Date:24/04/2006 URL: http://www.thehindu.com/2006/04/24/stories/2006042406701100.htm

Opinion - News Analysis

Business unfinished even after 16 years

J. Venkatesan

The Cauvery Water Disputes Tribunal remains undecided despite collecting views and data running into thousands of pages.

THE CAUVERY Water Disputes Tribunal's split decision on April 21 to seek an expert opinion on crop and water requirements of the four riparian States — Tamil Nadu, Karnataka, Kerala, and Pondicherry — came as an anticlimax at the conclusion of 16 years of marathon proceedings.

The present term of the Tribunal — Chairman Justice N.P. Singh and Members N.S. Rao and Sudhir Narain — ends on August 5. It was expected that on April 21 the Tribunal would reserve orders to enable submission of the final award before August 5. But the split decision has belied the expectations of everyone. It is bound to delay apportionment of the waters of the Cauvery as all the issues had to be re-opened again.

This is not the first time differences have surfaced openly between the two Members and the Chairman. In July 2004, the two Members passed an order that they have decided to inspect the Cauvery river basin for a better appreciation of submissions of counsel for the parties and to acquaint themselves with the existing ground realities. However, the Chairman expressed his disapproval and stated that the proposed inspection was not necessary at this stage as it would be wasting public money without any advantage in deciding the issue.

The Tribunal was constituted on June 2, 1990, with Justice Chittatosh Mookerjee as Chairman and Justice S.D. Agarwala and Mr. Rao as Members. Justice Mookerjee resigned in 1996 and in his place the present Chairman Justice Singh was appointed. Justice Agarwala expired on November 26, 2002, and Mr. Sudhir Narain was appointed in his place.

It gave an interim award on June 25, 1991, directing Karnataka to release 205 thousand million cubic feet (tmcft) of water every year to Tamil Nadu. However, Karnataka promulgated an Ordinance to nullify the award to protect the interests of its farmers. Faced with this situation, the Centre made a reference to the Supreme Court for an opinion on certain issues.

The Supreme Court said the interim award should be notified, and that the Karnataka Government's Ordinance was unconstitutional. The Centre then published the interim award in the gazette on December 11, 1991. The Cauvery River Water Authority was constituted in 1998 to ensure proper implementation of the interim award.

During the arguments, Tamil Nadu urged the Tribunal to pass a final award, allocating 562 tmcft of water as its share from the Cauvery to meet irrigation, domestic, and industrial requirements. Tamil Nadu said the two agreements of 1892 and 1924 were valid and binding, just and reasonable, and should form the basis of apportionment. According to Tamil Nadu, the Tribunal must take into consideration the irrigation area developed up to 1924; the area developed between 1924 and 1974 as per the agreement; the area contemplated by the agreement but developed after 1974 and before 1990; and potential irrigation area created thereafter. In the perception of Tamil Nadu, the water requirement of Karnataka was only 175 tmcft, which would include the requirement for irrigation, domestic and industrial use. Similarly, for Kerala the requirement would be 8.32 tmcft and for Pondicherry 7.266 tmcft.

Tamil Nadu wanted the Tribunal to prevent Karnataka from expanding minor irrigation areas and to evolve a suitable mechanism to regulate the main irrigation areas. The State should also be asked to avoid growing summer paddy and rabi semi-dry crops. It also asked the Tribunal to set up an Authority to administer all the specified reservoirs in Karnataka and Tamil Nadu so as to ensure timely release of the share of water due to each State under the final award of the Tribunal.

On the other hand, Karnataka said its requirement would be 465 tmcft of water and Tamil Nadu required only 253 tmcft. It said Tamil Nadu had failed to substantiate its claim for 562 tmcft of water. It maintained that its right to development within the Cauvery basin could not be prevented as such a right had been recognised. It argued that the two agreements of 1892 and 1924 were not binding on Karnataka as they were entered into between the then Madras Presidency and the princely State of Mysore.

Karnataka said it was hopelessly discriminated against under the two agreements and its irrigation development was rather stunted. The right to development was totally ignored while formulating these agreements. This distortion and discrimination could be remedied only by recognising the right to development and principles of distributive justice as dominant factors in the equitable apportionment of Cauvery water.

Karnataka said there was no need for constitution of a separate Authority as suggested by Tamil Nadu.

It said the distribution or allocation of water resources by the adjudicatory process under the Inter State Water Disputes Act read with Article 262 of the Constitution (disputes relating to water) ought to be in consonance with Article 39 (b) and (c) of the Constitution (Directive Principles of State Policy). Kerala and Pondicherry maintained that their share of adequate water should be protected in the final award.

In the nearly 16 years of its existence, the Tribunal has held over 570 days of hearings and the parties concerned have filed hundreds of documents on technical information, notes on submissions, witness statements, and compilation of case laws running into over 50,000 pages. If even after collecting so much data, the Tribunal still feels it needs an expert opinion it will only protract the proceedings and delay the award.