Interstate River Water Disputes Act

The Interstate River Water Disputes Act, 1956 (IRWD Act) is an Act of the Parliament of India enacted under Article 262 of Constitution of India on the eve of reorganization of states on linguistic basis to resolve the water disputes that would arise in the use, control and distribution of an interstate river[1] or river valley.[2]  Article 262 of the Indian Constitution provides a role for the Central government in adjudicating conflicts surrounding inter-state rivers that arise among the state/regional governments.[3]  This Act further has undergone amendments subsequently and its most recent amendment took place in the year 2002.

River waters use / harnessing is included in states jurisdiction (entry 17 of state list, Schedule 7 of Indian Constitution). However, union government can make laws on regulation and development of inter-State rivers and river valleys when expedient in the public interest (entry 56 of union list, Schedule 7 of Indian Constitution). When public interest is served, President may also establish an interstate council as per Article 263 to inquire and recommend on the dispute that has arisen between the states of India. IRWD Act (section 2c2) validates the previous agreements (if any) among the basin states to harness water of an interstate river/ river valley. This act is confined to states of India and not applicable to union territories. Only concerned state governments are entitled to participate in the tribunal adjudication and non government entities are not permitted.

Any river water sharing treaty made with other countries, has to be ratified by the Parliament per Article 253 and all the riparian states of India per Article 252 to make the treaty constitutionally valid or enforceable by the judiciary as India follows dualist theory for the implementation of international treaties/laws. Indian government has signed Indus Waters Treaty with Pakistan, Ganga water sharing treaty with Bangladesh, etc without the ratification by the Parliament and the concerned riparian states.

The Interstate River Water Disputes Act, 1956
An Act to provide for the adjudication of disputes relating to waters of inter-State rivers and river valleys.
Citation Act No. 33 of 1956
Enacted by Parliament of India
Date assented to 28 August 1956
Date signed 2002
Map of the major rivers in India

Water disputes

IRWD Act is applicable only to interstate rivers / river valleys. An action of one state should affect the interests of one or more other states. Then only water dispute is deemed to have arisen under IRWD Act (section 3).[4] It can be divided into two independent parts for clarity purpose in understanding the techno-legal application of IRWD Act

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

A downstream state’s action can affect the upstream state interest only in one case. i.e. when a downstream state is building a dam / barrage near its state boundary and submerging the territory of an upstream state on permanent / temporary basis. Other than this action, no other action of a downstream state could affect the upstream states interest which they have been using for economical, ecological and spiritual/ religious aspects. The meaning of the word ‘interest’ in this context is concern / importance / significance / relevance / consequence of losing the prevailing water use or purpose.

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

Whereas all the actions of an upstream state to use or control or distribute the water of an interstate river can affect the downstream states in one way or other. The following are some examples but not complete:

  1. Consuming river water for any beneficial use such as irrigation, drinking water, industrial, recreation, recharging of ground water, ground water use, enhanced evaporation losses, enhancing rain water use efficiency, obstructing non flood flows of the river, transferring water to outside the river basin, etc. (i.e. any man made /aided action of converting water into water vapour & losing to atmosphere by evapotranspiration / evaporation processes and also transferring river water outside the river basin). This is generally done by constructing water storage reservoirs and subsequently using water for above purposes.
  2. Quality of water can also be diminished / altered/ controlled in the action of using water. It would take place by accumulating the dissolved salts in the remaining water after its use. The dissolved salts content of water increases due to its consumption and also addition of more salts by anthropogenic activity. Also causing water more silt laden / turbid is a man made water quality alteration which can be caused by mining and deforestation activities. Bringing water from other river basins for upstream states use also effects water quality in downstream states.[5]

Generally river water is transferred to water deficit areas for use after creating the infrastructure for its storage (water reservoirs) and distribution network (canals, pipelines, ground water charging, etc.). All these acts fall under river water distribution and control category under IRWD Act. All the above actions of an upstream state are legal causes of water dispute to the downstream states since their existing interests are affected as given below:

  • Decrease in water availability:- When an upstream state contemplates water use, it would block the lean season river flows initially by constructing low cost barrages and tries to store the peak flood waters ultimately by constructing massive water storage reservoirs. In this process the river flow regime is altered drastically converting it ephemeral / dry in most of the time except during floods.[6] It also alters the ecology of the river located in downstream states affecting its riverine vegetation and aquatic flora & fauna. Already the delta area of rivers are eroding / shrinking when adequate river water is not reaching sea. This process of river water harnessing affects the downstream states interests as they are deprived of constantly available river water which they had been using for their interests. Alternatively, downstream state needs to store more flood water in reservoirs to cater to the existing water use.
  • Deterioration in water quality:- If the water use is 75% of the total available water in the river, the dissolved salts concentration in the river water increases by four folds.[7] Alteration in river water quality / alkalinity / salinity effects growth of traditionally cultivated crops as they are not best suitable with the enhanced soil alkalinity and or soil salinity. They either give lesser yield or consume more saline water for the same yield.[8] Also the aquatic flora & fauna would face survival threat / diminished growth with the enhanced water salinity and or alkalinity. If the river is blocked to reach the Sea (i.e. basin closure) in most of the years, the ecology / fisheries of the surrounding Sea / river mouth area is also affected. Also there is threat of Sea water ingress into estuaries / delta of the river contaminating ground water.[9]

