19

Inter-State Water Disputes in India: Appraisal

of the Problems
A. Principles of Law, Equity or State-Practice that Have Emerged

From the survey in the preceding chapters, of the contribution of various sources
of law including juristic works, statutory provisions, reports of Commissions.
judicial decisions or awards, inter-State Agreements and inter-State practice
towards development of law in the field of inter-State water disputes and their
actual application for settling inter-State water disputes in India, the following
guiding principles seem to have emerged:
(i) for the purpose of various quantitative calculations of water to be relied
upon at the time of distribution of some water resources or planning of
their utilization through various uses of water, •'unless in some,specific
context the concerned parties otherwise agree the water year is reckoned
as beginning from 1st of the month of June of one year and extending up
to the 31st of May of the next year."
This view has in actual practice been followed by the Krishna River Water
Disputes Tribunal in 1973, Narmada Water Disputes Tribunal in 1978, the
Godavari Water Disputes Tribunal in 1979-1980 and the Eradi (Ravi and Beas
Waters) Tribunal in 1987
(ii) A river is to be treated as an indivisible physical unit and for the purpose
of sharing of water resources a river under dispute includes all its
tributaries.
In actual practice this view was followed by the Krishna River Water
Disputes Tribunal in 1973, Narmada Water Disputes Tribunal in 1978,
Godavari Water Disputes Tribunal in 1979-1980 and the Eradi (Ravi and Beas
Waters) Tribunal in 1987.
(iii) A tributary of some river within one drainage basin does not in itself
form a unit for the purpose of distribution of water resources of the said
basin. The entire basin as such has to be taken as a unit for the said
purpose. The Eradi Tribunal applied this principle in 1987 while
settling Ravi-Beas Water dispute between Punjab, Haryana and
Rajasthan.
(iv) Once a State was alloted a specific share of water out of the water
resources of a drainage basin or a river system, it was free to utilize it in
whatever way it may like. This principle was enunciated and followed
by the Krishna River Water Disputes Tribunal, Narmada Water
Disputes Tribunal, Godavari Water Disputes Tribunal and Eradi
(Ravi and Beas Waters) Tribunal. Thus the decisions of various
Tribunals have been water-share oriented and the same did not go into
details of the projects unless so required by the parties.
 Inter-State Water Disputes in India: Appraisal ofthe Problems 317
(v) As a principle it has been accepted that diversion of water for its use
outside the basin was permissible. The Krishna River Water Disputes
Tribunal actually allowed it in case of Maharashtra, the Narmada
Water Disputes Tribunal permitted such diversion, inter alia, in favour
of Rajasthan; the Godavari Water Disputes Tribunal permitted
diversion of its share of water of Godavari by a State, for use outside the
Godavari basin and Eradi (Ravi and Beas Waters) Tribunal also
recognized this principle.
(vi) Practically all the Tribunals, which have given their awards uptil now,
have asserted the principle of 'optimum utilization' of water resources
as the ultimate objective of any exercise in water sharing and water
utilization.
(vii)Almost all the Tribunals have emphasized the principle of' 'avoidance
of unnecessary waste in the utilization of waters" of the concerned basin
or river system, as such,
(viii) Some Tribunals have laid emphasis even on prevention of pollution of
the concerned water resources.
(ix) Keeping in view the principle of 'community of interest' in water
resources, various Tribunals have recommended the mode of 'co-
operative development' of the concerned water resources by the
disputant States.
(x) The Tribunals, while involved in the process of settlement of inter-State
water disputes in india, have been treating it as oneof the basic principles
that "the use of water by any person or entity of any nature, whatsoever,
within the territory of a State, is to be reckoned as use by that State".
(xi) Another principle related to the above-mentioned one, and followed by
the parties in inter-State water disputes, is that "a State represents all its
inhabitants and water users in a complaint by or against its under
section 3 of the Inter-State Water Disputes Act,1956".
(xii)If there is a central legislation (by the Parliament), such a law binds all
the States and a Tribunal has no power to override the paramount
central legislation. However, the decision of the tribunal overrides
all repugnant State legislation and executive action.
r .iii) The Inter-State Water Disputes Tribunals in India have recognized the

efficacy and the value of 'agreements' for settlement of such disputes.

