‘Federalism and Interstate River Water Governance in India’

• India has 25 major river basins, with most rivers flowing across states.
• However, interstate rivers in India have become sites of contestations, fuelled by conflicting perceptions of property rights, flawed economic instruments for food security, the lack of an integrated ecosystems approach, and the prevalence of reductionist hydrology for water resource development.
• Such conflicts over the possession and control of river water have persisted since the inception of the Indian republic, with prolonged delays in resolution due to historical, institutional and political factors.
• In recent years, increasing water scarcity, a rapid rise in urban and rural demands for freshwater, and contentious political dynamics have further exacerbated the problem. 

Fundamental structural ambiguities in the interstate river water governance

There are three fundamental structural ambiguities that currently affect the system: 

1. Federal-jurisdictional
2. Historico-geographical
3. Institutional

• Federal-jurisdictional ambiguity: In independent India, legislative powers concerning water were distributed between the Centre and the states to ensure optimum utilisation while balancing the interests of the states.
  • Schedule 7 of the Constitution distinguishes between the use of water within a state and the purpose of regulating interstate waters.
  • The Centre’s role is largely limited to resolving inter-state river water disputes. That, too, a detached one in setting up tribunals for their adjudication.
  • This approach towards the evolution of the legislative and constitutional mechanism regarding ISWDs has resulted in an imprecise distribution of power between the Centre and the states, creating federal-jurisdictional ambiguity.

• Historico-geographical ambiguity: After independence, states were carved out and federated to form the Union of India.
  • The changing borders complicate the existing jurisdictional and resource-sharing agreements and eventually become sources of interstate political contestation, leading to historico-geographical ambiguity in interstate river water governance.
  • Perhaps recognising the issues caused by such redrawing of administrative boundaries, the Union government enacted two other important acts in the same year to create a framework for governing and managing interstate rivers: the Interstate (River) Water Disputes Act, 1956 (ISRWDA) and the River Boards Act, 1956.
• Institutional ambiguity: With regard to the resolution process for ISWDs, the Supreme Court has made limited intervention to adjudicated disputes, including the enforcement of tribunal awards, holding that such disputes can be resolved under Article 131.
  • The wisdom behind this decision is apparent: the courts, as a constitutional forum, command a certain degree of respect and authority due to its power to punish for contempt.
  • The tribunals lack such authority, thus failing to efficiently enforce an award, especially in disputes that get amplified due to political overtones.
  • However, within this framework, the Supreme Court’s role undermines that of the tribunals as adjudicators of ISWDs, despite the latter being established for the implementation of binding awards and their decision granted the same force as an order of the Supreme Court.
  • While Article 262 deters the highest judiciary from adjudicating ISWDs, Article 136 empowers it to hear appeals against the tribunals and ensure the implementation of the tribunal.
  • Thus, the apex court remains the adjudicatory body along with the tribunals, creating an institutional ambiguityregarding which body is the ultimate adjudicatory power on ISWDs in India.

• The interstate water disputes emerge and recur due to their particular anatomy produced by three sets of characteristics:
  • legal ambiguities
  • antagonistic politics – a making of the nexus of water politics and democratic politics
  • due to their political ecology of asymmetries – deeply embedded as historically and geographically constructed
• Affected interests: Water disputes arise when the action of one state affects the interests of one or more other states. 
• Unsustainable use of water: Economic factors like underpricing of irrigation waters, promotion of water-consuming crops through support pricing, etc., often lead to unsustainable use of water during lean seasons thereby escalating conflicts.
• Increasing demand, pollution and decreasing availability: Water sharing disputes across the country (and even beyond) are only going to escalate with increasing demands, and also with increasing pollution & losses reducing the available water.
  • Climate change is likely to worsen the situation as monsoon patterns change, water demands going up with increasing temperatures, glaciers melt and sea levels rise. 

• Shortsightedness in technocracy
• Fragmented approach to governance
• Over-reliance on structural engineering (without concern of externalities)
• The Centre’s lack of initiative

Water Disputes Tribunals

• There are a whole set of reasons- why a coordinated response from the Centre and states is vital. These include:
  • emerging concerns of long-term national water security and sustainability
  • the risks of climate change
  • the growing environmental challenges, including river pollution
• Greater Centre-states coordination is also crucial for pursuing the current national projects.

Required measures

• As river basins are shared resources, a coordinated approach between the states, with adequate involvement of the Centre, is necessary for the preservation, equitable distribution and sustainable utilisation of river water.

• It is essential and necessary to have credible avenues for pursuing political solutions supplementing legal and institutional mechanisms.
• The strategy has to be multi-pronged, and legal approaches have to be supplemented with institutional and political solutions.

In order to resolve the interstate water disputes, the focus should be on the strengthening the esixting and evolving institutional mechanisms, and accommodating political sensitivities to find a long-term and mutually amicable path for the governance of interstate river water.