The February 16, 2018, judgment of the Supreme Court relating to Cauvery water dispute is a landmark one in the context of water resource management, especially in resolving any water-sharing dispute. The judgment is the culmination of a long-drawn litigation against the Cauvery Tribunal award 2007 by States such as Tamil Nadu, Karnataka, Kerala and Puducherry. For the first time, the apex court has set the principles of water sharing among States for guidance to policy-makers and water managers.

First, the apex court invoked certain settled international principles for adoption in any water-sharing discourse. It cited four principles in this regard — Harmon doctrine, Helsinki Rules, Campione Rules and Berlin Rules. The Harmon doctrine, which postulates that every state is sovereign in its water resources and has right to do whatever it likes within its territorial jurisdiction, was not agreed to.

The Helsinki Rules of 1966 were highlighted , which lay stress on the need for equitable utilisation of international rivers. The relevant factors to be considered in this regard were outlined, which include a river basin’s geography, its hydrology, climate affecting basin, past utilisation of waters of the basin, economic and social needs of each basin state, the population, availability of resources, the avoidance of unnecessary waste in the utilisation of waters of the basin, and the degree to which the needs of a basin state may be satisfied without causing substantial injury to a co-basin state.

The weights to be given to each factor would depend on their relative importance vis-à-vis the others. The principle of equality does not mean equal division of water among states but implies equal consideration and economic opportunity to co-basin states.

Second, the Campione Rules were endorsed by the apex court, which outline the need to include the water of an aquifer (that is, underground water or fossil water) while determining reasonable equitable share. These Rules include ‘criterion of interdependence of underground waters and other waters, including interconnection between aquifers and any leaching into aquifers by activities in areas under the jurisdictions of the basin states’.

Third, the Berlin Rules 2004 adopted by the International Law Association were discussed, which provide that basin states should manage the water of an international drainage basin having due regard for the obligation not to cause significant harm to other basin states.

As per the Helsinki Rules, ‘an international drainage basin is defined to be a geographical area extending over two or more states determined by the watershed limits of systems of water, including surface and ground waters flowing into a common terminus’.

A basin state is a state the territory of which includes a portion of an international drainage basin. Each basin is entitled within its territory to a reasonable and equitable share in the beneficial uses of water of an international drainage basin.

Further, minimisation of environmental harm, preference to allocate waters to satisfy vital human needs, right of every individual to have access to sufficient, safe, acceptable, physically accessible and affordable water to meet his/her vital needs, the states’ obligation of giving the right of access to water on non-discriminatory basis, are also part of the Berlin Rules.

Common link

In fact, the common link among these Rules is the universal recognition of the principle of equitable utilisation as an effective instrument for management of water of international drainage basins.

These Rules established that in determining the share of one basin state, the other co-basin states would not be subjected to substantial injury, and that there is a need to fulfil the economic and social needs of the population of such states. And the principle of apportionment would apply uniformly to all river basins in a state.

Fourth, the apex court also endorsed the principles laid down in various National Water Policies. For example, the 1987 National Water Policy enunciates that water is a precious national asset. It also underlines that resource planning in the case of water should be done for a hydrological unit such as drainage basin as a whole or a sub-basin and also individual developmental projects should be formulated keeping in mind these factors.

The water allocation priorities, as per the policy, sequentially are drinking water, irrigation, hydro-power, navigation and industrial and other uses. The apex court also endorsed the National Water Policy 2002 as this also sustains the concept of a basin state.

Following the above international rules and national water policies, the apex court determined that groundwater is an additional source of water in addition to surface water; drinking water must be given a priority while determining the water share; a certain minimum flow of river has to be maintained to keep the river flowing; and the need to have basin concept during water allocation among the States. These concepts should be recognised.

Ongoing disputes

The country is witnessing the non-resolution of various water sharing disputes. For example, there are ongoing disputes over Mahadayi river between Goa and Karnataka, and over Vanshadhra river between Odisha and Andhra Pradesh. There are also demands for water sharing in respect of several other rivers such as Mullaperiyar (between Kerala and Tamil Nadu), Bhabli (between Maharashtra and Andhra Pradesh/Telengana) and the Mahanadi (between Odisha and Chhattisgarh).

The apex court guidelines are important tools in resolving water allocation to various States, and the policy-makers, tribunals or water managers can effectively use them.

The writer is a former Secretary, Water Resources Ministry.

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