Essay : Solving Inter-State Water Disputes in India

 

The coming days will see a single national tribunal – the Inter-State River Water Disputes Tribunal (ISWDT) in India that would mediate inter-state water disputes whose recommendations will stay binding on the competing parties. One of the most immediate issues in the Indian federalism today is the Inter-state water disputes which in extreme case may hamper the relationship between states.

Five water disputes tribunals have been constituted so far between states on river water sharing but they have not been helpful in resolving disputes in a time-bound manner. States’ objections to the tribunals’ recommendations have been one of the main reasons.

States are empowered to enact legislation on water as water is a State subject as per entry 17 of State List. This entry refers to water and encompasses water supply, irrigation, canal, drainage, embankments, water storage and water power. Union list has entry 56 that empowers the Union Government for regulation and development of interstate rivers and river valleys as declared by Parliament.

At present, the resolution of water dispute is governed by the Inter-State water Disputes Act, 1956 which provides the state government to approach the Centre to refer the dispute to a  tribunal which has a final say on the same.

Inter-State River Water Disputes as Per the Inter-State River Water Disputes Act (Isrwd), 1956

Rivers  : States

  • Krishna :  Maharashtra, Andhra Pradesh, Karnataka
  • Godavari : Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh, Odisha
  • Narmada :  Rajasthan, Madhya Pradesh, Gujarat, Maharashtra
  • Cauvery :  Kerala, Karnataka, Tamil Nadu, Union Territory of Pondicherry
  • Model/Mandovi/Mahadayi : Goa, Karnataka, Maharashtra
  • Vansadhara : Andhra Pradesh & Odisha

Suggestions have always been there regarding reconsideration and review of the structuring and functioning of the tribunals. However, there has been a need to look for an alternative mechanism that should be based on environmental thinking and can resolve the disputes efficiently, harmoniously and sustainably.

The different issues – legal, constitutional, administrative and political plague the overall framework and all these cannot be addressed by a tribunal alone. A new tribunal is formed every time a state government moves towards the Union, requesting and convincing it that due to failure of all negotiations, a tribunal is much needed. After hearing the matter and warding the decisions, these tribunals cease to exist. With the first generation of tribunals that were set up soon after Independence, the system had some successes to judge on the Godavari, Krishna and Narmada rivers. However, its efforts to bring the conflicting parties on same page have not been smooth and it has been tough offering equitable solutions to them.

Issues

  • Extended proceedings and excessive delays in dispute resolution
  • Opacity in institutional framework and guidelines that define these proceedings
  • Ensuring compliance

Permanent tribunals are looked upon as a hopeful solution for the first problem but until and unless solutions come combined for the rest of the two issues as well, it will be rather difficult to see a smooth progress in the direction of solving water disputes.

Extraordinary delays in coming up with a tribunal has been one of the commonest problems. For example, in case of Godavari water dispute, the tribunal was formed in 1968 despite its request being made in 1962. The final decision came up in 1979 and in 1980; it was published in the Gazette.

Such delays in tribunal formation led the state governments to invest their resources in construction and modification of dams and further strengthen their claims.

Though the tribunal’s award stayed final and beyond the jurisdiction of Courts, either of the parties/states approached the Supreme Court under Article 136(Special Leave Petition) or private persons used to approach the apex court under Article 132 on pretext of linking it with the violation of Article 21 – Right to Life.

Another hurdle that has been noticed is that the tribunal constitutes of persons only from the judiciary and lacks in multidisciplinary approach thereby. It further leaves no differentiation between a tribunal and the Supreme Court.

Due to the lack of availability of data, the function of the tribunal gets delayed.

An Overview

There are a variety of reasons that lead to delay at every stage of the process.  Centre at times, takes many years to come up with a decision of setting up a tribunal. Even if a tribunal is materialized, it takes many years to pronounce its award. For example, in case of the Narmada tribunal, it took nine years from reference.

In the dearth of authoritative water data, setting up a baseline for negotiation becomes very difficult. Procedural complexities that involve multiple stakeholders across governments and agencies also lead to too many options and too much discretion at too many stages of the process.

India’s colonial legacy and messy federal polity are also to be blamed as these set the stage for the issue of non-compliance in which the state governments have at times discarded the tribunal decisions, like in the case of Punjab government (Ravi-Beas tribunal), where the government played truant.

Though water is a state subject, yet regulation and development of inter-state rivers and river valleys in public interest is on the Union list. But, in all the cases of dispute, the Centre has allowed states to dominate and itself taken a back seat. Its intervention has also not been of any use. Courts have also been ignored and even the jurisdiction of Supreme Court on tribunals remains very limited, as per the 1956 Inter-State River Water Disputes Act.

Inter-State water disputes are no longer about mere allocation, but have become highly politicized, like seen in the recent Cauvery dispute which led to framing of an ethnic identity issue amidst Tamilians and Kannadigas and also added to widespread civil unrest.

Alternate Path and More

Centre must look for building up a robust framework with transparency and allow state and public opinion. Cooperative approach and resolution through dialogue and talks should pave a path rather than political opportunism. Discussion of the dispute in Inter-State Council can be taken up as this platform may serve as an ideal one for talks.

We must also learn from some of the best international practices, like “The Good Water Neighbours Project” that was set up in 2001 and brought together the Israelis, Jordanians and Palestinians to meet a common goal that is, protection of shared water resources. This can be taken as an example of how political differences can be ditched aside by bilateral cooperation.

If the communities involved become responsible water managers, then the conflicts over water can be prevented. Local decision makers and public should be convinced that such cooperation, especially pertaining to resources, lies in their interests. Help should be taken from youth and adult residents and municipal staff to create dialogue and cooperation on sustainable water management.

Further, spreading awareness through initiatives to hinge upon protection of water resources, mitigating human impact and making sustainable use of resources will change people’s attitude and thought and they will soon realize that water solutions cannot be long-lasting if it is not adapted locally.

Advocacy from water experts should always form the heart of decision making and planning which lays emphasis on decentralisation of powers that involve districts, blocks, municipalities, panchayats and gram sabhas. Further, by making each of these sub-divisions the owners of water resources might be helpful and resourceful rather than vesting all powers with the Centre or a state. Concerted solutions through cooperation are the way out and not resentment, opposition or conflict.