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______________________________________________________________________________

Subject CONSTITUTIONAL 2

TOPIC INTER-STATE WATER DISPUTE (ARTICLE 262)

Research Asst. in Law

POOJA SINGHA

NAME: RATUL KHANDAKAR

ROLL NO.:27

COURSE: LLB,3 YRS,2ST SEMESTER

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ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks to
POOJA SINGHA, Assistant Professor in Law, Indian Institute of Legal Studies, for her
invaluable guidance, sound advice and affectionate attitude during the course of my studies.

I have no hesitation in saying that he/she molded raw clay into whatever I am through his/her
incessant efforts and keen interest shown throughout my academic pursuit. It is due to his/her
patient guidance that I have been able to complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of information
therein. I also express my regards to the Library staff for cooperating and making available the
books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the
project work.

Date: RATUL KHANDAKAR

ROLL NO.:27
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TABLE OF CONTENTS
__________________________________________________________
Acknowledgement.2
Research Methodology...
..4 - 5
A. Aim and Objectives......4
B. Statement of Problem..4
C. Research Hypothesis.
..4
D. Research Questions.
4
E. Methodology of Research...5
F. Scope and Limitations. ..5
G. Review of Literature ..5
H. Mode of Citation.........5

Chapter I: Introduction.....................................6
Chapter II: Water Dispute...... 7
A. Constitution of tribunal....9
B. Water and Indian federalism..............................................13
Chapter III: Recommendation ...................14
Chapter IV: Conclusion.... 16
Reference....17
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RESEARCH METHODOLOGY
___________________________________________________________

A. AIMS AND OBJECTIVES

The aims and objectives of this project are to understand the concepts interstate water dispute of
Capital Gains, the purpose of having provisions which gives inclusive concept of Water dispute.
One of the aims of the project is to have a comparative study on the topic, concept of with
respect of Water dispute in India.

B. STATEMENT OF PROBLEM

Despite the laws and Acts, the current systems do not give an equal chance to access and
flourish. Interstate water dispute though we have various Laws and Statutes yet essential things
are missed out and very few literates know the proper meaning and nature of Water dispute. As
such many of us are still in dark as to what includes the term Assets on which Water dispute is to
be computed and how to compute the same.

C. RESEARCH HYPOTHESIS

This research work is an attempt to distill lessons from the concept of interstate water dispute. It
is an attempt to know the concept of various terminologies within the concept and how they are
very much needed in our present Taxation system prevailing.

E. METHODOLOGY OF RESEARCH

Methodology implies more than simply the methods the researcher used to collect data. It is
often necessary to include a consideration of the concepts and theories which underlie the
methods. The methodology opted for the study on the topic is Doctrinal. Doctrinal research in
law field indicates arranging, ordering and analysis of the legal structure, legal frame work and
case laws by extensive surveying of legal literature but without any field work.
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F. SCOPE AND LIMITATIONS

The research work discusses the key points that the Learned Court observed as well as what is
deduced after going through the research work. Water dispute topic being very vast like ocean,
the work is limited to the interstate water dispute topic.

G. REVIEW OF LITERATURE

The researcher while writing this project has taken recourse to various primary and secondary
sources. Primary sources would include various laws, books and articles. Secondary sources
would include reports and websites.

H. MODE OF CITATION

A uniform Blue Book Mode of citation has been adopted throughout the project.
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CHAPTER I: INTRODUCTION

The Water Disputes Act, 1956 (IRWD Act) is an Act of the Parliament of India enacted under
Article 262 of Constitution of India on the eve of reorganization of states on linguistic basis to
resolve the water disputes that would arise in the use, control and distribution of an interstate
river[1] or river valley. Article 262 of the Indian Constitution provides a role for the Central
government in adjudicating conflicts surrounding inter-state rivers that arise among the
state/regional governments.[3] This Act further has undergone amendments subsequently and its
most recent amendment took place in the year 2002.