The Narmada Water Disputes Tribunal not only recognized the authen-
ticity of the Agreement of July 12, 1974 among the States of Madhya
Pradesh, Gujarat, Maharashtra and Rajasthan but rather incorporated
it in its own award. The Godavari Water Disputes Tribunal encouraged
the conclusion of agreements by the party-States even during its pen-
dency and as such did not only highlight but also practically demon-
strated the efficacy of settling inter-State water disputes through agree-
ments, which were later made part of its award. The Eradi (Ravi and Beas
Waters) Tribunal, while demarcating the shares of Punjab and Haryana,
in their award of 1987, by not touching the share of Rajasthan in the said
waters, as determined by some earlier agreement, thus, laid down the
principle that' 'shares of water alloted by certain agreements earlier and
318 Settlement of Internationaland Inter-State Water Disputes in India
not touched by the terms of reference of the present dispute remain
untouched and as such unaffected". But, if the examination of the
allocation of water share according to some earlier agreement forms the
terms of reference of a Tribunal, its award may supersede the earlier
agreement.
(xiv)After examining the observations of the earlier Tribunals and conduct-
ing the qualitative. analysis of the decisions of the Supreme Court of
U.SA.~ the Eradi (Ravi and Beas Water) Tribunal, 1987, the latest
in the series of Indian Tribunals, rightly observed that "these decisions
are of no assistance and cannot be applied to Indian conditions". Their
plea was that the American States which were originally independent
and sovereign states merged into a federation retaining their independ-
ence and sovereignty except to the extent the same was granted away to
the federation, whereas the Indian States owe their status of federal units
to a transformation process converting the administrative units of a
unitary form of polity into the political units of a federation, enjoying
some limited powers devolved on them by the earlier unitary centre,
which retained all the undevolved as well as the residuary powers to
itself. The present federal constitutional set-up in India
institutionalized the pre-constitution structure with slight adjust-
ments. Thus, the federal units in India do not enjoy the same
constitutional position or the extent of autonomy as the federal units in
the United States of America.
(xv) Unless. otherwise agreed upon by the parties or so directed by the
concernedTribunal, if in any water year a State is unable to use a portion
of the water allocated to it on account of the non-development of its
projects or damage to any ofits projects or does not use it for any reason,
whatsoever, that State willnot be entitled to claim the unutilized water
in any subsequent water year. The Krishna and Godavari Water
Disputes Tribunals incorporated this principle in their awards.
(xvi)Unless otherwise agreed upon by the concerned parties or so directed by
the respective Tribunal, failure of any State to make use of any portion
of the water allocated to it during any water year shall not constitute
forfeiture or abandonment of its share of water in any subsequentwater
year nor shall it increase the share of any other State in any subsequent
water year even if such other State may have used such water during
some water year. Both the Krishna Water Disputes Tribunal, 1973 and
the Godavari Water Disputes Tribunal, :t979-] 980 expressly incorpo-
rated this principle in their respective 'Final Orders'.
(xvii)The Doctrine of Riparian Rights does not find application in the field
of inter-State water disputes in India. Incidentally, the Narmada
Water Dispute Tribunal made an obitur dicta observation in its award
that "Rajasthan, being a non-riparian state is not entitled as a matter of
law to any share in the water of the inter-State River Narmada."
However, in its 'Final Order' the Tribunal did not only allot a share of
water to Rajasthan, ostensibly on the basis of an agreement, but also, at
its own initiative and under its own authority, allocated a specific
 Inter-State Water Disputes in India: Appraisal ofthe Problems 319
percentage of share in excess waters to Rajasthan and put it under strain
proportionately in the event of shortage despite Rajasthan being a non-
riparian SLate with respect to the Narmada. Subsequently, the Eradi (Ravi
and Beas Waters) Tribunal, 1987, rejected this doctrine when it
declared that Punjab's plea, that Haryana could not have a share in
Ravi-Beas waters because of its non-riparian status, was untenable.
