Need or greed?

Published : Oct 25, 2002 00:00 IST

The case of Karnataka, the upper riparian State on which "a British legacy was imposed".

WHEN a railway line was sought to be laid between Mysore and Bangalore, queries were raised promptly: "How does it benefit Madras?" The reply was readily given: "This line would facilitate transport of Kodagu coffee to Madras." In the opinion of J. Benton, Inspector-General of Irrigation (1908), "the Madras government is very much concerned in any works executed on the Cauvery river; it is probable that the storage work which Mysore State proposes to construct on this river will be designed to hold up monsoon flood water for utilisation of the water to be got from the same in the cold weather when the supply is very low; if this is the proposal, the works would be more beneficial than harmful to the Madras irrigation system on the Cauvery."

This is not an Arabian Nights story, but part of the history on the pages preserved in the archives in Karnataka. The British legacy was perpetuated first with the imposition of the 1892 Agreement on the Cauvery, which prohibited the construction of any dam in the erstwhile Mysore State, whereas dozens of dams for the purposes of irrigation and power generation continued to be built in Tamil Nadu. The 1924 Agreement was again imposed on the erstwhile Mysore permitting only one dam, at Krishna Raja Sagar, which can irrigate not more than one lakh and a few thousands of acres of land. This agreement lasted for 50 years, till 1974. Although there is no subsisting agreement today, the spill-over of the British legacy has cast a shadow on irrigation and power development in Karnataka. At the time of the signing of the first agreement of 1892 and of the second agreement of 1924, Madras was under direct British rule and Mysore was a vassal state. The agreement, which was imposed upon Karnataka and welcomed by the then Dewan of Mysore, cannot be called an agreement. It was biased and not even-handed.

THERE are mainly three doctrines governing the legal position of the water dispute. The Harmon doctrine says that the upper riparian State is entitled to stop the flow of water falling within its territory. Karnataka, though being upper riparian, does not follow this. The opposite of this doctrine entitles the lower riparian to receive the natural flow, and prohibits the upper riparian from stopping water altogether except for drinking purposes. This is what is insisted upon by Tamil Nadu and also incorporated in the alleged agreements of 1892 and 1924. The third doctrine is based on the Helsinki rules and envisages equitable apportionment for beneficial users. Tamil Nadu cannot expect the country or the comity of nations to bend to the fanatical and extremist approach. None of the countries, including the United States, subscribes to this view; nor do any of the basins, such as Narmada and Indus valley. Such views of the Tamil Nadu government are universally condemned. The 1997 United Nations convention relating to international water resources has further strengthened the principles of cooperative federalism in relation to water disputes. Equitable apportionment is the only rule governing water disputes. Karnataka fully subscribes to this view, which is very much in consonance with the universal governance of water disputes. Tamil Nadu must realise the limitations of its claim and fall in line with the universal principles.

It is quite interesting that Tamil Nadu does not account for the 119 tmc ft of groundwater as estimated by the United Nations Development Programme (UNDP) in 1969. In fact, 220 tmc ft of water is internally available for Tamil Nadu, as admitted by it, apart from the above said quantum of ground water. The Supreme Court, on September 3, 2002, directed Karnataka to release water from its four reservoirs so as to ensure 1.25 tmc ft every day at the Mettur reservoir in Tamil Nadu, until the Cauvery River Authority (CRA) met and finally decided on the distress formula. Accordingly, the CRA met on September 8, and decided that "Karnataka should release waters from its reservoirs so as to ensure an inflow of 9,000 cusecs, viz., 0.8 tmc ft per day at Mettur accounted on a weekly average basis for the months of September and October 2002".

The Cauvery Water Dispute Tribunal, on June 25,1991, had directed Karnataka to regulate its reservoirs so as to ensure the release of 205 tmc ft to Tamil Nadu in a year on a monthly and weekly basis. On April 3, 1992, the Tribunal clarified that "if in future a situation of distress is caused by diminution in the supply of water for meeting the releases ordered, the similar method of pro rata sharing of the distress can always be adopted". Later, on December 19, 1995, the Tribunal clarified: "In a particular year, shortfall or excess in releases would have to be adjusted in an appropriate manner before the close of the particular season. Distress as contemplated in our Order dated 3rd April 1992 does not envisage that it will be in relation to a particular month. In deciding whether the distress situation prevails, one ought to consider the precipitation in the entire season and not mere slackness in rains in any particular month or months." The Union government, on August 11, 1998, constituted a scheme under Section 6 A of the Inter-State Water Disputes Act, 1956, creating the CRA to "give effect" to the Interim Order of the Tribunal and also a Monitoring Committee to assist it.

