Understanding the Kaveri River Water Sharing Dispute Kaveri river water sharing dispute has cropped up again

. A small crisis once in every three to four years and a slightly bigger crisis once in a decade has been a regular affair in this dispute. Here is an attempt to go into the history of this dispute and take a holistic view of the problem and the kind of solution needed. Kaveri, a life line of Karnataka and Tamilnadu ! Tamilnadu has been arguing that it has prescriptive right over the flows of river Kavery on the ground that it is the lower riparian State and hence has a right of prior appropriation of the waters of it. It laid claim on the principle of right of easement saying that they have been enjoying the flow of that river for centuries and their economy is heavily dependent on such flows as such there is no question of interrupting the flow of such river by the upper riparian State. It has been using these arguments to pass the message that upper riparian state has no right over Kaveri river water. Going by this argument, no state including lower riparian state can build any dams across any river for that matter ! If left as it is most of the river water would go waste flowing down into the sea. Storing river water plays a vital role in the progress of human society and hence both lower as well as upper riparian states have due rights to store water. With that comes the question, who can hold what amount of water? how much the upper riparian state can hold for itself and how much should be the share of lower riparian state? how should it be shared in times of lean season? All these questions need to be answered in a fair and just manner. If such a formula is already in place, no water related disputes will ever arise, but when political clout, unfair laws of the past decide how water will be shared between these parties, injustice is a given to all weaker parties involved. In the matter of Kaveri river water sharing, Karnataka has been experiencing injustice for more than a 100 years. How did we land up where we are now? How do we resolve this? Although the conflict has a long history, let's look at two key developments that had important implications on this conflict. Firstly, the political upper hand Madras presidency enjoyed under the British over the Mysore kingdom. Secondly, the technological and scientific revolutions that led to the building of dams and canals and the consequent increase in the area of irrigation in the Kaveri basin. In 1892 and 1924, two separate treaties were signed between the Mysore kingdom and the Madras presidency under the British. To be honest, the state of Mysore was co-erced to sign those treaties that were heavily biased towards the british ruled Madras state. State of Mysore was hoping that after India's independence and India becoming a federal democracy formed on the foundation of equality for all; all the unfair agreements of the past will be buried and a fair and just way of sharing water would be put in place that would be acceptable to both the states, but that wish never came true. The tradition of injustice continued with the formation of Kaveri tribunal in the 90s and its interim judgement in 1991 and its final judgement in 2007. Can any court give solution to such a conflict? Does river water sharing come under the jurisdiction of the Supreme court? Or, Should it come under it at all? Can agreements of colonial era or historical claims become basis to decide river water sharing ? On what basis did the tribunal give it's interim and final judgements? On what basis is the Prime minister of India asking Karnataka to release water? On what basis the Supreme Court is asking Karnataka to honour the CRA's decision? we'll discuss these questions in the future posts.

The river Kaveri starts her journey from Talakaveri in Kodagu district and runs more than 800 kms in her journey to Bay of Bengal. Hemavathi, Suvarnavathi, Arkavathi and Shimsha are tributaries of river Kaveri in Karnataka. Kabini is another tributary that originates in Kerala and joins Kaveri in Karnataka (KA). In Tamilnadu (TN), Bhavani, Noyyil and Amaravati are three tributaries of it. Kaveri flows a length of 320 kms within Karnataka, for 64 kms it’s flow acts as border between Karnataka and Tamilnadu, while after that it flows for about 416 kms within Tamilnadu before emptying into the Bay of Bengal. Here is some data about Kaveri’s flow in Karnataka and Tamilnadu

A bitter reward for being patriotic! British were ruling Madras Presidency from 17th century itself. In Mysore, Hyderali, Tippu Sultan, the then rulers of Mysore died fighting the colonial powers and eventually Mysore Kingdom became a Princely state subservient to the British. Though the river Kaveri was flowing in Mysore state, the irrigation in the state was primarily dependent on Monsoon rains. Although the rulers of Mysore wanted to change that by building irrigation water supply facilities, they had to get permission for every small thing from the British delaying their progress. After a lot of letter exchanges with Madras, the agreement of 1892 was imposed on Mysore Kingdom. With that agreement, Mysore was made to pay for fighting the Colonial forces!

