Interstate Water Disputes
Perils and Prospects of Democratisation
The politicisation of interstate water disputes in India is an inevitable fallout of the historical and structural conditions that obtained at the time of forming the Indian union. Looking at the 2012-13 escalation in the Cauvery river water dispute, this article examines how politics plays a part in shaping such disputes and sets limits on our responses to them through legal means. Considering the effects of politicisation, it argues that contrary to predictions of water wars, these politics may have a positive impact on accentuating interdependencies between states and deepening democratic spaces if they are supported by appropriate institutional responses.
I wish to thank Partha Mukhopadhyay, Shylashri Shankar, Patrick Heller, R Parthasarathy, and Sunila Kale for reading earlier drafts and offering comments.
The Government of India (GOI) notified the Cauvery Water Disputes Tribunal (CWDT) award on 19 February 2013, just short of six years after it was awarded on 5 February 2007. This followed an exasperated and angry fiat by the Supreme Court (SC). While setting the deadline for its notification, the Court admonished the central government and accused it of “flouting the law” of the Interstate River Water Disputes Act, 1956 (IRWDA 1956). The two main parties to the dispute reacted to the notification according to their known positions – Karnataka was unhappy, while Tamil Nadu celebrated. Deve Gowda, former prime minister and chief of the Janata Dal (Secular) (JD(S)) party, called the decision “political” and said that the United Progressive Alliance (UPA) government at the centre needed the political strength of Tamil Nadu to survive. It may have been an accusation, but it reflected the often unacknowledged political dimension of interstate water disputes. Recent times have seen a rather candid and pragmatic approach to these politics of interstate water disputes. When Uma Bharti, the senior Bharatiya Janata Party (BJP) leader, was visiting Chennai in July 2012, around the time the Cauvery dispute was at its peak, she was quizzed about the then Karnataka BJP government’s position on the dispute. She said that the dispute was political and could be sorted out.1
Mainstream political parties are increasingly using interstate water disputes as avenues for pursuing their political goals. The engagement of political parties in other recent disputes such as Mullaperiyar and Bhabli has been no different. Each party publicised its position aggressively in newspapers and other media. The battles were not left to the court. Instead, there was an evident preference for public platforms. This trend of politicising water disputes is not often a parameter in our formal analysis of water disputes. But there can be no denying that these politics have a serious and substantive effect on the emergence, recurrence, and resolution of water disputes. Adequate attention has not yet been paid to this facet of interstate water disputes, even though scholars have noted this as a crucial factor in shaping them (Iyer 2004; Padhiari and Ballabh 2008; Janakarajan 2009; Richards and Singh 2002; Swain 1998).2
This article takes a close look at the nature and effects of politicisation in interstate water disputes. I argue that it is imperative that we consider politicisation as a key analytical parameter in understanding interstate water disputes and their outcomes. Politicisation is an inevitable and ineradicable feature of interstate water disputes because of certain historical and structural conditions that existed at the time of forming the Indian union. This sets limits on our responses to these disputes through legal means. The recurrence of the Cauvery river water dispute during 2012-13 is discussed as a case to illustrate how politics plays a part in shaping such disputes. Later, I consider the effects of the politicisation of these disputes. Contrary to interpretations influenced by prophecies of “water wars”, I argue that these politics may have a positive impact on accentuating interdependencies between states, thus contributing to strengthening federal relations and deepening democratic spaces. In concluding, I suggest that these prospects can be further augmented by appropriate institutional responses.
Background
The Cauvery river rises in Kodagu district of Karnataka and runs for 320 kms before reaching the boundary with Tamil Nadu. It flows along the boundary for 64 km and then enters Tamil Nadu. After travelling 416 km in Tamil Nadu, it joins the Bay of Bengal. Of the Cauvery basin, 2,866 square km (about 3.5%) falls in the state of Kerala, making it a party to the dispute. Pondicherry is another party because the Cauvery command area serves parts of the state’s Karaikal region.
