Tuesday, October 16, 2012

Cauvery River dispute [Editorials]

Amid the grandstanding by political leaders, it is the Basin farmers who must take the lead in removing misperceptions about the Tribunal’s award

The Cauvery dispute has taken a turn for the worse. Confrontationism prevails, and we seem to be witnessing a return to the spirit of 1992, though not to violence of that order. What has gone wrong? This article is an analysis and an appeal.
Let us go back to 2007 and imagine that on the announcement of the Final Order of the Cauvery Tribunal, the disputant States did not file Special Leave Petitions (SLPs) before the Supreme Court but only submitted clarificatory petitions to the Tribunal. Alternatively, let us imagine that the States did file SLPs before the Supreme Court, but the Supreme Court refused to admit the SLPs on the ground that there was a bar on the jurisdiction of the courts. In either case, the Tribunal would have proceeded to deal with the clarificatory petitions and might have given a Further Report in about six to eight months or perhaps a year, i.e., by early 2008.
The Final Order and the Further Report would then have been gazetted. The Cauvery Management Board mandated by the Tribunal would have been set up and might have become fully operational by mid-2008. Thus, there would have been a machinery to deal with situations of drought and distress like the present one. Unfortunately, that imaginary scenario did not happen. The Tribunal was (or claimed to be) unable to deal with the clarificatory petitions because the status of the Final Order itself was plunged into uncertainty when the States went to the Supreme Court with SLPs.
The Supreme Court did two inexplicable things. First, it admitted the SLPs forthwith without any explicit consideration of the bar on the jurisdiction of the courts provided for by Article 262 and incorporated in the Inter-State Water Disputes Act 1956; and second, having admitted the SLPs in 2007, it has unaccountably failed to take them up for hearing in five years time.
Shortage sharing
Turning to the Tribunal’s Final Order, it failed to include a method or formula to deal with the crucial problem that lies at the heart of the Cauvery dispute, namely shortage-sharing in distress years. In years of normal rainfall, more water flows from Karnataka to Tamil Nadu than the quantum laid down by the Interim Order or the Final Order. The problem of how much should flow from Karnataka to Tamil Nadu becomes contentious only in years of low flows. This should have been central to the Tribunal’s Final Order, but the Tribunal offered only generalities, and left it to the proposed Cauvery Management Board to deal with the problem. Further, was it really necessary for the Tribunal to take the view that the SLPs to the Supreme Court made it impossible for it to proceed with the clarificatory petitions? Why could it not have heard those petitions and given a Further Report? The view that the pendency of the SLPs prevented it from functioning was a self-limiting one taken by the Tribunal itself.
Legal positions
The State governments and the State politicians have contributed to the impasse by adopting strident, confrontationist postures and rhetoric instead of conciliatory, solution-seeking approaches; and by rousing and not calming popular anger. Both State governments must be blamed for this; neither has made any effort to see the other’s case.
It needs to be added that both governments have taken untenable legal positions. Tamil Nadu started by taking its stand on long-established prior use, which is a relevant but not a clinching argument. However, being a lower riparian it had eventually to accept realistically that it must learn to manage with reduced flows. Karnataka persists in holding fast implicitly to the assumed primacy of upper riparian rights, for which there is no basis in national or international law. There is no meeting point between those two divergent positions.
The institutional arrangements are not working. The Tribunal’s Award has no sanctity. The Cauvery River Authority, presided over by the Prime Minister, is hardly an “Authority.” The only institution with any authority seems to be the Supreme Court. Tamil Nadu keeps knocking at its doors, and now Karnataka is reported to be filing a review petition. One hopes that this process will reach finality soon.
The Central government has proved to be a weak and ineffective force, unable or unwilling to play its constitutional and statutory roles.
What can one say about the propriety of Central Cabinet Ministers becoming partisan advocates and implicitly questioning their Prime Minister’s decision?
In such situations, one would expect intellectuals and persons of goodwill in either State to give wise counsel to the people, remove misperceptions, calm down excitement and anger, and promote goodwill and understanding. Unfortunately, there does not seem to be much evidence of any such thing happening.
One does not know what advice the eminent Counsel representing Tamil Nadu and Karnataka give privately to their respective clients; that is confidential and privileged communication. One can only hope that they do advise their clients against holding legally wrong and indefensible positions, against being confrontationist, and against defying judicial and constitutional authorities.
Cauvery family
The one positive element in this entire unedifying spectacle of State against State and people against people has been the Cauvery Family — a loose and informal group of Cauvery basin farmers from both Karnataka and Tamil Nadu — which is now known internationally. Unfortunately, while it has brought about remarkable mutual understanding and goodwill between the farmers of the two States, it has not so far been able — in spite of several meetings — to arrive at an agreed settlement, including a distress-sharing formula, which can be presented to the Tribunal and the Supreme Court. Even the understanding and goodwill achieved by it is under threat in the present situation of conflict and hostility between the two States, at both official and non-official levels.
In the light of that analysis, what needs to be done? I would submit the following set of appeals for consideration:
1. To the Cauvery Family: Please continue and accelerate your work, promote understanding and goodwill and correct misperceptions in either State, and come up quickly with (a) minor adjustments to make the Tribunal’s award acceptable to both States, and (b) a formula or method for shortage-sharing in years of low flows.
2. To the Tribunal: Regardless of the pendency of the SLPs in the Supreme Court, please take up the clarificatory petitions and issue a Further Report as soon as possible.
3. To the Central government: In order to enable the Tribunal to function, please fill the vacancies in it immediately.
4. To the disputant State governments: Please withdraw your SLPs from the Supreme Court and press the Tribunal for a Further Report.
5. To the Hon’ble Supreme Court: Please take up the SLPs for hearing without further loss of time (assuming that the SLPs are not withdrawn).
6. To the eminent Counsel representing the two State governments: Please consider advising your respective clients against adopting legally or constitutionally untenable positions, or going against the spirit of federalism, or taking confrontationist public postures that make the dispute even more intractable than it is already, or persisting in endless litigation. I hope that this appeal will not be considered improper.
7. To the intellectuals and respected public personalities in either State: Please clarify issues, correct misperceptions and errors of understanding, and promote goodwill and friendly relations between the two neighbouring States, both at the governmental and at the people-to-people levels.
8. To the media (print, TV): Please adhere scrupulously to fair and objective reporting norms, and play your part in promoting goodwill and understanding.
It will be noticed that the appeal to the Cauvery Family has been put first in this list of recommendations. That is an indication of the importance that I attach to that impressive initiative. It must not be allowed to fail. It is true that any understanding or formula arrived at by the Cauvery Family will have no legal force; it will have to be placed before the State governments. However, if the farmers of the two States are able to present an agreed formulation, it will surely carry great weight. 

The Hindu 16th Oct 2012