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Term Paper on Inter-State Council and Inter-State River
Water Dispute.
Introduction
The Indian Constitution does not easily lend itself to the standard binary classification of
unitary and federal. On the one hand, the provision of legislative bodies in different states
makes it a federal constitution; on the other, through a number of legislative and
executive powers that the Constitution bestows on the central government, relating to
both command over resources and exercise of political power, its unitary character is too
prominent. The Indian Constitution is generally characterized as a “federal constitution
with unitary bias”. The aim was to create a constitution which could work as a federal
constitution in normal times and as a unitary one in times of crisis or war. The comparing
and contrasting of federal and unitary forms of government is often based on a dichotomy
postulate which is of limited utility in appraising the relevance of federalism for resolving
problems of plural society, National unity and coherence are recognized objectives as
well as requirements, for a federal polity. Federal governance is characterized by
institutionalized arrangements for solving problems generated by pluralism on the basis
of consultation, bargaining and mutual consent.
In developing countries where resources and manpower must be rapidly mobilized for
socio economic development, reconstruction and nation-building, the two sets of
government i.e. centre and state, must avoid duplication of efforts of conflicts. Rivalries
between the centre and states may exist but there should be close partnership with
reference to problems that neither of the two governments can solve alone. This in
essence is the concept of cooperative federalism variously known as ‘shared’,
‘interlocked’, ‘creative’, ‘interdependent’ federalism. Economic and political realities
compel central and state government to be pragmatic and accommodate each other’s
interest.
Though division of power is the essence of a federal system, both centre and state govern
the same people. Hence, great is the need for intergovernmental cooperation for
minimizing friction and the conflict of interests between the centre and the states. With a
view to achieving comity between various units of the federal system, the Indian
Constitution itself envisages a number of agencies of intergovernmental coordination and
cooperation.
This paper would deal with one of the agencies of intergovernmental cooperation i.e. the
Interstate Council and subsequently with Chapter XVII of Sarkaria Commission Report
on “Inter-State River Water Disputes” which was in the agenda of Interstate council in
its 4th meeting held on 28th November 1997.
Interstate Council
Section 135 of the Govt. of India Act, 1935 provided for establishment of Inter-
Provincial Council with duties identical with those of the Inter-State Council as stipulated
under article 263 of the Constitution. The said Council was envisaged to be advisory for
facilitating Inter-Provincial cooperation. Since the plea of federation itself was not given
effect to by the then Government, no such Council was established.
There is another historical factor which underscores the urgency of setting up an all-
embracing Inter-State Council. Before 1967, it was easier to resolve differences or
problems that arose between the Union and States, at the party level, because the same
party was in power in the Union and the States. Since 1967, parties or coalitions of
parties other than the one running the government at the Union, have been in power in
several States. These State Governments of diverse hues have different views on regional
and inter-State problems. In such a situation, the setting up of a standing Inter-State
Council with the comprehensive charter under Article 263 had become an imperative
necessity.
While the Constitution clearly recognizes the need for coordination among different
levels of government in the matter of governance and provides for the creation of a forum
for consultation among governments in the shape of an Inter-State Council (Article 263),
the Council was not formed in the first forty years. This, despite strong recommendations
by high powered panels like the Administrative Reforms Commission and the Sarkaria
Commission
Article 263 provides—
"If at any time it appears to the President that the public interests would be served by the
establishment of a Council charged with the duty of—
(a) Inquiring into and advising upon disputes which may have arisen between States;
(b) Investigating and discussing subjects in which some or all of the States, or the
Union and one or more of the States, have a common interest; or
(c) making recommendations upon any such subject and, in particular, recommendations
for the better co-ordination of policy and action with respect to that subject, it shall be
lawful for the President by order to establish such a Council, and to define the nature of
duties to be performed by it and its organisation and procedure."