The current dispute has its roots in supposed violations of earlier agreements of 1892 and 1924 between the erstwhile Madras presidency and Mysore princely state, and it was inherited by the states of Tamil Nadu and Karnataka, respectively, in independent India. A dispute arose in the 1960s and Tamil Nadu made its first formal request for resolution to the GOI in 1970. The GOI tried resolving the dispute through mediations and negotiations for several years before constituting the CWDT in 1990 under the provisions of the IRWDA 1956 for adjudication. The tribunal gave its final award in 2007, after 17 years. Karnataka and the other two party states filed special leave petitions (SLPs) before the SC against the CWDT award. The matter was under the Court’s consideration for six years till the recent notification. Over the 17 years of its existence, the CWDT had to respond and make interim arrangements to address frequent recurrences and escalations of the dispute, similar to the 2012-13 episode discussed here. The notable episodes were a crisis following Karnataka’s ordinance annulling the tribunal’s interim award in 1991; another in 1995-96 that required setting up the high-profile Cauvery River Authority (CRA) for implementing the interim award; and yet another in 2002 when Karnataka refused to obey the CRA’s order.
The 2012-13 escalation of the dispute was significant for many reasons. First, it was a distress year with a poor monsoon. Second, it was the first irrigation season after the J Jayalalithaa-led All-India Anna Dravida Munnetra Kazhagam (AIADMK) took over in Tamil Nadu after defeating the Dravida Munnetra Kazhagam (DMK), and it was eager to show its commitment to its election promises. Third, the political configuration – the party affiliations of governments in the states and at the centre – was particularly competitive and potentially contentious. Three different parties held power at the three nodes, the AIADMK in Tamil Nadu, the BJP in Karnataka, and the UPA at the centre. The Karnataka government was vulnerable with an internal rebellion led by former chief minister B S Yeddyurappa. The JD(S), a strong regional party, was one of the opposition parties in Karnataka.3
In its award, the CWDT estimated the total available water resources annually at 740 thousand million cubic feet (TMC) at 50% probable rainfall. The award’s allocations were 30 TMC for Kerala, 270 TMC for Karnataka, 419 TMC for Tamil Nadu, 7 TMC for Pondicherry, 10 TMC for environmental requirements, and 4 TMC for inevitable escape to the sea. The total quantity of water transferred as releases from Karnataka to Tamil Nadu was 192 TMC, including the 10 TMC for environmental requirements. The CWDT designated the Biligundlu gauge in Karnataka as the interstate monitoring point for the transfer. It had a monthly schedule of releases to ensure timely availability of water to Tamil Nadu. In a distress year, the allocations were to be truncated proportionately. The CWDT also recommended setting up a Cauvery Management Board (CMB) for implementing the award (CWDT 2007). But during the period till its notification on 20 February 2013, the implementation of the award rested with two interim agencies, the CRA chaired by the prime minister, and an expert body, the Cauvery Monitoring Committee (CMC).4
Version 2012-13
After coming to power in 2011, Jayalalithaa’s AIADMK government in Tamil Nadu aggressively pursued outstanding interstate water issues, including the notification of the CWDT award by the central government.5 The AIADMK accused the DMK government of not pursuing the CWDT notification diligently. In May 2012, well before the onset of the monsoon, Jayalalithaa complained about Karnataka unjustly utilising water for summer irrigation.6 The AIADMK government also objected to the construction of a dam by Karnataka on the Tenpennaiyar river.
