Inter-State water issues

Disputes aplenty

Print edition : October 14, 2016

Minister for Water Resources Uma Bharti with Chief Ministers Naveen Patnaik of Odisha and Raman Singh of Chhattisgarh during a meeting on the Mahanadi water dispute between the two States, in New Delhi on September 17. Photo: PTI

The Cauvery water dispute has put the focus on inter-State river water disputes in India and the experience so far.

WATER-SHARING disputes across the country (and even beyond) are only going to escalate with increasing demand and increasing pollution and losses reducing the available water. Climate change is likely to worsen the situation as monsoon patterns change, water demand goes up with the increase in temperatures, glaciers melt and sea levels rise. The government’s agenda of interlinking of rivers will further complicate matters.

The ongoing Cauvery water dispute has once again put the focus on inter-State river water-sharing disputes in India and the experience so far. There is no solution to the Cauvery dispute in sight, and the engineer-dominated Cauvery Management Board that the Cauvery Water Disputes Tribunal’s award has recommended is unlikely to help matters.

Some of the water disputes that are ongoing now include the Mahadayi water dispute among Goa, Karnataka and Maharashtra; the Vansadhara water dispute between Odisha and Andhra Pradesh; the Krishna water dispute involving Maharashtra, Karnataka, Telangana and Andhra Pradesh; the Cauvery water dispute; and the Ravi Beas dispute involving Punjab, Haryana, Rajasthan and Himachal Pradesh.

In all these five cases, tribunals set up under the Inter State Water Disputes Act of 1956 are still in office and supposed to be functioning, though in the case of the Cauvery and Ravi Beas disputes there is no activity happening at the tribunals. Even in the case of the Krishna dispute, the only issue the tribunal is discussing is the water sharing between the newly created States of Telangana and Andhra Pradesh. So, for example, in the budget of the Union Ministry of Water Resources (MoWR) for 2016-17, there is provision of Rs.0.68 crore for the Ravi Beas tribunal, Rs.2.8 crore for the Cauvery tribunal, Rs.2.6 crore for the Krishna tribunal, Rs.4.52 crore for the Vansadhara tribunal and Rs.3.1 crore for the Mahadayi tribunal.

Past tribunals

The Narmada Water Disputes Tribunal award came in 1979, the Godavari Water Disputes Tribunal award was announced in July 1980 and the Krishna Water Disputes Tribunal award was announced in December 2010. These tribunals no longer function. However, in the case of the Krishna tribunal, after the formation of Telangana State, water distribution between Andhra Pradesh and Telangana has been referred to it, so it is functioning again.

The Narmada Water Disputes Tribunal award did not entirely resolve the issue, and the dispute between Gujarat and Madhya Pradesh lingered on for many years after it. A major project that the tribunal decided about, namely, the Sardar Sarovar Project (SSP), is still incomplete 37 years later and several petitions have been filed since the tribunal did not hear the affected people who continue to struggle. Even people in the dry region of Kutch, in whose name the project was justified, went to the Supreme Court, asking for a greater share of the Narmada waters. The tribunal award is up for review in eight years and the two States are already gearing up for the next round of battle.

In the case of the Godavari tribunal, the Polavaram dam, one of the key aspects of its decision continues to be under construction and a large number of disputes are still pending. The Krishna basin disputes have already seen the need for a second tribunal and its work is still ongoing.

All this shows that tribunals have not been able to resolve water-sharing conflicts permanently.

The Indus Waters treaty between India and Pakistan is often cited as an example of successful water-sharing dispute resolution. However, the Indus treaty basically divides six rivers between the two states, giving absolute right to use the waters of the Beas, the Ravi and the Sutlej to India and most of the rights over the waters of the Chenab, the Jhelum and the Indus to Pakistan. The limited rights that upper basin areas of India have over the three western rivers remain to be fully used, but many of the projects on these rivers have been challenged by Pakistan, and at least one of them was even taken to the International Court of Justice at the Hague.

