A Cauvery debate

On the points raised at a debate in Bangalore.

The Cauvery river water dispute is of long standing. In years where there is a serious rainfall deficit, it generates fierce socio-political controversy and strong public emotions. The dispute involves chiefly two neighbouring States, Karnataka and Tamil Nadu, which are locked into untenable and conflictual positions that have stood in the way of an amicable solution. Karnataka takes its stand on the Harmon Doctrine of territorial sovereignty, including sovereignty over the waters that flow through the State's territory. Tamil Nadu, on the other hand, bases its position on the doctrine of prescriptive rights arising from past and prior appropriation.

Ramaswamy R. Iyer, former Secretary, Water Resources, in the Government of India, is one of the leading experts on water resource issues and on the Cauvery dispute in particular. He is one of the influential public voices advocating efforts towards a reasonable and lasting settlement of the dispute, through conciliation or adjudication.

In this article, Ramaswamy Iyer reports on an informal discussion on the Cauvery Dispute that took place recently in Bangalore at his initiative. The group was a small non-official (largely professional) one. At the outset, he referred to the recent developments and stressed the need for a `civil society' initiative to find a solution to the problem, as also to promote goodwill between the peoples of the two States. The discussions that followed covered many points. This article aims at bringing those points to the notice of a wider audience.

In the following paragraphs, the author sets forth the points raised (in italics and within inverted commas) and comments on them.

(1) "The Supreme Court has no jurisdiction."

(This point was made with reference to the recent and continuing proceedings in the Supreme Court.)

It is true that once a dispute on an inter-State river is referred to a Tribunal under the Inter-State Water Disputes Act 1956, (ISWD Act), the jurisdiction of the courts is barred. However, what has gone before the Supreme Court in this case is not the water dispute, which is still before the Tribunal, but the question of implementation of the Tribunal's Interim Order, and the related issue of compliance with the decisions of the Cauvery River Authority and with the directions of the Supreme Court itself. These are entirely within the Supreme Court's jurisdiction. It is evident that the court had no doubts in this regard.

(2) "Adjudication is not the best means of settling such disputes. Mutual agreement through negotiations is the best course. Conciliation and arbitration should also have been tried."

Certainly, a negotiated settlement is the best course, but when that fails (as it did in the present case - 20 years of talks produced no result) adjudication becomes necessary as a last resort. This is what Article 262 and the ISWD Act provide for. These are very useful and necessary last-resort provisions, and important components of our federalism. (Some perceived deficiencies in the ISWD Act have recently been sought to be set right through amendments.) It is not right to be negative and dismissive towards these provisions. There is no reason why adjudication should be necessarily divisive; it can be approached in a constructive, cooperative spirit.

The question of arbitration under the River Boards Act will be discussed later, but in general, it may be noted that once a dispute is referred for arbitration, there is not much difference between that course and adjudication: each side argues its case strongly, but finally the arbitrators' or adjudicator's Award has to be accepted.

Given goodwill and reasonableness on both sides, any route - negotiations, conciliation, arbitration, adjudication - can be made to work; in the absence of goodwill and reasonableness, nothing will work. Incidentally, the recourse to adjudication does not rule out continuing negotiations or non-official efforts at conciliation. If an agreement can be reached through these means, it can be reported to the Tribunal and converted into an Award. That is what happened in the Godavari case: the Godavari Tribunal's Award is nothing but an agreement arrived at by the States.

(3) "The entire action under the ISWD Act in this case is illegal. There is another Act, namely the River Boards Act 1956. That is a far more comprehensive Act with great potential for constructive management. It provides for arbitration in the event of disputes. That was the route that should have been followed. The ISWD Act itself rules out adjudication under it if arbitration under the River Boards Act is possible. A writ petition challenging the recourse to the ISWD Act in this case has been filed and is pending."

We must await the outcome of the writ petition which is said to be pending, but evidently it has not prevented the adjudication from proceeding and the Karnataka government from participating in the proceedings. After 12 years of participation, it seems doubtful whether the government will or can argue that the entire proceedings were illegal.

