2AHIFA?

JELAI
Cauvery Award results. The government of India made
unsuccessful efforts to bring about an
agreement. Based on a report (1972) by
a fact-finding committee appointed by the
Some Questions and Answers government of India, and further studies
by an expert committee, an agreement was
The final order of the Cauvery Tribunal makes allocations of worked out in August 1976. The agree-
ment was even announced in Parliament.
Cauvery waters to the four parties to the dispute, recommends Unfortunately, the announcement was
proportionate adjustments in years of low rainfall, and proposes the premature. Tamil Nadu was then tempo-
establishment of a Cauvery Management Board for monitoring the rarily under central rule and it was felt that
implementation. There is no real basis for concern or dismay in the agreement should wait for a popularly
any of the states. The allocation numbers have no great practical elected government; and when an elected
All India Anna Dravida Munnetra
significance but what needs to be done is to arrive at an understanding Kazhagam government took over, it refused
on how water will be shared in distress years. What lies at the to ratify the understanding because it was
heart of this conflict is excessive demand by all the parties. not considered wholly satisfactory. The
prospects of a resolution of the dispute
RAMASWAMY R IYER state of Mysore. The dispute was about how which had seemed promising receded.
to allow Mysore to proceed with irrigation Thereafter, the central government con-

T
he long-awaited final order of the development and to build anicuts and other tinued to make efforts to settle the dispute,
Cauvery Tribunal has come at last, structures for this purpose on the Cauvery and there were also discussions at the level
and it is a matter of relief that despite and its tributaries while at the same time of the chief ministers but the dispute
the earlier indications of differences within protecting the interests of the Madras remained unresolved. Eventually, in July
the Tribunal, it is an unanimous order. The Presidency. After prolonged discussions, 1986, Tamil Nadu made a formal request
Tribunal has redeemed itself. The aim of there was an agreement in 1892; a further to the government of India under the Inter-
this article is mainly to take note of some dispute; arbitration under the auspices of State Water Disputes Act (ISWD Act)
of the responses to the final order that have the government of India; an appeal against 1956 to set up a tribunal to resolve the
been reported in the media, and to clarify that arbitral award to the secretary of state in dispute. For various reasons the central
the issues involved. However, it is neces- London; and, at the instance of the secretary government did not immediately
sary first to trace very briefly the history of state, a resumption of mutual negotia- establish a tribunal; it continued to favour
of the dispute and the developments that tions between the two parties leading to a negotiated settlement. Meanwhile, a long-
finally resulted in the Tribunals award, an agreement in 1924. The details of that pending petition by some Tamil Nadu
state in summary form the substance of the agreement will not be examined herein but farmers to the Supreme Court of India for
award (or final order those two terms a reference to the agreement will be made an assurance of irrigation water from the
are used interchangeably), and then pro- again later. The important point to note is Cauvery came up for a hearing, and the
ceed to discuss the responses to it. (The that it provided for the review of certain Supreme Court, taking note of the failure
account of past developments in this article clauses after 50 years, i e, in 1974 but the of negotiations and the fact that a request
draws upon the authors earlier writings.) review did not take place, nor was the from Tamil Nadu for a tribunal was pend-
The Cauvery is a system of rivers consis- agreement either terminated or renewed. ing, ordered the central government to
ting of the Cauvery itself and a number of (Whether the 1892 and 1924 agreements establish a tribunal within a month. The
tributaries such as the Hemavati, Kabini, continued in force and bound Tamil Nadu government of India accordingly estab-
Bhavani, Amaravati, and others. Karnataka and Karnataka as successors to the old lished the Cauvery Waters Tribunal on
and Tamil Nadu are the principal states in Madras Presidency and Mysore state, was June 2, 1990.
the Cauvery basin but a small part of the among the points of difference between the Article 262 of the Constitution and the
basin is in Kerala, and at the very end, the states.) The Cauvery dispute in its present ISWD Act 1956 enacted by the Parliament
Cauvery delta includes Karaikal which is form dates from that time (the 1970s). This under that article are important compo-
a part of the union territory of Pondicherry was essentially about the sharing of Cauvery nents of Indian federalism: they provide
(now Puducherry). waters by the four riparians (Kerala, for the adjudication of disputes between
Karnataka, Tamil Nadu and Puducherry). states over the waters of interstate rivers.
Brief History of the Dispute It was under that act that the Krishna,
Establishment of Tribunal Godavari and Narmada Tribunals had been
The dispute over the Cauvery has a long set up earlier, and the Cauvery Tribunal
history and goes back to the 19th century. Talks between Karnataka and Tamil was set up in 1990. The manner in which
The ruling parties then were the Madras Nadu went on intermittently for over two that mechanism has been working, the
Presidency in British India and the princely decades from the 1970s but produced no changes that were needed, and the

