The Ministry of Water Resources recently prepared a Cabinet note about creating a permanent tribunal for interstate river water disputes (IWD) resolution. This was after a proposal to this effect in the National Draft Water Policy of 2012. As reports go, the Government is concerned about long delays in dispute resolution and the tendency of States to approach the Supreme Court for redressal of recurring disputes.

Setting up a permanent space for adjudication may be helpful, but is certainly not adequate.

The doubts stem from two key concerns. One, the preferred approach for IWD resolution is to avoid litigation. This is the basic premise of the guiding legislation — the Interstate River Water Disputes Act 1956 (IRWDA).

A permanent tribunal may lead to extended litigation in spite of time-frame restrictions. Two, IWDs are often symptoms of larger interstate relations and have crucial implications for the (re)making of federal democracy. IWD resolution mechanisms should be designed in a changing context of Centre-State and State-State relations.

Typical features

The characteristics of changing interstate relations in the context of IWDs are as follows: The dispute over Krishna River waters is the first to have had two tribunals adjudicating it in independent India — 30 years apart — first in the 1970s and then in the recent 2000s.

The second tribunal’s award in 2010 offers illuminating insights. It recorded its high appreciation for the spirit of cooperation among party States during the first tribunal proceedings, but lamented an absolute lack of the same during the second. The tribunal said none of the States wanted to cooperate or commit for negotiations even on issues with clear potential for mutual agreement.

Those involved in the adjudication process, including lawyers and technocrats, observed that political leaders no longer consider it prudent to commit or agree on interstate water matters for fear of opposing parties accusing them of compromising their State’s interests. They would rather put up a fight, defy orders, and engage in extended litigation. These tendencies pervade not just the adjudication process, but also the compliance with tribunal awards.

Non-compliance of tribunal awards by States is the critical weak link in dispute resolution, which may persist even when a permanent tribunal exists.

IWDs are no longer about contestations for water allocations. Rather, these have politicised avenues for populist and vote bank politics. The Cauvery dispute exemplifies how political parties piggyback on IWDs to pursue their political objectives.

The dispute has remained not just in the closed domains of courts and tribunals, but is more often fought on public platforms. Escalated as a conflict between Tamil and Kannadiga identities, the dispute has led to frequent instances of civic unrest.

Political parties in Tamil Nadu and Karnataka regularly publicise their positions, project perceived prejudices and appeal to sub-nationalist political imaginations. These politics shape the outcomes of disputes and vice-versa.

Impact of politics

Consequently, political configurations — party affiliations at the Centre and the party States — significantly impact the ebb and flow of IWDs.

Furthermore, increasingly assertive regional powers and growing competitive interests among States are other propelling factors.

The politics often lead to constitutional and governance crises such as Karnataka’s ordinance defying the tribunal order in 1991 or Punjab’s unilateral decision to annul water sharing agreements with Haryana in 2004.

These politics thrive on a range of legal ambiguities, an outcome of IWD resolution mechanisms. The existing mechanisms go back to the exceptionalism attached to inter-provincial water disputes under colonial rule.

The 1934 constitutional reforms committee recommended excluding inter-provincial water disputes from the Federal Court’s jurisdiction.

The committee recommended leaving dispute resolution to discretionary powers of the Governor-General and made it applicable to disputes between British India provinces and Princely States as well.

This exclusion of IWDs from the Federal Court’s jurisdiction remained the feature in both the Government of India Act 1935 and the Draft Constitution.

The Constituent Assembly felt the need to rethink these measures and deferred the responsibility to Parliament under Article 262 of the Constitution. It also provided for exclusion of the Supreme Court’s jurisdiction over the disputes. Later, Parliament legislated the IRWDA.

The IRWDA provides for setting up a one-time ad hoc tribunal for IWD adjudication. The Act endows the tribunal’s decision with the force of a Supreme Court decree.

The lawmakers chose the route of an ad hoc tribunal outside Supreme Court jurisdiction with two precise objectives in mind: (a) avoid adversarial and litigatory proceedings between States, for such processes would cause inordinate delays; (b) ensure expeditiousness and finality through a discretionary and deliberative process.

Legal ambiguities

A permanent tribunal contradicts this intent by providing a permanent space for litigation. The time-frame restrictions may not help much. Consider the experience of the Cauvery Tribunal which took 17 years to give its final award in 2007. Even after it gave the award, the dispute is, by no means, considered as resolved.

In its recent recurrence in 2012, the dispute escalated to a point where the Supreme Court had to oversee water sharing on a daily basis, creating much rancour and dissatisfaction in both Karnataka and Tamil Nadu.

The two States continue to squabble over an acceptable implementation mechanism. It is not entirely clear if a tribunal can recommend implementation mechanisms.

On the other hand, due to the bar on its jurisdiction, the Supreme Court cannot engage with disputes beyond providing effect to tribunal awards. States fail to comply with awards, especially when the monsoon fails or due to political compulsions.

In this changing context of IWD politics, relying entirely on legal remedies, like permanent tribunal, has the danger of leading to extended litigations and antagonistic interstate politics.

Politicisation of IWDs will continue and it is imperative to mitigate the propensity for antagonistic politics between States.

As the political theorist Chantal Mouffe suggested, vibrant democracy needs the right kind of practices and institutions for channelling antagonistic politics into productive democratic designs.

For this, legal adjudication needs to be supplemented by right institutional interventions: ex-ante for negotiations and agreements, and ex-post for compliance and implementation.

(The author is a doctoral candidate in the Department of Geography, University of Washington. He is currently based at the Centre for Policy Research, New Delhi.)

This article is by special arrangement with the Center for the Advanced Study of India, University of Pennsylvania

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