Cauvery Water Dispute: Caught Amidst Divergent Views of States, Centre Again Moves SC for Clarification of Its Powers to Make a Scheme [Read Application]

Amidst divergent views of Karnataka, Tamil Nadu, Kerala and Puducherry over framing of a scheme and constitution of a scheme for implementation of Supreme Court verdict on the Cauvery water dispute, the Centre has now approached the apex court seeking clarification on whether it has the powers to prepare a scheme at variance with the one recommended by the Cauvery Water Disputes Tribunal(CWDT).

The Centre has also sought to know if it has the power to modify the composition of the Board as recommended by the CWDT.

It said clarification was mandated to avoid further litigation and the states coming to the apex court once again.

Seeking more time for implementation of its order, the application also informs the apex court that the Election Commission of India has announced the schedule for assembly elections to Karnataka on March 27.

“Cauvery is a very important issue in Karnataka and in the past the issue has led to serious law and order situation is leading to avoidable loss of human life and property. If the Central government work to a constitutive scheme under 6A (of the Inter-State River Water Disputes Act) and notify it during the currency of the state Vidhan Sabha election process the central government fears that it would lead to massive public outrage, vitiate election process and cause serious law and order problems,” it said.

The Supreme Court had on February 16 passed verdict on the appeal moved by Karnataka against the 2007 award of the tribunal and modified the award while directing Karnataka to release 177.25 TMC water to Tamil Nadu instead of 192 TMC as ordered by CWDT.

The bench headed by CJI Dipak Misra also directed the Centre to frame a scheme within six weeks so that the authorities under the scheme can see to it that its decision which has modified the award passed by the tribunal is “smoothly made functional and rights of the States as determined by us are appositely carried out”.

The Centre had called several meetings following the Supreme Court order but due to divergent views of the parties involved, had to seek clarification.

In its application, the Centre urged the court to “clarify whether it is open to the central government to frame the scheme under 6 of the Interstate River Disputes Act of 1956 at variance with the recommendations contained in the report of CWDT regarding Cauvery management board”.

“Clarify that in case the Cauvery management board as recommended in report of CWDT is to be constituted, does the Central government have the following flexibility to modify the composition of the board to mixture of Administrative and Technical body and not purely a technical body as recommended by CWDT in its report for effective conduct of the business of the board and considering overall sensitivity of the issues involved.

“Clarify whether the Board framed by the central government under 6A of Act can have functions different from the ones recommended for Cauvery management board by CWDT report,” it prayed.

The Centre informed the Supreme Court that pursuant to its February 16 judgment, an internal meeting was called on March 5 to discuss the modalities and various options for setting up a scheme for implementation of the award in the light of the apex court judgment.

The composition and functions of existing Boards, such as Bhakra Beas Management Board, Krishna River Management Board, Betwa River Board etc., were also studied.

A meeting was also called by the Ministry Of Water Resources, River Development and Ganga Rejuvenation with other senior officers of the four States – Puducherry, Tamil Nadu, Karnataka, and Kerala --concerned on March 9 to discuss the modalities of the scheme.

Divergent views of the States

“Divergent views have been expressed by all states in their letter regarding the framing of the scheme,” the Centre said.

It stated that Tamil Nadu has stated that the scheme as mentioned by the apex court has been clearly defined in section 6(A)(2) of the Inter-State River Water Disputes Act, 1956 and the CWDT has in its order in chapter 8 laid down parameters for constitution of Board and recommended Cauvery Management Board and the Cauvery Water Regulation Committee for implementing its decisions.

Tamil Nadu was of the view that the Centre is mandated to put in place an authority for implementation of the final order in accordance with the recommendations made in Chapter 8.

Puducherry also requested the government for an early constitution of Cauvery Management Board and Cauvery Water Regulation Committee as envisaged in the final order of the tribunal.

Karnataka, however, was of the view that the apex court has left the contents of the scheme to the discretion of the Centre while adding that the stand of the state of Tamil Nadu that the scheme should be as per the recommendations of the tribunal is not correct and that the tribunal itself has only suggested recommendations.

It also submitted that the scheme suggested by the apex court is a dispute resolution body as distinct from the management or regulation recommended by the tribunal.

Karnataka also said that management and regulation of water of a state viz equitable share of a state determined by adjudication is the sole prerogative of a state according to Entry 17 of State list and therefore, a scheme in the form of Cauvery Management Board is clearly ultra-vires the federal structure.

It also said that the Supreme Court has not endorsed or approved the Cauvery Management Board in its judgment.

Kerala, on the other hand, suggested that the Cauvery Management Board should be headed by Cabinet Secretary or Union Secretary (water resources) and should have the chief secretaries of the four states as members and this apex body should be one of the administrators and not engineers and should only monitor the point that each state does not utilize more than the allocated quantity of water.

“Due to divergent views expressed by the state governments on framing of the scheme, it is felt that if any scheme is framed by the Central government on itself, states may again approach the Supreme Court in the matter,” said the Centre.

It said Karnataka and Kerala have also written to the Centre that any scheme proposed under Section 6A of the ISRWD Act should first be shared with them before its notification.

“…to avoid further litigation by the states in the constitution and functions of the Board, clarifications from the Supreme Court are considered necessary,” it said.