A perpetual tussle over Water Resources: An inevitable need for Inter-State mediation in Inter-State Water Disputes

India has seen and engaged in a plethora of domestic and international water disputes since and even before its independence. This is evident from India and Pakistan’s long-standing history of water disputes. In view of this the nations have commenced with their annual meeting of the Permanent Indus Commission, formed under the Indus Waters Treaty, 1960, as of 23-3-2021.[1] Although this meeting acts as a facilitator for resolution of water disputes and gives rise to an agency for mediation in India, it is far from being adequate since the domestic legislative framework and mechanism to deal with inter-State water disputes remain undeveloped and outdated to accommodate inter-State mediation.

In view of the above, this article shall firstly, describe water disputes and the reasons behind the same. Secondly, the article shall scrutinise the reasons behind the undeveloped and outdated state of the domestic legislative framework that fails to adequately accommodate inter-State mediation to resolve inter-State water disputes. Lastly, the article shall suggest how inter-State mediation can be incorporated to resolve the long-pending water disputes in India.

Introduction: Bird’s eye view of water disputes

Water resources are becoming one of the major moot points among several areas, communities, and countries with each passing day. The reasons behind this are physical and economic water scarcity, unsustainable management and development practices related to water use, “global food trade,” and the damage caused to the ecology from human behaviour –– mining activities, industrial activities, and so on.[2] Thus, we can infer that water disputes may take place in a situation where water scarcity may or may not exist. It is the ineffectiveness and inefficiency of dispute resolution mechanisms that lead to water disputes. In other words, water disputes depend upon the ability of the dispute resolution mechanisms to resolve the water conflicts in a particular area or community. If the dispute resolution mechanism is weak, then it is most likely that water disputes are bound to occur and perpetuate. These “disputes” essentially translate to a brawl over the need to access, control, manage and/or use these water resources.[3] Further, they also often involve conflicts due to the inherent right to use these resources; the depletion of these resources; and the underlying threat to livelihood caused as an ancillary consequence of these disputes (e.g.: loss of livelihood of indigenous people near a river due to the construction of a dam).[4]

Analysis: How the Central Government failed to create an adequate legislative framework to accommodate inter-State mediation for inter-State water disputes

Article 262 of the Indian Constitution confers power on the Parliament to enact laws related to the adjudication of disputes related to the usage, distribution, control of water of or in, any inter-State river or river valley. Thus, Parliament enacted two laws: River Boards Act, 1956 and the Inter-State River Water Disputes Act, 1956. Under the River Boards Act, the Central Government has the power to create “Boards” in consultation with the State Governments for the purpose of advising the State Governments on “development schemes” related to inter-State basins.[5] Further, the purpose of this Board is to reduce the propensity of inter-State water disputes. The anomalous nature of the intent of the Government is evident from the fact that uptil date, no such “Board” has been created by the Central Government.[6] Their creation becomes imperative as these Boards enable to create a discourse for inter-State meditation by promoting mutual dialogue. However, the absence of these Boards highlights inactive and lethargic efforts of the Government at the prima facie level. Due to the lack of adequate efforts, the necessary mechanism/framework for existence of inter-State mediation is hindered.

The second point which highlights the lackadaisical attitude of the Government is that although the River Boards Act makes a provision for arbitration,[7] this provision has been proved counterproductive and futile because the parties can refer to arbitration only in situations wherein the advice or measure was rendered by the “Board”.[8] As no Boards were formed in India, the arbitration mechanism is rendered non-existent which, in turn, further hinders the establishment of an inter-State mediation mechanism.

