By Dhruv Shekhar
The Cauvery water dispute has been raging since 1892 and appears to be far from reaching a conclusion. There have been hearing after hearing but the dispute has sustained. The present contention concerns the amount of water that the Karnataka Government is supposed to allocate to Tamil Nadu as per the Supreme Courts orders late last year. The Karnataka government’s inability to follow through with the same has prompted a reappraisal of this matter.
The timeline of judicial orders
The latest orders given in October 2016 directed the state of Karnataka to release 2000 cusecs of water till any further orders. This order was in addition to the previous set of orders which directed the state to release 6000 cusecs of water to Tamil Nadu for a relatively limited time-frame.
Karnataka, for its part, has been adamant on its inability to comply with the order owing to the fact that such a distribution of water would leave a number of districts without enough water for drinking and farming. The same claim which was iterated a decade back when the Central Water Tribunal (CWT) granted its award for water distribution of the Cauvery river.
This roadblock along with the Supreme Court ruling that it has appropriate jurisdiction to deal with any appeals to the 2007 CWT award signifies a prolonged trial. The pertinent question is: Is it time to redo the approach to this dispute?
The three approaches to water allocation
Traditionally, there exist three main approaches to determine rights of water allocation, namely the Harmon, History and Hobbes approach. The Harmon approach bequeaths the right onto the land which serves as the source of the water.
History derives primacy from the historical users of the water while the Hobbesian approach relies on the result of awards via negotiations between the parties. Conventionally, in trans-boundary water disputes, it is the upstream entity which exercises the Harmon right, while the lower stream parties use the principle of History and Hobbes. Due to this face-off, negotiations generally ensue.
The Cauvery water dispute stands out not because these approaches have partaken but also because of the petty parochial politics that surrounds these methods.A result of this politics was the violent protests evidenced late last year.
Ways out of the dispute
The problem in this matter appears to be the over-allocation of water resources as a part of the government’s Minimum Support Price paddy incentivizing regime. While the government may have an agenda aimed at achieving its food security purpose, the water-scarce regions such as the Cauvery basin have fallen back in the list. There is a need to shift the institutional focus on encouraging the growth of drier crops such as Ragi as opposed to the water-intensive ones.
Additionally, institutional support is required in the form of establishment of a River Basin Organisation (RBO) as has been advocated by the renowned author and researcher on environmental policy, Jayanta Bandyopadhyay. Basin-level management of the river is the key to effectively control the flow, distribution and usage of the water. At the same time, according to adequate regulatory powers to such entities would ensure an internal resolution of the matter while simultaneously preventing any further bad blood between the states.
To make the aforesaid a reality, a great deal of financial investment is required. One mode through which it can be achieved is project financing, which would entail the appropriate amount of private financial and knowledge base investment for adequate operation and management.
Does the proposal of mediation hold water?
Instead of participating in another adjudicatory process, it is an opportune time to consider a method such as mediation. Mediation is an out-of-court settlement which provides the parties with a greater degree of control on the procedure employed in the resolution of a matter. Instead of having judges pronouncing judgments, a mediator functions in the capacity of a facilitator to help the parties reach their respective ends.
A method such as this would ensure subject-specific experts assisting the parties all along while simultaneously letting them reach a prospective settlement which could be incorporative of socio-political, economic and environmental concerns. Moreover, a decision such as this would provide a greater push to mediation as a panacea for resolution of environmental disputes.
Apart from this matter, there exist issues pertaining to the purported stoppage of construction of the Kudankulum Nuclear Power Plant and the Subansiri Lower Dam. Matters, when litigated, are likely to leave one side empty-handed, thus providing the basis for further discord and litigation.
Holistic approach towards dispute resolution
Experiments with mediation to resolve environmental disputes have found immense success in both the United States and Europe. While there is nothing to suggest that an approach such as this would convincingly lead to a resolution of the matter, upon examining the numerous and already exhausted options as well as the various advantages as provided by mediation, it appears a worthwhile option.
The present scenario is such that the provisions of Inter-State Water Dispute (ISWD) Act along with those of the Indian Constitution, appear inadequate to resolve this dispute. Thus, as has been stated by policy expert, Nilanjan Ghosh, conciliation does not lie in ad-hoc awards by Tribunals or orders by courts that result in backlashes through clashes of egos. A longer-term solution lies in a holistic economic, eco-systemic and institutional approach. This requires an overhaul of the incumbent setup.
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