(xviii) The theory of 'proprietory rights of a Slate' with respect to waters
of inter-State rivers or river valleys is not applicable in case of inter-
State water disputes in India. In addition to its earlier rejection, the said
theory was finally rejected by the Eradi (Ravi and Beas Waters)
Tribunal, 1%7 when it held that Punjab's plea to that effect could not
bc accepted as tenable.
(xix) Even in the pre-Independence period Rau Commission (Indus Commis-
sion) had recommended that the rights of several Provinces and States
in the water of inter-Provincial rivers must be determined by applying
the rules of 'equitable apportionment'. Subsequent upon the enactment
and operation of the Inter-State Water Disputes Act,1956, all the major
Tribunals, viz., the Krishna Water Dispute Tribunal, 1973, the
Narmada Water Dispute Tribunal, 1978, the Godavari Water Dispute
Tribunal 1978-1980 and the Eradi (Ravi and Beas Waters) Tribunal,
1987 invoked and applied the principle of" equitable apportionment" or
"equity and fairness"
It is noteworthy that the two expressions/theories of "equitable apportion-
ment" and' 'equitable utilization' have been used in an inter-changeable manner
at the time of settlement of inter-State water disputes. It is submitted that after
the declaration of Helsinki Rules the theory of' equitable utilization' has been
used in the garb of the "equitable apportionment'. Hence, it would be a logical
conclusion that where, at the time of settlement of inter-State water disputes
or of sharing of an inter-State water resource in India, a reference has been made
to Helsinki Rules and the guidelines contained in Article V of the Helsinki Rules
have been applied or pressed into service, the presumption should be that the
parties have depended, for the settlement of their disputes or the sharing of the
concerned water resources, on the' equitable utilization' theory even if
ostensibly they have mentioned the 'equitable apportionment' theory in the
course of the said dispute settlement or water resources sharing process.'
(xx) It has been emphasized by most of the Tribunals engaged in the
settlement of inter-S tate water disputes that the concept of 'equitable ap-
portionment/equitable utilization' does not lend itself to precise
formulations for being applied to all situations and at all times. Thus,
the standard of an 'equitable apporc.onment/equltable utilization' re-
quires an adaptation of the formula to the necessities of the particular

1. The Eradi (Rav i and Bcas Watcrs) Tribunal went to the extent of observing that the
equitable apportionment principle is even applicable to the' 'benefits of the river"
(see Eradi (Ravi and Beas Waters) Tribunal Report, 1987,277).
320 Settlement ofInternational and Inter-State Water Disputes in India
situation to make the said apportionment of water rational, just, fair
and reasonable in true sense of the word. The factors mentioned in
Article V of the Helsinki Rules and the "factors creating legal rights"
and "equitable factors" relevant for distribution of water resources
amongst the contending states as analysed by Chauhan? can be pressed
into service for such a fair, just and reasonable apportionr-ent of the
water resources under dispute. The various Tribunals engaged in the
settlement of disputes regarding waters of inter-State rivers in India
have also mentioned a large number of factors in this regard, which can
also be invoked and utilized keeping in mind the peculiar situations
of each specific case. Even then the list may not be treated as exhaustive
and therefore any other suitable and deserving factor considered to be
relevant in the light of the particular circumstances of any specific
dispute arising in future can also be pressed into service, as the
exigencics of the concerned inter-State water dispute may demand, for
achieving just, fair and reasonable apportionment.
(xxi)In India no universal legal principles are applicable in the field of
federal or inter-State water law for laying down an order of priority for
different uses of water. Where, in a concrete case, such as the Report
of indus (Rau) Commission or award of Krishna Water Dispute
Tribunal, an order of priority for different uses of water has been
prescribed, it is valid only for that particular case and no general rules
get established thereby. Any particular Tribunal has to take a stand, in
this regard, taking into consideration the circumstances of the
concerned case. In practice, usually the awards of various Tribunals
have only given a description of various beneficial uses of water without
thereby intending to lay down any norms for the determination of order
of priority for various uses of water.
(xxii)The Tribunals have, in their awards, shown the tendency of protecting
acquired water rights or existing water rights:
(xxiii)In the decisions/awards of the Tribunals, just as the award of the
Godavari Water Dispute Tribunal, the usc of groundwater has been
permitted but the same has not been reckoned as the use of water of that
river.
