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Cauvery Water Crisis

Rajendra Singh famously known as Water Man of India and winner of Ramon Magsaysay award in 2001 and Stockholm water prize in 2015, had said that third world war is at our gate over water owing to the critical conditions of world’s aquifers. The dispute is over Cauvery river between three States and one Union Territory of India Karnataka, Tamil Nadu, Kerala and Union Territory Puducherry is can be said that a little preview of what can happen in future if we did not take any cognizance as we can see the ugly and widespread vandalism in Karnataka and Tamil Nadu. This dispute originated for the first time way back in 1892 at the time of Britishers between the Presidency of Madras and Princely state of Mysore. In 1924 Mysore and Madras reached into an agreement which will be valid for 50 years so in 1974 that agreement ceases to be enforced and then to solve the issue in 1990 a tribunal was set up by government of India and in 1991 an interim order was issued by the tribunal ordering Karnataka to allow water to Tamil Nadu and this escalated the tensions which were already present because Karnataka said that in 1924 it has disadvantage position over Madras.

History of Cauvery Water Dispute

The total volume of water in Cauvery River is equivalent to 740 TMC and out of this Karnataka adds 462 TMC, Tamil Nadu adds 227 TMC and 51 TMC is added by Kerala through their catchment area. After the final award by the tribunal in 2007, the Karnataka government did not complied with the order and as a result Jayalalitha the former and deceased Chief Minister of India went on to strike with a demand to publish the final award by the tribunal in the official gazette of India. So owing to the pressure in 2013 the notification of the final award was published in official gazette of government of India. Thus there was a lot of tension in brief pockets of the two states between 2007 and 2013.

Apparently, Karnataka seems to have more but gets less and this raises two questions first that does injustice is being inflicted upon Karnataka? Another is that is this is a fault on part of tribunal? The answer to both these questions is clearly a NO. To explain this we have to go into history at the time when Cholas were ruling the southern India and it is being said that they had lot of vision and foresight, they build many checked dams and catchment area in Tamil Nadu and because of this Tamil Nadu generates 227 TMC of water through its catchment area and checked dams and this does not happen in Karnataka their first dam was Krishnaraja Sagar in 1934 so this was the major disadvantage over Karnataka owing to lack of infrastructure and checked dams or reservoirs Karnataka is not able to add water to river that Tamil Nadu does so it seems that Karnataka has more but getting less but evidently Tamil Nadu has better infrastructure and groundwater table . Before the award Tamil Nadu was using 80 per cent of total water of the river Cauvery and Karnataka only 16 per cent but after the award Tamil Nadu uses only 57 per cent and Karnataka percentage had risen from 16 to 37 per cent of total river water. Karnataka government had not followed the 2007 award completely so in 2016 Tamil Nadu government moved to Supreme Court to compel the Karnataka government to release water and on 5th September, 2016 Supreme Court orders the Karnataka government to release 15000 cusec of water till 15th but later it modified its order to 12000 cusec of water till 20th and this initiated the ugly and widespread violence in Karnataka causing death and huge loss to public property.

Root Cause of The Dispute

As mentioned above Cauvery river has total 740 TMC of total water which is divided between four states and according to the 2007 award Karnataka had to give extra 192 TMC of river water from its share to support irrigation to Tamil Nadu farmers and this irritates Karnataka Government especially in years when the monsoon is weak. Generally Karnataka releases more than the requisite amount of water that is 192 TMC in order to avoid flooding like situation in Karnataka but the problem arises only in years in which there is drought like situation owing to weak monsoons (as Cauvery river gets rainfall from both Southwest monsoon winds and from Northeast monsoon, despite that it does not received the required rainfall sometimes because of the climate change leading to poor rainfall). Tribunal in its award of 2007 asked the Karnataka government to allow water to Tamil Nadu on monthly basis and it also specified the amount of water to be released, and all this goes well when the monsoon is normal but when monsoon is weaker then the problem arises. There were many protest over this dispute, both these states had sour relations but in year of 2016, the protest took the most violent phase there were widespread vandalism leading to huge loss to property and even human lives and all this is happening in India which is water rich. It is not that we have now scarcity of water but the management is very poor, distribution of water is abysmal in India for example people in states like Uttar Pradesh or Bihar waste lot of water on daily basis not thinking about the hardships people are facing in arid states like Rajasthan. Our honorable Prime Minister Mr. Narendra Modi visited Israel last year leading nation in water management (being a water deficit nation it exports agriculture items that needs lot of water for irrigation) had signed various deal on strategic issues and one of them water management that involves transfer of technologies for efficient water management, which can surely alter the deteriorating condition of Indian rivers if implemented.

