The Cauvery Water Dispute has been a subject of extensive discussion and analysis, with significant developments unfolding since the initial water-sharing agreement during the British colonial era. Water, being a vital resource central to human activities, often becomes a focal point of global conflicts over rights, sharing, and usage protocols. The Cauvery dispute, particularly prominent in India, has a long and tumultuous history. Despite extensive literature on the subject, its failure to pass the legal litmus test necessitates a re-examination of the core issue and the credibility of the entire premise.
Legal Foundations of the Cauvery Water Dispute: Assessing Rights
The question of who holds the rightful claim to the Cauvery waters is pivotal. If viewed as 'property,' the determination of 'entitlement' becomes crucial in defining water allocation principles. Three doctrines are central to this debate:
Harmon Doctrine: This posits that primary water rights belong to those owning land at the water's source. The logic is straightforward – owning the land where the water originates grants you rights over it, similar to owning a well in your backyard.
Historical Use: This doctrine assigns primary rights based on historical water usage, regardless of geographical location. For instance, if a neighbor has historically drawn water from your well and depends on it, they hold rights to the water despite the well being on your property. This mirrors the principles of the 'Tenancy Act,' which granted property ownership to tenants after prolonged occupation.
Hobbesian Approach: This involves rights established through negotiations and agreements between disputing parties, often mediated by an intermediary, such as Water Tribunals. However, this raises questions about the validity of agreements made long ago, especially if circumstances have since changed.
Tamil Nadu has secured favorable judgments in the dispute by leveraging the second and third points, arguing for 'prescriptive rights' based on the 1924 agreement between the princely state of Mysore and the Madras presidency. Essentially, Tamil Nadu claims a right to the water based on longstanding usage, irrespective of formal agreements or negotiations.
Karnataka, on the other hand, challenges this claim, especially during periods of water scarcity due to poor monsoon seasons.
Social Equity and Water Allocation in the Cauvery Dispute
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)
Cauvery Water Dispute: Fairness and Conflict of Interest in the Dispute
Recent developments in the Supreme Court's handling of the dispute have raised questions of fairness and conflict of interest. A judge, previously an advocate for Tamil Nadu's Chief Minister, did not recuse themselves from the case, contrary to precedents set by other Supreme Court judges.
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! Quixots I must say.
