. This award was up for review in the year 2000, which led to a race among the different riparian states in order to complete their ongoing projects on the Krishna river, The result was further the problems on building the Srisailam Dam, Nagarjunasagar Dam, Almatti Dam, Tungabhadra Dam.
Upon the request by all the three states, in April 2004 the second Krishna water disputes tribunal headed by retired Judge of SC, Brijesh Kumar was constituted. The KWDT-II award was based on 65% dependability Andhra Pradesh received 1001 TMC, Karnataka received 907 TMC, Maharashtra received 666 TMC. This award was to be reviewed after the year 2050. Maharashtra and Andhra Pradesh dissented even though Karnataka was pleased with it, Andhra Pradesh filed a special leave petition in the Supreme Court, after which it was re-checked for the violations to the 1956 Act of Inter-state River Water Disputes.
|Krishna water allocation by two Tribunals(in thousand million cubic feet)|
In State of A.P. v. State of Karnataka, the Supreme Court has considered the questions such as whether the Supreme Court adjudicates upon the implementation of the award by the tribunal. Can the Supreme Court interpret the award of the tribunal? Can Karnataka be directed to stop construction and stop raising the height of the dam? Though respondents raised the objection regarding the jurisdiction of the Supreme Court it held that the Court is not looking into the matter of water dispute but deciding upon the validity of the award of the tribunal.
The Tribunal itself made it clear that scheme A is the award and Scheme B is not part of the award and is a mere recommendation made to the Central Government. Therefore, there is no requirement to publish scheme B. On questions of construction of Almatti dam and raising of height, the court said that the award of the tribunal is clear and for any further clarifications parties can go to the tribunal as it is not dissolved.
The Supreme Court can interpret the decision of the tribunal but cannot adjudicate upon that matter and therefore directed the parties to go to tribunal for the same. But on the above issue, there is no bar upon the jurisdiction of the Supreme Court.
Provisions relating to inter-state disputes
States are empowered to enact legislation relating to water because it is a state subject as per Entry 17 which deals with matters relating to water like water supply, irrigation, water power, water storage, canal, drainage, embankments.
Secondly, Entry 56 of the Union List provides power to the Centre for the regulation and development of inter-state river and river valleys to the extent declared by parliament to be expedient in the public interest.
A specific provision of Article 262 is provided by the Constitution to deal with the disputes relating to water. This states that Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the water of or in any inter-state river or river valley. Notwithstanding anything in this Constitution, 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.
There are other possible ways of extending the centre’s control over the use of water resources. For example, the provisions of Entry 20 in the Concurrent list about economic and social planning requires state clearance from the centre for any project of water resource development (including the projects for irrigation, hydropower, flood control). These provisions allow the Center to be responsible for water resource development and also provide powers to regulate and control them.
Parliament has enacted two laws under Article 262 to meet the needs of an hour. They are as follows;
River Board Act, 1956
The purpose of this Act was to enable the Union Government to create Boards for Interstate Rivers and river valleys in consultation with State Governments. The objective of Boards is to advise on the inter-state basin to prepare development schemes and to prevent the emergence of conflicts. Though till now there have been no river boards constructed for the said reason.
Inter-State Water Dispute Act, 1956
This Act was a response to Article 262. According to the Act, if a particular state(s) approaches the Union Government for the constitution of the tribunal, the Central Government should try to resolve the matter by consultation among the aggrieved states. If it does not work, then it may constitute the tribunal. It is to be noted that the Supreme Court shall not question the Award or formula given by the tribunal but it can question the working of the tribunal. The River Water Tribunal is constituted of the Chief Justice of India and the sitting judge of the Supreme Court and the other two judges who can be from the Supreme Court or High Court. In India, the present mechanism to resolve such disputes is by tribunal and whose decision is final.
