Updated: November 2, 2019 12:07:45 pm
The Lok Sabha passed the long awaited amendment to the Interstate River Water Disputes Act 1956 in July. The Bill, yet to be discussed in the Rajya Sabha, proposes a permanent tribunal and several other measures to improve the settlement of interstate river water disputes. It has elements that convey the government’s seriousness to look for out of the box solutions. Even then, the proposed piece of legislation makes one wonder if it has enough to fix the longstanding problem.
Policy making is an incremental process. That is particularly so in case of a matter as complex as interstate river water disputes — as enigmatic as the rivers themselves. The American poet Henry Longfellow’s tribute to the River Charles captures this, “Half in rest, and half in strife”.
The Interstate River Water Disputes Amendment Bill 2019 is a modified version of a piece of legislation that was placed in Parliament in 2017. It was referred to a Standing Committee. Put simply, the bill has three new elements — one, a permanent tribunal with exclusive benches for each dispute instead of separate tribunals in the principal act; two, a Disputes Resolution Committee (DRC) to attempt an ex-ante resolution through mediated negotiations, instead of the Centre’s mediation; and three, a provision for appointing a technical agency for a data bank to support dispute resolution. The details of the first two elements have gone through extensive modifications in the Bill.
The rationale of a permanent tribunal mechanism is to reduce the delays in resolving interstate river disputes. It may now take six and a half years at most for the tribunal to arrive at a decision on an interstate river-water dispute. A permanent tribunal could also save costs compared to long-running individual tribunals. It is an opportunity to build a corpus of knowledge on particular approaches to interstate river water disputes resolution in India — and potentially transboundary river water governance in South Asia.
The Bill goes into much detail over the functioning of DRC. It has been given a year and a half to accomplish its task. Its role has been elevated from that of a perfunctory “techno-legal” body to an agency with a proactive role. An officer of secretary rank will head the DRC and the body will have senior officers from the states that are party to a river water dispute, as members. However, there are two concerns: First, is the DRC adequately empowered? We may recall the experience of the Cauvery Supervisory Committee (CSC) which had a similar composition. It did not have much success. Secondly, the DRC aims at a politically negotiated settlement, for river water disputes are deeply political at their core. Its raison d’être is to avoid legal adjudication, not to supplement it. Can the DRC — as conceived now — meet this expectation?
Further, the devil is in the detail. Will the DRC function as part of the Permanent Tribunal or will it work separately? Each dispute will need to have a separate DRC. How will their processes be streamlined? How can we make sure that the DRC process is neutral and they ensure meaningful participation by states that are party to a river water dispute? Will it help to locate the agency under the Interstate Council – as Feroze Varun Gandhi suggested in the Lok Sabha debate?
The need for a credible databank has been long-felt. So, the ambiguity in the Bill about the agency performing this function is puzzling. Identifying the institution under this new piece of legislation may give it the necessary heft to engage with states.
The bill has at least three blind spots. One, it is oblivious to the recent landmark decisions of the Supreme Court. A December 2016 ruling effectively established the Court’s jurisdiction over interstate river water disputes. The party states can now appeal against the decisions of the tribunal. The Court followed it up with another order in February 2018 where it modified the allocations of the Cauvery Water Disputes Tribunal Final award of 2007. The bill does not address the implications of these decisions. The bill has to resolve this conundrum first. In simple terms, the Supreme Court says it has jurisdiction over interstate river water disputes while the legislature says it doesn’t.
The Supreme Court may have to deal with this contradiction next time a dispute escalates and is brought before it. The politicised nature of river water disputes makes the chances of such an escalation rife.
Two, the challenges around implementing the tribunal/Supreme Court’s decisions persist. The power to create the mechanism remains with Parliament, as provided by the principal act. The last instance of creating a mechanism was under the Supreme Court’s orders when the Centre created the Cauvery Water Management Authority. Will that be the model to replicate, and will such a model work?
Three, one cannot miss the inclusion of a committee to select the tribunal judges. The committee comprises the prime minister or a nominee as the Chairperson, the Minister of Law and Justice, the Minister of Jal Shakti and the Chief Justice of the Supreme Court. There may be good reasons for this, but the likely consequences do not bode well for effective resolution. States often thrive on politicising disputes. This composition will now risk states politicising not just the disputes, but their adjudication by the tribunal. This creates a situation where the dispute could escalate to the Supreme Court. Is the Court ready to do the permanent finisher’s job?
Longfellow’s tribute continues: Half in rest, and half in strife/ I have seen thy waters stealing/ Onward, like the stream of life// Thou hast taught me, Silent River!/ Many a lesson, deep and long/ Thou hast been a generous giver/ I can give thee but a song.
This article first appeared in the print edition on November 2, 2019 under the title ‘Call of the river’. The writer is MoJS Research Chair – Water Conflicts and Governance at the Centre for Policy Research, Delhi. Views are personal.
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