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“My family, which grows rice and which has sold it to feed the town's people for generations, is now dependent on rice from the public distribution system. Is there anything left for me to say?”

Venkatesh P, a 30-something progressive farmer in Panakanahalli of Mandya taluk, the hub of the Cauvery basin in Karnataka, talks about how the rice they grow and eat has run out.  (Economic Times Sept. 10)

On 25 August 2016, citing a bad monsoon, Siddaramaiah (Karnataka’s CM) announced that Karnataka was not in a position to release Tamil Nadu’s share of the water. This declaration triggered a new battle between the two states. Tamil Nadu approached the Supreme Court. On 5 September, the court instructed Karnataka to release 15,000 cusecs—cubic feet of water per second—from the Cauvery River to Tamil Nadu every day, for ten days, in order to save the latter’s samba crop. The court’s decision caused Karnataka to erupt in protests.

Pro-Karnataka activists called for a state-wide bandh on 9 September. “The state government has resolved not to oppose the bandh,” Siddaramaiah said on 8 September. On 10 September, Karnataka approached the court, and requested it to reduce to the flow from 15,000 cusecs to 1,000 cusecs a day, for six days instead of ten. On 12 September, the Supreme Court modified its order, asking the state to release 12,000 until 20 September instead. 

But protests and legal tussles over the Cauvery are not new to Karnataka, or even to Tamil Nadu. The 498-kilometre-long river originates in Karnataka’s Coorg district, and flushes out to the Bay of Bengal after stretching through Tamil Nadu’s lowlands. The part of its basin that is in Tamil Nadu is over 44,000 square-kilometers, and 32,000 square-kilometres are in Karnataka. (Of the remaining, about 2,800 square kilometers are in Kerala and another 160 in the Union Territory of Puducherry.) But an agreement to share the waters of the river—and that was acceptable to the two major stakeholders—has been in the works since 1892.

The fight for the Cauvery has become part and parcel of the social and political history of the two states over these 125 years. In 1892, after a careful—and reportedly considerate—discussion the Princely State of Mysore(present day Karnataka), and Madras Presidency, an administrative unit under the British rule that included present-day Tamil Nadu, signed an agreement. In it, Madras was given the right to share the Cauvery. In 1924 in the form of a disagreement over the construction of a dam and a reservoir at Kannambadi, (Krishna Raja Sagara dam),Mysore and Madras signed another agreement which prescribed rules for further construction along the river, and set down limits on extension of irrigated areas. The agreement, which was signed for 50 years, lapsed in 1974.

Between the years of 1960 and 1980, Karnataka had begun building irrigation projects along the tributaries of the Cauvery. With the construction, the volume of water available to Tamil Nadu fell, and discontentment brewed.

In 1990, in response to Tamil Nadu’s grievances, the Supreme Court ordered the formation of Cauvery River Dispute Tribunal. The court charged the tribunal with adjudicating the dispute between the states. Over the next few years, as the tribunal continued deliberations, it issued an interim order to ensure water-sharing, asking Karnataka to release 205 thousand million cubic feet (TMC) to Tamil Nadu. But Karnataka contested this decision. The states continued to spar, especially during rain deficient years. In 1993, Tamil Nadu Chief Minister J Jayalalithaa went on sudden fast, demanding water for the state. She gave up the fast only after the centre promised that it would monitor the implementation of the tribunal’s interim order. In 1995, due to poor rainfall, Karnataka failed to follow the order.

After nearly two decades of deliberation, in 2007, the tribunal ruled that Tamil Nadu would be the major beneficiary of the Cauvery’s water. Of the 740 TMC available every year, Tamil Nadu would receive 419 TMC. The tribunal instructed Karnataka to release 192 TMC of water to Tamil Nadu every year, and prescribed monthly quotas for the release.

The latest provocation was caused by Karnataka government’s failure to release the mandated amount of water (as per the verdict of Supreme Court) to Tamil Nadu this year.

 There have been several critiques of the way in which the judiciary has handled the dispute. Ramaswami R Iyer, former secretary at the Union Ministry of Water Resources, said last year that the Supreme Court should not have allowed states to use Special Leave Petitions to contest the 2007 order made by the Cauvery Water Disputes Tribunal and accused it of prolonging the matter. But why?

Let us have a look at the legal framework.

