"Unprecedented floods, damage and destruction across north India, starting with Uttarkhand a few weeks ago, may have been behind the national media ignoring the more recent rain havoc in south India. In Tamil Nadu's Cauvery delta, the IAF had to be called in to rescue at least four marooned. Promptly, Tamil Nadu has withdrawn a petition before the Supreme Court, seeking the constitution of the 'Cauvery Management Board' (CMB), as per the final award of the Centre-appointed Cauvery River Water Dispute Tribunal, under law. In doing so, Tamil Nadu has reserved the right to move the court in future on the CMB issue, if and when required.
In neighbouring Kerala's Idukki district, 13 persons were buried in rain-induced landslips. Unacknowledged, Idukki district and its population are also at the centre of another of Tamil Nadu's water rows with neighbouring States. This one involves increasing the water levels in the British era Mullaperiyar dam to the original 152' against Kerala's reservations and opposition. Despite the court-appointed technical committee clearing Tamil Nadu's demand, Kerala, like Karnataka, has resisted all efforts at giving the former 'what is due to it under the law'.
At the bottom of the two cases are ground realities that did not exist when the projects were conceived and executed. Tamil literature, traditions and thought processes had been conditioned over centuries as if Cauvery was theirs and all theirs. Over the past century, upper riparian Karanataka increased its agricultural acreage by leaps and bounds, and also built new reservoirs within the State, post-Independence, that hurt irrigation in downstream Tamil Nadu very badly. It is at the crux of court cases, street-protests, including colourful ones by the respective film industries, and anti-Tamil violence in Karnataka of the Nineties in particular.
The 'Mullaperiyar issue' flows from the unplanned but politically-encouraged migration of Kerala's people from the plains to the upper reaches of the Idukki district since the Sixties. Higher the water inflows into the Mullaperiyar dam, downstream, inside Tamil Nadu, larger would be the areas in Idukki district that would be inundated. Higher would be the population that would be affected in what has become one of the electorally-sensitive districts in the central Kerala region. Down-stream in Tamil Nadu, it is equally politically sensitive, but the real loss of irrigation water for farm lands as comparable, to a greater or lesser degree, to the loss of Cauvery waters from Karnataka.
TN rights established
In the two cases initiated by Tamil Nadu, either by the Government or affected farmers, Supreme Court verdicts has established the State's rights. After decades of legal wrangling and political initiatives by the Centre, Tamil Nadu's right to 205 tmcft of Cauvery waters has been unequivocally established. On the court-directive, the Centre has also notified the award of the Cauvery Water Tribunal that it had instituted long ago under the Inter-State River Water Disputes Act. The award grants 205 tmcft of Cauvery waters to Tamil Nadu each year, under a monthly quota scheme, based on a realistic appreciation of the demand-supply situation, providing for high rainfall months and the annual summer.
On the Mullaperiyar dam front, the Apex Court has upheld Tamil Nadu's case on the strength of the century-old reservoir to hold water up to 152', as against 136', which Kerala feels comfortable about. In doing so, Kerala has claimed that the reservoir is in a seismic zone and that the dam had developed cracks in the past. However, the court has cleared calibrated increase in the storage levels after Tamil Nadu completed necessary civil works, as mandated by a court-appointed technical committee. Kerala would not yield, however.
The two disputes also followed a near-similar yet curious course, challenging the unity and federalism when the 'affected' States, Karnataka and Kerala, and passed legislation to nullify the Apex Court orders of the time. Both pieces of legislation, passed unanimously, aimed at directing the respective State Government to protect the interests of their people and farmers. The effect of those laws however was to deny Tamil Nadu waters that had been found by independent Central authorities and/or the Supreme Court as due to it.
'Wilful disobedience' ?
If the Apex Court had not really frowned upon the 'errant States' thus far, it also owes to the impossibility of the situation, both on the political and law and order fronts. The Centre has to worry more about the political fallout of such a situation than the constitutional consequences. Greater the force of court orders or Central 'intervention' of whatever kind, greater would be the political cause and public resistance in the State(s) concerned, leading to a possible 'wilful disobedience' of the Constitution and constitutional machinery.
The Founding Fathers in their wisdom had not thought of such eventualities and the Statute that they made have not provided for such consequences. With the result, court orders in both the cases have remained mostly on paper, with pan-Tamil elements in Tamil Nadu reviving their forgotten calls that have a sinister context in the light of the unresolved 'ethnic issue' in neighbouring Sri Lanka. The price thus to be paid either way are high and costly for the Indian Nation.
Tamil Nadu's fight in the two court cases, and all others flowing from them, is based on agreements, though in both cases, it had enjoyed traditional rights as lower riparian. As history would have it, on both Cauvery and Mullaperiyar fronts, Tamil Nadu had had larger acreage under their irrigation long before the upper riparian States woke up - though for exactly opposite reasons. Karnataka wants to retain Cauvery waters for irrigating its farm lands, whose acreage has increased manifold since the 50-year, 1924 agreement was signed between the Madras Presidency and the princely State of Mysore.
Truth be told, Kerala, which inherited an agreement between the then British India Government and the Maharaja of Travancore, does not want the Periyar river waters for irrigating its farm lands. Instead, it does not want the water to be stored in the Tamil Nadu reservoir, lest it should inundate rubber plantations and other crops, and submerge households in Idukki district. There is no way the Centre or the Supreme Court could persuade Karnataka and Kerala to obey court orders, lest the Governments in the two States would face unprecedented public ire and possibly, street-protests, too.
