My association with water laws and inter-state river water disputes goes back to more than two decades. Over the years while working on various cases relating to inter-state river water disputes, I always felt the lack of any authoritative commentary or source material in respect of the Inter-State River Water Disputes Act, 1956 (‘the Act of 1956’). Inspite of being a comparatively short statute of sixteen Sections (Sections 1 to 14 including Sections 5-A and 6-A) no real commentary is available. The best available commentary is in Volume 31 (5th Edition, 1989) of the A.I.R. Manual.
It is not that well researched works on ‘Water Laws in India’ did not or do not exist. They did – and do [For a list of some of the known works on the water laws in India and Act of 1956, see Schedule]. However, they (mostly) were or are works of engineers or hydrologists which focus less on legal aspects and more on water management and civil works connected with inter-state river waters. Works (on water laws in India) of legal scholars started surfacing (initially) in 1982 and (later) in 1990 and 1992. However, these works dealt with the Act of 1956 very generally and the broad principles of water laws, either international or indigenous. However, if any Section of the Act of 1956 had to be interpreted – there was no commentary dealing with individual provisions of the Act of 1956 to fall back on. No book was readily available which provided background material by way of Statements of Objects and Reasons or Parliamentary Debates preceding the amendments to give an insight into the background, genesis and evolution of or introduction to the Act of 1956 or any particular provision in it.
Scope of this ‘study’
This led me to start on a brief study focusing only on the Act of 1956 without being carried away into attempting anything more ambitious such as encompassing the water laws prevalent in India including legislation under Entry 56 (e.g. The River Boards’ Act 1956, The Damodar Valley Corporation Act, 1948, etc.) of List I of the Seventh Schedule to the Constitution of India or even local state legislation under Entry 17 of List II of the Seventh Schedule to the Constitution of India. I therefore, decided to title this proposed book “The Genesis and Evolution of the Inter-State River Waters Disputes Act, 1956 – a Study” which I hope to see in print in the near future. In the meanwhile, Mr. Vikrant Pachnanda a student of Gujarat National Law University, Ahmedabad, Gujarat, India launched a law journal entitled “India Law Journal” and in his capacity as Associate Director of the Journal, he asked me to share my knowledge on either water laws or arbitration laws with its readership. I therefore, decided to start with writing on water laws for this newly launched journal.
Since many of the chapters were ready but were very lengthy and detailed even as separate articles and since my brief was to restrict each article to about 5000 words, I decided to trim down some of the proposed chapters of my prospective book and give the readership of this newly launched India Law Journal a series of articles captioned “The Genesis and Evolution of the Inter-State River Water Disputes Act, 1956”. Though water legislation in India dates back to the Northern India Canal and Drainage Act, 1873 and power to legislate in respect of waters is traceable to Entry 7, Part II (Provincial Subjects) of the Government of India Act, 1915-18 – but the genesis of the Inter-State River Water Disputes Act, 1956 lies in the Government of India Act, 1935.
I have divided this series into about five parts, each of which will be a separate article. The first part which immediately follows this prefatory section deals with flowing or running water and proprietorial rights or other rights in such waters. The rights I have dealt with are not so much easement rights of individuals but rights inter-se States.
In the second part, I will briefly deal with the various rivers in India, whether international, inter-state or intra-state. This is very brief since this work deals with the Act of 1956 and the law in India relating to inter-State river waters rather than the rivers themselves. The brief description of Indian rivers is only the backdrop or canvas on which I will attempt to paint a clearer picture of the 1956 Act for the readership. I will in this part also deal briefly with what I believe is the pre-genesis position, i.e. the pre-1935 position. The second section of this part will briefly cover the 19th century (i.e. 1800’s) and the early 20th century (i.e. 1900 to 1935). Having covered the brief background till the Government of India Act, 1935, this study will move on to the third section of the second part titled ‘Genesis’ of the Act of 1956 which will cover the period from 1935 to 1949, namely, from the enactment of the Government of India Act, 1935 during British rule to the adoption of the Constitution of (independent) India by the Constituent Assembly on November 26, 1949 and its coming into force on and from January 26, 1950. I have captioned this part ‘genesis’ because the etymology of the word genesis goes back to the Greek word meaning ‘origin’ or ‘creation’. According to me, the Inter-State River Water Disputes Act, 1956 originated from the Government of India Act, 1935, which in turn led to draft articles 239 to 242 of the Draft Constitution of India. Hence, the title – ‘Genesis’.
