FEDERALISM IN INDIA WITH RESPECT TO FLOW OF WATER

Author’s name: SHAHBAZ AHMAD

Address: DR. RMLNLU, L.D.A. SECTOR D-1,KANPUR ROAD, LUCKNOW U.P.

PHONE NO. : +91 9795790550

About me: I’m a third year student of DR.RMLNLU, LUCKNOW

ARTICLE TOPIC - “FEDERALISM IN INDIA WITH RESPECT TO FLOW OF WATER”



SYNOPSIS

INTRODUCTION

An Introduction to the article, what it aims at, and its main content.An overview of the concept of federalism. Its features and significance and a portrayal of the structure in India.

CONSTITUTIONAL PROVISIONS

Elaboration on the main provisions in the Indian Constitution and other statutes that talk about federalism like Article 246 and 262, Entry 56 of List I of Seventh Schedule and Entry 17 under List II of Seventh Schedule.

WATER UNDER THE CONSTITUTIONAL SCHEME

A concise look at the provisions and the federal practice. The competence of State and the authority of the states to legislate on inter-state rivers.

THE DEBATE

A brief introduction to the problem whether water is a federal issue.

IS WATER A STATE SUBJECT?

An opinion on the debate of water being a federal issue or not.

SHOULD WATER BE TRANSFERRED TO CONCURRENT LIST?

An opinion on whether water should be included in the Concurrent List and its consequences and implications.

HAS THE CENTRE UTILISED THE EXISTING LEGAL PROVIS IONS ADEQUATELY?

An outlook on how efficiently has the centre used the existing legal provisions as regards to flowing inter-state water.

THE ISSUE OF INTER-STATE WATER DISPUTES

An overview of the problem faced by states as regard to inter-state water, mentioning various cases and commissions.

ARE THE CONSTITUTIONAL PROVISIONS INADEQUATE?

A critical analysis of the existing laws and statutes governing any legislation concerning inter-state flowing water.

CONCLUSION

The conclusion of the research paper as derived by the author.



INTRODUCTION

The topic of my project work is, “FEDERALISM IN INDIA WITH RESPECT TO FLOW OF WATER” in which I have pondered around the question that, ‘Are the dispute settlement mechanism in our country unambiguous regarding water sharing between states?’

Significance of this topic cannot be denied as water is a prime resource for sustaining life on earth. The domestic, agricultural and industrial uses of water are multiplying day by day and this phenomenal increase in demand for water in diverse fields has resulted in its scarcity. Moreover, availability of water is highly uneven in both space and time as it is dependent upon varying seasons of rainfall and capacity of storage. About eighty five per cent of the Indian land mass lies within its major and medium inter-state rivers. Considering the importance of inter-state water sharing, it becomes an area of great concern in maintaining the federal spirit and better Union-State and inter-State relations.

For my work I have limited myself around Art. 262 of the constitution and also some other entries related to water. Before proceeding with the discussion on water as a federal issue, it is necessary to know the nature of Indian federalism. Indian polity follows the federal structure, but, with a deviation from classical federalism. Therefore, the issue of federalism has persistently commanded public attention since 1950 and it continues to do so.

Federal structure is a system of associated governments with a vertical division of governments into national and regional components having different responsibilities.[1] In other words, a federation includes autonomous provinces, known as states, and a union of all those states with both, the states and the union having different governments with different functions. Dicey's concept of federalism is a national constitution for a body of States, which desire a union and do not desire unity.

According to him, a federal State is a political contrivance intended to reconcile national unity and power with the maintenance of State rights. The essence of a federation is, therefore, existence of a Union and its States and the division of power between the Union and the States. True Federalism means the distribution of power between a Central Authority and the Constituent Units. If the component parts of a State have no power of policy decision in any field whatsoever, but are confined to carrying out Central Government directives through the medium of an institutional fabric of federal form, it is not a federal but a unitary State. Thus, Political integrity of the Union and each State is essential to the federal concept. The Constitution is the touchstone for all policies and laws in India. Therefore, policies should follow from the appropriate assessment devised within the framework of the Constitution. However, the provisions of any great basic document raise questions of interpretation – which rarely are permanently settled.

