Mains Marathon

Approach

• Introduce Constitutional position of Inter-state dispute.
• Explain the constitutional and legal provisions regarding this and also mention the issue regarding the interstate water dispute and possible way forward.
• Conclude suitably.

Answer

Part 11 of the Constitution of India talks about the Relations Between the Union and The States. It has inscribed all the constitutional provisions regarding interstate and union-state relations and adequate provisions for their resolution. This part also authorised parliament and president to take adequate steps for the resolution of interstate disputes.

Constitutional provisions for the resolution of inter-state water disputes:

• Entry 17 of the State List deals with water, i.e., water supply, irrigation, canal, drainage, embankments, water storage and water power.
• Entry 56 of Union List 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.
• According to Article 262, in case of disputes relating to waters:
  • 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.
  • 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 as mentioned above.
• Article 131: The original jurisdiction of the Supreme court.
  • As a federal court, the Supreme Court has the right to settle the disputes between the different units of the Indian Federation such as:
    • Between the Centre and one or more states and,
    • Between the states
      • But states can’t use article 131 for resolution of interstate water disputes, if parliament has curtailed the jurisdiction of the Supreme Court in this matter.

Legal provisions regarding resolution of inter-state water disputes:

As per Article 262, the Parliament has enacted the following:

• River Board Act, 1956: This empowered the GOI to establish Boards for Interstate Rivers and river valleys in consultation with State Governments. To date, no river board has been created.
• 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.
  • Note: Supreme Court shall not question the Award or formula given by tribunal but it can question the working of the tribunal.

Issue with interstate water dispute:

• Protracted proceedings and extreme delays in dispute resolution.
  • Delays are on account of no time limit for adjudication by a Tribunal, no upper age limit for the Chairman or the Members, work getting stalled due to occurrence of any vacancy and no time limit for publishing the report of the Tribunal.
  • For example, in the case of the 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.
• Opacity in the institutional framework and guidelines that define these proceedings; and ensuring compliance.
• The composition of the tribunal is not multidisciplinary and it consists of persons only from the judiciary.
• The absence of authoritative water data that is acceptable to all parties currently makes it difficult to even set up a baseline for adjudication.
• The shift in tribunals' approach, from deliberative to adversarial, aids extended litigation and politicisation of water-sharing disputes.
• The growing nexus between water and politics has transformed the disputes into turfs of vote bank politics.
  • This politicisation has also led to increasing defiance by states, extended litigations and subversion of resolution mechanisms.
  • For example, Cauvery water disputes become an issue of Kannadigas vs Tamilian.
• Too much discretion at too many stages of the process.
• Procedural complexities and multiple stakeholders' involvement: Surface water is controlled by Central Water Commission (CWC) and ground water by Central Ground Water Board of India (CGWB). Both bodies work independently and there is no common forum for common discussion with state governments on water management.
• India’s complicated federal polity and its colonial legacy.

Measures can be taken:

• Bring Inter-state water disputes under interstate council constructed by president under article 263 and need for consensus-based decision making.
• States must be motivated (on line of power efficiency) for water use efficiency in every domain and water harvesting and water recharging to reduce the demand on river water and in situ water source.
• Intensive Afforestation in the river basin is required for long term water security.
• Need of a single water management agency for both ground and surface water on scientific basis and also for technical advice on union, river basin, state and district level for water conservation and water management.
• Tribunals must be fast track, technical and also have a verdict enforceable mechanism in a time bound manner.
• A central depository of water data is necessary for informed decision making.

India has just 4% of the world's fresh water — but 16% of the global population. It shows the scarcity of water in India. Its judicial use and scientific management in sine-qua-non in today’s challenging situations. For this all the stakeholders including citizens of the state have a prominent role regarding justifiable use of water.