(xxiv) As far as the cost of the dispute settlement operation is concerned, all
the major Tribunals, namely, the Krishna Water Dispute Tribunal, 1973,
the Narmada Water Disputes Tribunal 1978, the Godavari Water Dispute
Tribunal 1979-1980 and the Eradi (Ravi and Beas Waters) Tribunal,
1987, which have functioned within the framework of the Inter-State
Water Disputes Act, 1956, have, under section 9(3) of the said Act,
ordered that" the States will bear their own costs of appearing before-the
Tribunal" and that' 'the expenses of the Tribunal shall be apportioned

2. See supra, Chapter 5 and B.R. Chauhan, Settlement of International Water Law
Disputes in International Drainage Basins, 1981,208-17 and 217-37
 Inter-State Water Disputes ill India: Appraisal of the Problems 321
and paid by the States in equal shares". If in certain cases the Central
Government also is required to appear before the Tribunal, the Tribunal
may give similar directions to the Central Government also.
(xxv) Regarding the cost-benefit analysis of the projects involved in the
respective Order of the concerned Tribunal, the practice followed so far
reveals that generally the Tribunals have confined themselves to
allocating the water share, of the respective States and that after such
allocation the Tribunals leave them free to use their water shares in
whatever way they like. The Tribunals generally do not go into the
details of the projects to be undertaken by the concerned States, nor do
they go into the cost-benefit analysis of any or all of the involved or
contemplated projects. However, if the terms of reference of the
concerned Tribunal so require or the parties so desire, the said Tribunal
may give its award or directions accordingly as the Narmada Water
Disputes Tribunal did by wayof allocation of costs of Navagam Project
between irrigation and power and the allocation of irrigation
component of costs of Navagam Project between Gujarat and Rajasthan.
Finally, it is submitted that the above-mentioned list of guiding principles
may not be treated as exhaustive. A more detailed analysis of the awards of
the various Tribunals may help in tracing some other guidelines which have
become a part of Indian state-practice in the field of settlement of inter-State
water disputes and should be utilized in future also.

B. Evaluation of the Prevailing Dispute-Settlement Mechanism

If we refer to the discussions contained in Chapters 9 and 10 we notice that
the origin of the present dispute-settlement mechanism can be traced to the
period preceding the 1935 Act, when the Provinces of British India were
operating merely as administrative units of a unitary structure. At that time such
disputes, if any, were settled by the concerned administrative authority because
the so called Governors' Provinces or Chief Commissioners' Provinces, did
not have any politico-constitutional entity as such. Consequently, at that time
the concept of inter-Provincial water disputes as such did not prevail.
The Government of India Act, 1935 tackled the problem of "Interference
with Water Supplies", and, as already explained in detail, sections 130 to 132
of the said Act regulated the "complaints as to interference with water
supplies" and "decisions of complaints" both in case of Governors' Provinces as
well as Chief Commissioners' Provinces. Section 134 excluded the jurisdiction
of the courts in this regard.
Since the Government of India Act, 1935created a federal set-up in India, the
said disputes could be termed as "inter-Provincial water disputes", in a federal
set-up, in true sense of this concept. However, as that federal set-up operated in
India only as in a Colony of British Empire, the final decision-making authority
in regard to such a dispute, was still retained by "His Majesty in Council".
When India adopted the new Constitution in 1950,and became a Republic,
Article 262 of the new Constitution authorized the Parliament to make
provisions in this respect and consequently the Parliament enacted the Inter-State
Water Disputes Act, 1956, which now regulates the settlement of the inter-State
322 Settlement of International and Inter-State Water Disputesin India
water disputes. In terms of section 11 of this Act, the jurisdiction of the Supreme
Court and other courts is barred as far as the settlement of these disputes is
concerned. These disputes are to be adjudicated by a Tribunal created for the
purpose of settling any specific dispute.
As regards the dimensions of the adjudicating powers of the Tribunal, as
the sale organ of the prevailing settlement mechanism of inter-State water
dispute the Inter-State Water Disputes Act, 1956 does not impose any
limitations or fetters either from the viewpoint of the adjudicating powers or
in respect of the nature and principles oflaw to be applied. In fact the statutory
provisions pertaining to this matter merely regulate the operation of the dispute-
settlement mechanism and do not, as such, prescribe any legal norms for
defining or determining the quantum of the respective shares of water, of the
contestant States.
