Published: 12th Jul, 2019
Introduction
With the steep growth in the number of laws and the number of cases, the Court system is under great pressure. In order to reduce the heavy demand on Court time, efforts need to be made to resolve the disputes by resorting to Alternative Dispute Resolution Methods before they enter the portals of the court. The Arbitration, Mediation and Conciliation are tools of Alternative Dispute Redressal System.
Arbitration is a method for settling disputes privately, but its decisions are enforceable by law. An arbitrator is a private extraordinary judge between the parties, chosen by mutual consent to sort out controversies between them. Arbitrators are so called because they have an arbitrary power; for if they observe submissions and keep within due bounds their sentences are definite from which there is no appeal. Arbitration offers greater flexibility, prompt settlement of national and international private disputes and restricted channels of appeal than litigation. In the words of Richard Cobden "At all events, arbitration is more rational, just, and humane than the resort to the sword."
Arbitration is a simplified version of a trial involving no discovery and simplified rules of evidence. Either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third to comprise a panel. Arbitration hearings usually last only a few hours and the opinions are not public record. Arbitration has long been used in labour, construction, and securities regulation, but is now gaining popularity in other business disputes. Litigation is expensive, time consuming and full of complexities.
The technique of ADR is an effort to design a workable and fair alternative to our traditional judicial system. It is a fast track system of dispensing justice. There are various ADR techniques viz. arbitration, mediation, conciliation, mediation-arbitration, mini-trial, private judging, final offer arbitration, court-annexed ADR and summary jury trial.
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Arbitration Arbitration is a process in which a neutral third party or parties render a decision based on the merits of the case. In the Indian context the scope of the rules for the arbitration process are set out broadly by the provisions of the Arbitration and Conciliation Act 1998 and in the areas uncovered by the Statute the parties are free to design an arbitration process appropriate and relevant to their disputes. Mediation The Process of mediation aims to facilitate the development of a consensual solution by the disputing parties. The Mediation process is overseen by a non-partisan third party - the Mediator. The authority of the mediator vests on the consent of the parties that he should facilitate their negotiations. Conciliation Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation. Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator. When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both. Negotiation Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the primary method of alternative dispute resolution. Negotiation occurs in business, non-profit organizations, government branches, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life. The study of the subject is called negotiation theory. Those who work in negotiation professionally are called negotiators. Professional negotiators are often specialized, such as union negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators, or may work under other titles, such as diplomats, legislators or brokers. |
Procedure
The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract, regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defence in which existence of an arbitration agreement is alleged by one party and not denied by other is also considered as valid written arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator - reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or panels of arbitrators so appointed constitute the Arbitration Tribunal.
Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do accept to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award.
Once the period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a 'decree of the court'.
Advantages
- Arbitration promises privacy. In a civil court, the proceedings are held in public.
- Arbitration provides liberty to choose an arbitrator, who can be a specialist in the subject matter of the dispute. Thus, arbitrators who are sector specialists can be selected who resolve the dispute fairly and expeditiously.
- The venue of arbitration can be a place convenient to both the parties. Likewise the parties can choose a language of their choice.
- Even the rules governing arbitration proceedings can be defined mutually by both the parties.
- A court case is a costly affair. The claimant has to pay advocates, court fees, process fees and other incidental expenses. In arbitration, the expenses are less and many times the parties themselves argue their cases. Arbitration involves few procedural steps and no court fees.
- Arbitration is faster and can be expedited. A court has to follow a systematic procedure, which takes an abnormally long time to dispose off a case.
Ground reality
- Delay: Arbitration in India is rampant with delays that hamper the efficient dispensation of dispute resolution. Though the 1996 Act confers greater autonomy on arbitrators and insulates them from judicial interference, it does not fix any time period for completion of proceedings.
