separation of powers and dispute redressal

Question 1

Art 131?

Answer 1

Original jurisdiction of SC fr disputes betn Centre and states

For a dispute to qualify as a dispute under Article 131, it has to

1. necessarily be between states and the Centre, and
2. must involve a question of law or fact on which the existence of a legal right of the state or the Centre depends.
3. In a 1978 judgment, State of Karnataka v Union of India, Justice P N Bhagwati had said that for the Supreme Court to accept a suit under Article 131, the state need not show that its legal right is violated, but only that the dispute involves a legal question.

Question 2

Mullaperiyar dam?

Answer 2

Although the dam is located in Kerala, it is operated by Tamil Nadu following an 1886 lease indenture for 999 years (the Periyar Lake Lease Agreement) that was signed between the Maharaja of Travancore and the Secretary of State for India for the Periyar Irrigation works.

• Constructed between 1887 and 1895, the dam redirected the river to flow towards the Bay of Bengal, instead of the Arabian Sea and provide water to the arid rain region of Madurai in Madras Presidency.
• The dam is located on the confluence of the Mullayar and Periyar rivers inKerala’s Idukki district.
• The dam is located in the upper reaches of the river Periyar. The reservoir is within the Periyar Tiger Reserve.
• The water diverted from the reservoir is first used for power generation in lower Periyar (by TN) before flowing into the Suruliyar, a tributary of Vaigai river, and then for irrigating nearly 2.08 lakh hectares in Theni and four other districts farther away.
• The water stored is evacuated through four giant pipes to Periyar power station (TN) and then to Cumbum valley. As the water level increases, howeer, spillage goes to Idukki reservoir via Periyar river

Question 3

Mullaperiyar dam dispute?

Answer 3

• Tamil Nadu claims that although it has undertaken measures to strengthen the dam, the Kerala government has blocked any attempt to raise the reservoir water level – resulting in losses for Madurai farmers.
• Kerala, however, highlights fears of devastation by residents living downstream in the earthquake-prone district of Idukki. An earthquake in the region measuring above six on the Richter scale, can endanger the lives of over three million people
• Safety concerns around the dam date back to the early 1960s, when media reported it was unsafe. Kerala brought up the issue before the Central Water Commission in 1961. After a joint inspection by Kerala and Tamil Nadu in 1964, the water level was reduced for the first time, from 155 ft to 152 ft.
• In 2006, the Supreme Court allowed Tamil Nadu to raise the water level to 142 ft. It said after completing strengthening work, the level could be restored to 152 ft if an expert committee examined and recommended it.
• In March 2006, the Kerala Assembly amended the Kerala Irrigation and Water Conservation Act, 2003, bringing Mullaperiyar in the schedule of ‘Endangered Dams’ and restricting its storage at 136 ft.
• In 2010, the Supreme Court formed an empowered committee to look into the dam’s safety.
• In November 2011, Kerala sought the Centre’s intervention to bring down water levels to 120 ft after the area witnessed minor tremors. In 2014 came the Supreme Court order allowing Tamil Nadu to fix the water level at 142 ft.
• The SC constituted a permanent Supervisory Committee in 2014 to oversee all the issues concerning Mullaperiyar dam.
• Kerala has been demanding a new dam replacing the existing one, and located 366 ft downstream. such a project would need the consent of Tamil Nadu. Construction of a new dam would also give rise to a demand for a new water-sharing treaty; at present, only Tamil Nadu has rights over the dam water.

Question 4

Mullaperiyar dam dispute: re-emerging issues in 2021?

Answer 4

What has revived the dispute is the unusual rains in the last couple of weeks, which have led to the water level inching towards its permissible level of 142 ft.

it reached 138.15 ft. Kerala had wanted the level fixed at 136 ft, but SC in 2014 allowed TN to raise it to 142 ft.

This time, while seeking a limit of 139 ft, Kerala pointed to a Supreme Court directive in August 2018 following the devastating floods in the state, wherein court ordered water level not to go beyond 139 ft. One of the factors contributing to the floods was sudden discharge from the Mullaperiyar dam, after its water level went beyond 142 ft and all spillway shutters of the dam suddenly lifted. The excess water from Mullaperiyar had then flowed to downstream Idukki reservoir, which was also at maximum storage level. The unexpected flow forced Kerala to increase the discharge, leading to flooding of several parts of central Kerala.

