November 25, 2013

Telangana river waters, irrigation & agriculture-10 (Criticism of indian water legislation)

Notes on this chapter

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.

RBA: a toothless wonder

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.

General criticism of the trans-boundary dispute resolution process

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".

Center vs. states

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".

Colonial & imperial structures

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 ".

Basin as a unit

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".

“Criticism may not be agreeable, but it is necessary. It fulfills the same function as pain in the human body. It calls attention to an unhealthy state of things”: Winston Churchill


  1. The final verdict of Justice Brijesh Kumar tribunal is out today. You would be finding lot of stuff to write on this verdict. At the outset, I wanted to know the applicable hierarchy /overriding laws for an interstate dispute resolution in India. Then only we can achieve practicality / clarity in the arguments.

    My list of laws / agreements in the pecking order are
    1) Interstate river water disputes act or ISRWD act (up to recent amendment)
    2) Final order of KWDT1, Narmada WDT and GWDT verdicts issued before August, 2002 (i.e. Any dispute settled by a Tribunal before the amendment to clause 4 of ISRWD act in August, 2002 shall not be reopened)
    3) The explanatory text of tribunal order of KWDT1, Narmada WDT and GWDT verdicts. Incase of KWDT1, the final order was only published in the Gazette excluding explanatory text of the verdict. (i.e. in case of any contradiction between the content of final order and the explanatory text, the content of the final order is valid)
    4) The latest tribunal verdict strictly following above two acts OR distribution of water on equitable basis in the absence of any legal stipulations. However the doctrine of equitable allocation is very fluid (i.e. euphemism for the liberty given to the tribunal jury in dictating what they want)
    5) Any valid agreements among the states which can be abrogated by a tribunal (in case of KWDT1 few earlier agreements were cancelled by it)
    6) Any international law / practice in Interstate River water disputes. (i.e. to substantiate a tribunal’s wish)

    Please insert / alter or add more applicable legal documents from your end.

    Also clarify the following points.

    Amendment in the year 2002 to Section 4(1) of ISRWT act says that
    “GoI shall constitute a water disputes tribunal for the adjudication of the water dispute. Provided that any dispute settled by a tribunal before the commencement of interstate water disputes (Amendment Act) shall not be reopened.’
    In case of KWDT1, can we treat all clauses in its final order other than its stipulations which are kept explicitly open for future adjudication?

    Section 5(2) of of ISRWT act says the tribunal shall investigate the matters referred to it and forward to the GoI a report setting out the facts as found by it and giving its decision on the matters referred to it within a period of three years.
    In case of KWDT2 (Justice Brijesh Kumar Tribunal), there no specific matter referred to the tribunal by GoI other than saying that Tribunal is constituted for the adjudication of the interstate water disputes.

    Section 4 says ‘adjudication’ whereas section 5 says ‘investigation’. Investigation is a lot more than adjudication. In case of Almatti reservoir submergence area in Maharastra, an independent investigating agency was appointed by the KWDT2 tribunal to get independent information/ facts.

    What is the difference between only adjudication and adjudication backed by its own investigation? In my view, adjudication is the verdict given purely based on arguments or substantiations given by the disputing parties. Tribunal is not at fault in case of loss / damage due to faulty verdict arising from faulty / insufficient arguments (i.e. the onus of getting correct / real verdict lies with the disputing party). Whereas in case of adjudication with investigation responsibility given to a tribunal, the onus of giving correct / real verdict lies with the tribunal though the disputing party had not provided sufficient data /information substantiating its claims before the tribunal. ‘Interstate river water disputes act 1956 including 2002 amendment’ document is available at this link

    Please express your views on this issue.

    Best regards

    1. Very interesting comment, thank you.

      Section 5 (3) produced verbatim:

      "If, upon consideration of the decision of the Tribunal, the Central Government or any State Government is of opinion that anything therein contained *requires explanation* or that guidance is needed upon *any point not originally referred* to the Tribunal, the Central Government or the State Government, as the case may be, within three months from the date of the decision, again refer the matter to the Tribunal for further consideration, and on such reference, the Tribunal may forward to the Central Government a further report within one year from the date of such reference giving such explanation or guidance as it deems fit and in such a case, the decision of the Tribunal shall be deemed to be modified accordingly".

