Supreme Court special bench comprising Chief Justice Dipak Misra and Justices A.M. Khanwilkar and Amitava Roy delivered its verdict on the Cauvery water dispute on February 16, 2018.
The sharing of the waters has been a matter of dispute among the states of Tamil Nadu, Karnataka and Kerala and the union territory of Puducherry.
A Dispute with Long Roots
The total availability of water for utilisation in the Cauvery basin is 740 thousand million cubic feet (tmc) in a normal year. Originating in Talacauvery in Kodagu in Karnataka, the river flows through Hassan, Mandya, and Mysuru districts before entering in the form of a waterfall at Hogenakkal in Dharmapuri, in Tamil Nadu to go through Erode, Karur, Tiruchirapalli, Cuddalore, Pudukottai, Nagapattinam, Thanjavur and other districts till it enters the Bay of Bengal at Puhar.
The dispute over the river waters goes back a long way to pre-independence days.Its origins date back to agreements signed in 1892 and 1924 between the then princely state of Mysore and the Madras Presidency.
The state of Mysore declared that it wanted to restore old irrigation works in its territory as well as build new works to be of use in other areas; these works were to be constructed on the rivers that originated and passed through their state. Madras feared that such constructions by the state of Mysore would lead to a reduction in the water flowing into Madras Presidency area. So Madras wanted the Government of India to adjudicate. So came about the agreement between Mysore and Madras into on February 18, 1892, under the title. ‘Rules defining the limits within which no new irrigation works are to be constructed by the Mysore State without previous reference to the Madras Government’.
Under the 1892 agreement, Mysore state (now practically synonymous with the state of Karnataka) was to get consent from Madras Presidency (which included present Tamil Nadu and Kerala)before any construction, including any new irrigation reservoirs, was proposed across the 15 main rivers and stream mentioned in specific schedules. Furthermore, before any such project was begun, information regarding the project had to be furnished in complete form to Madras for getting its consent. Madras could not refuse consent except for two circumstances: (i) if Mysore had failed to furnish full information on the proposed project; and (ii) if in granting consent, Madras would deprive its inhabitants of certain rights already acquired and existing in accordance with the law on the subject to use water of an interstate river.
In 1910, Mysore, under the rule of Nalvadi Krishnaraja Wodeyar, a plan to construct a dam, namely the Krishnarajasagar Dam, at Kannambadi village was envisaged. In the first stage, the dam was to have a capacity of 11 TMC, later to be expanded. Madras refused to give its consent for this proposed project as it had its own plans to build a storage dam at Mettur. On a reference being made to the Government of India, Mysore received the permission for the project but only with a capacity of 11 TMC storage. But as the foundation when laid for the dam was for the larger capacity, Madras was angered and arbitration was ordered by the Government of India in the dispute.
After years of negotiations, an agreement was arrived at in 1924. The agreement gave the Madras Presidency as well as Mysore State the rights to use the surplus waters of the Cauvery. Mysore would build its dam and Madras would also build the Mettur dam.Mysore was free to carry out future extensions of irrigation within its state under the Cauvery and its tributaries to an extent now fixed at 110,000 acres. Madras agreed to limit the new area of irrigation under the Mettur Dam project to 301,000 acres. The 1924 pact was to last for 50 years.
Dispute Intensifies Post-Independence
In 1974, the accord lapsed. After independence, the states had been reorganised. Talacauvery in Kodagu became a part of Mysore state, later Karnataka. Parts of Malabar which earlier formed part of Madras Presidency became part of the new state of Kerala. Puducherry had already become a de facto union territory in 1954. With state boundaries being redrawn, parts of Kerala and Puducherry were drawn into the Cauvery basin and therefore become stakeholders in the sharing of its waters. An important tributary of the Cauvery, the Kabini, now originated in the Western Ghats in Kerala. The Karaikal region of Puducherry claimed that it had always been using the waters of the river for drinking and some agriculture. So Kerala and Puducherry also became stakeholders in the dispute over the Cauvery waters.
In the meanwhile, Tamil Nadu had expanded its irrigation going against the letter and spirit of the 1924 agreement. By 1971, its acreage had increased to nearly 3 million. Karnataka had brought into use more than 6,50,000 acres. Both states had violated the1924 agreement.
