River Water Disputes in India

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Common Features of the Water Disputes in India
Whatever may be the constitutional scenario applicable to each particular dispute, most disputes seem to have shared the features noted below –
(a) Vagueness regarding the legal doctrine applicable.
(b) Acrimonious tension between the parties.
(c) Overall delay in completion of the adjudication, due to various factors.
(d) Similar other unsatisfactory features.
There is, of course, an occasional silver lining. Some disputes have, for example, been resolved by mutual agreement – even if the parties reached agreement, only after the lapse of a long period.
 
Causes of Inter-state River Water disputes
  • River doesn’t follow political limits
  • Uneven distribution of water resources
  • Increasing Rainfall variability and frequent draughts
  • Increasing demand of river water
  • Regionalization of the national polity
Some provisions in the British Times
 
1. Government of India Act, 1919
When dyarchy was introduced in the Provinces (in British India) under the Government of India Act, 1919, irrigation became a Provincial, but “reserved” subject. Before the Provincial Government could take up any project involving the interests of more than one Province, the prior approval of the Secretary of State had to be obtained
2. Government of India Act, 1935
(a) The Government of India Act, 1935 (Provincial List, Entry 19) placed irrigation within the sole jurisdiction of the Provinces.
(b) However, sections 130 to 133 of the Act of 1935 made detailed provisions as to inter-Provincial, etc., disputes concerning water. The relevant provisions applied to “States” also, i.e., to those Indian States, which may ultimately join the contemplated federation. Any Province or State whose interests were perpetually affected in respect of water supplies from a natural source, owing to the action of another Province or State, could complain to the Governor General.
(c) The Governor General was required to appoint a Commission to investigate and report to him on the matters to which the complaint related (unless, in his opinion, the issues were not of sufficient importance).
(d) After consideration of the report, the Governor General was to give such decision as he deemed proper.
(e) The order of the Governor General was to be binding upon the parties. However, before the Governor General gave his decision, the Governor of any State (or the ruler of a Princely State), affected by the order, could require the Governor General to refer the matter to His Majesty in Council, which could give such decision as it deemed proper.
(f) Jurisdiction of the Federal Court (or any other court) was barred, if action to lodge a complaint had been taken by the Governor of a Province, etc
 
Constitutional Provisions for the Laws applicable to River Water Dispute Settlement
  • Entry 17 in the State list makes water a state subject but qualified by Entry 56 in the Union List, which states: “Regulation and development of interstate rivers valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.
  • Article 262 (1) of the Indian constitution states that Parliament may by law provide for the adjudication of any dispute of complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley.
  • Article 262 (2) of the Indian constitution states that Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute.
  • In short, the whole responsibility of solving water dispute lies with the Parliament.
  • The River Boards Act, 1956 & the Inter State Water Disputes Act, 1956 have been created for such a purpose.
  • The Inter State River Water Disputes Act (IRWDA), 1956 is legislation passed under article 262 of the constitution. Section 3 of this act authorizes states to request the Centre to set up a Tribunal if a water dispute has arisen or is likely to arise. Section 4 empowers the Centre to set up a Tribunal if it is of the opinion that the dispute cannot be settled by negotiation. Section 11 of this act states that Supreme Court has no jurisdiction in respect of a water dispute that has been referred to the Tribunal.
  • The only difference between the Government of India Act, 1935 and the present provisions is that the mandate to set up a Tribunal has been reduced to a discretionary status (i.e. at will & not compulsory).
  • Another important provision in the Constitution is Article 39 (b) which mandates the State to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.
The River Boards Act 1956
(a) The River Boards Act, 1956, provides for the establishment of River Boards, for the regulation and development of inter-State rivers and river valleys. On a request received from a State Government or otherwise, the Central Government may establish a Board for “advising the Government interested” in relation to such matters concerning the regulation or development of an inter-State river or river valley (or any specified part) as may be notified by the Central Government.
(b) Different Boards may be established for different inter-State rivers or river valleys.
(c) The Board is to consist of the Chairman and such other members as the Central Government thinks fit to appoint. They must be persons having special knowledge and experience in irrigation, electrical engineering, flood control, navigation, water conservation, soil conservation, administration or finance.
(d) Functions of the Board are set out in detail in section 13 of the Act. Subject-wise, they are very wide, covering conservation of the water resources of the inter-State river, schemes for irrigation and drainage, development of hydroelectric power, schemes for flood control, promotion of navigation, control of soil& erosion and prevention of pollution. But the functions of the Board are advisory and not adjudicatory.
(e) By section 14(3), the Board is directed to consult all the Governments concerned and to secure their agreement, as far as possible.
Thereafter, by section 15, the Board is empowered to frame schemes, obtain comments of the interested Governments and finalise a scheme. [Section 15(4)] But the schemes do not seem to have a mandatory force. It appears from section 15(5) and section 15(6) of the Act that:
(i) the Board can advise the Governments concerned as to execution of the scheme
(ii) the Central Government can “assist the Governments interested”, in taking such steps as may be necessary, for execution of the scheme
Approaches of Resolution
Sub-basin Division Approach:
The whole river basin is divided into sub-basins and thereafter the concerned parties are allocated with the command of sub-basin lying within their area.
Principle of Equitable apportionment: The proportionate share of states are decided on the basis of their respective property rights, area of drainage, investments, users and total volume of water in the river.


