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Dr. Ram Manohar Lohiya National Law
University
ARTICLE 262: A IRRECONCILABLE WATER DISPUTES
Submitted By: Vibhor Sinha Submitted To: Dr. Atul Kumar Tiwari & Mrs. Ankita Yadav Roll No. 170101157 Asst.Professor,Constitution Semester: IV ‘B’ RMLNLU, Lucknow
ARTICLE 262: A IRRECONCILABLE WATER DISPUTES
INTRODUCTION
India is a developing nation with fastest economic growth, backbone of this economy is the primary sector, largely agriculture. Experiences in past has shown us the importance of water as a source of living. Diversity in the physical structure of the country demands a proper and effective mechanism of distribution of water resources amongst the states. Rivers crossing
boundaries surpassing every odds in their way of oblivion to sea continues to be a source of dispute amongst two neighbouring states vying for the utilization of water. Pre – independence period has been a testimony to inter-state water disputes in the country. State has been given substantial powers over water resources, due to federal nature of Indian constitution over water issues, leading to inter-state water disputes on a frequent basis. The amicable settlement and resolving of the disputes is of high significance for the sustenance of the Union-State and inter- state relationships. Construction of effective and equitable mechanism for inter-state sharing of water has been a significant constitutional and legal issue in the federal nations. Plethora of actors and the complexity of institutional mechanisms within which the parties reach agreement tends to from substantial chunk of the difficulties. The actors primarily include the professional politicians of the concerned state, the Parliament, central ministries, judiciary and the ad-hoc tribunals formed for the purpose. The propriety over the water has been formed on ‘harmon doctrine’ basis i.e what falls on our roof is ours to use, without regard to potential harm to downstream parties. HISTORICAL BACKGROUND Our Constitution broadly adopts the Government of India, 1935 structure. Even in the Government of India, 1919, no irrigation could have been sanctioned without the prior approval of the Secretary of the State. Where a dispute aroused between the provinces with regard to sharing of water, the matter was deemed to be referred to the Secretary of State whose decision was considered final and binding on both the parties. Partial autonomy was entrusted with the provinces by Item no 7, part 2 of schedule-1 under which irrigation became a reserved provincial subject. However with the advent of the Government of India Act, 1935 entry 19 of 7 th^ schedule entrusted the power with provinces to legislate with regard to water supplies, irrigation and canals, drainage and embankments, water storage and water power. Section 130 to 133 of the said Act provided some restrictions over the free action of water supply in the province. If any province has made a complaint to the Governor General against any other province with regard to interference in its water supplies, a commission shall be appointed and on the basis of report the Governor General could pass the final orders. Such orders made by the Governor General or His Majesty in Council, as the case may be, were binding on the provinces affected thereby unless varied. All these central safeguards ensured that even under the Government of India Acts, 1919 and 1935 no province could take action which would prejudicially affect the interest of another province or its people.
act to a dead letter by not appointing river boards.3 Thus the act had not been effective and one of the major cause for this is that Entry 56 confers a vast and unfettered power on the Union, which, in conjunction with its large resources, enables it to encroach upon an area which is within the jurisdiction of the States.4 River Boards are set up under different legislations only with the object of giving effect to mutual shared agreements e.g. Upper Yamuna River Board, Betwa River Board. River Boards are not entrusted with the authority to monitor the working and functioning of Tribunal awards. INTER-STATE WATER DISPUTE ACT, 1956 Pursuant to the power conferred by the Constitution (article 262), Parliament has enacted the Inter-State Water Disputes Act, 1956. It contains provision similar to the lines of Section 130 and Section 132 of the act of 1935. When distributing subjects according to whether they should be dealt with by the states, the union or concurrently by both, water was placed on the state list. The Act renders meaning to the dispute and provides procedure for the filing of complaints with the Central Government and State Government. The said Act clearly defines the constitution of tribunal, time frame of its constitution, adjudication of water disputes, powers of tribunal , bars of jurisdiction of supreme courts and other courts amongst other things. 6 A State Government which has a water dispute with another State Government may request the Central Government to refer the dispute to a tribunal for adjudication.7 The Central Government, has the power to refer the dispute to the tribunal if it is of the opinion that the same cannot be dealt with amicable negotiations. The act has been amended in 2002 to make sure that the Tribunal shall investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it within a period of three years, provided that if the decision cannot be given for unavoidable reasons, within a period of three years, the Central Government may extend the period for a further period not exceeding two years.
