Cauvery issue: Why Supreme Court must refuse to hear the case and how it will help

Why does the Supreme Court step in whenever the monsoon fails and Tamil Nadu and Karnataka quarrel over the deficit waters? It’s akin to the ‘chicken-first-or-egg-first?’ conundrum.

The court comes on the scene because Tamil Nadu rushes to it in the absence of an institutional mechanism to apportion waters when the rains fail. And there is no such mechanism because the court hasn’t forced the executive to constitute one. Instead, the court itself has been trying to work out water-sharing formulas in distress years.

And yet, helpless because of its technical incapability to arbitrate over this issue and deprived of the knowledge of ground realities in the river’s basin, the court has always had to necessarily rely on an outside agency before reaching a verdict. It was earlier either the Cauvery River Authority, headed by the Prime Minister and made up of the Chief Ministers of the warring states or a Monitoring Committee of officials.

And now the court is depending on the Supervisory Committee, comprising central and state officials, that has superseded the previous two bodies.

A chief reason why the Cauvery issue has remained a hard nut to crack is that it’s a dispute over sharing of ‘deficit waters’ but not ‘surplus’ waters as in the case of some other contentious rivers. Dividing anything, when there is very little of it, is necessarily a tricky business. It’s not surprising that apportioning water at a time when the Cauvery simply doesn’t have enough of it is a gargantuan task.

Representational image. CNN-News18

And yet, I found from my travels through the Cauvery basin in both Karnataka and Tamil Nadu in the past that the average farmer in both the states is not loath to the idea of sharing the distress. For him, it’s not a question of whether the states should share the water but how they should do it.

And that’s a question an institutionalised official body is better placed to resolve than the Supreme Court. Be it a Management Board that the Cauvery Water Disputes Tribunal recommended in its 2007 award or a Monitoring Committee or the currently functional Supervisory Committee.

Call it what you will, it’s only such a body that can understand the issue in all its complexities. The extensive data it has access to on deficient rainfall and on what it means to reservoir water levels and how it impacts crops can help it decide in a judicious fashion on how much water Karnataka must release on a monthly or a weekly or even a daily basis, depending on situation prevailing in a deficit period.

By refusing to hear petitions whenever reservoir levels drop steeply and by ensuring that the Centre evolves a mechanism to allocate water each time monsoon plays truant, the Supreme Court could bring about a long-term solution. And for the farmers, the legal route only means avoidable delays in getting precious water.

It must be understood that the dispute is not essentially about the overall allocation of the river’s waters, though the states are challenging it. The tribunal awarded 270 tmcft (thousand million cubic feet) of water against its demand for 465, and Tamil Nadu was given 419 while it claimed 562. Kerala and Puducherry were allocated 30 and seven tmcft respectively. When the monsoon ensures copious water in the river, the states get enough and more.

But what is contentious, at least from Karnataka’s point of view, is the tribunal’s order that Karnataka should “release” 192 tmcft of water to TN in every “water year” from June to May. The tribunal went a step ahead: it fixed schedules of water releases. For the months between June and September — the period that Tamil Nadu talks about in its latest petition before the Supreme Court—Karnataka must release water this way:

Tamil Nadu’s insistence that, come rain or shine, Karnataka must abide by these monthly allocations is laughable. This is the period when Karnataka should get rains from the south-west monsoon, but nobody doubts that rainfall has been deficient this year. The tribunal said that, in a distress year, water should be shared in the proportions of their allocations.

While the tribunal’s calendar of water release can be a broad basis in a deficit year, it’s only an official committee that can determine equitable releases that reduce the distress to the minimum in both states.

Legal pundits in both the states are also understandably anxious over what the Supreme Court will do on 18 October, when the larger issue of the petitions of Tamil Nadu, Karnataka and Kerala, challenging the tribunal’s award, is expected to come up. It remains to be seen whether the court will open the Pandora’s box of the Cauvery all over again or will uphold the tribunal’s award and ask for its implementation.

Among constitutional experts, there is some confusion over the Supreme Court’s powers to adjudicate a river water dispute in the first place. The uncertainty arises because of two “competing constitutional provisions”, as the authors of The Oxford Handbook of the Indian Constitution, published this year, call them. These are:

Article 131 (C) of the Constitution on the original jurisdiction of the Supreme Court, which says:

(...the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute) between two or more States...

Article 262 (2) of the Constitution on inter-state water disputes, which, on the other hand, says:

Notwithstanding anything in this Constitution, 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)

At least in the case of Cauvery dispute, it’s no longer a question of Supreme Court’s jurisdiction, especially since the court declared in 1991, while hearing a petition against the tribunal’s interim order:

Thus, we hold that this court is the ultimate interpreter of the provisions of the Interstate Water Disputes Act 1956 and has an authority to decide on the limits, powers and the jurisdiction of the Tribunal constituted under this Act.

Whatever happens on 18 October, the farmers in both the states are anxious about the more immediate issue of getting water for their crops. And what helps them in the long run is a permanent mechanism that, firstly, will ensure them their due share of water faster without involving the Supreme Court and, secondly, will deny the political class a chance to fish in troubled waters.

Author tweets at @sprasadindia