Events & Issues

New Delhi, 23 February 2018

Water Sharing

PRINCIPLES TO REPLACE POLITICS

By Dr. S.Saraswathi

(Former Director, ICSSR, New Delhi)

The much awaited judgement of the Supreme Court on Cauvery water has given a ruling of far reaching significance that water is a national resource and does not belong to anyone in particular. Besides resolving the on-going dispute between Tamil Nadu and Karnataka, it has   laid down certain general principles to govern water sharing between States.

The Court has clarified that “being in a state of flow, no State can claim exclusive ownership of such waters or assert a prescriptive right so as to deprive the other States of their equitable share”. It is a common and joint resource of all through whose land it flows. Equality here is not based on arithmetical calculation. It means “equal consideration and equal economic opportunity of the co-basin States”.

The judgement has to be received as a model settlement of inter-State water disputes and not restricted to litigants in this case. No settlement of this nature normally satisfies all the claimants fully and the present one is no exception.

The Chief Ministers of both Karnataka and Tamil Nadu have reason to be unhappy – the former over setting up of Cauvery Management Board within six weeks and the latter over reduction of its share of water awarded by the last Board. At the same time, Karnataka is happy over increase of its share fixed by the Board while Tamil Nadu rejoices over declaration of inter-State rivers as common resource.

The Supreme Court has now granted 14.75 tmc ft (thousand million cubic feet) of Cauvery water to Karnataka from the share of Tamil Nadu as determined by the earlier Cauvery Dispute Tribunal. The basis for this transfer is that Karnataka has been historically suffering “limited access to and use of” the river water.

The court stated that the needs of the “burgeoning and global Bengaluru city was somehow ignored” in the Tribunal’s Award and pointed to the untapped ground water available in Tamil Nadu which would go waste if not extracted. Tamil Nadu maintained that ground water was already over-exploited and the quantum of water was depleting.

The verdict may be a shocking disappointment to Tamil Nadu government. Political parties playing a never-ending water politics have found a platform to join hands. However, none can overlook the guiding principles given by the Court.  Absence of nationally accepted principles of sharing river water has been a reason behind frequent outbreak of serious law and order problems in Karnataka and Tamil Nadu.

Setting up of a Cauvery Board would have the effect of reducing Karnataka’s near total control over the reservoirs and dams in the Cauvery basin. All along acting like masters of the Cauvery water, it is difficult for the State to accept that the river is a national resource over which all the riparian States have equal rights. Politically, it is a big blow that the State can ill afford in an election year.

The National Water Policy was first adopted in 1987, and was revised in 2002 and 2012. The emphasis in the policy of 2012 is to treat water as a “common good” and entrust its conservation and promotion of efficient use to the Ministry. This policy also deleted the provision for fixing priorities in water allocation made in earlier water policies.

The Policy introduced integrated perspective catering to local, regional, State, and national interests instead of exclusively national or any one perspective. It also recognised the need for a comprehensive legislation for optimum development of inter-State rivers and river valleys, and for enabling authorities with appropriate powers to plan, manage, and regulate utilisation of water resources in the basin.

Water law in India is mostly State-based. States have exclusive power to regulate water supplies, irrigation and canals, drainage and embankments, storage, hydro-power and fisheries. There are multiplicity of rules and principles, and multiplicity of instruments governing use of water, but there is no over-all framework. It was nearly one and a half centuries back in 1873, law-making on water started, but till date, no satisfactory legal solution has been found for sharing inter-State river water. This subject is loaded with political interests.

To rectify the gap, the National Water Framework Bill was introduced in Parliament in 2016.  It is based on certain principles that must underlie water laws so as to protect genuine needs of all users.  It recognises that all basin States have equitable rights over use of river water provided it does not deprive anyone in the river basin of the right to water for life.

The principle that primary use of water is for drinking and that it cannot be made subservient to any other use of water like irrigation was already given by the Supreme Court. The court has unambiguously stated that “the right to use water for domestic purpose would prevail over other needs”.  This principle is presently repeated more vigorously by the Bench stating that, “drinking water requirement of the over-all population of all the States has to be placed on a high pedestal as we treat it as a hierarchically fundamental principle of equitable distribution”.

The Framework Bill has categorically asserted: “States must recognise the principle that the rivers are public trustees and not owned by the basin States”. All the basin States have equal rights and status with no hierarchy of rights meaning “equitable shares” in the quantum of river water. It provides for establishment of institutional arrangements to deal with inter-State water disputes through negotiations, mediation, and conciliation.

The Framework Bill was opposed by Punjab and Tamil Nadu while Rajasthan and Madhya Pradesh expressed agreement with some amendments.

The present court verdict looks like application of the internationally accepted Helsinki Rules (1966) for sharing of international river water, which led to the adoption of UN Convention on the Law of Non-Navigational Uses of International Water Courses which was superseded in 2004 by Berlin Rules on Water Resources.

Helsinki Rules laid down the criteria for equitable share as geography, hydrology, and climate of the river basin, past and present utilisation of water, economic and social needs of the State, population dependent on the water, availability and comparative costs of alternative means of tapping water, and wastage in utilisation of the water. The Rules preclude any inherent preference for any particular use. Denial to one party on the basis of possible need or use by another in future is prohibited. All these have been taken into account by the authorities handling water disputes in India.

However, no amount of reasoning will work if parties to the dispute are unwilling to adhere to equity and fairness or to seek a solution for the benefit of all concerned. Federalism, meaning Union-State and inter-State relations, and inter-party rivalries underlie the disgusting phenomenon of neighbouring States of a nation fighting bitterly for a common resource instead of putting their heads together to share that resource. State borders are not for restricting our interests and loyalty within the borders and look upon those beyond as our enemies.   

Fighting for Cauvery water has become unavoidable for political career. The nation has failed to cultivate a strong feeling of Indianness transcending linguistic and territorial affinities. It is high time that we replace politics with principles. ---INFA

(Copyright, India News & Feature Alliance)

New Delhi

21 February 2018