A dispute runs through it

What is ‘justice’ in a case like the Cauvery dispute between Tamil Nadu and Karnataka? Will closure come?

In Tamil Nadu, the initial reactions to the Cauvery Tribunal’s Final Order seemed positive, but dissenting voices were soon heard. There is a degree of dissatisfaction in that state, though it is not very strong or widespread. In Karnataka, the response goes beyond dissatisfaction; there is a strong and fairly widespread feeling of injustice, led by opinion at the political level.

How does dissatisfaction arise in either state? It arises from a comparison of the state’s own projection of its requirement of Cauvery waters with the figure of allocation by the tribunal. However, the projected requirements of all the four parties to the dispute add up to much more than the availability of flows in the river. It follows that any kind of sharing, whether through agreement or through adjudication, will give each party less than the requirement that it had projected. Under the circumstances, dissatisfaction is inevitable. All that the parties can ask for is reasonable sharing. (They must also re-examine their projections of requirements and learn to live with less, but that point will not be argued here.)

How is a reasonable sharing to be arrived at? A negotiated settlement would doubtless be the best course. In this case, twenty years of talking, with and without central mediation, produced no agreement. If agreement is not possible, adjudication seems to be the only course available. There is no third option.

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We must, of course, remember that there has been a strong sense of historical injustice in Karnataka; it is that sense that underlies and influences its response to the tribunal’s award. The view that the 1924 Agreement was an unfair agreement imposed by a more powerful Madras Presidency on a weaker Mysore State is firmly embedded in the Karnataka psyche. That is a debatable proposition, but granting that there had been injustice in the past, is that any longer relevant? The imbalance, if any, of past relations between Madras Presidency and Mysore State was altered by the construction of a number of dams and reservoirs by Mysore/Karnataka; control over Cauvery waters effectively passed into the hands of Karnataka. Besides, is there any imbalance now between Tamil Nadu and Karnataka? Both are states of the Indian Union. The tribunal was a judicial body before which both were equal. Neither could impose its views on the other or on the tribunal. What is the basis for a sense of grievance now?

The fact that there is dissatisfaction with the award in one or more states does not by itself warrant a charge of ‘injustice’. What that charge implies is that what is available has been unfairly divided between the states. However, all the parties had argued their cases elaborately and submitted massive documentation to the tribunal (including not merely their claims for more water but also their respective understandings of past agreements and their fairness or unfairness). The tribunal took all the material and arguments into account and gave its decision. It was a body of three judges and their decision was unanimous. It is hard to see any basis for allegations of bias or unfairness. The decision was a judicial determination, and has prima facie to be presumed to be fair to all.

If a party to a dispute dismisses a judicial determination as ‘injustice’, what does that imply? It implies that that party reserves the right to decide what is just or unjust; that it will accept a judicial determination as ‘just’ only if it accords with its own view; and that what it does not like is ipso facto ‘injustice’. However, would not the other party to the dispute claim an equal right to decide what is ‘just’ or ‘unjust’? Given two opposing views of what constitutes justice or injustice, we will be back to square one.

Assuming that we accept the feeling of ‘injustice’ of one party and try to remove that feeling, what will be the consequence? If the dissenting voices in Tamil Nadu are heeded and the allocation to that state is increased, the allocation to Karnataka will stand further reduced, and the sense of injustice in Karnataka will be aggravated. On the other hand, if Karnataka’s feeling of injustice is accepted and the allocation to it is increased, a corresponding cut will have to fall on the allocation to Tamil Nadu, increasing the dissatisfaction in that state. The feeling of ‘injustice’ would then stand transferred from Karnataka to Tamil Nadu.

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One is not arguing that a judicial determination is infallible. Normally an appeal to a higher judicial level is possible. In this case, that route is not open as the jurisdiction of the courts is barred. There is a strong case for providing for an appeal to the Supreme Court against an ISWD tribunal’s award, but at the moment such a provision does not exist. A petition can, of course, be submitted by any of the governments concerned to the tribunal itself within three months for a supplementary or clarificatory order, as provided for in the ISWD Act. This seems likely to happen. Karnataka is reportedly thinking of going to the Supreme Court invoking its original jurisdiction under Article 131 in relation to inter-state disputes, or filing a special leave petition under Article 136. It would be for the Supreme Court to decide whether it should entertain either petition despite the specific and explicit bar of jurisdiction in the ISWD Act based on the enabling provisions of Article 262.

Incidentally, asking the prime minister to intervene in a judicial process, or proposing a discussion in Parliament on the tribunal’s award, seems inappropriate. This amounts to seeking remedies against a judicial pronouncement outside the judicial domain. Neither the prime minister nor even Parliament can sit in judgment over the merits of a judicial award or seek to change it. The proper course is to go back to the tribunal, or alternatively go to the Supreme Court if that court is willing to entertain a petition.

It must be noted, however, that the tribunal’s supplementary order or the Supreme Court’s order on a petition to it may still leave either party dissatisfied. Would the dissatisfied party then ‘reject’ the order? Would there be any closure to this process at all? We return to the question: What is ‘justice’ in a case like this? If each party to a dispute reserves the right to decide what is just or unjust, how will the dispute ever be resolved?

The writer is former secretary, water resources, Government of India