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Forum's Comments and Suggestions on the Draft National Policy Guidelines for Water Sharing / Distribution amongst States

The Honourable Minister
Ministry of Water Resources
Government of India

Dear Sir,

We the members of the Forum for Policy Dialogue on Water Conflicts in India wish to present our comments on the “Draft national policy guidelines for water sharing / distribution amongst states” for your consideration and action.  The Forum is a loose network of more than 150 organisations and individuals who have been working in different areas in the water sector of the country and include many of the senior experts, activists and academics in the country (see for details).

There are already enough laws in place to share water among basin states as indicated in the guideline document itself. It is not clear how the new guidelines are going to add value addition to the principles concerning water sharing among contending states. Secondly it is also not clear weather the new guidelines in water sharing have been framed keeping in mind the unresolved inter-state water disputes in India. In other words the rationale for framing such guidelines needs to be spelt out unambiguously. Furthermore, the draft policy guidelines mentions that the applicability of it is only “recommendatory” in nature meaning that these guidelines are not mandatory and that they are not backed by any further legislation. Besides, it is important to make it clear to whom these guidelines are addressed and to what effect.

The broad objective governing the sharing / distribution of water is: Developing the waters of inter-State rivers for the betterment of the population of the co-basin States / Union Territories such that “developments are not detrimental to the interests of one another and are guided by national perspective”. The broad objective of water sharing principle should also emphasise the need for protecting overall health and ecology of rivers and river basins.

On General Principles

3.1 Very large basins such as the Indus, the Ganga-Brahmaputra-Meghna basin would be treated separately for water sharing as a matter of convenience: Does this come into conflict with the principles of hydrology?

3.2 Right of Water Use –The present phrase “ There could only be a right to take and use the water” needs explanation. How is this phrase different from riparian rights and other international principles such as Helsinki rules on water sharing?

Equitable Apportionment

The Principle of Equity shall apply to the sharing / distribution of water of inter-State rivers and river valleys. What are those principles? The guidelines also prescribe that
quantum of water share between states shall be taken into account for meaningful calculations only if water is stored in a reservoir, diversion from a stream etc. How about water that is stored in tanks or lakes? Tanks are also considered ‘artificial retentions” many of which are man-made. The guidelines also prescribe that “sharing/distribution of water on monthly or seasonal basis amongst concerned co-basin states could be as mutually agreed to by them”. The problem of dispute arises precisely here: The contending states hardly get into agreement in sharing a given quantum of water month wise. The question is what if the states do not mutually agree as it happens in the case of Cauvery water dispute between Tamil Nadu and Karnataka.

4.9 The most important issue is the existing inter-state agreements (disputes): The present draft guidelines does not help in the case of unimplemented agreements and awards. Since the whole debate and concerns arise precisely because of such unimplemented agreements and awards, the draft guidelines could have given some definite directions in order to be helpful to the implementing authorities for getting over bottlenecks.

One of the crucial assertions or declarations made in the guidelines relates to the requirement of river water flow “for environmental or ecological considerations of the rivers, estuary, maintenance of proper navigation in the National Waterways and for meeting international obligations or for maintaining good international relation in respect of rivers which are international”. This is seemingly an important normative concern and remains as such. There are no methods or ways and means indicated in the guidelines to ensure river flow for such purposes. Without modalities, implementation and monitoring mechanisms, simple expressions of interests and concerns would not make much headway. 

4.11.1  Water Quality

“A State should prevent such deterioration of the quality of the basin water passing from its territory to that of another…”. This is again an expression of concern on water quality discharged by an upstream state to the detriment of a downstream state. In the absence of any convincing preventive, implementation and monitoring measures, the intensity of pollution of rivers would continue to increase. While at the same time, the government would continue to spend a substantial amount every year on river cleaning only to add to the GDP account without contributing much to the restoration of river ecology.   

4.12 Long Distance Water Transfer (LDWT) / Interlinking

Long distance water transfers / inter-basin transfers / interlinking of rivers have been a much debated subject. The guidelines indicate that when such inter-basin / long distance water transfers take place it would be “decided by the concerned basin States and the Central Government in the national interest after taking into account the present and future requirements of the basin”. A lot on this subject have already been said and communicated to the government and the Ministry should note the considerable amount of well articulated opposition to the interlinking project

4.4 Forms of Sharing/Distribution

The sharing / distribution of water according to the guidelines shall take into account all storage of water and diversion of water from a natural stream. There are supposedly authorised storage reservoirs and diversions. How about those unauthorized storages, diversions and pumping of water? It is still a big question of how to prevent and take such unauthorized diversions / pumping into account for purposes of water sharing between basin states. 

Clause 4.4 specifies that quantification for sharing/distribution of water amongst the states in the river basin will be based on “availability of water… and the techno-economic viability of its utilisation”; 4.5 goes on to say that “sharing/distribution of the water amongst co-basin states would be in the form of a right to utilize the water”. These two clauses needs clarification otherwise may lead to conflicts amongst the co-basin states.

