`There is no appeal'

Ramaswamy R. Iyer, honorary research professor, Centre for Policy Research, New Delhi.-SHANKER CHAKRAVARTY

Interview with Ramaswamy R. Iyer.

THE Cauvery water dispute is one of the many federal issues that have consistently engaged the scholarly attention of Ramaswamy R. Iyer, who was the Secretary, Ministry of Water Resources, Government of India, between 1985 and 1987. His book Water: Perspectives, Issues, Concerns (Sage, 2003) discusses a large number of issues and is virtually a handbook on water for the general reader. His new book Towards Water Wisdom: Limits, Justice, Harmony (Sage, to be released in April) is understood to be more focussed and to make a plea for limits on the consumption of water and for more equitable sharing, social justice and harmony between groups as also between human beings and nature. He will also be editing a volume on Water Laws in India, which will consist of 17 or 18 papers by different authors. Currently, he is an honorary professor with the Centre for Policy Research, New Delhi.

In this conversation with Frontline, he responds to questions about the Cauvery Water Disputes Tribunal's award.

What is your initial reaction to the Tribunal's award?

There is no surprise in it. It is more or less on the lines one had expected. The interim award had given 205 tmc ft [thousand million cubic feet] to Tamil Nadu. Karnataka had opposed it. One knew that this was unlikely to be substantially increased or decreased in the final order. There was not much scope for changing the interim order too much. Massive documentation had been submitted. There was a lot of analysis, information and so on. Nevertheless, in practical terms, it was a bit difficult to get too far away from the interim award. I am talking only about Karnataka and Tamil Nadu. Relatively speaking, these are the major disputants.

So, what have they done now? They have said Karnataka will release 192 tmc ft at Billigundlu. Fortunately, they have specified the place of release. There was some dispute between the two States on the point of release of 205 tmc ft in the case of the interim order. This time, there is no scope for such disagreement. Out of the 192 tmc ft, 10 tmc ft is meant for environmental purposes. So, 182 tmc ft is meant for Tamil Nadu. [Another] 25 tmc ft is expected to be generated between Billigundlu and Mettur. It means that at Mettur, Tamil Nadu will get 207 tmc ft.

As far as the overall allocation is concerned, they have made a slight departure. In the 1970s, a Fact Finding Committee had determined the availability of water in the Cauvery at 671 tmc ft with 75 per cent dependability. The present Tribunal has gone on the basis of 50 per cent dependability, and determined the availability of water at 740 tmc ft. Seventy-five per cent dependability means 671 tmc ft of water will occur in 75 out of 100 years. In 25 years, it may fall short. So, you have that much water roughly in three out of four years. Fifty per cent dependability means that 740 tmc ft will occur in 50 out of 100 years, or in one out of two years.

Naturally, if you take a lower order of dependability, you get a higher magnitude of water flow. But it doesn't really matter so long as there is a provision for dealing with the contingency of lower flows.

Out of the 740 tmc ft, they have allocated 419 tmc ft to Tamil Nadu. The shares for Karnataka, Kerala and Puduchery have been determined as 270 tmc ft, 30 tmc ft and 7 tmc ft respectively. The river must have some water. You cannot take away every drop of water and share it. So they have kept 14 tmc ft unallocated, 10 for environmental purposes and 4 for inevitable escapages into the sea.

Now, this is a judicial decision. All the parties had made elaborate submissions. They had engaged the most learned counsel - Fali S. Nariman, Parasaran and so on. Each State had put forward its case to the best of its ability and submitted massive documentation and supportive material. So, no one can say that their case has not been heard or that the case has gone by default.

Tamil Nadu may have claimed more than 500 tmc ft. But they got 419. Similarly, Karnataka may have claimed upwards of 400. But they have got 270. This is a judicial determination. It is not merely a judicial process. It is a constitutional process. The Tribunal was set up under the Inter-State Water Disputes Act [ISWD], 1956. That Act had been passed under Article 262 of the Constitution, which specifically empowers Parliament to enact legislation for adjudication purposes.

The Tribunal was a divided house until last year, and you have also criticised it for being so. Besides, you were also critical of the Tribunal's move to seek the formation of an expert committee to go into the basics, such as crop water requirements.

The Tribunal members must have been quite upset by all those criticisms, not only by me but by everybody. All the State governments had said, `for heaven's sake, please give us your order'. Even the Supreme Court had passed some remarks. So, I am very glad that they have now given a unanimous and not a divided report.

The differences between the Chairman and the Members... whether they persist or not I don't know... but they have at least not allowed them to affect the report. They had asked for a committee. But now, obviously, they have read all the material given to them. They have found it possible to come to conclusions. They have redeemed their reputation. Now the Tribunal once again stands on a high pedestal.

All the States must accept the award in good faith. There is no question of accepting or not accepting it. The Tribunal is not a recommendatory body. The award is a judicial decision, which is binding.

In fact, the original Act of 1956 had said that the award will be final and binding. That was amended in 2002 to say that it will have the force of the order of the Supreme Court. So, the option of not accepting it does not exist. It is wrong to mobilise public opinion or mount a campaign and so on. These are extra-constitutional methods.

