'Distress-sharing' may be a workable option whenever Cauvery comes up again

Considering that the Supreme Court has now included two, rather three, new variables to the Cauvery tribunal’s findings, it could imply that whenever the current order comes in for review, the two states could raise specific issues flowing from them, says N Sathiya Moorthy.

Independent of what the Supreme Court has indicated is the last and final verdict, apportioning the disputed Cauvery waters, especially between Karnataka and Tamil Nadu in quantum numbers, ‘distress-sharing’ could still be a workable option, should the apex court consider reopening the case at a later date.

In doing so, the court could also consider the carefully worked out final award of the Cauvery Water Tribunal, instituted by the Centre under the Inter-State River Water Disputes Act, which could form the basis for drawing up a ratio among the riparian states, including Kerala and Puducherry.

If anything, the tribunal had used distress-sharing as the basis for its award, but presented its findings in quantum, and not in proportions, which alone could make sense if one were to provide for poor rainfall years, a reality in the case of the Cauvery waters.

In  reducing Tamil Nadu’s share by 14.5 tmc ft, from 192 to 177.25 tmc ft, on Friday, the Supreme Court Bench, headed by Chief Justice Dipak Misra, however, upheld the legality of the two British Raj agreements  (1892 and 1924) between the then Madras Presidency and the princely State of Mysore.

By doing so, the apex court has reiterated the legitimacy of Tamil Nadu’s right to claim a share in the Cauvery waters. In doing so, the court has also ruled that Karnataka could not build new reservoirs on the Cauvery without clearance from the three lower riparian states, especially Tamil Nadu.

Therein also is the veritable possibility for future disputes and even more prolonged court cases. This is because the Supreme Court has now fixed the life of the current order at 15 years.

Considering that the Supreme Court has now included two, rather three, new ‘variables’ to the tribunal’s findings, it could imply that whenever the current order comes in for review, the two states could raise specific issues flowing from these ‘variables’, though not acknowledged as such by the Supreme Court.

Karnataka can thus claim years down the line, one review after another, through decades and centuries, that its requirements under the two new ‘variable’ heads have changed and the state’s share could go up. At every turn, the state could contest the allocation for ground-water recharge, which the SC has now fixed at 10 tmcft, and for meeting Bengaluru city’s drinking water requirements (4.75 tmc ft). 

In this case, the SC has upturned the tribunal findings that 70 per cent of urban Bengaluru fell outside of the Cauvery delta in those parts -- and thus diversion of the river’s waters for non-delta resident’s drinking water requirements was not on.

From the Tamil Nadu side, the availability of 10 tmcft ground-water in the Cauvery delta areas, which the three-judge bench has included into the calculations of the final award of the tribunal, could become a variable. Tamil Nadu could then argue that there was little or no availability of ground-water at a distant time.  Karnataka could then contest Tamil Nadu’s position, and it could well be a merry-go-round, all over again, later though not necessarily now, what with the apex court declaring that Friday’s order was final as far as the current dispute is concerned.

Just now, when political parties and farmer organisations in Tamil Nadu, including the state leadership of the ruling BJP at the Centre, are united in demanding more after the SC verdict, layman arguments also include how ground water re-charge requirements have been included in Karnataka’s case while their state has been asked to extract the very same quantum for irrigation purposes.

Citing the Supreme Court’s observation that ‘drinking water requirements’ should take priority, they also argue for similar requirements of both urban and rural centres along the Cauvery delta in Tamil Nadu, too, where again populations and their needs would only go up, not come down.

There is then the possibility of ‘green concerns’ pertaining to additional ground-water extraction. Experts, including local farm leaders, have for long argued how over-extraction of Cauvery waters along the delta in the state has already caused irreparable damage to the river eco-system. Court orders should have helped reverse the trend, if only to ensure that future generations do not suffer more than the present generation, it is said.

It is another matter, farm leaders point out, that given that much of the delta in Tamil Nadu are clay-laden, re-charge even during heavy rains and cyclonic storms, leave aside the infrequent and inadequate flows released by Karnataka, would not seep down to re-charge the Cauvery aquifer in the state. 

