Topic: River Water Disputes in India

Question : Write a short notes on the constitutional provisions for River Water disputes in India?

Answer : The Seventh Schedule to the Constitution contains the legislative powers of federal and state governments. Water is a state subject and is included as entry 17 in list 2 (i.e., subject matters for slate legislation). This entry reads: “Water, that is to say, water supplies, Irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List 1”. The role of federal government is stipulated in entry 56 of List 1: “Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared b Parliament by law to be expedient in the public interest”.

When a “Water dispute” arises between two or more state governments, the following is the procedure to resolve the same:

Article 262 of the constitution empowers the Parliament to make laws for the adjudication of inter-state water disputes. That article also permits the Parliament to exclude such disputes from being referred to the Supreme Court.

The Inter States Water Disputes (ISWD) Act, 1956, was enacted by the Parliament to deal with inter-state water disputes. Government of India can set up a tribunal to settle such a dispute when one or more riparian states of an inter-state is/are of the opinion that their interests are (or are likely to be) affected by actions or plans of other states, they can request the government of India to constitute a tribunal under the Act. Within on year ‘of receiving such a request and when convinced that such dispute cannot be resolved through negotiations, the government of India shall constitute a tribunal to hear the disputes concerning claims of water sharing and adjudicate an award. Such a tribunal should have three members who should be judges of the supreme court or the high court and are appointed by the Chief Justice of India; the government of India can appoint up to two assessors to assist the tribunal; after considering all the aspects as may be necessary, the tribunal gives its report to the government of India; if the riparian states or the government of India need any clarification, they can apply seeking such clarification from the tribunal within 90 days; the tribunal may give further clarifications. Then the report, called award, is published by the government of India in the official gazette. Once it is published, the award is binding on all the. Parties and it is deemed equivalent to an order or decree of the Supreme Court. The act also empowers the central government to make schemes and constitute an authority to implement the tribunal’s award.

So far, five Inter-state water disputes tribunals have been constituted

• Krishna Water Disputes Tribunal (1969- 1976)

• Narmada Water Disputes Tribunal (1969- 1979)

• Godavari Water Disputes Tribunal (1969- 1980)

• Ravi and fleas Waters Tribunal (1986 and report is still to be submitted)

• Cauvery Water Disputes Tribunal (1990-2007).

Changes in the 1956 Act made in 2002 by Parliament

The fo1lowing provisions were introduced through an amendment to the 1956 Act in 2002

• the limit of one year from the date of receipt of a request by government of India to constitution of a tribunal

• the requirement for the tribunal to give its award within three years (with a provision that government of India can extend this by another two years)

• the provision for central government to appoint two assessors to assist the tribunal.

River Boards Act, 1956

In order to promote integrated and optimum development of waters of inter-state river and river valleys, under Entry 56 of List-I of the Constitution (Union List), Parliament enacted the River Boards Act, 1956. The Act contemplated the appointment of river boards by the central government in consultation with the state governments. These boards are expected to promote development of irrigation, drainage, water supply, flood control and hydro-electric power.

Question : Briefly discuss the Cauvery Water dispute.

Answer: The Cauvery Water Disputes Tribunal’s final verdict has granted Tamil Nadu 419 thousand million cubic feet (tmcft) of water out of the 740 tmcft in the river basin, though the actual release from Karnataka to Tamil Nadu will be on1y 192 tmcft annually.

Karnataka, which was allocated 270 tmcft of the water, has decided to file a review petition before the same panel. Kerala is granted 30 tmcft Puducherry, the fourth riparian state (UT) has been granted seven tmcft of water out of the 192 for Tamil Nadu.

The tribunal was constituted in 1990 and had given an interim order allocating 205 tmcft of water to Tamil Nadu in 1991. The final order would supersede the agreements of 1892 and 1924 between the then governments Madras and Mysore.

The tribunal ordered that Karnataka should make monthly deliveries out of the 192 tmcft to Tamil Nadu (luring a normal year at the inter-state point identified as Billigundlu gauge.

The process of water sharing would be overseen by a regulatory authority which shall monitor the working of the schedule with the help of the states concerned and the Central Water Commission for live years. In ease the yield of the Cauvery basin is less in a distress year, the allocated sharps shall be proportionately reduced among the four states. Out of the quantum of 192 tmcft of water, ten tmcft has been allocated for environmental purposes.

Tribunal has gone on the basis of 50 per cent dependability, and determined the availability of water at 740 tmc ft. Fifty per cent dependability means that 740 tmc ft will occur in 50 out of 100 years, or in one out of two years.

Out of the 740 tmc ft, they have allocated 419 tmc ft to Tamil Nadu. The shares for Karnataka, Kerala and Puduchery have been determined as 270 tmc ft, 30 tmc ft and 7 tmc ft respectively. The river must have some water so they have kept 14 tmc ft unallocated, 10 for environmental purposes and 4 for inevitable escapages into the sea.
The Tribunal was set up under the Inter-State Water Disputes Act [ISWD], 1956. That Act had been passed under Article 262 of the Constitution, which specifically empowers Parliament to enact legislation for adjudication purpose.