Failure of the southwest monsoon in the Cauvery basin in Karnataka is an accepted situation. But the question is, what is its impact on the quantum of water to be ensured at Mettur reservoir. The Tribunal, while enunciating the rule of pro rata sharing in the event of situation of distress, has not defined the meaning of these terms. Tamil Nadu has been arguing that the distress should be determined by reference to flows of six years between 1981 and 1991. According to Tamil Nadu, the shortfall in the flow is about 45 tmc ft as on September 1. However, Karnataka has been arguing in favour of taking the long-term average of the periods of 1972-73 to 2001-02 to determine the distress. Apart from this, Karnataka has also asked for flexibility in the distress formula, such as giving appropriate credit for the benefit of the northeast monsoon rainfall and the availability of a large quantum of ground water in Tamil Nadu. A compromise formula has emerged temporarily, which is worked out by taking the last 11 years' flows to determine the distress. As per this formula, the shortfall is 26 tmc ft as on September 1.

If Karnataka were to ensure 9,000 cusecs a day at the Mettur reservoir for the next 52 days, the total quantum would come to around 41 tmc ft.

1. Karnataka has to wipe out 26 tmc ft, which is the shortfall until September 1.

2. Karnataka has to ensure another 20 tmc ft, as against 59.53 tmc ft as ordered by the Tribunal during September and October. However, about 5 tmc ft has already gone between September 1 and September 9. Therefore, the balance to be ensured is only 15 tmc ft until the end of October 2002.

3. Thus the total is 26 tmc ft plus 15 tmc ft, that is 41 tmc ft.

Karnataka will have at its disposal the following quantum of water by the end of October 2002: i. The active storage in Karnataka was about 43 tmc ft on September 9; ii. The four reservoirs in Karnataka anticipate about 36 tmc ft of water during September-October, which is the minimum quantum generated in the last 11 years (September 1999-2000 and October 1995-96); iii. The intermediate catchment area, that is the area between the Karnataka reservoirs and the inter-State border, would in any case generate 40 tmc ft, which is the minimum quantum generated in the last 11 years (September 1999-2000 and October 1995-96).

4. Thus, the total quantum of water that should be available at the disposal of Karnataka:

43 tmc ft Active storage36 tmc ft Likely inflow

40 tmc ft Likely quantum of water in the intermediate catchment area

119 tmc ft Total

The above calculations are premised upon normal conditions prevailing. It is likely to fail, taking into consideration the present trend.

The above analysis shows that Karnataka will have about 78 tmc ft (119 tmc ft minus 41 tmc ft) of active storage by the end of October to meet its own requirement. In the last 11 years, the minimum active storage Karnataka had on November 1 was 74 tmc ft in 1995.

The Mettur reservoir, by the end of October 2002, will get the following quantum of water:

i. A quantum of 31 tmc ft was available on September 1.

ii. A quantum of 6.25 tmc ft as per the Supreme Court Order dated September 3 at the rate of 1.25 tmc ft a day.

iii. A quantum of 41 tmc ft of water as per the CRA's decision dated September 8 at the rate of 9,000 cusecs a day.

iv. The total: 31 tmc ft plus 6.21 tmc ft plus 41 tmc ft add up to 78.25 tmc ft.

v. The minimum withdrawals in September and October were 51.2 tmc ft (from 1992-93 to 1995-96).

vi. The remaining storage at Mettur at the end of October should be 78.25 tmc ft minus 51.2 tmc ft, that is 27.05 tmc ft.

Between November and March, the Mettur reservoir received a minimum of 52.8 tmc ft in 1995-96. Thus, the total quantum of water at the command of the Mettur reservoir between November and March will be 58.2 plus 27.05, that is 85.25 tmc ft. This quantity of water is sufficient to irrigate the samba rice crop under the Mettur system. It may be recalled that in 1987-88, a drought year, Tamil Nadu had withdrawn a total of only 72 tmc ft only from Mettur to produce a record rice crop, as per a publication from the Department of Agriculture, Government of Tamil Nadu. (The name of the publication was `Challenge'.)

Under the Mettur system, the total samba cultivation is between 16 and 17 lakh acres of paddy which is a longer-duration crop of 130 to 150 days. It is as good as a double rice crop. It was reported that farmers in the Cauvery basin, particularly from Thanjavur district, have started eating rats in view of alleged starvation. The undivided Thanjavur district, which is now sub-divided into Thanjavur, Nagapattinam and Mayiladuthurai districts, is one of the richest districts in the country and is the richest in South India. It is common knowledge that farmers in south India eat some varieties of rats and it is quite delicious. Hence there is no scope for dramatising or sensationalising such an incident. At the most it can serve as a temporary instrument for emotional blackmail.

The total availability of Cauvery basin water is 780 to 800 tmc ft with 50 per cent dependability. The claim of Tamil Nadu for 566 tmc ft, leaving only 225 tmc ft to Karnataka, Kerala and Pondicherry, is totally inequitable and unjust.

Even according to data available subsequent to the passing of the interim order in 1991, the flow into Tamil Nadu, that is, Mettur, as recorded is on an average 296.44 tmc ft per annum. Even as late as 2000-01, a quantum of 316.89 tmc ft flowed into Mettur, and in 2001-02, 189.94 tmc ft has flowed in as against the 205 tmc ft ordered under the Interim Order. Hence, the charge of Tamil Nadu as presented to the media is totally baseless. In fact, a lot of injustice has been done for a century and the damage is perpetrated even today and Tamil Nadu has always walked away with a smile. This reminds us of the story of Shylock's greed in Shakespeare's The Merchant of Venice.

