The Cauvery tangle - what's the way out?

In order to get out of the great Cauvery tangle, it is necessary to pull back from two untenable and conflictual positions - the Harmon Doctrine and the doctrine of prescriptive rights - and to work to create a new climate for a reasonable settlement, through conciliation or adjudication.

THE Cauvery dispute has gone through so many convolutions by now that a very confused situation prevails, and not many have an understanding of what is going on. This article aims at making things clearer to those who have not been following the intricacies closely. In the interest of brevity, what follows is necessarily a broad account that omits some details and nuances.

Before we proceed further, one point needs to be noted. The main water-sharing dispute is still before the Cauvery Water Disputes Tribunal, and the final award is awaited. What went before the Supreme Court recently was not that dispute but a secondary issue relating to the implementation of the Interim Order (1991) of the Tribunal, particularly in a distress year.

Background

When we speak about the 'Cauvery', we are referring to a system of rivers consisting of the Cauvery itself and a number of tributaries such as the Hemavati, the Kabini, the Bhavani, the Amaravati, and others. Karnataka and Tamil Nadu are the principal States in the Cauvery basin, but a small part of the basin is in Kerala, and at the very end, the Cauvery Delta includes Karaikal which is a part of the Union Territory of Pondicherry.

The dispute over the sharing of Cauvery waters has a long history and goes back to the 19th century. The parties then were the Madras Presidency in British India and the princely State of Mysore. After prolonged discussions there was an agreement in 1892, followed by a further dispute; an arbitration under the auspices of the Government of India; an appeal against that arbitral award to the Secretary of State in London; and, at the instance of the Secretary of State, a resumption of mutual negotiations between the two parties leading to an agreement in 1924. The details of that agreement, and the question whether it still subsists and binds the present Karnataka and Tamil Nadu (which cannot be wholly identified with the old Mysore and Madras), need not be gone into here. It is clear in any case that for the last three decades there has been a dispute between the two States which requires a fresh solution; and Kerala and Pondicherry, which were not parties to the 1924 agreement, are involved in the present dispute.

Talks between Karnataka and Tamil Nadu went on intermittently for over two decades from the 1970s but produced no results. The Government of India made unsuccessful efforts to bring about an agreement. Based on a report (1972) by a Fact-Finding Committee appointed by the Government of India, and further studies by an Expert Committee, an agreement was worked out in August 1976. The main elements of that attempted agreement were as follows: the existing utilisation of Cauvery waters was determined as 671 tmc ft (thousand million cubic feet), comprising 489 tmc ft by Tamil Nadu, 177 tmc ft by Karnataka, and 5 tmc ft by Kerala; savings were to be made in water-use by both Tamil Nadu (100 tmc ft) and Karnataka (25 tmc ft) over a period of 15 years; those savings were to be redistributed as 4 tmc ft to Tamil Nadu, 87 tmc ft to Karnataka, and 34 tmc ft to Kerala; and an inter-State Cauvery Valley Authority was to be established. The 'agreement' was even announced in Parliament. Unfortunately, the announcement was premature. Tamil Nadu was then temporarily under Central rule and it was felt that the agreement should wait for a popularly elected government; and when an elected government took over, it refused to ratify the understanding because it was not considered wholly satisfactory. The prospects of a resolution of the dispute which had seemed promising receded.

Thereafter the Central government continued to make efforts to settle the dispute, and there were also discussions at the level of the Chief Ministers, but the dispute remained unresolved. Eventually, in July 1986, Tamil Nadu made a formal request to the Government of India under the Inter-State Water Disputes Act, 1956 (ISWD Act) to set up a tribunal to resolve the dispute. For various reasons the Central government did not immediately establish a tribunal; it continued to favour a negotiated settlement. Meanwhile, a long-pending petition by some Tamil Nadu farmers to the Supreme Court of India for an assurance of irrigation water from the Cauvery came up for a hearing, and the Supreme Court, taking note of the failure of negotiations and the fact that a request from Tamil Nadu for a tribunal was pending, ordered the Central government to establish a tribunal within a month. The Government of India accordingly established the Cauvery Waters Tribunal on June 2, 1990. After 12 years of proceedings the Tribunal seems at last to be slowly nearing the end of its labours; it may be reasonably expected to give its final Award within the next six months or at least in a year's time.

