Cauvery dispute: Supreme Court order provides no solution to central problem of distress years

In a judgment aimed at putting an end to a water dispute that has lasted for over a century, the Supreme Court on Friday reworked the share of Cauvery water to be made available to Karnataka and Tamil Nadu. The order amends the 2007 decision of the Cauvery River Water Tribunal by reducing the amount of water that Tamil Nadu is due, passing that share to Karnataka. But the judgment also raises a number of questions, from the method with which the court revised the shares to the question of whether states will actually comply with the orders in distress years.

First the details of the judgment itself. Amending the 2007 final award of the Cauvery river water tribunal, the Supreme Court reduced Tamil Nadu’s share of the water in the Cauvery basin by 14.75 thousand million cubic feet or TMC and fixed it at 404.25 TMC. Karnataka’s share increased by the same amount and went up to 284.75 TMC. Kerala and Puducherry will continue to get 30 and 7 TMC respectively, with 10 TMC allocated for environment protection.

According to the tribunal, the total amount of water available from the Cauvery, based on 50% dependability at the Lower Coleroon Anicut site in Tamil Nadu, was 740 TMC. This was the figure used to calculate the water to be shared.

Since the Cauvery flows from Karnataka into Tamil Nadu, the judgment ordered the former to release 177.25 TMC to Tamil Nadu annually, made available at the interstate border of Billigudi. This is a reduction from 192 TMC that the Tribunal had allotted Tamil Nadu.

Distress years

The court has provided several justifications for reworking the share of the states. But, like the tribunal, the Supreme Court has failed on one count, which forms the very basis of the strife between Tamil Nadu and Karnataka.

In 2007 the tribunal said that, in years when the monsoon is deficient and the river does not have the 740 TMC ascertained by it, the waters have to be shared proportionally. Which means the states will have to share water at the same ratio of allocation, no matter how much is actually available. The Cauvery Management Board, which the Supreme Court has ordered must be set up within six weeks, will oversee the water release.

In years of distress, this board is expected to rationalise water on the basis of water flow and available storage and release the water according to the needs of the states.

However, in reality, this is where the problem lies. Karnataka has maintained over the years that when the total water availability is not enough to meet its own demands, it will be in no position to share this water. Any attempt to force the state to part with water during distress years has been met with strong resistance. This has sometimes translated into violence on the ground. In 2016, the state flatly refused to open its dams as the storage levels were low. The Friday judgement does very little to remedy this situation.

The judgment assumes that, despite past experience to the contrary, the states will follow its directions. This confidence disregards the politics involved in the matter and past experience.

Revised share

Tamil Nadu’s share of water has been effectively reduced for two reasons. First, the Supreme Court has included in its assessment the availability of groundwater in Tamil Nadu Cauvery delta region.

The tribunal, using the findings of various studies, arrived at a figure of 129 TMC as the total available annual groundwater with Tamil Nadu. This included groundwater that can be extracted by using centrifugal pumps in the Cauvery sub-basin, Vennar sub-basin and in the new delta, which were 33.7 TMC, 5.4 TMC and 32.5 TMC respectively. Over and above these, the tribunal said:

 “a quantity of 56.5 TMC of groundwater per year can also be made available in the Cauvery sub-basin by lowering seasonally groundwater level to 10 meters depth below the regional groundwater level and substituting high yielding medium-depth tube-wells equipped with turbines for the low yield filter points with centrifugal pumps.”

However, much of the groundwater replenishment happens through the flow of surface water from the Cauvery river. Discounting this and also taking into account Tamil Nadu’s objections to the findings of the studies, the tribunal estimated that the total groundwater availability at the state’s disposal in the region from rain and irrigation recharge alone would be 20 TMC. But in the final award, the tribunal did not factor this 20 TMC in while calculating Tamil Nadu’s share of the Cauvery water. The state argued the construction of reservoirs by Karnataka has affected recharge capacity.

