CONSTITUTIONAL LAW

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Equitable Management and Allocation of Trans-Boundary Waters in India*
by Mohan V. Katarki**

Cite as : (2003) 2 SCC (Jour) 29

India, which forms part of South Asia, is blessed with the mighty Himalayan mountains in the North, the Western Ghat ranges in the South and the Vindhyas including the Aravali mountains in the Central part. The Indus, Ganga and Brahmaputra basins have their sources in the glaciers of the Himalayan mountains. The Narmada basin is drained from the Vindhyas and the basins of the South viz. the Godavari, Krishna and Cauvery originate on the Eastern slopes of the Western Ghat ranges. While the Himalayan basins are perennial being snow-fed, the Central and Southern basins are seasonal, as rainfall is the source. The growth of engineering and agricultural technology in the middle of the 18th century, inspired building up of dams in India mainly to irrigate drought-affected areas, situated in the upland areas of the basin. Intolerance of such activities in the upper riparian areas, has been the prime cause of conflict with lower riparians representing old users of water.1 This article proposes to examine the legal issues arising out of the claims on trans-boundary waters in India.

The Indian subcontinent comprised of British India and semi-sovereign Indian States like Kashmir, Hyderabad, Mysore, Jaipur etc., under the paramountcy of the British Crown.2 The British Parliament, while granting independence in 1947, partitioned British India into Pakistan and India. The Indian States, which were also liberated in 1947 from the international guardianship of the British Crown, integrated by accession either with India or Pakistan depending on the geographical proximity. The development of water during the British colonial period had witnessed serious trans-boundary conflicts amongst provinces in British India on the one hand and between British Indian provinces and Indian States on the other. Important among them related to the basins of the Indus, Cauvery and Periyar.

The Republic of India is a Union of States3 conforming to the quasi-federal model. The framers of the Constitution, 1950, being aware about the challenges faced in the exploitation of trans-boundary water, devised two different regimes.4 The first one enables the Centre to regulate or develop the trans-boundary waters under Entry 56 of the Union list. The second regime contemplates allocations of trans-boundary waters amongst the riparian States by permitting each riparian State, by reference to Entry 17 of the State List, to develop trans-boundary waters within its territory, subject to a decision of the high-level constitutional tribunal.5

Parliament, in 1956, passed the River Boards Act, under Entry 56 of the Union List, to regulate or develop the trans-boundary waters by adopting an approach of integrated management.6 The Act provides for an establishment of a river board consisting of representatives of all riparian States to advise the "regulation or development" of trans-boundary waters. Whenever dispute or differences arise between the riparian States, Section 22 of the Act envisages settlement of the same by an arbitrator appointed by the Chief Justice of India. However, this piece of legislation has remained dead because the Central Government has never pressed it into service and established any river board. Thus, equitable utilisation of trans-boundary waters by an approach of integrated management is a failed initiative in India. No doubt, the Central Government has established some river boards under the special Acts, including the Damodar Valley Corporation which was established by the Dominion Government of India, prior to 1950. But these boards cover only a small part of the trans-boundary waters and that too, in respect of non-controversial waters.

Due to the failed initiative of the Central Government, each riparian State was left free to prepare its own plans to exploit the trans-boundary waters passing through its territory. Plannings and counter-measures coupled with problems arising from the integration of Indian States and reorganisation of States under the States Reorganisation Act, 1956 etc., have given rise to trans-boundary water conflicts. Whether it is the Himalayan basin of the Indus or the Central and Southern basins of the Narmada, Godavari, Krishna and Cauvery, the difference of opinion in exploiting water among riparian States was further fanned by political interest groups. The Central Government, in exercise of its powers under the Inter-State Water Disputes Act, 1956 constituted tribunals for adjudication of disputes in the sharing of trans-boundary waters of the Krishna, Narmada, Godavari, Ravi & Beas and Cauvery.

In the early 1940s, when the question arose as to what is the law to govern the sharing of trans-boundary waters in India, the Indus Commission, after discussing the Harmon doctrine, which enabled the upper riparians to fully control all waters within its territory and the Riparian theory, which on the other hand benefited lower riparians by ensuring uninterrupted natural flow of water, ruled that the rule of equitable apportionment recognized by the Supreme Court of the United States of America, beginning from Kansas v. Colorado is the law.7 Since then, this law with some local modifications having regard to the conditions, has become a common law on trans-boundary waters in India. The tribunals appointed to resolve Krishna8, Godavari9, Narmada10 and Ravi & Beas11 inter-State water disputes have reiterated the position that the rule of equitable apportionment is the governing principle in the allocation of trans-boundary waters in India. The Supreme Court of India, while dealing with the ordinance passed by the Government of Karnataka in 1991, has finally set at rest the doubts by accepting the rule of equitable apportionment as "true legal position about the inter-State river water and the rights of the riparian States".12

Emergence of environmental consciousness in the last decade has led to the movement against the Narmada dam in Gujarat. The Supreme Court of India (Mr Justice B.N. Kirpal), while dealing with the difficult question in a writ petition challenging construction of the said dam, has expressed the predicament thus:

"238. Conflicting rights had to be considered. If for one set of people namely those of Gujarat, there was only one solution, namely, construction of a dam, the same would have an adverse effect on another set of people whose houses and agricultural land would be submerged in water."

