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The Rediff Profile/Tara Shankar Sahay

The Supreme Court on October 24 once more ordered Karnataka to release the Cauvery water to Tamil Nadu and held that prima facie it had committed contempt by "deliberate non-compliance" in not heeding an earlier order.

Karnataka's defiance of the Supreme Court order to release Cauvery water to Tamil Nadu is generating criticism from constitutional experts.

In its defence, the Karnataka government, led by Chief Minister S M Krishna, is arguing that this is far from the truth and that it has suffered a 'historical wrong'. Krishna, fellow ministers and senior officials claim that the genesis of the Cauvery water dispute is embedded in two agreements signed in 1892 and in 1924, both of which gave the then Mysore kingdom (most of which now comprises Karnataka) a raw deal at the hand of the then Madras presidency (much of which now comprises Tamil Nadu).

State Water Resources Minister H K Patil said the first discord over sharing the Cauvery water took place in 1807, when the then British resident of Mysore rejected the Tanjore (now Thanjavur) collector's claim that constructions of bunds in the then princely state had led to a decline of water flow.

Later, the 1892 agreement between Madras and Mysore stipulated that the latter could not take up new irrigation projects without the former's prior approval, while the second agreement in 1924 envisaged a 50-year fresh agreement which upheld the claims of Madras for a larger share of the Cauvery water.

Tamil Nadu Chief Minister J Jayalalithaa is now clamouring that with Karnataka 'stonewalling' the order of the apex court, it should accept the enforcement of the 1924 agreement.

Seeking to point out alleged historical wrongs inflicted upon Karnataka, Patil said that in 1914, "Sir H D Griffin (a former Allahabad high court judge who was asked to arbitrate between Madras and Mysore over the sharing of the Cauvery water) favoured Mysore. He said Madras then appealed to the Secretary of State in Britain who, three years later, set aside Griffin award by exercising his paramount power, an extra-legal power."

"Consequently, the princely state of Mysore had to surrender its legitimate and equitable share in the waters of Cauvery on account of its subordinate position as a vassal state," lamented Patil.

Patil, who was speaking at media conference in New Delhi recently, reeled out statistics to prove that the two agreements in the British era forced Mysore to part with "more than 80 per cent of the natural flow of Cauvery water to the Madras presidency" and subsequently, by 1974, Tamil Nadu had "illegally developed" land under irrigation up to 2.8 million acres in comparison to Karnataka's 680,000 acres in the Cauvery basin.

He declared that pro-government politicians in the state are insisting the water-sharing controversy resulted following "the misguided action of the British Raj 200 years ago." He said the erstwhile state of Mysore was constituted under Article 4 of the Mysore Partition Treaty of 1799, which came about after British-led forces defeated Tippu Sultan at Srirangapatnam, near Mysore city. It came to notice of the British officials then that irrigation in the entire Cauvery region was confined to the tank system that needed repairs. However, efforts to repair them were met with protests in the Tanjore district of the Madras presidency, even though there was no major obstruction to the flow of the Cauvery.

Yet, despite all the breast-beating by Karnataka politicians and their claims that "there is no parallel to this kind of unjust and illegal water sharing regime anywhere in the world," the state has few supporters among constitutional experts, who are aghast at the state's open defiance of the Supreme Court's order.

"I hope this (Karnataka's non-compliance of the Supreme Court order) does not set a trend in defying the court's order," said leading constitutional lawyer and Supreme Court practitioner P P Rao.

"The rule of law is at contempt," he averred, adding that the challenge now lay in how to secure the apex's court order to Karnataka to release the stipulated quota of Cauvery water to Tamil Nadu.

Noted constitutional lawyer Prashant Bhushan feared that the state's defiance would send out a dangerous signal. "It is an open question how the whole thing pans out. If the court backs off, the message will go out that the obdurate have won and it will naturally excite public opinion," he warned.

He pointed out "Chief minister Krishna is not afraid of going to jail. In fact, the whole thing has been converted into a political football. Politics is trying to triumph over (the highest echelon of) the judiciary."

Bhushan warned that while Krishna might be indulging in populist politics by trying to be a hero in the eyes of the people of Karnataka, his entire move might boomerang if the state government is dismissed and President's rule is clamped on the state.

Contending that this was very much in the realm of reality (if Karnataka still continues to defy the apex court order), Bhushan added, "Krishna will not bother going to jail but he will worry about (the possibility of) President's rule being clamped in his state."

Former advisor to the prime minister and the Planning Commission's principal advisor S Narendra, who is conversant with the intricacies of the Cauvery dispute, said controversial agreements between various states during the British period should be reviewed in the post-Independence era.

While agreeing that the stand by Karnataka could well impede the crucial issue of judicial intervention, Narendra pointed out that the job of the judicial bodies was to enforce the law and valid agreements, howsoever unfair the deal may be to one party.

"It is not the job of the court to go into what are the inequities in an agreement. If there is a law, even if it is an ass, it has to go by the law. It is for the political system to scrutinise that if the law is an ass, it must be changed into a horse," he stated.

Nevertheless, Narendra believes that the current stands by both the states on the Cauvery dispute is geared towards elections.

"Political parties have to contend with elections. Whichever way they take a view (on the dispute) it affects their electoral prospects. Therefore, both the states are trying to do a balancing act, trying to take shelter under an agreement that is totally outdated," he said.

The Planning Commission's principal advisor feels that instead of a judicial solution, there must be an expert independent body to go into the whole gamut of this intricate issue and examine the ground realities. This expert body, along with the Planning Commission and the central government, will have to look into the water use and the cropping pattern in both these states so that a solution can be hammered out.

Also see: The Cauvery dispute: the complete coverage

Image: Rahil Shaikh

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