As demonstrated by Clause Xl of the Krishna River Water Dispute Award,
in actual practice, the Tribunal exercised the authority to supersede earlier
agreements.
Further, the Tribunal has power to prescribe a time-frame for which its
award is to rem ain applicable. Thus, the Krishna Water Dispute Tribunal, while
releasing its award in its Report of 1973 and 'Furl her Report' of 1976, provided
in its Clause XIV-A for the possibility of subsequent review ()f revision by
some competent authority or Tribunal after May 31. 2000. In its Clause XIV-
B the Tribunal even made provision for the possibility of claiming water share,
more than that prescribed in the award, even before May 31, 2000, iI water of the
Krishna stood augmented by diversion of water of any ot her river into Krishna.
Hence, although the awards of the said Tribunals arc unchallengeable
in any court of law, all the same, these awards are open to revision and
modification by any Tribunal or 'Competent Authority' if the concerned
Tribunals so envisage.
As evidenced in the awards of the Narmada Water Dispute Tribunal, 1978
and Godavari Water Dispute Tribunal, 1Cn9-1lJXO, the Tribunals can accept
the duly concluded 'Water Agreements' by the part ies as a part of their awards or
some earlier Agreement may be allowed to serve as the basis for the award of a
Tribunal.
The Tribunal operating under the Inter-Slate Water Disputes Act, J ')56 can
issue direction to any Commission or authority regarding some project. Thus, the
Godavari Water Dispute Tribunal, in clause VI of its award, issued directions
to the Central Water Commission \0 clear the Polavaram Project.
The Tribunals engaged in settling inter-Stare water dispute" can also create
some authority for implementation of their respective awards, Thus, the Narmada
Water Dispute Tribunal did not only adjudicate the dispute among the States
of Madhya Pradesh, Maharashtra, Gujarat and Rajasthan but, under Clause XIV
of its award, also ordered the "setting up of machinery for implementing the
decision of the Tribunal", with the objective of accomplishing the optimum
utilization of Narmada waters. Accordingly this machinery was created in the
form of Narmada Control Authority, which possessed the authority to frame
detailed rules and regulations and water accounting as envisaged in Clause XIV
of the Final Order of the Tribunal.
 Inter-State Water Disputes in Indio: Appraisal of the Problems 323
Now, by virtue of section 6A of the Inter-State Water Disputes act, 1956,
as amended in 1980, the Central Government may, by notification in the official
Gazette, frame a scheme or schemes whereby provision may be made for all
matters necessary to give effect to the decision of a Tribunal.
It may be noted that although section 11of the Inter-State Water Disputes Act,
1956, bars the jurisdiction of the Supreme Court in respect of the inter-State
water disputes, yet there is a possibility of a reference to the Supreme Court on
some issues oflaw. This happened at the time offunctioning of the Narmada
Water Disputes Tribunal. The reason for this apparent anomaly lies in the fact
that the Tribunal functioning as a court, for all practical purposes, follows the
procedure oflaw and therefore, in terms of certain specific provisions of law,
the normal judicial process sets in, and in that process, the Supreme Court also
gets involved.
Under Section 9 (1) of the Inter-State WaferD::'rnll;;;Act, ]956, the Tribunal
created under the said AcL has the same powers as vested in a civil court under
the Civil Procedure Code, in respect of certain matters. Therefore, regarding
those matters it functions as an ordinary court. Thus, in the case of Narmada
Water Dispute Tribunal, through reference to Order ]4 Rule 2 c.P.c. read with
Secrion 14 of the c.P.c. the competence of the Tribunal to try certain issues as
preliminary issues was invoked and consequent upon the judgement of the
Tribunal on the preliminary issues, governments of Madhya Pradesh and
Rajasthan went to the Supreme Court in Appeal against the judgement of the
Tribunal and as a result the Supreme Court did intcrvence and give its judgement
(findings). However, it may be pointed out that the Supreme Court can intervene
to regulate the functioning of I he Tribunal and give direct ions to it in that regard
but the Supreme Court docs not touch the substantive issues of the concerned
water dispute.