The next (third) part is titled ‘Evolution’. This will probably be the longest part and will deal with the period 1949-2004. During this period, the Inter-State Water Disputes Bill came to be drafted and placed before the House in 1955. It was referred to a Joint Committee which reported back in November, 1955. However, it came to be debated upon and passed only in 1956 after which the Inter-State Waters Disputes Act, 1956 came to be born. It became the Inter-State River Water Disputes Act, 1956 only after the 2002 Amendment on and from August 6, 2002. The word ‘Evolution’ is derived from ‘evolve’ whose root (also) lies in the Greek word ‘volve’ meaning ‘to roll out, unfold or gradually develop’. It also means ‘a continuous change from a simple to a more complex form’ or the ‘gradual development of an idea or a background or a plot’ or ‘the opening out or unfolding’ of anything. I have titled this part as ‘Evolution’ since in the half century to be covered by this part – I will trace the gradual unfolding and development or evolution of the Act of 1956 through its various amendments of 1957, 1968, 1980, 1986, 1988 and 2002. I will while dealing with the evolution of the Act of 1956 also deal with the background of the parent Act and the background of each of the amendments including the original Bills which preceded the Acts, the Statement of Objects and Reasons which were the ‘raison de’ atre’ of their introduction and the Debates over their passing.
After tracing the evolution of the Act of 1956, over half a century of Indian independence, I will bring the study to the 21st century. I have therefore titled the fourth part, “The present – 2008”. It is in this part, that I will briefly comment upon each of the sixteen Sections (1 to 14 including 5A and 6-A) of the Act of 1956.
The last (fifth ) part will attempt to envisage the future. It is titled “The way ahead” In this part, I will attempt to locate the light at the end of this dark tunnel of murky, inter-state water disputes, where neighbouring states become warring tribes when it comes to water and where threats of terrorism and bloodshed are liberally doled out (directly or by innuendo) even in Courts and Tribunals to prevent parting with even a drop of water for a thirsty neighbour. I have, as a solution to this problem and to show the way ahead, advocated the cause for greater Central control. Water is a national resource and a national asset of India as a whole. It is not the property of one state to the exclusion of others. Water has to be distributed amongst the inhabitants of the States and Union Territories which form this great Union known as India. If we are to progress and forge ahead, only greater Central control over waters of inter-state rivers and works associated with them will ensure that water is distributed on the basis of need and not on the basis of ostensible ownership as if it were private property.
Matters will not end here. Though the Indus Waters Treaty of 1960 solved the Indus waters problem with Pakistan but I see problems ahead not only in respect of Indus waters (between India and Pakistan) but the waters of the Ganges and the Brahmaputra between India, Nepal and Bangladesh. Of course, these are not matters within the scope of the Inter-State River Waters Disputes Act, 1956 or this study.
I also see problems ahead regarding the current ratios in which waters are shared by various States within the Union of India. Several studies now predict that global warming will lead to a water scarcity inter-alia in Asia. An analysis conducted by researchers from the Kerala based Calicut University, New Delhi based Jawaharlal Nehru University, Nepal based International Centre for Integrated Mountain Development and the UK based University of Salford and the Centre for Ecology and Hydrology indicate that the major rivers of northern India and Pakistan will flow strongly for the next forty years but thereafter they will be reduced to mere trickles. [See Science and Environment Fortnightly “Down to Earth”, Volume 13, No.4, July 15, 2004 – page 33.]
These are not doomsday predictions but a clarion call to make advance preparations to tackle this impending crisis if the need arises. A similar news item appeared in the New Delhi edition of the “Indian Express” of April 27, 2004 in which it was reported that in March 2002, the Department of International Development (DFID) of the United Kingdom commissioned a project called SAGARMATHA (Snow and Glacier Aspects of water Resources Management in Himalayas) to assess the impact of deglaciation on the seasonal and long term water resources in snow-fed Himalayan rivers. The results obtained are disturbing since some of the key findings indicate that:-
“In the Upper Indus, the study sites show initial increases of 14 and 90 per cent in mean flows over the next few decades which will be followed by decreasing flows by 30 and 90 per cent of baseline in the subsequent decades of the 100-year scenario.
- For Ganges, the response of the river near the glacier in Uttarkashi is different from downstream Allahabad. At Uttarkashi, flows peak at between 20 and 33 per cent baseline within the first two decades and then recede to 50 per cent of base line after 50 years.
- Near the Brahmaputra source, there is general decrease in decadal mean flows for all temperature scenarios as glaciers are few in the area and flows recede as the permanent snow cover reduces with increasing temperature.”
These are early warning signals that water resources management in this region must be given top priority by India, Pakistan, Nepal, Bangladesh, Bhutan and others.
However, whether it is an inter-State or international river water dispute, the question we have to ask ourselves is whether or not in this sub-continent we can sort out our river water problems through the equitable utilization of water resources as the African Countries that fall within the Nile basin have done. [Refer “Smooth sailing – 10 African nations show how a river can be shared peacefully” by Clifford Polycarp as appearing in the April 30, 2004 edition of ‘Down to Earth’.]
I must conclude this preface by clarifying that this study does not pretend to be a work of any great scholarship. It is a mere collection and collation of all available material relevant to the Inter-State River Water Disputes Act, 1956 put together at one place as a convenient and handy referencer for the every day practicing lawyer and law student. Of course, while presenting the collected material in readable form alongwith relevant judgments of the Supreme Court of India and decisions of Tribunals, I have expressed my (sometimes brusquely candid and forthright) views in the matter. However, these are the personal views of a lawyer who has had the misfortune of experiencing the pains associated with the bitterness of inter-State river water disputes.
