Cauvery Water Dispute: An analysis

Context:

The Cauvery Water Dispute

What is the dispute?

• The Cauvery water dispute is an inter-state water dispute between Tamil Nadu, Karnataka, Kerala and Puducherry.
• Recently, there have been fresh disputes post SC verdict on sharing of Cauvery water between Tamil Nadu and Karnataka and the formation of the Cauvery Water Management Authority.

Constitutional Provisions and Legislations:

• The Constitutional Provision for Interstate water dispute has been laid down in Article 262
• The Article 262 provides for a specific law enacted by Parliament to adjudicate water disputes. It also bars jurisdiction of all courts, including the Supreme Court, on the same.

• It is important to note that the extra-constitutional arrangements only relate to disputes regarding the use, distribution or control of the waters of any inter-state river or river valley
• Therefore, disputes outside this ambit are not subject to Clause (1) of Article 262. Hence, the SC cannot be subject to the limitation provided under Clause (2).

Rationale behind Article 262- Constitution Assembly Debate

• River water is a fugitive resource; it does not belong to any one state. Therefore, effective adjudication on definite property rights is not possible.
• Since water disputes concerns are not only related to private parties but the benefit of entire State, legal action is not feasible.

Inter State Water Disputes Act, 1956:

In accordance to the Article 262, the Parliament enacted the Inter State Water Disputes Act in 1956.

Main features of the Act:

1. Any of the disputed parties (i.e. the States) may request the Central Government to refer the dispute to a tribunal for adjudication.
2. The Central Government, if it is of opinion that the dispute cannot be settled by negotiation, shall refer the dispute to a Tribunal.
3. Jurisdiction of the Supreme Court and other courts in respect of the dispute referred to the Tribunal is barred. (Section 11)
4. The Central Government may frame a scheme, to give effect to the decision of the Tribunal. The scheme may provide for establishing an authority for implementing (Section 6A)

Background- Cauvery Water Dispute

1. But the sharing of Cauvery water has been an area of contestation between Karnataka and Tamil Nadu since pre-independence years. The Cauvery Water dispute has its roots in the agreements dating back to 1892 and 1924 between the then British-ruled Madras Presidency and the princely state of Mysore.
2. The 1924 agreement was for 50 years
3. 1970: After independence, as Kerala and Puducherry also claimed share of Cauvery water, a Fact Finding Committee was set-up to figure out the situation on ground.
4. After submission of the report, the states reached at an agreement in 1976.
5. However, later when Tamil Nadu got its new government, it refused to give consent to terms of agreement which led to fresh disputes.
6. Instead, in 1986, Tamil Nadu government appealed the Central government to constitute a tribunal for solving the issue under Inter-State Water Disputes Act, 1956.
7. 1990: Following a Supreme Court order, the Centre constituted the Cauvery Water Disputes Tribunal (CWDT) to resolve the water-sharing dispute between Karnataka and Tamil Nadu
8. 2007- Tribunal announces final order

9. 2016: Tamil Nadu approaches SC claiming that Karnataka had failed to fully comply with a series of orders passed by the court regarding timely release of water from the Cauvery River.
10. Feb 16th 2018: SC Verdict on Cauvery Water Dispute

The SC Verdict, 2018:

• Total available water to be allocated not changed
• Allocation to Kerala and Puducherry not changed
• Reduced Tamil Nadu’s share by 14.75 tmcft and added that to Karnataka’s share- Reduced Karnataka’s obligations to release water, from 192 tmcft to 177.25 tmcft, to Tamil Nadu
• Increased Karnataka’s share to meet Bengaluru’s drinking water requirements
• Asserted that inter-state river waters are national assets
• Gave the Centre 6 weeks to frame a scheme to make sure the final decisions are implemented.
• Directed the formation of the Cauvery Management Board (CMB)

Issues in the Cauvery Water Dispute:

1. Deficit monsoon and unavailability of water:

• A major issue which Karnataka sighted has been the unavailability of adequate river water.
• This is primarily due to overall decrease in natural flow of water. The main reasons for decrease in natural flow of water is reduction in forest cover, unsustainable agricultural practices and depletion of groundwater
• The situation aggravates during deficit monsoon and Karnataka has failed repeatedly in releasing the ordered amount of water during poor monsoon years.

2. Protests:

• In 2016, Supreme Court directed Karnataka to release water. After release of water there were widespread unrest in the state of Karnataka

• Karnataka government filed a plea to modify a Supreme Court order. It argued that it was unfair to require the state to release a fixed amount of water irrespective of the availability of water.

3. Use of Special Leave Petitions (SLP):

• The recent Supreme Court Verdict was passed on a number of appeals by the states of Karnataka, Tamil Nadu and Kerala challenging the 2007 award passed by the Cauvery River Water Disputes Tribunal
• There were widespread criticism since this was the first time that the SC allowed a Special Leave Petition (SLP) challenging a tribunal’s award.
• SC justified it on the basis that provisions of Article 262 and the Interstate River Water Disputes Act does not curtail its powers. Article 136 empowers it to intervene even after a tribunal adjudicates a river water dispute.
• However, it’s important to note that Article 262 (2) uses ‘notwithstanding anything in this Constitution’ clause. The question then arises whether the justification made by SC is valid.

4. The Issue with Cauvery Water Management Authority:

• CWMA has not been fully constituted as it does not have three full time members. This is because Kerala and Karnataka have not filed their nominations.
• Karnataka apprehends that the CWMA will go against its interest and distribute more water to Tamil Nadu
• During the deficit year CWMA is empowered to find a formula for water distribution. This is led to speculation and trust deficit.
• Karnataka apprehend that they may lose their control over state reservoir or dam due to CWMA.

Way forward

• CWMA should find a mutually accepted water sharing/ deficit formula
• Allocation should be based on the basis of monsoon and availability of water
• Inter-state councils should be strengthened to resolve water disputes among states.
• To solve interstate water disputes, economic survey has suggested for cooperative federalism just like GST.