18 ALJ (2007-08) 165 Water: Legal Issues and Social Concerns W: L I S C

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18 ALJ (2007-08) 165
Water: Legal Issues and Social Concerns
WATER: LEGAL ISSUES AND SOCIAL CONCERNS

by
Abhitosh Pratap Singh* and Kalpana Tyagi**
I. SIGNIFICANCE OF WATER
Life flows like water because life flows from water. Life & Water and Water & Life,
from the time immemorial, these two terms have fitted in perfect synchronicity and
have been immaculate complements for each other. From the pre-historic period to
the modern age of nano-technology, rivers have been the cradles of civilization and life
-line of the entire human community. All great civilizations sprouted, flourished and
reached their zenith at the bank of one or another river and thus, rivers became the
primordial manifestation of all Godly powers and true incarnation of endearing
motherly love. With the growth in civilization and increase in population, increased the
human needs both on the axis of quality and quantity and then began the realization
to control and monitor the water resources. Once again a glaring reflection of the
quintessential facet of life. Water & Life is inextricably inseparable. Tracing the history
shows that the concept of taxing evolved from the practice of controlling and tapping
water resources.1 Providence in his benevolence altruistically distributed the water
resources and the humans, as rapacious as ever, tried to concentrate the benefits of
this Divine benevolence to a particular class that gave birth to classes like upstream
vis-à-vis downstream. Chemically, water may have one of the simplest and most
stable formulae but when it comes to its physical distribution with in political
boundaries, it undoubtedly leads to exothermic reactions and instable political
equations. And all these factors have led to a different approach exclusively meant for
water matters, which once again is visible, in the drafting of Indian Constitution.
Water being a basic necessity was made a state subject but keeping in mind the
interdependence of different states on each other for the uniform distribution and
proper utilization of the national water resources, interstate river transportation &
drainage was assigned to the centre. It appears to be a reasonable step in the light of
the fact that without considering Rivers as a National asset,
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its proper distribution among riparian and upper riparian states cannot be ensured.
II CONSTITUTIONAL PROVISIONS AND WATER

Constitution of India, has made several departures from the provisions of the
Government of India Act, 1935. First, the state legislative power over water has been
made subject to Parliament under entry 56, list I. Secondly, the machinery for
resolving water disputes is not written into the constitution itself, but is to be provided
for by law by Parliament. Thirdly, jurisdiction of all courts including the Supreme Court
is not excluded by the Constitution, but Art. 262(2) empowers the Parliament to
provide for such exclusion by law.
Earlier under Government of India Act, 1935, Entry 19, list II Schedule 7 of the Act
provided for “water” that is to say, water supplies, irrigation and canals, drainage and
embankments, water storage and water power”. This was because land and water were
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treated as matters of local concern. However, waters of interstate rivers was
considered to be a matter of national importance, and Sec. 130 of the Act provided
complaints as to the interference with water supplies from any natural sources of
supply in a Governor's province or in a Federated State. Section 131 provided that the
Governor-General might refer any such complaint to Commission (unless he was of the
opinion that the issues involved were not of sufficient importance); S. 131 also
provided for the Commissioner's report to be implemented, subject to an appeal to His
majesty in council. And Ss. 132 and 133 made similar provisions for resolving water
disputes for the Chief Commissioners' Province. S. 134 barred the jurisdiction of all the
courts “not withstanding any thing in this Act” in respect of water disputes covered by
ss. 131 to 133.2
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Indian Constitution makes water a state subject. Center's legislative powers are
only confined up to Inter State River and Drainage. Relevant provisions are as follows:
“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 declared
by law to be expedient in the public interest”.
(a) “List I-Union List” (Entry 56):
“Water, that is to say, water supplies, irrigation and canals, drainage and
embankments, water storage and water power subject to the provisions of List
I”.
List II-State List (Entry 17):
In Concurrent List there is no direct entry pertaining specifically to water, but
with a broader and practical perspective an entry on planning, under “Economic and
Social Planning” can be considered as one related to water. Since water plays a
pivotal role in agricultural development and industrial development, which are
indicators of economic development, and since water is a primary need (drinking
and sanitation) for social planning, water resource development could be brought
with in the orbit of Concurrent List. If we see the past track record of policy making
in India, regarding matters related to water, we will find only Entry 17 of List
operational. Entry 20 of Concurrent List is also crucial, when it comes to the matter
related to water, for all gigantic projects receive their funds to be invested with
them, only once it is cleared by Planning Commission. Within the powers available,
Article 262 of the Constitution provides for Parliamentary legislation for the
adjudication of Inter state water disputes, and for barring the jurisdiction of the
courts in such cases.3
(b) “List III - Concurrent List” (Entry 20):
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(c) Seventy-third and Seventy-fourth Amendments4 of Constitution: A third tier

