Supreme Court Judgment on Cauvery Dispute: Does it change anything?

Supreme Court of India passed the much awaited 465-page Judgment on Cauvery Water Dispute on Feb 16, 2018[i]. After the Cauvery Water Disputes Tribunal declared its award on Feb 5, 2007, a number of Appeals were filed in the SC, challenging the Tribunal Award, including those by Karnataka and Tamil Nadu. By this Judgment, the SC has partially allowed the Karnataka Appeal (Civil Appeal 2453 of 2007) and disposed off all the appeals. The Award was published in gazette only in 2013, following an earlier SC order. The SC Judgment provides additional 14.75 TMC (Thousand Million Cubic Feet) of water to Karnataka and thus reduces Tamil Nadu’s share to that extent. In what follows I have provided some key aspects of the SC judgment, mainly quoting the judgment. 1892 and 1924 agreements – The two agreements of 1892 and 1924 are neither inoperative nor completely extinct. Therefore, the said agreements cannot be said to be unconscionable. – 1924 agreement: “Agreement was never intended to be of permanent character. On the contrary, it contemplated a fixed term of 50 years. Therefore, the said agreement expired after 50 years in the year 1974.” – “… waters of an inter-state river passing through corridors of the riparian states constitute a national asset and no single State can claim exclusive ownership of its water.” GROUNDWATER IN TN: “The admission of facts along with the confirmatory empirical data suggests that around 20 TMC of groundwater is available beneath the surface in Tamil Nadu which the Tribunal has not taken into account citing it as a conjecture. We, while keeping in mind the risks associated with over extraction of underground water, deem it fit that 10 TMC of the said available groundwater in Tamil Nadu can, in the facts and circumstances of the present case, be accounted for in thefinal determination of its share.” In para 386 the SC Judgment provides some justification for this: “However, in the attendant facts and circumstances, in view of the studied scrutiny of all pertinent facets of the issue by balancing all factors, we are of the unhesitant opinion that at least 10 TMC of ground water available in the Delta areas of Tamil Nadu can be accounted for in finally determining the apportionment of the share of the otherwise deficit Cauvery basin without touching the yield of 740 TMC.” DRINKING WATER FOR BANGALORE: “The Tribunal had drastically reduced the share of Karnataka towards Domestic and Industrial purpose for the reason being that only 1/3rd of the city of Bangaluru falls within the river basin and also on the presumption that 50% of the drinking water requirement would be met from ground water supply. The said view taken by the Tribunal ignores the basic principle pertaining to drinking water and is, thus unsustainable. Keeping in mind the global status that the city has attained, an addition of 4.75 TMC is awarded to Karnataka.” How has the SC arrived at this figure? It says: “… the total figure representing drinking and domestic water requirement of the urban and rural population would be 32.5 TMC[ii]rounded upto 33 TMC… this 33 TMC would, in our estimate, be a safe and acceptable figure qua drinking and domestic water requirement of the State of Karnataka for its urban and rural population. By applying the consumptive percentage of 20%, the volume of water to be allocated to Karnataka on this count would be 6.5 TMC in lieu of 1.75 awarded by the Tribunal, i.e., an increase by 4.75 TMC.” Vishwanath Srikantaiah said today[iii], “Bengaluru already has 28 Tmc ft allocated for it. Within Karnataka s share it can reallocate as it wants. The 4.5 Tmc is for calculation purpose for the overall allocation between states not within states… The distress sharing formula and its management is still not clear and one will wait for the detailed Supreme Court order…” Was more allocation to Bangalore justified? The SC should have noted that Bangalore does not effectively harvest its water, does not ensure adequate groundwater recharge, does not protect its lake and other water bodies, does not do demand side management, its lakes are famous for being on fire, it does not adequately treat its sewage to recycle. In such a situation, as noted by the report of the working group on Urban water for the 12^thFive Year Plan, such urban areas have no justification in asking for more water from distant sources till it exhausts these sources. The SC could have underlined this and thus put Bangalore and by implication, other urban areas on notice, rather than providing more water to it from distant sources, to release more untreated effluents. SHARE OF KARNATAKA AND RELEASES FOR TAMIL NADU: “In totality, we deem it appropriate to award to the State of Karnataka an additional 14.75 TMC of water, i.e., 10 TMC (on account of availability of ground water in Tamil Nadu) + 4.75 TMC (for drinking and domestic purposes including such need for the whole city of Bengaluru). In view of the allocation of additional 14.75 TMC of water to Karnataka, the State of Karnataka would now be required to release 177.25 TMC of water at the inter-state border with Tamil Nadu, i.e., at Billigundulu.” – MONTHLY RELEASES FROM KARNATAKA: “… the recommendations/directives of the Tribunal with regard to the monthly releases and not inconsistent with anything decided herein, are hereby endorsed for the present for a period of 15 (fifteen) years hence.” Earlier the SC Judgment said: “… there would be, logically, a proportionate decrease in the monthly releases as worked out by the Tribunal. However, the same pattern therefor, as modeled by it would be maintained for the reduced releases.” SCHEME FOR IMPLEMENTATION OF THE TRIBUNAL AND SC JUDGMENT: “Keeping that in view, we direct that a scheme shall be framed by the Central Government within a span of six weeks from today… When we say so, we also categorically convey that the need based monthly release has to be respected. It is hereby made clear that no extension shall be granted for framing of the scheme on any ground.” Some questions about the SC judgment The SC Judgment raises a large number of questions. Here are some, based on a quick reading of parts of the Judgment.