In India, primacy has been given to the central government in order to ensure national integrity. The states are autonomous in some fields but mostly are subject to central government’s power. According to Dr. B.R. Ambedkar, “the Constitution…[could be] both unitary as well as federal  according to the requirement of time and circumstances”.[2] Therefore, it can be said that India is a quasi-federal state with primacy to the central government. Constitution of India, defines the political authority, locates the sources of political power, indicates how the power has to be exercised and sets out the limits. In this respect, schedule VII of the Constitution contains three lists distributing the legislative and executive powers amongst the states and the centre viz. union (list I), state (list II) and concurrent (list III). A close analysis of the Constitutional provisions would reveal that there exists a great deal of centralizing bias. In fact federalism in India is a myth. One may also ask if at all we have a federal form of governance or it is in fact unitary government functioning in the garb of federalism. This debate, however, is beyond the scope of this paper.

CONSTITUTIONAL PROVISIONS

India is union of States. The constitutional provisions in respect of allocation of responsibilities between the State and Centre fall into three categories: The Union List (List-I), the State List (List-II) and the Concurrent List (List-III). Article 246 of the Constitution deals with subject matter of laws to be made by the Parliament and by Legislature of the States. As most of the rivers in the country are inter-State, the regulation and development of waters of these rivers, is a source of inter-State differences and disputes. In the Constitution, water is a matter included in Entry 17 of List-II i.e. State List. This entry is subject to the provision of Entry 56 of List-I i.e. Union List. The specific provisions in this regard are as under:

ARTICLE 246

1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the seventh Schedule (in this Constitution referred to as the "Union List").

2) Not withstanding anything in clause (3), Parliament, and, subject to clause (1), the legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").

3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").

4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

ARTICLE 262                                                                                                                     

In case of disputes relating to waters, Article 262 provides:

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).                                                                       

ENTRY 56 OF LIST I OF SEVENTH SCHEDULE                           

Entry 56 of List I of Seventh Schedule provides that "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".

ENTRY 17 UNDER LIST II OF SEVENTH SCHEDULE                   

 Entry 17 under List II of Seventh Schedule provides that "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".

As such, the Central Government is conferred with powers to regulate and develop inter-State rivers under Entry 56 of List I of Seventh Schedule to the extent declared by the Parliament by law to be expedient in the public interest.

It also has the power to make laws for the adjudication of any dispute relating to waters of inter-State river or river valley under Article 262 of the Constitution.

WATER UNDER THE CONSTITUTIONAL SCHEME

In discussing any subject with reference to the question of federalism, it is necessary to have a succinct look at the relevant constitutional provisions. In the present constitutional scheme the legislative powers are divided between the Union and the States in relation to water. The Union has been given power to legislate in relation to regulation and development if inter-state rivers and river valleys.[3] This power to legislate is 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. The states have been given power to legislate in respect of water supplies, irrigation and canals, drainage and embankments, water storage and waterpower.[4] This power of the states is subject to the legislative power of the Union under entry 56 of List I.

Thus, a state has competence to legislate with respect to all aspects of water including water flowing through inter-state rivers, subject to the limitations that the control over the regulation and development of the inter-state river waters should not have been taken over by the Union; and the state cannot pass legislation with respect to or affecting any aspect of water beyond its territory.

The jurisdiction of the state legislature, therefore, is denuded by the Parliament only to the extent to which the latter’s legislation occupies the field and no more; and only if the Parliamentary legislation in question declares that control of the regulation and development of the inter-state rivers and river valleys is expedient in the public interest and not otherwise. As far as intra-state rivers are concerned, states have the exclusive legislative jurisdiction over them.

With regard to adjudication of disputes relating to waters of inter-state rivers and river valleys, Parliament is empowered to make law in this behalf under Article 262 of the Constitution.

THE DEBATE

The debate over water as a federal issue is couched within the following two lines of Arguments:

*That water is rightly a state subject and this position must be accepted and that the centre must refrain from encroaching into this area.

However, the other viewpoint is that-

*Water is not a state subject under our constitution and centre needs to play an important role in regard to this precious resource and that in order to facilitate this water should be transferred to concurrent list.

 IS WATER A STATE SUBJECT?

The entire controversy with regard to water vis-à-vis federalism stems from the proposition that water is a state subject. In fact this proposition is taken for granted as a basic datum. Of course, given the above-mentioned constitutional framework it could be plausibly argued that water is a state subject and thus any encroachment into this area by the Union is unwarranted. However, a pragmatic analysis of these provisions would reveal that water is not strictly a state subject. The legislative competence of the state governments under Entry 17 remains unfettered only because Parliament has not made much use of the powers vested in it by Entry 56 of the Union List. It is, therefore, not quite right to say that water is a state subject; it is potentially as much a central subject as a state subject, considering the fact that most of our rivers are inter-state.

