Single Tribunal to hear water disputes

Context

The Union Cabinet has approved the Inter-State River Water Disputes (Amendment) Bill, 2019. The bill help adjudicate disputes relating to waters of inter-State rivers and river valleys.

About:

• The Bill seeks to amend the Inter State River Water Disputes Act, 1956.
• It intends to streamline the adjudication of inter-state river water disputes.
• A key feature of the bill is the constitution of a single tribunal with different Benches, and the setting of strict timelines for adjudication.

Background:

Inter-State Water Disputes

• India has 2.4% of the World’s land, 18% of the world population but only 4% of the renewable water resource. If sufficient steps are not taken, the uneven water distribution will increase the possibility of water conflicts.
• The current allocation of surface water by the Tribunals is based on "dependable flow" concept which is fundamentally flawed.
• What is ironical at times is the fact that the total allocated water is even greater than entire flow of river during many years.
• If the state refuses to comply with the award at times of low flow, the Judiciary and the losing state considers the act as contempt (examples of Karnataka and Tamil Nadu antagonism over river Cauvery).
• Due to this reasons, the Inter-state river water disputes hinder the cooperative federalism
• Water is a State subject as per entry 17 of State List and thus states are empowered to enact legislation on water.

Constitutional provisions:

• Entry 17 of State List deals with water i.e. water supply, irrigation, canal, drainage, embankments, and water storage and water power.
• Entry 56 of Union List gives power to the Union Government for the regulation and development of inter-state rivers and river valleys to the extent declared by Parliament to be expedient in the public interest.
• In the case of disputes relating to waters, Article 262 provides:
  • 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.
  • 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.

Parliament has enacted two laws according to Article 262:

• River Board Act, 1956: The objective of Boards is to advise on the inter-state basin to prepare development scheme and to prevent the emergence of conflicts.
• Inter-State Water Dispute Act, 1956: If a particular state or states approach to Union Government for the constitution of the tribunal, Central Government should try to resolve the matter by consultation among the aggrieved states. If it does not work, then it may constitute the tribunal.

The composition of the River Water Tribunal: Tribunal is constituted by the Chief Justice of India and it consists of the sitting judge of Supreme Court and the other two judges who can be from Supreme Court or High Court. Supreme Court shall not question the Award given by tribunal but it can question the working of the tribunal.

There are about a dozen tribunals that now exist to resolve disputes among States on sharing water from rivers common to them.

Active River Water sharing Tribunals in India

• Krishna Water Disputes Tribunal II (2004) – Karnataka, Telengana,Andra Pradesh, Maharashtra
• Mahanadi Water Disputes Tribunal (2018) – Odisha& Chattisgarh
• Mahadayi Water Disputes Tribunal (2010)- Goa,Karnataka, Maharashtra
• Ravi& Beas Water Tribunal (1986)- Punjab, Haryana,Rajasthan
• Vansdhara Water Disputes Tribunal (2010)- Andra Pradesh & Odisha

Apart from delay in submission of award, other challenges are:

• Often there have been extraordinary delays in constituting the tribunal. Take for example the case of Godavari water dispute. The request was made in 1962. The tribunal was constituted in 1968 and the award was given in 1979 which was published in the Gazette in 1980.
• Similarly, in Cauvery Water Dispute, Tamil Nadu Government requested to constitute the tribunal in 1970. Only after the intervention of Supreme Court, the tribunal was constituted in 1990.
• Tribunals have failed to identify the availability of water through sources such as groundwater.
• Due to delay in constituting the tribunal, state governments continue to invest resources in the construction and modification of dams, thus strengthening their claims.

Actions Taken:

• An Amendment was made in the Act by which the tribunal has to be constituted within a year of getting the request.
• It has been mandated that the tribunal should give the award within 3 years. In certain situations, two more years can be given. Thus the maximum time period was 5 years within which the tribunal should give the award.
• If the award is not immediately implemented. Concerned parties may seek clarification within 3 months of the award.
• It has also been clarified that the Tribunal Awards will have the same force as the order or decree of Supreme Court.

Arguments - in Favor and Against the Centralized Tribunal

• Making sub-tribunals under a single tribunal will make no substantial difference. This is because different dispute scenarios will call for unique and sometimes out of the box contextual solutions.
• However, the Centralized Tribunal system will be more tilted towards a bureaucratic angle thus seeking rules and procedures based on common and uniform architecture.
• What is positive with Centralization is that this system will create a large common database for all the cases relating to the disputes.
• This will help better in planning and adjudicating scheduled tasks based on advanced data analytics.
• Moreover, India is placed at the heart of a geopolitical landscape. Its vulnerability to water disputes with China (Brahmaputra) and Pakistan (Indus) is well known.
• A centralized tribunal will help set a base for international discussions.
• What is to be noted is that the Water has a direct connectivity with livelihood and therefore measures must be taken to ensure a contingency on availability of water to address climate change adaptability.
• This makes the matter related to water more important than the river dispute.
• As of now, the tribunal structure is procedurally indifferent to the overall sustainability plan.
• Tribunals and its process are part of the problem of water sharing rather than solution.

Way forward:

Considering the ineffectiveness of tribunals in the past there is a need to look for alternative dispute redressal mechanism, something which goes beyond formal structure - yet is guided by the rule bound and predicted path. Community-based approach herein can help resolve water related disputes effectively, amicably and sustainably.  

The government must have a process on following pointers before rushing to form the single tribunal:

• How to present a robust institutional architecture
• To understand the significant changes on water flow
• And the relation between groundwater and surface water.

Case Study:

• The ‘Cauvery Family’ was one such attempt. Formed in 2003, it brought together farmers from both Karnataka and Tamil Nadu to initiate a farmer-to-farmer dialogue and solve the dispute
• The Cauvery Family was able to create an atmosphere wherein farmers of both the states would sit down and hear out each other’s concern. In fact, a water-sharing formula was also created.
• Experts from nine east African countries visited Cauvery Family to learn from this initiative and apply the knowledge to resolve dispute over sharing Nile river water.
• These initiatives indicate that water solutions cannot be long-lasting if it is not adapted locally.
• This is precisely why water experts have been advocating for decentralization of powers: involving districts, blocks, municipalities, panchayats, and gram Sabha and making them the owners of water resources, rather than vesting all powers with the Centre or a state.
• Collaborative solutions, rather than hostility; cooperation, rather than conflict is the way out.