Water is one of the primary constituents that supports life on Earth. Many civilisation formed and thrived alongside rivers- the primary source of fresh water. Civilisations thrived, cultures propagated, religions preached and folklores were born as lives entwined with rivers. Rivers crisscross India geographically, flowing throughout its length and breadth. Most Indian rivers span multi-states and have been a bone of contention in states that have large agricultural areas to be irrigated.
The Ministry of Water Resources lists 5 ongoing inter-state water disputes and tribunals in its website. While each of these disputes started with its own reason, at the core there are some common reasons. To resolve these disputes, the Inter-State Water Disputes Act, 1956 was legislated in accordance with Article 262 of the Constitution. The Act provides for tribunals to adjudicate on the disputes. However, the success rate of these tribunals is demotivating.
Inter-state river water disputes are one of the most contentious issues in Indian federalism. River water disputes in India have hampered relationship between states and has given leverage to political parties to use the issue to exploit regional sentiments for electoral gain. Mahadayi water dispute (Goa, Karnataka and Maharashtra), the Vansadhara Water Dispute (Odisha and Andhra Pradesh), the Krishna Water Dispute (Maharashtra, Karnataka, Telangana and Andhra Pradesh), Cauvery Water Dispute between (Kerala, Karnataka, Tamil Nadu and Puduchery) and Ravi Beas Tribunal (Punjab, Haryana, Rajasthan and Himachal Pradesh) are the ongoing river disputes as listed by the Ministry of Jal Shakti. While each dispute started with its own reasons, however, at the core common reasons are present because of which they have persisted.
Reasons for River Water Disputes
While each dispute started with the reason of regional interests being impeded, at the core are some common reasons which encompass all disputes. The first and foremost reason for the disputes is the federal structure of the nation. State list Entry 17 of the Schedule VII of the Constitution enumerates water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I which in turn states regulation and development of inter-State rivers and river valleys under the control of the Union declared by Parliament by law. The term ‘interstate water’ is not mentioned anywhere in the State list which allows the states to delineate user rights over water in best way possible which causes inter-state river water conflict or also termed as ‘conflictual federalism’. The Cauvery river water dispute is an example of conflictual federalism. Harmon, History and Hobbes are three principles that delineate property and user rights over water. The Harmon doctrine is based on the thinking that “if water falls on my roof, it is mine”, which is skewed towards the upstream states. History is based on the “prior appropriation” principle which gives the first appropriators the primary rights of the water. The Hobbesian doctrine acknowledges negotiations between the co-riparian.
The Cauvery water dispute has its origin in the early 19th century, when major water developmental initiatives were taken up by the Madras Presidency. The dispute led to two agreements between Mysore and Madras presidency in 1892 and 1924. Tamil Nadu prescribes to 1924 agreement which provided that, Tamil Nadu and Puducherry would be allotted 75 per cent of the Cauvery water, while 23 per cent would be given to Mysore and the remaining would run into Kerala (then Travancore) for the next 50 years. Tamil Nadu’s claim to the user rights tantamount to the historical doctrine. Karnataka, on the other hand maintains that in water deficit period, downstream states cannot claim user rights over water unless the upstream needs are met, which is equivalent to the Harmon doctrine at sub-national level. Here it is clear that the absence of integrated flow regime creates conflict between the riparian states with disparate claims.
The second reason that could be attributed to river water disputes is the minimum support price (MSP) regime which has reduced the country’s food security definition into producing and procuring water-guzzler wheat and paddy. MSP which was introduced in 1970s skewed the cropping pattern in the country. MSP for wheat and paddy increased over the years at a much faster rate than that for coarse grains and pulses. This led cultivating water intensive crops which consumed 10 times more water. This increased the water demand leading to interstate water disputes. While it may be pointed out that irrigation is largely ground-water dependent, however, surface water and ground water are invariably linked. Depletion of one creates pressure on the other.
Thirdly, lack of integrated approach has given rise to conflict between states. Water governance in India ignores the ecological services that are associated with hydrological regimes. Contrary to the integrated approach water governance has been reduced to surplus and deficit in river flows. The same approach has been seen while envisaging the river-inter-linking projects. Social, cultural and ecological processes associated with water are completely ignored which are prone to induce more conflicts.
Constitutional Provisions and Others
Entry 17 in the State list, Entry 56 in the Union list and Article 262 of the Constitution provide the provisions for water in India’s federal polity. Entry in the state list makes water a state subject, but it is to be qualified by Entry 56 of the Union list. And moreover, Article 262 explicitly grants Parliament the right to legislate over the matters in Entry 56 and also the primacy over Supreme Court or any other court. However, the Parliament has not yet made use of Entry 56 of the Union list and has stayed away of such disputes by creating river boards through executive resolution and not legislation, which are just advisory bodies.
In accordance with Article 262, the River Boards Act, 1956 and the Inter-State Water Disputes Act, 1956 were legislated. The River Board Act provides for the establishment of river boards for the development and regulation of inter-state rivers and river valleys. The Central Government can setup a river board after receiving a request from a state government, by notification in the Official Gazette.