The gist of the 1892 agreement Krishna, Kaveri and Tungabhadra were the rivers flowing from Karnataka to the then Madras Presidency. Being a lower riparian state, Madras state was making use of these waters for centuries. Hence several restrictions were imposed on Mysore to not disturb the existing availability of water with Madras state. Some of the them were:

Mysore was required to obtain Madras' consent for any new irrigation reservoirs across any of the main rivers it wished to utilize and share information on any new irrigation scheme it wished to undertake to utilize the waters. Mysore state cannot build a dam across Tungabhadra river in the lower area of Haveri road. It can’t build any dams across Kaveri in the lower area of Ramaswamy dam and it can’t build any dams across Kabini river in the lower area of Rampura dam ! While repairing a dam or while constructing a new dam in place of an old dam, no efforts should be made to collect more water than what is being held now. Such biased rules literally broke the neck of Karnataka’s irrigation projects. At the same time, no such restrictions of any kind were imposed on Tamilnadu. It was even allowed to increase it’s area of irrigation without any interruptions.

This is the beginning of a long journey of injustice to the state of Mysore and it’s people who are experiencing the effects of this agreement to this date.

The agreement of 1924 In reality, the 1892 agreement was made applicable to all the rivers flowing in the state of Mysore. Accordingly, the state of Mysore applied for permission to build a dam at Kannambadi as per the 1892 agreement. Madras however, refused to give its consent for this move. The relentless efforts of Nalvadi Krishnaraj Vodeyar, the then king of Mysore along with his chief engineer Sir M Vishweshvaraiah resulted in the agreement of 1924 between Mysore and Madras states. The agreement was signed for a period of 50 years from 1924. As the agreement was letting Mysore to go ahead with the construction of Kannambadi dam, it signed the agreement although it was heavily biased towards Madras. The agreement also stipulated that Mysore was not to increase its area under irrigation more than 110,000 acres beyond what was already existing, while the same cap for Madras Presidency was pegged at 301000 acres! Madras was given a free hand in building any number of dams in it’s territory and Mysore was also allowed to build a matching dam with a capacity 40% lower than that of the dam built by Madras!

At the time of independence, the state of Mysore was expecting that all these unfair and biased agreements will go away with British. Unfortunately, Mysore didn’t get any respite from the unfair agreement of 1924. Mysore tried starting a couple of new irrigation projects post-independence.

Roadblocks for Karnataka even in Independent India! Yes, when Karnataka sought the permission of Government of India to start these new projects, the central govt replied saying “First get permission from Tamilnadu! Resolve your conflicts with them and then come back! ” How can anyone believe that Tamilnadu will give permission when it had opposed the very construction of Kannambadi itself ? Why should we seek Tamilnadu’s permission? Is Karnataka a princely state of Tamilnadu? Karnataka went ahead and built 4 dams in it’s territory without worrying much about permission of Central or Tamilnadu governments. The reservoirs that came up as a result were Hemavathi, Kabini, Haarangi and Suvarnavathi. The very construction of these reservoirs has led to the present day conflict of Kaveri river water sharing. Tamilnadu, over several years discussed this issue with Karnataka and when Karnataka didn’t relent to it’s pressure tactics, went to the Prime Minister and complained. Later, a private organization called “Tamilnadu Kaveri Neerappasan Vilaiporulugal Vivasaayigal Naala Urimai Podugappu Sangam” approached the court with a complaint. Even the government of Tamilnadu filed a case in the court seeking to form a tribunal to settle this matter. After reviewing the matter, the honourable Supreme Court of India as per article 262 of the Constitution directed the Union Government to form the The Cauvery Water Disputes Tribunal and Union government obliged by forming the same in 1990.

By the year 1971, Karnataka, which contributes more than 53% of water into Kaveri river was irrigating in 6.74 lakh acres of land, while Tamilnadu with a contribution of around 31% of water into Kaveri river was irrigating in 23.60 lakh acres of land. Today, Karnataka irrigates in around 11.2 lakh acres of land while Tamilnadu does it in 29.4 acres of land almost 3 times that of Karnataka. In 1968, with permission when Karnataka tried taking up Haarangi and Kabini projects, Tamilnadu went to the Supreme court with objection. Fearing delay in judgement, Karnataka went for a compromise by giving in writing that the state won't store water for more than 6 months in these reservoirs and won't

