The Cauvery river water dispute between Tamil Nadu and Karnataka has taken more twists and turns than most inter-state issues, with the Supreme Court’s latest order, asking Karnataka to release water to Tamil Nadu, provoking violent protests in Karnataka.

We take a look and examine whether the Cauvery can ever flow in legal peace.

Why so much angst about the Cauvery?

The river Cauvery is the largest in southern India, and begins near Mercara in the Coorg region at an elevation of 1,341 m (4400 ft) above sea level towards the Western Ghats, taking an easterly course through the states of Karnataka and Tamil Nadu, before joining the Bay of Bengal.

The Cauvery’s upper hilly catchment lies in Karnataka and Kerala. It is influenced by the usually dependable south-west monsoon during June to September. Its lower part lies in the plains of Tamil Nadu, served by the not-so-dependable north-east Monsoon during October to December.

In technical water law language, Karnataka is the upper riparian state where the river originates; Tamil Nadu is a lower riparian state. Puducherry wants its share of the Cauvery because it is where the river flows into the Bay of Bengal. And Kerala actually contributes more water to the river than it can utilize, because of its geography.

How old is the dispute over the Cauvery?

It is more than 150 years old.

In the middle of the 19th century, the government of Mysore (as Karnataka was then called) wanted to build a number of new irrigation projects. This caused anxiety to what was then the state of Madras, which was dependent on the Cauvery for irrigation.

After several rounds of discussions between the two and the government of India, an agreement was signed in 1892, which governed a number of interstate rivers. Another agreement was signed in 1924, relating to the use, distribution, and control of the Cauvery waters specifically.

Both agreements stated that existing irrigation should not be impeded by the construction of new works upstream, and downstream irrigation should not be reduced. Furthermore, all works must in the planning stages be approved by the downstream state government (i.e., Tamil Nadu in Cauvery’s case).

In other words, under the law Mysore could do nothing that would curtail water supply to Tamil Nadu, the lower riparian state.

Karnataka did not implement these agreements.

Instead, it formed four new projects by constructing dams across the tributaries of Cauvery, without getting clearance from the central government, Planning Commission, and Central Water Commission.

In 1910, the government of Mysore proposed a reservoir at Kannambadi, and sought the consent of the Madras government under the 1892 agreement. As the Madras government did not agree, it was referred to arbitration.

The arbitration panel’s award was not acceptable to the Madras government and it appealed. When the government of India did not intervene, moves were initiated that led to the signing of the 1924 Agreement.

Rivers are complicated.

Yes, they are and also at an international level. International law has reams of jurisprudence on interstate rivers (rivers that pass through the territories of the several states), saying that such waters cannot be said to be located in any one state, and that no state can claim exclusive ownership of such waters to deprive other downstream states of their equitable share.

Therefore, no state can effectively legislate for the use of such waters, since its legislative power does not extend beyond its territories.

In a federal system such as India, things are similar.

What exactly has been the grievance of Tamil Nadu?

TN says that the total volume of water from Karnataka for flowing down to the Mettur dam is becoming less and less. It also alleges that the water releases were not being made in time to meet the need of cultivation of crops, particularly in the Cauvery delta of TN.

TN wants the annual releases to be made in a regulated manner, from week to week, from June to May.

How did the latest dispute in the Supreme Court even start?

There are four parties to the dispute—Tamil Nadu, Karnataka, Kerala and Puducherry.

Karnataka constructed four projects on and near the Cauvery: Harangi, Kabini, Hemavathi and Suvarnavathy. For these, Karnataka did not get the prior consent of the Tamil Nadu government.

From 1974, Karnataka started diverting river flows into the four new reservoirs. Unable to resolve the dispute, the Centre referred it to the Cauvery Water Disputes Tribunal (CWDT) in 1990.

What were the latest orders of the Supreme Court that made the Kannadigas unhappy?

On 5 September, an SC bench comprising justices Dipak Misra and Uday Umesh Lalit directed Karnataka to release 15,000 cusecs (cubic feet per second) of water per day to Tamil Nadu for 10 days.

Tamil Nadu was directed to release water proportionately to downstream Puducherry.

What did Karnataka agree to before the bench? And what was Tamil Nadu’s demand?

Well as usual, Karnataka was willing to release less water, that is, 10,000 cusecs, while Tamil Nadu wanted more, that is, 20,000 cusecs for the 10-day period from 5 September.

So, it was easy for Justice Misra to pick the median, right? Surely this should have made both sides happy?

Well, that is what the Misra-led bench must have thought, but considering the violence on the streets of Karnataka, the court’s intervention in this manner has not helped to resolve the dispute.

On Monday (12 September), the SC ordered Karnataka to release 12,000 cusecs of water a day to Tamil Nadu until 20 September. That means Karnataka will end up releasing more water to its neighbour.

Also read: Karnataka’s arguments fail to cut much ice with Supreme Court

How did the SC even get dragged into this dispute? Isn’t the CWDT) supposed to sort this stuff out?

Well, it is a long story.

The CWDT had indeed given its interim award in 1991, in favour of Tamil Nadu, which then asked for implementation. Karnataka was not willing. So, Tamil Nadu filed suit in the Supreme Court in 2001. It is still pending. The next hearing of that suit is on 18 October 2016.

In the meantime, the CWDT gave its final order in 2007 (which also technically replaced the 1892 and 1924 agreements on water sharing). And the latest SC orders have been appealed in special leave petitions (SLPs) filed by Tamil Nadu against Karnataka.

