Coming straight to the heart of the matter, it must be brought out here right at the very beginning that First and foremost, let me begin by humbly pointing out that urging Karnataka to embrace the principle of “live and let live”, the Supreme Court has unequivocally asked on September 2, the State to consider sympathetically taking steps to release Cauvery water to distressed Tamil Nadu to help the State continue to “exist as an entity”. This came after Tamil Nadu brought to the notice of the court that the Karnataka Chief Minister has said that not a drop of water will be released to it.  It is the bounden duty of Karnataka to pay heed to what the highest court of our nation – Supreme Court has itself said so unequivocally.

While craving for the exclusive indulgence of my esteemed readers, let me bring out here very clearly that  Justice Dipak Misra who is heading the Bench also comprising of Justice U U Lalit of Supreme Court observed very unambiguously that, “Tamil Nadu’s situation is ‘water, water everywhere, but not a drop to drink’. Some steps have to be taken by Karnataka so that the other State [Tamil Nadu] can exist as an entity. The principle of live and let live has to be applied to this dispute.” Speaking on a personal note, I find not one single reason why Karnataka should not comply with this. To help others in times of distress is most essential ingredient of humanity and there is no reason why Karnataka should refuse to do so.

For my esteemed readers exclusive benefit, let me also bring out here that the Bench of Justice Dipak Misra and Justice U U Lalit noted that Tamil Nadu had suffered deficit for three straight months in June, July and August this year. Justice Misra observed that, “Two states have to live in harmony. Water disputes leave the inhabitants of two States, their agriculture, their lives in dire straits…” Senior advocate Shekhar Naphade countered that, “Leave alone two States, two districts in a State end up fighting nowadays.”

Justice Misra said that, “I am talking the constitutional language.” Naphade responded by saying that, “And I am talking of political reality on the ground.” Needless to say, the constitutional language has its own importance but simultaneously the political reality on the ground cannot be ignored. During the hearing, senior advocate Shekhar Naphade, appearing for Tamil Nadu, contended that Karnataka has not been complying with the Tribunal’s directions in the final order and there has been flagrant violation of the same. He said that if the water is not released by Karnataka, the ‘samba’ crops will be damaged, which will lead to disastrous consequences for the farmers of Tamil Nadu. Needless to say, Naphade has a valid and compelling point which cannot be overlooked.

Let me hasten to add here that senior, eminent lawyer Fali S Nariman and while appearing for Karnataka said that there were rain “deficit months” in the recent past and it was difficult to release the water due to Tamil Nadu. He along with advocate Mohan Katarki pointed out that the Tribunal has not provided for an alternative for Karnataka on the point of release of water during distress months. Justice Dipak Misra minced no words in stating very unambiguously that, “We cannot assume what will be the rainfall, etc… but if there is a formula in the tribunal award, Karnataka is bound by it.”

Justice Misra agreed to hear the case in detail on September 5. Justice Misra added that, “We will listen to the grievances of the inhabitants of both States”. In a counter application to Tamil Nadu’s application for release of 50.52 tmc ft of Cauvery water to save 40000 acres of samba crop this season, Karnataka said it had a deficit of about 80 tmc ft water in its four reservoirs.

In an interim order which may ameliorate the plight of Tamil Nadu farmers to some extent, Supreme Court on Monday asked Karnataka to release 15,000 cusecs of Cauvery water daily for the next 10 days to its neighbouring state. The apex court also directed Tamil Nadu to approach the Supervisory Committee, set up to implement award of Cauvery Water Disputes Tribunal (CWDT), within three days for the release of Cauvery water as per the final order of Tribunal. Both the States must comply unconditionally with what the Supreme Court has said so categorically.

Be it noted, the Bench of Supreme Court comprising of Justice Dipak Misra and Justice U U Lalit also held that, “The Supervisory Committee shall pass appropriate direction in this regard within four days from the date of filing of the reference, keeping in view the language employed in the final order of the Tribunal. Be it clarified, the Supervisory Committee is bound by the language used in the order passed by the Tribunal…” The Supervisory Committee must bear this always and comply with it accordingly. There should be no deviation from it under any circumstances unless the Bench of Supreme Court permits it.

