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Why SC verdict on Cauvery water may reopen awards in other river disputes

Cauvery verdict: In its 465-page order, the three-judge bench headed by CJI Dipak Misra has thrown open the possibility of re-examining the availability of groundwater and has exercised “warrantable flexibility” in determining inter-basin sharing.

Written by Sowmiya Ashok | New Delhi | Updated: February 17, 2018 8:33:44 am
Cauvery verdict: Why SC ruling may reopen awards in other river disputes Supreme Court’s Cauvery water verdict awarded a lesser amount to Tamil Nadu considering this particular aspect of groundwater.

WHILE APPORTIONING 14.75 TMC (thousand million cubic feet) additional water for Karnataka, the Supreme Court, in its Cauvery verdict, set down two principles that may have a ripple effect on other inter-state river water disputes. In its 465-page order, the three-judge bench headed by Chief Justice of India Dipak Misra has thrown open the possibility of re-examining the availability of groundwater and has exercised “warrantable flexibility” in determining inter-basin sharing.

The amount of 14.75 TMC that the Supreme Court deducted from the quantum allocated by the Cauvery Water Disputes Tribunal (CWDT) to Tamil Nadu, includes 10 TMC on account of availability of groundwater in the state and 4.75 TMC for drinking and domestic purposes, including for the whole of Bengaluru.Karnataka argued that groundwater was an additional resource to surface water.

Tamil Nadu’s lawyer Shekhar Naphade submitted that “such water supply could not be considered as an additional resource as it was recharged by surface water and was subject to various factors like rainfall and soil characteristics”. Naphade pointed out that other water tribunals, such as Narmada Water Dispute Tribunal and Krishna Water Dispute Tribunal, had not considered groundwater to be a factor while apportioning water, a fact which was recorded by the CWDT.

Friday’s verdict awarded a lesser amount to Tamil Nadu considering this particular aspect of groundwater. The verdict, in principle, now allows aggrieved states engaged in inter-state river disputes to gather data and stake claims based on available levels of groundwater.

The Supreme Court noted: “In our view, having regard to the overwhelming empirical data following multiple research studies by different authorities authenticating beyond doubt availability of replenishable ground water in the delta areas of Tamil Nadu, 20 TMC of ground water quantified by the tribunal is an eminently safe quantity to be accounted for in finally allocating/apportioning the share of Cauvery water.”

Further, it said: “We are of the unhesitant opinion that at least 10 TMC of ground water available in the delta areas of Tamil Nadu can be accounted for in finally determining the apportionment of the share of the otherwise deficit Cauvery basin without touching the yield of 740 TMC.”

Karnataka Counsel Mohan Katarki agreed that the ruling would set a precedence for other states to use this parameter while arguing the award due to them. However, he said that in the case of Narmada and Krishna rivers, “both tribunals had said groundwater is a relevant factor but the quantity was not accounted for because there was no estimation of ground water”.

Katarki told The Indian Express that the verdict was “not at all” unfavourable for Tamil Nadu. “It is an implementable order, which always works in favour of lower riparian states. What is the use of getting a non-implementable order? Otherwise, there is an unnecessary fight every year,” he said.

Another aspect put forth by Tamil Nadu was that over 64 per cent of Bengaluru lay outside the basin and the CWDT was right to consider only one-third of the city’s needs while determining its water supply. “Any further water supplied to Bengaluru would amount to trans-basin diversion in complete contravention of the principles of equitable apportionment, the National Water Policy and the Helsinki Rules, 1966. Such trans-basin diversion is detrimental and would lead to chaos,” Naphade had argued.

Here, the Supreme Court laid down the concept of “warrantable flexibility”. It noted that the concept of a basin and the beneficial use of the water “ought to be traced generally to the sites and population thereof located in the basin”.

“Nevertheless, the principles of apportionment and the conception of reasonable and equitable share perceived for such uses comprehend a basin state addressing the social and economic needs of its community as a whole,” it ruled.

Further, it said: “We are inclined to think so as the perception of a basin state inheres in it a degree of flexibility in approach…to justify a warrantable flexibility and departure from such rigoristic approach.”

It added that the city of Bengaluru had “burgeoned over the years and has grown today into a progressively sophisticated, sprawling, vibrant and a much aspired seat of intellectual excellence particularly in information technology and commercial flourish” thus, “registering an ever enhancing demand for all civic amenities”.

This is similar to the argument put forth by Karnataka in the ongoing Mahadayi Water Disputes Tribunal on the share of the river for addressing water scarcity in the Hubli-Dharwad region from the Malaprabha basin.
Katarki says the judgment is “balanced” but adds that an aspect it does not address is “how to share water in a distress year?”

“Factually, we showed to the court that in the last 27 years, except for four years (1996-97, 2002-3, 2012-13, 2016-17), there have been no conflicts between the two states due to deficit rainfall. There is no formula for a bad year. Whenever there will be a bad year, how to share the distress is still a question begging for consideration,” he said.

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