The award is a judicial decision, which is binding. The original Act of 1956 had said that the award will be final and binding. That was amended in 2002 to say that it will have the force of the order of the Supreme Court. There is no appeal against the award in the Supreme Court. Jurisdiction of the courts, including that of the Supreme Court, is barred under the Act under the express provisions &f the Constitution. Once a dispute is referred to a tribunal set up under the ISWD Act, no court has any jurisdiction. Cases have been going to the Supreme Court on matters other than that of water allocation. Earlier, Tamil Nadu wanted interim relief. So, the question whether the Tribunal had the authority to grant interim relief was decided by the Supreme Court.
In the Narmada case, the Supreme Court did not deal—with the ward of the Tribunal but the environmental and rehabilitation question.
The basin of Cauvery (the Ganga of South) covers the major parts of Karnataka and Tamil Nadu, a small part of Kerala and at its very end Karaikal, a part of the Union Territory of Pondicherry. The main fight, however, has been between Karnataka, where the river originates and Tamil Nadu, through which it passes. The dispute over the sharing of Cauvery water came up in the 19th century- between the Maas Presidency in British India and the princely state of Mysore.

The essence of the Cauvery dispute is that Tamil Nadu is the lower riparian state and is vulnerable on that count. Further, has used Cauvery waters for irrigation extensively. Karnataka on the other hand has the advantage of being the upper riparian state. However, its use of Cauvery waters is of recent rogin but is rapidly making up. The norm is that a state gets waters from the tribunal on the basis of how much it is using- irrigation etc. The more a state is using, the more gets to protect the same. Karnataka loses on this count.

Tamil Nadu farmers took the dispute to the Supreme Court and sought assured irrigation water from Cauvery. The Supreme Court ordered the Central government to establish a tribunal (Mandamus) and the Cauvery Water Tribunal was set up in 1990.

In 1991 the Tribunal passed an interim award pending the final award. It ordered that Karnataka should release annually, an amount of 205 tmc feet Thousand million cubic feet) of Cauvery water to Tamil Nadu, of which 6tmc feet should go to Pondicherry.

As Karnataka questioned the competence of the Tribunal to give an interim award, central government made a reference to the Supreme Court for advice (Art. 143). The Supreme Court upheld the IO and said that it should be notified and is binding on the parties.
The final order was given in 2007.
The Cauvery Water Disputes Tribunal’s final verdict (2007) granted Tamil Nadu 419 thousand million cubic feet (tmcft) of water out of the 740 tmcft in the river basin, though the actual release from Karnataka to Tamil Nadu will be only 192 tmcft annually.
Karnataka, which was allocated 270 tmcft of the water, was not satisfied and filed a review petition before the panel. Kerala is granted 30 tmcft

Puducherry, the fourth riparian state (UT) his has granted seven tmcft of water out of the 192 for Tamil Nadu.
The tribunal ordered that Karnataka should make monthly deliveries out of the 192 tmcft to Tamil Nadu during a normal year at the inter-state point identified as Billigundlu gauge.
The process of water sharing would be overseen by a regulatory authority which shall monitor with the help of the states concerned and the Central Water Commission for five years. In case the yield of the Cauvery basin is less in a distress year, the allocated shares shall be proportionately reduced among the four states.
Out of the quantum of 192 tmcft of water, ten tmcft has been allocated for environmental purposes.
Tribunal has gone on the basis of 50 per cent dependability, and determined the availability of water at 740 tmc ft. Fifty per cent dependability means that 740 tmc ft will occur in 50 out of 100 years, or in one out of two years.
The entire water of the river can not be used. It must have some water. Therefore, 14 tmc ft is unallocated, 10 for environmental purposes and 4 for escapages into the sea.
The award is a judicial order and is binding. The original Act of 1956 was amended in 2002 to say that it will have the force of the order of the Supreme Court. Jurisdiction of the courts, including that of the Supreme Court, is barred under the Art. 262 and 1956 Act. Once a dispute is referred to a tribunal set up under the ISWD Art 1956, courts can not entertain any appeal. However, the apex court can admit appeals to clarify the verdict and to settle matters other than water allocation.
In the Narmada case, the Supreme Court settled issues related to environment and rehabilitation.
The parties to the dispute are given 90 days appeal for review and clarification to the same panel. With the notification of the award in the gazette, the Central government will dissolve the Tribunal. Since the tribunal no longer exists, only the Apex Court can clarify on any issue. Change in the order is not allowed.

Question : Given an account of the Ravi Beas River Waters Dispute.

