The previous chapter focused on the Indian trans-boundary legislation. We will now turn our attention to the overview, interpretation & criticism of the legislative regime. The present chapter will cover a broad overview of ISDA and the role of prior agreements in the legal landscape.
The language of the applicable legislation provides several pieces of interesting information.
The definition of "water disputes" in section 2 (c) of ISDA refers to three types of disputes. Trans-boundary water sharing is not explicitly included as a "water dispute": it is only covered through sections 2 (c) (i). More over, other types of disputes are specifically included. This leads to the inference that ISDA's primary role is the adjudication of water disputes including but not limited to water sharing. The very title of the act reinforces this inference.
ISDA title change through 2002 amendment may be interpreted to clarify the exclusion of lakes and ground water (excluding sub-surface streams) from the scope of the legislation. Lahiri notes "It became the Inter-State River Water Disputes Act, 1956 only after the 2002 Amendment on and from August 6, 2002".
Section 3 of ISDA empowers state governments to raise water disputes. This (together with the title itself) can be inferred to bar individuals and other non-state players such informally defined "regions". Only a state government can pray for remedy if aggrieved.
Section 3 (and indeed ISDA itself) relates only to inter-state disputes. This is evident from both the language and the title. Taken together it is not possible for any one other than a state government (e.g. a regional council) to escalate a water dispute against another district, region or state. Distribution of water within a state (i.e. entry 17 rights) is clearly out of bounds.
I emphasize some of the above assertions are based on the sum total of my understanding after going through hundreds of pages of case law, tribunal reports & scholarly works. I realize I am not backing up some of these "on the spot" but this is to avoid increasing the pages of this work.
A commission appointed under section 130 of the 1935 act is limited to an advisory role. The Governor-General had wide discretionary power as confirmed in section 131 (9). He has the authority to take decisions or modify decisions he has already taken. The arbitrariness in his role as well as possible conflict with "his Majesty in Council" appear to be the main reasons why KWDT suspected "political considerations". The situation did not appear to have improved much from the pre-1935 period when the Griffin arbitration award was overturned by executive action.
Another distinction relates to the composition and appointment. Section 131 (1) of the 1935 act permits a commission to include individuals "having special knowledge and experience in irrigation, engineering, administration, finance or law", as decided by the Governor-General. The Indus Commission consisted of two members apart from the Chairman Justice BN Rau: both were engineers.
On the other hand, ISDA section 4 (2) limits the membership to serving (at the time of nomination) judges selected by the Chief Justice of India. Section 4 (3) relates to the appointment of assessors.
Unlike a commission setup under the 1935 act, a tribunal constituted under ISDA is empowered to pronounce a decision. This decision is binding on all the parties to the dispute as well as the central government. Tribunal decisions may not be questioned in a court of law. In practice this may not have worked out smoothly due to several reasons. Nevertheless a tribunal is a powerful adjudication institution.
How do tribunals compare with courts? While a tribunal decision may not be challenged in any court, this relates only to the decision itself. This is not helpful in determining a tribunal's hierarchy insofar as stare decisis is concerned.
KWDT (volume IV, page 11) provides some clues:
"But a Tribunal constituted under a special statute has no common law or inherent power, see Kamaraja Nadar v. Kunju Thevar (1959) S.C.R. 583, 596 (Election Tribunal). However, if authorized by the statute by which it was constituted, it may review its decision, see Sree Meenakshi Mills Ltd. v. Their Workmen (1958) S.C.R. 878, 888 (Labor Appellate Tribunal under the Industrial Disputes Act, 1947); Mulla's Code of Civil Procedure 13th Edition, page 1669; and may correct an accidental omission, see Tulsipur Sugar Company Ltd v. State of U.P. (1970) 1 S.C.R. 35, 37, 41-45 (Labor Court under U.P. Industrial Disputes Act, 1947).
This Tribunal is set up under the Inter-State Water Disputes Act, 1956. Its powers are circumscribed by the provisions of that Act. It has no inherent powers. It has some trappings of a Court. Section 9 of the Act gives the Tribunal some powers of a Civil Court and also enables it to regulate its practice and procedure. But the powers under section 151, 152 or under section 114 or Order 47 Rule 1 of the Code of Civil Procedure have not been conferred on it. Section 5(1) of the Act provides for reference of a water dispute and any matter appearing to be connected with or relevant to the water dispute to the Tribunal for adjudication. Section 5 (2) directs the Tribunal to investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it.
At pages 512 to 513 of Vol. II of the Report we have pointed out that a Tribunal appointed under the Inter-State Water Disputes Act, 1956 is not a permanent body and it cannot retain jurisdiction to modify its decision, apart from its statutory power to do so upon a reference made to it under section 5 (3) of the Act within three months of the decision".
The above may be considered in view of the following:
· Tribunals frequently cite both case law (Indian & international) as well as other tribunal reports
· The converse does not appear to be true. The Indian case law I referred frequently cited the appropriate tribunal but this was only for understanding the reason behind a decision
· I have not come across a single instance where an Indian court cited a different tribunal's report
Not withstanding the jurisdictional bar, it is therefore safe to conclude a tribunal's report has little if any precedential value outside of water dispute adjudication. Even this may be limited by context e.g. CWDT's approach on basin transfers may not be relevant to different situations.
