NEED FOR ADR MECHANISM IN INTER-STATE WATER

DISPUTES IN INDIA

Submitted by:
Harshad R (17040142060)

Ritik Sharma (17040142049)

Batch 2017-22

Prof. Vishal Babasaheb Ranaware

Alliance School of Law

Alliance University, Bangalore

Date of Submission: 27/11/2021

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 Abstract

The interstate water disputes are conflicts arising from the rivers that forms a major source
of water resources in the states it flows. Though 3/4th of the earth is covered by water yet
the availability of fresh water for use is very less. In the current situation the need for the
fresh water is increasing that is getting different states over each other for their
distribution. To resolve the conflicts, the center has established the interstate water
tribunals that is empowered to solve any issues relating to the use, distribution and
utilization of water bodies. The main aim of this paper is to examine the impact of the
interstate water tribunal system in resolving or adjudicating among the states. As it is
being given the exclusive jurisdiction over the issues, the working of them becomes

prime importance. The center plays an important role in enacting laws that enforces rules and
regulations to the working of the tribunals. It involves more than one state so the relationship
between the center and states is analyzed through the relationship between the federalism and
the interstate water tribunals to have a better understanding. This research paper will try to
bring out a critical analysis on the tribunal acts that was passed till present in relation to the
interstate water disputes and how far was that effective to resolve the shortcomings in its
arbitrations. This paper would try to look into the ways in which the arbitration could be
enhanced better to give resolve its existing faults. The sources that have been used for the
study are YouTube, Articles, and books on the statutory bodies, Rajya Sabha tv debates etc.

Key Words: Inter-state water tribunal, federalism, arbitrations, exclusive jurisdiction, tribunal
acts.

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 Index

1. Introduction……………………………………………………………. 4

1.1 Background……………………………………………………………... 5

1.2 Research Problem..................................................................................... 5

1.3 Research Questions ……………………………………………………...6

1.4 Literature review………………………………………………………. 6-8

1.5 Scope of the study……………………………………………………… 8

1.6 Objective of the study ………………………………………………… 8

1.7 Hypothesis……………………………………………………………….8

1.8 Research Methodology…………………………………………………... 8

2. Inter-State Water Disputes and Federalism.……………………………. 9-11

3. Failure of the Existing Mechanisms……...…………………………. 11-13
4. History of Water Disputes……………………………………….
5. … 13-14
6. Conclusion…………...…………………………………………………. 15
7. Bibliography……………………………………………………………... 16

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1. Introduction

There are about 20 river basins in India which are shared by the States and Union Territories.
There are 28 states in India. This simple fact represents how deep India’s water security is
embedded in the hands of interstate hydrogeography. ‘The Constitution makers anticipated
that with the accent on development of irrigation and power resources, some inter-State
disputes would arise regarding sharing of river waters. The waters of an inter-State River pass
through several States. Such waters cannot be regarded as belonging to any single riparian
State. The waters are in a state of flow and, therefore, no State can claim exclusive ownership
of such water1 No State can legislate for the use of such waters since no State can claim
legislative power beyond its territory. Hence, the Constitution gives special legislative power
under Art. 262(1) to the Parliament to create mechanisms to resolve such disputes. This article
empowers Parliament to provide by law for adjudication of any dispute or complaint with
respect to the use, distribution or control of the waters of any inter-State River or river valley.
The wordings under Article 262(1) are wide and includes regulation and development projects
of the said water body too. Under this article, the Parliament may also curtail the
jurisdiction of the Supreme Court or any other court in respect of these water disputes.
Although Art. 131 provides for the decision of inter-State disputes by the Supreme Court,
but Art. 262 provides that the class of disputes mentioned therein may be excluded by
Parliament from the purview of the Supreme Court. “It is the ineffectiveness and
inefficiency of dispute resolution mechanisms that lead to water disputes. In other words,
water disputes depend upon the ability of the dispute resolution mechanisms to resolve the
water conflicts in a particular area or community. If the dispute resolution mechanism is
weak, then it is most likely that the disputes are bound to occur and perpetuate. These
“disputes” essentially translate to a brawl over the need to access, control, manage and/or
use these water resources.”
Thus, the mechanisms to resolve the disputes which arise from this needs to inspire
confidence. The present case of water disputes however does not inspire this confidence.
Inter-state water disputes occur frequently. The adjudication too takes a long time and
often involves states defying the orders of the water dispute tribunal and the directions of
the Supreme Court too. The history of water disputes in India explains this (this will be

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 discussed in detail in the later course of this paper).

