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Better Solutions for Water Battles

Gold Silver Reports — Better Solutions for Water Battles — The Cauvery dispute has escalated again this year and is testing the inter state water dispute resolution mechanisms. With the Karnataka gov ernment signalling its inability to implement the Supreme Court’s orders, the legislature is pitched against the judiciary. The dispute is restaging the spectacle of the rare moments of constitutional crises in the history of our federal governance. This standoff between the Su preme Court and the Karnataka government will hold public attention for some time.

Meanwhile, the disturbances in the two states of Karna taka and Tamil Nadu have incurred huge economic losses. Why are these interstate water disputes so difficult to govern? What needs to be done to avoid their recurrence and escalation?

Interstate water disputes are different from other interstate disputes. The Constitution, under Article 262, bars the jurisdiction of the Supreme Court or any other court over interstate water disputes. The Interstate (River) Water Disputes Act 1956 provides for the resolution of disputes. Under its provisions, the disputes are to be adjudicated by ad-hoc, temporary and exclusive tribunals. The tribunals are dissolved after they give away the awards. The awards carry the force of a Supreme Court’s decree, and are binding on the states for a period of 25 to 30 years. This ar rangement has not been effective and suffered from several governance chal lenges.

First, adjudication by tribunals involves long-drawn adversarial litigations causing chronic delays. Second, the arrangement deprives the states of an avenue to redress their grievances after the tribunals are dissolved. When states approach the Supreme Court in such instances, the bar on its juris diction puts restrictions on the court. The apex court has had to limit its role to providing clarifications, leaving states discontent. At the most, it extends executive force by giving directives as per the awards.

Third, there is an institutional vacuum for implementing tribunal awards.The law entrusts the Central government with the responsibility of framing institutions for implementing tribunal awards. The government is at a loss as there are no proven institutional models for interstate coordination. When tribunal recommends such mechanisms, states object to these arrangements, as it happened in the Cauvery and Krishna disputes.

Fourth, disputes have become sites of po litical mobilisation in our multi-party democratic setting. Political parties often ride on the emotive associations and notions of identity to animate and escalate disputes. The disputes offer opportunities for grandstanding, and engaging in vote bank politics. This nexus between water and politics often subverts and sabotages the resolution.

Finally, realising water allocations in monsoon deficit years is the most contentious issue between states. There has not been any instance of satisfactory and successful distress sharing practices. At the centre of the Cauvery dispute lies this major difficulty.The states have disagreed with the tribunal’s recommendation for a proportional reduction of shares during distress times. In the absence of transparent information gathering and sharing, it also becomes an operational challenge. As witnessed in the Cauvery dispute, political leaders cannot be seen as compromising the state’s interests and are compelled to escalate the dispute.

The Way Out

This combination of legal anomalies, institutional vacuum, and the nexus of water and politics results in the recurrence of interstate water disputes. But legal approaches have been inadequate, and experiences so far reveal its limitation in addressing the problem.The strategy has to be multi-pronged, and legal approaches have to be supplemented with institutional and political solutions.

The reliance on temporary tribunals has to be reviewed. The government’s proposed permanent tribunal may be helpful. But it is also time to ask more fundamental questions.Should we continue with the bar on Supreme Court’s jurisdiction, which has its roots and rationale in the colonial context? The law also has to resolve the ambiguities around setting up institutional mechanisms for implementing the awards. Finding the right kind of institutional models for interstate coordination is the additional challenge.

Further, it is necessary to have credible avenues for pursuing political solutions supplementing legal and institutional mechanisms. These are vital in mediating and mitigating escalation of disputes, especially in distress situations. We have so far relied on the Central government’s mediation for the purpose. In these times of coalition politics and assertive regional political forces, this practice is unlikely to help. The Interstate Council, provided by Article 263, is conceived primarily for this purpose of intergovernmental mediation. It may be strengthened as a credible ex ante negotiating space for the states before resorting to legal adjudication. With its constitutional mandate, the council can also provide the right kind of expost mechanisms for managing escalating and recurring disputes. — Neal Bhai Reports

Better Solutions for Water Battles

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