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Inter-State River Water Disputes

Abstract and Keywords

This chapter examines the constitutional framework for the resolution of inter-State river water disputes in India, considering whether water disputes are best resolved through political negotiation or through adjudication, how political agreements can be enforced and implemented, and how disputes are tackled substantively and procedurally. It discusses Article 262 of the Indian Constitution and the vesting of power in Parliament to adjudicate disputes regarding inter-State rivers or river valleys. It then provides a historical perspective on inter-State river water dispute resolution, starting from the Government of India Act 1919, and reviews two pieces of legislation enacted in 1956 to deal with inter-State river waters: the River Boards Act 1956 and the Inter-State River Water Disputes Act 1956. It looks at some of the major constitutional and legal debates that have surrounded inter-State river water disputes in India and analyses the Indian Supreme Court’s ruling in the Mullaperiyar Dam case.

Keywords: adjudication, India, Indian Constitution, Indian Supreme Court, inter-State river water disputes, Mullaperiyar Dam, Parliament, political negotiation, River Boards Act 1956

I. Introduction

India has twenty-five major river basins running through the nation, with as many as 103 sub-basins. Many of these rivers traverse more than one State, leading to conflicts between States regarding the use and distribution of water, for industrial and agrarian uses and for consumption. The resolution of inter-State river water disputes, consequently, is vital to the functioning of India as a federal State. For the same reason, the resolution of inter-State river water disputes, and the processes and institutions that guide such resolution, are the site of continued and intense conflict and contestation. This conflict plays out in politics, and the contestation manifests itself in extensive judicial debate. This is, in part, due to a complex set of constitutional provisions that lay competing claims on how and where inter-State river water disputes are resolved.

In this chapter, the constitutional framework for the resolution of inter-State river water disputes sets up the framing of several key questions. Are water disputes best resolved by political negotiation or through adjudication? If by political negotiation, how can political agreements be enforced and implemented? If by adjudication, how are these disputes tackled substantively and procedurally? In answering these questions, I examine, specifically, the Inter-State River Water Disputes Act 1956 (the ‘IRWDA’) enacted by Parliament, and how the bar on the Supreme Court’s jurisdiction on such river disputes has been implemented.

Section II outlines the constitutional framework and asks key questions that come with constitutional design: which authority decides such disputes and why. Section III examines Parliament’s intervention through the IRWDA, and the procedural and substantive issues that have arisen since the IRWDA was enacted in 1956. Section IV describes some of the major constitutional and legal debates that have surrounded inter-State river water disputes in India. Section V concludes with a careful reading and a critique of the Supreme Court’s most recent river water dispute judgment, the Mullaperiyar Dam case, and contains some comments and recommendations in conclusion.

(p. 503) II. Water Disputes and the Constitutional Framework

1. Article 262 and the Vesting of Power in Parliament

In recent times, scholarly opinion on the value of a judicial settlement over a political settlement for inter-State river water disputes has been fraught. India’s leading constitutional law scholar, HM Seervai, in 1991 attempted an evaluation by comparing the period of time required for political negotiations to the period of time for adjudications by tribunals.1 Finding no significant difference, he concluded that ‘the popular belief that the political settlement of a river water dispute would be more satisfactorily reached is demonstrably incorrect … ’2 Per contra, Professor Ramaswamy Iyer, while recognising the force of such arguments, has suggested that ‘Adjudication is an unsatisfactory way of dealing with such disputes; a negotiated settlement is infinitely superior; adjudication is divisive and leads to exaggerated claims by both sides … ’3

The resolution of federal disputes—that is, disputes between States, or between States and the Union—is constitutionally conducted through the judiciary. Article 131 of the Constitution vests the Supreme Court with such jurisdiction ‘in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends’. An exclusion, however, was carved out for inter-State river water disputes, allowing Parliament to decide the forum and manner of resolution. Consequently, Article 262 today provides:

262. Adjudication of disputes relating to waters of inter-State rivers or river valleys.

  1. (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. (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).

2. Inter-State Rivers in a Federal Nation

The legislative powers relating to water, like the adjudicatory provisions, were also divided so as to create a structure in which the Union of India could take measures to secure the optimum utilisation of what is possibly the most precious national resource, in a manner that is good for India—and not just in a way that balances the interests of States. (p. 504)

Schedule VII of the Indian Constitution, which allocates legislative power between the federal Union and States, differentiates between regulation of inter-State rivers (vested in the Union Parliament, in List I, Item 56) and the use of water, irrigation, and canals, generally (vested in States, in List II, Item 17). A declaration by Parliament relating to the regulation and development of inter-State rivers would denude the States of their legislative field in Entry 17 of List II. Traditional justifications for vesting the control of inter-State rivers in the Union have revolved around the claim that Parliament controls matters of national interest, while States control matters of local interest.4 The consumptive use of river water, on the one hand, as Seervai has noted, is fundamentally local in nature.5 At the same time, in current times where the use of water is in multiple forms, and with the increasing emphasis on delocalisation of agricultural practices, the national significance of the use of water cannot be minimised. Unlike land and mineral resources, however, inter-State rivers are not static, and the use of water from inter-State rivers inevitably affects the use of such water in other States through which the river flows.

3. Constitutional History

A historical perspective of inter-State river water dispute resolution, as a narrative of its legal history, begins from the Government of India Act 1919. Also known as the Rowlatt Act, this law laid the foundation for self-governance on a quasi-federal basis, by creating a 200-seat assembly to advise the British Viceroy and provincial governments, albeit with a limited remit. In this structure, ‘water’ was a provincial subject, but all control vested in the Viceroy/Secretary of State. The Union government retained the power to intervene or override provincial authorities. ‘Irrigation’ was a reserved subject. Expenditure on irrigation was made subject to the vote of the provincial legislature, but the administration of irrigation works was reserved to the Governor-General in Council and was under the ultimate control of the Secretary of State.

The Government of India Act 1935 (the 1935 Act’) brought about significant changes in the distribution of powers between the Crown and the provinces in relation to water. List II of the Seventh Schedule of the Act of 1935 recognised the powers of the provincial legislatures. While ports, fishing, and fisheries beyond territorial waters were reserved under List I, Entry 19 reserved to the Provinces ‘Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power’.