At a time when the Madras high court has been coming down heavily on unscientific, illegal sand-mining across the state in a very big way, the SC order encouraging legalised extraction of additional ground-water where none may exist could set a bad precedent and arrest the mood and method of the judiciary as well -- or, so goes the argument.

While the bench has ruled that there could be no more court cases on the matter, there is no knowing how it expected either the Centre to proceed in the matter if any or if all of the four riparian states refused to join the Cauvery Monitoring Authority (CMA), as upheld on Friday. 

Likewise, the verdict does not seem to have any prescription if Karnataka, as the upper-most riparian, declined to honour the days’ verdict (even if acceptable to Tamil Nadu, for argument’s sake), especially in poor rainfall years.

Then again the question arises, however technical, what recourse does Tamil Nadu have if either the Centre and more so Karnataka were not to honour the verdict, especially when the bench has already ruled that no more cases would be entertained.

According to some experts, it could well boil down to Karnataka voluntarily releasing a higher quantum in high rainfall months/years and much less than the awarded quantities in poor rainfall years.

The tribunal-fixed monthly water-quotas were aimed not only at protecting Tamil Nadu’s quantum but also guarantee that Karnataka did not release excess waters when the other did not have any need or storage space, and ‘denied’ when the lower riparian too very badly needed it.

If at the end of the day, the current dispute that originated 1974, at the end of the 50-year-long 1924 agreement, took so many decades to reach a purported state of ‘judicial finality’, how much time would a next review take to arrive at a conclusion, when one became needed just 15 years from now.

In political terms from the Tamil Nadu side, the Supreme Court has acknowledged and criticised the BJP Centre’s innovative argument that Parliament, and not the judiciary, had the powers to set up the CMA. Considering that the assembly polls in Karnataka are due this year, there was a lot of heartburn in Tamil Nadu, when the Centre took the line before the SC in October 2016. 

The Centre’s sudden U-turn on this score was also among the issues that hurt the Tamil sentiments alongside the Supreme Court orders on ‘Jallikattu ban’ and the consequent protests that shook the state and the nation without actually doing so, in January 2017.

Coming as it does on the first day of his second year in office, the Supreme Court order has unsettled Chief Minister Edappadi K Palaniswami of the AIADMK. For now, DMK Leader of the Opposition, M K Stalin, has urged him to call an all-party meeting, to which he has also urged the state government to invite farmer representatives.

A fortnight back, when EPS requested a meeting with Karnataka’s Congress counterpart, K Siddaramaiah, Stalin volunteered to join him. But Siddaramaiah would not meet EPS, claiming, of all things, that he had a tight schedule, owing to the ongoing legislature session.

It may sound far-fetched, but no one should be surprised if an embattled EPS, still fencing off ‘rebel’ T T V Dinakaran on the one hand, and ‘disqualification’ cases and verdicts pending before the high court, decided to resign en masse and recommend the dissolution of the state assembly, if only to consolidate his hold over the party more than just now.

In turn, this could well upset certain political calculations, including those of the BJP ruling the Centre, and star politicians, Rajinikanth and Kamalahassan, who still seem to be feeling the pulse of the cadres and voters alike before formally launching their separate political parties. In particular, Rajinikanth, a Maharashtrian from Karnataka with family and interests in that state, would now be hard-pressed to comment on the Supreme Court verdict.

Likewise, the BJP may face some embarrassment ahead of the assembly polls in Karnataka, if Chief Minister Siddaramaiah from the Congress decided to quit in protest -- even though in his initial reaction, he has welcomed Friday’s verdict, under pressure from other parties and his own ministerial colleagues and party units. 

These are real and realistic issues, but then the judiciary cannot be expected to provide for them in their verdicts, whatever the political and law and order consequences they could trigger on the ground.

Photograph: PTI Photo.

N Sathiya Moorthy, veteran journalist and political analyst, is Director, Observer Research Foundation (Chennai Chapter).