The water tribunal trap

Water tribunals were set up as alternatives to long-drawn courtroom litigation. If they are today mired in delay themselves, we have to question the procedure and not just the arrangement

At the Joint Conference of Chief Ministers of States and Chief Justices of High Courts held in April this year, Prime Minister Narendra Modi wondered if tribunals have become ‘barriers’ to delivering justice. Mr. Modi’s observations were about all tribunals in general, but most media reports understood them to be about interstate water dispute tribunals. Indeed, it was a reflection of a certain continuity in thinking for some time. At the moment, there are multiple tribunals in place to resolve interstate water disputes, but the National Water Policy 2012 proposed setting up a permanent tribunal to replace them.

An important exception

The Constitution attaches a special status to interstate water disputes, whereby they neither fall under the Supreme Court’s nor any other court’s jurisdiction. These disputes can only be adjudicated by temporary and ad hoc interstate water dispute tribunals. This constitutional exception is why water tribunals cannot be bundled with other tribunals and need careful consideration before any reforms. Seeing tribunals as ‘barriers’ may set their reform on a wrong path — repeating a history of hasty and shallow responses.

It is known that the inefficiency in interstate water dispute resolutions extends to factors beyond the functioning of the tribunals. These are linked to legal ambiguities, an institutional vacuum for implementing awards, noncompliant States, politicisation and so on. Yet, at the core of the entanglement is the Gordian knot of the constitutional anomaly, or the exception to the Supreme Court’s jurisdiction. The inquest has to begin from here. But the immediate question is that of the tribunal’s arrangement, which, of course, cannot be detached from the bar.

The permanent tribunal, while complying with this bar on the Supreme Court’s jurisdiction, will primarily act as a circuitous route to address the problem of disputes, as they will recur even after the ad hoc and temporary tribunals are disbanded.

Dating to Colonial times

The arrangement of having ad hoc, exclusive, temporary tribunals for interstate water dispute resolution has its roots in similar provisions during the colonial rule (including a bar on the Federal Court’s jurisdiction). The Interstate Water Disputes Act, 1956, is essentially a reworked arrangement proposed in the draft Constitution, which in turn derived from Articles 130-134 of the Government of India Act 1935. The Constituent Assembly rejected these arrangements, calling for a more permanent arrangement for dispute resolution. B.R. Ambedkar felt there would be ‘very many’ disputes, and the proposed arrangements were too ‘hidebound’ to respond to the evolving context of independent India.

Thus, the Constituent Assembly deferred the responsibility of an appropriate legislation to Parliament via Article 262(1), while providing for the jurisdictional bar via Article 262(2). When Parliament took up the task, the proponents of the Interstate Water Disputes Bill 1955, Gulzarilal Nanda, Minister for Planning, Irrigation and Power, and his deputy, Jaisukhlal Hathi, chose to contradict the Constituent Assembly’s premises and resurrect these tribunal arrangements. They argued that it was unlikely that there would be many disputes, relying on the seven or eight years of experience after independence. This debatable premise, certainly ill-informed in hindsight, was the reason why tribunals were resurrected.

However, Nanda and Hathi’s intentions were clear and their objectives valid: to ensure swift and definitive decision-making in interstate water disputes. The parliamentarians debated over these arrangements and agreed that tribunals suit water disputes best. They believed that tribunal arrangements would help speedy resolution, with the Supreme Court’s jurisdictional bar providing finality to their decisions. They wanted to avoid States litigating amongst themselves, leading to protracted court proceedings. They believed tribunal arrangements would also enable deliberative and discretionary decision-making for ‘mutually negotiated settlements’.

Good intentions, bad results

This was the fairly well-intentioned rationale for favouring tribunals over courts, contingent to a particular historical moment. It translated well in the functioning of the first generation tribunals of Krishna, Narmada and Godavari. However, these functional arrangements unfortunately degenerated into the present form, with all the trappings that the parliamentarians wanted to avoid. They turned out to be litigatory and adversarial proceedings with protracted delays. Fali Nariman pointed to this degeneration in an incisive note to the Punchhi Commission on Centre-State relations.

The degeneration was aided by rather poor records of subsequent parliamentarians in allowing several amendments to the 1956 act. The amendments, reactionary in nature, diluted the spirit and rationale of the tribunal arrangements. The history of the Act is filled with short-sighted and sutured responses to the symptoms of the degeneration and have avoided a comprehensive engagement with the problem of interstate water disputes.

Reforming interstate water dispute tribunals cannot be approached without considering their historical exception and the associated pitfalls. The discourse on ‘barriers’ and the drive for hasty reforms can set us on a wrong path, eclipsing the actual barriers that lie beyond the tribunal arrangement itself. After all, the present arrangement was driven by precisely the same concern for swift and definitive outcomes as the objections are. It is imperative to have a comprehensive review of interstate water dispute resolution, and also reconsider the Supreme Court’s jurisdictional bar.

(Srinivas Chokkakula is based at the Centre for Policy Research, New Delhi. E-mail: srinivas@cprindia.org )