Anil Divan Foundation

Host: Welcome back to Friend of the Court, a podcast series exploring important constitutional cases against their political and social contexts. I’m your host Raghu Karnad. In the previous episode, we looked at the origins of the century-old Cauvery dispute between Tamil Nadu and Karnataka. We saw how unequal bargaining powers in the early 1900s developed into a full-fledged crisis by the end of the century. Emotionally charged electoral politics gave new shape to old grievances. All of this prevented any resolution.

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The dispute entered a new phase in 1990 when the Supreme Court directed the centre to establish a Cauvery Water Disputes Tribunal under the Interstate River Water Disputes Act, of 1956. Any hopes of a reconciliation were dashed when the first Cauvery riots broke out in both states in 1991. The Tribunal conducted its business for 17 years even as droughts and rainfall shortages resulted in repeated  escalations, and cultural icons like actor Rajnikanth weighed in. 

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[Audio: Rajinikanth commenting on the dispute: Karnataka cinema industry protested.. Just because they protested does that mean we also have to? 40 lakh Tamil people are in Karnataka... 40 lakh. Do you know what will happen? Their property will be attacked.. And their lives will be threatened.. Instead I will go on a fast with one demand: that water should be released.]

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Host: In this episode, we follow the dispute as it makes its way through the legal system, asking one fundamental question: how can the rationalist approach of law resolve an emotional dispute over a shared natural resource? 

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Host: The Cauvery Tribunal was tackling a dispute with more than six decades of political baggage. The pre-Independence agreements that governed Cauvery water sharing came up for review in 1974. What would be the framework to replace them? 

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Karnataka wanted a complete overhaul to offset decades of asymmetrical sharing. Tamil Nadu wanted the old agreements—which were seen to be in their favour— to continue regulating the basin. But this was hardly realistic. The political economy of the river had changed drastically since the early 20th century. Where it had previously served mostly agricultural needs; the Cauvery would now also have to meet industrial and drinking water needs. By the 1990s, when the Tribunal was set up, both states had developed and urbanised to a far greater extent. 

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The three-judge Tribunal first assembled in 1990. For the next seventeen years, it gathered in its fourth-floor office in the run-down A wing of the Janpath Bhawan in Central Delhi. 

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In the only case it was assigned, the Tribunal had to decide on two important questions. First, it had to establish whether the agreements of 1892 and 1924 were valid and binding on the states. Second, it had to determine some principles of apportionment, or how to share the waters between the basin states. This meant that apart from Tamil Nadu and Karnataka, Kerala and Puducherry also became parties to the dispute.

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In 1991, as we heard in the first episode, the Tribunal passed an interim order directing Karnataka to annually release 205 thousand million cubic feet or TMC to Tamil Nadu.  While it heard the matter, this 1991 interim order would have to be followed.

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Rattled, Karnataka passed an ordinance giving itself the power to protect its irrigation interests, clearly indicating its intent to defy the tribunal's interim arrangement.  In 1993, following a drought, the Karnataka government did not release water to Tamil Nadu. Eager to cement her popularity, the first-time Chief minister of Tamil Nadu J Jayalalithaa sat on a four-day fast in protest against Karnataka.

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Jayalalithaa broke her fast after Prime Minister PV Narasimha Rao assured her that the centre would set up a mechanism to implement the Tribunal’s interim award.  Political histrionics meant little however, to the Tribunal, which had started hearing the dispute. It was not a court, but a temporary quasi-judicial body with a narrow focus. It wouldn’t deliver a judgement, like a normal court, but would record evidence and issue a report. The report would need to be enforced by the central government. Although designed as a deliberative forum, the hearings soon took an adversarial tinge. What did Tamil Nadu expect from the Tribunal? AK Ganguli, a Senior Advocate who represented the state before the Tribunal explains: 

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Ganguli: Tamil Nadu was basically insisting not exactly the quantity. That they did not specify. What they said was: there were rules of regulation attached to the operation of Krishnarajasagara which was framed under the 1924 agreement. And those rules require certain quantities of water to be discharged by Karnataka from KRS on a monthly basis from time to time. Tamil Nadu’s case was that direct Karnataka to maintain the rules of regulation and mandate them to decide that quantity from time to time and no reduction in that flow should be allowed. 

