Three River Bills and Issue of Federalism

With water issues getting special attention since the beginning of the 17^th Lok Sabha, there have been many initiatives and policies for water resources and their management. The three bills concerned with river water and its management are in line with the current emphasis. The three bills brought to bring much-needed reorientation in the river dispute and dam safety regime have been under the scanner due to an important constitutional value-Federalism.

What are the three bills being referred to?

The three bills being referred are:

1. The River Water Disputes Bill, 2019
2. The Dam Safety Bill, 2019
3. The River Basin Management Bill

Of these, the first two bills have been passed by the Lok Sabha and the third bill is expected to be introduced in the upcoming parliament session.

What is the River Basin Management Bill?

• The bill proposes optimum development of inter-state rivers by facilitating inter-state coordination ensuing scientific planning of land and water resources.
• It takes basin/sub-basin as a unit and a unified perspective on water (including its all forms such as soil moisture, groundwater, surface water, etc) ensuring balanced development of command areas and catchment areas.
• It strives to work on the principles of participation, cooperation, equitable and sustainable use of water, conjunctive, and integrated management of water.
• It selects 13 river basins for which River Basin Authorities will be established by the central government.
• It proposes a two-tier system of the river basin authority (RBA)- A Governing Council and an Executive Board.
• The Governing Council shall consist of

1. Chief Ministers of the basin states (CM or administrator in case of Union Territory) that fall in the inter-state river basin area. Each Chief Minister shall be the chairperson of the council by rotation
2. The minister in-charge of Water resources from each basin state
3. Chairman of the executive board as a member secretary.

• The Executive Board shall consist of following members

1. Chairman of the Board nominated by the central government from amongst officials of the rank of Additional Secretary from Central Water Commission.
2. Administrative secretaries in-charge of departments of Water Resources, Agriculture, Drinking Water and Sanitation, Disaster management from state/UT
3. Experts in Environmental, water planning, power, Groundwater, etc.

• There is also a provision to set up an advisory council under the chairman of the Governing Council to assist it.
• The RBA will ensure to prepare a river basin master plan for each inter-state river basin. It shall consist of a detailed analysis of river basin characteristics.
• The executive board shall prepare the master plan and powers to approve the plan will lie with the governing council.
• Any recommendation made by an RBA in its exercise of its powers and functions under this act shall be binding upon the governments
• The Act also proposes a method of persuasion, conciliation, and mediation by the governing council in case of any dispute or difference arises between two or more governments interested regarding any recommendation, measure, benefits, etc. It sets a time limit of 12 months for the resolution.
• If the governing council of the concerned RBA is unable o dissolve the issue or any government disagrees with the resolution, it may refer it to be resolved under the Inter-state River Water Disputes Act, 1956.
• The Central Government may give necessary directions to the governments interested in the effective implementation of the provisions of this act.
• The bill declares that from the date of notification of this act, the River Boards Act, 1956 stands repealed.

What are the issues of the current framework?

• According to the National Commission for Review of Working of the Constitution (NCRWC), the River Boards Act which enabled the central government to create boards to advise on the integrated development of inter-state basins to prevent the conflicts is a dead letter. No river board has been created till now.
• The Interstate River Water Disputes Act (IRWDA) provisions don’t give states the power to directly go to the tribunals. The state has to request the center to form a tribunal.
• The experience with the tribunals has been dismal. Since 1956, nine interstate water disputes tribunals have been set up. Of those, five tribunals are active, the Ravi-Beas issue took 33 years, Cauvery has taken 29 years, and other tribunals took around a decade each.

• The National Water Resource Council was established in 1983 for equitable sharing of river waters between water surplus and deficient states. But the organization has remained a no-starter. All that it has done is to frame a National Water policy in 1987 which states that water becomes a national resource if only states give their consent.
• The multiplicity of tribunals increases bureaucratic work, time, cost, and possible duplication of work.
• There is no time limit for the publishing of reports. And the states can do nothing about it. They have to wait until the report is published.
• Even though the current legal framework bars judicial intervention by any court, over the years the cases have been admitted by the Supreme Court under articles 136 (Special leave), 32, and 21. Reports, awards invariably go to the Supreme Court for further litigation.
• The growing water-politics nexus is only going to increase and tribunal becomes a political turf useful for mass mobilization.

What has been the expert opinion over the years?

• The NCRWC recommended comprehensive central legislation, after consultation with states, to define the constitution and jurisdiction of river boards to regulate, develop and control all interstate rivers.
• The Sarkaria Commission had recommended that once a state makes an application under the Interstate River Water Disputes Act, the center must appoint a tribunal within a year. It also proposes a suo motu power to form a tribunal if it is satisfied that a dispute exists.

