Abstract
Interstate water disputes are becoming more frequent and intense due to the growing water demand, which is mostly within state jurisdiction, as well as the states’ growing assertion of their political and legal authority. This issue concerns the overlap of two legal areas: water law and federalism defined by the Constitution. Building effective and fair procedures for sharing river flows has long been a crucial legal and constitutional issue because rivers cross state boundaries in India, a federal democracy. A good illustration of cooperative federalism can be found in the Constitution’s clauses about interstate water disputes. In India, state lists are generally responsible for water, except interstate rivers, when the central government may step in. There have been instances where States have refused to accept the decision of tribunals rendering the arbitration not binding, which makes the Indian water dispute settlement mechanisms further ambiguous and opaque. The paper examines the methods and policies used before independence to tackle the problem of interstate river water disputes. The paper highlights a need for quick movement to arbitration or adjudication in case of a conflict. The paper presents some recommendations, including the setting up of an independent federated institution to adjudicate and negotiate between the parties to the dispute within a fixed period.
Keywords: interstate, constitution, federalism, water, democracy
Introduction
India has twenty-five major river basins, most of which cut through its states. River basins are communal or shared resources, hence the fair distribution, conservation, and sustainable use of river water in India depend critically on a cooperative approach between the states and the Center. Water is useful for numerous aspects of well-being, including agriculture (irrigation), health (clean drinking water), and industry (hydroelectric power, for example). Two massive river systems supply India: the “Great Himalayan Drainage System” and the “Peninsular River Network.” There are 44 medium rivers in the state, nine of which are interstate, and 14 big interstate rivers. Since India gained independence in 1947, there have been numerous interstate water disputes. According to the Seventh Schedule, which contains a list of entries, the Constitution divides the authority to rule and enact laws between the federal government and the state governments. In compliance with this Schedule, the provincial State or states have the authority to manage the water resource inside their borders.
Interstate water disputes seem to revolve around the following:
- Water distribution throughout several states;
- Sharing benefits and expenses during construction when multiple states collaborate on a project
- Payment to the states that are adversely impacted when a project is implemented by another state
- Resolution of disagreements over how agreements should be interpreted
- Excessive take-out from a state
Constitutional provisions
- Entry 17 of the State List focuses on water-related activities such as irrigation, drainage, storage, supply, canals, embankments, and electricity
- Entry 56 of the Union List empowers the Union Government to develop and regulate “inter-state rivers and river valleys” in ways that benefit the public interest, as stated by Parliament
- According to “Article 262,” If there is a dispute or complaint over the usage, distribution, or control of water in an international river or valley, Parliament can resolve it through legislation. Parliament may prohibit the Supreme Court and other courts from hearing the aforementioned disputes or complaints
Following Article 262, the Parliament authorized the following acts:
- The “River Boards Act, 1956: This gave the federal government the authority to establish boards for interstate rivers and river valleys after consulting with the state governments. However, as of yet, no such board has been created.
- The “Inter-State River Water Disputes Act, 1956: This states that if a state government requests that a tribunal be established, the federal government may do so after attempting to resolve the issue through dialogue or consultation. The Supreme Court may cast doubt on the tribunal’s operations, but it may not contest the formula or decision made by the panel
- In addition, the 1987 National Water Policy addressed how water was distributed among the states. Since water is a state matter, the State government should be principally in charge of taking the initiative and bearing responsibility for the development of interstate rivers and river valleys. However, history has demonstrated that conflicts of interest between various state governments have seriously impeded river valley initiatives in the past. In addition to making appropriate provisions for resolving disputes between State governments and for achieving the best possible outcomes in terms of conservation, control, and optimal use of interstate rivers’ water resources, it is imperative to guarantee that State governments’ rights regarding these rivers and their valleys remain unaffected.
India’s Experience
In India, one of the most important methods for resolving interstate river water issues has been through agreement-based negotiation. There are currently around 130 agreements in place regarding the sharing of interstate river resources or particular projects. Since the majority of India’s river basins are interstate, the Planning Commission, the Ministry of Water Resources, and the Central Water Commission, its technical affiliate, have exercised a very well-established schedule of techno-economic clearance guidelines in approving the interstate projects that the States have planned for implementation under the five-year plans. Despite its length, this process has been institutionalized. This has a flaw in that the clearance is only necessary if the State desires to fund the project through the Central Plan. If money is not a limitation, the State may proceed with the project in any other case. The offended States may then request court action to halt the project.
To understand this better three case studies will be discussed:
- The Krishna-Godavari water dispute
- The Cauvery water dispute
- The Ravi-Beas water dispute
These incidents, which Centre on significant disagreements, effectively highlight the range of directions that disagreements might go in the institutional setting of India.
Research Methodology
In this paper secondary sources have been used as primary research methods. These sources included scholarly journal articles, books, legal commentary, and trustworthy online databases that provide detailed analysis of each interstate water dispute. By examining scholarly works and legal research, we were able to get a thorough understanding of the disputes that arise. This methodology ensured that my study was based on well-established scholarship and provided a fair perspective on the topic of interstate water disputes. By critically interacting with the literature on this topic, we received significant insights into the varied character of the disputes.