What was the 1991 CWDT interim order?

The Tribunal directed Karnataka to ensure that 205,000 million cubic feet (TMC) of water was available in Tamil Nadu’s Mettur Reservoir in a year from June to May.

Then what happened?

Karnataka promulgated an ordinance, followed by an Act, to negate the effect of the tribunal ruling.

The President then made a reference to the Supreme Court for its opinion. The SC answered this reference in November 1991, saying the ordinance and the Act were unconstitutional and beyond the legislative competence of the State.

In 1998, the central government set up the Cauvery River Authority (CRA) and a monitoring committee (MC). The CRA included the Prime Minister, and the chief ministers of Tamil Nadu, Karnataka, Kerala and of Puducherry. The MC included secretary of the union ministry of water resources, and chief secretaries of the three states, and Puducherry, Chairman, Central Water Commission, and others. The CRA and the MC were supposed to deal with issues on sharing of waters from time to time.

So, presumably the CRA and the MC failed to resolve matters?

Yes, it appears so. In any case, no one knows whether they still exist, as a new supervisory committee has been set up in their place in 2013.

What happens when Tamil Nadu approaches the SC from time to time?

Usually, Tamil Nadu approaches the SC for a direction to Karnataka to comply with the interim order passed by the tribunal, fixing a schedule for release of the water in different months of the year.

On most of these occasions, Karnataka comes up with the plea that because of the insufficient rainfall, it had not been possible for it to strictly comply with the interim order by releasing the quantity of water as directed.

What does the 2007 final order of the Tribunal say?

The Tribunal, in a unanimous decision, determined the total availability of water in the Cauvery basin at 740 TMC at the Lower Coleroon Anicut site, including 14 TMC for environmental protection and seepage into the sea.

The final award made an annual allocation of 419 TMC to Tamil Nadu in the entire Cauvery basin, 270 TMC to Karnataka, 30 TMC to Kerala, and 7 TMC to Puducherry.

What were the Tribunal’s other conclusions?

It defined a “normal year" as one in which the total yield of the Cauvery basin is 740 TMC. In a normal year, Karnataka has to release to Tamil Nadu at Biligundulu 192 TMC (as against 205 TMC in the interim award) in monthly deliveries. This comprises 182 TMC from the allocated share of TN, including 10 TMC for environmental purposes.

In a so-called distress year, the allocated shares are to be proportionately reduced among Kerala, Karnataka, TN and Puducherry.

The Tribunal also recommended setting up the Cauvery Management Board (CMB) to implement the Tribunal’s decisions, and said, otherwise, “its decision would only be on a piece of paper".

And on paper is where it has mostly remained: the CMB has not yet been set up, although the final order has been notified in the official gazette on 19 February 2013, and is theoretically binding.

What is the supervisory committee, then?

The supervisory committee was constituted by the ministry of water resources in 2013., and includes people from the ministry of water resources, chief secretaries of Karnataka, Tamil Nadu, Kerala and Puducherry, and the CWC.

The role of the committee was to give effect to the implementation of the Tribunal order of 5 February 2007.

Obviously, this committee replaces the previous Cauvery River Authority and the monitoring committee, set up in 1998, and is considered an alternative to the Board, suggested by the Tribunal.

The latest Supreme Court order has asked Tamil Nadu to approach the supervisory committee to sort out its grievance.

Sounds great on paper; then again, the SC got involved anyway, so what was the point?

The fact that the Supreme Court intervened does suggest that the Judiciary is perhaps unnecessarily getting involved in matters that are beyond its competence. The SC could have just asked this committee to meet urgently and resolve the crisis amicably, argue observers.

But has the Supreme Court managed to resolve the dispute now?

It is essentially a federal dispute, and needs to be resolved amicably between the states because the issue is so complex.

Top-down adjudication by the Supreme Court will inevitably favour one state and alienate another.

The state that is perceived to have lost in the litigation then cannot control popular sentiments in the state, and will again lead to appeal, as has now reportedly happened again against the SC judgment.

Therefore, the matter really has to be dealt with by a professional body including professional representatives of both States.

So is the dispute likely to drag on and continue into the next century?

It will, if the states concerned do not display maturity and instead constantly resort to litigation, knowing fully well that the Supreme Court cannot enforce the Tribunal’s final award. And whenever there are legal battles, emotions will continue to run high in both states on the issue.

What will happen on 20 September when the case is listed again before the SC Misra-led bench?

A wild guess: the bench will ask the parties about the outcome of the supervisory committee’s meeting. As usual, Karnataka will express its difficulty in complying. It may also cite the law and order problem in the state, due to its implementing the previous order by releasing water to TN. Tamil Nadu will probably ask for more water.

And finally, the SC will say that the other SC – the supervisory committee - is seized of the matter, and therefore, the matter may be listed again after a few weeks.

In all likelihood, before the next date of hearing, tempers will cool down in both states and the dispute will cease to make headlines, and with a good monsoon the pressure on sharing water will be less and less.

Is there maybe a technological solution to farmers’ excessive reliance on Cauvery water?

Perhaps. Experts suggest that TN should use more of its ground water resources, which according to them are in the region of 20 TMC.

They also suggest better water management and to avoid water intensive paddy crops, and the use of techniques that do not facilitate conservation of water.

Then again, in the meantime, it’s probably easier in the short term for states to just roll the dice and keep filing more legal challenges.

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