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Cauvery river dispute will continue simmering if there is no credible mechanism to implement SC verdict

So you think that Friday's Supreme Court verdict has put an end to the Cauvery water dispute once and for all? Think again. Firstly, take a look at the two salient features of the judgment:

1. The Supreme Court has given the Centre six weeks to put in place "mechanisms" — by way of a Cauvery Management Board (CMB), assisted by a Cauvery Regulation Committee (CRC) — to implement the verdict.

2. The apex court has reduced the water that Karnataka must release to Tamil Nadu by 14.75 tmcft (thousand million cubic feet). So, to that extent, Karnataka's overall water share has gone up from 270 tmcft to 284.75 tmcft.

The first point is the key to a long-term resolution of the dispute, as long as the agencies to be set up — when they are set up — implement the verdict in a credible manner acceptable to both parties. The second point is relatively less important, because the marginal hike in Karnataka's share and a reduction in Tamil Nadu's will make little difference when the monsoon fails and there isn't enough water in the river. Here is why:

The Cauvery dispute has been all about sharing the water when rainfall is deficit, not when it's surplus. That's the reason why the dispute flares up only during poor monsoons, when water becomes scarce. This is how the water has been allocated (in tmcft):

State Demand What tribunal awarded What SC awarded
Karnataka 465 270 (270 + 14.75) 284.75
Tamil Nadu 562 419 (419 – 14.75) 404.25
Kerala 99.8 30 30
Puducherry 9.3 7 7

It's not the allocations per se, but the water that the tribunal said Karnataka must release to Tamil Nadu every month that created the tension, whenever the monsoon failed and when there wasn't enough water to share. The tribunal's monthly schedule went like this (in tmcft):

Month Quantum Month Quantum
June 10 December 8
July 34 January 3
August 50 February 2.5
September 40 March 2.5
October 22 April 2.5
November 15 May 2.5
Total for the year: 192 tmcft

This quantum of 192 tmcft that Karnataka must let flow downstream is part of Tamil Nadu's overall share of 419 tmcft. The rest of Tamil Nadu's share comes from the water available in the river in its territory.

Representational image. Courtesy: News18

Representational image. Courtesy: News18

However, whenever Karnataka's South West monsoon fails and there isn't enough water, it isn't able to stick to this schedule from June, and all hell breaks loose in Tamil Nadu. The tribunal made it clear that whenever the water yield was less in a distress year, the regulatory authority must "proportionately" reduce the scheduled allocations. That was fine, except that there was no regulatory authority, like the CMB that the tribunal recommended in its 2007 award.

Both Congress and BJP are guilty

Successive UPA and NDA governments chose not to set up the board, for fear of antagonising the farmers' vote bank in the key state of Karnataka. The state opposed the board's constitution on the specious plea that it would amount to the board "running" its dams.

In the absence of a CMB, there was first a Cauvery River Authority, headed by the prime minister and comprising chief ministers of the warring states, then a monitoring committee, and finally there was a supervisory committee, both committees made up of officials. All three forums tried to arrive at monthly allocations during bad monsoons, but they lacked credibility and acceptability, and their recommendations failed to satisfy competing claims.

In its verdict on Friday, while reducing the annual quantum of water that Karnataka must release to Tamil Nadu, from 192 tmcft to 172 tmcft, the Supreme Court gave no fresh month-wise schedule. It only said:

In view of the reduction in the quantum of water now required to be released by Karnataka at the inter-state border with Tamil Nadu, ie, at Billigundulu, there would be, logically, a proportionate decrease in the monthly releases as worked out by the tribunal. However, the same pattern therefore, as modeled by it, would be maintained for the reduced releases.

Past experience makes it clear that to successfully implement even the new reduced monthly quotas in distress years, institutional mechanisms like CMB, and CRC to assist it — whatever names they may be given — must be in place. Only such bodies, with technical staff from the disputing states as well as the Centre, can gauge a deficit water situation in all its dimensions: Rainfall, reservoir levels and impact on crops under cultivation.

In recommending the regulatory mechanisms, the tribunal had relied upon Section 6A of the Interstate River Water Disputes Act, 1956. But before the Supreme Court, the Centre gave a twist to this section to argue that it was not obliged to constitute any such mechanisms. That's because Section 6A begins with these words:

Without prejudice to the provisions of Section 6, the central government may, by notification in the Official Gazette, frame a scheme or schemes whereby provision may be made for all matters necessary to give effect to the decision of a tribunal.

SC rubbishes Centre's claim

Solicitor General Ranjit Kumar argued before the court that the word "may" that was used instead of "shall" in Section 6A meant that "in certain situations, there may be no necessity to frame a scheme (constituting any mechanism, leave alone the management board) for implementation of the awards passed by the tribunal".

But the court rubbished this claim, saying:

The argument of the Union of India that Section 6A of the 1956 Act by employing the word 'may' has left room for discretion to the central government for the purpose of framing a scheme does not stand to reason and further it does not meet the substance test.

So the apex court went on to rule:

...we direct that a scheme shall be framed by the central government within a span of six weeks from today so that the authorities under the scheme can see to it that the present decision which has modified the award passed by the tribunal is smoothly made functional and the rights of the states as determined by us are appositely carried out. When we say so, we also categorically convey that the need based monthly release has to be respected. It is hereby made clear that no extension shall be granted for framing of the scheme on any ground.

But the court did not specifically say how the board must be constituted or who should be on it. Presumably, it wants the Centre to constitute it on the lines suggested by the tribunal.

In the absence of any details in the Interstate River Water Disputes Act, 1956, on how the implementing machinery must be constituted, the tribunal said the CMB must be on the lines of the Bhakra Beas Management Board.

Along with a chairman and two members appointed by the Centre, the CMB will have one member each from Karnataka, Tamil Nadu, Kerala and Puducherry, and a secretary. It will take decisions by majority. More importantly, the board will have its own ground staff to work with those of the respective states.

On its part, the CMB will constitute a nine-member CRC, headed by a chairman and consisting representatives of the states and related organisations such as the India Meteorological Department and the Central Water Commission. Among other things, this committee will record daily water levels, inflows and storage in reservoirs, supplying authentic data on which just decisions can be made when the rains fail.

Why the dispute could go on

The ball is clearly in the court of the Modi government, which finds itself in a fix. If it doesn't set up the board, it will defy the Supreme Court. If it does, Siddaramaiah can claim that the BJP has harmed Karnataka's interests. And if the board, if not formed in a way that lacks acceptability, will ensure that the Cauvery dispute will continue to simmer.

All this means only one thing: While the hike in Karnataka's share is a small mercy for the state, that's how the state's farmer leaders are beginning to describe it after the initial euphoria, we haven't heard the last of the dispute. Not just yet.

In the absence of a credible implementing mechanism, politicians of both states will continue to stoke passions to further their interests, officials will toe their respective political masters and jingoistic and ill-informed journalists, loyal to their respective native lands, will go on spreading lies and half-truths. And after 15 years, when the Supreme Court's new allocation lapses, the time will be ripe for a fresh tussle, if not earlier.

Updated Date: Feb 17, 2018 13:47 PM

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