The previous chapters outlined the Indian trans-boundary legislation as well as overview & interpretation of the Indian water regime. The present chapter attempts to "complete" the discussion by looking at criticism from among the scholarly community.
By its very nature, this by no means can be exhaustive or even thorough. This should not deter us as the limited aim of this chapter is to offer a few critical insights into the Indian water regime.
This chapter for obvious reasons can only be subjective. However, the "subjectivity" does not adversely impact the findings of my study. To that extent, this chapter is peripheral to the main body of this study.
Unlike in other chapters, I present the views mostly on an "as is" basis. I limit my comments only to cases where I believe there is an urgent need to correct or supplement the scholar's opinion. This however does not mean I concur or differ with other views on which I am silent.
I realize this chapter may provide some "ammunition" for critics of this work. I leave it in deliberately in order to benefit from the resulting discussions.
Srinivas Chokkakula has published a work called "Disputes, (de)Politicization and Democracy: Interstate Water Disputes in India". This work is funded and made available by Centre for Economic and Social Studies (CESS). His study traverses the work several important scholars.
Chokkakula cites (page 8) RBA as "the only instance where Center has used powers accrued under Entry 56" and explains the boards setup under this law are only advisory bodies.
Chokkakula refers to section 22 of RBA providing for arbitration of disputes over river board advice. He argues this section is redundant as "States are bound by the agreements they enter into through mutual consent, but not by any directive by the Boards". He calls for a comprehensive review of the boards setup till date. He concludes "In the absence of alternative institutional mechanisms to manage interstate rivers, conception of the River Boards as advisory is puzzling".
Stressing that RBA & ISDA are independent pieces, Chokkakula points out that river boards cannot be setup under RBA to implement tribunal decisions.
Alan Richards & Nirvikar Singh have published a paper titled "Inter State Water Disputes in India: Institutions and Policies". This work is partly funded and made available by the University of California, Santa Cruz.
Richards & Singh describe (page 2) "plethora of actors and the complexity of the institutional environment" as the key factors behind the apparently inadequate mechanisms for settling inter-state water disputes. They identify the actors as "state governments (which in turn must be decomposed into professional politicians, political parties, and interest groups), the national parliament, central ministries, the courts, and ad hoc water tribunals". The authors stress (page 3): Indeed, there is growing consensus that existing institutions are increasingly fail to generate outcomes which contribute to economic growth and national welfare".
Richards & Singh assert (page 5) "state governments dominate the allocation of river waters". They cite examples to state "an unambiguous institutional mechanism for settling inter-state water disputes does not exist". They also allege (page 18) the center has on occasion prolonged negotiations "by failing to speedily appoint a tribunal, even when asked".
The authors explain (pages 24-25) "extreme delays have been a very costly feature of the process of resolving inter-state water disputes in India". They cite three contributory factors: central delay in constituting tribunals, long tribunal turn-around time & delays in notification/implementation of the decision.
The authors opine (page 28) Sarkaria Commission's recommendation for amending ISDA to confer the status of a Supreme Court decree on the tribunal decision is not necessary. They note: "tribunals seem to have this force in theory: the problem is of penalties to be imposed for noncompliance". They therefore propose institutionalized enforcement mechanisms.
Chokkakula writes (pages 7-8) that the inclusion of water in the state list has given states a predominant role in water management. He cites Iyer that the center let the states take larger responsibility by not exercising its powers. He argues the phrasing of entry 56, especially the reference to public interest, extends the central scope to all situations where a state's action affects any other state. He contends this includes cases where the river is not trans-boundary.
While the second assertion is untested, most authorities accept that the rights of states are limited to waters within their territories. It is pertinent to note the supreme court held the "The Karnataka Cauvery Basin Irrigation Protection Ordinance 1991" unconstitutional on the ground it was "extra-territorial" (CWDT volume IV; pages 23-24).
Chokkakula raises (page 11) several interesting questions about the non-compliance by states: "Why a particular Act cannot be operationalized in its letter and spirit? Why should Supreme Court intervene to enforce the awards? Does Supreme Court's intervention not undermine tribunals? Why non-compliance is not treated as contempt of court? Can Supreme Court charge non-compliant States with contempt of court?" He mentions Fali Nariman's suggestion of repealing the ISDA and bring interstate water disputes under the jurisdiction of the Supreme Court.
Lahiri argues for a greater role to the central government: "I have, as a solution to this problem and to show the way ahead, advocated the cause for greater Central control. Water is a national resource and a national asset of India as a whole. It is not the property of one state to the exclusion of others. Water has to be distributed amongst the inhabitants of the States and Union Territories which form this great Union known as India. If we are to progress and forge ahead, only greater Central control over waters of inter-state rivers and works associated with them will ensure that water is distributed on the basis of need and not on the basis of ostensible ownership as if it were private property".
Chokkakula explains (page 27) the alternate approach of Radha D'Souza at some length. He explains "She argues that reproducing colonial and imperial structural relations are at the root of the problem of interstate water disputes in India".
D'Souza's structural conditions are explained: "The first is a condition created by continuation and internalization of colonial power relations (legal, institutional and administrative)- as illustrated by incorporation of agreements from colonial period, which remained sources of conflict. The second is a condition likened to contemporary reproduction of imperial order ".
Richards & Singh write (page 6): "while river basins seem the natural unit for dealing with issues of water sharing, investment and management, they have been the focus of conflict rather than cooperation in the Indian case".
Chokkakula explains (page 27) Radha D'Souza's perspective is rather different. She is credited with the argument that the construction of large dams in post-independence India is an "imperial project". She posits: "Promoted by international institutions like the UN and the World Bank, river basin development as a development project was embraced by postcolonial nations like India".