However, the reality is quite different. Arbitrators, who are mostly retired judges, usually treat the arbitration proceedings in the same manner as traditional litigations, and are willing to give long and frequent adjournments, as and when sought by the parties. Although the scope of judicial intervention under the 1996 Act has been curtailed to a great extent, courts through judicial interpretation have widened the scope of judicial review, resulting in the admission of large number of cases that ought to be dismissed at the first instance. Moreover, the parties usually approach arbitration with a similar mindset as for litigation, with the result that awards invariably end up in courts, increasing the timeframe for resolution of the disputes. Thus concept of fast track arbitrations has been established. Fast track arbitration is a time-bound arbitration, with stricter rules of procedure, which do not allow any laxity or scope for extensions of time and the resultant delays, and the reduced span of time makes it more cost-effective.
- Cost: Arbitration is generally considered cheaper over traditional litigation, and is one of the reasons for parties to resort to it. However, the ground realities show that arbitration in India, particularly ad hoc arbitration, is becoming quite expensive vis-à-vis traditional litigation. A cost analysis on arbitration vis-à-vis litigation will throw light on the higher cost of arbitration over litigation. This is a crucial factor which weighs against developing a cost effective quality arbitration practice in India.
Arbitration costs incurred by the parties may include the arbitrator's fees, rent for arbitration venues, administrative/clerical expenses, and professional fees for the representatives of the parties (which may include lawyers and expert witnesses). The sum of these fees may differ significantly between ad hoc and institutional arbitrations.
- Flexibility of procedure, place and language in the arbitration proceedings: The parties to arbitration are free to determine the procedural rules subject, however, to certain mandatory rules. If the parties do not agree to the procedure, the procedure will be as determined by the arbitral tribunal. Arbitral Tribunal has powers to decide the procedure to be followed, unless parties agree on the procedure to be followed and conduct the proceeding in manner it considers appropriate. The Tribunal also has powers to determine the admissibility, relevance, materiality and weight of any evidence.
The Place of arbitration will be decided by mutual agreement. However, if the parties do not agree to the place, tribunal shall decide the same after having regard to the circumstances of the case, including the convenience of the parties. Similarly, the language to be used in arbitral proceedings can be mutually agreed otherwise, Arbitral Tribunal can decide. The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language agreed upon by the parties or determined by the parties or determined by the arbitral tribunal.
Salient features of Arbitration and Conciliation (Amendment) Act, 2015:
The Amendment Act has introduced some major changes in the principal Act. We have prepared a brief summary of the following key amendments:
- Relevant court for domestic and international arbitration matters: Under the Act, the relevant court for all arbitration matters would be a principal civil court or high court with original jurisdiction.
- The Bill modifies this to state that in the case of international arbitration, the relevant court would only be the relevant high court.
- Applicability of certain provisions to international commercial arbitration: Part I of the Act that included provisions related to interim orders by a court, order of the arbitral tribunal, appealable orders etc. only applied to matters where the place of arbitration was India.
- Under the Bill, these provisions would also apply to international commercial arbitrations even if the place of arbitration is outside India. This would apply unless the parties agreed otherwise.
- Powers of Court to refer a party to arbitration if agreement exists: Under the Act, if any matter that is brought before a court is the subject of an arbitration agreement, parties will be referred to arbitration.
- The Bill states that this power of referral is to be exercised by a court even if there is a previous court judgment to the contrary. The Court must refer the parties to arbitration unless it thinks that a valid arbitration agreement does not exist.
- Interim order by a Court: The Act states that a party to arbitration may apply to a court for interim relief before the arbitration is complete. For example, a party may seek interim protection of goods, amounts, property, etc. that is the subject matter of the arbitration before a court.
- The Bill amends this provision to specify that if the Court passes such an interim order before the commencement of arbitral proceedings, the proceedings must commence within 90 days from the making of the order, or within a time specified by the Court. Further, the Court must not accept such an application, unless it thinks that the arbitral tribunal will not be able to provide a similar remedy.
- Public Policy as grounds for challenging an award: The Act permits the court to set aside an arbitral award if it is in conflict with the public policy of India. This includes awards affected by (i) fraud or corruption, and (ii) those in violation of confidentiality and admissibility of evidence provisions in the Act.
- The Bill modifies this provision to also include those awards that are (i) in contravention with the fundamental policy of Indian Law or (ii) conflict with the notions of morality or justice, in addition to the grounds already specified in the Act.
