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Cauvery award in constitutional perspective

Ramaswamy R. Iyer

The final order of the Cauvery Water Disputes Tribunal is a judicial determination, a demonstration of constitutionality and federalism in action. There can be no appeal to the Supreme Court. Aggrieved States must not resort to extra-constitutional action.

IT IS a matter for satisfaction that after 17 years of proceedings the final order of the Cauvery Tribunal has come at last, and that despite the earlier indications of differences within the Tribunal it is a unanimous order.

The Tribunal has proceeded on the basis of an annual availability of 740 tmcft in the Cauvery on a `50% dependability' basis. From this total, final allocations have been made for Karnataka, Tamil Nadu, Kerala, and Puducherry as well as for "environmental protection" and "escapages into the sea." Against the background of the protracted dispute between Tamil Nadu and Karnataka, the significant point in practical terms is that Karnataka has to release 192 thousand million cubic feet (tmcft) from Billigundulu out of which 10 tmcft are meant for environmental purposes. This means that 182 tmcft are meant for Tamil Nadu, which, together with the 25 tmcft that becomes available between Billigundulu and Mettur, adds up to an availability of 207 tmcft at Mettur. For years of low rainfall, the award envisages a proportionate adjustment.

Crucially, the Tribunal in its final order recommends to the Central government that it set up an independent and empowered regulatory authority known as the Cauvery Management Board to "ensure implementation of the order." The regulatory authority will, among other things, monitor the monthly schedules of releases.

Incidentally, the difference between the total allocation of 419 tmcft to Tamil Nadu and the 182 tmcft to be released by Karnataka represents the resource-addition that takes place in Tamil Nadu. Some have not understood this, and have drawn the erroneous conclusion that the allocation to the lower riparian State has been substantially increased. On the contrary, the assumption of a generation of 237 tmcft in Tamil Nadu (419 - 182) seems prima facie somewhat high. However, it is evidently acceptable to Tamil Nadu. (Incidentally, in fixing the release from Karnataka at 192 tmcft, the award takes into account 182 tmcft for Tamil Nadu plus 10 tmcft for environmental purposes, but forgets the 4 tmcft for escapages into the sea: if Tamil Nadu is to get 182 tmcft, the release ex Karnataka should have been 196 tmcft.)

How good is the final award? One can only say that it is on expected lines and that it is not easy to imagine alternative allocations that would be obviously better. It is not significantly different from the interim order, nor is it substantially different from the numbers in the Fact Finding Committee of the 1970s, if adjustments are made for the difference in the dependability basis.

Some questions

Some questions can be asked:

(1) Which is the better `dependability' principle, 50 per cent or 75 per cent? A 50 per cent (or 75 per cent) dependable flow means that the flows are expected to be equal to or higher than that number in 50 (or 75) years out of 100. Engineers differ on this question. However, the allocation has to based on some numbers, and it does not really matter whether the 50 per cent or 75 per cent basis is adopted, so long as there is a provision for dealing with the contingency of the availability falling below the adopted number.

(2) Is the release of 192 tmcft ex Karnataka (182 tmcft for Tamil Nadu plus 10 tmcft for environmental purposes) inclusive of the 7 tmcft allocated to Puducherry or not? The answer is clear enough, though it is not explicitly stated (as it was in the interim order). Puducherry's share of 7 tmcft has necessarily to come ex Tamil Nadu; and the award clearly envisages a release of 192 tmcft (and not 192 +7 tmcft) ex Karnataka.

(3) In bad years how will the proportionality principle operate? The Tribunal's final order states that "distress caused by diminution of water flows during the period will be shared by the party States after the distress conditions and their extent is determined by the Board keeping in view water shares allotted to parties." This is somewhat disappointing. While the principle of distress-sharing is sound enough, the order does not indicate how it is to be operationalised. Further, if the distress-sharing is to be done after the distress has occurred, how will the water-sharing take place when the distress has set in but has not yet been determined? Perhaps all this is left to the proposed Cauvery Management Board.