Under the Inter-State River Water Disputes Act, the State or States can approach the Central Government for resolution of water disputes, who in turn, may refer the dispute to a “Water Disputes Tribunal.”[9] The decision of this tribunal shall be final and binding,[10] and is beyond the purview of being reopened and reviewed.[11] However, if the State Government is of the opinion that anything contained in the Tribunal’s decision requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, the State may, within three months from the date of the decision, again refer the matter to the Tribunal for further consideration.[12]

The third point which clearly depicts the conundrum between the power conferred  and the execution is that although inordinate delays in the constitution of the Tribunal and delivery of its decisions was resolved through the Inter-State River Water Disputes (Amendment) Act, 2002, certain issues still continue to exist –– the States can approach the Supreme Court under Article 136 of the Indian Constitution that grants discretionary power to the court to appeal from the decision of “any” tribunal; or private persons may approach the Supreme Court under Article 32 and link the water dispute issues and/or tribunal’s decision with violation of fundamental rights. Further, it is also imperative to note that the composition of the Tribunal is not diverse as only individuals from the judiciary are appointed.[13] This may severely detriment the tribunals’ ability to deliver a truly holistic and final decision.

Further, before the aforementioned reference is made to a tribunal by the Central Government, the Central Government may attempt to facilitate negotiations. However, if it is “of the opinion” that such dispute cannot be settled through negotiation, it may refer the dispute to a tribunal.[14] This leads to the fourth point which highlights this conundrum is that when we analyse the history of water disputes, the Centre has directly referred the disputes to the Tribunal with putting little to no efforts for facilitating negotiations and attempting to amicably settle these disputes. This can be understood from an in-depth scrutiny of the history as follows.

Firstly, in the Cauvery River dispute i.e. State of Karnataka v. State of T.N.,[15] it is imperative to comprehend that Cauvery River is essentially an inter-State basin that has its origins in Karnataka and flows through Tamil Nadu and Puducherry. In this dispute, an agreement was signed in 1924 from which Tamil Nadu and Puducherry would get seventy-five per cent of the surplus water from Cauvery River, while Karnataka would get twenty-three per cent of the surplus water. The remaining would go to Kerala. Further, no restrictions were placed on how much land could be irrigated. Thus, the States concerned are Kerala, Karnataka, Tamil Nadu and Puducherry (Union Territory). However, in 1970, the Cauvery Fact-Finding Committee found that the irrigated lands had grown in Tamil Nadu resulting in an increased need for water supply while Karnataka’s lands showed little to no growth. Tamil Nadu’s proposal for increased need of water supply was rejected by Karnataka due to which Tamil Nadu directly requested for setting up of a tribunal. After a repeated formal request in 1986, the Tribunal was finally formed in 1990, after almost twenty years. In the Tribunal’s final decision in 2007 and the Supreme Court’s multiple advices, Karnataka was ordered to release water from Cauvery River to Tamil Nadu. However, Karnataka did not comply with the same as it contended that they did not have sufficient water to cater to its own needs, let alone supply to Tamil Nadu. This water dispute still remains sub judice in the Supreme Court as it reserved its judgment in 2017. In this dispute, it is pertinent for us to comprehend that little to no efforts are visible regarding Centre’s intervention for facilitating negotiations between the States concerned due to which the matter still remains under judicial consideration.

