Indian rivers – international, inter-state and intra-state
Though India was blessed with an abundance of water from various rivers and river systems but little do the people of India (today) realize the woes of those who had no access to this life sustaining element, water, even in earlier times. Water was so precious that even in twelfth century India, tank building was looked upon as one of the seven meritorious acts which a man ought to perform during his life time (Epigraphia Indica, Volume XIV – 1917-18 – page 99 from “The Porumamilla Tank Inscription of Bhaskara Bhavadura : Saka 1291 (October 15, 1369) by Dr. V.S. Sukthankar, Ph.D.). How precious water was even eight centuries ago is evident from the inked estampages of the subjoined inscription which commemorates the construction of a tank at Parumamilla by King Bhaskara alias Bhavadura [The son of Bukka-I and thus the brother of Harihara-II as noted from the history of the First Vijayanagara Dynasty. Bhaskara was placed in charge of the eastern provinces which he ruled from Udayagiri (in the Nellore District) – page 98, Volume-XIV, Epigraphia Indica – 1917-18]. This tank is in front of a ruined Bhairava temple at Porumamilla in the Badvel Taluk of the Cuddapah District of Tamil Nadu. It was very dry and cultivation was only possible with artificial storage of water in irrigation tanks. This irrigation tank at Porumamilla (according to the District Manual) was one of the largest in the Taluk. The inscription, apart from its historical importance, presents various other points of interest, not the least important of which is the light it sheds not only on the tank building activity in medieval India but also on how important water was even in medieval times.
Thus, the ostensible abundance of river waters in medieval India were only restricted to the cradles of the great river systems which flowed through India. In other places however, water was in short supply. These shortages grew and grow acute with each passing day. Yet India never saw the need for or importance of centralized legislation for river waters till 1935 and later till 1956. As I mentioned earlier, India was blessed with an abundance of water from various rivers and river systems. The great Indus river system comprising (as far as India is concerned) of the Indus, Jhelum, Chenab, Ravi, Beas and Sutlej flows in a southernly direction into the Arabian Sea. The Indus system of rivers comprises the main river Indus and 13 tributaries in the hilly areas from the west and 14 in the plains. The tributaries in the hilly areas are Shyok, Shigar, Gilgit, Hunze, Swat, Kabul, Kurram, Tankzam, Gomel, Zam, Darban, Chaudhwen, Vidore, Mithawan, Sangam, Kaha and Chachar. Jhelum, Chenab, Ravi, Beas and Sutlej join the Indus from the east. The other rivers from the east, besides the five main rivers, are Siram, Haro and Soan which directly join the Indus; while Kunhar, Neelum and Poonch and two smaller rivers join the Jhelum. The Chandra and the Bhaga make the Chenab. This river system provides nearly 60% of the water utilized for irrigation. (See The Indus Basin – History of Irrigation, Drainage and Flood Mangement by H.Fahlbusch, Bart Schultz and C.D. Thatte, First Edition, 2004). After partition, the waters of the three western rivers i.e. Indus, Jhelum and Chenab were allocated to Pakistan while the waters of the three eastern rivers i.e. Sutlej, Ravi and Beas were allocated to India under the Indus Waters Treaty, 1960. The Ganges River System which begins in the North flows in an eastern direction (and is joined by the Yamuna, Gomti, Son, Gandak, Kosi and later the Damodar, etc.) into the Bay of Bengal. The mighty Brahmaputra to the east also flows into the Bay of Bengal. The Narmada and the Tapi in the mid west, flow in a westerly direction and empty themselves into the Arabian sea. The Subarnrekha, Mahanadi, Godavari, Krishna and Kaveri to the east and south east, all empty themselves into the Bay of Bengal. With these mighty river systems and other smaller rivers forming parts of these larger river systems, India could certainly be said to have been blessed with an abundance of river waters. Yet, till the Government of India Act, 1935, there was no real Central legislation to deal with water. Even after India’s independence in 1947 or the coming into force of the Constitution in 1949, there was no Central legislation to deal with this precious gift of nature i.e. river waters – till the year 1956.