      The various parties & the center raise "clarifications" to which the tribunal responds. The tribunal *may* make changes based if warranted. This is somewhat similar to technical papers being revised after the draft is reviewed by peers.

      I therefore do not believe the KWDT-II "further report" (the first report is called "final report") will be dramatically different from the 2010 "final report".

      There is no particular pecking order to my knowledge. The only caveat is that previous agreements continue to prevail.

      The principle of res judicata is accepted in all jurisdictions. This means that a judgment shall not be reopened after all appeals are exhausted.

      I don't know why the 2002 amendment preventing reopening of settled disputes specifies 2002 as the cut-off. My best guess is that it is to prevent litigation on the ground that the tribunal exceeded the three year limit prescribed in the 2002 amendment.

      The report is *never* gazetted. Only the *decision* is published as per 6 (1).

      Valid binding agreements between competent parties are beyond judicial review. No court or tribunal can invalidate a private agreement. KWDT (and other tribunal) decisions did supersede several agreements but *only* with parties' consensus.

      What are the settled disputes that can't be reopened in KWDT-II? Different states took different positions with AP claiming the most.

      KWDT-II held (pages 213-214) that the following cases can be reopened:

      1. New disputes not referred to KWDT-I
      2. Disputes not adjudicated by KWDT-I
      3. Matters not fully decided by KWDT-I
      4. Any points that changed due to passage of time i.e. material changes in facts/circumstances

      I do not find any contradiction between adjudication & investigation. Disputes are adjudicated after the relevant issues are investigated. Whether the investigation is based on evidence & arguments submitted only or considers the input of assessors/agencies appointed by the tribunal is not relevant.

      The term "referred" in ISDA carries wide import. A tribunal is a quasi-judicial body with powers similar to that of a court. Therefore it can take up all related questions whether they are explicitly stated in the "brief". The litmus test is relevance, not the text of the reference.

      I am not sure if I addressed your questions adequately. I know the response may look curt but this is in the interest of brevity.

  2. 1) Section 3 of ISRWD act says a state can raise a interstate water dispute when its interests have been or likely to be affected by other state actions (3a, 3b & 3c)
    The recent KWDT2 decision has stipulated that next review of the decision is after the year 2050 nearly 35 years later. Till now four tribunal decisions were gezetted (KWDT1 (1976), Narmada WDT (1989), GWDT (1980) & Cauvery WDT 92007)). The last two tribunals have not specified any time period for the review of the tribunal decisions. Incidentally both KWDT1 & GWDT ware headed by Justice Bachawat. In clarifications in the further report of GWDT, he stated (clarification 5 to GoI, page 46) that it is not necessary (not worth of giving amendment to the Final order) to stipulate next review date.
    When there is a time stipulation for tribunal review, what would happen if interests of a state are affected per section 3 of ISRWD act meanwhile? Whether all the disputes will be kept pending till the expiry of time period as per the stipulation of the tribunal decision? if so, is it not denying the right of a state under ISRWD act by the tribunal? Please clarify.
    2) In the final order of KWDT1, the detailed procedure for calculating the entitled return flows by all three states is stipulated in clauses V (A) ii to iv, V (B) ii to iv, V (C) ii to iv and V (D). Where as KWDT2 (page 475) states that KWDT1 has already allocated (70 tmc) the return flows as 11 tmc to AP, 35 tmc to Karnataka and 24 tmc to Maharashtra. While replying clarification no II of Karnataka, KWDT1 stated that the expected return flows entitlement is 11, 35 & 24 to AP, Karnataka & Maharashtra respectively if all the taken up projects construction was completed by the year 1998-99. However in reality, there is at least a decade delay for Karnataka and Maharashtra water uses up to their allocations and AP achieved excess water utilization above its allocations in Krishna basin area.
    Is not it violation of stipulations given in final order of KWDT1 and fixing the return flows arbitrarily by KWDT 2 in its final order?
    Please give your views.
    Best regards.