 

Host: Mohan Katarki, a senior advocate who represented Karnataka tells us about their expectations: 

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Katarki: Karnataka made a claim before the Tribunal for a large quantity of water of 465 TMC (thousand metric cube) and the total available water in the basin up to the border is 483 TMC as now estimated. So, we had to answer that what I asked for is a reasonable share, which is necessary for us to irrigate our areas with minimum water and this will not irrigate the entire (area) [unclear] like 30-40% of the Karnataka area. Then whatever remains that goes down to Tamil Nadu, which according to us, was about 80-90 TMC after adding the return flows was sufficient to meet the requirement of Tamil Nadu area, which was prevailing in the year 1910. Because they always said that we have some old irrigation, historical irrigation, prior appropriation. But that doesn't take you anywhere, you have subsequently developed a lot of areas outside the agreement yourself. And that can't be protected as a matter of principle. So, we'll have to separate between the old irrigation and the new irrigation. That was a difficult job. 

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Host: The states made their demands keeping in view their demographic, agricultural and industrial projections as well as their histories. In short, Tamil Nadu wanted to receive the 566 TMC it had been using historically. Karnataka claimed that it needed 465 TMC and could release only 80-90 TMC to Tamil Nadu. While much of this water was for agriculture, it also had in mind Bangalore, a city which was turning into India’s Silicon Valley. Put together, Tamil Nadu and Karnataka were asking for more than 1,000 TMC. But there was a problem. In a normal year, the river yielded no more than 740 TMC, according to a fact finding committee appointed by the Centre in 1974. Here is senior journalist and commentator AS Panneerselvan. 

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Panneerselvan: As a journalist, what was fascinating for me is that no state is telling any blatant lies. But no state is coming out with absolute truths. They are half comfortable truths. Therefore no state, you can actually pull them up for perjury. But no state is actually putting out all the facts on the table… the quantum of water requirement or the quantum of other person's needs. You underplay the other person's need and you inflate your own needs. And this half truth issue comes up because in Tamil Nadu, while it keeps talking about the huge land, which is under the irrigation using the Cauvery basin,(but) we don't recognise the fact that Karnataka got some of the space under the Cauvery basin much later. Are we going to say that others should not plan anything after 1924? Should 1924 become a period in which development should be frozen? That's the argument for Tamil Nadu. The argument for Karnataka is that Karnataka is not taking into account other demands on the Cauvery basin, like the industrial use in Tamil Nadu.

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Host: As Panneerselvan tells us, it hardly made sense to expect both states to maintain the same levels of industry and agriculture that existed in 1924. Tamil Nadu’s demand that the 1924 agreement remain binding, was looking increasingly untenable. At the same time, Karnataka’s stand that as an upstream territory, it had a greater right to harness the river, was incompatible with resource sharing in a federal system. This set the stage for some unprecedented scenes before the Tribunal. Ganguli again:

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Ganguli: This is something very unique, it has not happened in India before. This was the first time a Tribunal undertook a trial on very complicated issues. On subjects which are not familiar, I mean, lawyers are not familiar, judges are not (familiar on) highly technical subjects.

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Host: As it came down to the hearings, lined up on each side, were stalwarts arguing the case: Fali Nariman and Anil Divan for Karnataka, and K Parasaran and CS Vaidyanathan for Tamil Nadu. Technical experts and lawyers would huddle for hours chalking out strategy. But in a case like this, lawyers had to move beyond mere texts and investigate real, lived contexts. Divan and his colleagues travelled along the river, to examine what it meant to people’s livelihoods. Sitting ministers too, often wanted to participate in preparations. But Divan, who was wary of political interference, would only give them brief updates. 

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Though a Tribunal is not, strictly speaking a court, lawyers like Ganguli, often used the word “trial” in describing the proceedings before it. The most trial-like feature of the tribunal was the production of expert witnesses. Karnataka’s veteran lawyer Sharad Javali sums up:

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Javali: Water Disputes Tribunal will examine the respective claims of states and cast the burden on the states to establish the requirements and examination of witnesses. You call experts and place your part of the case for appreciation by the Tribunal… Judges would appreciate whatever evidence is placed before them. 

