Single tribunal to decide all Inter-state Water Disputes

Inter-state water disputes in India is a perennial problem having its implications on not only inter-state relations but also on the very fabric of Indian federalism. Recently, the states like Tamil Nadu-Karnataka (Cauvery basin), Goa-Karnataka-Maharashtra (Mahadayi) and Odisha-Chhattisgarh (Mahanadi) were seen fighting over sharing of river water. In December 2016, the Central Government has decided to set up a single, permanent Tribunal to adjudicate all inter-State river water disputes. This single body will subsume all existing tribunals for resolving grievances of inter-State water disputes in a speedy manner. Besides, the government is also expected to form some benches and set up Dispute Resolution Committee (DRC) by amending the Inter-State Water Disputes Act, 1956.

Questions and Answers

The topic should be understood in the light of below questions.

1. What are the existing constitutional and legal provisions regarding water?
2. What are the newly proposed mechanisms?
3. What are various rationale behind the new proposals?
4. Discuss the pros and cons of the proposed mechanisms.
5. What is the way forward?

What are the existing constitutional and legal provisions regarding water?

Water is a state subject as per entry 17 of the State List in 7th schedule of the constitution. This entry says: “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“. Thus, entry 17 leaves water in states domain but keeps it subject to entry 56 of the Union List which mentions: “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.”

Thus, inter-state river and river valleys in the country are placed in Union List. Further, Article 262, empowers the parliament to provide by law that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of inter-state water disputes. Thus, as far as inter-state water disputes are concerned, the courts are barred to hear such disputes. However, Supreme Court still takes the matter under the so called “Special Leave Petition” under article 136.

Using the powers of article 262, the parliament enacted the Interstate River Water Disputes Act, 1956 (IRWD Act) to resolve the water disputes that would arise in the use, control and distribution of an interstate river or river valley. IRWD Act is applicable only to interstate rivers / river valleys. If the action of one state affects the interests of one or more other states, then only water dispute is deemed to have arisen under IRWD Act.

What are the Newly Proposed Mechanisms?

The newly proposed mechanisms can be divided into three parts viz. Tribunal, Benches and Dispute Resolution Committee (DRC).

Tribunal

• A single, permanent tribunal subsuming all the existing tribunals is proposed to be established to resolve grievances of states with speed and efficiency.
• The chairperson of the tribunal will be a retired judge of the Supreme Court. As per the existing provisions of the 1956 act, a tribunal can only be formed whenever a state government approaches the central government with a request and the central government is convinced that there is a need for the formation of such a tribunal.
• The proposed tribunal is expected to deliver its verdict within a span of three years.
• In addition, the proposed tribunal is expected to have more teeth as its verdict will get automatically notified. Until now, the verdicts of the tribunals were notified by the government. This practice was causing delays in the implementation of the orders of the tribunals.

Benches

• Besides the Tribunal, some benches are also proposed to be set up by amending the Inter-State Water Disputes Act, 1956 to adjudicate disputes as and when required. But unlike the Tribunal, the benches are not of permanent nature and will be wound up once the disputes are resolved.

Dispute Resolution Committee (DRC)

• Along with the tribunal, the amendment has also proposed to set up Dispute Resolution Committee (DRC) to handle disputes prior to the tribunal. The DRC will comprise of experts and policy-makers.
• The Union Government will set up a DRC upon a request made by a state. The government expects that most of the disputes to get resolved at the DRC’s level. However, if a State is not satisfied, it has the option to approach the tribunal.

What are various rationale behinds the new proposals?

The rationale behind the new proposals can be understood with respect to (1) inordinate delay in solving water disputes (2) problems with present institutional structure, and (3) implications of water over Indian federalism.

(1) inordinate delay in solving water disputes

The existing water tribunals were found to be very slow taking decades to deliver final awards into disputes. Hence, provisions have been made to make the proposed tribunal to deliver the verdict within a span of three years.

Inordinate delay has resulted in making the inter-state water disputes a very costly affair in India. To begin with, there is inordinate delay in constituting the tribunal itself. Under Section 4 of the 1956 Act, the central government is required to constitute a tribunal only when it is of the opinion that the dispute cannot be settled by negotiations. Thus, the union government can indefinitely withhold the decision to set up a tribunal. For instance, in the Cauvery dispute, Tribunal was constituted only in 1990 while the party states (Tamil Nadu and Kerala) had requested for the constitution of a tribunal in the 1970s itself. Similarly, in the Godavari and Krishna disputes, the tribunal was constituted only in 1969 while the party states were requesting for reference from 1962 onwards while the dispute started way back in 1956.

(2) Problems with present institutional structure

The present institutions are found to be not effective in resolving inter-state water disputes. The mechanisms governing the disputes are ambiguous and opaque. The decisions are weakly enforced and the effectively binding arbitration is absent.  Presently, there are eight Tribunals for resolving disputes pertaining to rivers such as Cauvery, Mahadayi, Ravi and Beas, Vansadhara and Krishna rivers.

(3) Implications of water over Indian federalism

In India, the inter-state water disputes often get entangled with centre-state conflicts and other political issues. Adding to this, the presence of plethora of actors like state governments, political parties, interest groups, central government, tribunals, courts have made the dispute resolution a complex and slow affair. State governments were sometimes found to refuse to accept the decisions of tribunals. This makes the arbitration not binding. Significantly, the courts and the union government have sometimes intervened directly but sometimes their intervention has become unsuccessful.

Discuss the pros and cons of proposed mechanisms.

The pros are as follows:

• Establishment of a single, permanent tribunal subsuming the existing tribunals is considered undoubtedly as a huge improvement over the present practice of setting up of ad-hoc tribunals. This is expected to provide for speedier adjudication.
• Secondly, the provision for the collection of data on rainfall, irrigation and surface water flows by an expert agency is a welcome step as the party-States generally have a tendency to question the veracity of the data provided by the other side. The permanent forum with a reliable data at its disposal will be in a better position to adjudicate the disputes with fairness.

The cons of the same decisions are as follows:

• With rising inter-State disputes, it may not be possible for a single institution with a single former Supreme Court judge to pronounce its verdict within three years.
• Secondly, the final verdict of the tribunal may be challenged again in the Supreme Court. Recently, the Supreme Court has reiterated in a landmark verdict saying that it has unfettered powers to hear appeals from river water dispute tribunals under Article 136 of the Constitution. This may question the finality of the award and the immediate enforcement of the award may remain elusive. Similarly, the provision for a Dispute Resolution Committee before approaching the tribunal would result in needless litigations and would be an unnecessary hurdle in speedy resolution of the dispute. It is to be noted that Articles 131 and 136 of the Constitution have been used by the States frequently for bringing the matters related to inter-State rivers before the Supreme Court via the Special Leave Petitions.

What is the way forward?

As water disputes have humanitarian dimensions like agrarian problems, strengthening institutional mechanisms would not suffice. It should be backed by political will. All the stakeholders must be infused with a sense of responsibility and adjudication should not be left at the mercy of partisan leaders who make water sharing into emotive issues.