Water a vital an important resource is getting scarcer than ever before. Indian federalism is facing one of the most contagious issues in regards to Inter-State River water disputes.
As per the 17th entry of the state list, water is a state subject and thus states are empowered to enact legislation on water but as per the 56th entry of the union list, the center has the power of regulation and development of inter-state rivers to be expedient in the public interest.
Therefore, Water is a state subject and union’s role come in case of inter-state river water. Entry 17 under List II of Seventh Schedule provides that “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 I”.
As such, the Central Government is conferred with powers to regulate and develop inter-State rivers under Entry 56 of List I of Seventh Schedule to the extent declared by the Parliament by law to be expedient in the public interest. It also has the power to make laws for the adjudication of any dispute relating to waters of Interstate River or river valley under Article 262 of the Constitution.
Constituent Assembly anticipated the emergence of water disputes in future. A specific provision of Article 262 is mentioned in the constitution itself due to the sensitivity of such disputes.
In the case of disputes relating to waters, Article 262 provides:
- Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
- Notwithstanding anything in this Constitution, Parliament may, by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint.
When the public interest is served, President may also establish an interstate council as per Article 263 to inquire and recommend on the dispute that has arisen between states of India.
Any river water sharing treaty made with other countries, has to be ratified by the Parliament per Article 253 after deciding the share of the Indian riparian states per Article 262 to make the treaty constitutionally valid or enforceable by the judiciary as India follows dualism theory for the implementation of international treaties/laws. Indian government has signed Indus Waters Treaty with Pakistan, Ganga water sharing treaty with Bangladesh, etc. without the ratification by the Parliament and the consent of concerned riparian states per Article 252.
Parliament has enacted two laws to prevent Water Disputes
1) River Board Act, 1956
The purpose of this Act was to enable the Union Government to create Boards for Interstate Rivers and river valleys in consultation with State Governments. The objective of Boards is to advise on the inter-state basin to prepare development scheme and to prevent the emergence of conflicts.
2) Inter-State Water Dispute Act, 1956
Provisions of the Act: In case, if a particular state or states approach to Union Government for the constitution of the tribunal:
Central Government should try to resolve the matter by consultation among the aggrieved states. In case, if it does not work, then it may constitute the tribunal. Supreme Court shall not question the Award or formula given by tribunal but it can question the working of the tribunal. Tribunal is constituted by the Chief Justice of India and it consists of the sitting judge of Supreme Court and the other two judges who can be from Supreme Court or High Court.
Thus, it can be seen that – the resolution of water dispute is governed by the Inter-State Water Disputes Act, 1956. According to its provisions, a state government can approach the Centre to refer the dispute to a tribunal, whose decision is considered final.
IRWD Act is applicable only to interstate rivers / river valleys. An action of one state should affect the interests of one or more other states. An interstate river is a river which flows between two states and connects the two in a from of waterway and acts as a source of water for the both. Any dispute arisen can be divided into two independent parts. They are,
Actions of a downstream state affecting the interest of an upstream state
A downstream state’s action can affect the upstream state only in one case, i.e. when the state is building a dam or a barrage near the state boundary, and as a result of which the territory belonging to the upstream state in getting submerged on permanent or temporary basis. Other than this action, no other action of a downstream state could affect the upstream states interest which they have been using for economical, ecological and spiritual/ religious aspects. The meaning of the word ‘interest’ in this context is concern of losing the prevailing water use or purpose.
Actions of an upstream state affecting the interest of a downstream state
All the action of an upstream state to control or distribute water definitely affects the downstream state in some way or the other. These action affects the interest of a downstream state. Due to the actions of the upstream state there will either be decrease in the quantity of water available for use or there will be a decrease in the quality of the water. Dam Failures in upstream states can create flash floods or further dam failures in downstream states causing unprecedented property damage and loss of human lives. The only way to not affect the interest of these states is by impounding the flood waters and allowing 100% of the base flow of waters and using the impounded waters for hydro electricity generation.
With river water being an important source of irrigation in various states, Inter-State river water disputes have only increased. The Cauvery dispute between Karnataka and Tamil Nadu has once again reached the Supreme Court.
Problems and shortfalls of the Inter-State Water Dispute Act
Many times, there have been extraordinary delays in constituting the tribunal. For example, in the case of Godavari water dispute, the request was made in 1962. The tribunal was constituted in 1968 and the award was given in 1979 which was published in the Gazette in 1980. Similarly, in Cauvery Water Dispute, Tamil Nadu Government requested to constitute the tribunal in 1970. Only after the intervention of Supreme Court, the tribunal was constituted in 1990.
The Solution and more underlying problems
The solution to this was given in an amendment bill in 2002. An amendment was made in the act by which the tribunal has to be constructed in a year of getting the request. It has also been mandated that the tribunal should give the award within 3 years with an addition of 2 years in some cases. And the award given by the tribunal was not to be immediately implemented and concerned parties may seek clarification within 3 months. It has also been clarified that the Tribunal Awards will have the same force as the order or decree of Supreme Court. The award is final and beyond the jurisdiction of Supreme Court.
Despite the 2002 amendment there were still issues. Though the award is final and beyond the jurisdiction of courts, either states approach Supreme Court under Article 136 (special leave petition) or private person can approach the supreme court under article 32 linking with the issue of violation of article 21. The tribunal is basically the supreme court bench as it is not multi-disciplinary as it only contains members from the judiciary.
Giving regards to the following issues the government has introduced a new amendment bill of 2017. The government has introduced this Bill in the present session of the Lok Sabha seeking to speed up the interstate water dispute resolution. The center is to set up Dispute Resolution Committee having experts from the different fields in case of water disputes. The Committee will try to resolve the dispute within 1 year. The tribunal will be approached only when this committee fails to settle the dispute.
According to this Bill, a Single Permanent Tribunal is to be set up which will have multiple benches. The Bill calls for the transparent data collection system at the national level for each river basin and a single agency to maintain data bank and information system.
Problems due to the Water Sharing Disputes
India has 2.4% of the World’s land, 18% of the world population but only 4% of the renewable water resource. If sufficient steps are not taken, the uneven water distribution will increase the possibility of water conflicts.
Inter-state river water disputes hinder the cooperative federalism of our nation. They also provide parochial mindset making regional issues superior to national issues. One should realize that our nation is a family in which all states are its members.
Resolving disputes through political actions should be minimized and more dialogue opportunities should be explored. The issue can be resolved by discussing the dispute in Inter-State Council. Such disputes must be resolved as early as possible to ensure greater cooperation between the states.
 Constitution of India
 http://mowr.gov.in/sites/default/files/A1956-49.pdf, Ministry of Water Resources
 http://mowr.gov.in/sites/default/files/A1956-33.pdf, THE INTER-STATE RIVER WATER DISPUTES ACT, 1956