in this Constitutional structure has been introduced by 73rd and 74th
Amendments. Municipality and gram panchayat i.e. local governing bodies
introduced by 73rd and 74th Amendments, has also got some share in matters
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related to water. The Eleventh and Twelfth Schedules5 to the Constitution lay
down lists of subjects to de dealt by Municipalities and gram panchayats.
III RIVERS BOARDS ACT, 1956
Article 2466 of Indian Constitution, grants power to Parliament to legislate on any
subject matter, given in the various lists, in accordance with its provisions. As per the
existing constitutional provisions relating to ‘water’, the primary responsibility for
development rests with the State Governments, However, if water is transferred from
List II to List III - Concurrent
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List, as per Article 246(2), Parliament as well as the legislature will have the power to
make laws with respect to water.
Entry 56 of List I do not deprive the Stats of any power to which they are entitled
under Entry 17 of List II.
Under entry 56 of the Union List and Article 262.7 Parliament enacted two laws. viz.
i. River Boards Act of 1956, which provides for the establishment of advisory boards,
but no board has been established in this regard. ii. Inter-State Water Disputes Act of
1956.
River Boards Act of 1956, despite being a good piece of legislation, was never used
by Government Inter-State Water Disputes Act of 1956 was amended in 2002, to
make its provisions more efficient and efficacious.
Sec. 4 of the River Boards Act, 19568 provides for the establishment of Board by
Central Government on the receipt of such request by any state or by notification in
Official gazettee mainly for advising the Governments interested in relation to such
matters concerning the regulation or development of inter-State river or river
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valley or any specified part thereof and also for performing other functions which are
specified in the notification.
Sec. 13 of the Act provides the functions of board, which includes advising the
Government on any matter concerning the regulation or development of any specified
interstate river or river valley and in relation to the coordination of this activities and
to achieve maximum results in respect of the measure undertaken by them for
specified purposes.9
Sec. 14 of the Act provides that Board shall exercise its powers and perform all the
functions with in its area of operation and in consultancy with Central Government.
It is clear from these intelligible provisions that the basic idea behind this
enactment was to provide a think tank, having a corporate structure and thereby
judiciously utilizing the available water sources.
IV. INTER-STATE RIVER WATER DISPUTES ACT, 1956
According to Section 2(c) of the Inter-State River Water Disputes Act, 195610
“Water Dispute” means any dispute or difference between two or more State
Governments with respect to
(i) The use, distribution or control of the waters of, or in, any inter-State river or
river valley; or
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(ii) The interpretation of the terms of any agreement relating to the use,
distribution or control of such waters or the implementation of such agreement;
or
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(iii) The levy of any water rate in contravention of the prohibition contained in
section.
Section 311 of the Act entitles a state government to make a request to Central
Government for the establishment of Water Dispute Tribunal, where any present or
prospective legislative or executive act or any other act or circumstance, smacks of a
water dispute, as defined in Sec. 2(c).
Section 412 of the Act provides for constitution of Water dispute Tribunal by Central
Government, at the receipt of any such request by any state Government and where it
is of the opinion that the water dispute cannot be settled by negotiations, within a one
year from the date of receipt of such request of any state.
Section 5 of the Act provides for investigation of matters referred to it by Water
dispute Tribunal and for forwarding the report setting out facts to Central Government.
There is time limit imposed on it of three years and a further extension of a period not
exceeding
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two years, by Central Government, if decision cannot be given for unavoidable reason.
Sarkaria Commission's Recommendation: It is generally observed that the

Tribunals set up for resolving inter-State issues take considerable time to give
decision/awards. The matter received attention of Sarkaria Commission. The Sarkaria
Commission in its report at Chapter XVII on Inter-State River Water Disputes has
recommended that:—
i) Once an application under Section 3 of the Inter-State River Water Disputes Act
(33 of 1956) is received from a State, it should be mandatory on the Union
Government to constitute a Tribunal within a period not exceeding one year from
the date of receipt of the application of any disputant State.13
ii) Union Government should be to appoint a Tribunal, suo-moto, if necessary, when
it is satisfied that such a dispute exists in fact.
iii) The inter-State Water Disputes Act should be amended to ensure that the award
of a Tribunal becomes effective within five years from the date of constitution of
a Tribunal. If, however, for some reasons, a Tribunal feels that the five years
period has to be extended, the Union Government may on a reference made by
the Tribunal extend its term.14
iv) The Tribunal should give its award within a period of three years from the date
of its constitution.15
v) The Inter-State Water Disputes Act, 1956 should be amended to give a
Tribunal's award the status and force of an order or decree of the Supreme Court
to make a Tribunal's order binding.16 These five recommendations were
considered by the erstwhile Sub-Committee of the Inter-State Council, based on
which parliament passed an amendment Act in 2002.
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Amendments to the ISWD Act 2002: Based on Commission's recommendations,

several changes have been made to ISWD Act.
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i) Amendment provide for a time limit of one year for the establishment of Tribunal.
ii) Three years for the Tribunal to give its award; it can be extended by Central
Government by a further period of not exceeding two years.
iii) Awards have given the status of decree passed by Supreme Court.
It is apparent that the present amendment goes some steps further than what
was suggested by Sarkaria Commission. Still some scowling loopholes are present
which are needed to be plugged. The most disturbing loophole is regarding the
status of Supreme Court's decree, which is apparently granted to Tribunal's verdict.
Does any Supreme Court decree trace its authority to its publication in gazette?
This simple question is enough to rock the legal soundness of this amendment.
V WATER DISPUTES
If we see the initial years after independence, it is apparent that the utility of these
enactments was first realized with the upsurge of water disputes and later in year
1967, following 15 disputes were identified.17 These disputes can be divided into two
categories.
The first group encompasses those disputes where Mutual Discussions &
Negotiations fructified into gainful Inter-state agreements. These were disputes that
primarily involved cost-sharing and benefits of specific projects such as Musakhand
Project dispute, Tungabhadra Project and Jamni Dam Project or they were relatively
specific disputes over smaller rivers such as Palar, Subarnarekha & Mahi river disputes.
An important inter-state river dispute that first got resolved, however, it had to be
reopened with the division of Punjab into Punjab & Haryana in 1966 is the Ravi-Beas
water dispute.
The second group of disputes identified by the Administrative Reforms Commission,
were unsettled at that time:18
In this category, the Cauvery, Krishna-Godavari & Narmada water dispute are major
river disputes, involving large river basins and all of them have been referred to
tribunals. The Tungabhadra,
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Rangawan Dam, Koyamani river dispute, Keolari and Bandar Canal project albeit
concern relatively specific disputes over smaller projects have nonetheless been
victims of political dithering and dilly-dallying and still long to see the sunshine of
tenacity to resolve them. Few prominent Inter-State Water Disputes Tribunals, set up
by Central Government so far, are as follows:—
i. Godavari Water Disputes Tribunal (In April, 1969).