A glimpse of powers of centre and states
Tracing to the origin, the Government of India Act, 1919 introduced dyarchy in the provinces of India. Irrigation was made as a part of the provincial list by The Government of India Act, 1935 but was a reserved subject that needed prior approval from the secretary of state and had to be taken before the provincial government. Also, it undertakes any project which results in affecting another province. However, the dispute resolution system is quite similar to our current scenario. When a dispute arose between provinces and the states, a commission was appointed by the governor-general, which investigated and reported the findings on the matter. Finally, he would arrive at a decision that would be binding on both parties. The jurisdiction of any court or the federal court was barred. The power of the States and Centre to legislate on subjects is an important feature of federalism. The Centre is empowered to legislate on the subjects in List I of the seventh schedule, and List II of the seventh schedule contains the subjects on which the states can legislate which is under the provision of Article 246(1) of the Indian Constitution.
However, the quality and quantity of water flowing into the lower riparian states will be affected by the utilization of water resources by the upper riparian state. Therefore, Entry 17 of List II is subject to the provisions of Entry 56 of List I, which deals with the development and regulation of river valleys and inter-state rivers in the public interest. In the Sarkaria Commission Report, it was noted that Entry 17 is not qualified by the usage of the word “inter-state”, which led to forming the basis for the parliament to ouster the power of the state legislature.
The intention of framing Article 262 by the framers of the Indian Constitution is evident, in which the power of adjudicating the disputes between states relating to river valleys and inter-state rivers is solely left to the parliament by the law. Clearly, in the matter of adjudicating the conflicting claims and disputes over water resources by the usage of the equitable apportionment principle to ensure justice, the parliament is seen as an overarching and competent authority.
Concept of equity
The origin of the concept of equity came from the case laws in the United States which was relied on common sense and was vague but concretized in Helsinki Rules which contains the several factors which are required to be seen and taken into consideration in working out the equitable sharing of resources between the riparian states, although not explicitly and expressly mentioned but the application is seen in the passing of Inter-State River Water Disputes Act, 1956 under Article 262. noting the position, and also considering the Article II, IV, V of Helsinki Rules. This found favour over the Doctrine of prior appropriation, the Harmon doctrine and the doctrine of riparian rights. Combining with the ouster clause provided under Article 262(2) which deals with the prohibition of Indian courts to interfere in the issues which are related to using, control and distributing of river waters and river valleys, shows the power given to the Parliament to decide which doctrines to adopt and apply by Constitution.
Mechanism to resolve river disputes
According to the author, the mechanism to resolve river disputes gives primacy to Centre-State relations, by way of the legislature. Under Article 131(3) the Supreme Court has original jurisdiction for disputes between two or more states, but water is clearly an exception to this case is Article 262(2) is clearly an ouster of jurisdiction clause for any Indian court. Any Indian court is prohibited from interfering in a river water dispute when the issue has been referred to a tribunal under Section 11 of the Inter-State River water dispute Act, 1956. The supremacy and power to create a body for adjudication is given to the parliament. This can be because of multiple reasons but the most obvious and common reason is that water is a necessity and rivers are of utmost importance as it sustains lives of millions and hence it needs to be prioritized in the sense that disputes on this topic must be resolved expediently, and so that the body which is formed to adjudicate may rely on practical, scientific-technical, grounds to arrive at a decision in the public interest rather than be bound by precedents.
According to the researcher, this is primarily due to two reasons. First, the disputes are of a highly technical nature requiring experts in irrigation, groundwater, geology, etc. Second, it is due to the highly emotive nature of a river dispute, which cannot be objectively decided by judges if there is a conflict of interest. For the investigation and recommendation, the constitution of a separate body of experts is emphasized. However, the restriction does not lead to an absolute exclusion of jurisdiction of courts
In the appeal filed by Pondicherry and Tamil Nadu in the case of State of Tamil Nadu v. State of Karnataka, the apex court held that while it had no jurisdiction to decide merits of a case in relation to the distribution and control or usage of waters, it is still the final authority to interpret the Inter-state River Water Disputes Act, 1956 and as such the judiciary alone had the authority and jurisdiction to decide the scope, power and jurisdiction parameters of a tribunal which is a statutory authority which is constituted under the Act.