(4) Is the final award `in favour' of one State or `against' another? Such questions are misplaced. It is a judicial determination and must be ipso facto presumed to be fair to all parties. During the inordinately long period of the adjudication process, all the four State governments took a great deal of trouble over the presentation of their cases, consulted experts of high standing, engaged eminent counsel, and submitted massive documentation. It is simply not open to any of them to say that its case has failed to receive a proper hearing or to complain about `injustice' or `unfair' treatment.

It needs to be noted that the adjudication process was not merely a judicial process, but a constitutionally mandated one. Article 262 provided for parliamentary legislation for the adjudication of inter-State river-water disputes, and it was under that provision that Parliament enacted the Inter-State Water Disputes Act 1956 (ISWD Act). The Cauvery Tribunal was set up under that Act. Besides, it was set up by the Government of India in 1990 under a specific direction of the Supreme Court. The adjudication is thus a demonstration of constitutionality and federalism in action.

A further point is that while the original ISWD Act stated that the award of a Tribunal set up under the Act would be final and binding, which was clear enough, the Amendment Act of 2002 goes further and says that the decision of the Tribunal "shall have the same force as an order or decree of the Supreme Court." It must also be noted that the ISWD Act, under a specific provision of Article 262, bars the jurisdiction of the courts (including the Supreme Court) once a dispute has been referred to a Tribunal set up under the Act. There can be no appeal from the award of the Tribunal to the Supreme Court.

It follows that whether in Tamil Nadu or Karnataka or Kerala, any act of mobilising political parties, building political opinion, and mounting a campaign against the order will be not only against the law but also against the Constitution. It is the duty of all State governments not merely to counsel calm and prevent violence but to declare clearly that the Constitution, the rule of law, and the spirit of federalism must be respected, that the outcome of a judicial process must be accepted, and that for any perceived deficiencies in the order, only legally available remedies must be resorted to. In this context, the January 31 meeting at Mandya of Tamil Nadu and Karnataka farmers (the `Cauvery Family') under the auspices of the Madras Institute of Development Studies must be commended for the sanity and wisdom that it showed in declaring that it looked forward to the final order of the Tribunal with an open mind. One fervently hopes that that spirit will continue to prevail.

In the light of the foregoing analysis, what would be the right response to the final order?

All the State governments and political leaders should give the right advice to the people, as outlined above. The final order should not be made the subject of party politicking.

In terms of the ISWD Act, if the Central government or any of the State governments feels that anything in the Tribunal's decision "requires explanation or that guidance is needed upon any point not originally referred to the Tribunal," it may, within a period of three months, "refer the matter to the Tribunal for further consideration," and ask for a further report. One hopes that such a reference will not be found necessary, but if there is a sense of grievance, this is a legally available remedy. (There have been vague news reports about the possibility of Karnataka and Kerala seeking a `review' of the Tribunal's final order. The reference is presumably to the further reference provided for in the Act.)

In the event of such a reference, one must implore the Tribunal to dispose of it expeditiously and bring the adjudication process to a final conclusion without further loss of time. Unfortunately, even the amendments of 2002 to the ISWD act, while laying down the time limits for the Tribunal's award, do not specify any time limit for the disposal by the Tribunal of the further reference. Hence this appeal to the Cauvery Tribunal.

Once the further report of the Tribunal is received, the Central government must immediately notify the award (main and further reports) in the Gazette.

With the announcement of the final order the interim order ceases to be operative, and the Cauvery River Authority (which was set up in the context of the interim order) becomes functus officio (a body that has completed its duty); the Tribunal in its final order, using its "implied power" under the ISWD Act, recommends to the Central government that it set up the Cauvery Management Board (on the lines of the Bhakra Beas Management Board) to ensure implementation of the award, so that it does not remain on paper. The Central government should act on this recommendation promptly.

All this makes it clear that we have not reached the end of the Cauvery dispute yet. A long road lies ahead.

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