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