ii. Krishna Water Disputes Tribunal (In April, 1969).
iii. Ravi and Beas Waters Tribunal (In April, 1986).
iv. Cauvery Water Disputes Tribunal (In June, 1990).
A. Krishna-Godavari Water Dispute:19 The dispute primarily concerns interstate
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utilization of untapped surplus water of the rivers Krishna & Godavari. The disputants
in the battle for waters are Karnataka, Andhra Pradesh, Maharashtra, and Madhya
Pradeh & Orissa.
1. Historical Background - In 1950's the Planning Commission with the intent to
use waters of Krishna and Godavari for irrigation and hydroelectric power
suggested the states of Bombay, Hyderabad, Madras & Mysore certain viable
projects & assess their merits. In 1951, an agreement was drawn which provided
for review after 25 years. Karnataka (then Mysore) did not ratify the agreement
relating to the Krishna waters. Furthermore, reorganization of states in 1953 on
linguistic basis fundamentally altered the situation and made 1951 agreement
seem passe in the altered circumstances. Protracted sterile negotiations followed
& finally separate tribunals with the identical membership were constituted for
Krishna Godavari.
In the light of altered circumstances, following primary issues emerged in Krishna-
Godavari dispute;
i. Karnataka & Andhra Pradesh objected to the diversion of more water at Koyna by
the upper riparian state, Maharashtra, for a hydroelectric project & other
irrigation work, as that would reduce downstream flow, with adverse
consequences for agriculture & industry.
ii Andhra Pradesh's objection to the construction of dams by the upper riparian
state, Maharashtra, for irrigation purposes.
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iii It was questioned whether Maharashtra could divert water westward for
generating cheap hydroelectric power on the slopes of the Western Ghats.
iv Maharashtra, the upper riparian state, questioned Andhra Pradesh's intention to
store more water at the Nagarjuna Sagar.
2. The Tribunal's Verdict20 - Relying on the principle of equitable apportionment
for the actual allocation of water, the Krishna Tribunal reached its decision in 1973.
The award was published albeit much late in 1976.
i On the first issue of the extent to which the existing uses should be protected
as opposed to future or contemplated uses, the Tribunal held that the
projects, which were in operation or under consideration in September 1960,
should be preferred & given superior protection vis-à-vis uses contemplated
after the said period, unless there is a mutual agreement between the parties
to the countrary.
ii On the second issue of diverting the waters of Krishna to another water line,
the Tribunal held that when the water was diverted to areas outside the river
basin but within the political boundaries of the riparian states, it was legal.
However, the Tribunal maintained a deafening silence on the issue of diverting
water to the non-riparian states.
iii The Tribunal allowed for protection of westward diversion of Krishna waters by
Maharashtra for power production.
iv. On the issue of Rules governing the preferential uses of water, it was held
that use of water for irrigation was to be preferred to the production of hydro-
electric power for the following reasons:
a) Water is the only source of irrigation whereas power can be generated using
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alternative methods such as coal, oil & other natural resources.
b) Socio-economic conditions of the population & their dependence on water
of Krishna for irrigation necessitate preferential treatment to agriculture.
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However, the Krishna tribunal made provisions for review of its order any time
after 31st May 2000.
After making its award for the Krishna case, the Godavari Tribunal commenced
hearings in 1974. While the Tribunal was deliberating on the award, the disputant
states negotiated amongst themselves & reached agreements on all the contentious
issues. Hence, the Tribunal in its final award in 1979 simply endorsed these
agreements. This award was therefore, markedly different from the other Tribunal
awards in the following respects:
i In this award, there was no quantification of flows or quantitative division of flows,
since, the States by mutual agreement had divided the area into sub-basins and
allocated flows from these sub-basins to individual states.
ii Agreement was not subject to review; therefore, it effectively became perpetually
valid.
B. Cauvery Dispute: 1. Historical Background - Much water has flown down the
Cauvery since 1807 but the dispute simply refuses to subsist between the principal
states of Kartnataka & Tamil Nadu. The parties then were the Madras Presidency in
British India & the princely States of Mysore. The dispute was born out of Colonial
Government's apprehension that steady investment in irrigation work by the princely
state of Mysore will affect delta agriculture. Thus, after much deliberation between
Mysore & Madras, the ‘Agreement of 1892’ was signed. Apart from other details, the
primary, clause required that the Mysore government get the consent of the Madras
government before constructing any ‘new irrigation reservoirs’ on rivers that originate
in Mysore or flows through it to Madras Presidency.
The Cauvery dispute therefore, primarily relates to the re-sharing of water that is
already being almost fully utilized. Karnataka's important disputation over the
Agreement has been that the agreement was unfair to begin with since Mysore was a
princely state and Madras was a Presidency at the time of the Agreement.
Furthermore, the present disputant stats of Karnataka & Tamil Nadu can not be wholly
identified with the old Mysore & Madras.
2. Tribunal's Final Award - February 5, 2007 was indeed a historic day for the
States of Karnataka, Tamil Nadu, Kerala and the Union Territory Pondicherry as the
Cauvery Water Disputes Tribunal after sixteen long years of protracted journey, finally
announced its award
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but unfortunately the deadening silence of the hiatus, echoes at the subsequent stage
of escalation of Dispute while the verdict awaits implementation. At this sensitive
stage of escalation of Dispute while the verdict awaits implementation. At this
sensitive stage, whether the final award by the Tribunal will conclusively settle the
decades old dispute or it is again bound to go in vain, depends largely on the political
and not on the technical complications of water-sharing and management package.
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The three-member Tribunal in a total of 580 sittings, meticulously deliberated upon

