Above: The Cauvery water dispute goes back to 1892/Photo: thenewsminute.com
Inter-State River Water Disputes Amendment Bill, 2019 is an amendment to the Inter-State River Water Disputes Act, 1956, and has not evoked much confidence over the central tribunal it seeks to establish with different benches
By Papia Samajdar
Inter-state river water disputes in India are known to meander for a long time, with some remaining unresolved even to this day. The Cauvery river water dispute between Karnataka, Tamil Nadu, Puducherry and Kerala lasted more than a century, the Narmada waters dispute gave rise to a people versus State conflict and the 33-year-old Ravi-Beas river water dispute between Uttar Pradesh and Haryana are glaring examples of such lengthy battles.
However, the Lok Sabha recently passed the Inter-State River Water Disputes Amendment Bill, 2019, which seeks to expedite the resolution of such disputes. It seeks to amend the Inter-State River Water Disputes Act, 1956, and aims to set up a single tribunal with different benches and strict timelines for adjudication.
The Inter-State River Water Disputes Act, 1956, had mandated the setting up of temporary tribunals for adjudication of the disputes. However, the sentences awarded by the tribunals are often appealed in the Supreme Court, thus increasing the tenure of the dispute resolution process.
The Union Ministry of Water Resources, River Development and Ganga Rejuvenation identified five major causes of delay in resolving these disputes:
- No strict timeline for adjudication of the cases. Though the stipulated timeline under the Act is five years, the tenure of the tribunals was extended multiple times until a judgment was passed. Even then, one state or the other appealed to the Supreme Court
- The Act does not mention an upper limit for the retirement of the chairperson or any other member of the tribunal
- There is no deadline or limit for the publication of the tribunal’s report
- Nomination by the chief justice of India in case of vacancy in the special tribunals caused considerable delay
- Lack of universally accepted data on the river basins.
It was to tackle this and other issues that the Inter-state River Water Disputes (Amendment) Bill, 2019, was passed. Under the Bill, a Disputes Resolution Committee (DRC) is to be set up by the central government when approached by any state regarding a water dispute. The chairperson to head the DRC and relevant subject matter experts are to be nominated by the central government to reach a decision amicably. The DRC will also have representation—at the joint secretary level—from the disputed parties to be nominated by the concerned state.
The amendment also seeks the establishment of a single Inter-State River Water Disputes Tribunal by the centre, thus dissolving the other existing Inter-State River Water Disputes Tribunals. If the DRC fails to conclude the negotiations successfully, the states can approach the Tribunal for resolution. The Tribunal will consist of a chairperson, vice-chairperson, three judicial members and three expert members, all to be appointed by the centre. The retirement age of the first two is 70 years, while the tenure of the other members would be coterminus with the adjudication of the dispute or till they attain the age of 67 years.
Till date, awards passed by only three out of the eight tribunals have been accepted by states. These are some of the longest disputes where the Supreme Court (SC) had to step in as the awards by the tribunals were appealed against:
- The Cauvery water sharing dispute goes back to 1892 and was between Madras Presidency and Mysore. In 1924, both signed an agreement which gave them the right to use excess Cauvery water. After independence and reorganisation of the borders, protests erupted in both states over water sharing. It now had to be shared between Tamil Nadu, Karnataka, Puducherry and Kerala. In 1986, the Thanjavur Farmers’ Association in Tamil Nadu moved the SC to establish a tribunal to resolve the dispute. In 1990, the Court directed the centre to form a tribunal. After many appeals and re-appeals, the Cauvery Water Disputes Tribunal gave its final order in 2007. In 2013, the centre notified the final award. In February 2018, the SC gave its final verdict after hearing appeals against the Tribunal’s award. It directed Karnataka to release 177.25 tmc ft of Cauvery water as against the 192 tmc ft set earlier to Tamil Nadu, which will now get an additional 10 tmc ft of groundwater annually. It also allocated an additional 4.75 tmc ft to Bengaluru to meet its drinking water and domestic requirements. This scheme will be applicable for the next 15 years.
- The inter-state river water sharing conflict between Punjab and Haryana started in 1966 when Haryana was carved out of Punjab. In 1981, an agreement was entered into by Punjab, Haryana and Rajasthan to reallocate the waters of the Ravi and Beas. The Sutlej-Yamuna Link (SYL) Canal Project under the 1981 Agreement was initiated by the centre so that Haryana had access to the waters of the Sutlej and the Beas, one of its tributaries. However, Punjab failed to complete 122 km of the 214-km canal due to various reasons, which made Haryana knock on the doors of the SC in 1996. In 2004, the Court directed the centre to create a central agency to oversee the pipeline. However, the Punjab assembly passed the Punjab Termination of Agreements Act in 2004, terminating its water sharing agreements. In 2016, the SC deemed the Act unconstitutional. In 2018, Haryana moved the apex court to seek an early decision for the completion of the canal. In a hearing on July 10, 2019, the Court directed the two states and the centre to resolve the issue by September 3, 2019.