Question 5

Interstate River Water Disputes Act, 1956?

Answer 5

• According to Article 262, in case of disputes relating to waters:
  • Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
  • Parliament may, by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as mentioned above.
• Acc to the act,
  • if a SG makes a request regarding any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, then a Water Disputes Tribunal is constituted for the adjudication of the water dispute
  • The act was amended in 2002, to include the major recommendations of the Sarkaria Commission.
  • The amendments mandated a one year time frame to setup the water disputes tribunal and also a 3 year time, extendable by 2 yrs, to give a decision.
  • if the matter is again referred to the Tribunal by a state for further consideration, the Tribunal must submit its report to the central government within a period of one year. This period can be extended by the central government.

Question 6

Issues with Interstate Water Dispute Tribunals?

Answer 6

• Protracted proceedings and extreme delays in dispute resolution.
  • For example, in the case of Godavari water dispute, the request was made in 1962, but the tribunal was constituted in 1968 and the award was given in 1979 which was published in the Gazette in 1980.
  • The Cauvery Water Disputes Tribunal, constituted in 1990, gave its final award in 2007.
• Opacity in the institutional framework and guidelines that define these proceedings; and ensuring compliance.
• Though award is final and beyond the jurisdiction of Courts, either States can approach Supreme Court under Article 136 (Special Leave Petition) under Article 32 linking issue with the violation of Article 21 (Right to Life).
• The composition of the tribunal is not multidisciplinary and it consists of persons only from the judiciary.
• The absence of authoritative water data that is acceptable to all parties currently makes it difficult to even set up a baseline for adjudication.
• The shift in tribunals’ approach, from deliberative to adversarial, aids extended litigation and politicisation of water-sharing disputes.
• The growing nexus between water and politics have transformed the disputes into turfs of vote bank politics.
• Too much discretion at too many stages of the process. Partly because of procedural complexities involving multiple stakeholders across governments and agencies.

Question 7

The Inter-State River Water Disputes (Amendment) Bill, 2019?

Answer 7

1. Disputes Resolution Committee: Under the Bill, when a state puts in a request regarding any water dispute, CG will set up a Disputes Resolution Committee (DRC), to resolve the dispute amicably. The DRC will comprise of a Chairperson, and experts with at least 15 years of experience in relevant sectors, to be nominated by CG. It will also comprise one member from each state (at Joint Secretary level), who are party to the dispute, to be nominated SGs.
2. The DRC will seek to resolve the dispute through negotiations, within one year (extendable by six months), and submit its report to CG
3. If a dispute cannot be settled by the DRC, the central government will refer it to the Inter-State River Water Disputes Tribunal. Such referral must be made within three months from the receipt of the report from the DRC.
4. All existing Tribunals will be dissolved, and the water disputes pending adjudication before such existing Tribunals will be transferred to a new Inter-State River Water Disputes Tribunal, for the adjudication of water disputes. This Tribunal can have multiple benches.
5. The Tribunal will consist of a Chairperson, Vice-Chairperson, three judicial members, and three expert members. They will be appointed by the central government on the recommendation of a Selection Committee. CG may also appoint two experts serving in the Central Water Engineering Service as assessors to advise the Bench
6. Under the Bill, the proposed Tribunal must give its decision on the dispute within two years, which may be extended by another year.
7. Under the Act, the decision of the Tribunal must be published by the central government in the official gazette. This decision has the same force as that of an order of the Supreme Court. The Bill removes the requirement of such publication. It adds that the decision of the Bench of the Tribunal will be final and binding on the parties
8. The Bill also calls for the transparent data collection system at the national level for each river basin and a single agency to maintain data bank and information system.

Question 8

Assam Meghalaya Border Dispute?

Answer 8

Assam and Meghalaya share an 885-km-long border. Meghalaya was carved out of Assam under the Assam Reorganisation Act, 1971, a law that it challenged, leading to disputes.