There have been a number of agreements between India and Nepal, including those on the Kosi, the Gandak, the Sharda and the Mahakali, but Nepal continues to have so much resentment that one cannot call any of them as successful examples of river water sharing.

In addition to the tribunals, the MoWR website lists three more ongoing disputes. The Polavaram (also known as Indirasagar) dam in Andhra Pradesh has led to a dispute with Odisha and Chhattisgarh as the dam will submerge large parts of the tribal areas in these States, and there has not been an environmental and social impact assessment or public consultation process. The Union Ministry of Environment, Forest and Climate Change (MoEFCC) has given a stop-work order, but, strangely, the order keeps getting suspended. In the meantime, the Union government has declared it a national project and offered to fund it fully. However, several petitions are pending in the Supreme Court against the project. Telangana has also raised a number of issues, including a share in the benefits and backwater impact. How the project is going ahead in spite of these issues remains a mystery.

The second dispute that the MoWR lists is about the Babhali barrage on the Godavari. The MoWR website says about this dispute: “The State of Andhra Pradesh in May 2005 brought to the notice of the Central government that the Government of Maharashtra was constructing the Babhali barrage in the submergence area of the Pochampad Project (Sriramsagar Project) in violation of the Godavari Water Dispute Tribunal (GWDT) award dated 7.07.1980. Babhali barrage is located on the main Godavari River in Nanded district; 7.0 km upstream of Maharashtra-Andhra Pradesh border. The Pochampad dam on Godavari River is 81 km downstream of Babhali barrage. Pochampad storage stretches to a distance of 32 km within Maharashtra territory and its submergence is contained within river banks in its territory under static conditions.”

Following the creation of Telangana State on March 1, 2014, the dispute is between Maharashtra and Telangana, but with the signing of an agreement between these two States recently, this dispute may now be history, though the MoWR website is yet to take cognisance of this.

The third ongoing dispute that the MoWR lists is between Kerala and Tamil Nadu and involves the Mullaperiyar dam. The dispute is basically about the safety of the over 120-year-old masonry dam. If it breaches, Kerala will be affected even as all the benefits go to Tamil Nadu. Kerala wants to build a new dam in the area and has offered to continue to give Tamil Nadu all the water it currently gets even though Tamil Nadu does not have much share in the basin. But Tamil Nadu has refused to allow the decommissioning of the dam.

There are a number of other simmering disputes. A major one that is likely to go the tribunal way is the Mahanadi water-sharing issue between Chhattisgarh and Odisha. The Odisha government has already sent letters to the Centre, referring to the Inter State Water Disputes Act of 1956. Meetings of the Chief Secretaries and the Chief Ministers called by the Centre have not helped resolve the issue so far.

A dispute among Tamil Nadu, Karnataka and Andhra Pradesh on sharing the waters of the Palar has been brewing for some years. Another, between Tamil Nadu and Kerala, has started with Kerala seeking stage I environment clearance for the Attapadi irrigation project on a tributary of the Cauvery. The Sutlej-Yamuna sharing issue between Haryana and Punjab also keeps raising its head from time to time. There is also the unresolved issue between the Upper Yamuna Basin States. Between Maharashtra and Gujarat, the sharing of the Tapi’s waters has remained unresolved for some years, blocking the approval for the Par-Tapi-Narmada and the Damanganga-Pinjal river link proposals. However, none of these issues has so far gone to a tribunal.

The tribunals have been using a number of principles while deciding about sharing water between contending States. The Helsinki Rules were issued in 1966, the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses were finalised in 1997, the World Commission on Dams report came in November 2000, and the Berlin Rules were issued in 2004. All of them have certain commonalities, but they differ in some aspects. This brief article will not allow a detailed analysis of these rules and conventions, but we need to adopt and use them according to our situations. India’s National Water Policy and Draft National Water Framework Bill also mention some principles.

Environmental flows for rivers

The Narmada tribunal did not provide any water for the river downstream from the Sardar Sarovar dam. It said that since the downstream river was entirely in Gujarat, Gujarat can allocate water for the river from its own share. However, the Cauvery award of 2007 and the Krishna award of 2010 have provided some water, but the quantum is so small that it seems more like tokenism.

