Water Disputes Between States in Federal India

On 12 September 2016, after the Supreme Court directed Karnataka to release a set quantity of Cauvery water to Tamil Nadu for ten days, protests broke out in Bengaluru. Buses were burnt, shops were closed, and curfew was imposed in parts of the city. Tamil owned vehicles and businesses were attacked, and in Tamil Nadu there were demonstrations of anger in return. The dispute over the river was by then more than a century old. It illustrates the topic, that water disputes between states are a serious test of federal India. Courts and tribunals have struggled to produce settlements that the states accept.

The Constitution divides responsibility for water. Under the State List, water supply, irrigation and canals are state subjects. But Entry 56 of the Union List allows Parliament to regulate and develop inter state rivers where it is expedient in the public interest, and Article 262 empowers Parliament to provide for the adjudication of disputes over inter state rivers. Parliament used this power to pass the Inter State River Water Disputes Act of 1956, which allows the Centre to refer a dispute to a tribunal when states cannot settle it by negotiation. The courts are barred from deciding the dispute itself, though they have intervened in implementing awards.

The Cauvery dispute is the oldest. It began with agreements between the British Madras Presidency and the princely state of Mysore in 1892 and 1924, which gave Madras the larger share. After independence, Karnataka argued that the agreements were unfair, and Tamil Nadu claimed established use. A tribunal set up in 1990 gave its final award in 2007, allocating the water among Tamil Nadu, Karnataka, Kerala and Puducherry, and the states went to the Supreme Court. Every year of poor rain renews the quarrel, as the water available falls short of the shares promised.

The Ravi and Beas waters dispute among Punjab, Haryana and Rajasthan is another. The Satluj Yamuna Link canal was meant to carry Punjab's water to Haryana. Prime Minister Indira Gandhi inaugurated its construction in 1982, and the project was stalled by militancy in Punjab and by political opposition. In 2004 Punjab passed a law cancelling its agreements, and in November 2016 the Supreme Court held the law unconstitutional. Punjab's response was that its farmers would not give a drop. The Krishna, Godavari and Mahadayi rivers have generated similar quarrels, and dozens of disputes remain before tribunals.

Punjab's response was that its farmers would not give a drop.

Several reasons explain why the disputes are so hard. Water is scarce relative to demand. India has about sixteen per cent of the world's population and four per cent of its fresh water, and demand for irrigation, cities and industry grows steadily. Climate change makes rainfall less predictable. Rivers do not respect boundaries, and the upper riparian state has the advantage of controlling the flow. For farmers, water is life, and a politician who yields it risks losing the next election. Disputes are therefore treated as zero sum, and the language of rights and emotion crowds out analysis.

The tribunal system has its own faults. The tribunals take years, and sometimes decades, to give awards. The Krishna Water Disputes Tribunal was constituted in 1969, the Godavari tribunal in 1969 and the Ravi Beas tribunal in 1986. Awards can be challenged, and the Union has been reluctant to enforce them against a politically sensitive state. Data on the quantity of water in rivers and on actual use are poor and are often disputed. The Act did not set a time limit for decisions until amended. Weak enforcement turns the legal victory of one state into a hollow gesture.

There are ways forward. An approach advocated by experts is to treat the river as a basin and not as a series of state shares. A river basin authority, with representation of all riparian states and technical expertise, could plan the use of water and monitor flows, as the Murray Darling Basin Authority does in Australia. Real time data from satellites and gauges would make it harder to dispute the facts. Sharing the benefits of the river, rather than the water itself, through hydropower, flood control and navigation, can widen the options. The Indus Waters Treaty of 1960, which has survived wars between India and Pakistan, shows that even rival nations have been able to work out rules, and states of a single country should be able to do no worse.

Demand management is equally important. Much of the dispute is about how a limited supply is used. Rice and sugarcane, which need huge amounts of water, are grown in regions of scarcity. Flood irrigation wastes a large part of the water it supplies, while drip systems use much less. Pricing of electricity for pumps and water tariffs often encourage waste. The cities lose a considerable portion of their piped supply to leaks. If farmers and cities used water efficiently, the shortage that feeds the quarrels would be smaller. Reform in the use of water within states is thus a precondition of peace between them.

The Union government can do more, too. The Inter State Council, provided in Article 263 for the purpose of discussing common subjects, has rarely met. Mediation by the Prime Minister and by the Chief Ministers jointly, backed by technical committees, has occasionally calmed disputes. Greater use of conciliation before litigation would help. The proposals to nationalise rivers or to link them by canals are controversial, with costs and ecological risks, and are not substitutes for cooperation.

At bottom, a river is a shared inheritance that moves, and a federation is a promise that its members will treat shared things as shared. Courts can apportion the water but cannot make states trust one another. The Cauvery has flowed through Karnataka and Tamil Nadu for millions of years, before either state existed, and the water in the dispute is the same water in the river. Whether Indian federalism can find a way to treat it as a common stream and not as a disputed possession remains one of its harder tests.