Dispute resolution between Union, States

In a constitutional set-up where powers are distributed between the Union and the States, it is natural to expect disputes as to on which side of the boundary a particular matter falls. Where such differences do arise, it is desirable that there should be a well thought out systemic mechanism for the resolution of such inter- State disputes.

The Commission considered as to whether the Supreme Court should be given exclusive jurisdiction in controversies concerning the distribution of legislative powers. Incidentally, it may be mentioned here that article 131A was inserted in the Constitution vide the Constitution (Forty-second Amendment) Act, 1976 so as to provide exclusive jurisdiction to the Supreme Court in regard to the questions as to constitutional validity of Union laws.

However, the said provision was repealed by the Constitution (Forty-third Amendment) Act, 1977. After carefully considering the issues, the Commission is of the view that no exclusive jurisdiction need be conferred on the Supreme Court in matters of controversies concerning distribution of legislative power between the Union and the States.

It would deprive non-governmental parties of the facilities and the advantages of seeking remedy in the High Courts. However, there may be situations, which may require that such questions should not undergo a long drawn process of litigation and the Supreme Court should be enabled to dispose off such questions finally and quickly without its being made a court of exclusive jurisdiction.

The Commission is of the view that the Supreme Court should be empowered to transfer such cases to itself and decide the same. For this purpose it is not necessary to amend article 131. It can be provided for by amending article 139A.

This will also ensure that the Supreme Court would be able to apply its mind and prima facie see as to whether (a) the case really involves some substantial question of law and is not raising untenable or frivolous contentions; and (b) whether the case is such that it should be transferred to it and disposed of expeditiously

The Commission recommends that article 139A, which confers power on the Supreme Court to withdraw cases involving the same or substantially the same question of law, which are pending in Supreme Court and one or more High Courts, should be amended so as to provide that it can withdraw to itself cases even if they are pending in one court where such questions as to the legislative competence of the Parliament or State Legislature are involved.
Inter-State Water Disputes

Water is a prime resource for sustaining life on earth. The domestic, agricultural and industrial uses of water are multiplying day by day and this phenomenal increase in demand for water in diverse fields has resulted in its scarcity. Moreover, availability of water is highly uneven in both space and time as it is dependent upon varying seasons of rainfall and capacity of storage.

India is served by two great river systems, i.e. the Great Himalayan Drainage system and the peninsular river network. It has 14 major rivers that are inter-State rivers and 44 medium rivers of which 9 are inter-State rivers. Eighty five per cent of the Indian land mass lies within its major and medium inter-State rivers.

The Commission considered the importance of inter-State water sharing as an area of great concern in maintaining the federal spirit and better Union-State and inter-State relations. The Commission accordingly studied the mechanisms available for efficient, productive and sustainable resource management of the country’s river systems and allocation of inter-State water resources.

The Constitution does not itself lay down any specific machinery for adjudication of water disputes. Article 262(1) lays down that Parliament may by law provide for the adjudication of any disputes or complaints with respect to use, distribution or control of the waters of, or in, any inter-State river or river valley.

The subject “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” is a matter enumerated in entry 17 of the State List (List II) of the Seventh Schedule.

The expression “regulation and development of inter-State rivers and river valleys” in Entry 56 of the Union List in the Seventh Schedule of the Constitution would include the use, distribution and allocation of the waters of the inter-State rivers and river valleys between different riparian States.

Otherwise the provision for the Union to take over the regulation and development under its control makes no sense and serves no purpose. The River Boards Act, 1956 which is admittedly enacted under Entry 56 of the Union List for the regulation and development of inter-State rivers and river valleys does cover the field of the use, distribution and allocation of the waters of the inter-State rivers and river valleys.

The very basis of a federal Constitution like ours mandates such interpretation and would not bear an interpretation to the contrary which will destroy the constitutional scheme. Although, therefore, it is possible technically to separate the “regulation and development” of the inter-State rivers and river valleys from the “use, distribution and allocation” of water, yet it is neither warranted nor necessary to do so.

Inter-State Water Disputes Act
Pursuant to the powers conferred by article262 of the Constitution, Parliament enacted the Inter-State Water Disputes Act, 1956 (Act 33 of 1956) to provide for adjudication of disputes relating to waters of inter-State river and river valleys.

