Author : Nilanjan Ghosh

Originally Published 2018-02-19 06:01:04 Published on Feb 19, 2018
Much in departure to this existing thinking of water being State subject, thereby, leading to divergent definitions of property rights, the Supreme Court has observed that water of the Cauvery river was a “national asset and no single state could claim ownership over it”.
Cauvery is a national river, no state owns it

In a landmark verdict today, the Supreme Court has reduced the allocation of the Cauvery Waters for Tamil Nadu from 192 TMC, as allocated by the Cauvery Water Tribunal Award in 2007, to 177.25 TMC annually.  This thousand million cubic feet of water is to be released from Billigundulu, the last measuring station in Karnataka on the Cauvery, to Mettur Dam, which is the first measuring station in Tamil Nadu on the Cauvery river. It is a historic judgment.

The judgment is historical on two counts: first, it marks the culmination of the centuries-old inter-state water dispute that has been an epitome of hostile hydropolitics. Second, it sent a signal to the agricultural economy to efficiently use water and practise crop diversification. The principle followed here, though apparently seems like “robbing Peter to pay Paul” (by reducing 14.75 TMC water for Tamil Nadu and providing the same to Karnataka for its burgeoning urban water use), recognises a bigger global phenomenon of intersectoral water conflicts: agriculture versus urban water demand.

In a 2009 paper co-authored with Jayanta Bandyopadhyay in Water Policy, I argued that around 85% of the waters of the Cauvery basin go for agriculture, with paddy emerging as the most dominant crop in the basin. While the Tamil Nadu delta has been historically cultivating paddy, Karnataka started developing their irrigation potential in the 1960s onwards.

The minimum support prices (MSP) of rice between the 80s and 90s were increasing at a faster rate vis-à-vis the drier alternative crop, namely, Ragi. Farmers, therefore, were incentivised to shift to water-consuming crop, for instance, from Ragi to paddy. However, the data over the last 10 years reveals that there has been an overall decline in acreage in the basin, and more so in the Karnataka part, in response to a reversal in the MSP movement. But, the traditional sugarcane agriculture in the delta regions still continues.

Who owns the Cauvery water?

There are three extreme principles of water allocation based on divergent definitions of property rights: Harmon, History and Hobbes. The Harmon doctrine states the primary rights of water are bestowed on those who own land at the source of the water. History confers primary rights to historical users of water irrespective of their geographical location. Hobbes identifies rights as the final result of awards obtained through negotiations.

Tamil Nadu, given the long history of water use especially in the delta regions, has been advocating its position in terms of History. While the basin area's contribution to the river flow should also be an important variable to be taken into consideration, the principle of prescriptive rights given in the 1924 agreement between the Madras Presidency and the Princely State of Mysore also translates to the principle of prior appropriation or the doctrine of history as the basis of property rights definition.

On the other hand, Karnataka has always maintained that a downstream state cannot make a claim when there is a scarcity of water and inadequacy in the upstream areas. At the same time, upstream development should not be compromised because of downstream concerns. This implies that Karnataka has been exercising the Harmon doctrine for its property rights.

The divergent definitions of property rights are amplified by the fact that the subject of water falls in the State list, subject to the provisions of 56 (i) of the Indian Constitution. Even the provisions of the Interstate Water Dispute (ISWD) Act of 1956 and its subsequent amendment in 2002 merely talk of setting up tribunals for adjudications and declaring awards. In view of global standards on water governance, this is insufficient. One can perceive that Hobbesian modes of negotiations are failing. Besides, it has exposed the failings of a state-led, ‘decentralised’ approach.

Interestingly, much in departure to this existing thinking of water being State subject, thereby, leading to divergent definitions of property rights, the Supreme Court has observed that water of the Cauvery river was a “national asset and no single state could claim ownership over it”.

A holistic understanding is needed

The verdict, therefore, presents an unprecedented benchmark in Indian water governance by seeking a departure from age-old policies. There are many solutions for managing agricultural water, such as crop-diversification through minimum support price, regime change in favour of drier crops, promoting water-use-efficiency through technical and institutional measures, imports of agricultural crops from water-rich regions, among others. But, the basic human needs should be met first.

However, there is one more thing that remains to be taken care of, i.e. the cause of the ecosystems. The CWT award in 2007 was thoroughly based on reductionist “arithmetic hydrology”, and not on holistic eco-hydrology. The arithmetic by way of which this 50% dependability of water is arrived at depends on past precedence of estimates conducted by engineers like K.L. Rao.

The CWT seemed to be oblivious to the challenges by possible impacts of global warming and climate change that can result in variability in water availability. That award reserved the “quantity … for environmental protection” and “quantity determined for inevitable escapages to the sea” as 10 TMC and 4 TMC respectively, none of which adhere to any scientific assessment of the ecosystem-based water usages in the basin.

The present verdict does not have the cause of the ecosystem in its scope. But, ecological scientists must advocate for a more scientific approach for the cause of the ecosystems for life in the basin. The resolution mechanism worked out by the Cauvery Water Tribunal has been based on myopic number-games for sharing the waters, without much consideration about the broader institutions, economics, ecology, hydrology, and holistic understanding of the conflicts. There is a need to correct that.

This commentary originally appeared in WION.

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Nilanjan Ghosh

Nilanjan Ghosh

Dr. Nilanjan Ghosh is a Director at the Observer Research Foundation (ORF), India. In that capacity, he heads two centres at the Foundation, namely, the ...

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