Background

Currently there is no proper mechanism. Consider this, the Interstate (River) Water
Disputes Act, 1956 was made to solve interstate water disputes. This has been amended
more than 12 times and another amendment Bill 2019 is pending in the Parliament. (This
too will be discussed in detail under Chapters 2 and 3). In contrast, another Act was
passed in 1956 named the River Boards Act, 1956. This too was enacted to resolve
interstate water disputes and enable interstate collaboration. The irony is that it has never
been touched till date! The River Boards Act had provisions om arbitration to resolve the
disputes between states without getting into litigation. This has not been touched since
1956! The constitutional provisions with respect to water disputes is another issue. The
subject of water is listed under Entry 17 of the State List4. However, this is subject to
Entry 56 of the Union List5 pertaining to the development and regulation of river waters
between states.

In the initial years of single-party dominance, the negligence in definitively carving out the
Centre’s role has led to the states assuming unfettered and exclusive powers over water
governance. Ramaswamy Iyer has called it the ‘willful abdication of its role’ by the Centre6

Research Problem

The present institutional set up for inter-state water disputes do not inspire confidence. In India
where there are 20 major river basins shared between 28 states, inter-state water disputes occur
frequently. States often ignore the orders of either the tribunals or sometimes the Supreme
Court itself (which most of the time directs the states to obey the awards passed by the
tribunal). Therefore, there is no practical reliable mechanism for inter-state cooperation over the
river water disputes. Alternate Dispute Resolutions can be used to resolve these conflicts
without any long delays which are often characterized by adverse litigations. Further, not much
research has been done for the use of ADR mechanisms for Inter-State Water Disputes,
therefore this research paper is an attempt to bridge this gap.

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Research Questions

1. How does the involvement of the Central in the water disputes between states impact
the federal polity of India?
2. How has the present water tribunal system failed in adjudicating the water disputes
between states?

Literature Review:

1. Srinivas Chokkakula, Interstate River Water Governance: Shift focus from conflict
resolution to enabling cooperation, Centre for Policy Research Cprindia.org (2021),
(accessed on Jul 1, 2021).

In this paper, the author highlights the need for a change in the approach for water
disputes between the States in India. The author supports his argument through facts on
the work done by the government of India till date to provide a reliable mechanism to
solve water disputes. He argues that the cause for this is ambitious plans and foundations
which have added a big unknown factor to this problem. He advocates for a change to
enable a cooperation between Centre and State to which requires a fundamental
strategic shift, away from the current reliance on conflict resolution, and making
deliberate efforts to enable a system for interstate water cooperation. The author argues
that such a system will not only be useful for dispute resolution but also in all well
essential terms. His core argument is Interstate River water dispute resolution often fails
because there are no reliable mechanisms for implementing the tribunal awards or
decisions. It can only be possible when the states party to a conflict collectively contribute
to ‘giving effect’ to the decisions. The author gives four-element- strategy to work on.
One, there has to be a clearly articulated policy with intent. Two, there has to be a
consensus between the Centre and State. Three, there has to be a strong institutional
model for implementation (The author suggests Inter-State Councils under Art. 263). And
lastly, the author argues that the key binding factor to all of this is proper and effective
strategy.

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 2. Bhumika Indulia, A perpetual tussle over Water Resources: An inevitable need for
Inter-State mediation in Inter-State Water Disputes | SCC Blog SCC Blog (2021),

In this article, the researcher first describes the water disputes and the reasons behind
them. The researcher believes that they occur due to failure of dispute resolution
mechanisms because if the resolution mechanism is weak, then the dispute just spirals out
of hand into a big brawl into the need to accesses, control and manage of water resources.
Secondly, the researcher scrutinizes the reasons behind the undeveloped and outdated
state of the domestic legislative framework that fails to adequately accommodate inter-
State mediation to resolve inter-State water disputes. In this section the researcher holds
the centre responsible for vanishing away from the federal polity whenever water disputes
occur between states. Further, the researcher highlights the problems in the River Boards
Act, 1956 and Inter-State Water Disputes Act, 1956. Lastly, the researcher suggests how
inter-State mediation can be incorporated to resolve the long-pending water disputes in
India.
3. P Abraham, Notes on Ambedkar's Water Resources Policies., 37 Economic and Political
Weekly 4772–4774 (2002) accessed on July 2, 2021.

