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ANALYSIS OF INTER-STATE RIVER WATER DISPUTES IN INDIA AND ITS MAJOR CAUSES
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ANALYSIS
OF INTER-STATE RIVER WATER DISPUTES IN INDIA AND ITS MAJOR CAUSES
AUTHORED BY- SUDHANSHU GOEL
(ASSISTANT PROFESSOR, H.R. INSTITUTE OF LAW, GHAZIABAD)
ABSTRACT:
Inter-State river water
disputes are persistent and complex issue in India. Recently in December 2022
Supreme Court of India gives 3 months deadline to the Central Government for
constitution of Pennaiyar River Water Dispute Tribunal to resolve dispute
between Tamil Nadu and Karnataka for the distribution of water of Pennaiyar
River but this deadline has also been elapsed and no decision was taken in this
respect. Besides it India has a long history of various inter-State river water
disputes since Independence which could never been resolved completely till
today. These inter-states dispute not only resulted into bloodshed many times but
also a threat for federal structure of India. So this article provides a comprehensive
analysis of Inter-state river water disputes in India, exploring their historical
context, legal frameworks and investigates the reasons responsible for giving
birth to this problem continuously.
keywords: inter-state water
dispute, water wars, article 262 of Constitution of India, right to water.
“Anyone
who can solve the problems of water will be worthy of two Nobel prizes – one
for peace and one for science.” – John F. Kennedy, 35th President of
U.S.A.[i]
*INTRODUCTION-
River water is an
important component for human development from the beginning of various civilizations
till today. Human utilizes water for various purposes such as consumption,
agricultural and irrigation, hydropower projects, industrial use and
transportation etc. Rivers are one of the main sources of water criss-cross the
frontiers of number of nations and states without considering their size,
nature and ideology. With over half of the world’s population living in 250
river basins shared by several nations. So the flow of rivers has been diverted
by the human beings time to time against nature to fulfil their certain confined
interest and thus human uses its potential as a weapon.
*MEANING OF INTER-STATE RIVER WATER DISPUTES-
Through the ancient time, human
nature is always experimental with his life as well as water utilisation for
different purposes. One of the purposes that sustained till today is use of
water for agricultural purposes as per different geographical conditions. This
experimental nature of human with nature’s gift for their own purposes has not
only worked in its favour but also against him. Water came to be seen as a
weapon for those who seek to stalk the natural resources without realising the reality
of getting its reduction quantitatively as well as qualitatively. Consequently,
conflicts have emerged among various groups for more utilisation of water.
These conflicts are called as Water Wars.[ii]
And when these water wars arises among various nations or various states of a
county then it is called interstate river water disputes.
Thus water Dispute is a term
describing a conflict between countries, states and group over the right to
access water resources.[iii] The United
Nation also
recognises that water dispute arises from opposing public and private interests
of individuals and groups. Thus, a diverse variety of water conflicts have
arisen throughout history and a contributing factor in disputes are territorial
disputes, a struggle for resources, and strategic advantage etc.
*RIVERS: NATIONAL ASSET FOR INDIA-
The Supreme Court in many judgements
held that the right to life provided under article 21 of Constitution also
includes rights to clean water. Apart from it the court has also defined water
as a ‘national asset’ in various verdicts. The following are important verdicts
given by the courts –
In 1990, the Kerala High Court held
that government should not extract groundwater which adversely affects the
sources in future as it is also deemed as violation of the Article 21. The
right to life is much more than animal existence. Apart from expanding the
context of the right to life, the court directed the state government to cleaning
up of water resources including rivers even tanks and wells.
In M.C.
Mehta v. Union of India[iv],
and Hinch Lal Tiwari v. Kamala Devi[v] the court applied the ‘precautionary principle’ to
prevent the pollution of drinking water resources. Various judicial
pronouncements have recognized that water is a community resource which should
be held by the state as a public trust in such manner so that the maximum
number of population can be served.
