Krishna Water Dispute

Context:

Recently, two judges of the Supreme Court have recused themselves from hearing a matter related to the distribution of Krishna water dispute between Andhra Pradesh, Telangana, Maharashtra and Karnataka.

Introduction:

The river Krishna emerging from the western Ghat of Shambhu Mahadeva Range of Mahableshwar in Maharashtra flows through the states of Maharashtra, Karnataka and Andhra Pradesh, ultimately, merges into the Bay of Bengal. 

A dispute amongst these riparian States namely, Maharashtra, Karnataka and Andhra Pradesh (erstwhile States of Mysore and Hyderabad, respectively) had arisen earlier also. A Tribunal was constituted for adjudication of the dispute. The States of Madhya Pradesh and Orissa were also parties to the dispute initially, but later these two states were discharged, as agreed to by all the parties. 

The major issues of Krishna Water Dispute

Broadly, four main issues were problematic with regard to the MoA. They are as follows-

1. The first issue, regarding the 1951 MoA was that it should have been in the form which was prescribed in Article 299 of the Indian Constitution and whether states ratification was necessary.
2. Secondly, the issue of reduced water supply to the lower riparian states because of the excessive westward diversion of waters by the state of Maharashtra.
3. Thirdly, the objection raised by the state of Andhra Pradesh regarding the proposal of the upper riparian states to construct reservoirs, which would result in the restriction of its flow in the months of May and June. But the Right of Andhra Pradesh was in itself a question.
4. Fourthly and finally, in excess of the legitimate share of Andhra Pradesh, other states claim Andhra Pradesh wanted to store more water in Nagarjunasagar.

Even though a do novo reconsideration of the issue was being lobbied by the states, the objection was raised by Andhra Pradesh for any alteration in the MoA before the time which was stipulated. In May 1961 under the union ministry of irrigation and power, The Krishna-Godavari commission was set up but it was unable to provide a clear solution. The transfer of the dispute to the tribunal as a result of the request received from the state of Andhra Pradesh led the government of India to transfer the two disputes to the two tribunals which separated the Godavari and Krishna Dispute. When negotiations failed, on April 10, 1969, the “Krishna Water Dispute Tribunal” was set up. The tribunal was presided over by the then sitting Judge of the Supreme Court, ‘Justice R.S. Bachawat’. The Award was given in 1973. One of the observations of the tribunals was that despite the fact that there was an oral agreement which was concluded in 1951 with regard to the allocation of the Krishna water, because of Karnataka’s want of ratification, there was no agreement that was legally binding.

Relying on the case of Jainarain Ram Lundia v. Surajmall Sagarmall the tribunal had arrived at a conclusion that no perfect contract was possible without the agreement and without a clear understanding of what the other side of the party wants and needs to be a party to the agreement. On the grounds of equity, if a case is made for enforceability, the part which is non-consenting has to prove and show that it would result in substantial injustice.

In its report the tribunal offered two schemes: Scheme A, on the day of publication in the gazette, came into effect which dealt with the allocation which was based on the 75% dependability, In scheme B different ways were recommended to share the water which was surplus, after the publication the award became binding on Karnataka, Andhra Pradesh and Maharashtra. It provided that 2060 Tmcft was the total quantum of water which was available, out of which Karnataka was awarded 700 Tmcft, Andhra Pradesh was awarded 800 TMC and Maharashtra was awarded 560 TMC. This award was up for review in the year 2000, which led to a race among the different riparian states in order to complete their ongoing projects on the Krishna river, The result was further the problems on building the Srisailam Dam, Nagarjunasagar Dam, Almatti Dam, Tungabhadra Dam.

Upon the request by all the three states, in April 2004 the second Krishna water disputes tribunal headed by retired Judge of SC, Brijesh Kumar was constituted. The KWDT-II award was based on 65% dependability Andhra Pradesh received 1001 TMC, Karnataka received 907 TMC, Maharashtra received 666 TMC. This award was to be reviewed after the year 2050. Maharashtra and Andhra Pradesh dissented even though Karnataka was pleased with it, Andhra Pradesh filed a special leave petition in the Supreme Court, after which it was re-checked for the violations to the 1956 Act of Inter-state River Water Disputes.