    1. Just a test

      Thanks a lot for the comment. I compliment you on your research & clarity of thinking.

      The primary objective of res judicata is to prevent repeated and/or frivolous litigation. For instance, a litigant claiming he forgot to raise an important matter (or did not argue correctly) would be prohibited from approaching the court on these grounds.

      This does not preclude situations where the facts or circumstances have materially & significantly changed.

      In the subject of water disputes, a permanent allocation is neither feasible nor just. KWDT-I (volume I, page 39) cites renowned scholars to the effect that "a water allocation may become inequitable when the circumstances, conditions and water needs upon which it was based are substantially altered". This position is accepted by all jurists & scholars.

      GWDT is nothing but the sum total of various agreements. The agreements do not provide for any review. This is the reason why GWDT does not provide for any review. To that extent, this is a special case compared to the other tribunals.

      As far as I understand, any state aggrieved can raise a dispute anytime. The mere fact that a previous tribunal award is still valid can't be used to brush aside the dispute. The center is duty bound ('shall") under section 4 (1) to constitute a tribunal if the dispute can't be settled through negotiations.

      The provision for review in KWDT is an acknowledgment that there is a *reasonable* chance that facts or circumstances *were likely to change* in the interim period. The riparian states would be within their rights to insist on a review *after* the specified date. This did not prevent them from raising fresh disputes *before* the date.

      Regarding return flows, KWDT-I as you pointed out used a formula. KWDT-II statement "Over and above 2060 TMC, 70 TMC stands already allocated by the previous Tribunal on account of return flows" is therefore inaccurate.

      However, the estimation of 70 TMC appears to have been arrived by the states themselves. Incidentally the return flows have been calculated at 7.5% specified in the interim award, not at 10% as fixed in the final gazetted decision.

      KWDT-II appears to have abandoned the earlier practice of separating return flows. I would have expected the states to raise this in the clarification phase. I suspect they did not do so (probably because they themselves provided the numbers).

      Does this mean a violation of KWDT-I award? No, because of two reasons:

      1. KWDT-II supersedes KWDT-I after it is gazetted
      2. Return flows awarded by KWDT-I were actually used as long as it was in force

      A minor point: the fact that Justice RS Bachawat headed both KWDT & GWDT is not of much significance. These are two separate basins with their own peculiarities. The tribunal methodologies were dramatically different. In any case, section 5 (4) provides for a majority opinion in case of differences. I prefer the more accurate term like "KWDT" to terms like "Bachawat tribunal" for precisely this reason.

  3. 1) I would like to aver that the provision of keeping time limit up to the year 2050 by KWDT2 is due to super confidence that there will not be any change in facts or circumstances for many decades and all the facts or circumstances taken place uptill now.
    What could be reason for not giving time limit in Cauvery WDT given in 2007 and gezetted recently?

    2) You are of the opinion that KWDT1 final order would be superseded by KWDT2 final order after it is published in the gazette of GoI. Clause XXIII of the final order says that
    “The provisions made in the decision/order passed and the decision and directions given by KWDT1 which have not been amended, modified or reviewed by this order shall continue to be operative”
    The better method of giving the final order of KWDT2 would have been giving clause wise amendment to the final order of the KWDT1 for imparting clarity. It would have prevented many litigations / suits by SC in the interpretation of the KWDT2 final order. Also it would have made the functioning of the Board to be set up for KWDT awards implementation. Please comment.

    Best regards.

    1. I don' know why CWDT did not provide for review. Regarding KWDT-II, even if (a big if) the tribunal was confidant there will be no material changes till 2050, it does not mean anything. Life does not flow the way someone expects it will.

      I acknowledge KWDT-I clauses not amended continue to prevail. In the case of water allocations, the original clauses do stand superseded.

      The best way to pronounce the decision in my opinion would have been to restate all the clauses (continue to prevail + overriding + new).

      All the litigation against the tribunal is frivolous. This is essentially tamashabazi by politicians aimed at their constituencies. The attorneys know courts have no jurisdiction but are sailing along to keep their bosses happy.


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