Highlights of Supreme Court Judgement on Civil Appeals in ‘Cauvery River Water Sharing Disputes’

The ‘Supreme Court of India’ / SC has  delivered its ‘Final Judgement’ on the 11 years long,  pending ‘Appeals’ of the States of: Karnataka, Tamil Nadu and Kerala, filed in the year 2007, against the ‘Final Order’ / ‘Award’ of the ‘Cauvery Water Disputes Tribunal’ / CWDT on 16th February 2018, in the many years long prolonging disputes of ‘Cauvery Water Sharing’’ among the States in the’ Cauvery River Basins’.

Maintainability of the Appeals and Supreme Court of India’s Jurisdiction in the Appeals

Thu Union ‘Government of India’ had raised a preliminary objection claiming that the ‘Award’ announced by the ‘Cauvery Water Disputes Tribunal’ (CWDT) amounted to a ‘Final Decree’ in the ‘Cauvery River Water Sharing Disputes’ and that the ‘Supreme Court of India’ had no jurisdiction to hear the appeals against the ‘Award of the Tribunal’.

However, 3 States of Karnataka, Tamil Nadu and Kerala had contended that ‘no statute could take away the ‘Appellate Powers’ of the Supreme Court of India, under Article 136 of the ‘Constitution of India’. However, the Puduchery State was in favour of the Central Government’s objection.

Before delivering the ‘Final Judgement’, the ‘Supreme Court of India’, on 18^th October 2017,upheld the ‘Maintainability of the Appeals against the ‘Award’ announced by the Tribunal (CWDT), by the 3 States of Karnataka, Tamil Nadu and Kerala and confirmed the Apex Court’s Jurisdiction in the matter. The details have been given in the ‘Final Judgement’ also, as a part of the same.

Highlight of Supreme Court’s Final Judgement in the ‘Cauvery Water Sharing Disputes’

• Agreements of 1892 & 1924 Superseded by the Award:

The Supreme Court of India has agreed with the Tribunal, in its review of the 2  Agreements of 1892 & 1924 and of the Tribunal’s Final Order / Award superseding them. Also the SC appreciated  the Tribunal’s approach in the equitable utilization of the ‘International Rivers’, in determining reasonable and equitable shares of the ‘Party States’.

• River Waters are ‘National Assets’ and NO STATE can claim ownership:

The ‘Supreme Court of India’  has held that the water of any ‘Inter-State River’ passing through various States will be  only a ‘National Asset’ and ‘No State’ could claim exclusive ownership of the water of the river.

• Reduction of Share of Tamil Nadu State:

The ‘Supreme Court of India’ has the view that the final determination of irrigated area for the State of Tamil Nadu, arrived at by the Tribunal, based on all relevant material brought on record are absolutely correct.

As the SC could not find any perversity of approach in the findings of the Tribunal in allocating the quantum of water for ‘Domestic & Industrial Purposes’ for the State of Tamil Nadu, the decisions of the Tribunal in the matter would not be interfered by the Apex Court.

According to the Tribunal’s Final Order, under Clause XII, the presence / use of ‘Under Ground Water’ in any State was not taken as ‘water used from Cauvery River’.

However, the SC has over-ruled the view of the Tribunal and has decided to take into account the presence / use of 20 TMC of the  ‘Under Ground Water’ in Tamil Nadu, confirmed by the empirical data, and keeping in mind of  the risks associated with over extracting of ‘Under Ground Water’, the share of water to Tamil Nadu State would be reduced by 10 TMC.

As a result, the SC has ordered that the Tamil Nadu State must get a reduced quantum of 177.25 TMC (14.75 TMC less than the share allocated by the Tribunal-192 TMC).

• Enhancement of Share of Karnataka State:

The SC has taken into account the ‘Drinking Water Requirements’ of the overall populations of all the States on a high pedestal and has treated the same as a hierarchically fundamental principle of equitable distribution of the ‘Cauvery River Water’.

The SC has the views that the Tribunal had drastically reduced the share of Karnataka State towards its ‘Domestic & Industrial Purposes’, for the reason that only 1/3^rd of the Bengaluru City falls within the ‘Cauvery River Basin’, and by the presumption that 50% of its ‘Drinking Water Requirements’ would be met from ‘Ground Water Supply’.

The Apex Court opined that the Tribunal had ignored the basic principle pertaining to ‘Drinking Water’ and keeping in mind the ‘Global Status’ which the Bengaluru City’ has attained, the SC has allocated an Additional share of 4.75 TMC to Karnataka, for providing ‘Drinking Water’ to Bengaluru City.

The State of Karnataka must get an additional quantum of water of 14.75 TMC ( 10 TMC on account of availability of ‘Ground Water’ in Tamil Nadu), and 4.75 TMC for ‘Drinking and Domestic Purposes’ for the  whole City of Bengaluru and as a result, the State of Karnataka must get a total of  284.75 TMC ( 270 TMC allocated by the Tribunal plus 14.75 TMC).

The additional quantum allocated to Karnataka has been deducted from the share of water allocated by the ‘Tribunal’.to the State of Tamil Nadu, as only these 2 States are the major shareholders of the ‘Cauvery River Water’.