- Appointment of arbitrators: The Act permits parties to appoint arbitrators. If they are unable to appoint arbitrators within 30 days, the matter is referred to the court to make such appointments.
- The Bill states that, at this stage, the Court must confine itself to the examination of the existence of a valid arbitration agreement.
- Time period for arbitral awards: The Bill introduces a provision that requires an arbitral tribunal to make its award within 12 months. This may be extended by a six month period. If an award is made within six months, the arbitral tribunal will receive additional fees. If it is delayed beyond the specified time because of the arbitral tribunal, the fees of the arbitrator will be reduced, up to 5%, for each month of delay.
- Time period for disposal of cases by a Court: The Bill states that any challenge to an arbitral award that is made before a Court, must be disposed of within a period of one year.
- Fast track procedure for arbitration: The Bill permits parties to choose to conduct arbitration proceedings in a fast track manner. The award would be granted within six months.
Way forward
- The amendments to the Act, though laudable, are only a first step towards making arbitration the preferred mode of dispute resolution in India. It must be acknowledged that increased efficiency in arbitration is unlikely to come solely from the imposition of top-down legislative change, especially one that is as inherently flawed as this one.
- A change in the very culture of Indian arbitration is required.
a) For one, there needs to be a change in the perspective with which arbitration is viewed. The pool of Indian legal practitioners who specialize in the practice of arbitration has to grow, with arbitration viewed as the priority rather than playing second fiddle to Indian court litigation work.
b) And the pool of arbitrators needs to grow as well. Unfortunately, the tendency to appoint retired Indian judges as arbitrators is also stifling the growth of arbitration as a dispute resolution mechanism in India. What is needed is the growth of a community of arbitrators unfettered by the traditions of the Indian courts and focussed on growing arbitration in its own right.
c) The final, and most important, change needed is the minimization of judicial interference.
A dispute mechanism is a structured process that addresses disputes or grievances that arise between two or more parties engaged in business, legal, or societal relationships. Dispute mechanisms are used in dispute resolution, and may incorporate conciliation, conflict resolution, mediation, and negotiation.
Dispute Redressal Mechanisms are typical non-judicial in nature, meaning that they are not resolved within the court of law.
Indian scenario
Article 21 of the Constitution of India declares in a mandatory tone that 'no person shall be deprived of his life or his personal liberty except according to procedure established by law. The Right to Speedy Trial has been rightly held to be a part of Right to Life or Personal Liberty by the Supreme Court of India. This liberal interpretation of Article 21 is to redress that mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself effectively. Thus, the Supreme Court has held the Right to Speedy Trial a manifestation of fair, just and reasonable procedure enshrined in Article 21.
Before formation of law Courts in India, people were settling the matters of dispute by themselves by mediation. The mediation was normally headed by a person of higher status and respect among the village people and such mediation was called in olden days "Panchayath". The Panchayath was headed by a person of higher statues, quality and character who deemed to be unbiased by people of the locality, called Village headman and he was assisted by some people of same character or cadre from several castes in the locality. The dispute between individuals and families were heard by the Panchayath and decision given by the Panchayath was to be accepted by the disputants. The main thing that was considered in such Panchayath was the welfare of the disputants as also to retain their relationship smooth.
But in a developing country like India with major economic reforms under way within the framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on the courts and to provide means for expeditious resolution of disputes, alternative modes of dispute resolution (ADR) came up by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation and negotiation. In this context the GOI has set up different Dispute Redressal Mechanism to address the problems.
The different mechanisms formed in India are Gram Sabha, Nyaya Panchayat, Lok Adalat, Family Court, Counseling Centers, Commission of Inquiry, Tribunal, Consumer Court, Indian Legislation on ADR, etc.
In essence the system focuses on: Mediation rather than winner take all; Increasing Accessibility to justice and Improving efficiency and reducing court delays.
However, a well-functioning grievance mechanism should:
- Provides a predictable, transparent, and credible process to all parties, resulting in outcomes that are seen as fair, effective, and lasting.
- Builds trust as an integral component of broader community relations activities.
- Enables more systematic identification of emerging issues and trends, facilitating corrective action and preemptive engagement.
In this series we are discussing different forms of Dispute Redressal Mechanism, issues and challenges related to it.
