1. Introduction

Few will dispute that after air, water is the most essential element to life. One can live without food for days but no water means early death. The people of India have given to themselves a Constitution that guarantees the right to life, and based upon this fundamental right, the Water (Prevention and Control of Pollution) Act, 1974, serves to protect water and water sources for people. All potable water is drawn from rivers, lakes or aquifers and the cost involved is only that of extraction since water itself is "free". Water sources are often outside urban areas, and water is pumped to urban areas and purified and distributed through a piping system. Water that was hitherto free of charge is priced in urban areas to pay for the infrastructure that has to be constructed and maintained and operated to collect, convey, treat and distribute water. In rural areas, the cost of water is due to financial investment in the canal network or from consumption of electric power for IP sets.

Most of the major rivers in India are inter-State in character; having catchments/ water sheds in two or more States. Often, water disputes arise amongst the basin States with regard to the use, distribution or control of the waters in respect of many inter-State rivers or river valleys or in the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or in the implementation of any such agreement or in the levy of any water rate in contravention of various prohibitions.

2. Historic Development of Water Rights

Under Ancient Period

Water and Religion:

Water is considered a purifier in most religions. Major faiths that incorporate ritual washing (ablution) include Hinduism, Christianity, Islam, Judaism, and Shinto. Water baptism is a central sacrament of Christianity; it is also a part of the practice of other religions, including Judaism (mikvah) and Sikhism (Amrit Sanskar). In addition, a ritual bath in pure water is performed for the dead in many religions including Judaism and Islam. In Islam, the five daily prayers can be done in most cases after completing washing certain parts of the body using clean water (wudu). In Shinto, water is used in almost all rituals to cleanse a person or an area (e.g., in the ritual of misogi). Water is mentioned in the Bible 442 times in the New International Version and 363 times in the King James Version: 2 Peter 3:5(b) states, "The earth was formed out of water and by water" (NIV).[1]

Some faiths use water especially prepared for religious purposes (holy water in some Christian denominations, Amrit in Sikhism and Hinduism). Many religions also consider particular sources or bodies of water to be sacred or at least auspicious; examples include Lourdes in Roman Catholicism, the Zamzam Well in Islam and the River Ganges (among many others) in Hinduism.

Water is often believed to have spiritual powers. In Celtic mythology, Sulis is the local goddess of thermal springs; in Hinduism, the Ganges is also personified as a goddess, while Saraswati have been referred to as goddess in Vedas. Also water is one of the "panch-tatva"s (basic 5 elements, others including fire, earth, space, air). Alternatively, gods can be patrons of particular springs, rivers, or lakes: for example in Greek and Roman mythology, Peneus was a river god, one of the three thousand Oceanids. In Islam, not only does water give life, but every life is itself made of water: "We made from water every living thing". [2]

The Greek philosopher Empedocles held that water is one of the four classical elements along with fire, earth and air, and was regarded as the ylem, or basic substance of the universe. Water was considered cold and moist. In the theory of the four bodily humors, water was associated with phlegm. Water was also one of the five elements in traditional Chinese philosophy, along with earth, fire, wood, and metal.

Water also plays an important role in literature as a symbol of purification. Examples include the critical importance of a river in As I Lay Dying by William Faulkner and the drowning of Ophelia in Hamlet.

Water as a holy Element Under Vedic Literature:

About Gangajal - Gangajal commands a high value in Indian culture. No ceremony, from birth to death, is complete and perfect without Gangajal According to Maharishi Vedvyas the only way to fight the malefic effects of the Kalyuga, the holy water of Ganga should be used in all the religious ceremonies. If kept in the copper ‘Kalash’ in homes it gives holy vibrations and fights away evil and bad luck. It endows material prosperity and spiritual growth.

Uttarkashi Mineral Corporation at Aungi, Gangotri Valley, Uttarkashi, is the only company duly licensed, approved and authorized company by Uttaranchal Government Departments, to pack the holy Gangajal in its pure form. Ours is an automatic plant to fill the holy water direct from the pious Ganga river with mechanical device at Aungi, in Gangotri Ghati, where touch of hand is totally restricted and outward impurity is strictly disallowed.

The Himalaya at Uttaranchal is known as ‘dev bhoomi’ the abode of gods and goddesses. Ours is the first and the only company that has been licensed by various Uttaranchal Government Departments to collect Gangajalthe holy water so as to make it available to Hindus all over the world giving them their share of deep traditional values that they carry to far off places of the globe.

Facts on Gangajal:

The river Ganga's holy water, Gangajal, flowing from the Himalayas, is sacred for its crystal purity as it carries with it essential mix of multi-minerals and unique herbs. Sealed hermetically, untouched by human hands or other impurities, we try to keep intact all its natural qualitative aspects that improve digestive organism, preserve elements of its sweetness, coolness and high stimulant properties that it is believed to possess that Gangajal has the ability to enhance and retain wisdom and has the capability to cure many ailments.

According to ‘Agni-Purana’, an old treaties on Hindu holy rituals, it is believed that wherever Ganga water reaches, the place becomes sacred and clean from all evils. It is supposed that few drops of Gangajal make everything holy (in Sanskrit “pavitra”). Ganga is the holiest river to all Hindus. It is a long old belief that Gangajal has the elements of holiest "upachar"(healing elements) and is immensely used in all Hindu ‘pujas’ (‘poojas’ - worship to gods and goddess). For effective and rewarding 'puja' Gangajal is essentially required. Keeping this everlasting religious belief in mind that people, who are far away from the river Ganga, who are thus made to perform their ceremonials without Gangajal as the holy water is not easily available to them, we have put our efforts to make them the holy water effortlessly accessible so that they are not deprived of the sacred water and are able to smoothly perform the rituals according to their beliefs and wishes so as to be blessed wholeheartedly.

Ganga has a long theological history too as also is coupled with aspects of science. Ganga water, Gangajal, has certain chemical qualities. Many scientific tests on its chemical contents have been carried out which have proved authentically that Gangajal is enriched with many extraordinary healing properties. Indian environmentalists have also confirmed that Gangajal has super self-cleaning properties. It has clearly been observed that owing to its self cleaning properties this water does not deteriorate or loose its dignified values even if it is kept in closed vessels for years. Scientific observations have also revealed that the soil deposited by its waters on the banks is mingled with fertile and medicinal characteristics.

Ayurvedic and Naturopathic Application: It is in general use by masses for cure of several ailments that provide wonder effects, - be it stomach troubles, dehydration, diabetes, blood pressure, acidity, digestive disorders, skin diseases, detoxification of body, cancer in its initial stages, old fever, asthma and many other ailments. Ayurvedic and other alternative medical authorities have authenticated that regular use of this holy water is helpful in keeping the users healthy, robust and strong.

Gangajal Holy Drops:

“Gangajal” is the perennial flow of sanctity and purity from the Himalayas. Coming right from the snow covered white dazzling peaks in its natural form; “Gangajal” is cool, pure, serene, sacred and free from any known impurity. Theology alone has not placed “Gangajal” to its marvelous and glorious position but it is its unique medicinal property and healing quality that has helped it qualify for this place of

pride. The foremost notable quality aspect being that if stored for years together, its preservative eminence does not get spoilt, that is, it does not get stale, distaste or odor (bad smell).

Religious ideals and beliefs alone do not count for its being purely holy but it is nature’s gift to it of mineral and herbal mix that goes to add remarkable value to its purity. Indian religious philosophy, together, has had an equal flow from the ancient times to the present period. Inseparable these two are as both are deeply entangled and intertwined with this upsurge that no. two can be isolated, separated or segmented. Eminent historical facts are equally responsible to boost up its tremendous recognition

Many Sanskrit philosophers, religious preachers, gurus and pundits (learned men) and worshippers have put volumes of literary works on the sacred river Ganga and Gangajal (the sweet holy water it carries); thinkers and salvation seekers have all the praise for the holy water which has its abode in nature’s lap,

that foreign thinkers, philosophers, mountaineers, trekkers and believers have written volumes regarding its holiness and usefulness.

The Sanskrit word ‘pavitra’ (absolute holy and pure) is apt to describe Gangajal as holy as it could be. This meets religious blessedness in its exact and accurate form. Many methodical arrangements of the truths of religion in their natural connection may put its place of pride in the very height it comes from but it has achieved greater heights than can be measured through any scale – spiritual, physical, mental or otherwise.

Religious beliefs have consecrated Ganga, the mother goddess “Ganga Mai” as Gangajal has given life to thousands of villages, towns and cities settled on its banks from time immemorial. Unfailingly it continues to flow in regularity in service of mankind.

mankind. Millions of devotees take dip in its holy waters to achieve purity of soul, body and mind to help them shun all sins, misdeeds and impurities in their thoughts, deeds and acts. Environmentalists wish to make it an abode for themselves to be in constant association with its beauty, talisman quality and its abilities of creating ecological balances.

Such is the purity of Gangajal that it is absolutely beyond our thoughts to reach for accurate, exact and correct words to describe its holy qualities. Use of this holy water is not limited to religious rituals alone.

Under British Rule

Easement Act, 1882:

The coming of Easement Act in 1882 makes the first radical shift, in the history of Indian Law, in both recognizing and not recognizing water right as a negative natural right. In terms of ascertaining what exact the status the Act gives to water right, the question is complex and not easy to answer. But this very complexity itself reveals the underlying struggle to reallocate powers over water, in terms of redefining the rights over it. This struggle seems to have been necessitated by changes in the political structures as well as due to the industrial revolution which made possible new technologies for water harvesting,. Section 2(6) of the Act however gives full recognition to natural and negative customary rights, both for groups and individuals. Section 4 of the same Act, on the other hand, defines easements for the first time as legal right that can be alienated. Section 2 also for the first time gives absolute rights over rivers and lakes to the government. It states that the government’s rights are not affected by easements and customary rights. The principle derived from Race v. Ward which is explicitly recognized and accepted by section 18 of the Act, is circumvented by section 2 of the same Act, which places absolute rights of water in the government. The progressive development of the rights of the government, from the easement Act of 1882 to the Madhya Pradesh Irrigation Act of 1931, raises a fundamental question: has the acquisition of such powers by the government changed water rights into positive right? On the face of it seems so. If the government has taken up the task of harnessing or obstructing all water resources, it would also be its positive duty to ensure availability of water to the people. The water supply Acts of various states are enacted with such a supposition. The answer however looks not so easy because the recent litigations concerning various issues of water rallies around interpretation of Article 21 and 14 which involve characterization of right of life as a negative natural right, in contrast with the earlier statutory provisions. The questions in these litigations are not one of state providing water to people, but the state not destroying the natural water resources.

3. Water – General Facts

World oceans cover about three fourth of earth’s surface. According to the UN estimates, the total amount of water on earth is about 1400 million cubic kilometre which is enough to cover the earth with a layer of 3000 metres depth. However the fresh water constitutes a very small proportion of this enormous quantity. About 2.7 per cent of the total water available on the earth is fresh water of which about 75.2 per cent lies frozen in polar regions and another 22.6 per cent is present as ground water. The rest is available in lakes, rivers, atmosphere, moisture, soil and vegetation. What is effectively available for consumption and other uses is a small proportion of the quantity available in rivers, lakes and ground water. The crisis about water resources development and management thus arises because most of the water is not available for use and secondly it is characterized by its highly uneven spatial distribution. Accordingly, the importance of water has been recognised and greater emphasis is being laid on its economic use and better management.

Water on the earth is in motion through the hydrological cycle. The utilisation of water for most of the users i.e. human, animal or plant involve movement of water. The dynamic and renewable nature of the water resources and the recurrent need for its utilisation requires that water resources are measured in terms of its flow rates. Thus water resources have two facets. The dynamic resource, measured as flow is more relevant for most of developmental needs. The static or fixed nature of the reserve, involving the quantity of water, the length of area of the water bodies is also relevant for some activities like pisciculture, navigation etc. Both these aspects are discussed below.

Irrigation World

Analysing the country-wise geographical area, arable land and irrigated area in the World, it is found that among the continents largest geographical area lies in the Africa which is about 23 per cent of the world geographic area. However, Asia (excluding erstwhile countries of USSR) with only 21 per cent of world geographical area has about 32 per cent of world’s arable land followed by North Central America having about 20 per cent of World’s arable land. Africa has only 12 per cent of world’s arable land. It has been seen that irrigated area in the World as about 18.5 per cent of the arable land in 1994. In 1989, 63 per cent of world’s irrigated area was in Asia, whereas in 1994 this percentage has gone upto 64 per cent. Also 37 per cent of arable land of Asia was irrigated in 1994. Among Asian countries, India has the largest arable land, which is close to 39 per cent of Asia’s arable land. Only United States of America has more arable land than India

Physiography of water

Physiographically, India may be divided into seven well defined regions. These are:

1. The Northern Mountains, comprising the mighty Himalayan ranges;

2. The Great Plains, traversed by the Indus and Ganga Brahmaputra river systems. As much as one third of this lies in the arid zone of western Rajasthan. The remaining area is mostly fertile plains;

3. The Central Highlands, consisting of a wide belt of hills running east-west starting from Aravalli ranges in the west and terminating in a steep escarpment in the east. The area lies between the Great Plains and the Deccan Plateau;

4. The Peninsular Plateaus comprising the Western Ghats, Eastern Ghats, North Deccan Plateau, South Deccan Plateau and Eastern Plateau;

5. The East Coast, a belt of land of about 100-130 km wide, bordering the Bay of Bengal land lying to the east of the Eastern Ghats;

6. The West Coast, a narrow belt of land of about 10-25 km wide, nordering the Arabian Sea and lying to the west of the Western Ghats, and;

7. The islands, comprising the coral islands of Lakshadeep in Arabian Sea and Andaman and Nicobar Islands of the Bay of Bengal.

General: India is a land of many rivers and mountains. Its geographical area of about 329 MHa is criss-crossed by a large number of small and big rivers, some of them figuring amongst the mighty rivers of the world. The rivers and mountains have a greater significance in the history of Indian cultural development, religious and spiritual life. It may not be an exaggeration to say that the rivers are the heart and soul of Indian life.

India is a union of States with a federal set up. Politically, the country is divided into 28 States and 7 Union Territories. A major part of India’s population of 1,027,015,247 (2001 census) is rural and agriculturally oriented for whom the rivers are the source of their prosperity.

Water Bodies: Inland Water resources of the country are classified as rivers and canals; reservoirs; tanks & ponds; beels, oxbow lakes, derelict water; and brackish water. Other than rivers and canals, total water bodies cover all area of about 7 M.Ha. Of the fivers and canals, Uttar Pradesh occupies the First place with the total length of rivers and canals as 31.2 thousand km, which is about 17 percent of the total length of rivers and canals in the country. Other states following Uttar Pradesh are Jammu & Kashmir and Madhya Pradesh. Among the remaining forms of the inland water resources, tanks and ponds have maximum area (2.9 M.Ha.) followed by reservoirs (2.1 M.Ha.).

Most of the area under tanks and ponds lies in Southern States of Andhra Pradesh, Karnataka and Tamil Nadu. These states along with West Bengal, Rajasthan and Uttar Pradesh, account for 62 percent of total area under tanks and ponds in the country. As far as reservoirs are concerned, major states like Andhra Pradesh, Gujarat, Karnataka, Madhya Pradesh, Maharashtra, Orissa, Rajasman and Uttar Pradesh account for larger portion of area under reservoirs. More than 77 percent of area under beels, oxbow, lakes and derelict water lies in the states of Orissa, Uttar Pradesh and Assam. Orissa ranks first as regards the total area of brackish water and is followed by Gujarat, Kerala and West Bengal. The total area of inland water resources is, thus, unevenly distributed over the country with five states namely Orissa, Andhra Pradesh, Gujarat, Karnataka and West Bengal accounting for more than half of the country's inland water bodies.

Rivers: India is blessed with many rivers. Twelve of them are classifled as major rivers whose total catchment area is 252.8 million heactare (M.Ha). Of the major rivers, the Ganga - Brahmaputra Meghana system is the biggest with catchment area of about 110 M.Ha which is more than 43 percent of the catchment area of all the major rivers in the country. The other major rivers with catchment area more than 10 M.Ha are Indus (32.1 M.Ha.), Godavari (31.3 M.Ha.), Krishna, (25.9 M.Ha.) and Mahanadi (14.2 M.Ha). The catchment area of medium rivers is about 25 M.Ha and Subernarekha with 1.9 M.Ha. catchment area is the largest river among the medium rivers in the country.

3. Water in Constitution Of India

Water Laws and Customs:

The framers of the Indian constitution have drawn up very specific laws and provisions governing the development and management of the country's water resources. During the last 57 years since the Constitution of India was enacted (1950) in the Parliament, the changes necessitated in these laws and provisions, under the quasi-federal system of governance (Union of States), have been complex.

Water Laws

Basically, ' water ' is a State subject, with the Union's role limited to the Inter-State Rivers. The constitutional provisions related to water are contained in the Seventh Schedule - Article 246, as discussed in detail below, under Union List, State List, and Concurrent List.