Role of centre and states in dispute resolution
Under Entry 56 of the union list, for the promotion of river valley development and river water the River Boards Act was enacted, in which the appointments to the board will be made in consultation with the state government by the Centre. As the provisions of this Act have not been used till recently the Sarkaria Report has described it as a “dead letter”. There is an opinion that theoretically, the Centre has hardly any power in the matter of water development, which is available solely through the River Boards Act. In entry 17 of List II, the developmental aspect has been clearly mentioned, which is exercised by the state in building multipurpose projects, reservoirs, dams etc. In fact, the River Board Act offers much clarity on the composition rather than the implementation but Section I of the Act empowers the board to advise the state governments on development and regulation. The board by Section 15 is empowered to draft schemes, which then must be approved by the governments involved. The board consists of a chairman and members who have been appointed by the central government. However, the board is only advisory in nature to further undertake measures for the execution of the scheme. The board being advisory in nature is clearly a drawback and to date from its commencement, no board has been constituted under this legislation.
In the absence of binding arbitration, it would only end up intensifying the dispute as the state involved might find their reports unfavourable. With the intention of amending the dormant 1956 Act of River boards, a Draft River Basin Management Bill was prepared in 2012. One of the key reasons why a river board was never formed was because it could be only constituted upon the request made by the state government. Under this Act, no state government had made such a request.
This draft was proposed with the idea of the creation of a two-tiered institutionalized structure in order to encourage greater participation from states and arrive at a consensus but unfortunately, it was never tabled in parliament. The Inter-State River Water Disputes Act, 1956 in contrast to the River boards Act has far greater momentum. Two Krishna water dispute tribunals have been constituted. The tribunal consists of two members who are nominated by the chief justice of India and a chairman, from the sitting judges of the high court or high court.
Upon the request from a state government, the central government under Section 4 of the IRWD Act can set up a tribunal. Upon the Sarkaria commission’s recommendation, the Union government is obligated to constitute the tribunal if the dispute cannot be settled by negotiations one year from the receipt of the request as per the 2002 Amendment Act. However, one obvious lacuna is the union’s inability to constitute a board suo motu when it is convinced that a dispute exists. The Sarkaria commission noted that the Act was amended in 1986 to allow a suo motu Constitution of a Ravi Beas Water Tribunal but not for general application. This can create inordinate delays due to the reluctance of states to request for adjudication, as happened in the Cauvery Dispute.
In Section 6(2) of the IRWD Act, this was incorporated. Following this amendment, KWDT-II was set up in 2004. However, in 2010 the award which was given was again to be found highly contentious. Brijesh Kumar headed tribunal failed to accept most of the state’s appeals against the KWDT-I award put forward by the state of Andhra Pradesh which deeply disappointed them. One of the main concerns the tribunal has been dealing with is the issue of Almatti dam, a hydroelectric project in Northern Karnataka. A crucial plea was filed by Andhra Pradesh against the raising of the height of the Almatti dam to 524.25m from 519.6m which would facilitate storing 303 tmcft and would impact releasing of water to four important barrages in the state, including Srisailam and Nagarjunasagar.
Andhra Pradesh challenged this award before the Supreme Court by claiming that it violated the IRWD Act, and also the well-settled principles on allocation and distribution of water. However, the Award was declared equitable. We cannot turn a blind eye to the political factors as immediately Karnataka moved forward to increase the height of the dam to 524m. The other major problem included the surplus water which was allocated to Andhra Pradesh for the downstream projects of the state. And hence Andhra Pradesh opposed sharing the surplus with all four riparian states.
The tribunal to implement its decisions has the power to formulate schemes under Section 6A of the IRWD Act, also the tribunal may form and create any authority which would have the right to “acquire, hold and dispose of property, enter into contracts, sue and be sued and do all such Acts may be necessary for the proper exercise and discharge of its jurisdiction, powers and functions.”
