INTER-STATE WATER DISPUTE 

1. whisky is to drink, water is to fight: Mark Twain

Introduction

1. 'New Oil'
2. South Asia is most dependent on water due to agriculture and has least presence of per capita water availability
3. India has water dispute with all neighbouring states
1. Majority of rivers in India are inter-state
4. Special status of river dispute in India
1. Excludes the jurisdiction of SC
5. Water= state subject entry 17
6. In case of inter-state rivers, river valleys, union govt has vast powers in name of public interest (entry 56)
7. Nirvikar Singh: responsibility of continuation of disputes lie with union govt. approach of union govt has led to politicisation

 

Mechanism and Constitutional Provisions related to resolution of Water Disputes in India

1. Art 131
1. Oginal jurisdiction of SC
2. To exclusion of other courts
1. Between GoI and any other state
2. GoI and state on one side and state on other side
3. Two or more states
1. When it doesn't involves any treaty/agreement signed before the commencement of constitution and continues
2. When said that jurisdiction under this art doesn't extend to the said provision
2. Art 262
1. Adjudication of disputes related to inter-state rivers/river-valleys
2. Parliament by law may provide for adjudication of dispute arising out of inter-state river or river valley, water usage, distribution, etc
3. Parliament by law may provide that neither SC nor any other court may exercise jurisdiction under such disputes 
3. Art 263
4. Provision wrt inter-state council when President feels it is for the betterment of people
   powers
   inquiring or advising in respect of dispute between states
   investigating or discussing subjects where more than one states/UTs/union have common interest
   making recommendation and coordination
    
5. Art 136
1. Special Leave to Appeal
2. SC may grant special leave to appeal against decision of any court, tribunal in the country
3. This does not include anything related to court or tribunal constituted by armed forces
6. Extra-constitutional: Zonal councils
7. From perspective of constitutional assembly, they might have preferred art 263: the reason why they were created
1. Never used
8. Zonal Committee: created by State-reorganisation Act 1956
1. Not a single dispute ever-referred
9. Art 131 was used mostly before 1956
1. Inter-state water dispute Act 1956: excludes water disputes form jurisdiction of SC
10. however, SC plays the role or arbitrer under art 136

Role of SC

1. Since states approach SC, tribunal constitution is useless and wastage of public resources
2. SLP is not special, there are 30000 pendency against it in SC
3. Pratap Bhanu Mehta; SC is self-perpetuating institution in India, doesn't leave any opportunity to improve its image or powers
4. Comparison with USA:
1. these disputes are under original jurisdiction but SC compels states to solve the matter on their own
5. Fali S. Nariman: it is better to  restore pre-1956 mechanism

ISWD Act

1. President constituted ISWD 1956
1. Many loopholes plugged once in 2002, still many are left
1. Act lists certain disputes as water disputes, others like height of dam can go directly to SC under art 131
2. In case any dispute arises, state approaches central govt
3. If dispute is not resolved by mediation, tribunal is constituted
4. Amendment in 2002 that tribunal to be constituted within 1 year 
2. Proposed amendment: 
1. First dispute resolution committee is to be formed which will try to resolve the matter within 1 year and can be extended for 6 months at max
2. If not, it has to be moved to permanent tribunal
3. Permanent tribunal
1. In current scenario, govt refers matter to CJI which forms tribunal of 3 members of which 1 has to be judge of SC and other two of any HC/SC
2. Even now, bench of same strength. 
1. Once work is done, either the bench is dissolved or absorbed in other tribunal
4. Tribunal in India are same as court
1. Punchi commission recommended inter-disciplinary tribunal
5. Further reforms proposed
1. limit on the terms of members
2. Tribunal will consist of 
1. Chairman: for the constitution of bench
2. Vice chairman: to act in absence of chairman
3. 6 members
4. No member can serve after age of 70 years or more than 5 years
3. Reward of tribunal
1. Earlier no time frame. eg- Kaveri gave reward in 17 years when TN approached SC
2. 2002: Act amended which made it mandatory to reward in 3 years+ 2 years in exceptional situations
3. Proposed: reward in 2 years, extended to 1 more year
4. Possible loophole
1. 2002 Amendment: if parties want clarification, they can appeal within 3 months
2. No time limit within which tribunal will provide clarification
5. Date
1. Present bill makes award enforceable from the date of award
1. Earlier not clear from what date it is enforceable
6. Implementation of award
1. The Act provides that the award be treated at par with decision of SC and centre has to implement it
2. Neither union govt, nor state govt implement the award
2. River boards Act 1956
1. Pro-active approach to prevent dispute
2. Co-raparian states will go for joint planning, monitoring, implementation 
3. No boards has been created so far

Kaveri River Dispute

1. Agreement between state of Karnataka and Madras ended in 1974, after 50 years
2. Govt of TN approached to centre to create tribunal in 1970 but it was constituted in 1990 after it approached SC
3. After award given, no implementation
4. TN approached SC
1. SC directed MMS govt to constitute authority
2. Authority was created under leadership of PM, even then nothing implemented
5. Present status
1. Intervention of SC, act of judicial activism
2. Till now, SC never interfered in the award of tribunal, for the first time in 2018 feb, it changed the verdict of tribunal
6. Judgement
1. Decreased share of TN in favour of Bengluru
2. Availability of ground water to be taken into account
3. Inter-state rivers are national asset
4. Rejected doctrine of historic rights
5. Give priority to drinking water
6. Directed govt to implement within 6 weeks
7. Union govt brought notification to create Kaveri Management Authority
1. 2-tier body
2. First will be management body
3. Second will be regulating committee which will keep watch at ground level
8. Post award
1. TN asked for interim relief, Karnataka not ready, SC granted since the tribunal was constituted with delay
2. Karnataka said that no implementation till it is notified in gazette
1. Proposed amendment ends requirement of publication

 

Satluj-Yamuna Link Canal

1. 1960, Indus water treaty adversely impacted Punjab
2. 1966, Haryana was carved out and demanded share in water of Sutlej
3. Punjab denied since water doesn't go through Haryana, became issue in Khalistan issue
4. centre involved Rajasthan-Delhi as other parties, proposed to link Yamuna and Sutlej
5. Rajeev-Longwall Agreement 1985
1. Establishment of tribunal which reduced share of Punjab
2. So controversial, award not published in gazette
6. 2004: Punjab assembly terminated all agreements with all states
1. SC turned it unconstitutional
7. 2017: govt Denotified land for link canal and started returning
1. Haryana approached SC
2. It had completed its side of work and advanced loan to Punjab

Other inter-state disputes

1. Territorial: Abohar Fazilka town between Punjab and Haryana
2. Belgaon district between Karnataka, Maharashtra
3. Son of soil issue
4. Developed states vs bimaru states.