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Host: Typically in trials, expert witnesses are examined to tender their opinions in their field of expertise. In this case, almost all the facts themselves were in dispute. How much water flows through the river in a year? How much is lost to evaporation? To what extent can groundwater be counted while allocating shares? The answers depended on whom you were asking. Both states also often relied on different versions of facts to make their outsized claims. Senior lawyers turned into archival detectives, digging out old records, dusty tomes and revenue documents from libraries across India and abroad. One major contested question was: how much land was historically under cultivation by Tamil Nadu? Was the state exaggerating that figure to justify its claims? This led to a spirited paper chase for Karnataka’s lawyers that ended with Divan triumphantly locating the dusty records in Connemara Library in Chennai. Katarki tells us: 

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Kataraki: Tamil Nadu’s main case was: we had large irrigation historically developed, and that can't be now cut down or reduced, because you have become capable of using water because of the high technology, high dam technology. If that is done, then the entire sector’s economy - in about 20 lakh acres - in delta will have to be [unclear]. And that will completely lead to migration, dislocation, what not. So that is a scary question, which Tamil Nadu always used to argue. So, the whole effort was to save that, but also to know what was that actual area, the Madras had cultivated. Because Madras had deviated from the agreement itself and cultivated large areas after 1950. So the question came up, what is the area that existed in 1910 which was existing? Their main witness Mohankrishnan had said something, but that was not consistent with certain evidence available on record.  So the inquiry started, how to go about? Then we started digging. Once Divan happened to go to Madras, for some other case to appear before the high court, then he had spare time. And then he went down to the Connemara library, one of the old libraries in Madras where the government documents, books, materials are kept. And he was able to find out that they have the Madras administrative reports from 1880 to 1947-50. 

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Host: But some volumes were missing, or incomplete, and the staff was not very cooperative, according to Katarki. The hunt continued at the National Library in Kolkata. Sixty volumes of Madras administrative reports were found and photocopied. Katarki again: 

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Katarki: And we've to scan through that and find out exactly what the area was. And whether the witnesses is trying to mislead on these aspects, and Divan fairly succeeded in showing that, at least about two to three lakh acres has been exaggerated by the state of Tamil Nadu. And that's how he not only reduced the area, he was able to make a dent into the credibility of a witness that had not been able to give fair facts of the material. 

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Host: The workload was equally divided between Divan and Fali Nariman. Divan, who was renowned for his cross-examination skills, tackled the more obscure technical points, and tried to trip up witnesses on diverging facts and figures. Nariman took on the mantle of arguing the constitutional principles. Barring one notable exception; Nariman examined Tamil Nadu’s star witness. 

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MS Swaminathan had spent decades as a leading agricultural scientist and spearheaded the green revolution that pulled India out of food scarcity. By the time he came before the Tribunal as witness number 4, his work on high-yielding wheat varieties had won him a string of international honours. Through his evidence concerning rice, a water-heavy crop, the state hoped to make a case for why it deserved a larger share of water. He said that the monsoon in the basin of Tamil Nadu was unreliable and that water shortages meant the state was unable to meet its rice production needs. However, under cross-examination, Swaminathan appeared to agree with some of the points made by Karnataka’s lawyers. When Karnataka produced a government report that stated that rice could be grown judiciously in areas with scanty rainfall, Swaminathan admitted that this was true. When asked whether cropping patterns in both states ought to be planned according to the monsoons, he had to agree again. Ganguli tells us more about his cross examination: 

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Ganguli: Swaminathan came to the box to depose that: going by the agro-climatic conditions particularly the you know, sandy clay - silty nature of the soil, conditions of the delta etc, ideal for crop growing is only rice. And this is a sequence which must be followed. And it has been followed for ages and he proved scientifically that this is the correct thing to do....But Swaminathan was put to a bit of embarrassment by Mr. Nariman.. What he did to Dr. Swaminathan would confront him with figures given by the agriculture department and irrigation department or water resources Department, etc. And he will confront Dr Swamination, look your figures don't match with this figure of that figure or even the revenue figure. So, Swaminathan was upset, he was not the creator of the figures, figures were given by the government. He was proposing only his scientific theory whatever he wanted, but he was upset on day one… He said what has happened, you know. The state has given a wrong…I was counsel so, I realised what has happened to him. So I told him which state has data which are consistent between one department and another department? None in the whole country. You go to any other city, and I told him that is this something new that you don't know? You know, the whole of the country what is the practice in government. Come to the central government, the agriculture ministry would not agree with the revenue ministry. So anyway he was successful in proving what he wanted to say.

