New Delhi: The Supreme Court on Tuesday deferred its decision on setting up of the Cauvery management board to assess the ground realities in the Cauvery river basin.
Accepting the Centre’s virtual turn around, a bench of justices, Dipak Misra and Uday Lalit put on hold the decision to form the board. Instead the court asked the supervisory committee which is already in place, to inspect the Cauvery river basin, which includes reservoirs in Karnataka and Tamil Nadu to assess the ground realities and to submit a report on October 17.
The bench in the meantime, has directed Karnataka to release 2,000 cusecs of water to Tamil Nadu from October 7 to 18, taking into consideration Karnataka’s assertion that by October 6, the state would have complied with the order and released 36,000 cusecs of water to Tamil Nadu.
Earlier the attorney general, Mukul Rohatgi, on behalf of the Centre, submitted that the apex court could not have passed an order for the constitution of the board, as there is an embargo under Article 262 of the constitution, read with Section 11 of the Inter-State River Disputes Act, 1956 to pass such an order. He conceded that he had committed a mistake by agreeing to the order. Rohatgi said that he realised his mistake only now.
Rohatgi also contended that the constitution of a management board by the Cauvery Water Disputes Tribunal on the lines of Bhakra-Beas Management Board was only a “recommendation”, which the Centre could choose to either accept or reject. He said setting up of a board is a part of legislative exercise. This order had denuded the Centre of its power under the Inter State Water Disputes Act to frame a scheme based on an award which goes through a legislative process by placing thereof before the parliament and final say is vested in the parliament. Rohatgi said that the order should be recalled or deferred for the time being to be decided in the final hearing of the appeals coming up for hearing on October 18.
Senior counsel Fali Nariman who had recused himself from representing Karnataka on September 30 till the state complied with the order, today informed the court that the state had already released 24,000 cusecs and by October 6 and that Tamil Nadu will get the balance 12,000 cusecs and thereby the orders have been complied with.
He, however, cautioned the court from passing further orders to release water which cannot be implemented as it will cause misery and create problems for the people. Nariman said during the last hearing that he had requested the court not to pass orders for release of water, but despite his opposition, this court directed release of water and he had to draw flak.
Where the court at one point wanted to pass a consensual order to ensure Karnataka released a certain quantity of water, Nariman opposed it, saying he had no instructions. He also questioned the court on what basis it passed earlier orders directing release of 6,000 cusecs of water to Tamil nadu.
When Justice Misra said it was based on arithmetic, Nariman retorted “Arithmetic is not entirely reality. How can a state accept it, when it can’t. Please don’t compel us to do. I came under flak. I don’t want to have any more flak.”
The state advocate general, M.R. Naik, after taking instructions from the government informed the bench that 1,500 cusecs of water can be released for 10 days from October 7 to 16 till the technical committee submits its report. He said in September that the state had released 17.5 tmcft and another 3.1tmcft will be relased by October 6.
Senior counsel Shekar Naphade, for Tamil Nadu took exception to the change of stand by the Centre and questioned why should they back-track on setting up the board. There is change in strategy on part of Karnataka and the Centre is playing into their hands. He said “There is something more than what meets the eye.”
Recalling the earlier instance when former Karnataka chief minister, S.M. Krishna, was hauled up for contempt but subsequently let off with an apology, the counsel asked “Why this soft treatment of politicians?. If a small man has committed a contempt he would have landed in jail by now.” He said there is already deficit of 4.5 tmcft for September and another 22 tmcft is due in October. The bench then directed Karnataka to release 2,000 cusecs for 12 days from October 7 to 18.