The importance of river waters can also be gauged from the fact that the emergence of independent India in 1947 began with a dispute with the newly created Pakistan over the waters of the Indus River System. This led to the Indus Waters Treaty of 1960. Though our fore-fathers did not realise the difficulties which lay ahead in respect of river waters but disputes relating to river waters slowly but steadily emerged as one of the greatest reasons for conflict between the inhabitants of various States of India. This realization, however late, did slowly dawn when the Inter-State Waters Disputes Bill of 1955 which ultimately went on to become Inter State Waters Disputes Act, 1956 was being debated upon.
Pre-Genesis – 1800’s – 1935
The law and legislation in India relating to river waters prior to the Government of India Act, 1935 is not really germane or relevant to the genesis or evolution of the Inter-State River Waters Act, 1956. As far as rights between private individuals insofar as river waters were concerned, I have in my previous article while dealing with water laws in general mentioned that the law in India in this regard was and is similar to English Common Law and as between two riparian owners of land abutting a river, the law was that a riparian owner or occupier had an unrestricted right to take and use the water of a stream for ordinary domestic purposes such as drinking and washing and for wants of his cattle. These were classified as natural rights and incident to the property in the land through which the river passed.
Insofar as the law in India between the Government of a Province and an inhabitant of that Province using the water of a river flowing through that Province was concerned, even in 19th century India, in the absence of a statute, the rights of a Provincial Government in this matter were different from those of a private individual. This was recognized by Section 2(a) of the Indian Easements Act, 1882 which provided as follows:-
“Nothing herein contained shall be deemed to affect any law not hereby expressly repealed; or to derogate from (a) any right of the crown to regulate the collection, retention, and distribution of the water of rivers and streams flowing in natural channels, etc., etc.”
It therefore, follows that even in 19th century India the law as between riparian owners as set out in the illustrations to Section 7 of the Indian Easements Act, 1882 did not necessarily apply as between a private riparian owner and the Provincial Government. What actually were the rights of a Provincial Government in 19th century India or even in the early 20th century have to be considered from two different perspectives:-
(i) There may be a statute on the subject
(ii) There may be no such statute.
If there was a statute, the position would of course be regulated by the statute itself. If there was no such statute, the position would be regulated by the custom of the locality in question. An example of the latter of the two situations, namely, the absence of a statute and the position being regulated by the custom of the locality in question arose insofar as the Madras Presidency was concerned in the case of Fischer v. Secretary of State for India as reported in ILR 32 Madras 141 which decision was cited with apparent approval by the Privy Council in the case of Prasad Row v. Secretary of State for India as reported in ILR 40 Madras 886. It was held in the said decisions that atleast in the Madras Presidency, the Government had power by the customary law of India to regulate in public interest the collection, retention and distribution of waters of rivers and streams flowing in natural channels provided that it did not thereby inflict sensible injury on riparian owners and diminish the supply they had hitherto utilized. The rights of the Government were far wider than those of an ordinary or individual upper riparian owner. Therefore, the Government could take water for purposes other than those of the riparian lands provided of course the supply hitherto utilized by the riparian owners was not sensibly reduced.
Insofar as the former situation, namely, where statutes existed, examples may be given insofar as the northern and western provinces were concerned. In Punjab, United Provinces, Central Provinces and the North West Frontier Province, the rights of the Provincial Governments were regulated (save in respect of certain minor canals in the Punjab and in the North West Frontier Province) by the Northern India Canal and Drainage Act, 1873 (Central Act VIII of 1873). In Sind, the rights of the Provincial Government were regulated by the Bombay Irrigation Act, 1879 (Bombay Act VII of 1879) as amended by Sind Acts VI and XI of 1939 and XV of 1940. Generally speaking, this Act was on the same lines as the Northern India Canal and Drainage Act, 1873.
The scheme of these Acts was similar. For example the preamble of the Northern India Canal and Drainage Act, 1873 declared that the Government was entitled to use and control for public purposes the water of all rivers and streams flowing in natural channels. Section 5 provided that whenever it appeared expedient to the Provincial Government that the water of any river or natural stream should be applied or used for the purpose of any existing or projected canal (which term included a reservoir) the Government may, by notification in the Gazette, declare that the water will be so applied or used after a specified date not being earlier than three months from the date of the notification. Under Section 7, the Collector had to give public notice of the intended application or use of the water, inviting claims for compensation. Section 8 laid down that compensation may be awarded only in respect of certain specified matters. For example, under clauses (a) to (d) no compensation was to be awarded for damage caused by stoppage or diminution of percolation, or floods, or by deterioration of soil, or by stoppage of navigation, or by displacement of labour. But under clause (e) compensation may be awarded for stoppage or diminution of supply of water through any natural channel to any defined artificial channel in use at the date of the notification. The section also laid down how the amount of the compensation was to be determined from the diminution in the market value of the property, or, where that is not ascertainable; it is to be reckoned at twelve times the amount of the diminution of the annual net profits of the property. Section 9 provided that no claim for compensation could ordinarily be made after the expiry of one year from the date of the damage. Section 10 provided, in effect, for the tribunal assessing compensation in the same manner as under the Land Acquisition Act.
