Inter State River Water Disputes

India’s unique federal structure has offered diverse constitutional and political problems for the judiciary and the executive. A particular headache for the powers that be has been to resolve issues of inter-state water disputes. The constitutional provision for inter-state water disputes laid down in Article 262 of the Constitution was derived from Sections 130-134 of the Government of India Act, 1935. Section 131 of the Act empowered the Governor General to refer any dispute to a Commission while Section 134 explicitly barred the jurisdiction of all courts in respect of water disputes covered by Sections 131-133. [1] Article 262 of the Constitution provides for a specific law enacted by Parliament to adjudicate these disputes and barring the jurisdiction of all courts, including the Supreme Court, on the same. Apart from this provision, water, as a subject-matter, occupies Entry 56 and Entry 17 of List I and List II respectively. While Entry 17 of List II gives the State Legislature exclusive power to legislate on water-related infrastructural projects [2] like irrigation, drainage, storage and power; that power is subject to Entry 56 of List I which gives the Parliament exclusive power notwithstanding anything in the Constitution [3] , to legislate on regulation and development of inter-state rivers and river valleys as has been declared by law to be in the public interest [4] . The only legislation dealing with inter-state water disputes is the Inter-state Water Disputes Act, 1956. In this essay, I will argue that the constitutional provision of keeping the Supreme Court out of the decision making process, though enacted with cogent reasoning, is flawed and has not been effective. In Part I, I will give a brief descriptive analysis of Article 262 with the help of various case laws. In Part II, I will highlight a particular and quite controversial case, namely the Cauvery Water Dispute and with its help I will draw attention to the fact that the constitutional provisions and the resulting legislative undertakings have failed miserably in quick and fair disposal of such cases. In Part III, I conclude by suggesting how the arrangement in general and Article 262 in particular needs to be amended to ensure speedy resolution of inter-state water disputes.

Part I: Arrangement envisaged under Article 262

Clause (1) of the Article lays down a very general provision for adjudicating such disputes. The words Parliament may by law neither imposes an obligation on the Central legislature nor does it provide for any sort of a definitive arrangement of dealing with such issues. Again, it is pertinent to note here that these extra-constitutional arrangements, whatever they might be, will only relate to disputes regarding the use, distribution or control of the waters of any inter-state river or river valley [5] . Disputes outside this ambit are not subject to Clause (1) of Article 262 and therefore the Supreme Court cannot be subject to the limitation provided under Clause (2). This view was laid down by a 3 judge bench of the Supreme Court in State of Karnataka v. State of Tamil Nadu [6] when the appellant state raised the contention that the Supreme Court had no jurisdiction to decide the case as a result of Article 262 read with Section 11 of the Inter-state Water Disputes Act, 1956. [7] Rejecting the argument, the Court held that the exclusion of jurisdiction was only limited to the use, distribution or control of the waters of any inter-state river or river valley as envisaged under Article 262 and in the matter presented the Court was called upon to examine and interpret a statutory enactment and it was well within the powers of the Court to do so. [8]

It is important to note that states can only raise disputes in certain circumstances [9] . First, states can complain if a right, acquired either by agreement or by custom, has been infringed. Secondly, if flood waters from another State are discharged into the aggrieved State causing nuisance that can be a valid point of dispute. These are the only two cases in which States can validly raise concerns and ask the Central Government to intervene. [10]

The above discussion calls for a very obvious question which is the reason why Article 262 has been framed the way it has. If it hadn’t been for Article 262, states could have approached the Supreme Court invoking its original jurisdiction under Article 131. There is an argument that since river water is a fugitive resource; it does not belong to any one state so effective adjudication on definite property rights is not possible. Furthermore, since the dispute concerns not just private parties but the benefit of entire States, adversarial litigation is not feasible. Even though one accepts the premise, it is very difficult to accept the given solution. The favoured solution has been a ‘friendly discussion between parties keeping the national interest at heart’, which is in effect, a political settlement. This has only led to intense politicisation of these issues especially with the change in the political scenario of the respective states [11] . To illustrate, the Cauvery water dispute reached its zenith at a time when the Centre, the respective states of Karnataka, Tamil Nadu and Kerala were ruled by different political parties.

