CAUVERY RIVER WATER DISPUTE: PROBLEMS AND PERSPECTIVES

CAUVERY RIVER WATER DISPUTE: PROBLEMS AND PERSPECTIVES

Written by Avani Dalal

 

INTRODUCTION

While great civilizations have been built on riverbanks, great civilizations have also withered away due to paucity of water. Satisfying the cardinal human need and the nation’s key developmental operations, water is the most predominant natural resource and invaluable asset. Thus its management and development is of utmost importance. The paper will open with a discussion on the need for optimal utilization and exhaustive planning for water resources.[1]

As majority of India’s prime rivers (including their tributaries) are inter-state, there have been a lot of friction and discord amongst the States over the use, control, regulation, development and distribution of the waters of such rivers. Article 262, 263 and 131 of the Indian Constitution lays down a framework for resolving inter-state water disputes. The Inter-State Water Disputes Act, 1956 and the River Boards Act, 1956 are the other significant legislations which shall be expatiated upon in the paper in terms of negotiations, adjudication of dispute, advisory opinion and so on. The paper will also expound upon the Cauvery river water dispute- its background, claims of the States for share of its water, issues and the approach taken by the Apex Court towards the rights of the States in various inter-state water disputes. A further attempt will be to identify and examine the main point of criticism (issues) against the existing mechanism along with potential measures to improve the same.

 

HISTORICAL CONTEXT OF THE DISPUTE

The river Cauvery which flows to southern Karnataka and subsequently to Tamil Nadu, the two states of southern India, is 802 kilometers long, and with a basin area of 44, 000 sq. km in Tamil Nadu and 34, 000 sq. km in Karnataka. The river’s basin also covers the State of Kerala (28, 000 sq. km) and the Union Territory of Pondicherry (160 sq. km).[2]

The two states have been engaged in a long-standing conflict with each other with regards to the sharing of the waters of river Cauvery. The root of the dissention lies in the two interstate river water agreements (in 1892 and 1924) signed between the former State of Mysore and the Presidency of Madras.

Both the agreements are of permanent nature, but while the 1892[3] agreement is of a general character, the agreement signed in 1924[4] relates to only to the waters of Cauvery. The former agreement covers a number of interstate rivers[5]. The latter agreement, on the other hand, is of a more specific character and only pertains to extension and development of irrigation in Cauvery river basin in both the states.

The main objective behind the framing and enactment of both the agreement by the Madras and the Mysore Government was to establish the terms and conditions under which the Mysore Government could be permitted to build Krishnarajasagar across the river.  The agreement essentially ensured that by building a new dam upstream, no injury is caused to existing irrigation activities tin he downstream areas. Injury here refers to any significant decrease in the supply of water to the irrigation system downstream. The agreement also required the consent of the state governments of the downstream areas before the planning and implementation of any works across the river of in the river basin of Cauvery. The 1924 agreement, after considering the distinct nature of the river basin and already established irrigation systems, allowed equitable consumption of the waters of river Cauvery and for collateral irrigation development in both the states.[6]

Under the agreement the Mysore Government was allowed to construct Krishnarajasagar dam having a capacity of 44, 827 M.cft[7] and and ayacut[8] of 1, 25, 000 acres. It was also permitted to build other reservoirs with a maximum capacity of 45, 000 M. cft and an ayacut of 1, 10, 000 acres. Compared to this, Madras was allowed to build Mettur dam with an effective capacity of 93, 500 M.cft and ayacut of 3, 01, 000 acres. Mysore government was also allowed to build reservoirs across the tributaries of Cauvery. It also permitted both the states to extend their irrigation system, provided the same was done without any increase in the quantity of water used.[9]

The primary reason of conflict between the two states is the violation of the above-mentioned two agreements by the state of Karnataka. The State Government constructed four dams across the tributaries of Cauvery using their owned funds from Non-plan. The Government of India, Central Water Commission and the Planning Commission did not clear these projects. In spite of the fact, Karnataka Government proceeded with the projects. The four projects were that of Harangi, Kabini, Hemavathi and Suvarnavathy.[10]