Karnataka now declared that the 1924 agreement hindered its ability to develop farming activities along the Cauvery basin. It began building reservoirs. Karnataka’s argument was that, with the 1924 agreement having lapsed, the state was under no obligation to follow the regulations. Karnataka took the view that since the river originated in the state it had a greater rights over the river waters. Such a view was a problem for Tamil Nadu which had become dependent on Cauvery water for the cultivation of crops in the delta area. Karnataka built the Hemavati, Harangi, Kabini and Suvarnavathy dams on the Cauvery, causing much unease to Tamil Nadu, the lower riparian state.
Karnataka argued that the river waters should be shared as per international norms, i.e., by dividing the waters in equal proportions. It suggested that the two states could get 47 per cent of the water each with the rest being distributed equally to Kerala and Puducherry.Tamil Nadu preferred to continue with the 1924 agreement (which gave the state 75 per cent share). In 1986, the farmer’s association in Tamil Nadu’s Thanjavur area moved the Supreme Court on the issue, appealing for a tribunal to be set up to solve the problem of sharing the waters of the Cauvery..
In 1990, the Supreme Court heard the petitions from both the states and directed them to negotiate. But negotiations failed. In the circumstances, the apex court directed the central government to form a tribunal to decide on the distribution of Cauvery waters between the states.
Cauvery Water Disputes Tribunal
Following the Supreme Court order, the Centre constituted the Cauvery Water Disputes Tribunal (CWDT) in June1990. In an interim order in 1991, the tribunal gave Tamil Nadu 205 tmc.
The CWDT gave its final award in February 2007. Of the total available 740 tmc water, Tamil Nadu was to get 419 tmc; Karnataka, 270 tmc; Kerala, 30 tmc; and Puducherry, 7 tmc.
In a normal year, the CWDT ordered that Karnataka has to release to Tamil Nadu 192 tmc (as against 205 tmc in the interim award) on a monthly basis at the inter-state border, Billingundlu.
Besides this, the tribunal reserved 10 tmc for environmental purposes and four tmc for natural outlets into the sea.
In a distress year, as per the CWDT order, the allocated shares shall be proportionately reduced among Kerala, Karnataka, Tamil Nadu and Puducherry. The order regarding the sharing of water during a distress year shows a lack of clarity and became a major reason for the dispute.
The CWDT also stated that “the agreements which were executed between the then governments of Mysore and Madras cannot be held to be invalid, especially after a lapse of about more than 110 and 80 years respectively.” It further said: “Before the execution of the two agreements, there was full consultation between the then governments of Madras and Mysore. However, the agreement of 1924 provides for review of some of the clauses after 1974. Accordingly, we have reviewed and re-examined various provisions of the agreement on the principles of just and equitable apportionment.”
The Centre notified the award only in 2013, after the Supreme Court ordered it do so.
The award of the tribunal did not satisfy the states. Before the 2007 order, Tamil Nadu had asked for 562 tmc – roughly three-fourths of the water available in the Cauvery basin – and Karnataka had asked for 465 tmc – around two-thirds of the available water.Karnataka and Tamil Nadu filed petitions in the Supreme Court against the final order of the CWDT. Kerala followed suit.
Supreme Court Verdict
The Supreme Court on the whole upheld the decisions of the CWDT. However, it conceded that Karnataka is entitled to “marginal” relief, and reduced the allocation of Cauvery water from Karnataka to Tamil Nadu.
Karnataka has been ordered to release 177.25 tmc of Cauvery water to Tamil Nadu from its inter-state Biligundlu dam.Karnataka will get an enhanced 14.75 tmc water which will be above the CWDT award of 270 tmc Cauvery water.
Tamil Nadu is now entitled to a total of 404.25 tmc of Cauvery water instead of 419 tmc allotted by the tribunal in 2007.
Tamil Nadu has been allowed to draw an additional 10 tmc ‘groundwater’ from a total of 20 tmc beneath the Cauvery river basin.The CWDT had said that the use of underground water by any of the riparian states should not be reckoned as use of Cauvery water. The apex court, however, took into account the quantity of available groundwater while calculating the final determination of the share.The court held that it would take into account at 10 tmc of this ground water and reduce this amount from the 192 tmc supplied by Karnataka to Tamil Nadu.
The CWDT award of 30 tmc of Cauvery water to Kerala and 7 tmcft to Puducherry will remain unchanged. The apex court, however, allowed Puducherry’s request to grow a second crop with the stipulation that cultivation be limited to 43,000 acres.
The Supreme Court said that, subject to the formulation of a scheme, its order on the Cauvery water allocation will continue for the next 15 years.
