As the acrid tussle that is going on between Tamil Nadu and Karnataka, over sharing of interstate river water, is stooping down to physical violence by a few, it has raised all sorts of debates justifying either of sides. However, in most cases they are far from being well informed or based on logic. All sorts of information are being shared in social media that possess none of the signs of reliable information. More than often, they aim at stoking the emotional chord of the people to create acrimony amongst the people from both the states. Though on more than a few occasions I wanted to give a reply to them about this I was not sure about my knowledge about the whole problem myself. A basic search into the orders that came to be passed by the Water Disputes Tribunal and the Supreme Court of India where the Tribunal’s order has been challenged enlightened me a great deal. I began with the Supreme Court’s orders dated 05.09.2016 & 12.09.2016, which opened up the doors for present issue and traced myself back to the Tribunal’s order dated 05.02.2007. The sheer size of these orders and documents is mind-boggling. For giving an idea, the order of the tribunal itself is close to 1000 pages, while the depositions and other supporting documents filed by the states party to the dispute easily cross the mark of 50,000. I must confess that I haven’t even scratched the surface when I claim that I read these orders before writing the present post. I picked only those portions of the final order passed by the Tribunal that matters the most, which in itself ran into several hundred pages. I have attempted to give a summary of the dispute from its historical origin to the present day proceedings here for an easy read. I have excluded many happenings with the sole intention of making this succinct.
History
Agreements of 1892 & 1924
The entire gamut of arguments over the rights of these states over the Cauvery water hinges upon two agreements entered into between the states of Karnataka and Tamil Nadu or Mysore and the State of Madras, as they were known at that point in time. The first agreement was signed in the year 1892 (available here at Page 277) to regulate many major rivers and minor streams that are common to both the states. One of the important aspects of this agreement is that Government of Mysore must obtain the previous consent of Madras Government before constructing any “New Irrigation Reservoirs” or any “New Anicut” across the rivers and major and minor streams listed in the agreement itself. If Mysore Government wanted to build any such structures, consent for which must be taken before the construction actually begins, they must provide full information regarding the proposed work to Madras Government. This might seem to be an imbalanced bargain in favour of Madras Government. However, the catch is where the subsequent clause dictates that Madras Government shall not refuse such consent except for the protection of prescriptive rights that already stands acquired and actually exists. I found this to be a very vague way of defining the rights of the Madras Government under the agreement. Since there was no prior agreement or within 1892 agreement itself that defined any of those rights. It all came down to one’s own common sense and principles of fairness to regulate it. In pursuance to this agreement, Mysore sought the permission of Madras to construct Krishnarajasagar dam across Cauvery, over which disputes arose as to the terms under which the dam was to be constructed. An arbitrator was appointed to resolve the disputes whose decision again was appealed to the Secretary of State by Madras. After prolonged negotiations, a common ground was arrived at, which resulted in the 1924 agreement (Available here at Page 347). The major result of the agreement is that it contained the terms under which Mysore Government were to construct the Krishnarajasagar dam across the River Cauvery and to provide for the extension of irrigation in both the States utilising the flows in the River Cauvery. The agreement also contained a clause stating that at the 50 years from the date of execution of the agreement certain clauses can be reconsidered based on the experience gained and of an examination of the possibilities of further extension of irrigation within the territories of respective governments.
The real disputes arose when Karnataka unilaterally decided to build irrigation projects across the tributaries of Cauvery without the prior consent of Madras as envisaged under the agreements, which are:
- Kabini,
- Hemavathy,
- Harangi, and
- Suvamavathy
Karnataka continued with the projects though the Government of India and the Central Water Commission did not clear these projects and the Planning Commission has also not approved these projects for plan assistance, the Government of Karnataka proceeded with these projects in stages from their own funds under Non-Plan expenditure.
No agreeable formula was found even after prolonged negotiations, with the Central Government playing the arbiter. With no solution on the horizon, in 1970 Tamil Nadu sought the Central Government to refer the matter to a tribunal for final resolution, under Section 3 of the Inter-State Water Disputes Act of 1956.[1] It is to be noted that while all these happened in the foreground, Karnataka proceeded with the projects simultaneously. Even after a passage of a considerable amount of time, the Central Government failed to form a tribunal for the adjudication of the dispute. It was not until 04.05.1990[2] some positive movement was shown by Central Government, when Supreme Court in a Writ Petition filed by Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam[3] rapped the Union for not constituting a tribunal to resolve disputes. The Court directed the Central Government to fulfill its statutory obligation and notify in the official gazette the constitution of an appropriate tribunal for the adjudication of the water dispute, further directing that the same should be done within a period of one month. The Union Government, to comply with the order, constituted the Cauvery Water Disputes Tribunal through a notification dated 2nd June 1990.