Sections 130 and 131 of the 1935 Act dealt with resolution of disputes between provinces relating to water. The government of any Governor’s province, or the ruler of any federal State, if apprehensive of any potential prejudicial effect by any executive/legislative action or omission with respect to the use, distribution, or control of water from any source, could complain to the Governor-General. If the Governor-General was of the opinion that the issues involved were of sufficient importance, he could appoint a commission of those having domain knowledge, to investigate and report to him on the matters to which the complaint related. Upon receipt of a report of the commission, the Governor-General could give his decision on the matter. The remedy against the decision lay by way of a reference to His Majesty in Council. (p. 505)

Article 262 of the Constitution differs from Sections 130 and 131 of the 1935 Act in three significant ways.

First, the 1935 Act in Section 133 by itself barred the jurisdiction of any court over inter-State river water disputes, whereas Article 262 confers upon Parliament the power to enact a law to bar the jurisdiction of the Courts.

Secondly, the structure of the Seventh Schedule makes the legislative field allocated to States subject to Parliament’s power to legislate over inter-State rivers.

Thirdly, the constitutional framework that the 1935 Act created to resolve inter-State river water disputes was done away with—as it had to be. Parliament was empowered to devise a suitable machinery for dispute resolution.

One of the suggestions mooted before the Sarkaria Commission, which reviewed Centre–State constitutional relations, related to modifying the constitutional scheme of distribution of legislative powers so as to shift the present Entry 17 to List I. This suggestion was rejected, noting that even in the present dispensation, where Entry 56 enables the Union to enact legislation for this purpose, it was ‘a case of non-use of a given power by the Union than one of want of the same … ’6 The Commission criticised the way in which the process of resolution of disputes through tribunals had proved to be extremely long-winded, and pointed out the hazards of interim reliefs. It suggested that a time limit be fixed in which tribunals should be constituted and that the award of a tribunal should have the binding effect of a decree of the Supreme Court (which was implemented in 20027). It also recommended that the Union be given suo motu powers to set up a tribunal.

4. Constitutional Design: Political Negotiation or Adjudication

The Constituent Assembly of India was faced with the choice of political versus adjudicatory resolution of disputes of distribution of waters of inter-State rivers. The pre-Independence structure was workable because political sovereignty lay in the Crown, and dissatisfaction with a decision on inter-State river water claims had no political consequences on the decision maker—the representatives of the Crown. Nonetheless, the 1935 Act introduced an adjudicatory flavour in the manner of resolution of water disputes.

In independent India, the political consequences of such decisions upon democratically elected governments at the Union and the States made it imperative to create a process that would leave space for consensual resolution as well as, where necessary, adjudication by a judicial or quasi-judicial forum. It clearly could not be left solely to the Union of India to mediate in such differences. Current events bear testimony to the reluctance of the political executive of the Union to intervene in—much less take proactive steps to resolve—disputes relating to inter-State river waters. (p. 506)

The second disadvantage of designating the Union as the authority to resolve such disputes would have been that States would have then resorted to remedies of judicial review against the decision of the Union. The nature of the judicial review process is such that a challenge could be laid on narrow grounds. The absence of an adjudicative machinery to deal with water disputes would have led to the States suing each other in the Supreme Court, or suing the Union of India or challenging any executive intervention by it.

Surprisingly, the question of how inter-State river water disputes are to be settled attracted little debate in the Constituent Assembly. An exception to the general jurisdiction of the Supreme Court over federal disputes8 was carved out for inter-State river water disputes, and draft Article 242-A envisaged that such disputes would be determined by the President—which means the executive government of the Union.9 The Drafting Committee modified this to suggest that inter-State river disputes should be determined in such manner as Parliament saw fit. This led to the insertion of what is now Article 262 of the Constitution.

III. Parliament’s Role: The Inter-State River Water Disputes Act

1. The River Boards Act

In 1956, the Parliament of India enacted two legislation dealing with the subject of inter-State river waters. The first of these was the River Boards Act 1956, which was enacted with the declaration that the Union government should take under its control the regulation and development of inter-State rivers and river valleys in the public interest.10 Despite this, fifty-eight years have gone by without the constitution of a single River Board and the Act remains a dead letter. The consequence of the declaration is one of the great uncertainties of constitutional law on the subject—Seervai’s view on the River Boards Act and this declaration was that ‘it could not have been intended that the State’s legislative power should be pro tanto affected by the Act which, for practical purposes, is dead … it is more than arguable that the declaration is ineffective and inoperative as long as the Act remains inoperative’.11

2. The Inter-State River Water Disputes Act

The second legislation enacted by Parliament—the IRWDA 1956—was an Act to provide for the adjudication of disputes relating to waters of inter-State rivers and river valleys. Unlike the River Boards Act, this law has been used frequently, and has led to considerable litigation. (p. 507)

The significant features of the IRWDA are:

  1. 1. it defines ‘water disputes’;

  2. 2. it excludes such disputes from the jurisdiction of the Supreme Court;12

  3. 3. it confers a power upon the Union government to constitute tribunals to resolve such disputes.

The Act defines water disputes to include disputes that pertain to the ‘use, distribution and control’ of inter-State rivers or valleys. Such disputes include conflicts arising from the interpretation of inter-State river water sharing agreements and treaties, and disputes over the levy of water rates.13 When a dispute has occurred, or, in the opinion of a State Government, is likely to occur, the State makes a request to the Union government to refer the dispute to a tribunal.14 It is only when the Union government is of the opinion that water disputes cannot be settled by negotiations, that it shall within one year from the receipt of such request constitute a Water Disputes Tribunal.15 Upon the constitution of a tribunal, the water dispute is referred to it for adjudication. The tribunal submits its report to the Union government setting out the facts as found by it, and more significantly, ‘giving its decision on the matters referred to it’.16 Section 6 of the Act mandates that the Union 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.

