NATIONAL LAW UNIVERSITY ODISHA

UNDER THE GUIDANCE OF:

DR. ANANYA CHAKRABORTY

ASST. PROF. OF LAW

WATER DISPUTE AND HUMAN RIGHTS

SUBMITTED BY:

ABHISHEK PRAJAPATI 2013/BALLB/003

Human rights are rights inherent to all human beings, regardless of race, sex, nationality,
ethnicity, language, religion, or any other status. Human rights include the right to life and
liberty, freedom from slavery and torture, freedom of opinion and expression, the right to
work and education, and many more. Everyone is entitled to these rights, without
discrimination1.

International human rights law

International human rights law lays down the obligations of Governments to act in certain
ways or to refrain from certain acts, in order to promote and protect human rights and
fundamental freedoms of individuals or groups.

Human rights to water

The Human Right to Water and Sanitation (HRWS) was recognised as a human right by
the United Nations General Assembly on 28 July 2010.2

Water and its law

Water, which has been claimed by states and people, has many different meanings, depending
on the context. Water can be defined in terms of quality, quantity, affordability, access,
location, and usage. While the clear delineation of each international legal discipline is
difficult due to the increase in multidisciplinary research,3 different international legal
regimes either domestically or internationally may be relevant, depending on what definitions
water researchers select. While the sea is regulated by the Law of the Sea, surface water and

1
Un.org. (2019). Human Rights. [online] Available at: https://www.un.org/en/sections/issues-depth/human-
rights/ [Accessed 9 Sep. 2019].
2
Un.org. (2019). Human Rights. [online] Available at: https://www.un.org/en/sections/issues-depth/human-
rights/ [Accessed 9 Sep. 2019].
3
Northeastern.edu. (2019). [online] Available at:https://www.northeastern.edu/law/pdfs/academics/phrge/right-
to-water.pdf [Accessed 9 Sep. 2019].
ground water are regulated by the Law of International Watercourses.4 The sustainable
maintenance of water quality for future generations is primarily regulated by international
environmental law. Humans, either individually or collectively, claim their right to water
against states and other entities, including multinational corporations, under the human rights
legal regime. Traditionally, states asserted rights to non-navigational and navigational use of
water, encompassing both quality and quantity of water. International civil society,
represented by the International Law Association and the U.N. International Law
Commission, has made efforts to create legal regimes for the use of water by states since the
late1960s. Specifically, the International Law Commission completed a project to develop
principles for non-navigational uses of international watercourses in 1994; the 6th Committee
working group finished drafting articles on the topic in 1997, and then the UN General
Assembly adopted the Convention on the Law of Non-Navigational Uses of International
Watercourses in May 1997. This treaty covers non-navigational uses of international water
courses, such as surface water and ground water, and includes measures to protect, preserve,
and manage them. In this arena, states claim their rights vis-à-vis other states. The treaty
emphasizes the equitable and reasonable utilization of an international watercourse,20 the
obligation not to cause significant harm, and the obligation for states sharing a given
watercourse to cooperate5.

The Case Studies of recent Inter-State River Water Disputes in India

1) Cauvery Water Dispute

 In 1892, there was an agreement between the princely state of Mysore and British
province of Madras.
 In 1924, a new agreement for 50 years i.e till 1974.

4
Northeastern.edu. (2019). [online] Available at:https://www.northeastern.edu/law/pdfs/academics/phrge/right-
to-water.pdf [Accessed 9 Sep. 2019].
5
Northeastern.edu. (2019). [online] Available at:https://www.northeastern.edu/law/pdfs/academics/phrge/right-
to-water.pdf [Accessed 9 Sep. 2019].
  In 1970, Tamil Nadu Government approached to Central Government to constitute the
tribunal and also in the same year Tamil Nadu Farmers Association filed a civil suit in
Supreme Court.
 In 1986, Tamil Nadu again made a formal request to constitute the tribunal.
 In 1990, the tribunal was set up on the directions of Supreme Court.6

