Leave aside for a while the Supreme Court’s latest order to Karnataka on the release of Cauvery water to Tamil Nadu and the uproar it has generated in that state. And also forget for a moment terms like cusecs and tmcft.
The more significant and far-reaching part of Tuesday’s ruling by the Supreme Court on the Cauvery dispute was that it ordered the Centre to set up a Cauvery Management Board (CMB) within a month.
If set up, and if allowed to function the way it should be, the board will "manage the waters", though not entirely independent of the states in the river basin, and has the potential to give the century-old dispute a decisive turn finally, ending the water war once and for all.
Or it could be the beginning of an entirely new kind of dispute, considering Karnataka’s stand that the constitution of the board will only mean the Centre "takes over" its dams.
Karnataka’s fear is unfounded. If the CMB is "taking over" the dams, it won’t be a coup d'état. It will be a democratic operation, at least the way it is designed to be. It will have a chairman and two members appointed by the Centre, and one member each from Karnataka, Tamil Nadu, Kerala and Puducherry, and a secretary. Its decisions will be by majority and seven of them, except the secretary, will have voting rights.
The CMB is not a brainwave that struck the Supreme Court overnight. It was something that the Cauvery Water Disputes Tribunal "recommended" in its 2007 award. The tribunal considered such a board, under the control of the union water resources ministry, was necessary because, "otherwise, we are afraid our decision (the award on water-sharing) would only be on a piece of paper".
Such a board will, in fact, have the powers to determine how the distress caused by reduced water flow in the river, which is at the root of the latest crisis, as it has been quite often, should be shared.
But the CMB was never set up, because the parties in power at the Centre — first the Congress and then the BJP — were wary of the political price they might have to pay in Karnataka, which was dead set against constituting a board. Both the Congress and the BJP have substantial political stakes in Karnataka. On the other hand, Tamil Nadu has been constantly demanding that the CMB be set up, and Tuesday’s Supreme Court order was a huge victory for the state on that score.
Karnataka has been opposing the formation of the CMB on the ground that, by "controlling" its dams through the board, the Centre will impinge on its autonomy. "We'll have no freedom to run our own dams," screamed one leader after another of all parties on Kannada channels on Tuesday. But, of course, they were missing one point, either out of ignorance or by choice.
If the CMB will "run" Karnataka’s dams, it will also "run" the dams over the Cauvery in Tamil Nadu and Kerala as well.
The tribunal mentioned the reservoirs at Hemavathy, Harangi, Kabini and Krishnaraja Sagar in Karnataka and Lower Bhavani, Amaravathy and Mettur in Tamil Nadu and Banasura Sagar in Kerala.
As the tribunal envisaged it, all these dams will be "operated" by the state concerned, under the "overall guidance" of the CMB, which will "ensure" compliance of the states in implementing the award. The board will have its own ground staff to work with those of the respective state governments.
The board, in turn, will constitute a nine-member Cauvery Water Regulation Committee, headed by a chairman and consisting of representatives of the states and related organisations such as the India Meteorological Department and the Central Water Commission. This committee will compile "water accounts", which means it will record daily water levels, inflows and storage position at the reservoirs.
It’s the lack of authentic data that has been the cause of trouble in the past. Even in the latest battle, Karnataka and Tamil Nadu have accused each other of falsifying data on rainfall deficiency and water utilisation; the reason why the CSC (Cauvery Supervisory Committee, which was set up three years ago in the absence of CMB) was unable to bring about a consensus among the warring states on Monday.
The constitutional jigsaw
The CSC has no legal teeth. It has no powers to enforce what it says.
But will the CMB have the necessary powers? The tribunal said that it must have and that only then can its existence have any meaning. But the real authority of CMB needs clarification because of a constitutional jigsaw.
Article 262 (2) of the Constitution gives the Parliament an exclusive jurisdiction on inter-state water disputes. The Interstate River Water Disputes Act, 1956, is a product of that power. Section 11 of this Act too says "neither Supreme Court nor any other court" could interfere in water disputes referred to a tribunal. But Article 131 (C) of the Constitution includes inter-state disputes in the Supreme Court’s original jurisdiction. And while hearing a Cauvery case in 1991, the Supreme Court said it could indeed interfere in water disputes.
If the CMB’s decisions will be deemed final, it will be a good thing. That could gradually see the end of this century-old dispute. But if its decisions once again will be open for judicial scrutiny by the Supreme Court, we’ll be back to square one.