A three-judge bench of Chief Justice Dipak Misra and Justice Amitava Roy and Justice AM Khanwilkar delivered the judgement on the Cauvery Water Dispute on 16 February 2018. The Judgment buried the hatchet between the states of Karnataka, Tamil Nadu, Kerala and the UT of Puducherry in a 120-year old dispute on the water of River Cauvery. The decades-old litigation which seemed as incessant as its perennial river, has now come to an end and harbouring the interests of all the concerned States.
- River Water makes up the National Asset of a Nation:
The Court endorsed the view taken by the Cauvery Water Disputes Tribunal and underscored the principle of distribution and allocation of waters evincing from the decision of In Re: Presidential Reference (Cauvery Water Disputes Tribunal). Essentially, the Court in the above case remarked that waters of Inter-State River which cuts across and lashes the riverine States is a national asset and undeniably does not belong to any one State. The States are denied the right of exclusive ownership on such waters as it is in a state of flow. The Court observed that “It has been propounded therein that the right to flowing water is well-settled to be a right incident to property in the land and is a right publici juris of such character, that while it is common and equal to all through whose land it runs and no one can obstruct or divert it, yet as one of the beneficial gifts of Nature, each beneficiary has a right to just and reasonable use of it.”
- Equitable Apportionment for all the States:
The Court has not adumbrated its reasoning but has rather beautifully culled out the relevant observations made by the Tribunal. The Judgment which runs into 465 pages, intricately discusses different doctrines on which it has nestled its decision. The Court referred to the Harmon doctrine which is named after the Attorney General Harmon of United States who put forth that “Riparian States have exclusive or sovereign rights over the water flowing through their territories and the anomaly in this doctrine in the implementation thereof, especially in cases where the water of the river concerned was not sufficient for all the States through which it passed.”
But the application of this doctrine would create anomaly as the rights of lower riparian states would stand jeopardised at the hands of upper riparian states. Therefore, to resolve the dispute between upper and lower riparian states, the US Supreme Court laid down the principle of equitable apportionment in Kansas v. Colorado. The doctrine proposes that “every riparian State is entitled to a fair share of the water of an inter-State river according to its need. Such a river has been provided by nature for common benefit of the community as a whole through whose territories it flows, even though those territories may be divided by political frontiers.”
The Court further noted the International Rules which recognise the principle of equitable apportionment viz. the Helsinki Rules, Compione Rules and Berlin Rules. These rules have also been incorporated in the 1987 to 2002 National Water Policies and dictate the formulation of relevant water schemes.
In essence, these Rules mean that in determining the reasonable and equitable share of the concerned states, all relevant factors are to be considered together and a conclusion is to be reached on the whole. The factors may include the geography, hydrology, the climate, past utilization of waters, economic and social needs of each State, population dependent on the waters etc.
- Karnataka’s no-power-to-bargain-position cannot be bought:
Mr. Fali S. Nariman, learned senior counsel of State of Karnataka, submitted that both the 1892 and 1924 agreements are enveloped by the doctrine of unconscionability. He said both these agreements are tarred by the above doctrine on the ground that the Princely State of Mysore and the State of Madras were not placed on equal footing. The State of Mysore was a vassal State and did not enjoy any authority to speak on various aspects of the agreement. In other words, it did not have any power to bargain and this power was meticulously eclipsed when the Secretary of State set aside the binding award passed by the learned Arbitrator.
The Judgment read: “Even if we accept the contention that the State of Karnataka did not have any bargaining power at the time of entering into the agreements, but, the State of Karnataka acquired the said bargaining power after the 1947 Act, and definitely after coming into force the Constitution of India. Regardless of the same, the State of Karnataka chose not to denounce the said agreements. Therefore, the said agreements cannot be said to be unconscionable. A scrutinized perusal of the 1924 Agreement reveals that the said Agreement was never intended to be of permanent character. On the contrary, it contemplated a fixed term of 50 years. Therefore, now the allocation of inter-State river water was governed by equitable apportionment.”
- Bengaluru: A sui generis city
Mr Shyam Divan, the learned senior counsel for Karnataka, contemplated that Bengaluru be treated as sui generis owing to its proliferating population and thus is entitled to a special dispensation in the allocation of water. The city which is packed like sardines will definitely have a logical concomitant in the form of burgeoning drinking water requirements. Thus, the court allocated 4.75 tmc to Bengaluru, despite the fact that the city is located outside the Cauvery basin.
The Court adeptly observed about Bengaluru that: “It has transformed into a nerve centre of contemporaneous significance and its population is daily on the rise, thus, registering an ever enhancing demand for all civic amenities. Having regard to its exclusive attributes, it is incomparable in many ways not only to other urban areas in the State, but also beyond. The requirements of its dependent population as a whole for drinking and other domestic purposes, therefore, cannot justifiably, in the prevailing circumstances, be truncated to their prejudice only for consideration of its physical location in the context of the river basin.”
- Extra cusecs of water for Karnataka:
The State of Karnataka has been given extra cusecs of water because of the constraints suffered by the state, as suggested by the historical facts. Karnataka’s thirst could not be quenched by the dent of its limited access and curtailed use of the surface flow of Cauvery. In spite of being the upper riparian state and as compared to Tamil Nadu, then Madras presidency, as well as severally drought conditions in its 28 districts/taluks, Karnataka never had its rightful share of water. Therefore, the Court was found have an inclination towards awarding an additional quantity of water to it in the measure of 14.75 TMC in all, i.e., 10 TMC (on account of availability of ground water in Tamil Nadu) + 4.75 TMC (for drinking and domestic purposes including such need for the whole city of Bengaluru). The quirk of Karnataka was based on the opinion of the Court in the following words:
“On these considerations, we consider Karnataka to be more deserving amongst the competing States to be entitled thereto. Out of this, 14.75 TMC would be deducted from the quantum allocated by the Tribunal in favour of Tamil Nadu. As a consequence of the aforesaid allocation, the State of Karnataka would now be required to make available at the interstate border with Tamil Nadu, i.e., at Billigundulu, 177.25 TMC of water for the basin”.
|Karnataka|| 284.75 (270 + 14.75) TMC
|Tamil Nadu|| 404.25 (419 – 14.75) TMC
|UT of Pondicherry||7 TMC|
|Environmental Protection||10 TMC|
|Inevitable escapagaes into sea||4 TMC|
The Court held that subject to the formulation of a scheme, the water allocation arrangement is endorsed for a period of 15 years hence. The court concurred with the Tribunal in awarding 30 tmc water to Kerala and Puducherry, per contra has been allocated 7 TMC. The Court refused to augment the share allotted to Puducherry from what was awarded by the Tribunal in 2007. But the court allowed the request of Puducherry to grow a second crop, but the cultivation cannot spread over more than 43,000 acres.
 206 US 46 (1906)
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