In effect, therefore, under these legislations the Provincial Governments were empowered to take water from a river for any irrigation project whenever it thought it expedient. However, if the project caused stoppage or diminution of supply to an inundation canal, the Act provided for compensation on certain specified basis. These provisions clearly indicate the policy as far as legislatures were concerned. The central legislature in one case and the Bombay legislature in the other were given powers superior to that of an individual riparian owner to take water from a river for any irrigation project subject of course to compensation being given to individuals for any damage done to the canal by the project. These statutory provisions clearly proceeded on the general principle that no new project, however beneficial in other ways, should be allowed to impair existing inundation canals without payment of compensation. Equally important is the implication that in other respects inundation canals were not to retard the progress of irrigation canals. The Indus Commission felt that the principles embodied in these Acts should not be limited by provincial boundaries and the essential principles need not be different merely because the project was in one Province and the canals in another (See Indus Commission Report, Volume-1, page 54, paragraph 71).
It would thus be seen that prior to the Government of India Act, 1935, governmental power was highly centralized in the Secretary of the State. However, under the reforms introduced subsequently keeping in view the declared policy of Parliament to provide development of governmental institutions, greater independence was conferred under the Government of India Act, 1919 to Provinces in provincial matters to achieve crucial decentralization of governmental powers subject ofcourse to the overall superintendence by the Governor General in Council or Secretary of State, as the case may be. [See page 89 of the Report of the Ravi & Beas Waters Tribunal] It was in pursuance of this scheme that partial autonomy was granted to the Provinces and irrigation became a provincial though reserved subject under Item No.9, Part-II, Schedule-I of the Government of India Act, 1919. Similar was the position under the Government of India Act, 1935 where by virtue of Entry 19 in List II of the Seventh Schedule to the Government of India Act, 1935 water supplies, irrigation and canals, drainage and embankments, water storage and water power was made a provincial subject. The scheme under Entry 17 of List II of the Seventh Schedule to the Constitution of India remains the same. However, this is now subject to Entry 56 of List I of the Seventh Schedule to the Constitution of India. There was no entry similar to Entry 56, List I of the Seventh Schedule to the Constitution of India conferring powers on the Central Government in matters of regulation and development of inter-state rivers and valleys either under the Government of India Act, 1919 or the Government of India Act, 1935.
Having provided an overview of the law from the 19th till the early 20th century i.e. till the coming into force of the Government of India Act, 1935, the position between 1935 till 1949 may now be examined.
Introducing the Genesis – 1935-1949
The solitary constitutional provision under the heading of “Disputes relating to Waters” is Article 262. While Article 262(1) empowers Parliament to legislate in respect of adjudication of disputes or complaints with respect to the use, distribution or control of waters of, or in, any interstate river or river valley, Article 262(2) excludes the jurisdiction of the Supreme Court or any other Court from adjudicating upon such disputes or complaints. About seven years after the Constitution of India came into existence on November 26, 1949, Parliament on August 28, 1956 enacted the Inter-State Water Disputes Act, 1956 (now known as the Inter-State River Water Disputes Act, 1956 and referred to before and hereafter as ‘the Act of 1956’) under Article 262. The Inter State Water Disputes Act, 1956 is a legislation under Article 262 of the Constitution of India [Refer AIR 1990 SC 1316 : (1990) 3 SCC 440 – Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimail Padhugappu Sangam –versus- Union of India & Others. Even, in the matter of the Cauvery Disputes Tribunal – 1993 Supp (1) SCC 96(II) which was a special reference under Article 143 being Special Reference No.1 of 1991 as decided on November 22, 1991, it was held that the Act of 1956 is a legislation under Article 262 and not one under Entry 56, List I of the 7th Schedule to the Constitution of India].
