The prevalent problems relating to the inter-State rivers faced by Odisha and some of its neighbouring States necessitate a study of the Cauvery case. This case has been there before the Inter-State Water Tribunal and before the Supreme Court over decades. Right to equality is an inborn right of everyone. The origins of the right go back to the age-old principles of riparian rights. Some years ago, the Supreme Court had observed that the water flowing in an inter-State river does not belong to any particular State. An elaboration of this concept and the related principles of distributive justice have received more clarity in the recent Cauvery judgment. The apex court distinguished between “equal” and “equitable” in dealing with matters relating to “use, distribution and control of the waters of, or in, any inter-State river or river valley”. The directions contained in the Cauvery judgment will be prevailed till 2033.
The Supreme Court has emphatically stated that an inter-State river is a “national asset” and being in a state of flow, no State can claim exclusive ownership of its waters or assert a prescriptive right so as to deprive other States of their equitable share. Equitable distribution of inter-State river water, the court says, is a precious right that should be equally and reasonably shared by all concerned States. Chief Justice Dipak Misra, speaking for the court, further says, “While it is common and equal to all through whose land the river 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.” The Supreme Court reaffirms the principle of equitable apportionment to be intrinsically embedded generally in a pursuit for apportionment of water of an international drainage basin spreading over two or more States, predicates that every riparian State is entitled to a fair share of the water according to its need and is imbued with the philosophy that a river has been provided by nature for the common benefit of a community as a whole through whose territory it flows even though those territories may be divided by frontiers as postulated in law. In clarifying the matters further, the court goes on to say the “principle of equality” among the riparian States does not imply equal division of water. Equality, in this context, means “equal consideration and equal economic opportunity of the co-basin States”. The court further says, “To conceive that equality rests on equal sharing of water within an arithmetical formula would be fundamentally violative of the established conception of equitable apportionment.” In evaluating these, the court compared the sharing of inter-State river waters in India to the practices of sharing of international rivers among nations. Proportionality is an integral part of equitable distribution of the gift of nature.
The Supreme Court makes a reference to the Helsinki Rules of 1966 that recognise equitable use of water by each basin State taking into consideration the geography and hydrology of the basin, the climate, past utilisation of waters, economic and social needs, dependent population and availability of resources. The Cauvery judgment also refers to the Campione Rules in the context of the Cauvery dispute. These rules stipulate that basin States would in their respective territories, manage the waters of an international drainage basin in an equitable and reasonable manner. The court refers to the National Water Policy, which had time and again reiterated that water is a “scarce and precious national asset”.
Applying of these principles of equitable distribution in conformity with the objectives enshrined in the Constitution, the three-judge Bench led by Chief Justice Dipak Misra observed that there is “confirmatory empirical data”, which requires an alteration in allocation of water for Tamil Nadu. The underground water resources had not been adequately taken into consideration. Ecological necessities also require utilisation of groundwater for its own recharging and renewal. The court was not unmindful of the stand of Tamil Nadu regarding over-extraction of groundwater in the absence of adequate replenishment and further in the areas proximate to the coastal zone is generally avoidable. The court says the necessity to balance the interest of parties involved. Another dominant factor that persuaded the court to increase the allocation of Karnataka was the domestic and drinking water necessities of the people of Bengaluru. Chief Justice Misra observed, “Drinking water needs of human beings and animals should be the first charge on any available water.” Compared to Tamil Nadu, the court found that Karnataka despite being the upper riparian State on the Cauvery basin, has 28 districts still reeling under drought. The three-judge Bench further observed, “This inability of the State of Karnataka to develop its land for irrigation in the background of its persistent cavil of being deprived of its legitimate share and use of water of Cauvery cannot be ignored….. We consider Karnataka to be more deserving amongst the competing States.” Out of a total of 740 tmc available in the 802-km-long Cauvery basin, the court determined that Karnataka would now get 284.75 (an increase of 14.75 tmc), Tamil Nadu’s share would be reduced to 404.25 tmc (from 419 tmc). Kerala and Puducherry would continue to be allocated 30 tmc and seven tmc, respectively.
This Cauvery judgment will provide the foundation of the reasoning to be adopted in the case of Odisha whether it relates to Pollavaram in Andhra Pradesh or the several projects in Chhattisgarh. This judgment deserves to be studied so as to rationally build the case in an acceptable manner to further protect the interests of Odisha. The Supreme Court has directed the Centre to get down to creating a legal framework to implement the award as marginally modified by its judgment. The judgment probably is the strongest affirmation from the apex court relating to a basin State’s right to its share of water on a regular basis without having to rush to the court to open the sluices of reservoirs during monsoon deficit years.
Finally, that resolving an inter-State water dispute is mainly about balancing the competing genuine demands and interests of each State and coming up with a pragmatic sharing arrangement. It is time that due diligence was bestowed at the court’s decision regarding quantum allocation. Concerned parties would do well to imbibe a fair and scientific adjudicative process. It took six years to notify the award; and even in the final hearing, it was argued that the Centre is not obliged to implement the scheme. The argument was rightly rejected by the court. It is now imperative on the Central Government to comply with the court’s directions and set up a Cauvery Management Board and Water Regulatory Committee as part of the scheme.
The principles emanating from the Cauvery case concerns all of us, and, more so, the government of the day. It calls for an appropriate study of facts and law to meaningfully present the case. It is common knowledge that mere availability of a forum is no panacea unless suitable confirmatory data to substantiate the contentions are produced before the concerned forum. It is time for some homework in Odisha; and the youth power has an important role to play in ensuring inter-generation equity in the distributive process. We cannot ignore the present needs and invite our peril. We cannot shy away from participating in this exercise, for it concerns us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)