The Cauvery Dispute
Chapter Eighteen
Syllabus topic 1, "Water"
Pages 72 to 75 of 885
In one line
Two colonial agreements, a delta that was irrigated first and a plateau that wanted to irrigate later, a tribunal that took seventeen years, and a decree that took eleven more.
In the wording a student can write in an exam: the Cauvery dispute is between Karnataka, Tamil Nadu, Kerala and Puducherry over the waters of the Cauvery; it rests on agreements of 1892 and 1924 between the Madras Presidency and the Princely State of Mysore; a Tribunal was constituted under section 4 of the Inter-State River Water Disputes Act, 1956, in 1990, made an interim order in 1991 and its final award in 2007; the award was notified in 2013 and modified by the Supreme Court in 2018, which also directed a scheme under section 6A, from which the Cauvery Water Management Authority was created.
The geography, because it decides the argument
The Cauvery rises at Talakaveri in the Kodagu hills of Karnataka and runs about eight hundred kilometres to the Bay of Bengal through Karnataka, Tamil Nadu and Puducherry, with tributaries rising in Kerala. Karnataka is upstream, Tamil Nadu downstream, and the delta in Thanjavur is the oldest irrigated tract on the river.
Two facts about the basin generate the whole dispute.
The delta was developed first. The Grand Anicut across the Cauvery in Thanjavur is attributed to the second century, and by the nineteenth century a very large area in the Madras Presidency depended on the river. Upstream Mysore was undeveloped.
And the river is monsoon-fed and unreliable. The upper basin is fed by the south-west monsoon between June and September, the delta needs water for the samba crop from August, and in a bad year there is not enough for both. A distress-sharing formula, not an average-year allocation, is what the basin actually needs, and it is the hardest thing to agree.
The two agreements
The agreement of 1892 between the Madras Presidency and the Princely State of Mysore required Mysore to obtain the consent of Madras before constructing new irrigation works on the river or its tributaries, and was the first recognition that the lower riparian's established use constrained the upper one.
The agreement of 1924, made after the Krishnaraja Sagar dam dispute, allowed Mysore to build storages up to a stated capacity and Madras to extend its own irrigation, and contained clauses providing for review after fifty years. The meaning and the effect of the 1924 agreement, and in particular whether it lapsed in 1974, is the legal heart of the dispute, and it is the reason the definition of a water dispute in section 2(c)(ii) includes "the interpretation of the terms of any agreement".
Karnataka's case was that the agreements were unequal instruments imposed on a princely State by a colonial power, that the 1924 agreement expired after fifty years, and that its own upper basin had been left undeveloped by them.
The Cauvery Dispute
Tamil Nadu's case was that the agreements bound the successor States by article 363 and the general law of State succession, that its prescriptive and established use of nearly a century could not be defeated, and that a downstream State's existing utilisation is the first factor in equitable apportionment.
The course of the litigation
1970 onwards: negotiations, a fact-finding committee, and draft agreements that were not signed.
1986: Tamil Nadu, and a farmers' association from Thanjavur, sought a reference. The association's petition is a reminder of the standing problem: only the State's request could produce a Tribunal.
2 June 1990: the Cauvery Water Disputes Tribunal was constituted under section 4, after the Supreme Court directed the Union to act.
1991: the Tribunal refused to entertain Tamil Nadu's applications for interim relief as not referred to it. In State of Tamil Nadu v. State of Karnataka, 1991 Supp (1) SCC 240, decided on 26 April 1991, the Supreme Court held that the reliefs came within the dispute referred and directed the Tribunal to decide them on the merits. Facts. The Tribunal had held that interim relief had not been referred to it by the Central Government. Held. The reliefs sought came within the dispute referred under section 5; the Court found it unnecessary to decide whether a Tribunal has any power to grant interim relief. Why it matters here. It produced the interim order of 25 June 1991 requiring Karnataka to ensure 205 thousand million cubic feet a year at Mettur, which is the order that set off everything that followed.
1991: Karnataka promulgated an Ordinance, later an Act, empowering itself to disregard the interim order. The President referred questions to the Supreme Court under article 143, which the next chapter but one deals with.
5 February 2007: the final award, allocating the yearly available quantity of 740 thousand million cubic feet as Karnataka 270, Tamil Nadu 419, Kerala 30 and Puducherry 7, with 10 reserved for environmental protection and 4 for inevitable escapage into the sea.
