Will Cauvery water war lead to a constitutional crisis?
Bengaluru: Karnataka is all set to pass a resolution on Friday to defer this week’s Supreme Court (SC) verdict on Cauvery waters, which could transform what was an interstate water dispute case so far into a spectre of debates related to the separation of powers, if not a constitutional crisis in making, according to analysts.
In a nutshell, the resolution will say that the state cannot comply with the apex court’s order asking Karnataka to release water for a third time in a month to Tamil Nadu.
Clearly, politicians in Karnataka want to comply with an overwhelming public sentiment to hoard whatever water is left in the state. While farmers in Karnataka are reeling under back-to-back drought years, the assembly election is roughly a year ahead, and the simmering unrest over the release of water to Tamil Nadu has already claimed one life, destroyed around 100 buses and caused Rs.20,000 crore of productivity and business loss to companies.
But it is one thing for a state’s legislators to be not seen on the wrong side of the public sentiment and another to apparently challenge the authority of the Supreme Court, said analysts.
“A state challenging an SC order is a dangerous trend for any democracy,” said Kaleeshwaram Raj, a lawyer practising in both SC and Kerala High Court and considered an expert on constitutional matters.
According to Raj, the resolution may not hold good as the Constitution does not permit a state legislature to act on an issue like interstate water dispute, for the simple reason that it cannot resolve the dispute.
“The message of Article 262 (interstate disputes related to water) is very clear. It excludes the legislative competence of all the state legislatures when it comes to inter-state water disputes,” he said.
However, he added that the Article 262 also applies for the SC, which may not have had the powers to apply its jurisdiction once Parliament sets up an inter-state council to resolve a dispute like the one over Cauvery.
This makes the case interesting, said Raj, since both parties could argue the other has done the absolutely wrong thing to do.
By any measure, the damage, if any, shall be more on the shoulders of the politicians, said analysts. In India, by means of both tradition and practice, the apex court is held at a higher pedestal than the other organs of the Constitution such as the lawmakers or the bureaucrats and any attempts to challenge its authority has often left politicians with a bitter experience at the end, they say.
Indeed, no one needs to teach this lesson to Karnataka politicians. Irrigation politics has been at the heart of the state’s politics for long and when two of its earlier chief ministers, S. Bangarappa and S.M. Krishna, challenged the apex court verdict on Cauvery during their terms, not only did they find themselves issuing unconditional apology to the courts soon, but also lost an immediate election.
Siddaramaiah, however, is taking a more tactical approach than his predecessors, as per analysts, as it will not be him but the state assembly that will be moving the resolution and hence shall be liable if the apex court finds its order has been defied.
Raj thinks the Kerala government passing a “Dam Safety Law” in the wake of Mullaperiyar dam dispute, which the Supreme Court practically annulled it in the judgment delivered two years ago, was a similar case. Rahul Singh, assistant professor at National Law School, Bengaluru, said he saw a parallel in history to this situation in what happened when the Central government recently tried to scrutinize judicial appointments.
The politicians may or may not be wrong. But some hope the current developments would force some introspection in the judiciary, which has in recent times issued orders imposing environment cess on certain diesel vehicles to compulsory wearing of seat belts to bringing back the so-called black money stashed abroad. It is a trend that has made some critics worry whether the judiciary would rise to become a genuine third power which will be a blatant violation of Constitutional norms, as an opinion columnist recently noted in Mint.
In this specific case, Singh says, the SC should have acted as a neutral body to avoid the present mess. “At the very minimum, it should have appointed a committee, with some agricultural scientists and water experts and which could have chaired by a retired judge. Instead, they went for intuitive interpretation and is looking at this case only as a problem of compliance,” he says.
Both courts or political leaders cannot be blamed in this case because they are trying to make the best out of a faulty set of ground rules, said Nitin Pai, co-founder of policy think tank Takshashila.
“The ground rules must change: the principle on which water is allocated cannot be based on an arbitrary historical snapshot of the South Indian economy. Unless we move to principles that acknowledge water is scarce, water use patterns are changing rapidly, have incentives for new technology and allocations need to keep pace with the economic growth, we will be doomed to social acrimony, constitutional crises and political violence,” he said.
Also Read: Cauvery dispute: Whose water is it, anyway?