Supreme Court's Role

Caught in a tangle

Print edition : October 14, 2016

Fali S. Nariman, the counsel for Karnataka. Photo: R.V. Moorthy

The Supreme Court finds it difficult to extricate itself from the Cauvery conundrum even as the disputing States continue to test its ability to adjudicate on the issue.

THE nearly three hours of acrimonious hearing in the Supreme Court before a two-judge bench on the afternoon of September 20 on the Cauvery dispute appeared to be just the tip of the iceberg. The arguments of the counsel for Karnataka, Fali S. Nariman, and the counsel for Tamil Nadu, Shekhar Naphade, were so bitter that adjudication of the dispute must have seemed like a big challenge to the court. It passed an interim order directing Karnataka to release 6,000 cusecs of water a day to Tamil Nadu until September 27, the next date of hearing, even while its helplessness in the face of Karnataka’s open defiance of the direction in court was obvious to all. On the one hand, the court, to many observers, is nowhere near a solution, which has been elusive for more than one and a half centuries. On the other, it finds itself inextricably tied to the dispute between the two States, with its past decisions casting a shadow over the current litigation relating to the sharing of the river water in a distress year.

Inexplicable order

The outcome of the September 20 hearing, for instance, was as inexplicable as the direction of the Cauvery Supervisory Committee, which the Supreme Court’s order that day aimed to replace. The bench, comprising Justices Dipak Misra and Uday Umesh Lalit, doubled the quantum of Cauvery water that Karnataka had to release to Tamil Nadu, from 3,000 cusecs a day, as fixed by the committee only on September 19, to 6,000 cusecs. It was not so much the court’s fixing the quantum of water to be released that was baffling as was the fact that it doubled the quantum in such a short span of time.

The court’s decision was as irrational as the direction of the committee. It was as if the court’s order was made to snub the Supervisory Committee, which erroneously believed it had the adjudicatory power to direct water release when it was faced with contentious claims by the two States. Assuming the committee was wrong in its perception of its powers, observers asked, how was the court justified in simply doubling the quantum decided by it without any rationale?

Although the order is silent on the reasons for the Supreme Court’s dissatisfaction with the committee, the observations of the bench during the hearing were a pointer to what might have been weighing in the minds of the judges. Justice Dipak Misra observed: “This is not the way we started. We wanted the Supervisory Committee to report to us.” Nariman kept reminding the bench that its September 5 order expected the Supervisory Committee to issue directions. Therefore, he suggested that the bench’s questioning its September 20 direction appeared to be inconsistent with that order.

In its September 5 order, the bench asked both States to approach the committee with their grievances, asking it to pass appropriate direction within 10 days. While doing so, the bench clarified that the committee was bound by the language used in the final order passed by the Cauvery Water Disputes Tribunal (CWDT) in 2007. That day, the bench directed Karnataka to release 15,000 cusecs of water a day to Tamil Nadu until September 16.

On September 12, when the bench heard the matter on a holiday, following Karnataka’s plea for an emergency hearing claiming it could not comply with the court’s previous order, the court reminded the committee that it was an expert body and was required to take a decision in conformity with the final order of the CWDT.

Balancing the pleas of both the States, the bench agreed to reduce the quantum from 15,000 cusecs to 12,000 cusecs a day but, ironically, extended the period of release of water from September 16 to September 20, when the case was listed for hearing again. With the bench indicting Karnataka for citing extraneous reasons such as the worsening law and order situation in the State for the review of the court’s September 5 order, and Karnataka offering its regrets for this unjustified stand in its affidavit, the import of the extension of time did not immediately register on Karnataka’s counsel. When Karnataka realised that it had to cumulatively release more water to Tamil Nadu because of this unnoticed extension of the period, it was too late. It was as if Karnataka had to suffer the loss of more water because it had sought an emergency hearing on September 12.

On September 20, when the matter came up before the bench again, Karnataka realised there was no point in raking up the September 12 setback as it now had to resist any further release of water if the ruling party in the State was to avoid political isolation. This probably explains Nariman’s aggressiveness at the hearing that day. He did not care if his posture of refusal to comply with the court’s interim order was understood as a sign of defiance, which is uncharacteristic of his long stint at the Bar.