evidence and arguments advanced by the legal teams of the three Riparian States &
Union Territory before pronouncing its final implementation of the award depends
momentously on the political acceptance of the award within Tamil Nadu, Kerala, the
Union Territory of Pondicherry and Karnataka in particular.
In a unanimous award, the Tribunal, comprising its Chairman Justice N.P. Singh &
Members N.S. Rao and Sudhir Narain, made allocations to the four disputants based
on a total availability of 740 thousand million cubic feet (tmc ft) water in the Cauvery
(measured at the Lower Coleroon Anicut site) at 50 percent dependability. The order
gives Kerala 30 tmc ft, Karnataka 270 tmc, ft., Tamil Nadu 419 tmc ft and Pondicherry
7 tmc ft. Of what is left, 10 tmc ft is allocated for “environmental protection” (a
minimum flow to protect river flora & fauna) and 4 tmc ft. for escapages into the sea.
The order says that Karnataka must release 192 tmc ft. of water measured at
Biligundlu on the border with Tamil Nadu. This includes the 10 tmc ft. set aside for
environmental protection. From Tamil Nadu's share of 182 tmc ft. it must release
Punducherry's share of 7 tmc ft.
The Tribunal's final award appears to be based on the Helsinki Principles. According
to Helsinki Rules on the Uses of the Water of International Rivers, any water accord
should be based on equitable apportionment of water. It should take into account the
population, arecut, farmer's needs, use of water and other such relevant factors. If the
Tribunal award were to meet every Disputants demand completely, the river would
have had to yield atleast 1,135 tmc ft. of water. Cauvery being a deficit peninsular
river, it was not quite unanticipated that everyone's demand could not be completely
met. The bail out package, therefore, had to be one of conciliation and win-win for all.
As a matter of fact, the award is indeed on those
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lines. As rightly pointed out by Guhan21 that even as governments fought their cases
at official meetings, in courts and tribunals, a non-official, people-to-people track in
dispute resolution had to be initiated in a spirit of reason and non-partisanship to
actually resolve the Dispute.
The arrangement will come into force within 90 days of its notification by the
Government.
While discussing the Final Award, it would be apposite to refer to the Interim Award.
Whereas the 1991 interim award by the Tribunal stipulated that Karnataka had to
make available 205 tmc ft at Mettur, the present order has made Biligundlu, where a
Central Water Commission gauging stands, the point of release. A significant aspect of
the final order is that it lays no cap on the extent of irrigated area of Karnataka, unlike
the interim order. The interim order stated that Karnataka could not extend its
irrigated area beyond 11.2 lakh acres, an imposition that had invited immense
protests from Karnataka since it was contemplated as being unfair.
The final award has undoubtedly been delivered after intense deliberations;
however, one unresolved contentious issue continues to subsist. On the point of
“Distress-sharing Formula”, the Tribunal has apparently followed the Shakespearean
adage ‘brevity is the soul of wit’. All that the award states on the contentious issue is
that the Distress shall be shared proportionately “in case the yield of the Cauvery
basin is low in a distress yeaqr, the allocated shares shall be proportionately reduced
among the States & Pondicherry”.
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The response to the Tribunal's verdict has been almost similar. If Tamil Nadu
expressed cautious optimism, Karnataka is visibly upset and Kerala staring helplessly
as its unused water continues to water the parched lands of Tamil Nadu. The
significant question is why is Karnataka sulking? In a State where the river Cauvery is
not just a water body, but a symbol of Kannada culture, the issue has wider
ramifications that go much beyond the technical & legal issues. Even from a more
practical perspective, Karnataka's demands haven's been met completely. Karnataka
demanded 465 tmc ft. of water to take care of its drinking water requirements in its
burgeoning cities specially Bangalore, which has not even been considered. For
drinking water requirements, it was austerely awarded a meager 1.75 tmc ft.
Secondly, Karnataka has been denied
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access to 21 tmc feet of water from the Kabini basin which would, instead be used by
the state of Tamil Nadu until Kerala builds the infrastructure to store it. And finally,
the water needs of some its lift irrigation projects that irrigate nearly two lakh acres of
the land in the draught-prone areas of the basin have been completely ignored.
Notwithstanding its grudges, Karnataka's response to the Final Award is in sharp &
undoubtedly positive contrast to the violence that broke out in 1991 after the Center
notified the interim award by the Tribunal. At least 23 were killed, hundreds injured
and property worth crores was vandalized in the macabre violence.
Of all the parties to the Dispute, Kerala's position is the trickiest. Kerala has only a
3.5 per cent share in the drainage basin in the Cauvery but contributes (as per its
claim) about 20 per cent of the yield of the river. As per the award, Kerala which has
so far been allowed to utilize only 5 tmc ft. of the total 740 tmc ft. yield of the river
basin, can from now on use 30 tmc ft. (in addition to (he existing use) as against its
demand for an allocation of 99.8 tmc. Ft. However, to utilize this water, Kerala's
utmost priority should be to implement its many pending project proposals on a war
footing, else the allocation would continue to be gulped by the thirsty lands of Tamil
Nadu.
Since the Cauvery Dispute has more political than legal dimensions, even the
response of Tamil Nadu, apparently most benefited in the award, has' been lukewarm.
Not quite surprisingly, when the Tribunal announced that Tamil Nadu would receive
192 tmc ft. of Cauvery water from Karnataka at Biligundlu, there was air of elation,
however there were no celebrations. Citing the reasons, M. Karunanidhi, who has
handled the sensitive issue for the past 38 years said that there could be celebrations
only when the people of Tamil & Karnataka unitedly accept the award. An important
and not completely unfounded reasons for dissatisfaction with the Tribunal's award is
the absence of a “distress sharing formula”, though the final award did say that in
years of lower rainfall the four riparian States would “proportionately reduce” their
share of the waters. It was the absence of such a formula that allowed Karnataka not
to implement the interim award in the years of “distress” (when rainfall was low)
between 1991 and 2006. And due to this Tamil Nadu farmers lost either the “Kuruvai”
or the “samba” crops, or both, in the years when both the southwest & Northeast
monsoon had failed.
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Notwithstanding its adherence to Helsinki Principles, the final award by the Tribunal
has ensured at best cautious optimism amongst the Disputants, Coming after a long-
drawn bitter dispute, the award has renewed the demand for nationalization inter-
state rivers, interlinking of rivers in the southern peninsula, and the ‘lining’ of canals.
C. Ravi-Beas Water Dispute: At the center of the storm of Ravi-Beas Dispute are
Punjab & Haryana, two agricultural surplus states, that ushered in the green revolution
in India. Due to paucity of water & uncertainties of southwest monsoon, irrigation is
the mainstay of agriculture. However, the dispute that prima facie seems to be only
about sharing of waters has deeper political & social undercurrents. According to
seasoned political analysts, Ravi-Beas water sharing is an extremely emotive issue &
no party can afford to ignore local interests.22 Punjab, the bread basket of India, the
State that satiated the hunger of entire Nation & the land of five rivers has ironically
been left dehydrated when it comes to meeting her own water requirements. In
Punjab, the issue is essentially seen as one of Punjabi pride verses Haryana's
demands. Besides if Haryana's needs are genuine & reasonable, even Punjab's
concerns are not entirely unfounded. The State has harnessed about 98% of its
agricultural potential - 95% of which is dependent upon irrigation. Hence, the volatility
of the issue. The credence of the matter can be comprehended from the fact that the
Ravi-Beas dispute has patently divided the political parties on State lines. The same
political parties took diametrically opposed stands in different states when the issue
emerged during the 2005 Haryana elections & the more recent Punjab elections.
Congress' Haryana state unit opposed its own party's Punjab Governemnt stance on
the issue. While the Haryana Congress supported the State Chief Minister, Mr. Om
Prakash Chautala, in opposing the move by Congress-ruled Punjab to scrap the water
sharing treaties; the Shiromani Akali Dal, a constituent of the NDA from Punjab, stood
by ruling Congress on the issue. The Punjab unit of the BJP meanwhile maintained a
nervous silence on the issue.23
1. Historical Background- Post-independence, an inter-state meeting was convened
to devise a mutually acceptable formula on the sharing of the waters of Ravi &
Beas, which finally culminated into an
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agreement in the year 1955. According to the agreement of 1955, the surplus beyond
pre-partition use was allocated to the state of Punjab (which later divided into present
day Punjab & Haryana), Pepsu (an amalgamation of former princely states), Rajasthan
& Jammu & Kashmir. In 1956, Pepsu was merged into Punjab & their shares under the
1955 treaty were also combined, for a total of 7.2 m.a.f.24
2. Present Dispute- The Ravi-Beas dispute re-opened with reorganization of Punjab

