Naveen Patnaik has made a fresh appeal to Prime Minister Modi yet again for constitution of a tribunal as the Mahanadi water dispute could not be solved by any bilateral method. The BJP administration headed by Modi has remained callous, much against the spirit of law.
River disputes in India are commonplace. The laws to resolve the issues do seldom yield results because the Centre holds the key. The judiciary has no jurisdiction over river dispute matters. Article 262 of the Constitution says all powers of adjudication are vested in the Central Government in matters of inter-State river water. The law says Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in such dispute as is referred to in clause (1). Pursuant to the power conferred by Article 262, Parliament has enacted the Inter-State Water Disputes Act, 1956. Any State in water dispute with another may request the Central Government to refer the dispute to a tribunal for adjudication. River water disputes between States have arisen only when constructions of major dams happen on an inter-State river. Internationally, India shares at least 54 rivers with Bangladesh, but the big dispute came up over the Ganga only after construction of the Farakka barrage.
As is obvious, the most peaceful way of sharing rivers is never to build large dams. Dispute-free water management is possible only by using the available water of rivers in more prudent, sustainable and environment-friendly way without building large dams and diversion structures or rivers’ interlinking. Although disputes and tribunals are big subjects relating to sharing surface waters, India’s ‘water lifeline’ today is groundwater. But strangely, the tribunals do not include groundwater while calculating and apportioning water use. Strangely, the legal and institutional architecture for water use has no place for the stakeholders including the displaced communities or any other victims.
Very recently, Union Minister of Water Resources Uma Bharti introduced an Inter-State River Water Disputes Amendment Bill, 2017 in Lok Sabha. She believes it is a “revolutionary step” towards resolution of Inter-State disputes. The Bill proposes a Single Standing Tribunal (with multiple benches) instead of the existing multiple tribunals, which shall consist of one Chairperson, one Vice-Chairperson and not more than six other Members. While the term of office of the Chairperson is five year or till he attains the age of 70, that of Vice-Chairperson and other Members shall be co-terminus with the adjudication of the dispute. The Bill also provides appointment of Assessors for technical support. The period for adjudication has been fixed at four and a half years. The tribunal’s decision shall be binding. The Bill also proposes a mechanism to resolve the dispute amicably by negotiations through a Dispute Resolution Committee to be established by the Central Government consisting of experts before such dispute is referred to the tribunal. It has provisions for a transparent data collection system at the national level for each river basin. For this, an agency to maintain a databank and information system is to be appointed by the Centre. Thus, the new Bill is likely to streamline the adjudication process and make the present legal and institutional architecture truly robust.
Inter-State river disputes are on the rise due to increased water demands. The Inter-State Water Dispute Act, 1956 suffers from many drawbacks. Under the Act, a separate tribunal has to be established for each dispute. Only three out of eight tribunals have given awards that have been accepted by the warring States while the tribunals involving Cauvery, Ravi and Beas rivers have existed for 26 and 30 years without any verdict. Unfortunately, there is no time limit for adjudication or any upper age limit for the Chairman or the Members. Inordinate delay occurs due to vacancies in functionaries’ posts and a ‘no deadline’ situation for publishing the report.
Despite all these shortcomings in a tribunal system, Odisha has severally placed its appeal with the Centre to have a tribunal in place as that is the law. No State can move the Supreme Court for absolutely perfect verdicts in case of lopsided or faulty rulings by a tribunal. The tribunal has to be exhausted anyway. The dispute between Odisha and Chhattisgarh over the Mahanadi has reached a boiling point after several Centre-brokered negotiations failed to break the deadlock. Chhattisgarh is also planning to interlink some Mahanadi tributaries for better irrigation and water storage during the drier months. If that situation occurs, Odisha will have badly depleted water in the Hirakud Dam. Chhattisgarh keeps deceiving the world saying its under-construction barrages will have a total capacity of 274 million cubic meter, which is much less than the amount of water the 60-year old Hirakud Dam lets flow away due to reduced holding capacity as terrible siltation has mounted over the years. Chhattisgarh further says the Hirakud Dam built to hold 5,518 MCM originally has lost nearly one-fifth of its capacity; so, Odisha need not worry about water being taken away by Chhattisgarh. The excess water would flow away over the dam anyway as waste. But the truth is the dam is desilted regularly as there is a simple mechanism in place like any other dam. Hence, the Chhattisgarh claim is all crap. That the Centre is partial to Chhattisgarh is a fact. All this because the BJP is helpless in Odisha as the ruling BJD is truly popular.
The Modi administration believes in making trouble for Odisha by maligning the State to woo people for votes. The BJP considers the regional BJD its enemy number one. The Centre does not pay any heed to Odisha’s demand for a cumulative impact study of all projects developed by Chhattisgarh on the flow of water to the Hirakud Dam rather than on individual ones. The horrendously partial BJP Government insists on a Central Water Commission finding on who is right and who wrong. The CWC is only a puppet in their hands too ready to condemn Odisha on all its demands. The BJD has now openly turned the Mahanadi dispute into a political issue to hit the BJP that aspires to form the next Government in Odisha, where the BJP has no substantial vote base or an acceptable face to ensure a win. The tribunal has to come in place as all other methods of amicable settlement have failed miserably. That is the law of the land which Modi is flouting merrily. In 2019, his party will pay heavily for this grave blunder. Odisha’s people have realised that Modi is not fair to their and is one for the BJP-ruled States only.
A tribunal is the only option left for the Centre. But Modi, the PM, does not seem to understand he is losing respect of the nation. He has been petitioned by all political luminaries of Odisha including some BJP top shots. But nothing much has happened. Dilip Ray and Bijay Mohapatra have openly condemned the stand of the local saffron leaders. For all this, Odisha has moved the apex court to pass orders for a tribunal in place. Even after this lawful move, if the Centre puts up false pleas, the court may hear the case on merit and pass orders. This view of the apex court has been made clear only two days ago to the greatest shock of the Modi Government’s legal warriors. Strange as it may appear, legal super brains like Arun Jaitley and Ravi Shankar Prasad et al have probably not warned the decision makers to be on guard lest the court should whip them hard.
As the Mahanadi issue keeps raging, a Congress candidate, Alpesh Thakore has alleged that PM Modi dislikes Gujarati food and is crazy to eat Taiwanese mushrooms only which cost Rs 80,000 a piece. Somebody also has spread the rumour that Modi has been eating five pieces of the imported mushroom a day ever since he became Gujarat CM. That's a whopping sum of public money going into one stomach. Such rumours need to be dismissed by the BJP soon to avoid national embarrassment. Modi has also gone low on making personal remarks against the gentleman former PM Manmohan Singh, a globally respected economist who had saved India from certain economic disasters in the early 1990s.
There is a little story on the BJP boss Amit Shah's son too. On December 12, a date fixed upon his own request, Jay Shah’s lawyers sought further time before the Ahmedabad civil court, which as per the High Court deadline, is to decide the matter of injunction on a media house called 'The Wire' within 30 days whether or not any response is filed for a party. No specific reason was given for requiring more time to respond to The Wire’s written contentions filed on December 4. The Wire opposed the delay, citing the law, the HC deadline and the fact that it was only on Shah’s own request that December 12 was given to start with. The civil court then directed Jay Shah’s lawyers to be present on December 13, which they have to obey or else face music.
It is becoming evident that the BJP is losing the trust of the masses for making tall promises and not being able to keep one. Dilip Ray and Bijay Mohapatra of Odisha can narrate stories better as they know more from Advani, Yashwant Sinha and Arun Shourie, who have tales to share at any given point in time.
(The writer is a core member of Transparency International, Odisha)