Apart from that, the argument outlined above is based on a misunderstanding of the relationship between the two Acts. The River Boards Act is primarily concerned with the planning and management of inter-State rivers and river valleys and not with conflict-resolution, though it does provide for the arbitration of disputes (arising in the context of the functioning of the Board). That Act was passed under Entry 56 in the Union List, which gives the Central government a role in relation to inter-State rivers to the extent that Parliament legislates for it. The ISWD Act was enacted under an entirely different constitutional provision, namely Article 262, which deals specifically with inter-State river water disputes and enables Parliament to pass legislation for their adjudication. The ISWD Act certainly rules out recourse to adjudication if the route of arbitration is available under the River Boards Act. But a pre-requisite for that is the existence of a River Board. There is no Cauvery River Board.

(Incidentally, under the River Boards Act the arbitrators are appointed by the Board, not nominated by the parties to the dispute; and the arbitrators will be judges assisted by technical assessors. In other words, arbitration under the River Boards Act will be exactly similar to adjudication under the ISWD Act!)

No Board has been set up under the River Boards Act because of resistance by the States. It is a well-known fact, frequently commented upon in the literature, that the River Boards Act has been inoperative and virtually a dead letter. When the first National Water Policy (1987) was being drafted in 1985-86, the question of river basin organisations came up, but the idea was stoutly resisted by several Chief Ministers including the then Chief Minister of Karnataka, Ramakrishna Hegde. More recently (in 1997), when the Central government circulated a draft notification for the establishment of a Cauvery river authority in the form of a standing professional and empowered body, it was rejected by Karnataka, and eventually a purely political committee called the Cauvery River Authority with the Prime Minister as Chairman and the Chief Ministers as Members was set up with the limited function of monitoring the implementation of the Interim Order of the Tribunal and resolving disputes in that context.

Against that background, it is clear that the alternative of arbitration via the River Boards Act was not available in this case because there was no Cauvery River Board. The route of adjudication under Article 262 and the ISWD Act was taken after prolonged talks proved fruitless. (In fact, even after Tamil Nadu asked for a Tribunal in 1986, the Centre continued to explore the possibility of a negotiated settlement for four more years; it was only under the specific direction of the Supreme Court that the Tribunal was set up in June 1990. It can hardly be argued that the Supreme Court was ordering an illegal course of action!) It seems unrealistic to suggest at this stage, when the Final Order of the Tribunal seems likely to be received within a matter of months, that the work of 12 years should be abandoned and an alternative route embarked upon. That would entail first the establishment of a Cauvery River Board (assuming that Karnataka would agree to this, which is very doubtful), and then the reference of the dispute to it for arbitration. Such a suggestion cannot be seriously entertained.

It was argued that this should be the course of action in future cases. By all means, let us try to bring the moribund River Boards Act back to life and set up a number of River Boards, if that is politically feasible. However, that course of action is not available at this stage as a means of resolving the Cauvery dispute.

(4) "The 1991 Interim Order of the Tribunal is patently unimplementable. How can an unvarying quantum of 205 tmc ft be released year after year without regard to changing circumstances?''

The figure of 205 tmc ft was arrived at by the Tribunal by taking the average of 10 years, after eliminating the best and the worst years. It must have seemed a fairly safe figure, considering that the historical use of Cauvery waters by Tamil Nadu, as determined by the Central Fact-Finding Committee of 1972-73, was much higher. Tamil Nadu has therefore to manage with less water than it used in the past. That is as it should be. Besides, there has been no difficulty in recent years when the rains were good. The quantum of 205 tmc ft presents no problems except when the rains fail. The weakness of the Interim Order was that it did not provide a formula for distress-sharing in lean years. When Karnataka went back to the Tribunal in 1992 saying that the Interim Order was unimplementable, the Tribunal re-affirmed its Order but said that in a difficult year a pro rata adjustment could be made. That was merely an observation. No formula was laid down. That was the source of all the subsequent trouble. The Tribunal must since then have taken note of the difficulties experienced, and the Tamil Nadu and Karnataka governments must have argued these points in their presentations to the Tribunal. It seems certain that the Final Order will contain (a) a proper water-sharing pattern taking into account all the points urged by the parties to the dispute and (b) suitable provisions to cover the contingency of low-flow years.

(5) "In a year of distress (like the current year), when there is not enough water even for its own farmers' needs how can Karnataka spare water for Tamil Nadu? This will be totally unacceptable to Karnataka farmers. These ground realities must be recognised. As the water levels in the reservoirs fall, tempers will rise further. The relationship between Kannadigas and Tamilians will come under further strain. The Tribunal, the CRA and the Supreme Court do not recognise these realities."

