CAUVERY WATER DISPUTE :AN ATTACK ON

FEDERALISM

Submitted by

M.vishal anand
Reg. No. BC0150033

Under the Guidance of

Ms.Nikita pattajoshi
Assistant Professor

TAMIL NADU NATIONAL LAW SCHOOL

(A State University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu – 620 009

MARCH – 2017

Ms.Nikita pattajoshi Assistant Professor in Constitutional law-II

Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu – 620 009

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 CERTIFICATE

This is to certify that the project work entitled “cauvery water dispute:an attack on

federalism” is a bonafide record of the research work done by (M.vishl anand), under my

supervision and guidance. It has not been submitted by any other University for the award of any

degree, diploma, associate ship, fellowship or for any other similar recognition.

Place: Tiruchirappalli

Date:

Signature of the Guide

M.vishal anand
Reg. No. BC0150033 – II Year B.COM. LLB. (Hons.)
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu – 620 009

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 DECLARATION

I, M.vishal anand, do hereby declare that the project entitled “cauvery water dispute:an

attack on federalism” submitted to Tamilnadu National Law School in partial fulfillment of

requirement for award of degree in Under Graduate in Law to Tamilnadu National Law School,

Tiruchirappalli, is my original research work. It and has not been formed basis for award of any degree

or diploma or fellowship or any other title to any other candidate of any university.

Counter Signed Signature of the Candidate

Project Guide

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 ACKNOWLEDGEMENT

At the outset, I take this opportunity to thank my Professor Ms.Nikita pattajoshi from the bottom of

my heart who has been of immense help during moments of anxiety and torpidity while the project was taking

its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor Dr.KAMALA CHANDRAN and the

administrative staff of TNNLS who held the project in high esteem by providing reliable information in the

form of library infrastructure and database connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing their precious time is

unforgettable and highly solicited. Their valuable advice and timely supervision paved the way for the

successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to confront all hurdles during the

making of this project. Words aren’t sufficient to acknowledge the tremendous contributions of various people

involved in this project, as I know ‘Words are Poor Comforters’. I once again wholeheartedly and earnestly

thank all the people who were involved directly or indirectly during this project making which helped me to

come out with flying colors.

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 CHAPTERIZATION

CHAPTER 1
INTRODUCTION

CHAPTER 2
INTERSTATE WATER DISPUTE ACT
HISTORY OF THE DISPUTE
POST-INDEPENDENCE DEVOLOPMENTS
INDIAN GOVERNMENT NOTIFIES CAUVERY WATER DISPUTE TRIBUNAL

CHAPTER 3
FEDERALISM IN INDIA
INDIA’S FEDERAL WATER INSTITUTIONS
JUDGEMENT REGARDING CAUVERY WATER DISPUTE (LATEST JUDGEMENT)
ATTACK ON FEDERALISM IN CAUVERY WATER DISPUTE

CHAPTER 4
CONCLUSION

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RESEARCH QUESTIONS:

WHY KARNATAKA NOT GIVING WATER TO TAMILNADU?

LEGAL RECOURSE?
REASON BEHIND CAUVERY WATER DISPUTE?

CAUVERY WATER DISPUTE: AN ATTACK ON FEDERALISM

INTRODUCTION
The sharing of waters of the Cauvery River has been the source of a serious conflict between the
two states of Tamil Nadu and Karnataka. The 802 kilometers (498 mi) Cauvery River has 44,000 km2 basin area
in Tamil Nadu and 32,000 km2 basin area in Karnataka. The inflow from Karnataka is 425 TMC ft. whereas that
from Tamil Nadu is 252 TMC ft. The genesis of this conflict rests in two agreements in 1892 and 1924 between
the erstwhile Madras Presidency and Kingdom of Mysore. Based on inflow Karnataka is demanding its due
share of water from the river. It states that the pre-independence agreements are invalid and are skewed heavily
in the favor of the Madras Presidency, and has demanded a renegotiated settlement based on "equitable sharing
of the waters". Tamil Nadu, on the other hand, pleads that it has already developed almost 3,000,000 acres
(12,000 km2) of land and as a result has come to depend very heavily on the existing pattern of usage. Any
change in this pattern, it says, will adversely affect the livelihood of millions of farmers in the state.
Decades of negotiations between the parties bore no fruit. The Government of India then constituted a tribunal
in 1990 to look into the matter. After hearing arguments of all the parties involved for the next 16 years, the
tribunal delivered its final verdict on 5 February 2007. In its verdict, the tribunal allocated 419 TMC of water
annually to Tamil Nadu and 270 TMC to Karnataka; 30 TMC of Cauvery river water to Kerala and 7 TMC
to Pondicherry. Karnataka and Tamil Nadu being the major shareholders, Karnataka was ordered to release 192
TMC of water to Tamil Nadu in a normal year from June to May.