I hope this study will, in some way, help those dealing with or interested in solving inter-state river water disputes in and of India.
Propreitorial and other Rights in Flowing or Running Waters
Of the four elements known to man (earth, air, water and fire), man cannot live without two – air and water [For a detailed discussion on Water see pages 27-38, ‘Water and Hydrologic Circle’, ‘Settlement of International Water Law Disputes in International Drainage Basins’ by Professor Dr. B.R. Chauhan, 1981 Edition]. The very existence of mankind and all living creatures depend on the air we breathe and the water we drink. Yet, we shamelessly waste and pollute these very life sustaining elements on which all living things depend.
Water composes three quarters of the earth’s surface in the form of seas, rivers and lakes’ [See The New Lexicon Webster’s Dictionary of the English Language, 1988 Edition, page 1111]. However, only three percent (3%) of all this water is fresh water. While battles were earlier waged over land, it was rightly predicted that the battles of the future would be fought for water. Nothing could have been more accurate than this prediction.
No proprietorial rights in running water – the law since Roman times.
Though seemingly confusing, there is however, a vast difference in proprietorial rights to land or territories in contradistinction to rights in air, light or running water. Running water is and since Roman times has been considered to be res communes i.e. as being an item which by its very nature could only be used not owned and from their nature they were adapted to general use. [See Roscoe Pound ‘An Introduction to the Philosophy of Law’, Chapter-5, ‘Property’ pages 107 to 132 at pages 109 to 113].
However, as Roscoe Pound himself questions:-
“But if this is true of air and of light and of running water, men will insist upon inquiring why it is not true of land, of articles of food, of tools and implements, of capital, and even, it may be, of the luxuries upon which a truly human life depends.”
This is explained by Roscoe Pound with reference to Spencer, Grotius and Pufendorf who considered that all things originally were res nullius but men in society came to a division of things by agreement and things not so divided were afterward discovered by individuals and reduced to possession. Roscoe Pound says that:-
“Pufendorf rests his whole theory upon an original pact. He argues that there was in the beginning a “negative community.” That is, all things were originally res communes. No one owned them. They were subject to use by all. This is called a negative community to distinguish it from affirmative ownership by co-owners. He declares that men abolished the negative community by mutual agreement and thus established private ownership. Either by the terms of this pact or by a necessary implication what was not occupied then and there was subject to acquisition by discovery and occupation, and derivative acquisition of titles proceeding from the abolition of negative community was conceived to be a further necessary implication.”
Therefore, it seems that whereas originally even land may have been in the realm of res communes or a negative community but with the passage of time this negative community was abolished by men by mutual agreement and thus private ownership of land came to be established either by terms of this pact or by necessary implication or acquisition by discovery and occupation and thus land ceased to remain in the realm of negative community while running water like air and light continued to remain in the realm of negative community or res nullius or res communes and state ownership of such res communes or res nullius in running water is only a sort of guardianship for social purposes. Thus, unlike land, no individual, state or government can own running waters like land or territories.
English law as to rights in flowing water is much the same and is aptly summarized in Halsbury’s Laws of England[Volume 49(2), Fourth Edition, Reissue, 1997, pages 62-63] as follows:-
“86. Rights in flowing water at common law. Although certain rights as regards flowing water are incident to the ownership of riparian property, the water itself, whether flowing in a known and defined channel or percolating through the soil, is not at common law, the subject of property or capable of being granted to anybody. Flowing water is only publici juris in the sense that it is public or common to all who have a right of access to it.” (Emphasis supplied)
However, Parliament can legislate to create proprietorial rights in water flowing in certain channels. This position has been set out in Halsbury’s as follows:-
“87. Statutory rights in flowing water. Proprietary interests in water flowing in certain channels may be, and have in certain instances been, created by Act of Parliament. Rights can also be obtained to abstract water.”
Indian Law – Rights in Indian River Waters
The same legal position is true for India between States forming a part of the Union of India. No State owns the waters of any inter-State or international river running through its boundaries and it is only under the guardianship of the Union of India for social purposes. The structure of the Indian Constitution also ensures that no State or residents of States within the Union of India has any proprietorial or ownership rights over inter-state or international river waters running through its boundaries. Such river waters are under the control or guardianship of the Union of India and are meant for the welfare of all the people of India.
Our Constitution broadly adopts the scheme of the Government of India Act, 1935 prior to the enactment of which governmental power was highly centralized in the Secretary of State. Even under the Government of India Act, 1919 no major irrigation project could be undertaken without the express sanction of the Secretary of State. In case of a dispute between provinces in this regard, the matter had to be referred to the Secretary of State whose decision was final and binding on the concerned provinces. However, under the Government of India Act, 1919, partial autonomy was granted to the provinces by Item No.7, Part-2 of Schedule-1 under which irrigation became a provincial though reserved subject.