The use or control or distribution of river water in an upstream state is invariably denial of prevailing use / purpose in the downstream state as it is altering natural flow regime of river water with respect to quantity, quality and time of availability in downstream states. Also dam failures in upstream states can create flash floods or further dam failures in downstream states causing unprecedented property damage and loss of human lives.[10] IRWD Act (section 3) clearly stipulates that mere anticipation of a riparian state actions which can affect other riparian state interests is enough to raise interstate water dispute.

The activities of an upstream state without effecting downstream states interests are peak flood control measures by impounding the flood waters only (not base flows) in 100% or more capacity storage reservoirs for use without effecting water quality appreciably and run off hydro power generation taken up in its territory.

Constitution of Tribunal

Whenever 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.[11] As per section 5.2 of the Act, the tribunal shall not only adjudicate but also investigate the matters referred to it by the central government and forward a report setting out the facts with its decisions. It implies that the tribunal responsibility is not limited to adjudication of issues raised by the concerned states and also investigation of other aspects which are in public domain such as water pollution, salt export requirement, water quality deterioration, flood control, sustainability of river basin productivity & its ecology, environmental flow requirements, climate change effects, etc.[12] When the tribunal final verdict issued based on the deliberations on the draft verdict is accepted by the central government and notified in the official gazette, the verdict becomes law and binding on the states and union government for implementation. In case the constitutional rights of states are ingressed upon by the tribunal award in any manner, central government, for extending purview of its enactment to implement the tribunal order, is obliged to take the consent of all riparian states under Article 252 of the constitution before publishing the tribunal awards in the official gazette.[13] When pronounced in the ambit of IRWD Act and the Indian constitution, the tribunal’s verdict after its publication in the official gazette is equivalent to Supreme Court verdict as per section 6 of IRWD Act.

Amendment 2002

This amendment specifically does not permit altering the prevailing tribunal verdicts issued before the year 2002 (i.e. but not the tribunal awards issued after the year 2002). Thus this amendment bars the tribunals to give any time period/validity for constituting a new tribunal. This is to keep provision to resolve fresh water disputes which were not addressed by earlier tribunals/ agreements as and when they surface.

Amendment bill 2017

A permanent water dispute tribunal with its members from sitting judges of Supreme Court or High courts, is proposed to resolve the growing number of interstate river water disputes expeditiously.[14][15]

The Tribunal Awards

Till now three tribunal awards are notified in official gazette by the Government of India.[16] These are water dispute tribunals allocating river water use by the riparian states for Krishna (tribunal 1),[17] Godavari[17] and Narmada[17] rivers. All these 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, Cauvery / Kaveri river,[18] Vamsadhara River,[19] Mahadayi / Mandovi River[20] and Krishna River (tribunal 2 )[21] are either yet to pronounce the verdicts or the issued verdicts are to be accepted by the Government of India.

Recently, Cauvery water disputes tribunal order was notified by the GoI on 20 February 2013.[22]

The Vamsadhara tribunal pronounced its final verdict in September 2017 and permitted AP state to construct the side weir at Katragedda and Neradi barrage.[23]

In March 2018, Mahanadi Water Disputes Tribunal is formed on the direction of Supreme Court to adjudicate water sharing dispute between Odisha and Chhattisgarh states.[24]

The Mahadayi Water Tribunal pronounced its final verdict in August 2018 and permitted Karnataka state to use water outside the basin for drinking water use.[25]

Establishment of authorities to implement a tribunal verdict

Under Section 6A of this Act, central government may frame a scheme or schemes to give effect to the decision of a tribunal. Each scheme has provision to establish an authority for implementation of a tribunal verdict. However, every scheme and all its regulations shall be approved by the parliament. When a tribunal verdict, after formally gazetted by the union government, stipulates to establish the verdict implementation authority/board, the same shall be complied by the union government as the tribunal verdict is equal to Supreme Court verdict. As per Articles 53 & 142 of the constitution, it is the duty of the President to enforce the tribunal/supreme court order/verdict without time delay till the Parliament, under Section 6A of this Act, decides against or makes modifications to the already established implementation board/authority.

