Why Supreme Court must stay out of Cauvery row

It has fallen into a watery trap and gone beyond its jurisdiction to be an arbiter of an issue of which it has no expertise, and most likely no authority.

 |  6-minute read |   29-09-2016
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For the last few days, the government of India and the national media have been busy discussing ways to use the Indus waters to punish Pakistan for the Uri attack.

While Delhi is busy with the sabre-rattling of launching a "water war" against Pakistan, two important states in south India are busy fighting their own "water battle".

The age-old Cauvery River dispute between Tamil Nadu and Karnataka has come back again in a big way. A couple of weeks back, when the "Bandh" in Bangalore led to riots and brought back memories of 1991, Prime Minister Narendra Modi, instead of taking the lead to bring both warring states to the negotiation table, conveniently passed the buck to the Supreme Court, by simply tweeting: “This dispute can only be solved within the legal ambit.”

However, the all-party resolution in the Karnataka Assembly on September 23, in defiance of the Supreme Court order, has exposed the weaknesses of the judiciary to actively engage on water-sharing matters. The government of Karnataka takes the help of the resolution to defy the court directive in releasing waters for Tamil Nadu.

The Supreme Court has fallen into a watery trap and has gone beyond its jurisdiction to be an arbiter of an issue, of which it has no expertise, and most likely no authority.

Finding a legal answer to the Cauvery water-sharing issue has been the cause for this conflict to endure and politicians to absolve themselves from their responsibilities.

In the pre-Independence period, there were agreements between then Mysore and Madras over Cauvery water-sharing. The pre-Independence arrangement expired its life of 50 years in 1974.

While Tamil Nadu demanded the continuation of the 1924 agreement, Karnataka asked for reallocation of water to meet the changing needs. It would have been wise to leave the matter to the political executives of both states to reach a negotiated settlement.

However, acting on a petition by Tamil Nadu Farmers Society filed in 1983, the Supreme Court intervened and directed the central government to constitute the Cauvery Waters Disputes Tribunal in 1990. This Tribunal passed an order in June 1991 giving interim relief to Tamil Nadu, where Karnataka was told to release water on a weekly basis from June to May.

Karnataka issued an ordinance virtually rejecting the interim relief. Again, the Supreme Court intervened to uphold the tribunal’s order.

The Supreme Court’s decision in favour of Tamil Nadu erupted in violent protest in Karnataka, which spread and intensified, resulting in arson and eviction of people from their homes, especially Tamils living in slum areas.

Since then, the Supreme Court has been unsuccessfully engaged in a number of legal initiatives to address the Cauvery issue. In 1998, under the directive of the Supreme Court, the Cauvery River Authority (CRA) was constituted but Karnataka refuses to allow it to monitor implementation of the Tribunal's award. Tamil Nadu also went out of the CRA in 2002 for some time in protest.

protest-embed_092916113459.jpg The SC has since the 1980s been engaged in imposing an agreement on the riparian states but its efforts, far from being successful, have been counter-productive as states like Tamil Nadu have spent more time litigating than resolving the issue. (Photo credit: India Today) 

After 16 years of judicial investigation, the Supreme Court-directed Tribunal delivered its final verdict in 2007, allocating 419 billion cubic feet of water annually to Tamil Nadu and 270 billion cubic feet to Karnataka; 30 billion cubic feet to Kerala and 7 billion cubic feet to Puducherry. However, all four states have refused to accept the verdict and have legally challenged this allocation.

This would have given enough indication to the Supreme Court that the judiciary should not entangle itself in forcing water agreement on riparian states. The best they could have done was to ask the central government to actively engage in bringing the riparian states together to find a mutually acceptable agreement.

The Supreme Court’s direct intervention is justified where there is a need to enforce an existing legally bound agreement, but not to manufacture an agreement in itself.

Instead of finding ways to get out of the intractable Cauvery imbroglio, the Supreme Court has got further sucked into actively promoting the fancy idea of large-scale inter-basin water transfer of Himalayan rivers to the southern peninsula.

In spite of its limited competence in policymaking, for almost 15 years, it is goading the central government to pursue river-linking projects in a big way and in 2012, it passed an order to do it in a "time bound manner". It even appointed a committee to plan and implement the project.

Besides adverse environmental and ecological effects, inter-basin water transfer schemes will be also politically unfathomable. Any attempt to carry out the plan from surplus to deficit basins will not only aggravate the existing river sharing disputes in various basins, but also bring in new conflicts with new actors.

In general, inter-basin water transfer has been always a conflict inducing option, particularly in a democratic federal setup. A number of large-scale water transfer schemes have been planned all over the world but most of them are not being implemented due to political opposition.

Even in the US, two major water diversion schemes are being kept under wraps, though its south-western part is facing severe water scarcity.

The political problems associated with long distance water transfer projects in India, such as the Sutlej Yamuna Link, Indira Gandhi Canal and Telegu Ganga Project should have been sufficient enough to persuade the Supreme Court not to be an enthusiastic party in this issue.

The Cauvery River issue is not the only inter-state water-sharing dispute India is facing. The list of this type of disputes is long: Sutlej, Yamuna, Krishna, Bhima, Narmada, Mahi, Sone, Mahadayi and Mahanadi rivers - to mention a few.

Due to projected future demand - for irrigation, hydropower, industry and urban consumption - many new conflicts over shared rivers are beginning to unfold. They could soon flare up with a vengeance. In this context, the Supreme Court should introspect on its ability and suitability to get directly engaged in management of water-sharing matters of inter-state rivers in the country.

Since the 1980s, the Supreme Court has been directly engaged in imposing an agreement on the riparian states of the Cauvery, but it has not been successful. Rather, its encroachment of executive prerogative has been counter-productive. Riparian states like Tamil Nadu have been spending more time litigating the issue than trying to negotiate with upper riparian states to find an acceptable solution.

Thus, it will be judicious on the part of the highest judicial authority of the country to not violate the doctrine of separation of powers between the branches of government further and to leave the political executives of riparian states of the Cauvery River to find an agreement over water-sharing on their own.

Reaching an agreement is the task of the political executives and they should be entrusted with that job, taking into consideration equitable sharing while balancing it with historical use. That is the only way to bring an end to the recurring bitter row over Cauvery waters.

Also read: Cauvery row: Is Karnataka a water-bankrupt state?


Ashok Swain Ashok Swain @ashoswai

The writer is professor of Peace and Conflict Research at Uppsala University, Sweden.

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