Preliminary challenges to the competence of Parliament to pass this law were unsuccessful: the opinion of the Supreme Court in the Cauvery Presidential Reference concludes this issue.17 The Court held that the IRWDA is relatable to Article 262 of the Constitution. The field of adjudication of water disputes is covered exclusively by Article 262. The Supreme Court also rejected the contention that Entry 97 of the Union List would also cover ‘use, distribution or control’ of the waters of an inter-State river.18 It is unfortunate that without noticing this judgment, the judgment in Re Networking of Rivers made observations to the contrary.19 Although the opinion in the Cauvery Presidential Reference is an advisory opinion under Article 143 of the Constitution and is not by itself binding, it has been subsequently cited with approval in the Karnataka case,20 as well as other cases, and to this extent, its ratio is binding.

3. The Principles of Inter-State River Water Dispute Resolution

The IRWDA gives no indication of the principles that have to be applied by the tribunal in deciding water disputes. There are, however, some observations, in the Cauvery Presidential Reference opinion of the Supreme Court that indicate that one consideration is the application of the principle of equity, which translates to an ‘equitable share of each State’ in the allocation of water.21 (p. 508)

The Supreme Court and tribunals presided over by eminent judges have also borrowed from principles applied in transnational water disputes. The jurisprudence of equitable distribution, and the manner of its determination, has been the subject of considerable evolution. American cases, where the US Supreme Court has dealt with water disputes for more than a century, have provided the foundation for development of robust principles by Indian tribunals. In State of Andhra Pradesh v State of Maharashtra,22 the Supreme Court cited with approval the US Supreme Court’s decision in Washington v Oregon,23 adopting the principle that a contest between the States is to be settled in ‘a large and ample way that alone becomes the dignity of the litigants concerned’,24 and the ‘burden of proof falls heavily on [the] complainant, more heavily … than in a suit for an injunction where States are not involved’.25

A discussion of the principles of resolution of water disputes can be found in some of the awards of the tribunals, as well, notably, the Bhargava award in the Narmada waters case, and the Cauvery tribunal award.

IV. Inter-State River Dispute Resolution: Concerns and Difficulties

Although initial resolutions of inter-State river water disputes under the IRWDA were successful (for instance, early disputes relating to the Krishna, Godavari, and Narmada rivers),26 three sets of concerns have arisen with the functioning of inter-State river water tribunals. Part 1 of this section discusses the intervention of courts despite the narrow bar in Section 11 of the IRWDA. Part 2 focuses on the powers of tribunals and discusses the enforcement of tribunal awards and their powers of interim relief. Part 3 analyses the process of dispute resolution and is mostly concerned with delays in constituting the tribunals.

1. The Bar Against the Supreme Court’s Jurisdiction

Challenges to the IRWDA’s bar on the Supreme Court’s jurisdiction in inter-State river water disputes have arisen in several contexts.

The bar on the jurisdiction of the Court turns on the definition of ‘water disputes’ in the IRWDA, since the jurisdictional bar is limited to ‘water disputes’. The second context of examination of the jurisdiction of the Court stems from the issue of locus standi. On the one hand, the Court has rightly held that only States may raise ‘water disputes’, but in doing so it has had to reconcile this with the issue of enforcement of the fundamental right to water. The Supreme Court has, however, almost consistently held that the jurisdiction of the Court, whether under Article 32 (original jurisdiction in enforcing fundamental rights) (p. 509) or Article 131 (original jurisdiction in federal disputes) stands excluded by virtue of Article 262 of the Constitution read with Section 11 of the IRWDA. This position was clarified in the decision in Atma Linga Reddy v Union of India.27 Despite this, in certain specific circumstances, the Court would have the jurisdiction to intervene. Two of these are discussed below.

a. ‘Water Disputes’ and the Jurisdiction of the Supreme Court

The definition of ‘water disputes’ in Section 2(c) of the IRWDA is wide:28 the first expression of width is ‘any dispute or difference …’ Thus, as long as the dispute broadly relates to the three areas set out in the three clauses, it would constitute a ‘water dispute’. The expression ‘waters of, or in …’ used in Article 262—reflected in Section 2(c)—could be construed as widening the scope of the expression ‘water disputes’ in respect of which Parliament may enact legislation. Thus, a ‘water dispute’ is not limited to the use, distribution, or control of the waters of an inter-State river. It may also extend to a dispute as to the use of the water ‘in, any inter-State river …’

The Court has, however, limited this definition—and the concomitant bar on jurisdiction—to unadjudicated water disputes, holding that disputes arising between federal units out of adjudicated disputes, including those relating to the enforcement of tribunal awards, could be resolved under Article 131. While the pure logic of the decision in the backdrop of the statutory language may be questionable, its wisdom is apparent. Experience has shown that the tribunals have not proved to be the most efficacious forums for dispute resolution. The way in which the governments (Union as well as of the States) treat tribunals has shown that this machinery has failed to command the respect it deserves as a constitutional forum. The Supreme Court, armed with the power to punish for contempt, is able to deal with States in a manner far more effective than tribunals—especially in respect of matters that have political overtones. Thus in practical terms, the trade-off between leaving unadjudicated disputes to be resolved by tribunals and limiting the courts’ jurisdiction to enforcing awards in relation to adjudicated disputes strikes the correct balance.

The Supreme Court has also found ways of finding jurisdiction to vindicate the rights of States where a tribunal would not have served the purpose. In State of Haryana v State of Punjab,29 a suit was filed by the State of Haryana for a decree declaring that the political settlements (embodied also in an agreement) were binding on the State of Punjab, casting an obligation upon it to restart and complete the portion of the SYL canal project that lay in Punjab. Rejecting a preliminary objection raised by the State of Punjab (based on the bar of Section 11 read with Section 2(c) of the Act) the Supreme Court held that when the (p. 510) averments in the plaint as well as the relief sought were not ‘related to the use, distribution or control of the water from the Ravi-Beas project’ but centred around the obligation of the State of Punjab to construct the SYL canal within its territory for ‘carrying [the] water from the Project to the extent the said water has already been allocated in favour of the State of Haryana’,30 the suit was not barred under Section 11 as it was not a ‘water dispute’. The Court here followed the decision of the constitutional bench in State of Karnataka v State of Andhra Pradesh31—which had held that the question of maintainability had to be decided upon the averments made by the plaintiff and the relief sought for.

