January 2, 2017 2:12:51 am
The Union cabinet has recently approved setting up a permanent tribunal (PT) for inter-state water disputes resolution. Under the existing arrangement, the Interstate (River) Water Disputes Act 1956 (IWRDA) provides for constituting temporary and exclusive tribunals for each dispute. The PT will now subsume and replace all the existing tribunals and provide a permanent avenue for resolving inter-state water disputes. This is purportedly to address the frequent recurrence and escalation of the disputes, and extended litigations causing long delays in their resolution. Can the PT address these problems for better resolution of the disputes?
Reviewing the existing policy and institutional set-up for resolving inter-state water disputes is long overdue. There have been different proposals to approach this. One is a radical one, to repeal the IWRDA so that the onus of the disputes adjudication, by default, would fall on the Supreme Court (SC). This would, however, entail going against a constitutional provision — at least, the way it is interpreted — under Article 262. The article, while deferring the responsibility of legislating for inter-state water disputes resolution to the Parliament, provides for barring the jurisdiction of the SC over such disputes. Accordingly, the IWRDA bars the jurisdiction of the SC. The other proposal prefers continuing with the status quo. Its proponents have argued for amending the IWRDA to improve its effectiveness. The IWRDA has gone through several amendments. Evidently, these have not helped.
The PT is a middle ground to these proposals. It offers a permanent avenue for dispute adjudication and does not contravene constitutional provisions. It will apparently be set up through an amendment to the IWRDA. Reports suggest that the disputes will be dealt with by exclusive benches. There will also be a Dispute Redressal Committee (DRC) to mediate a resolution before disputes are referred to benches for adjudication.
Intuitively, these sound like improvements. But there is a likely counter-intuitive outcome. How will this arrangement fare when states turn inter-state water disputes into opportunities for posturing and political brinkmanship — as witnessed in the recent Cauvery and Ravi-Beas disputes? The states have not only challenged tribunal decisions, but also defied SC orders in some instances. Besides, the SC has recently ruled that Special Leave Petitions (SLPs) over inter-state water disputes are maintainable in the Cauvery dispute. This is likely to abet states approaching the SC against tribunal decisions, leading to extended litigation and delays.
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Inter-state water disputes are unique. Two characteristics define their nature. One, they are trans-boundary conflicts, and are sites of permanent contestation. Their political ecology constitutes ecological uncertainties of spatial and temporal water availability, geographical and historical asymmetries of water use development, and identity politics. This turns them into regular sources of disputation. Two, inter-state water disputes are often an outcome of the nexus between water politics and democratic politics.
The political ecology of perennial disputation is conducive for politicisation, leading to a frequent recurrence and escalation of disputes. These characteristics sabotage and defeat the effectiveness of legal adjudication. Governing the disputes warrants addressing the propensity for recurrence on a sustained basis. This cannot be provided by legal adjudication alone, and has to be supplemented by institutional responses both before and after legal adjudication.
The DRC is a right step as an ex-ante measure to avoid legal adjudication. Its composition and processes of mediation will be key to its success. There is always the possibility that the prospects of politicisation will weigh in over settling disputes through mutual consent. The challenge is to design proactive and innovative institutional practices and processes. This applies for ex-post measures as well. This is where a huge gap lies. First, we do not have robust and replicable institutional models for inter-state cooperation. Secondly, the River Boards Act 1956, which is supposed to facilitate inter-state collaboration over water resource development remained a “dead letter” since its enactment. Thus, reforming inter-state water disputes resolution requires a larger ecosystem of policies and institutions.
The legal adjudication process itself will need reconsideration. The lawyer and jurist Fali Nariman has argued for arresting the mutation of tribunals into regular courts of law. If not, why must we continue with the bar on the SC’s jurisdiction? This provision has had a particular historical context, and this may not be viable or warranted. With the SC’s ruling about the maintainability of SLPs, the bar has little use in extending finality to the tribunal’s decisions. It may be, in fact, undermining the authority of the PT. We may as well consider having the disputes adjudicated by the SC.
The writer is fellow, Centre for Policy Research, Delhi
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