INTER STATE WATER DISPUTE ACT

The Interstate River Water Disputes Act, 1956 (IRWD Act) is an Act of the Parliament of India enacted
under Article 262 of Constitution of India on the eve of reorganization of states on linguistic basis to resolve the
water disputes that would arise in the use, control and distribution of an interstate river or river valley. Article
262 of the Indian Constitution provides a role for the Central government in adjudicating conflicts surrounding
inter-state rivers that arise among the state/regional governments.  This Act further has undergone amendments
subsequently and its most recent amendment took place in the year 2002.

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River waters use / harnessing is included in states jurisdiction (entry 17 of state list, Schedule 7 of Indian
Constitution).1 However, union government can make laws on regulation and development of inter-State rivers
and river valleys when expedient in the public interest (entry 56 of union list, Schedule 7 of Indian
Constitution). When public interest is served, President may also establish an interstate council as per Article
263 to inquire and recommend on the dispute that has arisen between the states of India. IRWD Act (section
2c2) validates the previous agreements (if any) among the basin states to harness water of an interstate river/
river valley.
On the face of it, inter-state water disputes involve issues of:
i. Allocation of waters between different states;

ii. Apportionment of construction costs and benefits if a project is developed jointly by more than one state

iii. Compensation to the states prejudicially affected by the implementation of a project by another state;

iv. Dispute settlement relating to interpretation of agreements and;

v. Excess withdrawals by a state.

HISTORY OF THE DISPUTE

The British controlled both Mysore and Madras for a short period in the middle of the 19th century. During
their regime, numerous plans were drawn up for the utilization of the CAUVERY waters by both states.
However, the drought and subsequent famine in the mid-1870s put a hold on the implementation of these plans.
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The plans were revived by Mysore in 1881, by which time Mysore was back in the hands of the Mysore kings,
while present day Tamil Nadu continued to remain a part of the Madras Presidency.
Mysore's plans to revive the irrigation projects met with resistance from the Madras Presidency. Mysore state
made a representation to the Madras Presidency then British government; as a result of which, a conference was
held in 1890 with the objective of agreeing "…on the principles of a modus vivendi, which would on the one
hand allow to Mysore in dealing with irrigation works, and on the other, give to Madras practical security
against injury to interests" and eventually the Agreement of 1892 was signed.
Things came to a head in 1910 when Mysore, under Nalvadi Krishna raja Wodeyar as the king and Capt.
Dawes as Chief Engineer came up with a plan to construct a dam at Kannambadi village to hold up to
41.5 TMC of water. The dam was planned to be built in two stages. In the first stage a capacity of 11 TMC was
envisioned, while in the second stage the full capacity was set to be realized. Madras however, refused to give
its consent for this move as it had its own plans to build a storage dam at Mettur with a capacity of 80 TMC.
After a reference to the Government of India, permission was accorded to Mysore, but for a reduced storage of
11TMC. During construction, however, the foundation was laid to suit the earlier desired full storage. This
raised Madras' hackles and the dispute continued. As a result, the then British Government of India referred the

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Indian River and River Systems- The Genesis of Article 262 of the Constitution of India and the Inter-State River Water Disputes
Act, 1956- Developments till 1949, By- K.K. Lahiri, Published by- http://www.indialawjournal.com, 2013.

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matter to arbitration under Rule IV of the 1892 Agreement. The CAUVERY dispute thus had come up for
arbitration for the first time.
Sir H D Griffin was appointed arbitrator and M. Nethersole, the Inspector General of Irrigation in India, was
made the Assessor. They entered into proceedings on 16 July 1913 and the Award was given on 12 May 1914.
The award upheld the earlier decision of the Government of India and allowed Mysore to go ahead with the
construction of the dam up to 11 TMC.
Madras appealed against the award and negotiations continued. Eventually an agreement was arrived at in 1924
and a couple of minor agreements were also signed in 1929 and 1933. The 1924 agreement was set to lapse
after a run of 50 years.