use such water either. When Tamilnadu's case came up for hearing in Supreme court, it argued that "The river Kaveri has been used by us for thousands of years but Karnataka has stopped giving any water to us by breaching the 1924 agreement with these dams. The farmers of Tamilnadu, it's agriculture and it's economy has suffered a great deal due to this stance of Karnataka. Now, Karnataka has gone a step further by building four dams, literally stopping Kaveri waters to us. This great injustice must be corrected at the earliest." The loud cry of Tamilnadu did convince the Kaveri Tribunal about it's case. However Karnataka's cry of historical injustice fell on the deaf ears of the tribunal. When Karnataka tried contending that Tamilnadu grows 3 crops an year while for Karnataka it's not even letting grow second crop, Tamilnadu argued that it has a heritage right over the waters. Tribunal bought into the argument of historical claims of Tamilnadu and didn't even bother to look at why Karnataka was not in a position to utilise the water all this while. It blindly termed all attempts of Karnataka as illegal. Kaveri interim judgement!

Shri. Parasharan was arguing on behalf of Tamilnadu. (His specialty is he is arguing against Karnataka in Krishna, Kaveri and Kalasa Banduri disputes involving Karnataka). Karnataka appointed Shri. F.S.Nariman to argue it's case. Tamilnadu requested the tribunal to issue an interim judgement until the final judgement is made. The tribunal awarded 205 TMC of water per year to Tamilnadu based on the yearly flow of water from Karnataka to Tamilnadu. From the beginning whenever Tamilnadu accused Karnataka of not releasing any water, Karnataka contended that blame by showing the report of at least 252 TMC water measured at Biligundlu point. When Karnataka questioned the 205 TMC interim judgement, the tribunal rejected it by saying Karnataka was already releasing 252 TMC of water every year as measured at Biligundlu ! Then came the deadly blow to Karnataka with the final judgement of the tribunal on 5th of February 2007. The final judgement of the Kaveri Tribunal! 1. An important point observed in the final judgement was as 1892 and 1924 agreements were pretty old as well as signed after due discussions between the parties involved, they can't be termed as not applicable. Some aspects of the 1924 agreement were supposed to be reviewed after 1974 and hence the tribunal claimed to have done so now. 2. 3. 1892 and 1924 agreements will become null and void once final judgement is accepted. Ground water usage of any state in the basin can't be regarded as usage of Kaveri river water. ( Ground water level was high in Tamilnadu compared to Karnataka but this fact holds no relevance to the tribunal) 4. The judgement doesn't talk about the distress formula in detail. If there is rain deficit, river water sharing should also be adjusted accordingly is what it says. This means if north west monsoon in Karnataka fails and Tamilnadu asks for it's share, the distress formula applies for just that season and in case, the north east monsoon succeeds, Tamilnadu will get a bonus as it benefits hugely from north east monsoon season compared to Karnataka. Karnataka has been arguing to take into account both north-east as well as northwest monsoon seasons while deciding a distress formula but Tamilnadu goes over board by making noise even before the start of north-east monsoon season to get as much of water as possible from Karnataka. So, whenever there is drought, Tamilnadu sticks to the incomplete and unfair distress formula to pressurise Karnataka to release water.