More provincial autonomy came in the form of Entry 19 of List-2 to the 7th Schedule of the Government of India Act, 1935 by which power to legislate on “water, that is to say water supplies, irrigation and canal, drainage and embankments, water storage and water power” was transferred by Entry 19 of List 2 in the 7th Schedule of the Act of 1935 to the Provincial Government. The executive authority of the provinces were also made co-extensive or co-terminus with its legislative power by virtue of Section 49(2) of the Act of 1935 and subject to the restrictions placed by Sections 130 to 133 of the Act of 1935. The Provincial Government was free to do what it thought fit in respect of water supplies within its province. However, this was subject to the provisions of Sections 130 to 133 under which the Governor General could, on the basis of a complaint by one province against another regarding interference with its water supplies, appoint a Commission to investigate the matter and submit a report on the basis of which the Governor General could pass final orders unless any party to the dispute desired a reference to His Majesty in Council for final order. Such orders made by the Governor General or His Majesty in Council, as the case may be, were binding on the provinces affected thereby unless varied. All these central safeguards indicate that even under the Government of India Acts, 1919 and 1935 no province could take action which would prejudicially affect the interest of another province or its people.
By the Indian Independence Act, 1947, British India came to be divided into two independent dominions of India and Pakistan on and from August 15, 1947. Section 2 defined the territories forming the new dominions. Section 6 conferred on the legislatures of each of the new dominions full power to make laws for that dominion including laws having extra territorial operation. Section 8(2) however, provided that each of the new dominions and all provinces and other parts thereof shall be governed as nearly as may be in accordance with the provisions of the Government of India Act, 1935 unless any provision was made by or in accordance with a law made by the Constituent Assembly of the concerned dominion under Section 8(1). Simultaneously, by Section 3(1) of the India (Provisional Constitution) Order, 1947 as from the appointed day i.e. August 15, 1947, the Government of India Act, 1935 including the provisions thereof which had not come into force before the appointed day were applied to India with the omissions, additions, adaptations and modifications set out in the said Order of 1947 and the schedule thereto. It is in the absence of any other provision made by or in accordance with a law made by the Constituent Assembly that the provisions of the Government of India Act, 1935 (subject to the changes and modifications made by the Order of 1947) applied even after the appointed date. Therefore, between August 15, 1947 and the coming into force of the Indian Constitution on January 26, 1950 the provisions of Sections 130 to 133 of the Government of India Act, 1935 (except for certain incidental changes necessitated on account of the formation of the new dominions) continued to remain in force.
As discussed in the subsequent part of this series captioned “Genesis – 1935-1949”, the exclusion of jurisdiction clause contained in Section 133 of the Government of India Act, 1935 came to be embodied in Article 262(2) of the Constitution of India while by Article 262(1) of the Constitution of India the mechanism for adjudication of disputes and complaints in respect of water and water supplies were to be separately provided by a legislation to be enacted under Article 262(1) of the Constitution of India. This legislation was the Inter-State Water Disputes Act, 1956 which was enacted almost six years after the Constitution of India came into force and which contained provisions similar to Sections 130 to 132 of the Act of 1935.
As in the case of Entry 19 of List-2 of the 7th Schedule of the Act of 1935, similar legislative powers were conferred on States by Entry 17 of List-2 to the 7th Schedule of the Constitution of India subject to the Centre’s powers under Entry 56 in List-1 to the 7th Schedule of the Constitution of India. Thus, by Entry-56 of List-1, the Centre’s powers to legislate remained paramount. Though legislative power was conferred on a State Legislature by Entry-17 of List-2 of the 7th Schedule to the Constitution of India which is of-course co-extensive with its executive authority by virtue of Article 162 of the Constitution of India [as in the case of Section 49(2) of the Government of India Act, 1935] but the power to legislate does not confer ownership rights on a State by treating water flowing through its territory as its property.
The first authoritative pronouncement on rights inter-se States in flowing waters or in the rights of an inter-State river was the report of the Indus Commission dated July 13, 1942. This Commission was set up by a notification dated September 11, 1941 of the Governor General Secretariat under Section 131 of the Government of India Act, 1935 and was thus akin to a Tribunal under the Act of 1956. The Indus Commission was appointed with effect from September 15, 1941 to investigate the complaint of the Government of Sind about their interest in the waters from the river Indus. The Commission comprised of the Hon’ble Mr. Justice B.N. Rau, a Judge of the Calcutta High Court who was appointed Chairman while Mr. P.F.B. Hickey, D.S.O. and retired Chief Engineer-Irrigation Branch, United Provinces and Mr. E.H. Chave, I.S.E., Chief Engineer, Madras were appointed as Members of the Commission.
In the course of dealing with Sind’s complaints and Punjab’s defences to Sind’s complaints, the Commission discussed at great length the rights in flowing waters and the law in India between individual riparian owners as also the law in India in flowing water between Governments of differences provinces and between the Government of a Province and an inhabitant of that province. In this regard, the Commission had framed a preliminary issue (at page 13, Volume-1 of the Report of the Indus Commission) to the following effect:-
“16.Preliminary Issues – As already mentioned, we had to decide during our first session certain preliminary issues. These were:–
1(a) What is the law governing the rights of the several Provinces and States concerned in the present dispute with respect to the waters of the Indus and its tributaries?”
