Is the Supreme Court verdict on Cauvery fair?

February 22, 2018 11:13 pm | Updated February 23, 2018 12:19 am IST

Yes | S. Raja Rao

Some glaring concerns in the 2007 tribunal order have been addressed

With an additional allocation of 14.75 thousand million cubic feet (tmc ft) of water to Karnataka, the Supreme Court has given the State reason to rejoice. The order is fair and does not take away anything significant from Tamil Nadu. What it has done is to address some concerns that were present in the 2007 order of the Cauvery Water Disputes Tribunal, such as of drinking water in Bengaluru and the constraints of irrigation in southern Karnataka.

There is much to be satisfied with in what has been allotted to Karnataka in the recent order. On many points, the Court validates the objections raised by Karnataka to the 2007 tribunal order.

Allocation for Bengaluru

For instance, the court makes it clear that the contentious 1924 agreement had lapsed. It noticed that the State did not have bargaining power at the time of entering the said agreement. Yet, post-Independence, Karnataka chose not to denounce the agreement. While the agreement cannot be called “unconscionable”, as Karnataka had not raised objections to it after Independence, the court observed that several clauses in the 1924 agreement did not indicate permanency, and had lapsed after 50 years, by 1974. The court also rightly observed that the overall population of river basin States has to be placed on a pedestal, and be taken into account as a fundamental principle for equitable distribution.

Keeping this in mind, the court acknowledges the need for a higher share of Cauvery water for Bengaluru, which now has more than 10 million inhabitants. The 2007 tribunal order had reduced Karnataka’s share for the sole reason that only one-third of Bengaluru falls within the river basin, and that 50% of the drinking water supply would be met through groundwater. The Supreme Court rightly notes that the tribunal’s view ignores the basic principle pertaining to drinking water. Keeping in mind the global status that Bengaluru has attained, an additional 4.75 tmc ft has been awarded to it in order to implement the existing water supply schemes. The remaining 10 tmc ft can be used to expand agricultural activities.

Does this additional allocation deprive Tamil Nadu? No. While lowering the allocation of surface water, the Supreme Court has ruled that a minimum of 10 tmc ft of groundwater is available in the Cauvery delta for safe use by Tamil Nadu. This had been ignored in the tribunal order.

Pending issues

However, there are certain issues in the order that need to be addressed. The Inter-State Water Disputes (ISWD) Act, 1956 stipulates that besides the chairperson and two former High Court or Supreme Court judges appointed by the Chief Justice of India, a minimum of two assessors (technical experts) are to assist the tribunal. While the Supreme Court sought the assistance of technical experts in the coal scam and the iron ore mining case, it has not done so in the Cauvery dispute. Prime among these unresolved issues is the framing of a deficit formula for sharing water, and construction of hydel projects on the common boundary of the river. For instance, Karnataka plans a run-of-the-flow Mekedatu hydel project. The status of this project is yet to be decided within the framework of the judgment.

Similarly, issues of climate change and allocation of regenerated and surplus water have not been considered. As a result, basin States like Karnataka will continue to knock at the doors of the Supreme Court for redress.

S. Raja Rao is a former Irrigation Secretary, Karnataka, and a former member of Karnataka’s Technical Committee for Cauvery Water Dispute


No | S. Janakarajan


It is unlikely to change the supply conditions in Tamil Nadu in any meaningful manner

In the traditional cake-cutting wrangle, one always gazes at the share of the other party rather than at one’s own share. This is exactly what happened after the much-awaited Supreme Court verdict on the Cauvery dispute. While the verdict has disappointed Tamil Nadu, momentary happiness was seen in Karnataka.

In 1991, the Cauvery Water Disputes Tribunal in its interim award declared that 205 tmc ft should be allocated to Tamil Nadu. This was slashed to 192 tmc ft in the tribunal’s 2007 order. This has been further cut to 177.25 tmc ft by the Supreme Court. While these numbers have enormous political ramifications, it is highly unlikely that they will change the water supply conditions in Tamil Nadu in any meaningful manner.

Historical precedents?

One is not being distrustful. But look at history.

Since the 2007 order, which even prescribed how much water should be released every month, supply conditions have not improved for Tamil Nadu. Karnataka’s position has always been to not release water at the start of the southwest monsoon, but to wait till September to take stock of both storage and monsoon conditions. It has almost become customary for Tamil Nadu to file petitions annually in the Supreme Court to direct Karnataka to release water.

On many occasions, directions from the Supreme Court have resulted in violent protests, causing disruption of life and enormous damage to property in Karnataka. We saw this happening in September 2016 too.

