Subansiri River Water Dispute Tribunal - Mega Dam Projects of North-East India

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Mega Dam Projects- Impacts on Assam, Arunachal Pradesh and other North-Eastern States

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About the Author - Dr. Sanjib Baruah

Dr. Sanjib Baruah is currently professor of political science at Bard College in New York, United States. His articles on the Lower Subansiri Mega Dam projects is an ey opener of not only for the authorities constructing the project and also for the common people of North-East India. He is the author of many books like "India against Itself: Assam and the Politics of Nationality", "Durable Disorder: Understanding the Politics of Northeast India", etc.

The Ministry of Water Resources has now on its website the draft National Water Policy 2012. Parts of the document may surprise those following the debates on Lower Subansiri. Some of the ideas are fully in line with what the protesters are saying about how decisions ought to be made on mega dams. The statement that "public agencies in charge of taking water related decisions tend to take these on their own without consultation with stakeholders" could have been easily written by one of the protest leaders. Most protesters would also welcome the idea spelt out in the draft National Water Policy that a river basin or sub-basin should become the unit "for planning, development and management of water resources."

The draft national water policy is the latest in India’s ongoing efforts to comprehensively reform the rules, laws and institutions governing the country’s water sector. The growing pressure on fresh water resources -- expected to get worse with climate change - is driving these reforms. It is widely recognized that the rules and laws made in an era of water surplus are inadequate for meeting contemporary challenges. Moreover the gigantic scale of some projects that are now under construction, or are on the drawing board, such as the large hydropower dams in remote mountains or inter-basin water transfer projects, could not have been anticipated when the rules of the old water use regime were written.

Do the anticipated changes in the water use regime explain the extraordinary speed in which Arunachal Pradesh is moving to develop its hydropower potential? How else would one explain what the former Minister for the Environment Jairam Ramesh had described in 2008 as a "MOU virus" - the mad scramble to sign memorandums of understanding with private parties to build hydropower projects? Central government entities too have often provided clearances for these projects with remarkable haste - treating procedures such as public consultations as perfunctory. Is there an attempt to create realities on the ground before India’s rules on water use are redefined? It is little surprise that a region which has plenty of water for now is fast turning into a major site of water conflicts.

Whatever form India’s future water use regime may take, in the foreseeable future the antiquated water use regime will continue to provide the framework for decision-making. The people of Assam will have to live with the consequences of decisions made under a water use regime that the Indian government itself evidently regards as fundamentally flawed. And unfortunately, at least for the moment Assam has little choice but to find ways of redressing its grievances within the rules of the existing water use regime.

Despite disagreements between the Assam state government and the protesters on Lower Subansiri, the two sides seem to agree that the Lower Subansiri project will significantly impact the downstream areas of Assam - and that many of the effects are going to be negative.

Chief minister Tarun Gogoi has spoken of "a legislation for mitigating the downstream impact" and for compensating "the affected people even to the extent of three times of their loss." Power Minister Pradyut Bordoloi has called for central legislation to ensure that Assam as the state that would bear most of downstream burden of hydropower projects built in Arunachal Pradesh, has a voice in the approval of future projects.

But what are the avenues currently available before the Assam government to protect the interests of its citizens? Under the Constitution almost all aspects of water, except for an interstate river, is under the exclusive control of states. However, as Supreme Court advocate K.K. Lahiri points out, the power to legislate on water "ought not to be confused with ownership or proprietary rights and no State has any proprietary rights in river waters."

The "regulation and development of inter-state rivers and river valleys" is under the central government’s jurisdiction. Article 262 of the Constitution says that "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." Under the Inter-State Water Disputes Act of 1956 [ISWDA] states can file complaints when differences arise between two or more States on "the use, distribution or control of the waters of, or in, any inter-State river or river valley." If the dispute cannot be settled by negotiations, the central government can create a tribunal to adjudicate the dispute.

The parliament according to Article 262 can make laws excluding inter-state water disputes from the jurisdiction of the Supreme Court or any other court. In 2010 the Gauhati High Court refused to admit a Public Interest Litigation petition on the Lower Subansiri project citing a Supreme Court verdict that Article 262 of Constitution read along with the Inter-State Water Disputes Act of 1956 "categorically bars the jurisdiction" of all courts in river disputes "referable to a tribunal." In support of its decision the High Court also cited a Supreme Court ruling saying that the ISWDA allows only a state government to raise an inter-State water dispute: "individuals or groups of individuals are not given any right to raise water disputes."

The law however, said the Gauhati High Court "does not bar the right of the petitioner to ventilate the grievance" before the Government of Assam and convince the government "that the petitioner has genuine grievance, which is required to be attended. The Government of Assam, if so convinced that the grievance of the petitioner is required to be attended, there is nothing which prohibits the state of Assam from seeking a reference under the provisions of the law."