Politicisation and scant regard of implementation of tribunal awards was exemplified by the conduct of the Government of the State of Punjab when it refused to fulfil its obligations in digging up the Sutlej-Yamuna Link (SYL) Canal and was consequently faced with a suit filed by the State of Haryana. [12] In that case, the State of Punjab sought to take advantage of the exclusionary clause of Section 11 of the Inter-State Water Disputes Act, 1956 read with Article 262 of the Constitution which would have left the State of Haryana without any recourse to judicial remedy. However, the Supreme Court held otherwise and said that fulfilment of obligations pursuant to a Memorandum of Settlement signed in 1985 were enforceable by an order of the Court and this had nothing to do with water disputes per se. [13] Undeterred, the State of Punjab did not even comply with this order of the Supreme Court even as its application for a review was rejected. The State of Haryana filed an application for implementation of the judgement while the State of Punjab filed a suit praying that the judgement was not enforceable as it was not decided by a Constitutional Bench under Article 145(3). The Court found in favour of the State of Haryana [14] but the dispute regarding the Sutlej-Yamuna link canal is far from over.

Part II: The Cauvery Dispute: An exercise in futility

The Cauvery river dispute was not an unexpected development. The old princely state of Mysore and the Madras Presidency had been at loggerheads for decades before the Independence over sharing of the Cauvery waters. Two agreements were hammered out of intense negotiations between the two entities, one in 1890 and the other in 1924 [15] . After independence, 26 meetings were held between 1968 and 1990 [16] before the Supreme Court in Tamil Nadu Sangam v. Union of India [17] directed the Central Government to establish what is now known as the Cauvery Water Disputes Tribunal by virtue of the Inter-state Water Disputes Act, 1956. However, some issues which arose in that case laid bare the loopholes in the Act. The petitioners had filed a writ application praying that the Court issue a writ of mandamus to the Central Government to establish a tribunal under the Act and prohibit the State of Karnataka from constructing artificial contrivances to regulate the flow of water. The Court had to decide whether the Central Government had formed the opinion that negotiations were not possible and the matter had to be referred to the tribunal. Consequently, the Court then asked the Central Government and only then did the Court come to the conclusion that the Central Government had to establish a tribunal. Section 4 of the Act which empowers the Central Government was therefore totally bent on the will of the Central Government [18] . If the Centre had declared that it had not formed any such opinion, such matters could and did, as in the case of Cauvery, go on for years. The main point of dispute between the states was that Tamil Nadu wanted to go back to the 1890 and the 1924 agreements while Karnataka argued that those were unfair and had no bearing since the State of Karnataka had no political existence back then. In 1991, the Cauvery Tribunal issued an interim order much to the chagrin of the Karnataka Government which promptly promulgated an ordinance that effectively nullified the Tribunal’s award. The matter came up to the Supreme Court through a Presidential reference in In re Cauvery Waters Tribunal [19] . The State of Karnataka argued that the ordinance was well within its competence by virtue of Entry 17 of List II. Invalidating this argument, the Supreme Court held that legislation on adjudication of disputes relating to inter-state water disputes were wholly mandated to the Act which did not bear any resemblance to either Entry 17 of List II or Entry 56 of List I [20] . In fact, the Act had its genesis solely from the provisions of Article 262 and no other constitutional provision was related to it. The ordinance was held unconstitutional because it adversely affected the jurisdiction of the Act-appointed tribunal and also because it was beyond the judicial powers of the State as no legislature could pass a law which changed a decision inter se. Thereafter, the Centre appointed the Cauvery River Authority and a host of talks were hold before the Tribunal finally delivered its report on the 5th of February, 2007. [21] But the final award did not put an end to the dispute as the States of Karnataka, Tamil Nadu and Kerala filed appeals against the award in the Supreme Court which are still pending [22] . If one accepts the premise, that river water disputes are sensitive in nature and hence adversarial litigation is not feasible, then the question to be asked here is why is the award appealable. One wonders if the Supreme Court is in any way better positioned to handle a matter of such legal-technical magnitude as this than a specialised Commission especially set up for the job. Since the Supreme Court admitted the appeals, the final award was not gazetted effectively dragging on the dispute further. Barring the jurisdiction all courts including the Supreme Court comes to nought when states can stall the judicial process through such means. By the amendment in 2002, the parties could have referred the appeal to the Tribunal itself and the Tribunal could have disposed of the matter accordingly [23] . Going to the Supreme Court and hindering every possible solution smacks of political one-upmanship, characteristic of the country. Indeed, the four entities, Karnataka, Kerala, Tamil Nadu and Puducherry, could have settled the issue, looking at it from a basin-wide perspective as these disputes are mostly collective action problems [24] . The political will to do that, however, was sadly missing. The Supreme Court’s role in admitting the special leave petitions also helped the cause of the States. Under Article 136, the Supreme Court has discretion in admitting special leave petitions and it could have exercised that discretion in holding that the tribunal was the final adjudicator in this regard and resolved the dispute quickly. [25]