into Punjab & Haryana in the year 1966. Ravi, Beas, Sutlej & Yamuna, the four
perennial rivers flow through both these states that are highly agrarian in nature
& heavily dependent on irrigation to meet their water requirement. When Punjab
was re-organized in 1966, the 40.16 m.a.f.25 of total water available from these
perennial rivers was distributed amongst the principal states as: 26.24m.a.f. was
allocated to erstwhile Punjab & Delhi, 10.44 m.a.f. to Rajasthan, 2.79 m.a.f. to
Uttar Pradesh & 69 m.a.f. to Jammu & Kashmir. In May 1967, Haryana asked
Punjab for a share of 4.8 m.a.f. out of 7.2 m.a.f. surplus allocated to Punjab
under the 1955 agreement. Central Government vide its notification in 1976
allocated 3.5 m.a.f. to Haryana, which was fervently opposed by Punjab on the
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ground that it was a riparian & user & the said allocation would adversely hinder
the development of canal irrigation. Further, Punjab maintained that it was
obliged to give only as much water as mentioned in section 78 of the Act of
Parliament, 1966, which re-organized Punjab. The dispute thus primarily
centered on the interpretation & application of the impugned law that stipulated
apportionment of waters as a result of the Beas project, having regard to the
purpose of the project. Intense discussions followed, with between the two states
& Rajasthan too became a party to the negotiations that finally culminated into
an agreement in 1981 wherein Haryana & Punjab were allocated 3.5 & 4.22
m.a.f. respectively. Dissatisfied with the award, the states lobbied for the
formation of a Tribunal to examine the Ravi-Beas dispute. The Tribunal formed in
1986, pronounced its award a year later revising upward the estimate of the
available surplus & allocating 5 & 3.83 m.a.f. to Punjab & Haryana respectively.
Still piqued, both the States sought clarification, which the center did not
provide & hence the award has not been notified & the toothless tiger is still
waiting to see the light of the day to have the teeth of final binding decision.
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VI INTER LINKING OF RIVERS