Scope of Article 262: Under article 262, neither the Supreme Court nor any other court can exercise jurisdiction in respect of inter-state water disputes. Thus, this article gave weapon to parliament to enact a law and ban Supreme Court and high courts to adjudicate the inter-state river disputes. Using powers of this article, Parliament enacted the Interstate River Water Disputes Act, 1956 (IRWD Act) to resolve the water disputes that would arise in the use, control and distribution of an interstate river or river valley. Further, when the riparian states are not able to reach to an amicable agreement, section 4 of this act provides for creation of a Tribunal. The tribunal created this way has power of a Civil Court but its verdict is equivalent to the Supreme Court verdict when pronounced in the ambit of IRWD Act. The final verdict of such tribunal when accepted by Central Government is notified in official gazette and becomes a law, binding upon the states for implementation. In Cauvery dispute case, the centre unjustifiably delayed the releasing and notification of the Tribunal’s decision until 2007, causing delay, political hue and cry and judicial overreach.

River Boards Act In 1956, the parliament had also enacted a River Boards Act to entrust the regulation and development of inter-state rivers and river valleys to River Boards. A river board was to advise the central government on development opportunities; coordinate activities and resolve disputes. However, no river board has been created so far. In case of the Cauvery Dispute the act and its efficiency has been completely negated and ignored.

 Article 136 says that Supreme Court, in its discretion, may grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. Since article 262 bars the court to adjudicate the matters related to inter-state river disputes, this article has been used frequently to obviate this bar. State Governments of Karnataka and Tamil Nadu have invoked special leave petition innumerable times against the Tribunal’s decision or SC’s past judgments.

Scope of article 263 :{Inter-state Council} in Inter-state disputes, the Constitution entrusts the President to create an inter-state council, which along with other functions, is competent tender advice regarding the resolution of inter-State dispute. However, it took four decades to get such council established. Setting up of this council was based on Sarkaria Commission recommendations. It was set up in 1990 but not a single meeting was held for long time. It was only during Atal Bihari Vajpayee government tenure when the council was revived and meetings happened almost every year. However, even today, the Inter-state Council has been largely under-utilized and ignored.

Late Ramaswamy R. Iyer, in his article Cauvery Dispute: a Lament and a Proposal that appeared in Economic & Political Weekly points out the failings of the Central government, the Supreme Court and the Cauvery Water Disputes Tribunal over the years as also the confrontational positions adopted by the two states.Swift movement in legislative process is also a bone of contention as the river basin management bill has been stuck in draft stage for three years and now lies in cold storage. In addition to this, a bill for the formation of national water framework has failed to get a proper form and awaits deliberations by lawmakers.

A solution is possible only if the two states, political leaders and, of course, the people realize they do not have ownership rights over flowing water but just have user rights, that too equality of rights. Below are some possible solutions:

  1. Reduce water intensive crops

Shifting from water intensive crops to oil seeds, pulses and millets can help to resolve the issue for certain extent.  Also paddy varieties that use half the water per KG can be implemented.

SRI (System of Rice Intensification) method for agriculture of paddy helps to substantially reduce the water consumption by improving yield. Government should try to encourage such system in the river basin area. Technological and structural assistance should be taken from countries like Israel working on crops like paddy and sugarcane in water intensive modes of farming and developing alternatives.

  1. Promoting traditional and indigenous farming techniques and associations.

"Forget the government - our traditional methods will work in this situation. Why can't we try to grow crops from water that we conserve ourselves? There is absolutely no awareness or knowledge of how to sustain and work with nature. We have lost all that our ancestors knew and are instead sinking bore wells for water. At this rate, we will also turn into an arid district like Chikballapur," says SC Madhuchandan of Sunaganahally, who runs a farmers' cooperative in Mandya that is trying to revert. 

World watch Institute talks about a 2002 report from the UN Food and Agriculture Organization which noted how, "organic systems can double or triple the productivity of traditional systems" in developing nations. Organic farming can not only save water; it can also save money for the farmer

The Cauvery Family is a forum of academics, farmers and other stakeholders formed in 2003. Iyer too was part of this forum. It held over a dozen meetings in the two states, mainly to arrive at a workable formula for sharing distress in water deficient years, a big source of conflict. This forum worked on five formulae for water sharing before concentrating on one but as its convener S Janakarajan of the Madras Institute of Studies has been quoted as saying, “a lack of recognition for the initiative by either of the two governments or the tribunal halted its progress.” The initiative was also praised by UNESCO featuring it in a 2006 document titled Water: A Shared Responsibility. Citizens’ groups and farmers’ organizations of both states will do well to encourage such initiatives and pressurize governments and political parties to acknowledge their contribution and help them evolve solutions. The legal route alone may not work as history has proved.