To what extent should the Karnataka government be guided by what is acceptable to the farmers in Mysore/Mandya? The latter have (either on their own or under the advice of some leaders) taken an extreme position. They assert their exclusive rights over the Cauvery waters, and have said that "not a drop" should be released to Tamil Nadu. They hold their position with passion and mount violent agitations. They are asking the State government to ignore the decisions of the Tribunal, the CRA and the Supreme Court, and have virtually declared that their own decisions will override the decisions of all those authorities. (Even after the Supreme Court's severe strictures and the Karnataka government's apology, the farmers continue with their strident position and their agitations.) Are these the `ground realities' that we must accept? The Karnataka farmers in the Cauvery basin have been profoundly misguided. It is the responsibility of the Karnataka government and politicians (of all parties) to educate them on the right approach. Instead, they are being guided by the sentiments of the farmers. This is very unfortunate and fraught with serious consequences. (It is also unfortunate that the intelligentsia have been silent.) In Tamil Nadu, film stars have jumped into the fray and are holding meetings and going on fasts; that is equally deplorable.

Even in years of poor rainfall and low flows, the sharing principle remains valid. There has to be a sharing of the distress. There is no question of anybody `giving' or `sparing' water for anyone else. No one - not Kerala or Karnataka or Tamil Nadu or Pondicherry - `owns' Cauvery waters: all have rights of use. The shares will vary according to various criteria, but there is no hierarchy of rights. In the Ganga Treaty of 1996, India has recognised that Bangladesh as the lower riparian has rights over the Ganga waters; it has gone to the extent of undertaking to protect the flows arriving at Farakka, which is the sharing point. In situations of exceptionally low flows, the two governments have to enter into consultations on an emergent basis, but the Treaty rights of Bangladesh are not extinguished. (That Treaty was signed on behalf of India by the then Prime Minister H.D. Deve Gowda.) Unfortunately, Karnataka has not been willing to recognise that Tamil Nadu has rights as a lower riparian. It has been talking about `giving' or `sparing' waters, implicitly assuming the primacy of its own rights as the upper riparian. It reserves the right to determine how much it needs and how much it is willing to release. This is nothing but the Harmon Doctrine, which commands no acceptance; neither does the doctrine of prior appropriation or prescriptive rights adopted by Tamil Nadu. What finds general acceptance, and has been adopted by successive Tribunals, is the principle of equitable sharing for beneficial uses. Tamil Nadu and Karnataka have to recognise each other's rights, needs and problems: that is the only way in which this dispute can be resolved.

Purely as a water-sharing dispute, this is not a particularly difficult one. (The difficulty in this case lies not in water but in politics.) Some kind of a sharing pattern was attempted by the Central government in the 1970s and we can proceed from there. Out of the available flows of 671 tmc ft (as determined by the Fact-Finding Committee in 1972-73), some 40 tmc ft or so have to be earmarked for Kerala and around 10 tmc ft for Pondicherry (these are purely hypothetical figures), leaving around 621 tmc ft to be shared between Karnataka and Tamil Nadu. This can be split as 416/205 or 400/221 or 380/241 or 350/271 (or some such division), depending on the factors and criteria adopted. The range within which a decision has to be taken is fairly narrow. The Tribunal will doubtless take all the relevant factors and all the arguments put forward by the four States into account and arrive at its Final Order, and will surely set forth its reasoning at great length; and lay down the manner of sharing in the event of low flows.

(6) "We do not expect a good report from the Tribunal because Karnataka has not argued its case properly before the Tribunal; many important aspects and issues have not figured in the proceedings."

It is very difficult to believe that in 12 years of proceedings, the officers, engineers and lawyers of Karnataka have failed to present the State's case fully, competently and comprehensively. If indeed this is the case, the State must accept the consequences; but prima facie this seems unlikely. Assuming that there are some points and arguments that have been overlooked, there are two remedies. First, even at this late stage, the possibility of making further submissions to the Tribunal can be explored. Secondly, when the Tribunal gives its Final Award, that is not the end of the story. Within three months, one or more of the States concerned or the Centre can (in terms of a provision in the ISWD Act) make a further reference to the Tribunal seeking clarifications or a supplementary report; even new points can be raised at that stage. Thus, if any of the four States involved in this dispute is dissatisfied with the Final Order of the Tribunal, it has an opportunity of saying so to the Tribunal. The Tribunal will then consider the points raised and give clarifications or a supplementary report. It can substantially modify or revise its Final Order at that stage.