The reasons why the Cauvery water dispute turned out the way it did can be attributed to a number of factors, a few of which are given below [26] :

The dispute was often the single-point agenda of political parties contesting elections in both Tamil Nadu and Karnataka. Intense politicisation of this sensitive issue made conciliatory measures impossible, with parties often bypassing the jurisdiction of the Tribunal and going straight to the Supreme Court. [27] Research suggests that in the recent years, all parties, especially in Karnataka, whether ruling or in opposition, have adopted a no-compromise attitude in this respect [28] . While this has been crucial in garnering votes as farmers from the Cauvery district do have an important say in the electoral politics of both states [29] , it has ruled out all possibility of bringing the warring states to the negotiating table so that an amicable settlement can yet be worked out.

The Cauvery problem exemplifies the topsy-turvy nature of federal politics. It also illustrates how and why a strong Central Government is needed so that such disputes are never referred to a tribunal [30] . Indeed, that is the best-case scenario that all stakeholders should aim at as protracted litigation would hurt all parties. However, to ensure that such negotiations go on and the states concerned come to a compromise solution, a determined Central Government with the will to solve such disputes is needed. Sadly, however, the successive Central Governments at the helm have proved to be quite ineffectual when dealing with such cases. In the late 80s and early 90s when the Cauvery dispute reached boiling point, the Government at the centre was ruled by weak coalition governments, led by V.P. Singh, Chandrashekhar and then P.V. Narsimha Rao, who could ill-afford to displease coalition partners and party members who had high stakes in the dispute.

The focus has strangely been on absolute quantities of water which is absurd to say the least as the quantities would obviously vary due to a number of factors. First, the Cauvery is not a Himalayan river and therefore it cannot depend on glaciers as its source of water supply. Secondly, as the river is wholly dependent on the Monsoon, its water flow would obviously vary through the different seasons. What was required was a percentage allocation of riparian rights which would keep the allocation constant regardless of the actual flow of water. Unfortunately, the Tribunal did not consider this problem and awarded a final allocation of absolute amounts every year which would again give rise to problems if and when the water flow decreases. [31]

Part III:Suggestions: The way out of this mess

I would deal with this part in two phases; first, I would deal with the legislation itself, that is, the Inter-state Water Disputes Act, 1956, and then I would deal with Article 262 of the Constitution.

Before the amendment of 2002, the Central Government could effectively sit on the request by State Governments for the constitution of a tribunal as no time period had been mentioned [32] . While the Administrative Reforms Commission recommended a time period of 3 years, the Sarkaria Commission was more pressing and recommended a time period of only 1 year by which a Tribunal had to be set up. [33] Accordingly, through the amendment in 2002, Section 4 of the Act was amended mandating the Centre to set up a tribunal within a year. Though this indeed is a step in the right direction, the recommendations also spoke about how the Central Government itself needs the power to constitute tribunal suo motu as States often prolong these disputes because of electoral politics. The Act does provide for a single instance in which this case is possible and this is the case of the Ravi-Beas Tribunal but apart from this, the Centre has no power whatsoever to constitute tribunals on its own and therefore, an amendment to this effect is necessary. The arrangement created under the Act does not provide for a foolproof mechanism of enforcement of the awards of the tribunals. This can be exemplified by the conduct of the State of Karnataka after the interim awards of the Cauvery tribunal were published. By the amendment in 2002, the award of the tribunals would have the same force as that of a Supreme Court decree but that has not helped matters much thanks largely to the Supreme Court itself.