Unfortunately under this Act, no such supervisory committees have been formed, and the award of the tribunal itself has been challenged and questioned before the Supreme Court multiple times. There the problem of implementation remains unanswered. Moreover, unlike the court of records who has the power to punish for contempt for non-execution of their decrees the tribunals have no power to punish for contempt. In reality, there are no provisions for the implementation of tribunal Awards. It remains entirely on paper. Telangana, which emerged as an independent state, felt that in the KWDT-II Award its interests had not been represented as the award was given when it was still a part of Andhra Pradesh.
As of April 2016, Telangana and Andhra Pradesh are arguing for a total review of the allocation of Krishna waters, with Karnataka and Maharashtra opposing the same. Additionally, the states of Telangana and Andhra Pradesh through the Andhra Pradesh Reorganization Act, 2014 have created a Krishna River Management Board to address the problems arising out of the bifurcation of two states, particularly Srisailam and Nagarjunasagar dams. The union minister chairs the ambitious board which was constituted by the union government and consists of chief ministers of both states as members. The body was essentially formed in order to handle the takeover of all the reservoirs present across both the states, also it will regulate the supply of water to each project in accordance with current provisions of the KWDT-II Award. Section 90 of the Act makes the project-specific awards binding on both the states even when the states are asking for a review of the KWDT-II Award. So far there has been no consensus regarding the decision on water sharing and the meetings have been inconclusive. The agenda of the board is to only discuss further the water which has been already allocated. Recently, chief ministers of both states have been expressing the futility of this Board; The entire purpose is defeated as the main dispute has to be resolved by KWDT or the supreme court.
Thus, we can make few observations about the apparent centre and state relations. Though on the face of it looks like there are several statutory and constitutional provisions for co-operation between the state themselves and the union and states, there are only a few instances at which the final decision is arrived at, but it does not come to fruition.
Due to the geopolitical boundary changes the very first agreements which were made between the states could not be honoured. The riparian states challenged the KWDT Awards and the latest one is still in controversy in the apex court. The Krishna River Management Board meetings have failed in arriving at a consensus for their agendas. Despite the tribunals having clauses that empower them to create bodies for implementation, they choose not to.
The Apex Court has not hesitated to allow appeals made by states challenging the awards granted by the tribunals on the grounds of grave injustice and violation of the Inter river water disputes Act, and the competency of the tribunal inter alia even though the Article 262(2) of the Indian constitution clearly prohibits the interference of Indian courts from getting involved in the subject matter of the dispute. The Centre which has the role of supervisor and mediator is powerless in face of increasing non-cooperation and demands. Instead of specialized five-year dispute tribunals with their low efficacy, the current BJP government is thinking of forming a nodal tribunal for adjudication on all water disputes.
This might lead to new challenges, like the possibility of a deadlock between the apex court without trying to resolve the key concern of implementation. There was a review and update in the national water policy under the Ministry of water resources in 2012. The policy tries to treat water as an economic good and thereby resulting in water resource management and in promoting conservation. There has been criticism that it shifts away from water allocation by states. The policy is clear from the perspective of equity, community and social justice, rather than business or state. It is seemingly, pro-access, pro-community and it also supports the idea of the creation of national water framework law and water disputes tribunal. Under the erstwhile planning commission, the working committee on the national framework law preempted the problems between the states and it recognized the need for the creation of a water law for the whole nation. The problem with the rights of the states over the water of a river basin that straddles more than a single state is that different states tend to adopt different positions over the rights. Such legal diversions tend to complicate inter-state conflict resolutions. A report points out that Europe having International River waters flowing throughout the continent has successfully developed a European Water framework directive in the year 2000. Also, there is no legal status to the national water policy. Water law is necessary and needed.