The Court justified its conclusion thus:

"239. Since long the people of India have been deriving the benefits of the river valley projects. At the time of independence, foodgrain was being imported into India but with the passage of time and the construction of more dams, the position has been reversed. The large-scale river valley projects per se all over the country have made India more than self-sufficient in food. Famines which used to occur have now become a thing of the past. Considering the benefits which have been reaped by the people all over India with the construction of the dams, the Government cannot be faulted with deciding to construct the high dam on River Narmada with a view to provide water not only to the scarcity areas of Gujarat but also to the small areas of the State of Rajasthan where shortage of water has been there since time immemorial."13

The International Court of Justice, in the case of Gabcikovo-Nagymaros Project, 1997 had also faced a similar dilemma. Mr Justice Weeramantry posed the question-

"How does one handle these considerations? Does one abandon the Project altogether for fear that the latter consequences might emerge? Does one proceed with the scheme because of the national benefits it brings, regardless of the suggested environmental damage? Or does one steer a course between, with due regard to both considerations, but ensuring always a continuing vigilance in respect of environmental harm?"

Mr Justice Weeramantry then proceeded to answer thus:

"It is clear that a principle must be followed which pays due regard to both considerations. Is there such a principle, and does it command recognition in international law? I believe the answer to both questions is in the affirmative. The principle is the principle of sustainable development and, in my view, it is an integral part of modern international law."14

This principle of sustainable development should command acceptance as a part of the rule of equitable apportionment, while allocating trans-boundary waters in India.

*    Author had presented this paper on 11-6-2002 at the International Conference conducted by the Natural Resources Law Center, University of Colorado Law School, Boulder, USA. Return to Text

** Advocate, Supreme Court, New Delhi. Return to Text

1. Speech by Shri H.D. Devegowda, Chief Minister of Karnataka, on 6-2-1996 before the National Water Resources Council, New Delhi. Return to Text
2. L. Oppenheim, International Law, 8th Edn., at p. 191 deals with vassal States including the position of the Indian vassal States of Great Britain. See also: Lee-Warner, The Native States of India, Tulsi Publishing House. Return to Text
3. Article 1 of the Constitution of India, 1950 states that "India, that is Bharat, shall be a Union of States". The First Schedule to the Constitution has listed the names of all the States. Return to Text
4. Articles 245 to 255 of the Constitution of India, 1950 deal with legislative relationship between the Centre i.e. Parliament and the States. The Seventh Schedule to the Constitution has incorporated three lists: List 1 i.e. Union List, List 2 i.e. State List and List 3 i.e. Concurrent List. Return to Text
5. Article 262 of the Constitution of India, 1950 deals with "adjudication of disputes relating to waters of Inter-State rivers or river valleys". Pursuant to this, the Inter-State Water Disputes Act, 1956 has been enacted by Parliament. The Act contemplates a tribunal headed by a Judge of the Supreme Court of India to adjudicate any water disputes referred to it. Return to Text
6. By reference to Entry 56 of the Union List, Parliament has enacted the River Boards Act, 1956 "to provide for the establishment of river boards for the regulation and development of Inter-State rivers and river valleys". Return to Text
7. The Indus Commission headed by Justice B. Rau was appointed in 1942 to resolve inter-provincial disputes between Sindh and the Punjab in the Indus waters. The Report of the Indus Commission, between paras 23 to 67 deals with the application of the rule of equitable apportionment for resolving inter-provincial disputes in India. Return to Text
8. The Krishna Water Disputes Tribunal was constituted on 10-4-1969 to resolve water disputes amongst the riparian States of Maharashtra, Karnataka and Andhra Pradesh. The Tribunal gave its Report (1973) and Further Report (1976), apportioning the waters of the inter-State Krishna river. Chapters XI and XII of the Report deal with the rule of equitable apportionment. Return to Text
9. The Godavari Water Disputes Tribunal was constituted on 10-4-1969 to resolve water disputes amongst the riparian States of Maharashtra, Madhya Pradesh, Karnataka, Andhra Pradesh and Orissa. The Tribunal gave its Report in 1979 and Further Report in 1980, apportioning the water of the inter-State Godavari river. Chapter IV of the Report deals with the rule of equitable apportionment. Return to Text
10. The Narmada Water Disputes Tribunal was constituted on 6-10-1969 to resolve water disputes amongst the riparian States of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan. The Tribunal gave its Report in 1978 and Further Report in 1979, apportioning the waters of the inter-State Narmada river. Chapter VIII of the Report deals with the rule of equitable apportionment. Return to Text
11. The Ravi & Beas Water Disputes Tribunal was constituted by an amendment in 1986 to the Inter-State Water Disputes Act, 1956 to resolve water disputes amongst the riparian States of Punjab, Haryana and Rajasthan. The Tribunal gave its Report in 1987, apportioning the waters of the inter-State Ravi & Beas. Chapter XII of the Report deals with the rule of equitable apportionment. Return to Text
12. The Supreme Court of India in Special Reference No. 1 of 1991, 1993 Supp (1) SCC 96 (II) at p. 138, para 71 ruled on the constitutional validity of the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 in a reference made by the President under Article 143 of the Constitution. Return to Text
13. Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664, at p. 764, paras 238 and 239 Return to Text
14. Case concerning the Gabcikovo-Nagymaros Project, 1997 ICJ Reports, at 86. Return to Text