The purpose of the arrangement envisaged under Article 262 and the Inter-state Water Disputes Act is to effectively bar the jurisdiction of all Courts including and especially the Supreme Court so that protracted litigation is avoided at all costs. States, however, have found ways to work around that bar and have knocked on the doors of the Supreme Court for relief but the most surprising part is that the Supreme Court has often obliged them. In Tamil Nadu Sangam [34] , the Supreme Court went to the extent of directing the Central Government to constitute the Cauvery tribunal. Moreover, the Court also decided, on its own, that negotiations between the States had proved futile and a tribunal had to set up, clearly, an executive decision which was well beyond the powers of the Court. A more blatant interference was made in the State of Andhra Pradesh v. State of Karnataka [35] , where the issue was whether the raising of the height of the dam on the Krishna River by Karnataka was justified. The Supreme Court interpreted the award of the Krishna Tribunal and decided the height of the dam accordingly and in the favour of Karnataka [36] . This clearly amounted to interference with the award of an independent tribunal and the Supreme Court could have easily avoided the suit on account of Article 262 and Section 2(c) of the Act which defined water disputes. The Court’s judgement in State of Orissa v. State of Andhra Pradesh [37] is a curious one. Though the judgement mostly adheres to the line of reasoning enunciated by the Supreme Court in the recent past and like Tamil Nadu Sangam [38] directs the Centre to establish a new tribunal, it goes further. The Court holds that the bar envisaged by the Constitution and the Act would only come into effect once the Tribunal is set up. So, therefore, in the absence of a tribunal, there is no effective bar on its powers. Two questions would arise. Would this position also apply to High Courts under Article 226 especially in cases where High Courts have jurisdiction over two or more states? If a tribunal has not been set up, would the Supreme Court act as the arbiter between the parties? If that is the case, then the whole purpose of Article 262 and the Act is redundant. Surely, constituting tribunals is not the only purpose of the arrangement. One possible way of effectively barring the jurisdiction of the Supreme Court would be to widen the definition of ‘water disputes’ given in Section 2(c) of the Act as well as Article 262.

However, effecting such changes would still be superficial and would not deal with the crux of the problem. The point is this: the sharing of inter-state waters cannot and should not be a constitutional-legal problem. By enacting Article 262, the draftsmen went the half way but not the whole and the Inter-state Water Disputes Act only enhances that problem by making it a case before a tribunal. The Supreme Court has time and again interfered and such interference has only showcased the loophole in the article as well as the Act. By virtue of the present arrangement, sharing of river waters remains a constitutional-legal problem and it is this characteristic which is the greatest flaw of the arrangement. Some scholars have suggested that the disputes should be taken out of the purview of all tribunals and all Courts and this is where I think the solution lies. [39] Inter-state rivers are not state assets; they are national assets and must be held to be so. By making it a federalized system of distribution of national resource, the sharing of waters would be the subject of a national commission empowered to deal with such disputes and allocate the resources on the basis of empirical data and scientific analysis. The analogy with sharing of taxes is highly illuminating and rightly so. [40] The Finance Commission is empowered exclusively to deal with the sharing of taxes between the Union and the States and their recommendations are sent to the President and the Government has, by and large, accepted most of its recommendations [41] . Institutions, such as these, headed by technically knowledgeable people should take over the burden of sharing of river waters and allocate them on that basis. The National Water Resources Council and the National Water Development Agency were steps in the right direction but were fundamentally flawed as they had no statutory force. [42] Article 262 could be amended so as to bring in a new institution, making it a constitutional authority, which would have the power to decide and allocate river water resources on a pan-Indian scale. Such an institution should have technically knowledgeable people at its helms with the Secretary, Ministry of Water Resources playing an advisory role.

Conclusion

While the draftsmen of the Constitution had the right intention in framing Article 262 in the way they did, their hopes were belied as they could not envisage, quite naively one might add, that states would fight tooth and nail for what they considered their right. The Inter-state Water Disputes Act, 1956, which Article 262 gives way to opens a new platform for adversarial litigation which was sought to be avoided. Ironically, the Supreme Court which should have thought better than to drag itself into this mess, has consistently and without any caution decided on such issues which has in many ways nullified the principle which Article 262 originally stood for. As mentioned before, I have argued that avoidance of a constitutional-legal approach is the key and an institutional approach focusing on allocation of water resources should be the way forward. [43]