Here it may be added that the Supreme Court may also feel inclined to
intervene if some action or decision of the Tribunal is challenged on the basis
. of 'mala fide' or 'abuse' and or 'overstepping' of jurisdiction from the side of
the Tribunal.
However, in terms of Section S of the Inter-Stare Water Disputes Act, 1956,
no reference shall be made to a Tribunal of any dispute that may arise regarding
any matter which may be referred to arbitration under the River Boards Act, 1956.
A "water dispute", in terms of section 2(c) (i) includes a dispute or
difference between two or more State Governments with respect to "the usc,
distribution or control of the waters of, or in, any inter-Slate river or river valley".
It will, therefore, be fair to infer that they cover disputes relating to hydro-
elect ric power as hydro-electric power is thc resultant product of "use of water".
A careful perusal of the provisions of the Inter-State Water Disputes Act
reveals that this Act covers inter-Stale water disputes only amongst the States
and does not mention 'Union Territories' as such, whereas the provisions of the
Government of India Act of 1935 did contain provisions to regulate even water
disputes in which Chief Commissioners' Provinces and Princely States became
parties.
324 Settlement ofInternational and Inter-State Water Disputes in India
C. Suggestions and Recommendations
1. Broad-based Suggestions and Recommendations
Ji) It is essential that the legal framework of the dispute-settlement
mechanism should be constantly strengthened. It is noticed that the
water disputes are merely seen as political issues and water-
management problems. Thus, for solving such disputes interminable
conferences attended by political representatives, bureaucrats and
water-management engineers, take place and legal aspects get pushed
into the background. With legal aspects getting blurred such confer-
ences hardly lead to any settlement with the result that the water disputes
drag on. The consequent delay in the settlement ofa water dispute blocks
the development of water resources and causes untold miseries to the
concerned States and their people. It should be clearly understood that
wherever there is an element of rights or interests of several contesting
parties the content of law automatically comes into play and its proper
recognition and handling is a must. Apathy towards the legal aspects is
bound to result in unwanted prolongation of the concerned disputes.
The strengthening of legal framework of the dispute-settlement mechanism
would require updating the relevant statutory provisions of the concerned
polity, improving the specialized intellectual potential of the human tools,
employed or likely to be employed for the settlement of such disputes and
developing the help-material to be utilized in the process of the settlement of such
disputes. All this qualitative improvement is necessary for enabling the
contemporary dispute-seulcment mechanism to work smoothly and expedi-
tiously for settling the said disputes keeping in view the demands of the times
and the needs of the concerned socio-political units.
(ii) In order to bring the parties to the inter-State water disputes to the
negotiating table it may be helpful to constitute Joint Commissions or
Boards for the purpose of collecting necessary data. Under the River
Boards Act, 1956, there is already a provision for constituting River-
Boards. Such Commissions or Boards can smoothen the process of
negotiation between the contending parties. In case a Tribunal is set up
for settling some inter-State water dispute, the Joint Commissions or
Boards can assist the concerned Tribunal also in expediting the dispute-
settlement process by supplying necessary data. Such Commissions
and Boards can also be helpful, after the conclusion of the negotiated
agreement or the decision of the Tribunal, for the purpose of administer-
ing or implementing the agreement or the award of the Tribunal, as the
case may be.
(iii) Where agreements are reached by the contending States for the settle-
ment of their inter-State water disputes such agreements should be
duly ratified by the concerned States, without delay so that their
validity and authenticity is not exposed to a challenge from any comer.
(iv) It is not advisable to impose any time limit on the Central Government
for referring an inter-State water dispute to a Tribunal after they
receive a complaint from any party. However, a convention should
 Inter-State Water Disputes in India: Appraisal of the Problems 325
grow in such a way that the Central Government constitutes a
Tribunal and refers the concerned dispute to it without any unreason-
able delay after the receipt of a complaint in that regard.
(v) As far as the qualifications of the members of a Tribunal are concerned
it may be purposeful to see if the prospective members, besides having
high level legal qualifications, have some expertise, knowledge and
experience in the field of water law and water management. For the
irrigation engineering and river development expertise, the services
of some engineers can be utilized in the capacity of 'Assessors' attached
to the Tribunal.