• As of now, there are 12 points of dispute along their borders. These include the areas of Upper Tarabari, Gazang reserve forest, Hahim, Langpih, Borduar, Boklapara, Nongwah, Matamur, Khanapara-Pilangkata, Deshdemoreah Block I and Block II, Khanduli and Retacherra.

Langpih:

A major point of contention between Assam and Meghalaya is the district of Langpih in West Garo Hills bordering the Kamrup district of Assam.

• Langpih was part of the Kamrup district during the British colonial period but post-Independence, it became part of the Garo Hills and Meghalaya.
• Assam considers it to be part of the Mikir Hills in Assam. Meghalaya has questioned Blocks I and II of the Mikir Hills -now Karbi Anglong region – being part of Assam. Meghalaya says these were parts of erstwhile United Khasi and Jaintia Hills districts.

Efforts to solve the dispute:

• Both Assam and Meghalaya have constituted border dispute settlement committees.
• Recently, Assam Chief Minister Himanta Biswa Sarma and his Meghalaya counterpart Conrad Sangma decided to set up two regional committees to resolve the border disputes in a phased manner.
• Sarma recently said five aspects were to be considered in resolving the border dispute. They are historical facts, ethnicity, administrative convenience, mood and sentiments of the people concerned and the contiguity of the land.

Question 9

Devas-Antrix deal and issue?

Answer 9

A 2005 satellite deal between Antrix Corporation — the commercial arm of the Indian Space Research Organisation (ISRO) – and Devas Multimedia Pvt Ltd, a start-up headquartered in Bengaluru, is at the heart of a global legal tussle between the Indian government and foreign investors in Devas. The tussle is a fallout of the cancellation of the deal in 2011 by the then UPA government citing requirement of satellite spectrum allotted to Devas for security purposes.

• About the deal
  
  • Under the deal, ISRO would lease to Devas two communication satellites (GSAT-6 and 6A) for 12 years for Rs 167 crore.
  • Devas would provide multimedia services to mobile platforms in India using S-band transponders on the satellites, with ISRO leasing 70 MHz of S-band spectrum.
  • The deal progressed smoothly for six years before it was annulled by the UPA government in 2011 to terminate the agreement to use the S-band for security purposes.
  • The government decision was taken in the midst of the 2G scam and allegations that the Devas deal involved the handing over of communication spectrum valued at nearly Rs 2 lakh crore for a pittance.
  • Devas got a total of Rs 579 crore foreign investment with clearances from the Foreign Investment Promotion Board. Deutsche Telekom held 20.7% of the stake while three Mauritius investors held 37.5% when the deal was annulled in 2011.
• What happened after the scrapping of deal
  
  • Devas and its foreign investors approached various international tribunals and courts seeking compensation.
    
    • Devas was awarded compensation of $1.2 billion by an International Chamber of Commerce tribunal on September 14, 2015,
    • Deutsche Telekom was awarded $ 101 million plus interest by the Permanent Court of Arbitration in Geneva on May 27, 2020, and
    • the Mauritius investors were awarded $111 million by the UN Commission on International Trade Law tribunal on October 13, 2020.
    • The German investors claimed compensation for violation of an India-Germany bilateral investment treaty and the Mauritius investors for an India-Mauritius BIT.
  • The $1.2 billion award was confirmed by the US federal court
  • In 2013 and 2014, ED and CBI investigated Devas. ED filed a chargesheet in 2018 under PMLA against a former managing director of Antrix and five Devas officials
• Antrix filed a plea in the National Company Law Tribunal in January 2021 for liquidation of Devas in India, which it said was incorporated in a fraudulent manner. On May 25, the NCLT ordered the liquidation, which was upheld by the National Company Law Appellate Tribunal on September 8, 2021 and by the Supreme Court in 2022

Question 10

Mekedatu dam issue?

Answer 10

● Mekedatu is a multipurpose (drinking and power) project. Mekedatu, meaning goat’s leap, is a deep gorge situated at the confluence of the rivers Cauvery and its tributary Arkavathi.

