State should press for Presidential reference of the Cauvery dispute

The award of the Cauvery Water Disputes Tribunal dated February 5, 2007 attained ‘finality’ with its publication in the central gazette on February 20, 2013.

 The people of Karnataka have taken this as a huge set back – rightly so; they can hereafter at best take holy dips in the waters flowing through their parched fields without offending the laws, but cannot use them for irrigation beyond the little that is permitted by the tribunal. Will this state of affairs remain so for ever? Yes – subject to the slim chances of the Supreme Court modifying the award in the pending appeals by all the four parties to the dispute –Tamil Nadu, Karnataka, Kerala and Pondicherry. Court’s power to entertain an appeal of this type is discretionary and its scope limited.

One of the major questions that engaged the attention of the Tribunal was relating to the validity and effect of two agreements – one of 1892 and another of 1924 – between the Government of the Maharaja of Mysore and the State of Madras. After hearing arguments on several important legal issues the Tribunal held: “In this background there is no escape from conclusion that Mysore/Karnataka  is bound by the terms of the agreement of the year 1924 subject to the review and reconsideration of the terms of the said agreement after a lapse of fifty years since the date of the execution.”

 In another place, it held: “…it is difficult to accept the contention on behalf of the State of Tamil Nadu that the allocation and apportionment of the waters of the river Cauvery should be made strictly in terms of the agreements of 1892 and 1924. Of course, the terms of the agreement have only to be kept in view while considering the developments made in different states vis-à-vis the equitable share of the each riparian State.” There was also a question  whether the 1924 agreement expired in 1974 i.e. after the expiry of 50 years as contemplated in the document or whether it continued indefinitely, subject to changes incorporated by mutual agreement.

All these questions were not answered conclusively because the Tribunal felt that the decision was avoidable. Though the issue is raised in the appeal, the Supreme Court may well bypass it and the only way Karnataka can hope to reopen the Cauvery Award is by getting a declaration that the two agreements do not bind Karnataka.  

The Constitution-makers had envisaged such a problem. Article 143(2) provides that the President of India may refer to the Supreme Court for its opinion a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of the Constitution, continues in operation after such commencement – and a 5 judge Bench of the apex court “shall” answer it. Undoubtedly, the agreements entered into between the Government of Mysore and the State of Madras in 1892 and 1924 squarely fall under this category.

Even though the Cauvery Tribunal’s Award is ostensibly not based on the 1892 and 1924 agreements, their influence on the decision is palpable. In other words, what would have been the verdict of the Tribunal, if these agreements were held to be not binding on the successor state, namely, Karnataka, is difficult to say. 

In any event nothing prevents the State of Karnataka from raising the question even now about the  binding nature of the two agreements –and request the Central government for a Presidential reference under Article 143(2) in the interest of lasting peace between two neighbouring states. 

There are many grounds for challenging the binding nature of the agreements. One of them as canvassed before the Tribunal was that State of Madras and the Government of Mysore were in reality both controlled by the British government. Under no stretch of imagination, they could be considered as having been arrived at fairly and squarely between two independent sovereign states. The Government the Maharaja of Mysore was under severe handicap in the matter of entering into such agreements freely because of various constraints on its powers due to historical reasons. 

The extent of restraint was obvious from the fact that the Government of Mysore could not undertake any project except with the previous consent of the lower riparian owner, namely, the State of Madras. The famous Krishnaraja Sagar  dam could not be constructed until the State of Tamil Nadu agreed to it as set out in the 1924 agreement.

  Apparently, no such agreement exists between any other two states in India, where the lower riparian owner could bind the hands of the upper riparian state and bind in perpetuity. A comparable agreement between the States of Madras and Travancore relating to Malalperiyar was renewed recently after the initial validity period of 100 years expired. 

Time for Karnataka to move the Central government to advise the President of India to make reference to the Supreme Court appears to be the most opportune -- the state government has the needed rapport as the Centre is not leaning on the crutches of DMK or any other Tamil party and there are four appeals and the latest suit for recovery of Rs 2,500 crore –a total of five Cauvery related matters –are presently pending before the apex court. An addition of one more need not ruffle any feathers.

 Karnataka government and politicians of all creed must realise that this may be the last opportunity to redeem Cauvery, and  certainly, instigating innocent kannadigas now and then to burn buses in Mandya cannot extricate the state from the marsh that they are in.

(The writer is a senior advocate, Supreme Court, and former additional solicitor general of India)