Inter-State River Water Disputes

WHY IN NEWS:

• The Centre on 10^th June 2021 extended the tenure of the Mahanadi Water Disputes Tribunal for a period of two years upto March 2023.

BACKGROUND

• India has 25 major river basins, with most rivers flowing across states.
• As river basins are shared resources, a coordinated approach between the states, with adequate involvement of the Centre, is necessary for the preservation, equitable distribution and sustainable utilisation of river water.
• Within India’s federal political structure, inter-state disputes require the involvement of the Union government for a federal solution at two levels: between the states involved, and between the Centre and the states.
• However, interstate rivers in India have become sites of contestations, fuelled by conflicting perceptions of property rights, flawed economic instruments for food security, the lack of an integrated ecosystems approach, and the prevalence of reductionist hydrology for water resource development.
• Such conflicts over the possession and control of river water have persisted since our independence, with prolonged delays in resolution due to historical, institutional and political factors.
• In recent years, increasing water scarcity, a rapid rise in urban and rural demands for freshwater, and contentious political dynamics have further exacerbated the problem

MAJOR INTER-STATE WATER DISPUTES

FACTORS CONTRIBUTING TO SUCH DISPUTES

• Rising water demand amid scarcity:
  • Water is a finite resource and its demand has increased several times in agricultural, industrial and domestic sector than what is available at present as the country is growing and lifestyle is changing such as increased urbanization.
• Asymmetrical access to river waters among riparian states:
  • When a river flows across a boundary between states, the upstream state is usually at an advantage in comparison to downstream states with its ability to appropriate water first.
  • The relations between the upstream-downstream states are further compounded by histories of colonial rule and the post-independence reorganization of state boundaries.
  • For instance, British presidencies were predisposed to have had advanced irrigation development compared to the princely states.
• Conflictual federalism:
  • Despite the fact that 'interstate water' has been explicitly mentioned in the Union List, there is no such direct acknowledgement in the State List.
  • This allows the states to delineate the "user rights" over waters in ways deemed best by them.
• Adhoc policy approach:
  • Since Independence, policy ecosystem surrounding inter-state river water governance has been driven by exigency-driven contingent responses instead of a proactive approach towards basin-level governance and ignores the idea of continuous interstate cooperation.
• Territorialized approaches of states:
  • In the initial years of single-party dominance, the negligence in definitively carving out the Centre's role has led to the states assuming unfettered and exclusive powers over water governance and contributed to the entrenchment of territorialized perceptions and competitive approaches of states towards water resource development.
  • The initial single-party dominance has given way to coalitional politics, while leaving greater room for sub-regionalism and territorialized assertions of states.
• Fragmented and reductionist approach
  • The water governance architecture in India is based on a fragmented piecemeal approach, rather than integrated basin approach that takes a holistic view of the land-water-food nexus.
  • Non acknowledgement of broader linkages of the society, and ecosystem processes and services associated with flow regimes such as hydropower generation, groundwater extraction etc can lead to disputes.
  • For instance, construction of hydropower projects often disrupts river connectivity, and leads to water disputes between riparian states.

EXISTING FRAMEWORK TO DEAL WITH SUCH DISPUTES

• Constitutional Provisions:
  • Entry 17 of State List
    • It deals with water i.e. water supply, irrigation, canal, drainage, embankments, water storage and water power.
  • Entry 56 of Union List
    • It empowers 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 Constitution
    • It deals with adjudication of disputes relating to waters of inter-state rivers or river valleys
    • It empowers Parliament to make law to provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of any inter-state river or river valley
    • It also allows Parliament to bar the Supreme Court any other court from exercising jurisdiction in respect of any such dispute or complaint.
    • Under it, two such laws have been enacted. These are:
    • River Boards Act 1956
      • It provides for the establishment of river boards by the Central government for the regulation and development of inter-state river and river valleys.
      • A River Board is established on the request of state governments concerned to advise them.
    • Inter State Water Disputes Act 1956:
      • It empowers the Central government to set up an ad hoc tribunal for the adjudication of a dispute between two or more states in relation to the waters of an inter-state river or river valley.
      • The decision of the tribunal is final and binding on the parties to the dispute.