In this article the author argues that although Dr. Ambedkar is known to be the chief
architect of the Constitution, he is little known for his irrigation and water resource
planning before and during the time of Independence. He had advocated the cause of
national policy on water resources planning and development, rather than sectarian policy
of states. Ambedkar consciously believed that the river waters were a national heritage
and a national policy is needed to use the water for multi-purpose by multi- states, to serve
the larger sections of the society, cutting across the states. Seen in the con- text of river
water disputes between the states, one realizes how prophetic is the philosophy of
Ambedkar. Ambedkar stressed that the centre expects the provinces to bear in mind the
absolute necessity of ensuring that the benefits of the project get ultimately right down to
the grass roots, i e, it is necessary everyone living in the valley should share the prosperity
and for this reason we want the establishment of some agency. Ambedkar emphasized that
it was the responsibility of the centre to ensure the overall development of the entire

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 nation and the central government should ensure that inter-state projects, benefiting more
than one state were not affected by difficulties in arriving at an agreement between the
states. Given the constitutional difficulties, the centre may be, in many cases, in a better
position to promote an agreement between the states than the states them- selves. The
most suitable way of implementing an agreement would be by setting up of an
independent authority through central legislation, which would be vested with the
executive authority of the state and administer the matters concerning the rivers as per the
powers given by agreement between the centre and the states concerned.
Ironically, in the present scenario, the Centre has just vanished away from the federal
structure whenever there is an inter-state water dispute.

Scope
To understand the need for ADR Mechanism in Inter-state water disputes in India.

Objectives
 To figure out the interference of central in water disputes between states.
 To understand the present situation of water tribunals and their effectiveness
 To know ADR involvement in inter-state water disputes.

Hypothesis

1. The present tribunal system has been many overlapping jurisdictions with the courts
of India.
2. Alternative dispute resolution can satisfy the purpose in a better line than tribunals.

Methodology

The researchers in the present research have adopted a mix of doctrinal and empirical method
for collecting required data. This research will base its findings, inter alia, on analytical and
critical studies. The sources of data used in preparing this paper are:

a. Books.

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 b. Research articles.

c. Other online articles

2. Inter-State Water Disputes and Federalism

Water is a first-rate useful resource for maintaining existence on earth. Water contributes to
welfare in numerous ways: health, agriculture, industry, etc. This exceptional call for water in
numerous fields has ended in its scarcity. Moreover, availability of water is pretty choppy in
each area and time as its miles structured upon various seasons of rainfall and capability of
storage. India is served through excellent river systems, i.e., the Great Himalayan Drainage
machine and the Peninsular River network. It has 14 foremost rivers which are inter-nation rivers
and 44 medium rivers of which nine are inter-State rivers. For the purpose that India is a federal
democratic machine, and due to the fact rivers move nation boundaries, building gifted and
equitable mechanisms for allocating river flows has lengthy been a tremendous prison and
constitutional question. Many inter-nation river-water disputes have erupted in view that
independence. On the face of it, inter-nation water disputes contain problems of:
(i) Allocation of waters among different states;
(ii) Apportionment of creation prices and advantages if an assignment is evolved together
through a couple of nation;
(iii) Compensation to the states prejudicially affected by the implementation of an
assignment through every other nation;
(iv) Dispute agreement regarding interpretation of agreements and;
(v) Excess withdrawals through a nation.

India’s Experience
In India, one of the most important ways to resolve inter-state river water issues is through
agreements. Over 130 agreements on the sharing of interstate river resources or specialised
projects have been reached. Because the majority of India's river basins are inter-state in
nature, the Planning Commission and the Ministry of Water Resources, with its technical
attached organisation, the Central Water Commission, have followed a well-defined schedule

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of techno-economic clearance guidelines in approving inter-state projects proposed by the
States for implementation under the five-year plans. Despite the fact that it is time demanding,
this process has become established. There is a loophole here, because the permission is only
required if the project is to be funded through the Central Plan. Otherwise, if funding is not a
restriction, the State can proceed with the project. If that is the case, The aggrieved states have
the option of seeking judicial intervention to halt the project.

