Kalabagh dam: Lessons from international disputes

In India, sensing the need to resolve the future water disputes among different states, the Union government was given the powers vide Article 262 of the Indian Constitution to constitute a judicial forum (tribunal) to resolve such issues. Article 262 states;

1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.

2) Notwithstanding anything in this Constitution, Parliament may, by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in Clause (1).

However, formation of Tribunals under the above Article to adjudicate water disputes proved ineffective and most of the conflicts were resolved, not through judicial process but through negotiations at the political forums.

India has 14 major rivers, which are all inter-State. Out of its 44 medium rivers, 9 are inter-State. Because large areas of India are relatively arid, mechanisms for allocating scarce water are critically important to the welfare of the citizens. India being a federal democracy and because rivers cross state boundaries, constructing efficient and equitable mechanisms for allocating river flows is an important legal and constitutional issue.

Numerous inter-state river water disputes have erupted since independence. A recent disagreement over use of the Yamuna River among the states of Delhi, Haryana and Uttar Pradesh, was resolved by conferences involving three state Chief Ministers, as well as the central government. This approach was adopted only after prior intervention by the Supreme Court had failed.

States in India may also settle water disputes by signing agreements among themselves. In India, unlike the United States, the Constitution is silent about interstate agreements. They are not expressly authorized or prohibited. But there are several statutes, including the Inter-State Water Disputes Act itself, which by implication assume that the States can and will sign agreements among themselves to address common problems.

According to the Indian Central Water Commission data, there are 125 separate interstate water agreements. Some agreements date back to the time when India was a British colony. Others were executed in the early 1990s. From a number of examples, four have been chosen to illustrate that States in India who share a river basin were able to resolve their disputes in the spirit of accommodating each other’s point of view. These representative examples cover the sensitive areas of diversion of water to non-basin area, cost sharing arrangement for development project and water trading between States. Unfortunately in Pakistan, Provinces are not inclined to invest in water resource management. Similarly they are shy of putting a price tag on water.

Water Trading

An example of trading water as a commodity can be found in the “Tungabhadra river water sharing case” between Madras and Mysore (Karnataka) in 1944. An agreement was concluded, whereby it was agreed with Mysore that royalties shall be paid to Madras in lieu of the utilization of its share of the waters of Cauvery River at Sivasamudram. This agreement shows how states can trade off benefits from a shared resource. In this case, the former paid compensation in cash to the latter in lieu of its share of water.

Cost Sharing arrangements

The Musakhand Dam Project provides a good example of sharing of costs and benefits in a common interstate river project, by the two riparian states of Uttar Pradesh and Bihar. In this case, both states shared the cost in proportion to the benefits, for which a detailed calculation of the division of water and construction of canals and dams was devised.

Diversion of water to non-basin area

The issue of diversion was dealt with in the 1978 Narmada River Water Dispute, in which four states, Madhya Pradesh, Rajasthan, Maharashtra and Gujarat were contestant parties. The Narmada Water Tribunal was constituted and the dispute referred to it. In its decision, the tribunal quoted the findings of the Indus Commission (the Rao Commission) and Articles IV and V of the Helsinki Rules 1966 and held the view that equitable apportionment is the appropriate rule in adjudicating a dispute like this. It also observed that:

“the diversion of water of an inter-state river, outside the river basin is legal and the need for diversion of water to another watershed may, therefore, be a relevant factor on the question of equitable apportionment in the circumstances of a particular case. …the question of diversion of water of an inter-state river to areas outside the basin is not a question of law but is a question of fact to be determined in the circumstances of each particular case”.

The ruling explicitly relied on the principles of equitable apportionment and directed the parties to establish an entity in order to implement the project and give consent to intra-basin transfer of waters.

Water Sharing – The lingering dispute on Cauvery River

The disagreements on water issues between states in India have not been resolved in all cases. The dispute on Cauvery River has gone to different forums but is still awaiting final settlement.

The essence of the Cauvery dispute is a conflict of interests between a downstream state (Tamil Nadu) that has a long history of irrigated agriculture and an upstream state (Karnataka) that was a late starter in developing irrigation. Karnataka has the advantage of control over waters as upper riparian. However, its ambitious plans were successfully challenged by lower riparian, Tamil Nadu. To this dispute Kerala (an upstream state with modest demand) and Puducherry (the lowest riparian with a very small demand) have also become parties. Various initiatives were taken by the Central government at different times to find a lasting solution to this issue. All such efforts involved the concerned Chief Ministers. However, up till now successful settlement is still elusive. On the intervention of Indian Supreme Court, the Central government constituted the Cauvery Water Dispute Tribunal in 1990 when political talks failed. The Tribunal while taking into account historical usage of water by Tamil Nadu also permitted Karnataka a significant (but not the full claim) share of water. Karnataka felt that the decision of Tribunal was unfair and unimplementable and sought to nullify it by promulgating an ordinance. The Supreme Court held the ordinance illegal and remanded the matter again to the Tribunal. In 1998, a Cauvery River Authority (CRA) was set up, with the Prime Minister in chair and Chief Ministers as members. Certain aspects of the Final Order by the Tribunal in 2007 were again challenged by all States in the Supreme Court and still pending for decision. The core of the lingering dispute pertains to the distribution of water during shortage period and in times of drought. The CRA intervenes periodically to resolve water distribution disputes on ad hoc basis.

Another aspect of water management in India is different from our experience. The construction of storages to augment supplies in lean supply periods is mostly in the hands of the States. The federal government in India commonly referred to as the “Central Government” does not own large dams for irrigation. That responsibility falls to the States, which have taken the lead to build and manage dams across India’s large rivers. That is why the storage capacity on Indus Basin is far less than India.

The Central Government has, however, created several joint ventures with States to build dams. The Nathpa Jhakri Power Corp. (between the Central Government and the State of Himachal Pradesh) and Tehri Hydro Development Corp., Ltd. (between the Central Government and the State of Uttar Pradesh), are such examples.

Various inter-state and inter-provincial examples in case of USA and India show that even the intense water disputes among federating units which may be called states or provinces are better resolved through negotiations and through give and take options. The federal government also makes positive contribution by joining hands with federating units to develop consensus and facilitate resolution of intricate water issues.

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