Cauvery Water Disputes Tribunal
While the notification for the formation of a tribunal was only the beginning of a process that was more than a decade long. In the course of its existence, the tribunal was reconstituted a couple of times, once due to the resignation of a member and the other time due to the demise of a member. The process was so complicated and the documents involved were so voluminous that tribunal in its final decision itself notes that The total pages of depositions on behalf of different States and Union Territory of Pondicherry come to about 10,000 pages. So far, the documents and publication brought on record by the different party States in support of their respective claims ran into more than 50,000 pages. The sheer volume of paper work itself delayed the process considerably apart from the other extraneous factors like for one instance when the arguments in respect of several issues by different riparian States had virtually been concluded before the sad demise of Mr. Justice S.D. Agarwala. Because of the reconstitution of the Tribunal, the arguments in respect of those issues were again heard with Hon’ble Mr. Justice Sudhir Narain, as a new Member. After a decade and a half long process of depositions and other things, the arguments and replies on behalf of the States concluded on 21.04.2006. Thereafter, on 27.7.2006, the order was reserved. It is to be noted that the Tribunal passed certain interim orders for the sharing of water until the time the process of adjudication was concluded. Disputes arose over those orders as well between Tamil Nadu and Karnataka.
Interim Order
As an interim measure after the formation of the tribunal, Karnataka was directed to release 205 TMC of water into Mettur reservoir of Tamil Nadu in a water year (1st June to 31st May) with monthly and weekly stipulations. Karnataka government in defiance of the orders promulgated an ordinance and refused to release the water as directed. Since negotiations to implement the order fell through in spite efforts by Central Government, President using his powers under Article 143 of Constitution of India referred the matter to Supreme Court of India with the following questions
1) Whether the Ordinance and the provisions thereof are in accordance with the provisions of the Constitution;
2) (i) Whether the Order of the Tribunal constitutes a report and a decision within the meaning of Section 5(2) of the Act; and
(ii) Whether the Order of the Tribunal is required to be published by the Central Government in order to make it effective;
3) Whether the Water Disputes Tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute.
The Supreme Court gave its answer in the following terms[4]
- Question No.1 The Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 passed by the Governor of Karnataka on 25th July 1991 (now the Act) is beyond the legislative competence of the State and is, therefore, ultra vires the Constitution.
- Question No.2
(i) The order of the Tribunal dated June 25, 1991, constitutes report and decision within the meaning of Section 5 (2) of the Inter-State Water Disputes Act, 1956.
(ii) The said order is, therefore, required to be published by the Central Government in the Official Gazette under Section 6 of the Act in order to make it effective.
- Question No.3 A water disputes tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute when a reference for such relief is made by Central Government.
Final Order
Answering close to 50 questions to the disputes, the final decision was given by the tribunal and notified by the Central Government in the year 2007. The decision analysed the whole problem by going through its almost 150-year-old history and technical aspects threadbare to arrive at the final solution. The decision analyses separately the claim of each state including the claims of Kerala and Pondicherry, as riparian states. Shorn of other conclusions arrived at but are irrelevant to the present post, the decision of the tribunal in its effect finally precipitates to the following points
- Against the contention of Karnataka, the agreements of 1892 and 1924 were held to be valid. However, the agreement of 1924 provides for review of some of the clauses after the passage of 50 years i.e. 1974. Accordingly, the tribunal reviewed and re-examined various provisions of the agreement.
- The decision of the tribunal was to supersede both the agreements of 1892 and 1924.
- The total utilizable quantity of water of Cauvery was quantified at 740 TMC (Thousand Million Cubic feet).
- In case the yield of Cauvery basin is less in a distress year, the allocated shares shall be proportionately reduced among the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry.
- The release of water of Tamil Nadu by Karnataka was broken down to monthly intervals during a normal year and quantity of water to be released in each the specified months were provided in the decision.
The Arithmetics of Allocation
After taking into account all relevant factors like the area of land under irrigation, soil percolation rate and various other scientific factors the tribunal allocated the available water of 740 TMC in the following manner.
States
|
Total
|
||||
Kerala
|
Karnataka
|
Tamil Nadu
|
UT of Pondicherry
|
||
1. Area
|
1.93
|
18.85
|
24.71
|
0.43
|
45.92
|
2. Irrigation requirement
|
27.90
|
250.62
|
390.85
|
6.35
|
675.72
|
3. Domestic and Industrial water requirement projected for 2011
|
0.35
|
1.85
|
2.73
|
0.27
|
5.20
|
4. Water requirement for environmental protection
|
-
|
-
|
-
|
-
|
10.00
|
5. Inevitable escapages into sea
|
-
|
-
|
-
|
-
|
4.00
|
6. Share in balance water
|
1.51
|
17.64
|
25.71
|
0.22
|
45.08
|
Total
|
29.76
|
270.11
|
419.29
|
6.84
|
740.00
|
Say
|
30.00
|
270.00
|
419.00
|
7.00
|
726+14
=740
|
It is significant here to note that the specific provisions were made available to other aspects such as requirements of the industries, requirement for environmental protection apart from the irrigation requirement. The calculations provided may seem to be inequitable in pure terms. In the allocation, Tamil Nadu (419 TMC) seems to have more share than Karnataka (270 TMC). Out of the 419 TMC allocated as Tamil Nadu’s share of Cauvery water, 237 TMC is generated within Tamil Nadu in its basins. Hence, Karnataka is supposed to ensure the balance 182 TMC of water flow to Tamil Nadu from its dams.
