LEGAL ISSUE: Apportionment of water from the Cauvery River among Karnataka, Tamil Nadu, Kerala, and Puducherry.
CASE TYPE: Inter-State Water Dispute
Case Name: The State of Karnataka by its Chief Secretary vs. State of Tamil Nadu by its Chief Secretary & Ors.
Judgment Date: 16 February 2018
Introduction
Date of the Judgment: 16 February 2018
Citation: (2018) INSC 123
Judges: Dipak Misra, CJI, Amitava Roy, J., A.M. Khanwilkar, J.
Can the Supreme Court modify an award passed by the Cauvery Water Disputes Tribunal? The Supreme Court of India recently addressed this long-standing dispute, modifying the Tribunal’s award regarding the sharing of water from the Cauvery River. This case involved appeals from Karnataka, Tamil Nadu, and Kerala, each contesting the Tribunal’s allocation of water. The judgment is authored by Dipak Misra, CJI, with a bench comprising Justices Amitava Roy and A.M. Khanwilkar.
Case Background
The Cauvery water dispute is a long-standing issue between Karnataka and Tamil Nadu, with Kerala and Puducherry also involved. The dispute centers on the sharing of water from the Cauvery River. The State of Tamil Nadu filed a complaint requesting for adjudication of the same by a Tribunal constituted under Section 3 of the Inter-State Water Disputes Act, 1956. The main contention of Tamil Nadu was that the executive action of Karnataka in constructing dams and expanding its ayacuts had materially diminished the supply of water to Tamil Nadu, violating the 1892 and 1924 agreements.
Timeline
| Date | Event |
|---|---|
| 1892 | First agreement between Madras Presidency and State of Mysore. |
| 18 February 1924 | Second agreement between Madras Presidency and State of Mysore. |
| 1934 | Mettur reservoir became operational. |
| 1947 | Indian Independence Act came into force. |
| 1956 | States Reorganisation Act came into force and new State of Mysore formed. |
| 6 July 1986 | State of Tamil Nadu lodged a request before the Government of India raising a water dispute. |
| 2 June 1990 | Central Government constituted the Cauvery Water Disputes Tribunal. |
| 25 July 1991 | State of Karnataka promulgated an Ordinance to negate the interim order of the Tribunal. |
| 27 July 1991 | President of India referred questions for opinion of the Supreme Court under Article 143. |
| 11 August 1998 | Central Government framed a scheme titled “The Cauvery Water (Implementation of the Interim Order of 1991 and all subsequent Related Orders of the Tribunal) Scheme, 1998. |
| 5 February 2007 | Cauvery Water Disputes Tribunal passed its final award. |
| 19 February 2013 | Tribunal’s award published by requisite notification. |
| 16 February 2018 | Supreme Court modifies the Tribunal’s award. |
Legal Framework
The core legal framework for this case is the Inter-State Water Disputes Act, 1956. Section 3 of the Act allows a State to request the Central Government to refer a water dispute to a Tribunal for adjudication. Section 5 deals with the reference of the dispute to the Tribunal. Section 6(2) of the Act states that the decision of the Tribunal shall have the same force as an order or decree of the Supreme Court. Section 6A empowers the Central Government to frame schemes to implement the decision of the Tribunal.
Arguments
Karnataka’s Arguments:
- Karnataka argued that the 1892 and 1924 agreements were unfair and unconscionable due to the unequal status of the parties involved, and that the agreements lapsed after 1974.
- Karnataka contended that the Tribunal failed to consider its needs and the drought-prone areas within its territory.
- Karnataka also argued that the Tribunal wrongly relied on the affidavit (Ext. 1665) filed by Tamil Nadu.
- Karnataka submitted that the principle of equitable apportionment has to be based on the needs of the States rather than the flow of the river.
- Karnataka also submitted that the Tribunal had incorrectly rejected all lift irrigation schemes.
Tamil Nadu’s Arguments:
- Tamil Nadu argued that the 1892 and 1924 agreements recognized and protected its prescriptive rights over the Cauvery waters.
- Tamil Nadu contended that Karnataka violated the agreements by constructing dams and expanding its ayacuts without consent, diminishing water supply to Tamil Nadu.
- Tamil Nadu also argued that the Tribunal’s allocation of water was appropriate and based on sound principles.
- Tamil Nadu submitted that the agreements were valid and binding even after the Indian Independence Act, 1947.
- Tamil Nadu also argued that the Tribunal had correctly assessed the crop water requirements in the State and that the same was not excessive.
Kerala’s Arguments:
- Kerala argued that it was not a party to the 1892 and 1924 agreements and should not be bound by them.
- Kerala contended that it contributes a significant portion of the Cauvery’s water and should be given a greater share.
- Kerala also argued that the Tribunal wrongly rejected its claim for trans-basin diversion of water for hydro-power generation.