Having said this, let me also add here that the Bench further added that, “Coming to the immediate arrangement, keeping in view the gesture shown by the State of Karnataka and the plight that has been projected with agony by Mr Naphade, we think it appropriate to direct that 15,000 cusecs of water per day be released at Biligundulu by the State of Karnataka for ten days.” It also directed Tamil Nadu to release water to the Union Territory of Puducherry proportionately as per its interim arrangement, while posting the matter for further hearing on September 16.

The order came after senior advocate Fali S Nariman, appearing for Karnataka, said as a “goodwill gesture” the state government was ready to ensure flow of 10,000 cusecs (about 0.86 TMC) per day from September 7 to 12. However, Tamil Nadu sought release of 20,000 cusecs of water per day instead of 10,000 cusecs of water in the interest of the farmers of the state. The Apex Court had earlier refused to give an urgent hearing to Tamil Nadu’s plea for setting up of Cauvery Management Board for implementation of the CWDT award.

Let me recall here that at the directions of the apex court, the Centre, in 2013, had notified the final award of the CWDT on sharing of water of the Cauvery system among the basin states of Karnataka, Tamil Nadu and Kerala and union territory of Puducherry. The CWDT had recommended the setting up of a Cauvery Management Board/Authority on the lines of the Bhakra Beas Management Board for implementation of the order. The board, in turn, would constitute a Cauvery Water Regulation Committee for assistance. The Tribunal, in a unanimous decision in 2007, had determined the total availability of water in the Cauvery basin at 740 thousand million cubic (tmc) feet at the Lower Coleroon Anicut site, including 14 tmcft for environmental protection and seepage into the sea. The final award made an annual allocation of 419 tmcft to Tamil Nadu in the entire Cauvery basin, 270 tmcft to Karnataka, 30 tmcft to Kerala and 7 tmcft to Puducherry.

Background

The origin of the Cauvery dam is at Talakaveri in Karnataka’s Kodagu district. The Cauvery Basin is estimated to be 81, 155 square kilometers out of which 43,8567 is in Tamil Nadu, 34,273 is in Karnataka, 2,866 in Kerala and 160 square kilometers in Puducherry. This means roughly about 55.5% square in Tamil Nadu, 41.2% in Karnataka and 3.3% in Kerala. It flows through 800 km in Karnataka and Tamil Nadu through Poompuhar in Tamil Nadu. The major reservoirs in Karnataka are Krishnarajasagar, Kabini, Harangi and Hemavathy and in Tamil Nadu are Mettur and Bhavanisagar.

The total water available in the Cauvery basin is 740 tmcft out of which Tamil Nadu demands 562 tmcft and Karnataka demands 465 tmcft. The Cauvery water irrigates roughly about 4,53,400 hectares in Mandya and Mysore regions. The rice bowl of Tamil Nadu comprising 9,18,000 hectares in Thanjavur hinges on the Cauvery water. In addition, Chennai, Madurai and Coimbatore depend on the Cauvery water for drinking water.

History Of Dispute

It is imperative to know the entire historical sequence of the Cauvery water dispute. It will help readers understand better as to what exactly its historical background is. It runs as follows : –