(7) "Karnataka has a sense of grievance about the past. In the 1892 and 1924 Agreements the princely State of Mysore was at a disadvantage in relation to the Madras Presidency which was part of British India."

This is disputed by Tamil Nadu which argues that the British government was fair and objective; that the negotiations leading to the 1924 Agreement were long and hard: and that the Agreement was welcomed by the then Diwan of Mysore. Be that as it may, it must be recognised that Karnataka does have a sense of grievance. However, that bit of history is no longer relevant.

Assuming that Karnataka did have a grievance about the 1924 Agreement, and granting that in comparison with Tamil Nadu it was a late starter on irrigated agriculture, that initial disadvantage has since been remedied to a large extent. As the upper riparian, it has physical control over the waters, and has proceeded to build several dams and reservoirs on the different rivers in the Cauvery system, reducing flows into Tamil Nadu. There is no ground now for Karnataka to nurse a sense of grievance; today, Tamil Nadu as the lower riparian suffering reduced flows is the complainant.

(8) "It is hardly fair that Tamil Nadu should insist on taking three crops when Karnataka is not able to take even one. And Tamil Nadu wants to grow paddy, paddy, paddy."

Tamil Nadu has its answers to these points, but we need not go into them here. Both States are growing water-intensive crops (paddy in Tamil Nadu, sugarcane in Mandya). Both have to learn to use water better, and if that calls for changes in cropping patterns, they should go in for such changes. If water availability is restricted, as it is bound to be under any allocation of a limited quantum, farmers in both States will adjust themselves to that situation over a period of time. The Cauvery delta area in Tamil Nadu gets much less water than it used to in the past, and the process of adjustment has begun. Over a period of time, Thanjavur farmers may learn to grow paddy with less water or partially shift to other crops. As to how much should be allocated to each State, each must have presented and documented its claims to Cauvery waters before the Tribunal, and also commented on profligate or improper use by the other. The Tribunal can be trusted to take all these arguments into account in its Final Order.

(9) "Tamil Nadu has groundwater; it also has the benefit of the north east monsoon."

What this means is that Tamil Nadu has other sources of water besides the Cauvery. That point must have been made by Karnataka before the Tribunal, and Tamil Nadu must have answered it. Without going into the arguments of the two States let us note that it would not be right to say to Tamil Nadu: "You have groundwater and the northeast monsoon, so leave Cauvery alone." The Cauvery is an inter-State river and all the States in the basin are entitled to make reasonable use of the waters. The Tribunal will surely take the totality of circumstances into account in making its allocations.

My final plea

At the conclusion of the meeting I made the following plea, which I would now like to repeat to a larger public in both States:

(i) Let us not undermine the work of 12 years by questioning the legality of the Tribunal proceedings or the soundness of adjudication. These arguments are entirely wrong, but they have the potential of causing confusion and delay.

(ii) The River Boards Act, 1956 has been a dead letter. By all means try and revive it for the future, but it cannot be invoked in the present case.

(iii) Let us not waste too much time on the Interim Order. That Order will soon be replaced by the Final Order of the Tribunal.

(iv) Even at this stage, explore the possibility of bringing about a negotiated agreement, which can be reported to the Tribunal and converted into an Award. Non-official initiatives in this regard will be very useful.

(v) If need be, present supplementary material to the Tribunal if that is possible at this stage.

(vi) The Final Order is bound to be a fair, objective, carefully considered, fully argued Order. Wait for it and consider it with an open mind. If there are any doubts or dissatisfactions with it, a further reference can be made to the Tribunal within three months, and a supplementary report asked for.

(vii) Mount a campaign to dispel the miasma of suspicion, anger and misunderstanding that clouds public opinion in both States. Educate the general public and in particular the farmers in the Cauvery basin on the facts, the issues involved and the applicable principles.

(viii) More than anything else, try and prevent the further deterioration of the relations between the peoples of the two States. Build bridges, promote goodwill and understanding. Avoid the tragedy of a deep divide.