Cauvery dispute: making sense of the muddle

Ramaswamy R. Iyer

The ultimate responsibility for a decision rests squarely with the Cauvery Water Disputes Tribunal. That decision has to be a judicial one. It is somewhat disturbing that the Tribunal has been showing undue sensitivity to the political dimensions of the dispute.

THE CAUVERY Water Disputes Tribunal has succeeded in creating a very confused situation. However, it is perhaps still possible to put the adjudication process back on the rails if all concerned behave in a rational, restrained, and responsible fashion. This article will try to clear up the muddle and make a plea for good sense and goodwill.

The Tribunal has blazed many new (alas, not wholly desirable) trails. First, it has been troubled by dissensions. One may well ask how a body that cannot settle its own internal differences can undertake to resolve an inter-State dispute. Secondly, those differences have been publicly aired in a regrettable fashion. Thirdly, the Tribunal lost its nerve (or so it seemed) because of the intensely political nature of the dispute, tried to shift its responsibility to a governmental committee, and when that move attracted considerable criticism, decided to postpone the onerous task of decision-making by sharing some internal technical papers with the State Governments, presumably to test the waters (if one may use such a metaphor in this context). That may seem an uncharitable interpretation of the developments, but it seems difficult to think of an alternative explanation. May one add that it is not anger but anguish that lies behind these remarks.

All this has caused considerable damage to the adjudication process as well as to the standing of the Members themselves. Whether a part of that lost standing can be recovered will depend on what they do in the months to come. If they are able to reach an understanding among themselves and come out with a unanimous Final Order, some of their dimmed lustre may still be restored, and the damage done to the adjudication process may be reversed.

One ardently hopes that this will happen, but must accept the possibility that it may not. The differences between the Chairman and the two Members may persist, and the Tribunal's Award may be a divided one. That would be very unfortunate, but if that happens, the majority view will of course prevail, and there will still be a binding decision. We shall have to live with that un-ideal situation.

Returning to the recent developments, what the Tribunal by a majority decision has done is to make available to the disputing parties some technical material prepared by the assessors for the Tribunal's own use. It appears that the material has only been made available to the parties to the dispute. So far as one knows, it has not been put into the public domain. However, some reports of their contents have appeared in the media. In particular, some `irrigation requirement' figures have been mentioned. ( Prima facie, the reported numbers seem somewhat similar to those of the `understanding' that was attempted in the 1970s but failed. However, the matter will need to be gone into carefully. This article deliberately refrains from mentioning any numbers.) Some of these reported numbers are likely to evoke reactions among the general public, and in particular, on the part of the farmers in the States concerned. This writer would request the farmers and the general public to keep in mind the following: (i) What has been made available is not the Order of the Tribunal or even a draft of the Order, but merely some of the material on which that Order will be based. As material that would be used in decision-making it is undoubtedly of some importance, but the Tribunal's decisions are still to be made. The Chairman has (perhaps unnecessarily) indicated his acceptance of the technical assessment, but he has yet to make his final decision; and the two Members have not indicated their reactions to the assessors' report.

(ii) The numbers mentioned in the media reports are shares in the total flows of the Cauvery. The share of Tamil Nadu and the quantum that will have to flow from Karnataka are two different things; further, that flow will have to be stated in terms of a monthly and/or weekly schedule; and (this is very important) a formula will have to be laid down to govern the sharing in difficult years. So far as one knows, the material made available does not cover these aspects. If so, what has been released is of no great significance.

(iii) It appears that the assessors have been concerned only with irrigation, and have not dealt with drinking water, industrial use, etc.

Keeping all this in mind, the farmers, the intelligentsia, and the general public in the disputing States may still be interested in examining the assessors' report and raising questions or objections. They should, of course, do so. That is the whole purpose of the exercise. One hopes that they will do this in a calm and reasonable manner, and not in an angry, contentious, chauvinistic spirit. It appears to this writer that the public debate will gain immeasurably in strength and usefulness if it is conducted in the language of reason. In particular, good relations between the States at the people-to-people level are enormously important, and nothing should be done to impair them. There should be no risk of repetition of the violence of 1992.

A particular responsibility rests in this context on the farmers of Karnataka and Tamil Nadu who have been meeting and fraternising over the last three years under the auspices of Madras Institute of Development Studies. They have built up a substantial fund of goodwill and harmony during these years, and it is for them to ensure that the spirit of understanding that prevails among them extends beyond them to the larger community of which they are members. In a way, recent developments have enhanced their importance. With the adjudication process running into difficulties, and with the Award getting further delayed, the farmers of the two principal contending States have an exciting opportunity of working out the elements of a settlement or an approach to it, and presenting it to the Governments and to the Tribunal. If that were to happen, it would be an event of tremendous importance in the history of this country, and a new chapter in the evolution of our federalism.

Turning now to the Governments, they have been given five weeks to comment on the assessors' report. They should certainly examine the report and state their comments and criticisms clearly, but may one hope that they will do this in a constructive and not an adversarial spirit? The assessors may be right or wrong, but there is no reason to believe that they are inclined towards one side or the other. Flaws, if any, in the facts, methodology or reasoning of the assessors will certainly need to be pointed out. However, it is not necessary to tear their report to tatters or state the criticisms in harsh language.

More than anything else, it is the responsibility of the State Governments to ensure that they do not by their words or actions unwittingly generate or aggravate negative feelings among the general public in their respective States. Earlier in this article, a reference was made to the violence that broke out in 1992. If a recurrence of that is to be avoided, a great deal will depend on how the State Governments conduct themselves. The new Chief Minister of Karnataka is (one hopes) unburdened by the legacy of the past; and the new/old Chief Minister of Tamil Nadu had made strenuous efforts at one time to engage in constructive talks with his counterpart in Karnataka. May one hope that there will be a significant change in the relationship between the two Governments, that confrontation is a thing of the past, and that they (and Kerala and Pondicherry) will bring a calm and reasonable frame of mind to the examination not merely of the assessors' report but also of the Final Order of the Tribunal when received?

A final word to the Tribunal. It was not quite necessary for them to release the assessors' report and ask for comments, because their Final Order itself will be a kind of draft order: the Inter-State Water Disputes Act provides for a reference back to the Tribunal by any of the States (or by the Central Government) within 90 days of the publication of the Award, and the scope of that reference is quite large. The States can raise all kinds of questions, and the Supplementary or Further Order of the Tribunal can be significantly different from the original one. However, the assessors' report is now with the State Governments, and they will give their comments. The point is that the ultimate responsibility for a decision rests squarely with the Tribunal, and that decision has to be a judicial one. It is somewhat disturbing to note that the Tribunal has been showing undue sensitivity to the political dimensions of the dispute. One understands that judges cannot be wholly oblivious to the political implications of their judgments. However, that awareness should not be carried too far. Ultimately, judges must judge: it is for politicians to worry about political considerations, and for the Governments to worry about law and order.

(The writer is a former Union Water Resources Secretary.)

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