3D.D.Basu, Commentary on the Constitution of India 9113 (8th^ ed., Lexis Nexis). 4Sarkaria Commission Report (1988), Chapter XVII, ¶ 17.4.0. 5Pani N, The Place of The Tribunal In Inter-State Water Dispute, Vol. 2 Issue 1. 6 The Inter-State Water Disputes Act (1956), India Water Portal (March 05, 2009) http:// www.indiawaterportal.org/articles/inter-state-water-disputes-act-1956 (last accessed on Sept 01, 2017). 7Ministry of Law, Government of India, A Background Paper on Article 262 and Inter-State Water Disputes , http://www.lawmin.nic.in/ncrwc/finalreport/v2b3-6.htm (last seen on Sept 1, 2017). 8 4.
According to the act no appeal shall lie against the final order of tribunal in any court but the tribunal is not concerned with the implementation of its decision. Investigation of matters of public importance such as pollution, flood control, sustainability of river basin productivity also forms a substantial part of duty of the tribunals in question. The Government by the virtue of this act has set up many tribunals for the adjudication of issues such as Cauvery Tribunal, Ravi-Beas Tribunal, Godavari Tribunal and Krishna Tribunal. The implementation of its order and the working of the tribunal is always under scrutiny and subjected to criticism for delay in the same. The criticism finds prominence in the fact that the retired judges are deemed to be helm the affairs of the tribunal set up under ISDA with no proper procedure designed to give effect to its functioning. Moreover, the settling of tribunal goes through a many layered process attributing to the cause of delay in the pronouncement of decision on the dispute prevailing. The three layered process of initiating negotiations failing which the Centre can set up a tribunal and the State is empowered vide Section 5(3) of the act to question the same helped in prolonging the issue without reaching any conclusion. There are many instances of flouting and over-ruling tribunal awards. Typical examples are: the Cauvery dispute and Ravi-Beas dispute leading to constitutional crises. In both cases, Supreme Court's intervention followed by Presidential reference settled matters. Disputes tend to recur over non implementation of tribunal awards leading to social and political unrest. Section 6 of the Act renders the decision of the tribunal the same effect as a decree or order of the Hon’ble Supreme Court of India, nevertheless non- compliance of the states is not a rare issue.9 Absence of sanctions against non-compliance of the States contributes to this doggedness. APPLICABILITY OF DOCTRINES Doctrine of Riparian Rights - The term ‘ripa’ means “the bank of stream” or “the bank of river”. Thus, the land is considered riparian only when the river or stream flows through it. The doctrine emphasizes the recognition of equal rights to the use of water by all owners of land adjoining a river, as long as there is no resulting interference with the rights of other riparian owners.10 As far as the applicability of the doctrine in India is concerned the doctrine of riparian
9Section 6(2) - The decision of the Tribunal, after its publication in the Official Gazette by the Central Government under sub-section (1), shall have the same force as an order or decree of the Supreme Court. 10Jain S.N., Alice Jacob and S.C. Jain, Inter-State Water Disputes in India , N.M. Tripathi Pvt. Ltd., Bombay,1971, at p. 151.
1.3. However, equitable sharing, once made, may cease to be equitable, in the face of new circumstances.
- The Krishna Water Disputes Tribunal Report 15 took note of the position, as under: “In India also, the rights of States in an inter-State water dispute are determined by applying the rule of equitable apportionment, each unit getting a fair share of the waters of the common river.” However the Krishna Tribunal also noted that the concept does not advance itself to render precise formulations and its meaning cannot be wrapped up into a code that can be applied universally. (c) The Narmada Water Disputes Tribunal16 did accept the doctrine of equitable apportionment as applicable. In fact, it acknowledged that the diversion of water of an inter-State river outside the river basin was legal and the need for diversion of water to another basin may be a relevant factor on the question of equitable apportionment, in the circumstances of a particular case.