With the proposal it was also feared that creation of Interstate council could pose a threat
to national unity. According to Subir Kumar Bhatnagar, the proposed Council could
behave like a Council for Conclamation instead of Council for consultation. It could lead
to trade unionism among the states. Many times, the approach towards emerging
problems could be determined by the party who happens to be in power in more than one
state on party lines completely ignoring the different interests of the state ruled by it.
Therefore in place of states, parties will be represented in Inter-state Council. Also the
status accorded to the council was such that it could be treated as the apex body in all
federal matters and thus could tend to overstep the limits in discussing those matters
which belong to Parliament only. Hence those who feared that the Council will become
the cause of unnecessary conflicts and misunderstandings believed that Article 263
should be kept in cold storage for some time.
After forty years based on the recommendations of the Sarkaria Commission, Inter-State
Council was set up on 28th May 1990 under article 263 of the Constitution for co-
ordination of Inter-State matters and between state and the centre. The Rajamannar
committee and The Administrative Reform Committee favoured a permanent instead of
an ad hoc interstate council. Its decisions were to be advisory but must be able to carry
weight with the centre and the state governments. It is to be consulted on all matters
including Bills of national importance or which are to affect one or more states. The
Sarkaria Commission recommended that a permanent Inter-Governmental Council was
an imperative necessity and be set up with only investigative, deliberative and
recommendatory functions set out in the clause (b) and (c) of article 263, other than
socio-economic planning and development. The proceedings of the council would be held
in camera, and in order to be effective it must have an independent and adequate
secretariat. At the organisational level it would consist of a general Body assisted by a
smaller Standing Committee.
The Council has also been used to constitute Central Council of Health, Central Council
of Local Self Government and four Regional Sales Tax Councils in the North, East, West
and South Zones.
The Council is a recommendatory body with the following duties: -
(a) Investigating and discussing such subjects, in which some or all of the States or
the Union and one or more of the States have a common interest, as may be
brought up before it;
(b) Making recommendations upon any such subject and in particular recommendations
for the better coordination of policy and action with respect to that subject; and
(c) Deliberating upon such other matters of general interest to the States as may be
referred by the Chairman to the Council.
Since its inception, the Council has held ten meetings. The first meeting was held on 10th
October 1990 and the tenth meeting was held on 9th December 2006 at New Delhi.
Chapter XVII of Sarkaria Commission Report on “Inter-State River Water Disputes” was
the third agenda to be discussed in the fourth meeting of Inter State Council held on 28 th
November 1997.
Inter-State River Water Dispute
In India there are many inter-State rivers. The regulation and development of the waters
of these rivers and river valleys continues to be a source of inter-State friction. Article
262(1) of the Constitution lays down that “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”. Parliament has enacted the
Inter-State River Water Disputes Act, 1956. It provides for reference of such a dispute to
Tribunals on receipt of an application from a State, when the Union Government is
satisfied that the dispute “cannot be settled by negotiations”. Most of the disputes refer to
sharing of waters of inter- State rivers. Disputes also arise in regard to the interpretation
of the terms of an agreement or the implementation of the same.
Section 3 of the Act:
“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 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”.
Constitution of Tribunal
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"
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. 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".
Adjudication of water disputes
When a Tribunal has been constituted, the Central Government shall refer the water
dispute and any matter appearing to be connected with, or relevant to, the water dispute
to the Tribunal for adjudication.
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.
For unavoidable reasons if the decision cannot be given within three years, the Central
Government may extend the period for a further period not exceeding two years.
Upon consideration of the Tribunal, If the Central government or State government think
that there needs to be an explanation or guidance on particular point, not originally
referred to the Tribunal, then they may again refer the matter to the Tribunal for further
consideration. On such reference, the Tribunal may forward to the Central Government
a further report within one year 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. If the members of the Tribunal differ in
opinion on any point, the point shall be decided according to the opinion of the majority
India's Federal Water Institutions The relevant provisions of the Indian Constitution
are
• Entry 17 in the State List,
• Entry 56 in the Union List, and
• Article 262.
