Cauvery verdict: Apex court reduces TN's share to 177 TMC

The Supreme Court on Friday reduced Tamil Nadu's allocation of Cauvery water from Karnataka from 192 TMC to 177.25 TMC. Tamil Nadu will have to now bank on 10 TMC ground water available with it.

Bengaluru gets 4.75 TMC

Further, the court observed that Bengaluru has attained the “global status” and its drinking water requirement has increased multi-fold. It said the need for drinking water is at the top of the hierarchy.

The court said the tribunal did not consider the growing needs of Bengaluru and had thought the city could make do with its 60% groundwater supply. But ground water has dried up with the burgeoning population of the city. Thus, the court allocated 4.75 tmc Cauvery water to Bengaluru, even though the city is located outside the Cauvery basin.

The court rejected an argument by the Centre that Section 6A of the Inter-State Water Disputes Act of 1956 bestowed upon it discretion in framing a Cauvery water-sharing scheme. The court said the argument does not stand to reason and a scheme has to be framed under Section 6A as per the award of the CWDT.

Not to be changed for next 15 years

The court said that subject to the formulation of a scheme, the water allocation arrangement should stand unchanged for the next 15 years.

The court upheld the award of 30 tmc water to Kerala and allowed Puducherry's request to grow a second crop. However, cultivation should be limited to 43,000 acres. It did not allow any enhancement in the Cauvery water allocation to Puducherry from the seven tmc allotted by the tribunal in 2007.

The court warned the States to not deviate from the judgment or use the allotted water for other than the designated purposes.

The court held that the tribunal was right in basing its water-sharing award on the basis of equitable utilisation of river water.

Tribunal was correct in basing its decision on equitability and reasonableness, the apex court said.

No state can claim full rights over river

The judgment said that Constitution has bestowed equal status to all States. It held that an interstate river is a "national asset" and no one State can claim full rights over its waters.

The court disagreed with Karnataka's argument that it had no bargaining power in the 1892 and 1924 post-Mettur dam agreements on Cauvery water allocation between the erstwhile princely State of Mysore - now a part of Karnataka - and the Madras presidency, which included Kerala.

The judgment said the “principle of paramountcy” does not apply to the 1892 and 1924 agreements. The agreements were not political arrangements but based on public interest.

The court dismissed arguments led that the bar under Article 363 of the Constitution hits judicial review of a pre-Constitution treaty or agreement as in the case of the 1892 and 1924 agreements.

Verdict hailed

Farmers' rights activist P Ayyakannu who held a protest in New Delhi for over 100 days seeking farm loan waiver for Delta farmers has welcomed the verdict. “Though it is slightly disappointing that the quantum of our share has been reduced, we are happy that the court has directed the formation of Cauvery Management Board. The board, once constituted, will ensure the release of Tamil Nadu’s share of water as per the judicial orders and also that Karnatka does not increase its area of cultivation,” Ayyakannu, the president of Desiya Thenindia Nadigal Inaippu Vivasayigal Sangam, said.

Article 363

The Bench also said it was wrong on the part of Karnataka to argue they had no bargaining power in the 1892 and 1924 agreements on Cauvery water allocation between Mysore and Madras Presidency. "Then why did they not denounce these agreements post-Indepedence and the Constitution?" the Bench asked.

Karnataka had argued that according to Article 363 the judiciary has no power to intervene in treaties or agreements entered into before the Constitution came into existence.

Questions Karnataka government

In turn, it asked Karnataka why it chose not to denounce the 1892 and 1924 agreements post the Independence and the coming into existence of the Constitution in November 1949 or even after the States Reorganisation Act of 1956.

The court held that the 1924 agreement expired in 1974 after a period of 50 years and now the allocation of inter-state river water is governed by equitable apportionment.

The judgment comes after almost four months after the Supreme Court reserved verdict on appeals filed by Tamil Nadu, Karnataka and Kerala against the final award of the Cauvery Tribunal in 2007 on the allocation of the river water to the three States.

Karnataka had complained about the lack of clarity in the tribunal award about water allocation during distress years. It had told the SC about its inability to supply Tamil Nadu 192 TMC water.

“It is like the tribunal ordering God to send rain to the State,” Mr. Nariman had illustrated in court in a July 18 hearing.

On December 9, 2016, the Supreme Court had delivered a verdict refusing the Centre's stand that it lacked the jurisdiction to hear the Cauvery river dispute.

The Centre had argued that the parliamentary law of Inter-State Water Disputes Act of 1956 coupled with Article 262 (2) of the Indian Constitution excluded the Supreme Court from hearing or deciding any appeals against the tribunal's decision. The Centre had claimed the tribunal award was final.

The apex court however held that the remedy under Article 136 was a constitutional right and it cannot be taken away by a legislation much less by invoking the principle of election or estoppel.

The total availability of water in the 802-km long Cauvery basin is 740 tmc in a normal year. The CWDT allocated Tamil Nadu 419 tmc , Karnataka 270 tmc, Kerala 30 tmc and Puducherry seven tmc. Besides this, the tribunal reserved 10 tmc for environmental purposes and four TMC for natural outlets into the sea.

(This article was first published in www.thehindu.com)