River waters use / harnessing is included in states jurisdiction (entry 17 of state list, Schedule 7
of Indian Constitution). However, union government can make laws on regulation and
development of inter-State rivers and river valleys when expedient in the public interest (entry 56
of union list, Schedule 7 of Indian Constitution). When public interest is served, President may
also establish an interstate council as per Article 263 to inquire and recommend on the dispute
that has arisen between the states of India. IRWD Act (section 2c2) validates the previous
agreements (if any) among the basin states to harness water of an interstate river/ river valley.

National governments in India have tended to rely quite heavily on Tribunals to determine the
sharing of river waters between states of the Union. Disputes concerning the waters of
Narmada, Godavari, Krishna, Cauvery, Ravi and Beas rivers have all been referred to Tribunals.2
The response of state governments to the awards of these Tribunals has however been rather
uneven. In some cases, the verdicts of the Tribunals were accepted without too much
resistance by the states concerned. In the case of the Godavari, the affected states even
worked out a series of agreements leaving the Godavari Water Disputes Tribunal with the less
onerous task of incorporating these results into its final report. On the other hand, in some
other river basins, the contending parties have proved more difficult to please. Not only have
they been far less capable of settling the disputes themselves but also they were not entirely
willing to accept the awards of the relevant Tribunals. Indeed, Karnatakas rejection of the
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interim order of the Cauvery Water Disputes Tribunal in 1991 was accompanied by violent
protests (Sebastian, 1992). There is thus a disparity between the enthusiasm in some official
circles for Tribunals between the institutions with the knowledge and authority to resolve inter-
state water disputes and the doubts sometimes expressed by states over the validity of a
Tribunals orders. This divergence brings to the fore a rather basic question: What role, if any,
can Tribunals play in resolving inter-state river water disputes in India?
In order to answer this question, we first seek an appropriate concept of institutions that would
help us understand Tribunals. Based on this concept, we would look at the abstract case for
Tribunals. We would then go on to look at the issues that emerge in practice, before finally
identifying some of the essential features of an effective mechanism to address river water
disputes and the role of Tribunals in that mechanism.

CASE

. CAUVERY WATER DISPUTE CASE AIR 1992 S.C 522

NARMADA RIVER CASE ..
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CHAPTER II :

A. Water disputes

IRWD Act is applicable only to interstate rivers / river valleys. An action of one state should
affect the interests of one or more other states. Then only water dispute is deemed to have arisen
under IRWD Act (section 3).[4] It can be divided into two independent parts for clarity purpose in
understanding the techno-legal application of IRWD Act

Actions of a downstream state affecting the interest of an upstream state[edit]

A downstream states action can affect the upstream state interest only in one case. I.e. when a
downstream state is building a dam / barrage near its state boundary and submerging the territory
of an upstream state on permanent / temporary basis. Other than this action, no other action of a
downstream state could affect the upstream states interest which they have been using for
economical, ecological and spiritual/ religious aspects. The meaning of the word interest in this
context is concern / importance / significance / relevance / consequence of losing the prevailing
water use or purpose.

Actions of an upstream state affecting the interest of a downstream state[edit]

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Whereas all the actions of an upstream state to use or control or distribute the water of an
interstate river can affect the downstream states in one way or other. The following are some
examples but not complete:

1. Consuming river water for any beneficial use such as irrigation, drinking water,
industrial, recreation, recharging of ground water, ground water use, enhanced
evaporation losses, enhancing rain water use efficiency, obstructing non flood flows of
the river, transferring water to outside the river basin, etc. (i.e. any man made /aided
action of converting water into water vapour & losing to atmosphere by
evapotranspiration / evaporation processes and also transferring river water outside the
river basin). This is generally done by constructing water storage reservoirs and
subsequently using water for above purposes.
2. Quality of water can also be diminished / altered/ controlled in the action of using water.
It would take place by accumulating the dissolved salts in the remaining water after its
use. The dissolved salts content of water increases due to its consumption and also
addition of more salts by anthropogenic activity. Also, causing water more silt laden /
turbid is a man-made water quality alteration which can be caused by mining and
deforestation activities. Bringing water from other river basins for upstream states use
also effects water quality in downstream states.