The Inter-State Water Disputes Act deals with conflicts and establishment of tribunals to adjudicate on disputes when negotiations have failed. The Inter-State River Water Disputes Act provides for the adjudication of disputes relating to waters of inter-State rivers and river valleys. The Act provides that the Central Government on receiving a request from any state government can setup a water disputes tribunal through a notification in the Official Gazette, if it is of the opinion that the dispute cannot be settled through negotiations. Article 262 bars the Supreme Court’s jurisdiction over interstate river water disputes. Accordingly, the Interstate River Water Disputes Act 1956 bars Supreme Court’s or any other courts’ jurisdiction over interstate river water disputes.
However, the success rates of the tribunals are less than what was expected of them. The tribunals have been plagued with delays. Firstly, there have been delays in formation of the tribunals for example the Godavari and Krishna dispute started around 1956 and requests for reference began from 1962, but the disputes were referred to tribunals in 1969. Similarly, the Cauvery dispute which had asked for reference in the 1970s, got its tribunal in 1990. Secondly, the tribunals have taken long periods to give their awards. This delay has been because of two reasons, one for assembling the facts and second to bring solutions which are congruent at the political level. For example, the Cauvery Tribunal came out with a decision after 17 years in 2007. Thirdly, the delays in notifying the decisions and orders of the tribunals in the Official Gazette. These delays complicate the dispute settlement mechanism of the tribunals.
Delays in reaching a decision and then delivering an order has resulted in increase in costs and beneficial projects can lose investments. The issue of investment related to water becomes more and more important as Indian economy continues to grow and delays will become increasingly damaging. Also, the composition of the tribunals includes only judicial members and there is a dearth of expert members to adjudicate on the issue. Further, there have also been instances when the concerned state governments have rejected the tribunal awards. This has been due to the politicization of the river water disputes.
In 2019, the Inter-State River Water Disputes (Amendment) Bill was introduced in the Lok Sabha. According to the Bill, upon receiving a request with respect to any water dispute, the Central Government will set up a Dispute Resolution Committee (DRC). The Central Government would nominate a chairperson and experts with atleast 15years of experience in the relevant sectors. The concerned states would also nominate one member each to the DRC. The DRC would seek to resolve the dispute through negotiations within a year which is extendable by 6 months and submit its report to the Central Government. If no settlement could be reached, then the dispute would be referred to the Inter-State River Water Disputes Tribunal.
The Amendment provides that the referral to the Inter-State River Water Disputes Tribunal be made within 3 months from the receipt of the report from the DRC. The Amendment empowers the Central Government to set up an Inter-State River Water Disputes Tribunal for adjudication of water disputes. All other existing tribunals would be dissolved, and pending disputes would be transferred to this new Tribunal. The new Tribunal would consist of a chairperson, vice-chairperson, 3 judicial members and 3 expert members appointed by the Central Government. The new Tribunal would also have multiple benches. The Tribunal would award the decision within two years which is extendable by one more year. For reconsidering any matter, the time of extension is maximum 6 months. The amendment also makes the decision of the Tribunal binding on the parties. The amendment adds the provision of a transparent data collection system at the national level for each river basin and single agency to maintain data bank. The Bill is yet to be passed by the Parliament.
Existing River Water Disputes in India
Apart of the 5 listed disputes and their tribunals, the Ministry of Jal Shakti also lists three more ongoing disputes- the Polavaram Dam Project, Bhabali barrage issue in Godavari river and the Mulla Periyar Dam issue. The Polavaram project (Indrasagar Dam) in Andhra Pradesh has led to dispute with Odisha and Chhattisgarh as it would submerge large parts of tribal areas in these states. Further there have been no social and environment impact assessment of the project and the Central Government has declared it as a national project.
The Bhabali barrage is located on the main Godavari river at the Maharashtra- Andhra Pradesh border. The proposed barrage is in violation of the Godavari Water Dispute Tribunal’s award of 1980. The Mulla Periyar Dam dispute exists between Kerala and Tamil Nadu. The dispute here is related to the safety of the 120-year old dam. Tamil Nadu refuses to allow the decommissioning of the dam, which if beaches would be a disaster for Kerala.
Other simmering issues that exist are the Mahanadi water sharing issue between Odisha and Chhattisgarh; Palar river water dispute between Tamil Nadu, Karnataka and Andhra Pradesh; Atapaddi Irrigation Project between Tamil Nadu and Kerala; the Sutlej water sharing issue between Punjab and Haryana; Tapi water sharing between Maharashtra and Gujrat and water sharing issue between Upper Yamuna basin states. The Mahanadi dispute is most likely to go the tribunal way as the Odisha government has already requested the Central Government referring the Inter-State Water Disputes Act.
With increasing pollution and reduction in available water, river water disputes are only going to escalate in future. Situation is going to worsen as climate change affects the monsoon pattern, increase the rate at which glaciers melts and sea levels rise. Further, plans of inter-linking of rivers would just complicate matters. The amendment which provides for a permanent tribunal could be a major step in streamlining the dispute resolution mechanism. However, this alone would not address the 3 major reasons for the recurring river water disputes in India as discussed in the article. To ensure that this tribunal strengthens cooperative federalism, it should be structured in lines of the Finance Commission.