In a somewhat different vein, in State of Orissa v Government of India,32 the Supreme Court upheld the contention of the State of Orissa that a difference had arisen between the two States relating to the diversion of the water from the river into a side channel weir and a flood flow canal, and the question whether these activities constituted a violation of an agreement that had been arrived at between the two States, would constitute a ‘water dispute’.33

In the first Mullaperiyar case, the Supreme Court rejected the contention that a petition under Article 32 was barred, as the dispute in the case related primarily to the safety of the dam—the right of Tamil Nadu to the water was not in issue.34

b. Locus Standi and Water Disputes

The Supreme Court has restricted the hearing of some disputes that might fall under the IRWDA’s restriction. Some cases have considered the question of locus standi to raise a water dispute. On a plain reading of the Act, a water dispute is raised by the State when the ‘interests of the State, or of any of the inhabitants thereof … ’ in the waters of an inter-State river are affected. It does not recognise the right of any inhabitant or group of inhabitants to raise such a dispute. In Atma Linga Reddy,35 the Supreme Court in a petition filed by residents of Mahboobnagar in Andhra Pradesh dealt with issues relating to a scheme under which a canal was to be made for supply of water to the State of Karnataka. Declining jurisdiction on the ground that the courts could not entertain petitions raising ‘water disputes’, the Court rejected the contention that the petitioners had a right independent of the State to a remedy in view of Article 21 of the Constitution. Any issue that has been decided by the tribunal would, in law, be binding on the respective States. Once the award is binding on the States, it will not be open to a third party (in that case, the public interest litigation petitioners) to challenge the correctness thereof.36

In Gandhi Sahitya Sangh v Union of India,37 the Court categorically held:

Under Article 131 of the Constitution of India, the water disputes between two States can only be brought by a State and not by an individual or a society … the petitioner has no locus standi to challenge the validity of the Act or setting up of the Tribunal and also to the reference of the disputes for adjudication to the Tribunal.

(p. 511)

Despite these judgments, law reports are replete with instances of private groups filing petitions.

2. Powers of the Tribunals: Interim Relief and Post-Award Litigation

a. Interim Relief

Section 5 of the IRWDA requires the Union government to ‘refer the water dispute and any matter appearing to be connected with, or relevant to, the water dispute to the Tribunal for adjudication’. This, in turn, raised the question of whether tribunals have the power to grant States interim reliefs in water disputes. The opinion of the Supreme Court in the Cauvery Presidential Reference settled this question of the power,38 holding clearly that a tribunal has the power to grant interim relief. The Court held that the power to grant interim relief was implicit in Section 5(1) of the Act. It also held that any interim order passed or relief granted (other than a purely procedural matter) would be deemed to be a report and a decision within the meaning of Section 5(2).

Overlooking this judgment, a bench of two learned judges have taken the view that the Supreme Court has the power to grant interim relief in water disputes. In State of Orissa v Government of India,39 the Supreme Court, dealing with a petition under Article 32 of the Constitution, directed the setting up of a tribunal. However, it held that until a tribunal was constituted, it had the power to grant interim relief. This conclusion was based on two propositions:

  1. (1)  The bar under Section 11 of the Act will come into play once the Tribunal is constituted and the water dispute is referred to the said Tribunal. Till then, the bar of Section 11 cannot operate, as that would leave a party without any remedy till such time as the Tribunal is formed, which may be delayed.40

  2. (2)  Notwithstanding the powers vested by Section 9 of the Act in the Water Disputes Tribunal to be constituted by the Union government under Section 4, which includes the power to grant the interim order, this Court under Article 32 of the Constitution has ample jurisdiction to pass interim orders preserving the status quo till a Tribunal is constituted which can then exercise its powers under Section 9.41

It is submitted that both these propositions require reconsideration. Section 11 of the Act provides that ‘Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act.’ Section 4 of the Act makes it mandatory to refer a dispute to a tribunal once the Union government is of the opinion that it cannot be resolved by negotiation. Until such time as such opinion is formed, the dispute continues to be a ‘water dispute which may be referred to a Tribunal’. The bar under Section (p. 512) 11 would apply when the dispute satisfies the definition of a ‘water dispute’. It does not refer to the stage after the reference of the dispute to a tribunal.

The second proposition is equally flawed. The exclusion of jurisdiction is on account of the statutory bar enacted in Section 11—which has to be read along with Article 262 of the Constitution. As held in the Cauvery Presidential Reference42 Article 262 alone encompasses the field of resolution of water disputes, and empowers Parliament by law to exclude the jurisdiction of the courts. Section 11 of the Act achieves that purpose. The general principle applicable to construction of statutes—namely, that any interpretation that creates a situation where a citizen is left remedy-less should be eschewed—can have no application where the statutory provisions read with Article 262 admit of no ambiguity.

Finally, it is equally a settled principle that the power to grant interim relief is an adjunct to the power to grant the final relief. A Court that has no power to decide a dispute cannot take a prima facie view of the merits of the dispute and grant interim relief.

b. Post-Award Litigation

(i) Appeals against awards

Although some of the awards of tribunals have been sought to be appealed in petitions filed in the Supreme Court under Article 136 of the Constitution, the question whether the Supreme Court can entertain an appeal by special leave under Article 136 against an award is not settled. Article 136 grants the Supreme Court the power to hear appeals by special leave ‘from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India’. The observations of the Supreme Court in State of Tamil Nadu v State of Karnataka43 would suggest that the Supreme Court could examine constitutional or legal issues that may arise out of an award.

In that case, the Cauvery tribunal had declined to entertain applications for interim relief. In an appeal under Article 136 from its order, an objection as to the maintainability of such a petition for special leave was raised on the basis of the bar under Section 11 read with Article 262. Rejecting this objection, the Court held:

Thus, we hold that this Court is the ultimate interpreter of the provisions of the Interstate Water Disputes Act, 1956 and has an authority to decide the limits, powers and the jurisdiction of the Tribunal constituted under the Act. This Court has not only the power but obligation to decide as to whether the Tribunal has any jurisdiction or not under the Act, to entertain any interim application till it finally decides the dispute referred to it.44

After the tribunal passed the interim award, the matter found its way to the Supreme Court in the Cauvery Presidential Reference, and the Supreme Court held that an interim award was an ‘award’ within the meaning of Section 6 of the Act.45 It is possible to contend that an order declining relief is equally an award—which is appealable (albeit on limited grounds). This being so, if an award could as a matter of principle be subject to an appeal, there would be no warrant to exclude an appeal against a final award. This view would not militate against the general proposition that a suit under Article 131 is limited to adjudicated disputes. (p. 513) An appeal by special leave would only examine the legality and constitutional validity of the award on the principle that as far as the laws and the Constitution is concerned, it is the Supreme Court which is the final interpreter and for this purpose has the power to sit in appeal against the judgment or order of any quasi-judicial tribunal.