TRIBUNAL STUDIES The nation of India has been witness to much expensive litigation regarding the water disputes. The recent events surrounding the Supreme Court order to release 10000 cusecs of water to Tamil Nadu has stirred a controversy spreading disharmony amongst the people of the neighbouring states of Karnataka and Tamil Nadu. The cases of Narmada tribunal, Ravi-Beas tribunal, Godavari tribunal and Cauvery tribunal has been gone through in detail to showcase the mechanism involving the tribunals set up and the issues of its delay leading to embroilment in controversies. KARNATAKA ISSUE: CAUVERY TRIBUNAL The bone of contention of the issue finds prominence in the fact that the waters are being utilized to its optimal potential. The case holds of much significance because of the involvement of Hon’ble Supreme Court of India which is quite a deviation as the ISWD Act bars the jurisdiction of any court over the decision of any tribunal. Historically, the dispute aroused as a matter of fact owing to the agreements signed by the princely states of Mysore and Madras dating back to 1892 and 1924. It is claimed by the Karnataka Government that owing to the agreement, the state is not entitled to its due share of water and in the wake of such a situation, the state is of the
15The Krishna Water Disputes Tribunal Report (1973) 52, 93. 16The Narmada Water Disputes Tribunal Report (1978) 109-113.
opinion to re-enact the agreement which should be based on “equitable sharing”. Contrary to this, Tamil Nadu government contends that since it had already developed and implemented plans in continuance of the agreement and any change in the agreement pattern will have adverse effects on its folks. The agreement discards the Original jurisdiction of the Supreme Court under Article 131 of the Constitution of the India. However, the question before the court is the implementation of the Tribunal’s Interim Order, and the related issue of compliance with the decisions of the Cauvery River Authority and with the directions of the Supreme Court itself which is entirely within the Supreme Court’s jurisdiction. A series of discussion took place between the two states and central government and finally a report prepared by Cauvery Fact Finding Committee was accepted. Yet again disputes arose regarding expiry of agreement. A request was laid before the government by the state of Tamil Nadu to refer the matter to a tribunal under Inter State River Water Dispute Act 1956. However this request was not acknowledged and thereafter Tamil Nadu approached the Supreme Court with the same issue and also to order to the state of Karnataka not to proceed with its new project, which might cause loss of livelihood. Nevertheless, Karnataka went ahead with the construction of its project. In the year 1990, a tribunal was finally constituted by an order of the Supreme Court. Soon Tribunal passed an interim order in June 1991. Firstly, Karnataka was directed to ensure that 205 TMC feet of water was made available at Metter, from its reservoirs in a twelve-month period from June to May until the final adjustment of the dispute by the Tribunal. Secondly, Karnataka was directed not to increase its area of irrigation from the Cauvery waters beyond 11.2 lakh acres. Two new bodies were set up by the government in the year 1997, namely Cauvery River Authority and Cauvery Monitoring Committee which were vested with the duty to ensure the implementation of the Interim Order. These powers included the power to take over the control of dams in the event of the Interim Order not being honored or complied with. Also, the body comprised of experts and other officers to look into the matter and report to the government. Yet again the mechanism failed and a series of controversy continued for over a long span of time. In 2007, final award was given by the tribunal after holding many discussion and debates for almost 17 years. It was decided that Tamil Nadu will get 419 thousand million cubic ft.(against
17Mr. Naresh Pareek, Cauvery Dispute: An Instance of Judicial Fallacy , Manupatra, http:// www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=de3747ec-c2c9-4d14-a75a- a7df26347aa2&txtsearch=Subject:%20Environment (last seen on sept 1, 2017).
