Inter state water disputes
This article deals with ‘Inter state water disputes .’ This is part of our series on ‘Polity’ which is important pillar of GS-2 syllabus . For more articles , you can click here
Constitutional Provisions regarding Interstate Water Disputes
Article 262 of Indian Constitution deals with this
- Parliament may provide adjudication of any dispute by law wrt use, control & distribution of waters of Inter-State rivers and river valleys
- Parliament may provide that Supreme Court has no jurisdiction wrt any such dispute or complaint
Status of Water in Constitution
|State List||Entry 17 – Water , that is to say , water supplies, irrigation & canals etc subject to provisions of Entry 56 of List 1|
|Union List||Entry 56 – Regulation and development of Inter State Rivers & River Valleys|
When Water Dispute arises between two states , Article 262 is invoked & in pursuance of Article 262 two Acts were passed by Parliament
1 . River Boards Act,1956
- Establishment of River Boards for regulation & development of Inter State Rivers
- Board to be established on request of State Governments
2. Inter State River Water Disputes Act,1956
- Government of India can setup Tribunal to settle such a dispute when one Riparian State is of opinion that their interests are affected by action or plans of other State
- Within one year of receiving such request
- Such tribunal to have 3 members who should be Judge of Supreme Court /High Court
- Decision of Tribunal would be final and binding. SC or any other court don’t have any jurisdiction in this regard .
Total (now 9) such tribunals established till date. Main are
- Ravi & Beas | Punjab & Haryana | 1986 & still to give award
- Kaveri | Karnataka, Tamil Nadu, Kerala & Pondicherry | 1990-2007
- Mahanadi => latest – formed in 2018 | Odisha & Chhattisgarh
Causes of these Disputes
- Agriculture and water scarcity: riparian states depend on river water for agriculture. These issues intensify during low rainfall seasons . Kaveri , Krishna , Ravi & Beas etc are to share water for agricultural purpose only
- Multipurpose projects and dams: various issues arise among the upstream and downstream states . Eg : Present Mahanadi issue
- River joining: It is usually done to divert river water from sufficient to deficient river basin but many issues arise such as environmental assessment, submergence of surrounding lands etc. Mahadayi/ Mandovi (Goa vs Karnataka) is example of such dispute.
- Unborn states share: such kind of issue arises when some judgement given by a tribunal over the disputed river and after that new state come into being. The Krishna water tribunal is an example where the parties were AP, Maharashtra, Karnataka. But as the new state Telangana has come into being it approached to supreme court for its right to get proper share.
Why Tribunals were chosen ?
Article 262 of the Constitution lays down that the Parliament may by law provide for the adjudication of any dispute with respect to any Inter-State River (ISR). Accordingly, the Parliament enacted the Inter-State River Water Dispute Act, 1956, which provides for the reference of such a dispute to an Water Tribunal. The said Act bars the Supreme Court or any other Court from exercising jurisdiction in respect of any water dispute .
The main reasons for keeping River Disputes out of the purview of the courts’ jurisdiction were (whole of Constituent Assembly agreed that there is need of Tribunals to settle Inter-State River Disputes (but there wasn’t unanimity on Permanent Tribunal or Temporary Tribunals) ) :
- Ensuring the speedy disposal of Inter-State River water disputes – Given that the jurisdiction of the Supreme Court is barred, the Act envisages the decision of tribunal as being final and binding.
- Since resolution of Inter-State River disputes hinges upon heaps of technical and scientific data, the resolution of such disputes by specialized tribunals would allow for better appreciation of such data
- Unlike courts which are required to strictly adhere to procedure and legalities, the proceedings before a tribunal are relatively more informal, thus enabling deliberative and discretionary decision-making for mutually negotiated settlements‘.
In this context , it can be argued that the rationale behind excluding the jurisdiction of courts was fairly well intentioned.
Main Problems with Present System and Remedies
The problem lies elsewhere and have been well documented by many commissions including the Sarkaria Commission. These include:
1 . Long delays & uncertain time frame
- Ravi-Beas case: Matter was referred to the Tribunal in 1986. matter is still before it.
2. Issue of finality
- Arbiter of disputes between the States in the case of water disputes is Tribunal.
- Although courts are barred from interfering but matters are still taken to courts through Special Leave Petitions . Eg : Cauvery Case
3. Enforcement Issues
- Inadequate provisions for the enforcement of the Tribunal’s award;
- Even after award is announced , in time of coalition politics sometimes center don’t publish it in gazette
- States are becoming resistant in compliance to awards
- Politicization of issues which are very dear to common people
Suggestions to improve this
1 . Institutional Changes
- Using Inter-state council in resolving water conflicts.
2. Permanent Tribunal
- Even in Constitutional Assembly Debates, Ambedkar argued for Permanent Tribunal
3. Going towards mediation
- Judicial Process is essentially an adversarial process based on Winner takes all approach .
- In contrast, through mediation, mutually acceptable solution can be obtained .
- Mediation has solved large
number of River Disputes even at International Level
- World Bank played the role of mediator between India and Pakistan in the Indus Treaty
- Vatican in Zambezi river dispute involving eleven countries
4. Declaring rivers National Property
- Establishment of separate corporations on the pattern of the Damodar Valley Corporation may be immensely useful in this direction.
5. Bringing water to concurrent list
- Ashok Chawla committee has suggested the same
Proposed Changes in Inter State River Water Disputes Act
Lok Sabha has cleared the State River Water Inter Disputes (Amendment) Bill, 2019
Following Changes are proposed in Inter State River Water Disputes Act , 1956 to resolve the deficiencies that present mechanism is facing
1 . Single Permanent Tribunal
- Set up a single, Permanent Tribunal to adjudicate all inter-State river water disputes.