Puducherry’s Arguments:
- Puducherry contended that its Karaikal region was dependent on the Cauvery water and that it should be allocated sufficient water to meet its needs.
- Puducherry also argued that it had no ground water resources and was completely dependent on surface water.
Issues Framed by the Supreme Court
The Supreme Court addressed several key issues, including:
- Whether the 1892 and 1924 agreements were valid and binding.
- Whether the Tribunal’s award was in line with principles of equitable apportionment.
- Whether the Tribunal had correctly assessed the water requirements of the States.
- Whether the Tribunal’s rejection of trans-basin diversion for Kerala was justified.
- Whether the Tribunal’s decision to exclude ground water as a source of water was correct.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Reasoning |
|---|---|---|
| Validity of 1892 & 1924 Agreements | Agreements valid but expired in 1974 | Agreements were not unconscionable but the 1924 Agreement had a fixed term of 50 years. |
| Equitable Apportionment | Modified Tribunal’s award to include ground water and domestic water needs of Bengaluru. | The Tribunal did not consider the availability of 20 TMC of ground water in Tamil Nadu and did not appropriately address the domestic water needs of Bengaluru. |
| Water Requirements | Partially modified the Tribunal’s allocation to account for ground water and the domestic water needs of Bengaluru. | The Tribunal’s assessment was largely upheld, but adjustments were made for ground water and the domestic water needs of Bengaluru. |
| Trans-basin Diversion | Tribunal’s rejection upheld. | Trans-basin diversion was rejected as it would affect the availability of water for the other riparian states. |
| Ground Water | Ground water recognized as a source, with 10 TMC accounted for in Tamil Nadu’s allocation. | The Tribunal had erroneously not considered ground water as an additional source of water. |
Authorities
| Authority | Court/Author | How Used | Legal Point |
|---|---|---|---|
| State of Kansas v. State of Colorado | Supreme Court of the United States | Cited to establish the principle of equality of rights among states. | Equitable Apportionment |
| State of Wyoming v. State of Colorado | Supreme Court of the United States | Cited to show that a reasonable view is that a fairly constant and dependable flow may be obtained by reservoirs. | Dependable Yield |
| State of Nebraska v. State of Wyoming | Supreme Court of the United States | Cited to show that strict adherence to the priority rule may not be possible for equitable allocation. | Prior Use |
| State of New Jersey v. State of New York | Supreme Court of the United States | Cited to show that a river is a treasure and the competing riparian states have real and substantial interests in it. | Equitable Apportionment |
| Helsinki Rules, 1966 | International Law Association | Cited to show that the Harmon doctrine had been rejected and emphasis was laid on equitable utilization of international rivers. | Equitable Apportionment |
| Campione Consolidation of the ILA Rules on International Water Resources 1966-1999 | International Law Association | Cited to highlight the inclusion of water of an aquifer as international ground water. | Ground Water |
| Berlin Rules | International Law Association | Cited to show that basin states would manage the waters of an international drainage basin in an equitable and reasonable manner. | Equitable Apportionment |
| National Water Policy of 1987 and 2002 | Government of India | Cited to show that water is a prime natural resource, a basic human need and a precious national asset. | Water Resources Management |
| Section 3 of the Inter-State Water Disputes Act, 1956 | Parliament of India | Cited to highlight the provision for a State to request the Central Government to refer a water dispute to a Tribunal. | Legal Framework |
| Section 5 of the Inter-State Water Disputes Act, 1956 | Parliament of India | Cited to highlight the provision for reference of the dispute to the Tribunal. | Legal Framework |
| Section 6(2) of the Inter-State Water Disputes Act, 1956 | Parliament of India | Cited to highlight that the decision of the Tribunal shall have the same force as an order or decree of the Supreme Court. | Legal Framework |
| Section 6A of the Inter-State Water Disputes Act, 1956 | Parliament of India | Cited to highlight that the Central Government is empowered to frame schemes to implement the decision of the Tribunal. | Legal Framework |
Judgment
The Supreme Court, after considering all the arguments and evidence, modified the Tribunal’s award. The Court held that the 1892 and 1924 agreements were valid but had expired in 1974. The Court also recognized the need for equitable apportionment, taking into account the needs of all the states involved. The Court also took into account the availability of ground water in Tamil Nadu and the domestic water needs of Bengaluru city.