Supreme Court Jurisdiction: Inter-State Water Dispute

Ramaswamy R Iyer, a well known water expert had said in his article that article 262 of our constitution along with Inter-State water Disputes Act, 1956 is a very good mechanism to tackle or arbitrate the inter- state river disputes and he says jurisdiction to Supreme Court can be given but only appellate not original.

Article 262 talks about the powers conferred to parliament for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of any inter-State river or river valley. It also empowers the Parliament to enact provisions barring the jurisdiction of Supreme Court or any other courts to adjudicate. So, why Supreme Court had admitted the special leave petition under article 136 of our constitution, the answer to this question is not clear because it was never raised by any counsels who appeared in this case. The Inter-State Water Dispute Act 1956 was enacted as per the provisions of Article 262 of the Constitution which also contain provisions to bar Supreme Court jurisdiction in Inter-State Water Dispute. This act was amended in 2002 in accordance to the recommendations made by the Sarkaria Commission. In the Constitution issues relating to river water are addressed in many places viz. in Entry 17 under the list –II that is state list of seventh schedule provides that water that is to say water-supplies, irrigation and canals, drainage and embankments are under the control of state. Entry 56 under list –I that is union list has conferred the central government with powers to regulate and develop Inter-State River to the extent declared by the Parliament by law to be expedient in the public interest . So the difference between the entry 17 and entry 56 is that state government can legislate over river water within the territory of a particular state but when comes the river water flowing in more than states the central government has the authority to make laws under article 262 of the constitution.

Karnataka has problems on sharing river water to almost all its neighboring states as in another case of State of Karnataka v. State of Andhra Pradesh and Ors in this case section 11 of the ISWD act of 1956 was discussed that bar the jurisdiction of Supreme Court or any other court of India notwithstanding anything contained in any other law and clause 2 of Article 262 of the constitution also authorizes the parliament to make law excluding the jurisdiction of the Supreme Court or any other court per se in respect of a dispute or complaint while in Article 131 which gives original jurisdiction to Supreme Court to give its judgment on conflict between Government of India and one or more sate or among two or more states but the opening line of this article envisaged subject to other provisions of the constitution. Thus owing to Article 262, Supreme Court does not have the jurisdiction to hear or accept cases relating to water dispute between states, contrary to this statement in another case relating to Cauvery dispute only senior Supreme Court lawyer Shanti Bhusan representing the State of Kerala said that Article 262 is limited while the scope of Article 131 is wider in scope but according to the language used in article 131 carries different meaning what Shanti Bhusan had said and by a deep analysis of article 262 it can be deduced that it had given exclusive power to the Parliament to enact a law providing for adjudication of such disputes. The language of the Article 262 can also be differentiated from the Entry 17 and Entry 56 of state list and union list respectively which is explained above because clause one of the article talks about adjudication of any dispute or complaint and that too with respect to the use, distribution or control of waters of any inter-state river or river valley.

The act of 1956 dealing with inter-state water dispute was passed in the light of Article 262 contains in its Section 3 that if its appears to Government of any state that the water dispute with Government of another State of the nation has risen or is likely to arise, the State Government may request the Union Government of India to refer the matter to Tribunal for adjudication. Section 6 of the same act provides that decision of the tribunal is final and it is binding on the all the parties of the dispute. This act is also exclusive to Entry 17 and Entry 56 therefore parliament under Entry 56 and state legislative under article 17 cannot enact a legislation providing for adjudicating of the said dispute or in any manner affecting or interfering with the adjudication or adjudicatory process thus virtually making the decision of the tribunal decision fool and final and making its decision on any water dispute at par with the decision of Supreme Court for example the act passed by the Punjab government contrary to the decision of Supreme Court on the sharing river water with Haryana and so that act was declared null and void.