Now that the final verdict has been declared, the practical question to ask is whether there is any degree of certainty in getting water (177.25 tmc ft) from Karnataka. Again, looking at the past, the answer is in the negative. Therefore, all these numbers are seemingly irrelevant if water doesn’t flow downstream when it is most needed in Tamil Nadu (between June and September and in January and February).

The principle of federalism

The next question is how to operationalise the Supreme Court verdict. The tribunal in its final award had indicated the need for the constitution of a Cauvery Management Board (CMB) to implement the award. But a CMB was never constituted even after the Supreme Court’s direction to the Government of India in 2016 to constitute the body within four weeks. Why was a CMB not constituted? Does such negligence by the Central government amount to contempt of court? That apart, the Supreme Court in its verdict has again directed the Government of India to constitute a CMB within six weeks. We will have to wait and see whether that happens.

Meanwhile, the Karnataka Chief Minister has already opposed the idea of a CMB. If one goes by the law, as one should, the constitution of a CMB would end this bitter dispute. But doubts linger whether a CMB, even if constituted, would serve any purpose.

The most worrying issue, however, is that a myopic political approach and imprudence have reduced the rank of a perennial river to that of a seasonal river, that too with looming uncertainties. Its ecological implications are hugely adverse, in particular for the deltaic and the coastal ecosystem.

Unless one adheres strictly to the principles of federalism in a vast and diverse democratic country such as India, sharing of water from a river which flows through more than one State will continue to be a critical challenge.

S. Janakarajan is president, South Asia Consortium for Interdisciplinary Water Resources Studies

It's complicated| Himanshu Thakkar

The judgment’s efficacy would lie in the implementation mechanism

It’s welcome that the Supreme Court’s 465-page judgment of February 16 includes some aspects of groundwater, references to water allocation priority from the National Water Policy, directions to set up the implementation mechanism in six weeks, and fixing the water-sharing quota for 15 years.

Grey areas

There are also some grey areas in the order. It treats the dispute as a water-sharing dispute rather than as a river-sharing dispute. There is inattention to factors like changing rainfall pattern, rainwater harvesting, the potential of soil water capture, catchment degradation and local water systems. The order also justifies water supply to areas outside the Cauvery basin when other options exist. Some directives for transparent functioning of the proposed implementation mechanism would have helped. It would have also helped if the judgment had come earlier, rather than 11 years after the award of the Cauvery Water Disputes Tribunal.

In terms of water allocation, the only change the Supreme Court has directed is an increase in Karnataka’s allocation by 14.75 tmc ft from the tribunal’s award, reducing the allocation for Tamil Nadu by the same quantum. This means that the annual water release obligation of Karnataka reduces to 177.25 tmc ft, compared to 192 tmc ft as per the tribunal award. In a distress year, Karnataka’s obligation would reduce in the same proportion, but the monthly release quantities are to be decided by the implementation authority, to be set up as per the tribunal award.

The reason given by the Supreme Court for increasing the drinking water allocation for Bengaluru is that drinking water is top priority. True, but nothing stopped Karnataka from allocating more water for Bengaluru from its own share, as Karnataka is already doing. Consideration of cutting other States’ share for this should not arise. Second, it is well-known that Bengaluru is using its water resource options sub-optimally. It’s not a question of quantum, which may be minuscule and some of it may be returning to Tamil Nadu through the Pinakini river, but in the process, the court has opened up possibilities of more such sub-optimal allocations in the name of higher priority uses in other basins. Considering areas outside the Cauvery basin (two-thirds of Bengaluru) for such allocation is another aspect that is bound to set a complicating precedent.

It’s welcome that the court has brought groundwater into the equation of water-counting, while increasing 10 tmc ft allocation for Karnataka since Tamil Nadu has access to additional groundwater in the Cauvery basin. The figure of 10 tmc ft, however, is ad hoc and not based on science. If groundwater is to be taken into account, full assessment of the groundwater (as also water stored in storages smaller than 3 tmc ft) should have been taken into account.

Increased water use

The judgment, in fact, has the potential to push for increased water use in both States: In Tamil Nadu, since the court has allowed it to use 10 tmc ft groundwater, and in Karnataka since the court has allocated 14.75 tmc ft more water. This, in a basin where the available water demand is already much more than the available water, as the court notes (para 188). This could have been avoided if the judgment had included a rider to the effect that these provisions should not lead to additional water use in both States.

That leads us to a crucial issue: The need for demand side management, in addition to local rainwater harvesting measures, both of which are missing in the judgment.

The test of the efficacy of the judgment in resolving the Cauvery dispute would be in the effectiveness of the implementation mechanism and achieving equitable water distribution in deficit years. However, it seems that the judgment is bound to raise more water disputes, including in the Cauvery basin.

Himanshu Thakkar is coordinator, South Asia Network on Dams, Rivers and People.

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