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Host: Mismatched data between departments may have been responsible for some inconsistencies. But given so many versions of the truth, conciliation was elusive. Inside the Tribunal, hearings turned adversarial, reflecting the heightened tensions building outside whether it was politics or the arrival of the monsoons. Rains threatened to fail several times in the 1990s, which would have made it difficult for Karnataka to release water to Tamil Nadu. But each time, late rainfall, as Frontline magazine reported, “invariably saved both the kuruvai crops and the situation for Karnataka before the Supreme Court”. In 2002, however, the rains weren't late. They just never came. This triggered another episode of intense political drama. 

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Host: Hit by drought, Karnataka stopped releasing the monthly quota of  water downstream. They claimed there was simply not enough. Eventually, the Supreme Court ordered them to release 1.25 TMC of water daily. Senior journalist and author Sugata Srinivasaraju tells us what followed.

 

Srinivasaraju: In 2002, Supreme Court gets involved and there is a contempt case because he's decided not to release the water. Krishna even holds a Padayatra from Bangalore via Mandya and all those regions, and he is focused on the 2004 elections. 

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Host: Karnataka chief minister SM Krishna, eager to score political points with the Vokkaligas and farmers of South Karnataka was brazen enough to defy the Supreme Court and even risk jail time. Across the border a gleeful Jayalalitha sent her officials to personally serve the contempt notice in Krishna’s mailbox. She also boycotted meetings of the Cauvery River Authority, the body responsible for implementing the interim order. She claimed that this body, led by the Prime minister, was biased against Tamil Nadu.  Krishna later buckled, ordered the release of the water, and apologised to the court, escaping penalty. As usual, the Cauvery continued to exact political costs and test federal mechanisms. The Tribunal eventually gave its decision in 2007, amidst tight security in both states. 

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[News clip] 

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Karnataka is feeling short changed as it will now have to release over 10 TMC more water than it does currently for Tamil Nadu. Of the 740 TMC that flows annually in the Cauvery river, Tamil Nadu is now entitled to 419 TMC feet; Karnataka gets 270 TMC feet- less than half of what it had originally demanded; Kerala has been awarded 30 and Puducherry 7.

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Host: The Tribunal held that the water sharing arrangement of 1924 would no longer be binding on the states. In the final allocation, both Tamil Nadu and Karnataka received much less than what they had asked for. Crucially, it allocated only a small portion to meet Bangalore’s water requirements. The Tribunal arrived at its formulation by finding a middle ground between the two positions. It introduced the principle of equitable apportionment, a doctrine that entitles all areas along the river a fair share. But, what counts as fair? The Tribunal examined the contesting claims through the various ways in which the river was being used. It looked at hydrological and geographical factors such as soil, rainfall and crop patterns. It also assessed demographics to understand the different pressures on the river. It then arrived at a formula with inputs from its own technical advisors. But with growing scarcity and unreliable climate patterns, was a purely mathematical formula enough? Panneerselvan tells us more. 

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Panneerselvan: It cannot be mathematical. It has to be an enduring formula. An enduring formula which is being sold to both the farmers of Karnataka and the farmers of Tamil Nadu saying that if the nature is going to be cruel, in a particular year, let's share the distress. Okay. Both of us can reduce our requirements by 50%. Or both of us can reduce our share by 70%. But that one is not being embedded within the agreement, or with the awards. There are two agreements and two awards, and neither the agreements nor awards have any formula for distress. That's a reason courts are not able to implement these things.

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Host: Sometimes, the injury is caused not by the parties involved but by the vagaries of nature. In the 17 years that the Tribunal heard the issue, the Cauvery basin had experienced intense rainfall shortages, spurring many outbreaks of violence. During droughts, the Tribunal’s decision only called for “proportional reductions”, without specifying what that would mean. It left these details to the Cauvery River Management Board, a body for the day-to-day regulation of the river. 

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With the Tribunal’s business done, it was now up to the centre to enforce the decision. In the Lok Sabha, an aggrieved Ananth Kumar, the MP of South Bangalore requested the government not to take the Tribunal’s decision forward, as he claimed, it reinforced old injustices. To calm tempers in the state, the Karnataka government took the unprecedented step of filing a Special Leave Petition in the Supreme Court. As we saw in the previous episode the River Disputes Act explicitly restricted judicial intervention in such cases. Despite that, how could Karnataka take this extraordinary step? And what convinced them that they had a case? Katarki tells us. 

