Solution in sight?

THE dispute over the sharing of Cauvery water, which appeared legally intractable earlier, has finally been resolved, thanks to the Supreme Court’s judgment on February 16. A bench comprising the Chief Justice of India Dipak Misra and Justices Amitava Roy and A.M. Khanwilkar delivered the judgment disposing of the appeals by the States of Karnataka, Tamil Nadu and Kerala against the 2007 award of the Cauvery Water Disputes Tribunal (CWDT).

The award remained unimplemented all these years because of appeals filed in the Supreme Court by the parties before the tribunal challenging the award on various grounds. The Centre too did not comply with the tribunal’s order to form a Cauvery Management Board to supervise the operation of reservoirs and the regulation of water releases therefrom with the assistance of a Cauvery Water Regulation Committee, which was to be constituted by the board. The board was required to submit a report to the party States before September 30 every year. The tribunal had dealt with the functional details of the board with regard to the allocated shares.

In its judgment, the bench found historical facts demonstrating the constraints suffered by Karnataka, which resulted in its limited access and use of the surface flow of the Cauvery river in spite of being the upper riparian State, compared with Tamil Nadu, formerly Madras Presidency, as well as the drought conditions in Karnataka’s 28 districts/taluks. Therefore, it awarded an additional quantity of water to Karnataka—14.75 tmc ft (thousand million cubic feet) in all, that is, 10 tmc ft (on account of the availability of groundwater in Tamil Nadu) + 4.75 tmc ft (for drinking and domestic purposes, including such need for the whole city of Bengaluru). Considering Karnataka to be more deserving among the competing States of more water, the bench deducted 14.75 tmc ft from Tamil Nadu’s quantum, as allocated by the tribunal.

Thus, the bench determined the final allocation of the shares of the four parties before it, out of the total of 740 tmc ft estimated to occur in 50 out of 100 years, as follows:

Karnataka: 284.75 tmc ft (270 as allocated by the tribunal + 14.75)

Tamil Nadu: 404.25 tmc ft (419 as allocated by the tribunal – 14.75)

Kerala: 30 tmc ft (as allocated by the tribunal)

Union Territory of Puducherry: 7 tmc ft (as allocated by the tribunal)

Environmental protection: 10 tmc ft (as determined by the tribunal)

Inevitable escapages into the sea: 4 tmc ft (as determined by the tribunal)

As a consequence of this allocation, the bench directed Karnataka to make available at the inter-State border with Tamil Nadu, at Biligundulu, 177.25 tmc ft of water for the basin. Apart from the modifications effected as above, no interference with the determination and findings recorded by the tribunal, in view of the scrutiny of the available material on record, was called for, the bench held.

The bench justified its decision not to revisit the tribunal’s allocation of 10 tmc ft of water for environmental protection in order to avoid unwarranted pollution and harm to sustained environmental purity. As pointed out by an expert, the river must have some water; every drop of water cannot be taken away and shared.

In view of the reduction in the quantum of water now required to be released by Karnataka, there would be, logically, a proportionate decrease in the monthly releases as worked out by the tribunal, the bench held.

Overruling the Centre’s insistence that it should have the discretion to make a scheme to implement the tribunal’s award, as envisaged under Section 6A of the Inter State Water Disputes Act, 1956, the bench directed the Centre to frame a scheme within six weeks from February 16 so that the judgment was “smoothly made functional” and the rights of the States as determined by the court were appositely carried out. The setting up of the Cauvery Management Board, as proposed by the tribunal, is intrinsic to such a scheme.

The bench said: “When we say so, we also categorically convey that the need-based monthly release has to be respected. It is hereby made clear that no extension shall be granted for framing of the scheme on any ground.”

The bench further clarified that the framing of the scheme was exclusively meant for the implementation of the award or as the same got modified by the Supreme Court. The bench further held that the recommendations/directives of the tribunal, in terms of the February 16 judgment, with regard to the monthly releases would hold good for the next 15 years.

