Interstate River Water Disputes Act

Water disputes

IRWD Act is applicable only to interstate rivers / river valleys. An action of one state should affect the interests of one or more other states. Then only water dispute is deemed to have arisen under IRWD Act (section 3). It can be divided into two independent parts for clarity purpose in understanding the techno-legal application of IRWD Act

Actions of a downstream state affecting the interest of an upstream state

A downstream state’s action can affect the upstream state interest only in one case. I.e. when a downstream state is building a dam / barrage near its state boundary and submerging the territory of an upstream state on permanent / temporary basis. Other than this action, no other action of a downstream state could affect the upstream states interest which they have been using for economical, ecological and spiritual/ religious aspects. The meaning of the word ‘interest’ in this context is concern / importance / significance / relevance / consequence of losing the prevailing water use or purpose.

Actions of an upstream state affecting the interest of a downstream state

Whereas all the actions of an upstream state to use or control or distribute the water of an interstate river can affect the downstream states in one way or other. The following are some examples but not complete:

1. Consuming river water for any beneficial use such as irrigation, drinking water, industrial, recreation, recharging of ground water, ground water use, enhanced evaporation losses, enhancing rain water use efficiency, obstructing non flood flows of the river, transferring water to outside the river basin, etc. (i.e. any man made /aided action of converting water into water vapour & losing to atmosphere by evapotranspiration / evaporation processes and also transferring river water outside the river basin). This is generally done by constructing water storage reservoirs and subsequently using water for above purposes.
2. Quality of water can also be diminished / altered/ controlled in the action of using water. It would take place by accumulating the dissolved salts in the remaining water after its use. The dissolved salts content of water increases due to its consumption and also addition of more salts by anthropogenic activity. Also causing water more silt laden / turbid is a man made water quality alteration which can be caused by mining and deforestation activities. Bringing water from other river basins for upstream states use also effects water quality in downstream states.

Generally river water is transferred to water deficit areas for use after creating the infrastructure for its storage (water reservoirs) and distribution network (canals, pipelines, ground water charging, etc.). All these acts fall under river water distribution and control category under IRWD Act. All the above actions of an upstream state are legal causes of water dispute to the downstream states since their existing interests are affected as given below:

The use or control or distribution of river water in an upstream state is invariably denial of prevailing use / purpose in the downstream state as it is altering natural flow regime of river water with respect to quantity, quality and time of availability in downstream states. Also dam failures in upstream states can create flash floods or further dam failures in downstream states causing unprecedented property damage and loss of human lives. IRWD Act (section 3) clearly stipulates that mere anticipation of a riparian state actions which can affect other riparian state interests is enough to raise interstate water dispute.

The activities of an upstream state without effecting downstream states interests are peak flood control measures by impounding the flood waters only (not base flows) in 100% or more capacity storage reservoirs for use without effecting water quality appreciably and run off hydro power generation taken up in its territory.

Constitution of Tribunal

Whenever the riparian states are not able to reach amicable agreements on their own in sharing of an interstate river waters, section 4 of IRWD Act provides dispute resolution process in the form of Tribunal. As per section 5.2 of the Act, the tribunal shall not only adjudicate but also investigate the matters referred to it by the central government and forward a report setting out the facts with its decisions. It implies that the tribunal responsibility is not limited to adjudication of issues raised by the concerned states and also investigation of other aspects which are in public domain such as water pollution, salt export requirement, water quality deterioration, flood control, sustainability of river basin productivity & its ecology, environmental flow requirements, climate change effects, etc. When the tribunal final verdict issued based on the deliberations on the draft verdict is accepted by the central government and notified in the official gazette, the verdict becomes law and binding on the states for implementation. When pronounced in the ambit of IRWD Act, the tribunal’s verdict after its publication in the official gazette is equivalent to Supreme Court verdict as per section 6 of IRWD Act. In case the constitutional rights of states are ingressed upon by the tribunal award in any manner, central government, for extending purview of its enactment to implement the tribunal order, is obliged to take the consent of all riparian states under Article 252 of the constitution before publishing the tribunal awards in the official gazette.

Amendment 2002

This amendment specifically does not permit altering the prevailing tribunal verdicts issued before the year 2002 (i.e. but not the tribunal awards issued after the year 2002). Thus this amendment bars the tribunals to give any time period/validity for constituting a new tribunal. This is to keep provision to resolve fresh water disputes which were not addressed by earlier tribunals/ agreements as and when they surface. A permanent water dispute tribunal is contemplated to resolve the growing number of interstate river water disputes expeditiously.

The Tribunal Awards

Till now three tribunal awards are notified in official gazette by the Government of India. These are water dispute tribunals allocating river water use by the riparian states for Krishna (tribunal 1), Godavari and Narmada rivers. All these tribunal awards were issued before the year 2002 which cannot be altered by the new tribunals. The tribunals formed on sharing water of Ravi & Beas rivers, Cauvery / Kaveri river, Vamsadhara River, Mahadayi / Mandovi River and Krishna River (tribunal 2 ) are either yet to pronounce the verdicts or the issued verdicts are to be accepted by the Government of India.

Recently, Cauvery water disputes tribunal order was notified by the GoI on 20 February 2013.

Establishment of authorities to implement a tribunal verdict

Under Section 6A of this Act, central government may frame a scheme or schemes to give effect to the decision of a tribunal. Each scheme has provision to establish an authority for implementation of a tribunal verdict. However, every scheme and all its regulations shall be approved by parliament.

In the case of Cauvery River basin, SC directed the GoI to set up a temporary Supervisory Committee to implement the tribunal order till the constitution of Cauvery Management Board by GoI. GoI established the said temporary Supervisory Committee on 22 May 2013. In the case of Babli barrage dispute, SC itself constituted the Supervisory Committee to implement the water sharing agreement between Maharashtra and Andhra Pradesh in middle Godavari sub basin.

Data bank and information system

Under Section 9A of this Act, central government shall maintain a data bank and information system at national level for each river basin. State governments shall provide all the data regarding water resources, land, agriculture and matters related thereto as requested by the central government. Central government is also vested with powers to verify the data supplied by the state governments. However, many state governments (ex: Maharashtra,Chattishgarh, etc.) have not been furnishing the land use data in their states (Tables 14 to 16 of Integrated Hydrological Data Book, 2012) and Central Water Commission of MoWR is not pursuing the matter earnestly to get the data which is vital in water resources planning.