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Wednesday, August 09, 2017

Inter-State Water Disputes in India

Thanks to everyone at PrawfsBlawg for having me back. I am currently working on a project comparing how nations with federal systems govern waters crossing sub-national jurisdictional boundaries, and what lessons international transboundary water law can draw from these domestic approaches.  It's been a particularly interesting summer for inter-state water issues in India.

India's Constitution creates a federal structure that divides legislative powers between the national parliament and 29 state legislatures. Water policy is largely delegated to the state legislatures and institutions, with the exception of inter-state water issues. Under Article 262(1) of India's Constitution, the national parliament may enact laws for the adjudication of inter-state disputes over shared waters. In 1956, Parliament enacted the Inter-State Water Dispute Act. This act allows an individual state to request the formation of a special tribunal to adjudicate a claim that a neighboring state's action, or failure to act, has adversely impacted the complaining state's water supply. Upon such a request, the national government establishes an ad hoc tribunal for that specific case, consisting of a chairman and two members nominated by the chief justice of the Supreme Court.

Just a few days ago, an inter-state water tribunal was convened under the 1956 Inter-State Water Dispute Act to adjudicate claims made over the Mahanadi River, shared between the states of Odisha and Chhattisgarh. Odisha has sought the formation of the ad hoc tribunal based on a claim that Chhattisgarh's construction of dams and weirs on the river has impacted flow on the Mahanadi. There is something to be said for India's approach to resolving inter-state water disputes. India's ad hoc tribunals tend to have comparatively greater expertise in water law and management than they typical district court in India. However, so far these tribunals have struggled with reaching decisions in a timely manner and enforcing judgments. Tribunals deciding inter-state disputes on the Cauvery and Ravi Beas rivers have been convened now for over 25 years without having yet reached a decision.

In its last session this summer, the national Parliament introduced the Inter-State River Water Disputes Bill. This bill proposes of permanent tribunal made of eight members, with each dispute referred to a three-member panel. Unlike the current law, the tribunal will have less than six years to decide each case. The bill could be a major improvement over the current law by retaining the institutional competence of a specialized water court, but expediting its decision-making process. However, the bill does not appear to solve the issue of enforceability.

While inter-state water disputes in the U.S. are fairly common and the adjudication of these disputes fraught with challenges and complexities, lack of enforcement has not typically been a problem. One reason perhaps is that U.S. federal agencies (particularly in the arid west where inter-state disputes are more common) generally finance, build, and operate the large dams and reservoirs on inter-state rivers, and usually have permitting jurisdiction over such dams under Section 404 of the Clean Water Act as well as the Federal Energy Regulatory Commission's permitting of large hydroelectric dams. This provides a mechanism for the federal government to enforce water sharing decisions, legislation, or agreements - as can be seen with the role of the Department of the Interior enforcing shortage sharing in the lower Colorado River basin based on the level of Lake Mead. Perhaps India's 2017 bill on inter-state river disputes should be coupled with a stronger national role in financing, building, permitting, and managing water infrastructure on inter-state rivers to enhance the enforceability of national tribunal judgments in inter-state water disputes.

Posted by Rhett Larson on August 9, 2017 at 01:54 PM | Permalink

Comments

Thanks for this, Rhett. It's not often that I think the answer to a governance problem in India might be more centralization but you've laid out a compelling argument.

I think I'd still worry about a couple of things, though:

First, regardless of who's in power at the center (and right now that's about as big a qualification in India as it is in the United States) I'd worry about handing more enforcement authority to the central government. As you know, federalism entails a very different balance of powers in India that largely favors the center (not least because it has residuary powers over issues not enumerated in the Constitution). The specter of a menacing national government is probably always lurking behind federal systems, but that fear has sometimes been spectacularly justified in India given that the center has more than once dissolved recalcitrant state governments.

If we add the current political climate back into the analysis, I'd be sincerely worried about the center favoring, say, BJP-led Chhattisgarh over BJD-led Odisha. Experiences with other national agency/tribunal type actors (I'm thinking of the film censor board) suggest that there might be very little air between ostensibly neutral national bodies and BJP political priorities.

Second, although I know very little about this, I wonder whether water rights might be a uniquely sensitive area as far as center-state dynamics are concerned? Agriculture is still the broadest economic sector in India and has an outsize cultural relevance -- the Cauvery water debate, for instance, has been a part of Tamilian state/identity politics for almost my whole life! I'm not sure I'm convinced by my own worry on this point, but it’s there.

Posted by: Deepa Das Acevedo | Aug 9, 2017 3:06:36 PM

Thanks so much, Deepa. This is very helpful context on federal-state politics in India. I'm not convinced that the answer to avoiding or resolving inter-state water disputes in India is more centralization. But I'm intrigued by the recent developments there.

And water is uniquely sensitive (that's one of the things that makes water law so fascinating). People feel differently about their rivers and lakes than they do about their crops or oil when it comes to regional politics, economics, and identity. The prominence of the Euphrates in Kurdish identity comes to mind, but there are many examples. Enhancing the role of the national government in water policy has a tendency to place water management in the hands of decisionmakers attenuated from, and less familiar with, the unique regional cultural and hydrologic conditions of rivers. Part of the impetus in the U.S. to pursue inter-state compacts as the means of resolving transboundary water disputes is the desire to regionalize water management and avoid placing the fate of the river in the hands of Congress or the Supreme Court rather than local water users. The role of the federal government in the Colorado River basin makes the Supreme Court's allocation decisions easier to enforce, and places a sword of Damocles over inter-state negotiations on drought contingencies (knowing that if negotiations fail, the Department of the Interior will simply make the decision for the states). But the system has also proven to be insufficiently adaptive, perhaps in part because of the attenuated nature of the national government's relationship with the river.

My guess is that greater investment by the national government of India in water infrastructure will enhance the enforceability of tribunal decisions, but that enforceability will come at a cost. And perhaps this new bill is a move to make those tradeoffs of more centralization for greater enforceability and efficiency. There may be ways to mitigate those costs - by, for example, ensuring that tribunal panel membership is representative of local water users and the co-riparian states. Or perhaps basin-level inter-state governance institutions strike a more appropriate balance between local and national control in Indian hydropolitics than a standing national water tribunal. But even this approach is problematic if state governments see such agreements as relinquishing sovereignty to the inter-state institution. Many inter-state river commissions in the U.S. are purposefully weak and underfunded to avoid the risk that the institution may usurp state sovereignty over rivers, or that the institution will be coopted by the basin's hydro-hegemon.

Posted by: Rhett Larson | Aug 9, 2017 9:09:32 PM

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