Interstate River Water Dispute

Context: The Supreme Court has ordered for the constitution of an inter-State River Water Disputes Tribunal for Pennaiyar River.

Interstate River Water Dispute Background

• Tamil Nadu had requested the Union Government to constitute a tribunal for adjudication of disputes over the waters of the river, also known as ‘Thenpennai’.
• Tamil Nadu also objected to the construction of a check-dam across the Markandeya, a tributary of the Pennaiyar, by Karnataka.

What is the Mechanism for Inter-State Water Disputes?

•  ISRWD Act: The Union Government has set up a legal framework to resolve such disputes through the Inter-State River Water Disputes (ISRWD) Act, 1956.
• Provision of the Act: Under the Act, any State may request the Union Government to refer an inter-State river dispute to a tribunal for adjudication.
  • If the Union Government feels that negotiations cannot settle the dispute, it may setup Water Disputes Tribunal within one year of the complaint.
    • The tribunal is headed by a retired judge of the Supreme Court or High Court, and has the power to adjudicate the matter and make binding recommendations.
• Constitutional Provisions:
  • Article 262: It provides for adjudication of disputes or complaint relating to waters of inter-State rivers or river valleys.
  •  Seventh Schedule:
    • Entry 17 of State List deals with water
    • Entry 56 of Union List gives power to the Union Government for the regulation and development of inter-state rivers and river valleys to the extent declared by Parliament.

The Inter-State River Water Disputes (Amendment) Bill, 2019

• Aim: The Bill seeks to amend the Inter State River Water Disputes Act, 1956 to streamline the adjudication of inter-State river water disputes. Features of the Bill are:
• Disputes Resolution Committee: Under the Bill, when a State puts in a request regarding any water dispute, the Union Government will set up a Disputes Resolution Committee (DRC), to resolve the dispute amicably.
  • Composition of DRC: The DRC will comprise of a Chairperson and experts with at least 15 years of experience in relevant sectors, to be nominated by the Union Government.  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.
  • Time Frame: The DRC will seek to resolve the dispute through negotiations, within one year (extendable by six months), and submit its report to the Union Government
    •  If a dispute cannot be settled by the DRC, the Union Government will refer it to the Inter-State River Water Disputes Tribunal.  Such referral must be made within three months from the receipt of the report from the DRC.
• Formation of Tribunal: The Union Government will set up an Inter-State River Water Disputes Tribunal, for the adjudication of water disputes. This Tribunal can have multiple benches.
  •  All existing Tribunals will be dissolved, and the water disputes pending adjudication before such existing Tribunals will be transferred to the new Tribunal.
  • Composition:  The Tribunal shall consist of a Chairperson, Vice-Chairperson, three judicial members, and three expert members.  They will be appointed by the Union Government on the recommendation of a Selection Committee.
  • Time frame: The proposed Tribunal is mandated to give its decision on the dispute within two years, which may be extended by another year, while earlier the time limit was three years and extendable by another two years.
  • Reference by a State:  If the matter is again referred to the Tribunal by a State for further consideration, the Tribunal must submit its report to the Union Government within a period of one year. This period can be extended by the Union Government up to a maximum of 6 months.
  • Decision of the Tribunal: The decision of the Bench of the Tribunal shall be final and binding on the States. The requirement of publishing the award in the official gazette by the Union Government has been removed.
    • The Bill also makes it mandatory for the Union Government to formulate a scheme for implementation of the tribunal award.
• Data Bank: Under the Act, the Union Government maintains a data bank and information system at the national level for each river basin.
  • The Bill provides that the Union Government will appoint or authorize an agency to maintain such data bank.

Issues with Inter State River Disputes

• Extreme Politicization: At the State level, river water is politically perceived as part of the larger issue of “regional sharing of resources,” which is linked with the ethnic and cultural identity of the State and its people.
  • The disputes offer opportunities for engaging in vote bank politics.
•  Procedural Delays: The ISRWD Act does not fix any time limit for resolving river water disputes.
  • The work may get hampered due to occurrence of any vacancy and there is no time limit for publishing the report of the Tribunal.
• Institutional Vacuum: There is an institutional vacuum for implementing tribunal awards. The law entrusts the Union Government with the responsibility of framing institutions for implementing tribunal awards.
  • The government is at a loss as there are no proven institutional models for interstate coordination.
• Governance Challenges: The tribunals’ awards carry the force of a Supreme Court’s decree, and are binding on the States for a period of 25 to 30 years. This arrangement has not been effective and suffered from several governance challenges.
• Dearth of Grievance Redressal: The arrangement of adjudication by tribunals deprives the States of an avenue to redress their grievances after the tribunals are dissolved.
• Lack of Data: In the absence of transparent information regarding water gathering and sharing, these disputes also become an operational challenge.

Way Forward

• The combination of legal inconsistencies, institutional vacuum, and the nexus of water and politics results in the recurrence of interstate water disputes.
  • The solution has to be multi-pronged, and legal approaches have to be supplemented with institutional and political solutions.
• The reliance on temporary tribunals has to be reviewed. The government’s proposed permanent tribunal may be helpful.
• Finding the right kind of institutional models for interstate coordination is required. These are vital in mediating and mitigating escalation of disputes.

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