In 2002, the Supreme Court upheld the
validity of Sardar Sarovar dam project on Narmada and declares water is the
basic need for the human survival and also part of right to life as provide
under Article 21 of the Constitution and that can only be served by providing
water in remote areas.[vi]
With a view to conserve the river Ganga and Yamuna, the Uttrakhand
High Court in Mohd. Salim v. State of Uttrakhand & Others[vii]
in its March 20, 2017 judgement attributes the status of legal persons to both
rivers. After this judgement Madhya Pradesh government also declared river
‘Narmada’ as a living person in the same year.
In State of Karnataka by Its Chief
Secretary Vs State of Tamil Nadu By Chief Secretary[viii]
the Hon'ble
Supreme Court declared Cauvery River as a national Asset and also held that exclusive
right on river water cannot be claimed by any state. The water of river should
be utilized for the welfare of human being with equitable proportion. Chief
Justice Deepak Mishra wrote in its judgement [while it is common and equal to
all through whose land at river runs and no one can of tract or diverted yet as
one of the beneficial gift of nature each beneficiary has a right to just and
reasonable use of it][ix]
*RAIN FALL IN INDIA
AND ITS IMPACT OVER INDIAN RIVER SYSTEM-
As India is a very large country, it
shows large climate variation. Some areas receive excessive rainfall, while
some suffers from lack of rain. That is why the former generally get flooded,
while the latter suffers from drought. However, on the basis of rain fall,
Indian rivers are being divided into two categories:
(a)
Rivers
of North India
(b)
Rivers
of Central and South India
Most of the rivers of North India such as Indus, Ganga
and Brahmaputra have their source in the glaciers of Himalayas so these rivers
have a continuous water flow throughout the year, although the amount of water
flow changes with the change of season. The rivers of Central and South India
are mainly dependent on the monsoon rainfall for the water flow. As India is an agriculture based economy, thus
the rivers of North India are more suitable for irrigational purposes. As a
result of this the river water disputes mainly arises in the Central and
Southern India. There is an attempt to construct the dam on South and Central
Indian rivers for irrigational purposes so that the water for agricultural and
industrial purposes can be reserved.
*EMERGENCE OF VARIOUS INTER-STATE
RIVER WATER DISPUTE IN INDIA-
India is blessed with many rivers as
there are 20 major Inter-State River Basins. Most of the rivers in India have
inter-State character as they passes through two or more States. Sharing of water
among these riparian States has always been an issue of conflict. Inter-state
river water disputes are on the increase on account of increase in water
demands in various Sectors.
Narmada River
Water Dispute was one of the major water disputes in India. The main issue in
the dispute was the allocation of water from the Narmada River among the states
of Madhya Pradesh, Gujarat, Maharashtra, and Rajasthan. Each state has its own
water requirements for agriculture, industry, and domestic use, leading to
disagreements and conflicts over the distribution of water resources. For its
resolution central government constituted Narmada River Water Dispute Tribunal
in 1968 which took approx. ten years to give its recommendation but still some
issues cannot be resolved completely till today.
Krishna River is the second largest river in the
India. After coming into force of the Constitution of India, the entire Krishna
basin fell within the territory of States of Bombay, Mysore, Hyderabad and
Madras. Thereafter by the States Reorganisation Act, 1956 the new states of
Maharashtra, Karnataka and Andhra Pradesh comes into existence and these states
also became the parties to the dispute. The Krishna Tribunal was constituted in
April 1969 which took five years to forward its report to Government of India.
The Godavari basin comprises in the States of
Maharashtra, Andhra Pradesh, Madhya Pradesh, Orissa and Karnataka. The conflict
arose between the states for equitable apportion of water share. Afterward The
Andhra Pradesh Act, 1953, divides the state into Andhra Pradesh and Orissa. The
States Reorganisation Act, 1956 divides the Bombay into Maharashtra and
Gujarat. Then the States of Maharashtra, Andhra Pradesh, Madhya Pradesh, and
Orissa also join the dispute over sharing of waters of the Godavari basin. The
Godavari Water Disputes Tribunal was constituted in April 1969 and took eleven
year long time to give its final recommendation.
Ravi and Beas belong to the Indus river system which
comprised in the State of Punjab before 1966. After coming in to force of
Punjab Reorganisation Act, 1966 the state of Punjab divided into two separate states
namely Haryana a non-riparian state in one hand and Punjab a riparian state on
the other hand. The State of Haryana claimed 4.8 MAF water out of 7.2 MAF but
Punjab denied claim of Haryana and asserted that it was not a riparian State.