19 February 2013: the award was notified under section 6(1), six years later.
16 February 2018: the Supreme Court's decree, which the next chapter works out.
Broken down: what a tribunal is actually deciding
Equitable apportionment, which does not mean equal shares. The factors the Cauvery Tribunal used, and which every Indian tribunal uses, are these.
The drainage area contributed by each State, and the rainfall in each part of the basin.
The population dependent on the river, and the extent of the area that can be irrigated.
The Cauvery Dispute
Existing utilisation and the investment already made in it. This is the factor that favours a downstream State that developed first, and it is why Tamil Nadu's delta mattered so much.
The availability of other sources. Ground water counts, and its omission is what the Supreme Court corrected in 2018.
The efficiency of use, so that a State cannot claim more because it wastes more.
And the comparative harm to an existing use against the benefit of a proposed new one, with drinking water as the first priority.
Worked example
A student is asked MU's 2015 question 1: "Discuss Interstate water management and disputes with reference to Kauveri water dispute case."
Open with the constitutional frame, in three sentences: Entry 17 subject to Entry 56, article 262, and the two Acts of 1956.
State the machinery, in four: complaint under section 3, constitution under section 4 within a year, award under section 5 within three years plus two, publication under section 6 with the force of an order of the Supreme Court, and the bar in section 11.
Then use the Cauvery as the worked instance of every one of those. The 1986 request; the 1990 constitution after a court had to direct it; the Supreme Court's ruling that interim relief was within the reference, and the 1991 interim order; the Karnataka Ordinance and the Presidential reference; the 2007 award and the six years before it was notified; the 2018 decree under article 136; and the scheme under section 6A.
Close with what the case proves about the machinery, which is what "with reference to" is asking for: that the Act works, and that it took thirty-two years from the request to a working authority.
Distinctions
| The 1892 agreement | The 1924 agreement | |
|---|---|---|
| Parties | Madras Presidency and Mysore | The same |
| Effect | Mysore to obtain Madras's consent before new works on the river | Mysore permitted stated storages; Madras permitted extension |
| The dispute about it | Whether it bound the successor States | Whether it lapsed after fifty years, in 1974 |
| Where it fits in the Act | Section 2(c)(ii), interpretation and implementation of an agreement | The same |
What it does NOT mean
It does not mean the Tribunal decided who owned the river. Nobody owns a river. It apportioned the use.
It does not mean the 2007 award was the end. It was notified in 2013, appealed, and modified in 2018.
And it does not mean the dispute is a Karnataka against Tamil Nadu case only. Kerala and Puducherry are parties, and the award gives Kerala 30 and Puducherry 7 thousand million cubic feet. An answer that omits them is incomplete.
The Cauvery Dispute
Quick revision
Parties: Karnataka, Tamil Nadu, Kerala, Puducherry.
Agreements: 1892 and 1924, between the Madras Presidency and Mysore. The 1924 agreement's fifty-year review clause is the legal heart of the dispute.
Tribunal constituted: 2 June 1990. Interim order: 25 June 1991, after the Supreme Court held in State of Tamil Nadu v. State of Karnataka, 1991 Supp (1) SCC 240, that the interim reliefs sought were within the dispute referred, leaving open whether a Tribunal has power to grant interim relief.
Final award: 5 February 2007. Of 740 thousand million cubic feet, Karnataka 270, Tamil Nadu 419, Kerala 30, Puducherry 7, with 10 for the environment and 4 for escapage.
Notified: 19 February 2013. Modified by the Supreme Court: 16 February 2018.
Equitable apportionment factors: drainage area, dependent population, existing use and investment, other sources including ground water, efficiency, and harm against benefit, with drinking water first.
Test yourself
1. Which two agreements underlie the dispute, and what is the legal question about the second? The agreements of 1892 and 1924 between the Madras Presidency and Mysore. The question about the 1924 agreement is whether it lapsed on the expiry of fifty years in 1974.
2. Which provision of the 1956 Act makes an argument about those agreements a water dispute? Section 2(c)(ii), which brings the interpretation of the terms of an agreement about the waters, or its implementation, within the definition.
3. What did the Supreme Court decide in 1991 about the Tribunal's powers? That the interim reliefs Tamil Nadu sought came within the dispute the Central Government had referred under section 5, so the Tribunal had to decide them on the merits. It left open whether a Tribunal has any power to grant interim relief; the Presidential reference later advised that it may, when the Central Government refers such relief to it.
4. Give the 2007 allocation. Of 740 thousand million cubic feet of available water, Karnataka 270, Tamil Nadu 419, Kerala 30, and Puducherry 7, with 10 reserved for environmental protection and 4 for inevitable escapage into the sea.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.