• According to Forum for Policy Dialogue on Water Conflicts in India, there is a serious need to revisit the acts as the performance under the act has been dismal and there is a possibility of further aggravation of disputes.
• There is also a demand to put the subject of water in the concurrent list. As of now, Water is a state subject (Entry 17) and interstate rivers, river valleys fall under the Union list (Entry 56).

Analysis of the three bills

The River Water Disputes Bill, 2019

• The amendment bill on river water disputes gives center power to form a tribunal on the states request or suo motu.
• It binds the center to set up a Dispute Resolution Committee to resolve amicably resolve the issue by negotiation within one year. If DRC cannot settle the dispute, the center must refer it to the interstate tribunal within three months.
• The tribunal will be appointed on the recommendation of a selection committee comprising the Prime minister, Chief Justice of India, and Ministers from Law and Justice, and Jal Shakti ministries.
• The bill tries to address demerits of the earlier legal mechanism. But even after the tribunal is established, the states would not have the right to approach DRC or tribunal directly.

The Dam Safety Bill, 2019

• The bill could take away the states’ autonomy over major irrigation dams in their territories since the center has proposed a new authority for dam safety.
• The new dispensation would give immense power to the center because the National Dam Safety Authority would decide issues of safety and all other issues pertinent.
• The Authority will be headed by an additional secretary in the Central Water Commission and states would be bound to follow the authority’s instructions and suffer penalties if need be.
• The states would have no effective means to appeal.
• Also, in case of loss of lives due to dam collapse or negligence, individuals will have no right to complain.

The River Basin Management Bill, 2019

• The basin management bill also gives more powers to central bureaucrats over interstate river basins. An additional secretary would be a subordinate employee of the center and is unlikely to take impartial decisions.
• Though the states’ Chief ministers of 13 river basin states will have powers to recommend, the authority remains with the bureaucratic body which will decide how to develop, conserve, and distribute the resources in the interstate river basin.
• Even though the center is implementing the recommendations of the National Commission for Integrated Water Resources Development (NCIWRD), it had recommended a wide-based democratic composition and functioning.
• Further, the three bills can potentially upset the balance of power between the center and states. The center in his bill set up indirectly assumes the role of an adjudicator of river disputes. It was never given that role by any constitutional-legal set up before.

Do the bills threaten federalism to such an extent?

• Though there is a widespread criticism over the bills, in certain areas it is definitely an improvement. It tries to repair the existing mechanism and tries to upgrade it.
• Under the original act, the tribunal decision must be published in the official gazette, only then it will have the force of the order of the supreme court which resulted in delays due to reporting delays. The bill removes this requirement.
• The center is supposed to maintain a data bank and information system at the national level for each basin. It will make the process factual, data-based negating any unscientific claims by the parties.
• Even if the tribunal award is binding, the bill does not bar parties from going to the supreme court. So, the fear of central-bureaucratic tyranny is unfounded. The process is only made more conciliatory by the addition of persuasion, conciliation in the legal process.

Way forward

• The three bills in the discussion are important pieces of legislation that could alter the existing mechanism. It is pertinent to look at them comprehensively to make complete sense of them.
• The water situation in the country is becoming increasingly grim. The Chennai and Himachal Pradesh water crises of the recent past make us understand about the future challenges.

• The river water is important for mainly agricultural states whose farmers depend on irrigation facilities.
• The overall result of the three bills is thought to be giving excessive powers to the center when there is a need for greater decentralization in water issues.
• One issue that has not been talked of is the third tier of government. The Municipalities and Panchayats must be involved in the management of water. As they are the direct users of the resource in question, they don’t find any voice in these high tables of negotiations.
• Though besides the river basin management bill, the other two bills are passed by the Lok Sabha, they must be extensively discussed by the Rajya Sabha, if possible, referred to the standing committee.
• The center is acting on past committee reports, but is acting on functional aspects of forming institutions and making laws. The substantive recommendations of wide-based consultation with the stakeholders are missing.
• It must be emphasized that any confrontation over water resource dragged for long will only aggravate the issue making it more and more political when the issue is more of a technical and scientific redistribution.
• The principle of cooperative federalism must be upheld keeping behind parochial mindsets and mobilization politics.
• A robust and transparent institutional framework is only efficient when there is a political will to make it successful.
• The issue of inter-state river water comes under article 262 of the constitution. The article gives parliament to provide for a method for dispute resolution and does not give any powers to the center to be adjudicators. This constitutional principle must be respected.

Conclusion

The river water dispute is a question that encompasses a wide range of issues-legal, administrative, constitutional, political, scientific. An issue of such magnitude requires an equally wide-ranged approach. The three bills are a step in the right direction but it is necessary that these bills are satisfactory to all stakeholders to be able to effectively tackle the issue. Otherwise, it will only add up to the existing web of less than satisfactory mechanisms.

Practice Question for Mains

What is the existing mechanism for the inter-state river dispute resolution? What are the threats to federalism due to the three new bills into consideration? (250 words)