Constitutional Provisions:

(a) “List I - Union List” (Entry 56)[3]

"Regulation and development of Inter-State Rivers and river valleys to the extent to which such regulation and development under the control of the Union declared by law to be expedient in the public interest”.

(b)“List II - State List” (Entry 17)[4]

"Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of List I”.

(c)"List III - Concurrent List" (Entry 20)

There is no entry on water but there is an entry on planning, under “Economic and Social Planning”. Since water is a significant input in agricultural development and industrial development, which are indicators of economic development, and since water is a primary need (drinking and sanitation) for social planning, water resource development could be covered under Concurrent List also. Only Entry 17 of List II has been in operation all along. However, Entry20 of List III (Concurrent List) could be also said to have operated indirectly in view of the fact that the Central Government, through the Planning Commission, has to clear Water Resources Development projects for investments if these projects are to be eligible for central funds.[5]

(d) “Article 246”

“Subject – matter of laws made by Parliament and by Legislatures of States”

“(1). Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in the Constitution refereed to as the “Union List”)”.

“(2). Notwithstanding anything in clause (3), Parliament, and subject to clause

(1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in the Constitution referred to as the “Government List”)”.

“(3). Subject to clause (1) and (2), the Legislature of any State has exclusive power to make laws for such State or part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in the

Constitution referred to as “State List”)”.

“(4) Parliament has power to make laws with respect to any matter for any part of the territory in India not including (in a State) notwithstanding that such matter is a matter enumerated in the State List”.

As per the existing constitutional provisions relating to ‘water’, the primary responsibility for development rests with the State Governments. However, if water is transferred from List II to List III - Concurrent List, as per Article 246 (2), Parliament as well as the legislature will have the power to make laws with respect to water.

Entry 56 of List I do not deprive the States of any power to which they are entitled under Entry 17 of List II; List I stipulates in respect of “Regulation and Development of Inter-State rivers and river valleys”.

(e) “Article 262: Disputes relating to Water” [6]

“Adjudication of disputes relating to waters of Inter-State Rivers or river valley -

(1) 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”.

(2) “Notwithstanding anything in this Constitution, 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 is referred to in clause (1)”.

Now we discuss the development of the federal water institutions of India tracing down history lines. The various acts, which were promulgated along with their amendments, are described below. These said acts formed the basis of functioning of the various institutions formed for the purpose of solving matters related to water

Water and Allied matters under Part IX of the Constitution:

The legislative powers of the Centre and States are expressly dealt with under Chapter I of Part XI of the Constitution. The legislative competence of the Centre and State is controlled and defined under Articles 245 to 255 of the aforementioned Chapter. The subject matter of legislation is enshrined under the Union, Concurrent and the State Lists (Lists I, III and II respectively) of the Seventh Schedule. List I contains 97 entries, List II contains 66 entries and List III has 45 entries on which both Centre and States are empowered to make laws. However, it is paradoxical to note that the word ‘environment’ which could undoubtedly be regarded as the most asserted word for its importance by the Hon’ble Apex Court in the past two decades, has found no place any one of the lists of the seventh schedule.

Article 245 empowers the Parliament to legislate for the whole of the territory of India or part of it where as the State legislatures are empowered to make laws for their respective States. Article 246 divides the subject matter of the legislation between the Union and the States with reference to three lists to the seventh schedule.

Article 248 states that parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.

Article 249 confers power on parliament to legislate with respect to a matter in the State List in the national interest. Article 252 gives power to parliament to legislate for two or more States by consent and adoption of such legislation by any other State. Article 253 further states that Parliament has power to make any law for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

Relevant Entries

Schedule VII, List I (Union List):

Entry 7 - Defence Industries

Entry 24 - Shipping and navigation on national inland water ways, as regards mechanically propelled vessels.

Entry 52 - Industries, the control of which is declared by parliament by law to be expedient in the public interest.

Entry 56 - Regulation and development of inter-state rivers and river valleys

Entry 97 - Any other matter not enumerated in State or Concurrent lists.

List II (State List):

Entry 6 - Public Health and Sanitation

Entry 10 - Burial and burial grounds, Cremation and cremation grounds

Entry 17 - Water subject entry 56 of the Union list

Entry 18 - Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans, colonisations.

Entry 21 - Fisheries

Entry 23 - Regulation of mines and mineral development subject to provisions of Union List with respect to regulation and development under the control of the Union list.

Entry 24 - Industries, subject to entries 7 and 52 of the Union list.

Entry 69 - Offences against laws with respect to any of the matters in this list.

List III (Concurrent List):

Entry 8 - Actionable wrongs

Entry 11 A - Administration of justice; Constitution and organization of all Courts, except Supreme Court.

Entry 17 - Prevention of cruelty to animals

Entry 17A - Forests

Entry 17 B - Protection of wild animals and birds

Entry 32 - Shipping and navigation

Entry 36 - Factories

Schedule XI (Article 243-G)

Entry 1 - Minor irrigation, water management and watershed development

Entry 4 - Animal Husbandry, dairying and poultry

Entry 5 - Fisheries

Entry 6 - Social forestry and farm forestry

Entry 7 - Minor Forest produce

Entry 11 - Drinking water

Entry 23 - Health and sanitation

Schedule XII (Article 243 - W)

Entry 1 - Urban Planning

Entry 6 - Public Health, Sanitation conservancy and sold waste management

Entry 8 - Urban forestry, protection of the environment and promotion of ecological aspects

Entry 15 - Cattle ponds; prevention of cruelty to animals.

4. Institutional development of the federal water bodies of India (History)

As is the case with several other aspects of modern India's laws and institutions, water institutions have their origins in pre-independence legislation. The history of institutional development in this area seems to be one of increasing decentralization (and hence opportunity for conflict) over time. Until the Government of India (GOI) Act of 1919, all irrigation works except those not exceeding Rs 10 lakhs in cost were under the control of the central government, and subject to the sanction of the secretary of state. The GOI Act 1919, made irrigation a provincial subject, while matters of inter-provincial concern or affecting the relations of a province with any other territory were subject to legislation by the central legislature.[7]

The GOI Act of 1935 drew attention explicitly to river disputes between one province or another or between a province in British India and a (federated) Indian state. The provincial legislative list (which became Entry 17 in the State List in the 1950 Constitution) included “water, that is to say water supplies, irrigation and canals, drainage and embankments, water storage and water power”. Sections 130 to 134 in the 1935 Act dealt however, it could be argued that considerations of fairness would affect how parties to a negotiation might view particular solutions, and thus affect the outcomes they find acceptable.

The provisions led down that a province or a princely state could complain to the Governor General if its interests were prejudicially affected in the water supplies from a natural source, due to the action of another province or princely state. If the Governor General considered that the issues involved were of sufficient importance, he was required to appoint a commission to investigate the matter and to report to him. After considering the report he was to give a decision he [8]deemed proper.

In effect, this arrangement provided for binding arbitration: in the end, the Governor General could theoretically impose his decision.

The Sind government made the only complaint under these provisions of the 1935 Act. In 1941, the Governor General appointed the Indus Commission to investigate this complaint. But the commission could not come to a conclusion before 15th August 1947. Subsequently the original dispute between Sind and pre-partition Punjab was subsumed in the Indus basin dispute between India and Pakistan.

The next stage of constitutional evolution was the draft constitution. At this stage the original Articles on the subject, viz., Articles 239 to 242 were worded on the same lines as sections 130 to 134 of the 1935 Act. Subsequently, an amendment was introduced and Article 262 replaced them.

Within the powers available under Entry 56 of the Union List and Article 262, Parliament enacted two laws, viz.,

1) River Boards Act of 1956,

The first act made provisions for setting up of river boards or advisory bodies by the central government at the request of the interested parties. These boards were to have two functions:[9]

1) They would help to bring about proper and optimum utilization of the water resources of inter- state rivers.

2) They would promote and operate schemes for irrigation, water supply, drainage, development of hydroelectric power and flood control.

2) Inter-State Water Disputes Act of 2002.

This Act is to provide for the adjudication of disputes relating to waters of Inter-State Rivers and River Valleys. The Act came into effect on 28 August 1956, has been modified from time to time, and was last amended on 18 March 2002 Section 14, to achieve the objectives set forth.

When any request is received from the state government in respect of any water dispute and the central government is of the opinion that the water dispute cannot be settled by negotiations, the central government is empowered to constitute a water disputes tribunal for the adjudication of the dispute by notifying in the official gazette.

The tribunal thus set up then has to investigate the matters referred to it and forward a report setting out the a facts found by it and giving its decision on the same within a period of three years.

The above Act has been used to set up several Tribunals to settle the Inter-State Water disputes.

Standing Committee on Inter-State Issues in Water Resources

The Ministry of Water Resources has set up this Committee on 6th April 1990, to assist the National Water Resources Council (NWRC), and to enable it to advise on the modifications of resolving Inter-State differences with regard to specific elements of Water Plans and such other issues that may arise during the planning or implementation of projects. The Committee comprises the Union Minister of Water Resources as the chairman, and the Union Ministers of Agriculture, Energy, Urban Development, Environment and Forests, and Science& Technology as its members. The Secretary (Water Resources) serves as Member-Secretary. The Chief Ministers of the concerned States are special invitees to the meetings of the Committee. The recommendations of the Committee are advisory in nature, and are without prejudice to the provisions of the Inter-State Water Disputes Act.

The Sarkaria Commission on Centre- State Relations

This Commission, while examining matters of Inter-State relationships, also examined the constitutional provisions related to water dealing with Inter-State water disputes. In the opinion of the Commission, the goal of the constitution was that there was a need for union control over waters of Inter- State rivers and river valleys for their regulation and control, but in matters of local concern, as in the case of ‘land’, States should have powers in respect of waters which are not part of inter- State rivers and are located in the State and are located within the Territory of each State. The Commission was of the view that the existing arrangements in the constitution are the best possible method of distributing powers between the Union and the States with respect to a highly difficult and sensitive subject. The Commission also ruled out entry of the subject in the ‘Concurrent list’.

The Sarkaria Commission also examined the provisions of the Inter-State water Dispute Act of 1956. It made several recommendations for amending the Act, out of which the Inter-State council and its Standing Committee, after examination, endorsed the following.[10]

Ø Once an application under Section 3 of the Inter-State River Water Disputes Act (33 of 1956) is received from a State, it should be mandatory on the Union Government to constitute a Tribunal within a period not exceeding one year from the date of receipt of any disputant State; modified by the Council to the extent that "the disputes already settled may not be reopened'.

Ø There should be a Data Bank and Information System at the national level and adequate machinery should be set up for this purpose at the earliest. There should be a provision in the Inter-State Water Disputes Act, that States shall be required to give necessary data for which purpose, the Tribunal may be vested with the powers of a Court.

Ø The Tribunal should give its award within a period of three years from the date of its constitution. However, if for unavoidable reasons the award could not be given within the specified period of three years, the Union Government may extend the period suitably not exceeding two years. The award should be implemented two years from the date of notification of the award. If for unavoidable reasons the award could not be implemented within period of two years the Union Government may extend the period suitably.

Ø The Inter-State Water Disputes Act, 1956 should be amended so that a Tribunal’s award has the same force and sanction behind it as an order or decree of the Supreme Court to make a Tribunal’s award really binding.

The Commission's recommendations are having been worked upon.

National Water Policy, 1987

The broad objective of the guidelines governing the allocation of water is defined as "developing the waters of Inter-State River for the betterment of the population of the co-basin States/Union Territories to the extent such developments are not detrimental to the interests of other co-basin States".[11] This national water policy of 1987 was amended in 2002. Section 21 of the new policy deals with the point of water sharing among states.

National Water Policy, 2002

Section 2 of this water policy deals with distribution of water amongst the states.

Water Sharing / Distribution amongst the States[12]

2.1.1 The water sharing / distribution amongst the states should be guided by a national perspective with due regard to water resources availability and needs within the river basin. Necessary guidelines, including for water short states even outside the basin, need to be evolved for facilitating future agreements amongst the basin states.

2.1.2 The Inter-State Water Disputes Act of 1956 may be suitably reviewed and amended for timely adjudication of water disputes referred to the Tribunal.

Policy of 1987 basically dealt with the idea of developing the water shared by 2 or more states.

Whereas, the new policy of 2002, dwells on the point that rules should be framed, which must be abided by to facilitate the agreements, made between states.

5. India’s Experience

The Inter-State Water Disputes Act seems to provide fairly clear procedures for handling disputes. At the same time, however, the law permits considerable discretion, and different disputes have followed quite different paths to settlement, or in a few cases, continued disagreement. In this section, what is provided is an overview, and then some detailed discussion of some of the major disputes.

Overview

The central government has given substantial attention to water disputes, which began to emerge soon after the framing of the Constitution. As far back as 1967, the following 15 cases were identified[13], divided into two groups. The first group was those cases where interstate agreements through mutual discussions and negotiations had been successfully reached:

Musakhand Project dispute between Uttar Pradesh and Bihar, settled in 1964.
Tungabhadra Project High-level canal dispute between Karnataka and Andhra Pradesh, settled in 1956.
Sharing of costs and benefits of Jamni Dam Project between Uttar Pradesh and Madhya Pradesh, settled in 1965.
Palar water dispute between Tamil Nadu and Karnataka, settled in 1956.
Sharing of Subarnarekha river water among Bihar, Orissa and West Bengal, settled in 1964.
Exploitation of Mahi river water between Gujarat and Rajasthan, settled in 1966.
Utilization of Ravi-Beas waters between Punjab, Rajasthan, Jammu and Kashmir, settled in 1965.

A careful examination of the above list suggests some common features of the easily settled disputes. The first three involved sharing costs and benefits of specific projects. While the latter three involved relatively specific disputes over smaller rivers, mostly over well-defined projects or project proposals. Thus specificity and well-defined technical and cost issues characterized six of the seven settlements. The one "settlement" that does not fit this characterization, regarding the seventh case on the above list, was reopened with the division of Punjab into Punjab and Haryana in 1966, and this new dispute has still not been resolved. In fact, it has been one of the most contentious of inter-state water disputes. Details of the same are mentioned in a separate section.

The second group discussed consists of those cases, which had not been settled at that time:[14]

1. The Krishna - Godavari waters dispute among Maharashtra, Karnataka, Andhra Pradesh and Orissa.

2. The Cauvery water dispute among Tamil Nadu, Karnataka and Kerala.

3. The Narmada water dispute among Gujarat, MP, Maharashtra and Rajasthan.

4. The Tungabhadra project issues other than the high level canal between Karnataka and Andhra Pradesh.

5. The issue of extension of irrigation from the Rangwan Dam of UP between UP and MP.

6. The Koymani river dispute between Bihar and West Bengal.

7. The dispute over the Keolari Nadi waters between MP and UP.

8. The Bandar Canal project, affecting Madhya Pradesh and Uttar Pradesh.

A study of the details of these cases clearly puts them in two groups. The first three on this list were or are major disputes, involving large river basins. They were all ultimately referred to tribunals, with varying degrees of success. The last five cases on the list are actually closer in characteristics (relatively small and specific) to the most of the cases on the first list.

6. CONFLICTS AND SETTLEMENT MECHANISM

Causes of Conflicts

From the case studies discussed in the earlier chapter, the major causes of conflicts in river water sharing can be grouped in two categories, technical and non-technical. A list for each of these is provided below.

Technical:

Differences in the approach for planning, design, construction, and operation of joint projects on Trans-boundary Rivers;

 Different interpretations of operative clauses and sub-clauses in existing agreements/treaties/tribunal awards.

 Disagreement on the basic hydrological data and the actual present utilization of water;

 Disagreement on the present and future water requirements for various uses and the basis thereof;

 Disagreement on water availability, especially during the lean season;

 Lack of openness and transparency in the exchange of data and information;

Non-Technical:

Disagreement on riparian rights and basis thereof;

Disagreement on the basis and modalities of water sharing;

Rigid political or administrative stands.

Violation of agreements by one party or the other;

With the progression of the disputes, the two categories of conflicts get so intertwined that they cannot be separated and have to be resolved on the basis of their technical merits.

Principles used for settlement

Many options at dispute settlement have been employed, some with excellent results and some with continuing resentment and legal battles in the courts. The guidelines adopted in settling the sharing of water are enumerated below:[15]

The Principles of equitable distribution of water availability assessed at agreed locations on the main river and or its tributaries (on 75% dependability or average availability) have been followed in the Inter-State water disputes. The Helsinki Rules on Equitable distribution[16] and now the UN Law on Non Navigational Uses of International Water Courses are widely referred to. Even in the case of International Treaties and Agreements and Treaties these principles are followed.

There are no set guidelines prescribed under the National Water Policy, though efforts are currently being made to evolve a set of guidelines acceptable to all the States.

The ground water resources in the River Basins in different States or Countries have not been taken into account in the assessment of basins' water resources for distribution or sharing among the riparian States or Countries. However, each State within an Inter-State basin has the right to use the ground water resources for beneficial purposes. The Law on ground water is still evolving, and Authorities are in the process of being established in the States on the basis of guidelines prescribed by the Central Government, which has established the Central Ground Water Authority.

Changes of State boundaries due to the reorganization of States have brought even past agreements in dispute. This has resulted in establishing Tribunals to settle the sharing arrangements.