(ii) Enforcement and implementation

Article 262 of the Constitution and Section 2(c)(i) of the IRWDA facially cover all disputes relating to the use, distribution, or control of the water. The Supreme Court, in reconciling Article 131 with Article 262, held that the enforcement of award of a tribunal in relation to ‘adjudicated disputes’ does not raise a water dispute, and a suit for that purpose would be maintainable. In State of Karnataka v State of Andhra Pradesh,46 the Court revisited the issue of Article 131 vis-à-vis Article 262 of the Constitution. The Court held that the maintainability of a suit under Article 131 would depend upon the averments made in the plaint—accepting the principle that Article 131 of the Constitution was also subject to Article 262 (if Parliament made a law excluding the jurisdiction of the Court).47 But a suit in which the relief sought is substantially for the implementation of an award by way of a direction to the Union government to take the necessary steps under the Act would not be barred. The Court held that if the assertions made in the plaint and the relief sought is a claim on the basis of an adjudicated dispute (the mere enforcement of which is sought for by filing a suit under Article 131), the suit would not be barred.48

The test enunciated in this case, namely, that it would depend on the averments made in a plaint, is over-broad, and may fall foul (if literally understood) of principles set out in the Code of Civil Procedure 1908, as well as of principles of constitutional law—the latter being predominant in construction of competing constitutional provisions such as Articles 131 and 262. The demurrer test is applicable at the initial stage—where a defendant challenges the maintainability of a suit at the threshold. However, if at the end of the trial, the Court comes to a conclusion that what appeared to be an adjudicated dispute is not really so, or that apart from the adjudicated dispute the Court has to resolve other factual or legal controversies that fall within the definition of a ‘water dispute’, it would be compelled by the constitutional bar on its jurisdiction to decline relief in the suit. The Karnataka suit was not at the initial stage—it was at the final stage of the trial. The application of the demurrer test of limiting the challenge to jurisdiction to the averments made in the plaint was questionable.

3. Delays in Resolving Disputes

Delays in resolving inter-State river water disputes are a matter of grave concern. The Sarkaria Commission, appointed by the Union government in 1983 to examine Centre–State relations, noted the ‘inordinate delay in securing settlement of such disputes’49 and that the consequent ‘loss to the States and to the nation as a whole, is irreparable’.50 The Commission (p. 514) recommended that a time limit be prescribed for the constitution of tribunals51—this was implemented through a series of amendments to the IRWDA in 2002. The current Act provides that the reference to the tribunal must be made within one year of the receipt of a complaint from a State.52 This has not solved the difficulties of delay, particularly when it comes to the constitution of tribunals and the publication of awards.

a. Constitution of Tribunals

Much of the delay arises at the stage of constitution of a tribunal. In order to put in motion the process to establish a tribunal to resolve a ‘water dispute’, the first step is that a State Government must make a request to the Union government. The language of Section 4 of the Act does not limit the right to make a request to a State Government that is prejudicially affected. It provides that ‘When any request under Section 3 is received from any State Government in respect of any water dispute …’ Arguably where a dispute has arisen, even a State against which allegations are made of acting in a manner prejudicial to other riparian States can move the Union government to constitute a tribunal. The next condition is that ‘the Union government is of opinion that the water dispute cannot be settled by negotiations …’ Prior to its amendment in 2002, the statute did not prescribe any time limit during which the Union government was obliged to set up a tribunal. The 2002 amendment provided that the Union government shall, within a period not exceeding one year from the date of receipt of the request, constitute the tribunal. Thus, the period available for negotiations is now limited to one year.

Despite the plain language of the statute—and prior to its amendment in 2002, which imposed the duty to act within a period of one year, the track record of the Union government has been questionable—partly on account of the fact that even the constitution of a tribunal may have serious political consequences. The problems inherent in the constitution of a tribunal are reflected in the judgment of the Supreme Court in Tamil Nadu Sangam v Union of India,53 where the Union government for a considerable period of time did not constitute a tribunal, despite the simmering disputes, which at times turned violent, between Tamil Nadu and Karnataka. Even after a petition was filed in the Supreme Court, the Supreme Court directed the Union of India, in the first instance, to take instructions in order to see whether the dispute could be resolved amicably. The Supreme Court, while issuing a mandamus, held that:

The Central Government as the guardian of the interests of people in all the States must, therefore, on all such occasions, take prompt steps to set the constitutional machinery in motion. Fortunately, the Parliament has by enacting the law vested the Central Government with the power to resolve such disputes effectively by referring the matter to an impartial Tribunal.54

The Court underscored the fact that in the Bill (in the draft Section 4) the expression used was ‘may’, but the statute as enacted by Parliament substituted it with the word ‘shall’.55 (p. 515)

It is submitted that the proposition that Section 4, on its plain language, is mandatory, is clearly right. Thus, where the Union government is of the opinion that a dispute has arisen, and that it cannot be resolved by negotiations, then the Union government is under a mandatory duty to set up a tribunal. However, some of the observations in the judgment do not accord with the settled principles of judicial review. From the facts set out in the judgment, it appears that after the judgment was reserved, the Union of India informed the Court that it did not want to undertake any further negotiations and that the matter was left for disposal by the court. The judgment observed that ‘the Central Government must be held to be of the opinion that …’56 Such a formulation does not accord with settled principles of judicial review. However, where the Court is satisfied that on the material before the Union government, applying the Wednesbury principle, no reasonable person could necessarily form (or continue to hold) an opinion that the dispute can be resolved by negotiation, the Court could in judicial review hold that as a matter of law, the condition precedent for the appointment of a tribunal stands satisfied.