The Preamble of the Constitution of India, declares India to be a Sovereign, Socialist, Secular, Democratic, Republic. In the wisdom of our framers of Constitution, these ingredients were essential to establish a society which is egalitarian and a state which bases itself on the tenets of welfarism. Thus rule of law and the administration of justice; lie at the core of the phenomena of welfare state.
Also with the acceptance of Welfare ideology, there has been a phenomenal increase in the functions of the government, which has lent enormous powers to the executive and also led to increase in the legislative output. This has led to more litigation, restrictions on the freedom of the individuals and constant frictions between them and the authority.
The 42nd Amendment Act 1976 inserted Part XIV-A to the Constitution of India consisting of Articles 323A and 323B. Which led to the establishment of administrative tribunals.
Article 323A: Provides for the establishment of Administrative Tribunals for adjudication or trial of disputes and complaints with respect to recruitment, conditions of service of persons appointed to public services and other allied matters.
Article 323B: Makes provision for the creation of Tribunals for adjudication or trial of disputes, complaints or offences connected with tax, foreign exchange, industrial and labour disputes, land reforms, ceiling on urban property, election to Parliament and State Legislatures, etc. Parliament has power to enact any law under Article 323A while both Parliament and State Legislatures can make laws on matters of Article 323B, subject to their legislative competence.
Administrative Tribunals have emerged not only in India but also in many other countries with the objective of providing a new type of justice - public good oriented justice. These tribunals manned by technical experts, with flexibility in operations, informality in procedures have gained importance in the adjudication process.
Reason for establishment of Tribunals
Administrative tribunals are established for the following reasons:
- The traditional judicial system proved inadequate to decide and settle all the disputes requiring resolution. It was slow, costly, inexpert, complex and formalistic. It was already overburdened, and it was not possible to expect speedy disposal of even very important matters: e.g. disputes between employers and employees, lockouts, strikes, etc. These burning problems cannot be solved merely by literally interpreting the provisions of any statute, but require the consideration of various other factors and this cannot be accomplished by the courts of law. Therefore, industrial tribunals and labour courts were established, which possessed the technique and expertise to handle these complex problems.
- The administrative authorities can avoid technicalities. They take a functional rather than a theoretical and legalistic approach. The traditional judiciary is conservative, rigid and technical. It is not possible for the courts of law to decide the cases without formality and technicality. On the other hand, administrative tribunals are not bound by the rules of evidence and procedure and they can take a practical view of the matter to decide the complex problems.
- Administrative authorities can take preventive measures, for example, licensing, rate fixing, etc. Unlike regular courts of law, they have not to wait for parties to come before them with disputes. In many cases, these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach of any legal provision.
- Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures, e.g. suspension, revocation or cancellation of licences, destruction of contaminated articles, etc. which are not generally available through the ordinary courts of law.
- Sometimes, the disputed questions are technical in nature and the traditional judiciary cannot be expected to appreciate and decide them. Administrative authorities are usually manned by experts who can deal with and solve these problems, e.g. problems relating to atomic energy, gas, electricity, etc.
Advantages of Administrative Tribunal
Administrative adjudication is a dynamic system of administration, which serves, more adequately than any other method, the varied and complex needs of the modem society. The main advantages of the administrative tribunals are:
a) Flexibility
Administrative adjudication has brought about flexibility and adaptability in the judicial as well as administrative tribunals. For instance, the courts of law exhibit a good deal of conservatism and inelasticity of outlook and approach. The justice they administer may become out of harmony with the rapidly changing social conditions. Administrative adjudication, not restrained by rigid rules of procedure and canons of evidence, can remain in tune with the varying phases of social and economic life.
b) Adequate Justice
In the fast changing world of today, administrative tribunals are not only the most appropriated means of administrative action, but also the most effective means of giving fair justice to the individuals. Lawyers, who are more concerned about aspects of law, find it difficult to adequately assess the needs of the modem welfare society and to locate the individuals place in it.
c) Less Expensive
Administrative justice ensures cheap and quick justice. As against this, procedure in the law courts is long and cumbersome and litigation is costly. It involves payment of huge court fees, engagement of lawyers and meeting of other incidental charges. Administrative adjudication, in most cases, requires no stamp fees. Its procedures are simple and can be easily understood by a layman.
d) Relief to Courts
The system also gives the much-needed relief to ordinary courts of law, which are already overburdened with ordinary suits.