Specific trans-basin diversions have been permitted in Inter-State Agreements/Tribunal Awards, but not as a general rule.

Each basin State is free to use the Inter-State basin water allocated to it in a general sharing arrangement or on specific projects and regulate within its boundaries, to enjoy the benefits of that water within that State in a manner not inconsistent with the specific agreements or orders of the Tribunal or the Agreement.

Invariably, a formula for sharing of excesses or shortages in any water year over the allocated shares, are specified.

Percentages of return flows are also accounted in working out water assessments and its sharing.

Non-riparian States have been allocated water for utilization for drinking water, irrigation and other beneficial uses on the basis of Agreements of the riparian States considering the established water shortages and hardship in such States or towns or cities.

Review Period of Tribunal Awards or Agreements has been invariably specified.

The Settlement Mechanism[17]

An appreciation of how, in the past, the settlement mechanism has worked is given below.

q Over 130 Agreements have been evolved on the sharing of Inter-State River waters or on specific projects. All these agreements have used the negotiation route, with the Central Government playing the pivotal role under the Constitutional Laws, Acts, and Statutory Rules. Most of these Agreements have worked well since they were done with the willing consent of the Party States to the Inter-State Basin.

q Inter-State statutory organizations for specific projects or basins have been set up under the Central Government with the participation of the basin States and beneficiary States with defined roles. These have been set up either by mutual agreements or under the direction of the Tribunal Awards. Interstate organizations have also been set up by mutual agreement of only two States without Central Government participation. The Dispute settlement mechanism prescribed under Article 256 of the Constitution has been used under specific reference(s) made by the States for settlement of disputes under the provisions of the Inter-State Water Disputes (ISWD) Act. The Tribunals have taken a long period to settle the disputes referred to them, and some have been unable to give the Award for over ten years for various reasons.

q Even after Awards were given, the issue of people affected by the project, and non - consultation with the Stakeholders in the planning process, has stalled implementation. This has resulted in the Supreme Court intervening in the Public Interest Litigations (PILs) filed by the NGOs and affected Parties.

q The States reopened even settled issues such as the height of the dam. Scheduled resettlement and rehabilitation Plans are delayed or interrupted by the States where major part of the submergence falls, even though the

q Tribunal has given specific instructions to follow. The Tribunal has not suggested corrective steps in such cases and the Implementation Mechanisms set up under the direction of the Tribunal have lacked adequate powers.

q The setting of a date for the reopening for review of the water sharing awards given by the Tribunal has opened up a race among the States to implement projects in a haphazard way to establish prescriptive water rights on the particular date. This has led to overreaching project-agreed provisions of storage, resulting in serious disputes between States. This has led to litigation being filed by the aggrieved Parties in the Supreme Court for adjudication.

q Water being a 'State Subject' the role of the Central Government in India is limited. Modifications in the Statuary provisions have been debated, but no tangible solutions have been possible.

q It is increasingly being recognized that maintaining a certain minimum flow in the rivers during the lean season months for ecological considerations is necessary, and provisions have been made for the same in the new agreement (Upper Yamuna) and treaty (Mahakali Treaty) signed in recent years.

q Since most of the river basins of India are Inter-State in character, the Central Organizations viz., the Planning Commission and the Ministry of Water Resources with its technical attached organization, the Central Water Commission, have exercised a very well set schedule of techno-economic clearance guidelines in approving the Inter-State projects planned by the States for implementation under the Five Year Plans. This procedure has been institutionalized, even though it is time consuming. This route of clearance ensures that projects on the Inter-State rivers are not taken up without an agreement on water sharing in general, or project specific sharing in particular, of the waters of the river basin. There is a loophole in this, since the clearance is required only if the State wants Central Plan funding for the project. Otherwise, the State can go ahead with the project if funds are not a constraint. In that case, the aggrieved States can seek judicial intervention to stop the project.

7. Case Studies

River Water Disputes – An Overview:

As per the Inter-State River Water Disputes Act, 1956 (ISRWD Act, 1956) when the water dispute arises among two or more State Governments, the Central Government receives a request under Section 3 of the Act from any of the basis States with regard to existence of water dispute. The status of such inter-State water disputes under ISRWD Act, 1956 is as follows:

River(s)	States	Date of Constitution of Tribunal	Date of Award
Krishna	Maharashtra, Andhra Pradesh, Karnataka	April 1969	May 1976
Godavari	Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh and Orissa	April 1969	July 1980
Narmada	Rajasthan, Madhya Pradesh, Gujarat, Maharashtra	October 1969	December 1979
Cauvery	Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry	June 1990	Report u/s 5(2) received 5.2.2007
Krishna	Karnataka, Andhra Pradesh and Maharashtra	April 2004	Report u/s 5(2) received on December 31, 2010
Model/ Mandovi/Mahadayi/	Goa, Karnataka and	Under Construction	-
Vansadhara	Andhra Pradesh & Orissa	Under Construction	-

In accordance with the said Act, the Central Government is required to refer a dispute to a Tribunal after it is satisfied that the dispute cannot be settled through negotiations. Accordingly, the water disputes, related to Cauvery and Krishna were referred to the Tribunals for adjudication in 1990 and 2004 respectively.

The Cauvery Water Disputes Tribunal (CWDT) passed an interim order on 25th June, 1991 and further clarifying orders on the interim order in April 1992 and December 1995. CWDT submitted its report and decision under Section 5(2) of the ISRWD Act, 1956 on 5.2.2007. With submission of report and decision under Section 5(2) of the Act, Central Government and the State Governments have sought explanation and guidance from the Tribunal under Section 5(3) of the Act. The matter is under consideration of the Tribunal. Further, party States have also filed SLPs in the Hon'ble Supreme Court against the decision dated 5.2.2007 of the Tribunal and the matter is sub-judice at present.

The Krishna Water Disputes Tribunal (KWDT) passed orders on June 9, 2006 on the Interim Relief Application filed by the party States of Maharashtra, Karnataka and Andhra Pradesh declining to give interim relief as sought in the application and at the same time indicating certain norms with a view to facilitate adjudication of the dispute before the Tribunal. Subsequently, State of Andhra Pradesh filed Interlocutory Application under Section 5(3) of the ISRWD Act, 1956 seeking further explanation/ guidance on the Order of the Tribunal of June 9, 2006 which is pending. The Tribunal in its hearing held in September and October 2006 has framed 29 issues for adjudication of the dispute before it. Further hearings of the Tribunal are continuing.

In respect of Mahadayi/Mandovi and Vansadhara water disputes, the requests were received from States of Goa and Orissa in July 2002 and February 2006. In respect of Mahadayi water dispute, a view has emerged in the Ministry that the dispute cannot be settled through negotiations and action has been initiated for establishment of a Tribunal. In respect of Vansadhara river water dispute, establishment of a Tribunal is in advanced stage of implementation.

Ravi & Beas Waters Tribunal (RBWT) set up in 1986 in pursuance of paragraphs 9.1 & 9.2 of Punjab Settlement (Rajiv-Longowal Accord, 1985) inter-alia to adjudicate the claims of Punjab and Haryana in Ravi-Beas waters, submitted its report on 30th January 1987. The Tribunal is to submit its further report to the Government on the references made by the party States and the Central Government seeking further guidance on its report. The hearings of the Tribunal have now become dependent on the outcome of a Presidential reference made on 22.07.2004 before the Hon'ble Supreme Court on Punjab Termination of Agreements Act, 2004.

Sutlej Yamuna Link (SYL) Canal envisages delivering Haryana's share of Ravi-Beas waters. In the matter of non-completion of SYL Canal in Punjab portion, the Hon'ble Supreme Court in a judgment of 4th June 2004, had directed the Central Government to carry out its action plan for completion of the canal. Central Government took necessary action. However, Punjab legislature on 12th July 2004 enacted Punjab Termination of Agreements Act, 2004 terminating all agreements relating to Ravi-Beas Waters and obligations thereunder. A Presidential reference in the matter of the above Act was filed before the Hon'ble Supreme Court on 22.07.2004, outcome of which is awaited.

Important Cases:

Three cases are discussed below in detail, which involve important disputes, and illustrate well the variety of paths that disputes can take in the Indian institutional context.

a) The Krishna-Godavari water dispute

b) The Cauvery water dispute

c) The Ravi-Beas water dispute

In the first case, relative success was achieved through negotiations and through the working of a tribunal. In the other two cases, the institutional process has been relatively less successful: while these two disputes have both gone to tribunals, neither one has yet been successfully resolved. The Cauvery Tribunal is still deliberating, while the Ravi-Beas Tribunal gave its judgment, but it was not made official by the central government.

I. Krishna-Godavari Water Dispute[18]

The Krishna-Godavari water dispute among Maharashtra, Karnataka, Andhra Pradesh (AP), Madhya Pradesh (MP), and Orissa could not be resolved in spite of negotiations and discussions. Here Karnataka and Andhra Pradesh are the lower riparian states on the river Krishna and Maharashtra is the upper riparian state. The dispute was mainly about the interstate utilization of untapped surplus water.

Background of the dispute

In the early 1950s, the Indian government adopted the First Five Year Plan, which outlined a path for economic development. The Planning Commission wanted to include some major schemes for irrigation and hydroelectric power on the rivers Krishna and Godavari.

The commission asked the states of Bombay, Hyderabad, Madras and Mysore to suggest certain viable projects. An inter-state conference was convened in 1951 to discuss the utilization of water in the Krishna and Godavari and to assess the merits of the various projects suggested. The agreement provided for a review of allocations after 25 years. Karnataka, (then Mysore) did not ratify the agreement relating to the Krishna waters. In 1953, the states began to be reorganized on a linguistic basis. Andhra Pradesh came into existence in 1953, while in 1956 there was a further redrawing of state boundaries. Hence the 1951 agreement needed to be revised. Prolonged negotiations did not lead to a new agreement, and separate tribunals were constituted for the Krishna and the Godavari in 1969, but with the same membership.

The main issues in the Krishna-Godavari dispute were the following:

(1) The validity of the inter-state agreement of 1951 was questioned. Since the objective conditions had changed since 1951, Maharashtra, Orissa, Karnataka, MP demanded a new consideration of the allocation of the water of the two states.

(2) Karnataka and AP objected to the diversion of more water at Koyna by the upper riparian state, Maharashtra, for a hydroelectric project and other irrigation work, as this would reduce downstream flow, with adverse consequences for agriculture and industry.

(3) Andhra Pradesh also objected to the construction of dams by the upper riparian state, Maharashtra, for irrigation purposes.

(4) It was questioned whether Maharashtra could divert water westward for generating cheap hydroelectric power on the slopes of the Western Ghats.

(5) The upper riparian state also questioned Andhra Pradesh s intention to store more water at Nagarjuna Sagar.

The Tribunal’s decision

The Krishna Tribunal reached its decision in 1973, and the award was published in 1976. The Tribunal relied on the principle of equitable apportionment for the actual allocation of the water. It addressed three issues:

(1) The extent to which the existing uses should be protected as opposed to future or contemplated uses.

(2) Diversion of water to another water shed.

(3) Rules governing the preferential uses of water.

The Tribunal's rulings were as follows:

ü In the first issue, the Tribunal concluded that projects, which were in operation or under consideration as in September 1960, should be preferred to contemplated uses and should be protected and that except by special consent of the parties, a project committed after 1960 should not be entitled to any priority over contemplated uses.

ü In the second issue, the Tribunal concluded that diversion of Krishna waters to another waterline was legal when the water was diverted to areas outside the river basin but within the political boundaries of the riparian states. It was silent regarding the diversion of water of water to areas of non-riparian states.

ü In the third issue the Tribunal specified that all existing uses based on diversion of water outside the basin would receive protection.

ü As regards the westward diversion of the Krishna waters by Maharashtra for power production, it was agreed that the existing utilization for these projects was to be protected.

ü The Tribunal ruled that the use of water for irrigation was to be preferred to the production of hydroelectric power for two reasons:

a) Water is the only source of irrigation whereas coal, oil and other natural resources can be used for generating power.

b) Considering the socio-economic needs of the population and their dependence on the Krishna water for irrigation, the Tribunal ruled that irrigation should be given preference to power.

ü The Tribunal made provisions for review of its order any time after 31st May 2000.

The Godavari Tribunal commenced hearings in January 1974, after making its award for the Krishna case. It gave its final award in 1979, but meanwhile the states continued negotiations among themselves, and reached agreements on all disputed issues. Hence the Tribunal was merely required to endorse these agreements in its award. Unlike in the case of other tribunals, there was no quantification of flows, or quantitative division of these flows: the states divided up the area into sub-basins, and allocated flows from these sub-basins to individual states14. Another difference was that the agreement was not subject to review, becoming in effect, perpetually valid.

II. The Cauvery Dispute[19]

The core of the Cauvery dispute relates to the re-sharing of waters that are already being fully utilized. Here the two parties to the dispute are Karnataka (old Mysore) and Tamil Nadu (the old Madras Presidency). The origin of the present dispute can be traced back to the 1892 agreement, between the then Mysore and Madras governments. This agreement specified the limits within which no new irrigation works could be constructed by Mysore state without previous reference to the Madras government objected to the new irrigation project proposed by the then Mysore state. The Madras farmers had acquired easement rights over the Cauvery waters by prescription from the Cholas, a medieval ruling dynasty in South India. The Madras government contended that these rights would be affected if the Mysore government were to build new irrigation works in the Cauvery.

In this 1892 agreement, we find that a lower riparian state (Madras) was given veto power over all the irrigation works of an upper riparian state (Mysore). Mysore had to accept this arrangement because British Resident controlled it. The second phase of development of irrigation under the Cauvery which can be dated from the 1892 Agreement, extends to include the 1924 agreement and the construction of Krishnarajasagar dam and the Mettur reservoir.

In 1909, the Mysore government proposed to construct the Krishnarajasagar dam across the Cauvery. The Madras government, fearing that this would affect the Thanjavur delta, protested against the construction of the dam. From the second half of 1921 to early 1924, exchanges were pursued through correspondence and technical meetings. But during the course of these negotiations, no consensus could be reached. The governments of Mysore and Madras in February of that year formally concluded the 1924 agreement.

According to the agreement the Mysore state was entitled to extend irrigation to an extent, then fixed at 110,000 acres in Mysore. The Madras government gave assent to the construction of the dam and reservoir at KRS to a height of 124 ft above the riverbed and to a capacity of 44.827 TMC ft. There was also a provision that the clauses of 1924 agreement would be open to reconsideration after 50 years from its date of execution. Between 1924-34 there was little irrigation work in the Cauvery basin. In Mysore, the total irrigated area remained stagnant at 1.1 lakh acres between 1900-30. In Madras, there was a one-lakh acre increase in the same period. The total area under irrigation in the Cauvery basin was 14.4 lakh acres.

Understanding the history of irrigation development from 1934-1990 provides useful background to the emergence and exacerbation of the Cauvery dispute from the late 1960s onwards. The period 1934-90 can be divided into two sub periods. Between 1934-1972, the Mettur and other projects added 6.4 lakh acres to the pre Mettur extent of 14.4 lakh acres.

Madras did not seek any extra water, as there had been considerable expansion of irrigation, beyond what had been assured to it under the 1924 agreement. From 1972-1990 there was substantive ayacut development and change in the inter- state utilization of the Cauvery waters. These factors formed the continuation of the dispute and led to negotiations. Repeated meetings failed to produce agreement, leading to the formation of a tribunal. In mid 1950s, a series of meetings and correspondences took place between Karnataka and Tamil Nadu on the Cauvery waters. More meetings in 1970 when followed this Kerala were also included as one of the basin states. In February 1970, Tamil Nadu requested the GOI to refer the dispute to a tribunal under the ISWD Act 1956. When the central government did not comply with this request, Tamil Nadu moved the Supreme Court in August 1971 to refer the dispute to a tribunal and to direct Karnataka not to proceed with its new projects. Between 1968 and 1990, 26 meetings were held at the ministerial level but no consensus could be reached. The Cauvery Water Dispute tribunal was constituted on June 2, 1990 under the ISWD Act, 1956.

There has been a basic difference between Tamil Nadu on the one hand and the central government and Karnataka on the other in their approach towards sharing of Cauvery waters. The government of Tamil Nadu was of the view that as Karnataka was constructing the Kabini, Hemavathi, Harangi, and Swarnavathi dams on the river Cauvery and was expanding the ayacuts[20], this would diminish the supply of waters to Tamil Nadu, and adversely affect the prescriptive rights of the already acquired and existing ayacuts. The government of Tamil Nadu also maintained that the Karnataka government had failed to implement the terms of the 1892 and 1924 Agreements relating to the use, distribution and control of the Cauvery waters. Tamil Nadu asserts that the entitlements of the 1924 Agreement are permanent. Only those clauses, which deal with utilization of surplus water for further extension of irrigation in Karnataka and Tamil Nadu, beyond what was contemplated in the 1924 Agreement, can be changed.

In contrast, Karnataka questions the validity of the 1924 Agreement. According to the Karnataka government, the Cauvery water issue must be viewed from an angle, which emphasizes equity and regional balance in future sharing arrangements. It must embrace the following issues:

1) Eliminating or minimizing social, economic and regional imbalances among the basin states.

