A look at the Supreme Court’s judgments on water disputes in the country

In the words of the United Nations Development Programme (UNDP), water is ‘the stuff of life and a basic human right’. Thus, water is an essential element for life – including human life – on earth and as a result is a core concern in law.

Despite immense reservoirs of water in the country, there are water shortages everywhere often leading to riots, roadblocks and other disturbances and disputes for getting water.

In many cities and colonies, people get water for half an hour in a day, and sometimes not even for that long.
Recently, a bout of water crisis in New Delhi led to hue and cry across major parts of the city. To meet the requirements, the Delhi government borrowed water from its neighbouring states, which however, did not turn out to be sufficient. Consequently, the Delhi government requested Himachal Pradesh (HP) to release 137 cusecs of surplus water.
The matter subsequently reached the Supreme Court, which ordered HP to release water from upstream from where it can reach the Wazirabad barrage in the Capital. As and when Haryana receives the water, it must provide the “right to passage” until the Wazirabad barrage.
However, Haryana objected and contended that there is no method to measure whether HP has released additional water or not and that Haryana is also tackling a water crisis. However, the top court bench refuted the objections and emphasised the serious drinking water crisis in Delhi.
The major point to witness here is that prima facie, there is no dispute raised on the use of the water either by the HP or Delhi, but by Haryana while giving the passage for the water to reach from upstream to Delhi.
In Networking of Rivers (2012), the Court ruled that Section 11 of the Inter-State River Water Disputes Act, 1956 (“the 1956 Act”) uses the expression “use, distribution and control of water in any river” and they are the keywords in determination of the scope of power conferred on a tribunal constituted Under Section 3 of the 1956 Act. If a matter fell outside the scope of these three crucial words, the power of Section 11 of the 1956 Act in ousting the jurisdiction of the courts in respect of any water dispute, which is otherwise to be referred to the tribunal, would not have any manner of application.
‘Water dispute’ has been defined in Section 2(c) of the Act, 1957 to mean any dispute or difference between two or more State governments in respect to the use, distribution or control of waters of or in any inter-state river or river valley. It was urged that the Krishna River Water
The Dispute Tribunal award popularly known as the Bachawath award made it clear that the Krishna river, which flows from Maharashtra, through Karnataka and then Andhra Pradesh is an inter-state river and the words “use”, “distribution” or “control” are of wide import and would include regulation and development of waters and waters of any inter-state river which can only be regulated through the construction of reservoirs and dams, etc.
In the TN Cauvery Sangam v. Union of India case, the Supreme Court held that once the Union government finds that the dispute referred to in the request received from the State Government cannot be settled by negotiation, it becomes mandatory for the Union government to constitute a tribunal and refer the dispute to the tribunal for adjudication and in case it fails to do so, a writ of mandamus could be issued to constitute a tribunal.
In the State of Karnataka v. Union of India case, Justice Bhagwati emphasised that the Supreme Court’s original jurisdiction under Article 131 should not be influenced by considerations of “cause of action” typical in suits. The scope of this jurisdiction should be determined solely by the terms of the Article. He also noted that Article 131 aims to provide a forum for resolving disputes between states or between a state and the Union, ensuring final adjudication by the highest court in the land swiftly and efficiently, avoiding prolonged legal proceedings through multiple courts.
In the matter of Tamil Nadu C.N.V.V.N.U.P Sangam v. Union of India (1990), State of Tamil Nadu v. State of Karnataka (1991), and Re: Cauvery Water Disputes Tribunal (1993), the writ petition raised a dispute relating to water, therefore, in view of Article 262(2) of the Constitution read with Section 11 of the Inter-State Water Disputes Act, 1956 jurisdiction of the Court is barred. The SC observed that no doubt the writ petition would not be maintainable provided a water dispute as defined in the Inter-State Water Disputes Act, 1956 is raised therein.
In the Cauvery Water Disputes Tribunal, the Inter-State Water Disputes Tribunal constituted under the Inter-State Water Disputes Act, 1956 under Article 262, gave an interim order to Karnataka to release water to Tamil Nadu. In response, Karnataka’s Governor issued the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991, nullifying the Tribunal’s order. The Constitution Bench ruled that Article 262 vested all powers in the Tribunal, making its orders binding. The Ordinance interfered with the Tribunal’s judicial power and was declared unconstitutional. This decision affirmed the Tribunal’s exclusive authority under the Constitution to adjudicate inter-state water disputes.
Thus, it can be seen that there has always been a tussle between the powers of the tribunals as well as the courts and at different stances, the SC pronounced contrary judgments taking into consideration the facts and circumstances of each case.
The extension of legal rights to rivers is groundbreaking and unprecedented. In 2017, the Uttarakhand High Court declared the Ganga and Yamuna rivers as legal persons with the rights, duties, and liabilities of a living person. This decision blurred the lines between a living person and a legal person, leading an environmental activist to report the rivers’ ‘murder’ due to pollution.
Meanwhile, there is a growing movement to shift water management to the Union or Concurrent list. The Union ministry of water resources is advocating more actively for this change. The Ashok Chawla committee, focused on rationalising natural resource allocation to reduce corruption, reportedly recommended this shift. Currently, state governments control river water allocation, leading to inevitable disputes as rivers cross state boundaries.
According to expert KC Wheare, the Constitution of India is quasi-federal, so ‘water’ should remain a state matter. Despite numerous laws, few address river water disputes. Minimal Union interference is preferred, except when necessary.
Water disputes are inevitable, necessitating a permanent, non-arbitrary tribunal with clear objectives and transparent outcomes. Recognising water as a finite resource, the Government should urgently push for comprehensive national legislation, evolving a consensus to include water in the concurrent list. This would create a national framework for water management, conservation, development, and equitable distribution, with authority devolved to lower tiers of government. Existing water laws should also be thoroughly reviewed.
Sanya Singh is a practising lawyer based out in New Delhi. She pursued a B.A. LL.B. (Hons.) from NUSRL, Ranchi and holds a keen interest in civil and commercial litigation.
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