The Indian constitution includes detailed provisions with regard to the relationship between the center and state governments. The distribution of powers between the union parliament and state legislatures is dealt in Articles 245 and 246. Article 245 empowers parliament to make laws for the whole or part of the country, and the legislature of the state to make laws for the whole or part of that state, in both cases, subject to the provisions of constitution. According to Article 246(1) parliament is given exclusive powers to make laws with respect to any matters enumerated in List 1 in the Seventh Schedule to the constitution. This list is known as “the Union List”. Likewise, Article 246(3) of constitution bestows powers on to state governments for making laws on matters listed in List II of the Seventh Schedule. This is known as “the State List”. The union or any state legislature also has, according to Article 246(2) of the constitution, concurrent powers to legislate on any of the matters listed in List III in the Seventh Schedule and this is known as “the Concurrent List”.
In the constitutional context of India and its quasi-federal character, the relationships centering around water though are not widely recognized and researched upon by professionals, of late, have however assumed vital importance. The discussions on federalism by far focus on centre-state financial and political relationships, balance of political power, issues of decentralization and local government and so on. Examination of relevant constitutional provisions like entry 17 in the state list, entry 56 in the union list and Article 262(2) show the direct link to the subject matter of water. Entry 17 in the state list, which specifies water as state matter reads “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”. Entry 56 on the other hand endows union parliament with legislative authority over “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.” Further Article 262(1) of the constitution deals with disputes relating to inter- state rivers. It states that parliament may by law provide for the adjudication of any dispute or complaint with respect to use, distribution or control of the waters of or in any inter-state river or river valley. Article 262 (2) states that parliament may by law provide that neither the supreme court nor any other court shall exercise jurisdiction in respect of any such dispute or compliant as is referred to clause (1), not withstanding anything in the constitution. Pursuant to Article 262 of the constitution parliament enacted Inter-state Water Disputes Act in 1956. Thus the constitution forms the foundation of institutional development related to irrigation in India. It has also been argued that water is not as much a state subject as it is believed to be. In the Indian federal system the center has not made much use of the potential for legislation and executive action given to it by constitution in respect of inter-state rivers and river valleys (Iyer 94). This observation was made in the light of competing demands for water, which are ever increasing among the states and the disputes between them defying solutions. The 17 major rivers in the country are shared by two or more states each, and the spatial and temporal variations of water resources are many. Added to this are the factors of steadily declining per capita availability of water and heavy reliance on irrigated agriculture.
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The institutional arrangement that was evolved with the enactment of 1956 inter-state water disputes act is as follows: when the interests of a state are affected prejudicially or likely to be affected by the other, the state may request under the 1956 Act central government to refer the water dispute to a tribunal for adjudication. The reasons for inter-state disputes could arise because of:
1. any executive action taken or proposed to be taken by the other state, or
2. failure of the other state or any other water authority to exercise any of its powers with respect to the use, distribution or control of such waters, or
3. failure of other state to implement the terms of any agreement relating to the use, distribution and control of such waters.
Ever since the enactment of 1956 Act, five disputes came up and the tribunals were constituted. The rivers concerned are Krishna, Narmada, Godavari, Ravi and Beas. Some of them received final adjudicatory orders.
Though the decisions of the tribunals were often criticized for delays, certain legal norms were firmly established. The principle of reasonable and equitable utilization was the guiding rule for the tribunals in resolving riparian rights of the conflicting states. In the process a number of principles emerged (Salman 2002). Some of them were: i) the manner in which dependable flow can be calculated and the consequences of failure of one state to utilize its share during one water year, and ii) treatment of prescriptive rights and of excess or deficit flows. Thus, the creation of tribunals for conflict resolution was very useful; many constitutional experts feels that a more assertive role can be played by the centre in matters regarding water. The background paper on Article 262 (Bakshi 2002) and inter-state disputes relating to water for the National Commission for the working of constitution, exclusively dealt with various ‘legal provisions’ and ‘doctrines’ involved in sharing of water in between the states. Barring the legislative role, the center can however, influence the states by making policy announcements and allocation of budgetary resources. Since most of the state governments are severely cash-strapped, the center can and does influence the states through budgetary allocations. The Sarkaria Commission on center-state relations examined the issue of constitutional provisions in respect to water and could not find favor with the suggestion that water should be included in the union list alone. The National Commission for Integrated Water Resources Development (1999) was of the opinion that while constitutional changes are not required, it urged the union government to enact laws to deal more effectively with inter-state rivers and develop effective institutional consultative mechanisms through which the center and states could agree on a number of issues related to water.
Soon after independence there was a lot of emphasis on providing irrigation infrastructure. Over a period of time we find that the large irrigation projects are no longer preferred. Over the years poverty alleviation programs of various types have expanded in size and today absorb a large volume of resources. The plan provision for rural development is Rs.7,000 crores, for food subsidy Rs.13,000 crores and for kerosene and LPG the subsidy is about Rs.12,000 crores, making a total of Rs.32,000 crores. Against this, the provision for irrigation is only Rs.17,000 crores. The drop in the public investment in irrigation is largely due to the resource crunch faced by the governments – both center and state. However, there is considerable scope to improve the efficiency of existing irrigation infrastructure through better and more participative management practices, making use of the potential already created.