2) Providing equitable shares of water to the basin states.

Tribunal’s Interim Order:

The GOI proposals have stressed economy and efficiency in water uses. The Tribunal passed its interim order in June 1991.

(i) Firstly, Karnataka was directed to ensure that 205 TMC feet of water was made available at Mettur, from its reservoirs in a twelve-month period from June to May until the final adjustment of the dispute by the Tribunal. The Tribunal recognized that a monthly pattern of release was necessary for meeting the seasonal cropping requirements of Karnataka. Tamil was directed to release 6 TMC ft of water to Pondicherry in a regulated manner.

(ii) Secondly, Karnataka was directed not to increase its area of irrigation from the Cauvery waters beyond 11.2 lakh acres.

The Karnataka government questioned the soundness of the order on all possible grounds. After hearing Karnataka’s standpoint, the Tribunal passed its clarificatory order in April 1992. The clauses of the Interim order 1991 were upheld. The Tribunal made it clear that if seasonal conditions so required, then it was willing to alter any interim order passed by it. It further specified that, the Tribunal s interim order would not in any way influence the final adjudication. In the subsequent months of 1992, the Tribunal has framed a comprehensive list of 50 issues for adjudication. All the basin states participated in the hearings. More recently (January 1996), Karnataka has opposed the Tribunal's interim award, and threatened to boycott further proceedings, although frantic negotiations between the prime minister and state chief ministers led to a compromise over the interim award. To date, there has been no final resolution of this dispute.

Several reasons for which the negotiations of 1968-1990 failed to bring about a consensus are as follows:

1) In the current Cauvery dispute there has not been a single strong mutual interest between Karnataka and Tamil Nadu. The latter has sought to abide by the entitlements of 1924 Agreement. But, in 1974 Karnataka declared that the 1924 Agreement had become null and void.

2) There was a divergence of interest between Karnataka and Tamil Nadu on the question of pursuing negotiations. In 1970, Tamil Nadu began pressing for a Tribunal. In 1971, it moved the Supreme Court for adjudication by a Tribunal. Tamil Nadu participated in negotiations right until 1990. But Karnataka was interested in prolonging the negotiations and thwarting the reference to a tribunal. Karnataka did this to gain time to complete its new projects.

3) In the current dispute, the GOI did not play a consistent role. Though it had become clear, as early as in 1978 that a mutual agreement could not be arrived at, the Tribunal was constituted only in 1990, after mediation by the Supreme Court. The Karnataka government was opposed to referring the dispute to a Tribunal. But, Tamil Nadu believed that the center was allowing negotiations to be prolonged in accordance with Karnataka‘s wishes.

4) The Cauvery issue became intensely politicized in the 1970s and 1980s. Different political parties ran the respective governments in the two states. The Congress was in power in Karnataka during 1968-83 and in 1989-90, while the Janata Dal and the Janata were in power in 1983-89. In Tamil Nadu, the DMK was in power during 1967-76 and in 1989-91 and the AIDMK for the decade 1977-87, except for a short break. Active bipartisan politics in both states made an ultimate solution more difficult.

5) Between 1968 and 1990, there were three chief ministers in Karnataka belonging to three different political parties, while in Tamil Nadu, there were four chief ministers belonging to two parties. There were two long periods of President’s Rule in Tamil Nadu.

At the center, there were six changes of Prime Minister, spanning four political parties and eight different Union Ministers of irrigation. So, consecutive occasions when the same set of ministers from the same state and the center met were rare.

6) The ministerial meetings were held at regular intervals. No attempt was made to generate technical options to the sharing of Cauvery waters. Expert engineers were not able to work together for a common solution; rather they got involved in party politics.

Prolonged and inconclusive negotiations over two decades have failed to settle the Cauvery problem. There was no consistent attempt by the central government to mediate and conciliate differences between Tamil Nadu and Karnataka, during the process of negotiations. There was no binding arbitration, and the parties opted for their threat points, possibly leading to sub optimal use of water and sub optimal investments affecting the use and storage of water.

During 2003-2006:

The last four years haven't seen any major flare up in the dispute even though the summer of 2003 saw a dry spell in both states. The monsoons in 2004, 2005 and 2006 was quite copious and this helped a great deal in keeping the tempers calm. While the last 3 or 4 years have been relatively quiet as far as jingoistic voices are concerned, a flurry of development has been afoot in the courts.

The term of the tribunal was initially set to expire in August 2005. However, in the light of the many arguments the court was yet to hear, the tribunal filed a request for extension of its term. The extension was granted and the tribunal's term was extended for another year until September 2006. Early in 2006, a major controversy erupted over the 'Assessor's report' that was apparently 'leaked' to the press. The report had suggested a decision which Karnataka summarily rejected. Another major controversy erupted when just a couple of months before the September 2006 deadline, the tribunal recommended the formation of another expert committee to study the 'ground realities' yet again. This was unanimously and vehemently opposed by all the four states party to the dispute. The states contended that this move would further delay a judgment which has already been 16 years in the making.

More than the disapproval of all the four states of the new expert committee that was proposed, the proposal turned out to be a major embarrassment for the tribunal. This was because, not only were the four states opposed to it, even the Chief Judge of the tribunal, Mr.?? was opposed to it. However the other two assistant judges on the 3-man adjudication team, overruled the opinion of the main Judge. And all this was done in a packed courtroom and this led to petty bickering and heated arguments between the three judges in the packed courtroom. This left everyone in the courtroom shocked and the Tamil Nadu counsel was moved to remark that it was embarrassing that the judges probably needed help settling their own disputes before adjudicating on the dispute at hand. Nonetheless, the new expert committee was formed and carried out further assessments. Subsequently, the extended deadline of the tribunal also passed and the tribunal was given yet another extension.

Tribunal’s Final Decision:

The Cauvery Water Disputes Tribunal announced its final verdict on 5 February 2007. According to its verdict, Tamil Nadu gets 419 billion ft³ (12 km³) of Cauvery water while Karnataka gets 270 billion ft³ (7.6 km³). The actual release of water by Karnataka to Tamil Nadu is to be 192 billion ft³ (5.4 km³) annually. Further, Kerala will get 30 billion ft³ and Puducherry 7 billion ft³. Tamil Nadu appears to have been accepting the verdict while the government of Karnataka, unhappy with the decision, filed a revision petition before the tribunal seeking a review

III. The Ravi-Beas Dispute[21]

Punjab and Haryana, the main current parties in this dispute, are both agricultural

surplus states, providing large quantities of grain for the rest of India. Because of the scarcity and uncertainty of rainfall, irrigation is the mainstay of agriculture. An initial agreement on the sharing of the waters of the Ravi and Beas after partition was reached in 1955, through an inter-state meeting convened by the central government. This agreement allocated the surplus beyond pre-partition use to the states of Punjab (then essentially including what is now Haryana), PEPSU (an amalgamation of former princely states), Rajasthan, and Jammu and Kashmir. In 1956, PEPSU was merged into Punjab, and their shares under the 1955 treaty were also combined, for a total of 7.2 m.a.f..

The present dispute between Punjab and Haryana about Ravi-Beas water started with the reorganization of Punjab in November 1966, when Punjab and Haryana were carved out as successor states of erstwhile Punjab. The four perennial rivers, Ravi, Beas, Sutlej and Yamuna flow through both these states, which are heavily dependent on irrigated agriculture in this arid area. Irrigation became increasingly important in the late 1960s with the introduction and widespread adoption of high yielding varieties of wheat. While increased access to underground water through tube wells helped considerably, the sharing of river water became increasingly contentious.

After the reorganization of Punjab in November 1966, 40.16 m.a.f (one million acre feet) total water of all the four perennial rivers serving erstwhile Punjab was distributed between various states as shown in the table below:

Erstwhile Punjab inclusive of Delhi	26.24 m.a.f
Rajasthan	10.44 m.a.f
Uttar Pradesh	2.79 m.a.f
Jammu & Kashmir	0.69 m.a.f
Total	40.16 m.a.f

Erstwhile Punjab was left with 26.24 m.a.f of water. In May 1967, Haryana asked the Punjab government’s consent for a share of 4.8 m.a.f out of the total surplus of 7.2 m.a.f that had been allocated to Punjab (plus PEPSU) as a result of the 1955 agreement. In 1976, the central government issued a notification allocating 3.5 m.a.f. to Haryana. Punjab, argued that this award would hinder further development of canal irrigation. Now Haryana was a non-riparian and non-user in respect of the water of Ravi-Beas, while Punjab was a riparian and user. Punjab maintained that it would not spare any water of Ravi-Beas beyond what Haryana was entitled to as a successor state, under section 78 of the Act of Parliament, 1966, which reorganized Punjab. The law stipulated apportionment of waters as a result of the Beas project, having regard to purposes of the project. The dispute thus mainly centered on the interpretation and application of this law. Punjab further argued that Haryana could use the water of the two rivers for irrigation only through the use of large and costly lifts. It also argued that, while Haryana has access to the water of the Ganges, Punjab had no alternative to the Ravi-Beas water.

As a result of the protests by Punjab, further discussions were conducted (now including Rajasthan as well), and a new agreement was accepted in 1981. The available surplus under the 1955 agreement was re-estimated and revised upward by 1.32 m.a.f. And Haryana and Punjab were allocated 3.5 and 4.22 m.a.f. respectively. This agreement, reached by a state government allied to the central government, became a source of continued protest by the political opposition, and lobbies outside the formal political process. Punjab entered a period of great strife, and a complex chain of events led to the constitution of a tribunal to examine the Ravi-Beas issue in 1986. The Ravi-Beas Tribunal further revised upward the estimate of the available surplus, and made an award in 1987 of 5 m.a.f. and 3.83 m.a.f. to Punjab and Haryana respectively. Both states sought clarifications of aspects of the award, but the center has not provided these. Hence, the award has not been notified, and does not have the status yet of a final binding decision.

IV. Other Inter State Water Disputes

Babhali Barrage issue

1 The State of Andhra Pradesh in May, 2005 brought to the notice of the Central Government that Govt. of Maharashtra is constructing Babhli barrage in the reservoir submergence area of Sriram Sagar Project which is in violation of the GWDT award. In this regard, Member, Central Water Commission (CWC) held two meetings with officers of the States of Andhra Pradesh and Maharashtra in 2005. Besides, a meeting was held between the officers of the States of Andhra Pradesh and Maharashstra in 2005. Another interstate meeting was taken by Union Minister of Water Resources with the Chief Ministers of concerned States on 4.4.2006 in which following decisions were taken:-

(i) A Technical Committee headed Chairman or by a senior officer of Central Water Commission and consisting of representatives of the States shall go into the details of various issues involved in Babhli Barrage project. The Technical Committee shall submit a report as early as possible but not later than 20th May, 2006

(ii) Till the Technical Committee submits its report, the status quo in respect of activities of the Babhli barrage project shall be maintained and further construction work will not be done by the State of Maharashtra.

2 Two meetings of the Technical Committee were held. The Technical Committee however, could not submit the report due to non-submission of detailed proposals by Govt. of Andhra Pradesh in respect of suggestions made during the meetings.

3. In July 2006, Government of Andhra Pradesh filed an Original Suit under Article 131 of Constitution against State of Maharashtra and Union of India and Others. In the Suit, the State of Andhra Pradesh prayed to the Court to grant a permanent injunction restraining State of Maharashtra from undertaking or proceeding with the construction Babhli Barrage within the reservoir water spread area of Sriram Sagar Project.

4. The Hon’ble Supreme Court heard the matter on 26th April, 2007 and passed following interim order.

(i) Though the State of Maharashtra may go-ahead with the construction of the Babhli barrage, it shall not install the proposed 13 gates until further orders;

(ii) As the state of Maharashtra is permitted to proceed with the construction at its own risk, it will not claim any equity by reason of the construction being carried on by it.

Thus, the matter is subjudiced.

Mulla Periyar Dam issue

1. On 29-10-1886 a lease indenture for 999 years was made between Maharaja of Travancore and Secretary of State for India for Periyar irrigation works by another agreement in 1970, Tamil Nadu was permitted to generate power also.

2. The Mullaperiyar Dam was constructed during 1887-1895 across Periyar River in the then Travancore state (now Kerala) territory after said indenture. The Periyar Dam with full reservoir level of 152 ft. provides for diversion of water from the reservoir through a tunnel to Vaigai basin in Tamil Nadu for irrigation benefits in 68558 ha.

3 In 1979, reports appeared in Kerala Press about the safety of Mulla Periyar Dam. On 25th November, 1979 Chairman, CWC held discussions at Thirvananthapuram regarding strengthening Periyar dam with officers of Irrigation and Electricity, Deptt. of Kerala and PWD of Tamil Nadu. In the meeting, emergency measures to be completed before next monsoon (1980), medium term measures and long-term measures for strengthening of Periyar Dam were decided. One of the emergency measures was to keep the shutters of spillway raised fully to lower the reservoir level to 136 ft.

4. A second meeting under the Chairmanship of Chairman, CWC was held on 29th April 1980 at New Delhi and it was opined that after the completion of emergency and medium term measures in the form of cable anchoring, the water level in the reservoir can be restored up to 145 ft.

5. As per the Memorandum on the Rehabilitation of Mulla Periyar Dam prepared by CWC and forwarded to Tamil Nadu on 25th March, 1986, emergency measures were implemented. In the aforesaid Memo, CWC gave its recommendation about peak flood and size of additional vents to be added in the spillway for implementing remaining emergency measure of providing additional spilling capacity. It also gave its recommendation about the design details of concrete backing on the downstream face of the dam. Besides this, CWC suggested The Government of Tamil Nadu to examine the possibility of raising the top of RCC parapet by another two feet apart from few other suggestions. It was opined in the forwarding note that after completion of the proposed strengthening measures, provision of other additional vents and implementation of other suggestions, Periyar dam would be competent to hold water upto FRL of 152 ft.

6. The matter became subjudice with several petitions in the Kerala and Tamil Nadu High Courts. All these cases were transferred to the Supreme Court which heard the matter and desired in its order dated 28.4.2000 that Hon’ble Minister (WR) may convene a meeting of the Chief Ministers of both the states of Kerala and Tamil Nadu to amicably resolve the issue. .

7. Hon’ble Minister (WR) convened the Inter-State meeting on 19.5.2000 and as decided in the meeting, an Expert Committee under Member (D&R), CWC with representatives from both States was constituted in June 2000 to study the safety of the dam with respect to strengthening of dam carried out by The Government of Tamil Nadu on the advice of Central Water Commission and advise regarding raising of water level in the reservoir beyond 136 ft as a result of strengthening of dam.

8. The Committee in its report of March, 2001 opined that with the strengthening measures implemented, the water level can be raised from 136 ft. to 142 ft. without endangering safety of the dam. Further raising of water level to 152 ft. will be considered after balance strengthening measures are implemented.

9. In the case of Transfer Petition (Civil) No. 779-783/1998 Dr. Subramanian Swamy Vs Tamil Nadu, the Report of the Expert Committee was filed in the Hon’ble Supreme Court on 31.8.2001 and also sent to the State Governments of Kerala and Tamil Nadu.

10 In writ Petition ( C) No. 386 of 2001 (Mulla Periyar Environmental Protection Forum Vs Union of India and Ors) the Supreme Court in its Judgement dated 27.2.2006, permitted the Government of Tamil Nadu to raise the water level of Mulla Periyar dam from 136 ft. to 142 ft. and take up the remaining strengthening measures.

11. Consequent to the aforesaid orders of the Supreme Court of India, the Kerala Government passed the Kerala Irrigation and Water Conservation (Amendment) Act 2006 which received the assent of the Governor on 18th March 2006 which prohibited the raising of water level beyond 136 ft. in the Mulla Periyar Dam as Mullaperiyar Dam was placed under the Schedule of ‘Endangered Dams’.

12. The Government of Tamil Nadu filed a suit No. 3 of 2006 - State of Tamil Nadu v/s State of Kerala and Union of India in the Hon’ble Supreme Court on 31.3.2006 praying for -

(i) Declaration of Kerala Irrigation and Water Conservation (Amendment) Act 2006 passed by Kerala Legislature as unconstitutional in its application to and effect on Mulla Periyar Dam.

(ii) Pass a decree of permanent injunction restraining Kerala from application and enforcing impunged legislation enforcing with or obstructing Tamil Nadu from increasing the water level to 142 feet and from carrying out the repair works as per judgment of Supreme Court dated 27th February 2006.

13. A Review Petition filed by the State of Kerala on 3.4.2006 was dismissed by the Supreme Court on 27.7.2006.

14. In the matter referred to in para 13 above, the Hon’ble Supreme Court has passed an order on 25.9.2006 stating “the two State Governments independently or with the intervention of the Union of India may try to sort out the dispute, if possible.

15. The Hon’ble Union Minister (WR) convened an inter-State meeting of the Chief Ministers of States of Tamil Nadu & Kerala on Mulla periyar dam issue on 29.11.2006 at New Delhi. Hon’ble Union Minister (WR) further discussed matter with the Minister (WR/PW) from the States of Tamil Nadu & Kerala on18.12.2006. The States of Tamil Nadu and Kerala reiterated their respective stand in the meetings and no consensus could be reached regarding a solution acceptable to both States. The matter is now subjudice.