Economic and Political Weekly February 24, 2007 639

amendments to the Act made in 2002, is notified, will replace the IO. However, of intellectuals; what was needed was a
need not be examined over here. Suffice three points relating to it need to be noted. meeting of farmers. The Madras Institute
it to say that in the Cauvery case, the First, right from the beginning, Karnataka of Development Studies, with the old
adjudication process has been running a was strongly resistant to the idea of imple- Guhan legacy in mind, were of a similar
troubled course. menting the IO, going to the extent of view, and S Janakarajan of that institution
trying to nullify it through an ordinance undertook the exercise of bringing the
Nature of the Dispute (which was declared unconstitutional by farmers of Tamil Nadu and Karnataka (the
the Supreme Court on a presidential ref- two principal contending states) together.
The essence of the Cauvery dispute is erence), and at a later stage even defying This has had a measure of success. The
a conflict of interests between a down- the Supreme Court and attracting charges very first meeting of around 100 farmers
stream state (Tamil Nadu) which has a long of contempt of court. Secondly, the IO from both states (Chennai, April 2003),
history of irrigated agriculture and has in caused anger and dismay in Karnataka, with some academics, engineers, NGOs,
the process been making substantial use and popular frenzy (partly engineered by and media people associated, was
of Cauvery waters, and an upstream state some elements) led to tragic violence and characterised by a spirit of warmth, friend-
(Karnataka) which was a late starter in introduced a new strain in the relationship liness and fraternity, and a concept of
irrigation development but has been mak- between Tamils and Kannadigas. That Cauvery Family emerged. There was a
ing rapid progress and has the advantage frenzy died down after a while, and a general recognition that the farmers of the
of being an upper riparian with greater fragile calm came to prevail but the final Cauvery Family must live together in
control over the waters. Kerala (an up- order has now led to a similar response of harmony and constructive cooperation, and
stream state with a relatively modest anger and dismay, though no violence has must learn to make the necessary adjust-
demand for Cauvery waters) and been reported so far. We shall return to ments. That spirit has continued to prevail
Puducherry (the lowest riparian with a this later. Thirdly, the question of imple- in several further meetings that have since
very small demand) have become parties mentation of the IO, and of release of taken place in locations in both states. The
to this dispute. Any fair sharing would waters to save standing crops repeatedly farmers from either state have visited areas
have to provide for the legitimate interests went to the Supreme Court in the 1990s. in the other state and have developed a
of all four parties. Unfortunately, driven Without going into that interesting better mutual understanding of problems
by the forces of party politics, the govern- story, it may be noted that during the and needs. Some mutual misperceptions
ments of the two principal contending states course of that process a political crisis- have been partially if not wholly removed.
have over the years generated and fostered defusing body misleadingly called the While a sharing agreement or a formula
strong chauvinistic sentiments among the Cauvery River Authority was set up. It did for years of distress did not emerge out of
general public, which tend to limit their not prove to be very effective, and in any the process, the warmth of the family
(the governments) own freedom and flexi- case, it will cease to exist once the IO relationship that has been established and
bility. In both states the mention of Cauvery expires with the coming into effect of the the spirit of goodwill and harmony that
waters evokes a strong emotional response. final order. came to prevail among the farmers from
The dispute has become (or has been made the two states were very remarkable. This
to become) a major issue in electoral The Cauvery Family was a considerable achievement but we
politics. In both states, all parties tend to must now hope that the Family will be
take a strong stand on this issue, making The intractable nature of the dispute, the able to withstand the strains arising from
it risky for whichever party is in power to inability of the governments and the poli- the responses to the final order and con-
give the impression of being weak or of ticians to rise above the calculus of party tinue to play a useful role.
failing to protect the interests of the state. politics, and the eruption of violence in
That was the reason why this dispute 1992 led to the feeling that some kind of Final Order
became so intractable. a non-official initiative was necessary for
promoting understanding and exploring In its final order, the tribunal has pro-
Interim Order of 1991 the possibility of a settlement. In the early ceeded on the basis of an annual availabil-
1990s, the late S Guhan, along with others, ity of 740 tmcft in the Cauvery on a 50
The interim order (IO) of 1991 was passed tried to organise meetings on the Cauvery per cent dependability basis (this will be
by the Tribunal in response to Tamil Nadus issue under non-official auspices to pro- explained later). It has allocated this as
plea that pending the completion of the mote understanding between the two states follows: Tamil Nadu 419, Karnataka 270,
adjudication process which might take time, at the level of the people. After a promising Kerala 30 and Puducherry 7. That leaves
there was a need for some assurance of beginning that initiative lost steam. Later, 14 tmcft, out of which 10 is meant for
water for irrigation in the Cauvery basin when interstate dissensions at the political environmental protection, and four repre-
in the state. The IO was to the effect that level on Cauvery were at their height in sents the inevitable escapages into the
Karnataka should ensure an annual release 2001-02, the present writer wrote several sea. Karnataka has to release 192 tmcft
of 205 thousand million cubic (tmc) feet articles strongly urging a civil society from Billigundulu out of which 10 tmcft
of Cauvery waters to Tamil Nadu (of which initiative to break the governmental log- are meant for environmental purposes.
six tmcft should go to Puducherry); it jam; as a first step, he convened a small This means that 182 tmcft are meant for
also laid down a detailed monthly and informal meeting at Bangalore at the Tamil Nadu, which, together with the
schedule of releases. house of the former chief justice of 25 tmcft that becomes available between
We need not go into the chequered history Karnataka justice Nittor Srinivasa Rao Billigundulu and Mettur adds up to an
of the IO here, as the final order, once it (now, alas, no more). That was a meeting availability of 207 tmcft at Mettur. (The

