Now that the SC has given its order on Cauvery Management Scheme, it may look into the grievances of the State
On June 1, a mechanism for implementation of Cauvery Water Disputes Tribunal Award, ‘Cauvery Water Management Scheme, 2018’ was published in the official gazette by the Union government. This became possible due to the landmark judgement of the Supreme Court in February this year and its continuous monitoring.
The Supreme Court in its final order on May 18, directed the Union government to notify the corrected draft scheme, saying that the scheme be ‘given effect to with promptitude before the onset of the impending monsoon’. Now, the onus is on the Union government.The main issue of friction in the Cauvery water dispute between Karnataka and Tamil Nadu, the two main party States in the dispute, is the release of water by Karnataka to Tamil Nadu, especially when there is deficient rainfall in the basin. The political parties in Tamil Nadu are demanding that Karnataka should release the water by June 12 for their ‘kuruvai’ crops.
Karnataka, on the other hand, has expressed its inability since its farmers are also in distress as there is no water in the State’s reservoirs for the last three years. Now with the Cauvery Water Management Authority and the Cauvery Regulatory Committee in place, we can hope for an amicable implementation.
Power to Implement Schemes
The Inter-State River Water Disputes (ISRWD) Act, I956, provides for the constitution of tribunals for the adjudication of disputes relating to waters of inter-State rivers and river valleys. The implementation of the decision of a tribunal is possible only when there is machinery for that purpose, which can function as a distinct legal entity. This was the opinion expressed in the final order of the Narmada Water Dispute Tribunal in 1979.But at that time, there was no provision in the ISRWD Act, 1956, to create such a scheme. Hence, Section 6A containing ‘Power to make schemes to implement decision of Tribunal’ was inserted in the Act in 1980. Based on it, the Narmada Control Authority and Review Committee could be formed.
The Krishna Water Disputes Tribunal –II, i.e. the Brijesh Kumar Tribunal, in its final order framed a mechanism called ‘Krishna Waters Decision Implementation Board’ (KWDIB) as per Section 6A. It is not yet formed as the tribunal’s decision is still pending due to the stay by the Supreme Court.The present Cauvery Water Management Authority is also framed under Section 6A of the ISRWD Act,1956.
Implement Scheme B
Section 6A did not exist during the proceedings of the Bacahwat Tribunal (KWDT-I), which was the first water disputes tribunal. Hence, an opportunity was lost to frame a scheme to monitor sharing of Krishna waters, including ‘deficit sharing’ among the party States, namely, Maharashtra, Karnataka and erstwhile Andhra Pradesh. In fact, in 1973, there was a joint statement by the three States calling upon the tribunal to have a joint control body to monitor the allocations, in surplus as well as deficit years of flow. To give effect to it, the Bachawat Tribunal evolved ‘Scheme B’.For the proper implementation of Scheme B, the constitution of ‘Krishna Valley Authority’ was required. But Andhra Pradesh backed out and disagreed to the constitution of the controlling authority. Hence, the tribunal could not take up Scheme B as part of its final order despite the scheme being a part of its original and further report.Eminent lawyer KK Lahiri opined that ‘if Section 6 A had existed in the statute book in 1973 or 1976, the tribunal would not have needed to leave it for Parliament to enact a law to implement Scheme B.’ Further, ‘it could have passed its final order in terms of Scheme B and left it to the Central government to implement the scheme and set up the Krishna Valley Authority under Section 6A.’
Today, the effect of non-implementation of Scheme-B is clearly visible. The lower riparian States of Telangana and Andhra Pradesh are unable to get water from upper States during deficit periods.
Cauvery and Krishna Tribunals
The CWDT Award is different in many ways when compared with the KWDT-I Award. The CWDT allocated waters up to 50% dependable flows whereas the KWDT-I did only up to 75%.
As the Scheme A is operative now, even if Krishna waters are allocated at 50% dependability so that more water could be allocated among States, there would be a decrease of flows to Andhra Pradesh and Telangana.
Almost all the tribunals’ awards and boards, including the CWDT, allow sharing of waters during deficit flows whereas in the KWDT-I Award there is no such deficit sharing.
In its landmark judgement, the Supreme Court modified the decision of the Cauvery Tribunal. It reviewed the water allocations of a tribunal, which had shattered the prevailing belief that only legal issues of tribunal award, if any, can be reviewed.
The Supreme Court considered groundwater also in the adjudication of water share for Tamil Nadu. Till now, no tribunal had taken groundwater into account while deciding on allocations.
The Krishna River Management Board (KRMB), to monitor the releases among Andhra Pradesh and Telangana States, was not constituted under Section 6A. It was constituted as per Section 85 of the AP Reorganisation Act, 2014. However, the function of KRMB is to regulate the supply of water as per the awards of the tribunals. Since currently, there are no project specific allocations made by the tribunals, the KRMB has to issue water release orders in consultation with both the States.
No tribunal order, be it Narmada Control Authority, KWDIB or the newly-framed Cauvery Authority, mentions about stationing of Central Security Forces at reservoirs. But why such a clause was included in the case of KRMB is puzzling since there was no violence in Telangana during the struggle for statehood or after the State’s formation. The Sarkaria Commission noted that ‘Any agency under Section-6A cannot really function without the cooperation of the States concerned’.
Now that the Cauvery issue has been settled, we hope that the Supreme Court will look into the issue securing rightful share of Krishna waters, which the Telangana government has mentioned under Section 3 of its complaint and bring it towards its logical end.
(The author is Secretary, Telangana Engineers JAC)