The monsoon began well for Karnataka with surplus water flowing into its major reservoirs. In early August 2012, Karnataka was releasing water at the rate of over 12,000 cubic feet per second (cusecs). As the season progressed and there were indications of a deficit monsoon, the release of water was reduced to 7,400 cusecs. This was the beginning of a series of legal and political battles. Tamil Nadu moved the SC in September 2012 seeking a direction to Karnataka to release 24,000 cusecs as per the CWDT award. The Court advised Tamil Nadu to approach the CRA. Meanwhile, popular mobilisation in both states began with farmers’ associations and political parties organising protests. The Karnataka government discussed its approach to the CRA meeting at an all-party meeting and resolved to demand that there be a new formula for water sharing during distress years. The CRA met on 19 September 2012 and decided that Karnataka should release water at the rate of 9,000 cusecs from 20 September to 15 October 2012. The chief minister of Karnataka, Jagadish Shettar, walked out of the meeting, protesting that the ruling did not consider ground realities; there was no water in the reservoirs to release.
Tamil Nadu again approached the SC when Karnataka failed to release water. In its hearing on 28 September 2012, the Court castigated the Karnataka government for not complying with the CRA’s order and directed it to release water to Tamil Nadu immediately. In the midst of agitations and tight security at the key dams, Karnataka began releasing water the next day. Bandhs and protests were organised across the state. A road block on the Bangalore-Mysore highway led to the arrest of the local JD(S) Member of the Legislative Assembly (MLA) and his supporters. To pacify the JD(S) and other opposition parties, Shettar promised legal measures to counter the CRA order. But by 3 October 2012 the protests turned violent with demonstrators attacking Rapid Action Force personnel at the Krishna Raja Sagar dam.
At the end of the day on 3 October 2012, Pawan Kumar Bansal, the central minister for water resources, announced a fact-finding team would be sent to assess reservoir levels in Karnataka. Political mobilisation in both states continued with some central ministers taking up the cause of their respective states. Veerappa Moily and S M Krishna, the two central ministers from Karnataka, appealed to the prime minister, the chairperson of the CRA, to review the CRA order. As pressure mounted from within, the Karnataka government stopped releasing water from 8 October 2012 onwards, citing low water levels and drinking water needs. This time, Karnataka approached the SC seeking a direction to the CRA to review its order. The SC then asked the CMC to assess storage levels and take a fresh decision on the CRA order. Meanwhile, popular protests in the states continued. Police forces were mobilised and put on high alert in Mandya district in Karnataka anticipating disturbances. Some political parties in Tamil Nadu demanded central rule and deployment of the army in Karnataka.
After visiting the two states, the CMC issued an order on 11 October 2012 directing Karnataka to release 9,000 cusecs from 15 October to 31 October 2012. But Karnataka refused to obey and Tamil Nadu filed a contempt petition with the SC. This further escalated popular protests. Vaiko-led Marumalarchi Dravida Munnetra Kazhagam (MDMK) party workers attempted to lay siege to the Neyveli Lignite Corporation’s power plant, demanding that power supply to Karnataka be stopped. On the Court’s direction, the CMC reviewed its order once again on 14 November 2012 and directed Karnataka to release 4.8 TMC over the next fortnight, from 15 November to 30 November 2012 (at the rate of approximately 4,000 cusecs). However, Karnataka refused to comply with the order, which brought the issue back to the SC. The Court then advised the two chief ministers to meet and resolve the issue amicably.
On 29 November 2012, the two chief ministers met in Bangalore. The talks, however, failed with Karnataka refusing to release any more water and Tamil Nadu insisting on its outstanding share of 32 TMC. Shettar expressed inability to spare any water for Tamil Nadu, citing severe drought and a weak south-west monsoon in Karnataka. The matter went back to SC, which in turn asked the CMC to re-examine the issue and make recommendations. In a meeting on 5 December 2012, the CMC decided that Karnataka had to begin releasing water at the rate of 10,000 cusecs immediately. The Court passed orders accordingly, making Karnataka release water from the next day, 6 December 2012.