Scope for inter-state and union cooperation
It seems fair to say that the water dispute tribunal system has not proved to be very successful in reality. In the words of M.C Setalvad: “The tribunals appointed under the inter-state water disputes Act to adjudicate upon them have so far produced no results. We know from the experience of other countries how long-drawn-out and expensive these adjudications can be and our country cannot afford either the expense or the long delays. Our constitution-makers, anticipating such situations, have provided ample power to the union to enable it to deal with them. Why should no the union, it is asked, exercise its powers of legislation under entry 56 of list-I, which empowers it to legislate for the regulation and development of inter-state rivers and river valleys, to the extent, to which such regulation and development under the control of the state is declared by Parliament by law to be expedient in the public interest? Such Action by the union, it is urged, will have the advantage of ensuring a quick solution of these disputes arrived at from a national perspective.”
Most disputes have several unfortunate similar features such as inordinate delays, the vagueness of the legal doctrines which are applied in reaching the verdict and acrimonious tension between the parties. In a federation, there will be a great inconvenience and confusion if one state refuses to recognize the Acts and records of another state. This is indeed a great hindrance which is visible in the Krishna water dispute, as Andhra Pradesh and Karnataka in particular continue their bitter feud and a consensus on the issue is nowhere to be seen. Also one of the other observations which were made that the northern states dominate Indian politics and the states belonging to the south have been seen as an appendage of the northern states.
This will definitely create apathy in the Centre’s approach to the various water disputes in the south, and its role as a mediator becomes very doubtful when it cannot seem to resolve a dispute in decades.
This will definitely create apathy in the approach of the Centre to the disputes arising in the south over water and the role which it plays as a mediator becomes doubtful as and when it cannot resolve a dispute over decades. Several alternatives have been drafted and suggested. Firstly, the parliament is keen on the establishment of a nodal tribunal. However, if the problems surrounding the tribunals are of the nature as discussed in the above-mentioned paragraph, It is not likely to be resolved by the mere creation of a tribunal at the central level for the processing of all the complaints. Also, there has been a radical alternative suggestion to amplify the responsibility and power of the parliament by shifting the subject “water” to the concurrent list from the state list. The argument made is that the legislative power of parliament should be used to be a neutral third party in the development of all water resources and regulations which create inter-state disputes and should not be restricted to the Actions in the interest of the public. However, this might have an adverse and severe impact on the federal structure of India.
In the author’s opinion, since all the authorities recognize the emotional and political mien associated with rivers, it is imprudent to deny a state the freedom to propose and develop projects on rivers that will affect its population. The Centre must limit itself to an adjudicatory, regulatory position to balance the Centre and state relations. Also, there must be a substantial law that has to be laid down for resolving the inter-state water disputes by the parliament, which includes technical aspects as the criteria for the allocation of water resources. The author adds that the doctrine which is being used by the authorities must be explained in detail with clarity.
Present scenario of statutes relating to water
There were many issues relating to Interstate water dispute tribunals. Some are as follows-
- Protracted proceedings and extreme delays in dispute resolution.
For example, in the case of the Godavari water dispute, the request was made in 1962, but the tribunal was constituted in 1968 and the award was given in 1979 which was published in the Gazette in 1980. Secondly, In the case of the Cauvery Water Disputes Tribunal, was constituted in 1990, and gave its final award in 2007. It clearly shows the major delays in giving awards.
- Opacity in the institutional framework and guidelines that define these proceedings and ensure compliance.
- Though the award is final and beyond the jurisdiction of Courts, either state can approach the Supreme Court under Article 136 (Special Leave Petition) under Article 32 linking issues with the violation of Article 21 (Right to Life).
- The composition of the tribunal is not multidisciplinary and it consists of persons only from the Judiciary.
- The absence of authoritative water data that is acceptable to all parties currently makes it difficult to even set up a baseline for adjudication.
- The shift in tribunal’s approach, from deliberative to adversarial, aids extended litigation and politicisation of water-sharing disputes.
- The growing nexus between water and politics have transformed the disputes into turfs of vote bank politics. This politicisation has also led to increasing defiance by states, extended litigations and subversion of resolution mechanisms. For example, the Punjab government played a truant in the case of the Ravi-Beas tribunal.
- Too much discretion at too many stages of the process. This is partly because of procedural complexities involving multiple stakeholders across governments and agencies. It can be easily related to India’s complicated federal polity and its colonial legacy.
