The Cauvery water dispute is getting messier by the day. During its last hearing on 12 September, the Supreme Court had asked the Karnataka government to release 12,000 cusecs of water every day till 20 September. It had mandated the Cauvery Supervisory Committee (CSC) to decide on the quantum of water to be released by Karnataka for the next 10 days — till 30 September.
The chairman of the CSC, the Union water resources secretary, decided on 19 September that Karnataka must release 3,000 cusecs of water daily from 21 till 30 September. But on the very next day (20 September), the Supreme Court overruled the decision of the CSC chairman and asked the Karnataka government release 6,000 cusecs of water for the next seven days — till 27 September.
What does one make of this utter confusion? How did the CSC decide on the discharge of 3,000 cusecs of water daily and, on what basis, did the Supreme Court overturn that decision and increase it to 6,000 cusecs?
It is obvious that such decisions are being taken largely based on the gut feeling of the deciding authority, be it the CSC or the Supreme Court, because each has at its disposal only half-baked information.
Consider the following facts:
The Cauvery Water Disputes Tribunal had, in its final report in February 2007, asked for the constitution of a Cauvery Management Board (CMB) to monitor the ground reality of the Cauvery basin on a regular basis and decide on the interstate disputes. But in so many years, the government of India did not bother to constitute the CMB. It was only on last Tuesday (20 September) that the Supreme Court gave a direction to the Centre to set up the CMB within a month.
Without a CMB, no credible data is there on the table for any body to make a decision based on facts. Whether it was the CSC or the SC, both were confronted with the competing, and often cooked-up data provided by the bitterly hostile neighbours — Karnataka and Tamil Nadu. That is why, all decisions, whether by CSC or the SC, are bound to be controversial.
Much of this controversy would have had no basis if the decision was based on solid data and scientific analysis. That is simply not the case.
Take the case of the CSC meeting on 12 September as per the mandate of the Supreme Court. It remained inconclusive for want of adequate data about the utilisation of water, variation in rainfall and related issues in the Cauvery basin areas. The committee met a week later, on 19 September, only to be confronted with the conflicting claims of the two warring states.
Nevertheless, in order to carry out the instructions of the Supreme Court, the CSC chairman, disregarding the opposition of both the disputing parties, issued a perfunctory order (3,000 cusecs per day discharge). It was only in this meeting that the CSC decided to put in place a protocol for the real-time transmission of the river water flow data among the states of the Cauvery basin, so that decisions based on facts to be made.
What does it all say about the functioning of our government?
After all, the Union water resources secretary heads the CSC and the chairman of the Central Water Commission is a member of the committee. Why these individuals and the bodies they represent should exist, at huge cost to the exchequer, if they did not have the basic information in all these years to arrive at a fact-based decision?
As a matter of fact, the Cauvery mess reflects the ineptitude of all the three vital organs of the state — executive, legislature and the judiciary.
The 50-year-old Cauvery water-sharing agreement signed between the princely state of Mysore and the Madras Presidency in 1924 came to an end in 1974, but the Union government did not bother to put up a fresh mechanism in place till the Supreme Court directed it in 1990 to set up a Cauvery Water Disputes Tribunal.
The VP Singh government carried out the SC order and set up a three-member tribunal headed by the retired justice NP Singh. But the tribunal also acquired the work culture of the Indian government — it took more than 16 years to deliver its verdict in 2007.
And what did it deliver? After 16 years, it seemed as if the mountain went into labour and produced a mouse.
The tribunal worked out a water-sharing formula during the normal monsoon years. But then in the normal monsoon years, there has never been a conflict between Karnataka and Tamil Nadu — in fact, Karnataka has had no problem in releasing more water than what the tribunal has mandated in the normal years.
Invariably, the conflict between the two states has erupted in the distress years when the monsoon water has been scarce. Surprisingly, the Cauvery Water Disputes Tribunal did not prescribe a formula for these years — it merely incorporated a banal provision that water sharing might be decreased proportionately among the states, keeping in view the extent of availability of rain water!
So much in 16 years! No wonder such banality kept the pot boiling. That negated the very purpose behind the setting up of a tribunal to resolve the interstate disputes!
What is a greater irony is that the life of the tribunal — and the salaries and perks of the members — continued even after 2007, ostensibly to allow for the resolution of the appeals and petitions by the contending parties. Justice NP Singh continued in his position till 2012 when he resigned on health grounds at the ripe old age of 85. The government chose another retired Justice, BS Chauhan for this post-retirement perk after Justice Singh demitted office.
The taxpayer continued to bear the burden of the extended term of the tribunal, despite the fact that the tribunal was out of work, for the simple reason that both Karnataka and Tamil Nadu had moved the Supreme Court challenging the Cauvery tribunal’s award in 2007 itself and the Supreme Court had admitted the petition. The tribunal had no locus standi to dispose of any petition as the matter had become sub judice.
But then our Supreme Court too did not acquit itself well in this case. It admitted the petition in 2007 and decided in 2008 for the constitution of a three-judge bench to adjudicate upon the Cauvery water dispute between Tamil Nadu and Kerala. But eight years have passed and there has been no progress in the case.
Here is a strange situation — the Cauvery Water Disputes Tribunal had become defunct because the Supreme Court took up the appeal, but the Supreme Court did not hold any hearing, let alone come to a decision. That led to the conflagration of the dispute between the two states, spilling over to the streets. Ironically, the Supreme Court has been responding only to the emergency situations — both in 2012, and again in 2016 — to announce an interim decision to tide over the immediate crisis, while the final adjudication is nowhere in sight.
The Cauvery mess reflects the ineptitude of all the three vital organs of the state — executive, legislature and the judiciary
As a matter of fact, the Supreme Court should not have involved itself in the adjudication of the Cauvery water dispute at all. The Article 262 of the Indian Constitution states: (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter State river or river valley.
Then the same Article goes on to state categorically: (2) Notwithstanding anything in this Constitution, Parliament by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).
Despite this express provision, the Supreme Court is dabbling in the matter only because our Parliament has shirked its responsibility to enact the legislation mandated by the Constitution.
It is indeed unfortunate that all the three major organs of the state — executive, judiciary and legislature — have failed to discharge their assigned task competently, leading to a major crisis involving millions of farmers spread over two major south Indian states.