The first provision makes water a state subject, but qualified by Entry 56 in the Union
List, which states: "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 is
declared by parliament by law to be expedient in the public interest." Article 262
explicitly grants parliament the right to legislate over the matters in Entry 56, and also
gives it primacy over the Supreme Court. Parliament has not made much use of Entry 56.
Various River Authorities have been proposed, but not legislated or established as bodies
vested with powers of management. Instead, river boards with only advisory powers have
been created.
Hence, the state governments dominate the allocation of river waters. Since rivers cross
state boundaries, disputes are inevitable. The Inter-State Water Disputes Act of 1956 was
legislated to deal with conflicts, and included provisions for the establishment of
tribunals to adjudicate where direct negotiations have failed.
Some Disputes:
The Inter-State Water Disputes Act seems to provide fairly clear procedures for handling
disputes. However, the law permits considerable discretion, and different disputes have
followed diverse paths to settlement, or in a few cases, continued disagreement.
In this section, we discuss some of the major disputes.
(1) The Krishna-Godavari water dispute
(2) The Cauvery water dispute
(3) The Ravi-Beas water dispute
In the first case, relative success was achieved through negotiations and through the
working of a tribunal. In the other two cases, the institutional process has been relatively
less successful: while these two disputes have both gone to tribunals, neither one has yet
been successfully resolved. The Cauvery Tribunal is still deliberating, while the Ravi-
Beas Tribunal gave its judgment, but it was not made official by the central government.
Krishna-Godavari water dispute The Krishna-Godavari water dispute among
Maharashtra, Karnataka, Andhra Pradesh (AP), Madhya Pradesh (MP), and Orissa could
not be resolved through negotiations. Here Karnataka and Andhra Pradesh are the lower
riparian states on the river Krishna, and Maharashtra is the upper riparian state. The
dispute was mainly about the inter-state utilization of untapped surplus water. The
Krishna Tribunal reached its decision in 1973, and the award was published in 1976. The
Tribunal relied on the principle of “equitable apportionment” for the actual allocation of
the water. It addressed three issues:
(1) The extent to which the existing uses should be protected as opposed to future or
contemplated uses.
(2) Diversion of water to another watershed.
(3) Rules governing the preferential uses of water.
The Tribunal's rulings were as follows:
• On the first issue, the Tribunal concluded that projects that were in operation or under
consideration as in September 1960 should be preferred to contemplated uses and should
be protected. The Tribunal also judged that except by special consent of the parties, a
project committed after 1960 should not be entitled to any priority over contemplated
uses.
• On the second issue, the Tribunal concluded that diversion of Krishna waters to another
waterline was legal when the water was diverted to areas outside the river basin but
within the political boundaries of the riparian states. It was silent regarding the diversion
of water to areas of non-riparian states.
• On the third issue the Tribunal specified that all existing uses based on diversion of
water outside the basin would receive protection.
The Godavari Tribunal commenced hearings in January 1974, after making its award for
the Krishna case. It gave its final award in 1979, but meanwhile the states continued
negotiations among themselves, and reached agreements on all disputed issues. Hence the
Tribunal was merely required to endorse these agreements in its award. Unlike in the case
of other tribunals, there was no quantification of flows, or quantitative division of these
flows: the states divided up the area into sub-basins, and allocated flows from these sub-
basins to individual states – this was similar in approach to the successful Indus
agreement between India and Pakistan. Another difference was that the agreement was
not subject to review, becoming in effect, perpetually valid.
The Cauvery dispute The core of the Cauvery dispute relates to the waters re-sharing of
that are already being fully utilized. Here the two parties to the dispute are Karnataka (old
Mysore) and Tamil Nadu (the old Madras Presidency). Between 1968 and 1990, 26
meetings were held at the ministerial level but no consensus could be reached. The
Cauvery Water Dispute tribunal was constituted on June 2, 1990 under the ISWD Act,
1956. There has been a basic difference between Tamil Nadu on the one hand and the
central government and Karnataka on the other in their approach towards sharing of
Cauvery waters. The government of Tamil Nadu argued that since Karnataka was
constructing the Kabini, Hemavathi, Harangi, Swarnavathi dams on the river Cauvery
and was expanding the ayacuts (irrigation works), Karnataka was unilaterally
diminishing the supply of waters to Tamil Nadu, and adversely affect the prescriptive
rights of the already acquired and existing ayacuts. The government of Tamil Nadu also
maintained that the Karnataka government had failed to implement the terms of the 1892
and 1924 Agreements relating to the use, distribution and control of the Cauvery waters.
