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‘Federalism and Interstate River Water Governance in India’

  • Posted By
    10Pointer
  • Categories
    Polity & Governance
  • Published
    16th Jan, 2021
  • Context

    Interstate (River) Water Disputes (ISWDs) are a continuing challenge to federal water governance in the country. Rooted in constitutional, historico-geographical, and institutional ambiguities, they tend to become prolonged conflicts between the states that share river basins.

    Given the significant nature of such disputes, it is essential to examine the constitutional complexities, contentious political federalism, and identity-based electoral political dynamics that fuel ISWDs. 

  • Background

    • India has 25 major river basins, with most rivers flowing across 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 the inception of the Indian republic, 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. 
  • Analysis

    Fundamental structural ambiguities in the interstate river water governance

    There are three fundamental structural ambiguities that currently affect the system: 

    1. Federal-jurisdictional
    2. Historico-geographical
    3. Institutional
    • Federal-jurisdictional ambiguity: In independent India, legislative powers concerning water were distributed between the Centre and the states to ensure optimum utilisation while balancing the interests of the states.
      • Schedule 7 of the Constitution distinguishes between the use of water within a state and the purpose of regulating interstate waters.
      • The Centre’s role is largely limited to resolving inter-state river water disputes. That, too, a detached one in setting up tribunals for their adjudication.
      • This approach towards the evolution of the legislative and constitutional mechanism regarding ISWDs has resulted in an imprecise distribution of power between the Centre and the states, creating federal-jurisdictional ambiguity.

    Water in the Constitution

    • 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.
      • Entry 17 of State List deals with water i.e. water supply, irrigation, canal, drainage, embankments, water storage and water power.
      • 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.
    • 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
      • between the Centre and the states
    • Article 262 in the constitution which empowers the President to establish Inter-State water Disputes Tribunal being and also states.
      • Under this provision an Inter-State Water Dispute Act, 1956 and River Boards Act, 1956 was created.
    • Historico-geographical ambiguity: After independence, states were carved out and federated to form the Union of India.
      • The changing borders complicate the existing jurisdictional and resource-sharing agreements and eventually become sources of interstate political contestation, leading to historico-geographical ambiguity in interstate river water governance.
      • Perhaps recognising the issues caused by such redrawing of administrative boundaries, the Union government enacted two other important acts in the same year to create a framework for governing and managing interstate rivers: the Interstate (River) Water Disputes Act, 1956 (ISRWDA) and the River Boards Act, 1956.
    • Institutional ambiguity: With regard to the resolution process for ISWDs, the Supreme Court has made limited intervention to adjudicated disputes, including the enforcement of tribunal awards, holding that such disputes can be resolved under Article 131.
      • The wisdom behind this decision is apparent: the courts, as a constitutional forum, command a certain degree of respect and authority due to its power to punish for contempt.
      • The tribunals lack such authority, thus failing to efficiently enforce an award, especially in disputes that get amplified due to political overtones.
      • However, within this framework, the Supreme Court’s role undermines that of the tribunals as adjudicators of ISWDs, despite the latter being established for the implementation of binding awards and their decision granted the same force as an order of the Supreme Court.
      • While Article 262 deters the highest judiciary from adjudicating ISWDs, Article 136 empowers it to hear appeals against the tribunals and ensure the implementation of the tribunal.
      • Thus, the apex court remains the adjudicatory body along with the tribunals, creating an institutional ambiguityregarding which body is the ultimate adjudicatory power on ISWDs in India.

    Principles of water sharing 

    • The tribunals have been using a number of principles while deciding about water sharing between contending states:
      • The Helsinki rules were issued in 1966
      • United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses were finalized in 1997
      • the World Commission on Dams report came in November 2000
      • the Berlin Rules were issued in 2004
  • What escalates water conflicts?

