Chennai: The over three-decades long legal dispute in the Supreme Court over the sharing of Cauvery river waters appears to have unwittingly crossed a Rubicon, with the top court’s latest judgment allowing the appeals against the Cauvery Water Disputes Tribunal (CWDT)’s final order of February 2, 2007, by the principal basin states including Karnataka, Tamil Nadu and Kerala. Puducherry had not filed any appeal.
In a very definitive and authoritative judgment, a three-judge bench comprising Justices Dipak Mishra, Amitava Roy, and A.M. Kanwilkar, has categorically rejected the Central government’s basic twin contentions against the maintainability of the appeals on the ground the Supreme Court had no jurisdiction to hear the dispute, given Article 262(1) of the Constitution and Section 11 of the Inter-State Water Disputes (ISWD) Act, 1956.
“We have not a scintilla of doubt in our mind that the founding fathers of the Constitution did not want the Award or the final order passed by a Tribunal to remain immune from challenge. That is neither the express language of Article 262(1), nor it impliedly so states,” the judges said in reiterating the Apex court’s powers “as the ultimate interpreter” of the provisions of the ISWD Act also in deciding the limits, powers and jurisdiction of the Tribunal constituted under the Act.
The second key argument advanced against allowing the appeals, was that as per the amended Section 6(2) of the ISWD Act, based on the recommendations of the Sarkaria Commission on Centre-State relations, that once the final award of the Tribunal is gazetted by the Central government (the final award of the CWDT on a directive by the apex court was published in the GOI gazette on February 19, 2013), it has the force of an “order or a decree” of the Supreme Court and thus immune from appeal.
This argument was also rejected by the Judges, quoting extensively from past case laws and the contentions of the counsels appearing for Karnataka and Tamil Nadu. The amendment has only a heuristic purpose to make it ‘binding’ on States, but does not bar the highest court to entertain appeals, it stressed.
“How the final order passed by the Tribunal would be adjudged within the parameters of the said Constitutional provision has to be debated, when we finally address the controversy pertaining to the subject matter of the Civil Appeals,” the judges said, while also stating that the Court’s order of October 18, 2016, (directing Karnataka to release 2,000 cusecs of water to TN) would continue until further orders.
It is here that a new chapter has been opened in a much too long drawn dispute, the fallout of which is so acutely felt by farmers, particularly in the lower riparian state of Tamil Nadu, in a bad monsoon year - 2016.
Much of the earlier jubilation in Tamil Nadu was based on the hope that the CWDT’s final order once gazetted by the Government of India, binds Karnataka to release the prescribed quantum of water in a year - former Chief Minister, J Jayalalithaa had termed the gazetting of the final award as the ‘biggest achievement’ in her over three-decades long public life-. But now with the apex court declaring that the appeals against it would be heard, it implies more uncertainty and greater time lag for the final outcome.
Some political observers may be tempted to read the fallout of the latest order as setting the clock back to 1990, when the Tribunal was first set up in the first place after nearly 30 rounds of negotiations between Karnataka and Tamil Nadu had failed to arrive at a consensus. But that is anybody’s guess as the apex Court after hearing the appeals may suggest some modifications to the final award, dovetailing the new ground realities in the basin states, before it is finally decreed.
However, what is significant is that the latest order by the Supreme Court has simultaneously given rise to two contrasting perceptions: A setback at one level from the farming community’s point of view, as even the formation of the Cauvery Management Board (CMB) has been deferred for now. At another level, it is a new opportunity for the key basin states, mainly Tamil Nadu and Karnataka, to thrash out once for all their mutual doubts and misgivings about the Tribunal’s final award before the highest judicial forum. The latter could be a double-edged weapon, though.
While Tamil Nadu has grievances about its allowed area of cultivation being reduced in the final award, and concerns about protecting its already established irrigation rights as a lower riparian state, Karnataka has raised even more fundamental issues like the basis of calculating the annual basin yield, besides its irritancy over weekly and monthly schedules of water release in a water deficient year and its new development needs. Farmers here hope it does not lead to a scenario of throwing the baby with the bathwater.
The Supreme Court also would need to clarify what interim sharing/conciliatory mechanism would be in place until the appeals are finally disposed off. At the end of the day, the moral of the story seems to be: There are no roses without thorns. And this is a new wakeup call to the political leadership of both the States as well.