Under the Government of India Act, 1935 ('the Act of 1935'), there were five sections (130 to 134) relating to ‘water’ under the heading of “Interference with water supplies”. While Section 133 excluded the jurisdiction of Courts, Sections 130, 131, 132 and 134 provided a self contained code or mechanism for adjudication of complaints or disputes relating to water. A similar, self contained code or mechanism, for adjudication of disputes and complaints in respect of water and water supplies was postulated by draft Articles 239 to 241 of the draft Constitution of India while draft Article 242 excluded the jurisdiction of courts. However, by the time the Constitution of India emerged, all these provisions and draft Articles disappeared leaving one solitary Article 262 (earlier draft Article 242A as introduced on September 09, 1949) empowering Parliament to make laws for adjudication of water disputes and excluding the jurisdiction of the Supreme Court and other Courts in respect of such water disputes. These provisions of the Act of 1935 (Sections 130 to 132) and draft Articles 239 to 242 were to re-appear as provisions of the Inter-State Water Disputes Act, 1956.
Though it has been suggested in the AIR Commentaries on the Constitution of India (Volume-4, Article 262, Note 160 to Article 307, 2nd edition 1973, page 621), that the genesis of Article 262 of the Constitution of India can also be traced to Article 7 of the Constitution of Malaysia and Section 100 of the Constitution of Australia Act, 1900 but in my opinion this is not correct. First and foremost, the Malaysian Constitution came into existence on August 23, 1957 while the Constitution of India had come into existence much earlier on November 26, 1949 (and came into force on January 26, 1950). Therefore, Article 262 of the Indian Constitution could not have been based on Article 7 of the Malaysian Constitution since the latter Constitution came into existence about seven years later. Secondly, Article 7 of the Malaysian Constitution has nothing to do with waters or river waters but falls under Part-II of the Malaysian Constitution under the heading of “Fundamental Liberties” and reads thus:-
“7.(1) No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.
(2) A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.”
Reference to Article 7 may have been a printing or a typographical error in the AIR Commentaries on the Constitution of India, Volume-4, page 621 and the author may have meant to refer to Article 78 (and not Article 7) of the Malaysian Constitution, which reads as follows:-
“78. In so far as any law made by Parliament or any regulation made in pursuance of such a law restricts the rights of a State or its residents to the use for navigation or irrigation of any river wholly within that State it shall not have effect in that State unless it has been approved by a resolution of the Legislative Assembly of that State supported by a majority of the total number of its members.”
However, even the provisions of Article 78 of the Malaysian Constitution bear no resemblance to Article 262 of the Constitution of India. Therefore, neither can it be said that Article 262 of the Indian Constitution was derived from Article 78 of the Malaysian Constitution nor vice-versa since there is nothing in common between the two articles of the two Constitutions of these two great nations. As far as the Australian Constitution is concerned though the Constitution of Australia or the Commonwealth of Australia Constitution Act is of July 9, 1900 and is thus earlier in point of time than the Indian Constitution but Section 100 of the Australian Constitution Act, unlike Article 262 of the Constitution of India, only prevents the Commonwealth from regulating trade or commerce or abridging the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation. Section 100 of the Commonwealth of Australia Constitution Act of July 9, 1900 reads as follows:-
“100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.”
It is, therefore, not correct to suggest that Article 262 of the Constitution of India has its genesis either in Article 7 of the Malaysian Constitution of August 23, 1957 or in Section 100 of the Commonwealth of Australia Constitution Act of July 9, 1900.
The genesis of Article 262 and the Inter State Water Disputes Act, 1956 can (only) be traced back to the provisions of Sections 130 to 134 of the Government of India Act, 1935 and draft Articles 239 to 242 of the draft Constitution of India. The only difference is that the Act of 1935 and the draft Constitution not only contained exclusion of jurisdiction provisions in Section 133/draft Article 242 but provided a mechanism for adjudication of disputes and complaints in respect of water and water supplies (Sections 130 to 132 and 134 and draft Articles 239 to 242). However, when the Constitution came into force, the scheme of things changed and while Article 262(2) became the exclusion of jurisdiction provision (as in the case of Section 133 of the Act of 1935/draft Article 242 of the draft Constitution), the mechanism for adjudication of disputes and complaints in respect of water and water supplies were postulated to be separately provided for by a legislation to be enacted under Article 262(1) of the Constitution of India. This legislation under Article 262(1) came in the form of the Inter State Water Disputes Act, 1956 which contained provisions similar to Sections 130 to 132 of the Act of 1935 and draft Articles 239 to 241 of the draft Constitution of India as submitted to the Constituent Assembly by the Drafting Committee. This genesis has been dealt with in the subsequent parts of this article.