POST-INDEPENDENCE DEVOLOPMENTS
In 1947, India won independence from the British. Further in 1956, the reorganization of the states of India took
place and state boundaries were redrawn based on linguistic demographics 3. Kodagu or Coorg (the birthplace of
the Cauvery), became a part of Mysore state. Huge parts of erstwhile Hyderabad State and Bombay
Presidency joined with Mysore state. Parts of Malabar which earlier formed part of Madras Presidency went
to Kerala. Pondicherry had already become a de facto Union territory in 1954.
All these changes further changed the equations as Kerala and Pondicherry also jumped into the fray. Kerala
staked its claim as one of the major tributaries of the CAUVERY, the Kabini, now originated in Kerala.
The Karaikal region of Pondicherry at the tail end of the river demanded the waters that it had always used for
drinking and some minimal agriculture. While these additional claims complicated matters greatly at a technical
level, Mysore state and Tamil Nadu still remained the major parties to the dispute.
By the late 1960s, both states and the Central government began to realize the gravity of the situation as the 50-
year run of the 1924 agreement was soon coming to an end. Negotiations were started in right earnest and
discussions continued for almost 10 years.

INDIAN GOVERNMENT NOTIFIES CAUVERY WATER DISPUTE TRIBUNAL

On 20 February 2013, based on the directions of the Supreme Court, the Indian Government notified the final
award of the Cauvery Water Disputes Tribunal (CWDT) on sharing the waters of the CAUVERY system
among the basin States of Karnataka, Tamil Nadu, and Kerala and Union territory of Puducherry. The
“extraordinary” notification in the gazette dated 19 February 2013 says the order takes effect on the date of
publication.  The Tribunal, in a unanimous decision in 2007, determined the total CAUVERY basin water
availability in a normal year as 740 TMC at the Lower Coleroon Anicut site, including 14 TMC for minimum
environmental flows and unavoidable wastage to the sea. 4 The final award makes an annual allocation of 419
TMC to Tamil Nadu in the entire Cauvery basin, 270 TMC to Karnataka, 30 TMC to Kerala and 7 TMC to
Puducherry.
The water sharing criteria is based on two situations:
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 When water availability is above the normal water year flows.
 When water availability is equal or below the normal water year flows
The 50% dependable water year is considered as normal water year whose total water availability in the basin is
740 TMC. All the unused water in the reservoirs (≥ 3 TMC storage) at the beginning of water year in the basin
are also considered for arriving the total available water in a water year to be shared by the riparian states.
Tamil Nadu has to use 10 TMC for minimum environmental flows downstream of Lower Coleroon Anicut and
supply 7 TMC to Puducherry out of the 192 TMC water released by Karnataka in a normal water year. Kerala
can use 21 TMC from Kabini river basin, 6 TMC from Bhavani river basin and 3 TMC from Pambar river basin
in a normal year. Water going waste to sea at Lower Coleroon Anicut in excess of 4 TMC (other than 10 TMC
minimum environmental flows) in any water year forms part of utilisable water share of Tamil Nadu. The
ambiguity in the verdict is that utilisable water (clauses IV and V) in the basin is allocated among the states but
it has not defined how to measure the same. Instead clause XIV of final order defines how to measure the
beneficial water uses which is not equal to the utilisable water.

FEDERALISM IN INDIA
Federalism is a form of government in which the sover-eign authority of political power is divided between the
various units. This form of government is also called a "federation" or a "federal state" in the common parlance.
Federalism is a basic feature of the Constitution of India in which the Union of India is permanent and
indestruc-tible. Both the Centre and the States are co-operating and coordinating institutions having
independence and ought to exercise their respective powers with mutual adjust-ment, respect, understanding
and accommodation. Ten-sion and conflict of the interests of the Centre and the respective units is an integral
part of federalism. Preven-tion as well as amelioration of conflicts is necessary. Thus, the Indian federalism was
devised with a strong Centre. Federalism with a strong Centre was inevitable as the framers of the Indian
Constitution were aware that there were economic disparities as several areas of India were economically as
well as industrially far behind in comparison to others. The nation was committed to asocio economic
revolution not only to secure the basic needs of the common man and economic unity of the country but also to
bring about a fundamental change in the structure of Indian society in accordance with the egalitarian
principles. With these considerations in mind the Constitution makers devised the Indian federation with a
strong Union.