The Supreme Court, however, chose to accommodate the groundwater factor – but not the entire 20 TMC – and so reduced 10 TMC from Tamil Nadu’s overall share. However, with regards to groundwater in Karnataka, the court said:

 “Noticeably, the kind of experiment and research that had been made in the realm of ground water availability in the Deltas of Tamil Nadu has not been undertaken in Karnataka and there is no reliable empirical data with regard thereto vis-a-vis that State.” 

Thus, calculation of Karnataka’s share does not seem to reflect the groundwater capacity of that state.

Bengaluru’s status

The Supreme Court has recognised the special status of Bengaluru in the whole equation. The tribunal in its order in 2007 said only 1/3rd of the city fell in the Cauvery basin. The population projection for 2011 for this 1/3rd was obtained and water was allocated proportionately. It also presumed that 50% of the drinking water will come from groundwater sources.

Thus, while the total need was put at 17.22 TMC, 50% of this was discounted as it would be met with groundwater. Of the other 50%, which worked out to approximately 8.75 TMC, the consumptive use of the 1/3rd area was fixed at 1.75 TMC or 20℅ of 8.75.

The Supreme Court pointed out that there was no basis for arriving at the figure of 17.22 TMC and the assumption of 50% being met with groundwater was flawed. Further, given that drinking water was the most important of all uses of water required for sustaining human and animal life, the court was not ready to accept that only 1/3rd of the city should benefit from Cauvery water. The geographical limitation of the basin was overlooked with Bengaluru being a special case with phenomenal growth over the last few decades. The court said:

“We think so since the city of Bengaluru cannot be segregated having an extricable composition and integrated whole for the purposes of the requirements of its inhabitants, more particularly when the same relates to allocation of water for domestic purposes to meet their daily errands. It will be inconceivable to have an artificial boundary and deny the population the primary need of drinking water.”

Therefore, it increased the Bengaluru’s share by 4.75 TMC. This meant the two components–groundwater and Bengaluru’s share – together took away 14.75 TMC from Tamil Nadu.

Distress sharing

Having reworked the water-sharing formula, the Supreme Court has adopted major parts of the tribunal award, including the timetable of water release.

This also includes the distress-sharing formula. The tribunal in 2007 said in years when water flow is less than the 740 TMC, the Cauvery waters will have to be shared proportionately.

The distress of decreased water flow will have to be shared by the states as per the original water sharing formula, that is the manner in which the tribunal apportioned the 740 TMC. The guidelines state:

“The Regulation Committee shall keep a watch on the actual performance of the monsoon during each ten daily interval and report position to the Board indicating therein the extent of variation from the normal. The Board on receipt of such information will consider any change in the release ordered by them earlier. Similar exercise will continue as the monsoon progresses during the succeeding months till the end of the water year i.e. 31st May of every year.”

Here is the problem in the scheme. Agriculture in the Cauvery basin depends on a combination of river water and rain water. When the monsoon fails, it is a double whammy: the storage in the dams reduce and the rains diminish. This means, the stress on the available Cauvery water would increase.

Karnataka over the years has compensated for deficient monsoon by exploiting Cauvery water without providing Tamil Nadu its share. It argument is that the prospect of sharing the river water doesn’t exist in a situation where even its drinking water demand is not adequately met. Therefore, it has refused to honour the very concept of proportional sharing during a distress year. Any attempt to force the state to share water in a deficient year has resulted in political stubbornness to the extent of violating Supreme Court orders and riots and violence on the ground.

The Supreme Court order reiterated the tribunal’s scheme of distress sharing, which in a way discounts reality and politics of river water disputes. The assumption here is that sense will prevail and that the state would adhere to the formula by reducing its water use in a difficult year. This is why the court made it clear that no one state has absolute rights over Cauvery.

While the emphasis on judicial use of water is commendable, it hardly solves the problem of distress sharing. In essence, the battle over Cauvery could witness the same cycle of events that has taken place in the past decades given the impracticality of this formula. The problem becomes even more difficult when one takes into account the party politics of Karnataka, which is now ruled alternatively by the Bharatiya Janata Party and the Congress. Given that the Centre will play a crucial role in the Cauvery Management Board, the commitment to the Supreme Court order could very well depend on the political weather rather than legal obligations.