While Karnataka claims that the interstate agreements are profoundly biased in favour of the Madras Presidency, and it does not get a share of the waters which is rightfully theirs, the of Tamil Nadu contends that the farmers in the State have already developed extensive farm lands and depend a greatly depend on the existing use and supply arrangement of Cauvery waters. Whereas on one hand Karnataka requires an equitable sharing of water, on the other hand Tamil Nadu claims that any change in the existing scheme of water consumption between the two states will be detrimental to the livelihood of its innumerable farmers.[11]

LEGAL CONTEXT

Water in India, is a state subject.[12] The only exception to the same is the inter-state rivers, where the central government has the power to interfere and legislate.[13] The Parliament enacted the Inter-State Water Dispute Act, 1956, under Article 262 of the Constitution. The Act lays down a mechanism for resolving river water disputes amongst states in India. The Cauvery Water Tribunal was also constituted under the provisions of the above act to resolve the dispute regarding sharing of waters of Cauvery. The Act bars the jurisdiction of the Supreme Court after a tribunal has been constituted for adjudication.[14] Even in the Cauvery Case, the contending state parties had the opportunity to file a review petition before the tribunal. Instead, the state parties chose to file a special leave petition before the Supreme Court. Since the Act restricts intervention by the Supreme Court, it should have re-directed the petitions to the Cauvery Tribunal. However the court admitted the same.[15]

Another constitutional mechanism for resolution of inter-state river water dispute is River Boards Act, 1956. However, owing to opposition from the states, it has never been used in India for adjudication of such disputes. The Act is as good as absent as no board has been established as of yet.[16]Both the legislations have failed to effectively resolve the dispute; water can be transferred to the concurrent list so that the central government can make purposeful interventions.[17]

A number of doctrines and rules have been developed over time to resolve water disputes between states. In the case of Cauvery, while Karnataka relies on Harmon doctrine[18], Tamil Nadu seeks to rely on doctrine of prior appropriation in order to protect its rights.[19]According to the former, i.e., Harmon doctrine, also called as the ‘upholding absolute territorial integrity’, the riparian state has absolute powers to regulate and control over the waters.[20]

Both these positions seem to be incorrect. Under both the International as well as national laws, no particular state has an absolute authority over river waters. They merely hold right to use and not ownership rights over waters. Moreover all states have equal rights. Rights of the other states are not subordinated to the rights of riparian states. The available waters have to be shared between the upper and the lower riparian states, as neither have a primacy over the other. However equal rights do not necessarily imply equal shares of water. The same is the subject matter of agreement.[21]

 

POST INDEPENDENCE SCENARIO

After the independence of India in 1947, the equations between the two states under went a drastic State. Whereas the Presidency of Madras was reorganized as the State of Tamil Nadu, the State of Karnataka was carved out of the princely State of Mysore. Large areas of former Hyderabad and Bombay were joined with Karnataka. Former Malabar areas, which were a part of Madras, joined with the State of Kerala.[22]

Pondicherry became a Union Territory in 1954. A further reorganization of the Indian states in 1956 led to the inclusion of Coorg (i.e. birth place of Cauvery) in Karnataka. [23]Redrawing the state boundaries further altered the state relations as Kerala and Pondicherry also joined the conflict, which gave rise to additional claims. Kerala’s claim was based on the fact that Kabini, which was a major tributary of Cauvery, originated in Kerala.[24] Pondicherry, which was located at the tail of the river, claimed a right over the waters of river for drinking and agriculture, stating that it had been using the same since time immemorial.[25] These additional claims did complicate the dispute further, however Karnataka and Tamil Nadu remained the prime state parties of the conflict.

Years of negotiations between the two States were without any result. In the 1970s, a Cauvery Fact Finding Committee was set up to enquire into the yield and use of water in the river basin and prepare a report on the same. The final report was submitted in 1973. Various bi-lateral inter-state discussions were based on this report of CFFC. Further in 1974 a draft agreement (which made a provision for Cauvery Valley Authority)was drawn up. However the same was not sanctioned by the two states. In 1976, after a progression of exchanges between the two states and the Central government (which was led by Jagjeevan Ram, the then Irrigation Minister), a last draft was readied in view of discoveries of the CFFC. All the concerned states ratified the draft, and subsequently the Union Government made a declaration in the Parliament acknowledging the same.[26]

At the point when Karnataka started development of the Harangi dam, Tamil Nadu opposed it. Tamil Nadu approached the court for constituting a Tribunal under the Interstate River Water Disputes Act, 1956. It additionally requested the prompt stoppage of development work at the dam site.[27]

