Cauvery Water Verdict: Why The Supreme Court Deserves A Salute

What is it about February and the Cauvery river water dispute? It was on 5 February 2007 that the Cauvery Water Disputes Tribunal delivered its award fixing the shares of Tamil Nadu, Karnataka, Kerala and Union Territory of Puducherry. It was on 19 February 2013 that the award came to be gazetted by the Union of India. And now we have the imprimatur from the Supreme Court on the challenge to the said award by Tamil Nadu and Karnataka, by orders dated 16 February 2018. The Supreme Court has proclaimed in clear and unequivocal words that ‘water was a national asset and no one state can claim a monopoly’ over it. Even earlier, in the battle of the Ambani siblings, the Supreme Court had said ‘natural resources belonged to the people’.

Yes, the share of Tamil Nadu appears to have been reduced marginally by 14.75 thousand million cubic (TMC) feet – on the premise that the ground water source availability in the Cauvery river basin was not taken note in the award of the tribunal. Karnataka therefore gets the benefit of it duly factoring the increased and increasing needs of the city of Bengaluru – (4.75 TMC) and industrial requirements. The shares of Kerala and Puducherry remain unaltered from the award.

This ‘arrangement’ with the seal of the top court shall continue to be in vogue for the next 15 years. Most significantly, the long pending issue of constitution of Cauvery Management Board (CMB) to implement the ‘arrangement on water sharing’ has been answered in the affirmation for Tamil Nadu. It therefore is a ‘balanced verdict’ as the Karnataka counsel would suggest. And even the farmers in Tamil Nadu though disappointed at the lowered share, in the overall perspective, of the ‘water sharing arrangement as per the award of the tribunal becoming a binding one’ and to be implemented by CMB, are ‘more than satisfied’ with the verdict. Can anyone, therefore, say with confidence that the Cauvery dispute between the contesting states has been sorted out for the present and at least for the next 15 years. At least that is the expectation as verdict of the Supreme Court under Article 141 of the Constitution is law of the land and binding on all parties.

The Cauvery imbroglio goes back to 1892 and 1924 vintage agreements. Interestingly, the apex court has held that the said agreements on ‘water sharing were not political arrangements but entered into in public interest’. Karnataka’s arguments to the contrary were rejected holding that after Independence and the enactment of Constitution, they were not rejected. Picking up the thread from the lapse of the said agreements in 1974, there is a historical construct for the verdict of today. Since 1974, and even earlier, the two states or even the four entities have been hotly contesting their shares and repeated attempts to mediate a ‘working arrangement’ failed miserably, compelling Tamil Nadu to move the Supreme Court for the constitution of the tribunal.

In 1990, the tribunal came to be constituted again thanks to the orders of Supreme Court. Proceedings went on for 16 long years, even amidst changing party dispensations in the states. Ultimately, the award came on 5 February 2007, which was challenged and now finality appears to have come on 16 February 2018.

This award in 2007 could not be implemented until it was gazetted in 2013 – that too after the central government was directed to do so, by the Supreme Court, at the instance of Tamil Nadu. Yet, the creation of the CMB to implement the award, continued to hang fire. Tamil Nadu kept reiterating its demand and the prayers have been answered only now. It is a huge relief for Tamil Nadu since the need to keep knocking at the doors of Supreme Court, may now have become a thing of the past.

But matters did not settle even after the notification of the tribunal’s award. It was again waged as a battle before the Supreme Court, with the central government taking the line that Supreme Court had no jurisdiction to entertain any challenge to the award – under Article 262 of the Constitution and in any case the award had to be construed as an award of the Supreme Court, for all practical purposes and not amenable for further challenge. This argument was negatived by orders dated 16 December 2016 and the special bench was free to pronounce its verdict in the challenge to the award.

Now, the Supreme Court has modified the award of the tribunal only in part. Out of the total amount of water recorded at 740 TMC – Karnataka’s share would be 284.75 TMC and Tamil Nadu’s at 414.25 TMC, out of which Karnataka to release 177.25 TMC (now lesser by 14.75 TMC) to Tamil Nadu. Kerala’s share at 30 TMC and Puducherry’s at 7 TMC shall remain unaltered.

The winner in this battle is undoubtedly the Supreme Court of India. The ‘most powerful institution in India’ as accepted by academicians and practitioners the world over, has become far more powerful now. Be it the National Judicial Appointments Commission verdict in 2014 – upholding collegium as the mechanism to appoint judges to higher judiciary, or rendering triple talaq unconstitutional and directing the executive to provide for a law or now in the Cauvery dispute, the top court has played its part adroitly, towering well above the other two branches – legislature and executive. It is the colossal failure of the other two branches that is ceding more and more space to the top court to fill the vacuum and no more a case of judicial overreach overreaching itself.

Politicians have themselves to blame. They having miserably failed to resolve the dispute by a negotiated water sharing arrangement, ought to accept the blame and not be seen to be criticising the verdict of the Supreme Court, in any manner whatsoever. For, the Supreme Court was constrained to step in, because the other two pillars failed in their duty. Most importantly, Supreme Court, fully alive and aware of the emotional connect to water conflicts has rendered a nuanced verdict of immeasurable balance.

It is a virtual win win for both states. But it would require statesman like conduct from our politicians to behave responsibly and see it that way, more so, in a year when assembly elections are due in Karnataka and Tamil Nadu’s political pot, in post J Jayalalithaa era, on a continued boil.

In the meanwhile, let’s salute the Supreme Court for its legal acumen and sagacity to balance the rival claims and come up with a verdict that serves the cause of both the states and has given peace a chance. While Karnataka can claim the additional 14.75 TMC as vindication of their claims – Tamil Nadu can equally claim the constitution of Cauvery Management Board, as a permanent solution for implementation of the award, a long pending demand of substance. Hope the central government complies with the legal mandate, within the six-week timeline.