In the case of Cauvery River basin, SC directed the GoI to set up a temporary Supervisory Committee to implement the tribunal order till the constitution of Cauvery Management Board by GoI. GoI established the said temporary Supervisory Committee on 22 May 2013.[26] In the case of Babli barrage dispute, SC itself constituted the Supervisory Committee to implement the water sharing agreement between Maharashtra and Andhra Pradesh in middle Godavari sub basin.[27]

Data bank and information system

Under Section 9A of this Act, central government shall maintain a data bank and information system at national level for each river basin. State governments shall provide all the data regarding water resources, land, agriculture and matters related thereto as requested by the central government. Central government is also vested with powers to verify the data supplied by the state governments. However, many state governments (ex: Maharashtra,Chattishgarh, etc.) have not been furnishing the land use data in their states (Tables 14 to 16 of Integrated Hydrological Data Book, 2012) and Central Water Commission of MoWR is not pursuing the matter earnestly to get the data which is vital in water resources planning.[28]

See also

References

  1. ↑ "River basins of India". Retrieved 21 October 2012.
  2. ↑ "Interstate River Water Disputes Act, 1956 - As modified up to 6th August 2002" (PDF). Government of India. Retrieved 21 March 2012.
  3. ↑ "The Constitution of India". Retrieved 21 March 2012.
  4. ↑ N. Sasidhar. "Interstate river water disputes (IRWD) act (1956) and its legal provisions". Retrieved 21 March 2012.
  5. ↑ Godavari river water sharing accord
  6. ↑ J. Keller; A. Keller; G. Davids. "River basin development phases and implications of closure". Retrieved 25 August 2016.
  7. ↑ "Water Quality Database of Indian rivers, MoEF". Retrieved 15 September 2016.
  8. ↑ David Seckler (1996). "The new era of water resources management - From 'dry' to 'wet' water savings" (PDF). Retrieved 7 January 2012.
  9. ↑ Andrew Keller; Jack Keller; David Seckler. "Integrated Water Resource Systems: Theory and Policy Implications" (PDF). Retrieved 5 January 2014.
  10. ↑ "Agony of Floods: Flood Induced Water Conflicts in lndia [sic]" (PDF). Retrieved 8 February 2016.
  11. ↑ Daniel SELIGMAN (June 2011). "RESOLVING INTERSTATE WATER CONFLICTS:  A Comparison of the Way India and the United States Address Disputes on Interstate Rivers" (PDF). p. 28. Retrieved 21 March 2012.
  12. ↑ "River basin management, UNESCO- IHE, Parts 1 & 2" (, )
  13. ↑ "Chapter 1, Draft National Water Framework Act, 2016" (PDF). Retrieved 21 October 2016.
  14. ↑ "Inter-State River Water Disputes (Amendment) Bill,2017" (PDF). Retrieved 15 March 2017.
  15. ↑ "Clause 12.2 of National Water Policy (2012)" (PDF). Govt. of India, Ministry of Water Resources. Retrieved 17 July 2014.
  16. ↑ "A Background Paper on Article 262 and Inter-State Disputes Relating to Water". Ministry of Law and Justice. Retrieved May 13, 2013.
  17. ↑ "The Cauvery water disputes tribunal report, Volume V". 2007. Retrieved 20 October 2012.
  18. ↑ "Vamsadhara project okayed with conditions". 2013. Retrieved 20 April 2014.
  19. ↑ "Ensure Mhadei water is not diverted: Tribunal". 2014. Retrieved 20 April 2014.
  20. ↑ N. Sasidhar. "REVIEW OF KRISHNA WATER DISPUTES TRIBUNAL-2 REPORT". Retrieved 12 March 2012.
  21. ↑ "Interstate River Water Sharing Disputes" (PDF). Retrieved 17 August 2016.
  22. ↑ "Vamsadhara Water Disputes Tribunal interim and final awards. Pages 121 ans 138" (PDF). 2017. Retrieved 20 February 2017.
  23. ↑ "Justice Khanwilkar To Head Mahanadi Water Disputes Tribunal". Retrieved 13 March 2018.
  24. ↑ "Mahadayi water dispute tribunal report (pages 2693 to 2706, Volume XII)". Retrieved 17 August 2018.
  25. ↑ "Interim Cauvery water Supervisory committee, Ministry of water resources, GoI" (PDF). Retrieved 5 July 2013.
  26. ↑ "Supreme Court verdict on Babhali project dispute". February 2013. Retrieved 21 March 2013.
  27. ↑ "Integrated Hydrological Data Book, 2012 of Non-classified river basins in India" (PDF). Retrieved 11 May 2014.
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