This further escalated popular protests in Karnataka. Protests in Tamil Nadu also continued because it was felt too little water had come too late. Political parties began engaging in one-upmanship. Vijay Kant of the Desiya Murpokku Dravida Kazhagam (DMDK) in Tamil Nadu accused the AIADMK government of having adopted a confrontational approach that harmed Tamil Nadu interests. He felt that earlier chief ministers such as M G Ramachandran and M Karunanidhi had maintained good relations with Karnataka and ensured the timely release of water to Tamil Nadu. In Karnataka, a bandh called in Mandya district was total. Assembly sessions were disrupted by the opposition and the Shettar government decided to stop releasing water a week after it began doing so.
The earlier course of events repeated itself. Tamil Nadu approached the SC, which in turn asked Karnataka to file an affidavit stating what its drinking water requirements were. Tamil Nadu also demanded notification of the CWDT award as a long-term measure. In January 2013, it threatened to file a suit claiming damages from the Karnataka government for the losses suffered by Cauvery delta farmers in the state.7 Finally, on 7 February 2013, the SC issued a fiat directing the central government to notify the CWDT award by no later than 20 February 2013. The Court also asked Karnataka to release 2.44 TMC of water forthwith. As Karnataka began releasing water from 9 February 2013 under tight security all the state’s political parties moved into agitational mode, and the state assembly resolved on 13 February 2013 to send an all-party delegation to New Delhi. While parleys continued in New Delhi, the central government notified the CWDT award on 19 February 2013.
Structural and Historical Conditions
Whether the notification of the award makes any difference can be tested only by another distress year. This episode of the dispute tapered off partly because the irrigation season ended by the time the award was notified. However, the history of the Cauvery dispute shows political configurations have had a significant impact on how the dispute emerged, its recurrence, and its dissipation (Chokkakula 2012).8 This is much more explicit now. But even when the centre was supposedly strong in the 1970s, these configurations and equations mattered in the dispute and its outcome (Benjamin 1971). How do these political configurations foment politicisation?
Interstate water disputes are complex in their anatomy and articulation. Most of them have their roots in the origin and making of India’s democratic and federal structure (Chokkakula 2012; D’Souza 2006). Opportunities for contestation and politicisation arise from a variety of sources that build on these structural and historical conditions. The narrative of the Cauvery dispute of 2012-13 helps us understand how political interests use different ambiguities and uncertainties associated with these conditions to pursue their own goals. These conditions are geographically produced, historically inherited, socially constructed, and derived from legal complexities. The following briefly discusses the conditions and associated ambiguities that aid the politicisation of water disputes.
First, a riparian relation is essentially an asymmetric power relation that is geographically produced. Upper riparian states are usually at an advantage with their ability to appropriate water first. This asymmetric power relation is at the heart of any conflict. The CWDT (2007: 216) observes,
It appears that from time to time, the parties to the dispute especially, the State of Tamil Nadu had to approach the Supreme Court for a direction against the State of Karnataka to comply with the interim order passed by this Tribunal fixing a schedule for release of the water in different months of the year. It also appears that on most of the occasions, the State of Karnataka came up with the plea that because of the insufficient rainfall during the period concerned, it had not been possible for them to comply with the interim order strictly by releasing the quantity of water as directed.
But it is not always the case that an upstream state has the advantage. As we will see below, certain legal principles can give the downstream state an advantage.
Second, historically inherited agreements from colonial times are often prejudiced. The subsidiary relation between the British Indian provinces and the princely states had an influence in structuring these agreements. In other words, interstate water disputes are a manifestation of the reproduction of colonial and imperial power relations (D’Souza 2006). In the Krishna river water dispute, incorporation of the historical agreements of 1892 and 1933 between the erstwhile states of Hyderabad (a princely state) and Madras (a British presidency) was a form of internalising the colonial power relation (ibid). The Cauvery dispute too inherited similar historical conditions. The CWDT award says that while it supersedes the two historical agreements of 1892 and 1924, the two cannot be held invalid. The CWDT adjudication provided for various provisions in the two agreements. Tamil Nadu’s objection to the dam on the Tenpennaiyar river in Karnataka was derived from the provisions of the agreements of 1892 and 1924 between the Madras presidency and the princely state of Mysore.