Generally, river water is transferred to water deficit areas for use after creating the infrastructure
for its storage (water reservoirs) and distribution network (canals, pipelines, ground water
charging, etc.). All these acts fall under river water distribution and control category under IRWD
Act. All the above actions of an upstream state are legal causes of water dispute to the
downstream states since their existing interests are affected as given below:

Decrease in water availability: - When an upstream state contemplates water use, it would
block the lean season river flows initially by constructing low cost barrages and tries to
store the peak flood waters ultimately by constructing massive water storage reservoirs.
In this process the river flow regime is altered drastically converting it ephemeral / dry in
most of the time except during floods.[6] It also alters the ecology of the river located in
downstream states affecting its riverine vegetation and aquatic flora & fauna. Already the
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delta area of rivers is eroding / shrinking when adequate river water is not reaching sea.
This process of river water harnessing affects the downstream states interests as they are
deprived of constantly available river water which they had been using for their interests.
Alternatively, downstream state needs to store more flood water in reservoirs to cater to
the existing water use.

Deterioration in water quality:- If the water use is 75% of the total available water in the
river, the dissolved salts concentration in the river water increases by four folds. [7]
Alteration in river water quality / alkalinity / salinity effects growth of traditionally
cultivated crops as they are not best suitable with the enhanced soil alkalinity and or soil
salinity. They either give lesser yield or consume more saline water for the same yield. [8]
Also the aquatic flora & fauna would face survival threat / diminished growth with the
enhanced water salinity and or alkalinity. If the river is blocked to reach the Sea (i.e.
basin closure) in most of the years, the ecology / fisheries of the surrounding Sea / river
mouth area is also affected. Also there is threat of Sea water ingress into estuaries / delta
of the river contaminating ground water.[9]

The use or control or distribution of river water in an upstream state is invariably denial of
prevailing use / purpose in the downstream state as it is altering natural flow regime of river
water with respect to quantity, quality and time of availability in downstream states. Also dam
failures in upstream states can create flash floods or further dam failures in downstream states
causing unprecedented property damage and loss of human lives.[10] IRWD Act (section 3)
clearly stipulates that mere anticipation of a riparian state actions which can affect other riparian
state interests is enough to raise interstate water dispute.

The activities of an upstream state without effecting downstream states interests are peak flood
control measures by impounding the flood waters only (not base flows) in 100% or more
capacity storage reservoirs for use without effecting water quality appreciably and run off hydro
power generation taken up in its territory.

B.Constitution of Tribunal
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Whenever the riparian states are not able to reach amicable agreements on their own in sharing
of an interstate river waters, section 4 of IRWD Act provides dispute resolution process in the
form of Tribunal.[11] As per section 5.2 of the Act, the tribunal shall not only adjudicate but also
investigate the matters referred to it by the central government and forward a report setting out
the facts with its decisions. It implies that the tribunal responsibility is not limited to adjudication
of issues raised by the concerned states and also investigation of other aspects which are in
public domain such as water pollution, salt export requirement, water quality deterioration, flood
control, sustainability of river basin productivity & its ecology, environmental flow
requirements, climate change effects, etc.[12] When the tribunal final verdict issued based on the
deliberations on the draft verdict is accepted by the central government and notified in the
official gazette, the verdict becomes law and binding on the states for implementation. When
pronounced in the ambit of IRWD Act, the tribunals verdict after its publication in the official
gazette is equivalent to Supreme Court verdict as per section 6 of IRWD Act. In case the
constitutional rights of states are ingresses upon by the tribunal award in any manner, central
government, for extending purview of its enactment to implement the tribunal order, is obliged to
take the consent of all riparian states under Article 252 of the constitution before publishing the
tribunal awards in the official gazette

Following interstate river water disputes are worth mentioning.