One of the most challenging drawbacks of sky rocketing scientific and societal
progress is the increasing scarcity of water. Increase in grain production for dreadfully
increasing population and electric production for meeting the needs of such a vast
territory, are the main objective of this project. From its very inception this project has
been frowned upon by several political and social groups. Though this idea has been
deliberated, mainly for last three decades but is embryonic form was seen in 19th
century when, Sir Arthur Cotton had thought of a plan to link rivers in southern India
for in-land navigation. The idea was partially implemented but was later abandoned
because inland navigation lost ground to the Railways.26 Captain Dinshaw J. Dastur
mooted for ‘Garland Canal’, which was not same as linking of rivers and was
considered to be a mere fancy.27
During 1970s, India in its talks with Bangladesh over water issues, proposed a
mega project of linking Ganga-Brahmaputra by gravity link canal. Proposal was
rejected by Bangladesh because of its huge probable expenditure and apparent non-
viability. Dr. K.L. Rao's proposal of a Ganga-Cauvery Link was another idea that (like
Captain Dastur's ‘Garland Canal’) was seemed to be an attractive one. As envisaged by
Dr. Rao, the link was to take off near Patna, pass through the basins of the Sone,
Narmada, Tapi, Godavari, Krishna and Pennar rivers, and join the Cauvery upstream of
the Grand Anicut. It was supposed to be 2,640 kilometres long, withdrawing 60,000
cusec from the annual flood flow of Ganga 150 days per year.28
The interlinking project is based on the National Perspective for Water Development
as framed by the Ministry of Water Resources in August 1980. The National Water
Development Agency (NWDA) was set up in 1982 to carry out detailed studies in the
context of the National Perspective.29
In the 1990s., the Government appointed a Commission to examine the strategy of
water resource development, including the possibility of interlinking rivers.
Page: 183
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Its report - which is not available to the public - is understood to have given
cautious support, subject to a careful examination of all relevant aspects, to the idea
of linking canals to divert surplus waters from some selected rivers to the water-short
basins and regions.30
Lately, in 2002, after the Supreme Court dealt with a Public Interest Litigation
directing the government to complete the construction of the interlinking project
within the next 12 years, these proposals of the NWDA were high lighted by media.
In furtherance of implementing this order of Supreme Court, a Task Force was
appointed by Government of India, headed by Suresh Prabhu. The same order of the
apex court made the professionals interested in sustainable development of water
resources in India and examines the techno-economic feasibility of this project, which
is calculated to be world's largest construction project.
Boon or Bane:
The loud appeal of interlinking rivers is based on the perpetual water problems of
Indian Subcontinent, which are mainly due the uneven distribution of water resources.
One state is suffering due to un-required abundance of water and on the other hand
one is dying out of scarcity of water. Desperate solution to this problem, which strikes
in mind is nothing but water transfers from water-abundant rivers to water-deficit
areas so that there can be adequate supply in every part of the country. On another
axis, the project is seen as promoting national integration and a even and fair
distribution of the country's natural water wealth.
Boon
Whether the linking of rivers will promote integration or will further generate new
debates is one question which is still locked in future box. As far as the probable
benefits likely to follow are:
i The projected benefit in terms of agriculture include 25 million hectares of
irrigation from surface water, 10 million hectares by increased use of ground
water, totaling to 35 million hectares which will be over and above the ultimate
Page: 184
irrigation potential of 140 million hectares. India has one of the lowest yield of cereals
at 213, 4 kg/hectare of land.31
ii It would also provide the necessary discharge for augmentation of flows at

Farraka required to flush the Calcutta port and in land navigation facilities across
the country.32
iii Construction of an interlinking canal system backed up by adequate storages
could be planned to meet all requirements of Kerala as also for transfer of some
waters towards east to meet the needs of drought affected areas.33
iv It is estimated that net 34,000 MW of hydro power will be generated as a result
of this project.34
Bane
But, this world would have been a better place had there been no discrepancy with
theoretical anticipation and practical implementation. There is so much un-raveled and
so much undiscovered that this project looks more like an infeasible fancy which is
likely to follow some un-foreseen and un welcome results. The basic assumption, on
which this project is based, that there is large surplus of water in some basins, which
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-
comes out in form of disastrous flood, is in itself untenable. But the question is
whether the floods are really a disaster, as it is perceived by urban civilization or a
constructive geological mechanism, that has been developed by nature over a span of
several thousands years.
We must realize that river flooding creates fertile plains, by depositing nutrient-rich
sediments, which had acquired the textures and mineralogy to hold enormous
quantities of water and nutrients. Low frequency and high magnitude flooding makes
new cultivable farmland, in addition to all of the above.35 River flooding, in lowland
areas particularly, is good for agriculture and ecology. Keeping in mind that human
civilization is result of persistently sustainable
Page: 185
agriculture, it is logical to say that no natural process is more beneficial to mankind

than Natural River flooding. Flooding only becomes a disaster from human's viewpoint,
when there inhabitants are flooded.
Ecological Disaster: Interlinking of rivers may prima facie seem to be a promising