In the Cauvery award, for example, there is a token provision of 10 tmc ft (thousand million cubic feet), which is less than 1 per cent of the available flows, or 740 tmc ft, for the river. But even for that provision there are absolutely no practical mechanisms to ensure that the river gets it throughout its stretch. It seems to escape the attention of the tribunals that if there is no river, how will the States get their share of water?

In that context, what the interim award, dated July 17, 2016, of the Mahadayi Tribunal says is educative: “Rivers are important for many reasons. One of the most important things they do is to carry large quantity of water from the land to the ocean. There, seawater constantly evaporates. The resulting water vapour forms clouds. Clouds carry moisture over land and release it as precipitation. This freshwater feeds rivers and smaller streams. The movement of water between land, ocean, and air is called the water cycle. The water cycle constantly replenishes the earth’s supply of freshwater which is essential for almost all living things. Except some few rivers, all rivers ultimately flow into the sea whether it is [the] Arabian Sea or [the] Bay of Bengal. Before merging into the sea the water of the river is available for consumptive and non-consumptive uses by the States concerned. Therefore, merging of water of river Mahadayi to the Arabian sea irrespective of uses, cannot be considered to be wastage of water. The plea of wastage of water may become relevant if surplus water is available. As indicated in the earlier part of this order, this tribunal has come to the conclusion that the State of Karnataka has failed to establish at this stage that the surplus is available at the three points from which the water is sought to be transferred to [the] Malaprabha basin if water available is 108.72 tmc [ft] at 75% dependability in the Mahadayi basin. For this reason, it is difficult for the Tribunal to accept the case of Karnataka that water goes into the sea is wastage.”

Implementation of Awards

Some of the tribunals have made provisions for implementation of the awards. So, the Narmada tribunal award made a provision of a Narmada Control Authority, to which rehabilitation and environment subgroups were added. This arrangement has been useful to some extent owing to the provision of some independent members in the environment subgroup, though they are missing in other bodies. The Cauvery dispute has lingered for over nine years after the tribunal gave its final award, and on September 20, 2016, the Supreme Court directed the constitution of the Cauvery Management Board as provided in the award. However, this engineer-dominated body does not seem to have the right constitution for river basin management in the 21st century.

It can be seen from the above facts that almost in every case, disputes between States have arisen when a State goes for the construction of a major dam on inter-State rivers. So there was no dispute on the Narmada until Gujarat decided to build the Sardar Sarovar dam. There was no dispute on the Mahadayi until Karnataka decided to build diversionary structures under the Kalsa-Bhanduri project. At the root of a number of disputes are dams such as Polavaram and Mullaperiyar and the Babhali barrage. In the Cauvery basin, the dispute started when the upstream State, Karnataka, proposed dams, threatening water availability for irrigation systems in the Cauvery delta.

If the plans of interlinking of rivers get implemented, then the existing scenario is likely to undergo a major change and the disputes are likely to multiply and get much more complicated. A glimpse can be seen in Gujarat and Maharashtra where the Par-Tapi-Narmada link is still opposed by Maharashtra despite there being Bharatiya Janata Party-run governments in both States.

In the 21st century water management scenario, we can avoid more disputes and complications by using the available water of our rivers in more prudent, sustainable and environment friendly ways without necessarily involving large dams and diversionary structures or interlinking of rivers. In this context, it should be mentioned that while the disputes and tribunals are about sharing of surface waters, India's water lifeline today is groundwater. Strangely, tribunals do not even include groundwater use while calculating and apportioning water use.

The biggest problem in the way the inter-State water disputes have been handled by the Central and State governments, the tribunals and the judiciary is that there is no place for the river, the people who depend directly on the river, and those who are affected by the decisions of these bodies. Nor is there any role for environmental, social and cultural issues relating to the rivers. The legal and institutional architecture has no place for these stakeholders currently. This needs to change, and urgently.

Himanshu Thakkar, an environmentalist, is the coordinator of South Asia Network on Dams, Rivers and People. His email: