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".
