Initiating a discussion on the topic ‘Cauvery Verdict: Where from here?’ at Observer Research Foundation, Chennai Chapter, on 24 March 2018, Dr. S. Janakarajan, President, SaciWATERs, Hyderabad, said “numbers are now irrelevant to Tamil Nadu. The more important question is this: Will Karnataka share water when it is most needed, i.e. between the months of June and September?”
The Cauvery Water Disputes Tribunal, in its interim award in 1991, declared that Tamil Nadu should get 205 tmc ft. This was reduced to 192 tmc ft in the final award of 2007. The ‘final verdict’ of the Supreme Court, delivered on 16 February 2018, reduced it to 177.25 tmc ft.
Speaking just a week ahead of the court-fixed deadline passed, Dr. Janakarajan explained that while the numbers have massive political ramifications, in actuality the reduction was unlikely to change the water supply situation in Tamil Nadu in any meaningful way. Rather than focusing on the reduction of 14.75 tmc.ft in the Apex Court order, he insisted, it was more important to ask the more practical question of what is the guarantee that Tamil Nadu would get water between June and September? Though he did not want to be distrustful, Dr. Janakarajan pointed out, experience seemed to suggest that Karnataka, despite repeated Tribunal and Supreme Court orders, had not released Cauvery waters for the three lower-riparian States, including Kerala and Puducherry, until they had taken stock of the monsoon situation by September.
Reflecting on the past few years, Dr. Janakarajan said, “Karnataka’s position has always been not to release water at the start of the south-west monsoon, but to wait till September to take stock of both storage and monsoon conditions." He said "it has almost become customary, even normal for Tamil Nadu to file a petition in the Supreme Court every year, seeking directions for Karnataka to release water, and on many occasions, Karnataka has disobeyed the Apex Court order.”
Sharing of the Cauvery water has been an issue between these two States, triggering several agitations, sometimes violent ones, causing damage to lives, businesses and property. In September 2016, 40 luxury buses were set afire in a Bengaluru depot, leading to the closure of several educational and other establishments. The value of the damage caused to properties and businesses has been estimated at Rs. 25,000 crores.
As Dr. Janakarajan pointed out, the Cauvery issue has been not only the longest inter-State dispute but also the bitterest and most political of the disputes ever in independent India. The question that endured in his mind was this: “Will the final verdict resolve this issue of water sharing and end such violent eruptions?” He said the answer should be yes, unfortunately though there continued to be a lot of uncertainty and very little reassurance.
Going beyond the numbers, there were more important legal questions to be debated. Dr. Janakarajan asked: “How do we ensure the operationalisation of the Supreme Court verdict? If the Supreme Court verdict is not implemented, who will be held responsible for the non-implementation/non-compliance? Can the Centre blame the States? If yes, can the Supreme Court raise the issue of non-confidence on the part of the Centre for it has disobeyed the Constitution? Will there be a Constitutional crisis?”
In this context, Dr. Janakarajan asked about the formation of a ‘scheme’, as outlined in the Supreme Court’s ‘final verdict’, which in turn also referred to the setting up of a Cauvery Management Board, which had found a place in the Tribunal’s final award of 2007?” He asked if any delay on the part of the Centre beyond the six-week deadline set in the 16 February verdict tantamount to ‘contempt of court’. “How valid or forceful or binding could be future resolutions passed in the state assemblies, from now on, as in the past?”
Dr Janakaraajan also referred to the conflicting legal questions that were being aired about the inherent powers of the Supreme Court to intervene in the dispute in the first place when Article 262 excluded judicial review of the awards handed down by Tribunals, in turn constituted under the Inter-State River Disputes Act? He also cited other constitutional provisions which gave absolute powers of sorts for the Supreme Court to intervene in any dispute, if and when approached. “Does this ‘constitutional conflict’ make the verdict invalid, or will the current verdict impact on the powers of other tribunals that might be constituted under the 1956 Act in the future?”