Reality-checks
Karnataka does not release mandated quotas of Cauvery waters to Tamil Nadu on a monthly basis in what it describes a poor-rainfall years. In months and years of heavy rainfall, Karnataka releases waters much in excess of the monthly stipulation, at short-notice to Tamil Nadu. It has also evolved an imaginative argument, to spread those 'emergency releases' to avoid flooding within the State, as part of the annual quantum. Thankfully, Karnataka is not known to have spread out such excesses to more than a year, and argue that it had released in advance waters that were due to Tamil Nadu for two or more years.
In the process, Karnataka and Tamil Nadu have put on cold store a proposal for building an additional hydro-power project on their border to be controlled by the Central Water Commission (CWC) or such other authority. The dispute is not technical, but political. Both States want the reservoir located within their borders/jurisdiction, as they seemed to be convinced that a Central authority would be ineffective in protecting their respective interests. In excess rainfall years, Tamil Nadu has been forced to let all the overflows drain into the seas when it could have benefitted from an additional reservoir at the tail-end, where standing crop wither away more than elsewhere in a poor-rainfall year. Karnataka also has new projects, which could not be taken up, pending the present court cases.
In the case of Mullaperiyar, Kerala, still arguing the case on seismic front, has offered to build new reservoirs to shore up enough waters for release to Tamil Nadu to compensate the losses that it has been suffering after the storage-level was reduced from 152' to 136'. Tamil Nadu seems not interested in the Kerala offer, lest it weakens its court case. The State also seems to be apprehensive that on a later date, Kerala, like Karnataka, would go back on its promise, if its needs increased.
Distress-sharing
The river water disputes are sensitive political issues in all the three States. They have also provided the few occasions in which political parties in Karnataka and Kerala have come together, and fought their Government's case, with the Centre, as one man. In Tamil Nadu, 'competitive Dravidian politics' has ensured that there is no unanimity of approach. Yet, there is greater unanimity over the issue, and what the State should not concede - or, what the State Government of the day should not be seen as conceding.
Yet, a way out would involve Tamil Nadu negotiating or re-negotiating the proposals from the other two States from a position of strength and greater confidence, flowing from the Supreme Court's reiteration of its inherent and/or legal rights in the two cases. There may thus be a need also for the Supreme Court to look at the issues in the two cases from a fresh perspective, which leads to a pragmatic solution. The Centre, needless to say, also has to be a part of, and partner in the process:
1. Tamil Nadu's legal rights has to be established/re-established on a firmer footing in both cases than already, to its satisfaction. Penalty for failure to respecting the rights should also be included in such an arrangement. It could involve financial compensation to the 'aggrieved party' on a year-on-year basis, where the finding of a 'permanent arbitrator' appointed under law may be effective and final. Inability or unwillingness of the State concerned to obey the arbitrator's findings within a specified period (alone) should be a mandatory cause for the Apex Court to order the Centre to take over the administration of the case and settle the dues, before restoring a legitimately elected administration. A similar but simpler alternative would be for the Centre to be authorised to with-hold payments due to the 'penalised' State from the Central Pool and divert the 'penalty amount' to the affected State.
2. Karnataka's forgotten proposal for 'distress-sharing' of available Cauvery waters, based on rainfall and available storage, should be reopened and considered with an open mind, and on merit. It should be based on the dictum, "If there is no water, there is also no water to share." Tamil Nadu too should realise that taking the horse to water in terms of the Centre and the Supreme Court establishing its rights is one thing, but making it drink is another - when it comes to enforcing the Tribunal award on the upper riparian.
3. As part of the settlement, or even independent of that and beforehand, both States should consider the possibilities of the CWC building the proposed dam between the two States (possibly within Karnataka borders) but with clearance for Tamil Nadu to build another at the tail-end, without much ado. Other Karnataka proposals should be considered on merit by the CMB or such other trilateral committees or the proposed arbitration panel, but with adequate internal mechanisms and/or guarantees for ensuring that Tamil Nadu is not made to feel cheated, and the Tamil Nadu farmers are not to face unplanned, man-made losses, on a later date.
4. In the case of Mullaperiyar, Tamil Nadu, once again having established its rights, should be open to Kerala's suggestion for building additional dams, to meet its current losses, and on a permanent basis. Internal guarantees for future default, if any, should be provided for in the negotiated settlements, with counter-attestation by the Apex Court and the Union of India. Simultaneously, and a possible part of the Mullaperiyar case, the two States should also find a lasting solution to the 'Parampikulam-Aliyar case' where Tamil Nadu is the upper riparian on their shared borders in the West.
The Tamil Nadu case(s) may have relevance elsewhere in the country, now or later. Given the increasingly fragile nature of the federal structure as evidenced in this 'coalition era', early measures of the kind need to be put in place lest the unity of the Union should be at stake.
The copious rains this year, preceded by a year of drought all across the nation, should be an eye-opener for all stake-holders involved in inter-State river water disputes. This year's rain may have also ensured that there may not be another year of water shortage, a year that will also be witnessing parliamentary polls at the national level and Assembly elections in some States, though none of them thankfully affected by river-water disputes of any serious and immediate kind. Thus, the rains this year may have provided a window of opportunity for national initiatives to find realistic solutions to real problems, which are otherwise now tied down in knots of technicalities and legal arguments, which are used at best to delay the due process which alone could suffice, otherwise.
(The writer is a Senior Fellow at Observer Research Foundation, Chennai Chapter)
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