Interview: Understanding the Legal Aspects of Interstate River Water Disputes
Mohan V. Katarki was born in the State of Karnataka, India, on 20th January 1960; he obtained B.Sc. (1981) and LL. B (1984) from the University Law College, Dharwad. He started practicing in the Supreme Court of India in January 1985 in the Chamber of Senior Advocate Mr M. C. Bhandare. Mr Katarki developed a specialised practice in Inter-State Water Law concerning sharing or allocation of waters between the States in the Inter-State river and river valley. At present, he is representing four States before the Supreme Court and Inter-State Water Disputes Tribunals. We thank Mr. Katarki for his valuable time and co-operation.
Below is the excerpt from a telephonic interview with Mr. Katarki
Q. What according to you is the genesis of interstate river water dispute, is it influenced by political scenario or it is just failure of legal structure on the subject matter?
A: Interstate dispute primarily arises because of the difference in the perception between the Engineers and Planning bodies of two or more riparian States regarding the use of water. Since the stakes are very high in these matters, the politicians naturally step in. The issue gets popularised due to the involvement of media. It may be inferred in this way that these matters arise because of politics but certainly, politics is not the cause. The cause is to be the difference in perception of development of the water resources between the riparian States.
Q. How do you trace the interstate water sharing disputes in India, Historically?
Historically, Interstate water disputes in India date back to mid-19th century when high dam technology made its entry in the world. At that time India was in two parts i.e. British India and Princely states. There were no disputes in British India as the system was unitary under the Govt of India Act of 1858. Even in Govt of India Act of 1915-19, though provincialisation was introduced, the ultimate power of distribution of inter provincial water rested in the Secretary of State in London or his representative namely the Governor General of India. However, in the Government of India Act of 1935, the system was changed. A provision was made for the settlement of disputes by appointment of an independent Commission. Indus Commission was appointed under this provision to resolve the dispute between Sind and Punjab in 1942. In so far as the disputes between the princely States and British India were concerned, the issues were really complex. Cauvery water dispute is a prime example of disputes between the two. The exercise of Paramountcy or imperial power by the Secretary of State in favor of British India made the issue mainly political.
Q. How is a Tribunal constituted under Inter State Water Disputes Act 1956 when there is dispute arisen to resolve the dispute?
A. In case of water disputes, there is no concept of ‘Compulsory Jurisdiction’ i.e. no riparian State can directly file complaint raising the dispute in the Tribunal. A complaint is filed before the government of India under Section 3 of the Inter State Water Disputes Act of 1956 to constitute a tribunal and the said government, under Section 4, constitutes a tribunal only when it is satisfied that water dispute can’t be resolved by negotiations. The idea is that States must try to resolve the dispute through negotiation beforehand by its give and take policy at the level of high constitutional functionaries.
Q. Why is the award implementation of tribunal a major problem in the current status quo?
A. These water disputes are no ordinary contracts which can be enforced. The enforcement has its inherent difficulties. For example, if an order is passed directing a State to release a specific amount of water, it depends on the rainfall, storages, transit losses, etc. Besides, in a democratic setup, the State comes under public pressure and chooses to defer to pacify people which is unfortunate. Despite these difficulties and contrary to general perception, the awards do get implemented; maybe with some delay.
Q. How do you see Supreme Court’s Jurisdiction in these matters considering Article 262 of the Constitution of India?
A. Initially when we adopted the model of Government of India Act of 1935 the impression was that the tribunal was the final authority adjudicating these disputes. But now the concept has changed. The meaning of “Ouster clause” after 1962 in Anisminic case have changed because, despite ouster clause, the superior courts have assumed jurisdiction to go into the question whether the tribunal which has decided the matter has decided in accordance with law or not? Therefore, though the inter State tribunal is final for all purposes, it can’t oust the jurisdiction of Supreme Court and SC being the apex court has the power to decide whether the tribunal has acted in accordance with law or not. In the process, although the Supreme Court may not get into details of the facts. The Supreme court has clarified recently in Cauvery that it has adopted the approach which is neither narrow or broader but an intermediary. In Cauvery dispute, Supreme courts assumption of Jurisdiction did help in resolving the dispute as both the contesting States of Karnataka and Tamil Nadu have accepted the judgment. No Review Petition has been filed by them. Only State of Kerala has filed on some limited point. One must also look into the fact that people have more faith in Supreme Court although Tribunals are equally impartial and competent.
Q. Recently the government has proposed setting up of Permanent Tribunal and Dispute Resolution Committee(DRC) in Inter State Water Disputes (Amendment) Bill of 2017 tabled in parliament to ensure speedy hearing of the dispute, how effective do you think it will be?
A. The proposal of a permanent tribunal in the bill is not really a tribunal with compulsory jurisdiction. The central Government retains power to make a reference. Its effectiveness is uncertain as each water dispute has its own complexity and it requires independent consideration. Secondly, I personally feel that bill has missed important reforms. The smaller disputes can be adjudicated by a single judge. There is no provision for Arbitration and Expert Determination. The proposed Dispute resolution committee in the bill may not serve its object of settling disputes by negotiation as it is designed as a fact-finding body.
Q. Do you think this government’s aspirational project of Interlinking of water is viable?
A. The trans-basin diversion of water is not illegal. Interlinking of rivers pre-supposes a fact that there is a surplus water in a basin which can be transferred to a basin which is in deficit. In USA it was started long back. The present linking program involves linking Himalayan rivers to the peninsular rivers which are deficit rivers. The concept is fine but there are technical problems associated with it as the transfer of water from one basin to another have to cut through mountain and ridge, which have forests. The feasibility of transfer or interlinking depends on case to case basis.
Q. How do you see future of Water Laws and its education in India?
A. The Inter Water law is developing so as the international water law. The students are not taught this subject in law schools. I would recommend to the law schools to focus on International Water law as awareness on the subject among the law students would ultimately help in educating the public at large.
Interview Conducted by: Anubhav Kumar (Volunteer with Gati Foundation)