Raging Fires Over Right To Water

A fortnight ago, violence erupted in Bangalore and Chennai. Lives were lost and public property worth millions of rupees was destroyed by arsonists. The trigger was a Supreme Court ruling of September 5, which ordered Karnataka to release 15,000 cusecs of water per day for the following 10 days to Tamil Nadu. This was later modified to 12,000 cusecs a day, but the damage had already been done. Thankfully, the madness has now abated. However, the dispute over sharing the river water between the two States simmers. An amicable resolution is nowhere in sight and the apex court’s final verdict is awaited.

Water-sharing of the Cauvery is not the only dispute of its kind in the country. There is the tussle over water rights of the Ravi, the Beas, the Krishna, and more. India has 14 major rivers, and all of them are inter-State in nature. There are 44 medium rivers, of which nine are inter-State. Major rivers are those that have a catchment area of 20,000 square kilometres or more, while those that have a catchment area of less than 20,000 square kilometres are classified as medium rivers. The inter-State nature invariably gives rise to confrontations, with States either complaining of having to share more water that they can afford, or of receiving less water than they need. The problem gets acute in times of poor rainfall.

Goldman Sachs once described water as the “petroleum of the next century”, for which wars could be fought. The organisation was referring to the outbreak of serious confrontations across the world over water scarcity. Almost a year ago, Newsweek magazine wrote that the unrest in Syria had begun over corruption in the allocation of water from a local reservoir in the town of Daraa. It pointed to the campaigns of the terror group, Islamic State, for maintaining control over water supplies to keep it going. The magazine added that the Permanent Court of Arbitration in The Hague, which handles international water disputes, is grappling with 263 river basin contests.

India has its share of international dispute as well — with Pakistan on the Indus River water. Newsweek wrote, “India, which has built or proposed some 45 hydro-schemes on the Indus’s upper reaches, insists that flow will never be affected. But Pakistan is as paranoid about India as ISIS is about Turkey, with a long track-record of blaming India for social ills at home.” The magazine cited the involvement of terrorists such as Hafiz Saeed, who has spoken of India’s “water terrorism” and raised the slogan, “Water flows, or blood”.

Much as Pakistan may protest, the Indus is a non-issue for India. What is of immediate concern is the problem at home. Water is becoming increasingly scarce. The country’s population has grown nearly four-fold over the last six decades, but it still has to do with about the same amount of rainfall than it had 60 years ago. If anything, climate change has been impacting monsoons adversely. Many rivers have gone dry and water channels that had served the country well for centuries have either been lost or become defunct. Attempts to revive some of these, such as the one related to the Saraswati, once a major river and now invisible, are decried as driven by sectarian agendas. The conditions are, therefore, existent for even more water fights. Do we, therefore, have institutional mechanisms to address them? And have they been effective?

The answer to the first query is an emphatic ‘yes’, while that to the second is an unfortunate ‘no’. Nearly every significant river water sharing dispute has a Tribunal struggling to find a solution. There is the Cauvery Water Disputes Tribunal involving Karnataka, Tamil Nadu, Puducherry and Kerala; the Ravi and Beas Waters Tribunal with Punjab, Haryana and Rajasthan as the warring parties; and the Krishna Water Disputes Tribunal having Karnataka, Maharashtra and Andhra Pradesh as the participants.

This is not all. There are constitutional provisions to tackle such issues. Article 262(1) of the Constitution, which deals with river water disputes, provides for the Parliament to enact laws for adjudication. It reads, “Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.” Clause 2 of the same Article mandates that “neither the Supreme Court nor any court shall exercise jurisdiction in respect of any dispute or complaint as is referred to in Clause 1.” Later though, the apex court held that its jurisdiction was not barred in “interpreting a statute and to determine the limits of the jurisdiction of any Tribunal or statutory authority”.

Besides the constitutional provisions, there are other legal entities, such as the River Boards Act, 1956, and the Inter-State Water Disputes Act, 1956. The first is supposed to advise Governments in relation to matters concerning the development and regulation of inter-State rivers and river valleys and is to be comprised of members who are experts in areas of irrigation, electrical engineering, flood control, water conservation, soil conservation, finance, administration etc. The second Act paves the way for the reference of disputes by States to a Centrally-appointed Tribunal. The members of such a Tribunal for conflict resolution are to be appointed by the Chief Justice of India.

Thus, multiple bodies and Governments are involved in the issue. It must be remembered that, while water is a State subject under Entry 17 of the Seventh Schedule of the Constitution, Entry 56 in the Union List in the same Schedule provides for “regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest”. In other words, water becomes a Concurrent subject.

This brings us to the second aspect: Why have efforts at conflict resolution failed to settle issues for good, despite the might of the legal process? Former Supreme Court Markandey Katju recently remarked during a television interview that the apex court simply cannot resolve the matter. He said, “Judges behave like King Canute who ordered the waves to recede and expected the directive to be followed.” Justice Katju, known for plain-speak but also for being abrasive, added bluntly that water disputes cannot be legally or even politically settled, and that only a body of experts, drawn from India and globally, but backed by political will, can resolve the matter. But the law does give the apex court the right to intervene, and it is bound to do so, especially when it is approached by aggrieved parties.