1. In 1881, the royalty of the State of Mysore wanted to build a dam across Cauvery river but the Madras Presidency very strongly took exception to it.
2. In 1892, it is agreed that the State of Mysore would have to seek permission from Madras Presidency before undertaking irrigation projects on its soil.
3. In 1911, the Madras presidency objects strongly to Mysore’s plans for Krishnarajasagar reservoir and it must be noted here that the arbitration under Government of India favours Mysore over Madras.
4. In 1924, it must be pointed out that a new agreement is arrived at that would be valid for fifty years and this is reached following appeal against the earlier arbitral award. Karnataka contributes 462 tmc ft of Cauvery water but can use 270 tmc ft. Tamil Nadu contributes 227 tmc ft but gets 419 tmc ft. This palpable unfair distribution is mainly because when the first agreement was signed in 1924, Tamil Nadu was using 80 percent of Cauvery water but Karnataka used just 16 percent. This is patently unfair and needs to be changed.
5. In 1972, a Cauvery fact-finding team is constituted and this ultimately results in several inter-state discussions in the two decades that followed.
6. In 1974, the agreement between the Madras Presidency and the princely state of Mysore expires.
7. In 1976, it was agreed by all the four claimants on their share initially but a change in government leads Tamil Nadu to renege on its final consent.
8. In 1990, Cauvery Water Disputes Tribunal is set up by the Central government to address the key issues among which shortage of water is most notable.
9. In 1991, Tribunal issues interim order, pegging Tamil Nadu’s annual share at 205tmcft (thousand million cubic feet) and this culminates in huge protests in Karnataka.
10. In 1995-96, due to bad monsoons, Karnataka flatly refuses to release Tamil Nadu’s share. The then Prime Minister thereupon directs Karnataka to release a part of the share.
11. In 1997, a Cauvery River Authority and a Cauvery Monitoring Committee are set up.
12. In 2002, the poor monsoons only serves to leave the two states bitterly quarrelling with each other over the 1991 order. Farmers carry out many protest marches and Karnataka then stops the release of water. Supreme Court then intervenes but Karnataka just refuses to obey the order which leads to flaring of tempers on both sides.
13. In 2007, the Cauvery Water Disputes Tribunal after 17 years of deliberations gave a final verdict onFebruary 5 and allocated 419 tmc ft to Tamil Nadu, 270 tmc ft to Karnataka, 30tmc ft to Kerala and 7 tmc ft to Puducherry. The balance 14 tmc ft has been earmarked for environmental protection and outflow to the sea. Karnataka claims 312 tmc ft of water. Both main states – Karnataka and Tamil Nadu were dissatisfied and file review petitions.
14. In 2012, both Tamil Nadu and Karnataka grapples water shortage and Karnataka is ordered by Supreme Court to release at least 9,000 cusecs of water per day to Tamil Nadu for a month. Huge protests break out again.
15. In 2013, Centre notifies final Cauvery Water Dispute Tribunal award.
16. In 2016, Tamil Nadu files suit against dip in water supply. Karnataka had released 41 tmc ft due to low inflow in its dams. On September 5, Supreme Court orders Karnataka to release 15,000 cusecs of water to Tamil Nadu for 10 days which amounts to 13 tmc ft to save 40,000 acres of crop. Karnataka pointed to a 47% drop in inflows and cites inability to release water. Case again before the Cauvery River Supervisory Committee on September 19 and the next Supreme Court hearing on September 20. Karnataka had offered water at the rate of 10,000 cusecs for six days and Tamil Nadu wanted 20,000 cusecs and a total release of 50 tmc ft. On September 12, the Division Bench of the Supreme Court had ordered the release of water at the 12,000 cusecs for another 8 days, up to September 20. This increased the amount of water to 17 tmc ft. Presently, Tamil Nadu’s share has come down to 57 percent and Karnataka’s share has gone up to 37 percent.

It is most unfortunate and regrettable that huge protests broke out after the Supreme Court verdict which ordered Karnataka to release more water to Tamil Nadu! Each and every citizen of India is bound to comply with the judgment delivered by Supreme Court which is the highest court of our nation. More than Rs 25,000 crore loss occurred due to the huge violence when all hell broke loose with miscreants indulging in loot and violence and torching of many vehicles, buildings and other public and private property! Some people lost their lives also in violence and many got injured.

Mob violence can never be justified under any circumstances. No person can take law in his own hands and resort to violence under any pretext whatsoever. Those who do so must face the stringent punishment. There can be no leniency for them. They must be made to face the music.

Destruction of public and private property is fast becoming the norm rather than an exception and if not checked in time can lead to a potential catastrophe! The government of the state where violence occurs cannot escape from its responsibility by attributing the violence to people’s sentiments and must act promptly. If prompt action had been taken, what India witnessed in Karnataka would never have taken place. So the Congress government in Karnataka is fully culpable for not acting in time and pandering to those who indulged in violence by not authorizing police to act tough against them.