(vi) It has been jioticed that there is quite often a long delay in the publication
of the decision of the Tribunal. Such delays cause a great deal of
inconvenience and hardship to the parties. The present provisions in the
concerned statute are very vague in this regard. Once the Tribunal has
communicated the decision to the Central Government and the contest-
ant parties and they have, after due consideration of the said decision,
referred it back to the Tribunal for its further consideration as prescribed
under section 5(3) of the Inter-State Water Dispute Act, 1956, the
Tribunal should not take unusually long time for announcing its final
verdict in regard to the clarifications or explanations sought by the
parties. Here, some specific time limit should be prescribed for the
Tribunal to give its final verdict and also for the Central Government
to publish the decision of the Tribunal.'

2. Specific Suggestions and Recommendations

(i) It has been noticed that sometimes the disputant States feel shy in
approaching the Central Government for setting up a Tribunal in terms
of the Inter-State Water Disputes Act, 1956, although through repeated
public statements their representatives go on harping upon the necessity
of early settlement of the concerned dispute to enable them to get their
due share in the contested water resources for use in the economic
development or for meeting other pressing needs. Since the dispute-
settlement mechanism in terms of the existing provisions of section 3 of
the Inter-State Water Disputes Act, 1956, can be set into motion only if
one of the aggrieved or contestant states requests the Central Govern-
ment to refer the said water dispute to a Tribunal for adjudication, in
the absence of any initiative from one of the contesting parties, in this
regard, there is a stalemate. In one case in 1986, at the time of creating
Eradi (Ravi and Beas Waters) Tribunal, the Inter-State Water Disputes
Act, 1956 was amended by insertion of section 14, in terms of which the
Central Government was authorized to take the initiative to remove that

3. For some useful discussion on recommendations regardingdcsireable amendments

in the Inter-State Water Disputes Act, 1956,see also S.N. Jain, Alice Jacob andS.C.
Jain, Inter-State Water Disputes in India, 1971, 146-49
326 Settlement ofInternational and Inter-State Water Disputes in India
stalemate and consequently the Eradi Tribunal set itself into motion on
receiving a request from the Central Government to adjudicate the said
dispute. However, the said section 14 served only to remove the
stalemate in case of dispute over Ravi Beas waters. It only created a
precedent but did not modify the dispute-settlement mechanism as such.
It is suggested that in order to utilize the mechanism of such a Tribunal for
the settlement of inter-Slate water disputes in future. through the initiative of the
Central Government in cases of stalemates created by inaction and passivity of the
concerned disputant states, the Inter-State Water Disputes Act 1956 should be
amended in such a way that the provisions as contained in section 14 thereof may
have a general application to meet such eventualities in future and an
amendment is not needed every time for every specific case.
(ii) At present the contestant States lay their claims- only to a specific
quantum of water out of the water resources under dispute but the
time is approaching fast when the States will insist upon demanding a
specific quantity of water with a specific quality free from all
pollution, because practically every use of water needs water with
specified minimum degree of qualitative purity. This situation is
developing because of the increased phenomenon of pollution of water
through industrial effluents. careless municipal use of water and many
other factors which contribute to the water polluting phenomenon.
On the basis of the provisions of the Water Prevention and Control of
Pollution Act. 1974. the River Boards Act, 1956 and the Environment Protection
Act, 1986 the Government has power to create Boards to monitor and prevent
environment pollution including. of course, water pollution. By virtue of Entry
56 of List I of the Seventh Schedule of the Constitution of India the Parliament
.has legislative completence for "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 public interest". Such "regulation and development of inter-State rivers and
river valleys" should cover regulation and development while simultaneously
preserving and protecting the requisite quality of water of the concerned inter-
State rivers and river valleys against all kinds of pollution. Hence, it is
recommended that realizing and recognising the relationship of inter-S tate water
disputes in India with central control over management of installations of water
resources for the purpose of environmental protection, the Parliament should
enact. by virtue of the powers vested in it under Entry 56 of List I, measures for
controling management of water resources installations, connected with inter-
State rivers and river valleys for the purpose of environmental protection in
general and prevention of water pollution in particular to guarantee pollution
free water to the contestant States out of the water resources ofany such inter-
State river or rivervalley.
