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Monday, Jun 14, 2004

Opinion

Opinion - Leader Page Articles

The UPA and the Cauvery dispute

By Ramaswamy R. Iyer

What is needed is an agreement on a sharing formula for distress years. Whatever the flows, they must be shared and shared fairly.

THE CAUVERY dispute is in the news again. An all-party team of MPs from Tamil Nadu has requested the intervention of Prime Minister Manmohan Singh in ensuring releases of Cauvery waters to the State. The Prime Minister is reported to have promised to look into the matter with fairness to both sides. He also appears to have made a reference to the sharing of distress. A Central team has visited the States in this connection. It may be useful to put matters in proper perspective at this juncture.

At the outset, it must be noted that the Cauvery River Authority (CRA) presided over by the Prime Minister is not a body charged with the resolution of the Cauvery dispute or with basin-planning or management functions in relation to the river. It is a body set up as a part of a Scheme for implementing the Cauvery Tribunal's Interim Order (IO), and its (the CRA's) role "shall be to give effect to the implementation of the interim order dated 25th June 1991 of the Tribunal and all its related subsequent orders" (Ministry of Water Resources Notification dated August 11, 1998).

It is therefore a temporary body of limited significance. The main dispute over the sharing of Cauvery waters by Kerala, Karnataka, Tamil Nadu and Pondicherry is still before the Tribunal. The Tribunal is in the final stages of its work, and may be expected to give its final Award fairly soon. Once that happens, the IO will cease to operate and the CRA will cease to exist unless it is established afresh with a new mandate. However, for the present, so long as the IO is in force, the CRA has the important function of ensuring its smooth working. The prospects of an early meeting and the Prime Minister's promise of earnest attention are very welcome.

The most important, indeed the only, issue in this context is the sharing of waters in a situation of low flows in the river. When the rains are normal and the flows are good, the operation of the IO presents no problems, but when the rains fail and the flows are low a distress situation arises, and the sharing runs into serious difficulties. The IO provides no formula for sharing under those circumstances. That is a weakness in the IO, and the cause of all the trouble in recent years.

What is needed is an agreement among the four parties to the dispute on a sharing formula for distress years. Two kinds of possible responses must be firmly ruled out: one is an insistence by Tamil Nadu that regardless of low flows 205 TMC must be released by Karnataka in accordance with the schedule laid down in the IO, and the other is a refusal on the part of Karnataka to release any waters on the ground that there is not enough water for its own needs. Whatever the flows, they must be shared and shared fairly. If the Governments of Tamil Nadu and Karnataka (as the two principal contending parties) are unable to reach an agreement on a distress-sharing formula, it is the duty of the CRA with the assistance of the official-level Monitoring Committee to work out a formula.

In this context reference may be made to a non-official initiative undertaken by the Madras Institute of Development Studies to bring the farmers of the contending States together to promote understanding and find a way out of the impasse. A few meetings have been held and the goodwill and constructive spirit displayed in these meetings have been remarkable and encouraging. The Central and State Governments must take note of this initiative, be supportive of it, and give due consideration to any approach to distress-sharing that emerges from it.

Turning to the main water-sharing dispute, it is not a particularly difficult one to resolve if it is shorn of politics and looked at dispassionately. Without trying to anticipate the Final Award of the Tribunal, let us look at the basics. The availability of flows in the Cauvery was determined by the Central Fact Finding Committee in the 1970s as 671 TMC feet. Perhaps that figure needs to be re-determined, but let us assume for the moment that the availability has not significantly changed. After earmarking reasonable allocations for Kerala and Karaikal, some 600 to 620 TMC feet may have to be shared by Karnataka and Tamil Nadu.

The possibilities of allocation are not infinite; the range of possible sharing is fairly limited: 320:300 or 380:240 or 400:220 or 415:205 or 420:200 or some such distribution, depending on various factors. (All these are purely hypothetical figures for illustrative purposes, and not proposals offered for consideration.) Looked at this way, the problem does not seem insuperable. Whatever allocation is agreed upon or adjudicated may seem inadequate to both States, but they will have to manage their needs within the allocated quantities. This should not be unduly difficult. What has made the dispute so intractable is the fact that the issue has become enmeshed in electoral party politics in both States, making mutual accommodation and adjustment very difficult. Further, the Cauvery is a fabled river with strong historical, cultural and religious associations in both Tamil Nadu and Karnataka. A dispute regarding such a river tends to arouse strong emotions that make rationality difficult.

Turning to legal principles, Tamil Nadu, in an attempt to protect its established water-use and the related way of life, tends to rely on the principle of prior appropriation or prescriptive rights. This is questioned by Karnataka, which tends to assert its right as the upper riparian to use the Cauvery waters as it sees fit, with the residue going to Tamil Nadu. In effect, Karnataka invokes the Harmon doctrine, though it does not explicitly say so. Neither the Harmon Doctrine nor the principle of prescriptive rights or prior appropriations commands general international acceptance. What has come to prevail is the principle of equitable sharing for beneficial use. There are several criteria to be applied for arriving at an equitable sharing in any given case. What is relevant in each case and how much weightage should be given to each factor are matters for negotiation or adjudication. Established uses do not give a veto power to the lower riparian over upstream development. On the other hand, the upper riparian's right to use the waters flowing through its territory has to be exercised in such a manner as not to cause `substantial damage' to the lower riparian (in the language of the old Helsinki Rules) or `significant harm' (in the language of the U.N. Convention of 1997).

However, principles in the abstract cannot automatically determine the allocation. A constructive practical approach and a spirit of give-and-take are called for.

It must be noted that in Indian or international law, there is no ownership right over flowing waters. Neither Karnataka nor Tamil Nadu (nor Kerala nor Pondicherry) owns the Cauvery. They all have use-rights. There is no hierarchy of rights; neither the upper riparian nor the lower riparian has primacy. There is an equality of rights, but of course not an entitlement to equal shares. How much each State is entitled to is a matter for agreement or adjudication with reference to the considerations mentioned earlier.

What is the way out of the present impasse? First, and ideally, the four State Governments can hold talks and explore the possibility of an agreed settlement of the dispute. The CRA's mandate may be limited, but it is not precluded from facilitating or providing a forum for such an exercise. Further, the Governments can and must facilitate the non-official farmers' initiative mentioned earlier, and take note of the outcome of that initiative. If, as a result of such efforts, an agreed solution to the Cauvery dispute emerges, it can be placed before the Tribunal for consideration for incorporation in its Award.

Meanwhile, however, the adjudication process must go on without delay, so that if an agreed solution does not emerge, there is at least an Award by the Tribunal. It is a constitutionally mandated conflict-resolution process that has been in progress for 13 years. There is no reason to believe that the Tribunal's Final Order, when received, will be a bad one. The Tribunal must have taken note of all the criticisms that have been directed against the Interim Order, and will surely take care to see that the Final Order is not open to similar criticism.

The Final Order is also very likely to include a formula for water-sharing in low-flow situations. If the Final Order gives rise to doubts or dissatisfactions on either side, the provisions in the Act for a further reference to the Tribunal for clarifications or a supplementary report can be availed of. One hopes, therefore, that the Final Order, when it becomes available, will be received without prejudices or preconceptions and in a constructive spirit in all four States.

(The writer is a former Secretary, Water Resources, Government of India.)

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