Guest column: A vexing issue compounded by massive water shortage

The Cauvery water dispute is an exceedingly complex legal, constitutional and technical issue. Period.

First, in 1892, the then British Presidency of Madras and the Princely State of Mysore entered into an agreement about sharing of certain waters that flow into both the territories. In 1924, these two entities entered a fresh agreement concerning the sharing of the Cauvery river water.

It is a historical fact that the Princely State of Mysore was never an equal to the British Presidency of Madras; many of the terms of this agreement were unequal and unfair to Mysore. However, this agreement was meant to be permanent concerning its main terms. Mysore was required to keep a strict limit on cultivation of lands and use of water for agriculture in its territory. Madras too was subject to a similar, but a more favourable limitation upon its water use.

In 1947, India secured political freedom from the British. However, our Constitution explicitly kept inter-State river water disputes outside the purview of the Supreme Court of India. A tribunal would be set up by the Central Government to resolve any such dispute and its decision would be binding upon the warring States. To make matters worse, our Constitution explicitly protected all such pre-constitutional agreements.

Until 1990, there was so much of uncertainty about how the Cauvery water should be split between Karnataka and Tamil Nadu. In the decades following 1950s, Karnataka drastically modified its position and did not strictly abide by the 1924 agreement. Tamil Nadu too didn’t take any legal recourse either, for a very long time. In fact, in 1971, it even approached the SC requesting it to direct the Central Government to set up a Tribunal. But, withdrew its petition shortly thereafter.

Legally, it could be said that if Tamil Nadu had superior rights over the waters of Cauvery, it did not take steps to protect its rights in those intervening decades. And, if Karnataka honestly believed that it was not fully bound by the 1924 Agreement and went ahead and modified its position, it does have a legal right to protect its modified and higher reliance upon Cauvery Water.  The Tribunal issued its interim Order in 1991.

It said that Karnataka should release 205 TMC of water annually to Tamil Nadu.  What is a TMC? Let’s start with what we already know – litres. One TMC is 2813 crore litres of water. Once this interim Order was notified by the Central Government in December, 1991, there arose large scale and unprecedented protests and violence in Karnataka. In response, the lawmakers in Karnataka came out with a legislation to declare that the Tribunal’s interim Order was legally invalid.  Karnataka thereby refused to fully honour the interim Order. A constitutional crisis arose thereby.

In February 2007, the Tribunal issued its Final Order and upheld the 1924 Agreement.  Karnataka was required to release 192 TMC of water annually to Tamil Nadu. All sides immediately appealed to the SC – though the apex court is not competent to hear such appeals. The SC has a very small margin for correction of any error in this Final Order. Though a decade is nearing in these appeals, the SC is yet to hear the parties on the merits of these appeals.

The writer is Advocate, Supreme Court