Constitutional Provision and Principles on Water

1. ASHIS BANERJEEASHIS BANERJEE
DIRECTORDIRECTOR
CENTRAL WATER COMMISSIONCENTRAL WATER COMMISSION

2.  Water a State List subject on which State has the
power to make laws (refer-Entry 17, Entry 6 of List II,
Seventh Schedule with Article 246)
 However, Inter-state rivers and river valleys a Union
List subject on which the Centre may make laws (Entry
56, List I)
 Centre’s power to make law for Disputes relating to
Inter-state rivers and river valleys (Article 262)
 Panchayats and Municipalities obligation on water
management (Eleventh &Twelfth Schedule with Article
243G, 243W)

3.  List I Entry 56 (Union List)
Regulation and development of inter-State
rivers and river valleys to the extent to
which such regulation and development
under the control of the Union is declared
by Parliament by law to be expedient in
the public interest
 List II Entry 17 (State List)
Water, that is to say, water supplies,
irrigation and canals, drainage and
embankments, water storage and water
power subject to the provisions of Entry 56
of List I

4.  Article 262 Adjudication of Disputes Relating to
waters of Inter-state Rivers or River valleys
262(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) 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)

5. Government of India Act 1935
Section 130
If a province (or State) felt that it was likely to be
adversely affected due to distribution or control of water
from any natural source, it could complain to the
Governor General.
Section – 131
Except for complaints of trivial nature, the Governor
General was required to refer any such complaints to a
Commission for investigation and report.
Jurisdiction of courts in regard to such disputes was
barred.
There was no entry in the Federal List of the 1935 Act
corresponding to Entry 56 of List I of the Constitution.Contd…

6. Section 19Section 19
Water, that is to say, water supplies, irrigation and canals,Water, that is to say, water supplies, irrigation and canals,
drainage and embankments, water storage and waterpower.drainage and embankments, water storage and waterpower.
It was however, recognized that the use of inter-State riverIt was however, recognized that the use of inter-State river
waters could lead to disputes. Provisions of Section 130 andwaters could lead to disputes. Provisions of Section 130 and
131 under the 1935 Act were therefore made for adjudication131 under the 1935 Act were therefore made for adjudication
of such disputes.of such disputes.
In the Constitution, matters of national concern have beenIn the Constitution, matters of national concern have been
placed in the Union List and those of purely local concern inplaced in the Union List and those of purely local concern in
the State List.the State List.
Certain subjects of legislation, which in the first belongCertain subjects of legislation, which in the first belong
exclusively to the States, became the subject of exclusiveexclusively to the States, became the subject of exclusive
Parliamentary legislation if a declaration is made as providedParliamentary legislation if a declaration is made as provided
in the relevant Entries.in the relevant Entries.
Contd…

7. Entry 56 of List I is one such case. Entry 17 of List
II is subject to List-I. Clearly the framers of the
Constitution recognized the need for Union control
over waters of Inter-State rivers and river valleys
for regulation and development.
But waters of inter-State rivers are not located in
any one State. They only flow through their
territories. No State, therefore, can lay claim to
the exclusive use of such river waters and deprive
other States of their just share. Since the
jurisdiction of a State by virtue of Article 245 is
territorially limited, only Parliament can effectively
regulate by law, beneficial use and distribution of

8.  List I Entry 7 (Union List)
Industries declared by parliament by law to be
necessary for the purpose of defence or for the
prosecution of war
 List I Entry 23 (Union List)
Highways declared by or under law made by
Parliament to be national highways.
 List I Entry 24 (Union List)
Shipping and navigation on inland waterways,
declared by Parliament by law to be national
waterways, as regards mechanically propelled
vessels; the rule of the road on such waterways.
Contd…

9.  List I Entry 52 (Union List)
Industries, the control of which by the Union is declared by
Parliament by law to be expedient in public interest
 List I Entry 54 (Union List)
Regulation of mines and mineral development 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
 List I Entry 56 (Union List)
Regulation and development of inter-State rivers and river
valleys to the extent to which such regulation and
development under the control of the Union is declared by
Parliament by law to be expedient in the public interest.
Contd…

10.  List II Entry 17 (State List)
Water, that is to say, water supplies,
irrigation and canals, drainage and
embankments, water storage and water
power subject to the provisions of entry 56
of List I.
 List II Entry 23 (State List)
Regulation of mines and mineral
development subject to the provisions of
List I
 List II Entry 24 (State List)
Industries subject to the provision of

11.  Under the Existing Constitutional
Provisions, the Central Government has
Enacted Two Acts so far
- RIVER BOARD ACT, 1956
- INTER STATE WATER DISPUTE ACT,
1956
Contd…