The tribunal also addressed the proportionate sharing of water in surplus and deficit years, construction of the Sardar Sarovar dam, sharing of power benefits from the proposed dam and the sharing of capital, operation and maintenance costs of the dam among the states in proportion to the power benefits allocated to each. The resettlement and rehabilitation of the people living in the dam submergence area was addressed, and required payment by Gujarat (the major beneficiary) to Madhya Pradesh and Maharashtra of all costs incurred in acquiring the land to be submerged. The order also established the Narmada Control Authority for the purpose of securing compliance with the tribunal award (NWDT 1979). Summarizing the Narmada case, the tribunal’s judgment was quite complete, covering water and power allocation, resettlement of displaced populations (though with inadequate compensation) and the distribution of project costs on the basis of benefits received. However, failure of the planners and the tribunal to consider alternatives (tributary dams, conjunctive groundwater– surface water use, and conservation in agriculture) led to high costs and inequitable treatment of the affected populations. Revision of the judgment is not allowed until 45 years have passed. PUNJAB AND HARYANA CONFLICT: RAVI-BEAS TRIBUNAL Punjab and Haryana, the main parties involved in this dispute. Through an inter-state meeting, an initial agreement on the sharing of the waters of the Ravi and Beas after partition of India was reached in 1955. With the reorganization of Punjab in November 1966, Punjab and Haryana were carved out as successor states. Thereafter, the present dispute between Punjab and Haryana about Ravi-Beas water started.20 Accordingly, the tribunal was constituted on 2 April 1986. Finally, it allocated the waters between Punjab and Haryana in the ratio of 1.3:121. The Tribunal gave its report on 30.1.1987, which was forwarded to the States on 20.5.1987. References under Section 5(3) of the ISRWD Act, of Punjab, Haryana and Rajasthan and Central Govt. seeking some explanation/ guidance on the report were forwarded to the Tribunal on 19.8.1987 and are since under their consideration. Hearings of the Tribunal have come to depend on the outcome of a Presidential Reference under article 143 of the Constitution related to constitutionality of the Punjab Termination of
19Bakshi, P.M., A Background Paper on Article 262 and Inter-State Disputes Relating to Water (National Commission for the Review Working of the Constitution), available at http:// lawmin.nic.in/ncrwc/finalreport/v2b3-6.htm, last seen on 18/11/2016. 20Ravi and Beas Water Tribunal, available at : http://nihroorkee.gov.in/rbis/India_information/ Ravi%20and%20Beas%20Water%20Tribunal.htm ( last visited on November 10, 2016). 21 Ibid. 22Ravi And Beas Waters Tribunal, available at : http://wrmin.nic.in/forms/list.aspx?lid=368 (last visited on November 10, 2016).
Agreements Act, 2004 pending before the Hon’ble Supreme Court. The Act terminates all agreements relating to the Ravi Beas waters. The Act provides that all existing and actual utilizations through the existing systems shall remain protected and unaffected. 23 The Punjab government has moved the Supreme Court seeking a direction to the Union government to constitute a tribunal to re-determine and re-allocate waters of Beas and Ravi rivers in view of reduced availability of water in the state. Punjab also sought adjudication of the question whether Haryana and Rajasthan are riparian states. Moving the SC under Article 131 of the Constitution, Punjab sought setting up of a tribunal under Section 4 of the Inter-State River Water Disputes Act, 1956. It wanted the apex court to refer the disputes raised by Punjab in its earlier complaint with the Government of India for adjudication. The Punjab Government on 30 th^ March 2016 questioned Haryana's entitlement to Ravi-Beas waters saying if the latter can receive water under a 1981 Agreement without sharing its boundary with the river, it too must be entitled to receive water from Yamuna on the same condition. This is the latest assertion from the Punjab Government in the ongoing legal battle with Haryana in Supreme Court over a pending water-sharing dispute, filing an affidavit to suggest that the1981 Agreement requires review by a fresh water tribunal. 25 FIVE STATES WATER CONFLICT: GODAVARI TRIBUNAL The Godavari Water Disputes Tribunal (GWDT) headed by Justice Bachawat was constituted by the Government of India in April 1969. While the adjudication proceedings were going on, several Inter-State agreements between the party States viz. Maharashtra, Andhra Pradesh, Orissa, Madhya Pradesh and Karnataka were reached during the year 1975. Subsequently, bilateral and tripartite agreements between the party States with regard to number of irrigation projects were also reached during the year 1978-79. The Tribunal took cognizance of all these agreements and having regard to the requests of the party States included them in the Final Award. The agreements in effect imply a series of Inter-State compacts in the sense that the party States are free to utilize flow of river Godavari or its tributaries up to certain specified points. The agreement also provides for construction of certain Inter-State projects such as Inchampally
