LEGAL POLICY ANALYSIS ON CAUVERY WATER DISPUTE

Authored By:

Amit Sikhwal (Research Intern)


INTRODUCTION

Indians are traditional worshippers of rivers. Many rivers in India are named after Hindu goddesses. People bathe in these rivers to purify their souls. The “so-called” worshippers have today turned into villains destroying the sanctity of most of the rivers by polluting and overexploiting them. They are also not using this divine resource judiciously and have turned it into a massive dump yard for industrial effluents and domestic sewage. Recently, holy men refused to bathe in the river Ganges due to the over pollution. The condition of other rivers in the country is no different.

In this legal policy analysis, an attempt has been made to discuss the status of river Cauvery, which continues to receive wide media publicity, due to conflicting and contending claims made by the people of two neighbouring states - Karnataka and Tamilnadu - for a share of its waters.

The 770 kilometres long Cauvery river originates in the Brahmagiri hills of the Western Ghats near Coorg. The total basin area of the river is 8.8 million hectares of land in Tamilnadu and Karnataka sharing 56 and 41 per cent of the area respectively, while the remaining is in Kerala. More than 28 million people depend on the Cauvery River. The actual yield of water from the river is 780 tmc (thousand million cubic feet) per year but the demand from the river is more than 900 tmc per year from Karnataka, Tamilnadu and Kerala. According to the Central Water Commission (CWC) report, water utilization level in the Cauvery basin is the highest among all rivers in the country. It is one of the most exploited rivers in the country: nearly 95 percent of water abstracted is for agriculture, domestic use and industry. How long will the overexploited river be able to withstand this stress? Will there ever be an agreement over the long-standing Cauvery river dispute?


HISTORY

"It has not been possible to succeed in a settlement satisfactory to both parties. Each party began claims which, on examination, were found inadmissible in whole or partially. The claims of the state Tamil Nadu, if allowed, would probably have resulted in making the Karnataka Project impossible: those of Karnataka, in seriously impairing the interests of Tamil Nadu. Throughout the proceedings, there has been a regrettable lack of the spirit of compromise. The resolution we've received recognises the paramount importance of existing Tamil Nadu interests, has for its primary object the safeguarding of those interests and does, we believe, safeguard them effectually. At an equivalent time, it gives to Karnataka the chance of utilising for its own benefit their justifiable share of the excess waters of the Cauvery."

The solution to the burning Cauvery issue has been arrived at? No, this is not a solution offered by the Tribunal to Karnataka and Tamil Nadu warring for Cauvery's waters. It is, in fact, a paragraph - just that Mysore has been replaced with Karnataka and Madras with Tamil Nadu to drive home the purpose - from the 1914 Award giving decisions on various issues.

It is almost a way of reminder for several citizens, especially the elders, across the 2 states. Time and again, the water war between Karnataka and Tamil Nadu erupts again and again yet, quite a 100 years later, no solution has been received.

The dispute had started in 1910. The Mysore government had proposed a 41.5-tmc (thousand million cubic feet) capacity reservoir at Kannambadi, a project which was objected to by Madras, which, in turn, had its own 80-tmc storage Cauvery Mettur project.

When the then Government of India's intervention was sought, Sir HD Griffin, the arbitrator, and M Nethersole, the officer of irrigation in India, who was the assessor, entered the proceedings in July 1913 and gave the Award in May 1914.

A background paper about "Article 262 and interstate disputes concerning water" as documented by the Union ministry of law and justice, mentions that Mysore was permitted to travel in for a reservoir with lesser capacity (just 11 tmc). It purportedly accepted the condition but the inspiration etc. for the dam was being built keeping in mind the first design. For Bangalore, it had been yet one more case of reminder, a throwback to 1991 when far worse than current violence had rocked the town and therefore the state, over an equivalent issue. "Monsoon failure invariably heightens the conflict between the main riparian states of Tamil Nadu and Karnataka. In the past several distress years, anxiety and stress between both states have resulted in violence, the worst sort of which was witnessed in December 1991, when thousands of Tamil population and their properties were the targets of attack in Karnataka," write water activists KJ Joy and S Janakarajan in their 2011 study "Inter-State Water Dispute Among the Riparian States: The case of Cauvery River from Peninsular India".Circa 2016. The Supreme Court directed Karnataka to release 15,000 cusecs of water a day for 10 days; it's resulted in an agitation by farmers and violence towards Tamilians in Bangalore and other places.Karnataka wants a rejig of the British-era agreement and needs to triple its share while Tamil Nadu maintains it needs more water to sustain extensive farming. Two days of riots, arson, curfew et al, later, the states are returning to normal. A solution is feasible as long as the 2 states, political leaders and, of course, the people realise they are doing not have ownership rights overflowing water but just have user rights, that too equality of rights.