One could only infer that the bench had prima facie concluded that the Supervisory Committee’s direction was not in conformity with the final order of the CWDT. The bench’s request to both counsel to submit their objections to the committee’s direction within three days was thus an essential step in facilitating the adjudication.

Those present in the courtroom that day will better understand the bench’s concerns, with both Karnataka and Tamil Nadu challenging the committee’s directions for different reasons, and the Centre playing the role of a hapless spectator. While Karnataka found even the direction to release 3,000 cusecs of water to Tamil Nadu flawed, Tamil Nadu found the same insufficient.

The bench was curious to know whether the committee could take a decision on this in the absence of a consensus between the two States. Questioned whether the committee had taken the decision under the notification that created it, Additional Solicitor General Pinky Anand told the bench that she had to verify whether this was so. The committee’s order, as Justice Lalit had observed, did not explain how the Chairman had arrived at the figure of 3,000 cusecs a day for 10 days as the required quantum of water to be released from September 19 to Tamil Nadu.

The bench was perplexed by the committee’s direction and decided to dig into the committee’s origin, nature and scope in the limited time available to arrive at an interim solution.

The Supervisory Committee was constituted on May 22, 2013, in pursuance of the Supreme Court’s interim order dated May 10 and has the Secretary, Union Ministry of Water Resources, as its Chairman and the Chief Secretaries of Karnataka, Tamil Nadu, Kerala and the Union Territory of Puducherry as its members. The Chairman of the Central Water Commission was included as another member, and the Chief Engineer, Central Water Commission, is its Member-Secretary. In the 2013 notification setting up the Supervisory Committee, the Centre clearly noted that it was purely a temporary measure until a permanent scheme, namely, the Cauvery Management Board (CMB) as recommended by the CWDT’s final order dated February 5, 2007, was considered and constituted.

The role of the committee is to give effect to the implementation of the final order, and in the event of any doubt or difficulty, the Chairman, Supervisory Committee, and, if necessary, any of the parties may apply to the Supreme Court for appropriate directions with notice to the other States and the Union Territory. Although the bench did not explicitly say so during the hearing or in the order it issued on September 20, it is clear that it considered the absence of consensus on the quantum of water release from Karnataka to Tamil Nadu a “doubt” or “difficulty” that the Chairman was expected to bring to the notice of the Supreme Court and seek its directions, rather than taking a decision on his own.

The order rightly notes Nariman’s submission that the committee’s order is absolutely based on no reason and, in fact, the tenor of the language reflects that it is a view the Chairperson alone expressed, and there is no justification to direct Karnataka to release the water at the rate of 3,000 cusecs a day for 10 days. The order adds that Tamil Nadu’s counsel too criticised the direction of the committee with regard to the quantum.

Cauvery Management Board

The disappointment with the functioning of the committee has forced the bench to issue a direction for the immediate setting up of the CMB, as directed by the Tribunal in its final order. The bench initially gave the Central government two weeks to set up the CMB, but when Pinky Anand sought four weeks’ time, the bench conceded but reminded her that there was to be no stay on its constitution, and the government had to go ahead and do so immediately.

The curious thing, however, is that the Supreme Court woke up rather belatedly to the need to set up the CMB. In 2013, when it directed the setting up of the Supervisory Committee as an interim measure, it appeared as if the formation of the CMB was not easy. It was Karnataka’s perceived opposition to it that forced the Central government to postpone a decision on the CMB.

Even on September 20, Pinky Anand cited the pending litigation before the Supreme Court as the reason for the Centre not constituting the CMB. A look at the order dated May 10, 2013, does not help one understand why the court did not then feel that the CMB must be constituted even though there were appeals against the CWDT’s final order pending before it.

The hearing on September 20, however, changed all that, with Karnataka’s counsel himself reminding the Supreme Court that the CMB was yet to be set up, and the substitution of its role by the Supervisory Committee was most dissatisfactory. It was as if the court understood, out of the blue, the relevance of the CMB to adjudicate on the dispute, and also realised that there was no valid reason to delay its constitution any longer.