Secondly, in the Sutlej Yamuna Link (SYL) Canal issue i.e. State of Punjab v. Surjan Singh,[16] it is imperative to comprehend that the SYL Canal is a project proposed to connect the Sutlej River in Punjab with Yamuna Canal in Haryana. In 1966, after the Indus Waters Treaty 1960, India received the unrestricted right to three rivers: Ravi, Beas, and Sutlej. They were shared among Punjab, Delhi and Jammu & Kashmir. In 1966, Haryana was created from Punjab’s territory. When such bifurcation occurred, water rights were also one of the dispute points as Haryana, being a successor State, had the water rights to Punjab’s Sutlej River. In 1976, the then Prime Minister Indira Gandhi divided the water between Punjab, Haryana and Rajasthan. But this division was not complied by the Punjab Government. This non-compliance led to the formation of a tribunal in 1986, which passed an order in 1987 dividing Sutlej River’s water between Punjab and Haryana. However, the Punjab Government challenged this order and contended that Sutlej River’s capacity has been overestimated. In the midst of this, SYL Canal’s foundation stones were laid in 1980s but its construction had to be halted for multiple reasons, such as militancy in Punjab among other reasons. In 2002, the Supreme Court ordered the Punjab Government to complete the construction of the SYL Canal within 12 months. In the midst of this, a subsidiary dispute arose –– Ravi-Beas water dispute –– in which a tribunal was set up in 1985 to specify the quantum of water to be shared between Punjab, Haryana, and Rajasthan. In 2004, Punjab passed the Punjab Termination of Agreement Act, 2004 which scrapped all the water sharing agreements signed with other States and required the Punjab Government to restore the land to the farmers free of cost. However, this was declared as unconstitutional by the Supreme Court. It also directed both the Governments to maintain the status quo i.e. complete the construction of the SYL Canal. It is important to note that only after years of constant tussle and endless struggle, the Centre agreed to mediate between Punjab and Haryana on 18-8-2020.[17] This delayed cognizance and effort has proven to be far more detrimental than beneficial as years of litigation not only led to a resource drainage but also a disenfranchisement of the other involved stakeholders –– such as meeting of farmers’ irrigation needs and creation of hydel projects –– from the probable benefits of SYL Canal.

Thirdly, apart from the aforementioned disputes, other major water disputes exist –– such as Godavari River water dispute (between Maharashtra, Andhra Pradesh, Karnataka, Madhya Pradesh and Odisha), Narmada River water dispute (between Rajasthan, Madhya Pradesh, Gujarat and Maharashtra), and the Krishna River water dispute (between Karnataka, Telangana, Andhra Pradesh and Maharashtra) –– wherein the Centre has shown little to no efforts or cognizance for facilitating negotiation. This has hindered the progress and growth of inter-State mediation space in India due to which the legislative framework concerned –– River Boards Act and Inter-State River Water Disputes Act –– remain undeveloped.

 

 

Conclusion: The last ray of hope –– Inter-State mediation

Considering the fact that multiple inter-State water disputes have resulted in heavy loss of resources, benefits, and opportunities, the need to consensually reach a common, harmonious ground becomes inevitable to avoid any future damages or repercussions. Mediation offers the best chance at this reconciliation because it would allow both the States to take charge of the proceedings while the mediator would only facilitate dialogue between the States. However, the fifth and final point of conundrum arises is that there is a lack of adequate inter-State mediation resolution mechanism for inter-State water disputes.

To resolve the same conundrum, firstly, there is a need for an institutional space for inter-State mediation. Germany has the LAWA (Working Group of the Federal States), and Australia has the COAG (Council of Australian Governments) that acts as an institutional space for deliberation and dialogue between different States.[18] Similarly, in India, the Inter-State Council can be established under Article 263 of the Indian Constitution. This Inter-State Council can become a permanent inter-State mediation forum by facilitating establishment of smooth procedures, appointment of mediators, and so on. The utilisation of this existing framework will lead to cost and time saving for the States and the Centre.

Secondly, the Inter-State River Water Disputes (Amendment) Bill, 2019 calls for the set-up of a “Dispute Resolution Committee” that shall first attempt to settle the inter-State disputes amicably. It shall comprise of a chairman and experts with fifteen years of experience from the relevant sector. If the dispute fails to be settled amicably, only then it shall be referred to the Inter-State Disputes Tribunal. Although this is a positive step towards inter-State mediation and amicable settlement of disputes, the 2019 Bill has only been passed by the Lok Sabha and is pending before the Rajya Sabha. Considering the urgent need for such dispute resolution mechanism, a speedy passing of the Bill is quintessential to aid in the recovery of the hard-hit sector concerning the resolution of water disputes.