THE DISPUTE

The Cauvery river dispute is a long-standing dispute between the Tamils and Kannadigas from the 19th century onwards. Whenever the monsoon fails, tension runs high in both the states. Agitations in the form of riots, bandh, hartals and rallies take place. In the previous year, even local cable television operators from Karnataka and Tamilnadu joined in the agitations by banning Tamil channels and Kannada channels in Karnataka and Tamilnadu respectively. Film personalities from both Tamilnadu and Karnataka organized agitations to show their solidarity with the people. Agitations organized at Neyveli and Chennai become a platform for film personalities to express their egoistic feelings and their loyalty to their respective political parties. The Cauvery dispute has become an emotional issue for politicians to exploit and settle political scores with their opponents. The outcome of these agitations cast a shadow on the real issues pertaining to the dispute.

The main problem is the conflict of interests between

· Karnataka, an upper riparian State and a late starter in irrigation development projects, which has been making rapid progress and has the advantage of being an upper riparian state with greater control over the river water.

· Tamilnadu, a lower riparian state with a long history of established agriculture based on Cauvery water, which is now in a state of insecurity due to diminishing flow in the Cauvery river.

· Kerala, an upper riparian state, with modest demands on the Cauvery river.

Pondicherry, a lower riparian territory, with low demands on the Cauvery river. From 1970, talks on the Cauvery dispute went on intermittently over but produced no results. The Government of India has made repeated attempts to solve the Cauvery issue, but the dispute remains unresolved. Lack of planning and unsustainable land use has led to the agricultural sector consuming a lion’s share of the water. Hence, most of the blame for providing a solution for the Cauvery dispute must be borne by that sector.