The bench concluded: “It is obligatory to clearly state that in view of the acute scarcity of the water resources and the intensely contested claims of the States, it is expected that the allocations hereby made would be utilised for the purposes earmarked and accepted and no deviancy is shown in carrying out the verdict of this court.”

The Supreme Court’s judgment makes it clear that there was nothing perverse about the tribunal’s award against which Karnataka, Tamil Nadu and Kerala filed appeals. Indeed, it reaffirmed the same principle that the tribunal had relied on in order to resolve the dispute. Though the tribunal’s award was passed on February 5, 2007, it was notified by the Centre only on February 19, 2013, after considerable prodding by the Supreme Court. On May 22, 2013, the Centre constituted a Supervisory Committee in terms of the tribunal’s directions to implement its 2007 order.

During the pendency of the appeals in the Supreme Court, Tamil Nadu filed an Interlocutory Application in 2016 alleging that Karnataka was not complying with the directions given by the tribunal to release water because of which the samba crops in Tamil Nadu were in danger of being damaged. Through its interim orders, the court has been directing Karnataka to release specified quanta of water to Tamil Nadu, Kerala and Puducherry to overcome the immediate crisis.

Meanwhile, the Centre, despite its indifference in creating the requisite mechanisms to implement the tribunal’s award, took a stand in the Supreme Court that the appeals of the three States against the award were not maintainable. It did so on the grounds that Section 6(2) of the Inter-State River Water Disputes Act, 1956, imposed an embargo on the jurisdiction of the Supreme Court to resolve the dispute once the tribunal had given its order.

Disagreeing with the Centre, the Supreme Court held in December 2016 that Section 11 of the 1956 Act, read with Article 262 of the Constitution, did not confer the power on the Supreme Court to entertain an original suit or complaint raising an inter-State water dispute. The court held that Section 6 of the 1956 Act, however, did not exclude the jurisdiction of the Supreme Court, under Article 136 of the Constitution, to entertain appeals of the States against the tribunal’s order.

It was a strange situation. While the Centre opposed the Supreme Court’s jurisdiction to hear the matter, the other four litigants in the case, Karnataka, Tamil Nadu, Kerala and Puducherry, insisted that the court could go ahead and hear the matter to give a categorical ruling. “The current dispute is a unique one affecting the lives of millions of people and the stakes involved are unparalleled,” the court was told. The States and the Union Territory asked the court to decide the legal and factual issues so that the controversy was put to rest.

The CWDT was set up in 1990 after Tamil Nadu requested the Centre in 1986 for the adjudication of the water dispute under the 1956 Act, as the Centre’s attempts to settle it by negotiations since 1970 had failed.

The tribunal took 17 years to deliver its award and the order. Its order superseded the previous agreements of 1892 and 1924 between the then Madras Presidency and the princely state of Mysore. In its February 16 judgment, the Supreme Court rejected the claims of Karnataka contending that the agreements to share water, reached during the colonial era, were not valid. The court pointed out that Karnataka did not oppose those agreements even after Independence and the formation of the State.

The principle In its February 16 judgment, the Supreme Court held:

“The waters of an inter-State river passing through the corridors of the riparian States constitute national asset and cannot be said to be located in any one State. 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.”

While reiterating the above principle in the context of resolving the century-old dispute over the sharing of the Cauvery water, the bench observed:

“The right to flowing water is well-settled to be a right incident to property in the land and is a right publici juris of such character, that while it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet as one of the beneficial gifts of Nature, each beneficiary has a right to just and reasonable use of it.”

Having said this, the bench endorsed the principle followed by the CWDT in its 2007 award that the distribution and allocation of waters between the riparian States should be on the basis of their equitable share.

According to this principle, every riparian State is entitled to a fair share of the water according to its need, imbued with the philosophy that a river has been provided by nature for the common benefit of the community as a whole through whose territory it flows even though those territories may be divided by frontiers as postulated in law. The bench recognised that equality cannot be conceived of as resting on equal sharing of water within an arithmetical formula and that while satisfying the requirements of a basin State, a co-basin State should not subjected to any substantial injury.