Centre’s role and jurisdiction with regard to water is reinforced by the use of circuitous route through the provisions of Entry 20 in the Concurrent List, namely, ‘economic and social planning’ by virtue of which major and medium irrigation, hydro-power, flood-control and multi-purpose projects have been subjected to the requirement of Central clearance for inclusion in the national plan[5]. This has been questioned by some State governments, but the clearance requirement remains, and there is of course the requirement of Central clearances under the Forest Conservation Act[6] and the Environmental Protection Act[7]. This leads to a plausible conclusion that even without any constitutional amendments the centre can do a great deal in relation to water.

SHOULD WATER BE TRANSFERRED TO CONCURRENT LIST?

Shift water to the Concurrent List is an issue that crops up in just about any policy level meeting of water authorities in India. Technically, just about any subject mentioned in the State List can be shifted to the Concurrent List. Even if amendments to put 'water' in the Concurrent List were considered desirable, such amendments would be enormously difficult to put through and would go counter to the persistent trends towards greater decentralization and federalism.

Moreover, it is necessary to ask ourselves what precisely will be achieved by shifting water to the Concurrent List, assuming that this proves politically feasible. Such a change will merely mean that the Centre will be enabled to legislate on water. In seeking to bring water into the Concurrent List, the Central Ministry of Water Resources is essentially trying to enlarge its own role on the ground that this will serve some useful national purposes. That argument is not totally without force, but its importance should not be exaggerated. In the first place, there is no ground for believing that the Centre will take a more holistic view of water than the States; at both levels, limited engineering dominated perceptions tend to prevail. Secondly, the Constitution only deals with the legislative (and correspondingly the executive) powers of the governments at the State and Central levels; and water is not merely a matter for governments. The growing movement of the revival of the 'dying wisdom' of traditional rainwater-harvesting and water management systems and practices envisages an enlargement of the role of the community, and transformation of the relationship between the State and Civil Society. This will not necessarily be facilitated by an alteration of the relationship between the Central and State Governments. From that point of view, the debate about shifting water to the Concurrent List may well appear to be merely a question of power-sharing among administrative structures at different levels.

Finally in the context of advocacy of community management of common pool resources, there arises the whole question of what has come to be known as 'legal pluralism', that is, the relationship between the formal law of the statute books and 'customary law'. From this point of view again, constitutional amendments to bring water into the Concurrent List will be of no great significance.

It is not the argument that the debate about the constitutional entries relating to water is pointless. That question needs to be considered, not merely with reference to the narrow issue of the role of the Central Government, but with some of the larger perspectives mentioned above in view. The Report of the National Commission to Review the Working of the Constitution[8] (NCRWC) is silent on this issue. It is difficult to believe that this issue did not come up before the Commission.

Perhaps its silence represents a deliberate decision. If so, one can only regret it. It is not clear when another opportunity to go into this matter will present itself. Meanwhile, much can be done to promote a holistic view of water, better Centre-State and inter-State relations and a constructive relationship between State and civil society, even within the ambit of the existing constitutional entries relating to water.

HAS THE CENTRE UTILISED THE EXISTING LEGAL PROVIS IONS ADEQUATELY?

While debating on whether water should be transferred to the Concurrent List, it is also important to take note of question whether the Centre has utilised the existing legal provisions adequately.The fact is that the use made of the Entry 56 in the Union List has been very limited.[9]

It is evident that the Centre has not made much use of Entry 56 in the Union List. The only significant legislation under this entry is the River Boards Act, and this too provides only for advisory boards[10] and not for River Basin Authorities vested with powers of management; and in fact no river boards, even of advisory kind, have been created under this act. The ‘Damodar Valley Corporation’ antedates the Constitution and was modeled on the Tennessee Valley Authority but while it has served some useful purposes, it has not in fact functioned as a river valley authority.

The ‘Betwa River Board’ was set up by a separate enactment, but this was only for the specific purpose of overseeing a particular project. The ‘Brahmputra Board’ was another board set under a specific Parliamentary enactment. It was vested with powers of execution of projects, but its role has been largely confined to the preparation of a Master plan; it is a weak and ineffective organization, which has not been allowed to grow into a river basin authority, and, as at present constituted, staffed and funded, is incapability of taking on such a role.