THE VERDICT OF SUPREME COURT The Supreme Court’s order, instruct Karnataka to release 15,000 cusecs of water of the Cauvery to Tamil Nadu for subsequent 10 days, has resulted within the resurfacing of a dispute that is more than a century old. Over time, the number of demands, stakeholders and complexities surrounding the Cauvery dispute has increased, and the institutional responses have been far from adequate. In fact, the shortcomings of the adjudication mechanism also because the outcome have resulted within the issue being locked in within a sub-optimal situation of seemingly irreconcilable conflict. The central government found out the Cauvery Water Dispute Tribunal in 1990 — 20 years after being approached by Tamil Nadu under the Inter-State River Water Disputes Act, 1956. The award of the Tribunal finally came in 2007, but was challenged before the Supreme Court through Special Leave Petitions filed by Tamil Nadu, Karnataka and Kerala. Cauvery water row explained: Why Tamil Nadu, Karnataka fight over river usage? While the ultimate adjudication on the matter is pending, the present dispute surfaced over Karnataka’s release of water during June-August, 2016. According to Tamil Nadu, out of a total due of 94 thousand million cubic feet (TMC), Karnataka released 33 TMC — leading to a deficit of 61 TMC. In an urgent plea before the Supreme Court, Tamil Nadu claimed that without the water, the ‘samba’ crops within the state would be damaged. In response, Karnataka argued that the supervisory committee is the appropriate forum for the resolution of this conflict. As a gesture of goodwill, Karnataka offered to release 10,000 cusecs of water (0.86 TMC) per day. Tamil Nadu, however, demanded 20,000 cusecs. In an effort at reconciliation, through an interim order, the Supreme Court directed Karnataka to release 15,000 cusecs per day for subsequent 10 days, while the supervisory committee examines the issue and passes directions within four days. The next date of hearing is September 16. The strong public reaction to the present order of the Supreme Court is a sign not only of the deeply political and entrenched nature of the conflict, but also fundamental problems in the process and outcome of the dispute-resolution mechanism. A significant factor contributing towards the elusive nature of reconciliation in such disputes is a flawed understanding of what constitutes a ‘river’, and how it should be governed. Protests in Karnataka against Supreme Court direction to release Cauvery water It is reductionist and unhelpful in viewing a river merely in terms of the cumecs of water without taking under consideration the opposite elements and functions of the river — including groundwater recharge, water flow, quality and biodiversity. Unfortunately, the discourse around inter-state water disputes still be framed within the limited terms of water availability in what's viewed as a zero-sum game — that is, water allocated to one state is the loss of another, and the water that reaches the sea is a waste. The decision-making is characterised by unplanned bargaining at the interim stages and static and incomplete information, instead of a sound understanding of human and ecological needs within the basin. The limited understanding of ‘water appropriation’ further fails to reflect the nuanced understanding of environmental flows and variability due to climate factors. The unit of designing and use of a river system should be the whole basin, instead of the political boundaries of states, since the character and use of the river and the land in upstream states will necessarily affect the downstream states. This approach is neither new nor contested. In 1999, the National Commission for Integrated Water Resources Development had suggested basin Organisations constituting concerned state governments, local governments and water users as a forum for mutual discussions and agreement — a recommendation that was supported by the executive Reforms Commission. This is recognised even within the National Water Policy, 2012 and therefore the recently circulated draft of the National Water Framework Bill. Constitutionally, the central government has the legislative competence over inter-state rivers to facilitate this. However, this approach has not reflected in application in highly contested inter-state river disputes just like the Cauvery. The Cauvery dispute is further burdened with a lack of clarity. The Cauvery Award allocates the 740 TMC — which the Tribunal considers to be the utilisable quantum of water of the Cauvery on the basis of 50% dependability between the riparian states. The allocated shares are to be proportionately reduced in a distress year. However, it neither defines nor provides guidelines on what counts as a distress year and the way the water should be allocated, resulting in expensive, time-consuming litigation and ad hoc, unscientific outcomes. It is unlikely that a river dispute are often solved within the limited terms of allocation of cumecs of water. There should be a conscious and concerted move to reframe the discourse. There is a recognised need for an integrated approach, taking under consideration demand management, efficient utilisation and optimisation of water resources, and scientific planning. Under the present system, where water disputes are viewed from a narrow lens of political mileage, such discussions are frequently overlooked. Better decision-making on river basin management within a well-information and participatory framework can go a long way in diffusing the nature and intensity of inter-state conflicts on water.


SOLUTION, NOT POLITICAL, BUT STRICTLY WITHIN THE AMBIT OF LEGAL FRAMEWORK A major problem as regards rivers across India has been lack of comprehensive data. There has been no integrated model which can consider the hydrology, meteorology, ecology, economy of the entire basin for a given river. Technological advances have made it easier to map changes, using geospatial tools. A piecemeal approach must subside to an integrated approach while delivering the Awards of varied tribunals. The Indus Water Treaty 1960 - between perennially warring neighbours India and Pakistan - has been hailed by experts as a model treaty as it has an inbuilt dispute redressal system. It is imperative that inter-state disputes too take an equivalent route, keeping in mind the changed realities of the present decade, global climate change-related forecast and in fact, the ticking time bomb called population. The Inter-Governmental Panel on Climate Change (IPCC) has already forecast erratic precipitation for the whole of South Asia. The number of utmost weather events has been predicted to travel up exponentially and each passing year, there are chances of a lesser number of rainy days but with more than normal intensity. Across India, we've seen several samples of such extreme weather events. At an equivalent time, policymakers from the parties involved got to bear in mind that any extreme step to realize solutions in their own favour would be just that - riot, arson and in extreme cases, killing. Taking to streets isn't and may never be an enduring solution, it can rather jeopardise future outcomes. Not just Karnataka and Tamil Nadu, any and each future dispute on sharing waters must be fought, if impossible to debate, legally and within the ambit of constitutional provisions only.


REFERENCES

http://www.cpreec.org/153.htm#:~:text=From%201970%2C%20talks%20on%20the%20Cauvery%20dispute%20went,sector%20consuming%20a%20lion%E2%80%99s%20share%20of%20the%20water.

https://www.dailyo.in/politics/cauvery-water-dispute-tamil-nadu-karnataka-riparian-states-climate-change/story/1/12938.html

https://www.hindustantimes.com/analysis/cauvery-water-dispute-conflicts-gaps-and-institutional-spaces-for-reconciliation/story-QuT7424ibjcPswI6U5PDqL.html

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