Karan Kumar

| @CouldBeKaran | July 20,2018

After long 28 years, the Cauvery Water Disputes Tribunal stands dissolved. Some say, oh finally it has ended.

The Tribunal was constituted in 1990 under Section 4(1) of the Inter-State River Water Disputes Act, 1956, at the instance of Tamil Nadu, which had filed a complaint alleging violation of prescriptive rights, right of prior appropriation and the water sharing agreements by the State of Karnataka by unilaterally constructing a series of dams in the upstream reaches across the main river Cauvery and its tributaries, thereby reducing the inflows into its Mettur Dam. 

History of the Cauvery Water Dispute

The conflict involved four parties — with the State of Karnataka (erstwhile Mysore State, a princely state) and the State of Tamil Nadu (erstwhile Madras presidency, under British Raj), the State of Kerala and the Union Territory of Puducherry (earlier known as Pondicherry) — as the disputing entities. The dispute originated in 1807.

The conflict involved four parties — with the State of Karnataka (erstwhile Mysore State, a princely state) and the State of Tamil Nadu (erstwhile Madras presidency, under British Raj), the State of Kerala and the Union Territory of Puducherry (earlier known as Pondicherry) — as the disputing entities. The dispute originated in 1807

In 1892, the Princely State of Mysore and the British Madras Presidency, on the advice of the British Paramountcy, entered into an agreement pertaining to water-sharing for the first time to protect the prescriptive rights of Madras in the waters of Cauvery. This was preceded by tanks proposed by Mysore to solve their famine and draught issues. Conflicts arose due to an assertion by Mysore as the upper riparian State with regards to the the freedom to construct storages and hold water. This was met with equally, or even stronger, assertions by Madras, which insisted on letting the natural flow of the river to protect its historic irrigation in the Delta region of Tanjore.

Conflicts arose due to an assertion by Mysore as the upper riparian State with regards to the the freedom to construct storages and hold water. This was met with equally, or even stronger, assertions by Madras, which insisted on letting the natural flow of the river to protect its historic irrigation in the Delta region of Tanjore

Disputes resurfaced in 1910, when the Maharaja of Mysore — a feudatory of British — planned to build a dam at Kannamabadi village, which was opposed by the British Madras Government, which had planned to build a dam at Mettur to regulate supplies for irrigation in the Delta downstream. This led to the Madras government escalating the issue for Arbitration. The Arbitrator, Sir Justice Griffins, in his award partly favoured Mysore, allowing Mysore to construct its dam at Kannamabadi village — now known as Krishna Raja Sagara Dam. However, the Secretary of State of India in London, under the infamous doctrine of Paramountcy, stayed the award at the instance of Madras farmers.  But, on further talks, the agreement of 1924 was entered into between two Governments, being valid for fifty years.

After Independence and lapse of British Paramountcy under the Indian Independence Act, 1947, the State of Karnataka claimed that it could utilise the waters without any restrictions upon its plan to build dams. This was countered by Tamil Nadu. Tamil Nadu wanted to continue with the division of water as per the 1924 agreement, with it receiving 75% of the water, Karnataka receiving 23% and the remaining going to Kerala. Karnataka — on the other hand — wanted the division along the lines of equitable apportionment in line with international norms.

Tamil Nadu wanted to continue with the division of water as per the 1924 agreement, with it receiving 75% of the water, Karnataka receiving 23% and the remaining going to Kerala. Karnataka — on the other hand — wanted the division along the lines of equitable apportionment in line with international norms

The Central Government under the leadership of then Prime Minister Indira Gandhi tried to intervene by proposing draft agreement in 1974. However, imposition of Emergency and the subsequent President’s Rule in Tamil Nadu in 1977 derailed the mediation process.

Constitution of the Tribunal

The issue reached the judicial forum when a farmer’s association from Tanjavur, Tamil Nadu moved the Supreme Court in 1983 demanding the establishment of a Tribunal to adjudicate upon the issue. The Court initially directed the parties to negotiate. However, upon their failure in April 1990, the Supreme Court finally directed the Central Government to constitute the Tribunal to adjudicate upon the water disputes raised by Tamil Nadu in its statutory complaint made in 1987.

In April 1990, the Supreme Court finally directed the Central Government to constitute the Tribunal to adjudicate upon the water disputes raised by Tamil Nadu in its statutory complaint made in 1987

Over 17 years, the Tribunal held 502 sittings and pondered over large volumes of evidence running up to fifty thousand pages. It delivered its final award on February 5, 2007, upholding the validity of the agreement of 1924 but in a modified form as per equitable consideration to address the historic grievances of Karnataka — successor of Mysore. Out of the total available water ascertained at 740 thousand million cubic feet (TMC), it allocated Tamil Nadu 419 TMC against its demand of 512 TMC, Karnataka 270 TMC against its demand 465 TMC, Kerala 30 TMC and Puducherry 7 TMC. 10 TMC was set aside for environmental protection, and 4 TMC was written off as inevitable escapages into the sea. This allocation meant that in a normal year, with regular levels of rainfall, Karnataka had to ensure 192 TMC to Tamil Nadu on a monthly basis, while in distress years the shares of each of the four parties were to be reduced proportionately. The Tribunal also recommended the Central Government to set up a Cauvery Management Board (CMB) to implement its decision.