• Unfortunately, like all Tribunals and earlier Judicial orders about interstate river disputes, this Supreme Court Judgment also sees the dispute as sharing of water, and river has practically no place. But river is not just a channel of water, which is the world view of our governments and water resources establishment, one expected the SC to take a more river friendly view.
• The discussion about environment flow is welcome only as a first step, but the world has gone far ahead both in terms of science of rivers and practices in dealing with rivers.
• SC also considers only the states as legitimate stakeholders and assumes that the states represent all the interests genuinely and adequately.
• It is surprising that the SC takes, for calculating domestic water needs in Urban and rural areas, the population of 2011 (e.g. see para 384 for Kerala) the order in 2018, applicable till 2033. Should it not have at least taken the projected population of 2021?
• It is also surprising that the SC keeps referring to National Water Policy of 1987 (para 372-375) and 2002 (para 376), but not to the NWP of 2012, the latest one and applicable now?
• Similarly, the SC Judgment refers to Helsinki Rules (para 366), Compione Rules, Berlin Rules, among others frequently, but does not refer to the UN Convention on Non Navigation Use of Water, which is already in force now.
• The Supreme Court also said that its order on Cauvery water allocation will continue for next 15 years. One hopes that this will mean a review of the allocations after 15 years.
• In para 396 the Judgment says: “With the evolution of the principle of equitable apportionment which is really to ensure equal justice to the basin States, the concept of prescriptive right or right to the natural flow of any inter-state river has ceased to exist.” If this means right to natural flow of any inter state river ceased to exist, this seems like death-knell for our inter-state rivers?

Importance of Catchment, Rain and Local Water Systems The SC also seems to ignore some key aspects like the state of Cauvery catchment (e.g. see: Save Kodagu, Save Cauvery[iv]), role of local water systems, soil water, and groundwater in overall dynamics of a river basin. For example, the Local water systems are the answers across Tamil Nadu and Karnataka. Tamil Nadu has 41,127 such small water bodies according to a government census. From 9.2 lakh hectares of the total 10 lakh hectares in the 1960s, these small water bodies irrigate just 4 lakh hectares today (2015). “With a water holding capacity of 17.9 lakh million cubic feet (all dams in the state can hold 21.6 lakh million cubic feet), revitalising these small water bodies has become a critical endeavour for local farming communities in the Tamil Nadu.”[v]   CWDT Award of Feb 2007: Some comments The verdict by the three-member Cauvery Water Disputes Tribunal headed by Justice N P Singh on February 5, 2007 failed on some crucial tests of equity, efficiency, technology and science. In a recent report, the Central Water Commission (CWC) shows that from 1971 to 2004, rainfall in the Cauvery basin has been constantly declining. Moreover, as recent researches by the Indian Institute of Science show, the water flow in the Cauvery river is also displaying a declining trend, primarily, as an impact of the climate change. A recent analysis of rainfall data of coffee growers in Kodagu district of the upper Cauvery basin shows that number of rainy days are on a decline too. Evidently, forestry practices are changing for the worse in the Cauvery catchment area, which contributes the maximum amount of water to the Krishna Raj Sagar reservoir. The biggest lacuna in the CWDT award is the absence of specific formula for water sharing in distress years. That absence was supposed to be taken care of by the Cauvery Management Board (CMB) as the CWDT award recommended. But the CMB is yet to be formed.[vi] In Conclusion Expectedly, the Chief Minister and others from Karnataka are happy, and the Tamil Nadu lawyer is expectedly not happy. Other reactions are only filtering in.[vii],[viii] As Vishwanath Srikantaiah said today[ix], “This is about the best distribution that is possible… It is a victory for both sides.” However, this may not change the situation on ground significantly. Karnataka is already using more water than what Cauvery can provide, so the increased allocation should not lead to any increase in water use there. In fact, Karnataka should curtail rather than increase water use in the basin. Karnataka certainly needs to reduce area under sugarcane and paddy in its area. Tamil Nadu is also using more groundwater than what the SC Judgment provides, so it may help if it curtails its water use by improving cropping pattern and both states going for more water efficient cropping methods like SRI (System of Rice Intensification), also applicable for crops other than rice. Considering the history of this dispute, the role of the Supreme Court may not end here, both states are likely to approach the apex court for implementation issues, and one hopes SC will use those opportunities to curb unjustified and unsustainable water use in Cauvery basin. There is also need for better information gathering, including hydrological data, putting them in public domain promptly and involving the people in decision making processes rather than having a top down management system as envisaged now.

By Himanshu Thakkar

(ht.sandrtp@gmail.com)