The government today denied that it was planning to include the subject of Water, presently in the State list, to the Union/ Concurrent List of the Constitution.
Clearing air on this matter, the Centre said in the Lok Sabha that the proposal to bring water in the Union / Concurrent list had earlier been examined by the two Commissions on Centre State Relations, and the proposal did not find favour with either of the two Commissions.
This was in response to a query raised by BJP MP from Maharashtra, Ashok Mahadeorao Nete.
Govt. has clarified that it is not planning to move Water to the Union/ Concurrent list, from the State list.This was in response to a Q raised by @AshokNeteMP #SeventhSchedule #Constitution pic.twitter.com/4DO7RgnPbw— Live Law (@LiveLawIndia) February 6, 2020
Govt. has clarified that it is not planning to move Water to the Union/ Concurrent list, from the State list.This was in response to a Q raised by @AshokNeteMP #SeventhSchedule #Constitution pic.twitter.com/4DO7RgnPbw
Notably, the issue of Inter-State relations was examined by two Commissions headed by Justice R.S. Sarkaria and Justice M.M. Punchhi, who submitted their respective reports in the year 1987 and 2010.
Water, as a subject finds mention in Entry 17 of List II, viz. "Water, that is to say, water supplies, irrigation, and canals, drainage and embankments, water storage and water power". However, this entry is made subject to the provisions of Entry 56 of List I.
Entry 56 reads,
"Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest"
A perusal of the two entries show that the States have absolute powers in respect of regulation and development of water resources, including the water that is sourced from inter-State river. The Constitution did not place regulation and development of waters of inter-State rivers and river valleys in List I. However, if the Parliament makes a requisition of inter-State rivers, under Entry 56, in public interest, such regulation and development will be carried out under the "control" of Union.
This arrangement was endorsed in the Sarkaria Commission's Report, as being "in consonance with the principle underlying the Constitutional scheme of distribution of powers".
The Commission opined,
"States have exclusive powers in respect of waters which are not part of inter-State rivers and are located within the territory of a State. But waters of inter-State rivers are not located in any one State. They only flow through their territories. No State, therefore, can lay claim to the exclusive use of such river-waters and deprive other States of their just share. Since the jurisdiction of a State by virtue of Article 245 is territorially limited, only Parliament can effecitvely regulate, by law the beneficial use and distribution of such waters among the States. That is why, by virtue of Entry 56, List I, Parliament has been enabled, by making the requisite declaration of public interest, to take over the field of Entry 17 of List II to the extent covered by such declaration and law."
"Regulation of optimum utilization and distribution of waters of inter-State rivers and river valleys between two or more States is a continuous process which throws up recurrent day-to-day problems having inter-State dimensions. None of the benficiary States by itself can regulate effectively the inter-State distribution of such waters and cope with the recurring problems which partly or wholly occur outside its territory, by the exercise of its legislative or executive power for the simple reason that its writ cannot run beyond its territorial limits. These problems if not obviated or resolved in time, may cause bitterness and tension in inter-State relations. In these changing circumstances, regulation and development of such inter-State river waters under the control of the Union may become expedient in the public interest."
A similar observation was also made by the Supreme Court much earlier, in the matter of: Cauvery Water v. Unknown, AIR 1992 SC 522, whereby it was held that in respect of the waters of an inter-State river,
"no State can effectively legislate for the beneficial use of such waters, first, because its legislative power does not extend beyond the territories of the State: secondly, because the quantum of water available to each of the States is dependent upon the equitable share of the other States, and thirdly, a dispute about the waters of an inter-State river can arise from any actual or proposed legislation of a State."
Later, the Punchhi Commission's Report also recognized that the present Constitutional arrangement was an ideal fit for the country. It observed that involvement of state and local bodies was essential for day to day administration and that involvement of the Centre was essential for management of equitable distribution between States.
The Commission also said that if such a shift in the case of water was allowed, it would lead to similar demands say in the case of "land", which is also a State subject.
"We are not in favour of initiating such a ripple effect in Centre-State relations," the Commission said.
In its report, the Commission also recognized the significance of Centre's control in matters of inter-State rivers for executing water Treaties, MoUs, etc. It said,
"Since three major river systems, namely Ganga, Brahmaputra and Indus cross the international borders the Central Government is required to play an important role in this regard too. The utilization of such waters (either as an upper or lower riparian) requires an understanding with other countries and results in Treaties, MOUs or other formal arrangements for information sharing. Treaties have been entered into with Pakistan, Bangladesh and Nepal. Several MOUs have been entered into with China relating to provision of hydrological information in the flood season. Obviously this role cannot but be performed by the Centre."