 The Cauvery Water Disputes Tribunal passed an Interim order in 1991 directing
the State of Karnataka to release Water from its reservoirs in Karnataka so as to ensure
205 Thousand Million Cubic Feet (TMC) of water into Mettur reservoir of Tamil
Nadu in a water year (1st June to 31st May) with monthly and weekly stipulations.
Karnataka government refused to obey the interim award.
 After 16 years of hearing and an interim order, the Tribunal announced its final order
in 2007 allocating 419 TMC ft water to Tamil Nadu and 270 TMC ft to Karnataka.
Kerala was given 30 TMC ft and Puducherry got 7 TMC ft. Both Karnataka and Tamil
Nadu filed review petitions in Supreme Court.
 Karnataka has not accepted the order and refused to release the water to Tamil Nadu.
In 2013, Contempt of Court was issued against Karnataka.
 In 2016, a petition was filed in Supreme Court to seeking the release of water by
Karnataka as per the guidelines of the tribunal. When Supreme Court ordered
Karnataka to release water, Kannada people protested the decision saying they do not
have enough water.
 The matter is still sub judice (under judicial consideration).

2) Satluj Yamuna Link Canal Issue

 The issue links to the dispute between Punjab and Haryana after the formation of the
Haryana in 1966. The parties involved are Punjab, Haryana, and Rajasthan.
 To enable Haryana to use its share of the waters of the Sutlej and Beas, a canal linking
the Sutlej with the Yamuna was planned and in 1982 its construction was started.
 Due to the protest by Punjab, the tribunal was set up in 1986 which gave an award in
1987 recommending Punjab’s share as 5 Million Acre Feet (MAF) of water and
Haryana’s as 3.83 MAF.

6
Un.org. (2019). Human Rights. [online] Available at: https://www.un.org/en/sections/issues-depth/human-
rights/ [Accessed 9 Sep. 2019].
  Punjab contested the award and held that the tribunal overestimated the availability of
the water. Haryana approached Supreme Court for the construction of the SYL canal
in 2002. Supreme Court directed Punjab to complete the construction of canal within
12 months.
 In July 2004, Punjab Assembly passed Punjab Termination of Agreements Act
scrapping water-sharing agreements with other states and thus jeopardising the
construction of the canal. This Act has been declared unconstitutional by the Supreme
Court in 2016 under President Advice (Article 143). In response, Punjab Assembly
passed the Act according to which the land acquired for the canal would be de notified
and returned to the original owners.
 Supreme Court has directed both Punjab and Haryana to maintain status quo in
the Sutlej Yamuna Link canal controversy.
 In the recent hearing, Centre has offered as a mediator to both Punjab and Haryana.7

Laws related to Inter-State water dispute in India

All the major river basins and some among the medium river basins are of inter-state nature.
As the development of projects by one State on an inter-state river may affect the interests of
other basin States, inter-state differences arise with regard to use, distribution and control of
waters of inter-state river basins.

Constitutional Provisions and Central Water Laws

Article 246 of the Constitution deals with the subject matter of laws to be made by the
Parliament and by the Legislatures of the States.The allocation of responsibilities between the
Centre and the States in respects of laws to be made fall into three categories –

i. The Union List (List – I)

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Un.org. (2019). Human Rights. [online] Available at: https://www.un.org/en/sections/issues-depth/human-
rights/ [Accessed 9 Sep. 2019].
Subject of ‘water’ is a matter at Entry 17 of List –II, i.e. State List. This Entry is subject to
the provisions of Entry 56 of List –I, the Union List.8 The specific provisions in this regard
are as under:

List - I Union List

"56. Regulation and development of inter-State rivers and river valleys to the extent to which
such regulation and development under the control of the Union is declared by Parliament by
law to be expedient in the public interest."

List - II State List

"17. Water that is to say, water supplies, irrigation and canals, drainage and embankments,
water storage and water power subject to the provisions of Entry 56 of List - I."

Article 262 of the Constitution deals with adjudication of water disputes. The provisions in
this regard are:

Article 262 (1)

"Parliament may, by law, provide for the adjudication of any dispute or complaint with
respect to the use, distribution or control of the waters of, or in, any inter-State river or river
valley."