Legal principles such as those that obligate protection of prior appropriation rights serve in reproducing asymmetries rooted in colonial conditions. Presidency areas, which benefited from irrigation development programmes of British India, were often ahead of the princely states in appropriation of water resources. In such instances, the protection of prior appropriation rights may conflict with equity considerations. The post-independence reorganisation of state boundaries complicated these matters further. Tribunal awards given on the basis of these legal principles are prone to contestation and politicisation.
Third, India’s cultural and ethnic diversity offers ample avenues for escalation of disputes by constructing “the other”, or an adversarial relation of “us” vs “them” around social and cultural boundaries. Historically, the Cauvery dispute escalated to a point where it mutated into a conflict between Tamil and Kannadiga identities and interests. Previous escalation of the dispute to such a point was in 2002, when the monsoon failed and the political configurations were not favourable. The BJP-led National Democratic Alliance (NDA) was in power at the centre with Jayalalithaa’s AIADMK in Tamil Nadu and the Congress(I) in Karnataka. The escalation had similar precursors and features as the one in 2012-13. It witnessed Jayalalithaa walking out of a CMC meeting and Karnataka defying the tribunal’s order to release water. Tamil populations and their properties in Karnataka were attacked. Tamils too organised similar attacks on Kannadigas in Tamil Nadu. A Tamil militant group damaged a transformer in Tamil Nadu that supplied power to Karnataka. The SC accused both the state governments of resorting to populist politics. The attempted siege of the Neyveli power plan in 2012 by MDMK party workers was a similar attempt to hurt Karnataka’s interests.
Finally, the limitations of technology to predict water availability and the uncertainties of the monsoon are a major source of contestation and politicisation. There are no acceptable and entirely satisfactory legal principles to organise inequities arising out of these limitations.9 It gets particularly challenging during distress years. Further, lack of efficient and accurate monitoring mechanisms can lead to misrepresentation of availability and use of water resources. Much of the dispute witnessed in 2012-13 was because of these limitations. Karnataka claimed it had insufficient water to meet its basic needs such as drinking water, while Tamil Nadu insisted on having its share as per the formula. Such positions cannot be reconciled without effective means for a transparent exchange of information and collaborative management of resources between the parties. The absence of this allows political actors to stick to irreconcilable positions and engage in politicisation.
Politicisation: State of Denial
These complex social, political, and techno-legal issues shaped by particular historical and structural conditions generate avenues for contestation and politicisation in interstate water disputes. This inherent nature of interstate water disputes and their latent propensity for politicisation has to be recognised while considering remedial measures. This politicisation also sets limits on the legal course of responses. Yet the tendency is to delve deeper into legal alternatives. The IRWDA 1956 has gone through several amendments since its enactment. These amendments have been mostly to improve the efficacy of the adjudication process – aimed at reducing delays and empowering tribunals and their decisions. It is certainly important to refine legal mechanisms. But these mechanisms evidently have limitations in arresting politicisation. In the Cauvery dispute of 2012-13, the SC, the country’s highest judicial institution, was practically overseeing and managing the dispute on a daily basis at one point. The Court had to restrain its use of magisterial powers and play the role of a benign arbitrator to facilitate reconciliation between the parties.
