Why this Cauvery di

Claims made by the sparring states depend on competing legal discourses

Written by Prithvi Datta Chandra Shobhi | Published: October 12, 2012 2:59:44 am

The failure of the monsoon in Karnataka has predictably produced the latest iteration of Cauvery crisis,with the Karnataka government succumbing to popular protest and stopping the scheduled release of water to Tamil Nadu,even at the risk of creating a constitutional crisis. While the quest for an acceptable solution,particularly for distress years,continues,no resolution seems to be on the horizon,given that the claims by Karnataka and Tamil Nadu appear to depend on competing legal discourses.

Unlike other inter-state river disputes,the Cauvery basin is over-developed and the demand for irrigation and drinking water continues to rise,making such crises inevitable. During years with normal rainfall,the overflow is sufficient for Tamil Nadu’s requirements. But the distress years invariably cause a crisis,and even the Cauvery tribunal did not offer a formula for distress year distribution. It did suggest the principle of proportionate adjustment but recognised that any crisis will have to be handled politically and hence left the actual management to the prime minister-led Cauvery River Authority (CRA).

It is this principle of proportionate adjustment that the agitating Kannadiga unequivocally rejects. He is oblivious to Karnataka’s image elsewhere,especially in Delhi,as unreasonable,obstructionist and unneighbourly.

For the protesting farmer in Mandya and the activist in Bangalore,all the water that originates in Karnataka ought to be used in the Kannada-speaking regions of the Cauvery basin. Their claim is but a weak articulation of an absolute assertion of an upper riparian state’s rights over water secured in its catchment area. Hence the argument that the water in the reservoirs of the Cauvery and its tributaries is barely adequate for Karnataka’s needs.

This argument is bolstered by what might be called a folk theory of natural justice,on which Karnataka’s claim for equitable distribution rests. Since the river originates in Karnataka and more than half its waters are secured there,the control over Cauvery water,especially that collected in its reservoirs,ought to remain with the Kannadigas. What the agitating Kannadiga finds puzzling,and what has added intensity to the agitation,is the rejection of his plea by the PM and the SC. He repeatedly asks if the SC and the PM are aware of the facts regarding water storage levels and the minimal requirements of Karnataka. If so,why are they demanding release of water to Tamil Nadu?

He searches in vain for an explanation. Perhaps,the BJP government and Karnataka’s lawyers haven’t been forceful and efficient in presenting the facts. Or unlike Tamil Nadu,Karnataka lacks political unity,the ability to manipulate the Central government and the political will to protect the state’s interests. Or perhaps the Centre is playing politics,seeking the support of Tamil parties even as it takes Karnataka for granted,as it always has.

Contrary to these anxieties,however,the Kannadiga claim finds no favour with settled legal theories to resolve inter-state water disputes,which afford substantial protection to lower riparian states and more importantly,recognise the principle of “prior appropriation” as the primary legal principle in arbitrating claims. Simply put,Tamil Nadu has a stronger — and legally enforceable — claim over Cauvery water. This is based on its historical use of Cauvery water for paddy cultivation in the delta. Since it has exploited naturally flowing Cauvery waters since medieval times and then systematically expanded irrigation to nearly 26 lakh acres,taking advantage of prior agreements of 1892 and 1924,Tamil Nadu will always have a stronger claim to seek a greater share even during years of distress.

Unlike the agitating Kannadiga,successive governments in Karnataka have understood their disadvantage in the judicial realm but rarely have they spoken about it. Since the 1970s,their strategy has been to seek political settlements as opposed to judicial ones; simultaneously,they expanded irrigable land in the Cauvery basin through a series of irrigation projects. Moreover,rapid urbanisation in the Cauvery delta,especially of Bangalore,has resulted in greater demand for Cauvery water. Significantly,the tribunal itself did not recognise these new,additional demands in its final award.

Distress sharing of Cauvery waters will continue to confound administrators and various stakeholders in both states. Such conflicts will not only be between states but within states too. For instance,it won’t be surprising to see conflicts within Karnataka emerge due to competing claims of the Mandya farmers and Bangalore’s drinking water needs. We need new ways to think about “prior appropriation” claims in both states,especially about land use and crop patterns. If riparianism perpetuates inefficient and inequitable distribution of water based on past use,then equity demands we rethink the doctrine itself,especially as it pertains to distress years. This might mean rationing water among various claimants and even payment of some compensation for holders of “prior appropriation” claims.

The agitating Kannadiga hasn’t forcefully framed his demand as one of equity but his largely peaceful protest shows that the time has come to develop a comprehensive set of water rights.

The writer is a social historian and director of the Darideepa Research Institute in Mysore,express@expressindia.com

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