By directing the Centre to take up stalled works on the 'Sutlej-Yamuna Link Canal Project' (SYL) involving Punjab and Haryana recently, the Supreme Court may have re-established the supremacy of the higher judiciary in matters pertaining to inter-State river water disputes, among others. In doing so, Justices Ruma Pal and P Venkatarama Reddi may have also reversed the belief in certain quarters that a political solution may be the best way out in dealing with such sensitive and emotive issues, in the place of the uncompromising and equally unbending rule of the law. In turn, this also serves a notice on the southern neighbours, namely, Tamil Nadu and Karnataka, involved in the even more vexatious 'Cauvery water dispute'.
Decrying the Punjab Government's refusal to complete the SYL, citing possible revival of militancy in the once-troubled State, the Supreme Court Bench said, "Such a stand would result in the subversion of the Constitution, and an endorsement of anarchy and disintegration of the country." The court took strong exception to the State Government adopting delaying tactics using the judicial forum like any other ordinary litigant, and said, "It is the constitutional duty of those who wield power in the States to create an appropriate political climate to ensure respect for the constitutional process." The Judges condemned the Punjab Government's temptation to sit as a "super-judicial body over this Court". They referred to Article 131 of the Constitution conferring the right and duty on the highest judiciary of the land, to look apolitically into disputes between two States, "strictly on legal considerations and in keeping with the Constitution".
The Supreme Court order has far-reaching consequences, also in the light of the 'Cauvery water case', where Karnataka was seen as adopting dilatory and delaying tactic through out the crisis period last year. Incidentally, in the recent instance, the Supreme Court has addressed the failure of State Governments to implement the orders of the higher judiciary. This contrasts with the earlier stages the 'Cauvery case', when it instructed then Prime Minister P V Narasimha Rao to convene a meeting of Chief Ministers from all four riparian States, and try find a political solution. The subsequent creation of the Cauvery River Authority (CRA) with the Prime Minister chairing it, flowed from this direction of the higher judiciary.
Obviously in both cases, the Supreme Court did not want to take a stand that was both definitive and final under the Constitution, and the violation of which would have to be interpreted as the 'failure of the constitutional machinery'. Such a construction becomes even more unavoidable in the light of the Supreme Court's current observations in the 'SYL case' with far-reaching constitutional and political consequences. As the watch-dog of the Constitution, the Supreme Court is at times being tempted by others to arrive at such a construction - but it has valiantly and ingeniously fought it off thus far.
On the ground, the drought of the past three years have exposed political parties, administrators and more so the farming community in Tamil Nadu and Karnataka to the reality of the situation faced by each other. There is now greater realisation across the board in both States about the reality of 'distress' in terms of poor rainfall years, and thus the need for 'distress-sharing' of the available, or non-available waters. The mood and environment may just be right for evolving an equitable pattern acceptable to all sides. In the past, such early realisation on both sides had subsequently been drowned in the surpluses of heavy rainfall years that followed. The dispute would be revived with any serious intent and purpose only when the rain gods failed again, when the mood too would have become belligerent all over again
Any solution that is acceptable to the two States and their farmers would have to bear in mind the realities of the situation - during years of normal, surplus and deficient rainfall. Apart from the quantum, ratios and timing, the instrumentality of execution also needs to be identified. It is in the absence of such a course that existing patterns, practices and directives of competent authorities have come to be interpreted variously by different parties to the dispute. The Supreme Court had made a beginning of sort in the pending case over the 'inter-linking of rivers' by involving the Centre even more in such matters than used to be the case earlier. If the 'Cauvery water dispute' is to be amicably solved, and such a solution is to be implemented on the ground, there is now a need to involve a third party - the Centre in this case - as the non-partisan 'implementing authority', or 'enforcing authority'.
Without going into the various positions and arguments that have been widely reported over the past three decades, what could be a lasting solution? It could comprise three major components, in the light of the established fact that the Cauvery Tribunal, appointed under the law and approved by the Apex Court, had long since passed an interim award, granting 205 tmcft of waters for Tamil Nadu, of which 5 tmc ft should go to Kerala. The final award of the tribunal is being awaited for long, and is said to be looking into the options and possibilities:
Given the fact that the interim award has been followed more in breach than otherwise, and also given the reality of rain-deficient years, the Cauvery Tribunal culd fix a ratio or percentage-hare of available waters, as against a quantum-share, as was the case with the interim award.
The available waters would be shared/released in percentages on a weekly-basis, on the lines suggested for the implementation of the interim award. This will avoid recriminations of the kind now involved in 'distress-sharing', where Karnataka is reluctant to release waters until its reservoirs are full and over-flowing, and the requirements of its farmers have been met, for this year and the next.
The proposal for an additional reservoir across the Cauvery with power-generation capacity should be revived. There will therefore be more waters from the Cauvery that could be stored for future use by both States. At present, substantial waters from the river drain out into the sea, in 'normal' and 'surplus' rainfall years, denying irrigation waters for subsequent years, if the rainfall is deficient. Earlier efforts did not proceed beyond a point as differences arose between Karnataka and Tamil Nadu, over the location of the reservoir. Karnataka wanted it at Billigundulu inside State, whereas Tamil Nadu demanded it for Hoganekkal, inside its territory. Obviously, neither State seems to trust the other in matters of controlling the key to water-release, and for acceptable apprehensions on their part. The Centre, as the non-partisan arbiter, should be brought into the picture, both in terms of implementing the final award of the Cauvery Tribunal, and waters that could be augmented in future.
There is need for both Tamil Nadu and Karnataka to realise that they have lost enough time ever since the Cauvery water dispute arose formally in 1974, for them to have built an additional reservoir, which is still only a talking-point. Karnataka needs to look inwards to see if it has been over-ambitious and over-protective about what it considers its 'rightful share', having missed the bus when other neighbours were already on the move for long. After all, Tamil Nadu and the Cauvery are not the only river water disputes involving the State.
Likewise, Tamil Nadu needs to accept the ground reality pertaining to the legitimate share of the upper riparian, the non-ustilisation of which had given it a near-monopoly of the Cauvery waters in a historic and literary past, dating back to the Chola kingdom and the 'Silappadikaram'. That reality seems to have dawned since, and the political climate and the public mood are just right at the moment. Yet, there is need to have a re-look at the irrigation and crop patterns in the State's Cauvery delta. A serious Governmental effort, with adequate non-governmental input in the past years of drought, may have helped but it is not too late, yet.
* Views expressed in this article are those of the author and do not necessarily reflect those of Observer Research Foundation.
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