Cry for Cauvery: How Karnataka's lawyers lost out on a chance to defend the state's case

Cry for Cauvery: How Karnataka

Submitted by alvin on Thu, 2016-09-15 15:41 An uneasy calm prevailed in some areas of Bengaluru today while most parts of the city limped back to normalcy after curfew was lifted in 15 police station limits. The Cauvery row evoked strong reactions from the people though at times it transgressed sensible actions. For Cauvery is such a sensitive issue. Ever since the interstate water disputes tribunal passed the final order on February 5, 2007 requiring the State of Karnataka to release 37 tmc of water every year from its reservoirs, the implementation of the order has become a bone of contention. High drama of political warfare has emerged thereafter in both the states with unruly mob indulging in violence. While reservoirs are dependent on monsoon, the state is recording depleting rainfall every year. In such a situation, the state could have put forth its point to the court. However, it completely lost it. The present impasse was triggered off when Tamil Nadu obtained an order on September 5, 2016 from the Court directing Karnataka to release 15,000 cusecs of water from its reservoirs ‘to save the standing Samba crops.’  This order was greeted by the people of Karnataka with widespread violent protests. The State had the opportunity to convince the court about the need to preserve water for drinking purposes. But the fact remains that the Apex Court passed the order on a goodwill gesture offered by Karnataka to supply not less than 10,000 cusecs of water from its reservoirs to comply with the final order of the Tribunal. In fact, a note submitted by the learned Senior Counsel Fali S Nariman was relied upon by the Apex Court before passing the order on September 5. The relevant portion of the said note read thus: "In response to the Hon'ble Court's observation's made on September 2, 2016, the respondent State of Karnataka as a goodwill gesture will ensure flows at the Inter-State Border, Biligundlu, at the rate of not less than 10,000 cusecs per day (about 0.86 tmc), as measured by the gauge station of the Central Water Commission as from 7th September, 2016 to 12th September, 2016.” Tamil Nadu had demanded 20,000 cusecs of water per day. However, to strike a balance, the Apex Court issued directions for Karnataka to supply 15,000 cusecs of water everyday for 10 days. Karnataka approached the Supreme Court for modification of this order citing the law and order problems to which the Apex Court took strong exception and consequently, the Counsel Nariman had to disown the statements made in the affidavit to that effect ascribing to bad drafting. The arguments put forth on behalf of Karnataka to keep the order passed on Sept 5 in abeyance did not find support from the Apex Court. For, the court said that the order was passed on a suggestion made by Karnataka and a complete u-turn on the issue was not acceptable. In this background, the modified order came to be passed which evoked violent protests. Apparently, Karnataka failed to evolve the strategy in a matter of this magnitude. It suggested the release of water despite having acute shortage in the storage. This cost the state dearly. The contradictory stand taken by the state before the apex court failed to beckon judicial propriety. The court came down heavily on Karnataka to reject its plea of keeping the earlier order in abeyance once causing it to be passed on an offer of goodwill gesture terming that such a step did not commend them. A crucial policy decision on a sensitive issue was not taken with such seriousness it deserves which projected the state in poor light. Karnataka ought to have insisted on finalisation of the issue in the committee constituted by a notification issued in the year 2003 since the said committee had the expertise and experience to decide the issue of release of water. Instead, an offer was made before the apex court only to suffer an order and thereafter sought for its suspension on an apparent act of blowing hot and cold. The state legal machinery failed to churn out a plausible solution in an otherwise advantageous situation. The plea of lack of jurisdiction of the Court in view of the constitution of a committee as per the final order of Tribunal was not raised effectively by the state advocates. Besides, unfortunate comments were made on Honourable Judge who heard the matter alleging his nexus with the Chief Minister of Tamil Nadu when he represented her as an advocate. We failed to define the line of control over a State and an individual in an effort to tarnish the image of a democratic set up and independence of judiciary. In the result, a massive dent was created by Karnataka on its own image in handling a crisis. The state has to seriously put the heads of its think tank together to evolve strategic policies. Blame game on judiciary may be done after setting our house in order or else it would set our house on fire without much water available to extinguish it. Author: P Usman, Advocate. The views expressed are those of author.