16. Subsequently, Hon’ble Chief Minister of Tamil Nadu met Hon’ble Prime Minister on 18.12.2007 and Hon’ble Prime Minister suggested him to have a meeting with Hon’ble Chief Minister of Kerala on Mulla Periyar issue. Hon’ble Chief Minister of Tamil Nadu met Hon’ble Chief Minister of Kerala on 19.12.2007 in presence of Hon’ble Union Minister of Water Resources. Further a letter dated 20.12.2007 was received from the Hon’ble Chief Minister of Tamil Nadu mentioning that in the above meeting, Hon’ble Chief Minister of Tamil Nadu suggested to oversee the seepage measurement of the dam by engineers not belonging to either of the two States through CWC and Hon’ble Chief Minister of Kerala agreed to consider them.

17. Later, the Govt. of Tamil Nadu forwarded a letter dt 22/1/08 of Hon’ble Chief Minister of Kerala addressed to Hon’ble Chief Minister of Tamil Nadu wherein it is mentioned that in the meeting dt 19/12/2007 he suggested a joint mechanism to monitor the seepage. The Govt. of Tamil Nadu also enclosed a letter dated 4/2/2008 from Hon’ble Chief Minister of Tamil Nadu addressed to Hon’ble Chief Minister of Kerala wherein it is mentioned that joint monitoring was not discussed in the meeting.

18. CWC was requested to suggest a suitable mechanism for monitoring the seepage and possible structure of the Committee to monitor it. They suggested a nine- member Committee headed by a Chief Engineer, Central Water Commission having representatives from both States for Monitoring the seepage of Mulla Periyar Dam. The composition of the Committee along with terms of reference was sent to Chief Secretary, Government of Tamil Nadu and Kerala vide letter dated 28.4.2008 for their concurrence / suggestions.

19. The Government of Tamil Nadu vide its letter dated 17.6.2008 has sent its comments on the proposed Monitoring Committee stating that the present proposal of the Government of India to constitute a Committee comprising officers from CWC, Tamil Nadu Government and Kerala Government to measure the seepage in Mulla Periyar Dam is not in conformity with the discussion held in the meeting dated 19.12.2007 and proposal will lead to more and more complications and thus not acceptable to Govt. of Tamil Nadu. The Govt. of Kerala vide letter dt 24.2.2009 informed that the stand taken by the Govt. of Tamil Nadu for neutral agency of experts excluding those form Kerala and Tamil Nadu is not acceptable to them.

20. In the meanwhile, Govt. of Kerala has got done hydrological review studies from a professor of IIT, Delhi and has since filed the said hydrological studies report in the Hon’ble Supreme Court on 15.07.08 in connection with Suit No.3 of 2006 filed by the Government of Tamil Nadu. It has been concluded in the report that the Mulla Periyar dam is hydrologic ally unsafe for passing the estimated Probable Maximum Flood (2, 91,275 cusec / 8,248 cusec) with the existing spillway capacity. Comments of Hydrological Studies Organisation, CWC on the report were forwarded to the Govt. Advocate as per instructions of MoWR vide CWC letter dated 13.10.08. CWC has commented that the difference in the adopted values of Design Rainfall (Storm) depth, Time distribution of rainfall, Unit hydrograph & Infiltration rate have resulted in estimation of higher flood peak (PMF) and the said studies by the IIT Professor does not appear to be well founded.

21. Meanwhile the Government of Kerala constituted a Committee in May 2009 which submitted its report in June, 2009. The Committee suggested mapping of the underwater area, installation of highly sensitive computer operated Seismograph and construction of a new Dam downstream of existing dam. The Committee has also opined that the dam has reached such a deteriorated condition that no amount of rectification work could salvage it to a safe and healthy condition. Keeping in view this report, Minister (WR) advised Chairman, CWC in July, 2009 to constitute a team of officers to visit the dam and assess the present condition of the Mulla Periyar dam and look into the issues raised in the report of the above Expert Committee. The team had proposed a visit to the dam from 22-25 July, 2009 and the conveniences of the Government of Kerala and Tamil Nadu for the visit were sought. The Government of Tamil Nadu agreed to the proposed visit but the Government of Kerala requested for postponement of the proposed visit because of torrential rains. Thereafter, the visit could not materialize

22. Thereafter, Secretary (WR) convened a meeting on the Mulla Periyar Dam on 31.7.2009. The meeting was attended among others by Principal Secretary, PWD, Tamil Nadu and Additional Chief Secretary, WRD, Kerala. In the meeting the representative of Kerala informed that the Kerala Govt. visualizes construction of new dam as the only feasible solution and they have started survey and investigation for a new dam at an alternate site downstream of the existing dam and they may also consider the construction of a new dam at their own cost. Representative of Kerala stated in the meeting that the Govt. of Kerala also recognizes the established uses of water from the dam by Tamil Nadu as per the existing agreement between the two States and will continue the same after the construction of a new dam. In the said meeting the representative of Govt. of Tamil Nadu informed that the Govt. of Tamil Nadu would examine the proposal of the Govt. of Kerala for new Dam after the same is formally received from them. In view of this, Hon’ble Minister (WR) vide DO dated 26.08.2009 requested Hon’ble Chief Minister, Kerala to send the proposal in this regard to the Govt. of Tamil Nadu for their consideration.

23. Later, Govt. of Tamil Nadu vide letter dated 14.9.09 mentioned that as regards the decision that has emerged in the meeting, to examine the proposal of the Kerala Government for the construction of a new dam by Tamil Nadu Government, the Government of Tamil Nadu had already communicated to the Government of India as well as to the Government of Kerala that there is no need for construction of a new dam by the Kerala Government, as the existing dam after it is strengthened, functions like a new dam. They also mentioned that Hon’ble Chief Minister of Tamil Nadu in his letter dated 13.07.09 to Hon’ble Chief Minister of Kerala had mentioned that Kerala Govt. may not raise the issue of new dam any more.

24. The Govt. of Kerala vide letter dated 26.9.2009 sent comments on the minutes of the meeting dated 31.7.2009 mentioning that the statement “The Govt. of Kerala also recognizes the established use of water from the dam by the Tamil Nadu as per the existing agreement between the two States and continue the same after the construction of new dam” is not acceptable. What was mentioned in the meeting was that Kerala is willing to give water to Tamil Nadu.

25. Further, Hon’ble Supreme Court heard the issues related to Mulla Periyar Dam on 10.11.2009 and passed the order that,

“As the case involves the resolution of said questions, the suit may be placed before the Hon’ble Chief Justice of India for necessary directions for placing it before a constitution Bench.

The contesting parties shall maintain status quo in respect of Mulla Periyar Dam as existing today. However, order of status quo will not be an impediment for the plaintiff (State of Tamil Nadu) to carry out maintenance and repairs for proper upkeep of the said Dam.”

26. The case was heard by five judges on 18.2.2010 and the Court directed Central Govt. to constitute an empowered Committee in this regard which would hear the parties to the suit on all issues that will be raised before them, and furnish a report, as far as possible, with in six months from their constitution.

27 Following the order of Hon’ble Supreme Court dated 29.02.2010, Centre (MoWR) has constituted an Empowered Committee vide Notification dated the 30th April, 2010. The Committee started its functioning and was to submit its report within six months period. Further, Supreme Court vide its order dated 20th September, 2010 has extended the term of Committee by a further period of six months. Therefore, implementing the said directions of the Supreme Court, the Central Government extends, the terms of Empowered Committee for a further period of six months w.e.f. 30th October, 2010 vide Notification dated the 28th October, 2010.

Special Evaluation of the decision of Krishna

Water Disputes Tribunal (KWDT) – II

The Krishna River is the second biggest river in peninsular India. It originates near Mahabaleshwar in Maharashtra from the statue of a cow in a temple. It then runs for a distance of 303 km in Maharashtra, 480 km through the breadth of North Karnataka and the rest of its 1300 km journey in Andhra Pradesh before it empties into the Bay of Bengal.

The river basin is 257,000 km², and the States of Maharastra, Karnataka and Andhra Pradesh contributes 68,800 km² (26.8%), 1,12,600 sq.k.m. (43.8%) and 75,600 km² (29.4%) respectively.

Due to the inter state nature of the river and the multiple parties concerned, disputes arose between the states of Karnataka, Maharashtra and Andhra Pradesh over sharing of the waters. The Government of India constituted the Krishna Waters Disputes Tribunal in 1969 under the Inter State Water Disputes Act of 1956. This was headed by R. S Bachawat a former judge of the Supreme Court.

The Bachawat commission went over the matter in detail and gave its final award in 1973. While the Tribunal had in its earlier report detailed two schemes, Scheme A and Scheme B, the final award only included Scheme A and Scheme B was left out. Scheme A pertained to the division of the available waters based on 75% dependability, while Scheme B recommended ways to share the surplus waters.

Scheme A:

The government took another three years to publish the award in its Extraordinary Gazette dated …. 1976. With that the final award(Scheme A) of the KWDT became binding on the three states.

The KWDT in its award outlined the exact share of each state. The award contended based on 75% dependability that the total quantum of water available for distribution was 2060TMC. This was divided between the three states in the following manner.

Maharashtra - 560 TMC

Karnataka - 700 TMC

Andhra Pradesh - 800 TMC

In addition to the above, the states were allowed to use regeneration/return flows to the extent of 25, 34 and 11 TMC respectively. Further, the Tribunal has allowed the States to utilise their allocated share of water for any project as per their plans. As per clauses V & VII of final order of KWDT-1, a state can fully use its allocated water in any water year (in case of deficit water year also) by utilising the carry over storage facility. A state can create carryover storage during the years when water yield in the river is in excess of 2130 TMC to use in the water year when water yield in the river is less than 2130 TMC. Thus KWDT-1 allocated water use from the river up to 2130 TMC out of average yield in the river and not subject to water availability in a 75% dependable year.The average yield in the river is assessed as 2578 TMC by recent KWDT-2.

Including regeneration, the total water available to Karnataka for utilisation is 734 TMC. Out of this, Upper Krishna Project has been allotted with 173 TMC.

Scheme B:

The tribunal in its report, under Scheme B, has determined that the surplus water available in the river basin totaled 330 TMC. It was decided that this would be divided among the riparian states of Maharashtra, Karnataka and Andhra Pradesh in the ratio of 25%, 50% and 25% respectively.

The tribunal also made it clear that in case any one of the states were not to co-operate in sharing surplus water in the above ratio, Parliament should take a decision to distribute the surplus water through en enactment (Page 163 KWDT report Vol.II).

However, Scheme B involved the constitution of an authority (Krishna River Valley Authority) to ensure the implementation of the scheme. The constitution of such an authority, though, was outside the powers of the tribunal under the Inter State Water Disputes Act of 1956. As a result, Scheme B was left out of the Tribunal’s final award and Scheme A alone was presented to the government for final notification in the Gazette.

Therefore, for the time being, Andhra Pradesh has been given permission to make use of any surplus waters though it cannot claim any rights over the same.

Review of the Award:

The KWDT provided for a review of its award after 31 May, 2000. However no such review was taken up for more than 3 years after that.

In Sep 2003, the second KWDT, KWDT-II was constituted by the Govt of India following requests by all three states. This tribunal has started its proceedings from 16.07.07.

KWDT – II Award:

The second Krishna Water Dispute Tribunal gave its verdict on December 31, 2010. The allocation of available water was done according to 65% dependability, considering the records of flow of water for past 47 years. According to KWDT II, Andhra Pradesh got 1001 TMC ft of water, Karnataka 911 and Maharashtra 666. the next review of water will be the year 2050. KWDT-2 has allocated entire average water (2578 TMC)yield in the river among states except 6 TMC which is to be let downstream of Prakasam Barrage near Vijayawada to the Sea as environmental flows. There is no water allocation for the purpose of salt export to the sea. When rain water comes in contact with the soil, it picks up some salts in dissolved form from the soil. The total amount of dissolved salts contained in the river water has to reach sea without accumulating in the river basin. This process is called "salt export" If all the water is utilized without letting adequate water to the Sea, the water salinity / total dissolved salts (TDS) would be so high making it unfit for human, cattle and agriculture use. The low lands of Andhra Pradesh would be effected by salinity if adequate salt export is not taking place. Water is not safe for drinking if the TDS exceeds 500 mg/l. The average yearly salt export requirement is nearly 12 million tons in Krishna basin area up to Prakasam Barrage. At least 850 TMC water is required for salt export purpose to maintain water TDS below 500 mg/l. This is including 400 TMC of Krishna river water being used outside the Krishna basin in AP. This water used outside the basin area is also serving the salt export purpose since salts are transferred outside the basin. Thus another 450 TMC is to be let to the sea for salt export purpose. If salt export needs are considered, there is no a further water to allocate by KWDT-2 in excess of the 2130 TMC allocation made by KWDT-1 earlier. The water allocation by KWDT-1 itself is 83% of 2578 TMC total water availability. During the years 1998-2007, 510 TMC on an average per year was discharged in to sea out of 2402 TMC annual average yield (page 303 of KWDT-2) in the river which is 21% of total yield. The water TDS is around 360 mg/l during peak monsoon months which are highest among the major Indian rivers.

Unplanned water utilization in Murray - Darling River basin in Australia has enhanced the salinity /TDS of river water beyond safe limits which is affecting the long term sustainable productivity of the river basin. So Murray - Darling Basin Authority is established to take up remedial action plan for recovering the damage occurred to the sustainable productivity of the river basin. Water quality and salinity management is made part of this plan. It has stipulated that water TDS limit of 500 mg/L should not exceed 95% of the duration in a year. It has altered existing water use/entitlement of irrigation to enhance the water required for salt export.

Already the water utilization in Krishna river basin is touching the maximum limit constraining the salt export to the Sea. Detailed study shall be conducted by experts to decide the minimum water needed for the salt export to the sea. India should learn from the bad experience of Australia in over exploiting the waters of Murray-darling River. Krishna Basin Authority in line with Murray-Darling Basin Authority shall be constituted by the Indian Government rejecting archaic river water allocations by the KWDT-2. Krishna Basin Authority should be headed by a panel of experts representing environment, irrigation, agriculture, ground water, geology, health, ecology, etc to protect the river basin area for its long term sustainable productivity and ecology.

Some of the clauses in the final order of KWDT II are –

For the purposes of this case, the yearly yield of the river Krishna was prepared afresh, on the data now available - an yearly water series for 47 years and accordingly the dependable yield was determined as: Average yield - 2578 TMC; Yield at 50% dependability - 2626 TMC; Yield at 60% dependability - 2528 TMC; Yield at 65% dependability - 2293 TMC and Yield at 75% dependability - 2173 TMC.
It was decided that the water of river Krishna be distributed amongst the three States of Maharashtra, Karnataka and Andhra Pradesh on 65% dependability of the new series of 47 years i.e. 2293 TMC.
It was decided that the allocations already made by KWDT-1 at 75% dependability which was determined as 2060 TMC on the basis of old series of 78 years plus return flows, assessed as 70 TMC in all totalling to 2130 TMC, be maintained and shall not be disturbed.
It was determined that the remaining distributable flows at 65% dependability, over and above 2130 TMC (already distributed), is 163 TMC (2293 TMC minus 2130 TMC = 163 TMC).
It is hereby decided that the surplus flows which is determined as 285 TMC (2578 TMC minus 2293 TMC= 285 TMC) be also distributed amongst the three States.
The balance amount of water at 65% dependability i.e.163 TMC and the surplus flows of 285 TMC was distributed as given below:

Ø State of Karnataka: Allocation at 65% dependability 65 TMC; Allocation out of surplus flows 105 TMC; Total 170 TMC; Flows made available for Minimum flows in the stream out of 65% dependability 7 TMC; Grand Total 177 TMC

Ø State of Maharashtra: Allocation at 65% dependability 43 TMC; Allocation out of surplus flows 35 TMC; Total 78 TMC; Flows made available for Minimum flows in the stream out of 65% dependability 3 TMC; Grand Total 81 TMC

Ø State of Andhra Pradesh: Allocation at 65% dependability 39 TMC; Allocation out of surplus flows 145 TMC; Total 184 TMC; Flows made available for Minimum flows in the stream out of 65% dependability 6 TMC; Grand Total 190 TMC

On change in availability and the allocation of more water, at different dependabilities, the restrictions placed on the States on utilizations in some sub-basins would consequently change. The changes in the restrictions are in keeping with the dependabilities at which allocations have been made.
All the three States shall release in all 16 TMC of water for maintaining minimum instream flow and for environment & ecology.
Since the decision of the tribunal has the force and decree of the Supreme Court, no appeal against the award can be filed in any court except before the tribunal itself. The order of the tribunal can be reviewed or revised after May 31, 2050.
States which came up with projects that do not fall within the purview of the tribunal's order may have to modify them.
The tribunal asked the Centre to set up a "Krishna Water Decision-Implementation Board" with representation from all the three States.
The tribunal directed the three States to contribute for Chennai city drinking water supply 3.30 tmcft distributed in equal quantity in July, August, September and October, and 1.70 tmcft in four equal installments in January, February, March and April.

