The 2018 Decree, and the Cauvery Water Management Authority

Third, on priority. Drinking water is the first charge on a river. The requirement of the city of Bengaluru had to be provided for, and the Court increased the allocation for it by 4.75 thousand million cubic feet, observing that the Tribunal had been too restrictive in treating a large part of the city as outside the basin.

Fourth, on the ground water. The Tribunal had proceeded without accounting for the ground water available in the Tamil Nadu delta. Finding about twenty thousand million cubic feet of ground water available in Tamil Nadu, the Court took ten of them, in the delta areas, into account and, with the 4.75 for Bengaluru, reduced Tamil Nadu's share of the surface water and increased Karnataka's by 14.75 thousand million cubic feet, so that Karnataka's share became 284.75 and Tamil Nadu's 404.25 thousand million cubic feet.

Fifth, on implementation. The Court directed the Central Government to frame a scheme under section 6A within six weeks, so that the award could actually be carried out, and, subject to that scheme, it endorsed the Tribunal's directions on monthly releases for fifteen years.

Why it matters. It is the case in which article 136 was used to modify an award, the relationship between section 11 and article 136 having been settled in the same appeals in (2017) 3 SCC 362; it is the clearest Indian statement that drinking water comes first; and it is the case that forced the creation of a standing implementation authority for an Indian river.

Broken down: what the ground water point actually decides

A tribunal apportioning a river must look at the whole water resource of the basin, not only the surface flow.

Tamil Nadu's delta sits on a productive alluvial aquifer that is recharged by the same river. If a State can meet part of its need from ground water and does not have to be given surface water for it, the surface share should reflect that. The Tribunal had not made that adjustment.

The consequence for resource management is larger than the arithmetic. It means surface water and ground water are one resource in law for the purpose of allocation. That is what the National Water Policy 2012 says as policy, and this is the judgment that acts on it.

It also means a State can be penalised for the water under its own soil, which is the objection Tamil Nadu made and which a good answer should state.

The Cauvery Water Management Authority

The scheme framed under section 6A in June 2018 created two bodies.

The Cauvery Water Management Authority, with a Chairman, and members representing the Centre and each of the four party States, charged with securing implementation of the award as modified: regulating the release of water from the reservoirs, supervising the operation of the reservoirs and the regulation of water in the basin, and monitoring the storage and the crop patterns.

The Cauvery Water Regulation Committee, a technical body under the Authority, which collects the data on rainfall, storage, inflow and area irrigated and advises the Authority on the actual releases.

Two features are worth stating. The Authority derives its power from the scheme, and by section 6A(6) the scheme has effect notwithstanding any other law, so its directions prevail over the State reservoir rules. And the scheme was laid before both Houses under section 6A(7).

Worked example

In a deficit year Karnataka's storages at Krishnaraja Sagar and Kabini are at forty per cent and Tamil Nadu's samba crop needs water at Mettur.

Before 2018. Tamil Nadu wrote to the Union, the Union convened a meeting, and if nothing came of it the matter went to the Supreme Court in an application in a decided case, which is what happened repeatedly between 1991 and 2016.

After 2018. The Regulation Committee assesses the inflow and the storage and recommends a monthly release; the Authority directs it; the direction prevails over State law by section 6A(6); and non-compliance with the award itself is enforceable because section 6(2) gives it the force of an order of the Supreme Court.

What is still missing. The award allocates the yearly quantity and a monthly schedule for a normal year. A distress year needs a sharing formula, and pro rata sharing of the shortfall is what the Authority has to work out each time. That, and not the arithmetic of 740, is where the dispute still lives.

Distinctions

What it does NOT mean

It does not mean the Supreme Court re-heard the dispute. It exercised an appellate jurisdiction under article 136 and interfered on identified errors of principle. It did not take fresh evidence on the whole basin.

It does not mean article 262(2) has been read out of the Constitution. Section 11 continues to bar an original proceeding about a water dispute. What survives is the appeal.

And it does not mean the Authority allocates water. It implements an allocation already made. If the allocation itself is to change, that is a further reference or a new award, not a decision of the Authority.

Limits and criticism

Thirty-two years from request to authority. Tamil Nadu asked for a reference in 1986; the Authority was constituted in 2018.

Six years between award and notification. Section 6(1) makes publication the Union's act and gives it no time limit.

And the appeal makes the Tribunal provisional. If every award goes to the Supreme Court under article 136, the three-plus-two year timetable in section 5(2) buys nothing, and the expert body's findings are reopened by a court that has no assessors. That is the strongest argument for the 2019 Bill's standing tribunal, and it is worth making in an answer.

Quick revision

State of Karnataka v. State of Tamil Nadu, (2018) 4 SCC 1, decided 16 February 2018 by Dipak Misra CJ, Khanwilkar and Amitava Roy JJ.

Five holdings: article 136 lies notwithstanding section 11, as held earlier in the same appeals in (2017) 3 SCC 362; equitable apportionment governs; drinking water is the first charge; the Tribunal ignored the ground water available in Tamil Nadu, of which 10 thousand million cubic feet was taken into account; and a scheme under section 6A was to be framed within six weeks.

The arithmetic: Karnataka up by 14.75, that is 10 for ground water in Tamil Nadu and 4.75 for Bengaluru, to 284.75; Tamil Nadu down by the same to 404.25; Kerala 30 and Puducherry 7 unchanged; the Tribunal's monthly releases endorsed for fifteen years.

The scheme produced the Cauvery Water Management Authority and the Cauvery Water Regulation Committee, and by section 6A(6) the scheme prevails over every other law.

Test yourself

1. How did the Court answer the objection that section 11 barred the appeal? In an earlier judgment in the same appeals, (2017) 3 SCC 362, by holding that section 11, in consonance with article 262, bars an original suit or complaint about the water dispute, not an appeal from a decision already made, and that section 6(2) gives a published decision the force of a decree only to make it binding and enforceable, and was not intended to bar the Court's jurisdiction under article 136.

2. Why was Karnataka's share increased? Because the Tribunal had not accounted for the ground water available in the Tamil Nadu delta, and because the drinking water requirement of Bengaluru had been treated too restrictively.

3. By how much was Karnataka's share increased, and what did the Court endorse for fifteen years? By 14.75 thousand million cubic feet, 10 on account of ground water in Tamil Nadu and 4.75 for drinking and domestic needs including Bengaluru's. The fifteen years attach to the Tribunal's directions on monthly releases, which the Court endorsed for that period subject to the section 6A scheme.

4. What two bodies did the section 6A scheme create, and what does each do? The Cauvery Water Management Authority, which directs and supervises the implementation of the award; and the Cauvery Water Regulation Committee, a technical body which collects the data and advises on the actual releases.