Intricacies of the Inter-State Water Dispute Act, 1956

Inter-State Water Dispute Act
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Introduction

Background: There are 25 major river basins in India, with the majority of rivers flowing across state lines. The center has to indulge to make a coordinated strategy for the sustainable use of river water since it is a shared resource. Inter-state disputes in India’s federal political structure necessitate the engagement of the Union government for a federal solution at two levels: between the states involved and between the Centre and the states.

Problem: However, contradictory notions of property rights, inadequate economic mechanisms for food security, a lack of an integrated ecosystems approach, and the prevalence of reductionist hydrology for water resource development have turned interstate rivers in India into battlegrounds. Such disputes over the custody and control of river water have existed since the establishment of the Indian republic, with settlement taking a long time due to historical, institutional, and political issues. Increased water scarcity, a rapid increase in urban and rural demand for freshwater, and difficult political dynamics have all aggravated the problem in recent years.

Constitutional Provisions Relating To Inter-State Waters and Their History

Legislative competence

  • According to the Indian Constitution, states have the authority to act (State List, Entry 17) on the following topic: “Water, that is, water supplies, irrigation and canals, drainage and embankments, water storage, and water power, subject to the provisions of Entry 56 of List 1.”
  • Union list, entry 56, states: “Regulation and development of inter-State rivers and river valleys, to the extent that such regulation and development under Union control is declared by Parliament by law to be expedient in the public interest.”

Article 262

The following is an excerpt from Article 262 of the Constitution: “262. Adjudication of disputes involving interstate rivers or river valleys:

  1. Parliament may, by law, legislate for the resolution of any dispute or complaint relating to the use, distribution, or control of any interstate river or river valley’s waters.
  2. Notwithstanding anything in this Constitution to the contrary, Parliament may, by law, provide that neither the Supreme Court nor any other court shall have jurisdiction over any such dispute or complaint referred to in subsection (1).” [It should be noted that the “conflict” does not have to be between states.]

The Inter-State Water Disputes Act, 1956

The Inter-State Water Disputes Act, 1956, was adopted by Parliament using the authority granted by the Constitution (article 262). Its primary characteristics are as follows:

  1. A State Government with a water dispute with another State Government may seek that the matter be referred to a tribunal for adjudication by the Central Government.
  2. If the Central Government feels that the disagreement cannot be addressed through dialogue, the case shall be sent to a Tribunal.
  3. The composition of the Tribunal is specified in the Act. It is made up of a Chairman and two other members who are chosen by the Chief Justice of India from among Supreme Court Judges at the time of their appointment.
  4. The Tribunal may select assessors to assist it in its procedures.
  5. Following the Central Government’s referral, the Tribunal investigates the case and issues its report, which includes its conclusion. The decision will be made public, and it will be final and binding on all parties involved.
  6. Jurisdiction of the Supreme Court and other courts in respect of the dispute referred to the Tribunal is barred.
  7. The Central Government may devise a scheme to provide for all matters required to give effect to the Tribunal’s ruling. The scheme may, for example, arrange for the establishment of an implementing authority (section 6A).

Disputes in India Concerning Inter-State River Water

Constitutional history

Some of the disputes over such rivers stretch back to the nineteenth century, to a time when (British) India was controlled by laws that predated even the Government of India Act, 1919. Some date back to the time when British India was governed by the Government of India Act of 1919 or the Government of India Act of 1935. Many similar situations have been handled by Tribunals established after the Constitution’s commencement under Article 262 of the Constitution, as read with the Inter-State Water Disputes Act of 1956.

The Ravi dispute

On the basis of equitable distribution, the State of Haryana asserted a claim to 4.8 out of 7.2 MAF (the entitlement of the composite Punjab State). The new state of Punjab, on the other hand, made no concessions to Haryana, citing the fact that Haryana was not a riparian state. The Union Government, in accordance with Section 78 of the Punjab Reorganisation Act of 1966, granted 3.5 MAF to each party and 0.2 MAF to Delhi. It was also discovered that with additional exploitation, it would be able to increase the allocation by 0.617 MAF, in which case Haryana would have an additional entitlement. The Sutlej Yamuna Link (SYL) scheme was proposed in order to fully use the water allotment to Haryana under this legislative decision.

Aggrieved Punjab petitioned the Supreme Court to overturn the statutory judgment. Haryana, on the other hand, petitioned the same Court to compel Punjab to comply. Meanwhile, on December 31, 1981, the Chief Ministers of Punjab, Haryana, and Rajasthan reached an agreement under which it was agreed that from the surplus waters of the Ravi-Beas allocated to Rajasthan (namely, 8.5 MAF), the unutilized portion could be used by Punjab, whose normal share would otherwise be 4 MAF, until that State was able to use its full share. It was also agreed that the SYL canal will be built in Punjab within two years. The Supreme Court challenges were dismissed, and Punjab issued a White Paper on April 23, 1982, praising the Agreement, which resulted in an increase of 1.32 MAF of waters to Punjab over the allotment granted by the Central Government (the allocation to Haryana remaining unchanged).

