Watering-down the Water-Federalism

By M Sridhar Acharyulu  Published on  30 Sep 2019 7:37 AM GMT
Watering-down the Water-Federalism

National Commission for Review of Working of Constitution (NCRWC) has strongly recommended for the protection of already adjudicated rights of states over the rivers flowing through their states and effective and meaningful consultation with all state governments before bringing any bill on River Water Rights. The Centre cannot ignore these two important suggestions because India is a federation and states have a share in the sovereignty. After studying this aspect, the NCRWC explained:

“Further, as and when occasions arose, different River Boards have been constituted under different Acts of Parliament to meet the needs in a particular river system according to the exigencies, facts and the circumstances. The new enactment should clearly define the constitution of the River Boards and their jurisdiction so as to regulate, develop and control all inter-State rivers keeping intact the adjudicated and the recognised rights of the States through which the inter-State river passes, and their inhabitants.”

The NCRWC has emphasised that while enacting the legislation, national interest should be the paramount consideration as inter-State rivers are “material resources” of the community and are national assets. Parliament should pass such enactment after having effective and meaningful consultation with all the State Governments.

The Sarkaria Commission in its report at Chapter XVII on Inter-State River Water Disputes recommended: Once an application under Section 3 of the Inter-State River Water Disputes Act (33 of 1956) is received from a State, it should be mandatory on the Union Government to constitute a Tribunal within a period not exceeding one year from the date of receipt of the application of any disputant State (Para 17.4.11). Sarkaria Commission recommended that the Inter-State Water Disputes Act should be amended to empower the Union Government to appoint a Tribunal, suo-moto, if necessary when it is satisfied that such a dispute exists in fact (Para 17.4.14).

Sarkaria made a few more suggestions as follows:

  1. a) There should be a data bank and information system at the national level, and adequate machinery should be set up for this purpose at the earliest. There should also be a provision in the Inter-State Water Disputes Act(NCRWC) that States shall be required to give necessary data for which purpose the Tribunal may be vested with powers of a Court (Para 17.4.15 and 17.4.16)
  2. b) The Inter-State Water Disputes Act should be amended to ensure that the award of a Tribunal becomes effective within five years from the date of constitution of a Tribunal. If, however, for some reasons, a Tribunal feels that the five years period has to be extended, the Union Government may on a reference made by the Tribunal extend its term. (Para 17.4.17)
  3. c) The Sarkaria Commission also recommended that this Act should be amended so that a Tribunal’s award has the same force and sanction behind it as an order or decree of the Supreme Court to make a Tribunal’s award really binding (Para 17.4.19).

Constitutional position

Though water is state subject, inter-state rivers and river valleys fall under the Union List to “the extent to which such regulation and development under the control of the Union, is declared by Parliament by law to the expedient in the public interest”. Parliament can make law, but with an objective to expedite dispute resolution.

Article 262 (1) bars the jurisdiction of the Supreme Court, but matters are still being taken thereon related legal, jurisdictional, environmental and constitutional issues. Since Article 262 is the only article in the Constitution that bars the jurisdiction of the Courts, it would be necessary for Courts to take note of this constitutional provision.

  1. Adjudication of disputes relating to waters of inter-State rivers or river valleys.

(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the Water Federalism of, or in, any inter-State river or river valley.

(2) Notwithstanding anything in this Constitution, 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 as is referred to in clause (1).

Such a law, the Inter-State River Water Disputes Act 1956 (IRWD) is made of, provides for an aggrieved State to request the Union Government to refer a dispute to a tribunal. IRWD Act applies only to interstate rivers/river valleys.

Present IRWD Act of 1956 provides for an aggrieved State to ask the Union Government to refer a dispute to a tribunal. That means unless a state asks, the Centre has no role to play. If the Centre refers, a water disputes tribunal is appointed by the Chief Justice of India and consists of a sitting judge of the Supreme Court and two other judges are chosen from the Supreme Court or High Courts. Such a tribunal, if appointed, can choose assessors and experts to advise it and the award, once given, is final and beyond the jurisdiction of courts. Here also there is no role carved out for Centre except making a reference.

Water dispute is deemed to have arisen under the IRWD Act (section 3) when an action of one state should affect the interests of one or more other states. When there are serious disputes between states on sharing river water Federalism, and a permanent set up of interstate water dispute tribunal is being put in place, why a state, having a dispute, should not be given the right to straight away approach the Tribunal?

This Act makes a state government beg the Centre to refer an inter-state river dispute to a Tribunal. If the Centre thinks that the dispute cannot be settled through negotiations, it may constitute a Water Disputes Tribunal, within a year after filing a complaint. Our history and experience show that disputes constantly flow along with the rivers, and there is a dire need for speedy disposal of those disputes with a permanent institutional mechanism.

Five tribunals

Since the Act in 1956, five Inter-State Water Disputes Tribunals have been set up for adjudicating water disputes in respect of the Krishna, Godavari, Narmada, Cauvery and Ravi-Beas rivers. These tribunals took decades to resolve the disputes. Ravi-Beas took 33 years, while Cauvery consumed 29 years. Other tribunals have taken around a decade each, even though the time limit is five years. Centre goes on extending the term of tribunals indefinitely. Law did not provide any time limit for publishing the report. Within the state of Andhra Pradesh, the people of Telangana were demanding their due share in Krishna and Godavari rivers. This being an intra-state conflict, Telangana had no right to demand its due. River water is one of a few grounds for the demand for Telangana. The tragedy is that if Centre refuses or delays such reference or does not constitute a Tribunal, or Tribunal takes decades, or its order is not published, or its published order is not enforced, the state has no remedy at all.