Pre-constitutional position – The Government of India Act, 1935 – Sections 130 to 134 and Entry 19 of List-II (Provincial Legislative List)
Contrary to the (mistaken) understanding that prior to the enactment of the Government of India Act, 1935 there was no Statute or common law in India which regulated the rights of the people to the use of waters – there were. I have briefly dealt with these laws governing running water in the previous article and also briefly in this article while dealing with the pre-genesis position. However, for the first time water laws were sought to be Centrally codified under Chapter VI of the Government of India Act, 1935 under the heading “Administrative Relations between Federation, Provinces and States” –subject sub-heading of “Interference with Water Supplies” – Sections 130 to 134 (APPENDIX-1 – Chapter VI, Sections 130 to 134 of the Government of India Act, 1935 and Entry 19 of List II). It was the first time that a Central legislation sought to provide a centralized mechanism to deal with water disputes. These Sections sought to deal with complaints as to interference with water supplies, decisions on such complaints, interference with water supplies of Chief Commissioner’s provinces, exclusion of jurisdiction of Courts in respect of disputes relating to water from natural sources and exclusion of application of provisions as to water supplies by a Ruler of any State (see Sections 130 to 134 of the Government of India Act, 1935).
It may be noted that only water supplies from natural sources i.e. natural streams and reservoirs were included in the ambit of Sections 130 to 134. However, waters in canals or canals themselves were not so included. Therefore, while Section 133 of the Government of India Act, 1935 excluded the jurisdiction of courts (Federal Court or any other Court) insofar as disputes relating to water supplies from natural sources i.e. natural streams and reservoirs were concerned but since canals were not so included, obviously disputes in respect of such canals were amenable to the jurisdiction of ordinary Courts. It therefore, seems that the decision of the Supreme Court of India in the case of State of Haryana -versus- State of Punjab & Another [(2002) 2 SCC 507] in which it was held that the disputes relating to the Sutlej-Yamuna Link canal (‘the SYL Canal’) was not a water dispute [see (2002) 2 SCC 507 at 508 c-d] within the meaning of Section 2(c) of the Act of 1956 was correct even on this historic basis. However, this was neither a ground urged during the hearing in that case nor considered by the Court in its judgement.
The (then) Attorney General [See Attorney General’s speech – Parliamentary Debates, Indian Affairs, House of Commons 1934-35, Vol. II Col.2438-9] in explaining the objects of Sections 130 to 134 of the Act of 1935 and in particular as to the reasons for not including the words “or in any canal” after the expression “supply” as occurring in Section 130, stated as follows:
“The clause deals with a fascinating subject, that is, what rights people have in water, running water in particular, as well as water in natural reservoirs. There are two kinds of water. There is the water in the natural streams and reservoirs, and there is the water in the canals, with which the hon. Member wants to deal. As far as the waters in the natural streams and reservoirs are concerned there is no statute or common law in India which regulates the rights of people to the use of the water. In this country there is a great body of common law, which is added to by judicial decisions, which regulates the rights of people through whose land the water flows, the riparian owners, and which also deals with the rights of people who use the stream and who have a right to expect it to continue in its natural flow, so that their cattle may continue to drink from it. In India there is no such statute or common law and therefore, these natural sources of water supplies have been dealt with in a general way and on certain broad lines. That is to say, an area which has a very small rainfall, or no rainfall at all, gets a prior right to the water as compared with those which have a plentiful rainfall. A non-cultivated area will not be preferred to a cultivated area, which is in possession of an irrigation supply or a natural supply of water.