Sunsequently, in 1980, Tamil Nadu withdrew the case and the two states began re-negotiating. However both the states had reached an impasse. Eventually, a farmer’s association in Tamil Nadu approached the Apex Court in 1986, requesting to constitute a tribunal. While this petition was pending before the Courts, the two states proceeded with their bi-lateral discussions and negotiations.[28]

This went on till 1990. Finally in 1990, the Government of India constituted Cauvery Water Dispute Tribunal to adjudicate the dispute. A 3-member tribunal was set up under the chairmanship of Chittatosh Mukherjee, J. The final decision of the tribunal came about in 2007, after almost 16 years of hearing arguments. However, the dispute seems to be far from over with both the parties have filed petitions requesting review, clarification and re-negotiations of the Tribunal’s order.[29] Moreover there appears to be no co-operation between the two State Governments with respect to the sharing of waters and handling the situation of shortfall collectively. [30]

 

INTERIM ORDER

After the constitution of the tribunal, state of Tamil Nadu filed a Civil Misc. Petition praying for a mandatory injunction to be issues against Karnataka and restricting them from using the waters of Cauvery river then what was used by them till 1972, restricting them from undertaking any new project and further directing them to immediately release the water of the river.[31] The petition was dismissed by the tribunal on the grounds of being outside the scope of its jurisdiction.[32] However, at the plea of Tamil Nadu, the Supreme Court intervened, and compelled the tribunal to review its stand.[33]

In accordance with the Supreme Court’s direction, the tribunal, after hearing the party states, passed an interim order in June 1991, directing Karnataka to release water from its reservoirs to Mettur reservoir in Tamil Nadu, in accordance with a set down pattern. It was further required not to increase its area under irrigation using the waters from river Cauvery.[34]

Opposing the Tribunal’s interim-order, Karnataka Governor promulgated an ordinance, negating the effects of the order, thereby protecting the interests of the State. This further added to the conflict between the two States.[35]

Finally, in December 1991, the President of India referred the Cauvery dispute to the Apex Court for its opinion under article 143 of the Indian Constitution. Three questions were referred for the opinion of a 5-judge bench of the Supreme Court- Whether the ordinance passed by the Karnataka State Government confirms with the Indian Constitution; Whether the tribunal’s order constitutes a decision and requires to be published by the Union for the purpose of making it effective; and Whether a tribunal constituted under the Inter-state water dispute Act has the jurisdiction to grant interim relief to any parties?[36]

Rejecting the ordinance promulgated by the state government of Karnataka, Supreme Court gave its opinion favoring Tamil Nadu, and confirming the interim order of the tribunal.

 

POST-INTERIM ORDER

Thousands of Tamil families needed to escape from Bangalore in trepidation of being assaulted and lynched by Kannada activists at the command of the state government. The savagery and show down, for the most part focused in the Tamil populated parts of Bangalore, went on for almost a month and most schools and other organizations in Bangalore stayed shut amid this period.[37]

In 1995, Karnataka was unable to satisfy the directives of the interim order owing to inadequate rainfalls. Tamil Nadu filed an application with the Apex Court praying for immediate release of waters to the State. However the Court dismissed the same, and the state government was asked to approach the tribunal. The tribunal ruled in favour of Tamil Nadu, directing Karnataka to release certain quantities of waters. Karnataka appealed that the same was not possible in the existing circumstances (with the state having a bad monsoon). Tamil Nadu approached the Supreme Court again, requiring Karnataka to comply with the tribunal’s order. At this stage, the court suggested the then Prime Minister, i.e., Narasimha Rao to intervene and find a political resolution of the dispute. The Prime Minister convened a meeting with the chief ministers of the State. The quantity of water to be released by Karnataka was reduced from 11TMC to 6 TMC. The decision was complied with by the State.[38]

Subsequently, in 1997, the government constituted two new bodies- Cauvery River Authority and Cauvery Monitoring Committee. The former consisted of the Prime minister and the chief Ministers of all the four concerned States. The latter, on the other hand consisted of engineers, technocrats and other experts who were responsible to enquire into the ground realities and prepare a report to that effect. Cauvery River Authority was responsible for implementing the interim order of the tribunal and had the power to acquire control over the dams in cases of failure.[39]

However the interim order of the tribunal imprecise and unclear with respect to definite formula for sharing of waters in cases of inadequate monsoons in the concerned states. A similar situation as that of 1995-96 arose in 2002.