4.5 Withdrawal vis-a-vis Utilisation

The guidelines seem to suggest to upstream state not to resort to any modernization measure in order to increase water saving / water use efficiency: “Where the availability of water to a downstream user is likely to be adversely affected
because of full utilization due to modernization, better management, conjunctive use etc. in an existing scheme of withdrawal by an upstream user resulting in reduction of the return flow, the scheme of sharing/distribution can place restriction on such a full utilization”. While it is important to maintain certain agreed quantum of water flow to a downstream state, it is undesirable to restrict water use efficiency measures as may be adopted by an upstream state. 

4.7 Sharing/Distribution amongst States vis-a-vis Sharing/Distribution amongst Uses

The guidelines make sweeping statements as regards use of and sharing of water for different purposes. It says, though the priorities of uses have been indicated by the National Water Policy 2002, it may differ from state to state and intra-state. These priorities of use in states “could be considered during the process of determining the sharing/distribution..”. It further adds, “The State should normally be free to use its share of water for any beneficial purpose unless specific restrictions are warranted from over-riding national priorities without detriment to the interests of other co-basin State(s)”. The use of water “for any beneficial purpose” is rather sweeping and warrants a clarification and qualification. Indeed, water for agriculture should be given a higher order priority (as compared to industrial use) in order ensure not only livelihoods of millions in rural India but also to ensure national food security.

Also, it should be noted that there is the latest National Water Policy (2013) which has a different way of articulating the water use prioritisation. This does not seem to have been referred to.

The discrepancy in normatively identifying the share of water for sharing/distribution on the criteria of its likely use and then decoupling it with the actual utilization of the shared/distributed water may lead to disputes amongst the states.

Clause 4.10 mentions “a non-basin state may claim interest in the waters of a basin on account of various factors. Such claim or a part of it may be found fit for consideration in the scheme of sharing/distribution, in the national interest”. This may lead to problems not only related to federal management in a country (India) of sub-continental size but also result in all likelihood establishing the hegemony of the economically/politically dominant states over the peripheral ones

Guidelines for Equitable Sharing

5.1 Relevant factors to be considered for equitable distribution do not convey much: The factors as indicated by the guidelines for equitable sharing may be relevant for a new agreement of inter-state water sharing. But in India, most of the inter-state water sharing agreements have been pretty old – some of them have occurred even during pre-independence period. As such there does not seem to be any prospects for the emergence of new inter-state water sharing agreements except perhaps when new states are formed (Telangana state for instance). On the other hand there may not be much use of the factors indicated by the guidelines for the existing inter-sate water agreements, in particular those indicated by 5.1 (b).  

In fact there should be a provision to review all past inter-state agreements, including the ones entered into during the colonial period, in the light of the new guidelines.

Chapter VI of the guidelines is important: It discusses monitoring, administration and conflict resolution mechanism of inter-state water sharing agreements.

First of all, the guidelines recognise the fact that “any scheme of inter-State water sharing/distribution should have an inbuilt provision for monitoring the implementation and for resolution of the differences that may arise”. But the inbuilt provisions are disappointing:

6.1.1. Monitoring refers only to the information collection, management and dissemination to basin states.

6.1.2  An administrative machinery like Basin Authority/Board (with executive powers) is suggested for administering and overseeing the inter-state agreements. At the moment such a Board is constituted after the adjudication process is over and after gazetting the final award affirmed by a Tribunal. Although it is a valuable suggestion, there does not seem to be much relevance since most of the inter-state disputes in India either have gone through the adjudication process through the Court of Law or currently go through such a legal process. Therefore, after the legal process and after the declaration and gazetting of the final award by a duly constituted Tribunal, Management Board in any case will have to be constituted as per the provisions of the existing law.

Nevertheless, the most important question is what happens if basin states do adhere to the principles of water sharing as laid in a Final Award affirmed by a duly constituted Tribunal? As per the 1956 ISWD Act, the Final Award is “final and binding”. Indeed, as it has happened in the case of Cauvery water dispute, several questions remain unanswered in the case of Inter-state water sharing agreements.

In Conclusion

In the overall analysis of the draft policy on water sharing seems to be built around the paradigm where water is seen through the spectacle of commodity trade instead of focussing on its geo-ecological and cultural aspects.

It is important to see that that this proposed guidelines are in line with the provisions in the draft Water Framework Law and also the Draft River Basin Management Bill 2012.

All the existing inter-state water sharing agreements need to be reviewed in the light of the provisions in the guidelines (and also the proposed Water Framework Law and also the Draft River Basin Management Bill 2012).

We also feel that the Ministry should not rush through this: should give much more time for feedback and also take up extensive consultation and also make the draft available in regional languages.

We hope the MoWR would give the due seriousness to the detailed comments and recommendations made. We can also provide further clarifications, if needed. We also look forward to a response to this detailed letter and a meeting with your office for taking this forward.
Yours sincerely,

Steering Committee Members: Forum for Policy Dialogue on Water Conflicts in India (Forum)
Amita Shah, Eklavya Prasad, Gorky Chakraborty, Himanshu Kulkarni, Janakarajan S., Josantony Joesph, Joy K. J. Latha A., Partha J. Das, Philippe Cullet, Shripad Dharmadhikary, Soma K.P., Suhas Paranjape

K. J. Joy
Phone: 020-25886542, 9422505473