There is not a single real river basin authority in our country. State identities have proved too strong, and far from planning across boundaries for the optimal use of the available water resources of a basin, the path that has been followed is one of allocating shares in a river among states concerned either through inter-state agreements or through adjudication by a tribunal, and leaving it to each state to utilise its share within its boundaries.

THE ISSUE OF INTER-STATE WATER DISPUTES

Any discussion on federalism and water resource management cannot be done without analyzing the aspect of inter-state water disputes[11]. Considering the number of such disputes in the country, their impact on our federal scheme cannot be ignored because as mentioned earlier in the paper real federalism does not envisage a relationship between Centre and states but also between different states. In fact inter-state river water disputes in India have long been recognized as an important federal issue. The ‘Sarkaria Commission’[12] on center-state relations (Government of India, 1988) devoted an entire chapter to the problem, and made a series of recommendations.

There have been plenty of inter-state water disputes but in most of these cases, after a protracted period of dispute, there was finally an agreement or an award. The awards of the Krishna, Godavari, and Narmada tribunals are examples of this process of conflict resolution. Certainly, there can be post-award disputes too, for instance, the dispute between Andhra Pradesh on the one hand and Karnataka and Maharashtra on the other regarding what is known as the Telgu-Ganga Project.

One instance in which the process of conflict-resolution has not worked is the case of the Ravi- Beas waters, where the tribunal’s award stands stalled and seems unimplementable in the foreseeable future. Even here it must be remembered that there were two earlier inter state agreements regarding Ravi-Beas waters, and that the present stalemate on this issue is one of the consequences of larger Punjab problem.

The most recent and controversial example of inter-state water dispute is the one between Karnataka and Tamil Nadu regarding Cauvery waters[13]. Unfortunately, the issue has become highly politicised. The governments of two states have adopted public postures, which have rendered a negotiated settlement difficult and soured relationship.

In the context of a real and co-operative federalism it must be noted that adjudication is not the best means of resolving inter-state water dispute and that a negotiated settlement is the more appropriate course. The Inter-State Water Disputes Act, 1956 itself, while it enables one of the states concerned to request the centre to establish a tribunal, requires the central government to satisfy itself that a dispute exists and that it cannot be settled through negotiations, before it establishes a tribunal.

This sometimes leads to delay in the establishment of tribunal, while the centre continues to explore the possibilities of a negotiated settlement. The ‘Cauvery Tribunal’ itself is a case in point. The Tamil Government asked for it in July 1986 and the Central Government established only in 1990 that too after the Supreme Court intervened.[14] However, recently a period of one year has been fixed for the constitution of the tribunal from the date of request.

Article 262 of the Constitution and the ISWD Act 1956 enacted under it are important components of our federal structure. In terms of these provisions the award of a tribunal set up under the ISWD Act is final and binding on the states concerned, and there can be no appeal to Supreme Court against such an award, though there is a procedure for reference back to the tribunal within a limited period of time. This was clearly intended to obviate protracted inter-state litigation on river waters and the consequent prolongation of the dispute. It follows that the award of such a tribunal is virtually a decision by the Supreme Court. However, in recent years a disturbing element has emerged in this regard in form of lack of respect shown to these constitutional and statutory provisions. If the award of the tribunal is indeed final and binding, there can be no question of its being rejected; but this was precisely what happened in the case of the ‘Ravi-Beas’ dispute in which the Punjab Government rejected the award. Similarly, in the case of the Cauvery dispute the Tribunal’s interim order was sought to be nullified by the Karnataka government through an Ordinance. The Supreme Court pronounced that the Ordinance was unconstitutional[15].

These are the dangerous portents for the future of federalism and indeed of the rule of law in this country. There is an urgent need to evolve the culture of co-operative federalism. A Sincere and earnest revival of the practically dead River-Boards Act, 1956 may provide a long term solution[16].

ARE THE CONSTITUTIONAL PROVISIONS INADEQUATE?