Article 1 of the constitution declares that India, that is Bharat, shall be a Union of States. Part XI of the Indian
constitution defines the power distribution between the federal government (the Centre or union) and
the States in India. This part is divided between legislative, administrative and executive powers. The legislative
section is divided into three lists: Union list, States list and Concurrent list.
The constitutional powers devolved to each state are not the same. The state of Jammu and Kashmir was
accorded higher degree of federalism under Article 370 read with Appendix I {The Constitution (Application
to5 Jammu and Kashmir) Order, 1954} of the Indian constitution. The Union Territories
of Delhi and Puducherry are accorded lesser degree of federalism under Article 239A and 239AA respectively

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and these territories are not included in the list of states in Schedule I of the constitution. The other union
territories are directly governed by the union government.
Legislative powers
The power of the states and the Centre are defined by the constitution and the legislative powers are divided
into three lists.
Union lists
Union List consists of 100 items (previously 97 items) on which the parliament has exclusive power to legislate
including: defence, armed forces, arms and ammunition, atomic energy, foreign affairs, war and peace,
citizenship, extradition, railways, shipping and navigation, airways, posts and telegraphs, telephones, wireless
and broadcasting, currency, foreign trade, inter-state trade and commerce, banking, insurance, control of
industries, regulation and development of mines, mineral and oil resources, elections, audit of Government
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accounts, constitution and organisation of the Supreme Court, High Courts and union public service
commission, income tax, custom duties and export duties, duties of excise, corporation tax, taxes on capital
value of assets, estate duty, terminal taxes.
State lists
State List consists of 61 items (previously 66 items). Uniformity is desirable but not essential on items in this
list: maintaining law and order, police forces, healthcare, transport, land policies, electricity in state, village
administration, etc. The state legislature has exclusive power to make laws on these subjects. But in certain
circumstances, the parliament can also make laws on subjects mentioned in the State list, then the Council of
States (Rajya Sabha) has to pass a resolution with 2/3rd majority that it is expedient to legislate on this state list
in the national interest.
Concurrent lists
Concurrent List consists of 52 (earlier 47) items. Uniformity is desirable but not essential on items in this list:
Marriage and divorce, transfer of property other than agricultural land, education, contracts, bankruptcy and
insolvency, trustees and trusts, civil procedure, contempt of court, adulteration of foodstuffs, drugs and poisons,
economic and social planning, trade unions, labour welfare, electricity, newspapers, books and printing press,
stamp duties.
Executive powers
The Union and states have independent executive staffs fully controlled by their respective governments and
executive power of the states and the Centre are extended on issues they are empowered to legislate. As in
legislative matters, in administrative matters also, the Central government cannot overrule the constitutional
rights/powers of a state governments except when president rule is promulgated in a state. It is the duty of the
Union to ensure that the government of every State is carried on in accordance with the provisions of the
Constitution per Article 355. Article 256 of the Constitution has made it clear that the State governments cannot
go against the Central laws in administrative matters. When a State has failed to work according to the

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Ramana, M.V.V., (1992) Inter-State River Water Disputes in India, Madras: Orient Longman.
Iyer, R.R., (1994b) "Indian Federalism and Water Resources", Water Resources Development, 10, 2, 191-202; Iyer R.R., Inter-State
Water Disputes Act 1956: Difficulties and Solutions, EPW, Vol. 37, No. 28 (Jul. 13-19, 2002), pp. 2907-2910.
Pani N, The Place Of The Tribunal In Inter-State Water Dispute, Vol. 2 Issue 1
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Constitution, President’s rule is imposed under Article 356 and President takes over its (the State’s)
administration with post facto consent of the Parliament per Article 357.

