The Supreme Court’s recent judgment on the Cauvery water dispute will go down in history for at least two reasons. One, it pronounces water of multi-state rivers as a national asset, thus, rectifying, for all practical purposes, the historic error of making water a state subject under the Constitution. And two, it defines the concept of equitable sharing of water in a holistic and unambiguous manner broadly in line with the United Nations convention on international watercourses (popularly called the Helsinki Convention) which came into force in 2014. India is not a signatory to it. The injudicious proviso in the Constitution of listing the management of a dynamic natural resource like water in the State List has, indeed, been the root cause of countless inter-state squabbles over sharing of river waters. It allows the upper riparian states to apportion larger amounts of water than they legitimately should, thereby, denying the lower ones of their rightful share. The apex court has now categorically ruled that the water of an inter-state river passing through the corridors of riparian states constitutes a national asset and no single state may claim exclusive ownership of it. Going a step further, the court has also chosen to define, in unmistakable terms, the concept of “equitable sharing” as applicable to the water of shared rivers. It has said that the principle of equality does not imply an equal division of water, but “equal consideration and economic opportunity” for the co-basin states.
The verdict of the three-judge Bench, headed by Chief Justice Dipak Misra, narrates how the principles of water sharing have evolved over time. The process began with the Harmon theory of 1895, propounded by the then US attorney general Judson Harmon, which gave countries complete freedom of action with regard to the portion of an international watercourse traversing through their territories. However, being iniquitous and unconcerned about the impact of such actions on other riparian states, this doctrine did not survive for long. The court has, therefore, preferred the latest and globally recognised water-sharing mechanism and rules compiled by the International Law Association under the Helsinki Convention. This prescription takes into account the availability of water from other sources as well, notably underground aquifers, while determining the shares of basin states. The court has, therefore, allotted an additional 10 thousand million cubic feet (tmcft) of Cauvery water to Karnataka on the assumption that Tamil Nadu can access this amount of water from around the 20-tmcft groundwater available in the Cauvery basin.
Significantly, the Supreme Court has asked all river water tribunals to follow these principles in settling water-sharing rows. India does not have a comprehensive water law at present. Different aspects of water, both surface and underground water, are covered under the subject-specific legal provisions.
It may, thus, be worthwhile to put in place an overarching statute covering the entire gamut of water-related issues. The new law can, moreover, confer national asset status on water, directly or tacitly, and incorporate water distribution principles as outlined by the apex court in the Cauvery judgment.
This will facilitate expeditious resolution of inter-state water-sharing disputes that now tend to linger on for decades.