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The Hindu on indiaserver.com : Rights over inter-State rivers

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Friday, July 28, 2000


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Rights over inter-State rivers

By T. R. Andhyarujina

ON JULY 7, 2000, the National Water Resources Council meeting under the Chairmanship of the Prime Minister saw a stout resistance by the States to the formulation of a revised National Water Policy. The States particularly from the South objected to the proposal to set up river basin organisations with statutory powers for development, management and utilisation of waters of a river. The States also objected to the Centre laying down guidelines for the allocation of river water among them. The States were of the view that these measures would be an erosion of their constitutional right to use waters of a river. Bowing to the opposition, the Prime Minister deferred the proposals and referred them to a working group of Ministers to evolve a consensus on both the issues.

For over three decades the States have opposed any formula evolved by the Centre for the sharing of the waters of an inter- State river and an integrated development of a river and the Centre has not been strong enough to overcome their objections. The result has been that India has failed to develop its water resources through integrated river basin development and internecine conflicts over rivers between States have become common. Even disputes settled by awards of inter-State tribunals have now revived.

It is not that the Constitution has no provisions enabling the Union to regulate the development and regulation of inter-State rivers in the public interest. The Constitution gives full control over waters of a river to a State (List II entry 17) but the States' rights are made subject to any law made by Parliament for the regulation and development of inter- State rivers to the extent the control of the Union is declared by Parliament by law to be expedient in the public interest (List I entry 56). This means that in the national interest, Parliament can make a law taking over the regulation, development and management of an inter-State river for the common benefit of the States. This would prevent States from making conflicting claims to development in the sharing of the waters of a river. For example, Parliament could set up a river valley authority, like the Damodar Valley Authority, to decide all such matters for a particular river.

However, even at the height of the Centre's dominance over States from 1950 to 1970 with the Congress Party controlling most of the States, the Centre has not been bold to enact a Central law taking over regulation and development of any major river. In 1956, Parliament passed the River Boards Act by making a requisite declaration that it was necessary that the Centre should take under its control regulation and development of inter-State rivers and river valleys. This is a most useful legislation for solving river development problems among States if it is put into force but it has remained a dead law.

Under the River Boards Act, a river board for a river would carry out schemes of irrigation, drainage, flood abatement over the entire length of an inter-State river and would resolve conflicts between States over regulation and development of a river, for achieving maximum benefits. Under this Act a State would continue to exercise full powers over a river but would be subject to the advice of a river board. Any dispute arising from the advice of the river board would be referred to the arbitration of a person nominated by the Chief Justice of India. A river board is the only institutional approach at present available under law to develop a river without conflict. But the States have strongly resisted the setting up of river boards and from 1962 it would appear that the Centre gave up the idea. In the absence of an integrated valley deelopment authority under a law made by Parliament, States have developed the waters of an inter-State river as they deem fit. Where water of a river are scarce, this has led to bitter disputes. Negotiations at the instance of the Centre have failed to solve such disputes forcing it to appoint Tribunals under the Inter-State Water Disputes Act, 1956, to resolve the disputes. So far Tribunals have been set up for the Krishna, the Godavari, the Narmada, Ravi, Beas and the Cauvery. Despite the fact that under the 1956 Act the decision of the Tribunal is final and binding on the States, disputes have arisen over the implementatin of the awards leading to legal proceedings in the Supreme Court, as in the case of river Krishna.

The Cauvery dispute has been particularly beset with litigation. For years, the Centre delayed setting up a tribunal under political pressure and did so only when it was ordered to by the Supreme Court. The Cauvery Tribunal's authority to make an interim award was itself challenged in the Supreme Court. When an interim award was made in June 1991, ugly protests took place in Karnataka. The interim award was sought to be nullified by Karnataka by State legislation. This led to the President of India making a reference to the Supreme Court on the legality of the Karnataka law. The Supreme Court held that it was bad in law. Implementation of the Cauvery Tribunal's interim orders is now in the hands of the Cauvery River Authority set up in 1998 but its working is far from satisfactory and is dependent on the cooperation of one or the other disputant States.

The Narmada Tribunal's decision on the Sardar Sarovar Dam in Gujarat has been stalled by objections from the Narmada Bachao Andolan and the Supreme Court has had to monitor the height of the dam to keep pace with the relief and rehabilitation of project-affected persons. Madhya Pradesh has now sought to limit the height of the dam and has sought a reference to a new tribunal by the Centre. The Krishna River Tribunal took nine years and the Narmada Tribunal 10 years for their decisions. The Cauvery Tribunal has yet to give its final decision after 10 years. Solutions of inter-State river problems through tribunals have thus proved not only to be tardy but also uncertain and highly contentious.

There is no doubt that river water disputes can be solved by negotiations and agreements between States themselves given goodwill and a national perspective. In the U.S. many river disputes have been resolved by inter-State compacts. But in India political considerations and vote banks dictate decisions of Governments. As long as such considerations prevail, river disputes will never be resolved by agreements. Politicians would rather let courts and tribunals decide such matters than risk their political future by compromises.

The least satisfactory solution has been to refer river disputes to tribunals which only resolve the disputes on ad hoc basis without the benefit of an integrated valley development approach. Even that recourse is proving to be unsatisfactory. The Centre must revive the river boards approach to avoid inter-State disputes. Unless an expeditious and practical solution is found to moderate States' rights over inter-State waters, disputes will not only continue to waste the precious water resources of the nation but may pose a danger to its unity.

(The writer is a former Solicitor General of India.)

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