The tribunal permitted Karnataka to raise the storage level in the Almatti dam to 524.256 metres from 519.6 metres, a measure seen by Andhra Pradesh as depriving its lower Krishna delta region of water supply. The tribunal, however, directed Karnataka to make regulated releases of 8 to 10 thousand million cubic feet (tmcft) from the dam to Andhra Pradesh in June and July.

7. INTERLINKING OF RIVERS

The idea of interlinking of rivers has been deliberated over the decades in India. This was brought about in the case of N.Nandhivarman, Dravida Peravai General Secretary v. Union of India and others. In this chapter there are two parts. First there is a discussion about the case and its details and thereafter about the whole concept of interlinking of rivers with its pros and cons.

Interlinking of rivers was an idea put forward by NDA in its election manifesto. The political resolution of the BJP National Council meeting at Nagpur in August 27-28,2000 also stated: "We also urge Government to consider a time bound programme to link Ganga and Cauvery waters. The Sethu Samudram canal project also needs to be considered for early action. The BJP has been championing these projects and we owe it to the people to fulfill our commitments to them." Though 9 th plan states this project and in spite of being promised in the election manifesto, this project has not seen the light at the end of the tunnel. Hence Dravida Peravai General Secretary N. Nandhivarman had filed a writ petition in the Supreme Court of India, against the Union of India and others. (Writ Petition # 496 of 2001)

In his prayer, the petitioner included the following issues:

He had sought the apex court's intervention to direct authorities to initiate the implementation of this project in a phased manner and with a time frame.
The feasibility reports prepared by the National Water Development Agency under Ministry of Water Resources must be made public along with the reasons for long consumption of time in initiating this project.
The petition also seeks details of the total funds spent by Central and all State Governments on flood and drought relief.

The petitioner states that interlinking Ganga and Cauvery was first mooted in 1972 by then Union Minister for Irrigation Dr.K.L.Rao, which envisaged 2640-kilometer long Ganga Cauvery link. Thereafter in 1974 Captain Dastur suggested a canal known as Garland canal. In July 1982 National Water Development Agency was created to carry out surveys and prepare feasibility reports. In September 1987 the National Water Policy stated that its prime goal is to interlink national rivers. Over all these years none of the feasibility report is made public nor the interlinking of rivers has been undertaken even in a phased manner. The petitioner states that another project promised in the manifesto of the NDA namely Sethu Samudram Project, which was conceived 141 years back, has seen 22 feasibility reports in these periods and now global tenders were called for to prepare fresh feasibility reports. Fearing such a fate will happen even to this interlinking of rivers project Dravida Peravai General Secretary Mr. N. Nandhivarman in his petition states from the ongoing deliberations for decades, it is an irony that the foreigners who ruled us interlinked Indian states with railway link, whereas in independent India to interlink rivers, create more lakes and canals were are just discussing, discussing and jettisoning scheme after scheme.

The National Water Development agency is only collecting the data's offered by various state governments and compiling them into reports. Even to do that the agency seems to be having 2010 as the time frame to complete all feasibility studies. Moreover like previous proposals this may also be jettisoned citing similar reasons or fresh excuses. Thereafter after 2010, India may go for global tenders to make a study of this project and all will be back to square one in 21st century too. In view of this petitioner had to pray before the court to find out what is going to ultimately happen to this project.

The project prepared by the National Water Development Agency, the petition says, has two components namely Himalayan Rivers Development Component and Peninsular Rivers Development component.

Listing these the petitioner N. Nandhivarman General Secretary Dravida Peravai further states: Every feasibility study ordered from the days of K.L.RAO, The Minister if State for irrigation at union Government had only endorsed the findings after findings that favour the national dream project. The 33,600 crore project linking peninsular rivers could first be taken up. Himalayan component can be taken up. Or links within states and agreeable states could be taken up.

Yet there was no good news from the seats of power, and farmers of this country who alone are a majority in our agrarian economy were left aghast at the neglect of this national project.

In December 2002, the Supreme Court ordered to take up the task of interlinking major rivers of the country. The national water development agency (NWDA) has, after carrying out detailed studies, identified 30 links for the preparation of feasibility reports under the National Perspective Plan, 1980. And has prepared feasibility reports of 6 such links.

With a view to bring about a consensus among the states and provide guidance on norms of appraisal of individual projects and modalities for project funding etc. the central government set up a TASK FORCE on 13^th December, 2002.

The task force will comprise of the following members:

Shri Suresh Prabhu, Member of Parliament, Lok Sabha, Chairman
Shri C.C. Patel, Vice-Chairman: and
Dr. C.D. Thatte, Member-Secretary.

In addition to the above members of the Task Force, part-time members will also be nominated in consultation with the Chairman of the Task Force and with the approval of the Prime Minister. These part-time members will be as under:

A member from water-deficit states
A person from the water surplus states
An economist
A sociologist
A legal/world wildlife expert

The terms of reference of the Task Force will be to:

1. Provide guidance on norms of individual projects in respect of economic viability, socio-economic impacts, environmental impacts and preparation of resettlement plans

2. Devise suitable mechanisms for bringing about speedy consensus amongst the States

3. Prioritize the different project components for the preparation of Detailed Project Reports and implementation

4. Propose suitable organizational structure for implementing the project

5. Consider various modalities for project funding

6. Consider international dimensions that may be involved in some project components.

MILESTONE DATES/ TIME TABLE FOR INTERLINKING OF RIVERS

Notification of the Task Force	16.12.2002
Preparation of action plan-1, giving an outline of the time schedules for the completion of the feasibility studies, detailed project reports, estimated cost, implementation of the schedule, concrete benefits and advantages of the project	30.04.2003
Preparation of action plan-2, giving alternative options for funding and execution of the project as also the suggested methods for cost recovery.	31.07.2003
Meeting with the chief ministers to deliberate over the project and to elicit their cooperation	May/June, 2003
Completion of feasibility studies (already in progress)	31.12.2005
Completion of Detailed Project Reports	31.12.2006
Implementation of the project (10 years)	31.12.2016

Interlinking is required when water is to be transformed from surplus to deficit areas.

As per internationally accepted standards if annual per capita water availability is

Below 1700- region is termed as water stressed
Below 1000- region is termed as water scarce

India’s position

India accounts for 15% of the world population and 4% of the world’s water resources
Utilization surface water: 690 BCM/year
Replenishible Ground Water: 432 BCM/year
Total: 1132 BCM/year

Per capita annual water availability (cu.m/capita/year)

The past

· 1951-5177

· 2001-1820

Future estimates

· 2025:1341

· 2050:1140

As per internationally water availability standards, India is water stressed today and will be water scarce tomorrow.

Uneven water availability

a. India has highly uneven water availability in space and time

b. The country receives rain fall for only 3-4 months

c. The Brahmaputra-Barak-Ganga basin accounts for 60% of surface water resources

d. This region is also rich in ground water

e. Western and southern India experience severe deficit in both surface and ground water.

f. 60% of the country experiences water deficit, while parts of the country suffer from floods

Himalayan Rivers Development:

1. Construction of storage reservoirs on the principal tributaries of the Ganga and the Brahmaputra in India, Nepal, and Bhutan,

2. Along with interlinking canal systems to transfer surplus flows of the eastern tributaries of the Ganga to the West,

3. Apart from linking of the main Brahmaputra and its tributaries with the Ganga and Ganga with Mahanadi.

Benefits:

The Himalayan component would provide additional irrigation of about 22 million hectare and generation of about 30 million KW of hydropower, besides providing substantial flood control in the Ganga & Brahmaputra basins. It would also provide the necessary discharge for augmentation of flows at Farakka required interalia to flush the Calcutta port and the inland navigation facilities across the country.

Peninsular Rivers Development:

This component is divided into four major parts.

1. Interlinking of Mahanadi-Godavari-Krishna-Cauvery rivers and building storages at potential sites in these basins. This is the major interlinking of the river systems where surpluses from the Mahanadi and the Godavari are intended to be transferred to the needy areas in the South.

2. Interlinking of west flowing rivers, north of Bombay and south of Tapi. This scheme envisages construction of as much optimal storage as possible on these streams and interlinking them to make available appreciable quantum of water for transfer to areas where additional water is needed. The scheme provides for taking water supply canal to the metropolitan areas of Bombay; it also provides irrigation to the coastal areas in Maharashtra.

3. Interlinking of Ken-Chambal Rivers. The scheme provides for a water grid for Madhya Pradesh and Uttar Pradesh and interlinking canal backed by as much storage as possible.

4. Diversion of other west flowing rivers. Heavy rainfall on the western side of the Western Ghats runs down numerous streams, which empty, into the Arabian Sea.

Benefits:

Construction of an interlinking canal system backed up by adequate storages could be planned to meet all requirements of Kerala as also for transfer of some waters towards east to meet the needs of drought affected areas. The peninsular

Component is expected to provide additional irrigation of about 13 million hectare and is expected to generate about 4 million KW of power.

Interlinking or networking of rivers entails construction of dams and canals and other connected hydraulic engineering works for mass transfer of water across

River basins. Basically, the scheme is to convey floodwater in the Ganga and Brahmaputra river basins to the arid and semi-arid areas of Rajasthan and Madhya Pradesh, and to the peninsular rivers of south India. There are essentially three methods to achieve the same.

They are as follows:

a. Canal option- to construct lengthy canals,

b. Tunnel option- to convey water under mountains, and

c. Pumping option- to pump water over mountains.

The enormous drain of water into the seas, the paradoxical and perennial shortage of water for irrigation and drinking, and the floods in many parts of the country have prompted the idea of networking the rivers. The president Dr. Abdul Kalam has said that the plan must be accorded top priority, it is hoped it will kick start the economy and mitigate the problem of unemployment. This as per him will convert the country into a developed nation. The project is also certain to integrate the rural and urban economies and bridge the gap in the great rural-urban divide.

Dr. Kalam had adumbrated certain requirements so that the grandiose plan is successfully implemented. They are as follows:

a. The need to develop greater tolerance, compassion, hard work, dedication, and an ability to feel and realize the problems of others and the readiness to help. Avoiding narrow political ambition and greed, leaders must foster inter and intra-communal harmony. The country as a whole must realize the economic need for such a project that would stimulate growth.

b. The second priority is political. Water must be moved from the State List and included in the Concurrent List, with over weaning Central control. The need for bringing water under Central control has been amply demonstrated by the non-implementation of several river water sharing awards between the States.

c. An immediate dialogue with Pakistan and Bangladesh to seek their approvals for the networking is an essential priority as per Dr. Kalam. The project will be not be successful without linking the Ganga, the Indus and the Brahmaputra. The Ganga, the Yamuna and the Brahmaputra combine in Bangladesh before entering the Bay of Bengal. Similarly, the Indus and its tributaries — the Ravi, the Beas, the Sutlej, the Jhelum and the Chenab merge in Pakistan before entering the Arabian Sea.

d. The next priority would be to look at and review the land acquisition laws. This river-networking project would require a lot of land across the country and also would need access rights from several million landowners.

e. The fifth priority is to design an acceptable management structure to plan this project, and implement and monitor it. Once completed, this network would last several generations and change the face of this country. This would also cost an enormous amount of money.

Expected benefits of interlinking of rivers:

Surface water irrigation: 25 million Ha
Ground water irrigation: 10 million Ha
Hydropower generation: 34 million KW
Improved agriculture: It will help in ensuring food security
Flood and drought control
Alternative means of transport: river transport is a cheap and non-polluting
Higher GDP growth: creation of more employment opportunities will approximately lead to a 4% growth in the GDP.
Lead to national unity and national security.

The disadvantages of this networking project have been enumerated below and later there are some details elaborating the same.

1. No inclusion of people’s participation

2. Lack of consensus among citizens

3. Criss-cross construction of dams and canal systems, which will cause displacement of people

4. Submergence of land, forests and reserves

5. Negative impact on flora and fauna.

6. Acquisition of large tracts of land

7. If control is transferred to the center then decisions might be taken under political pressure.

Arguments against interlinking of rivers:

(1) Legal angles and election tangles

At present, there are serious disputes between various states of the Indian Union concerning sharing of river water. The disputes occur on account of the Chief Executive of any State having to take decisions and make claims in the interest of the people of his/her State since after all, that is the purpose for which he/she is elected. A Central Law to dictate water sharing between all the states from the network has the potential to precipitate new problems. This is because there is no guarantee for change in the very political climate that causes inter-state disputes in the first place, despite the present of river-sharing agreements and authorities. Furthermore, if control is transferred to the center then decisions might be taken under political pressure.

(2) Financing

The effect on the economic and political independence of India due to borrowing an enormous amount of money (estimated today at Rs.5.6 lakh crores as conveyed by Government of India to the Supreme Court, but it would surely increase) needs to be re-considered. This especially when India is almost in a debt trap with rising debt servicing almost equalling loans received from financial institutions like World Bank or Asian Development Bank. It is also necessary to consider whether we will be in a financial and physical position to maintain the huge assets when created (dams, canals, tunnels, captive electric power generation plants, etc.) in order for the system to continue to function and give the benefits for which it is designed. If we cannot maintain the network, the capital assets created will deteriorate and be lost and the benefits of the project and incomes from it will not be available, though the loan liability would remain. This will inevitably lead to take over of assets by the creditor Banks to consolidate the entry of foreign interests into India. The political aspect of forcible project implementation is increasing disaffection among displaced people who already number tens of millions since Independence.

(3) Flood period

The basic idea of networking rivers is to convey unwanted floodwaters from one place to another where it is deficient and needed. But this idea does not consider that the period when it is surplus in the donor area (July to October in the Ganga-Brahmaputra basins) is not the time when it is needed most in the recipient area (January to May in the peninsular rivers). In such a situation, it will be necessary to construct enormous holding reservoirs that will add to financial, social and environmental costs.

(4) Desertification

Flooding per se is not undesirable because it results in deposition of alluvium particularly in the delta areas of rivers to maintain the fertility of the land by compensating loss of topsoil due to natural erosion. Any system that prevents or severely reduces natural flooding (by diversion of floodwater) will cause land fertility to gradually reduce over the years, thus desertifying the land. The greatest loss that land can suffer is desertification by loss of topsoil. The land that will be so lost to cultivation is the most fertile delta land, and therefore the impact of this on total food production needs to be factored into the discussion. History tells us that entire civilizations have vanished due to desertification.

(5) River pollution

Annual floods flush industrial and municipal pollution in the Ganga down to the ocean. Reducing the flow in the Ganga by diversion will increase the concentration of pollution in the river. A live example is the Yamuna, from which Haryana and Delhi draw so much water that it barely flows after Delhi and the water quality at Delhi is so poor as to be positively poisonous. It is relevant to note that the expensive project to clean the Ganga has not succeeded even with annual flooding. This is not to argue that pollution of river water is inherent and may never be checked at source, but that this factor is yet another that needs to be included in the legitimacy check for the project.

(6) Security

India has a national electric power grid that functions with difficulty because supply does not meet demand. However it is kept functional because electric power can be switched from one circuit to another in the grid. Further it is not easy to deliberately interfere physically with the flow of very high voltage (upto 132 kV) electricity on overhead conductors atop huge pylons. But a national water grid is entirely different because water does not flow instantaneously like electricity, it cannot be switched like electric power, and it can very easily be tampered with enroute to divert, pump out or interrupt flow. A canal breached deliberately or due to natural circumstances combined with poor maintenance would spell disaster for the areas around the breach. Water is basic for human survival unlike electric power, and motivation for interference is that much more. Maintenance of a network of canals, dams, etc., will have to be done under central supervision. Flow can be prevented or caused by the simple expedient of taking control of sluice gates as demonstrated by farmers during the recent Cauvery water problem. Thus security of the network will be an enormous load on security forces of Central and State Governments. In contrast, decentralized systems can be maintained, repaired and protected by those who benefit from them and live nearby.

(7) Land acquisition

One cannot consider the acquisition of 8000 sq km of land when acquisition of land even in acres is a vexed issue, which has taken years. Even if fresh legislation makes it possible within a short period, its implementation will cause untold misery and injustice to the displaced people in obtaining compensation due to systemic corruption. Besides, land for resettlement is mostly not available.

Thus, we must scrutinize closely and guard against our tendencies to address the political challenges of progressive policy and lawmaking for resolution of conflicts over natural resources with technology-heavy solutions

(8) No public debate

Neither the feasibility reports of the Task Force and nor the development of the networking plan have been subjected to extensive and intensive public debate.

The proposed river network is a mega project comprising of a system of interlinked projects and has to be therefore subjected to multi-disciplinary scrutiny. The people involved in the decision making about networking of rivers do not look into the holistic view of the situation but only examine it by associating it with their knowledge and expertise in special fields.

Democratic action and enlightened self-interest by all citizens of India is the need of the hour.

The head of Task Force Mr. Suresh Prabhu in an interview allayed all fears discussed above. He said that experts in all fields are working to minimize the ill effects of this grandiose plan. He also discussed the global experience on transferring water from one basin to another. He mentioned china’s attempt to transfer major water from the Yang Tse river in the south to the Yellow river and beyond in the north. He said than the plan is being implemented in an eco-friendly manner and that the benefits will surely outweigh the costs.