The Union Government has constituted several Tribunals under the aforesaid Act. Section 4(1) of the Inter-States Water Disputes Act, 1956 empowers the Central Government to constitute a Water Disputes Tribunal for adjudication of a water dispute when a request from any State Government in respect of such water dispute is received by it and it is of opinion that the water dispute cannot be negotiated.

The process under the Act from the stage of constitution of the Tribunal to the giving of the award by it normally takes 7 to 10 years. The inordinate delay caused in constituting the Tribunals, delay in passing awards, framing of schemes or plans for giving effect to the decisions, and judicial review by the Supreme Court at times have been contributing factors in developing bitterness and friction between the States involved in the disputes. All these delays were also causing underutilization of water resources and hindering the timely development of the nation.

Having regard to the various infirmities and difficulties in speedy and timely resolution of disputes, the Commission on Centre-State Relations (commonly known as Sarkaria Commission) in Chapter XVII of its report (Volume I) gave several recommendations for implementation.

Keeping in view the recommendations of the Sarkaria Commission, the Union Government introduced the Inter-State Water Disputes (Amendment) Bill, 2001 in LokSabha to ensure the setting up of inter–State Tribunals and submission of reports by the Tribunals in a time bound manner. (See the Background paper on the subject for details).

It was passed by LokSabha on 03.08.2001 and is still pending in the RajyaSabha Though the Bill has dealt with some important aspects, particularly the speedier settlement of Inter-State Water Disputes, the momentum of change in technologies requires quicker and larger mobilization of water resources to sufficiently meet the different needs including that of food security.

The Commission observed that in case of every water dispute there have been several occasions when one or the other party approached the Supreme Court by way of seeking judicial review both against the interim orders of the tribunal as also against the final decision.

Further in the implementation of the decision of the tribunal the oustees or persons on behalf of the oustees resort to enforcing their fundamental rights under article 21 by a remedy under article 32, consequent on the submergence of their lands due to construction of reservoirs.

This leads to adjudication by two forums one as to the use and distribution of water and the other relating to the enforcement of fundamental rights in the process of implementation of the decision of the Tribunal.

The Commission is of the view that it is not necessary to exclude Inter-State Water Disputes from the original jurisdiction of the Supreme Court under article 131 of the Constitution and that such disputes should also be made to fall within the exclusive jurisdiction of the Supreme Court.

It has been noticed that Inter-State Water Disputes Act, 1956 has vested the Tribunal with a very unique jurisdiction under section 3. When a water dispute has arisen or is likely to arise by reason of the fact that the interest of the State or of the inhabitants thereof, in the waters of an inter-State river or river valley have been or are likely to be affected prejudicially by any executive action or legislation taken or passed or proposed to be taken or passed by another State, the aggrieved State Government may request the Union Government to refer the water dispute to a Tribunal for adjudication.

Consequently, even a proposed legislation can be the subject matter of a dispute and interdicted by the Tribunal by a quiatimet action. Courts do not exercise such powers of interdiction of legislative measures.

Appropriate provision should be made for conferring such a unique power on the Supreme Court. It is recommended that the Inter-State Water Disputes Act, 1956 be repealed and in its place a more comprehensive parliamentary legislation should be enacted. However, it is necessary to make express provisions that the suit shall be instituted in the Supreme Court, which shall have exclusive jurisdiction.

It is not necessary to repeal article 262 of the Constitution for shifting the jurisdiction from the Tribunal to the Supreme Court. Article 262 is a very important provision and the said provision being a part of the Constitution as originally enacted and having come up before the courts several times, it is unlikely to successfully challenge the same.

Once it is omitted or repealed, difficulties would arise if after experimenting on the changed form of adjudication, it is later felt or desired to have a Tribunal with a modified or changed jurisdiction or even if it is felt that the system of adjudication by a Tribunal as in the Act of 1956 would be better.

Article 131 is subject to the provisions of the Constitution. It may be noticed that article 262(2) is only an enabling provision and Parliament is not bound to enact a legislation constituting a Tribunal. A parliamentary legislation is sufficient to substitute the forum of the Supreme Court to the Tribunal.

No amendment to the provisions of the Constitution may be required. This will enable Parliament to change the law, from time to time, as it may deem fit and proper by resorting to its power under article 262.

