Inter-State River Water Disputes Bill- Watering-Down The Water-Federalism
National Commission for Review of Working of Constitution (NCRWC) has strongly recommended for 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 share in the sovereignty. The NCRWC after studying this aspect, 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 recognized rights of the States through which the inter-State river passes and their inhabitants.
The NCRWC has emphasized 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. Such enactment should be passed by Parliament 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 few more suggestions as follows:
- 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 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 & 17.4.16)
- 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)
- 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).
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 there on 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.
262. 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 waters 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, that provides for an aggrieved State to request the Union Government to refer a dispute to a tribunal. IRWD Act is applicable only to interstate rivers/river valleys.
Present IRWD ct of 1956 provides for an aggrieved State to ask the Union Government to refer a dispute to a tribunal. That means unless state asks for, 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 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 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, and a permanent set up of interstate water dispute tribunal is being put in place, why state having dispute should not be given right to straight away approach the tribunal?
This Act makes a state government to 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 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 permanent institutional mechanism.
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 take decades to resolve the disputes. Ravi-Beas took 33 years, while Cauveri consumed 29 years. Other tribunals have taken around decade each. Though time limit is five years. Centre goes on extending term of tribunals indefinitely. Law did not provide any time limit for publishing the report. Within 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 demand for Telangana. 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 had no remedy at all.
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 recognized a dispute. Its suggestion to collect data from states was made mandatory in the Bill. Thus, the Centre has now no choice after state made a request 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 are party to the dispute, to be nominated by the concerned state government. Negotiation can be extended by half a year. If a dispute cannot be settled by the DRC, the centre must refer it to the Inter-State River Water 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 be set up dissolving 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 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 a period of 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 official gazette, only then it will have 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 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 but does not give any additional binding power. Because states can take the issue to Supreme Court. If the dispute persists even after order of tribunal, it can be referred for reconsideration. Establishing a multiple bench tribunal simply 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, the 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 neighbouring state to the Tribunal straight, without centre's intervention or approval to refer. But States were not given a right to straight to go to DRC or the Tribunal and file a complaint or present a petition for resolution of dispute.
Earlier the Chairperson and members are 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 appoints them. The role of judiciary in appointing the tribunal chairman and members is substantially reduced and presence of CJI may not stop Centre to exercise their choice.
As the bill provides for appointment of Chairman & Vice Chairman for five years or 70 years of age whichever is earlier, and 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 favour of reappointment in these lucrative positions. On these grounds it does not offer any enthusiastic atmosphere of integrity and efficiency. Apprehension of denial or deep expectation of this post-retirement position might not allow the judges in office to be independent or objective. There could be heavy competition to toe the favour of with executive 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 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 totally 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 totally in resolving disputes or enforcing the orders of tribunals. This bill centralizes the authority and then 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 at the detriment of states.
M. Sridhar Acharyulu, Dean, Bennett University & Former Central Information Commissioner.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]