The 5 injustices! 1. Karnataka has 42% of Kaveri basin. Our irrigation area should also be raised proportionately. To be fair, we should have got at least 23 lakh acres of land under irrigation in the basin, while Tamilnadu's right share should have been 13.6 lakh acres. Using the arguments of heritage right and historical claim, Tamilnadu was awarded disproportionate water in the final agreement. This is the first and foremost injustice meted out to Karnataka. 2. The tribunal's final judgement to release 192 TMC of water at Biligundlu instead of 205 TMC asked in interim judgement was actually an eye wash. Earlier, Karnataka was releasing 180 TMC of water at Biligundlu after subtracting 25 TMC of water that flows into the river between Biligundlu and Mettur, but now, the final judgement asks Karnataka to release 192TMC at Biligundlu itself and if you take into account the other 25 TMC of water between Biligundlu and Mettur, Karnataka will end up giving 217 (192 at biligundlu + 25 between biligundlu and mettur) TMC of water which is 12 TMC more than what was decided in interim judgement ! This is the second injustice. 3. The tribunal awarded 30 TMC of water to Kerala and it asked Karnataka and Tamilnadu to release 21 TMC and 9 TMC respectively to Kerala. As Kerala currently has no infrastructure to utilise that water, Tamilnadu was allowed to use that 9 TMC of water but Karnataka was not allowed to do so ! Karnataka was asked to release that 21 TMC reserved for Kerala to Tamilnadu and Tamilnadu was allowed to use even that water ! This is the third injustice. 4. To protect environment, Karnataka was ordered to release 10 TMC of water, while no such rule was made for Tamilnadu. So protecting environment is just Karnataka's responsibility? huh? This is the fourth injustice. 5. Karnataka supplies 15 TMC of water to Bengaluru for it's drinking water needs. With Bruhat Bengaluru, the need was revised to 30 TMC. Chamarajanagara, Mandya, Mysore, Channapattana, Ramanagar, the other towns in the Kaveri basin together need around 60 TMC for drinking water needs. The tribunal has reserved just 1.85 TMC of water. Another surprise is the tribunal says that only 1/3rd of Bengaluru falls in Kaveri basin and hence only that part has been considered while allocating! Even the UN says that the first preference should always be given to drinking water needs, but to aid Tamilnadu grow 3 crops an year, drinking water needs of Karnataka was made to suffer. How fair is this? This is the fifth injustice. The continued injustice! 150 TMC of ground water available in Tamilnadu was not at all considered while giving the final judgement even when Tamilnadu itself declared that it is using 20 TMC of ground water! The experts panel of the tribunal gave a report saying Tamilnadu needs 395 TMC of water while the tribunal awarded 419 TMC of water ! Ain't that surprising? When DMK is part of Union government, when it has four ministers in the cabinet, when Karnataka elects outsiders to Rajyasabhe, when Karnataka is being ruled by national parties having their allegiance more to their high commands than to the people who have voted them to power, will justice ever prevail for Kannadigas? This is a big question doing rounds in the minds of all Kannadigas. If Kannadigas do not wake up to seek justice, future will be bleak for us. What rules and laws does India has about river water sharing in a fair and just manner? What is real justice for Karnataka? Will Karnataka get justice ever in future? What will happen to Kannadigas if the final judgment is

published in the gazette of the Union government? What will be the way out for Karnataka? What role does our political parties play in this? Let's see in the next and final post. The 2007 final judgement was a decisive end to the Kaveri river water sharing dispute as Kannadigas felt it puts a final nail into the coffin of 200 years of oppressive and unjust policies that denied Karnataka it's fair share of water. So, what happened at last? What is the way forward to resolve this dispute? Let's see. Tamilnadu's victory When Tamilnadu was going to the Prime minister or the Supreme court with a demand to form a tribunal in 1970s, it's argument of injustice lacked strength as it was solely centered around one argument i.e Karnataka is not abiding by the agreements of 1892 or 1924. Immediately, Karnataka used to corner Tamilnadu arguing that those colonial era agreements were imposed on it by the British and holds no sanctity after India's independence. Had courts and central governments agreed to Karnataka's arguments, the whole dispute would have died down then and there, but Tamilnadu cleverly interleaved the step of Karnataka building 4 dams in it's territory with it's earlier accusation and made it look like Karnataka is one adamant state that cares two hoot for it's neighbours and is usurping all the waters of Kaveri. It pleaded the center and the courts to form the tribunal to settle this matter. It won't be wrong to say that it also made sure that with it's unjust and unfair demands, the talks with Karnataka were made to fail to pave the way for forming the tribunal. "All previous attempts to talk and resolve the issue with Karnataka have failed and hence please instruct the Union government to form a tribunal to resolve this dispute.” this was the powerful one line argument Tamilnadu used when it went to the Supreme court seeking to form a tribunal. When Union government was about to form the tribunal, Karnataka could have got justice had it put a condition saying no state can claim prescriptive right over the flows of river Kavery on the ground of heritage rights and hence the tribunal should scrap all the existing agreements and look at water sharing and identifying irrigation areas afresh. Karnataka failed to do so when the tribunal was formed and consequently tribunal's interim and final judgements have given a death blow to it. When the tribunal started it's inquiry, Karnataka tried putting the above argument, but it was too late. The tribunal rejected Karnataka's claim saying "Let's ignore historical injustices and base our inquiry on current day data of irrigation area, amount of water used, number of crops grown by both the states. This was a fatal blow for Karnataka as Tamilnadu was ahead of Karnataka on most of these parameters due to the very facts the tribunal tried rejecting, i.e historical injustices meted out to Karnataka! Once this was decided against the wishes of Karnataka, what was remaining was just issuing orders allocating water based on the existing irrigation areas of each state and you know what that meant for Karnataka! This was the real victory of Tamilnadu. What is the role of the Court? The constitution of India talks about Adjudication of disputes relating to waters of inter-State rivers in article 262 which clearly says the subject of interstate river water sharing dispute is out of it's purview. Disputes relating to Waters 262. (1) 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.