These are the general principles which regulate the use of water in these natural conditions, but they are not what lawyers call “justiciable rights” which can be taken to a court of law. When you come to canals it is different matter. A canal is built by powers conferred by local legislation or constructed in accordance with agreements which are often based upon a proportion of the cost which falls on the different parties entitled to the use of the water. Those are justiciable rights, and can be taken to a court of law. This Clause and the following clauses are intended to provide a method of settling rights in natural sources, rights which cannot be taken to a court of law because there are no legal principles by which the courts can regulate any disputes which may arise. For that reason, it is not proposed to put canals into the Clause because they can be disposed of by ordinary tribunals and do not require to be referred to the special tribunals which are set up.” (Emphasis supplied)
It was in this background that the provisions of Sections 130-134 of the Government of India Act, 1935 came to be enacted. The beginnings of central supremacy in respect of inter-state and intra-state river waters in India therefore, came about under the Government of India Act, 1935 and culminated in Article 262 of the Constitution of India and Entry 56 of List I of the Seventh Schedule to the Constitution of India. The first Commission under Section 132 of the Government of India Act, 1935 was the Indus Commission. This Commission submitted its Report on July 13, 1942. This report has been dealt with by me in the earlier article.
Entry 19 of List II (Provincial Legislative List) of the Government of India Act, 1935.
While the provisions of Sections 130 to 134 of the Government of India Act, 1935 provided for a self contained mechanism for decisions on complaints relating to water from any natural source of supply and while Section 133 excluded the jurisdiction of Courts in respect of disputes or complaints relating to or arising from water from any natural source of supply but the Federal Legislature (under List I of the 7th Schedule i.e. the Federal Legislative List) did not retain for itself any power to legislate in respect of waters under the scheme of the Government of India Act, 1935. However, the Provinces were empowered to legislate on water including water supplies, irrigation and canals, drainage and embankments, water storage and water power. Entry 19, List II i.e. the Provincial Legislative List under the 7th Schedule to the Government of India Act, 1935 reads as follows:-
“19. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power”.
A reading of Sections 130 to 134 of the Government of India Act, 1935 on the one hand and Entry 19 of List II of the 7th Schedule to the said Act of 1935 on the other, indicates that while the Governor-General retained for himself the right to appoint a Commission with special knowledge and experience in irrigation, engineering, administration, finance or law to adjudicate on such complaints relating to water from any natural source of supply but the jurisdiction of the Federal Courts and other courts were excluded in respect of such disputes or complaints. The modalities of such adjudication were also provided by Sections 130, 131 and 132. Further, under Section 134, these provisions (Sections 130 to 133) were not to apply if it had been so declared by the Ruler of any Federated State in his instrument of accession. In addition, under Entry 19 of List-II (the Provincial List), the Provinces reserved for themselves, the right to legislate in respect of water supplies, irrigation and canals, drainage and embankments, water storage and water power, namely, water in man made reservoirs and/or canals. It is thus obvious that disputes in this regard or under any legislation made by any Provincial Government under Entry 19 List II of the 7th Schedule to the Government of India Act, 1935, were then amenable to the jurisdiction of ordinary Courts.
The Draft Constitution and provisions relating to water from natural sources
On February 21, 1948, the Drafting Committee of the Constituent Assembly (under cover of the Chairman, Dr. B.R. Ambedkar's letter), forwarded the draft Constitution to the President of the Constituent Assembly. The Drafting Committee comprised of Dr. B.R. Ambedkar, Chairman; Shri N. Gopalaswami Ayyangar; Shri Alladi Krishnaswami Ayyar; Shri K.M. Munshi; Saiyid Mohd. Saadulla; Shri N. Madhava Rau; Shri D.P. Khaitan. Sir B.L. Mitter, though originally appointed a Member of the Committee, was unable to attend after the first meeting and therefore ceased to be a Member of the Constituent Assembly.
In Chapter-II of the draft Constitution – captioned – “Administrative Relations" fell a chapter sub-heading captioned "Interference with water supplies". The four draft Articles under this heading were Articles 239, 240, 241 and 242 (See APPENDIX-2). These, in effect, were reproductions of Sections 130, 131, 132 and 133 of the Government of India Act, 1935 with erstwhile Section 134 of the Government of India Act, 1935 having been dropped from the draft constitutional scheme of things. Even the language employed in draft Articles 239 to 242 of the draft Constitution was similar to the language of Sections 130 to 133 of the Government of India Act, 1935 and dealt only with "water from any natural source of supply" and (obviously for the same reasons as in the Government of India Act, 1935) did not include within its ambit water from or in any man-made reservoir or canal or man made reservoirs or canals per-se. Thus the exclusion of jurisdiction of Courts clause under draft Article 242 only excluded the jurisdiction of the Supreme Court and other Courts in respect of disputes relating to "water from natural source of supply" but did not seek to exclude the jurisdiction of the Supreme Court or other Courts in respect of water in any man-made reservoir or canal.