Lacunas in functioning of Tribunals
Firstly, tribunals operate under the thumb of parent administrative ministries against whom many of them are meant to pass orders, therefore remaining at their mercy with visible and invisible strings for facilities, infrastructure and also rule-making.
Secondly, the secretary of the said Ministry sits on the panel for selecting and reappointing the adjudicating members and also has a role to play in disciplinary committees. For instance, the defence secretary is a part of the committee for selection and re-appointment of members of the Armed Forces Tribunal, and the said secretary is that very officer against whom all tribunal orders are to be passed.
Thirdly, under the garb of providing cheaper and informal adjudication, appeals have been provided, on very limited grounds, directly to the Supreme Court from some tribunals making access to justice a far call with some litigants accepting injustice rather than challenging orders simply because they cannot afford prohibitive costs of litigation in the apex court.
Fourthly, persons who at times have served as part of the same ministries are appointed as members and who carry with them their own personal experiences and over-familiarity making justice subjective as compared to judges who bear no such baggage and are trained to be objective.
Fifthly, a majority of non-judicial members are not legally qualified and hence are not even eligible to appear before such tribunals while they are allowed to exercise judicial functions while sitting on the bench.
Sixthly, some tribunals are not even vested with powers of civil contempt thereby leaving them toothless qua enforcement.
Rationalization of tribunals
The Finance Bill, 2017 has proposed for rationalization of the tribunals.
The amendments permit the central government to decide the terms of service including appointments, term of office, salaries and allowances, and removal of tribunal members through rules.
Additionally, the amendments to the Finance Bill, 2017 have done away with seven existing tribunals such as the Airports Economic Regulatory Appellate Authority (AERA). Functions of these tribunals have been transferred to existing tribunals. For example, the functions of the AERA have been transferred to the Telecom Disputes Settlement and Appellate Tribunal (TDSAT). This implies that TDSAT will now also have to decide upon matters related to pricing of airport services. The question is whether the TDSAT has the technical competence to deal with such diverse issues. Similarly, it is unclear if the National Company Law Appellate Tribunal, which will replace the Competition Appellate Tribunal, will have the expertise to deal with matters related to anti-competitive practices.
Criticism of Rationalisation
- Rules are framed by the central government, under a particular Act, and undergo post facto scrutiny by Parliament. In contrast, a Bill is examined and debated by Parliament before its passage. However by allowing the government to determine the appointment, reappointment and removal of members through rules, the threshold of Parliamentary scrutiny of these provisions is being lowered.
- Further, tribunals perform a judicial function, while the government is part of the executive. There may be instances where the government is a party to a dispute before a tribunal like the Central Administrative Tribunal (CAT) or the Income Tax Appellate Tribunal (ITAT). There would be conflict of interest if the government were to be a litigant before the tribunal as well as have the power to determine appointment or reappointment of its members. By allowing the central government to frame rules to decide each of these aspects, the independence of tribunals could be affected.
- Assuming powers to appoint and remove the chairpersons triggering fears the unprecedented move will undermine the authority and independence of these quasi-judicial institutions.
- Another provision - Section 180 - effectively fires judges from nine existing tribunals with three months' pay and allowances. There is no safety net for the tribunal judges. Legally speaking most of the legislations appointing judges totribunals prohibit their service conditions from being changed after their appointments.
- This could pose a conflict of interest in cases where the government is a litigant since it is the one controlling the conditions of tribunal.
- Through this move it will enable the government to put their own henchmen in tribunals control even autonomous bodies.
- There is no infrastructure and merging them will add to their backlog, overlap and confusions.
- COMPAT particularly dealt with competition laws which is essential but under NCLT which is already overburdened since The new Insolvency and Bankruptcy Code has designated NCLT as the adjudicating authority for corporates cases thus it may lead to compromise in efficiency and effectiveness.