 

FINAL ORDER

Finally, in 2007, the tribunal decided the dispute, after hearing argument for almost 16 years. According to the tribunal’s decision, Tamil Nadu was entitled to 419 billion cubic ft, Karnataka 270 billion cubic ft, Kerala 30 billion cubic ft and Pondicherry 7 billion cubic ft. Further Karnataka was directed to release 192 billion cubic ft of water to Tamil Nadu on an annual basis. The order also made a provision to set aside certain quantities of water for environment conservation.[40]

However, even with the final order of the tribunal, the dispute was not put at rest, with both the states filing review petitions and SLPs with the Apex Court. In 2013, the GOI, complying with the direction of the Supreme Court, constituted a temporary supervisory committee for implementing the final order of the tribunal.[41]

 

CONCLUSION (LOOPHOLES AND SUGGESTIONS)

After the final order of tribunal in 2007, eventually all the state parties approached the Supreme court with special leave petitions under Article 136. In ordinary course the court should have redirected the petitions to the tribunal, as the same had been by-passed by the states. However the court accepted the petitions thereby bringing the dispute back to its original point. Although the petitions were filed three years back, no solution has been arrived at so far.

A bare reading of the Cauvery dispute makes it apparent that although the States have in place resolution mechanism for inter-state river water dispute, the same is limited and ineffective. Absence of an authority for the enforcement of the tribunal’s order is a major lacuna in the existing mechanism. The tribunal has not been vested with the power of contempt for failure to obey its orders, thus it does not have the potential to enforce its own award. Although the Union can direct a defaulting state by invoking Article 356, the same seems to be a drastic measure. To resolve this issue, the Sakaria Commission has suggested that the award of the tribunal must have the same effect as that of a Supreme Court decree.

Moreover Article 262 of the Constitution appears to be inadequate. It imposes a duty and not a directive to the Parliament to frame a law for inter-state river water disputes. It took five long years for Inter-State Water Dispute Act to be passed in 1956. The provision also fails in the sense that it fails to provide permanent machinery for resolving water dispute and conferred the discretion to the Parliament for the same. This has caused undue delays in the constitution of the tribunals and granting of awards. Further, a dispute can be referred to a tribunal, only where the Central Government is of the opinion that the dispute cannot be resolved through negotiations between the State parties. Thus there is a need to constitute a permanent tribunal instead of setting up one each time.

Adding water dispute to the exclusive jurisdiction (in addition to original jurisdiction under Art 131) of the Supreme Court may help the resolution mechanism. As it is majority of the state parties in river water disputes approach the Apex Court for review of the tribunal’s order or enforcement of its rights under the constitution. Eventually, two institutions are involved in taking the decision..

There is also an urgent need to repeal the existing Inter-State Water Dispute Act, 1956 and bring instead, an all- inclusive law

 

 

 

[1]P.M. Bakshi, “A Background Paper on Article 262 and Inter-State Dispute relating to Water”; AVIALABLE AT: http://lawmin.nic.in/ncrwc/finalreport/v2b3-6.htm.

[2] Integrated Hydrological Data Book (March 2012), Central Water Commission, New Delhi; p. 13; AVAILABLE AT: http://www.indiawaterportal.org/sites/indiawaterportal.org/files/integrated-hydrological-data-non-classified-river-basins-cwc-mowr-2012.pdf.

[3] Agreement dated February 18, 1892 between the Government of Madras and Mysore regarding New Irrigation Works; AVAILABLE AT: http://india-wris.nrsc.gov.in/wrpinfo/images/8/8e/91.pdf.

[4]Agreement dated February 18, 1924 between the Mysore and Madras Governments in Regard to the Construction of a Dam and Reservoir at Krishnarajasagar; AVAILABLE AT: http://wrmin.nic.in/forms/list.aspx?lid=378.

[5] The 1892 agreement specifically relates to the primary rivers enumerated in Schedule ‘A’ and the small streams mentioned in ‘Schedule B’ to the agreement. See Supra Note (4).

