Without Better Interstate Coordination, the Cauvery Dispute Will Continue to Simmer

Karnataka’s decision to follow the orders of the Supreme Court is reassuring, but robust institutional mechanisms are needed to avoid a recurrence of violence and disputes in the future.

The Cauvery dispute has flared again, with the familiar narrative of a deficit monsoon season. Karnataka fails to release Tamil Nadu’s share of waters in time. Tamil Nadu appeals to the Supreme Court. The court orders Karnataka to release waters. Protests erupt in both states with rioting and vandalising feeding on, as well as into, antagonistic identity politics.

Karnataka’s decision to comply with the Supreme Court orders this time and release waters is reassuring, though. It comes after the Supreme Court’s order on September 5 to release at the rate of 15,000 cusecs to Tamil Nadu. Siddaramaiah, the Karnataka chief minister, after an all-party meet on September 6 announced the decision while observing, “As a state, we cannot defy the Supreme Court’s orders. Despite severe hardship, we will release water.” This is a commendable gesture. Political leaders are often under tremendous pressure to resist such orders. The Cauvery dispute’s previous escalations have had instances of defiance by political leaders from both states in equal measure.

Why did the Supreme Court intervene in the first place? What happened to the mechanisms in place for the purpose of interstate coordination, if any? Why did these mechanisms fail, warranting the Supreme Court’s intervention? Why have we failed to create enduring and effective interstate coordination practices and institutions to manage these disputes?

Karnataka’s compliance may also be a moment to celebrate the federal spirit. Yet the strife in the two states has further intensified, after fresh orders from the court on September 12 rejecting Karnataka’s appeal for reconsideration. The court has insisted on releasing 12,000 cusecs till September 20, when the next hearing is scheduled. As the reactions to these orders shows – extensive arson and rioting leaving at least one killed – the conditions will remain strained and tenuous.

This is how the larger conflict will unfold further, as the states continue to quibble and litigate in the court. The dispute will also test the endurance and effectiveness of the institutions in place. Karnataka will claim it does not have enough reserves to release as per orders and Tamil Nadu will accuse Karnataka of diversions. These quibbles will push the dispute to run its full course, as it did in previous several episodes of escalation.

Contentious history and politics

The dispute has a contentious history. It has been entangled in political and legal tussles since it was recognised as an interstate water dispute requiring adjudication by a tribunal. The dispute has its roots in the ‘prejudiced’ agreements of 1892 and 1924 between the then Mysore Princely state and the Madras Presidency. Karnataka is unhappy with what it sees as historical injustice due to these agreements. Tamil Nadu on the other hand insists that the agreements are legally binding. The intractable positions have fed into antagonistic politics between the states, and have prolonged the dispute with frequent escalations.

The earlier instances of escalation have been worse, when chief ministers have chosen to go with the flow and defied orders to score political brownie points. There have been instances of both the states’ chief ministers taking to streets, leading to a point of constitutional crises. In 1991, the Karnataka government attempted annulling the tribunal’s interim orders through a state assembly resolution. In 1995, when the dispute flared again against tribunal’s interim orders, the Supreme Court had to ask the central government to intervene and set up an interim arrangement for implementing tribunal orders. The central government then set up the Cauvery River Authority (CRA) with the prime minister as the chairman and the two chief ministers as members. In 2002 and also in 2012, when the dispute escalated again, the CRA proved dysfunctional with at least one of the chief ministers refusing to consent with the rest of the CRA. In both instances, the dispute had run its course through the distress season, eventually turning the dispute into a site for political brinkmanship. It is for this reason that  Karnataka’s gesture to obey the court’s orders in the present instance merits significance and appreciation. Yet the politics will pursue its own course, riding on chauvinistic passions and histories of adversarial ethnic relations.

