Events
& Issues
New
Delhi, 28 December 2016
Permanent Water
Tribunal
SPEEDY RESOLUTION
OF DISPUTES
By Dr S Saraswathi
(Former Director,
ICSSR, New Delhi)
The Union Government is reported to have decided to set up a
single statutory permanent tribunal to adjudicate all inter-State river water
disputes. A bill is to be introduced in Parliament. This is a major decision
coming in the context of protracted disputes and long-standing court cases in
various parts of the country involving almost all major rivers and many States.
The main intention is said to be to speed up the process of settlement.
There is also a proposal to float some Benches to look into
disputes as and when these arise for which the Inter-State Water Disputes Act
1956 is to be amended. They will be temporary and will be dissolved after
settlement is reached.
Presently, there are eight tribunals functioning to resolve
disputes over sharing water of eight rivers. Some of these are over 50 years
old. Three of them were set up in 1969 to deal with disputes over Godavari,
Krishna, and Narmada. Ravi & Bias Tribunal
was constituted in 1986, Cauvery Water tribunal in 1990, and Second Krishna
Water Tribunal in 2004, Vasandhara Water Tribunal and Mahadayi Water Tribunal
in 2010.
The proposed permanent tribunal is to be headed by a retired
Supreme Court judge. The move will not make adjudication a purely legal issue.
For, provision for setting up Dispute Resolution Committee (DRC) comprising
experts and policy makers will be included for investigation and examination of
disputes before they are sent to the Tribunal.
Water disputes do not fall under Article 131 of the
Constitution which gives original jurisdiction to the Supreme Court in disputes
between the Union Government and one or more States, or between Central and one
or more States on one side and one or more States on the other. These can only
be adjudicated by temporary and ad hoc inter-State tribunals under Article 262
of the Constitution.
When the Constitution was framed, there was a vain hope that
tribunals would help deliberate and ensure speedy decision-making in cordial
atmosphere despite Ambedkar’s warning about possibilities of “very many”
disputes.
This Article gives power to Parliament to provide “by law
for 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”.
These tribunals stand on a different footing and hence have to be dealt with
differently.
However, in actual experience in India, decisions of tribunals are
not always accepted by the parties, and in recent cases, even the Supreme Court
verdict is rejected at times. Creation of a single body to resolve disputes was
mooted in 2011 when the UPA was in power. The National Water Policy 2012 also
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.
Unification of water tribunals seems necessary as river
water is a national resource to be shared by all States. As the nation is
considering projects like linking rivers, creating canals, purifying river
water, and constructing dams involving displacement and resettlement of large
population which concern the entire population of the country in some way,
there is reason to deal with disputes nationally and not as problems restricted
to concerned riparian States.
This is a broader view beyond the immediate object of
achieving speedy settlement of on-going disputes. Incidentally, in some
disputes, concerned and interested parties increase in course of time, and in
some cases, considerations other than sharing water are involved. The Polavaram
Dam in Andhra Pradesh (Indirasagar) has led to a dispute between Odisha and Chhattisgarh
over submerging their areas. The Mullaperiyar Dam caused dispute between Kerala
and Tamil Nadu and the main contention is the safety of the dam – a question of
national importance.
In federal constitutions, there are three types of resolving
inter-State disputes – entering into inter-State pacts, accepting court
decisions, and 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 Godavary 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.
In the US,
where water disputes are not unknown, the Supreme Court is in favour of
settlement by non-judicial forums, and has not adopted the Harmon Doctrine
produced in the dispute with Mexico,
i.e. the principle of territorial sovereignty in the allocation of river water.
There is large scope for power for the US Congress. The most favoured doctrine
is “equitable apportionment” and “equitable utilisation”. Evidently, the common law theory of riparian
rights cannot be mechanically applied in federal system.
On the other hand, in Australia, the High Court is the
forum to resolve disputes. But, in practice, agreements between States and
between State(s) and the Commonwealth are common. There is no provision in the
Constitution of Canada regarding water disputes. The concerned States have to enact a
legislation to take the matter to the Supreme Court. In Switzerland, water disputes between
cantons are decided by the Federal Council (Bundesrat).
Water disputes in India often lead to violence and disorder
and expose our inability to foresee problems and our failure to cultivate
national spirit in the manner we have promoted linguistic affinities,
sub-regional sentiments, and caste attachments. A permanent and reliable
mechanism for settling competitive demands in an impartial manner has become an
urgent need.
Unlike courts which follow prescribed legal procedure,
tribunals can follow principles of “natural justice” and avoid inordinate
procedural delay and detailed legal obligations. Water disputes invariably involve
humanitarian problems and livelihood issues and cannot be tackled leisurely like
civil suits.
Still, tribunal awards cannot be held as final and
irrevocable since the Supreme Court, which has no original jurisdiction in
this, can claim that it may ‘in its discretion, grant special leave to appeal
from any judgement, decree, determination, sentence, or order in any case, or
matter passed or made by any court or tribunal in the territory of India”.
Whether the aim of expediting disposal of cases will be
fulfilled within the 3-year period proposed is doubtful. The number of on-going
disputes is too many and quite complicated to be handled by a single tribunal
and existing tribunals have not been effective so far in resolving disputes.
Adjudication is also a long-drawn and expensive process, and cannot forestall
recurrence of problems.
Laxity in implementing the awards, politicisation of
disputes like interference of parties, which are essential part of State
politics cannot be stopped and may continue to weaken the tribunals – whether
centralised or plural. Tribunals may not be “barriers” to delivering justice,
but the clients have to seek justice for all the parties to the dispute.--INFA
(Copyright,
India News and Feature Alliance)
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