(i) Cauvery water dispute between Tamil Nadu, Karnataka and Kerala.

(ii) The Krishna water dispute between Maharashtra, Karnataka and Andhra Pradesh.

(iii) The Tungabhadra water dispute between Andhra Pradesh and Karnataka.

(iv) The Aliyar and Bhivani river water dispute between Tamil Nadu and Kerala.

(v) The Godavari river water dispute between Andhra Pradesh, Madhya Pradesh, Chhattisgarh,
Orissa and Karnataka.

(vi) The Narmada water dispute between Gujarat, Maharashtra, Madhya Pradesh and Rajasthan.

(vii) The Mahi river dispute between Gujarat, Rajasthan and Madhya Pradesh.
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(viii) The Ravi and Beas river water dispute between Punjab, Haryana, Himachal Pradesh,
Rajasthan, Jammu and Kashmir and Delhi.

(ix) The Satluj-Yamuna Link canal dispute between Punjab, Haryana and Rajasthan.

(x) The Yamuna river water dispute between Uttar Pradesh, Haryana, Himachal Pradesh, Punjab,
Rajasthan, Madhya Pradesh and Delhi.

(xi) The Karmanasa river water dispute between Uttar Pradesh and Bihar.

(xii) The Barak river water dispute between Assam and Manipur.

So far, the following tribunals have been appointed to resolve inter-state water disputes:

(i) The Godavari Water Disputes Tribunal.

(ii) The Krishna Water Disputes Tribunal.

(iii) The Narmada Water Disputes Tribunal.

(iv) The Ravi and Beas Water Disputes Tribunal.

(v) The Cauvery Water Disputes Tribunal.

(vi) New Krishna Water Disputes.

India's Federal Water Institutions The relevant provisions of the Indian Constitution are

Entry 17 in the State List,

Entry 56 in the Union List, and

Article 262.
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The first provision makes water a state subject, but qualified by Entry 56 in the Union List,

which states: "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 is declared by parliament

by law to be expedient in the public interest." Article 262 explicitly grants parliament the right to
legislate over the matters in Entry 56, and also gives it primacy over the Supreme Court. As
documented by Iyer (1994), parliament has not made much use of Entry 56. Various River
Authorities have been proposed, but not legislated or established as bodies vested with powers of
management. Instead, river boards with only advisory powers have been created. Hence, the
state governments dominate the allocation of river waters. Since rivers cross state boundaries,
disputes are inevitable. The Inter-State Water Disputes Act of 1956 was legislated to deal with
conflicts, and included provisions for the establishment of tribunals to adjudicate where direct
negotiations have failed. However, states have sometimes refused to accept the decisions of
tribunals. Therefore, arbitration is not binding. Significantly, the courts have also been ignored
on occasion. Finally, the center has sometimes intervened directly as well, but in the most
intractable cases, such as the sharing of the Ravi-Beas waters among Haryana, Jammu and
Kashmir, Rajasthan, and Punjab, central intervention, too, has been unsuccessful.In summary, an
unambiguous institutional mechanism for settling inter-state water disputes does not exist.
Nevertheless, water disputes are sometimes settled. Economic analysis is necessary to illuminate
whether and how water disputes get resolved in India.
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CHAPTER III