There is no appeal against the award in the Supreme Court. Jurisdiction of the courts, including that of the Supreme Court, is barred under the Act under the express provisions of the Constitution. Once a dispute is referred to a tribunal set up under the ISWD Act, no court has any jurisdiction. Cases have been going to the Supreme Court on matters other than that of water allocation. Earlier, Tamil Nadu wanted interim relief. So, the question whether the Tribunal had the authority to grant interim relief was decided by the Supreme Court.

In the Narmada case, the Supreme Court dealt with not the decision of the Tribunal but the question whether the project was open to question from the environmental and rehabilitation aspects. Medha Patkar was not arguing against the Tribunal award. She had said that the project was ill conceived, that it was not properly examined, that rehabilitation was extremely difficult and that, therefore, the project required a comprehensive review.

Can the interpretation of the Tribunal's award be disputed in a court of law? The parties may not necessarily appeal against the Tribunal's decision.

Normally, there cannot be serious questions of interpretation because the parties have got 90 days to ask questions. They can ask for clarifications from the Tribunal within this period. However, once the award is notified in the gazette, the Central government will wind up the Tribunal. So, after that the Tribunal will not be there to give answers. If serious questions arise after that, the case may have to go to court.

If the implementation of the award creates problems not anticipated earlier and if these require judicial determination by a court? Obviously, the parties could not have envisaged these during the 90-day period.

Then what you can do is to raise a new dispute. This is what happened in the case of the Krishna. So, a new tribunal has been set up, as a fresh dispute has arisen. Of course, when a fresh dispute arises, you have the option of not asking for a tribunal at all and going straight to the courts. The parties can do that. That is not ruled out. The court's jurisdiction gets barred only when a tribunal is set up. It is set up only if a State government asks for it. Suppose no State government asks for a tribunal, they are free to go to court.

Or the Central government can set up a River Board under the River Boards Act. To date no River Board has been set up. That Act is a dead letter. However, if there is a River Board under that Act, you cannot ask for a tribunal. Then the parties have to go to the River Board for arbitration.

Returning to the Tribunal, suppose one State or the other is dissatisfied. Or, they feel that something or the other has not been taken into account and they want to bring some original point that was not already heard by the Tribunal. They can ask for a supplementary or clarificatory order within 90 days. Even the Central government can ask. The Tribunal will consider this and give a clarification or supplementary order, and the original order will stand modified to that extent. Then the Government of India will publish it in the gazette. And it comes into force.

Clause II of the award says the 1924 Agreement provided for review of some of the clauses after 1974. Can you elaborate?

The 1924 Agreement was one without an expiry clause. There was no period. But some clauses were to be reviewed after 50 years. What happened in 1974 was, there was no review of those clauses nor was there any renewal or termination of the agreement. Meanwhile, the States had been reorganised: Madras had become Tamil Nadu and Mysore had become Karnataka. There was a dispute whether the 1924 Agreement continued to be valid. Tamil Nadu said it was valid and was still in force. Karnataka said it ceased to be in force.

That was one of the items referred to the Tribunal. The Tribunal has said that those agreements (1892 and 1924) were valid, but with this order all those agreements get washed away. They have specifically said in this order that it supersedes those earlier agreements.

Do you think the Tribunal ought to have specified the distress-sharing formula?

I have not read the full 1,000-page document. But going by the synopsis of the award, it appears that they have failed to do so. It is easy to say that in a distress year, the allocated shares shall be proportionately reduced among the States of Kerala, Karnataka, Tamil Nadu and the Union Territory of Puduchery. But how exactly will it operate?

It appears that after the distress has occurred and has been determined, this proportionate sharing will occur. Suppose in June, it is very clear that the rains are failing. Are we going to wait till September or October and then say yes, this is a distress year? What happens between June and September? Will the release continue to take place? Or will you suspend releases till the distress is determined? You can't do that.

The Tribunal has recommended a regulatory authority called the Cauvery Management Board and given that responsibility to that board. They should have gone further and laid down a method. The distress cannot be shared after it has occurred. It must be shared as it is occurring. There is some lack of clarity here. The Tribunal has left everything to the management board. In other words, the Tribunal has not performed its function. They should have put in a formula, which they have not done.

What sort of formula could the Tribunal have arrived at?

It is something that requires a lot of work. Some of us tried to undertake the preparation of a distress formula. We found it extremely difficult because too much information is required. The MIDS [Madras Institute of Development Studies] is going to undertake some computer modelling. Perhaps the management board can take advantage of that.

Today, there is a much better understanding among farmers of both States. They have differences, but they don't fight. We had a meeting on January 31 in Mandya. I was there. And they said they were looking forward to the award with an open mind. They have appealed to their brethren to exercise restraint and be calm. If they are dissatisfied, the answer is not to mount a campaign or mobilise public opinion. It has to be fought in the legal forum.

The only answer, therefore, is to go back to the Tribunal and explain the difficulties and ask how the order could be implemented.

The parties can bring before the Tribunal new factors which had not been taken into account earlier. The parties can certainly ask for a supplementary order on proportionate adjustment and distress sharing. That is the correct thing to do. This is the best demonstration of federalism and equitable sharing of water.