Article 262 of the Constitution and the ISWD Act enacted by Parliament under that article are important components of Indian federalism: they provide for the adjudication of disputes between States over the waters of inter-State rivers. That mechanism seemed to be working reasonably well in earlier years, but has run into difficulties in recent times. In the Cauvery case, the adjudication process has been running a troubled course.

Nature of the dispute

The essence of the Cauvery dispute is a conflict of interests between a downstream State (Tamil Nadu) that has a long history of irrigated agriculture and has in the process been making substantial use of Cauvery waters, and an upstream State (Karnataka) that was a late starter in irrigation development but has been making rapid progress and has the advantage of being an upper riparian with greater control over the waters. To this dispute Kerala (an upstream State with a relatively modest demand for Cauvery waters) and Pondicherry (the lowest riparian with a very small demand) have become parties. Any fair sharing would have to provide for the legitimate interests of all four parties.

Unfortunately, driven by the forces of party politics, the governments of the two principal contending States have over the years generated and fostered strong chauvinistic sentiments among the general public, which tend to limit their own negotiating freedom and flexibility. The Cauvery is a fabled river with strong historical, religious, and cultural associations in both Karnataka and Tamil Nadu. In both States the mention of Cauvery waters evokes a strong emotional response. The dispute has become (or has been made to become) a major issue in electoral politics. In both States, all parties tend to take a strong stand on this issue, making it risky for whichever party is in power to give the impression of being weak or of failing to protect the interests of the State. That is the reason why this dispute has become so intractable.

Interim Order of 1991

Let us now look at the secondary dispute that arose from the Tribunal's Interim Order of 1991 (IO), particularly because it was in that context that popular frenzy led to tragic violence and introduced a new strain in the relationship between Tamils and Kannadigas. Fortunately, that episode soon came to an end, and a fragile calm has been prevailing during the last several years. But the situation is an unstable one and violence can easily erupt again.

The IO was passed by the Tribunal in response to Tamil Nadu's plea that pending the completion of the adjudication process which might take time, there was need for some assurance of water for irrigation in the Cauvery basin in the State. Initially the Tribunal took the position that it was not empowered to consider such an appeal for interim relief, but on an application by Tamil Nadu the Supreme Court ruled that the State's request for interim relief stood included in the terms of the Central government's reference to the Tribunal, and that the Tribunal could therefore consider it. The Tribunal then considered Tamil Nadu's plea and gave an IO to the effect that Karnataka should ensure an annual release of 205 tmc ft of Cauvery waters to Tamil Nadu (of which 6 tmc ft should go to Pondicherry). It also laid down a detailed monthly schedule of releases. (The Tribunal arrived at the figure of 205 tmc ft by taking the average of the flows of ten years from 1980-81, after eliminating abnormally good and bad years.)

Tamil Nadu wanted the Central government immediately to notify the IO in the gazette (as would be done in the case of the final order), and ensure its implementation. On the other hand, Karnataka felt that the IO was unfair and unimplementable, and sought to nullify it by promulgating an Ordinance for protecting the interests of the farmers of the State. Faced with this situation, the Central government made a reference to the Supreme Court for an opinion on certain issues. The Supreme Court gave the opinion that the IO should be notified, and that the Karnataka government's Ordinance was unconstitutional. The Central government then published the IO in the gazette, and proposed to set up a committee to monitor the implementation of the IO, but failed to do so because of strong opposition from Karnataka.

Karnataka let its Ordinance lapse, but continued to feel that the IO was unimplementable. It made a reference back to the Tribunal, but the Tribunal reaffirmed its order, observing that situations of abnormally low flows could be dealt with when they arose and that a pro rata adjustment could be made. However, it did not lay down a detailed formula for such contingencies. Opinion in Karnataka was strongly against compliance with the IO, and the government took no steps for its implementation. This caused no immediate practical difficulty because there were good rains for three successive years. However, Tamil Nadu was anxious that the binding nature of the IO should be recognised, and moved the Supreme Court for a direction that the IO should be implemented.