640 Economic and Political Weekly February 24, 2007

 back to the Tribunal within a period of
three months if the central government or
any of the state governments feels that
anything in the Tribunals decision re-
quires explanation or that guidance is
needed upon any point not originally re-
ferred to the Tribunal. That is not a
provision for a review but the state
governments are not likely to be constrained
by the wording. They are bound to raise
all their doubts, dissatisfactions and griev-
ances, virtually converting the references
into review petitions. The Tribunal will
undoubtedly give due consideration to such
references. One must hope that it will give
its response to such a reference promptly,
and that the government of India will notify
the Tribunals decisions in the gazette
without any loss of time.
Q 3. Is an approach to the Supreme Court
available?
A. Again, strictly speaking the answer is
no. The ISWD Act 1956, under a spe-
cific provision of Article 262, bars the
jurisdiction of the courts (including the
Supreme Court) once a dispute has been
referred to a Tribunal set up under the Act.
difference between this and the total award, which is considered to be unfair and This writer has been arguing for years that
allocation of 419 to Tamil Nadu represents unjust; some have even described it as a single non-appealable decision might
the resource-generation within the state.) biased. There has been some talk of reject- leave one or more parties to the dispute
For years of low rainfall, the award en- ing the award. In Tamil Nadu, while the dissatisfied (as has now happened), and
visages a proportionate adjustment of the award seems to have been generally wel- that a provision should be made for an
allocations. The award also recommends comed, there are dissenting voices. Apart appeal to the Supreme Court; but that
the establishment of a Cauvery Manage- from other parties, even the Dravida suggestion has not received any attention,
ment Board which will monitor the monthly Munnetra Kazhagam (DMK) government and the present position (as understood by
schedules and (with its committees) func- which initially said good things about the this writer) is that there can be no appeal
tion as a regulatory authority. award now finds issues that need clari- against the award of the Tribunal to the
(Incidentally, in fixing the release from fication. In Kerala, the allocation made to Supreme Court. Nevertheless, the aggrie-
Karnataka at 192, the award takes into that state is considered inadequate. There ved parties cannot be prevented from going
account 182 tmcft for Tamil Nadu plus 10 has been talk of review petitions in all the to the Supreme Court. If they do, it would
for environmental purposes, but forgets states (except perhaps Puducherry). Some be for the Supreme Court to decide whether
four for escapages into the sea: the release have urged a petition to the Supreme Court. to entertain the petition or not. Having
ex-Karnataka should have been 196 tmcft.) The points that arise from all this are regard to the explicit provisions of Article
Engineers differ on the question whether examined below in the form of questions 262 of the Constitution and the ISWD Act,
50 per cent or 75 per cent is the better and answers. it is difficult to see how such a petition
dependability principle. A 50 per cent Q 1. Is there a question of accepting or can be entertained, but some legal experts
(or 75 per cent) dependable flow means rejecting the award? think that there are other constitutional
that the flows are expected to be equal to A. No, that choice is not legally available. provisions under which the Supreme Court
or higher than that number in 50 (or 75) The award is a judicial verdict which is may entertain despite the bar of jurisdic-
years out of 100. The allocation has to be final and binding, and in terms of the 2002 tion. This writer can offer no opinion on
based on some numbers, and it does not amendment to the ISWD Act 1956, it has that question.
really matter whether the 50 per cent or the force of an order of the Supreme Court. Q 4. Is there any merit in the complaint of
75 per cent basis is adopted, so long as Q 2. Is there scope for a review petition? injustice and bias made by many in
there is a provision for dealing with the A. Strictly speaking, the ISWD Act does Karnataka?
contingency of the availability falling not provide for a review petition. How- A. That complaint springs from the sense
below the adopted number. ever, if (as the Act says) the decision of of historical injustice that stands firmly
the Tribunal has the force of an order of entrenched in the Karnataka psyche. It has
Responses to the Award the Supreme Court, then a review petition for long been felt in that state that the 1892
should be possible, as in the case of orders and 1924 agreements between the Madras
In Karnataka there seems to be deep of the Supreme Court. Be that as it may, Presidency and the princely state of Mysore
dissatisfaction in all quarters with the the ISWD Act does provide for a reference were unfair impositions by the former on