Ans. Punjab, Haryana and Rajasthan had entered into an agreement in 1981 for allocating surplus water of the Ravi and Beas rivers to Haryana and Rajasthan.
Punjab Act also abrogated the Yamuna Agreement of May 12, 1994 between Punjab, Haryana, Rajasthan, Himachal and Delhi and other accords.
The Punjab assembly in July 2004 unanimously passed a bill terminating all agreements relating to the sharing of waters of the Ravi and Beas rivers with Haryana and Rajasthan. Punjab Termination of Agreements Bill, 2004 was passed at a special session of the assembly.

While Punjab made the Act to save its farmers, the fact also remains that 2 lakh hectares of Haryana land will be damaged and 6 Rajasthan districts may have a drinking water crisis; there is a likelihood of spillover on Delhi.

Riparian States are Punjab and Jammu & Kashmir. Non-riparian States are Haryana, Rajasthan and Delhi.
Indus Waters Treaty was signed between India and Pakistan in 1960, under which water of the Ravi, the Beas and the Sutlej the eastern rivers were granted to India Rut the roots of the inter-State dispute began in 1966, when the Indian state of Punjab was reorganised. The Reorganisation Act says that Haryana has a right on the-river waters of the undivided state of Punjab.
In 1976, the Centre allotted water of the Sutlej, the Ravi and the Beas to Haryana Punjab challenged it in the Supreme Court as also the relevant provisions of the Reorganisation Act.
In 1981, the then Prime Minister, Indira Gandhi, convened a meeting of the Chief Ministers of Punjab, Haryana and Rajasthan and brought through an agreement.
In 1982, construction of the Sutlej-Yamuna Link (SYL) canal began.
In 1985 the then Prime Minister, Rajiv Gandhi, and Sant Harchand Singh Longowal, signed the Punjab Accord that led to the setting up of tribunal headed by a Supreme Court judge.
In 1986, the Union Government set up a tribunal to adjudicate the waters of Ravi and Beas rivers. The Eradi Tribunal in 1987, made allocation of water to the non riparian States, Rajasthan, Haryana, and Delhi along with the riparian Punjab and Jammu and Kashmir.

Punjab sought review of the order by the Tribunal. In 1999, Haryana moved the Supreme Court seeking construction of the SYL canal.

SC (2003) directed Punjab to complete the SYL. canal within one year. Punjab filed a review petition which was rejected. Apex court directed the Union Government to undertake the construction through its agencies.
Following are the issues.

• Punjab has no right to unilaterally terminate all treaties and accords a State Legislature can not nullify a notification issued by the Central Government. The legality of the 1981 agreement brought about by Prime Minister Indira Gandhi can not be questioned as both Punjab and Haryana withdrew their petitions from the Supreme Court after the agreement. The accord between Prime Minister Rajiv Gandhi and Sant U.S. Longowal in 1985 is the basis for the setting up of the Tribunal.

• Punjab has been asserting its ownership of Ravi-Beas waters hut it has only use rights.

• The argument that Rajasthan and Haryana have no riparian rights in relation to the Ravi and the Beas is wrong. Haryana was earlier a part of Punjab, and the State as a whole was a riparian state in relation to the Ravi and the Beas. This is a dispute relating to allocation of river waters made in pursuance of a reorganisation of States. The share that India got of the Indus rivers was based on the case that water was needed for the desert state of Rajasthan. So, Rajasthan has a claim on Ravi and Beas waters.

Sutlej-Yamuna Link (SYL) Canal

It was proposed as a means of enabling Haryana to utilise the allocation of Ravi-Beas waters made to it. The canal remains incomplete. Haryana has been going to court over this. In 2002, the Supreme Court had asked Punjab to construct its portion of the Sutlej-Yamuna Link canal within one year. Later (2003) the apex court had asked the Centre to takeover the construction of the Punjab portion of the canal as the state government showed reluctance to complete the work. It was in order to forestall this that Punjab terminated all past water agreements.

Grievances

Punjab has also been arguing that the availability of water has to be re-assessed; it is less than earlier estimates. Haryana has a sense of grievance at the non completion of the SYL canal. Rajasthan is worried about its allocation not fully materialising Delhi is apprehensive not only about losing its small allocation of 0.2 MAF (million acre feet) from Ravi-Beas, but even more about Haryana withdrawing from the agreement on the Yamuna. The important point is that none of the states requires as much water as they are projecting if they can manage the water better.
Already, irrigation in Punjab and Haryana has over the years resulted in a significant incidence of water-logging and salinity.

Art. 143

When the Termination Act of Punjab Assembly was passed in 2004, the President sought the opinion of the Supreme Court about its legality. The reference seeks the apex court’s advisors’ opinion on whether the Punjab Termination of Agreement Act, 2004 is Constitutional and whether it is compatible with Inter-State Water Disputes Act, 1956, Punjab Reorganisation Act, 1966 and the Notification in 1976.

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