Tamil Nadu asserts that the entitlements of the 1924 Agreement are permanent. Only
those clauses that deal with utilization of surplus water for further extension of irrigation
in Karnataka and Tamil Nadu, beyond what was contemplated in the 1924 Agreement
can be changed. In contrast, Karnataka questions the validity of the 1924 Agreement.
According to the Karnataka government, the Cauvery water issue must be viewed from
an angle that emphasizes equity and regional balance in future sharing arrangements.
There are several reasons why the negotiations of 1968-1990 failed to bring about a
consensus.
1) There was a divergence of interest between Karnataka and Tamil Nadu on the question
of pursuing negotiations. Karnataka was interested in prolonging the negotiations and
thwarting the reference to a tribunal, in order to gain time to complete its new projects.
2) The Cauvery issue became intensely politicized in the 1970s and 1980s. The respective
governments in the two states were run by different political parties. Active bipartisan
politics in both states made an ultimate solution more difficult.
3) Between 1968 and 1990, there were three chief ministers in Karnataka belonging to
three different political parties, while in Tamil Nadu, there were four chief ministers
belonging to two parties. There were two long periods of President’s Rule in Tamil Nadu.
At the center, there were six changes of Prime Minister, spanning four political parties
and eight different Union Ministers of irrigation. So, consecutive occasions when the
same set of ministers from the same state and the center met were rare.
4) The ministerial meetings were held at regular intervals, but no attempt was made to
generate technical options to the sharing of Cauvery waters. Expert engineers were not
able to work together for a common solution; rather they got involved in party politics.
The Ravi-Beas dispute Punjab and Haryana, the main current parties in this dispute, are
both agricultural surplus states, providing large quantities of grain for the rest of India.
Because of the scarcity and uncertainty of rainfall, irrigation is the mainstay of
agriculture. An initial agreement on the sharing of the waters of the Ravi and Beas after
partition was reached in 1955, through an inter-state meeting convened by the central
government. The present dispute between Punjab and Haryana about Ravi-Beas water
started with the reorganization of Punjab in November 1966, when Punjab and Haryana
were carved out as successor states of erstwhile Punjab. The four perennial rivers, Ravi,
Beas, Sutlej and Yamuna flow through both these states, which are heavily dependent on
irrigated agriculture in this arid area. Irrigation became increasingly important in the late
1960s with the introduction and widespread adoption of high yielding varieties of wheat.
As a result of the protests by Punjab against the 1976 agreement allocating water from
Ravi-Beas, further discussions were conducted (now including Rajasthan as well), and a
new agreement was accepted in 1981. This agreement, reached by a state government
allied to the central government, became a source of continued protest by the political
opposition, and lobbies outside the formal political process. Punjab entered a period of
great strife, and a complex chain of events led to the constitution of a tribunal to examine
the Ravi-Beas issue in 1986. Both states sought clarifications of aspects of the award by
this tribunal, but the center has not provided these. Hence, the award has not been
notified, and does not have the status yet of a final, binding decision.
Two Ineffective mechanisms
The National Water Development Agency (NWDA) was formed in July 1982 to carry out
the water balance and other studies for optimum utilization of water resources. This
agency is a Government of India Society in the Ministry of Water Resources, and not a
body with any statutory backing. Furthermore, its scope is technical, and separate from
the institutional realities of water allocation. In 1983, the National Water Resources
Council (NWRC) was created by a central government resolution. This policy
emphasizes an integrated and environmentally sound basis for developing national water
resources, but provides no specific recommendations for institutions to achieve this.