CHALLENGES

• Issues with existing framework:
  • Constitutional - legal ambiguity:
    • The distribution of power between the Centre and the states with respect to water under the Seventh Schedule of the Constitution is imprecise, creating federal-jurisdictional ambiguity.
  • Historical - geographical ambiguity:
    • The boundaries of Indian states have continued to evolve based on cultural and political factors, with little regard for the historical and ecological dynamics of these regions.
    • The changing borders complicate the existing jurisdictional and resource-sharing agreements and eventually become sources of interstate political contestation.
  • Institutional ambiguity:
    • While Article 262 deters the highest judiciary from adjudicating Inter-State Water Disputes, Article 136 empowers it to hear appeals against the tribunals and ensures the implementation of the tribunal.
    • Thus, the apex court remains the adjudicatory body along with the tribunals, creating an institutional ambiguity regarding which body is the ultimate adjudicatory power on Inter State Water Disputes in India.
• Issues with Interstate Water Dispute Tribunals
  • Extreme delays in dispute resolution.
    • For example, in the case of Godavari water dispute, the request was made in 1962, but the tribunal was constituted in 1968 and the award was given in 1979 which was published in the Gazette in 1980.
    • The Cauvery Water Disputes Tribunal, constituted in 1990, gave its final award in 2007.
  • Issues with composition:
    • The composition of the tribunal is not multidisciplinary and it consists of persons only from the judiciary.
  • Data gap:
    • The absence of authoritative water data that is acceptable to all parties currently makes it difficult to even set up a baseline for adjudication.
  • Lack of implementation of tribunal awards
    • There exists an institutional vacuum for implementing tribunal awards.
• Increasing resistance of states
  • There is an issue of resistance from states against any attempt by the Centre to assert its role under the Entry 56, over interstate river water governance.
  • Central institutions like Central Water Commission (CWC) and Central Ground Water Board (CGWB) are perceived to be increasingly irrelevant by states.
• Inefficiencies of the River Boards Act
  • National Commission for Review of Working of the Constitution (NCRWC) observed that the River Boards Act has remained a dead letter
  • The river boards created so far, such as the Upper Yamuna River Board and the Brahmaputra Board, have been done through alternative and ad-hoc channels.
• Political cost of obtaining consensus is huge:
  • At the state level, river water is politically perceived as part of the larger issue of "regional sharing of resources," which is linked with the ethnic and cultural identity of the state and its people.
  • Any possibility of water sharing is seen as a compromise or infringement on the regional autonomy of a state and its interests.
  • As a result, the other state involved is often seen as an adversarial "other," with the discourse of regional chauvinism and state pride dominating the political narrative. Thus, the political costs of finding a consensus remain a crucial challenge for the states in reaching a resolution to ISWDs.
• Decisions are often driven by political motivations:
  • Centre does not make efforts towards resolving Inter State water Disputes unless there are immediate electoral benefits

