Much water has flown, quite literally, under the Cauvery bridge, ever since the Cauvery Water Disputes Tribunal (CWDT) was formed in 1990 to resolve the issue of water sharing between the two states of Tamil Nadu and Karnataka.
After more than two decades of its formation, the tribunal — that gave its final verdict in 2007 — remains a motionless body.
As it happened, after the tribunal gave its award in 2007, both the state governments of Karnataka and Tamil Nadu moved the apex court via a special leave petition (SLP), which was admitted by the apex court, and the tribunal was put to the backburner.
The Indian Constitution which attaches a special status to interstate water disputes, had elaborate provisions that states that such disputes will neither fall under the Supreme Court nor any other court’s jurisdiction. These disputes can only be adjudicated by temporary and ad hoc interstate water dispute tribunals.
The CWDT is one such tribunal.
Article 262 of the Constitution provides for adjudication of disputes relating to waters of interstate rivers or river valleys wherein it states that the 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.
Most significantly, it adds that notwithstanding anything in this Constitution, the Parliament may 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) coordination between the states.
But this exclusion of Supreme Court and other courts was qualified by the apex court in State Of Tamilnadu vs State Of Karnataka. The apex court observed: "Thus, we hold that this Court is the ultimate interpreter of the provisions of the interstate water dispute act, 1956, and has an authority to decide the limits, power and jurisdiction of the tribunal constituted under the act. The court has not only the power, but the obligation to decide as to whether the tribunal has any jurisdiction or not under the act, to entertain any interim application till it finally decides the dispute referred to it. After the tribunal passed the interim award, the matter found its way to the Supreme Court in Cauvery Presidential Reference, and the Supreme Court held that an interim award was an award within the meaning Section 6 of the Act."
Hence enters the apex court and as future would tell, most of the awards by the tribunals were challenged in the Supreme Court.
The outcome was ironical. The existence of the institution — which owns its genesis directly to the constitution — became irrelevant, and in no time it turned into the post-retirement abodes of retired judges.
While the Tribunal pronounced its verdict in 2007, it was after full six years in 2013, the central government on the instance of the Supreme Court, notified the 2007 award.
But did it lead to the resolution of the problem? Obviously not.
Ramaswamy R Iyer, former secretary of ministry of water resources and eminent water policy expert, in his very informative and analytical piece on the Cauvery dispute, published in Economic and Political Weekly (EPW) in 2013 wrote, "The Cauvery dispute has been adjudicated but remains unresolved."
Among the various reasons listed by him for the failure to resolve the issue was the fact that "Supreme Court has not been supportive of the Tribunal".
Highlighting the chinks in the armour, Iyer said that the tribunal had a 'chequered history'. He wrote that the "tribunal was torn by internal dissensions, giving rise to the apprehension that its report might not be unanimous. Fortunately, it redeemed itself in time and gave a unanimous Final Order — after 17 years of hearings."
He also criticised the tribunal as it failed to entertain the clarificatory petitions filed by the states. "When the parties submitted clarificatory petitions, the Tribunal put them on hold on the ground that they had gone to the Supreme Court with SLPs. Considering that there was no stay order on its Final Order or on its functioning, it could have heard the petitions and issued a supplementary or clarificatory order."
Iyer was extremely critical of the apex court as he felt that the "Supreme Court was not markedly supportive of the Tribunal".
"When the state governments went to the Supreme Court in 2007 with SLPs against the Tribunal’s Final Order, the Supreme Court promptly admitted the SLPs, without any discussion of the bar on the jurisdiction of the courts provided for by Article 262 and enacted by the Parliament in the ISWD Act 1956. The questions whether the SLPs should be admitted despite the bar, and if so on what grounds, and what implications this would have for the ISWD Act and Article 262, were not explicitly raised and answered. Ironically, having admitted the SLPs and made things difficult for the Tribunal, the Supreme Court has not taken them up for hearing in six years’ time," Iyer remarked.
Indeed, it was ironical that CWDT, a body with constitutional backing had so many functional flaws and was in many ways extremely toothless in enforcing its order. But once the states moved the apex court, and with the Supreme Court admitting the SLP, the Tribunal’s fate was sealed.
As in the case of peninsular rivers which are monsoon dependent, sharing of the water of Cauvery also becomes a contentious issue and source of conflict between the two states, every time monsoon plays truant.
The present tussle between the two states is resultant of similar circumstances. On 6 September, the apex court directs Karnataka to release 15,000 cusecs a day till 15 September, following which massive protests break out in the state.
Senior Supreme Court Advocate Harish Salve, in his essay on interstate river water disputes, published in The Oxford Handbook of the Indian Constitution writes, "In recent times, scholarly opinion on the value of a judicial settlement over a political settlement for inter-state river disputes have been fraught. India’s leading constitutional law scholar HM Seervai, in 1991 attempted an evaluation by comparing the period of time required for political negotiations to the period of time for adjudication by tribunals. Finding no significant difference, he concluded that the proper belief that the political settlement of the river water dispute would be more satisfactorily reached is demonstrably incorrect... Per contra, Professor Ramaswamy Iyer, while recognising the force of such arguments, has suggested that 'adjudication is an unsatisfactory way of dealing with such dispute; a negotiated settlement is infinitely superior; adjudication is divisive and leads to exaggerated claims by both sides."
Views of both the scholars can be corroborated by the experience of the way water disputes in India have been handled. However, while political solution has not any favourers, experience in respect to judicial settlement through tribunals has not been entirely positive either. And CWST is an important case in point.
CWDT was functioning without a chairman since April 2012 (when Justice NP Singh resigned on health grounds) till January 2014 when Justice BS Chauhan was appointed as chairman of the Tribunal.
However, in March 2016, Justice BS Chauhan resigned as chairman of the Tribunal following his appointment as chairman of the law commission of India. The first chairman of the Tribunal also had resigned. Currently, with only two members' applications filed by the Centre, Tamil Nadu, Karnataka and Kerala seeking clarification on the final award of the Tribunal cannot be heard.
When the Tribunal met on 10 July, 2007, the Tribunal headed by Justice NP Singh had refused to hear the applications saying it would be improper to take up clarificatory applications when the Supreme Court had admitted special leave petitions filed by the three states. Subsequently, Justice Chauhan also could not hear the appeal as there were other appeals that were pending before it.
According to a report by The Asian Age, the central government is not in a hurry to appoint a new chairman, as it is contemplating constituting a one five-member Tribunal to take up all the water disputes among the various states. Once the Tribunal is set up, the Cauvery Tribunal will be wound up. An inevitable conclusion, perhaps.
As the water war between the contending parties intensifies, there are some questions that needs to be answered.
Why was the Tribunal left in the lurch for almost two years? Why its majority of chairman called it quits? What is the utility of such a Tribunal when the final decision will be taken by the court? What will be the purpose and functions of the five-member Tribunal? How far different will it be from its predecessors? These are the questions that need to be asked and answered for any genuine reform in 'resolution mechanism' through which we are trying to resolve many water disputes that India has to grapple with.