The Tamil Nadu government had approached the Supreme Court with the special leave petition under Article 136 which empowers the Supreme Court or rather say makes the Supreme Court highest appellate court as it says notwithstanding anything in this Chapter, the Supreme Court may, in its discretion can grant special leave to appeal from any judgment, decree, determination, sentence or order passed by any court or tribunal in the territory of India, thus contrary to what Article 262 but as it is established Supreme Court is the guardian of the constitution so its decision is final and further more pondering on Article 262 or section 11 of the ISWD act 1956 has clearly stated that no court has jurisdiction on any inter- state water dispute but the Tamil Nadu Government had approached the court because Karnataka government was not following the award of the tribunal, so to compel the Karnataka Government to release the 192 TMC of water to Tamil Nadu for its second season of crop, because there is no mechanism in the act established the central government state that deals with state who is not following the tribunal award and also Supreme Court said that under Article 136 everyone is allowed to appeal directly to the court for justice. Thus this is Article 262 versus Article 136 and it is established whenever two or more provisions of the constitution are contrary the will or discretion of Supreme Court is being followed.

As the court refuting the arguments made from centre said that the remedy under Article 136 of the Constitution is a constitutional right which cannot be taken away by legislation much less by invoking the principle of election and estoppel. Supreme Court in its judgment on page 18(onwards) has said that when judged by the principles of statutory interpretation to understand the legislative intendment of Section 6(2), it is clear as crystal that the Parliament did not intend to create any kind of embargo on the jurisdiction of this Court. The said provision was inserted to give the binding effect to the award passed by the Tribunal. The Court opined that the fiction has been created for that limited purpose. Section 11 of the 1956 Act bars the jurisdiction of the courts and needless to say, that is in consonance with the language employed in Article 262 of the Constitution. The Founding Fathers had not conferred the power on this Court to entertain an original suit or complaint and that is luminescent from the language employed in Article 131 of the Constitution but under Article 136, this court can adjudicate on any matter within the territory of India on all the decisions of all court, tribunals etc. The parliament in the said act by incorporating Section 6 intended that award by the tribunal shall be executed or abided as any decree or order passed by his court.

As the case is proceeding in the Supreme Court before the 3 judge bench constituted, the Counsel Fali Nariman representing the Karnataka Government is presenting its argument is that tribunal award of releasing 192TMC of water to Tamil Nadu is unfair to Karnataka’s farmers and residents that Tamil Nadu cannot claim 192TMC of water rather it can claim only 132TMC of water and it is said by the Karnataka Government that it would balanced the uneven distribution of water and appealed the Supreme Court that the court should keep in mind the interested of both the states. On the final day of his arguments Fali Nariman for Karnataka criticized the burden imposed on the State by the Cauvery Water Disputes Tribunal. The State, he said, was equally affected by drought and lack of rain.

Furthering its arguments the Karnataka Government said the Cauvery Tribunal order is like ordering god to send rain because Karnataka Government is pleading that to release the requisite amount of water there should be enough water in river and due to weak monsoons for two consecutive year viz. 2015 and 2016 there is not enough water in the river to release water to Tamil Nadu. Karnataka’s government argued before the bench that the tribunal award was given without taking the groundwater which is available in Tamil Nadu. It was also argued that the award had not take into consideration of the equity as also the farming families. It is said by the Karnataka that at the time of the 1924 agreement for water sharing, Tamil Nadu was entitled to develop only 21.38 lakh acres for irrigation.

However, even as the 1924 agreement continue, the State had developed 28.2 lakh acres for irrigation utilizing 566 tmcft of Cauvery water.

The solution was also proposed by the Karnataka Government before the apex court:
# Needs by taking into account the contribution of water by each State to the river valley.
# The population of each State in the basin depending upon the waters and
# The cultivable area of each State in the basin requiring application of water to raise crops.

Arguments Advanced Before The Apex Court on Behalf of Karnataka

The arguments which continued for 28 days commenced on 11th of July, 2017 by senior counsel Fali Nariman, Shyam Divan and Mohan Katarki representing Karnataka Shekar Naphade, G. Umapathy and Rakesh Diwedi for Tamil Nadu; Jaideep Gupta for Kerala and Solicitor General Ranjit Kumar for the Centre. Tamil Nadu was of the view that framing of schemes for setting up Cauvery Management Board should be done by this court invoking its inherent power under Article 142 of the Constitution (under this article Supreme Court any such decree or make such order as it is find necessary for doing complete justice in any cause or matter pending before it and it shall be enforceable throughout the territory of India as any law made by Parliament until provision in that behalf is so made, in such manner as the President may by order prescribed) giving reason for this request Tamil Nadu said this must be done for allaying the apprehensions that centre may tinker with the scheme as it took six years for publishing the tribunal award in the official gazette in 2013.