But as per Section 78 of the Punjab Reorganisation Act, 1966, the Union
Government, allocated equal amount of water to both states and 0.2 MAF water is
reserved for Delhi. The Sutlej Yamuna Link (SYL) was also proposed by central
government so that Haryana can fully utilise its allocated water share. But till
today this project cannot be completed as Punjab shows its disinterest in SYL
project. This dispute cannot be resolved after multiple negotiation session so
Central Government constituted Ravi-Bias River Water Dispute Tribunal in 1986
but till now this issue cannot be resolved.
*CONSTITUTIONAL PROVISIONS DEALING
WITH INTER-STATE RIVER WATER DISPUTES -
Article 246 of the Constitution
provides ambit under which the Parliament of India and Legislatures of the
States is entitled to make laws. The responsibility between the Centre and the States
in respects of making laws is divided in three categories –
1) The Union List (List – I)
2) The State List (List –II)
3) The Concurrent List (List –III)
As per the Entry 56 of List –I, parliament has the legislative power to
regulate and develop the interstate rivers and valleys for the purpose of
public interest and according to Entry 17 of List –II, the legislature of
states are empowered to make the laws and policies for the water supplies,
irrigation and canals, drainage and embankments, water storage for citizens
residing in such state. But such power
is subject to Entry 56 of List-I.
One of the most prominent problems in Indian Federalism is the
Inter-State River Water Disputes. In severe situations, the interrelationship
of various Indian states is threatened by these disputes and the Constitution
framers were well aware that water disputes would occur in the future. Thus
Article 262 was incorporated in the constitution. Article 262(1) empowers the
parliament to make laws for the adjudication of disputes in respect of any
inter-state river. Whereas Article 262(2) empowers the parliament to make such
laws which bars the jurisdiction of any court including High Court of Supreme
Court in respect of matters related to inter-state river water disputes.
*ENACTMENT RELATING TO INTER-STATE
RIVER WATER DISPUTES-
In exercise of the power conferred by
article 262 of the Constitution, Parliament enacted two legislations to resolve
the dispute relating to inter-state water rights. These were:-
1)
The Inter-State River
Water Disputes Act, 1956 (ISWD)-
This Act passed under Article 262 of the Indian
Constitution, empowers central government to Adjudicate disputes relating to inter
State river water between two or more states. The provisions contained
in ISWD Act, 1956 are as follow:-
Section 2(c) defines the term “Water Dispute” according to this only such disputes and differences
between two or more states with respect to utilisation of water of inter-state
river or dispute arise by any agreement between disputed states comes with in
the purview of water dispute under section 2(c). Whenever any dispute arises, Section
3 provides the provision to file a complaint by the aggrieved state government
against another state. And such state may also request for constitution of the
Water Dispute Tribunal to the Central Government.
After
receiving complaint, if central government finds that dispute cannot be settled
by alternate methods such as negotiation then it shall constitute Water Disputes Tribunal under Section 4 of the said Act. The
Tribunal is required to investigate the matter referred to it and then
forwarding its report to the Central Government. As per Section 6 of the Act
the Central Government is under obligation to publish the decision of the
Tribunal in the Official Gazette and as decision is published it becomes final
and binding on the parties to the dispute and has to be given effect by them. By
the 2002 Amendment section
6A was added which empowers Central Government to frame a scheme to give effect
to the decision of a Tribunal.
Section 11 of
the said act puts bars the jurisdiction of the Supreme Court or any other Court
in respect of any water dispute which may be referred to a Tribunal under this
Act.
2) The
River Boards Act, 1956-
Under the said legislation, the State Governments at
their discretion may demand the creation of Inter State River Boards from the
central government to assist in developing inter-state rivers and adjudicate issues
arising out of them, and help in preparing schemes for regulation of waterways,
include the control, conservation and optimum use of water resources, in preparation
of promotional schemes for irrigation, drainage, hydro-electric power,
pollution and water supply etc. Moreover, the Statue divides whole river basin into
sub-basins, and each party is entitled to exercise their right over respective
sub-division lying in their particular area. Further, in order to ensure water
allocation in the sub- division the principle of ‘Equal Apportionment’ is
followed on which the proportionate share of the parties are based upon factors
such as investment, area of the basin and total volume of water.
