Distress over a formula

The seemingly consensual approach of the NDA government towards the Cauvery water dispute is an exercise in deception.

GIVEN its coalitional nature, it would be logical to assume that the National Democratic Alliance (NDA) government at the Centre would be in a better position than other past governments to sort out issues and disputes concerning water resources in the various regions of the country. Indeed, this assumption was the basis for the optimism that marked the creation of the Cauvery River Authority (CRA), comprising the Prime Minister and the Chief Ministers of Karnataka, Tamil Nadu, Kerala and Pondicherry, in August 1998. Attorney-General Soli Sorabjee had then requested the Supreme Court to suspend its hearings on Tamil Nadu's petition seeking implementation of the 1991 Interim Award of the Cauvery Water Disputes Tribunal, because the Union government, he said, had devised a scheme to implement the Award. In order to facilitate an opportunity for the Centre to reconcile the contending claims by Tamil Nadu and Karnataka, the court agreed to suspend the hearings.

Thus the four Chief Ministers, along with Prime Minister Atal Behari Vajpayee, announced the establishment of the CRA and that of a Cauvery Monitoring Committee (CMC) comprising bureaucrats as the mechanism to implement the Award. The CRA was conceived as a scheme under Section 8-A of the Inter-State River Disputes Act for the implementation of the Interim Award and its subsequent orders. But within four years of its creation, the CRA's ability to achieve this objective has come under doubt.

The Supreme Court's September 3 directive to Karnataka - issued by the three-member Bench comprising Chief Justice B.N. Kirpal and Justices K.G. Balakrishnan and Arijit Pasayat - to release from its four reservoirs 1.25 tmc ft of water every day to Tamil Nadu until the CRA takes a final decision in this regard appears to be the court's way of expressing its dissatisfaction with the CRA's functioning. The Supreme Court disagreed with the argument of senior counsel for Karnataka, F.S. Nariman, who urged the court not to pass any order until the CRA took into consideration the distress-sharing formula to be evolved by the CMC. The Supreme Court felt the need to step in to make some interim arrangements as at the stage of the CRA's next meeting was scheduled to take place only in the third week of September, whereas Tamil Nadu sought the court's intervention in the meantime to direct Karnataka to release sufficient water to save the paddy crop in the State. (In the event, the CMC met on September 7 and the CRA the following day.)

As per the minutes of the CRA meeting held on August 27, which were revealed to the court, the Prime Minister had observed that the CRA was awaiting suggestions from the CMC which was required to meet and finalise before September 15 a specific formula for distress-sharing in keeping with the directions of the Tribunal given on April 3, 1992. The Centre suggested that it was aiming at an agreed deficit-sharing formula that would ensure equitable distribution of water.

Such a formula, the draft of which the Central Water Commission (CWC) - in the absence of any draft proposals from Tamil Nadu or Karnataka - seems to have prepared, is clouded in unjustified secrecy. Even though both Tamil Nadu and Karnataka seem willing to abide by such a formula in principle, apparently they are reluctant to make their support to the formula public, until the Centre reveals its details. The Bench made it clear that its Interim Order, which was to be operative from September 3, shall be superseded by the decision to be taken by the CRA. The Bench requested the CRA to decide the dispute with regard to the pro rata sharing of water by the Cauvery river basin States especially in times of distress - even though the nature of the dispute is itself unclear at this stage.

What exactly is the pro rata sharing of water? It could be 50:50 or it may be some other proportion. Karnataka has been insisting that when the State itself is in distress as a result of a bad monsoon, it would be extremely difficult to comply with the order of the Tribunal to the fullest extent. During the post-Interim Award phase, in the absence of clearly defined parameters to assess "distress" and for the "pro rata" sharing of the resultant hardship, the acrimony between the two States had further increased.

The formula of sharing waters in terms of percentage is nothing new, and has been floated earlier too, in 1997, when H.D. Deve Gowda was the Prime Minister. Tamil Nadu is anxious that its share in terms of the actual quantity measured as tmc ft (thousand million cubic feet) should not come down. That is why the State is willing to accept a 50:50 basis for the sharing of waters as a lower percentage could yield much less than the 205 tmc ft recommended by the Tribunal. The then Karnataka Chief Minister, J.H. Patel, proposed a percentage figure of 33 for Tamil Nadu and 67 for Karnataka, although he qualified it by saying that whatever decision or settlement was reached should be around that figure and not very much on the higher or lower side, thus leaving scope for marginal adjustments. Patel argued that if the water was allocated on a percentage basis it would facilitate the proportional distribution of water during a surplus or distress year. But Tamil Nadu felt that its fears had not been allayed.

Therefore, the Supreme Court's current backing to such a formula for the distress period has to be viewed with caution. The court itself has expressed doubts whether the current period could be described as one of "distress". The Bench reminded Nariman that the storage in the four reservoirs had increased from 41 tmc ft to 73 tmc ft in August. "It is not as if you are in distress. But you are not releasing any water to Tamil Nadu," the Bench said.

Indeed, the need for an agreed distress-sharing formula to solve the dispute is itself in doubt. As Tamil Nadu Chief Minister Jayalalithaa remarked while voicing her opposition to the establishment of the CRA in 1998 - her party was one of the constituents of the ruling coalition at the Centre at that time - the minimum weekly outflow specified by the Tribunal itself is a distress-sharing formula. The Tribunal was the right mechanism to adjudicate as per the Supreme Court's ruling, she had said.

Jayalalithaa's opposition to the CRA in 1998 was attributed to her pique over her rival, and the then Tamil Nadu Chief Minister, M. Karunanidhi hogging the limelight for its establishment. However, her walking out of the CRA meeting this August cannot be owing to the fact that she believed that her participation in the meeting would only vindicate Karunanidhi.

Was it practically possible for the Prime Minister and the four Chief Ministers to get together and count how many drops of water flowed into the Mettur reservoir every week from May to October each year, she had asked then. She had argued that the Authority was required to monitor and ensure weekly releases as specified by the Tribunal and that that task was purely technical and administrative and not a matter for political negotiations. Now, with the Centre taking a dubious stand before the Supreme Court before the Bench gave the interim direction to Karnataka on September 2, her stand appears to be vindicated. When asked by the Bench about the percentage of inflow into the Karnataka reservoirs that could be released to Tamil Nadu, Solicitor-General Harish Salve replied that the Centre could provide the figures and statistics about the inflow and outflow but that it was for the court to determine the quantum of the water to be released. Had the Centre been serious about the functioning of the CRA, Salve could have asked the Bench to await the CRA's decision or agreed to advance the CRA meeting to consider the draft formula, purportedly prepared by the CWC and submitted to the CMC in view of the distress faced by Tamil Nadu.

But all along, the Centre's approach seemed to delay a solution or a settlement, depending on the nature of the pulls and pressures within the ruling coalition and outside. When the Supreme Court began to hear the dispute in 1998, the Centre sought to take the issue out of the court's hands. Now, as the process of accountability seems to engulf it, it pretends to play neutral and throws the ball back to the Supreme Court. With the Tribunal's Final Award expected to be pronounced next year, the CRA's relevance as a mechanism to solve the Cauvery dispute will come under increasing scrutiny. Along with this, the Centre's role as an impartial umpire in reconciling the contending interests of the riparian States in the Cauvery dispute will also be on test. The manner in which the Centre convened the emergency meeting of the CMC on September 7 - despite Jayalalithaa publicly expressing her suspicion of Karnataka's motives in seeking such a meeting - has created doubts about whether it is keen on playing such a role.