THE KRISHNA RIVER WATER DISPUTE

The Western Ghats, a mountain range that spans north-south along India's western coast, are
where the Krishna River begins. The river flows through three states: Maharashtra (where the
river begins), Karnataka (where the river flows through the middle), and Andhra Pradesh
(where the river flows through the middle) (the furthest downstream). When India was part of
the British Empire, the first irrigation projects in the basin were established in 1855. The states
signed water allocation agreements with each other as the basin's population rose, initially in
1892 and then again in 1933, 1944, and 1946. Three states signed a new water allocation
agreement in 1951. However, the accord was not ratified by the fourth state, Mysore, and the
interstate problems continued. The States Reorganization Act of 1956, which modified
significant boundaries in the Krishna River basin and merged a number of States, and the
statute created a new state of Andhra Pradesh in 1953. Water, though, remained a source of
contention. The Krishna Water Disputes Tribunal was established in 1969 when the Central
Government invoked the Inter-State Water Disputes Act in response to a petition from three
states. The Krishna Tribunal gave its decision four years later. Additional clarification requests
from the States forced the Tribunal to revisit several assumptions and decisions. As a result,
the Tribunal's final award was not released until 1976, and it contained the following
conclusions:

The Tribunal considered two potential options, dubbed "Scheme A" and "Scheme B,"
respectively. Scheme A was based on a water apportionment based on the basin's annual water
availability of 2,060 TMC (thousand million cubic feet). The water was divided among the

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 states of Andhra Pradesh, Karnataka, and Maharashtra by the Tribunal. The surplus was given
to the state of Andhra Pradesh, but the state did not gain a permanent (vested) title to the
waters.
The Krishna Valley Authority, a basin-wide government agency, was to be established to
allocate water and manage the river, including surplus flows, under Scheme B. Andhra
Pradesh refused to support this alternative, although Maharashtra and Karnataka did. The
Tribunal did not adopt Scheme B since the three states did not agree to form a Krishna Valley
Authority. After May 3, 2000, the Tribunal permitted the States to reopen the water
allocations. With the creation of a second Krishna River Tribunal in 2004, the next round of
adjudication commenced in 2004. The Krishna II Tribunal raised the annual allocable water
allocation to 2,578 TMC. However, the Tribunal deemed those new allocations less reliable
than the 1976 base allocations. The Tribunal, like its predecessor, failed to clarify what occurs
when there isn't enough water in the river to meet demand during a drought. The Tribunal
called for the creation of a Krishna Water Decision Implementation Board to administer its
findings. The Tribunal recommended that a Krishna Water Decision Implementation Board be
established to oversee the Tribunal's decisions. The States could appeal the Tribunal's decision
after May 31, 2050, according to the Tribunal. Meanwhile, two of the states, Karnataka and
Andhra Pradesh, have filed petitions in the Supreme Court challenging the award, which is
still pending.

3. Failure of the Existing Mechanisms

The Indian Constitution grants the Parliament the authority to adopt legislation relating to
the arbitration of disputes involving the use, distribution, and management of water in any
inter-State River or river valley. As a result, the River Boards Act of 1956 and the Inter-
State River Water Disputes Act of 1956 were passed by Parliament. Under the River
Boards Act, the Central Government has the authority to establish "Boards" in
consultation with state governments for the purpose of advising them on "development
programmes" involving interstate basins1. Furthermore, the Board's goal is to lessen the
1
The Rivers Boards Act, 1956, Chs II and III.

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 likelihood of interstate water disputes. The government's bizarre goal is demonstrated by
the fact that no such "Board" has been established by the central government to date.
Their creation is necessary because these Boards allow for the creation of a discourse for
inter-State meditation through reciprocal dialogue. The absence of these Boards, on the
other hand, exposes the government's inert and sluggish efforts at the outset. The
necessary mechanism/framework for inter-State mediation's existence is hampered due to
a lack of suitable efforts.
The second point that demonstrates the Government's lackadaisical attitude is that, while
the River Boards Act provides for arbitration, 2 this provision has proven to be
counterproductive and futile because the parties can only refer to arbitration in situations
where the “Board”.3 " provided the advice or measure. Due to the lack of Boards in India,
the arbitration process is non-existent, further complicating the formation of an inter-State
mediation mechanism.
The Inter-State River Water Conflicts Act allows states to seek the federal government for
help with water disputes, and the federal government can then send the matter to a "Water
Disputes Tribunal." This tribunal's decision will be final and binding, and it will not be
subject to reopening or reviewed.4 . However, if the State Government believes that
anything in the Tribunal's decision needs to be explained or that guidance is needed on a
point that was not originally referred to the Tribunal, the State may re-refer the matter to
the Tribunal for further consideration within three months of the decision's date.

