The Supreme Court’s order , directing Karnataka to release 15,000 cusecs of water of the Cauvery to Tamil Nadu for the next 10 days, has resulted in the resurfacing of a dispute that is more than a century old.
Over time, the number of demands, stakeholders and complexities surrounding the Cauvery dispute has increased, and the institutional responses have been far from adequate. In fact, the shortcomings of the adjudication mechanism as well as the outcome have resulted in the issue being locked in within a sub-optimal situation of seemingly irreconcilable conflict.
The central government set up the Cauvery Water Dispute Tribunal in 1990 — 20 years after being approached by Tamil Nadu under the Inter State River Water Disputes Act, 1956. The award of the Tribunal finally came in 2007, but was challenged before the Supreme Court through Special Leave Petitions filed by Tamil Nadu, Karnataka and Kerala.
While the final adjudication on the matter is pending, the current dispute surfaced over Karnataka’s release of water during June-August, 2016. According to Tamil Nadu, out of a total due of 94 thousand million cubic feet (TMC), Karnataka released 33 TMC — leading to a deficit of 61 TMC.
In an urgent plea before the Supreme Court, Tamil Nadu claimed that without the water, the ‘samba’ crops in the state would be damaged. In response, Karnataka argued that the supervisory committee is the appropriate forum for the resolution of this conflict. As a gesture of goodwill, Karnataka offered to release 10,000 cusecs of water (0.86 TMC) per day. Tamil Nadu, however, demanded 20,000 cusecs.
In an attempt at reconciliation, through an interim order, the Supreme Court directed Karnataka to release 15,000 cusecs per day for the next 10 days, while the supervisory committee examines the issue and passes directions within four days. The next date of hearing is September 16.
The strong public reaction to this order of the Supreme Court is an indication not only of the deeply political and entrenched nature of the conflict, but also fundamental problems in the process and outcome of the dispute-resolution mechanism. A significant factor contributing towards the elusive nature of reconciliation in such disputes is a flawed understanding of what constitutes a ‘river’, and how it should be governed.
It is reductionist and unhelpful in viewing a river merely in terms of the cumecs of water without taking into account the other elements and functions of the river — including groundwater recharge, water flow, quality and biodiversity. Unfortunately, the discourse around inter-state water disputes continue to be framed in the limited terms of water availability in what is viewed as a zero sum game — that is, water allocated to one state is the loss of another, and the water that reaches the sea is a waste.
The decision-making is characterised by ad hoc bargaining at the interim stages and static and incomplete information, rather than a sound understanding of human and ecological needs within the basin. The limited understanding of ‘water appropriation’ further fails to reflect the nuanced understanding of environmental flows and variability due to climate factors.
The unit of planning and use of a river system should be the entire basin, rather than the political boundaries of states, since the nature and use of the river and the land in upstream states will necessarily affect the downstream states.
This approach is neither new nor contested. In 1999, the National Commission for Integrated Water Resources Development had recommended River Basin Organisations constituting concerned state governments, local governments and water users as a forum for mutual discussions and agreement — a recommendation that was supported by the Administrative Reforms Commission. This is recognised even within the National Water Policy, 2012 and the recently circulated draft of the National Water Framework Bill.
Constitutionally, the central government has the legislative competence over inter-state rivers to facilitate this. However, this approach has not reflected in application in highly contested inter-state river disputes like the Cauvery.
The Cauvery dispute is further burdened with a lack of clarity. The Cauvery Award allocates the 740 TMC — which the Tribunal considers to be the utilisable quantum of water of the Cauvery on the basis of 50% dependability between the riparian states. The allocated shares are to be proportionately reduced in a distress year. However, it neither defines nor provides guidelines on what counts as a distress year and how the water should be allocated, leading to expensive, time consuming litigation and ad hoc, unscientific outcomes.
High political stakes, changing land use, deterioration of natural environment and increasing competing demands have intensified river disputes. It is unlikely that a river dispute can be solved within the limited terms of allocation of cumecs of water. There should be a conscious and concerted move to reframe the discourse. There is a recognised need for an integrated approach, taking into account demand management, efficient utilisation and optimisation of water resources, and scientific planning.
Under the present system, where water disputes are viewed from a narrow lens of political mileage, such discussions are frequently overlooked. Better decision-making on river basin management within a well-informed and participatory framework can go a long way in diffusing the nature and intensity of inter-state conflicts on water.
(Preeta Dhar is an environmental lawyer, and currently a graduate student at the Azim Premji University.)