Meanwhile, rainfall was inadequate in 1995-96 and real difficulties were apprehended. Tamil Nadu went to the Supreme Court asking for an immediate release of 30 tmc ft by Karnataka (calculated with reference to claimed shortfalls in releases) to save the standing crops in Thanjavur. The Supreme Court asked Tamil Nadu to go to the Tribunal with its request. The Tribunal heard Tamil Nadu's plea and Karnataka's objections and ordered an immediate release of 11 tmc ft. As this showed no signs of happening, Tamil Nadu went back to the Supreme Court asking for a direction that the Tribunal's order for the immediate release of 11 tmc ft must be implemented. The Supreme Court chose not to issue any such direction (partly because it was shortly going to hear Tamil Nadu's pending plea for a direction regarding the implementation of the IO), but requested the Prime Minister to intervene and find a political solution by consensus, and failing that, to give his own decision regarding immediate relief. Prime Minister Narasimha Rao gave his decision in favour of an immediate release of 6 tmc ft and set up a committee to determine the water needs for saving the standing crops in both the States. After an all-party consultation Karnataka released 6 tmc ft. (The committee set up by the Prime Minister submitted a report, but the report was not made public; however, its contents gradually became known. In any case, it was of no great significance, as its remit was limited.)

Some confusion was undoubtedly created by the return to the political arena after an order by a judicial authority (the Tribunal) and the virtual supersession of that order by a decision of the Prime Minister. This raised questions regarding the status of the Tribunal's orders and the implications of non-compliance with those orders. It was hoped that those issues would be resolved when the Supreme Court finally heard and passed orders on Tamil Nadu's pending petition on the implementation of the IO.

Cauvery River Authority

That never happened. At one stage, in response to a query by the Supreme Court, the Central government stated that it proposed to establish a machinery (as provided for in Section 6A of the ISWD Act) to oversee the implementation of the IO. In pursuance of that indication, it circulated a draft notification in 1997 seeking to establish an official-level, professional-cum-bureaucratic Cauvery River Authority (CRA), but this was strongly objected to by the Karnataka State for many reasons, one of them being that the Authority would have been vested with far-reaching executive powers (including the take-over of the State reservoirs). Eventually, in 1998, a political (as distinguished from a professional or executive) CRA was set up, with the Prime Minister heading it and the Chief Ministers of the four States (Karnataka, Tamil Nadu, Kerala and Pondicherry) as Members. This was underpinned by an official-level Monitoring Committee headed by the Union Water Resources Secretary which would determine the facts in respect of complaints of non-implementation of the IO and service the political body. Under the circumstances then prevailing (which we need not go into here) the Tamil Nadu government accepted this arrangement and withdrew its pending petition from the Supreme Court.

It must be noted that the CRA is not really an 'Authority' at all. It has no river-management or basin-planning functions. It is not at all like the famous Tennessee Valley Authority (TVA) or even our limited Damodar Valley Corporation (DVC) based on the TVA model. The CRA is not a permanent standing body of professionals vested with executive or managerial powers. It is a purely political committee (doubtless at a very high level), and its function is the limited one of consensus-promoting in the event of a dispute over the implementation of the IO. However, given the discord between the two States, even the limited agreement implied in that problem-solving mechanism, imperfect and ineffective as it might seem, was seen as a positive development and was generally welcomed. Unfortunately, the CRA has not been very effective even in the discharge of its limited role in relation to the IO. In any case, the IO is only of temporary significance, and will cease to be relevant once the Tribunal gives its final order. It must be noted that when the IO ceases to be in force, the CRA too will become functus officio unless it is given a fresh role in relation to the final order of the Tribunal.