INDIA’S FEDERAL WATER INSTITUTIONS

The relevant provisions of the Indian Constitution are
• Entry 17 in the State List,
• Entry 56 in the Union List, and
• Article 262.
The first provision makes water a state subject, but qualified by Entry 56 in the Union List, which states:
"Regulation and development of inter-state rivers and river valleys to the extent to which such regulation and
development under the control of the Union is declared by parliament by law to be expedient in the public
interest." Article 262 explicitly grants parliament the right to legislate over the matters in Entry 56, and also
gives 7it primacy over the Supreme Court. As documented by Iyer (1994), parliament has not made much use of
Entry Various River Authorities have been proposed, but not legislated or established as bodies vested with
powers of management. Instead, river boards with only advisory powers have been created.
Hence, the state governments dominate the allocation of river waters. Since rivers cross state
boundaries, disputes are inevitable. The Inter-State Water Disputes Act of 1956 was legislated to deal with
conflicts, and included provisions for the establishment of tribunals to adjudicate where direct negotiations have
failed. However, states have sometimes refused to accept the decisions of tribunals. Therefore, arbitration is not
binding. Significantly, the courts have also been ignored on occasion. Finally, the center has sometimes
intervened directly as well, but in the most intractable cases, such as the sharing of the Ravi-Beas waters among
Haryana, Jammu and Kashmir, Rajasthan, and Punjab, central intervention, too, has been unsuccessful.
In summary, an unambiguous institutional mechanism for settling inter-state water disputes does not
exist. Nevertheless, water disputes are sometimes settled. Economic analysis is necessary to illuminate whether
and how water disputes get resolved in India.

JUDGEMENT REGARDING CAUVERY WATER DISPUTE (latest judgement)

On 22 August 2016, Tamil Nadu approached Supreme Court, seeking direction to Karnataka to release 50.052
tmc ft Cauvery water from its reservoirs for its third samba cultivation, as mandated in the final order of the
Cauvery Water Disputes Tribunal 2007. Karnataka cited distress situation as Karnataka felt there was only
enough water for drinking purposes and declined to release water.
On 2 September 2016, Supreme Court asked Karnataka to consider Tamil Nadu's plea on humanitarian grounds
and release water and advised both states to maintain harmony. The Court also asked Karnataka to revert by 5
September 2016 as to how much water it can release. On 5 September 2016 Karnataka informed the Supreme
Court that it can release 10,000 cusecs per day, while Tamil Nadu demanded 20,000 cusecs per day. Supreme

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Court ordered Karnataka to release 15,000 cusecs per day to Tamil Nadu for next 10 days till 16 September
2016.
On 9 September 2016, the state of Karnataka observed a bandh and protested against the release of water to
Tamil Nadu. Supreme Court was approached by Karnataka citing public unrest, seeking modification of the
earlier order. On 12 September 2016, Supreme Court slammed Karnataka for citing law and order problem and
modified the 5 September order, directing Karnataka to release 12,000 cusecs of water till 20 September 2016.
This decision by the Supreme Court lead to an unrest among the people of Karnataka as the water release limit
was increased by extending the number of days and violence broke out in Bangalore, Mysore, Mandya and
other parts of state. Two people were killed in the unrest and section 144 was imposed in
Bangalore. Curfew was also imposed on few parts of Bangalore.
On 19 September 2016, the Cauvery Supervisory Committee, set up by Supreme Court, ordered Karnataka to
release 3,000 cusecs per day from 21 September 2016 to 30 September 2016. On 20 September 2016, Supreme
Court directed Karnataka to further release 6,000 cusecs of water from 21 September 2016 to 27 September
2016 and directed the Central Government to set up the Cauvery Management Board in order to provide a
permanent solution for the dispute. However, in a special session of the Karnataka Legislative Assembly held
on 23 September, a resolution was passed not to release water to Tamil Nadu, hence defying the Supreme
Court's 8order. On 27 September, the Supreme Court ordered Karnataka to give 6000 cusecs of water to Tamil
Nadu for 3 days which was again not carried out.
On 30 September, the Supreme Court gave Karnataka a "last chance" and ordered 6,000 cusecs of water to be
released during the first 6 days of October. The Court asked the Central Government to set up the Cauvery
Water Management Board by October 4 so that the Board can visit the Cauvery sites to check the ground
realities. The apex court called for a report on October 6, which would be the next date of hearing. On 1
October 2016, Karnataka filed for review petition over Supreme Court's latest order to release 6,000 cusecs of
Cauvery water from October 1 to 6 and also held a special session of the state legislature After another special
legislature session on 3 October, the Karnataka government decided to release water for agricultural purposes,
but it was not specified whether water would be released to farmers of Karnataka or Tamil Nadu. The Supreme
Court on Tuesday, October 4 directed Karnataka to release 2,000 cusecs of Cauvery water per day to Tamil
Nadu from October 7 to 18. The apex court had ordered the state to release 6,000 cusecs of Cauvery water per
day. The hearing of the case is adjourned to October 18.