[6] The Report of Cauvery Water Dispute (2007); p.  6; AVAILABLE AT: http://wrmin.nic.in/writereaddata/Inter-StateWaterDisputes/Volume-I1920752696.pdf.

[7] Abbreviation for I billion cubic feet.

[8] It refers to an area served by an irrigation project, i.e., dams, canals etc.

[9] Ibid. p. 7.

[10] Ibid. p. 8

[11] S. Janakrajan & K.J.Joy, “Inter-state Water Disputes Among Riparian States: The Case Study OF Cauvery River From Peninsular India” (January 2011), PILADAT; AVAILABLE AT: http://www.pildat.org/publications/publication/WaterR/CaseStudyInterStateWaterDisputesAmongtheRiparianStates.pdf.

[12] Entry 17 in State List, Schedule VII; Constitution of India.

[13] Entry 56 in Union List, Schedule VII; Constitution of India.

 Section 12; Inter-State Water Dispute Act, 1956.

[15]Supra Note (5).

[16]“Should Water be moved to Concurrent List”, The Hindu, June 23, 2011; AVAILABLE AT: http://www.thehindu.com/opinion/lead/should-water-be-moved-to-concurrent-list/article2113384.ece.

[17]Ibid.

[18]Supra Note (5); p. 103.

[19]Supra Note (5); p. 57.

[20] Binayak Ray, “Water: The Looming Crisis in India”; (2010) Lexington Books; p. 52.

[21]Supra Note (10); p. 13.

[22] R. Murlidharan, “Inter-State River Water Disputes in South India”; AVAILABLE AT: http://www.gnlu.ac.in/ccal/Inter-State%20Water%20Dispute.pdf.; P. 22 & 23.

[23]Ibid.

[24]Supra Note (5); p. 52.

[25] Supra Note (5); p. 61.

[26]Supra Note (5); p. 14 & 15.

[27]Letter No.17527/K.2/82-110 dated 6th Jul, 1986 written by the Government of Tamil Nadu; See Supra Note (5); p. 2, 3 & 4.

[28]“Cauvery issue- Timeline”, The Hindu, July 13, 2014; AVAILABLE AT: http://www.thehindu.com/news/resources/cauvery-issue-timeline/article4714418.ece.

[29]Cauvery Water Disputes”, Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India; AVAILABLE AT: http://wrmin.nic.in/forms/list.aspx?lid=378.

[30]“Centre Asks Tamil Nadu and Karnataka to Cooperate on Sharing Cauvery Water”, NDTV, September 28, 2015; AVAILABLE  AT: http://www.ndtv.com/india-news/centre-asks-tamil-nadu-and-karnataka-to-cooperate-on-sharing-cauvery-water-1223928.

[31] Civil Miscellaneous Petition (No.4 of 1990), Supra Note (5); p. 62.

[32] The Central Government had not made any reference to the tribunal with respect to adjudicating the interim reliefs claimed by Tamil Nadu in its petition. Thus the Tribunal held the petitions to be not maintainable.

[33] The State of Tamil Nadu filed a civil appeal in the Apex court, which was allowed, setting aside the order of the Tribunal dismissing the petitions.

[34]Supra Note (5); p. 72.

[35]Supra Note (5); p. 73.

[36] The Report of Cauvery Water Dispute (2007); p.  6; AVAILABLE AT: http://wrmin.nic.in/writereaddata/Inter-StateWaterDisputes/Volume-I1920752696.pdf.

[37]Sanjoy Hazarika,“Tamils are Target of Riots in Southern India”,The New York Times, Jan 5, 1992; AVAILABLE AT: http://www.nytimes.com/1992/01/05/world/tamils-are-target-of-riots-in-southern-india.html?src=pm.

[38]“Cauvery issue- Timeline”, The Hindu, July 13, 2014; AVAILABLE AT: http://www.thehindu.com/news/resources/cauvery-issue-timeline/article4714418.ece.

[39]Neerja Gurnani, “Inter-State River Water Dispute”, Feb 4, 2015; ISSN: 2349-9796

[40]Tamil Nadu wins the Cauvery battle”, Economic Times, Feb 5 2007; AVAILABLE AT: http://articles.economictimes.indiatimes.com/2007-02-05/news/28453533_1_cauvery-water-disputes-tribunal-tamil-nadu-justice-n-p-singh.

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