A permanent tribunal to adjudicate river water disputes between States will undoubtedly be a vast improvement over the present system of setting up ad hoc tribunals. The Union Cabinet’s proposal to have a permanent tribunal that will subsume existing tribunals is expected to provide for speedier adjudication. But whether this will resolve the problem of protracted proceedings is doubtful. Given the number of ongoing inter-State disputes and those likely to arise in future, it may be difficult for a single institution with a former Supreme Court judge as its chairperson to give its ruling within three years. Secondly, its interlocutory orders as well as final award are likely to be challenged in the Supreme Court. This month, in a landmark verdict , the Supreme Court said it had unfettered power to hear an appeal arising from a river water dispute tribunal under Article 136 of the Constitution. It has interpreted the ouster clause in the Inter-State Water Disputes Act as one that merely bars the court from entertaining an original complaint or suit on its own, but not its power to hear appeals against a tribunal’s decisions. Thus, finality and enforcement of a tribunal’s award may remain elusive. The idea of a Dispute Resolution Committee, an expert body that will seek to resolve inter-State differences before a tribunal is approached, will prove to be another disincentive for needless litigation.
A positive feature of the proposed changes is that there will be an expert agency to collect data on rainfall, irrigation and surface water flows. This acquires importance because party-States have a tendency to fiercely question data provided by the other side. A permanent forum having reliable data in its hands sounds like an ideal mechanism to apportion water. However, a confusing aspect is that benches of the permanent tribunal are going to be created to look into disputes as and when they arise. It is not clear in what way these temporary benches would be different from the present tribunals. A larger and more significant downside to any adjudicatory framework is the refusal or reluctance of parties to abide by judicial orders. Having an institutional mechanism is one thing, but infusing a sense of responsibility in those helming State governments is quite another. What is at stake is not merely a set of competing claims over riparian rights. Water disputes have humanitarian dimensions, including agrarian problems worsened by drought and monsoon failures. Adjudication, by whatever mechanism, should not be at the mercy of partisan leaders who turn claims into dangerously emotive issues. Institutional mechanisms should be backed by the political will to make them work.