Attack on federalism in Cauvery water dispute

On 5 September 2016 Karnataka informed the Supreme Court that it can release 10,000 cusecs per day, while
Tamil Nadu demanded 20,000 cusecs per day. Supreme Court ordered Karnataka to release 15,000 cusecs per
day to Tamil Nadu for next 10 days till 16 September 2016.modifing 5 September order, directing Karnataka to
release 12,000 cusecs of water till 20 September 2016. On 19 September 2016, the Cauvery Supervisory
Committee, set up by Supreme Court, ordered Karnataka to release 3,000 cusecs per day from 21 September
2016 to 30 September 2016. On 20 September 2016, Supreme Court directed Karnataka to further release 6,000
cusecs of water from 21 September 2016 to 27 September 2016. . On 27 September, the Supreme Court ordered
Karnataka to give 6000 cusecs of water to Tamil Nadu for 3 days which was again not carried out. On 30
September, the Supreme Court gave Karnataka a "last chance" and ordered 6,000 cusecs of water to be released
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during the first 6 days of October. . The Supreme Court on Tuesday, October 4 directed Karnataka to release
2,000 cusecs of Cauvery water per day to Tamil Nadu from October 7 to 18. The apex court had ordered the
state to release 6,000 cusecs of Cauvery water per day. The hearing of the case is adjourned to October 18.By
this the centre is forcing the state, and federalism of the state is being attacked.

CONCLUSION
In summary, current Indian water-dispute settlement mechanisms are ambiguous and opaque. A cooperative
bargaining framework suggests that water can be shared efficiently, with compensating transfers as necessary, if
initial water rights are well-defined, and if institutions to facilitate and implement cooperative agreements are in
place. My analysis also emphasizes the role of complementary investments, and the need to expand the scope of
bargaining to include these where feasible. Furthermore, delay in the dimension of agreement over water can
encourage inefficient, non-cooperative investments in dams, irrigation, etc.
Additionally, I draw the distinction between situations where cooperation is possible, and situations
where the initial allocation of rights is at stake, where consequently the parties face a situation of pure conflict
rather than one of potential gains from trade. In the pure conflict situation, which seems very relevant for Indian
inter-state disputes, a search for a negotiated solution may be futile, and quick movement to arbitration or
adjudication may be more efficient.
However, in the Indian case, not only is this process slow, but also effective binding arbitration does not
exist. The threat point of no agreement has been the outcome in several major disputes (e.g., Cauvery; Ravi-
Beas). This can result in inefficient levels of investment by the individual, non-agreeing states, generating a
diversion of scarce investment resources, as well as inefficient use of the water itself. This in turn can have
negative impacts on economic growth. The problems are compounded by the entanglement of inter-state water
disputes with more general center-state conflicts, and with everyday political issues. I would argue that these
impacts can be reduced by a more efficient design of mechanisms for negotiating inter-state water disputes

BIBLIOGRAPHY:

http://indianexpress.com/article/india/india-news-india/cauvery-dispute-supreme-court-to-resume-hearing-today-
3090904/

Ramana, M.V.V., (1992) Inter-State River Water Disputes in India, Madras: Orient Longman.

Iyer, R.R., (1994b) "Indian Federalism and Water Resources", Water Resources Development, 10, 2, 191-202;

Iyer R.R., Inter-State Water Disputes Act 1956: Difficulties and Solutions, EPW, Vol. 37, No. 28 (Jul. 13-19, 2002), pp. 2907-2910.

Pani N, The Place Of The Tribunal In Inter-State Water Dispute, Vol. 2 Issue 1

indianexpress.com › India

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