WATER WAR: Karnataka officials protest the Cauvery Dispute Tribunal’s decision in 2007

Disputes over the sharing of river waters have a long and fractious history in India. The legal wrangling stretches over decades, as in the case of the tussle between Tamil Nadu and Karnataka over the Cauvery. Last week, the central government finally notified the award given by the Cauvery Dispute Tribunal in 2007. The tribunal itself had taken 17 years to give the award.

To do away with such inordinate and unconscionable delays over the settling of river water disputes between states, the Centre is planning to bring about amendments to the Inter-State River Water Disputes Act (ISRWDA), 1956. The most important of them is the setting up of a permanent River Water Disputes Tribunal in place of the existing ad hoc tribunals. This tribunal will set up benches to decide on disputes.

“The hope is that a permanent standing tribunal can take up river disputes at a faster pace,” says Dhruv Vijai Singh who retired recently as secretary, Union ministry of water resources.

Although water is a state subject according to the Indian Constitution, problems related to the sharing of river waters have been dealt with by the central government through the ISRWDA. This involved establishing river-basin specific tribunals that looked into all the aspects of the dispute and came up with awards that were binding on all the parties.

But the system has not worked too well, assert those associated with the tribunals. “Only the judges on the tribunals and the lawyers representing the states have thrived. I don’t see any other party benefiting in all these years,” says S.S. Javali, senior advocate, Supreme Court, and counsel for Karnataka on the Cauvery water dispute.

A tribunal to deal with river water disputes functions like a civil court. According to Section 4(2) of the ISRWDA, a “Tribunal shall consist of a Chairman and two other members nominated… by the Chief Justice of India from among persons who at the time of such nomination are Judges of the Supreme Court or of a High Court.”

Generally judges who are on the verge of retirement are nominated as the chairmen of the tribunals. There are no fixed hearing dates and judges can decide to hold a sitting of the tribunal at their convenience.

Some of the more prominent river water disputes tribunals include the one on Ravi-Beas among Haryana, Rajasthan and Punjab, the Krishna river dispute among Maharashtra, Karnataka and Andhra Pradesh and of course, the Cauvery dispute.

“A single tribunal could expedite the process, but it is just one of the steps. There needs to be series of steps for faster resolution of the disputes,” says Javali.

Even the draft National Water Policy (2012) had stated that a “permanent Water Disputes Tribunal at the Centre should be established to resolve the disputes expeditiously in an equitable manner.”

This is not for the first time that changes have been proposed to the law. In 2002, the government carried out a few amendments to the law, including changing its name from Interstate Water Disputes Act, 1956, to its current name.

Some of the other important amendments were specifying time frames. It was laid down that the Centre would have to refer a dispute to a tribunal within one year of representation from state governments and that the tribunal would have to give the award within three years, extendable up to another two years in exceptional cases.

The current draft legislation tightens the time limits further. It says that the tribunal has to decide on a dispute within two years, extendable by a year in exceptional cases. A maximum age of 70 years has also been set for the judges of the tribunal.

But time limits have not worked in the past. Even after the 2002 amendments, cases have dragged on well beyond the stipulated five years. Experts say that while setting and keeping to a time limit is important, the government also needs to see to the speedy implementation of the award.

“If there are time frames proposed for the implementation of the awards, that may make some difference,” says Srinivas Chokkakula, Centre for Policy Research, New Delhi. Chokkakula has written extensively on river water disputes.

He may have a point. For instance, the Cauvery award of 2007 remained unimplemented as the central government dragged its feet when it came to notifying it. Notifying the award means publishing the award in The Gazette of India. Once notified, it is binding on all the parties.

Although Section 6 of the ISRWDA clearly states that “the decision of the Tribunal… shall have the same force as an order or decree of the Supreme Court”, it is binding on all parties only after it is published in the Gazette.

More often than not, states have challenged the awards in the Supreme Court, asking the Centre not to notify the award while the matter was before the court.

According to an official of the ministry of water resources, the government may also include an amendment to make it mandatory for the Centre to notify an award within a certain time period.

But the draft legislation is not without its critics. For example, not everyone is excited by the prospect of having a single tribunal to deal with all disputes. “I don’t see what the government will achieve by having one tribunal. A separate bench has to be set up to deal with individual problems in any case,” says Ramaswamy R. Iyer, former secretary, Union ministry of water resources.

Tamil Nadu has also voiced its concern over this. The state’s public works minister K.V. Ramalingam opposed the move at the National Water Resources Council in New Delhi recently. “Our fear is that the current tribunals will lose their relevance and the work on the dispute resolution has to begin afresh. This will lead to more delays,” he says.

Others argue that such fears are baseless. As Singh points out, “We can have provisions within the new law saying that the existing tribunals can function under the overarching bench.”

Ultimately, though, the settling of river water disputes is a political issue. Experts say that unless the government deals with the political issue that most of the river disputes are made out to be, tribunal awards will continue to be bitterly contested.

“The tribunals have failed because of competing political interests. Unless the allocation of water resources is clearly defined and there is a national consensus on it, tribunals will remain ineffective,” says K.J. Joy, a water conflict expert and founder, Society for Promoting Participative Ecosystem Management, a non government organisation based in Pune.

Agrees Chokkakula. “It is difficult to think that these disputes would be ‘permanently’ resolved. For the structural and historical conditions of their emergence offers sufficient opportunities for politicisation,” he says.

The only way out, feels Javali, is to treat the resolution of water disputes as something that’s linked to the progress of the country. “But I don’t see that happening. I suppose one must try out different ways and hope something will work out,” he says.

Meanwhile, the government is hoping that its draft legislation to expedite the settling of river water is not a mere shot in the dark and translates into some progress on the ground.