23 Ibid. 24Punjab moves SC over river dispute with Haryana, wants tribunal to decide issue, available at : http://indianexpress.com/article/cities/chandigarh/punjab-moves-sc-over-river-dispute-with- haryana-wants-tribunal-to-decide-issue/ (last visited on November 18, 2016). 25Punjab Questions Haryana's Right to Ravi-Beas Waters, available at : http:// www.dailypioneer.com/nation/punjab-questions-haryanas-right-to-ravi-beas-waters.html (Last visited on November 10, 2016)
dated 28th February 2013, a three member Supervisory Committee comprising was constituted. Consequent to the enactment dated 1st March, 2014 of Andhra Pradesh Reorganization Act, 2014 (No. 6 of 2014), the hitherto State of Andhra Pradesh has been bifurcated into two States i.e. State of Telangana and remaining districts as State of Andhra Pradesh. Accordingly, an application for seeking clarification/ direction of Hon’ble Supreme Court with reference to nomination for the Supervisory Committee on Babhali Barrage consequent to enactment of the Andhra Pradesh Reorganization Act, 2014 (No. 6 of 2014) has been filed in the Hon’ble Supreme Court. The matter is yet to be taken up by the Hon’ble Supreme Court. CONCLUSION As far as the present scheme is concerned, inter-State river is a river of national importance. The Central planning, control or management is very crucial and of utmost significance. Some of the basic solutions that can address the issue in a more effective manner includes passing of a specific legislation under Entry 56 by the Parliament bringing that river within the purview of Central action, or the Centre can set up a River Board for the river under the River Boards Act,
- However, the practical reality is that the River Boards Act, 1956 has remained a dead letter, with no board having been set up under it. Further, the Parliament has not yet passed any specific Act under Entry 56 bringing any river within the purview of the Centre. It is submitted that the reason behind this inaction is not legal or constitutional but political: the states are unenthusiastic about River Basin Organizations or about allowing Centre to play a larger role. Thus the Centre must usefully explore the political possibilities of legislation under Entry 56, and of re-activating the River Boards Act. It is important to point out that the disputing parties under the Inter-State Water Disputes Act, 1956 are the state governments concerned and not the people. The Tribunal does leave no scope of hearing the farmers and the other water users in the basin. It seems very desirable that any reform of the present system of resolution of Inter-State water disputes should bring in the people as the interested parties.35 It is submitted that the tribunals under the Inter-State Water Disputes Act, 1956 need not follow court-like procedures. Instead they could adopt a constructive, consultative, participatory, committee-style of
(^33) Ibid. 34 Ibid. 35Sankaran, Kamala, “Water in India: Constitutional Perspectives”, in Iyer, R.R., Water and its Laws in India 17-31 (Sage Publications India Private Limited, New Delhi, 2009), See also D‟Souza, Radha, “Nation vs Peoples: Inter-State Water Disputes in India’s Supreme Court” at p. 58-93.
functioning, something which the negotiated interstate compacts of the US have been able to achieve. While retaining the power of judicial decision at the end, they could also function as conciliation agency. Furthermore, there exists ground for exploring voluntary processes such as mediation, conciliation and voluntary arbitration, often carried out or put to effect by the Prime minister or other member of central government. Another recommendation being advanced is that in place of a complete bar of jurisdiction of the Supreme Court (as provided in Article 262), a partial modification of the bar should be worked out. The Inter-State Water Disputes Act, 1956 should be amended to provide for an appeal to the Supreme Court against the Tribunal’s Order. Such a modification might improve the prospects of compliance to some extent. It is submitted that this suggestion combines the advantages of our system of tribunals with those of the US system of a final decision by the Supreme Court.
BIBLIOGRAPHY -
Sites - Manupatra.com Indiankanoon.com Lawctopus.com Legallyindia.com Scconline.com Shodhganda.com
Books Referred -
36Iyer, R.R., “A Synoptic survey and Thoughts on Change”, in Iyer, R.R., Water and its Laws in India 576-77 (Sage Publications India Private Limited, New Delhi, 2009).