Indias 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 diverse paths to settlement, or in a few cases, continued disagreement. In
this section, we discuss some of the major disputes. The central government has given substantial
attention to water disputes, which began to emerge soon after the framing of the Constitution.
Some common features of the easily settled disputes involved sharing costs and benefits of
specific projects, or relatively specific disagreements over smaller rivers, mostly over well-
defined projects or project proposals. Most settled disputes were characterized by specificity and
well-defined technical and cost issues. Other disputes took much longer to resolve, and some
remain unsettled. While smaller, more specific disputes may be settled more easily, this may still
not be ideal. In particular, while river basins seem the natural unit for dealing with issues of
water sharing, investment and management, they have been the focus of conflict rather than
cooperation in the Indian case. As noted in the introduction, the Indian Parliament has not made
much use of the powers vested in it by Entry 56 of the Union List. No river board has been set
up under this Act. With regard to water projects, India has often adopted project models used by
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other countries for its own execution. The Damodar Valley Corporation was modeled on the
Tennessee Valley Authority of the USA. After its creation, tensions and conflicts developed
between the corporation and the participating governments, which hampered its work. So it
never became an autonomous regional river valley development corporation.

Water and Indian Federalism:

State governments dominate the allocation of river waters. Since rivers cross state boundaries,
disputes are inevitable. The Inter-State Water Disputes Act of 1956 was legislated to deal with
conflicts, and included provisions for the establishment of tribunals to adjudicate where direct
negotiations have failed. However, states have sometimes refused to accept the decisions of
tribunals. Therefore, arbitration is not binding. Significantly, the courts have also been ignored
on occasion. Finally, the center has sometimes intervened directly as well, but in the most
intractable cases, such as the sharing of the Ravi-Beas waters among Haryana, Jammu and
Kashmir, Rajasthan, and Punjab, central intervention, too, has been unsuccessful. An
unambiguous institutional mechanism for settling inter-state water disputes does not exist. On the
other hand, water disputes are sometimes settled. Economic analysis is necessary to illuminate
whether and how water disputes get resolved in India. The main features of India's legislation
with respect to the inter-state allocation of water were reviewed in section 1. In section 2, we
examined how disputes had progressed in practice, including some case studies. Some of the
problems with dispute resolution in these cases were illuminated by the analytical discussion in
sections 3 and 4. However, before turning to us conclusions, it is useful to discuss the issue of
water disputes in the larger context of Indian

federalism. The issue of inter-state water allocation, while it involves special legal and technical
features, has been clouded by some of the general problems of Indian federalism. We consider
these issues here, but also will suggest that the subject is specific enough for more effective
institutions to be developed, without getting bogged down in the more general difficulties.

Of course, inter-state river water disputes in India have long been recognized as an important
federal issue. The Sarkaria Commission on center-state relations (Government of India, 1988)
devoted an entire chapter to the problem, and made a series of recommendations. We close this
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section with a review of the commission's analysis, and our additional perspectives.From a
federal perspective, a key feature of India's Constitution is the existence of separate lists
demarcating central (the Union List) and state responsibilities. This demarcation creates a broad
framework of assignment of expenditure responsibilities, an essential feature of a federalist
system. With respect to water, it has been extensively pointed out that water is in the State List of
the Constitution (Entry 17), but that the entry there is qualified, "subject to the provisions of
Entry 56 of List I" (the Union List).

Recommendations:

In this section, we summarize some of the salient issues, the implications of our analysis, and
recommendations. While our focus is on institutions for the resolution of inter-state water
disputes, our analysis and recommendations carry over more broadly to issues of water allocation
more generally, and we discuss this briefly, also.

Dispute settlement procedures 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 that remain unresolved after mediation and conciliation. Guhan (1993) suggests that
mediation and conciliation do not have enough scope in resolving water disputes.

A key insight of our analysis and discussion is that the existing processes and institutions for
resolving inter-state river disputes are not sufficiently well defined or definite. There are too
many options, and there is 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. It is therefore crucial that the dispute resolution mechanism be better defined, in terms
of the order of the steps to be taken.

Delays Extreme delays have been a very costly feature of the process of resolving inter-state
water disputes in India. There have been three components or dimensions of delay.
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1) There has been extreme delay in constituting tribunals. Under Section 4 of the ISWD Act, the
Union government is required to set up a tribunal only when it is satisfied that the dispute cannot
be settled by negotiations. The center can thus indefinitely withhold the decision to set up a
tribunal on the ground that it is not yet satisfied that negotiations have failed. Examples of delay
include all the major disputes.

