Day 14 – Q 4.What are the constitutional provisions to solve water sharing disputes? Are they adequate? Critically examine.
4. What are the constitutional provisions to solve water sharing disputes? Are they adequate? Critically examine.
जल साझा करने वाले विवादों को हल करने के लिए संवैधानिक प्रावधान क्या हैं? क्या वे पर्याप्त हैं? समालोचनात्मक जांच करें।
Synopsis
Water sharing is one of the most contentious issues in India which has time and again challenged the principle of cooperative federalism. The makers of our Constitution predicted such development and hence tried to address it through constitutional provisions.
Various constitutional provisions to solve water sharing disputes are:
- Schedule VII – State List and Union List
- States have power to legislate (under State list) with respect to water (water supplies, irrigation and canals, drainage and embankments, water storage and water power).
- Union list – Regulation and development of inter-State rivers and river valleys.
- Article 262 Adjudication of disputes relating to waters of inter-State rivers or river valleys. It makes two provisions:
- Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution and control of waters of any inter-state river and river valley.
- Parliament may also provide that neither the Supreme Court nor any other court is to exercise jurisdiction in respect of any such dispute or complaint.
- Article 263 contemplates the establishment of an Inter-State Council to effect coordination between the states and between Centre and states.
- Article 131 provides original jurisdiction to the Supreme Court to resolve dispute between the Union and states and inter-State. However, in case of inter-State water dispute it is subjected to Article 262(2)
- Article 136 empowers the Supreme Court to adjudicate on the earlier ruling by the other courts or any other Tribunal can be challenged.
The Union Government has further enacted two laws to exercise its power under Article 262. The two laws are River Boards Act (1956) and the Inter-State Water Disputes Act (1956). Their features are:
- River Boards Act provides for the establishment of river boards for the regulation and development of Inter-state River and river valleys.
- Inter-State Water Disputes Act empowers the Central government to set up an ad hoc tribunal for the adjudication of a dispute between two or more states in relation to the waters of an inter-state river or river valley.
- The decision of the tribunal would be final and binding on the parties to the dispute.
- Neither the Supreme Court nor any other court is to have jurisdiction in respect of any water dispute which may be referred to such a tribunal under this Act.
These provisions have been successful in:
- Providing a clearly laid out mechanism for resolving dispute
- By providing jurisdiction to Union government over inter-state rivers, the Constitution has ensured that no state could claim its sole right over such rivers.
- A special mechanism other than the Supreme Court was necessary as Inter-state disputes involve rights of people living in those states and thus, needs a solution through negotiation which is acceptable to all the sides
- River Boards can increase cooperation among the states.
However, these mechanisms are inadequate because:
- The tribunal lacks the power of enforcement of its decision which Supreme Court is endowed with.
- The Tribunal can only give an award but cannot enforce its implementation. It has not been clothed with powers of punishment for ‘contempt’.
- In the event of non-implementation of an ISWD Tribunal’s award by a state government, the central government can (failing persuasion) issue a direction to the erring state and then invoke Article 356, but that seems an extreme step; besides, when a popular government comes back it may once again refuse to implement the award. There is no easy answer to this problem.
- Though the issues relating to the water allocation involves special technicalities, the tribunal lacks such expertise and has to rely on external data which is often challenged by the states involved. This leads to creating of more obstacles rather finding a solution.
- Article 262 grants power to make a law; it does not impose a duty, for no court can issue a mandamus to the legislature to make a law. Also no provision of the Constitution can be held ultra-vires, but any law, or part of law made under Article 262 can be held ultra-vires.
- Also there are always inordinate delays in the setting up of tribunals and deciding the award. The right to have a dispute referred to a tribunal under IWSDA is dependent on the opinion of the Central Government that the matter cannot be settled by negotiations.
In light of the prevailing loopholes in functioning of the system, certain recommendations can be considered:
- Firstly, there is a need to set up a permanent tribunal for such disputes instead of creating one each time.
- Then it has been suggested by the NCRWC that the Inter-State Water Disputes Act, 1956 be repealed and in its place a more comprehensive parliamentary legislation should be enacted.
- It is of the view that it is not necessary to exclude Inter-State Water Disputes from the original jurisdiction of the Supreme Court under article 131 of the Constitution and that such disputes should also be made to fall within the exclusive jurisdiction of the Supreme Court, especially in the light of the Supreme Court’s decision to adjudicate on award given by Cauvery Tribunal.
- Also, parliament needs to exercise its powers under Entry 56 List I effectively. According to National Water Policy, this can be done by setting up of river boards.
In the light of the challenges faced by the present mechanism, the Inter-state River Water Disputes (Amendment) Bill, 2017 needs to be enacted to address these lacunas. This can provide us as a viable mechanism to resolve Inter-state river water disputes and further strengthen our federal structure.
Best Answer – Shubham Milind