Thirdly, either the Inter-State Council or the Dispute Resolution Committee can adopt a method similar to that of arb-med to avoid the hassle of litigation. In arb-med, a trained and neutral third party first hears the parties in an arbitration proceeding and writes a suitable award.[19] However, the third party keeps this award sealed from the parties and only then moves ahead to mediate between them.[20] The reason why arb-med should be preferred over med-arb is that in case of med-arb, the mediator knows the sensitive and personal information of the parties by virtue of the mediation proceedings commencing first.[21] This information may not be disclosed in the arbitration proceedings by the parties because of which the mediator may be indirectly influenced from this information while writing the arbitral award.[22] Therefore, arb-med seems like a lucrative option to resolve inter-State water disputes wherein the third party may hear the States concerned, write the suitable award, move ahead with mediating between them, and in case of failure, deliver the earlier written award.

Lastly, in international law, there are two primary conventions that are imperative to note: Convention on the Protection and Use of Transboundary Watercourses and International Lakes (hereinafter “Water Convention”) and the Convention on the Law of the Non-Navigational Uses of International Watercourses (hereinafter “UN Watercourses Convention”). On one hand, the purpose behind the Water Convention is to ensure that the party States make the requisite attempts and measures for the protection and management of transboundary surface water and groundwater. On the other hand, the UN Watercourses Convention is an enabler of the Water Convention because the UN Watercourses Convention essentially covers the uses of international watercourses and of their waters for purposes other than navigation. It also covers the measures of protection, preservation and management related to the uses of these watercourses and their waters. Both the aforementioned conventions cover arbitration and negotiation in a detailed manner as opposed to the national legislative framework of India. The conundrum arises herein is that neither India nor major States are a party to these conventions which makes it more perplexing to enhance the domestic scenario of resolution of water disputes in India. Had India been a signatory and ratifying party to the same conventions, its legislative framework would not have been as outdated and inadequate as it currently is because it would have otherwise complied with the international standards of water dispute resolution mechanisms and/or practices. Thus, India must strive to become a signatory and ratifying party to the same conventions while gathering international support for the same as it will enable India and the international community as a whole to better resolve water disputes by conforming to the international standards. Further, international support will also lead to the growth and development of these international standards for water-related matters which, in turn, would enable efficient and effective resolution of water-related disputes.

The final point to be remembered is that mediation and amicable settlement of disputes –– without feeling the need to resort to inter-State water litigation –– is the need of the hour for a harmonious and progressive development of the ecology and the society.

 

† Iram Majid, Director of Indian Institute of Arbitration and Mediation (ILAM) and Executive Director of Asia Pacific Centre for Arbitration and Mediation.

[1]India, Pakistan Begin Indus Water Meet in New Delhi, ANI (23-3-2021) HERE.

[2] Simon J., A. Mason and Dorothea Blank, Mediating Water Use Conflicts in Peace Processes, UN Peacemaker HERE.

[3]Id. at 7.

[4]Id. at 7.

[5] The River Boards Act, 1956, Chs. II and III.

[6] M. Sridhar Acharyulu, The Great Indian River Question: Three Bills Threatening Federalism, DownToEarth (19-8-2020) <https://www.downtoearth.org.in/news/water/the-great-indian-river-question-three-bills-threatening-federalism-72913>.

[7] The River Boards Act, 1956, S. 22.

[8]Ibid.

[9] The Inter-State River Water Disputes Act, 1956, S. 4.

[10]Id. at S. 6.

[11]Id. at S. 4.

[12]Id. at S. 5(3).

[13]Id. at S. 4(3).

[14]Id. at S. 4.

[15](2018) 4 SCC 1.

[16]1989 SCC OnLine P&H 750 : (1990) 97 PLR 278.

[17] Mallika Goel and Shreyashi Roy, The Sutlej-Yamuna Link: State Skirmish or National Security Issue? The Quint (23-8-2020) HERE.

[18] Srinivas Chokkakula, Interstate River Water Governance: Shifting the Focus from Conflict Resolution to Enabling Cooperation, CPR India, HERE.

[19]Katie Shonk, What is Med-Arb? The Pros and Cons of Med-Arb, A Little-Known Alternative Dispute Resolution Process, Program on Negotiation, Harvard Law School Daily Blog (15-3-2021) HERE.

[20]Ibid.

[21]Ibid.

[22]Ibid.

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