(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1). It makes logical sense when the supreme court always tells " formulate a tribunal and follow it's decisions"

The role of tribunal! Whenever a water sharing dispute arises between states, it was advised to form a tribunal to resolve the dispute using the Inter - State River Water Disputes Act 1956. Using this act seven tribunals have been setup so far and Karnataka has been a party in five of them! Does these tribunals refer to any national policy to resolve such disputes? Does India have any national policy? If we try to look for an answer to this question, all we get is a record called national river policy, but surprisingly it doesn't anything about sharing river between states ! There are no clear formula defined to address distress situation! So, what does Kaveri tribunal say about distress formula? All it says is in distress season, share the water accordingly! If the solution was so simple, would we have landed up where we are now ? How will we share in times of distress without a clear formula? Tribunal answers this question by asking the parties involved to go for appeal. So, the crisis is forever!

What's the fate of Karnataka next? The Kaveri tribunal has already given it's final judgement in 2007 and it's just waiting for the center to publish it in it's gazette and believe me that day is not too far. All our protests will fall on the deaf ears just the way it is happening now after CRA headed by the prime minister ordered to release 9000 cusecs of water every single day without reviewing the ground realities and then sent a team to review the ground realities to douse the fire of protests. There are real possibilities that any future protests against decision published in the gazette will become illegal and may invite the wrath of the courts ! Once published in the gazette, everything should proceed as per the rules stipulated there and any attempt to defy those orders would get equated to sedition! Karnataka going to the court to apologise on the charges of contempt of court may become a regular affair after that !

How do we resolve the Kaveri dispute? Looking at the history of the dispute, it is very clear that it's not a matter to be resolved by the court. This is a political problem requiring a political solution. We have to leave behind history and historic claims. Arguments like "We are already using the water and hence we will have the rights forever" should be rejected outright. The final judgement of the tribunal which bases it's judgement on such argument should be rejected and we should press for a national river water sharing policy to be designed at the earliest. The new policy should decide the amount of irrigation area after looking into the whole basin area, it's geographic composition, the rain and famine data of the whole basin and form a policy that is fair and just for all riparian states.

The federal system needs a correction! People in India believe that democracy is all about majority. Majority decides how the system should be. A classic example is the belief to make Hindi as the sole administrative official language of the union on the grounds that it is the spoken by majority! Such flawed policies result in people speaking minority languages would get reduced to the stature of second grade citizens and one fine day, it may even make these people go extinct. The structural asymmetry in representation of each state at the level of central government is also a big problem. The current

framework of deciding number of MPs for each state based on their population has literally silenced the voices of smaller states. This should be changed to give equal representation to all constituents of the federation. Democracy driven on "might is right" philosophy will sound a death bell to a state in India without it's consent. India needs to move towards restructuring it's model of governance to become a true federation giving equal status to all constituents on all matters.

Time for a regional party in Karnataka! The tribunal was formed under the V P Singh government where DMK was an ally. Even today, when prime minister ordered Karnataka to release 9000 cusecs of water without first looking at the ground realities, people suspect it was calculations of survival of his coalition government that made him do so. The way our present government or all previous governments run by national parties behaved in this matter, it is very evident that all their allegiance towards the state is a big farce. At the last moment, they will release water giving lame excuses like " High command said so", "Court's orders can't be defied". If Karnataka wants to muster enough muscle to sit and negotiate things on an equal footing with others at Delhi and elsewhere, it must vote for a regional party that can safe guard the interests of the people who have voted them to power. It's time for a regional party to arise and tilt the power balance in our favour.

Source: Enguru blog (enguru.blogspot.in)

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