12. RIVER BOARD ACT, 1956
 River Board Act, 1956 was enacted under
the provision of Entry 56 of List I
 River Board Act provides for creation of
Advisory River Boards
 The Act envisaged that the Boards would
help in coordinated and optimum utilisation
of river water and development of
irrigation, drainage, water supply, flood
control and hydro power.
 No River Boards, even of advisory kind has
been set up under this Act.
Contd…

13.  Enacted under Article 262 and provides for setting up
of Water Disputes Tribunals for adjudication of
disputes relating to inter-State rivers when negotiations
do not lead to fruitful results .
i) The State Government may request the Central
Government to refer a water dispute to a Tribunal for
adjudication.
ii) Constitution of a Tribunal for adjudication of the
water dispute by the Central Government
13

14. iii)Tribunal to consist of one chairman and two
members to be nominated by CJI from among
the sitting judges of Supreme Court or of a
High Court.
iv)Tribunal to be assisted by two or more
assessors who are experts in Engg. and
agriculture to be appointed by Central Govt.
v)The Tribunal to give report to Central Govt.
vi)Tribunal to give Further report on explanation
or guidance sought by the Central or State
Governments .
14

15. vii)Decision of the Tribunal is binding on the
parties to the disputes and shall be given effect
to by them.
viii)The ISWD Act prohibits the reference of
any dispute to a Tribunal which has already
been referred to arbitration under the River
Boards Act, 1956.
ix)Section 11 precludes all the courts including
the Supreme Court from having jurisdiction in
respect of any water dispute which may be
referred to a Tribunal under the Act.
x)The Central Government shall dissolve the
Tribunal after it has forwarded its report.
15

16.  River Boads envisaged under River Boards
Act, 1956 are of permanent nature.
 If a River Board exists for any particular
basin, dispute or difference between the
governments interested needs to be resolved
within the provisions of the Act.
 No River Boards could be established so far
under River Boards Act, 1956.
 In view of enactment of River Boards Act
1956, ad-hoc Water Disputes Tribunal were in
envisaged in the ISWDAct,1956.
16

17.  Godavari and Krishna water disputes Tribunal
were constituted on 10th
April,1969
 Though Godavari and Krishna Water Disputes
Tribunal were constituted through separate
notifications, Chairman and Members of both
Tribunals were same.
 The tribunal submitted a report on 24th
December, 1973 and Further report 27th
May,
1976 on Krishna Water Disputes
 The allocation of water of Krishna basin to basin
States by the tribunal was mainly on the basis of
protected use, contemplated use and use of
water 17

18.  through project considered worth consideration
by the Tribunal.
 There was agreement among party States for
protection to be given for utilisations and
evaporation losses from a majority of projects.
 The Tribunal submitted its report on Godavari
water disputes on 27th
November, 1979 and
Further Report on 7th
July, 1980.
 The Tribunal in its decision appended the
bilateral and multilateral agreements reached
between party states from 1975 to 1980 for use
and distribution of Godavari water.
18

19.  Central Government constituted the Tribunal on
6th
October,1969 on Narmada Water Disputes.
 States of Rajasthan, MP, Maharashtra and
Gujarat signed an agreement on 12th
July, 1974
through which State of Rajasthan was made
party to the disputes.
 Through this agreement, the yield of Narmada
river was determined as 28 MAF at 75%
dependability and share of Maharashtra and
Rajasthan determined as 0.25 and 0.5 MAF
19

20.  Tribunal submitted its report 16th
August,
1978 and Further report on 7th
December,1979.
 Tribunal, in its decision, allocated balance
water between MP and Gujarat,
 And also included directions with regard to
setting up of machinery for implementation
of its decision and directions.
 Ravi and Beas Water Tribunal was
constituted on April, 02, 1986 for verification
and adjudication of the matters referred in
20

21. 21
 Paragraphs 9.1 and 9.2 respectively of the
Punjab settlement in 1985 under Section 14 of
ISWD Act, 1956
 The Tribunal had submitted its report in
January, 1987 to the Government.
 The Central Government as well as the party
States of Rajasthan, Haryana & Punjab sought
explanation and guidance from Tribunal
 The Tribunal could not submit its Further
report to the Government so far due to various
reasons.
 Also a Presidential Reference under Article
143(1) of the Constitution is pending before the
Hon’ble Supreme Court

22. 22
 The Cauvery Water Disputes Tribunal (CWDT)
was constituted on 2nd
June 1990.
 The Tribunal passed an Interim Order in June,
1991
 State of Karnataka promulgated an Ordinance
soon thereafter to nullify effects of the Interim
order.
 The Central Government made Presidential
Reference under Article 143 of the Constitution
to the Hon’ble Supreme Court on the issue of
validity of the Ordinance and publishing Interim
Order in the Official gazatte.