Recent developments

We now come to the recent developments. The AIADMK party had earlier been critical of the DMK government for accepting what in its view was an ineffective political CRA and withdrawing its petition regarding the implementation of the IO from the Supreme Court. The AIADMK is now in power. A distress year has occurred again, and a controversy has erupted between the Tamil Nadu and Karnataka governments over the release of Cauvery waters by the latter.

The Tamil Nadu government, in its dissatisfaction with the functioning of the CRA, decided to refrain from participating in it. Instead, it went to the Supreme Court again on the issue of implementation of the Tribunal's Award. This was considered an unwise move not only by the DMK but also by some others in Tamil Nadu. As was only to be expected, the Supreme Court directed the Tamil Nadu government to go back to the CRA, and also urged the machinery of the CRA to function speedily.

Unfortunately, at its last meeting, the CRA was unable to settle on a distress-sharing formula, but proposed to take it up at a further meeting. Pleading an emergent situation, the Tamil Nadu government went back to the Supreme Court complaining about the CRA's failure and asking for immediate relief. Karnataka argued that it was very short of water and in no position to release any water to Tamil Nadu. Having heard both sides, the Supreme Court directed Karnataka to release 1.25 tmc ft of Cauvery waters every day to Tamil Nadu, pending the declaration of an agreed distress-sharing formula by the CRA. Once the CRA decides on this, the Supreme Court's direction will cease to operate.

After an all-party consultation and a Cabinet meeting, the Karnataka government has said that it would honour the Supreme Court's direction, but has added that the interests of the Karnataka farmers would not be allowed to suffer. Precisely what that dual statement means will become clear in the near future. Meanwhile, the Karnataka government has urged the CRA to meet quickly and take a final decision.

Main dispute: hard positions

These developments in relation to the IO have tended to distract attention from the main dispute, which is still before the Tribunal. As for that dispute, the apprehensions and grievances underlying the positions of the two principal disputants need to be taken note of.

Karnataka feels that its late start on irrigation development should not mean any curtailment of its rights to make the fullest possible use of Cauvery waters for agricultural and other development. It has a grievance regarding the past: it is of the view that the interests of Mysore, a princely State, were subordinated to those of Madras, a part of British India, and that the 1924 agreement was an unfair one. That charge has been questioned, and it has been argued by some in Tamil Nadu that the Government of India and the Secretary of State were even-handed between the two parties; that the 1924 agreement was the result of hard negotiations and was fair to both sides; and that it was welcomed by the then Dewan of Mysore. Be that as it may, the sense of grievance exists and must be taken note of.

However, in the years following that agreement, both sides proceeded to expand the area under irrigation and neither strictly conformed to the limits imposed by the agreement. Thus, even if Karnataka's grievance regarding the old agreement were justified, that grievance has perhaps not much relevance now. In any case, Karnataka has been able to construct a number of storages on the Cauvery system. It tends to assume a primacy of rights as an upper riparian over Cauvery waters, with only the residuary flows going to Tamil Nadu, thus virtually if not explicitly invoking the Harmon Doctrine (of territorial sovereignty, including sovereignty over the waters that flow through the territory).

Tamil Nadu, as the lower riparian, feels threatened because its long-established irrigated agriculture based on a substantial use of Cauvery waters, with a centuries-old history behind it, is now vulnerably dependent on diminished and diminishing flows as a result of upstream development. From time to time, in years of inadequate or poor rainfall, Tamil Nadu finds itself obliged to seek small releases from Karnataka. It feels that this dependence on the goodwill and generosity of its upstream neighbour puts it in a precarious position; it would prefer to obtain a clear recognition of a legal right to a share in the Cauvery waters. It therefore tends to take a legalistic stand on past agreements and on the principle of prescriptive rights arising from prior appropriation.

Each State has thus taken a stand on what it considers its rights: Karnataka asserts an unqualified right to use Cauvery waters for the benefit of its farmers, and Tamil Nadu insists on its right to historic flows and the permanence of the 1924 agreement. We have to get away from both those untenable propositions. Neither the Harmon Doctrine nor the doctrine of prescriptive rights has wide acceptance; the principle that stood enshrined in the old Helsinki Rules, and was favoured by successive tribunals, was that of equitable apportionment for beneficial uses.