The Commission feels that as river water disputes being important disputes between two or more States and/or the Union, they should be heard and disposed by a bench of not less than three Judges and if necessary, a bench of five Judges of the Supreme Court for the final disposal of the suit.

Appropriate provisions may be made as envisaged by article 145(1) in consultation with the Supreme Court or if the Supreme Court so opts to provide for the same by the Supreme Court Rules to appoint Commissioners or Masters and to have the evidence recorded not by the Supreme Court itself but by the Commissioners or Masters so that the precious time of the Supreme Court is saved.

While a more radical suggestion has been made to place all the inter-State rivers under the jurisdiction of an authority appointed to administer them in national interest by law enacted by Union Parliament, it is a fact that in relation to regulation and development of inter-State waters, the River Boards Act, 1956 has remained a dead letter.

Further, as and when occasions arose, different River Boards have been constituted under different Acts of Parliament to meet the needs in a particular river system according to the exigencies, facts and the circumstances.

The Commission, therefore, recommends that appropriate Parliamentary legislation should be made for repealing the River Boards Act, 1956 and replacing it by another comprehensive enactment under Entry 56 of List I.

The new enactment should clearly define the constitution of the River Boards and their jurisdiction so as to regulate, develop and control all inter-State rivers keeping intact the adjudicated and the recognized rights of the States through which the inter-State river passes and their inhabitants.

While enacting the legislation, national interest should be the paramount consideration as inter-State rivers are ‘material resources’ of the community and are national assets. Such enactment should be passed by Parliament after having effective and meaningful consultation with all the State Governments.

Inter-State Council
Article 263 provides a mechanism for resolving problems by collective thinking, persuasion and discussion through a high level coordinating forum, namely the inter-State Council. In view of frequent friction between the Union and the States and between the States, the article has become more relevant.

Article 263 empowers the President to establish an Inter-State Council at any time if it appears to him that the establishment of such a Council would serve the public interest. The Council could be charged with the duty of - (a) inquiring into and advising upon disputes which may have arisen between States;(b) investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or (c) making recommendations upon any such subject and, in particular, recommendations for the better coordination of policy and action with respect to that subject.

An Inter-State Council was established in 1990 but it met for the first time in 1996. Under the States Reorganization Act, 1956 five zonal Councils were set up. Besides this, North-Eastern Council has been setup under the North-Eastern Council Act, 1971.

The Commission observes that article 263 has vast potential and the same has not yet been fully utilized for resolving various problems concerning more than one State. Of late, it has been observed that where a treaty is entered into by the Union Government concerning a matter in the State List vitally affecting the interests of the States no prior consultation is made with them.

The forum of inter-State Council could be very well utilized for discussion of policy matters involving more than one State and arriving at a decision expeditiously. The Commission issued a consultation paper on “constitutional mechanism for the settlement of inter-State disputes” and elicited opinion of the general public. The responses were most helpful.

The Commission, while endorsing the recommendations of the Commission on Centre-State Relations (Sarkaria Commission), recommends that in resolving problems and coordinating policy and action, the Union as well as the States should more effectively utilize the forum of inter-State Council.

This will be in tune with the spirit of cooperative federalism requiring proper understanding and mutual confidence and resolution of problems of common interest expeditiously.

Treaty Making
Entering into treaties and agreements with foreign powers is one of the attributes of State sovereignty. No State can insulate itself from the rest of the world whether it be in the matter of foreign relations, trade, commerce, economy, communications, environment or ecology. The advent of globalization and the enormous advances made in communication and information technology have rendered independent States more inter-dependent.

Article 246 (1) read with Entry 14 of List I- Union List of the Seventh Schedule empowers Parliament to make laws with respect to “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”.

As per the provisions contained in article 253, Parliament has, notwithstanding anything contained in article 245 to 252, power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

This article (article 253), therefore, overrides the distribution of legislative powers provided for by article 246 read with Lists in the Seventh Schedule to the Constitution.

The Commission recommends that for reducing tension or friction between States and the Union and for expeditious decision-making on important issues involving States, the desirability of prior consultation by the Union Government with the inter-State Council may be considered before signing any treaty vitally affecting the interests of the States regarding matters in the State List.