In India and elsewhere, major rivers flow through different administrative regions and across political boundaries, and thus, disputes arise. Broadly, interstate river water disputes (ISWD) can be resolved by either negotiations or adjudication. The Indian Parliament has enacted the Inter-State River Water Disputes Act, 1956 to resolve water-sharing disputes among co-basin states.

If a state government (party) has a water dispute with another party and the same cannot be resolved by negotiations, it may request the Centre to refer the dispute to a tribunal for adjudication, which is done if the Centre agrees. Some weaknesses of the present mechanism are long delays and of non-compliance with the award of an ISRWD Tribunal.

If a particular party does not follow the tribunal award, the other parties have few options. Frequently, parties not satisfied with the award approach the Supreme Court, leading to another round of litigation.

A widely held view is that adjudication is not the way to settle ISWD. Many such disputes don’t involve questions of law but involve matters falling in the domain of hydrology, environment, engineering, agriculture, climate, sociology, and so on. Therefore, the disputes must be dealt with in a scientific manner.

What is fair, equitable, and reasonable?

A key factor in finding a lasting and acceptable solution is fair, equitable and reasonable use of natural resources. However, it is difficult to implement this concept because there is no clear definition of fair, equitable and reasonable use. Such a use is typically determined by the assessment of a number of factors that depend on history, present circumstances, and social conditions in the regions of interest.

“Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin,” Article IV of the widely followed Helsinki Rules (1966) stated on the issue of equitable utilisation of the waters of an international drainage basin.

Here, “equitable share” does not mean that each party will be entitled to an equal amount of the resource. The share of a party will depend upon the factors considered in Article V of Helsinki Rules and weights assigned to various factors. The Helsinki Rules were limited in their scope to international drainage basins and connected groundwater sources.

The Berlin Rules on Water Resources 2004, which superseded the Helsinki Rules emphasise appropriate management of all freshwater sources within the nations; climate-related issues; minimisation of environmental harm; preference to meet vital human needs, and the individual’s right of access to adequate quantity of safe drinking water, among others.

The equitable shares are to be decided in such a way that each party derives the largest benefit by using water and should cause the minimum harm to others. A particular water use may be termed beneficial if it is economically or socially valuable and is not detrimental to others.

Framework for resolution

The Helsinki Rules describe in detail the relevant factors to be considered. The first set of factors includes the drainage area within each basin state, hydrology and climate in the basin. These factors determine basin water resources within each state and their variability.

The second set of factors determines the utilisation of water by each party and covers the past and current utilisation, and the population dependent on the waters of the basin in each basin state. These factors are to be considered along with the relative costs of meeting the needs by alternative means. It is also important to assess whether each party state is using water most efficiently. Weightage is assigned to each factor commensurate with its relative importance.

The Supreme Court invoked the principles of the Helsinki Rules and Berlin Rules along with the Campione Rules related to the groundwater (recognising the surface water-groundwater connection) while passing the judgement in 2018 on the long-drawn Cauvery water dispute, arising out of Cauvery Water Tribunal Award 2007.

However, on-ground experience has shown that even when the fair share of different parties is determined without favour, some parties may not be satisfied. A major cause for this is that the weightage is often a subjective assignation, which furthers uncertainty. For instance, a party which utilises water more efficiently through conservation practices, recycling and reuse, reducing the gap between supply and demand may get the benefit of the doubt when weightage is assigned.

There are other roadblocks to equitable sharing. Scientific determination of equitable distribution is difficult because the available data may be inadequate. This is compounded by a lack of transparency and mistrust amongst disputing states, each state questioning the veracity of the data shared by other states. As embedded in Berlin Rules on water resources, the openness of information related to water resources is critical to achieving equity. Therefore, the Indian government should take steps to collect all relevant water resource data (including usage data), curate it, and make it open.

Read more: Water wars: Disputes over sharing natural resources

Largest benefit, minimise harm

States need to be incentivised and encouraged to adopt best water use practices if the guiding principle for equitable use is to derive the largest benefit by using water while minimising harm to others.

They should be discouraged from over-utilisation of groundwater leading to a decrease in base flows in rivers; mandated to ensure environmental flows for maintaining ecological balance; and encouraged to increase water use efficiency in agricultural, industrial and domestic sectors. States should also ensure proper maintenance and upkeep of infrastructure.

At present, people, the final stakeholders, have no involvement in dispute resolution since the tribunals hear only the official representatives of the litigating states. A mechanism should be devised to consider inputs from civil society in a transparent way. Good governance in sustainable water management can be best achieved by understanding gender gaps and addressing the specific barriers. Without this, water management will exacerbate gender inequality to the detriment of the UN’s ‘Sustainable Development Goals’, community well-being, and human rights.

Here’s what will bring in efficiency

Several steps are under consideration to make dispute resolution more efficient. There are proposals to constitute a standing tribunal for water disputes, implying that a new tribunal need not be constituted for each case. We also suggest the constitution of river basin boards for integrated river basin management (IRBM), in line with the National Water Policy of 2012.

The IRBM mechanism ensures flood protection, rejuvenation and protection of water bodies, wastewater and solid waste management, and water allocation to each sector in the basin to benefit all sections of society. Each board may be constituted of experts from water and associated domains and civil society representatives from the concerned states. With this mechanism, disputes can be addressed in the nascent stage, may not grow big, and are more likely to be acceptable.

Professor Sharad K. Jain is adjunct professor, department of civil engineering, IIT Madras and former director, National Institute of Hydrology; Professor S. Murty Bhallamudi is an Institute Chair professor, department of civil engineering, IIT Madras with expertise in hydraulic and water resources engineering; Professor Ligy Philip is Nita and KG Ganapathi Chair Professor, department of civil engineering, IIT Madras and has been involved in many high-level expert committees on environment set up by the Union government