Cauvery issue: Politics scores over reason

Yogesh Pratap Singh & Afroz Alam

It will not be a surprise if the Supreme Court, while taking note of Karnataka's defiance of its decision to share Cauvery waters with Tamil Nadu, may decide strongly against Karnataka for judicial contempt and critiquing the Centre for deferring the constitution of Cauvery Water Management Board (CWMB) on procedural grounds. Sadly, the Cauvery water dispute has provided an arena for institutional conflicts as both legislature and judiciary are pointing fingers on each other on their exclusive competence to deal with the matter. Supreme Court's direction to the Centre to form CWMB and Karnataka to release Cauvery waters for Tamil Nadu has been taken as an exercise of judicial power beyond constitutional mandate. In a word, the Cauvery water issue has been deeply politicised without any “political will” to resolve the dispute in the best interest of all stake holders. The constitutional plans have been sacrificed for electoral dividends. 

The Supreme Court's order to Karnataka to release 15,000 cusecs (cubic feet per second) for 10 days to Tamil Nadu, led to protests by Karnataka farmers. This is only a continuation of this prolonged dispute. The constitutional arrangement for resolving inter-state water disputes was derived from Sections 130-134 of the GOI Act, 1935. Water, as a subject matter, occupies entry 56 and entry 17 of list I and list II, respectively. Entry 17 of the list II empowers states to legislate on water-related infrastructural projects such as irrigation, drainage, storage and power. It is subject to entry 56 of list I, which gives the Parliament exclusive power notwithstanding anything in the Constitution, to legislate on regulation and development of inter-state rivers and river valleys as has been declared by law to be in the public interest. 

The only legislation dealing with inter-state water disputes is the Inter-State Water Disputes Act, 1956. Article 262 provides for a specific law enacted by Parliament to adjudicate these disputes excluding the jurisdiction of all courts, including the Supreme Court. This is precisely for three reasons; to elude prolonged accusatorial litigation at all costs; dispute was more political rather than legal; and being a matter of high technical magnitude needed to be resolved by a specialised body. However, states found ways to work around that bar and approached the Supreme Court. The most astounding part is that the Supreme Court has often gratified them by using its imaginative interpretation, inherent cosmic and multiple jurisdictions. Concurrent adjudication by two forums, one for distribution of water and other for enforcement of fundamental rights, complicated the matter. Three Special Leave Petitions, later converted into civil appeals, were admitted against the 2007 order of the Tribunal, not yet heard substantively. Some hearings were done in 2013 but on interlocutory applications filed in civil appeals which are listed along with the original federal suit of Tamil Nadu (Article 131) filed in 2001. The intention of drafters was battered. 

Why do Karnataka and Tamil Nadu reject cooperation when it would appear to be in their mutual interest to accept it? The answer lies nowhere else but in politics. Several attempts have been made in pre-and post-Independence India to utilise the water resources of the Cauvery basin between both the states. On every occasion the efforts to implement the schemes, agreements and collaborative decisions fell short of their objectives because they were impeded by the persistence of competitive power politics. The locus of resentment and mass discontent is rooted in electoral and other compulsions of political actors, ruling or opposition. These actors are more interested in reaping electoral dividends than in devising a mutually agreeable scheme of water redistribution. 

In the process, the interests of people in general and farmers in particular from both the states are seriously compromised. Frequent protests, processions, and are being called by the political parties without an exception in both the states to appease their people, particularly farmers. It could be seen in the strategic deployment of emotional languages by all political parties in Tamil Nadu and Karnataka. A Member of Parliament from Tamil Nadu allegedly threatened in 2002 that if the Cauvery water-sharing dispute was not resolved, Tamil Nadu could go the way of Kashmir. When the Cauvery Water Dispute Tribunal gave in its verdict (2007) a lion's share of the water to Tamil Nadu, there was mobilisation and counter-mobilisation in Karnataka and Tamil Nadu. Mutual blame game, apart from bashing the Centre, is a normal politics of these states as was seen in the recent political bickering between chief ministers Jayalalithaa and Siddaramaiah. The electorates of both the states are shown by their respective ruling parties that a pressure is being built over the Centre and related bodies for a decision which will be of greatest gain to their state than sitting together to resolve the dispute. The Karnataka government's disinclination to follow the apex court's order is due to the fear of losing support of the farmers in the upcoming Assembly elections. 

Inter-state rivers are national assets and must be declared to be so. Up till now, the focus has bizarrely been on absolute quantities of water. This is irrational as it would apparently differ primarily for two reasons; one, the Cauvery is not a glacier-fed river; and two; being a monsoon-driven river, water flow perceptibly varies in different seasons. A constant proportion sharing of riparian rights, notwithstanding the actual flow of water, could have been more feasible solutions. However, tactlessly the Tribunal bestowed a final allocation of absolute amount every year which might be combative when the water flow declines. A robust, scientific and empirical mechanism for sharing of waters may be built by a national commission empowered for this purpose as was done in the distribution of revenue by the Finance Commission. However, in the absence of political will, it becomes irrelevant to ask that under what circumstances both the states will accept cooperation and under what they will reject it.

Yogesh Pratap Singh, Associate Professor of Law at National Law University Odisha, is Deputy Registrar, Supreme Court. Afroz Alam is Associate Professor & Head, Department of Political Science, Maulana Azad National Urdu University, Hyderabad.