• Share of Kerala State Unchanged:

The SC has concurred with the conclusion of the Tribunal in allocating 30 TMC for the overall needs of the State of Kerala.

• Share of Puducherry State Unchanged :

The SC has stated that the allocation of water for the State of Puducherry would not require any further enhancement from its allocated share of 7 TMC..

• Reservation for Environmental ProtectionUnchanged :

The SC said that it would not go into review the assigning 10 TMC of water for ‘Environmental Protection’.

• Implementation / Monitoring of the Directions of the Award, with Modifications by the Supreme Court of India:

The Union Government of India had argued in the SC, against the ‘Appeals’ of the ‘Party States’, that as the Section 6 A of the ‘Inter-State Water Disputes Act, 1956’ has used the word ‘may’, in the matter of framing a scheme, it would be at the discretion of the ‘Central Government’ to form a ‘Scheme’ or not.

The SC has repelled the ‘Centre’s’ argument, and the Clause of the Section 6 A of the ‘Inter-State Water Disputes Act 1956  gets modified by the SC, and affirmed that ‘Framing of the Scheme’ was exclusively meant for implementation of the ‘Final Order’ / Award of the Tribunal.

The SC has emphasised and made it clear, that the ‘Scheme’ must be framed by the Union Government of India under Section 6 A of the ‘Inter-State Water Disputes Act 1956′ , in terms of the present adjudication and the recommendations / directives of the Tribunal, with regard to the monthly release and not inconsistent with anything decided by the Supreme Court of India, which are endorsed for the present and for a period of 15 years hence.

The SC has directed the Central Government of India to frame a ‘Scheme’ within a span of 6 weeks from the date of the Judgement (within 6 week from 16^th February 2018 would be on or before 29^th March 2018)

The ‘Supreme Court of India’ has made it obligatory, to clearly state that,  in view of the ‘Acute Scarcity of the Water Resources’ and the ‘intensely contested claims of the ‘Party States’, it is expected that the allocations made by the ‘Supreme Court of India’ would be utilized for the purposes earmarked and accepted and ‘No Deviancy’ should be  shown,  in carrying out the verdict of the Supreme Court of India.

• Explanation of / Guidelines for the ‘Scheme’  to be framed by the Union Government of India:

The SC has referred  to many passages from the ‘Final Order’/ Award of the Tribunal as the same must be treated as ‘Decree’ from the Supreme Court of India.

(It is notable that this point was raised by the Union Government of India’ while objecting the ‘Jurisdiction / Maintainability of the Appeals by the Party States against the ‘Final Order / Award) 

The SC has pointed out that it has been stated in Section 6 (2) of the ‘Inter-State Water Disputes Act, 1956’ to give teeth to the Award by the Tribunal, so that none of the States could raise objection to the same and be guided by the directions of the Tribunal.

(Union Government of India has not been mentioned in the list )

• Cauvery Management Board & Cauvery Water Regulation Committee:

According to the ‘Tribunal’ the Mechanism (Cauvery Management Board) for Implementation of the Tribunal’s Decisions have been quoted from the Tribunal’s  Award, in the Judgement of the SC, as given below:

“ Mechanism (Cauvery Management Board) for implementation of Tribunal’s decisions“

“The Tribunal also did devise the machinery for implementation of its final decisions/orders and in doing so, took note of Section 6A introduced in the ‘Inter-State Water Disputes Act, 1956,  by  Act 45 of 1980 with effect from 27.08.1980, empowering the Central Government to frame schemes, if any, in respect of such implementation. It also noticed the amendment to Section 6 of the Act whereby in terms of Section 6(2), the decision of the Tribunal after its publication in the Official Gazette was to have the same force as an order or decree of the Supreme Court. In this statutory background, the Tribunal was of the view that any direction to frame a scheme for the implementation of its decision would result in an anomalous situation.

However, in its view, as the Inter-State Water Disputes (Amendment) Act, 1980 did not provide for details with regard the to constitution of the machinery and its functions, it had the implied power to make recommendations in that regard for implementing its decision.

It, thus, recommended that the Cauvery Management Board be constituted on the lines of ‘Bhakra Beas Management Board’ by the Central Government.

It underlined that unless an appropriate mechanism was set up, the prospect of implementation of its decision would not be secured.

It further recommended that as its award involved regulation of supplies from various reservoirs and other important nodal points/diversion structures, it was imperative that the mechanism, ‘Cauvery Management Board’, be entrusted with the function of supervision of the operation of reservoirs and the regulation of water releases therefrom with the assistance of the ‘Cauvery Water Regulation Committee’ (to be constituted by the Board).

 It then suggested the constitution of the ‘Cauvery Management Board’, its composition, its items of business, etc. It also recommended the composition of the ‘Cauvery Water Regulatory Committee’ and outlined its functions.

‘The Cauvery Management Board’ was also required to submit an annual report to the four party-States before the 30th of September of each year.

The Tribunal prescribed guidelines for the ‘Cauvery Management Board’ which besides being exhaustive were intended to touch upon the functional details relating to the supplies out of the allocated shares.

We do not intend to state the guidelines laid down by the Tribunal as we shall be addressing to many an aspect while analyzing the concept of the scheme as envisaged under Section 6.1 of the 1956 Act;”