RECENT INITIATIVES

• Inter-State River Water disputes (Amendment) Bill, 2019.
  • It seeks to amend the Inter State River Water Disputes Act, 1956 with a view to streamline the adjudication of inter-state river water disputes and make the present institutional architecture robust.
  • Features of the bill:
    • Disputes Resolution Committee:
      • When a state puts in a request regarding any water dispute, the central government will set up a Disputes Resolution Committee (DRC), to resolve the dispute amicably.
      • The DRC will get a period of one year, extendable by six months, to submit its report to the central government.
    • Tribunal:
      • The Bill proposes to set up an Inter-State River Water Disputes Tribunal, for adjudication of water disputes, if a dispute is not resolved through the DRC.
      • This tribunal can have multiple benches. All existing tribunals will be dissolved and the water disputes pending adjudication before such existing tribunals will be transferred to this newly formed tribunal.
    • Data bank:
      • The Bill provides that the central government will appoint or authorise an agency to maintain a data bank and information system at the national level for each river basin
• Dam Safety Bill, 2019:
  • The Bill provides for proper surveillance, inspection, operation and maintenance of all specified dams in the country to ensure their safe functioning.
  • The Bill provides for constitution of a National Committee on Dam Safety which shall evolve dam safety policies and recommend necessary regulations as may be required for the purpose.
  • It is expected that it could take away the states' autonomy over major irrigation dams in their territories since the Centre has proposed a new authority for dam safety
• River Basin Management Bill, 2019
  • It is an attempt to shift towards Integrated River Basin Management
  • This proposed law relates to management of all 13 river basins in the country by setting up exclusive authority  and making separate master plan for each of them.
  • The authorities will be set up for river basins of Ganga, Indus, Godavari, Mahanadi, Mahi, Narmada, Pennar, Cauvery, Krishna, Tapi, Subarnrekha, Brahmani-Baitarini and Brahamaputra- Barak-inter-state rivers of north-east.

WAY FORWARD

• Adoption of appropriate international doctrines such as:
  • Doctrine of Riparian Rights:
    • It emphasizes the recognition of equal rights to the use of water by all owners of land abutting a river, as long as there is no resulting interference with the rights of other riparian owners.
  • Doctrine of equitable apportionment:
    • It states that inter-state water disputes should be settled on the basis of equality of rights.
    • Determination of equal rights encompasses socio-economic needs of the states, beneficial use of water etc.
    • This doctrine has widely been used in India. For instance, in judgements of the Indus Commission, Krishna Water Disputes Tribunal and Narmada Water Disputes Tribunal.
  • Theory of equitable utilization of Inter-state waters:
    • It states that each basin state should be entitled to a reasonable and equitable share in the beneficial uses of water of a river basin. The Helsinki Rules of 1966 are based on this principle.
  • Campione Rules:
    • They outline the need to include the water of an aquifer (that is, underground water or fossil water) while determining reasonable equitable share.
  • Berlin Rules 2004:
    • Adopted by the International Law Association, they provide that basin states should manage the water of an international drainage basin having due regard for the obligation not to cause significant harm to other basin states
• Develop strong institutional models for interstate coordination, compliance or collaboration:
  • River Basin Authorities, or any other forms of interstate institutional models, need to emerge from and build upon the contours of the respective functional spaces emerging from the federal consensus.
• Interlinking of rivers:
  • It may pave way for solution to these disputes through increasing the water availability in water scarce regions
• Incorporating social justice in dispute resolution:
  • Many people are intrinsically dependent on rivers and other water bodies, and any direct action on the river could impact livelihoods.
  • The River Basin Authority must develop adequate capacity for understanding the unique needs and realities emerging from the interplay of socioeconomic factors.
• Interdisciplinary knowledge for devising appropriate plans to adapt to a changing climate:
  • A shift is necessary in the River Basin Management Plans, from a model that builds upon measurable indicators such as simple time horizons, quantification and aggregation to one that incorporates complexity and the connections between climate change and the water environment.
  • This can be achieved through a supplemented social model of scoping, with stakeholder involvement in the decision-making process for adapting climate change
• De-politicisation of inter-state water disputes:
  • The parties involved must be incentivised to resolve the issue for larger administrative convenience and increased benefits for themselves and their respective constituencies.
  • An example of such a consensus-based model, in which the Centre and the states have found an amicable way to coordinate, is the implementation of the Goods and Services Tax (GST)
• Holistic approach:
  • Ecological restoration and conservation of aquatic biodiversity, in addition to the balancing of water supply and demand for human use in the management objectives and outcomes of the basin plan.

PRACTICE QUESTION:

Q. Examine the existing challenges and gaps in the institutional and political fabric of interstate river water governance within the Indian federal system?