8. Recommendations For Better Resolution Of

Inter-State River Water Disputes

1. Presently the subject of ‘water’ is in the State list (Entry 17) and under this the state of Karnataka in reaction to the tribunal’s interim order has promulgated ‘Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991’, later replaced waters as required to protect the irrigable acreage in the state. Karnataka’s unilateral legislative action virtually ignored the claims of other riparian states and also led to non-compliance with tribunal’s interim order. Water as a subject in List II though subjected to List I, which speaks about only regulation and development of inter-state rivers and river valleys (List I (Entry56)) but does not speak about irrigation, drainage, canals and water projects. So, to avoid this, the subject matter of water shall be removed from the state list and incorporate in Concurrent List.

2. Further under the Inter State Water Disputes Act, 1956 there shall be an amendment to the extent that a single state cannot unilaterally revoke the bilateral agreement in regard to inter river matters by passing a legislation or promulgating an ordinance.

3. Under the Inter-State water disputes Act, 1956 the tribunal shall be given power of granting Interim order, as the tribunal may deem necessary after receiving such application from the state.

4. A Central quasi-judicial body shall be established under the Inter-State Water Disputes Act, 1956 delegating it the powers of the Supreme Court to reiterate the decision of the tribunal and to see that the final order of such tribunal is being effectively implemented and to refer the same matter of dispute to the tribunal for further investigation if necessary. But this body cannot entertain appeals.

7. Water Law Reforms

A number of water law reforms have been introduced in recent years. They are largely based on the principles highlighted in the previous section. This section highlights three different types of legal interventions. The first is the introduction of independent water regulatory authorities. The second is the introduction of legislation and schemes to foster the participation of users in water services delivery. The third is the introduction of groundwater laws to move away from principles of control over and access to water linked to land ownership.

These three examples constitute some of the most recent legal interventions in the water sector. They have been chosen here partly because of their significance in the broader water sector reform process and partly because they are some of the legal instruments that have been most recently proposed or passed.

I. Managerial Reorganisation

As noted above, one of the central concerns of water sector reforms is to restructure the way in which water services are delivered. One of the avenues suggested to achieve this aim is the setting up of water regulatory authorities that are meant to take over part of the functions of existing government departments.

Andhra Pradesh: The first experiment undertaken in India in this regard took place in Andhra Pradesh where a Water Resources Development Corporation Act was adopted as early as 1997.[22] This Act largely sought to devolve existing governmental powers to a new institutional structure entrusted with the mandate of pushing water sector reforms forward. Since 1997, there has been a lot of thinking in policy-making circles concerning water sector reforms and the type of measures that need to be taken to move the agenda forward. As a result, the latest Act setting up an independent water institution, the Maharashtra Water Resources Regulatory Authority Act, 2005 is quite different from the Andhra one.

Maharashtra: Three main features of the Maharashtra Water Resources Regulatory Authority Act, 2005 are worth highlighting here. These concern the composition of the authority, its powers and the policy framework within which it is called upon to function.

The authority is made of three members and five so-called special invitees. The chairperson of the authority must be an existing or former civil servant. The other two members, however, are meant to be independent experts with special knowledge in the fields of water resources engineering and water resources economy.[23] The five special invitees are to represent five different regions of the state and must be experts in at least one relevant water resource related field. While most of the members and invitees are meant to be independent experts, their appointment is controlled by civil servants since the selection committee is made up entirely of senior civil servants.[24] In comparison to the Andhra corporation, the Maharashtra authority composition is noteworthy for the attempt which has been made to completely exclude political leaders from the power structure. In general, the main shift which can be observed is that the more recent act goes much further in attempting to delink the new body from the government, at least at the level of its membership. In practice, while the Maharashtra act takes a clear stand on paper to insulate the authority from political interference, the bureaucracy still has an important (in) direct role. The actual independence of the authority will thus have to be judged in practice rather than on the basis of the act.

Tasks of the Authority: The Maharashtra authority has been given a number of significant tasks.[25] Its first broad prerogative is to establish a regulatory system for the water resources of the state, including surface and ground waters, to regulate their use and apportion entitlements to use water between different recognised categories of use. Concurrently, the authority has to promote the efficient use of water, to minimise wastage and to fix reasonable use criteria. The authority also has the task of allocating specific amounts to specific users or groups of users according to the availability of water. It is further required to establish a water tariff system as well to fix the criteria for water charges. This is to be done on the basis of the principle of full cost recovery of management, administration, operation and maintenance of irrigation projects.

One of the important tasks entrusted to the authority concerns its role in laying down criteria for the issuance of water entitlements. According to Section 11(g)ii, criteria are to be laid out for the issuance of bulk water entitlements for all the main uses of water including irrigation, rural and municipal water supply as well as industrial water supply. The authority seems to have significant latitude in determining priorities of use among the main uses since the Act does not provide specific guidelines. Another task assigned to the authority is the setting up of criteria for trading in water entitlements or quotas. Since the very idea of trading in water entitlements is novel, the act specifically indicates that the premise for trading is that entitlements ‘are deemed to be usufructuary rights which may be transferred, bartered, bought or sold on annual or seasonal, basis within a market system and as regulated and controlled by the Authority’.[26]

As is apparent from the above depiction of the authority’s powers, these are extensive but confined to a number of specific tasks focusing on the management of existing water infrastructure. This can be compared to the powers that were given at the time to the Andhra Corporation. The latter is endowed with what can be seen as a more diffuse mandate but one which covers a much broader array of functions previously undertaken by the government including the planning, construction and management of irrigation projects, drinking water and industrial water supply schemes.[27] This can be largely explained by the much more direct control exercised by the government in the case of the Andhra Corporation.

With regard to the principles underlying the Maharashtra authority’s activities, the act specifically indicates that the authority must act within the framework of the state water policy and additional principles found in the act.[28] Some principles need to be highlighted at this juncture.

Firstly, the authority has to work on the basis of the polluter pays principle with regard to the question of water quality. This constitutes an important shift towards the integration of environmental principles in the water sector.
Secondly, the volumetric amount of water made available to holders of water entitlements is to be fixed according to specific criteria. These include, for instance, the need for equitable distribution of water between all land holders and the grandfathering of existing private sector lift irrigation schemes for five years.
Thirdly, any person with more than two children has to pay 50 per cent more than the prevailing rates to get entitlement of water for agriculture. These three different elements indicate the breadth of factors that the authority has to take into account.

II. Decentralisation and Participation

In recent years, two of the buzzwords in water policy-making circles have been decentralisation and participation. Two main examples of these specific contexts of participation and decentralisation are introduced here. The first is water user associations (WUAs), bodies that are being introduced in various countries around the world in the name of participatory irrigation management (PIM). The second is Swajaldhara, a programme spearheaded by the union government which is based in the same philosophy as WUAs but focuses more specifically on drinking water. WUAs have been introduced in different forms in different parts of the country and different areas of the world.

However, a number of common characteristics can be identified in many schemes. This includes the fact that WUAs are meant to be governed and controlled by people that both pay for the services the association offers and receive benefits. WUAs are not commercial entities but they have to be financially independent and therefore need to receive an income that is sufficient to allow them not to go bankrupt. Further, WUAs are in most cases subject to regulatory control by the state because they are deemed to provide a service of benefit to the public.[29]

The setting up of water user associations (WUAs) has been taken up with increasing intensity over the past decade and a number of states have introduced WUA legislation. These range from Andhra Pradesh and Madhya Pradesh to Orissa and Rajasthan. These acts have been adopted at different points in time and the schemes proposed have evolved over time even though the basic principles are fairly similar in each situation. This section does not seek to provide a comparative analysis of these different acts and focuses on the latest act adopted in Maharashtra because it is unlikely that other states that are yet to adopt legislation in this field will go back to older schemes.

WUAs under the Maharashtra Management of Irrigation Systems by Farmers Act, 2005 are set up to foster secure equitable distribution of water amongst its members, to maintain irrigation systems, to ensure efficient, economical and equitable distribution and utilisation of water to optimise agricultural production as well as to protect the environment. While the act provides a decentralisation scheme towards farmer involvement in irrigation at the local level, it also gives significant powers to the Maharashtra Water Resources Regulatory Authority or other designated authorities. In particular, they have the power to determine the command area of an irrigation project for which a WUA must be constituted. Further, the same authority can also amalgamate or divide existing WUAs on a hydraulic basis and ‘having regard to the administrative convenience’.[30] In other words, the power granted at the local level is limited by the fact that authorities have the largely discretionary power to make and break WUAs.

In addition to the setting up of WUAs, the union government has proposed a scheme known as Swajaldhara which proposes to foster new types of intervention to ensure better drinking water availability in villages. The guidelines on Swajaldhara are the direct outcome of a World Bank-sponsored pilot project called Swajal and adopt the same philosophy.[31] Apart from the direct link between the World Bank project and the existing Swajaldhara scheme, it is also noteworthy that this potentially significant scheme which now covers the whole country is not part of any legislation submitted to parliament.

The guidelines are meant to foster a change in the role of the government from direct service delivery to that of facilitating activities largely undertaken by people themselves. In other words, the guidelines propose the progressive withdrawal of the state from the provision of the fundamental right to drinking water. The argument put forward by the government is that people perceive water as a fundamental right in part because it has been provided free by the government. The government estimates that the public has therefore not understood that water is scarce and is a socio-economic ‘good’. It is therefore proposed to shift from what is seen as a supply driven approach to one which focuses on the need of end users who will then get the service they want. The fundamental change of approach required by this demand-focused strategy is that people will get the service they ‘are willing to pay for’.[32] In fact, the basic economic rationale of Swajaldhara is that people should be made to pay for part of the capital costs of drinking water projects and for the whole cost of operation and maintenance.

Swajaldhara is premised on a number of principles. Firstly, it proposes the introduction of a demand-focused approach which involves some level of community participation. Secondly, it seeks to devolve ownership of drinking water assets to the appropriate panchayat which are given the power to undertake all activities related to water supply and sanitation from planning to maintenance. Thirdly, Swajaldhara imposes on communities a contribution of at least 10 per cent of the capital costs for a service level of 40 litres for person per day and imposes that they take 100 per cent responsibility for operation and maintenance. It also imposes that the contribution of the community to capital costs should be at least 50 per cent in cash. Further, under Swajaldhara, only individuals or households that make the first 10 per cent contribution will benefit from the schemes being implemented. Other people are simply not part of the scheme.

III. From private to government control: Groundwater

Legislative interventions concerning groundwater are significant for two main reasons. Firstly, from a legal perspective they constitute a major organised attempt at redrawing the rules concerning control and use of groundwater which is still otherwise largely based on common law principles that make it part of the resources a landowner can use largely without outside control. Secondly, they constitute a response to the fact that over time groundwater has in various areas become the most important source of water and provides in particular 80 per cent of the domestic water supply in rural areas and supports around 70 per cent of agricultural production.[33] This strengthens the case for ensuring the sustainable use of groundwater.

Groundwater has until recently largely been governed by old legal principles linked to a large extent to land ownership. Further, like in many other countries, from a legal perspective groundwater has until now been largely treated independently from surface water even though links have increasingly been acknowledged. As a result, until a few decades ago there was little by way of statutory provisions concerning groundwater use and control and the central government’s intervention in this area was even less prominent than with regard to surface water. The increasing use of groundwater has led a spurt of legislative activity which seems to be accelerating.

At the national level, even though the central government would find it difficult to justify groundwater legislation under the constitutional scheme, several attempts have been made over the past few decades to provide a model law that individual states can adopt. The first attempt dating back to 1970 did not have much success since virtually all states ignored it. More recent versions of the model bill, including the latest version unveiled in early 2005,[34] are having more influence on legislative activity because groundwater regulation has become a priority in many states. In fact, several states have proposed groundwater related laws which are related to the model law. This is, for instance, the case of the Kerala Ground Water (Control and Regulation) Act, 2002 and the Delhi Water Board (Amendment) Bill, 2005. As a result, the following paragraphs focus on the model bill since it provides the framework that most states are likely to adopt.

The basic scheme of the model bill is to provide for the establishment of a groundwater authority under the direct control of the government. The authority is given the right to notify areas where it is deemed necessary to regulate the use of groundwater. The final decision is taken by the respective state government.[35] There is no specific provision for public participation in this scheme. In any notified area, every user of groundwater must apply for a permit from the authority unless the user only proposes to use a hand pump or a well from which water is withdrawn manually. Decisions of the authority in granting or denying permits are based on a number of factors which include technical factors such as the availability of groundwater, the quantity and quality of water to be drawn and the spacing between groundwater structures. The authority is also mandated to take into account the purpose for which groundwater is to be drawn but the model bill, mirroring in this the acts analysed above, does not prioritise domestic use of water over other uses.[36] It is noteworthy that even in non-notified areas, any wells sunk need to be registered.

Overall, the model bill constitutes an instrument seeking to broaden the control that the state has over the use of groundwater by imposing the registration of all groundwater infrastructure and providing a basis for introducing permits for groundwater extraction in regions where groundwater is over-exploited. Besides providing a clear framework for asserting government control over the use of groundwater, the model bill also shows limited concerns for the sustainability of use. From this perspective, the model bill and the acts based on it are a welcome development that should provide scope for better control over the use of groundwater in general. However, further thinking needs to be put in making the model bill sensitive to social concerns. Some important provisions are currently missing from the model bill. These include the need to prioritise among uses and to put drinking and domestic water as the first priority. Further, the model bill does not differentiate between small and big users of groundwater, commercial and non-commercial uses and does not take into account the fact that non-land owners/occupiers are by and large excluded from the existing and proposed system which focuses on the rights of use of landowners.

Beyond Water Sector Reforms

The above analysis indicates that the main thrust of the reforms is an attempt to make water an economic good which is to be managed like any other commodity. This constitutes a fundamental change from the existing understanding that water is either freely provided by god or by the state or seen as a common entitlement, a public trust or as a human right.

There is no doubt that reforms of the existing water regulatory framework are necessary to update water law to face the challenges of the 21st century. However, proposed changes not only fail to take into account the various functions of water in society, but also fail to acknowledge that water has always been seen as fundamentally different from natural resources such as coal or timber because availability of safe drinking water to every human being is necessary on a daily basis. The multi-faceted dimensions of water as a cornerstone of human survival, of the survival of all animals and as a basic element contributing to meeting our food needs, irrigation and energy needs and economic development need to be fully integrated into legal instruments.

The reforms that need to be undertaken should be based on the recognition of the special nature of water and its importance as a source of human life and more generally life on earth. Besides the substantive discussion which needs to take place, it is also important to ensure that the process is driven by local, regional and national priorities. This does not in the least exclude the need for collaboration with other countries in relevant areas. However, it indicates that policy making should be overwhelmingly driven by national needs and considerations.

A. The Place of Human Rights

The first and most important element that needs to be reinforced in any water law reforms in the future is the primacy of human rights, not only at the level of basic constitutional principles but also in the more specific measures adopted in relevant acts and regulations. Further, all policy, acts and rules should include a clear prioritisation of water uses giving unambiguous primacy to drinking/domestic water. Water law reforms should be based on a set of basic principles that reflect the importance of water as a fundamental source of life for human beings and most animals. Water is first and foremost a fundamental right of each and every human being.[37] Drinking, domestic and food security related water needs therefore take precedence over uses of water for economic-development related activities.

The human right to water is widely recognised at the international and national levels. This is the case with regard to the recognition of a human right to water per se or the recognition of a human right to water read into existing human rights such as the right to life, health or food. At the national level, the new South African constitution expressly recognises a right to have access to sufficient water.[38] Similarly, in Uruguay, since 2004 the constitution provides that access to potable water and access to sanitation are fundamental human rights. In India, a fundamental right to water has been read into the right to life protected under the constitution. At the international level, the uncertainty concerning the status and content of the right to water that could have existed has largely been laid to rest with the adoption by the Committee on Economic, Social and Cultural Rights of General Comment 15 on the right to water.[39] While the reading of a human right to water as being implied under articles 11 and 12 of the ESCR Covenant does not make the right to water formally binding, it confirms that the right exists in present international law.

The prioritisation of water uses also implies that there must be linkages between what may be separate regulatory regimes dealing with drinking water use, irrigation water use and industrial water use. Water sector reforms that have taken place until now put the emphasis on certain distinct water-related issues. Thus, with regard to rural areas, water sector reforms concentrate on the setting up of WUAs to address issues related to irrigation water.

While irrigation water is one of the prominent issues that need to be addressed in any water reform, current reforms neither put much emphasis on drinking water nor give much scope for further legislative interventions to address drinking water specifically. Two points arise in this context. Firstly, according to the priority list which puts drinking water on top of the list, governments should not undertake any reforms that do not also focus on domestic uses of water. Secondly, it is, for instance, apparent that independent regulatory authorities are meant to comprehensively regulate water uses. However, while these authorities have a broad mandate with regard to the allocation of water in a given state, they do not have any drinking water focus, partly because the way in which they are set up does not easily lead to a drinking water focus.