The CMB, as recommended by the CWDT, is to consist of a whole-time Chairman and two whole-time members, to be appointed by the Central government. The post of the Chairman is to be held by an irrigation engineer of repute of the rank of Chief Engineer having not less than 20 years of experience in the field of water resources management. The members of the Supervisory Committee, in contrast, were all ex officio serving bureaucrats, not necessarily with any expertise in irrigation or water resources management. This was one reason why it could not fulfil the Supreme Court’s expectations.

Besides, the CMB has other advantages over the Supervisory Committee. The CMB is to comprise six part-time representatives: two of them to be nominated by the Centre and one each to be nominated by the States of Karnataka, Tamil Nadu and Kerala and the Union Territory of Puducherry. The CWDT has made it clear that these members too must be drawn from the fields of irrigation, water resources or public works. An irrigation engineer, not belonging to any party State, and not below the rank of a Director/Superintending Engineer, without a voting right, is to be appointed by the CMB as its Secretary. Six members shall form a quorum, and the concurrence of the majority shall be necessary for the transaction of the business of the CMB except such business as it may from time to time prescribe as routine. The members shall have equal powers.

The CWDT has laid down that if a meeting is postponed for want of a quorum, then the next meeting will be held within three days, and for that meeting a quorum will not be necessary. These rules are expected to make the CMB functional and effective, with all the States complying. The CWDT also envisages the constitution of a committee, known as the Cauvery Water Regulation Committee, with eight expert members having knowledge of irrigation and water resource management.

In its September 20 order, the bench expressed optimism over the effectiveness of the CMB’s resolution mechanism. The question, however, is whether the Centre and the States concerned will contribute their bit to make it a success.

Basic differences

The September 20 order has brought to the fore the basic differences of perception between Karnataka and Tamil Nadu about the CWDT’s final order. According to Karnataka, the CWDT has not determined in absolute terms the distribution of water for the language employed is tentative in character. Tamil Nadu, on the other hand, has submitted that it is not tentative and that the CWDT has referred to the concept of proportionality in the case of a distress year, and left it to be monitored by the competent authority, as mentioned in its final order. Tamil Nadu’s contention is that even if it is assumed that the CWDT’s order has any characteristic of tentativeness, Karnataka cannot take the position that it will not release any water.

The September 20 order reveals that Karnataka has seriously opposed the percentage of deficit being put at 48 per cent. According to Nariman, it cannot be determined at this stage because the deficit can be only determined at the end of the season, not midway. He also opposed with all the vehemence at his command any kind of pro tem arrangement made by the Supreme Court, saying that this would be absolutely erroneous and not permissible.

The bench, however, disagreed, and felt that the issue could not be deferred further, and procrastination would not be apt. The bench noted that the CWDT had fixed 192 thousand million cubic feet (tmc ft) for a normal year in favour of Tamil Nadu and carved out a monthly allocation from June to May, called the “Water Year”.

The bench took note of Nariman’s concern that it was not a normal year and therefore there had to be an adjustment in the monthly allocation of water to Tamil Nadu. It also considered another concern of his: that Karnataka was in great misery as far as the supply of water was concerned, and if compelled to share water, it would be unable to meet the drinking water requirements of the residents of Bengaluru.

Naphade, however, told the bench that the monthly allocation by the CWDT was rational as it had taken into consideration the various crops grown in Tamil Nadu and its seasonal requirement. He also suggested that both States had to embrace the principle of adjustment in a deficit year. In his view, the CWDT had really considered only one-third of Bengaluru as being covered by the water basin. He also claimed that Tamil Nadu stored more than 50 tmc ft water to provide for irrigation.

The bench has noted that the deficit, though disputed by both sides, is approximately 48 per cent, as stated by the committee.

Whether the Supreme Court succeeds in persuading both States to reach a compromise on the distress-sharing formula in the coming weeks will be an acid test of its adjudicatory role.