- TDAT may not be able to replace the expertise of AERA appellate tribunal especially when domestic air traffic is on the rise AERAAT.
- Government has not followed several salutary principles laid down by the Supreme Court in 2014 to secure the independence of tribunals.
Inter-state water disputes are different from other interstate disputes. The Constitution, under Article 262, bars the jurisdiction of the Supreme Court or any other court over inter-state water disputes. The Inter-state (River) Water Disputes Act 1956 provides for the resolution of disputes. Under its provisions, the disputes are to be adjudicated by ad-hoc, temporary and exclusive tribunals.
Provisions of Inter State Water Dispute Act (1956)
The Inter-State river water disputes are governed by the Inter-State Water Disputes Act, 1956.
As per the current provisions of the 1956 Act, a tribunal can be formed after a state government approaches Union Government with such request and the Centre is convinced of the need to form the tribunal.
This act was further amended in 2002 to include the major recommendations of 'The Sarkaria Commission'.
The amendments mandated a one year time frame to setup the water disputes tribunal and also a 3 year time frame to give a decision.
This system has had some successes, especially with the first generation of tribunals set up soon after independence-to adjudicate on the Krishna, Narmada and Godavari rivers.
But in general, it has struggled to bring warring parties on the same page and offer equitable solutions.
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Procedure for Adjudication of Disputes When a Tribunal has been constituted under section 4, the Central Government shall, subject to the prohibition contained in section 8, refer the water dispute and any matter appearing to be connected with, or relevant to, the water dispute to the Tribunal for adjudication. The Tribunal shall investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it within a period of three years. Provided that if the decision cannot be given for unavoidable reason, within a period of three years, the Central Government may extend the period for a further period not exceeding two years. If, upon consideration of the decision of the Tribunal, the Central Government or any State Government is of opinion that anything therein contained requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, the Central Government or the State Government, as the case may be, within three months from the date of the decision, again refer the matter to the Tribunal for further consideration, and on such reference, the Tribunal may forward to the Central Government a further report within one year from the date of such reference giving such explanation or guidance as it deems fit and in such a case, the decision of the Tribunal shall be deemed to be modified accordingly: Provided that the period of one year within which the Tribunal may forward its report to the Central Government may be extended by the Central Government, for such further period as it considers necessary". If the members of the Tribunal differ in opinion on any point, the point shall be decided according to the opinion of the majority. |
List of Existing Water Dispute Tribunals
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No |
Name of Tribuna |
States concerned |
|---|---|---|
| 1. | Godavari Water Disputes Tribunal | Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh & Odisha |
| 2. | Krishna Water Disputes Tribunal -I | Maharashtra, Andhra Pradesh, Karnataka, |
| 3. | Narmada Water Disputes Tribunal | Rajasthan, Madhya Pradesh, Gujarat and Maharashtra |
| 4. | Ravi & Beas Water Tribunal | Punjab, Haryana and Rajasthan |
| 5. | Cauvery Water Disputes Tribunal | Kerala, Karnataka, Tamil Nadu and Puducherry |
| 6. | Krishna Water Disputes Tribunal -II | Karnataka, Telangana, Andhra Pradesh and Maharashtra |
| 7. | Vansadhara Water Disputes Tribunal | Andhra Pradesh &Odisha |
| 8. | Mahadayi Water Disputes Tribunal | Goa, Karnataka and Maharashtra |
The Centre has already received a request to set up a tribunal as a new dispute has emerged between Odisha and Chhattisgarh over Mahanadi river water.
Issues with Existing Water Dispute Act
There are three main problems with the existing system.
- Protracted proceedings and extreme delays in dispute resolution.
- Opacity in the institutional framework and guidelines that define these proceedings.
- Ensuring compliance.
The delays happen for a variety of reasons at every stage of the process.
Sometimes, the Centre takes years to decide whether a matter needs to be heard by a tribunal in the first place.
Example, the Godavari and Krishna disputes started around 1956 but the matter was referred to a tribunal only in 1969.
After the tribunal has been formed, it again takes many years to pronounce its award-it took nine years from reference in the case of the Narmada tribunal.