- The Sardar Sarovar Project on the Narmada river has been one of the biggest examples of State versus people conflict. The inter-state river water dispute between Gujarat, Madhya Pradesh, Maharashtra and Rajasthan led to the establishment of the Narmada Water Dispute Tribunal in 1969. The Tribunal’s award (in 1979) and the apex court’s orders in 2000 and 2005 made it clear that the construction of the dam could not precede rehabilitation of the affected people. However, due to lack of proper rehabilitation, the imbroglio continues.
The decision of the Tribunal will have the same force as an order of the Supreme Court and would be binding on all the parties involved in the dispute. The centre is required to make a scheme to ensure that the decision of the Tribunal is put into practice.
One of the key changes proposed under the Bill is the fixation of timelines for resolution of a dispute. It is hoped this will speed up dispute resolution. The DRC will seek to resolve the dispute within one year, extendable by six months through negotiations. In case the negotiations fail to reach an amicable decision, the case will be referred to the Tribunal. The Tribunal will have multiple benches and up to three years to award a sentence, and one and a half years for reconsideration. The Bill outlines a total of six years to end a dispute, as opposed to the open-ended timeline for adjudication under the Inter-State River Water Disputes Act, 1956.
The Bill also seeks to tackle the issue of lack of authoritative and universally acceptable data which can be used by all parties. Provision for hiring an agency by the centre to collect and maintain information and data has been made in the Bill.
Experts lauded this inclusion. “The government’s plan to create a universally acceptable common databank about all the cases concerning river disputes is a positive step,” said KJ Joy, senior fellow of the Pune-based Society for Promoting Participative Ecosystem Management.
Apart from that the Bill does not evoke much confidence among environmentalists, especially as it does not address the working norms of the proposed central Tribunal. Biksham Gujja, founder and chairperson, AgSri Agricultural Services Pvt Ltd, Hyderabad, felt the assessment of the Inter-State River Water Act fell short of understanding these crucial technicalities, and hence hasn’t been addressed by the Bill. The changes required in the functioning of tribunals have not been completely addressed, according to experts. In such a case, creating a tribunal at a national level can lead to centralisation of the institution, said Gujja.
Political parties in Tamil Nadu and Odisha also raised concerns regarding the “centralisation” of power over water disputes. According to Ranjan Panda, convener, Water Initiatives Odisha and Country Manager, Climate Scorecard Project, India: “The Bill has already become controversial with states like Odisha opposing its introduction in Parliament without proper discussion with the state governments. Other stakeholders have also not been consulted. The Bill should go for widespread discussion with states and others who can help in strengthening it.”
Then there is concern over the mechanisms used by the tribunals to calculate water in the river basin during a dispute. According to Gujja, there is an urgent need for the government to understand the relation between groundwater and surface water and changes in the water flow of a river. He said the methodology to allocate surface water was the primary cause of disputes. “Be it single or multiple tribunals, inter-state river water disputes are not going to be solved easily on a timely basis as being envisaged. There are many factors that determine how long the conflicts would linger. Political will to build cooperation is the first factor, which, unfortunately, has been missing for long.” According to Joy, domestic water needs should be prioritised. As water has a direct connectivity with livelihood, appropriate measures need to be in place to ensure climate change adaptability. Panda also expressed doubts about the stipulated timeframe to reach an agreeable decision.“It’s too short and may not be effective. Staffing is another issue which needs to be highlighted. Maintaining a strict and short deadline depends on appropriate and efficient placement of judges and other staff. Also, as water is a state subject, states will oppose use of arbitrary power by the centre.”
There are also gaps in dispute resolution mechanisms, he said. “The current mechanism is not tuned to make independent assessment of situations for which many doubts are cast by the ‘victim states’. Institutions such as the Central Water Commission need to increase their credibility. States will continue to move the Supreme Court even if the tribunal gives a judgement within a stipulated time, which remains doubtful.”
Water is a contentious issue and the demand for it will only rise. According to Dr Srinivas Chokkakula, faculty at the Centre for Policy Research, India’s policy ecosystem is set to respond to exigencies instead of focussing on interstate cooperation. He said the River Boards Act, 1956, enacted at the same time as the Inter-State River Water Disputes Act, to encourage and enable inter-state collaboration, has not been touched since its inception. No successful attempt has been made to create any board under the Act as all river boards were created to draw on alternative channels.
Experts feel the Bill should be sent for widespread discussion among states and other stakeholders so that all the gaps are plugged. The need for inter-state cooperation for water sharing to avoid conflict is more pressing than ever before.