The final arguments from the Karnataka side were to urge the court about the harshness of the award given by the tribunal without giving any regard to the availability of water. Fali Nariman representing Karnataka questioned the award by alleging that how can tribunal fixed the amount of water to be released without giving any consideration to the availability of water, as if the tribunal is ordering God to send rain. He also argued that tribunal had not paid attention to the water requirement of the two-third Bengaluru city on the erroneous consideration that Bengaluru is not entitled to the supply of water from Cauvery River. Furthering its arguments it was contended by Fali Nariman that while Tamil Nadu's statement of claim before the Tribunal set out that it had developed 28.20 lakh acres of irrigation before 1974, the Tribunal's final order recognised Tamil Nadu's right to develop only 21.38 lakh acres. However, the Tribunal, in an unreasonable and inequitable manner, allocated water to Tamil Nadu for irrigating an additional 3.32 lakh acres on the vague ground of merit and equity. Karnataka argued that 1924 agreement was based on flow of water rather than the need so there should be need based apportioned and it should depend on the contribution to the river valley by each state. As per Karnataka's calculations, the actual amount of water to be allocated to Tamil Nadu ought to have been 311.6 TMC as opposed to the amount of 390.85 TMC allocated by the Tribunal.

Arguments Advanced Before The Apex Court on Behalf of Tamil Nadu

Tamil Nadu state was represented by Senior Counsel Shekhar Nephade arguing in the court he submitted that under Section 2 of the aforementioned act the definition of agreement consists of all the agreement executed prior to this act including agreements of pre-independence, so the arguments from the Karnataka side that agreement of 1892 and 1924 are not within the scope of this article are baseless. It is further argued by him that around 64% of Bengaluru lay outside the basin and the Tribunal was right to consider only 1/3rd of Bengaluru's needs while determining its water supply. Any further water supplied to Bengaluru would amount to trans-basin diversion in complete contravention of the principles of equitable apportionment, the National Water Policy and the Helsinki Rules, 1966.

Such trans-basin diversion is detrimental and would lead to chaos (a ‘basin state’ is defined under article III of Helsinki Rules, 1966-A "basin State" is a State the territory of which includes a portion of an international drainage basin). Further, Karnataka also allowed Bengaluru to grow unchecked and unplanned about its water supply and also fails to treat its sewage water. Countering the Karnataka’s submission on availability of groundwater in Tamil Nadu, senior counsel argued that ground water level does not remain uniform throughout the year and is subject to various factors such soil characteristics and rainfall, so it cannot be considered as additional water source.

It was also argued from the Tamil Nadu side that Karnataka had been persistently defiant in preventing Tamil Nadu from utilizing its share of the Cauvery water and that such defiance necessitated the need for the Cauvery Management Board. Tamil Nadu also contended that Karnataka had increased area under irrigation much beyond the scope of the 1924 agreement.

Supreme Court Findings
The states of Tamil Nadu, Karnataka, Kerala and Union Territory of Puducherry had submitted their demand of allocation of water for irrigation viz. 566TMC, 466TMC, 100TMC and 9TMC. The Supreme Court had upheld the award given by the Tribunal given in this regard, the tribunal taking cognizance overall material and factors for example crop pattern, duration of crops, consumption of water, soil condition and rain pattern awarded 250.62 TMC to Karnataka for its 18.85 lakh acres, 390.85 TMC to Tamil Nadu for its 24.71 lakh acres. Kerala had been awarded 29.76 TMC which was to be rounded to 30 TMC for its different water projects. Puducherry had been awarded 6.35 TMC. The court said keeping in view of accepted principles it find nothing implausible in tribunal’s award.

The Tribunal in its award had estimated availability of 20 TMC of groundwater in Tamil Nadu but the stand taken by Tamil Nadu that over-extraction of groundwater without adequate replenishment is generally avoidable, so Supreme Court giving due regard to Tamil Nadu’s plea said that it is unhesitant opinion that at least 10 TMC of ground water available in the delta area of Tamil Nadu without any yield from 740 TMC of Cauvery Water.

For the domestic and industrial use of water of Tamil Nadu Supreme Court agreed with Tribunal that allows 20% for domestic purposes and 2.5% for industrial use and remaining would return to reservoirs, storage, tributaries and canals as the case may be.