23. 23
•the Interim Order was published in the Official
Gazette on 10th
November,1991.
•The Tribunal submitted its reports and decision
to Government on 5th
February, 2007
•The Central Government as well as the party
States of sought explanation and guidance from
Tribunal.
•Further, the party States have also filed SLPs
under Article 136 (1) of the Constitution in the
Hon’ble Supreme Court

24. 
 Hon’ble Supreme Court has granted leave
and its orders are awaited.
 On the direction of Hon’ble Supreme Court
the decision of 5/2/2007 was published on
19th
February, 2013 in the Official Gazette
and is in force now.
 The CWDT has to devote a long time in
conducting the proceedings related to oral
evidence of a number of expert witnesses.
24

25.  The Act was amended in 1980 and Section 6A
was inserted to accommodate directions of
NWDT.
 This Section provides for framing a scheme for
giving effect to a Tribunal's decision.
 The Act was amended in April, 1986 to set up a
Tribunal known as “Ravi Beas Waters
Tribunal”, suo- motu, or on the request of
concerned State Government and Section 14 was
inserted. 25

26. 26
.
•The Act was Further amended in August, 2002 as
a follow up to the Recommendations of Sarkaria
Commission on Centre State relations.
i)The tribunal has to be now constituted within a
period of one year from the date receipt of
request.
ii)The Tribunal has to submit report within a
period of three years which could be extended for
a further period not exceeding two years.
iii)The Tribunal has to submit Further report
within a period of one year which can be extended
for a further period as it considers necessary.

27. 27
iv)As per Section 6 (2), the decision of the
Tribunal, after its publication in the Official
Gazette, shall have the same force as an order or
decree of the Supreme Court.
v) Central Government is also required to
maintain a data bank and information system.
vi)The Act was renamed as Inter-State River Water
Disputes(ISRWD) Act, 1956.
 The amendment to the ISRWD Act 1956 made so
far are essentially to meet specific situation.
 There is need for comprehensive relook.

28. 28
 Central Government constituted new Tribunals for
Krishna,Vamsadhara and Madei basins in April,
2004, February 24th
, 2010 and November 2010
respectively.
 The KWDT submitted its report and decision on
30.12.2010.Party States and Central Government
sought guidance/ clarification from KWDT.
KWDT submitted Further report on 29/11/2013.
 Central Government has constituted tribunals on
relatively minor issues such as review of decision
of Tribunal and the issues involved in Madei and
Vamsadhara

29. 29
SONE WATER DISPUTE
•State of Bihar in November, 2013 sent a request
to Central Government under the provisions of
ISRWD Act 1956 for constitution of water
disputes Tribunal for adjudication Sone water
disputes.
•Central Government has directed GFCC Patna
to find a negotiated settlement of the disputes in
the first instance.
•Process of negotiation is underway at GFCC,
Patna.

30. 30
 There is frequent use of Article 131 of the
Constitution by the States to bring the issues
related to inter-state rivers before the Hon’ble
Supreme Court as stated below.
i)State of Tamil Nadu brought the issues related
to implementation of Interim Order of CWDT
ii)Andhra Pradesh brought the matter related to
Upper Krishna Project.
iii)Hon’ble Supreme Court was actively involved
in matters related to implementation of Decision
of NWDT

31. 31
iv)Haryana filed a Suit during 1995 in the
Supreme Court of India for completion of
construction of SYL Canal in Punjab portion.
v)The Govt. of Punjab has filed a Suit in the
Hon’ble Supreme Court under Article 131 of
Constitution on 13.1.2003 to seek discharge
from the obligation under the Decree dated
15.1.2002 in view of the changed
circumstances & other infirmities &
consideration.

32. 32
v)Suits have been filed by the States before the
Hon’ble Supreme Court on issues such as
a)Palar River water issue,
b)Mulla Periyar Dam issue,
c)construction of Babhali Barrage project,
d)water as share of Rajasthan in Ravi Beas waters
through Bhakra Main line,
e) bringing irrigation head-works at Ropar,
Harike and Ferozepur under control of BBMB,
f)construction of Hansi branch- Butana branch
MPLC,

33.  Boards that have been set up through a
separate Act of the Parliament e.g
- Betwa River Board
- Brahmaputra Board
 Boards that have been set up under the
provision in the award of the Tribunal e.g
- Narmada Control Authority set up
under the orders of Narmada Water
Disputes Tribunal
Contd….

34.  Boards that have been set up as per
the Government of India resolutions
e.g.
- Ganga Flood Control Board
- Bansagar Control Board
- Upper Yamuna River Board
Contd…

35.  These Boards / Authorities were created
mainly for
- Early execution of the specific projects
- For preparation of Master plan of a
basin
- In some cases like NCA for
implementing the decision of the
NWDT Award
 None of these Boards were created under
the River Board Act, 1956