    • The interstate water disputes emerge and recur due to their particular anatomy produced by three sets of characteristics:
      • legal ambiguities
      • antagonistic politics – a making of the nexus of water politics and democratic politics
      • due to their political ecology of asymmetries – deeply embedded as historically and geographically constructed
    • Affected interests: Water disputes arise when the action of one state affects the interests of one or more other states. 
    • Unsustainable use of water: Economic factors like underpricing of irrigation waters, promotion of water-consuming crops through support pricing, etc., often lead to unsustainable use of water during lean seasons thereby escalating conflicts.
    • Increasing demand, pollution and decreasing availability: Water sharing disputes across the country (and even beyond) are only going to escalate with increasing demands, and also with increasing pollution & losses reducing the available water.
      • Climate change is likely to worsen the situation as monsoon patterns change, water demands going up with increasing temperatures, glaciers melt and sea levels rise. 
  • What prevents an integrated basin-level ecosystem-based approach?

    • Shortsightedness in technocracy
    • Fragmented approach to governance
    • Over-reliance on structural engineering (without concern of externalities)
    • The Centre’s lack of initiative

    Water Disputes Tribunals

     Tribunal

    States Concerned

    Date of
    Constitution

    Current Status

    Godavari Water Disputes Tribunal

    Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh, Orissa

    April 1969

    Report and decision given in July 1980.

    Krishna Water
    Disputes Tribunal – I

    Maharashtra,
    Andhra Pradesh, Karnataka,

    April 1969

    Report and decision given in May 1976.

    Narmada Water Disputes Tribunal

    Rajasthan, Madhya Pradesh, Gujarat, Maharashtra

    October 1969

    Report and decision given in December 1979. Narmada Control Authority (NCA) was constituted to implement the decision.

    Ravi & Beas
    Water Tribunal

    Punjab, Haryana, Rajasthan

    April
    1986

    Report and decision given in April
    1987. Further Report is pending.

    Cauvery Water Disputes Tribunal

    Kerala, Karnataka, Tamil Nadu, Puducherry

    June 1990

    Report and Decision given on 5 February 2007. Supreme Court modified the decision on 16 February 2018. The Cauvery Water Management Authority (CWMA) and Cauvery Water Regulation Committee (CWRC) were constituted to implement the modified decision.

    Krishna Water Disputes Tribunal -II

    Karnataka, Andhra Pradesh, Maharashtra, Telangana

    April 2004

    Report and decision given on 30 December 2010. SLPs filed pending in the Court. The term of the Tribunal has been extended after the bifurcation of Andhra Pradesh. The matter is under adjudication in the Tribunal.

    Vansadhara Water Disputes
    Tribunal

    Andhra Pradesh, Odisha

    February 2010

    Report and decision submitted on 13 September 2017. Further Report is pending.

    Mahadayi Water Disputes
    Tribunal

    Goa, Karnataka, Maharashtra

    November 2010

    Report and decision submitted on 14 August 2018. Further Report is pending.

    Mahanadi Water
    Disputes Tribunal

    Chhattisgarh, Odisha

    March 2018

    Under adjudication by the Tribunal. Report and decision are awaited.

  • Why a greater Centre-States coordination is essential?

    • There are a whole set of reasons- why a coordinated response from the Centre and states is vital. These include:
      • emerging concerns of long-term national water security and sustainability
      • the risks of climate change
      • the growing environmental challenges, including river pollution
    • Greater Centre-states coordination is also crucial for pursuing the current national projects.

    Can Supreme Court interfere?

    • Article 262 (1) bars the jurisdiction of the Supreme Court.
    • But matters are still being taken there on legal, jurisdictional, environmental and constitutional issues.

    Required measures

    • 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.

    The failed attempt

    • The idea of building federal consensus for water reforms is not new. The need for such a political process and forum was felt before as well. For instance,
      • The National Water Resources Council has been created under the aegis of the Ministry of Water Resources.
      • The National Development Council is another forum for such federal deliberations.
    • These forums failed to deliver for a variety of reasons. A key reason is their failure to assuage states about their neutrality and objectivity in enabling deliberations; they are perceived as politically subjective and serving the agendas of the particular political regimes in power.
    • It is essential and necessary to have credible avenues for pursuing political solutions supplementing legal and institutional mechanisms.
    • The strategy has to be multi-pronged, and legal approaches have to be supplemented with institutional and political solutions.
  • Conclusion

    In order to resolve the interstate water disputes, the focus should be on the strengthening the esixting and evolving institutional mechanisms, and accommodating political sensitivities to find a long-term and mutually amicable path for the governance of interstate river water.