● It was first approved by the Karnataka state government in 2017.

● It received approval from the erstwhile Ministry of Water Resources for the detailed project report and is awaiting approval from MoEFCC

• approval from MoEFCC is crucial because 63% of the forest area of the Cauvery Wildlife Sanctuary will be submerged.

● It involves building a balancing reservoir, near Kanakapura in Ramanagara district in Karnataka.
● The project once completed is aimed at ensuring drinking water to Bengaluru and neighboring areas (4.75 TMC) and also can generate 400 MW power.
● The estimated cost of the project is Rs 9,000 crore

Why Tamil Nadu is against this project?
1. It says, the CWDT and the SC have found that the existing storage facilities available in the Cauvery basin were adequate for storing and distributing water so Karnataka’s proposal is ex-facie (on the face of it)
untenable and should be rejected outright.
2. It has also held that the reservoir is not just for drinking water alone, but to increase the extent of irrigation, which is in clear violation of the Cauvery Water Disputes Award.

Water sharing between Karnataka and Tamil Nadu:
Karnataka is supposed to release Cauvery water from three sources:
1. One being the water flowing in the areas downstream River Kabini, catchment areas of Krishnarajasagar reservoir, the sub-basins of Shimsha, Arkavathi, and Suvarnavathi rivers, and the water from minor rivers.
2. Secondly, water is released from Kabini dam.
3. The third source is water that is released from Krishnarajasagar dam.
In the case of the second and third sources, which are under the control of Karnataka, water is released to TN only after storing sufficient water for their use.
● Since there is no dam in the first source, water from these areas have been freely flowing into TN without a hitch.

● But now, TN state government felt that Karnataka was “conspiring” to block this source as well through the Mekedatu dam.
● Mekedatu zone represented the last free point from where Cauvery water flowed unrestricted into the downstream state of TN from the upstream Karnataka

Question 11

Cauvery river dispute?

Answer 11

• It is known as ‘Ponni’ in Tamil also known as Ganga of the south, and it is the fourth largest river of southern India.
• It is a sacred river of southern India. It rises on Brahmagiri Hill of theWestern Ghats in southwestern Karnataka state, flows in a southeasterly direction through the states of Karnataka and Tamil Nadu, and descends theEastern Ghats in a series of great falls and drains into Bay of Bengal through Pondicherry.
• Some of its tributaries are Arkavathi, Hemavathi, Lakshmana Theertha, Shimsa, Kabini and Harangi.

Dispute

• dispute therefore involves 3 states and one Union Territory.
• The genesis of the dispute is 150 years old and dates back to the two agreements of arbitration in 1892 and 1924 between the then Madras presidency and Mysore.
• It entailed the principle that the upper riparian state must obtain consent of lower riparian state for any construction activity viz. reservoir on the river Cauvery.
• From 1974, Karnataka started diverting water into its four newly made reservoirs, without the consent of Tamil Nadu resulting in a dispute.
• To resolve the matter, the CWDT was established in 1990 which took 17 years to arrive at the final order (2007) on how Cauvery water should be shared between the 4 riparian states in normal rainfall conditions.
• In distress years, a pro-rata basis shall be used, it instructed. The government again took 6 year and notified the order in 2013.
• This was challenged in SC which directed Karnataka to release 12000 cusecs of water to Tamil Nadu prompting protests in the State.
• The final verdict of the SC came in 2018 where it declared the Cauvery a national asset and largely upheld the water-sharing arrangements finalised by the CWDT and also reduced the allocation of water from Karnataka to Tamil Nadu.
  • As per the SC, Karnataka would get 284.75 thousand million cubic feet (tmcft) (In the original CWDT order it was 270 tmcft, thus SC increased it), Tamil Nadu 404.25 tmcft, Kerala 30 tmcft and Puducherry 7 tmcft.
  • It also directed the Centre to notify the Cauvery Management Scheme. The central government notified the ‘Cauvery Water Management Scheme’ in June 2018, constituting the ‘Cauvery Water Management Authority’ and the ‘Cauvery Water Regulation Committee’.

Question 12

Cauvery Management scheme?