The entangled core

The core of the current episode is typically representative of the interstate water disputes problem. There has been a shortfall in monsoon, driving the states to fight for every drop of their due shares. The Cauvery Water Disputes Tribunal (CWDT) award has a prescribed monthly schedule for releasing waters to Tamil Nadu in a normal season. The CWDT award has also proposed a distress formula of proportionately reduced shares in the event of deficit monsoon. But the states have not agreed with this proposition and other recommendations of the CWDT, and filed special leave petitions (SLPs) before the Supreme Court for their resolution. The Supreme Court has yet to dispose off these SLPs.

These legal entanglements provide the space for politicisation of the dispute. And they have been plenty. The CWDT was constituted in 1990 and gave its final award in 2007. The states’ disagreements, the SLPs and extended litigations have delayed the notification of the award. In 2012, when the dispute escalated, the Supreme Court insisted on having the award notified subject to outcomes of the pending SLPs.

The complexities extend further. The implementation of the award has been caught up in ambiguities linked to setting up mechanisms for implementing tribunals’ awards. The law is vague about what kind of institutional mechanisms should be put in place for implementing tribunal awards. The CWDT has discussed these ambiguities in its award. The provisions under the Interstate (River) Water Disputes Act 1956 entrust the responsibility of creating such mechanisms to the union government. However, this conflicts with other provisions of the Act equating the tribunal award with a Supreme Court’s decree.

Yet, the CWDT has recommended an elaborate institutional mechanism for implementing its award: a Cauvery Management Board (CMB) supported by a Cauvery Water Regulation Committee (CWRC). For the reasons of the legal ambiguities, the CWDT has not included it as part of its award. Instead it has kept it as a recommendation and not a mandatory requirement. This CWDT’s recommending the institutional mechanisms has also been a key contentious issue to be resolved by the Supreme Court in disposing the states’ SLPs.

In the aftermath of the 2012 episode of escalation, the Supreme Court had also directed the union government to create an interim arrangement for overseeing the implementation of the CWDT award till it decides on whether the CMB and CWRC could be set up. The Union government had constituted a Cauvery Supervisory Committee (CSC) as a temporary arrangement to “give effect” to the CWDT award. The CSC is chaired by the secretary, MoWR with the chief secretaries of the party states, and the CWC Chairman as members.

 The challenge of interstate coordination

The CSC has so far been overseeing the implementation of the CWDT award since 2013. But its endurance and effectiveness appears to have been tested by the present escalation of the dispute. The fact that the Supreme Court had to intervene suggests that the arrangement of the CSC has proved inadequate.

How the dispute will eventually shape up is not difficult to surmise. In the face of the yet unresolved legal issues and the political pressures, the episode will run its full cycle of more litigations, subtle and subversive defiance by states, grand posturing by political leaders, and perhaps more cases before the Supreme Court.

In order to avoid repetition of such escalations in future, it is imperative to remove at least few unresolved ambiguities. First, the Supreme Court has to get the states to agree on a practical distress sharing formula in a deficit season. Second, the Supreme Court has to clear the questions of law about who and what kind of institutional mechanisms should be put in place for implementing tribunal awards. This will enable setting up CMB or similar and appropriate permanent mechanism for giving effect to the CWDT award.

This creation of enduring and effective interstate governance mechanisms is the most crucial challenge of governing interstate water sharing and managing interstate water disputes. While the legal ambiguities aid the state of affairs, the challenge is much deeper. There is a huge vacuum with respect to institutional avenues and credible practices for interstate coordination and governance generally. The legal approaches are limited in resolving interstate water disputes, and have to be supplemented by credible political and deliberative approaches. If the political will is absent among the states, what kind of institutional avenues do we have for facilitating such deliberative engagement? As of now, we primarily rely on central government’s mediation. In these days of assertive regional forces, can the centre provide the necessary credibility and objectivity? Unlikely. We are then running into a glaring void. The greater challenge is to work towards creating and nurturing an ecosystem of enduring institutions and practices for interstate coordination and governance.

The writer is with the Centre for Policy Research, New Delhi