The third point that demonstrates the disconnect between the power conferred and the
power exercised is that, while the Inter-State River Water Disputes (Amendment) Act,
2002 resolved inordinate delays in the formation of the Tribunal and delivery of its
decisions, certain issues still exist. States can approach the Supreme Court under Article
136 of the Indian Constitution, which grants the court discretionary power to appeal from
the decision

2
The Rivers Boards Act, 1956, S. 22.
3
Ibid.
4
Id. at S. 4,

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 of “any” tribunal; or private individuals may file a petition with the Supreme Court under
Article 32, alleging a breach of basic rights in connection with the water dispute concerns
and/or the tribunal's ruling. It is also important to highlight that the Tribunal's composition
is not diverse, as only members of the judiciary are appointed. This could jeopardize the
tribunals' ability to render a really comprehensive and final verdict. Furthermore, before
the Central Government makes the aforementioned referral to a tribunal, the Central
Government may try to encourage discussions. It may, however, submit a disagreement to
a tribunal if it is "of the opinion" that it cannot be resolved through dialogue.

4. History of Water Disputes

This leads to the fourth point, which underlines the conundrum: when we look at the
history of water conflicts, we see that the Centre has routinely referred disputes to the
Tribunal without making any effort to facilitate dialogue or try to settle these problems
peacefully. This can be deduced from the following examination of the history. To begin,
it is critical to understand that the Cauvery River conflict, i.e., State of Karnataka v. State
of T.N.,5 is actually an inter-State basin that originates in Karnataka and runs through
Tamil Nadu and Puducherry. In 1924, an agreement was struck in which Tamil Nadu and
Puducherry would get 75% of the extra water from the Cauvery River, while Karnataka
would receive 23%. The others would be sent to Kerala. Furthermore, there were no
limitations on the amount of land that could be irrigated. Kerala, Karnataka, Tamil Nadu,
and Puducherry are the states affected (Union Territory).
However, the Cauvery Fact-Finding Committee discovered in 1970 that irrigated lands in
Tamil Nadu had grown, resulting in a higher need for water supply, whereas Karnataka's
lands had grown little to no. Karnataka rejected Tamil Nadu's application for higher water
supply needs, prompting Tamil Nadu to urge the establishment of a tribunal. After nearly
two decades and a formal request in 1986, the Tribunal was ultimately established in
1990. Karnataka was directed to deliver water from the Cauvery River to Tamil Nadu in
the Tribunal's final ruling in 2007 and several Supreme Court advices.

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(2018) 4 SCC 1.

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Karnataka, on the other hand, refused to cooperate, claiming that it did not have enough
water to meet its own demands, let alone supply to Tamil Nadu. The Supreme Court has
yet to rule on the water dispute, having reserved its decision in 2017. In this issue, it is
important to note that little to no effort has been made by the Centre to facilitate
negotiations between the parties involved, resulting in the matter remaining under court
consideration.

