A stronger river referee

The Supreme Court, too, has been amenable to Special Leave Petitions which then lead to extended litigation in the apex court. All this defeats the basic purpose of the reforms — to expedite resolution of river water disputes.

Written by Srinivas Chokkakula | Updated: July 22, 2017 12:54:54 am

In the last session of Parliament, the government introduced the long-awaited Inter-State River Water Disputes (Amendment) Bill 2017, and called it a “revolutionary step” towards disputes resolution. The bill does have much that will tighten the adjudication of river water disputes. But will it lead to speedy resolution of such disputes? The bill doesn’t fully recognise the need to plug holes in the larger ecosystem of interstate river water sharing, development and governance.

The Interstate Water Disputes Act 1956, has been amended about half a dozen times. The amendments have stuck to a template, which relies exclusively on tribunals for expeditious resolution of river disputes. The Supreme Court and other courts do not have jurisdiction over such disputes — they can interpret verdicts of tribunals. The more than six decades of the arrangement demonstrates that the disputes’ resolution generally has not been effective.

Disputes have recurred, there have been long delays in adjudication and states have not complied with verdicts of tribunals. The bill has provisions to break that mould.

One, the bill proposes a permanent Inter-State River Water Disputes Tribunal (ISRWDT). In the current arrangement, tribunals are formed when a river water dispute arises. These are dispute-specific. The ISRWDT will be an eight-member body comprising serving Supreme Court and high court judges. It will have a chairperson and a vice-chairperson. The members will retire when they are 70 — there was no such limit earlier. Each dispute will be referred to a three-member bench and resolution will be time bound. At least on paper, the entire process is restricted to five-and-half years, taking into account all extensions. There is almost no limit on extensions in the current arrangement. These measures can improve the efficiency of disputes’ adjudication.

Two, the bill provides for a DRC (Disputes Resolution Committee) to enable ex-ante negotiated settlements, in place of earlier mediation by the Centre. This is an interesting provision, evidently to avoid disputes advancing to the next stage of legal adjudication. But its benefits will depend on the mechanism’s efficiency. The bill says the Centre will set up the DRC with “members from such relevant fields, as it deems fit, for resolving the disputes amicably”. This definition is encouragingly broad-based, but the DRC’s functions — recording data, noting stands and claims of states and reporting facts — hint at the usual techno-legal procedures followed by tribunals in the early stages of adjudication. Unless the DRC is adequately high profile and commands credibility and legitimacy to engage proactively for negotiated settlement between states, it may be relegated to performing perfunctory procedures.

The other much touted provision for a data bank and information system is not new. There is a similar provision in the current act as well, but it mandates the Centre to create such a repository. The new bill allows the Centre to appoint or authorise an agency for the purpose, perhaps to draw on the existing capacities of the institution. This arrangement could hit a roadblock given the tenuous centre-state relations over managing river waters. The experiences in this respect have not been very encouraging. In any case, the challenge is not about gathering data and information, but more about states agreeing over a particular piece of data. The challenge is also about tapping the data to produce knowledge that can be used for decision-making. Such knowledge has been a major area of contestation before the tribunals so far.

Even then, the bill no doubt holds promise for tightening and improving adjudication. But some question remain
unaddressed.

The big practical question is: how does the bill propose to address the challenge of implementing the tribunal’s awards? The Cauvery Water Disputes Tribunal Award, given in 2007, lamented about legal ambiguities which prevented it from recommending an institutional mechanism to implement its award. These ambiguities will persist even after the amendments. The power to devise such mechanisms is with the Centre. But the government is ill-equipped to offer competent and resilient mechanisms. The River Boards Act, 1956, the most potent law available for the purpose — drawn under Entry 56 of the Union List for regulating and developing interstate rivers — has become a dead letter.

The ad-hoc mechanisms devised outside this law have not been successful. In the Cauvery dispute, for instance, both
the Cauvery River Authority and the Cauvery Supervisory Committee proved to be ineffective. With this critical gap, implementing tribunal awards will be a huge challenge. After all, conflicts arise when the instruments and institutions for cooperation fail. The government will do well to bring in a comprehensive legislation in place of the River Boards Act, 1956, to enable inter-state river water cooperation and collaboration.

A graver omission is the absence of an effective implementation mechanism. Even though the ISRWDT is a permanent avenue, there is nothing that prevents the inevitable escalation of disputes. How often have we seen states defying tribunals’ directives and disregarding awards? The bill offers little to check these tendencies. The Supreme Court, too, has been amenable to Special Leave Petitions which then lead to extended litigation in the apex court. All this defeats the basic purpose of the reforms — to expedite resolution of river water disputes.

The writer is with the Centre for Policy Research, New Delhi

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