Legal Framework Around Water in India

Water in India is governed under three different Acts: the Environmental Protection Act (1986), the River Boards Act (1956) and the Inter-State Water Disputes Act (1956). Other Acts and Regulations affect water resources in different ways by addressing its importance for agriculture, biodiversity and conservation and drinking water. These three Acts, however, have the broadest scope in terms of how they affect all aspects of water management.

Water in Constitution of India

Water is a state subject via Entry 17 of State List, thus states are empowered to enact legislation on subject of water. But this entry is subject to the provisions of Entry 56 of Union List. The specific provisions in this regard are as under:

• Entry 56. 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.
• Entry 17. Water that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List – I.

At the same time, the Articles 131 and 136 of the Constitution have been used by the States frequently for bringing the matters related to inter-State rivers before the Supreme Court via the Special Leave Petitions. Further, Article 143(1) of the Constitution has been used by the Central Government (via President) for seeking opinion of the Supreme Court on the matters related to inter-State rivers, under the advisory jurisdiction of the Supreme Court.

River Boards Act

The regulation and development of inter-state rivers and river valleys was to be entrusted to various River Boards when this Act was adopted in 1956. The River Boards were designed to advise the central government on development opportunities, coordinate activities and resolve disputes. Under their mandate, the Boards were required to provide advice to the government on various issues related to rivers. The Indian government has been unable to constitute a River Board since the Act was enacted, almost fifty years ago.

Inter-State Water Disputes (ISWD) Act, 1956

Interstate River Water Disputes Act, 1956 (IRWD Act) was enacted by the parliament of India under Article 262 of Constitution to resolve the water disputes that would arise in the use, control and distribution of an interstate river or river valley.

Article 262 of the Constitution has made the following provisions:

• The power of legislation conferred upon Indian parliament for 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.
• By making a law, the parliament can also provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of inter-state water disputes.

Thus, the constitution provides a role to the Central government in adjudicating conflicts surrounding inter-state rivers that arise among the states/regional governments. This Act further has undergone amendments subsequently and its most recent amendment took place in the year 2002.

Scope of the Act

IRWD Act is applicable only to interstate rivers / river valleys. If the action of one state affects the interests of one or more other states, then only water dispute is deemed to have arisen under IRWD Act. The action of the state can be of two types:

• Actions of a downstream state affecting the interest of an upstream state
• Actions of an upstream state affecting the interest of a downstream state

Here we note that the action of the downstream state’s action can affect the upstream state only when the downstream state is bulding a dam or barrage near the boundary or a submerging territory of the upstream state. However, the actions of the upstream state can affect the downstream state in many ways, which includes:

• Consumption and storage of water by upstream state
• Onstruction in flow of non-flood water by upstream state
• Alternation in the quality of water due to anthropogenic activities by upstream state

These come under the purview of the legal causes of water dispute to the downstream states.

Creation of the Tribunal

When 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.

The tribunal such created as a power of a Civil Court but its verdict is equivalent to Supreme Court verdict when pronounced in the ambit of IRWD Act. When the tribunal final verdict issued based on the deliberations on the draft verdict is accepted by central government and notified in the official gazette, the verdict becomes law and binding on the states for implementation. But at the same time, you must note that the verdict of the tribunal can be challenged in Supreme court via civil suits.

The IRWD act was amended in 2002 for the following purposes

• If there is any Tribunal award which predates 2002, it can not be altered by new tribunals
• If there is any tribunal award which post dates 2002, can be altered by new tribunals. The idea is to resolve fresh water disputes which were not addressed by earlier tribunals/ agreements as and when they surface.

So far,  the awards of four Inter-State Water Tribunals have been notified.

• Godavari Water Disputes Tribunal (April 1969)
• Krishna Water Disputes Tribunal (April 1969)
• Narmada Water Disputes Tribunal (October 1969)
• Cauvery Water Disputes Tribunal (June 1990)

Out of them, the first three tribunal awards were issued before the year 2002 which cannot be altered by the new tribunals. The tribunals formed on sharing water of Ravi & Beas rivers, Vamsadhara River, Mahadayi / Mandovi River and Krishna River-2 are either yet to pronounce the verdicts or the issued verdicts are to be accepted by the Government of India.