2019 Amendment

As per the recommendations of the Sarkaria Commission, the Centre introduced Inter-State-River Water Dispute (Amendment) Bill, 2019 which proposed to make it mandatory for Centre to constitute a Tribunal on request or suo-moto if it recognised a dispute. Its suggestion to collect data from states was made mandatory in the Bill. Thus, the Centre has now no choice after the state requested to refer a dispute to Tribunal, which would be a permanent body if the Bill becomes a Law.

As per this amendment Bill, when a state refers any water dispute, the Centre shall set up a Disputes Resolution Committee (DRC), to resolve amicably by negotiation in one year. The DRC will comprise of a Chairperson and experts with at least 15 years of experience in relevant sectors, to be nominated by the Centre. It will also comprise one member from each state (at Joint Secretary Level), who is a party to the dispute, to be nominated by the concerned state government. Negotiation can be extended by half a year. If the DRC can not settle a dispute, the Centre must refer it to the Inter-State River Water Federalism Disputes Tribunal within three months from the receipt of DRC report. The added merits are that timelines are prescribed, and a permanent tribunal with multiple benches is proposed to be set up, while all existing Tribunals will be dissolved.

The Tribunal consists of a chairman, a vice-chairman and six members — three judicial and three experts — who will be appointed by the Centre on the recommendation of a selection committee — having on board the Prime Minister, Chief Justice of India and Ministers for law and justice and Jal Shakti. The Centre may also appoint two experts serving in the Central Water Engineering Service as assessors to advise the Bench in its proceedings. The assessor should not be from the state, which is a party to the dispute. As per the original Act, the Tribunal must give its decision within three years, which may be extended by two years, whereas under the current Bill, the Tribunal must give its decision on the dispute within two years, which may be extended by another year. As per the Act, if the matter is again referred to the Tribunal by a state for further consideration, the Tribunal must submit its report to the central government within one year. This period also can be extended by the central government, but such extension cannot go beyond six months.

Analysis of Amendment Bill

Under the original Act, the decision of the Tribunal must be published by the Centre in the official gazette, only then will have the same force as that of an order of the Supreme Court. The Bill removes this requirement because tribunals were taking several years to publish. The Bill adds that the decision of the Bench of the Tribunal will be final and binding on the parties to dispute. The Act provided that the central government may make a scheme to give effect to the decision of the Tribunal. The Bill is making it mandatory for the central government to make such a scheme. Under the Act, the central government maintains a data bank and information system at the national level for each river basin. The Bill provides that the central government will appoint or authorise an agency to maintain such data bank.

The amendment bill tries to assure that the decision will bind the parties with the same force as an order of the Supreme Court. However, it does not give any additional binding power because states can take the issue to the Supreme Court. If the dispute persists even after the order of Tribunal, it can be referred for reconsideration. Establishing a multiple bench tribunal replaces different tribunals now working separately.

This Bill appears to be addressing demerits of earlier legal mechanism and offering a useful alternative. But it is not that innocent. The Bill proposed the Centre alone will appoint the chairpersons and others in the Tribunal. Generally, former Judges and former civil servants will be posted to the DRC and tribunals. Once a permanent tribunal is established, every aggrieved state should have a right to submit their dispute with a neighbouring state to the Tribunal directly, without the Centre’s intervention or approval to refer. But States were not given a right to straight away go to DRC or the Tribunal and file a complaint or present a petition for resolution of a dispute.

Earlier, the Chairperson and members were appointed by the Chief Justice of India and other Judges, but under the Bill, a Selection Committee dominated by PM and two Ministers and Chief Justice of India appoint them. The role of the judiciary in appointing the tribunal chairman and members is substantially reduced, and the presence of CJI may not stop Centre to exercise their choice.

The Bill provides for the appointment of Chairman and Vice Chairman for five years or until 70 years of age, whichever is earlier. Of members up to 67 years of age, the Tribunal will become rendezvous of rehabilitation and will render several judges and officers at their fag end of service to be subservient to the rulers for the favour of reappointment in these lucrative positions. On these grounds, it does not offer any enthusiastic atmosphere of integrity and efficiency. The apprehension of denial or deep expectation of this post-retirement position might not allow the judges in the office to be independent or objective. There could be heavy competition to toe the favour of the government of the day. It can corrupt the system, and non-independent judges might not come. To prevent this, the maximum term or duration of the tribunal chairman and members should not be more than their retirement age. If the term is five years or 62 years of age, whichever is earlier, only in-service experts from judiciary and administration will get an opportunity to get appointed in Tribunal with additional incentives.

The amendment is anti-federal legislation that increases the powers of the Centre and makes states dependent on Centre, affecting the sovereignty of states. It will not reduce the time taken for resolution of disputes or create a strong mechanism to enforce the order of the Tribunal. This places states at the mercy of Centre, to resolve its dispute with the neighbouring state. It has failed in resolving disputes or enforcing the orders of tribunals. This Bill centralises the authority and then the top body that decides will be filled with former judges and bureaucrats, whose ‘independence’ or lack of it decides the fate of rivers. If the states do not resolve their disputes amongst themselves, this Bill may give the Centre to take complete control of rivers and their Water Federalism at the detriment of states.

(The writer is M Sridhar Acharyulu, Dean of Bennett University and Former Central Information Commissioner)

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