A major roadblock to addressing the political nature of water disputes is the visceral reluctance to engage with politics. The tendency to label politics as undesirable excludes a vital parameter from analysis (for example, see Richards and Singh 2002). The crucial role of politics in the emergence and mitigation of disputes is well recognised in international water conflicts. The geosciences department at Oregon State University (OSU) maintains perhaps the world’s most comprehensive database on transboundary freshwater disputes since 1820. Several studies emerging from analyses of the disputes offer interesting insights. First, political relations between the countries shape water conflicts and their outcomes. The politics of water sharing are embedded within the larger spectrum of political relations between the countries involved. The politics contributing to the success and endurance of water sharing agreements are not necessarily related to water (Giordano et al 2002). Second, water conflicts are deeply entrenched in specific historical and geographical contexts (ibid). Each water conflict has its own specific geographic characteristics and historical context that contribute to the emergence and recurrence of disputes. Third, and most importantly, institutions are extremely important in making transboundary water sharing arrangements work. Institutions provide space and flexibility for informed negotiations and facilitate transparent exchange of information. They help in absorbing insecurities and defusing tensions caused by uncertainties, thus averting conflicts. Conflicts emerge when institutions fail to respond to changes in water sharing regimes (Giordano and Wolf 2003; Wolf et al 2003).
Consider interstate water disputes playing out in the manner illustrated by the Cauvery dispute. The three features of international water conflicts discussed above also apply to interstate water disputes. First, political relations and configurations matter in their emergence, recurrence, and mitigation. Second, each interstate water dispute has to be understood within its unique historical and geographical context. A perusal of the awards given by the tribunals set up so far shows the distinct and complex issues involved in the historical geographies of specific disputes. Third, lack of institutions is the crucial missing link in engaging with interstate water disputes, whether before or after the disputes are referred to tribunals. The response to perceived inefficacy of resolution has always been legalist and in the form of legal reforms (Chokkakula 2012). The IRWDA 1956 has been amended several times. Even when disputes are referred to tribunals, the implementation of tribunal awards remains a challenge (Iyer 2002, 2009). In other words, the diagnosis errs – the problem has more to do with institutional and governance failure than with the inefficiency of resolution mechanisms (Chokkakula 2012).
Prospects of Democratisation
Concerns about interstate water disputes stem from popular prophecies about water wars, besides how delays and deprivation may affect populations. But fears of water wars may be misplaced. Shared water resources are not always a source of conflicts, but often offer opportunities for inducing cooperation and forging collaborations. In an engaging article countering the prediction of water wars, Wolf (1998) argues that wars exclusively over water are unrealistic in modern times. They are strategically irrational and do not make pragmatic sense. An upstream state does not have to fight for water, and a downstream state cannot attack upstream installations for risk of floods. The popularity of water war prophecies obscures some interesting empirical evidence to the contrary. Studies at OSU have found that the global record of transboundary water conflicts contrasts vastly with the number of sharing agreements. Over the last 50 years, there have been over 150 water treaties compared to 37 acute disputes, acute here implying conflicts involving violence. In the 37 acute conflicts, 30 involve Israel with its neighbouring countries (Giordano and Wolf 2003; Wolf et al 2003).
This change in perspective on water wars and shared water resources allows us to look at interstate water disputes differently. Interstate river water sharing in India has its own good record. In comparison to the handful of interstate water disputes, there are more than 120 interstate agreements on cooperation for sharing waters (Central Water Commission 1995). These agreements may be over smaller rivers and smaller projects, but they demonstrate states’ willingness to work amicably for common benefits. For example, Andhra Pradesh and Maharashtra signed an agreement on 5 May 2012 for implementing the Pranahita-Chevella project. It is possible that the political configuration was in favour of facilitating this particular agreement. Congress(I)-led governments were in place in Maharashtra, Andhra Pradesh, and at the centre.
But this is not entirely the reason for cooperation among states. Sometimes basic and pragmatic considerations resulting from need and limited resources prompt states to cooperate. In a recent interstate agreement on water sharing, acute drought conditions in Coimbatore district (Tamil Nadu) and Palakkad district (Kerala) forced the two states to cooperate.10 In an inter-ministerial meeting on 28 April 2013, Tamil Nadu and Kerala signed an agreement in which Tamil Nadu agreed to release 100 cusecs of water to Kerala from the Aliyar river. In return, Kerala agreed to let Tamil Nadu draw 40 cusecs from the Siruvani reservoir for Coimbatore district’s needs. This agreement happened while Kerala was proceeding with a plea before the SC on Tamil Nadu’s failure to release its share as per the Parambikulam-Aliyar agreement. It is worth noting that in 2012 Tamil Nadu Chief Minister Jayalalithaa raised objections with the prime minister about a proposed irrigation scheme by Kerala in the same Siruvani river basin.