IN fact, the `water war' between Karnataka and Tamil Nadu started in 1989 when the Government of India under the prime ministership of V.P. Singh, through its Additional Solicitor-General, submitted to the Supreme Court that Government of India has no objection to the constitution of the Cauvery Water Tribunal. It was on the same day, when negotiations were scheduled to be held in Madras (now Chennai) by Manubhai Kotadia, the then Union Minister for Water Resources, with the Chief Ministers of Karnataka and Tamil Nadu, that this hasty decision was taken. Hence, the Government of India precipitated this battle over Cauvery water when Veerendra Patil, the then Chief Minister of Karnataka, negotiated with M. Karunanidhi, the then Chief Minister of Tamil Nadu, in Madras. In fact, earlier to this decision of the Government of India, former Prime Ministers Jawaharlal Nehru, Lal Bahadur Shastri, Indira Gandhi and Rajiv Gandhi always took pains to resolve this issue on the principle of negotiated settlement. In 1974 and 1976 draft agreements were prepared and kept ready for signatures of the basin States. It was Tamil Nadu that suddenly turned back. The said agreements were based upon objective data collected by the UNDP and the fact-finding committee. History was repeated when the Attorney-General of India, on April 4, 1997, submitted to the Supreme Court that the "Government of India was agreeable to frame a scheme under Section 6 A of the Act for the implementation of Interim Award of the Tribunal". It was, again, at the time when bilateral negotiations were in progress and when the Government of India had promised the finalisation of guidelines on the National Water Policy. These are all, unfortunately, the results of aberrations of weak coalition governments at the Centre.

The mandatory requirement of formulating the National Water Policy based on the Inter-State Water Disputes Act ,1956, was evolved only in 1986. But the policy remained on paper as the guidelines on the policy are yet to see the light of day. Even the draft, which was sought to be placed for approval, failed to give emphasis to the principle of equity enshrined in the water law reform process. India shares many historical similarities with South Africa. Both the countries inherited the legacy of colonial rule. South Africa came out with an ideal water policy and guidelines. In India, the privilege of access to water was substantially ensured to those States that were ruled directly by the British as against the interests of the vassal states. It is a tragedy that in post-Independence India, both the executive and the judiciary are inclined to approve the status quo, which were perpetuated by inequitable conventions. The country still has the Stockholm syndrome in water policy. Our policies even violate the U.N. conventions as adopted in May 1997.

In India's history of water disputes, it is for the first time that the Supreme Court has interfered in the matter of the constitution of the Cauvery Water Disputes Tribunal and also in the subsequent events of Interim Order, though the jurisdiction of the courts was taken away under the provisions of the Constitution. Of course, the judiciary cannot be blamed as it was/is the Government of India that always abdicated its constitutional obligations whenever the matter concerned Karnataka, particularly with reference to the waters of the Cauvery and the Krishna. At no point of time was Section 6 A of the Inter-State Water Disputes Act invoked before the final award was passed, as in the case of Karnataka.

It was P.V. Narasimha Rao who, even before the establishment of the CRA, requested H.D. Deve Gowda, the then Chief Minister of Karnataka, through his letter dated January 1, 1996, in pursuance of the directions from the Supreme Court decision on the following:

a. Immediate steps to be taken to save the crops in Tamil Nadu from withering away; and

b. Seeing to it that the standing crops in Karnataka are preserved.

The above concern of the then Prime Minister is worthy of special mention. The area of standing crops under the four reservoirs in Karnataka is as follows:

Sugarcane: 94,643 acres; paddy 3,89,120 acres; semi-dry crops 1,31,110 acres; and garden 1,71,183 acres (Total: 6,32,056 acres).

The irrigation figures in 1971 revealed that Madras (Tamil Nadu), with 52 per cent of the basin area and contributing only 32 per cent to basin flows, had as much as 42.3 per cent of its sown area under irrigation, claiming 70 per cent of the basin flows. On the other hand, Karnataka with 42 per cent of the basin area and with a contribution of 53 per cent to the basin flows, had only 19 per cent of its sown area under irrigation, utilising a meagre 20 per cent of flows.

It is also to be noted that out of 175 taluks, 150 taluks have been affected by drought, and in the said list 48 taluks are situated in the Cauvery basin and, according to the Irrigation Commission, 34 are largely drought-prone, and in the current year, out of 48 taluks, 45 have received rainfall, almost 40 per cent less than normal, and the said taluks are suffering acute drought. In contrast, none of the Cauvery basin taluks of Tamil Nadu is suffering drought.

Mahatma Gandhi said that the earth has enough to meet the needs of everyone, but not their greed.

M. Veerappa Moily is a former Chief Minister of Karnataka. Currently he is the Chairman of the State's Revenue Reforms Commission.

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