A brief decision on this preliminary issue by which the Indus Commission rejected both the doctrine of absolute sovereignty and the doctrine of riparian rights while dealing with the rights of different Provinces with respect to the waters of the river Indus and its tributaries summarized its decision on this preliminary issue as follows:-
“Decision on Preliminary Issues – After hearing all the interested units, we expressed briefly our views on these issues in the following terms:-
Issue 1(a):- All parties have accepted the general principles which we tentatively formulated on the first day after examining the practice in other parts of the world. It follows from them that the rights of the several units concerned in this dispute must be determined by applying neither the doctrine of sovereignty, nor the doctrine of riparian rights, but the rule of ‘equitable apportionment’, each unit being entitled to a fair share of the waters of the Indus and its tributaries.” [Emphasis supplied] (Indus Commission Report, Volume 1, page 13)
This preliminary decision was based on a detailed discussion from pages 14 to 55, paragraphs 17 to 74 of Volume-1 of the Report of the Indus Commission and concluded that insofar as rights of individuals were concerned, the law in India and England were substantially the same. Three main classes of cases were drawn up, namely, disputes between A and B i.e. individual riparian owners of land abutting the river. The second class of cases was between the Government of a Province and an inhabitant of that Province using the water. The third class of cases related to disputes between the Government of one Province or the Government and inhabitant of another Province through both of which Provinces the river flows.
In this article, we will, as the Indus Commission did, really concern ourselves with the third class, namely, disputes between the Government of one Province and the Government or inhabitant of another Province through both of which Provinces the river in question flows. However, I have also briefly dealt with the first two classes of cases before coming to the third. Insofar as the first class of cases was concerned, the Indus Commission held that the law in India between individual riparian owners was substantially the same as in England (Indus Commission Report, Volume 1, pages 14-16, paras 17 to 20). While arriving at this finding, the Indus Commission referred to some of the leading English cases such as Embrey v. Owen (1851) 6 Ex. 353; Swindon Waterworks Co. v. Wilts and Berks Canal Navigation Co. (1875) L. R. H. L. 697; McCartney v. Londonderry and Lough Swilly Ry. Co. (1904) A.C. 301. The Indus Commission briefly summarized the law in respect of this class of cases as follows:-
“A riparian owner or occupier has an unrestricted right to take and use the water of a stream for ordinary domestic purposes (such as drinking and washing) and for the wants of his cattle. If his use is confined to such purposes, he may exhaust the water altogether without being liable to be sued by a lower riparian owner. Then again, he may use the water for what are sometimes called “extraordinary purposes”, provided that the use is connected with the riparian land and that he returns the water substantially undiminished in volume and unaltered in character: e.g., for irrigation of his own land, but not to sell to others. In speaking of the returning of the water, we have in mind cases where the whole stream is diverted. When only a part of the stream is taken for purposes of irrigation, the only limitation is that the amount taken shall not be so much as to hurt the right of the lower owner to have the stream passed on to him practically undiminished. [Secretary of State v. Subbarayudu, (1931) 59 I.A. 56.]
19. These are “natural rights”: they are incident to the property in the land through which the river passes. If a riparian owner claims a greater right than those naturally incident in this manner to his ownership, he must prove that he has acquired it as an easement.
20. Such is the English law on the subject; but it has been recognized in Stollmeyer v. Trinidad Petroleum Co. (1918) A.C. 485, that in applying it to other countries where physical conditions are very different, regard must be had to those conditions in moulding the remedy to be granted to a riparian owner. Conditions in India, at least in certain parts, being different from those in England, we might have expected that a different law would develop in this country, as it has developed in parts of America and Australia; but so far there does not appear to have been any such development. Illustrations (h) and (j) to section 7 of the Indian Easements Act, 1882, which extends proprio vigore to Madras, the Central Provinces and Coorg, and has been extended to Bombay (including Sind) and the United Provinces, reproduce substantially the English Law. Illustration (h) speaks of “the right of every owner of land that the water of every natural stream which passes by, through, or over his land in a defined natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force or temperature”. Illustration (j) speaks of “the right of every owner of land abutting on a natural stream, lake, or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land and for the purposes of any manufactory situate thereon: Provided that he does not thereby cause material injury to other like owners”. In Debi Pershad Singh v. Joynath Singh (L.R. 24 I.A. 160), a case from what is now Bihar, the Privy Council applied the English common law (1897).”
The Commission then went on to consider the Calcutta High Court decision in Bel Bhadar Pershad Singh v. Sheik Barkat Ali (1906-07) 11 C.W.N. 85, where the American doctrine of appropriation was held inapplicable to India. In conclusion, the Indus Commission insofar as individual rights of riparian owners were concerned, concluded in paragraph 22 as under:-
“22. It would therefore seem that the law in India regarding the rights of riparian owners relative to each other in respect of the waters of rivers and natural streams is substantially the same as the law in England summarized above.”
