India’s water dispute problem
Source: By Jayachandran: Mint
The Centre’s proposal to set up a single, permanent tribunal, subsuming all existing ad hoc tribunals, to adjudicate on inter-state river water disputes could be a major step towards streamlining the dispute redressal mechanism. But it alone will not be able to address the different kinds of problems—legal, administrative, constitutional and political—that plagues the overall framework.
At present, a new tribunal is formed every time a state government approaches the Union government with a request and is able to convince the latter that such a tribunal is needed since all negotiations have failed. Eight such tribunals exist. After they have heard the matter and awarded their decisions, the tribunals are allowed to collapse. 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.
There are three main problems: protracted proceedings and extreme delays in dispute resolution; opacity in the institutional framework and guidelines that define these proceedings; and ensuring compliance. The permanent tribunal is being pushed as a solution to the first problem but unless it is designed to tackle the inter-linked second and third problems, progress will be limited.
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—for 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.
Certainly, these are highly complicated matters. But there are still steps that can be taken to streamline the process. Here, the Centre’s proposal to set up, alongside the tribunal, an agency that will collect and process data on river waters has potential. The absence of authoritative water data that is acceptable to all parties currently makes it difficult to even set up a baseline for adjudication. 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, thankfully, the Centre has proposed that the awards will be notified automatically by the tribunal.
When it comes to opacity in the framework, Alan Richards and Nirvikar Singh from the University of California, Santa Cruz, note in their paper on India’s inter-state water disputes, “There are too many options, and there is too much discretion at too many stages of the process”. This is partly because of procedural complexities involving multiple stakeholders across governments and agencies. But the inchoate nature of the system is equally the result of factors outside the efficient functioning of the tribunal itself.
Two of those factors are worth mentioning here—India’s messy federal polity and its colonial legacy. These, in turn, set 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.
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. However, the Centre has generally taken a back seat, allowing states to dominate. And even when it has intervened, it has not always been successful. The courts have also often been ignored, including the Supreme Court, which importantly only has very limited jurisdiction over the tribunals, as per the Inter-State River Water Disputes Act of 1956.
The latter has its roots in the Government of India Act, 1935 which mandated separate tribunals and limited the jurisdiction of the federal court. The constituent assembly had rejected this system, called for a permanent framework and empowered Parliament to bring out the necessary legislation. However, Parliament ignored the constituent assembly’s suggestion and went ahead with the ad hoc tribunal arrangement, arguing that this would allow for quick decision making and prevent protracted conflict between states, as Srinivas Chokkakula from the Centre for Policy Research notes.
For a while, it seemed the leaders of the time were correct, with the first generation of tribunals working well. However, as Centre-state relations evolved, with the emergence of strong regional parties in the states and coalition governments at the Centre that depended on regional parties, the system began to fall apart.
Today, inter-state water disputes are no longer just about water allocation. They have become hugely politicized—the recent eruption of the Cauvery dispute, framed as an ethnic identity issue between Tamilians and Kannadigas, which led to widespread civil unrest, is only the most recent example. Public opinion is an important factor that cannot be wished away. 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.
