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CHAPTER 1

National And Constitutional Aspects

Every nation state has some set of rules to regulate the operation of its basic organs which is termed its constitution. It is the will of the sovereign authority of the nation and spells out aims, objectives and aspirations of the people who are the ultimate power of a country. Constitution of a country may be written or unwritten. Constitutional law is the sum total of elaborations and explanations relating the constitution to various organs and functions of the state. Anarchy is the only alternative to constitution.

Framers of the Constitution of India laboured hard at its drafting. They took cognizance of constitutions and constitutional practices of various countries as well as the obtainable circumstances in India and endeavoured to provide for myriad eventualities in the operation of the Constitution. Resultantly, India got the lengthiest of all constitutions in the world spelling out details how the country is to be governed.

India is a federal polity comprising of the Union (central) and its constituent units (States). Part XI of the Constitution of India deals with “Relations Between The Union And The States”. Chapter 1 of this part spells out Legislative Relations – Distribution of Legislative Powers between the Union and States. Article 246 of the Constitution enunciates, “Subject-matter of laws made by Parliament and by the Legislatures of States”.

1. Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List).

2. Notwithstanding anything in clause (3), Parliament and subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).

3. Subject to clauses (1)and (2), the Legislature of any State has the exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in Seventh Schedule ( in this Constitution referred to as the “State List”).

4. Parliament has power to make laws with respect to any of the matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

Entry 17 of List II- State List reads:

“Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I.”

Entry 56 of List I= Union List is as under:

“Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and developments under the control of the Union is declared by Parliament by law to be expedient in the public interest”

The above leaves nothing in doubt that the rivers in a State are under exclusive legislative domain of that State.

Benefiting from centuries old experience of resolving of river water disputes by various countries, framers of the Indian Constitution not only recognized the usefulness of riparian rights of the parties but also specifically incorporated provisions in the Constitution concerning the rights of riparian States and laid down mechanism for the resolution of disputes arising of such rights. Article 262 regarding ‘Disputes relating to Waters’ reads:

“ Article 262. Adjudication of disputes relating to waters of inter-State rivers or river valleys: -

1. 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.
2. Notwithstanding anything in this Constitution, 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 is referred to in clause(1).
Thus the Constitution not only bars the Parliament from legislating over intra-State rivers, it empowers the Parliament hedgingly to take up legislation over matters concerning inter-State river waters only after analyzing and declaring by law that such legislation concerning inter-State river waters is expedient and in the public interest.

Inviolable legislative rights of States over matters concerning intra-State waters, buttressed with the emphatic elucidation of the Joint Parliament Committee, brook no interference. The Joint Parliamentary Committee while in the process of drafting the Constitution in its report on settlement of inter-State water disputes observed: -
“The effect of this is to give each Province complete powers over water supplies within the Province without any regard whatsoever to the interests of neighboring Provinces.”

It is explicit that rivers fall under the legislative control of the State in which they lie and such rivers are beyond the legislative ambit of the Union.

Framers of the Constitution of India were fully conscious that the disputes relating to inter-State rivers are loaded with such complexities and emotions that would not be amenable to resolution through courts as the courts are obliged to function under specified judicial procedures, rules and regulations. Consequently, the Constitution specifically kept such disputes outside the jurisdiction of the courts including the Supreme Court.

 

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