Insofar as the second class of cases, namely, in the case of a dispute between the Government of a Province and the inhabitant of that Province who is using the water is concerned, the Commission held that where there is a statute on the subject e.g. the then Northern India Canal and Drainage Act, 1873 as applicable to certain parts of Northern India (Punjab, United Provinces, the Central Provinces and the North-West Frontier Provinces), the statute would govern such relations [Paragraphs 23-25, pages 17-25, Volume 1 Report of the Indus Commission]. In the context of Sind, the Commission held that the position was regulated by the Bombay Irrigation Act, 1879 as amended by the Sind Acts VI and XI of 1939 and XV of 1940 which was on the same lines as the Northern India Canal and Drainage Act [See Paragraph 26(c), page 21, Volume 1, Indus Commission Report].
The Commission held that the rights of the Government in running waters being different from those of a private individual was recognized by Section 2(a) of the Indian Easements Act, 1882 which provided that nothing contained in the Indian Easements Act shall be deemed to affect any law not hereby expressly repealed or to derogate from any right of the Crown to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, etc. Therefore, the law as between individual riparian owners as set out in the illustrations to Section 7 of the Indian Easements Act, 1882 would not necessarily apply between a private riparian owner and the Provincial Government. As mentioned earlier, if there was a statute on the subject, then that statute would govern. If there was no statute on the subject, then the position would be regulated by the custom of the locality in question [Refer Indus Commission Report, Volume-1 – page 17, paragraph 23 for the latter proposition, namely, that the custom of the locality would prevail. The Indus Commission relied on Fischer v. the Secretary of State for India, I.L.R. 32 Madras 141 which was cited with approval by the Privy Council in Prasad Row v. the Secretary of State for India, I.L.R. 40 Madras 886].
Thus, insofar as the second classes of cases were concerned, it was held by the Indus Commission that the rights of the Government were wider than those of an ordinary upper riparian owner. As mentioned earlier, in such a case where a statute existed, the rights vis-à-vis the Government of a Province and an inhabitant of that Province would be governed by the said statute. In the absence of a statute, the custom of the locality in question would regulate the rights/relationship.
Thereafter, the Commission (from page 21, paragraph 27) dealt with the third class of cases and the law in India as between the Government of one Province and the Government or inhabitants of another Province insofar as rights in the flowing water of a river were concerned. The Commission after examining the provisions of Entry 19 of List-II as also Sections 49(2) and 130 to 132 of the Government of India Act, 1935, held that:-
“The Act therefore recognizes the principle that no Province can be given an entirely free hand in respect of a common source of water such as an inter-Provincial river. This is in accordance with the trend of international law as well as of the law administered in all Federations with respect to the rights of different States in an inter-State river.” [Refer Paragraph 27, page 21, Volume 1 of the Indus Commission Report].
The Commission examined the international law on the subject as also various treaties. The Commission held that
“29. No Province free to act regardless of injury to other Provinces – It is clear then that under the scheme of the Government of India Act, 1935 – which, as shown above, follows in this respect recent tendencies in other parts of the world – a Province cannot claim to do whatever it likes with the water of a river regardless of the injury which it might inflict on other Provinces or States lower down.” [Refer Paragraph 29, page 23, Volume 1 of the Indus Commission Report]
The Commission then framed for itself the question as to when it can be said that a State have overstepped its limits in the following words:-
“30. Limits of permissible action – What then can it legitimately claim to do? And when can we say that it oversteps the limits of permissible action? Until we have found some law or principle which would furnish an answer to these questions, we cannot determine the extent, if any, to which any proposed action “prejudicially affects” the interests of a neighbouring Province or State; nor can we recommend to what extent that action should be permitted or restrained.” [Paragraph 30, page 23, Volume 1, Indus Commission Report].
In the first instance, it held that where there was an agreement, the agreement itself determine the limits and any transgression of this agreement would make the transgression actionable [Paragraph 31(1), page 23, Volume 1, the Indus Commission Report]. Though the existence of a treaty always simplifies a Court’s task but the Commission posed for itself the question as to how mutual rights of two Provinces would be asserted in the absence of any agreement or treaty and how would the rights or legitimate interests be best decided [Paragraph 44, page 31, Volume 1, Report of the Indus Commission]. In answering this question, the Commission turned to American precedents and the doctrine of sovereignty which it rejected [Paragraphs 48-49, pages 32-33 Volume 1, Report of the Indus Commission]. It also refused to apply the common law principle of individual riparian owners [Paragraph 50, page 33, Volume-I, the Indus Commission Report]. Instead, the Commission chose to follow the principle of equitable apportionment in the following words:-
“51. A third principle that has been advocated is that of “equitable apportionment”, that is to say, that every riparian State is entitled to a fair share of the waters of an inter-State river. What is a fair share must depend on the circumstances of each case; but the river is for the common benefit of the whole community through whose territories it flows, even though those territories may be divided by political frontiers.”