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Katarki: You cannot have two Supreme Courts in India. One is the Supreme Court for all other disputes, and one Tribunal as a final court for only water disputes. That kind of a scheme of things under the Constitution is not permissible. So the Supreme Court has the one Supreme Court and this Supreme Court and necessarily that means or it follows that the judgement of the Tribunal is amenable to correction by the Supreme Court. So that argument we carried forward very vigorously. Secondly, even if the Supreme Court interferes on what ground it is to interfere? Will it sit as an appellate court or will it only exercise supervisory jurisdiction of correcting the legal errors? If it is a simple legal error, then we will not get much of the benefit of which we have been claiming. So we had a tough time in formulating the questions, the questions of fact, to be shaped as a legal question, or some kind of a semi-legal question, question of law and fact. (unclear)So on that Divan spent considerable time and research with regard to the jurisdiction. Finally we were able to prepare a very convincing argument at the stage of admission, that the Supreme Court not only has a jurisdiction, it certainly has a jurisdiction to go into the facts of the case. 

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Host: Tamil Nadu and Kerala also filed petitions, contesting the Tribunal’s decision. Despite being at loggerheads, the three states agreed on one thing: the Supreme Court needed to intervene. But the court showed no urgency to hear arguments, and as the years rolled on, the issue was only addressed when a crisis came around. It took six years and an order of the Supreme Court in 2013 before the central government moved to implement the Tribunal’s water-sharing formula. But the court stopped short of setting up a permanent river management board. It instead directed the setting up of a temporary body to oversee water sharing. Political ecologist Srinivas Chokkakula, a member of the Drafting Committee of India’s National Water Policy explains why court-driven implementation is not ideal.

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Chokkakula: So the question of, whether a CWMA kind of institution, which did not include any process of consensus building, but rather, you know, created through a fiat from the Supreme Court is where the fundamental, you know, I think there is a bit of a disconnect between the conception of creating interstate institutions. Earlier, we say we were creating interstate institutions as an outcome of legal adjudication. I think there has been a disconnect. You know, the Supreme Court did not ask for any kind of consensus between these party states. 

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Host: The issue of implementation came up again in 2016, during another drought year. The Supreme Court ordered Karnataka to release water to Tamil Nadu. Violence and arson erupted in Karnataka. Buses were burnt in Bangalore, businesses were attacked, and even a statue of a Tamil poet had to be provided security. Across the border, sporadic protests and violence also broke out. As the appeals were pending, the central government also raised a more fundamental issue: did the court have any basis to intervene in a river dispute? 

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[News Clip]

Sarkar ka ye bhi kehna tha ki abhi ispar sunwayi mat kijiye, sansad isko dekh legi

 

Host: The Central government was arguing that Article 262 restricted the Supreme Court’s jurisdiction. The court responded creatively. A bench headed by Justice Dipak Misra reasoned that the River Disputes Act did not interfere with the Supreme Court’s status as the highest court of appeals. It concluded that the Act restricted the court from deciding an original interstate dispute or if a dispute were brought to it in the first instance. However, once the dispute was decided by a Tribunal, it could no longer be considered an “original dispute”. This freed up the court to hear appeals against decisions made by water disputes tribunals. Having expanded its scope in order to hear the challenges, the Court now had to determine the fairness of the approach followed by the Tribunal. 

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[News clip] 

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 The Supreme Court has ruled in favour of Karnataka in the Cauvery water dispute case. According to the verdict, Tamil Nadu’s share of water from the Cauvery river has been reduced. It will now get only 177 TMC or thousand million cubic feet of water. Earlier it was getting 192. Karnataka will now get 294 TMC instead of the 272 TMC it was getting to date.

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Host: In its final verdict in 2018, the court didn’t stray very far from the Tribunal’s decision. It accepted the Tribunal’s approach to the dispute but went even further in interpreting equitable apportionment. It privileged drinking water requirements over other purposes. It also took into account the 10 TMC of groundwater available in Tamil Nadu that could compensate for water from the river. This led the court to reduce Tamil Nadu’s share to be received from Karnataka to 177 TMC. It also ruled that the Cauvery would have to meet the water needs of the whole of Bangalore.