Compliance with the Order
Even after the notification of the order the dust did not settle down. The acrimony between Karnataka and Tamil Nadu continues to hang in the air. Problem arose when Karnataka refused to release water as per the tribunal’s decision whenever there was a deficiency in the rainfall due to local political compulsions. The most important part of the tribunal’s decision is where the states are directed to share the deficiency due to reduced yield in a particular year (which it calls as ‘distress year’) in proportion to their allocated share. In other words, in case the rainfall is short of projections in a distress year, the allocated shares shall be proportionately reduced amongst the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry. Karnataka refused to comply with this principle on multiple occasions, which embittered the relationship between the states further. In fact, this is despite the fact that the tribunal specifically directed for the constitution of an inter-State forum to be called “Cauvery Management Board” shall be established for the purpose of securing compliance and implementation of the final decision and directions of the Cauvery Water Disputes Tribunal. The Board was envisaged be under the control of the Government of India, Ministry of Water Resources. It is in spite of these directions that Karnataka refused to implement the orders.
Another important aspect of the decision is that, though in terms of pure numbers the directions of the tribunal are eminently implementable; it contains various caveats that in long term must be complied with by the states to work out a permanent solution. Rather than a mere solution involving numbers to share the water, the Tribunal in its decision has tried to work out a long-term sustainable framework for the states. The solutions suggested ranges form change in the cropping pattern to encouraging the farmers to use better water management practices to deal with the deficiencies that could arise in the future. Tamil Nadu, if one looks at the history and its stand all throughout these proceedings has maintained its strong stand, while however, has not taken any tangible steps in the gamut of sustainable solutions suggested by the tribunal.
Before the Supreme Court
Unsurprisingly Tamil Nadu took the matter to the Supreme Court for Karnataka’s non-compliance with the decision of the tribunal, where it is pending as of now. Time to time the matter was taken up by the court but no order of any tangible consequence was passed until 05.09.2016 when Karnataka was directed to release 15,000 Cu. Secs. of water for ten days as an interim measure, which resulted in the carnage that we witnessed in Bangalore. It is rather weird if one notices the manner in which the quantity of 15,000 Cu. Secs. was directed to be released. Karnataka as a goodwill gesture assured flows at the Inter-State Border, at the rate of not less than 10000 cusecs per day (about 0.86 TMC), as measured by the gauge station of the Central Water Commission as from 7th September, 2016 to 12th September, 2016. Tamil Nadu on the contrary demanded a total of 20,000 Cu. Secs. of water per day for the sustenance of crops and to protect interest of the farmers. Without any reasoning to back Supreme Court, adopting a middle ground, directed to release 15,000 Cu. Secs.
The violence unleashed by the mobs, when the Karnataka Government decided to comply with the order and release water, is well known. Citing this as a reason Karnataka moved an application seeking a modification of the previous order. The court rapped them for citing such an absurd reason, however, reduced the quantity from 15,000 to 12,000 Cu. Secs. and extending the period till 20.09.2016.[5]
An Amicable Solution
If one looks at the entirety of facts it is plainly visible that the solution provided by the disputes tribunal is well grounded and is based on scientific evidence. The decision is a result of decades worth deliberation and provides for a pragmatic solution for the problems. Unless the party states comes together overcoming parochial political considerations no solution whatsoever can be found. The Supreme Court too must not interfere much in the decision of the tribunal, for it is not competent to adjudicate the highly technical aspects involved. Moreover, any interference on its part is only going to muddle the waters further. A cautious approach must be taken by the court before arriving at any decision in this regard.
Furthermore, legally speaking there arises questions as to the very maintainability of the case filed by the parties. This aspect has been discussed in this article published in The Wire. Even otherwise, Union of India has filed an application and affidavit for impleadment in the case citing that Section 11 of the Inter State River Water Disputes Act, 1956 reads
“Neither Supreme Court nor any other Court shall have or exercise the jurisdiction in respect of any water dispute which may be referred to the Tribunal under the Act.”
The matter is under consideration of the Court; however, no order has been passed in this regard. It would be pragmatic for the court to maintain a hands-off approach in the dispute for the best interests of both the parties.
[1] I am deliberately leaving out many happenings that went on simultaneously to keep this short. Most them related to some proceedings before the Supreme Court over the dispute or about the background negotiations that happened in between the states.