There were huge expectations coupled with anxiety from the Supreme Court verdict in the century-old dispute. Initial jubilation in Karnataka was contrasted with a feeling of deep loss and deprivation in Tamil Nadu. However, Dr. Janakarajan noted that this soon changed, and he felt that Tamil Nadu had come to accept the final verdict in relation to the reduced quantum of water, as long as it could be ensured. In Karnataka, initial cheers gave place to apprehension about the wisdom of accepting a ‘management board’ as outlined in the Tribunal’s final award.
This apart other controversial issues remained that too need to be addressed. The Supreme Court directing Tamil Nadu to tap 10 tmcft of ground water to compensate for the loss of 14.75 tmcft under the ‘final verdict’ of 16 February was problematic. Apart from the fact that the Cauvery dispute was only about sharing the surface-water, the ground-water table in parts of Nagapattinam, Tiruvarur and Thanjavur districts, forming the mainstream of the Cauvery delta in Tamil Nadu, was already precarious, owing to over-exploitation, thus making it all saline.
As Dr. Janakarajan recalled, the ‘final verdict’ of the SC gave 14.5 tmcft of additional Cauvery waters to Greater Bengaluru, for meeting drinking water requirements. He pointed out how three-fourths of the city lies outside of the Cauvery basin, and setting a new yardstick in this regard could trigger more such demands from all four riparian States. It also remains to be seen how the authorities concerned ensured monthly release of Cauvery waters by Karnataka, as fixed by the Tribunal and upheld by the Supreme Court.
Dr. Janakarajan said that there were much bigger issues that affected the lives and livelihoods of the farmers and those living around the Cauvery delta in Tamil Nadu, such as the sea-level rise, delta subsidence and elevation, coastal erosion, sea water intrusion, sand mining and severe pollution of the Cauvery itself. Ground-water in half of 239 revenue sub-divisions in the Cauvery basin was over-exploited, critical or semi-critical and saline. The situation was no different in the rest of the State as 61 percent of total land in Tamil Nadu fell under these categories.
Dr. Janakarajan urged that these vulnerabilities were key concerns and more importantly they were both resolvable and within the domain of the state government. He recommended that instead of focusing disproportionately on the verdict, the Tamil Nadu government should focus on these issues. He felt it was crucially important to stop looking at the water problem through a purely political lens as an inter-state dispute, and to address the serious vulnerabilities that affected the lives of people.
The attention on Cauvery is only regarding the water sharing dispute, but the worsening quality of the water due to the disposal of industrial waste, which has made it a ‘yellow category river’ needs far greater attention and in the long run will affect the water security of both states, Karnataka and Tamil Nadu.
It was important to not let the actual livelihoods of farmers be superseded by political interests. The Tamil Nadu government needed to understand the bigger issues related to water security and to stop focusing on the water dispute with Karnataka as the only issue to be resolved. This raised important questions of democracy and justice, which seemed to be tainted by delay, inefficiency, electoral politics and myopic self-seeking politicians and political parties
Dr. Janakrajan likened the Cauvery water dispute to the traditional cake- cutting problem, where one is not focused on what you need but more interested in relative gains, i.e. how much more – or, less -- was your share compared to the other. Regrettably, Dr. Janakarajan said, “the situation has become so bad, so bitter, so political, that for Karnataka, giving Tamil Nadu any more water is not politically acceptable and the upcoming elections make the situation even worse”.
Attempting to answer the question: “Cauvery verdict where from here?”, Dr Janakarajan felt that unfortunately there were no answers. However, it was important to persist with the larger questions and to debate them too, particularly, to ask: “how do we enforce this verdict, and if it is not enforced, should this be seen as a threat to federalism? And, what are the consequences to society, and democracy?”
This report was prepared by Dr. Vinitha Revi, Associate, Observer Research Foundation, Chennai Chapter
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