B. Towards Effective Decentralization and participation

Decentralisation and participation have been two key notions underlying water sector reforms. To a large extent, they provide the rationale for making reforms palatable to most people. As noted above, the kind of participation which is envisaged in the setting up of WUAs is at best restricted because WUAs usually have restricted memberships and because they exist alongside the PRI rather than within the constitutionally sanctioned system. Concurrently, the kind of decentralisation which is envisaged is limited because the power given to local bodies tends to be restricted. Whether it is the possibility that regulatory authorities have to make and break WUAs or the necessity for WUAs to be financially independent, decentralisation as envisaged under existing reforms is as much a burden as an advantage for people to whom the responsibility of taking charge of water infrastructure and services is given.

One of the most important reforms that are required is to make sure that people can hold the government or other service providers accountable. Decentralisation and participation are fundamental to ensuring that people can have an effective say in projects that affect or benefit them and that they can hold the entities undertaking any schemes accountable according to clearly defined principles. Participation is not only a process whereby people are consulted about the acceptance or rejection of a predefined scheme and is not about imposing duties and obligations on people. In the sense of participatory or direct democracy, participation involves much more than thrusting decentralisation on people. It involves a process whereby people can have a measure of control over all aspects of proposed changes, from the definition of a scheme to its eventual adoption or rejection.

Another related issue concerns the scope of decentralisation. Existing water sector reforms are sometimes premised on the fact that involving water users is by definition better than the governance that can be provided by the executive. Firstly, this dichotomy is only relevant as long as local bodies set up to govern access to and use of water are part of the democratic structure of governance instituted under the Constitution. Secondly, statements concerning the need for local governance of water mask the fact that water sector reforms do not actually envisage full control at the local level. At the same time as responsibility for certain aspects of access to and use of water is devolved at the local level, existing water sector reforms also foster the development of big infrastructure and inter-basin transfers as highlighted in the context of the rivers interlinking project. In other words, while there is decentralisation of a limited number of functions, since WUAs or drinking water committees get little control over surface water supply their control is largely dependent on decisions taken at higher levels. This brings up another related point. While decentralisation is absolutely necessary, it is neither possible to conceive water governance exclusively at the local nor exclusively at the national level. Water needs to be jointly regulated at all levels concurrently given the multiple linkages between local, state, national and international water availability.

9. Conclusion

Conflicts relating to water-sharing in the sub-continent, whether Inter-State or International, are more emotional than technical and not always based on needs.

In India water is one of the three most emotional issues apart from religion and language. The ranking of these issues is location-specific.

The political system of India is based on multi-party democracy. Every political party gives a top slot to water resources development in its election manifesto.

Every candidate contesting the elections promises a water project to his constituents. The availability of water is seldom taken into consideration when making these electoral promises. Non-availability can always be attributed to some one upstream who can be shown as having appropriated all the water, a ripe case for conflict. Water is an easily exploitable issue in electoral politics.

Constitutionally and legislatively, Indian inter-state river dispute settlement procedures involve either of two processes: negotiations and compulsory legal adjudication. Furthermore, there is room for voluntary processes such as mediation, conciliation and voluntary arbitration, often by the prime minister or other members of the central government. Such processes do not foreclose arbitration or adjudication on specific areas of conflicts, which remain unresolved after mediation and conciliation. Guhan suggests that mediation and conciliation do not have enough scope in resolving water disputes, and that "adjudication inevitably leads to adversarial positions and maximal claims"[40]. Iyer points out that this criticism of adjudication misses the point, since the difficulty of reaching an agreement may be structural, and assisted negotiations (that is, conciliation and mediation by a third party) may be as problematic as unassisted negotiations.[41] He emphasizes the importance of goodwill, and willingness to accept an "objective settlement", but does not really come to grips with the structural issues. On the other hand, legal adjudication under the ISWD Act, is a non-voluntary imposed procedure, but it, or some similar externally imposed procedure, may be necessary in situations where the dispute is conflictual in nature, and not over sharing the potential gains of a mutually beneficial exchange. The real issue in such cases is setting up adjudicatory processes or institutions that all parties can agree ex ante to be bound by ex post, and focussing on voluntary negotiations may be somewhat misguided.

An essential point to note is that the processes and institutions as they currently exist for resolving inter-state river disputes are not well-defined or definite enough. There are too many options, and too much discretion at too many stages of the process. Since water is being more and more fully utilized, the possibility of disputes of the conflictual nature arising increases, and it is crucial that the dispute resolution mechanism be better defined, in terms of the order of the steps to be taken. Of course, parties to a negotiation can continue to bargain in such cases, and even reach an agreement, as has happened in the case of the Godavari dispute. In fact, the existence of an expected outcome from adjudication may provide a somewhat definite disagreement point, and help to convert a conflictual situation to one of bargaining over (expected) mutual gains. Given this option, a possible recommendation would be the automatic and immediate referral of any dispute to a tribunal if requested by the center or any party to the dispute, with the tribunal bound to ratify any agreement reached by negotiation before it had delivered its decision.[42]

Even though political leaders concede in private that river water development should be the National Government's responsibility, the same leaders take the opposite stand in public. They are supportive of Integrated Water Resources Management in private, but in public their position is: "Give us our share (means all the water demanded). We know best what to do."

The process of resolving inter-water disputes and of allocating water has been made inefficient by being entangled in more general issues, including nature of Indian federalism. this inefficiency is the central concern.

What can be done is creating a hierarchy of water management institutions, with river basin authorities being the next step down from the national commission. These institutions have the task to allocate water across states including the resolutions. These institutions would respect the federal structure of the country but will have greater degree of independence and transparency than the current situation.

These institutions will

ü Clarify and streamline procedures

ü Reduce delays

ü Improve enforcements of the awards of the tribunals

The proposed institution can treat Murray River Commission (MRC) in Australia as its guide. In MRC, the states and the Central Government have equal representation. Each state will have its representative from a major rural water management authority, while the central representative is a senior civil servant.

This is not to suggest that MRC is a perfect model. But, however this seems to be a feasible improvement over the current situation.

The tasks performed by these national level water institutions are as follows:

Ø Dispute resolution

Ø Perspective planning

Ø Information gathering

Ø Maintenance

The said tasks are currently scattered among tribunals, NWRC, NWDA.

One stumbling block will, of course will be the reluctance of ministries, including politicians and bureaucrats, to give up power over decision-making.

These institutions will be independent of daily political pressures, a federated structure incorporating river basin authorities and water user associations, and fixed time periods for negotiation and adjudication.

Off-late, local governments have been strengthened by recent legislations, which indicates significant, potentially positive institutional change in India. This can help resolve problems of inter-water disputes.

BIBLIOGRAPHY

Books

1. Dhillon, P.S., A Tale of Two Cities, (Chandigarh: Dhillon Publishers, 1983)

2. Guhan, S., The CauveryDispute:Towards Conciliation,( Madras:Kasturi & Sons,1993)

3. Shah, R.B, Inter-state River Water Disputes: A Historical Review, 175-189, (1994)

4. Bakshi, P.M., Constitution Of India, Universal Law Pub. Co. Pvt. Ltd., (2002)

5. Ramana, M.V.V, Inter-State River Water Disputes In India,(Madras: Orient Longman,1992)

6. Seervai H.M., Constitutuional Law of India – A Critical Commentary, Universal Trade Books, 4^th ed. (1997).

Statutes:

1. Constitution of India, 1950

2. Andhra Pradesh Water Resources Development Corporation Act, 1997

3. Maharashtra Water Resources Regulatory Authority Act, 2005.

4. Maharashtra Management of Irrigation Systems by Farmers Act, 2005.

5. Model Bill to Regulate and Control the Development and Management of Ground Water, 2005

6. Kerala Ground Water (Control and Regulation) Act, 2002

7. Delhi Water Board (Amendment) Bill, 2005

8. Andhra Pradesh Farmers Management of Irrigation Systems Act, 1997;

9. Madhya Pradesh Sinchai Prabandhan Me Krishakon Ki Bhagidari Adhiniyam, 1999;

10. Orissa Pani Panchayat Act, 2002

11. Rajasthan Farmers’ Participation in Management of Irrigation Systems Act, 2000

12. Madhya Pradesh Regulation of Waters Act, 1949.

Policies, Guidelines, Commission Reports and International Instruments:

Rajasthan State Water Policy, 1999
Uttar Pradesh Water Policy, 1999.
National Water Policy, 2002
National Water Policy, 1989
Maharashtra State Water Policy, 2003
Karnataka State Water Policy, 2002
ICCPR
ICESCR
Planning Commission, Report of the Committee on Pricing of Irrigation Water (1992), Planning Commission, ‘Rural Water Supply and Sanitation’, in 10th Five Year Plan (2002-2007).
World Bank, Implementation Completion Report (CPL-40560; SCL-4056a) on a Loan to the States of Uttar Pradesh and Uttaranchal for Uttar Pradesh and Uttaranchal Rural Water Supply and Environmental Sanitation (Swajal) Project (Report No. 27288, November 2003)
World Bank, Project Appraisal Document on a Proposed Loan to the Republic of India for the Maharashtra Water Sector Improvement Project (Report No. 3 1997-IN, 2005), p. 6.
World Bank, India – Water Resources Management Sector Review – Report on the Irrigation Sector (Report No. 18416-IN, 1998).
United Nations World Water Development Report – Water for People, Water for Life (United Nations, Doc. E.03.II.A.2, 2003).
World Bank, Staff Appraisal Report – Uttar Pradesh Rural Water Supply and Environmental Sanitation Project (Report No. 15516-IN, 1996).
Government of India – Ministry of Water Resources, Resolution No.2/21/2002-BM, New Delhi, 13 December 2002.
Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment, Dublin, 31 January 1992.
World Bank, India – Water Resources Management Sector Review – Report on the Irrigation Sector (Report No. 18416 IN, 1998).
Ministry of Rural Development, Guidelines on Swajaldhara, 2003
Government of India – Ministry of Water Resources, Resolution No.2/21/2002-BM, New Delhi, 13 December 2002.

Reports

13. Government of India, Sarkaria Commission Report on Centre-State Relations

14. Reddy Report on Interlinking of Rivers.

Articles

1. Judicial Process Vis-à-vis Inter-State River Water Disputes, Annual Survey of India Law, page. 211 (1991)

2. Alan Richards & Nirvikar Singh, Water and Federalism: India's Institutions Governing Inter-State River Waters, Department of Economics University of California, SantaCruz June 1996

3. Bardhan, Pranab, The Political Economy of Development in India, Oxford: Basil Blackwell (1984).

4. Coase, R., "The Problem of Social Cost", Journal of Law and Economics, 1, 1-44 (1960)

5. Religion, philosophy, and literature, http://vasatwiki.icrisat.org/index.php/Water

6. Phillipe cullet, water Law Reforms, Analysis of recent Developents, 48/2 Journal of the Indian Law Institute (2006), p. 206-231.

7. Ashok Gulati, Ruth Meinzen-Dick & K.V. Raju, Institutional Reforms in Indian Irrigation 202 (New Delhi:Sage, 2005)

8. Rakesh Hooja, ‘Below the Third Tier: Water Users Associations and Participatory Irrigation Management in India’, Indian Journal of Federal Studies (1/2004), available at http://www.jamiahamdard.edu/cfs/jour4-1_4.htm.

9. Judicial Process Vis-à-vis Inter-State River Water Disputes, Annual Survey of India Law, page. 211 (1991)

10. Alan Richards & Nirvikar Singh, Water and Federalism: India's Institutions Governing Inter-State River Waters, Department of Economics University of California, SantaCruz June 1996

11. Bardhan, Pranab, The Political Economy of Development in India, Oxford: Basil Blackwell (1984).

12. Coase, R., "The Problem of Social Cost", Journal of Law and Economics, 1, 1-44 (1960)

Web sources

1. www.parliament.nic.in

2. www.thehinduonline.com

3. www.angelfire.com/bc/nihhrrc/NWP.html

[1] Religion, philosophy, and literature, http://vasatwiki.icrisat.org/index.php/Water

[2] http://en.wikipedia.org/wiki/Water

[3] Ramana, M.V.V, Inter-State River Water Disputes In India,(Madras: Orient Longman,1992)

[4] Ibid.

[5] Iyer, R.R., Federalism and Water Resources,Economic and Political Weekly, March 26,1994,733-735

[6] Bakshi, P.M., Constitution Of India, Universal Law Publishing Co. Pvt. Ltd. New Delhi

[7] www.econ.usc.edu/~boxjenk/waterdom.pdf, as visited on 2^nd May, 2003

[8] Ibid.

[9] www.gee21.org/Char%20and%20Reddy%20Water%20Sharing%20Conflicts.pdf, as visited 30^th April, 2003

[10] Supra note 7.

[11] Supra note 7.

[12] http://www.angelfire.com/bc/nihhrrc/NWP.html, as visited on 25^th May, 2003

[13] Administrative Reforms Commission (1967-68), Volume II, pp. 126-134

[14] Ibid

[15] www.gee21.org/Char%20and%20Reddy%20Water%20Sharing%20Conflicts.pdf, as visited 30^th April, 2003

[16]Helsinki rules are the best-known attempt to formulate principles for equitable allocation in the context of international water disputes. The International Law Association adopted these in 1966 at Helsinki. These rule extend up to 37 articles. Articles 4 and 5 cover procedures for preventing and settling disputes. According to article 4, “ each basin is entitled, within its territory, to a reasonable and equitable share in the beneficial use of water of an international drainage basin”. Article 5 sets out 11 factors, which will determine what is reasonable and equitable share. The 11 factors are:

1. The geography of the basin, including the extent of the drainage area in the territory of each basin state.

2. The hydrology of the basin, including the contribution of water by each basin states.

3. The climate affecting the basin

4. The economic and social needs of each basin state

5. The population dependant on water of each basin state.

6. The comparative costs of alternative means of satisfying the economic and social needs of each basin state.

7. The availability of other resources.

8. The avoidance of unnecessary waste in the utilization of waters of the basin.

9. The practicability of compensation to one or more of the co-basin states as a means of adjusting conflicts among uses.

10. The degree to which each basin state may be satisfied without causing substantial injury to a co-basin.

11. The past utilization of the waters of the basin, in particular existing utilization.

[17] Ibid.

[18] Shah, R.B, Inter-state River Water Disputes: A Historical Review, 175-189, (1994)

[19] Guhan, S., The CauveryDispute:Towards Conciliation,( Madras:Kasturi & Sons,1993)

[20] This term refers to irrigation works

[21] Dhillon, P.S., A Tale of Two Cities, (Chandigarh: Dhillon Publishers, 1983)

[22] See Andhra Pradesh Water Resources Development Corporation Act, 1997 (hereafter Andhra Water Corporation Act)

[23] Section 4(1), Maharashtra Water Resources Regulatory Authority Act, 2005.

[24] Section 5(1), Maharashtra Water Resources Regulatory Authority Act, 2005.

[25] Section 11, Maharashtra Water Resources Regulatory Authority Act, 2005.

[26] Section 11(i)i, Maharashtra Water Resources Regulatory Authority Act, 2005.

[27] Section 18, Andhra Water Corporation Act

[28] Section 12, Maharashtra Water Resources Regulatory Authority Act, 2005.

[29] See Stephen Hodgson, Legislation on Water Users, Organizations – A Comparative Analysis (Rome: FAO, FAO Legislative Study 79, 2003).

[30] Section 5(5), Maharashtra Management of Irrigation Systems by Farmers Act, 2005.

[31] On the Swajal project, see, e.g., World Bank, Staff Appraisal Report – Uttar Pradesh Rural Water Supply and Environmental Sanitation Project (Report No. 15516-IN, 1996).

[32] Section 1(2), Ministry of Rural Development, Guidelines on Swajaldhara, 2003.

[33] United Nations World Water Development Report – Water for People, Water for Life (United Nations, Doc. E.03.II.A.2, 2003).

[34] Model Bill to Regulate and Control the Development and Management of Ground Water, 2005 [hereafter Model Bill].

[35] Section 5, Model Bill, note 41 above.

[36] Section 6(5)a, Model Bill, note 41 above only provides that the purpose has to be taken into account while Section 6(5)h which is the only sub-section referring to drinking water only considers it as an indirect factor.

[37] Committee on Economic, Social and Cultural Rights, General Comment 15: The Right to Water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/2002/11 (2002) [hereafter General Comment 15].

[38] Section 27(1)b, South Africa – Constitution, 8 May 1996.

[39] General Comment 15, note 47 above.

[40] Guhan, S., The CauveryDispute:Towards Conciliation,( Madras:Kasturi & Sons,1993)

[41] Iyer, R.R., Federalism and Water Resources,Economic and Political Weekly, March 26,1994,733-735

[42] Supra note 1.

Legal and Law School Education

Saturday, September 21, 2013

Inter state River Water Disputes

3. Water in Constitution Of India

Water Laws and Customs:

Water Laws

4. Institutional development of the federal water bodies of India (History)

Standing Committee on Inter-State Issues in Water Resources

The Sarkaria Commission on Centre- State Relations

National Water Policy, 2002

5. India’s Experience

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