alternative to the resolution of never-ending disputes of water distribution. But the
grand project is not only dreadfully expensive; it also faces numerous practical
difficulties that are too thorny to be resolved. Funding is one serious problem. As per
estimates by NCIWRP, the amount required for completion of projects already
undertaken is Rs. 1,10,000 crore in the Eleventh Plan & the ambitious Inter-linking
river project will add an additional burden of Rs. 5,60,000 crore to the exchequer. In
addition, continuing energy costs for operating the project are also involved. Secondly,
as optimistically contemplated, not all the rivers are water surplus. For instance, it is
an accepted proposition that Ganga is short of water in the lean season and needs to
be augmented. Environmentally, the interlinking could have devastating impacts. The
canals designed for carrying irrigation water, rather than large peak flows, will not be
sufficient to control or divert floods in the northern states, instead they will transfer
silt. Several large dams built to provide the head & storage required to supply the
canals will permanently submerge fertile lands, forests, village communities & towns,
leaving millions of people displaced. The Tehri Dam & Sardar Sarovar Project are grim
reminders of Government's failure to rehabilitate the displaced. Evidently, the
displacement caused due to inter-linking of rives is unfathomable.
Apart from these clearly visible drawbacks of this project, there are several others
which are not apparent rather subtle but having much deeper impact on ecology. On
such result has direct impact on Monsoon.
Bob (Bay of Bengal), because of its unique character resulted from the presence of
a less-dense and low-saline layer of water, plays a crucial role in generating summer
monsoons. The presence of low-salinity layer helps in the maintenance of high sea-
surface temperatures (greater than 28 degrees C) which is required for healthy
summer monsoon. After Interlinking of Rivers only little water would be returning to
the oceans because of its exhaustive distribution, and in that case Marine life will be
deprived of nutrient supply and marine productivity will get adversely affected.
Page: 186
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-
Though the BoB gets back more water from land than it gives by evaporation to
maintain the low-density layer. If so, its effect on the monsoon system of the river-
linking project has not been anticipated as yet. How much minimum water should be
returned to the BoB from land to maintain the low salinity layer and therefore the
monsoon system? How much land water is likely to be returned to the BoB annually
after the completion of all linkages?36 All these questions are unanswered. There is a
probability that Monsoon system may get degraded and may even start vanishing on
Decadal or (Century scale). It will also disturb the Peninsular River system, which is
mainly based on Rainwater.
That this proposal is needed to be perceived from different angles and with
scrutinizing vision to ensure that this mammoth project really turns out to be a
constructive vision rather than a destructive mirage.
CONCLUSION
Water is the pivot on which human life revolves. Water, from distribution of rivers to
linking of rivers is an issue of national importance having several environmental and
social ramifications. Roscue Pound's theory of social engineering through the device of
law seems to be the only defining line in this context. Law's role in this scenario
becomes more crucial for; these issues are the ones which can only be resolved
through sound legal theories. Legal theories which provide a scope for scientific
theories and pragmatism.
On the issue of interlinking of rivers, Supreme Court should monitor the whole
process and should take the assistance of various committees. Interlinking of Rives
should only be implemented after its pros and cons have been visualized. This is one
issue which apart from scientifically sound and eco friendly technology requires
consensus among states.
As far as water enactments are considered still, after the latest 2002 amendment in
ISWD Act, the Act continues to be toothless. The Act is silent on the powers of the
Tribunal in case the award pronounced is not adhered to, as has been the case with
recent Cauvery Disputes Tribunal Award.
Page: 187
Law depicts the need of society and therefore it should be accordingly remoulded
and made capable to tackle social ramifications of legal problems, for, in the ultimate
analysis, law is nothing but responsible insurer of justifiable social distribution and a
device to provide a socially compatible legal system.
———
* Advocate, Delhi High Court, Delhi.
** LL.B., 3rd. Year, Campus Law Centre, Faculty of Law, Delhi University.
1 http://en.wikipedia.org/wiki/Water dispute, as accessed on 21.03.07.

