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