In State of A.P. v. State of Karnataka, the Supreme Court has considered the questions such as whether the Supreme Court adjudicates upon the implementation of the award by the tribunal. Can the Supreme Court interpret the award of the tribunal? Can Karnataka be directed to stop construction and stop raising the height of the dam? Though respondents raised the objection regarding the jurisdiction of the Supreme Court it held that the Court is not looking into the matter of water dispute but deciding upon the validity of the award of the tribunal.

The Tribunal itself made it clear that scheme A is the award and Scheme B is not part of the award and is a mere recommendation made to the Central Government. Therefore, there is no requirement to publish scheme B. On questions of construction of Almatti dam and raising of height, the court said that the award of the tribunal is clear and for any further clarifications parties can go to the tribunal as it is not dissolved. 

The Supreme Court can interpret the decision of the tribunal but cannot adjudicate upon that matter and therefore directed the parties to go to tribunal for the same. But on the above issue, there is no bar upon the jurisdiction of the Supreme Court.

Krishna Water Disputes Tribunal:

• In 1969, the Krishna Water Disputes Tribunal (KWDT) was set up under the Inter-State River Water Dispute Act, 1956, and presented its report in 1973.
• At the same time, it was stipulated that the KWDT order may be reviewed or revised by a competent authority or tribunal any time after 31st May, 2000.
• Second KWDT
  • The second KWDT was instituted in 2004. It delivered its report in 2010, which made allocations of the Krishna water at 65 % dependability and for surplus flows as follows: 81 TMC for Maharashtra, 177 TMC for Karnataka, and 190 TMC for Andhra Pradesh.
• After the KWDT’s 2010 report:
  • Andhra Pradesh challenged it through a Special Leave Petition before the Supreme Court in 2011.
  • In 2013, the KWDT issued a ‘further report’, which was again challenged by Andhra Pradesh in the Supreme Court in 2014.
• Creation of Telangana:
  • After the creation of Telangana, Andhra Pradesh has asked that Telangana be included as a separate party at the KWDT and that the allocation of Krishna waters be reworked among four states, instead of three.
    • It is relying on Section 89 of The Andhra Pradesh State Reorganisation Act, 2014.
    • For the purposes of this section, it is clarified that the project-specific awards already made by the Tribunal on or before the appointed day shall be binding on the successor States.

Maharashtra and Karnataka are now resisting this move. On September 3, the two states said: “Telangana was created following bifurcation of Andhra Pradesh. Therefore, allocation of water should be from Andhra Pradesh’s share which was approved by the tribunal.” (Indian Express)

Constitutional Provisions for Inter-State water disputes:

• Article 262 of the Constitution provides for the adjudication of inter-state water disputes.
  • Under this, Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution and control of waters of any inter-state river and river valley.
• The Parliament has enacted the two laws, the River Boards Act (1956) and the Inter-State Water Disputes Act (1956).
  • The River Boards Act provides for the establishment of river boards by the Central government for the regulation and development of inter-state river and river valleys.
  • The Inter-State Water Disputes Act empowers the Central government to set up an ad hoc tribunal for the adjudication of a dispute between two or more states in relation to the waters of an inter-state river or river valley.
    • Neither the Supreme Court nor any other court is to have jurisdiction in respect of any water dispute which may be referred to such a tribunal under this Act.

Way Forward

• The water disputes can be solved or balanced only by having a permanent tribunal established with appellate jurisdiction of the Supreme Court established over the tribunal’s decision.
• The immediate target of any Constitutional Government should be amendment to Article 262 and amendment to Inter-State Water Disputes Act and its implementation at the equal note.
• It is time that we all should rethink our strategy about water management, not just within states, but at the national level keeping the water scenario in the next 30 years.
• The channels of communication need to be improved desperately, in order to gain a consensus.
• The mechanism must improve in a manner that the body created by the Centre must adequately represent the states to protect their interests.

Other water disputes: 

1. Godavari water dispute between states of Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh, Orissa.
2. Narmada water dispute between states of Rajasthan, Madhya Pradesh, Gujarat, Maharashtra.
3. Cauvery water dispute between states of Karnataka, Kerala, Tamil Nadu, and Union Territory of Pondicherry.
4. Mahadayi / Mandovi water dispute between states of Goa, Karnataka and Maharashtra.
5. Vansadhara water dispute between states of Andhra Pradesh, Orissa.

Source: The Hindu

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