2 Interference with water supplies, “130, Complaints as to interference with water supplies - If it appears to
the Government of any Governor's Province or to the Ruler of any Federated State that the interests of that
Province or State, or of any of the inhabitants thereof, in the water from any natural source of supply in any
Governor's or Chief commissioner's Province or Federated State, have been, or are likely to the affected pre-
judicially by - (a) any executive action legislation taken or passed, or proposed to be taken or passed; (b) the
failure of any authority to exercise any of their powers, with respect to the use, distribution or control of water
from source, the Government or Ruler may complain to the Governor General”.
3
IYER, R.R., Water: Perspectives, issues, concerns, Sage publication, p. 27.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
4
243A. Gram Sabha - A Gram Sabha may exercise such powers and perform such functions at the village level as
the Legislature of a State may, by law, provide. By 73rd amendment a new Schedule 11 was added in the
Constitution 74th Amendment introduced Municipal bodies in Indian Constitution. By 74th amendment a new
Schedule 12 was added in the Constitution 243A. Constitution of Municipalities (1) There shall be constituted in
every State.
(a) A Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition
from a rural area to anurban area;
(b) A Municipal Council for a smaller urban area; and
(c) A Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
5 The list includes, drinking water (Schedule 11) and Water supply for domestic, industrial and commercial
purposes (Schedule 12).
6 Article 246 “Subject - matter of laws made by Parliament and by Legislatures of States” (1). Notwithstanding
anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters
enumerated in List I in the Seventh Schedule (in the Constitution referred to as the “Union List”). (2)
Notwithstanding anything in clause (3), Parliament and subject to clause (i), the Legislature of any State also,
have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in
the Constitution referred to as the “Government List”). (3) Subject to clause (1) and (2), the Legislature of any
State has exclusive power to make laws for such State or part thereof with respect to any of the matters
enumerated in List II in the Seventh Schedule (in the Constitution referred to as “State List”). (4) Parliament has
power to make laws with respect to any matter for any part of the territory in India not including (in a State)
notwithstanding that such matter is a matter enumerated in the State List”.
7 Article 262: Disputes relating to Water- “Adjudication of disputes relating to waters of Inter-State rivers or
river valley (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)”.
8
4.(1) The Central Government may, on a request received in this behalf from a State Government or otherwise,
by notification in the official Gazette, establish a River Board for advising the Governments interested in relation
to such matters concerning the regulation development of an inter-State river or river valley or any specified
part thereof and for performing such other functions as may be specified in the notification, and different Boards
may be established for different inter State rivers or river valleys: Provided that no such notification shall be
issued except after consultation with the Governments interested with respect to the proposal to establish the
Board, the persons to be appointed as members thereof and the functions which the Board may be empowered
to perform. (2) A Board may be established under such name as may be specified in the notification under sub-
section (1). (3) Every Board so established shall be a body corporate having perpetual succession and a common
seal, and shall by the said name sue and be sued. (4) Every Board shall exercise its jurisdiction within such limits
of the river (including its tributaries, if any) or river valley as may be specified in the notification under sub-
section (1) and the area so specified shall be called the area of operation of the Board.
9 13(a) advising the Governments interested on any matter concerning the regulation or development of any
specified inter-state river valley within its area of operation and in particular, advising them in relation to the
coordination of their activities with a view to resolve conflicts among them and to achieve maximum results in
respects of the measures undertaken by them in the inter-State river or river valley for the purpose of
(i) Conservation, control and optimum utilization utilization of water resources of the inter-State river;
(ii) promotion and operation of schemes for irrigation, water supply or drainage;
(iii) Promotion and operation of schemes for the development of hydro-electronic power;
(iv) promotion and operation of schemes for flood control (v) promotion and control of navigation; (v) promotion
of afforestation and control of soil erosion; (cii) prevention of pollution of the waters of inter-state river; (viii)
such other matters as may be prescribed.
10 The Inter-State River Water Disputes Act, 1956 (Act 33 of 1956).
11 If it appears to the Government of any State that a water dispute with the Government of another State has
arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the inhabitants
thereof, in the waters of an inter-State river or valley have been, or are likely to be, affected prejudicially by—
(a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State;
or
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
(b) the failure of the other State or any authority therein to exercise any of their powers with respect to the
use, distribution or control of such waters; or
(c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or
control of such waters; the State Government may, in such form and manner as may be prescribed, request the
Central Government to refer the water dispute to a Tribunal for adjudication.
12 Sec. 4.(1) When any request under section 3 is received from any State Government in respect of any water
dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, the
Central Government shall, within a period not exceeding one year from the date of receipt of such request, by
notification in the Official Gazette, constitute a Water Disputes Tribunal for the adjudication of the water
dispute: Provided that any dispute settled by a Tribunal before the commencement of Inter-State Water
Disputes (Amendment) Act, 2002 shall not be re-opened”.
2) The Tribunal shall consist of a Chairman and two other members nominated in this behalf by the Chief Justice
of India from among persons who at the time of such nomination are Judges of the Supreme Court or of a High
Court.
3) The Central Government may, in consultation with the Tribunal, appoint two or more persons as assessors to
advise the Tribunal in the proceedings before it”.
13
Supra 2, p. 34.
14 http://wrmin.nic.in/cooperation/sarkaria.htm as accessed on 20-02.2007.
15 Supra 14.
16
Supra 2, p. 32.
17 Administrative Reforms Commission (1967-1968), Volume II, pp. 126-134.
18 Ibid.
19
Shah, R.B., Inter-State Water Disputes: A Historical Review, 175-189, (1994).
20 Inter-State Water Disputes in India: Institutions & Policies by Alan Richards & Nirvikar Singh.
21 S. Guhan 1993 “The Cauvery River Dispute: Towards Conciliation”.
22
Punjab Water dispute divides parties on State lines www.hindubusinessline.com/2004/07/15.
23 Supra 10.
24 Dhillon, P.S., A Tale of Two Cities, (Chandigarh: Dhillon Publishers, 1983).
25
Million acre feet.
26 Supra 2, p. 312.
27
Ibid.
28
Id., p. 313.
29 http://www/saciwaters.org/interlinking.htm, as accessed on 21st Feb., 2007.
30 THE HINDU, Inter Linking of Rivers, A Vaidyanathan, Wednesday, 23 March, 2003.
31
http://www.thesouthasian.org/archives/2005/interlinking_of_rivers_proiect.html, as accessed on 12.02.2007.
32 http://www.goforthelaw.com/articles/fromlawstu/article4.htm accessed on 12.02.2007.
33 Ibid.
34
Supra 15.
35 THE HINDU, Inter Linking of River: Is It A Solution v. Rajmani, Monday, 29 Aug., 2005.
36 Ibid.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

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18 ALJ (2007-08) 165

Water: Legal Issues and Social Concerns

WATER: LEGAL ISSUES AND SOCIAL CONCERNS

II CONSTITUTIONAL PROVISIONS AND WATER

(c) Seventy-third and Seventy-fourth Amendments4 of Constitution: A third tier

Sarkaria Commission's Recommendation: It is generally observed that the

Amendments to the ISWD Act 2002: Based on Commission's recommendations,

i. Godavari Water Disputes Tribunal (In April, 1969).

The three-member Tribunal in a total of 580 sittings, meticulously deliberated upon

2. Present Dispute- The Ravi-Beas dispute re-opened with reorganization of Punjab

VI INTER LINKING OF RIVERS

ii It would also provide the necessary discharge for augmentation of flows at

agriculture, it is logical to say that no natural process is more beneficial to mankind

Ecological Disaster: Interlinking of rivers may prima facie seem to be a promising

1 http://en.wikipedia.org/wiki/Water dispute, as accessed on 21.03.07.

(b) A Municipal Council for a smaller urban area; and

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