It then went on to deal with various American cases dealing with the principle of equitable apportionment [Paragraphs 50-63, pages 33-47, Volume 1 of the Indus Commission Report] as also European precedents in favour of the rule of equitable apportionment [Paragraphs 64-66, pages 47-50, Volume 1 of the Indus Commission Report]. The Commission then dealt with certain circumstances which have to be borne in mind while applying these principles in India [Paragraph 67, page 50, Volume 1 of the Indus Commission Report]. Importantly, it held that appropriations in each Province had to receive the sanction of the Government of India or the Secretary of State before they could be made and such appropriation sanctioned by the Centre must be presumed to be reasonable since it would not have been sanctioned if it had been excessive [Paragraph 67, page 50, Volume 1 of the Indus Commission Report].
I would like to go a step further while applying the principle of equitable apportionment in India in respect of inter-State rivers or river valleys are concerned. The waters of a river are for the common benefit of the country as a whole and not necessarily for the community through whose territories it flows because these territories are fenced only by political boundaries which can be changed by the Government of India at any time under Articles 2 and 3 of the Constitution of India. Therefore, the right to a share in the waters of any inter-State river of any State should not be dependent on whether the river actually flows through that State at a particular point of time or not but whether in national interest that political entity is entitled to some share in the waters of some inter-State river. It is for this reason that though the rivers Ravi or Beas do not flow through or near Delhi, Delhi still has a share of 0.2 MAF in Ravi Beas waters inter-alia under the Statutory Agreement of 1981.
This law relating to the rights inter-se States/Provinces in inter-State rivers in India was followed by the Narmada Water Disputes Tribunal in Volume-1 of its report dated August 16, 1978 in Chapter-VIII, pages 105-106. While laying down the law relating to equitable apportionment of the waters of inter-State rivers in India, the Narmada Water Disputes Tribunal dealt with the doctrine of absolute territorial sovereignty also known as the ‘Harmon Doctrine’ but which was later expressly disclaimed as a principle of municipal law in 1922 by the United States Supreme Court in Wyoming v. Colorado, 259 U.S. 419, 466 (1922). The Tribunal noted that this doctrine had also been rejected by Professor Smith in “the Economic Uses of International Rivers 144-45 (1931)” in the following words:-
“The doctrine of absolute supremecy of the territorial sovereign is essentially anarchic ….. permitting every State to inflict irreparable injury upon its neighbours without being amenable to any control save the threat of war.”
The Narmada Tribunal also dealt with the English common law principle of riparian rights but finally chose to apply the doctrine of equitable apportionment as in the case of the Indus Commission. The Narmada Tribunal also recognized the Central sovereignty in respect of waters of an inter-State river as also the fact that under the scheme of the Government of India Act, 1935 and the Constitution of India it was not open to a State Government to take legislative or executive action in respect of an inter-State river which would prejudicially affect the rights of other States in the waters of the same inter-State river [Refer page 108, para 8.2.9, Volume-1 of the Report of the Narmada Water Disputes Tribunal].
To similar effect are the findings of the Ravi & Beas Waters Tribunal which in its Report dated January 30, 1987 has extensively dealt with proprietary/ownership rights in river waters under this very heading in Chapter-XII from pages 77-109. This issue arose because Punjab contended that the waters of the rivers Ravi and Beas belong absolutely to Punjab and neither Haryana nor Rajasthan could have any claims to these waters [Refer page 78 of the Ravi & Beas Waters Tribunal’s Report]. The Ravi & Beas Tribunal first found that Haryana and Rajasthan were basin States and fell within the Indus basin [Refer pages 6, 7, 8, 9, 32, 33, 56, 62 of the Ravi & Beas Waters Tribunal’s Report]. The Tribunal then proceeded to examine Punjab’s contention regarding its ownership in the waters of the rivers Ravi & Beas.
The Ravi & Beas Waters Tribunal went into the background of the Indian Constitution and the partial autonomy granted to the Provinces for the first time by making irrigation a provincial but reserved subject under Item No.7, Part-2, Schedule of the Government of India Act, 1919. Subsequently, the enactment of Entry 19, List-II of the 7th Schedule to the Government of India Act, 1935 (which later emerged as Entry 17 of List-II of the 7th Schedule to the Constitution of India subject to Entry 56 of List-1 of the 7th Schedule to the Constitution of India). The Tribunal noted that there was no entry similar to Entry 56 List-1 of the 7th Schedule to the Constitution of India in the Government of India Act conferring power on the Central Government in the matter of regulating and development of inter-State rivers and river valleys.
In this background the Tribunal examined the question as to whether the power conferred by Entry 17 of List-II on the State Legislature was so wide that it could be equated to conferment of ownership rights in river waters to the concerned State. Agreeing with the Report of the Narmada Waters Disputes Tribunal (which I have referred to earlier), the Ravi Beas Tribunal decided this question as follows:-
“We are in respectful agreement with the above enunciation of law and we do not think we can usefully add to the same. The effect of Entry 17 in List II is only to confer legislative power on the State regarding the use of the waters within its territory. In view of the above discussion, we are of the view that Punjab’s contention that it owns the waters of the two rivers, the Ravi and the Beas, in their entirety is unsustainable.”
