Continuing turbulence over Cauvery: What stakeholders say

Barely a month and a half after the court passed its order on the sharing of waters, the Cauvery will be back before judges — where it has been in some form or another since 1990.

Written by Sowmiya Ashok | New Delhi | Updated: April 5, 2018 5:32:19 pm
The current session of Parliament has been washed out due to protests by AIADMK MPs demanding the constitution of the Cauvery Management Board. (Express Photo: Tashi Tobgyal)

The Supreme Court will on Monday hear Tamil Nadu’s petition seeking contempt action against the Centre for not setting up a Cauvery Management Board (CMB). Barely a month and a half after the court passed its order on the sharing of waters, the Cauvery will be back before judges — where it has been in some form or another since 1990.

The top court had, in its February 16 order, asked the Centre to formulate a “scheme” for dividing the river’s waters among Karnataka, Tamil Nadu, Kerala and Puducherry. Six weeks later, however, Chief Justice Dipak Misra had verbally said that the “scheme” did not mean the CMB alone.

A day after the court’s March 29 deadline for the formulation of a “scheme” passed, the Centre sought a three-month extension, citing the Assembly elections in Karnataka. AIADMK MPs have meanwhile been protesting in Parliament, demanding immediate constitution of the CMB — a stance that is at odds with the Tamil Nadu government’s wait-and-watch line, giving the Centre time. READ: Opposition parties hold protests across Tamil Nadu, slam Modi govt for ‘bias’

What is the scheme defined by the Supreme Court, where do the parties concerned now stand in this matter?

The Scheme

The court directed the Centre to frame a scheme within six weeks “so that the authorities under the scheme can see to it that the present decision which has modified the award passed by the Tribunal is smoothly made functional and the rights of the States as determined by us are appositely carried out”. It “categorically convey(ed) that the need-based monthly release has to be respected”, and that “no extension shall be granted for framing of the scheme on any ground”.

CWDT Mechanism

The Cauvery Water Dispute Tribunal (CWDT) referred to the mechanism as a “Cauvery Management Board” and took note of Section 6A of the Inter-State River Water Disputes Act, 1956. It recommended that the CMB be constituted on the lines of the Bhakra Beas Management Board (BBMB). “It further recommended that as its award involved regulation of supplies from various reservoirs and other important nodal points/diversion structures, it was imperative that the mechanism, Cauvery Management Board, be entrusted with the function of supervision of the operation of reservoirs and the regulation of water releases therefrom with the assistance of the Cauvery Water Regulation Committee (to be constituted by the Board),” the Supreme Court said in its order.

The Centre’s plea

The Union government in its recent application seeking an extension said it had studied the composition and function of existing boards such as BBMB and the Narmada Control Authority. It added that while in the case of BBMB, “operation, maintenance, regulation and control including ownership of the structures…” is with the management board, the NCA only looks after the implementation of the Tribunal award with respect to the storage, apportionment, regulation and control of Narmada waters. The ownership, operation and maintenance of structures lie with respective states.

Noting the divergent views of states over what shape the scheme should take, the Centre said: “if any scheme is framed by the Central government on itself, States may again approach the Supreme Court.”

It, therefore, sought clarifications from the court on two counts. First, whether the court is open to the central government framing the scheme in variance with the recommendations contained in the CWDT report regarding the CMB. Second, in case the CMB, as recommended by CWDT, is constituted, can the Centre modify the composition of the board to a mixture of administrative and technical body. And, if the CMB can have functions different from the ones recommended by the CWDT.

Karnataka’s stance

According to the state, the apex court has left the contents of the scheme to the discretion of the Centre. It noted that Tamil Nadu’s contention that CMB, as formulated by the CWDT, should be part of the scheme is “wholly contrary” to the mandate of the judgement and the law. The state is of the opinion that the scheme referred to in the judgement is a “dispute resolution body”, and is distinct from a management or regulatory body recommended by the CWDT. It also feels that the court has not endorsed or approved the CMB in its judgement.

AIDMK MPs protest outside Parliament during the ongoing budget session (Express Photo/Praveen Jain)

Tamil Nadu’s stance

The state is of the view that the Centre is mandated to put in place the CMB and Cauvery Water Regulation Committee. Therefore, through the contempt petition filed on March 30, the Tamil Nadu government attempted to bring to the court’s notice the Centre’s “willful disobedience” in carrying out the “clear mandate”. It said in the plea: “The Central Government was duty bounds to take step to facilitating implementation of the judgment by itself deciding and taking necessary action to constitute the machinery as per the mandate….”

Kerala’s stance

Kerala has suggested that the CMB should either be headed by the Cabinet Secretary or Union Secretary of water resources, and can have the four Chief Secretaries as members. The board should only ensure that the states do not overshoot the quantity of water allocated to them. In its review petition, Kerala pleaded that the court pass an order allowing the state to use the 30 TMC ft of water allocated to it according to its own needs.

Puducherry’s stance

The Union Territory has been allocated 7 TMC ft of water for its Karaikal enclave, which falls in the Tamil Nadu delta region. The Congress government’s proposal to file a contempt plea against the Centre was turned down by Lieutenant Governor Kiran Bedi, who said that such a move was “not appropriate and is not legally permissible”.

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