Reference to a Tribunal, and How One Is Constituted

Section 5(2). "The Tribunal shall investigate the matters referred to it and forward to the Central Government 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: Provided that if the decision cannot be given for unavoidable reasons, within a period of three years, the Central Government may extend the period for a further period not exceeding two years."

Section 5(3). "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, the Central Government or the State Government may, 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 a further report within one year, and in such a case the decision of the Tribunal shall be deemed to be modified accordingly." The Central Government may extend that year.

Section 5(4). "If the members of the Tribunal differ in opinion on any point, the point shall be decided according to the opinion of the majority."

Section 5A, filling of vacancies. If a vacancy other than a temporary absence occurs in the office of the Chairman or any other member, it shall be filled by a person nominated by the Chief Justice of India in accordance with section 4(2), and the investigation may be continued from the stage at which the vacancy occurred.

Broken down

Section 4(1) has a condition before it has a clock. The obligation arises only when the Central Government "is of opinion that the water dispute cannot be settled by negotiations". That opinion is the gate, and it is the gate that has been criticised, because a Government that does not wish to constitute a Tribunal can hold the opinion that negotiation may yet succeed.

One year is the outer limit, not a waiting period. "Within a period not exceeding one year from the date of receipt of such request."

The bench is judicial and the Chief Justice chooses it. Three sitting Judges of the Supreme Court or of a High Court. The Central Government does not select them, which is what makes the Tribunal a judicial body rather than an administrative one.

Assessors advise; they do not decide. Section 4(3) puts them in "to advise the Tribunal", appointed by the Central Government in consultation with the Tribunal. In practice they are engineers and hydrologists, and they are the answer to the objection that judges cannot do hydrology.

Section 5(1) is wider than the complaint. The Central Government refers the dispute and any matter appearing to be connected with, or relevant to it, so a Tribunal is not confined to the four corners of the requesting State's grievance.

Section 5(1) is also subject to section 8. No reference may be made of a dispute that could be referred to arbitration under the River Boards Act, 1956. Since no River Board has ever been constituted, section 8 has never bitten, but it is there.

Section 5(3) is the reference back, and it is not an appeal. It is confined to explanation, or to guidance on a point not originally referred. Three months to ask, one year to answer, extendable. The further report modifies the decision by force of the sub-section.

And section 5A keeps the case alive when a judge goes. The investigation continues from where it stopped; it does not start again.

Worked example

Odisha requests a reference against Chhattisgarh about the Mahanadi on 19 November 2016.

Step one, the Central Government's opinion. It may attempt negotiation, and it did, through a negotiation committee.

Step two, the clock. Section 4(1) allows a year from receipt. If the Government has not formed the opinion that negotiation has failed, it will say the clock has not started, and that is exactly the dispute that arises.

Step three, what a State does. It moves the Supreme Court, not for the water dispute, which section 11 bars, but for a direction that the Central Government perform its statutory duty under section 4. That is a question about the discharge of a statutory function and it is not a water dispute.

Step four, constitution. The Mahanadi Water Disputes Tribunal was constituted in March 2018.

Step five, the timetable. Three years to report under section 5(2), extendable by two. Where the extension is exhausted the Act has no answer, and in practice further time has been given by amendment of the notification, which is one of the criticisms of the machinery.

Distinctions

What it does NOT mean

It does not mean the Tribunal is an arbitration. The members are judges nominated by the Chief Justice of India, not arbitrators chosen by the parties, and the decision binds by force of statute rather than by agreement.

It does not mean the one-year clock is enforceable in the ordinary sense. It is a statutory duty, and the remedy for its breach is a mandamus, not a deemed reference.

And section 5(3) is not a rehearing. A State which has lost cannot use it to argue the case again. It is confined to explanation and to guidance on a point not originally referred, and a Tribunal will say so.

Limits and criticism

The gate before the clock. Everything turns on the Central Government's opinion that negotiation cannot settle the dispute, and there is no time limit on forming it.

Three years plus two has not been enough. The Cauvery Tribunal, constituted in 1990, gave its final award in 2007. The Ravi and Beas Tribunal, constituted in 1986, has still not reported finally.

A separate tribunal for each dispute. Each is constituted, staffed and housed from scratch, and dissolved under section 12 when it has reported, so no institutional memory survives. The Inter-State River Water Disputes (Amendment) Bill, 2019, proposed a single standing tribunal with benches, and a dispute resolution committee to attempt settlement first. It lapsed.

Quick revision

Section 4(1): constitution within one year of the request, if the Central Government is of opinion that negotiation cannot settle it.

Section 4(2): a Chairman and two members, nominated by the Chief Justice of India, from sitting Judges of the Supreme Court or a High Court.

Section 4(3): assessors, appointed by the Central Government in consultation with the Tribunal, to advise.

Section 5(1): reference of the dispute and any connected or relevant matter, subject to section 8.

Section 5(2): report within three years, extendable by two.

Section 5(3): further reference for explanation or guidance, within three months, answered within one year.

Section 5(4): majority decides. Section 5A: a vacancy is filled by the Chief Justice of India and the investigation continues from where it stopped.

Every one of these periods was inserted by the 2002 amendment.

Test yourself

1. What must the Central Government be satisfied of before section 4(1) obliges it to act? That the water dispute cannot be settled by negotiations.

2. Who nominates the members of a Tribunal, and from where? The Chief Justice of India, from among sitting Judges of the Supreme Court or of a High Court.

3. How long has a Tribunal to report, and can that be extended? Three years under section 5(2), extendable by the Central Government by a further period not exceeding two years for unavoidable reasons.

4. A State thinks the award is wrong. Can it use section 5(3)? Not to reargue the case. Section 5(3) is confined to seeking explanation of something in the decision, or guidance on a point not originally referred, and must be invoked within three months.