The Cauvery dispute has taken a turn for the worse.
Confrontationism prevails, and we seem to be witnessing a return to the spirit
of 1992, though not to violence of that order. What has gone wrong? This
article is an analysis and an appeal.
Let us go back to 2007 and imagine that on the announcement of
the Final Order of the Cauvery Tribunal, the disputant States did not file
Special Leave Petitions (SLPs) before the Supreme Court but only submitted
clarificatory petitions to the Tribunal. Alternatively, let us imagine that the
States did file SLPs before the Supreme Court, but the Supreme Court refused to
admit the SLPs on the ground that there was a bar on the jurisdiction of the
courts. In either case, the Tribunal would have proceeded to deal with the
clarificatory petitions and might have given a Further Report in about six to
eight months or perhaps a year, i.e., by early 2008. The Final Order and the
Further Report would then have been gazetted. The Cauvery Management Board
mandated by the Tribunal would have been set up and might have become fully
operational by mid-2008. Thus, there would have been a machinery to deal with
situations of drought and distress like the present one. Unfortunately, that
imaginary scenario did not happen. The Tribunal was (or claimed to be) unable
to deal with the clarificatory petitions because the status of the Final Order
itself was plunged into uncertainty when the States went to the Supreme Court
with SLPs.
The Supreme Court did two inexplicable things. First, it admitted
the SLPs forthwith without any explicit consideration of the bar on the
jurisdiction of the courts provided for by Article 262 and incorporated in the
Inter-State Water Disputes Act 1956; and second, having admitted the SLPs in
2007, it has unaccountably failed to take them up for hearing in five years
time.
Shortage sharing
Turning to the Tribunal’s Final Order, it failed to include a
method or formula to deal with the crucial problem that lies at the heart of
the Cauvery dispute, namely shortage-sharing in distress years. In years of
normal rainfall, more water flows from Karnataka to Tamil Nadu than the quantum
laid down by the Interim Order or the Final Order. The problem of how much
should flow from Karnataka to Tamil Nadu becomes contentious only in years of
low flows. This should have been central to the Tribunal’s Final Order, but the
Tribunal offered only generalities, and left it to the proposed Cauvery
Management Board to deal with the problem. Further, was it really necessary for
the Tribunal to take the view that the SLPs to the Supreme Court made it
impossible for it to proceed with the clarificatory petitions? Why could it not
have heard those petitions and given a Further Report? The view that the
pendency of the SLPs prevented it from functioning was a self-limiting one
taken by the Tribunal itself.
Legal positions
The State governments and the State politicians have contributed
to the impasse by adopting strident, confrontationist postures and rhetoric
instead of conciliatory, solution-seeking approaches; and by rousing and not
calming popular anger. Both State governments must be blamed for this; neither
has made any effort to see the other’s case.
It needs to be added that both governments have taken untenable
legal positions. Tamil Nadu started by taking its stand on long-established
prior use, which is a relevant but not a clinching argument. However, being a
lower riparian it had eventually to accept realistically that it must learn to
manage with reduced flows. Karnataka persists in holding fast implicitly to the
assumed primacy of upper riparian rights, for which there is no basis in
national or international law. There is no meeting point between those two
divergent positions.
The institutional arrangements are not working. The Tribunal’s
Award has no sanctity. The Cauvery River Authority, presided over by the Prime
Minister, is hardly an “Authority.” The only institution with any authority
seems to be the Supreme Court. Tamil Nadu keeps knocking at its doors, and now
Karnataka is reported to be filing a review petition. One hopes that this
process will reach finality soon.
The Central government has proved to be a weak and ineffective
force, unable or unwilling to play its constitutional and statutory roles.
What can one say about the propriety of Central Cabinet Ministers
becoming partisan advocates and implicitly questioning their Prime Minister’s
decision?
In such situations, one would expect intellectuals and persons of
goodwill in either State to give wise counsel to the people, remove
misperceptions, calm down excitement and anger, and promote goodwill and
understanding. Unfortunately, there does not seem to be much evidence of any
such thing happening.
One does not know what advice the eminent Counsel representing
Tamil Nadu and Karnataka give privately to their respective clients; that is
confidential and privileged communication. One can only hope that they do
advise their clients against holding legally wrong and indefensible positions,
against being confrontationist, and against defying judicial and constitutional
authorities.
Cauvery family
The one positive element in this entire unedifying spectacle of
State against State and people against people has been the Cauvery Family — a
loose and informal group of Cauvery basin farmers from both Karnataka and Tamil
Nadu — which is now known internationally. Unfortunately, while it has brought
about remarkable mutual understanding and goodwill between the farmers of the
two States, it has not so far been able — in spite of several meetings — to
arrive at an agreed settlement, including a distress-sharing formula, which can
be presented to the Tribunal and the Supreme Court. Even the understanding and
goodwill achieved by it is under threat in the present situation of conflict
and hostility between the two States, at both official and non-official levels.
In the light of that analysis, what needs to be done? I would
submit the following set of appeals for consideration:
1. To the Cauvery Family: Please continue and accelerate
your work, promote understanding and goodwill and correct misperceptions in
either State, and come up quickly with (a) minor adjustments to make the
Tribunal’s award acceptable to both States, and (b) a formula or method for
shortage-sharing in years of low flows.
2. To the Tribunal: Regardless of the pendency of the SLPs
in the Supreme Court, please take up the clarificatory petitions and issue a
Further Report as soon as possible.
3. To the Central government: In order to enable the
Tribunal to function, please fill the vacancies in it immediately.
4. To the disputant State governments: Please withdraw
your SLPs from the Supreme Court and press the Tribunal for a Further Report.
5. To the Hon’ble Supreme Court: Please take up the SLPs
for hearing without further loss of time (assuming that the SLPs are not
withdrawn).
6. To the eminent Counsel representing the two State
governments: Please consider advising your respective clients against adopting
legally or constitutionally untenable positions, or going against the spirit of
federalism, or taking confrontationist public postures that make the dispute
even more intractable than it is already, or persisting in endless litigation.
I hope that this appeal will not be considered improper.
7. To the intellectuals and respected public personalities
in either State: Please clarify issues, correct misperceptions and errors of
understanding, and promote goodwill and friendly relations between the two
neighbouring States, both at the governmental and at the people-to-people
levels.
8. To the media (print, TV): Please adhere scrupulously to
fair and objective reporting norms, and play your part in promoting goodwill
and understanding.
It will be noticed that the appeal to the Cauvery Family has been
put first in this list of recommendations. That is an indication of the
importance that I attach to that impressive initiative. It must not be allowed
to fail. It is true that any understanding or formula arrived at by the Cauvery
Family will have no legal force; it will have to be placed before the State
governments. However, if the farmers of the two States are able to present an
agreed formulation, it will surely carry great weight. (Ramaswamy R. Iyer is a former Secretary,
Water Resources, Government of India.)
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