Article 262 (2)

"Notwithstanding anything in this Constitution, Parliament may, by law, provide that neither
the Supreme Court nor any other court shall exercise jurisdiction in respect of any such
dispute or complaint as is referred to in clause (1)."

Four Acts, three under Entry 56 of List –I namely, the “River Boards Act 1956”, “Betwa
River Board Act 1976” and “Brahmaputra Board Act 1980” and the fourth one under Article

8
Northeastern.edu. (2019). [online] Available at: https://www.northeastern.edu/law/pdfs/academics/phrge/right-
to-water.pdf [Accessed 9 Sep. 2019].
262, namely, the “Inter-State River Water Disputes Act, 1956” are the legislations so far
enacted by the Indian Parliament under the above Constitutional provisions.

Efforts are always made to resolve the dispute through mutual discussions and negotiations
between the party States. Such a settlement is most preferred since it fosters a spirit of
involvement for the party States concerned. As a result of such negotiations, a number of
inter-State agreements have been reached so far (Substantive number of these agreements
reached before and after independence have become obsolete/superseded by fresh
agreements/decision of Tribunals)9.

Inter-State Water Disputes Tribunals

Nine Inter-State River Water Disputes Tribunals were constituted under the Act till date. At
present decisions of the Krishna-I, Godavari, Narmada and Cauvery Water Disputes
Tribunals are published in the official gazette and are effective and binding on parties to the
disputes under the provisions of Inter-State River Water Disputes Act, 1956. The decision of
KWDT-II is not yet effective as the same has not been notified in the Official Gazette10.

Conclusion

The human right to water approach, however, looks at water from a different angle. Instead of
focusing on the use of water by states vis-à-vis other states, the human right to water focuses
on the use of water by natural persons, either individually or collectively. The effective
implementation of the human right to water will provide natural persons with their right to
water in terms of quality, quantity, affordability, and access. This is explained in the
definition provided by the Committee on Economic, Social, and Cultural Rights, which
defines the human right to water as a right to “sufficient, safe, acceptable, physically
accessible and affordable water.” Both quantity and quality of affordable water are directly
connected to safe drinking water and sanitation, and, ultimately, linked to the health and life

9
Northeastern.edu. (2019). [online] Available at: https://www.northeastern.edu/law/pdfs/academics/phrge/right-
to-water.pdf [Accessed 9 Sep. 2019].
10
Northeastern.edu. (2019). [online] Available at:
https://www.northeastern.edu/law/pdfs/academics/phrge/right-to-water.pdf [Accessed 9 Sep. 2019].
of people. Low cost or free access to water for certain vulnerable sectors of the population is
also critical to the health and welfare of those vulnerable populations.

They narrowly target vulnerable populations, including infants and young children, persons
with disabilities, and the elderly. The safety and quality of drinking water is affected by
microbial, chemical, and radiological aspects in many specific circumstances, including
climate change, rainwater harvesting, vended water, bulk water supply, desalination systems,
dual piped water supply systems, disasters, buildings, health-care facilities, aircraft, airports
and ships, packaged drinking water, and food production and processing.

India has 2.4% of the World’s land, 18% of the world population but only 4% of the
renewable water resource. If sufficient steps are not taken, the uneven water distribution will
increase the possibility of water conflicts.11

Inter-state river water disputes hinder the cooperative federalism of our nation and provide
parochial mindset making regional issues superior to national issues. One should realise that
our nation is a family in which all states are its members.

So disputes must be resolved by dialogue and talks and the political opportunism must be
avoided. The issue can be resolved by discussing the dispute in Inter-State Council which can
be beneficial in providing a platform for the talks. Such disputes must be resolved as early as
possible to ensure greater cooperation between the states.

11
Northeastern.edu. (2019). [online] Available at:https://www.northeastern.edu/law/pdfs/academics/phrge/right-
to-water.pdf [Accessed 9 Sep. 2019].