Friday, 5 June 2015

The Water Tribunal Trap (History of Interstate Water Dispute Act and Article 262 of Indian Constitution)

Why in news?

Recently PM Modi said that tribunals have become barriers to justice. Many thought of it as in reference to Water dispute tribunals though Prime Minister was referring to tribunals in general sense only. 

So, we now need to understand the History of Interstate Water Dispute Act and Article 262 of Indian Constitution


Talking of water tribunals at present(June 2015), 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.
Legal situation of water tribunals 

Constitution of India ,article 262

“262. Adjudication of disputes relating to waters of inter-State rivers or river valleys:
(1)        Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, in any inter-State river or river valley.

(2)        Notwithstanding anything in this Constitution, Parliament may, by law, provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1)”
[It should be noted that the “dispute” need not be between States, as such]."

  • To say in simple language it means that Parliament has power to make a law under which any dispute between parties may be decided. Further, parliament also has the power to make a law under which they can bar the jurisdiction of any court in relation to water disputes.  This is exceptional thing to happen under law and that too in the constitution. Because of this exception the water tribunal cannot be bundeled 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.
Are inter state water dispute tribunals inefficient?

  • Legal ambiguities, an institutional vacuum for implementing awards, noncompliant States, politicisation etc. are few of the issues. 
  • Biggest problem: Gordian knot of the constitutional anomaly, or the exception to the Supreme Court’s jurisdiction. 
Why are we having the ad-hoc tribunals at first place? Why did not the constitution makers make a provision for a permanent (constitutional) Water Tribunal in the Constitution itself
?


  • There were similar provisions during colonial rule (including a bar on the Federal Court’s jurisdiction). 
  • Government of India Act 1935 inspired many of the provisions of the draft constitution. This draft constitution inspired The Interstate Water Disputes Act, 1956.
  • The Constituent Assembly called 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. In other words they deferred the responsibility of an appropriate legislation to Parliament via Article 262(1), while providing for the jurisdictional bar via Article 262(2). 

Then Parliament took up the task, the proponents of the Interstate Water Disputes Bill 1955, Gulzarilal Nanda, Minister for Planning, Irrigation and Power, chose to contradict the Constituent Assembly’s premises ( that there would be many disputes, relying on the 7-8 years of experience after independence) and resurrect these tribunal arrangements.  In hindsight we can say that they were wrong. Their intention though was clear - to ensure swift and definitive decision-making in interstate water disputes. 

So what was the logic of the parliament while enacting The Interstate Water Disputes Act, 1956?


  • Parliamentarians greed that tribunals suit water disputes best 
  • By barring SC they would avoid the unnecessary appeals which leads often to protracted (i.e. long) court proceedings. 
  • Tribunal arrangements would also enable deliberative and discretionary decision-making for ‘mutually negotiated settlements’.
But then why did it fail inspite of the good intentions?

  • Initially successful in the functioning of the first generation tribunals of Krishna, Narmada and Godavari. 
  • But slowly they turned out to be litigatory and adversarial proceedings with protracted delays.
  • Subsequent parliamentarians didn't allow several amendments to the 1956 act. 
    • Whatever amendments did happen they were:
      • Reactionary in nature, 
      • diluted the spirit and rationale of the tribunal arrangements. 
Conclusion
It is imperative to have a comprehensive review of interstate water dispute resolution, and also reconsider the Supreme Court’s jurisdictional bar.

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