In a recent judgment, however, Re Networking of Rivers,57 the Supreme Court made some observations without noticing the earlier judgments, and which observations, even though tentative, are, it is submitted, clearly per incuriam. The River Networking case took the view that:

[T]he use of [the] expression ‘may’ in the Constitution does not indicate a clear legislative intent, thus, it may be possible that Section 11 of the Act could refer only to such disputes as are already referred to a Tribunal and which are outside the purview of the Courts. Once a specific adjudicatory mechanism is created, that machinery comes into operation with the creation of the Tribunal and probably, then alone will the Court’s jurisdiction be ousted.58

It is submitted that the language of Article 262 admits of no ambiguity. The expression ‘may’ is only because Article 262 enables Parliament to make law for the resolution of inter-State river water disputes, and also enables Parliament to oust the jurisdiction of the courts. Once such a law is made—as has been done—and the jurisdiction of the courts ousted, the enabling language of Article 262 would not be determinative of the matter. Section 11 of the IRWDA provides that neither the Supreme Court nor any other Court shall have or exercise jurisdiction in respect of any water dispute, which may be referred to a tribunal under the Act. The word ‘may’ in Section 11 refers to a water dispute, which is amenable to reference to a tribunal.

As held by the Supreme Court in the Cauvery Presidential Reference opinion, once the Union government is of the opinion that a water dispute cannot be resolved by negotiation, it is under the duty to refer such a dispute to a tribunal. The IRWDA is a complete code and the resolution of a water dispute can only be under the IRWDA. The interpretation given—tentative as it is—could, if accepted, defeat the constitutional objective of insulating the courts from ‘water disputes’, for if this interpretation is correct, then it must logically follow that the Union government is under no obligation to constitute a tribunal, and unless the Union government elects to constitute a tribunal and refer a dispute to it, the courts, including the Supreme Court, would have jurisdiction to entertain writ petitions or suits raising water disputes. This would clearly be contrary to the intention of the Constituent Assembly as well as parliamentary intent in enacting the Act. (p. 516)

The observations of the Court that the IRWDA ‘was also enacted with reference to the same entry’59 (referring to Entry 56)—one of the premises for these tentative conclusions—are also flawed in that a constitutional bench in the Cauvery Presidential Reference discussed this at length and came to the conclusion that the IRWDA was relatable to Article 262 of the Constitution and was not relatable to either Entry 17 or Entry 56.

b. Publication of Awards

Section 6 of the Act requires the Union government to publish the decision of the tribunal in the Official Gazette. It is only upon publication that the award becomes final and binding. Sub-section (2) of Section 6 provides that ‘after’ its publication, the award ‘shall have the same force as an order or decree of the Supreme Court’. Section 6A was added to the statute in 1980. It was added to create the statutory basis, to put in place the mechanism contained in the Narmada award relating to the distribution of waters and the operation of the facilities to be put in place pursuant to the award, including the Sardar Sarovar dam. The award, a remarkable piece of work, as valuable for its jurisprudence as it is for the innovative structures created for administering the distribution of waters, provided for the sharing of the waters of the Narmada river between the riparian States of Maharashtra, Madhya Pradesh, and Gujarat. Another remarkable feature was the true act of federalism, by the Government of the day, of getting the three riparian States to agree to share these waters with the State of Rajasthan, which is not a riparian State in relation to the Narmada river.

Section 5(2) of the IRWDA requires the tribunal to ‘investigate the matters referred to it …’ Having done so, it has to forward its report to the Union government ‘setting out the facts as found by it and giving its decision …’ Clearly, there is a reason why Parliament cast a twofold obligation upon the tribunal. The facts found by a tribunal may justify a solution, in the larger national interest, that transcends the interests of the contesting riparian States. These facts may warrant, for example, a legislation under Entry 56 by Parliament. However, a decision by the tribunal can only be such as can be imposed upon the contesting States.

In State of Karnataka v State of Andhra Pradesh,60 the Supreme Court had to deal with a suit praying for a mandatory injunction to compel the Union government to publish what was described in the award as Scheme B. Declining the relief, the Supreme Court held that a declaration of the tribunal by itself is not a decision which would require to be published. The Supreme Court held that ‘if the order is not meant to be merely declaratory in nature but is meant to be implemented and given effect to by the parties, then it would constitute a decision within the meaning of Section 5(2) and is required to be published by the Union government under Section 6 of the Act’.61 The Court held that there was a difference between the facts found in a report and the decision of the tribunal, and a scheme that had been enunciated in the order of the tribunal but which was not meant to be implemented for it could not be given effect to by the parties to the dispute alone could not be the decision of the tribunal under Section 5(2) of the Act.62 It could only be held to be the ‘facts found’ in the report submitted. The interim award made by a tribunal would also need to be published under Section 6 in order to make it binding upon the States.63

(p. 517) V. Conclusion, and an Evaluation of the Mullaperiyar Judgment

The recent case of the Mullaperiyar Dam has raised serious issues in relation to the resolution of water disputes. In this section, I briefly analyse the judgment, before offering some remarks in conclusion. The Mullaperiyar Dam judgment illustrates the wisdom of the framers of the Constitution in enacting Article 262 of the Constitution, particularly the point that water disputes cannot be decided by applying procedural rules contained in the Code of Civil Procedure. In this case, in the first round, in a petition under Article 32 of the Constitution,64 the Supreme Court took it upon itself to decide whether Tamil Nadu should be allowed to raise the height of a dam across the Mullaperiyar river.

This case concerns the Periyar river, which flows through the State of Kerala. The dam was constructed in 1987, at the confluence of the Periyar and Mullayar rivers, and is known as the Mullaperiyar Dam. Although located in Kerala, the dam is operated by the State of Tamil Nadu, in pursuance of a historical agreement executed prior to the independence of India. Tamil Nadu’s plans to raise the height of the dam were contested by Kerala, on the grounds of safety and the viability of doing so, with respect to the strength of the dam: this was a subject of persistent litigation before the Supreme Court.65 Kerala also raised serious issues as to the backwater effect of the dam.