Inter-state River Water Dispute (Amendment) Bill, 2017 : key elements
All these are the lacunas in the water dispute tribunal so to overcome such issues and to further streamline the adjudication of the said disputes, the Inter-state River Water Dispute (Amendment) Bill, 2017 was passed in Lok Sabha by amending the existing Act of 1956. Some of the key elements of the Act include;
- Constituting a standalone Tribunal with the permanent establishment as there was a need to obviate a separate Tribunal for each water dispute which was observed as time-consuming.
- To establish a Dispute Resolution Committee which has to resolve disputes amicably within the maximum period provided, i.e. one year and 6 months. If not settled by negotiations, then it shall be referred to Tribunals for its adjudication.
- The decision of the bench of the tribunal will be final and binding on the parties involved.
- It calls for a transparent data collection system at the national level for each river basin and a single agency to maintain a data bank and information system.
- After two years in 2019, again a bill namely, The Inter-State River Water Disputes (Amendment) Bill, 2019 was introduced in Lok Sabha on July 25, 2019, but only passed by Lok Sabha on July 31, 2019, with amending provisions relating to waters of inter-state rivers and river valleys.
- Under the Act, a State Government may request the Central Government to refer an inter-state river dispute to a Tribunal for adjudication. If the Central Government is of the opinion that the dispute cannot be settled through negotiations, it is required to set up a Water Dispute Tribunal. This brought up some changes in it. Some are as follows;
- It seeks to set up a Water Disputes Tribunal for adjudication of the dispute, within a year of receiving such a complaint.
- There will be a ‘Dispute Resolution Committee’ (DRC) which will comprise of a Chairman and experts with at least 15 years of experience in relevant sectors, nominated by the central government and one member from each state (of Joint Secretary Level) who is a party to dispute, nominated by the concerned state government.
- It seeks to resolve the dispute within one year (extendable by 6 months) and submit its report to the Central Government If a dispute cannot be settled by DRC, the Central Government will refer it to the Tribunal within three months from receipt of the report from DRC.
- It provides for the Composition of the Tribunal-Chairperson, Vice-Chairperson, Three Judicial members and three experts. They will be appointed by the Central Government on the recommendation of the Selection Committee. Also, the Central Government may appoint two experts serving in the Central Water Engineering Service as assessors (must not belong from the state who is a party to the dispute) to advise the Bench in its proceedings.
- Under the Bill, the proposed Tribunal must give its decision on the dispute within two years, which may be extended by another year. (Under Act- 3 yrs, extended by 2 yrs).
- For further considerations- Under the Act, if the matter is again referred to the Tribunal by a state then the Tribunal must submit its report to the central government within a period of one year. This period can be extended by the central government. The Bill amends this to specify that such extension may be up to a maximum of six months.
- The decision of the Tribunal: Under the Act, the decision of the Tribunal must be published by the central government in the official gazette. This decision has the same force as that of an order of the Supreme Court. The Bill removes the requirement of such publication. It adds that the decision of the Bench of the Tribunal will be final and binding on the parties involved in the dispute. The Act provided that the central government may make a scheme to give effect to the decision of the Tribunal. The Bill is making it mandatory for the central government to make such a scheme.
- Data bank: Under the Act, the central government maintains a data bank and information system at the national level for each river basin. The Bill provides that the central government will appoint or authorise an agency to maintain such a data bank.
Every such legislation or amendment would be a welcome step, but it must be useful to overcome the water disputes.
Conclusion and suggestions
“When some people go hungry, it is not food which is short in supply, it is justice”. Scarcity of resources, conflicting and overlapping interests render disputes inevitable. Through the course of this paper, the author analyses the issues surrounding the controversial Krishna water dispute, the constitutional and statutory provisions are available to the Centre and state in case of inter-state water disputes, the working of various authorities set up so far, the lacunae in the present law, and also outlines the suggested alternatives to the tribunal mechanism.