Economic and Political Weekly February 24, 2007 641

the latter; and whether it was right or a statement of the historical background; over the presentation of their respective
wrong, it was an understandable view. this writer takes no position on it. cases, consulted experts of high standing,
Essentially, the 1924 agreement permitted Coming back to the present, both Tamil engaged eminent counsel, and submitted
the Krishnaraja Sagar (KRS) project (and Nadu and Karnataka (not to mention massive documentation. It is not open to
in a sense, the Mettur project) to proceed Kerala and Puducherry) were disputants any of them to say that its case has failed
but imposed restrictions on the extension before the Tribunal: neither was more to receive a proper hearing. However,
of irrigated areas in either state, and it powerful than the other or able to prevail judges can of course make mistakes, and
was in relation to that restriction that the against the other. The Tribunal was a if they do so, their decision may well
sense of unfairness came to prevail in judicial body acting under an Act of appear unjust to one or more parties. This
Karnataka. However, that grievance, Parliament that in turn derived its autho- writer would interpret the Karnataka
assuming that it was justified at one time, rity from an article of the Constitution, complaint of injustice as implying that in
ceased to be relevant a long time ago. and it was a body consisting of three the view of many in that state, the Tribunal
Both states expanded their irrigated agri- judges (none of them from any of the has given a wrong decision that impinges
culture beyond the prescribed limits, and contending states). There was no reason adversely on that state. If so, a remedy is
Karnataka went ahead and built not only why the judges should favour one party available: as mentioned earlier, a petition
the KRS project but also the Kabini, to the dispute, go against another, or why can be made to the Tribunal within three
Hemavati and other reservoirs. This gave they (a body appointed precisely to do months.
Karnataka control over Cauvery waters, justice) should render injustice. The Q 5. Are the protests in Karnataka proper?
thus completely changing the earlier charge of bias or injustice simply cannot A. Any judgment of the Supreme Court
situation. Thereafter, there was no longer be sustained. The Tribunals final order is can be criticised. It follows that the
any basis for grievance on the part of that a judicial determination and must be Tribunals final order can also be criticised.
state: Tamil Nadu became the aggrieved ipso facto presumed to be fair to all parties. However, this must be done in a manner
party (again, whether with just cause or During the inordinately long period of the consistent with respect for the rule of law,
not), with a sense of insecurity with adjudication process, all the four state the Constitution and the spirit of feder-
regard to Cauvery waters. That is merely governments took a great deal of trouble alism. Some of the recent developments

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642 Economic and Political Weekly February 24, 2007