Answer 12

scheme provides the ways and means to implement the modified Cauvery Water Disputes Tribunal’s order.

As per the scheme, the Cauvery Water Management Authority and the Cauvery Water Regulation Committee will decide and implement the sharing of the Cauvery river waters among the riparian States of Karnataka, Kerala and Tamil Nadu and the Union Territory of Puducherry.

While the Authority will oversee the storage, apportionment, regulation and control of Cauvery waters, the Committee will monitor the daily water levels, inflows and storage position at major reservoirs storing the Cauvery water.

Cauvery Water Management Authority

The CWMA will be headed by the Chairman, a senior and eminent engineer or a Secretary/Additional Secretary-level executive with experience in handling inter-state water disputes. The Authority will have two whole-time members and six part-time members, including one each nominated from the riparian States. There will be a Secretary from the Central Water Engineering Services cadre, but without voting rights.

The tenure of the Chairman will be for five years, while the tenure of other members will be three years and can be extended upto five years.

The Authority will regulate the control of Cauvery water, supervise of operation of reservoirs, and most importantly regulate the release of water by Karnataka to Tamil Nadu from the Billigundulu gauge and discharge station.

On June 1 every year, the Authority will determine the total residual storage in reservoirs, decide on the share of each State, and determine the withdrawals by each State.

In case of deficiency in the water availability, the Authority will consider reduction of water. The decision will be taken based on voting by the members. It will also consider states’ proposal on creating new water storage facilities.

Cauvery Water Regulation Committee

The CWRC will be headed by Whole-Time Member (Water Resources) of the Authority and comprise representatives from the riparian States, the India Meteorological Department, the Central Water Commission, Ministry of Agriculture and a Member Secretary.

The Committee will collect details such as storage, inflows and water levels at various reservoirs on a daily basis. Based on these reports, the Authority will finalise on the quantum of share of water.

Question 13

Krishna water dispute?

Answer 13

• Source: It originates near Mahabaleshwar (Satara) in Maharashtra. It is the second biggest river in peninsular India after the Godavari River.
• Drainage: It runs from four states Maharashtra (303 km), North Karnataka (480 km) and the rest of its 1300 km journey in Telangana and Andhra Pradesh before it empties into the Bay of Bengal.
• Tributaries: Tungabhadra, Mallaprabha, Koyna, Bhima, Ghataprabha, Yerla, Warna, Dindi, Musi and Dudhganga.

Dispute

• Krishna Water Disputes Tribunal:
  
  • In 1969, the Krishna Water Disputes Tribunal (KWDT) was set up under the Inter-State River Water Dispute Act, 1956, and presented its report in 1973.
  • The report, which was published in 1976, divided the 2060 TMC (thousand million cubic feet) of Krishna water at 75 per cent dependability into three parts: 560 TMC for Maharashtra, 700 TMC for Karnataka and 800 TMC for Andhra Pradesh
  • At the same time, it was stipulated that the KWDT order may be reviewed or revised by a competent authority or tribunal any time after 31st May, 2000.
• Second KWDT
  
  • The second KWDT was instituted in 2004. It delivered its report in 2010, which made allocations of the Krishna water at 65 % dependability and for surplus flows as follows: 81 TMC for Maharashtra, 177 TMC for Karnataka, and 190 TMC for Andhra Pradesh.
• After the KWDT’s 2010 report:
  
  • Andhra Pradesh challenged it through a Special Leave Petition before the Supreme Court in 2011. This stopped the Centre from publishing in the Official Gazette (under Section 6(1) of the Inter-State Water Disputes Act of 1956) the final order of the Krishna Water Disputes Tribunal II (KWDT) pronounced in December 2010
  • In 2013, the KWDT issued a ‘further report’, which was again challenged by Andhra Pradesh in the Supreme Court in 2014.
• After the creation of Telangana, Andhra Pradesh has asked that Telangana be included as a separate party at the KWDT and that the allocation of Krishna waters be reworked among four states, instead of three. After the creation of Telangana from Andhra Pradesh in 2014, the Water Resources Ministry has been extending the duration of the KWDT.