Cauvery row: Centre makes a U-turn in Supreme Court, but does its argument hold?

In a relief to Karnataka and a setback to Tamil Nadu, the Union government told the Supreme Court on Monday that it cannot form the Cauvery Management Board without the approval of Parliament. This board would oversee the implementation of the Cauvery water-sharing agreement between the two states.

The Centre also questioned the judiciary's powers to intervene in inter-state water disputes, saying it amounted to encroaching on the legislature’s turf. It cited Article 262 of the Constitution that bars judicial intervention in water disputes.

This was a stark departure from the stand taken by the Union Water Resources Ministry on September 29 when it had acted as a mediator between Tamil Nadu and Karnataka at a meeting in Delhi. Ministry officials had then told the media that steps were being taken to implement the September 20 order of the Supreme Court that decreed the formation of the board within four weeks.

However, a perusal of the relevant laws reveals the Centre may not be wholly factual in the position it has now taken on the formation of the board. With its U-turn coming in the face of immense pressure on the Bharatiya Janata Party in Karnataka, which goes to polls in 2018, the government’s stand has acquired political colour.

What the law says

When the Cauvery Water Disputes Tribunal issued its final order in 2007, it made a provision for the formation of the Cauvery Management Board. The board's function was to oversee the implementation of the final award and ensure the water was apportioned according to the formula arrived at by the tribunal. It would comprise representatives from the Centre and the states of Tamil Nadu, Karnataka, Kerala and the Union Territory of Puducherry.

“An inter-state forum to be called ‘Cauvery Management Board’ shall be established for the purpose of securing compliance and implementation of the final decision and directions of the Cauvery Water Disputes Tribunal,” the order stated.

This was in consequence to a provision in the Inter-State Water Disputes Act of 1956 (amended in 1980) for the formation of a competent authority to implement the orders of such tribunals.

On Monday, the Centre argued that the board cannot be formed without parliamentary approval.

However, a reading of the Act gives a contrarian picture to the Centre’s argument. Section 6 (A) (7) states that the scheme for the competent authority be placed before Parliament as soon as possible “after” it has been formulated.

“Every rule made under this section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of 30 days, [which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid] both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be.”

This means the board can be formulated and then taken to Parliament if necessary.

The same provision also comes with a saving clause that protects decisions made under the scheme prior to approval by Parliament: “However, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.”

Centre's stand questioned

According to former Additional Solicitor General P Wilson, apart from the fact that Parliament's approval is not necessary at the stage of forming the management board, the clause in the Inter-State Water Disputes Act is also not a mandatory provision.

"Several judgements of High Courts have ruled that such provisions are only directive in nature and not mandatory," he said, adding that not fulfilling the provision may not be an irregularity as portrayed by the Union government.

He also said the Supreme Court has not arrogated to itself the function of forming the board. Instead, it has asked the Centre to form the authority, which has been pending for nine years.

Furthermore, the Supreme Court order was passed after both Karnataka and Tamil Nadu sought its intervention in the matter. No change has been made to the tribunal’s final award and, hence, the apex court's actions cannot be interpreted as judicial overreach.

"The Centre's position is wholly unacceptable and unfortunate," Wilson said. “We hope the Supreme Court will set this right.”

The Centre’s fresh stand, that the Supreme Court cannot intervene in a dispute once a tribunal has been set up to look into it, has also come in for sharp criticism from political parties in Tamil Nadu. They hold the view that the government, having been a party to the case all this while, has suddenly woken up to the fact that Article 262 of the Constitution bars judicial intervention in water disputes.

Vaiko, general secretary of the Marumalarchi Dravida Munnetra Kazhagam, said last week that in a situation where the management board had not been formed, there was no recourse available in law except approaching the Supreme Court. If the court does not intervene, Karnataka's violation of the tribunal’s order would continue perpetually, he said.

Further, Karnataka's dependence on the National Water Policy to state that drinking water needs take precedence over irrigation needs could be challenged since the final award of the Cauvery Water Disputes Tribunal has the same authority as that of a decree of the Supreme Court. Therefore, the final award cannot be equated with a policy document.

M Karunanidhi, leader of the Opposition Dravida Munnetra Kazhagam, said in a statement that the Centre had taken a U-turn with an eye on the Assembly elections in Karnataka in 2018.

BJP's compulsions

The political compulsions behind the Centre’s change of stand are not hard to decipher.

Karnataka Chief Minister Siddaramaiah of the Congress has shrewdly handled the political ramifications of the issue each time he has defied the Supreme Court’s order to release water to Tamil Nadu. Every such decision has been made public only after the concurrence of the Opposition parties, including the BJP, at all-party meetings.

Had the Centre agreed to form the management board, it would have been virtual political suicide for the BJP in Karnataka, where it is hoping to make a comeback in the next elections.

But as a result of its changed tactics, the BJP in Tamil Nadu is in a state of shock. The party’s state president Tamilisai Soundararajan parried questions on the Centre's stand but attacked Union ministers from the Karnataka BJP while saying, “Our demand is that the rights of Tamil Nadu should be protected.”

For the ruling All-India Anna Dravida Munnetra Kazhagam, the absence of Chief Minister Jayalalithaa – who is undergoing treatment at a private hospital for the last 10 days – has added to the state’s woes with parties here not coming together as those in Karnataka have done.

An AIADMK MP, who wished to remain unidentified, said the Centre's U-turn could have been a calculated move keeping in mind the chief minister’s absence. “Our leader is well and making all the decisions, and Tamil Nadu will fight this injustice strongly,” he said.

The DMK urged the state government to take an all-party delegation to Delhi to meet Prime Minister Narendra Modi.

Karnataka resolution

Meanwhile, even as the Centre sought a modification of the Supreme Court’s order on the formation of the management board, the apex court warned Karnataka not to defy it but to release 6,000 cusecs of water to Tamil Nadu till October 6, as directed.

Karnataka seemed to have come around, too, with the state Assembly on Monday passing a unanimous resolution to release water to farmers in the Cauvery basin. Media reports, however, said the resolution made no mention of Tamil Nadu and it was unclear if the released water would flow to the neighbouring state.