To resolve the Krishna water dispute the First Tribunal was set up in 1969 which gave an award in 1956 which was again reviewed in May 2000. After 16 yrs a second tribunal was set up in April 2004 which gave its award on 31st December 2010. But still, the award is not accepted by Andhra Pradesh. One of the reasons is its reorganization as Andhra Pradesh and Telangana. On this point the Tribunal is of the view that Telangana will get its share from the share of Andhra Pradesh as Section 89 of the Reorganisation Act, 2014 does not apply to all four riparian states therefore there will be no- reallocation of shares among all four and must be done among Andhra Pradesh and Telangana. It can be said that the Krishna water dispute requires a good legal framework to be resolved as there was a great delay by the Tribunals to solve the disputes between the three riparian states. It highlights the principle which says- “Justice delayed is justice denied”.
It has been found that the problems relating to conflict resolution are compounded by the lack of clear legal and institutional mechanisms available at the national level. The failure stems from a lack of recognition of the political and emotional nature of the dispute, which cannot be solved from a purely legal perspective. The water disputes can be solved or balanced only by having a permanent tribunal established with appellate jurisdiction of the Supreme Court established over the tribunal’s decision. The immediate target of any Constitutional Government should be amendment to Article 262 and amendment to Inter-State Water Disputes Act and its implementation at the equal note because it is time that we all should rethink our strategy about water management, not just within states, but at the national level keeping the water scenario in next 30 years.
Secondly, the channels of communication need to be improved desperately, in order to gain a consensus. History has shown us that negotiation and mediation produce better results than adjudication, where the parties do not feel like their interests have been safeguarded. The mechanism must improve in a manner that the body created by the Centre must adequately represent the states to protect their interests.
Water is both a state and central subject, although upon reading Article 262, we understand that the framers of our constitution clearly intended for Parliamentary supremacy, this restraint in the nature of functions must be maintained to balance Centre-state relations optimally, and the Centre should only enhance its supervisory and adjudicatory role. Although the Parliament has passed the Inter-state Water Disputes Act 1956, and the River Boards Act, 1956, the former is beset with complications and the latter has been entirely ignored. Later on in 2017 and in 2019 two amendment bills were recommended but it is still pending before the Parliament (not passed) which clearly shows the lacuna in the legislative process. It may be cured by the Judiciary by providing guidelines until there is an enactment of law or Act passed to deal with the said disputes (for the time being). Such a guideline may bind the Parliament to work on it or to pass an Act recommended and to have a check on its implementation. This is totally dependent upon the good Centre-State relations. The rights and duties can be determined only if the Act is passed which is the need of an hour as we are well aware of the delays in awards of Tribunals. Thus, the Tribunal and also the three pillars of the Constitution viz. Legislative, Executive and Judiciary play a great role in resolving the water disputes.
Thirdly, the paper calls for a substantive law to be passed on the working of resolution of inter-state disputes. This paper also recommends that the power to punish for contempt be given to the tribunals, whose decisions are not being implemented. The Supreme Court too needs to be more cautious of Article 262(2) which is an exception to Article 131 to restrain itself and discourage States from challenging tribunal awards to create delay.
- Press Trust of India, Government wants to reduce the number of tribunals in the country, The Economic Times, Mar. 22, 2015.
- Ministry of Water Resources, Report of the Committee to study the Activities that are required for optimal development of a river basin and change required in existing River Boards Act, 1956 for the achievement of the same, 2012, http://wrmin.nic.in/writereaddata/Doabia-Committee-Report-2012.pdf
- Press Trust of India, Krishna River Board Meeting inconclusive, Deccan Herald, Oct. 29, 2014
- V. Balakrishna, Krishna River Board Meeting today, New Indian Express, Dec. 16, 2015
- International Law Association, The Helsinki Rules on the Uses of Waters of International Rivers, (1966)
- D. Rao, Inter-State Water Disputes in India, 81, (1988)
- Krishna Water Dispute Tribunal, Report of Krishna Water Dispute Tribunal, Clause 3, (1973)
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