  

But the legacy of the Cauvery judgement is far deeper. It reiterated that transboundary rivers are a national asset and no single state can claim their ownership. It broke new ground in constitutional practice, by carving a role for itself in a new jurisdiction. In the years since, three other decisions by the Krishna, Vamsadhara and Mahadayi Tribunals have been challenged as well. Legal experts we spoke to were divided on the court’s involvement in this dispute. For some, like Lahiri, it left no ambiguity about the fact that the Supreme Court is the highest judicial body in the country. For others, it opened up the potential for more adversarial proceedings and prolonged river disputes. Srinivas Chokkakula, the political ecologist we heard from earlier, tells us more. 

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Chokkakula: I think that is where I consider the Supreme Court's amenability, particularly the decision that was given in 2017, by Supreme Court modifying the Cauvery Water Disputes Tribunal award, and its justification of plenary jurisdiction by the Supreme Court is flawed. In my view, it is flawed and it opens the gate for extended litigations, incurring huge costs, both political, social as well as economic costs. So I think that is partly the intent of Article 262’s framing is to ensure that there is finality and , and also to avoid perpetual, if not prolonged, litigation. That was the intent for framing of Article 262, in my view, and that has been interpreted and for the first time as a kind of departure from the earlier interpretations of the Supreme Court saying that it has to jurisdiction, plenary jurisdiction under Article 136. I think it is flawed, in my view. So, it is the respect of coming to the questions about supremacy of the Supreme Court, it is basically opening up, avenues for extended litigations.

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Host: The impact of the judgement specifically on the Cauvery dispute remains to be seen. The basin has had good rainfall since the establishment of the implementing body, the Cauvery River Management Board in 2018. But the issue is threatening to flare up again as Karnataka prepares to build a dam at Mekedatu near its border with Tamil Nadu. KK Lahiri, a water disputes lawyer and the author of a book on the River Disputes Act reflects. 

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Lahiri: These are all battles of great national importance. And with each passing year, each passing decade, water disputes are going to get more and more frequent, more and more vitriolic. And unless we find solutions… It's going to become a reality, climate change is here, monsoon is decreasing particularly over central India and other parts. We are going to have less precipitation, we are going to have increased extreme events. And water is going to become scarcer and scarcer, you're genuinely going to have problems. We must have a smoother way of sorting out these disputes… Federal disputes relating to water can never be sorted out by strict legalism. It is a human problem. It is a human issue. Strict legalism is very cut and dried. It is too much like the goddess of justice with a blindfold holding a pair of scales in a hand. In a water dispute (or)  any matter where there is a huge human element, strict legalism can never work. 

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Host: Although Chokkakula and Lahiri are sceptical of judicial intervention in water disputes, the judgement itself was received with a refreshing absence of violence in either Tamil Nadu or Karnataka. While Karnataka was celebrating a verdict seen to be in its favour, there was an air of conciliation in Tamil Nadu. Here’s actor Kamal Haasan capturing the mood in the state on the day of the verdict. 

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<Audio: Kamal Haasan talking about the need to take care of resources and maintain amity between the two states: I think the Supreme Court has firmly said that water cannot be owned by either state.. It belongs to everyone. That  is a consoling factor. Yes we have received 14.5 TMC less than before.. But there are various reasons they are talking about.. They have done their due diligence and granted both the states this kind of apportionment this way… But I think now, instead of letting politicians meddle with this for their votes, we should be careful and see that amity is maintained between the two states and Tamil farmers should think about conserving water and the people should also work hand in hand to see how we can conserve the water.>

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Host: As the actor says, Tamil Nadu was happy with the court affirming the principle that rivers do not belong to any one state. The Supreme Court’s intervention illuminated an often overlooked aspect of legal decisions: their rhetorical value. Supreme Court judgments are also an exercise in persuasion. By upholding transboundary rivers as national assets, the court was persuading the states that rivers cannot be treated as property belonging to one particular ethnic group or state. This could not have come at a more opportune moment. ​​With intense scarcity and climate change looming, water wars are only bound to escalate. The court’s assertion of its own role was also an act of conveying that the constitutional design keeping the highest court out of water disputes had been flawed. After all, they concern much larger political and emotional questions which strike at the heart of the nation’s unity.