The Hon’ble Supreme Court’s inquiry whether the Government of India is not thinking of notifying the Cauvery Tribunal’s Award, and the government’s indication that it might do so shortly, represent a major new development. The Tribunal’s Final Order of February 2007 ought to have been notified in the gazette in 2007 itself, but it was not. If it is at last going to be notified, that is a matter for satisfaction. However, this gives rise to some intriguing questions.
1. One wonders why the Supreme Court did not ask this question much earlier, say five years ago, when it admitted the Special Leave Petitions of the States.
2. It appears that the hesitation that the government had evidently felt earlier about notifying the Award because of the pendency of the Special Leave Petitions (SLP) of the States was uncalled for. If so, the delay in notifying the Award was pointless and unfortunate.
3. The Supreme Court has given no indication as to whether, and if so when, it proposes to take up the SLPs for hearing. As and when it does so, we do not know what the outcome will be. However, that bridge can be crossed when it is reached.
4. The Tribunal cannot function until a new Chairman is appointed in place of the earlier chairman who has resigned. One hopes that the Government of India will do this promptly.
5. Even if the Award is notified and a new Chairman is appointed, the Tribunal will still have to be persuaded to overcome its earlier reluctance to take up the clarificatory petitions for consideration. The fact that the Supreme Court evidently sees no objection to the notification of the Final Order would ipso facto seem to imply that the Tribunal can go ahead and consider the clarificatory petitions.
6. Once the Final Order comes into effect on notification, it will be final and binding on the disputant States, and will have to be complied with fully. The fact that the SLPs are pending cannot be the ground for non-compliance with the Award on the part of any State. After its notification it cannot be put into limbo. As and when the SLPs are disposed of by the Supreme Court, the impact of the judgment on the Tribunal’s Award will have to be considered, but until then the Award will have to be obeyed.
7. Similarly, the fact that clarificatory petitions are pending with the Tribunal does not mean that the Final Order can be kept in abeyance.
8. Once the Final Order is notified, the Interim Order will cease to be in force. The Cauvery River Authority (CRA) and the Cauvery Monitoring Committee (CMC) will cease to exist because they were created specifically for monitoring the implementation of the Interim Order. There will thus be an institutional vacuum until the Cauvery Management Board (CMB) is established. It is therefore necessary to establish the CMB immediately. One hopes that the States will cooperate with the Centre and with one another in the establishment of the CMB and in its smooth functioning thereafter. In the interim, it may be necessary to re-establish the CRA and the CMC with specific reference to the Final Order.
9. The first task of the CMB should be to work out a formula for water-sharing in difficult (i.e., low-flow) years.
(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)