The bench decided to reduce the mandatory release of water to Tamil Nadu from Karnataka’s reservoirs from 192 tmc ft as stipulated by the tribunal to 177.25 tmc ft at the inter-State border at Biligundulu while at the same time increasing Karnataka’s allocation by 4.75 tmc ft for drinking water for the residents of Bengaluru, and allocating 10 tmc ft towards industrial and other uses, including irrigation. The bench did so on the grounds that the tribunal had committed a patent error by failing to reduce the amount of water allocated to Tamil Nadu despite recognising the availability of 20 tmc ft of groundwater in the State.

Agreeing with Karnataka’s counsel, the bench factored in this quantum of groundwater as an available/additional resource in Tamil Nadu for the purposes of irrigation. The bench also relied on “exhaustive studies” by the Central Ground Water Board, the Union Ministry of Water Resources, the Irrigation Commission (1972), and the United Nations Development Programme confirming the availability of replenishable groundwater in Tamil Nadu. Citing Tamil Nadu’s own pleadings, the bench considered it an admission as to the availability of groundwater in the State and held that 10 tmc ft of groundwater available in the delta areas of Tamil Nadu could be accounted for in determining the apportionment, thereby justifying a reduction in Tamil Nadu’s entitlement out of the total 740 tmc ft.

For arriving at this decision, the bench relied on the Helsinki Rules on the use of waters of international rivers (adopted by the International Law Association in its conference held in Helsinki in August 1966), which set down the criteria to determine equitable utilisation of waters of an international drainage basin. In particular, the bench cited Article VIII of the Helsinki Rules, which says that an existing reasonable use may continue in operation unless the factors justifying its continuance are outweighed by other factors leading to the conclusion that it be modified or terminated so as to accommodate a competing incompatible use. The bench suggested that this provision clearly signified that an existing use was also not absolute in terms and was subject to exigency-based adjustments.

The bench concluded thus: “The admission of facts along with the confirmatory empirical data suggests that around 20 tmc ft of groundwater is available beneath the surface in Tamil Nadu which the tribunal has not taken into account, citing it as a conjecture. We, while keeping in mind the risks associated with over-extraction of underground water, deem it fit that 10 tmc ft of the said available groundwater in Tamil Nadu can, in the facts and circumstances of the present case, be accounted for in the final determination of its share.”

According to the judgment, the drinking water requirement of the overall population of all the States has to be placed on a higher pedestal as it is a “hierarchically fundamental principle of equitable distribution”. This explains why the bench justified the reduction in Tamil Nadu’s quota to cater to the drinking water requirements of Bengaluru’s residents. The tribunal had drastically reduced the share of Karnataka towards domestic and industrial purposes for the reason that only one-third of the city of Bengaluru fell within the river basin and also on the presumption that 50 per cent of the drinking water requirement would be met from groundwater supply. “The said view taken by the tribunal ignores the basic principle pertaining to drinking water and is, thus, unsustainable. Keeping in mind the global status that the city has attained, an addition of 4.75 tmc is awarded to Karnataka,” the bench held.

The Supreme Court, like the tribunal, has left the formula of water sharing in distress years to be worked out by the board. Thus, in case of deficiency in rainfall in a particular year, the proposed board is likely to determine the allocation. The tribunal has ordered that need-based monthly release has to be respected and that the board can relax the schedule of deliveries and get the reservoirs operated in an integrated manner through the States to minimise the harsh effect of a bad monsoon year in the event of two consecutive distress years.

The tribunal’s failure to specify the distress-sharing formula had come in for criticism from experts. The late Ramaswamy R. Iyer, former Secretary of the Union Ministry of Water Resources, who had contributed a lot to the discourse on the Cauvery dispute, had told Frontline : “The distress cannot be shared after it occurred. There should be a method to share distress; it must be shared as it is occurring. The responsibility cannot merely be left to the board to decide that.” But he had agreed that it was a complex exercise, which could be done by experts alone, involving the participation of all the stakeholders.

And the key to the success of the Supreme Court’s judgment in ensuring a permanent solution to the Cauvery dispute may well lie in the yet-to-be-worked-out distress-sharing formula.