The Tribunal had fixed the water requirement for the urban area of Bengaluru 8.70 TMC and 8.52 TMC for rural population. Supreme Court had overruled this quantification by saying that there is no basis for this whatsoever. Supreme Court had awarded an additional 4.75 TMC of water to Bengaluru city by asserting that “we are disposed to think so, for the city of Bengaluru, as an evident phenomenon, has burgeoned over the years and has grown today into a progressively sophisticated, sprawling, vibrant and a much aspired seat of intellectual excellence particularly in information technology and commercial flourish. It has transformed into a nerve centre of contemporaneous significance and its population is daily on the rise, thus, registering an ever enhancing demand for all civic amenities”. Supreme Court said though it is true and only 1/3rd of Bengaluru city located in the basin, but these principles of inter-state river basin and territorial or geographical demarcation cannot be always be strictly construed. As there been many instances in which a water deficit area had een provided water from water surplus area for example the water crisis of Latur district in Maharashtra.

The Revised water allocation amongst states:
Karnataka- 270 TMC ( 10 TMC ( Ground water availability) + 4.75 TMC (For Bengaluru City))
Tamil Nadu- 404.25 (419 – 14.75) TMC
Rest of allocation is same as decided by the Tribunal.

Conclusion
No one in the History has ever thought of any water dispute within the nation like India which is water rich and known for its rivers. Unfortunately, we are now suffering from water crisis as most of the river water is polluted that even it can’t be use directly for irrigation and full credits goes to the Industrial development which is dumping the polluted waste water into rivers thus not only polluting the water but also disturbing the ecosystem in the water. As the most of the rivers in South India are non-perennial that is they are rain fed unlike the rivers in North India which are snow fed. So whenever there is weak monsoon problem arises and this problem become more serious when two riparian states share the water from the same river like in this case Karnataka and Tamil Nadu for the river Cauvery though this conflict comprises Kerala and Puducherry but the main problem is between the Karnataka and Tamil Nadu. Last year we saw the ugly face of this problem through violent protest and widespread vandalism on the streets of both the states.

As a result Tamil Nadu government approached to the apex court because the Karnataka government was not following the order given by the tribunal established by the central government to adjudicate the Cauvery dispute and this also arises the some sort of Constitutional crisis whether Supreme Court has jurisdiction on the inter-state water dispute or not but as the Supreme Court accepted the Special Leave Petition under the article 136 thus solving or rather say ignoring the constitutional crisis which poses by the Article 262 of the constitution which empowers the Parliament to excluding any court to adjudicate in inter-state water conflict but as the Supreme Court is the guardian of the constitution so its decision is final.

The problem of Cauvery water is very old and complex so it was once contemplated to link the North India’s perennial river with the South India river thus solving the water crisis in the southern part of the country but as the process is very complex because it will need huge finance, time and political will but it also hamper the ecosystem to a great deal thus instead solving the problem it may further aggravate it. As the problem arises only in those years when the monsoon is weak so it is burden on the government in respective states and the union government to form an effective water policy in the country and to enhance water management through schemes and spreading awareness among the citizens of the country against water wasting. It is very hard to digest despite being a very old and complex issue originating in 1892 it is still not solved by the any government as it can be concluded that it lacks any political will to solve the issue which is harassing the farmers of the both states. The last to last year violent protest that killed several people and damaged the public property because of the farmer protesting but it is very hard to believe that farmer who has not enough to feed himself and his family will burn the bus or took part in the vandalism. Political parties often took extreme positions and indulged in politics which makes problem solving through negotiations next to impossible.

Thus the problem will remain till the central government and state government does not arrive at a mutually beneficial solution leaving the petty politics side for once and solving the ages old issue thus giving the poor farmers of both the state a sigh of relief. Avery positive step is taken by the union government this year when Union Minister Uma Bharti had introduced the Inter-state River Water Disputes (Amendment) Bill, 2017 introduced in Lok Sabha in which there is a provision of Single Standing Tribunal (with multiple benches) instead of existing multiple tribunals thus making it more centralized. It also fixed the maximum time-period for adjudicating a dispute that is four and a half year and the decision of the tribunal shall be the final and binding with no requirement of publication in official Gazette. This bill is a revolutionary step in inter-state water disputes and it should be past from the parliament without any hurdles from the opposition parties by thinking for the people affected by these issues not for their political gains. 

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