Satluj Yamuna Link Canal Issue 

The problem stems from a conflict between Punjab and Haryana following the creation of Haryana in 1966. Punjab, Haryana, and Rajasthan are the parties involved. A canal connecting the Satluj and the Yamuna was proposed and began building in 1982 to allow Haryana to use its portion of the Satluj and Beas rivers. Due to Punjab’s appeal, a tribunal was established in 1986, which issued a judgment in 1987 recommending that Punjab’s share be 5 Million Acre Foot (MAF) of water and Haryana’s share be 3.83 MAF. Punjab appealed the decision, claiming that the tribunal overstated the availability of water. In 2002, Haryana petitioned the Supreme Court for permission to build the SYL canal. The Supreme Court ordered Punjab to complete the canal work within 12 months. The Punjab Assembly approved the Punjab Termination of Agreements Act in July 2004, thereby cancelling water-sharing agreements with other states and jeopardizing the canal’s completion. The Supreme Court ruled in 2016 that this Act was unconstitutional based on President Advice (Article 143). As a result, the Punjab Assembly approved an Act requiring that the land acquired for the canal be denotified and restored to the original owners. The Supreme Court has ordered Punjab and Haryana to maintain the status quo in the Sutlej Yamuna Link canal dispute.  During a recent session, the Centre volunteered to act as a mediator for both Punjab and Haryana.

Federal consensus & electoral consensus

Because “federal consensus” can only be created when the parties involved see it as politically advantageous, institutional confidence-building is a crucial requirement for ISWDs to generate such consensus. This might result in an institutional politicization of the disagreement within the federal framework, where political actors can deliberate at the institutional level while keeping the political viability of a potential solution in mind. It remains to be seen whether the RBA, as envisioned in the draught River Basin Management Bill, 2018, can make room for the Governing Council’s political actors. Now that India has entered the “second dominant party system,” with interactions between the Centre and Opposition-ruled states becoming increasingly heated, federal interactions on river water control must be attentively examined.

In states where river water disputes have taken on greater political aspects of regional identity and autonomy, electoral unanimity is equally vital. It is possible to do this through the “positive politicization” of the issue, which can only occur when the population is made aware of the actual economic and environmental costs of protracted battles. The political discourse of regional identity and culture must be unraveled by bringing to public attention the developmental stumbling blocks, economic losses, and environmental damage caused by the dispute’s failure to be resolved. Political parties, on the other hand, which are the primary mass mobilizers and agenda-setters, will have little immediate reason to engage in such constructive politicization. Instead, other institutions must generate the narratives: the media, civil society, academia, and grassroots social, political, and environmental activists. To develop an electoral consensus, the benefits of a compromise-induced conflict resolution must be made clear to the public and contrasted with the possible costs of prolonged ISWDs. Despite its delicate nature, the practice of ‘positive politicization’ of such a contentious issue as river water would be beneficial in the long term. This, in turn, will aid in achieving federal agreement. In the framework of ISWD resolution, the emphasis should be on improving current and emerging institutional systems, as well as accommodating political sensitivities, in order to identify a long-term and mutually agreeable path for interstate river water governance.

Suggestions

The existing institutional difficulties and political imperatives inside the Indian federal system constitute a daunting obstacle to establishing a fully independent long-term river water administration mechanism. The biggest concern is how the RBO will maintain its independence if the ruling parties at the Centre and in the states opt to prioritize their own vested interests. In some situations, the RBO may be forced to penalize concerned parties for failing to follow its consensus-based judgments.

Cooperation requires the interaction of politics, in addition to the establishment of institutions at the river basin level, because river basins are as much a political entity as they are a natural one. It has already been established that the path of litigation and adjudication for settling conflicts between warring governments can become exceedingly contentious. This frequently leads to either non-implementation or delayed/inadequate execution of tribunal or court rulings. As a result, developing an alternative to political bargaining is the only long-term and sustainable solution to river water problems in India, requiring political will to establish an acceptable consensus for mutually agreed-upon river-water sharing.

Conclusion

Consensus on river governance must be obtained at two levels at the same time: federal and electoral (for resolution at the site of mass politics). A viable solution must recognize the need for confidence-building in India’s federal dynamics, both between the Centre and the states and among the states. Consensus-building must take place in an institutional structure that ensures equal representation of states and is based on persistent political discourse. Mutual mistrust have frequently derailed the process of political discussions in the past, particularly in states governed by rival political parties or coalitions, and in the case of states run by parties opposed to the national ruling party. These animosities have harmed the effectiveness of current institutional systems.

India has 2.4 percent of the world’s land, 18 percent of the world’s people, but just 4% of the world’s renewable water resources. If adequate measures are not done, the uneven distribution of water will raise the potential of water conflicts. Inter-state river water disputes impede our nation’s cooperative federalism and foster a provincial worldview in which regional matters take precedence over national issues. It is important to recognize that our country is a family, with all states as members. As a result, disagreements must be settled by debate and discussion, and political opportunism must be avoided.

References

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