In the petition under Article 32, the Supreme Court gave short shrift to the concerns of the Kerala Government relating to the consequences of raising the water level of the Mullaperiyar Dam. It needs to be mentioned that the pleadings in the case were sketchy—the Kerala Government did not articulate with clarity and precision its concerns as to the effects of raising the height of the dam.

In 2003, Kerala enacted the Kerala Irrigation and Water Conservation Act 2003. After the judgment of the Supreme Court, by a 2006 amendment, this Act fixed the dam height, deemed certain old dams, including the Mullaperiyar Dam, to be endangered, and set up an authority to examine issues of safety.

The Kerala legislation was challenged as being a usurpation of judicial power. The Court appears to have upheld this challenge, holding that a legal fiction cannot override a finding of fact. It rejected an argument that it was always open to a legislature to deem an environmentally sensitive structure to be unsafe so as to warrant regulation by an authority constituted under State legislation.66

The Mullaperiyar Dam is situated in Kerala. Indisputably the Kerala legislature has the competence to enact laws dealing with the dam, including its safety. Merely because the State of Tamil Nadu is a lessee of a land and the owner of the dam, a dispute relating to the implications of a Kerala law in relation to the dam does not become a dispute between the States. The legislation sought to get over the earlier judgment of the Supreme Court of (p. 518) India in a petition under Article 32 of the Constitution. If the legislation was beyond the competence of the State because it dealt with issues of dispute between two States, then the judgment in the previous case would equally be without jurisdiction, being contrary to the bar contained in Article 131 of the Constitution.

Finding the Kerala law unconstitutional, the Supreme Court held:

There is yet another facet that in federal disputes, the legislature (Parliament and State legislatures) cannot be judge in their own cause in the case of any dispute with another State. The rule of law which is [a] basic feature of our Constitution forbids the Union and the States from deciding, by law, a dispute between two States or between the Union and one or more States.67

It is submitted that this proposition is clearly erroneous. The judgment of a court can always be nullified by removing its legal basis. If a dispute between two States arises out of laws prevalent in one of the States, a judgment deciding the dispute can always be changed by the State possessing the legislative competence, as long as the law does not have extraterritorial consequences. Being satisfied that the impugned law was a usurpation of judicial power, the Court declared the law to be unconstitutional. But then it went on to make observations reading in limitations on legislative powers of States, which observations are, it is submitted, erroneous. There is no question of irreconcilable laws by States as long as the laws are not extraterritorial and are within the bounds of Article 246(2). Absence of a legislative power to nullify a tribunal award is on account of the fact that, as explained in the Cauvery Presidential Reference, neither Entry 17 of List II nor Entry 56 of List I covers this field—it is exclusively dealt with by Article 262. The judgment of any court (including the Supreme Court) in relation to a law, which the State is competent to enact, is subject to being nullified if the legal basis on which the judgment has been rendered is altered—irrespective of the impact the impugned law has on other States.

The Supreme Court also held that the Mullaperiyar river—which admittedly rises in Kerala and goes into the sea in Kerala without passing through any other State—is an inter-State river. The three reasons given were:

  1. 1. in submissions in the previous case, counsel had contended that a petition under Article 32 was barred by Article 262 (which submission was not accepted), even though there was no such assertion in pleadings;

  2. 2. a small part of the catchment lay in Tamil Nadu; and

  3. 3. Kerala had pleaded but not adequately proved that the river is an inter-State river. The Court, however, clarified that Tamil Nadu was not a riparian State.68

Each of these reasons merits close scrutiny. The last reason suggests that for all time now the State of Kerala would have to accept that the Mullaperiyar river in fact is an intra-State river, but qua the State of Tamil Nadu alone an inter-State river, because this finding would presumably be binding by the principle of issue estoppel on the State of Kerala forever.

The baffling consequence of this finding is that while the Mullaperiyar is an inter-State river, yet there is no other riparian State. Does this pave the way for Tamil Nadu laying claim to part of the waters, challenging the finding that it is not a riparian State, seeking a tribunal (p. 519) under Article 262? Would such a tribunal be allowed to revisit the finding that the river is an inter-State river—or would the misadventure of counsel in the Article 32 petition (arguing that Article 262 barred such a petition) bind the tribunal?

The second finding—that a part of the catchment lies in Tamil Nadu—opens the proverbial Pandora’s box. Does this open the door for a large number of States to lay claim to waters based on catchments on a pro rata basis? It may be noted that indisputably the catchment that lay in Tamil Nadu was downstream from the dam!

VI. Conclusion

The US Supreme Court, which has a long history of water disputes, evolved principles on which it adjudicated the equities of riparian States, and evolved procedural systems for monitoring its decrees. The Indian Constituent Assembly found a balance between the structure of the 1935 Act that left these decisions to the Crown’s representatives and the inadequacies of the traditional judicial remedies in dealing with these problems.

The tribunals constituted delivered on the faith reposed in them by the Constitution. The Bhargava Tribunal, which decided the Narmada water dispute, showed how an adept tribunal could adapt and evolve water sharing jurisprudence and combine it with practical solutions that have stood the test of time. At a time when environmental concerns were minimal, it took care to put in place ameliorative measures to undo the possible environmental fallouts of such a project. It also put in place a machinery to deal with the human problem of displacement of project affected persons—this at a time when the Supreme Court has construed the rights under Article 21 as being limited to a protection against invasion of life or liberty by executive action not authorised by law.

Unfortunately, some of the later tribunals have been unequal to the task of resolving water disputes between the States—the proceedings have dragged on interminably and the solutions are not politically acceptable. The solution lies in strengthening the tribunal system of dispute resolution and addressing its shortcomings, rather than the courts reading down Article 262 and taking upon themselves the task of resolving water disputes.

In contemporary partisan politics, no Chief Minister or the party in power in a State would agree to give up its claim to a share of water, in favour of a neighbouring State, for fear of the political backlash of such a decision, however reasonable a proposal may be from the national perspective. The decades that have followed the enactment of the IRWDA have shown that the exclusion of the jurisdiction of the courts has only been partial—and rightly so, for the courts have found areas of jurisdiction for intervention—prior to the constitution of a tribunal, against the decision of a tribunal, and after the award of the tribunal, notwithstanding the provisions of Article 262 and the IRWDA.