Another reason for delay is the requirement that the Centre notify the order of the tribunal to bring it into effect; this took three years for the Krishna award.
Now, however, the Centre has proposed that the awards will be notified automatically by the tribunal.
Also, India's messy federal polity and its colonial legacy sets the stage for the third problem of non-compliance wherein state governments have sometimes rejected tribunal awards.
For example, the Punjab government played truant in the case of the Ravi-Beas tribunal.
Features of the Proposed Amendment
a) Formation of Single Tribunal for dispute settlement
The National Water Policy 2012 proposed setting up of a permanent tribunal to replace multiple water tribunals working in the country.
Its revival now shows the non-political nature of the idea justifying serious consideration and approval.
The amendment will be introduced early during the budget session of Parliament, which begins in January 2017.
b) Centralized data collection centre
Apart from the tribunal, the proposed amendment to the 1956 law also seeks to create an agency to collect and maintain all relevant water data, like rainfall, water flow and irrigation area, in each of the river basins of the country. Collection of data is usually the first exercise in resolution of water disputes. A specialised agency would ensure that this kind of data is always available, in updated form, and does not need to be collected after a dispute has arisen.
c) Setting up of Disputes Redressal Committee
The proposed amendment provides for setting up a Disputes Redressal Committee comprising experts before referring a dispute to the new permanent tribunal.
It is hoped that most of the disputes would be settled at the committee level itself, if the committee has access to reliable and updated data.
The committee would also serve as the technical advisor to the tribunal.
Under the current law, the tribunals have three years to give their awards.
In order to give more teeth to the Tribunal, it is proposed that whenever it gives order, the verdict gets notified automatically. Until now, the government required to notify the awards, causing delay in its implementation.
d) Setting up of National Water Commission
The government has proposed a new National Water Commission (NWC) in place of the existing Central Water Commission (CWC) and Central Ground Water Board (CGWB).
One of the departments of the NWC is supposed to act as a comprehensive and specialized water data bank.
It's an agency to collect and maintain all relevant water data, like rainfall, water flow and irrigation area, in each of the river basins of the country.
Collection of data is usually the first exercise in resolution of water disputes.
A specialized agency like NWC would ensure that this kind of data is always available, in updated form, and does not need to be collected after a dispute has arisen.
Analysis
Unification of water tribunals seems necessary as river water is a national resource to be shared by all States.
In federal constitutions, there are three types of resolving inter-State disputes:
- States entering into inter-State pacts
- Accepting court decisions
- Giving paramount power to the federal government to resolve claims
A rare case of cooperation was recently presented by Telangana and Maharashtra States signing a pact for construction of major irrigation projects on the Godavari and its tributaries thus ending decades' old dispute.
On the other hand, unilateral repudiation of inter-State agreement on Sutlej-Yamuna Link Canal by the Punjab Assembly in March 2016 against the order of the Supreme Court to maintain status quo is nothing short of a challenge to the judiciary.
Tamil Nadu and Karnataka present a typical model of the highest level of non-cooperation in sharing the Cauvery river water.
Water is a state subject but the "regulation and development of inter-state rivers and river valleys… in the public interest" is on the Union list.
Given the number of ongoing inter-State disputes and those likely to arise in future, it may be difficult for a single institution with a former Supreme Court judge as its chairperson to give its ruling within three years.
Secondly, its interlocutory orders as well as final award are likely to be challenged in the Supreme Court.
The idea of a Dispute Resolution Committee, an expert body that will seek to resolve inter-State differences before a tribunal is approached, will prove to be another disincentive for needless litigation.
A positive feature of the proposed changes is that there will be an expert agency to collect data on rainfall, irrigation and surface water flows.
This acquires importance because party-States have a tendency to fiercely question data provided by the other side.
A larger and more significant downside to any adjudicatory framework is the refusal or reluctance of parties to abide by judicial orders.
Water disputes have humanitarian dimensions, including agrarian problems worsened by drought and monsoon failures.
The Central government must keep these factors in mind when setting up the proposed tribunal.
A robust institutional framework-and a transparent one to ease state and public buy-in is a must.
Without that cooperative approach, India's water dispute resolution is unlikely to see much improvement.
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