*ROOT AND CAUSES OF INTER-STATE RIVER
WATER DISPUTE IN INDIA-
Although the constitution of India
provides a well-established mechanism for the resolution of Inter-state water
disputes but after analysing various sources of law including statutory provisions,
Judicial decisions and inter-State agreements the major reason behind
inter-state water disputes is that in India, there are no universal legal principles
applicable which determine the equitable share of water of a state whether it
is riparian or non-riparian. Apart from this, there is no law which provides an
order of priority for different uses of water.
It is clear that the formation of new states is the
main factor which gives birth to the water conflicts among the states. The new
states are being formed on the basis of their political, linguist and cultural
situations where as during such creation the geographical situations never have
been taken into account and completely neglected. The division of a state converts
a riparian state into two parts; Riparian state in one hand and into a
non-riparian state in another hand, where the riparian state denies in
providing the water to new formed non riparian state. The issue involved
between Punjab and Haryana is the best example of Inter-state water dispute
produced by state recognition. However in 2014, the formation of new state of
Telangana separated from Andhra Pradesh has given birth to another Inter-state
Water Dispute generated by State recognition.
The term “water dispute” defined under sub-section (c)
of section 2 of the ISRWD Act, 1956 has become outdated. This definition was
relevant in 1956 but in present time the water disputes has included many other
aspects such as hydro-electricity. Which is neither the use nor the
distribution of water but it is a product of water. The division of electricity
produced by Tihiri Dam located on the Ganga is the major issue between the
state of Uttrakhand and Uttar Pradesh since the recognition of Uttrakhand
state.
The most prominent problem faced by interstate water
dispute is that it does not have an effective authority for the implementation
of the order of the tribunal. The tribunal can only give an award but cannot
ensure its implementation. The central government works as enforcing authority.
And tribunal does not have any power to punishment for contempt. The award of
the tribunal although supposed final and binding but can be challenged in court
through review petition. The judicial process is essentially a long process
which causes the delay in adjudicating the dispute example Cauvery water
dispute.
*CONCLUSION-
After completing the study it is concluded that there
is two causes of Inter-State River Water Dispute. One is the formation of new
states without considering its geographical condition and as it results into
lack of water for the agriculture to a new formed state and another is no
proper principles which govern the sharing of water between two or more states.
So to overcome these disputes the new holistic and scientific approach such as
river linking projects, use of grey water for agriculture, introducing new
agriculture technologies, constitute Inter-State Council under Article 263 of
Indian constitution must be adopt. Formation of Single river water dispute tribunal
on place of various separate river water dispute tribunals for different river
water disputes can also be as a solution so that the delay in adjudicating the
matter can be reduced and this federal problem could be resolved effectively.
[i] https://www.azquotes.com/quote/539193?ref=water-resources,
last accessed on 18th June, 2023
[ii] Asha Krishna Kumar, Water Wars: The Problem of Scarcity and
Sharing, Frontline Publication, 9th February,1996, p.114
[iii] The coming wars for Water, Report Syndication, Published on 12th
Oct 2019
[iv] (1998) 5 SCC 611
[v] 2001
(3) A.W.C. 2398 (S.C.)
[vi] Narmada Bachao Andolan
v. Union of India and Others, Writ Petition (C) No. 319 of 1994.
[vii] Writ Petition
(PIL) No.126 of 2014
[viii] Civil Appeal No. 2453 of 2007
[ix]https://www.thehindu.com/news/national/cauvery-a-national-asset-no-exclusiveownership/article22778384.ece, last accessed on 19th June, 2023
Article Information
ANALYSIS OF INTER-STATE RIVER WATER DISPUTES IN INDIA AND ITS MAJOR CAUSES
Authors: SUDHANSHU GOEL
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/20
- Issue 7
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International Journal for Legal Research and Analysis
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