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Discuss The Nature of Inter

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Discuss The Nature of Inter

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Abhishikta Das
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 Discuss the nature of Inter-State water disputes associated with India.

Introduction:
Over 85 percent of Indian territory lies within its major and medium inter-State rivers. India has
14 major rivers, which are all inter-State rivers. India has 44 medium rivers, of which 9 are inter-
State rivers. Because India is a federal democracy, and because rivers cross state boundaries,
constructing efficient and equitable mechanisms for allocating river flows has long been an
important legal and constitutional issue. Numerous inter-state river-water disputes have erupted
since independence.
Inter-state water disputes are a persistent phenomenon in India. Part of the difficulty is the
surplus of actors and the complexity of the institutional environment within which the various
parties reach (or fail to reach) agreement. Actors include state governments (which in turn must
be decomposed into professional politicians, political parties, and interest groups), the national
parliament, central ministries, the courts, and ad hoc water tribunals. These actors
negotiate within a rich institutional setting. Although fairly open constitutional provisions govern
inter-state river waters, it is unclear whether existing mechanisms for adjudicating (giving
judgment) interstate water disputes are efficient. Indeed, there is growing consensus that existing
institutions are not successful in solving the disputed issues. These contribute adversely to
economic growth and national welfare.
In particular, while river basins seem to be the natural unit for dealing with issues of water
sharing, investment and management; they have been the focus of conflict rather than
cooperation in the Indian case.

Water in the Constitution of India:


Water is a State subject as per entry 17 of State List and thus states are empowered to enact
legislation on water.
1. Entry 17 of State List deals with water i.e. water supply, irrigation, canal, drainage,
embankments, water storage and water power.
2. Entry 56 of Union List gives power to the Union Government for the regulation and
development of inter-state rivers and river valleys to the extent declared by Parliament to
be expedient in the public interest.
Article 262 of the Indian 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.
Parliament has enacted two laws according to Article 262:
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.
Note: Till date, no river board as per above Act has been created.
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:
1. Central Government should try to resolve the matter by consultation among the aggrieved
states.
2. In case, if it does not work, then it may constitute the tribunal.
Note: Supreme Court shall not question the Award or formula given by tribunal but it can
question the working of the tribunal.
The composition of the River Water 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.
The Present Mechanism to resolve the inter-state river water disputes in India
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.
Inter-State Water Dispute Act, 1956: Extra Ordinary Delays in the execution and
implementation

 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.
 Due to delay in constituting the tribunal, state governments continued to invest resources
in the construction and modification of dams, thus strengthening their claims.

Solution: Amendments to the Act in 2002

 In 2002, an Amendment was made in the Act by which the tribunal has to be constituted
within a year of getting the request.
 It has also been mandated that the tribunal should give the award within 3 years. In certain
situations, two more years can be given. Thus the maximum time period was 5 years
within which the tribunal should give the award.
 Tribunal award is not immediately implemented. Concerned parties may seek clarification
within 3 months of the award.
 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.

But still, there were issues…

 Though Award is final and beyond the jurisdiction of Courts, either States approach
Supreme Court under Article 136 (Special Leave Petition) or private persons approach
Supreme Court under Article 32 linking issue with the violation of Article 21 (Right to
Life).
 The composition of the tribunal is not multidisciplinary and it consists of persons only
from the judiciary. Thus there is not much difference in tribunal and Supreme Court
Bench.
 Tribunals work gets delayed due to the lack of availability of the data.

New Solution: Inter-State Water Disputes (Amendment) Bill, 2017 – Dispute Resolution
Committee and Single Permanent Tribunal

 The government has introduced this Bill in the present session of the Lok Sabha seeking to
speed up the interstate water dispute resolution.
 The centre 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.

Conclusion:
Interstate water disputes emerge and recur due to three sets of characteristics: first, legal
ambiguities; second, aggressive politics – a making of the nexus of water politics and democratic
politics; and third, due to their political ecology of asymmetries – deeply embedded as
historically and geographically constructed.
The first course of analysis includes the ambiguities and the deep entrenched condition of
interstate water disputes and their resolution against the backdrop of a variety of legal and
constitutional ambiguities. It is, therefore, a line following the axis of law: the legal and
constitutional structuring of the interstate water disputes and their resolution.
Second, the rivalry at work in the disputation and their making – following the course of politics.
The political nature of interstate water disputes, is emerged as part of an acute nexus between
the politics of water struggles and that of democratic politics. Political interests ride on people’s
emotional association with water, appealing to notions of identity, territory and other boundaries
to mobilize vote banks.
The third course is along the axis of ecology, more precisely that of political ecology. It
examines the asymmetries associated with power and equity, embedded deeply in the trans-
boundary relationship of territorial entities bounded by river water sharing context - constituting
shared history, geography, political economy and ecology. This analysis builds on the previous
two axes of analysis, of law and politics. This political ecology analysis is based on the premise
that the ecological and geographical context of the river has implications for the nature of
politics present in the trans-boundary spaces The political ecology analysis provides a
comprehensive view of the inherent dialectics and dynamics of power, ecology and politics in
the (re)making of trans-boundary water conflicts.

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