  1. Reviving water sources

Bengaluru is one of the major consumers of drinking water from Kaveri river, which can be systematically addressed by reviving the lakes of Bengaluru. Also reviving the rivers like Arkavati will help to reduce the dependability of the river.

Similarly Tamil Nadu for instance had 40000 lakes in the year 1960. By the year 2000, it had lost 10,000 lakes. That’s a huge number of lakes lost to pollution, industrial waste and encroachment.

Research by Indiaspend.org reveals that Karnataka’s state capital Bengaluru uses nearly half the amount of water from Cauvery designated for domestic use in the state. The research also shows that almost half of that water is wasted in distribution losses and wastage by individuals leading to a shortage. Bengaluru must think of using Storm Water Drains (SWDs) for rainwater to flow freely, so that it can be re-used.

Conservation methods like rain water harvesting etc. can reduce the dependency of Kaveri water up to 10%. Many cities in developed countries like London, Melbourne and more resort to implementing judicious water use policy for the public that is implemented strictly by the state and the general public. This reduces wastage of water in tough times and ensures ample amount of water is available for everyone.

  1. Water Use Policy

The Cauvery water dispute has always put India’s river basin management plans in question. The country is divided into 22 river basins by the Central Water Commission and every region has its fair share of water sharing disputes. Major examples of river water disputes in the country are Ganga, Sutlej-Yamuna link, Cauvery, Mahanadi, Brahmaputra and Godavari. However, a joint framework for river basin management coupled with a national water use policy can go a long way in handling the country’s water woes. Experts are of the view that the dispute will ultimately have to be resolved between the states rather than through litigation.

For example water sharing project of the Danube River in Europe, passing through 10 different countries (Germany, Austria, Slovakia, Hungary, Croatia, Serbia, Romania, Bulgaria, Moldova and Ukraine) with different needs and different political parties.  To achieve minimal dispute, all stakeholders came on board for the formation of Environmental Program for the Danube River Basin. Danube River Protection Convention was also formulated which formed the premise for the formation of the International Commission for the Protection of the Danube River.

This framework continually works for managing the ecosystem and environmental quality of the river which itself buffers the availability of water for the countries. The countries recognized the fact that to achieve that end, the basin of the river needed to be handled as a single entity with collaboration from all stakeholders whatever be the difficulties. Joint water regulation boards have been established in the past in India and have successfully negotiated projects between members from the riparian states as in the case of Parambikulam-Aliyar.S Janakarajan, an economist, and water management expert who works at the Madras Institute of Development Studies (MIDS), said that the Cauvery dispute is different from other inter-state water disputes in the country. “Cauvery dispute is about resharing of available river water, whereas the other disputes are mostly about sharing of surplus water,” he explained.

NO ONE OWNS THIS BLUE GOLD

Water is not a property and should not be restricted or divided on the basis of language, identity or a state. As a natural resource and the most basic need for human existence it does not require equitable distribution instead equitable satisfaction of needs. The Cauvery is by no means the only river that has been the subject of bitter conflict between states in India.

There are many disputes still stuck in deadlock, however. Only few days ago, the Odisha government announced that it plans on approaching the Supreme Court to request another tribunal to be set up under the Interstate Water Dispute Act to resolve its dispute with Chhattisgarh over the Mahanadi River.

In the absence of a legal framework, or the sheer ignorance and negligence on part of the government to overshadow the function of Water Dispute Tribunal, undermining the usage of Article 263(Inter State Council) and misusing the stated jurisdiction of Article 126 and Article 262 the dispute redressal only moves forward in terms of immediate need through judicial process and not a long term structured process, which often ends in judicial overreach thus defeating the purpose of the constitutional set in the country.

 

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Written By Shreshta Sharma

Shreshta Sharma,an undergraduate at Lady Shri Ram College for Women.Interested in debates/discussions she writes and reads about social & political issues.

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