KWDT (volume I, page 101) reading sections 2 (c) (ii) and 3 (c) of ISDA together determined: "if there is an agreement between the States relating to the use, distribution or control of the waters, that agreement should be implemented". GWDT (page 109) also cites this. KWDT also cites the Indus Commission's views "The agreement determines their respective rights and obligations and furnishes the agreed "law" on the subject".
On a similar note, Lahiri states the Indus Commission held "where there was an agreement, the agreement itself determine the limits and any transgression of this agreement would make the transgression actionable".
It may be noted that section 3 (c) refers to any agreement "relating to the use, distribution or control of such waters". While water sharing agreements are included, this may also include other agreements relating to the use/distribution/control of waters. There is also no restriction on the modalities of sharing. Agreements signed for Godavari water sharing adopted several methods including specific projects, sub-basins or part thereof, TMC shares as well as combinations of these.
In an agreement signed on July 12, 1974 Madhya Pradesh (MP), Gujarat, Maharashtra & Rajasthan agreed on several aspects relating to the dispute then being adjudicated by Narmada Water Disputes Tribunal (NWDT). Apart from agreeing the water quantity available at 75% dependability as 28 MAF (million acre-feet), the parties agreed to set aside 0.25 MAF & 0.50 MAF respectively for Maharashtra & Rajasthan. NWDT accordingly allocated this water to the two states in clause III of the decision.
GWDT also refused to interfere with valid agreements between states. The central government in its clarification 5 requested the tribunal to provide for a review as water available may become scarce with the passage of time. The tribunal refused the request stating "The decision of the Tribunal is based on the Agreements between the parties and there is no stipulation in the Agreements for the review of the decision. As such, we do not find it necessary to amend the Final Order in this respect".
Andhra Pradesh v. Maharashtra & Ors, 2013 (Babhali barrage case) provides an interesting case study on how agreements are to be drafted. The case centered to a great extent around clause II (i) of the agreement dated October 6, 1975, between the two states. This agreement was included in the award as Annexure II vide clause V (A) (b). The relevant text is shown below for ready reference.
"II. (i) From the waters in the area of the Godavari basin below Paithan dam site on the Godavari and below Siddheswar dam site on the Purna and below Nizamsagar dam site on the Manjira and up to Pochampad dam site on the Godavari, Maharashtra can utilize waters not exceeding 60 TMC for new Projects including any additional use over and above the present sanctioned or cleared utilization, as the case may be".
AP argued inter alia the phrase "up to Pochampad dam site" includes the entire storage area of the dam. Maharashtra argued the phrase had to be interpreted literally i.e. "up to the concrete structure of the dam" as this meaning was used in other clauses of the agreement. Any other interpretation, it argued "would result into absurdity and make other clauses unworkable".
Maharashtra also contended that there was no limitation in its rights in its territory: "If the intention of Andhra Pradesh was that Maharashtra should not utilize the waters of Pochampad reservoir in its territory, such limitation would have been provided expressly".
Justice Rajendra Mal Lodha agreed with Maharashtra holding: "We are in agreement with Mr. TR Andhyarujina that if the intention of Andhra Pradesh was that Maharashtra should not utilize the waters of Pochampad reservoir in its territory, such limitation would have been provided expressly. When an agreement is entered into between two or more states, they have assistance of competent legal and technical minds available with them. The states do not have lack of drafting ability. Such agreement is drafted by trained minds. An agreement such as inter-state water sharing agreement would not leave its interpretation to chance. In our view, in the absence of any express limitation, except quantity, on the use of water by Maharashtra within its territory in Clause II i), the interpretation put by Andhra Pradesh to this Clause cannot be accepted".
Justice Lodha rejected AP's interpretation of the phrase "dam site" and upheld Maharashtra's contention. "The contention of Mr. K. Parasaran, learned senior counsel for Andhra Pradesh that up to Pochampad dam site in Clause II (i) and Clause II (ii) means up to the spread area of Pochampad dam and not the concrete structure of the dam does not appeal to us. The common meaning of the word “dam” is the structure across the stream, including the abutment on the sides".
The learned judge agreed with Maharashtra that an expression must carry the same meaning at all places where it is used, unless expressly provided otherwise. He wrote: "If the meaning of Pochampad dam site is given meaning as spread area of Pochampad dam, Clause V does not make sense and leads to absurdity. Clause V becomes workable only when Pochampad dam site is understood to mean concrete structure of the dam".
While agreeing with AP that "generally there cannot be lake/pondage of a project of one state within the lake/pondage of the project of another state", the court held this was not the focus of the case in the absence of engineering and hydrographic testimony. As the arguments on either side were centered on the interpretation of II (ii), this alone was considered for the judgment. The learned judge held "Like any other agreement, the terms of inter-state agreement ordinarily must be found out from the actual words employed therein".
"All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void": section 10 (excerpt) of the Indian Contracts Act, 1872