(iii) Some provision should be incorporated in the Inter-State Water Dispute
Act, 1956 to co-ordinate the dispute-settlement activities conducted
under the River Boards Act, 1956 and the Inter-State Water Disputes
Act, 1956. If necessary. the River Boards Act, 1956 may also be
amended accordingly.
 Inter-State Water Disputes in India: Appraisal of the Problems 327
(iv) Section 4 of the Inter-State Water Disputes Act, 1956, should be
amended in such a way as to prescribe therein that the States concerned
shall make their utmost endeavour to settle an inter-State water dispute
through an agreement and that such agreements will be ratified within
specific period of time. Further, there should be a provision in the said
Act that on being ratified such agreements will be deposited with
the Ministry of Water Resources of the Central Government and
thereafter the validity and authenticity of such agreements shall not be
challengeable.
(v) In its present form Section 11 of the Inter-State Water Disputes Act,
1956 appears to bar the jurisdiction of the Supreme Court "in respect of
any water dispute which may be referred to a Tribunal under this Act".
This wording leaves a scope for interpreting these provisions in such
a way as to assert that the jurisdiction of the Supreme Court is barred only
when the said dispute has got referred to a Tribunal. If the intention of
the law-makers was to exclude the Supreme Coui t from dealing with the
inter-State water disputes, the adjudication of the said disputes by the
Supreme Court should be barred irrespective of the fact whether a
dispute has been referred to a Tribunal or not. Hence, section 11 of the
Inter-State Water Disputes Act, 1956should, in the amended form, read
as follows: "11. Notwithstanding anything contained in any other law,
neither the Supreme COU:" nor any other court shall have or exercise
jurisdiction in respect of any inter-State water dispute".
(vi) Section 6 of the Inter-State "Vater Disputes Act, 195fi, should be
amended in such a way as to prescribe a specific time framework for the
publication of the decision after its release by the Tribunal so that the
hardship caused to the parties by delayed publication of the said
decision may be avoided, Further, Section 6 says that "the decision
shall be final and binding on the parties to the dispute and shall be given
effect-to by them". The provisions of Section 6, in this form, leave
uncertainty about the enforcement of the said decision. Hence, these
provisions should be strengthened by adding the words... "and it may be
enforced as if it were an order or decree made by the Supreme Court",
at the end of Section 6.
(vii)There should be a possibility of a review of the decision/award of
the Tribunal after the lapse of a reasonable time in the light of any
substantial change in circumstances. If necessary, a statutory provision
may be made to that effect.
(viii) It is submitted that the adjudicating mechanism provided under the
Inter-State Water Disputes Act, 1956 can also take care of the disputes
arising in the field of the operation of the River Boards Act, 1956. The
existing duplication in this regard, should be removed by making
necessary amendments in the existing provisions of the two Acts.
(ix) The definition of the concept "water dispute" contained in Section 2(c)
of the Inter-State Water Disputes Act, 1956 should be widened so as
to include the disputes between the States arising out of "interpretation
of arbitration awards touching water disputes" as well as disputes
328 Settlement of Intemational and Inter-State Water Disputes in India
involved in "sharing of benefits and costs of joint water projects"
within such definition..This is necessary because in the existing
framework of water resources development such disputes do arise and
these disputes are certainly water disputes. If the possibility of the
referring of these disputes to these Tribunals is excluded, there will be
a tendency to refer the same to the Supreme Court or other competent
court. In such a situation the purpose of barring the Supreme Court
and other courts, under Section 11, from exercising jurisdiction over
water disputes, will be defeated.
(x) It should be specifically mentioned in the Inter-State Water Disputes
Act, 1956 somewhere that the term "State Government" includes the
"Union Territory Government" also so that the disputes byorwith the
Union Territories also could come within the purview of the said Act.
(xi) Section 2 (c) is sufficientto display the definition of "water disputes";
any elucidation thereof through sub-clauses (a), (b) and (c) of Section
3 appears to be redundant arid therefore these sub-clauses could be
deleted.