The recurrence of inter-State river water disputes can be indicated through two sets of problems that have occurred in the past and will continue to recur. The first concerns how the courts and tribunals grapple with the increasing recognition of environmental concerns, particularly in the form of individual petitions under the general claim of the ‘right to life’. Since individual petitions are prohibited in inter-State river water disputes, an attempt at some reconciliation of these claims will undoubtedly arise. The second deals with State (p. 520) reorganisation, the adjustment of State boundaries in India, that inevitably brings with it the readjustment of claims over water sharing.

The wisdom of the framers of the Constitution in creating a machinery to deal with the intractable problem of resolving disputes relating to waters of inter-State rivers, and the wisdom of the Supreme Court, for the most part, in showing judicial restraint by declining jurisdiction in relation to water disputes (even when presented as a facet of the right to life under Article 21 of the Constitution) and by restraining States from riding roughshod over tribunal awards (interim and final) which were politically unpalatable—has been one of the strengths of the federal system. The occasional foray into areas which the Constituent Assembly was wary of the courts treading upon has led to some questionable results. The Mullaperiyar judgments are a good example of the hazards of summary justice in the area of resolving federal issues.


(1) HM Seervai, Constitutional Law of India: A Critical Commentary, vol 3 (4th edn, Universal Book Traders 2002) 3247.

(2) Seervai (n 1) 3247.

(3) Ramaswamy R Iyer, ‘Inter State Water Disputes Act 1956, Difficulties and Solutions’ (2009) 37(28) Economic and Political Weekly 2907, 2907.

(4) See, on this point, Seervai (n 1) 3244.

(5) Seervai (n 1) 3244.

(6) Report of the Sarkaria Commission on Centre–State Relations (Government of India 1988), ch 17 <>, accessed November 2015.

(7) By inserting sub-section (2) to s 6, which makes a published award binding having the same force as an order or decree of the Supreme Court.

(8) Constitution of India 1950, art 131.

(9) Constituent Assembly Debates, vol 9 (Lok Sabha Secretariat 1986) 1187, 9 September 1949.

(10) River Boards Act 1956, s 2.

(11) Seervai (n 1) 3243.

(12) IRWDA, s 11.

(13) IRWDA, s 2(c).

(14) IRWDA, s 3.

(15) IRWDA, s 4.

(16) IRWDA, s 5.

(17) Re Cauvery Water Disputes Tribunal (1993) Supp (1) SCC 96(2).

(18) Re Cauvery Water Disputes Tribunal (n 17) [69].

(19) Re Networking of Rivers (2012) 4 SCC 51. A fuller discussion of this judgment is given in Section IV.3.

(20) State of Karnataka v State of Andhra Pradesh (2000) 9 SCC 572.

(21) Re Cauvery Water Disputes Tribunal (n 17) [72].

(22) (2013) 5 SCC 68.

(23) 297 US 517 (1936).

(24) Washington (n 23) 529.

(25) Washington (n 23) 524.

(26) Ramaswamy R Iyer, Water: Perspectives, Issues, Concerns (Sage Publications 2003) 27.

(27) (2008) 7 SCC 788.

(28) The expression ‘water dispute’ is defined in language of considerable width. Section 2(c) of the Act defines it thus:

‘Water dispute’ means any dispute or difference between two or more State Governments with respect to—

  1. ((i)) the use, distribution or control of the waters of, or in any inter-State river or river valley; or

  2. ((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

  3. ((iii)) the levy of any water rate in contravention of the prohibition contained in section 7.

(29) (2002) 2 SCC 507.

(30) State of Haryana (n 29) [7].

(31) State of Karnataka (n 20).

(32) (2009) 5 SCC 492.

(33) State of Orissa (n 32) [48].

(34) Mullaperiyar Environmental Protection Forum v Union of India (2006) 3 SCC 643.

(35) Atma Linga Reddy (n 27).

(36) Narmada Bachao Andolan v Union of India (2000) 10 SCC 664 [52].

(37) (2003) 9 SCC 356 [2].

(38) Re Cauvery Water Disputes Tribunal (n 17) [93]–[96].

(39) State of Orissa (n 32).

(40) State of Orissa (n 32) [51].

(41) State of Orissa (n 32) [50].

(42) Re Cauvery Water Disputes Tribunal (n 17) [93]–[98].

(43) (1991) Supp (1) SCC 240.

(44) State of Tamil Nadu v State of Karnataka (1991) Supp (1) SCC 240 [15].

(45) Re Cauvery Water Disputes Tribunal (n 17) [98].

(46) (2000) 9 SCC 572.

(47) State of Karnataka (n 20) [24].

(48) State of Karnataka (n 20) [59].

(49) Report of the Sarkaria Commission on Centre–State Relations (n 6) ch 17, para 17.1.01.

(50) Report of the Sarkaria Commission on Centre–State Relations (n 6) ch 17, para 17.4.08.

(51) Report of the Sarkaria Commission on Centre–State Relations (n 6) ch 17, para 17.4.11.

(52) IRWDA, s 4(1) as amended by Act 14 of 2002.

(53) Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v Union of India (1990) 3 SCC 440.

(54) Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam (n 53) [17].

(55) Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam (n 53) [18].

(56) Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam (n 53) [18].

(57) Re Networking of Rivers (n 19).

(58) Re Networking of Rivers (n 19) [68].

(59) Re Networking of Rivers (n 19) [71].

(60) State of Karnataka (n 20).

(61) State of Karnataka (n 20) [12].

(62) State of Karnataka (n 20) [12].

(63) Re Cauvery Water Disputes Tribunal (n 17) [98].

(64) State of Tamil Nadu v State of Kerala 2014 SCC OnLine SC 432.

(65) AJ Thatheyus, Delphin Prema Dhanaseeli, and P Vanitha, ‘Inter-State Dispute over Water and Safety in India: The Mullaperiyar Dam, a Historical Perspective’ (2013) 1(2) American Journal of Water Resources 10.

(66) State of Tamil Nadu (n 64) [146].

(67) State of Tamil Nadu (n 64) [152].

(68) State of Tamil Nadu (n 64) [204]–[209].