2) Tribunals have taken long periods of time to give their awards. It took nine years from
reference in the case of the Narmada Tribunal, four years in the case of the Krishna Tribunal and
ten years in the case of the Godavari Tribunal. Such delays may be attributed to two factors: first,
the time taken for assembling facts and hearing arguments and second, abortive attempts to bring
about solutions at a political level, which delayed the functioning of constituted tribunals.

3) There have been delays in notifying the orders of tribunals in the Government of Indias
official gazette; this has resulted in delays and uncertainty in enforcement. The process took
three years in the case of the Krishna Award and one year in the case of the Godavari Award.
These delays naturally tend to complicate the dispute settlement process.

Enforcement We noted the problem of enforcement in section 5. State governments have

sometimes rejected tribunal awards, as in the case of Ravi-Beas Tribunal and the Punjab
government. In this case, the central government avoided notifying the tribunal's award, to
prevent further deterioration of the conflictual political situation in Punjab. In the case of the
Cauvery dispute, the Karnataka government sought to nullify the tribunals interim order through
an ordinance. Though the Supreme Court pronounced that the ordinance was unconstitutional,
the Karnataka government showed no inclination to implement the tribunals interim order, until
a compromise was reached through political negotiations behind closed doors.

Institutions Current institutions do not do a good job of resolving inter-state water disputes. To
some extent, the lack of well-defined procedures, the endemic delays and the weak enforcement
of decisions are all linked to a deficiency in the design of the relevant institutions.
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CHAPTER IV

Conclusion:

In summary, current Indian water-dispute settlement mechanisms are ambiguous and opaque. A
cooperative bargaining framework suggests that water can be shared efficiently, with
compensating transfers as necessary, if initial water rights are well-defined, and if institutions to
facilitate and implement cooperative agreements are in place. Our analysis also emphasizes the
role of complementary investments, and the need to expand the scope of bargaining to include
these where feasible. Furthermore, delay in the dimension of agreement over water can
encourage inefficient, non-cooperative investments in dams, irrigation, etc. Additionally, we
draw the distinction between situations where cooperation is possible, and situations where the
initial allocation of rights is at stake, where consequently the parties face a situation of pure
conflict rather than one of potential gains from trade. In the pure conflict situation, which seems
very relevant for Indian inter-state disputes, a search for a negotiated solution may be futile, and
quick movement to arbitration or adjudication may be more efficient. However, in the Indian
case, not only is this process slow, but also effective binding arbitration does not exist. The threat
point of no agreement has been the outcome in several major disputes (e.g., Cauvery; Ravi-
Beas). This can result in inefficient levels of investment by the individual, non-agreeing states,
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generating a diversion of scarce investment resources, as well as inefficient use of the water
itself. This in turn can have negative impacts on economic growth. The problems are
compounded by the entanglement of inter-state water disputes with more general center-state
conflicts, and with everyday political issues. We would argue that these impacts can be reduced
by a more efficient design of mechanisms for negotiating inter-state water disputes. In Section 6,
we have presented some of the possibilities, including a national water commission independent
of daily political pressures, a federated structure incorporating river basin authorities and water
user associations, and fixed time periods for negotiation and adjudication.

Chapter V:
BIBLIOGRAPHY

References:

V. N SHUKLA CONSTITUTIONAL.
PANDAY J.N CONSTITUTIONAL.

BASU D.D CONSTITUTIONAL.

JAIN M.P CONSTITUTIONAL.

Webliography:

https://en.wikipedia.org/wiki/Interstate_River_Water_Disputes_Act
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http://www.yourarticlelibrary.com/india-2/inter-state-river-water-disputes-in-
india/20870/

http://wrmin.nic.in/forms/list.aspx?lid=366

http://assets.wwfindia.org/downloads/interstate_water_disputes_in_india