Apart from draft Articles 239 to 242 of the draft Constitution of India, the draft Seventh Schedule framed pursuant to draft Article 217 of the Constitution of India relating to the subject matter of laws to be made by Parliament and by the Legislatures of States dealt with 'water’. Draft Entry-74, List-I i.e. the Union List under the draft Schedule dealt with 'water' as did Draft Entry-20 of List-II – State List, subject of-course to the provisions of draft Entry-74 of List-I. The provisions of draft Article 217 read as follows:-
"217. (1) Notwithstanding anything in the two next succeeding clauses, Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in the next succeeding clause, Parliament and, subject to the preceding clause, the Legislature of any State for the time being specified in Part I of the First Schedule also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to the two preceding clauses, the Legislature of any State for the time being specified in Part I of the First Schedule has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included for the time being in Part I or Part III of the First Schedule notwithstanding that such matter is a matter enumerated in the State List."
Draft Entry 74 of List-I and draft Entry 20 of List-II read as under:-
LIST I – Union List"
"74. The development of inter-State waterways for purposes of flood control, irrigation, navigation and hydro-electric power."
" List II – State List"
"20. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 74 of List I."
It may, therefore, be noted that while draft Articles 239 to 242 dealt with water from natural sources but under draft Entries 74 of List I and 20 of List II, Parliament and the State Legislatures were empowered to legislate on inter-State waters and waterways for the purposes of flood control, irrigation, navigation and hydro-electric power as also in respect of water supplies, irrigation and canals, drainage and embankments, water storage and water power. However, such legislation and disputes under such legislation were not necessarily to be excluded from the jurisdiction of the Supreme Court or other Courts by virtue of draft Article 242 of the draft Constitution of India which only proposed to exclude the jurisdiction of the Supreme Court and other Courts from disputes and complaints in respect of water from any natural reservoirs or sources.
It may also be mentioned that apart from the draft Constitution forwarded to the President of the Constituent Assembly of India by the Chairman of the Drafting Committee of the Constituent Assembly, another draft Constitution had been prepared by Shri B.N. Rau, the Constitutional Advisor to the Constituent Assembly. However, in the draft Constitution prepared by Shri B.N. Rau, there was no proposed constitutional provision relating to water, water supplies or interference therewith.
The Constituent Assembly Debates – deletion of draft Articles 239 to 242 and the emergence of draft Article 242A which became Article 262 of the Constitution of India
In the twelve (12) volumes (1946 to 1950) comprising the Constituent Assembly Debates, reference to Draft Articles 239 to 242 relating to “Interference with water supplies” occur only in Volumes VIII and IX covering debates of 1949. For the first time, Articles 239 to 242 find mention in the debates of June 13, 1949 at pages 817 to 819, Volume VIII, Constituent Assembly Debates, 1949 when the Hon’ble Dr. B.R. Ambedkar, moved amendment No.2810 for amendment of draft Articles 239, 240 and 241 and for adoption of draft Articles 239 to 242, which were accordingly adopted. Relevant portions of the Constituent Assembly Debates from Volume-VIII are in APPENDIX-3.
However, subsequently, during the Debates on September 9, 1949, erstwhile draft Articles 239 to 242 were deleted and a new draft Article 242A (in the language of Article 262 as we know it today) was adopted. The relevant part of these debates of September 09, 1949 at pages 1187 to 1188, Constituent Assembly Debates, Volume IX is at APPENDIX-4. Thus, Article 242A came to be adopted and ultimately emerged as Article 262 of the Constitution of India which came into existence on November 26, 1949 (See ‘Preamble’ to the Constitution of India) and came into force on January 26, 1950 (Part XXII – ‘Short Title, Commencement and Repeals’, Article 394 – Commencement’).
It would, however, take Parliament another six years before it legislated under Article 262(1) of the Constitution of India to enact the Inter-State Water Disputes Act, 1956, Section 11 of which provided and still provides for exclusion of jurisdiction of the Supreme Court and other Courts as envisaged by Article 262(2). The birth of the Act of 1956 and its evolution are discussed in the next article.
Appendix 1 Appendix 2 Appendix 3 Appendix 4
K.K.LAHIRI is an Advocate based at Delhi.