Most of the discussion so far was about water rights of individuals and, by extension, other parties such as bodies corporate. We will now turn our attention to the examination of the rights of political entities such as states in a federal system and nations.
A trans-boundary river system is one that extends to more than one political entity. International law has often been applied (or considered for application) in inter-state water sharing. This work therefore clubs the two streams for the purpose of study while acknowledging the inherent differences.
Trans-boundary water sharing is a relatively new phenomenon. This body of knowledge & opinions emerged in response to water disputes.
International water sharing mechanisms emerged only in the second half of the twentieth century. This is not surprising as it sounds because the institutions such as United Nations did not exist earlier. Moreover the subject was not deemed important till disputes started emerging.
I will examine the situation in two phases. The Indian legal situation will be covered first while the international dimension (including the US) will be taken up later.
As we have seen earlier, the Indian position from 1935 has been that water rights is that water is a state subject while the regulation & development of inter-state rivers lies in the central domain. The relationship between the two is sometimes difficult to understand.
The legal foundation for inter-state water sharing in India rests on the following:
· Entry 56 of List I
· Entry 17 of List II
· Government of India Act, 1935
· Article 262
· Inter-State (River) Waters Disputes Act, 1956 (ISDA)
· Inter-State Water Disputes (Amendment) Act, 2002
· River Boards Act, 1956 (RBA)
The two entries have been covered earlier. The others need to be looked in at some detail in the next few sections.
The sections relevant to this study are 130-134 (pages 102-104) clubbed under "Interference with Water Supplies".
Section 130 labeled "Complaints as to interference with water supplies" is reproduced in full due to its importance:
"130. 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 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 be, affected prejudicially by-
(a) any executive action or legislation taken or passed, or proposed to be taken or passed; or
(b) the failure of any authority to exercise any of their powers,
with respect to the use, distribution or control of water from that source, the Government or Ruler may complain to the Governor-General".
Section 131 relates to "Decision of complaints". Section 131 (1) requires the Governor-General to constitute a "Commission consisting of such persons having special knowledge and experience in irrigation, engineering, administration, finance or law, as he sees fit". The Governor-General can request the Commission to investigate "in accordance with such instructions as he may give to them" and submit a report. Although the section uses the word "shall", it also contains a proviso "unless he is of an opinion that the issues involved are not of sufficient importance to warrant such action".
Section 131 (2) requires a Commission so appointed to submit a report "setting out the facts as found by them and making such recommendations as they think proper". Section 131 (3) permits the Governor-General to refer the matter back to the Commission for further investigation and a further report, if he needs further explanation or guidance,
Section 131 (5) empowers the Governor-General, after considering the Commission's report, to "give such a decision and make such order, if any, in the matter of the complaint as he may deem proper". However, before the decision is made, if any Government or Ruler requests the Governor-General to refer the matter to "his Majesty in Council", he shall do so.
Section 131 (6) provides that an order issued by the Governor-General (or his Majesty in Council as the case may be) overrides any Act of the Provincial Legislature or state "to the extent of repugnancy".
Section 131 (7) empowers the Governor-General (or his Majesty in Council as the case may be) to vary any order or decision "if he considers it proper to do so" upon request by any Government or Ruler. Section 131 (9) reiterates the discretionary powers of the Governor-General in relation to section 131.
Section 132 relates to "Interference with water supplies of Chief Commissioner's Province" is similar to section 130. This section empowers the Governor-General to act on suo moto basis in the case of Chief Commissioner's Provinces "as if the Chief Commissioner's Province were similar to Governor's Province" and as if the Government had initiated the complaint.
Section 133 ("Jurisdiction of Courts excluded") bars the jurisdiction of any court including the federal court in matters relating to action taken under sections 130-132.
Section 134 labeled "Ruler of State may exclude application of provisions as to water supply". This section empowers rulers of federated states to exclude their states from the provisions of the foregoing section by declaring in the Instrument of Accession. This section never came into effect as the idea of federated states did not take off.
In view of its importance, the full text of the article is provided below:
"Adjudication of disputes relating to waters of inter State rivers or river valleys
(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) Coordination between States"
This article as well as the two lists are subject to wide ramifications. The import of these legal provisions are the subject of several judicial pronouncements and quasi-legal decisions.
The following captures the main elements of the act:
Section 2 defines important terms. Section 2 (c) defines "water disputes" as:
"(c) "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
(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
(iii) the levy of any water rate in contravention of the prohibition contained in section 7".
Section 3 outlines the complaints covered by the act. In view of its importance, the full text of the section is provided below:
"3. Complaints by State Governments as to water disputes. Where 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 river 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".