International Law on Settlement of Water Disputes
The International Law commission in its 32nd conference at Helsinki enunciated the four major principles relating to settlement of water disputes. Of these four the Harmon doctrine and the Natural flow theory which conferred absolute rights on the upper and lower riparian (riparian - Of or relating to or located on the banks of a river or stream) respectively, are obsolete. The two relevant theories are:
Equitable Apportionment Theory: This theory envisages the maximum benefit to all riparian states by apportioning water on principles of equity and not equality. Thus, persisting uses by either upper or lower riparian are given due consideration. Doctrine of Prior Appropriation: Article VII of the Helsinki Rules provide that an existing reasonable use may continue in operation unless there are factors which are overwhelmingly against its continuance. Thus, the right to use arises by appropriation and a prior user is given due preference. In effect the prescriptive rights of both riparian’s are protected.
Community of Interest Theory: This theory states that river waters belong to the whole community and must hence be shared equitably to achieve maximum benefit. The underlying premise is that a river is one unit and defies all boundaries.
Other doctrines:
Doctrine rights of Riparian: The doctrine of riparian rights emphasises the recognition of equal rights to the use of water by all owners of land abutting a river, as long as there is no resulting interference with the rights of other riparian owners. The doctrine may not be of much use in the context of inter-State rivers.
Doctrine of prior apportionment: The cardinal rule of the doctrine is, that priority of appropriation gives seniority of rights.

United Nation (UN) and the International Law Commission (ILC)