Unsatisfied by the Tribunal’s award, all party States except Puducherry approached the Supreme Court by invoking Article 136 of the Constitution of India. 

The Supreme Court proceedings

During the pendency of appeals in 2012-13 and 2015-16, the Supreme Court passed series of interim orders for delivery of water which invited wide spread protests in Karnataka.  Finally, the division bench of the Supreme Court comprising CJI Dipak Misra, Justices Amitava Roy and AM Khanwilkar decided to hear the appeals to resolve the matter one way or other. The court spent an unprecedented 28 days scanning over paper books running into 25,000 pages.

The division bench of the Supreme Court comprising CJI Dipak Misra, Justices Amitava Roy and AM Khanwilkar decided to hear the appeals to resolve the matter one way or other. The court spent an unprecedented 28 days scanning over paper books running into 25,000 pages

Karnataka was led by the legendary legal brain Fali Narman. Senior Advocate Mohan Katarki backed him by arguing at length on the complex technical issues and intricacies of the inter-State water law which has been his forte. Tamil Nadu was led by the indomitable Shekhar Naphde and was supported by G Umapathy

Karnataka was led by the legendary legal brain Fali Narman. Senior Advocate Mohan Katarki backed him by arguing at length on the complex technical issues and intricacies of the inter-State water law which has been his forte. Tamil Nadu was led by the indomitable Shekhar Naphde and was supported by G Umapathy

who knew the case fully.  On February 16, 2018, the Court by its unanimous judgment partly allowed the appeal of Karnataka by reducing the releases by Karnataka from 192 TMC to 177.25 TMC annually. The court consequently increased the share of Karnataka by 14.75 TMC.

The long and erudite judgment scanning difficult technical issues and equally troublesome inter State water law came to the conclusion that Karnataka had indeed suffered historically because of archaic prescriptive rights theory and intervention by British Paramountcy. The court also recognised that Karnataka has large drought prone areas.

The long and erudite judgment scanning difficult technical issues and equally troublesome inter State water law came to the conclusion that Karnataka had indeed suffered historically because of archaic prescriptive rights theory and intervention by British Paramountcy. The court also recognised that Karnataka has large drought prone areas

On Bangalore’s water supply, the Court disagreed with the Tribunal’s confinement of the city of Bangalore’s entitlement to one third of their requirement, premised upon the fact that that only a third of its territory was a part of the Cauvery basin region.

With regards to this, it held that “territorial or geographical demarcation for extension of beneficial uses of an inter-state river basin cannot always be strictly construed”. The difference of 14.75 was also accorded in light of 4.75 TMC being allocated to meet the drinking water needs of Bangalore, and the remaining 10 TMC for irrigation in drought areas. The Court also propounded upon the doctrine of equitable apportionment to support its holding of allocating the additional water to Karnataka.

The Bench also held inter-state river waters to be national assets, by stating, “being in a state of flow, no state can claim exclusive ownership of such waters or assert a prescriptive right so as to deprive the other States of their equitable share.”

The Bench also held inter-state river waters to be national assets, by stating, “being in a state of flow, no state can claim exclusive ownership of such waters or assert a prescriptive right so as to deprive the other States of their equitable share.”

It further directed the Central Government to frame a Scheme under Section 6A of the Act of 1956. The Central Government, accordingly, framed the Scheme on June 1, 2018 establishing Cauvery Water Management Authority to implement the judgment of the Supreme Court modifying the decision of the Tribunal.

Takeaways from the Cauvery Dispute

What is the key takeaway from this costly litigation which cost Karnataka and Tamil Nadu over the 28 years — a huge amount of Rs 100 crores each in payment of fees to eminent lawyers and experts; the cost of commissioning of technical studies by reputed institutions; salaries to a large number of dedicated staff that worked day and night; costs of the Tribunal; inconveniences caused to people of both States whenever the interim orders for releases were passed in 1991-92, 1996-97, 2002-03, 2012-13 and 2015-16; loss of revenue to both the States running into thousands of crores from bandhs etc. Was this all justified?

The answer is that it is probably justified, as both the States have finally accepted the judgment as the solution. None had thought that there was ever to be a solution to the Cauvery dispute. As far as the nation is concerned, the Supreme Court has unambiguously laid down that the rule of equitable apportionment is the law. It debunked archaic prescriptive rights and natural flow theory on one hand and absolute rights of upper State on the other hand.

The Supreme Court has unambiguously laid down that the rule of equitable apportionment is the law. It debunked archaic prescriptive rights and natural flow theory on one hand and absolute rights of upper State on the other hand.

Also, the Supreme Court has authoritatively established that it is the final adjudicatory body for inter-state water disputes, putting an end to the uncertainty arising from Section 11 of the Act of 1956 when read with Art 262(2) of the Constitution of India.

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