- Awards will be notified automatically
- Composition : chairperson and vice-chairperson and not more than six other Members.
- Members from both Judicial (3) and Technical backgrounds (3)
2. Dispute Resolution Committee (DRC)
- DRC will handle disputes prior to tribunal. (1 year)
- Most disputes will get resolved at the DRC’s level itself. But if State is not satisfied, it can approach the tribunal.
3. Data agency
- Agency to collect and maintain updated water data in each of the river basins of the country.
- Data will come handy in resolving the water disputes.
- Case has to be decided within two years, which may be extended by another year.
- Decision of the Tribunal shall be final and binding.
Would setting up single tribunal solve the problem?
- Even in Constituent Assembly debates, setting of Permanent Tribunal to resolve Inter State River Water Disputes was greatly favoured and BR Ambedkar was in favour of Permanent Commission.
- Act favouring Temporary Commission was favoured on the basis of experience that such issues will not come up. This is not the case now and such disputes are rising very frequently
- Data Agency would help in solving matter expeditiously. Latest data will be available whenever it is needed to reach at verdict faster
- DRC will try to solve the dispute without taking to Tribunals making system more robust.
- No Enforcement Mechanism : States can refuse to abide the verdict
- SC can still accept the River Water Disputes via Special Leave Petition.
- Fear of Centralisation– states like Tamil Nadu and Odisha have raised this issue => Instead of Chief Justice of India nominating persons for appointments, it would now be the central government making such appointments
- Committee to select the tribunal judges comprises the prime minister or a nominee as the Chairperson, the Minister of Law and Justice, the Minister of Jal Shakti and the Chief Justice of the Supreme Court. There may be good reasons for this, but the likely consequences do not bode well for effective resolution. States often thrive on politicising disputes.
Issues going on
1 . Mahanadi Issue
- Jan 2017- Odisha government has rejected the Center’s Negotiation Committee on Mahanadi river water dispute with Chhattisgarh and instead demanded constitution of a Tribunal for adjudication.
- March 2018 : Center constituted the Mahanadi Water Dispute Tribunal for adjudication of dispute between Odisha and Chhattisgarh over sharing of Mahanadi river water under the Chairmanship of Supreme Court Judge A M Khanwilkar .
- 858 km long Mahanadi River is almost equally divided between Chhattisgarh (53.9%) and Odisha (45.73%).
- River Mahanadi, with Hirakud dam on it, is lifeline of Odisha state and critical for development of the region
- Dispute is majorly about six water storage structures/ barrages, being constructed by Chhattisgarh government, on Mahanadi River. These barrages might leave insufficient water to the Hirakud dam.
2. Mahadayi Issue
- River Originates in Karnataka as Mahadayi and travel 29 km in Karnataka before entering Goa where it is known as Mandovi
- As most of Goa’s 11 rivers hold salt water; the sweet-water Mandovi is crucial to the state’s water security, ecology, and as an important source of its staple diet of fish.
- Travels 54 Km in Goa before entering Arabian Sea.
- Karnataka is planning to shift water from Mahadayi to water deficit Malprabha River Basin (tributary of Krishna) . For this, they are building dams on two Tributaries of Mahadayi ie Kalasa & Bandura to shift water to Malprabha.
- Goa objected to this because Mandovi is lifeline of Goa as well and these projects will impact Goa’s Interest.
- Tribunal formed in 2010 and award awaited yet.
3. Cauvery Issue
|1913 – 1916||Mysore Government writes to Madras Presidency seeking permission to build reservoir leading to a dispute|
|1924|| Dispute was resolved when Mysore and Madras reached an agreement in which Mysore was allowed to build a dam at Kannambadi village . Agreement was valid for 50 years and led to construction of Krishnaraja Sagar Dam |
Note : Agreement was heavily in favour of Madras Presidency . Mysore was allowed construction of just one dam .
|1960s||Karnataka wanted to make more dams on Cauvery but Tamil Nadu didn’t allow it on the basis of 1924 Agreement|
|1974 (1924 + 50)||Water Sharing Agreement lapsed after 50 years. Karnataka decided to go ahead with making dams. 4 dams were made by Karnataka in quick succession.|
|1986|| Tamil Nadu approached the Center for setting up of a Tribunal for disputes arising out of Cauvery Water Sharing. Since the Center did not create one, Tamilnadu moved the Supreme Court to order the center |
|2 June 1990||Cauvery Water Dispute Tribunal (CWDT) headed by Justice Chittosh Mookerjee setup after Supreme Court’s direction|
Final Verdict has come finally in February 2018 (after 28 years) . Important points of the verdict were
- Supreme Court declared Cauvery a ‘National Asset‘
- According to the SC the principle of equality among riparian States does not imply equal division of water; it suggests just and reasonable use and “drinking water requirement” must be placed on a higher pedestal.
- Judgement concluded that the CWDT didn’t take into account Tamil Nadu‘s stock of an ’empirical’ 20 TMC of ground water. (Dharti hetha paani nu calculations ch nai lea si)
- Warrantable flexibility– The city of Bengaluru had grown over the years thus, registering an ever-enhancing demand for all civic amenities.
- Judgement clarified that Karnataka will now have an enhanced share of 14.75 tmcft water per year while TN will get 404.25 tmcft which will be 14.75 tmcft less than what was allotted by Tribunal in 2007
While giving order, Supreme Court also took into count the enhanced water needs of Bengaluru which is important for nation’s economic growth. (Observation : Even farmers of Karnataka protested against Karnataka Government for not providing them water because Government is prioritising Water needs of Bengaluru over needs of farmers)