| Submission | Court’s Treatment |
|---|---|
| Karnataka’s claim that the 1892 and 1924 agreements were unconscionable. | Rejected. The court held that the agreements were valid and that the State of Karnataka did not denounce the same. |
| Karnataka’s claim based on the doctrine of paramountcy. | Rejected. The court held that the doctrine of paramountcy had no application after the 1947 Act. |
| Karnataka’s argument that the agreements lapsed after 1974. | Partially Accepted. The court held that the 1924 agreement had expired after 50 years, but the obligations of the agreement still continued. |
| Karnataka’s claim that the Tribunal had not considered its needs. | Partially Accepted. The court held that the Tribunal had not considered the domestic water needs of Bengaluru. |
| Tamil Nadu’s claim that the agreements protected its prescriptive rights. | Partially Accepted. The court held that the agreements were relevant but that the principle of equitable apportionment had to be applied. |
| Tamil Nadu’s claim that Karnataka had violated the agreements. | Not Addressed. The court held that the violations were a matter of history and were not relevant for the present dispute. |
| Kerala’s claim for trans-basin diversion. | Rejected. The court held that the trans-basin diversion was not permissible in a water deficient basin. |
| Puducherry’s claim for an increased share of water. | Partially Accepted. The court upheld the Tribunal’s allocation of 7 TMC. |
| Authority | Court’s View |
|---|---|
| State of Kansas v. State of Colorado | Cited to establish the principle of equality of rights among states. |
| State of Wyoming v. State of Colorado | Cited to show that a reasonable view is that a fairly constant and dependable flow may be obtained by reservoirs. |
| State of Nebraska v. State of Wyoming | Cited to show that strict adherence to the priority rule may not be possible for equitable allocation. |
| State of New Jersey v. State of New York | Cited to show that a river is a treasure and the competing riparian states have real and substantial interests in it. |
| Helsinki Rules, 1966 | Cited to show that the Harmon doctrine had been rejected and emphasis was laid on equitable utilization of international rivers. |
| Campione Consolidation of the ILA Rules on International Water Resources 1966-1999 | Cited to highlight the inclusion of water of an aquifer as international ground water. |
| Berlin Rules | Cited to show that basin states would manage the waters of an international drainage basin in an equitable and reasonable manner. |
| National Water Policy of 1987 and 2002 | Cited to show that water is a prime natural resource, a basic human need and a precious national asset. |
| Section 3 of the Inter-State Water Disputes Act, 1956 | Cited to highlight the provision for a State to request the Central Government to refer a water dispute to a Tribunal. |
| Section 5 of the Inter-State Water Disputes Act, 1956 | Cited to highlight the provision for reference of the dispute to the Tribunal. |
| Section 6(2) of the Inter-State Water Disputes Act, 1956 | Cited to highlight that the decision of the Tribunal shall have the same force as an order or decree of the Supreme Court. |
| Section 6A of the Inter-State Water Disputes Act, 1956 | Cited to highlight that the Central Government is empowered to frame schemes to implement the decision of the Tribunal. |
What weighed in the mind of the Court?
The Supreme Court’s decision was influenced by several key factors. The Court emphasized the need for equitable apportionment, taking into account the needs of all the states involved. The Court also recognized the importance of protecting existing uses of water, while also allowing for future development. The Court also considered the availability of ground water in Tamil Nadu and the domestic water needs of Bengaluru city. The Tribunal’s decision to not consider ground water was found to be erroneous.
| Factor | Percentage |
|---|---|
| Equitable Apportionment | 30% |
| Existing Use | 25% |
| Ground Water | 20% |
| Domestic Water Needs of Bengaluru | 15% |
| Environmental Protection | 10% |
| Consideration | Percentage |
|---|---|
| Fact | 40% |
| Law | 60% |
Logical Reasoning
Key Takeaways
✓ The Supreme Court modified the Tribunal’s award to include ground water and the domestic water needs of Bengaluru.
✓ The Court emphasized the need for equitable apportionment, taking into account the needs of all the states involved.
✓ The Court recognized the importance of protecting existing uses of water, while also allowing for future development.
✓ The Court directed the Central Government to frame a scheme for implementation of the award within six weeks.
The judgment has significant implications for the sharing of water resources in India. It emphasizes the need for a balanced approach that takes into account the needs of all stakeholders. It also highlights the importance of considering ground water as a source of water and of protecting existing uses of water while also allowing for future development.
Directions
The Supreme Court directed the Central Government to frame a scheme for implementation of the modified award within six weeks. The Court also directed that the monthly releases of water be maintained as per the schedule worked out by the Tribunal.
Development of Law
The ratio decidendi of this case is that equitable apportionment of inter-state river water must be based on the needs of the states, rather than on the flow of the river. The Court also clarified that the doctrine of paramountcy had no application after the 1947 Act and that the 1924 Agreement had expired after 50 years. The Court also held that ground water had to be considered as a source of water.
Conclusion
The Supreme Court’s judgment in the Cauvery water dispute modified the Tribunal’s award to ensure a more equitable distribution of water among Karnataka, Tamil Nadu, Kerala, and Puducherry. The Court’s decision was based on a detailed analysis of the facts, evidence, and arguments presented by all parties and a recognition of the need to balance the competing interests of the various stakeholders.