In any case, the episode attributed to King Canute appears apocryphal. The king of Denmark, Norway and England is said to have developed arrogance on being goaded by his courtiers into believing that he had supernatural powers. He then went to the shore and ordered the waves to recede, saying, “You are subject to me, as the land on which I am sitting is mine, and no one has resisted my overlordship with impunity. I command you, therefore, not to rise on my land, nor to presume to wet the clothing or limbs of your master.” This is the story told by a 12th century chronicler but later historians found no evidence of such an incident having taken place. Nevertheless, Justice Katju’s larger point of the need to involve experts with impeccable credibility to resolve water disputes, stands to reason.

The resolution has become more difficult in a surcharged political environment where regional parties have made water into an issue of sectarian identity. For instance, in Tamil Nadu, the DMK and the AIADMK are bitter rivals, but on the Cauvery issue, they will speak the same language. If anything, they will try to outdo each other in belligerence. In Karnataka, the Janata Dal (Secular) adopts an aggressive posture, forcing even a national party such as the ruling Congress to speak a language that borders on intimidation.

In 2011, experts KJ Joy and S Janakarajan published a paper titled, ‘Inter-State Water Disputes Among Riparian State: The Case of Cauvery River from Peninsular India’. It gave a historical context to the dispute; discussed the constitutional, legal, political and international matters; and lai out the various attempts made to resolve the crisis. The authors observed that “though the dialogue process may not have resulted in a solution yet, the process provided valuable lessons.” Some of those, in their words, are as follows:

1. Knowledge can play an important role in narrowing down the differences between the contending parties and any dialogue has to be knowledge-based.
2. Any decision has to be politically-mandated.
3. Active and sustained state support and a mandate from the state has been totally lacking.

The case study, in its conclusion, observed that over-politicisation of the Cauvery issue had complicated an already complex issue; that the Cauvery basin is a deficit basin in that the total claims of the contending parties is nearly double the quantity of water that is actually realisable; that the issue was not so much the sharing of un-utilised water but the sharing of water shortages; and, that both legal and social approaches should be adopted to resolve the dispute. Arguably the most important point the authors made was that a resolution is preferable (even if one gains less than bargained for) to sustained conflict. They said, “More uncertainty and anxiety put farmers in both States under enormous pressure in terms of earning livelihoods, while concerned States and people pay a political, social, economic and ecological price for the prolonged conflict.”

The Cauvery water sharing dispute goes back to 1924, after an agreement between Madras Presidency and Mysore State had been reached. The deal was to be valid for the next 50 years. But 12 years after the pact, Karnataka (to whom Mysore had gone) pointed to several clauses over which it had serious objection and demanded a rethink. Tamil Nadu (which was what Madras Presidency became) insisted that the issue could be raised only after the mandated 50 years. Negotiations began thereafter to resolve the matter. When the States concerned failed to arrive at a settlement, the issue came to the Centre and then proceeded to be placed before the Cauvery Water Disputes Tribunal.

The Tribunal announced its final verdict in 2007. Some 16 years before, it had passed an interim order in favour of Tamil Nadu. It’s interesting that Karnataka should be an aggrieved party, given that the 1924 pact had offered it lesser water than the 2007 verdict. According to the 1924 deal, Karnataka’s share of water was 16 per cent while that of Tamil Nadu was 80 per cent. The Tribunal order brought down Tamil Nadu’s share to 57 per cent while that of Karnataka went up to 37 per cent. Obviously, there is more to the share than meets the eye, since populations too have exploded and the needs have accordingly gone up.

Sadly, the present is no rosier than the past. The States of Tamil Nadu and Karnataka continue to fight. Both had employed a battery of legal brains to present their latest case before the Supreme Court. It was Tamil Nadu which had approached the court as an appellant, claiming that Karnataka had not adhered to the final verdict the Tribunal had given. Tamil Nadu said that, if Karnataka did not release water immediately, huge tracts of crop would be destroyed and farmers of Tamil Nadu would slump into an ‘unacceptable plight’. In response, the two-judge Bench of the apex court referred with appreciation to Karnataka voluntarily agreeing to release 10,000 cusecs of water from September 8-12, as a goodwill gesture. Tamil Nadu told the court that it needed 20,000 cusecs per day for that period. Taking the middle ground, the court ruled in favour of a figure of 15,000 cusecs (later brought down to 12,000 cusecs after violence gripped the two States).

The court was naturally upset over the unrest and perhaps saw it as a means to arm-twist it. It reminded the two State regimes that they were “under the constitutional obligation to see that the law and order prevails”. The Bench took objection to Karnataka’s argument in filing an application for urgent hearing regarding modification of the earlier order. The application had pointed to the “spontaneous agitations in various parts of Karnataka…which has paralysed normal life”. The counsel for Karnataka later expressed regret and the Bench modified its order — from the release of 15,000 cusecs of water per day to 12,000 cusecs.

The Cauvery water confrontation has underlined the dangers of allowing public sentiment to reign over rational thinking. It’s the responsibility of the political class to keep tempers in check and to not participate in exacerbation. On their part, the various Tribunals must speed up decisions — and so must the apex court. Remember, while the Cauvery Tribunal’s interim order had come in 1991, the final verdict was pronounced only in 2007. Meanwhile, the various parties involved in water disputes must realise that it’s better to be satisfied with a little less than to keep the pot boiling and suffer massive agitations which lead to loss of lives and property.

(The writer is a senior political commentator and public affairs analyst)

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Published Date: 20^th September 2016, Image Source: http://www.rediff.com [3]
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)