in Karnataka fill one with disquiet. Calls expect good results from it, were prepared 192 tmcft (which was earlier described as
for a rejection of the award, a bandh to find injustice in the award, and now of operational significance) really means
bringing all activity to a standstill, etc, are think that they have found it. As for Tamil nothing in a normal year: the crucial point
actions of doubtful propriety. Protests and Nadu, many in the state tend to recall the and this is what has been causing all the
public meetings are of course in order but time when that state was the predominant trouble is the sharing of water in a distress
not the disruption of the normal life of the user of Cauvery waters; the allocation was year. Here the Tribunal has offered no
people; that is ipso facto an act of violence, bound to be lower, and they find this hard formula but has stated the principle of
even if the bandh is peaceful in a nomi- to accept. Unless the two states rid them- proportionate adjustment and has left the
nal sense. A call has been made for a ban selves of the burden of the past, they are detailed management of this to the pro-
on Tamil films. Why? Karnatakas quarrel unlikely to be able to take a reasonable posed Cauvery Management Board and its
is surely with the Tribunals decision, not view of the matter. committees.
with the Tamil Nadu government which Q 6. Is there any real basis for concern or What needs to be done urgently is to
was merely another party to the dispute, dismay in any of the states? arrive at an understanding on how water
much less with the Tamils or their lan- A. This writer would venture to answer will be shared in distress years. (It is only
guage. Unfortunately, instead of provid- that question with a no. In his maverick in the context of determining the pro-
ing guidance to the people, leaders tend view, the allocation numbers (419 tmcft portionate adjustment in a difficult year
to follow popular sentiment, doubtless on for Tamil Nadu, 270 for Karnataka, 30 for that the allocation numbers have a role to
political considerations. The former chief Kerala and seven for Puducherry) have no play.) This should be the first task of
minister Krishna did this earlier, going to great practical significance. That may the Cauvery Management Board as soon
the extent of defying the Supreme Court, seem a startling statement and needs to be as it is constituted. If the Tribunal can be
and now a Karnataka minister whose car explained. faulted on any count, it is on its failure
is stopped in Mandya comes out and joins In the first place, the allocations for the to work out a detailed, technical, opera-
the protest instead of giving the right advice two upper riparians are entirely notional. tional formula for water-sharing in distress
to the protesters. Even more questionable Nobody releases water to Kerala; it falls years. However, even that may be a
is the action of Deve Gowda, a former from the skies. The same is true of blessing in disguise. Instead of being
prime minister of India, in declaring the Karnataka, except for the inflow (natural, frozen as a part of a judicial determination
Tribunals award to be arbitrary and not released by Kerala) from the Kabini and becoming rigid and unalterable,
blatantly one-sided and discriminatory. river. Similarly, a good part of the allo- distress-sharing will now be a practical
Having thus added fuel to the fire instead cation to Tamil Nadu is really natures matter to be worked out by the Cauvery
of dousing it, he expresses grave concern bounty. The only figures of any opera- Management Board with which the
about the tendency to play politics over tional significance are what Karnataka state governments will have a working
natural resources, about the danger to has to release to Tamil Nadu, and relationship.
national integration, and about erosion what the latter has to release to Karaikal If we look at the matter in this manner,
in the credibility of interstate arbitration (Puducherry). (Incidentally, it must be there is no need at all for any anger, gnashing
bodies and tribunals; one hopes that the noted that these states have acquired the of teeth or beating of breasts. The entire
irony of this sanctimonious statement is power to release or give water only business of protests, bandhs, etc, is quite
not lost on the readers. It was also quite by first stopping the natural flow behind unnecessary.
strange to see the lawyers of Karnataka, dams.) Q 7. Finally, what lies at the heart of this
who presumably know their law and Secondly, the level of utilisation in Kerala conflict?
the Constitution of India, taking to the in the 1970s had been determined as five A. Each state projects a figure of what it
streets and boycotting the courts. Was there tmcft. It might have gone up since then but thinks it needs, and the sum of those figures
no senior or wise member of their it will be a long time before it reaches the far exceeds the availability of water in the
profession to tell them that what they level of the 30 tmcft allocated to the state. river; hence the conflict. However, do
were doing was grossly improper? It is For the foreseeable future, Kerala can the states really need all that water?
fair to say that similar things might proceed to step up its water use without The projections of future needs are based
have happened in Tamil Nadu too, if affecting the availability to Tamil Nadu or on current patterns of use, with some
there had been greater dissatisfaction Karnataka significantly. If and when it modest adjustments for improvements but
with the award in that state. Already, approaches the level of 30 tmcft (at some radical changes are needed. It is a well-
Jayalalithaa has made some irresponsible distant future date), it can ask for a lifting established fact that the current pattern
statements. of the limit on its use, either by an inter- of water use in all uses, and particularly
Incidentally, by what process of exami- state agreement facilitated by the proposed in agriculture is highly uneconomical
nation and analysis did Deve Gowda or the Cauvery Management Board or through a and even wasteful. Many scholars,
lawyers come to the conclusion that the new tribunal. committees and commissions have said
award is unjust to Karnataka? (A similar As for Karnataka, what is important is this. If water is better managed in all the
question can be addressed to Jayalalithaa not the allocation of 270 tmcft to it but the states, there would be no conflict. That is
in relation to Tamil Nadu.) It seems very fact that it has to release 192 tmcft to Tamil the real answer to this problem. So long
likely that these are off-the-cuff opinions, Nadu. In most years, the flow from as that wisdom does not dawn on us, there
or opinions taken over from others, or pre- Karnataka to Tamil Nadu will be higher can be no hope of avoiding or resolving
determined views. Right from the begin- than that figure. It is only in a year of low conflicts. -29
ning, the Karnataka government and poli- rainfall that difficulties may be experi-
ticians were against adjudication, did not enced. In other words, even the release of Email: [email protected]

Economic and Political Weekly February 24, 2007 643