Though the council was created out of disenchantment with the adjudicatory process for
inter-state river disputes, it has not provided concrete proposals to improve that process,
nor has it provided the useful alternative that was hoped for, as the persistence of the
Ravi-Beas and Cauvery disputes indicates. The NWRC does not meet any of the required
criteria required: it does not provide specific mechanisms for dispute resolution, it does
not delegate sideways to achieve commitment possibilities, and it does not have any
statutory force. While it may provide a useful talking shop for long range planning and
information exchange, its usefulness otherwise has been limited.
The main points of criticism against the existing arrangements are:
(a) They involve inordinate delay in securing settlement of such disputes. Delay
occurs at three stages:
(i) In setting up Tribunal;
(ii) after announcement of award; and
(iii) in implementation of the award.
(b) There is no provision for an adequate machinery to enforce the award of the Tribunal.
The commission's report goes on to suggest that the center cannot enforce the tribunal
award if a state government refuses to implement the award. The Sarkaria Commission's
recommendation is, therefore, that a water tribunal's award should have the same force
and sanction behind it as an order or decree of the Supreme Court. It is recommended that
the Act should be suitably amended for this purpose. This has not been done, The
Sarkaria Commission's two other recommendations related to placing time limits on
constituting tribunals and having them deliver decisions. These merely echoed the
recommendations of the Administrative Reforms Commission nearly 20 years before.
Another recommendation was that the center could appoint a tribunal without being
asked to do so by a state government. A final recommendation was for the establishment
of a national level data bank and information system. None of these recommendations has
been carried out.
.The Sarkaria Commission had recommended that a Tribunal's award should be given the
status of a decree of the Supreme Court by appropriate legislation or constitutional
amendment. The assumption is that no one would disobey an order of the Supreme Court.
This recommendation has finally been accepted and implemented through the
Amendment Act in 2002. The recommendations were finally considered by a sub-
committee as well as the Standing Committee of the Inter-State Council and the by the
Inter- State Council itself. Based on the recommendations of the Inter-State Council,
certain amendments have been made to the ISWD Act. The amendments prescribe certain
time- limits: - one year for the establishment of a Tribunal by the central government on a
request from a state government; - three years for the Tribunal to give its award
(extendable, if found necessary, by a further period not exceeding two years by the
central government); and - one year for the Tribunal to give a further report if a reference
is made to it as provided for in the act (this one year being further extendable if
necessary, with no limit specified for such extension). - A further amendment states that
the decision of the Tribunal shall have the same force as an order or decree of the
Supreme Court. It would appear that all the problems experienced so far have now been
finally been tackled through these amendments, and that the future operation of this
conflict- resolution machinery should be smooth.
There is no doubt that mutual agreement is superior to adjudication as a means of
resolving a dispute, whether about river waters or anything else; but when negotiations
fail, conflicts still need to be resolved, and Article 262 and the ISWD Act provide
machinery for this. Although it hasn’t proved to be very effective in containing all the
disputes yet some such machinery is surely very necessary.
References:
- Balveer Arora and Nirmal Mukarji, Introduction: The Basic Issues, Federalism in
India: Origins and Development
- Alice Jacob, Institutional Dimension of Inter Governmental Cooperation,
Federalism in India
- Subir Kumar Bhatnagar, Abracadabra of Inter State Council, Indian Federalism
And Unity of Nation, 1988
- Government of India website on Inter State Council and Inter State River Water
Disputes, www.interstatecouncil.nic.in
- Iyer, R.R., "Federalism and Water Resources", Economic and Political Weekly, March 26th 1994
- Ramaswamy R. Iyer, Inter State Water Disputes Act, 1956 :Difficulties and solution, Economic and Political Weekly, July 13-19, 2002
- T.S. Rama Rao, The Cauvery Water Dispute: Is the Centre an umpire or a Partisan?, Indian Federalism And Unity of states, 1988
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