Section 4 relates to the constitution of a tribunal. The language of section 4 (1) is significant: "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, by notification in the Official Gazette, constitute a Water Disputes Tribunal for the adjudication of the water dispute".
Section 5 outlines the modalities of the dispute adjudication. Section 5 (2) requires the tribunal to investigate the dispute and submit "a report setting out the facts as found by it and giving its decision on the matters referred to it". Section 5 (3) provides for a three month time for the affected states or the central government to raise clarifications or seek guidance. The tribunal may submit "a further report giving such explanation or guidance as it deems fit and in such a case, the decision of the Tribunal shall be deemed to be modified accordingly".
Section 6 relating to the implementation of the tribunal decision is reproduced in full due to its importance.
"6. Publication of decision of Tribunal. The Central Government shall publish the decision of the Tribunal in the Official Gazette and the decision shall be final and binding on the parties to the dispute and shall be given effect to by them".
A new section 6 (A) inserted by an amendment in 1980 empowers the central government to frame appropriate schemes necessary for the implementation of a tribunal decision. Section 6 (A) (1) is reproduced in full below due to its importance.
"6A. Power to make schemes to implement decision of Tribunal.
(1) Without prejudice to the provisions of section 6, the Central Government may, by notification in the Official Gazette, frame a scheme or schemes whereby provision may be made for all matters necessary to give effect to the decision of a Tribunal".
The non obstante section 6 (A) (6) is reproduced in full below:
"(6) Every scheme framed under this section shall have effect notwithstanding anything contained in any law for the time being in force (other than this Act) or any instrument having effect by Virtue of any law other than this Act".
Section 8 excludes from the jurisdiction of tribunals "any dispute that may arise regarding any matter which may be referred to arbitration under the River Boards Act".
Section 9 outlines the powers of a tribunal. These confer a quasi-judicial status on the tribunal. These include, under section 9 (2) the right to ask the affected states to carry out or permit surveys or investigation considered necessary for the dispute adjudication.
Section 11 bars the jurisdiction of any court including the supreme court "in respect of any water dispute which may be referred to a Tribunal under this Act". As noted earlier, this is derived from article 262 (2).
Section 12 provides for dissolution of a tribunal "after it has forwarded its report and as soon as the Central Government is satisfied that no further reference to the Tribunal in the matter would be necessary".
The original ISDA was amended significantly in 2002. The major changes are discussed below:
The title of the act was amended to Inter-State River Waters Disputes Act.
Section 4 (1) was amended to read:
"(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 the Inter-State Water Disputes (Amendment) Act, 2002 shall not be re-opened".
Sections 5 (2) was amended to read:
"(2) The Tribunal shall investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it within a period of three years
Provided that if the decision cannot be given for unavoidable reasons, within a period of three years, the Central Government may extend the period for a further period not exceeding two years".
Sections 5 (3) was amended to read:
"(3) If, upon consideration of the decision of the Tribunal, the Central Government or any State Government is of opinion that anything therein contained requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, the Central Government or the State Government, as the case may be, within three months from the date of the decision, again refer the matter to the Tribunal for further consideration, and on such reference, the Tribunal may forward to the Central Government a further report within one year from the date of such reference giving such explanation or guidance as it deems fit and in such a case, the decision of the Tribunal shall be deemed to be modified accordingly
Provided that the period of one year within which the Tribunal may forward its report to the Central Government may be extended by the Central Government, for such further period as it considers necessary".
Section 6 was renumbered as 6 (1) and a new section 6 (2) was inserted "The decision of the Tribunal, after its publication in the Official Gazette by the Central Government under sub-section (1), shall have the same force as an order or decree of the Supreme Court".
Section 9 (1) (b) was amended permitting a tribunal to requisition "any data, as may be required by it". A new section 9 (A) inter alia requires the central government to maintain a national level database covering "water resources, land, agriculture, and matters relating thereto" for each river basin and empowers the verification of data supplied by the states.
Section 13 (2) (e) was amended to include service terms for assessors in the central government's purview.
The key elements of the act are enunciated follows:
Section 2 asserts public interest: "it is expedient in the public interest that the Central Government should take under its control the regulation and development of inter-State rivers and river valleys to the extent hereinafter provided".
Section 4 covers the establishment of river boards. Section 4 (1) states "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 or 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".
Section 13 relates to the jurisdiction of the boards setup under section 4. These include advice on several subjects including promotion and operation of irrigation/hydro-electric power/flood control/navigation schemes as well as conservation, control & optimum utilization of inter-state water resources.
Section 22 provides for arbitration of disputes between two or more governments arising out advice given by any river board as well as measures recommended by the board.