Under the Indian constitution, a state government has the power to make laws in respect of water resources of that state. The Parliament has the power to legislate the regulation and development of interstate rivers. Thus the authority of the state Government over water can be exercised, subject to certain limitations that may be imposed by the Parliament.
Here it is important to make clear distinction between an inter-state river and an intra-state river. A river that lies within one state from its source to its mouth is an intra-state river and any river which flows in the territory of two or more states is an inter-state river.
The legislative framework of the constitution related to water is based on Entry 17 of the State List, Entry 56 in the Union List, and Article 262 of the Constitution. These are:
a) Entry 17 in List II (State List) in Schedule VII
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. It can be seen immediately that it is not an unqualified entry. Although water is in the State List, this is subject to the provisions of Entry 56 in the Union List, which reads as:
b) Entry 56 of List I (Union List):
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.
c) Also relevant here are the provisions of Article 262:
(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) Not withstanding 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).Some other articles and entries may also have a bearing on the matter.
Article 248 (Residuary powers of legislation):
Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.
Article 254: Inconsistency between laws made by Parliament and laws made by the Legislatures of States
If any provision of a law made by the Legislature of a State is repugnant to any provision of a law-made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the state shall, to the extent of the repugnancy, be void.
Provided that nothing in this clause shall, prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. So far the Parliament has not made much use of the powers vested in it by the Entry 56 of the Union List. In view of the supremacy of the parliament, it is not totally right to say that water is a state subject. Moreover, most of India’s important rivers are inter-state. Hence, water is potentially as much a union subject as a state subject. Further, the legislative power of a state under Entry 17 has to be exercised in such a manner that the interests of other states do not suffer adversely and a dispute is created.
The power and role given to the Union Government with regard to the management of inter-state rivers is very important and necessary. In this context, the provisions of Entry 20 in the Concurrent List, namely, economic and social planning, are also quite relevant. By virtue of this provision, the major and medium irrigation, hydropower, flood control and multi-purpose projects are required to seek clearance of the central government for inclusion in the national plan.