In light of the above account, can it be said that the present constitutional position in relation to water is satisfactory? It is possible to express some doubts in this though these are perhaps matters of hindsight. First, even the most general entry regarding water, namely Entry 17 in the State List, quickly slips into specific uses of water such as water supply, irrigation etc. Secondly, irrigation looms large, and the reference to canals, embankments, drainage, water storage, and so on, shows heavy influence of the engineering point of view. Thirdly, while the word 'water' may doubtlessly be taken to include groundwater, there is no specific reference to the latter; the Constitution-makers seem to have been thinking mainly of river waters. Fourthly, the Centre has been given a role only in relation to inter-State rivers and river valleys, but it is conceivable that even in a river that flows entirely in one State that State's intervention may produce environmental or social consequences in another State, and such interventions in intra-State surface waters might also have an impact on groundwater aquifers cutting across State boundaries. There is no explicit recognition of this in the Constitution. Fifthly, the constitutional provisions do not show any direct evidence of a perception of water as a natural resource, much less of water as a part of the larger environment or the ecological system. (Some of the emerging concerns were incorporated into the Constitution at a later stage. Under the 42nd Amendment of 1976, references to the protection of the environment, forests and wildlife were introduced via Articles 48A and 51A, and two entries relating to forests and wildlife were added to the Concurrent List. There is also no explicit evidence of an awareness of traditional community-managed systems of rainwater harvesting or water management, or of the role of civil society in these matters. Nor is there any overt reference to water as a basic essential for life, and therefore a basic human and animal right.

Some of these perceptions and concerns are of relatively recent origin, and perhaps the makers of the Constitution cannot be faulted for not having foreseen these developments. Further, a Constitution provides a foundation for the laws of the land, and it is essentially a legal document; it cannot be expected to spell out sectoral policies in detail. Subject to those caveats, however, it is possible to argue that if the kinds of thinking that have now come to prevail had been well established when the Constitution was being drafted, the constitutional provisions might well have been different.

To argue on these lines is not necessarily to advocate the enhancement of the powers of the central government vis-à-vis the states. This needs to be stated because such apprehensions are often expressed. The argument of this paper is not to strengthen one bureaucracy as against another. What is suggested is that there should be some kind of national mechanism for co-operative action in relation to water as a scarce and precious resource.

CONCLUSION

In summary, current Indian water-dispute settlement mechanisms are ambiguous and opaque. A cooperative bargaining framework (section 4) suggests that water can be shared efficiently, with compensating transfers as necessary, if initial water rights are well-defined, and if institutions to facilitate and implement cooperative agreements are in place. Our analysis also emphasizes the role of complementary investments, and the need to expand the scope of bargaining to include these where feasible. Furthermore, delay in the dimension of agreement over water can encourage inefficient, non-cooperative investments in dams, irrigation, etc. Additionally, we draw the distinction between situations where cooperation is possible, and situations where the initial allocation of rights is at stake (section 5), where there is pure conflict rather than potential gains from trade. In the pure conflict situation, which seems very relevant for Indian inter-state disputes, a search for a negotiated solution may be futile, and quick movement to arbitration or adjudication may be more efficient.

However, in the Indian case, not only is this process slow, but, effectively, binding arbitration does not exist. The threat point of no agreement has been the outcome in several major disputes (e.g., Cauvery; Ravi-Beas). This can result in inefficient levels of investment by the individual, non-agreeing states, generating a diversion of scarce investment resources, as well as inefficient use of the water itself. This in turn can have negative impacts on economic growth. The problems are compounded by the entanglement of inter-state water disputes with more general center-state conflicts, and with everyday political issues. We would argue that these impacts can be reduced by a more efficient design of mechanisms for negotiating interstate water disputes. In this section, we have presented some of the possibilities, including a national water commission independent of daily political pressures, a federated structure incorporating river basin authorities and water user associations, and fixed time periods for negotiation and adjudication.

BIBLIOGRAPHY

h Ramaswamy R Iyer, Federalism and Water Resources, EPW, March 26, 1994, p.733.

h Report of the National Commission to Review the Working of the Constitution, Universal Law Publishing Co. Pvt. Ltd..

h Sarkaria Commission Report, Published BY GOVERNMENT OF INDIA, REPORT OF THE COMMISSION ON CENTER STATE RELATIONS 487-93 (1988).

h Jaygovind. Resolution Of Inter State Water Disputes: A Case for Concilliation. 16 CULR, 76-89 (1992)

h http://wrmin.nic.in/constitution/iswact.htm

h http://nwda.gov.in/indexmain.asp

h http://www.observerindia.com/analysis/A201.htm

h http://www.infochangeindia.org/agenda3_16.jsp