Review of Literature
- R. UMA MAHESWARI, 1990 in her book, WHEN GODAVARI COMES: PEOPLE’S HISTORY OF RIVER JOURNEYS IN THE ZONES OF THE DISPOSSESSED – represents the true tale of the underdeveloped classes of flooded villages being forced to relocate due to development imposed by the Polavaram (Indra Sagar) dam as part of the national multifunctional Andhra Pradesh – Telangana project. This book is apart from other works of fiction on development since it takes a fresh approach and engages the reader with the author’s storytelling style. This literary work portrays the ascent and decline of one of India’s most notable social movements, which ultimately reduced to a disjointed opposition to the building of a dam. It also elevates the Godavari from a contentious political Godavari to a geophysical entity.
- M. V. V. RAMANA, 1993 in his book, INTER-STATE RIVER WATER DISPUTES IN INDIA – For the past few years, interstate river water disputes in India have grown more contentious. They have inspired numerous needless acts of bloodshed and have evolved into tools of political unification. An impartial overview of the historical development of interstate river water disputes in India is given in this book. It looks at the legal processes involved in settling disputes over river water and makes recommendations for future resolutions. The most recent study of the Cauvery waters dispute is a significant component of the book.
- PRADEEP DAMODARAN, 2014 in his book, THE MULLAPERIYAR WATER WAR: THE DAM THAT DIVIDED TWO STATES – Constructed in the late 1800s in Kerala following a 999-year lease with the British government, the Mullaperiyar Dam was designed to redirect the Periyar River into the parched regions of Madurai. Today, the 5 engineering miracles have become a conflict between the two states of Kerala and Tamil Nadu, which are concerned about the height of the Tamil Nadu dam and the safety of Kerala. Two states have seen riots and protests as a result of the war.
The Krishna-Godavari Water Dispute
There was no way for talks or consultations between the states of Madhya Pradesh, Karnataka, Maharashtra, Andhra Pradesh, and Odisha to resolve this water dispute. The descending “riparian states” in this scenario on the Krishna River are Andhra Pradesh and Karnataka, while the upward “riparian state” in Maharashtra. The use of untapped surplus water across state lines was the main point of contention. The award was published in 1976 after the “Krishna Tribunal” rendered its decision in 1973.
In determining the true distribution of water, the tribunal relied on the concept of “equitable apportionment.” It addressed the following three main issues:
- The time frame within which current uses should be protected from planned or future uses: The Tribunal concluded that projects that were either operational or under consideration in September 1960 ought to be given priority over planned uses and ought to be safeguarded. The Tribunal also decided that a project started after 1960 shouldn’t have any precedence over intended uses unless the parties have agreed to it.
- Diversion of water to another watershed: The Tribunal found that when Krishna waters were redirected to locations beyond the river basin but inside the riparian states’ political borders, it was lawful to divert them to another waterline. Regarding the redirection of water to non-riparian states, it remained silent.
- Rules administering the advantageous uses of water: The Tribunal stipulated that protection would be provided for all current uses that involve diverting water outside of the basin.
Hearings were held by the Godavari Tribunal in January 1974 after the Krishna case ruling. It made its final decision in 1979, but in the interim, the states carried on with their internal talks and came to agreements on all points of contention. Therefore, all that was needed of the Tribunal was an endorsement of these agreements in its award. There was no quantification of flows or quantitative division of these flows, in contrast to other tribunals. Instead, the states created sub-basins within the area and assigned flows to individual states; this approach was akin to the successful Indus agreement between India and Pakistan. Another distinction was that the agreement was deemed to be permanently valid and was not subject to revision.
The Cauvery Water Dispute
The sharing of waters that are already fully utilized or available forms the basis of the Cauvery water conflict. Tamil Nadu, sometimes known as “the old Madras Presidency,” and Karnataka, often known as “old Mysore,” are the parties involved in this issue. At the ministerial level, there were “26 meetings” between 1968 and 1990, but no agreement was made. The “Inter-State Water Dispute Act, of 1956” created the “Cauvery Water Dispute Tribunal” on June 2, 1990. Tamil Nadu and Karnataka have divergent interests when it comes to what should happen next in the negotiations. Karnataka was eager to prolong the talks and postpone the referral to a tribunal to have more time to complete its upcoming projects. The 1970s and 1980s saw a strong politicization of the Cauvery conflict. Different political parties ran the administrations of the two states, and “active bipartisan politics” in both states made finding a solution very difficult. Ministerial discussions took place regularly, but little effort was made to come up with technological solutions for sharing the Cauvery waters. Skilled engineers were unable to collaborate to find a single answer and instead became embroiled in political parties.
