The legal basis to the Cauvery water dispute: Who is right?
If Cauvery was to be seen as a ‘property’ who could claim ownership? Because ‘entitlement’ then decides ‘rights’ over property which would then define principles of water allocations. This seems to be at the heart of the dispute and there are 3 doctrines that come into picture
- Harmon – as per harmon doctrine the primary rights of water are bestowed on those who own the land at the source of water. It is a fairly simple and straightforward logic – you own the water and the well in your own backyard even if the neighbors come daily to draw water from it.
- History – this confers primary rights to historical uses of water irrespective of geographical location. In simple terms it means if your neighbor has been using water from your well since ages and is dependent on it, then he has the right over water even though the well is in your property. This ‘deemed’ right has uncanny semblance to the ’Tenancy Act’ (which was amended subsequently by SC) which entitled the tenant to be owner of the property if he occupied it for 12 years or more.
- Hobbes - this doctrine identifies right obtained through negotiations and agreement between disputing parties through a intermediary. The Water Tribunals were constituted to solve the problem based on this principle. But there is a caveat here - if both parties sat and agreed to sharing water earlier (say 100 years back) do both parties still ‘honour’ it, even of ground situation has changed now?
Karnataka on its part says that its neighbor should not raise a claim whenever there is deficit of water due to poor monsoon.
Social equity of water use?
The global standard for water allocation which is the water footprint assessment should have ideally been applied by the tribunal before awarding the quantum of water in the Cauvery Water Dispute. It did not because such a scrutiny would have taken into account whether water use for crop grown in the delta region was environmentally sustainable and resource efficient. Hard questions would have been raised like - Has the Tamil Nadu water footprint come down due to any measure of resource efficiency (like the cubic meters of water required to produce a ton of paddy or ragi) by which it can claim its historical right of water in changed situation? If you grow water guzzling crop and still demand water irrespective of availability how can it be equitably allocated is the moot point
It is clear that the Hobbes (Pt. 3) model of negotiations is failing in the Cauvery Water Dispute because Karnataka is not ready to accept historical models and outdated doctrines when it is facing a harsh reality on ground. If Karnataka was a late starter in irrigation development of its area of the Cauvery basin does it have to be at a disadvantage in appropriating water because the neighbor has historically used more water due to better irrigation in its territory? Is the Tribunal justified in awarding a simple average based allocation (arithmetic hydrology as it is called) or is it simply a disaster waiting to happen (as evident from the imminent clash between legislature and judiciary)
Is fair play involved?
One of the Judges in the recent SC order had a ‘conflict of interest’ and should have recused from the Cauvery Water Dispute case, a precedent set by other SC judges earlier but did not. This means that the judge who had represented TN chief minister Jayalaltha earlier as advocate could have been swayed by other considerations while passing the order
The Tribunal (CWDT) was itself in conflict without a unanimous decision on the verdict. It is reported that there was a division among the 2 members and chairman before awarding 27 tmcft of water. It also counts 1/3rd of Bangalore to fall in the Cauvery basin and drinking water to be allocated only to that area!