Tamil Nadu must realise that historic flows cannot be restored; that it cannot hold a veto on upstream development; that it must learn to live with reduced flows; and that it can do so through a combination of better water management, avoidance of waste, local conservation of rain water, conjunctive use of surface water and groundwater, changes in cropping patterns, and so on. Karnataka must recognise that Tamil Nadu is a co-riparian with a right to share in the waters of the common river and not a poor relative asking for charity; that long-established irrigated agriculture and the way of life built around it should not be unduly disrupted; and that the abstraction of water by the upstream State should not be done in such a manner as to cause serious difficulties ('substantial harm' in the language of the old Helsinki Rules or 'significant' adverse effects in the language of the 1997 U.N. Convention relating to international water-courses) to the downstream State. With that kind of wisdom on both sides there should be no difficulty in arriving at a fair and reasonable settlement, which would also take care of the needs of Kerala and Pondicherry (Karaikal).

What needs to be done?

Given the rigid positions of the two State governments and the perceived political risks of compromising (or seeming to compromise) on those positions, how is an agreement to be brought about? It was precisely that difficulty that led to the establishment of a Tribunal. There was a view that a negotiated agreement was impossible and that adjudication was the only way out. Whether that view was right or wrong, the Tribunal was established and is now in the final stages of its work. It is a mechanism provided by the Constitution. The best course now would be to await and accept the results of the adjudication process.

There is no reason to fear that the Tribunal, which is a judicial body presided over by a distinguished judge, will be anything other than fair and objective. Karnataka suggested earlier that the Tribunal's proceedings should be suspended until a set of 'guidelines' or a 'national policy' on the principles that should govern the sharing of the waters of inter-State rivers was formulated and adopted by the National Water Resources Council (NWRC), but the prospects of a national consensus being reached on water-sharing principles are far from bright. Nor is it clear that the process of conflict-resolution will be greatly facilitated by any document that emerges from such an exercise: it is unlikely to set forth any principle other than that of equitable sharing which successive tribunals have been trying to apply, and it is bound to be couched in very general terms that will still need detailed elaboration and application in each case with reference to the facts and circumstances of the case. A process of negotiations or adjudication in each case seems inescapable. Fortunately, despite its earlier reservations Karnataka has in fact been participating actively in the proceedings of the Tribunal, and as mentioned above, it appears that we can expect the final award of the Tribunal in the not too distant future.

At the same time, even at this late stage, conciliation efforts need not be ruled out. If a group of eminent persons commanding respect in the two States could undertake such an effort, and is able to persuade the parties to arrive at an agreement, then the agreement can be reported to the Tribunal and converted into an award, thus giving it a statutory backing.

However, whether a negotiated agreement is reached or the adjudication process is completed and an Award is received, the ground for its acceptance and implementation has to be prepared in advance. It is necessary to rescue public opinion from the miasma of error, confusion, prejudice and anger that has tended to cloud it, and create a climate which is favourable to the acceptance of a reasonable settlement, whether it results from conciliation or adjudication. This requires a campaign in both States by persons of goodwill. Efforts in this direction were initiated some years ago, but they seem to have petered out.

Will the final Award of the Tribunal, when received, mark the end of the dispute or the beginning of further trouble? Will good sense prevail, or will ill-informed public opinion and the short-sighted calculations of party politics render rationality impossible? We must hope that the former will be the case.

Ramaswamy R. Iyer, former Secretary, Water Resources, in the Government of India, is Honorary Research Professor at the Centre for Policy Research, New Delhi. He has been a consultant to the World Bank in a review of water sector strategy, a Consultant to the World Commission on Dams for a study of India's experience with large dams, a Member of India's National Commission on Integrated Water Resource Planning, and a Member of the 'Vision 2020 Committee' of the Planning Commission. His forthcoming book on Water: Perspectives, Issues, Concerns will be published by Sage Publications.