One hopes that there is an amicable settlement that is mutually acceptable to both parties so that the bitter water dispute between Karnataka and Tamil Nadu that has been lingering since last more than 125 years is finally brought to an end. It is here that the Supreme Court has an important role to play. Both Karnataka and Tamil Nadu must comply with the orders of the Supreme Court and bring an end to the long standing dispute between both the States. It is a difficult task indeed but certainly not impossible!

Both States must rise above their narrow interest and act in the supreme interest of the nation. They cannot be above nation. No way! The people of Karnataka must be more tolerant and stand up like one unifying force like they had been when Chennai was hit by the devastating floods of 2015!

They must also implement what has been laid down by the Cauvery Water Disputes Tribunal Award but most unfortunate that both states have not accepted the final award of the tribunal. It has stated in its Award dated February 5, 2007 that Karnataka should release 192 tmc ft of water in a normal monsoon year – 10 tmc ft in June, 34 tmc ft in July, 50 tmc ft in August, 40 tmc ft in September and 22 tmc ft in October, 15 tmc ft in November, 8 tmc ft in December, 3 tmc ft in January and 2.5 tmc ft each from February to May at the Billigundlu water station in Tamil Nadu.The 192 tmc ft comprises 182 tmc ft from Tamil Nadu’s allocated share, and 10 tmc ft allocated for environmental purposes.

It may be recalled that it was the failure of Karnataka government to release the required quantum of water in July and August that Tamil Nadu decided to approach the Supreme Court. Karnataka must comply with the order even though it has its own problems like lack of rainfall and shortage of water due to which water in the four main reservoirs in Cauvery catchment areas in Karnataka is 47% below the normal 215.70 tmc ft for the period up to the end of August. That is why it released just 33 tmc ft when it was supposed to release 94 tmc ft by end of August.

Tamil Nadu went to Supreme Court demanding an additional 50.052 tmc ft at the Billigundlu station on the plea that its farmers would be in distress otherwise. Karnataka offered to release 10,000 cusecs of water for 6 days (around 6 tmc ft) as a goodwill gesture which Supreme Court appreciated and referred the matter to Supervisory Committee but directed Karnataka to release 15,000 cusecs of water to Tamil Nadu as an interim measure. This was resented by Karnataka and we saw huge protests breaking out in various parts of Karnataka as a consequence.

Karnataka too has braced itself to fight a long legal battle.  Karnataka’s appeal is up for hearing in Supreme Court on October 18. It is widely anticipated that both states will seek more favourable orders in their respective appeals against the 2007 Cauvery Water Dispute Tribunal order in the Supreme Court. This dispute must be settled amicably at the earliest as India cannot afford similar destruction of more than Rs 25,000 crore of property as was witnessed recently in the form of unending violence which has potentially shaken the unflinching faith of foreign investors especially to invest more in states like Karnataka and Tamil Nadu!

It is the bounden duty of the state governments of both Karnataka and Tamil Nadu not to allow lumpen elements to burn public property and vandalise and torch vehicles, houses and other buildings under the garb of resentment against allocation of more water to other state and to arrest them as soon as they assemble to indulge in violence! They deserve no leniency! Why don’t they burn their own house and vehicles and property if they are so angry?

They must be punished very sternly and their property must be confiscated and they must be ordered to pay a heavy penalty so that a loud and clear message goes out that, “If you break the law then law will also break you in all respects and destroy you completely”. There has to be zero tolerance policy for vandalisers and law breakers. No leniency under any circumstances whatsoever!

Even political parties who instigate violence must be made to pay through their nose for the violence unleashed so that they too don’t think themselves to be above the law and desist themselves from being a party to any such misdoing and vandalism! This will send the right message loud and clear down the line! Political parties too will then be careful of their acts that can land them in jail!

Moreover, people are mostly always provoked by one party or the other to polarize voters and to attain their own vested political interests still they escape unpunished in most of the cases or face very minor punishment thereby setting a very wrong and dangerous precedent! This must change now immediately! They too must be held accountable for their provoking large scale violence. It brooks no more delay as India has suffered too much due to their illegal machinations! The earlier this is done, the better it shall be!

-Sanjeev Sirohi,

 Advocate,