  • In 1970s, UN commissioned the International Law Commission (ILC), a UN body with legal experts nominated by states, to study international law for transboundary water sharing of international water courses. ILC's work resulted in the UN Convention in 1997.
  • The UN Convention is yet to come into force since it has not received the minimum 35 number of ratifications.
  • The Convention gives due importance to both the principles of 'reasonable and equitable utilization' and 'no significant harm.'
  • Reasons for reluctance of countries to ratify the convention are not difficult to speculate. These may be the following. First, the highly specific nature of stakes involved in transboundary water sharing makes the states wary of generalized codification of principles. Second, asymmetric politics of upper riparian versus lower riparian states are dialectic and dynamic. Disputes emerge, evolve and recur as sequential response to reciprocities not restricted to just water sharing, but also include the spectrum of issues that impact political relations.
  • Article 12.1 Equitable Utilization: Basin States shall in their respective territories manage the waters of an international drainage basin in an equitable and reasonable manner having due regard for the obligation not to cause significant harm to other basin States.
  • Article 16: Avoidance of Transboundary Harm: Basin States, in managing the waters of an international drainage basin, shall refrain from and prevent acts or omissions within their territory that cause significant harm to another basin State having due regard for the right of each basin State to make equitable and reasonable use of the waters.
India and the International Laws
  • Both the doctrine of prior appropriation and equitable apportionment are applicable here. They have been applied in both the Narmada Water Dispute and the Ravi-Beas Dispute
  • The Ravi-Beas Award clearly states that, “…it is now well settled that in deciding water disputes relating to an inter-state river, the rule of equitable apportionment of benefits of a river should be applied.
  • Both awards extensively quote the Helsinki Rules, 1966 which lay down the guidelines for equitable apportionment.
  • Article VII states that past and existing utilization must also be considered to arrive at a solution based on equitable apportionment.
Problems with the Inter-State Water Disputes Act of 1956
  • States have sometimes refused to accept the decisions of the tribunals. Therefore, arbitration is not binding.
  • Significantly, the courts have also been ignored on occasion.
  • Finally, the center has sometimes intervened directly as well, but in the most intractable cases, such as the sharing of the Ravi-Beas waters among Haryana, Jammu and Kashmir, Rajasthan, and Punjab, central intervention, too, has been unsuccessful.
  • In summary, an unambiguous institutional mechanism for settling interstate water disputes does not exist. Nevertheless, water disputes are sometimes settled. Economic analysis is necessary to illuminate whether and how water disputes get resolved in India.
  • The Inter-State Water Disputes Act seems to provide fairly clear procedures for handling disputes. At the same time, however, the law permits considerable discretion, and different disputes have followed diverse paths to settlement, or in a few cases, continued disagreement.
Current Changes
About IWD (Interstate river Water Dispute) resolution
  • Ministry recently announced a plan to create a permanent tribunal for IWD resolution.
  • Reasons to create such a tribunal:- 1) The delays in dispute resolution 2) Tendency of the state to approach the Supreme Court for recurring disputes
  • The IRWDA (Interstate River Water Disputes Act 1956) provides for setting up a one-time ad hoc tribunal for IWD adjudication. The Act endows the tribunal’s decision with the force of a Supreme Court decree.
  • Problems: 1) A permanent tribunal contradicts this intent by providing a permanent space for litigation. The time-frame restrictions may not help much. 2) IWDs are often symptoms of larger interstate relations and have crucial implications for the (re)making of federal democracy. IWD resolution mechanisms should be designed in a changing context of Centre - State and State-State relations.
  • On the other hand, due to the bar on its jurisdiction, the Supreme Court cannot engage with disputes beyond providing effect to tribunal awards. States fail to comply with awards, especially when the monsoon fails or due to political compulsions.
  • In this changing context of IWD politics, relying entirely on legal remedies, like permanent tribunal, has the danger of leading to extended litigations and antagonistic interstate politics.
  • Politicization of IWDs will continue and it is imperative to mitigate the propensity for antagonistic politics between States.
  • For this, legal adjudication needs to be supplemented by right institutional interventions: ex-ante for negotiations and agreements, and ex-post for compliance and implementation.
Loopholes and solutions of River Water Dispute in India
Sr. No. Problems Solutions
1. Property Rights issues Declaration of water as a national property
2. Plethora of actors State government allowed to be the only party
3. Delays Setting up of time frame through laws
4. Enforcement Commission of an enforcement body
5. Political Interferences  Experts & judges be member rather than politicians
 
Some Other Solutions
  • Creation of a quasi-independent hierarchy of institutions. e.g. National Water Dispute Tribunal. Under it there can be Dispute Resolution, Perceptive planning, information gathering, Enforcement and maintenance.
  • Drainage basin oriented planning like Damodar Valley Project or Murray Water Commission (Australia)
  • Defining priorities of water allocation.
Conclusion
  • Any award given by any tribunal must consider the prescriptive rights of any state.
  • To develop the machinery for settlement of inter-state river Water disputes, Section 4 of the Act must be amended setting a time frame for constituting the Tribunal by the Centre.
  • It must be clearly mentioned in Section 11 of the Act, that the jurisdiction of the courts is barred only for matters already referred to the Tribunal, and the Courts have jurisdiction to order constitution of a tribunal.
  • Further, the Tribunal must be made equal to a Court for purpose of enforcing the Award.
  • The Judgment of the Supreme Court in recognizing that Article 262 is not a bar to its jurisdiction under Article 131 pr Article 32 has given a new dimension to river water dispute settlement procedures. Thus, the paramount consideration of farmer’s rights has been suitably recognized.
  • The policy makers must constitute a National Water Board or any such Central Authority by a statute which will have total control over the use, distribution and control of interstate river waters and specific guidelines must be mentioned for the sharing of waters. Such Authority or Board must also be given the power to take penal action against environmental offenders.
  • It must be realized that any use of water must be a planned use, as water is the paramount necessity of a decent life.
Practice Questions
Q1
Q.no:-1/5