The Ravi-Beas Dispute
The two main disputing parties, Punjab and Haryana, are both agriculturally rich states that supply enormous amounts of grain to the nation as a whole. Because rainfall is unpredictable and infrequent, irrigation is referred to as the cornerstone or focal point of agriculture. Originally, in 1955, an interstate conference convened by the Central Government came to an agreement over the sharing of the Beas and Ravi rivers after partition. Following the reorganization of Punjab in November 1966, when Punjab and Haryana were divided into successor governments of the former Punjab, the current water dispute between Punjab and Haryana over the Ravi-Beas began. The states of Ravi, Beas, Sutlej, and Yamuna are traversed by the four perennial rivers. Irrigated agriculture plays a major role in these states due to their arid terrain. When high-yielding wheat cultivars were introduced and widely used in the late 1960s, irrigation gained significance.
Following Punjab’s concerns against the “1976 agreement” that divided water from Ravi and Beas, further talks—this time including Rajasthan—were held, and in 1981 a new deal was approved. This agreement, which was reached by a “State Government associated with the Central Government,” became the source of ongoing protests by opposition parties and others that are not part of the established political system. Punjab entered a period of intense conflict or strife, and a convoluted series of events resulted in the formation of a tribunal in 1986 to look into the “Ravi-Beas dispute.” The Center has not supplied the clarifications that both states requested regarding some aspects of the tribunal’s award. Because of this, the award has not been requested and is not a legally enforceable judgment.
Role of Federal Government in Water Disputes
The federal government came under fire due to the intensity of the interstate water disputes. India has had trouble implementing a comprehensive program because of the country’s uneven water policy. But if we look closely, we can see that it has benefited Indian interests both domestically and abroad. There aren’t any open grievances against the Union. The Indian constitution stipulates that each state is in charge of handling its water-related problems. Nonetheless, the Union government is required by the Constitution to settle interstate disputes involving the usage of interstate rivers’ water resources. To offer technical assistance for significant projects involving irrigation, drinking water, navigation, and power generation, the Union government has set up various departments. At the Central level, there are approximately eleven water-related ministries, agencies, boards, and commissions. Commissions like the Central Groundwater Authority and the Central Water Commission (CWC) have jurisdiction over water-related matters. Additionally, all state governments have comparable state departments, such as those in charge of minor irrigation, drinking water, hydropower projects, and environmental monitoring.
From Conflict to Collaboration
A new strategy for cooperative federalism and interstate water governance is necessary given the situation of interstate river water governance in India today. River basins are the best choice for choosing a unit of government. River basins, which are a better classification than the arbitrary, gerrymandered boundaries drawn by humans on maps, are widely used as a stand-in for ecosystem boundaries. River basins are located at the intersection of hydrology, geography, and ecology. As a result, river basins have been deemed to be fundamentally depoliticized areas, with the use of scientific validation and the inclusion of “nature” as a determining factor that simply takes precedence over all other factors. The Union government put forth the River Basin Management Bill, of 2018 as a proactive move. The Bill is an attempt to move toward integrated river basin management as well as a step away from constitutional impasse and dependency on a contingent reaction driven by exigency, such as dispute resolution. To oversee the “regulation and development of interstate rivers and river basins,” the Bill suggests creating the River Basin Authority (RBA). To manage river basins effectively and efficiently, it makes use of several normative principles, including participation, cooperation, and sustainable resource use; integrated water management; demand management; and conjunctive use of water.
Way Forward
One significant step toward streamlining the dispute settlement process could be the Center’s plan to create an independent, permanent tribunal to settle interstate water issues in India. But this arrangement alone won’t be sufficient to address the various issues—administrative, legal, political, and constitutional—which undermine the system as a whole. As a result, disagreements must be resolved by discussion and debate, and the political benefit must be avoided. In general, what is needed now is a strong, open institutional framework or arrangement with a collaborative mindset.
Suggestions
Water policies and challenges in India need to be depoliticized to view water as a “common good” and welfare commodity. Without involving the interests of all stakeholders, the interstate issues could not be resolved. Regardless of the tribunal’s composition, authority, or speed of decision-making, the ecological system, cultivators, state parties, and bordering states must remain excluded. Conflicts cannot be resolved unless there is both a comprehensive and sincere attempt. India’s problem with water sharing is not regional. External actions are impacted by internal water policy. India cannot join the league of civilized states solely through economic development; nonetheless, national observance and application of international conventions will be beneficial. Adhering to treaties is the best way to resolve disputes.
Conclusion
India is currently moving from a developing to a developed state. Large cities are seeing a concentration of population and access to clean water is becoming a social concern. India does not have a water shortage; rather, the country’s water supply problems are the result of wasteful consumption and rising demand brought on by the country’s quick economic growth. The states’ sense of insecurity increases during the dry season when crops are growing. However, incompetence and poor management stoke the flames. This puts more pressure on state governments, who engage in a race to build water reservoirs to deflect criticism. To create a long-term, mutually agreeable solution for the regulation of interstate river water, the emphasis should be on fortifying the current and developing institutional systems and considering political sensitivities. Investigating the prospect of establishing a National Water Commission free from everyday political constraints is worthwhile. River water resources necessitate coordinated State-State cooperation and sustainable integrated planning beyond centralised technology-driven planning for the larger ecological systems of which rivers are a part.
ISHANVI BISWAL
KIIT SCHOOL OF LAW, BHUBANESWAR