Thus, the law in India as to the rights of States in the running or flowing waters of the inter-State rivers are as follows:-
(i). As a matter of law, no State has a proprietorial right in a particular volume of water of an inter-State river either on the basis of its contribution to the available flow or drainage area or at all. It is well established that the waters of a natural stream or other natural body of water are not susceptible of absolute ownership as specific intangible property [Report of the Narmada Water Disputes Tribunal, Volume-1, page 114, para 8.8.1].
(ii). A State Government can take legislative or executive action under Entry 15 of List-II of the 7th Schedule to the Constitution of India as long as it does not prejudicially affect the rights of other States in the waters of the same inter-State river [Report of the Narmada Water Disputes Tribunal, Volume-1, page 108, para 8.2.9].
(iii). It is not open to a State to take legislative or execution action in respect of an inter-State river which would prejudicially affect the rights of other States in the waters of the same inter-State river [Report of the Narmada Water Disputes Tribunal, Volume-1, page 108, para 8.2.9].
(iv). A law covering the rights of States in respect of waters of inter-State rivers under the Constitution of India is almost identical to the law under the provisions of the Government of India Act, 1935 [Report of the Narmada Water Disputes Tribunal, Volume-1, page 108, para 8.2.9].
(v). Article 262 recognises the principle that no State can be permitted to use the waters of an inter-State river so as to cause prejudice to the interests of another riparian State or of a State in the river valley or the inhabitants thereof [Report of the Narmada Water Disputes Tribunal, Volume-1, page 108, para 8.2.9].
(vi). The Ravi & Beas Waters Tribunal takes the proposition further by observing that rights of States are not determined by their political boundaries since Articles 2 and 3 empower Parliament to form new States by separating territories or by uniting two or more States. Thus, in India Central power is paramount. Therefore, rights of States cannot be determined by reference to only political boundaries [Report of the Ravi & Beas Waters Tribunal, page 99].
(vii). Indian and American law would therefore differ since the American States were independent sovereign States who together decided to form a federation unlike India (which is a quasi-federation) where the States were not independent sovereign units. Consequently, the inter-se rights of States in the federation known as the United States of America insofar as river waters are concerned would be a little different from that of India and American decisions should not be blindly followed [Report of the Ravi & Beas Waters Tribunal pages 99 & 106].
(viii). Even under the Government of India Act, 1935, no Province had an entirely free hand in respect of a common source of water such as an inter-provincial river [Report of the Indus Commission, Volume-1, page 21, para 26]. and no province can claim to do whatever it liked with the waters of a river regardless of the injury which it might inflict on other provinces or States lower down [Report of the Indus Commission, Volume-1, page 23, para 29].
(ix). The best test to define the limits of permissible executive or legislative action of a State is where there is a prior agreement [Report of the Indus Commission, Volume-1, page 23, paras 30, 31. Also see Report of the Narmada Water Disputes Tribunal, Volume-1, page 108, para 8.3.1].
(x). Where there is no such agreement, however, the rights and legitimate interests should be ascertained by the principles of equitable apportionment [Report of the Indus Commission, Volume-1, page 33, para 51. Also see Report of the Narmada Water Disputes Tribunal, Volume-1, page 108, para 8.3.1].
(xi). Power to legislate ought not to be confused with ownership or proprietary rights and no State has any proprietary rights in river waters [Report of the Ravi & Beas Waters Tribunal, pages 93-94].
(xii). However, the rule of equitable apportionment should be modified in its application in India [Report of the Ravi & Beas Waters Tribunal, pages 93-94].
KNOWN WORKS ON THE INTER-STATE [RIVER] WATERS DISPUTES ACT, 1956 IN INDIA, IN CHRONOLOGICAL ORDER, INCLUDE –
Development of Interstate rivers – law and practice in India by N.D. Gulhati (first published in 1972);
The Indus Waters Treaty – an exercise in international mediation by N.D. Gulhati (first published in 1973);
Settlement of International Water Law Disputes in international drainage basins by Prof. (Dr.) B.R. Chauhan (1981);
Water rights and principles of Water resources Management by Chattrapati Singh published by the Indian Law Institute (1991);
Water laws in India edited by Chattrapati Singh (containing a collection of papers by various authors on water rights in India and published by the Indian Law Institute in 1992);
Settlement of International and interstate waters dispute in India by Dr. B.R. Chauhan (published by the Indian Law Institute in 1992);
Law relating to Water Rights by V. Sitarama Rao, Advocate (1996); Volume 31 A.I.R. Manual (5th Edition, 1989);
Halsbury’s Laws of India Vol.29(2) 2000 Edition, etc.
K.K.LAHIRI is an Advocate based at Delhi.