Observing that Bengaluru has attained a global status’ and that its drinking water requirement has increased multi-fold, the court said that the need of drinking water should get top priority. The court said that the CWDT had not considered the growing needs of Bengaluru and had thought the city could manage on its 60 percent groundwater supply. But the growing population has depleted the groundwater. Taking this into consideration, the court allocated 4.75 tmcCauvery water to Bengaluru. The court disagreed with the idea of taking into consideration only one-third of the city that falls within the Cauvery basin, saying “principles of apportionment and the conception of reasonable and equitable share perceived for such uses comprehend a basin State addressing the social and economic needs of its community as a whole”.
The SupremeCourt warned that the states should not deviate from the judgment or use the allotted water for other than the designated purposes.
The court held that the CWDT was correct in basing its water-sharing award on the basis of equitable utilisation of river water. The court said that Constitution has bestowed equal status to all states. Holding that an interstate river is a “national asset”, it said that no one state can claim full rights over river waters just because the river originated there. The apex court thereby reaffirmed the internationally recognised rights of lower riparian states.
Karnataka had told the Supreme Court that 1924 agreement between the then British province of Madras and the princely State of Mysore could not be the basis of sharing Cauvery river water between the present day Karnataka and Tamil Nadu and present-day needs must be taken into account.The court disagreed with Karnataka’s argument that it had no bargaining power in the 1892 and 1924 post-Mettur dam agreements on Cauvery water allocation. The court asked Karnataka why it had not denounced the 1892 and 1924 agreements even after independence and the coming into existence of the Constitution or after the States Reorganisation Act of 1956. In any case, said the court, the 1924 agreement expired in 1974 after a period of 50 years and now the allocation of inter-state river water is governed by equitable apportionment.
The court rejected the Centre’s argument that Section 6A of the Inter-State Water Disputes Act of 1956 bestowed upon it the discretion in framing a Cauvery water-sharing scheme. The court said that a scheme has to be framed under Section 6A as per the award of the CWDT.
On December 9, 2016, the Supreme Court had refused the Centre’s stand that the court lacked the jurisdiction to hear the Cauvery river dispute, as according to the Centre the parliamentary law of Inter-State Water Disputes Act of 1956 coupled with Article 262 (2) of the Indian Constitution excluded the Supreme Court from hearing or deciding any appeals against the tribunal’s decision. The Centre considered the tribunal award as final. But the apex court pointed out that the remedy under Article 136 was a constitutional right and it cannot be taken away by a legislation much less by invoking the principle of election or estoppel.The court dismissed arguments that the bar under Article 363 of the Constitution prevents judicial review of a pre-Constitution treaty or agreement as in the case of the 1892 and 1924 agreements.The court said that the “principle of paramountcy” does not apply to the 1892 and 1924 agreements, as they were not political arrangements but based on public interest.
The Supreme Court directed that the Cauvery Management Board should be set up immediately to oversee the enforcement of the order. This would come as a relief to Tamil Nadu.
The court directed the Centre to frame a scheme in six weeks from the date of the final verdict so that the authorities under the scheme could see to it that the decision could be made functional. This is pursuant to the CWDT recommendation for a Cauvery Management Board (CMB) on the lines of Bhakra Beas Management Board. The Tribunal had further said that the mechanism shall be independent in character, comprising of technical officers from the central government and representatives from the governments of the party states to achieve the objective of the distribution of waters as per equitable shares determined. It further said that since the implementation of the final award of the Tribunal involves regulation of supplies from various reservoirs and at other important nodal points/diversion structures, the Cauvery Management Board would have to be entrusted with the function of supervision of operation of reservoirs and with regulation of water releases therefrom with the assistance of Cauvery Water Regulation Committee (to be constituted by the Board).
While Karnataka has welcomed the verdict, Tamil Nadu political entities have expressed disappointment. However, if analysed properly, the reduction in the quantum of water is not all that much. But the state has to make a greater effort to conserve and replenish ground water.
Tamil Nadu has for long been demanding the constitution of the CMB but Karnataka has opposed it as the board can take control of reservoirs (Karnataka would then lose its supervisory control over the four Cauvery basin reservoirs — the Krishnarajasagar , Hemavathi, Kabini and the Harangi) to ensure release as per the award. With the constitution of the board, Tamil Nadu can be sure of the board ensuring that Karnataka does not defy the order, even if not getting the amount of water it had asked for.
The CMB would monitor the storage position in the Cauvery basin and the trend of rainfall and go on to assess the likely inflows for distribution among the states. The CWRC will ensure the Tribunal’s order is carried out in due spirit.Karnataka would not be able to say that it would release water to Tamil Nadu only after it had a sufficient storage in the reservoirs.