Neglected flow

The award gives Kerala more water than it can handle but denies it permission for its dream trans-basin projects.

R. KRISHNAKUMAR in Thiruvananthapuram

KERALA'S position in the Cauvery dispute has always been a tricky one. The Malabar region that was transferred to it from British-ruled Madras Presidency when the State was formed in 1956 included stretches of the Kabini (in Wayanad district) and the Bhavani (in Palakkad district), two water-rich tributaries of the Cauvery. A third tributary, the Pambar flows through Idukki district, which was a part of the state of Travancore-Cochin.

The Malabar region was a neglected part of the Madras Presidency. The British rulers did not build projects within Malabar to harness the Kabini and the Bhavani, preferring instead to tap these rivers in the Tamil-speaking regions of their territory, now in Tamil Nadu, across the Western Ghats. The then Mysore state had prudently utilised the waters of the Kabini flowing into its territory from Malabar.

The merger of Travancore-Cochin and British Malabar to form Kerala in 1956 resulted in the State getting a 2,866-square-kilometre-area of the Cauvery basin, which provided 147 tmc ft (thousand million cubic feet) of water (96 tmc ft from the Kabini basin, 36 from the Kerala Bhavani basin and 15 from the Pambar basin) or, as it claimed, nearly 20 per cent of the total yield of the Cauvery. But with no projects of its own to tap this flow, it watched helplessly as Tamil Nadu and Karnataka used them almost fully. (Even the Pambar had not been tapped to potential when it was a part of Travancore-Cochin as the state had immense water wealth elsewhere.)

Kerala was the first State to demand the setting up of a fact-finding committee as well as a tribunal. Since 1959 Kerala has claimed before the Union government and its agencies and later the Supreme Court, the fact-finding committee and the Tribunal itself, that it "stood on a different footing and deserved special consideration" and that the agreements of 1892 and 1924 between the Mysore and Madras governments were not binding on it.

It complained that on the basis of these agreements the principal riparian States and the Central government and its agencies had repeatedly denied it permission whenever it had wanted to implement projects in the three sub-basins of the Kabini, the Bhavani and the Pambar (known as Amaravathy after it enters Tamil Nadu).

Kerala pointed out that at the same time, despite the bar on more projects on the Cauvery until a final settlement was reached, both Tamil Nadu and Karnataka went ahead with projects without Central assistance, using the waters of the three tributaries. Though it had several proposals for utilising the waters of the three sub-basins, Kerala had to depend on Central agencies for financial assistance, which never came because of objections raised by Tamil Nadu and Karnataka.

The Tribunal recounts this history in detail and takes a very sympathetic view of this injustice to Kerala but makes it clear in its final order that the State cannot pin its hopes on this historical grievance of denial of opportunities for a proportionate share of the waters of the Cauvery. An upper riparian State could not start new projects that would be detrimental to the already established use of a lower riparian State was the legal position, it said.

The Tribunal also disagreed with Kerala's argument that the 1892 and 1924 agreements were not binding on it and said that since British Malabar was a part of Madras Presidency all the rights and liabilities of that state shall also be the rights and liabilities of the State of Kerala, legally a "successor State" under the States Reorganisation Act, 1956.

The Tribunal spelt out several other principles against which it had weighed Kerala's demand for 99.8 tmc ft of water. For example, it said a large part of the waters of the three tributaries of the Cauvery originating or flowing through Kerala were historically being used by Tamil Nadu and Karnataka, especially the former, for agriculture and domestic purposes, the kind of needs that should take prominence over Kerala's need for power generation through trans-basin diversion of the three rivers.

Electricity can be generated by other means whereas there can be no other substitute to water for irrigation, drinking water supply or domestic needs, it said. Also, trans-basin diversion of a river can be justified only if there is surplus water and the needs of the adjacent basin are just and are not detrimental to the basin. Moreover, priority has to be determined not by economic considerations alone, but by carefully considering the conflict of interest between the claims of downstream irrigation and power development by watershed diversion of water.

The Tribunal has taken the view that the Cauvery basin is a water-deficit area with a limited yield of 740 tmc ft (where the demand by the various States was a total of 1,200 tmc ft), so there was little water to spare for new projects ignoring established use over the years. It was also not possible to allow comparatively more water-intensive crops over those that demanded less water or to allow diversion across basins because of the deficit.

Kerala's contention was that only the arguments of Tamil Nadu and Karnataka made the Cauvery basin a water-deficit area "in theory". There was also much dispute among the States regarding the yield from the basin, the purpose of the principal riparian States being to ensure that the calculations on the total yield would not go up from the estimated 740 tmc ft for fear of having to allow more water for their neighbour.

Moreover, the State argued that trans-basin diversion was not a strange concept in the Cauvery basin, that it was still going on and all parties indulged in it and especially that Tamil Nadu was no stranger to trans-basin diversion. Such arguments, however, failed to impress the Tribunal.

The final award has denied Cauvery waters for Kerala's dream projects in the Cauvery basin, including the multi-purpose trans-basin projects in Mananthavady (16 tmc ft) and Banasurasagar (Kuttiyadi power augmentation scheme - 5 tmc ft) in the Kabini basin and Kerala Bhavani (14 tmc ft) in the Bhavani basin.

All except a few of the proposed medium and minor irrigation projects have been granted allocation of water from the Cauvery sub-basins, with riders on the kind and number of crops proposed.

In almost all these projects, the Tribunal has proposed two instead of three or one instead of two crops of paddy and the cultivation of less water-intensive varieties and has refused sanction for irrigated summer crops.

The Tribunal has put limits on the State's demand for drinking water at 120 litres per capita a day (LPCD) for the entire population in the three sub-basins and allowed this only for the 30 per cent urban population. For the 70 per cent living in rural areas and for livestock, it has restricted the requirement to 70 LPCD. It has also said that though a total of 1.53 tmc ft of water could be drawn initially for drinking water use, 80 per cent of it ought to flow back into the system over a period of time.

Therefore, though the water requirement for the three sub-basins was a total of 1.53 tmc ft, the allocated share should be limited to 20 per cent, that is, a total of 0.31 tmc ft. Similarly, the actual consumptive use of water for industrial purposes has been limited to 2.5 per cent of the 1.16 tmc ft drawn from the system.

The award means that Kerala, which has only a 3.5-per cent share in the drainage basin of the Cauvery but contributes (as per its claim) about 20 per cent of the yield of the river and has been allowed to utilise only 5 tmc ft of the total 740 tmc ft yield of the river basin until now, can from now on use 30 tmc ft (in addition to the existing use) as against its demand for an allocation of 99.8 tmc ft.

Kerala's immediate challenge is to implement its many project proposals on a war footing or find some use for this huge quantity of additional allocation, or, until then, watch helplessly as it all continues to flow down to the eager valleys in Tamil Nadu.

With its experience in letting unutilised water run down across the border "temporarily", it will be little consolation to Kerala that the Tribunal's final order says: "The temporary arrangement of use by Tamil Nadu of the unutilised water from the share of Kerala shall not confer any right whatsoever on Tamil Nadu."

Kerala has to get its projects up and running even as it decides to seek a review for a higher share.