Second, it is critical to understand that the Sutlej Yamuna Link (SYL) Canal dispute, State
of Punjab v. Surjan Singh, is a project designed to connect the Sutlej River in Punjab with
the Yamuna Canal in Haryana. After the Indus Waters incident in 1966,
In the Treaty of 1960, India was granted free access to three rivers: the Ravi, the Beas, and
the Sutlej. Punjab, Delhi, and Jammu and Kashmir shared them. Haryana was formed
from Punjab's territory in 1966. Water rights were one of the issues that arose as a result
of the split, as Haryana, as a successor state, held water rights to Punjab's Sutlej River.
The water was shared between Punjab, Haryana, and Rajasthan by then-Prime Minister
Indira Gandhi in 1976. The Punjab government, however, did not follow this division.
Due to this non-compliance, a tribunal was established in 1986, which issued an order in
1987 partitioning the water of the Sutlej River between Punjab and Haryana. The Punjab
government, on the other hand, disputed the order, claiming that the Sutlej River's
capacity had been overestimated. During this time, the foundation stones for the SYL
Canal were set in the 1980s, but development was halted due to a variety of factors,
including militancy in Punjab. The Punjab Government was instructed by the Supreme
Court in 2002 to complete the SYL Canal within 12 months. In the middle of this, the
Ravi-Beas water dispute arose, and a tribunal was established in 1985 to determine the
amount of water to be shared between Punjab, Haryana, and Rajasthan. Punjab approved
the Punjab Termination of Agreement Act, 2004, in 2004, which nullified all water-
sharing agreements with other states and compelled the Punjab government to return the
land It also instructed both governments to maintain the status quo, i.e., finish the SYL
Canal work. It's worth noting that the Centre only consented to mediate between Punjab

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 and Haryana on August 18, 2020. 6 after years of relentless wrangle and everlasting
struggle. Years of litigation not only resulted in a resource drain, but also in the
disenfranchisement of other engaged parties, such as farmers' irrigation demands and the
establishment of hydel projects, from the potential benefits of the SYL Canal.
5. Conclusion
The current processes for resolving water disputes in India are confusing and opaque. Given
the foregoing, it is evident that the Center has failed to propose an appropriate solution to the
problem of inter-state river water disputes. Delays in reaching a water agreement have resulted
in inefficient, non-cooperative investments in dams, irrigation, agriculture, and industry in
general. Not only is the agreement procedure long in India, but binding arbitration is also non-
existent. In some big disputes, the prospect of no deal has been the outcome (e.g., Cauvery;
Ravi- Beas). This can lead to wasteful levels of investment by particular, non-agreeing
governments, resulting in a diversion of scarce investment resources and inefficient water use.
This, in turn, has the potential to stifle economic progress. The intertwining of interstate water
disputes with more general Center-State confrontations exacerbates the issues. These effects
may be mitigated if methods for resolving interstate water conflicts were designed more
efficiently. Within a given time frame, an independent federated authority shall be established
to adjudicate and mediate between the disputing parties. Interlinking rivers could result in land
acquisition, cultural and ecosystem issues, and confrontations between states, as in the case of
the Cauvery, and between the state and the people, as in the case of the Narmada. Destruction
of cultures, communities, and ecosystems, as well as tensions between states, such as in the
Cauvery, and between state and people, such as in the Narmada, are all too visible in the
Sardar Sarovar project. Conflicts are dealt with on a more political level than on a scientific
level. The resolution of interstate issues could take decades. The canals, which were built to
carry irrigation water rather than large peak flows, will not be enough to manage or deflect
floods in the northern states, but they will help to transport silt. Several enormous dams
constructed to provide the necessary head and storage to supply the canals will permanently
sink fertile fields, woods, village settlements, and towns, displacing or dispossessing millions
6
Mallika Goel and Shreyashi Roy, The Sutlej-Yamuna Link: State Skirmish or National Security Issues? The Quint
(23-8-2020).

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 of people. As a result, the Supreme Court is correct in evaluating the project's practicality and
effects. Not rivers, but water itself, are linked in nature through the hydrological cycle. A
healthy water cycle necessitates a comprehensive policy that encourages forest cover, reduces
erosion, improves ground water through micro-watershed structures, and allows for the
desolation and maintenance of existing tanks, lakes, and reservoirs. Corruption should be
punished by a diligent judiciary if environmental standards, as well as the right to life and
livelihood, are not followed.

Bibliography
• Jain, S.N., Alice, J., Subash, J. (1971), “Inter-state water disputes in India: suggestions for
reform in law”, Indian Law Institute: Water Law Series, N.M. Tripathi Pvt. Ltd, Bombay.
• Ramana, M.V.V. (1992), “Inter-State River Water Disputes in India”, Orient Longman,
Madras. Author lists 14 such interstate river water disputes after independence.
• Richards, Alan, Singh, N. (1996), “Water and Federalism: India's Institutions Governing
Inter-State River Waters”, Center on Institutional Reform and the Informal Sector (IRIS) -
India.

Webliography
JournalTCOS
mediationBlog.in
scconline/Blog.com
cprIndia.org
IISTE.org

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