Unfortunately, these cooperation agreements do not receive as much attention as conflicts do. In the case of the Cauvery, in spite of shrill campaigns and demagoguery, the Governments of Karnataka and Tamil Nadu recognise shared interests and interdependences. Tamil Nadu needs Karnataka to release water and Karnataka needs Tamil Nadu to allow drainage of water. When the monsoon began well in August 2012, all reservoirs in Karnataka were overflowing and it began releasing in excess of 12,000 cusecs to Tamil Nadu.11
This remarkable coexistence of cooperation and conflict between states helps to make a couple of observations about interstate relations and democracy in India. First, pragmatic considerations of need and mutual interdependence eventually prevail and define interstate relations, irrespective of politicisation and its accompanying rhetoric. Second, the embedded nature of states within the democratic federal structure provides the necessary legitimacy to reciprocities and arrangements between them.
This changed perspective calls for reconsidering the effects of politicisation. Besides serving the immediate objectives of electoral politics, politicisation may have other potential benefits. Within the restricted scope of escalation of disputes, political mobilisation strategies centre round the mutual obligations of states and their accountability to agreements and populations. In other words, politicisation helps in accentuating and institutionalising mutual interdependencies and obligations. Politicisation also helps, though indirectly, in addressing local and regional interests. The IRWDA 1956 does not recognise any non-state actor as a party. But political groups and actors pursue their interests by actively striking alliances with bigger players. In this manner, they draw attention to the local implications of state-level resource allocations. As in the Cauvery dispute of 2012-13, political mobilisation is not exclusively restricted to state-level actors or mainstream political parties. Local farmers’ associations and other interest groups collaborated with mainstream political parties to advocate their needs. The SC’s directive to the central government to set up the CWDT was the outcome of a writ petition filed by a non-state actor. The Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu, a farmers’ association filed the petition before the SC under Article 32 seeking referral to a tribunal. The centre had been mulling over the matter for more than 20 years because of the temporary successes achieved through negotiations between the states.
Such furthering of democratic objectives by politically motivated contestations and conflicts resonates with Mouffe’s (2000) agonistic model of democracy. In this model, the fundamental “political” nature of social relations among the constituents is recognised. The goal of democratic politics is to facilitate transformation of “antagonism”, caused by the political nature, into “agonism”, where the other is imagined not as an enemy, but as an adversary. An adversarial conception allows accepting the legitimacy of other conflicting interests as well. Democratic politics are not meant to eradicate the political, but to establish a certain order allowing the coexistence of conflicting interests. This order is achieved through negotiations and even compromises. In Mouffe’s words, often as “temporary respites in an ongoing confrontation” (2000: 102), similar to the manner in which interstate water disputes dissipate and recur.
This, however, does not mean discounting the adverse effects of politicisation. Multiparty democracy and vote bank politics drive the tendency to politicise issues. Politicisation of interstate water disputes causes great suffering and loss, especially in distress years. Populations suffer not only because of inadequacy of water, but also due to politicisation-induced uncertainties. But if politicisation is an inevitable and ineradicable character of interstate water disputes, how do we engage with it and reduce its negative effects?
How Do We Engage with Politicisation?
Mouffe’s agonistic model helps in conceptualising the kind of response needed for engaging with politicisation. Transformation of political antagonism into agonistic engagement is the key strategy here. This is possible by creating spaces for expressing the collective passions of interest groups. An absence of such avenues, Mouffe cautions, can lead to the congealing of collective passions into other forms of identification, along lines of social and cultural identities – as has been seen in the Cauvery dispute. At its peak in 2012 and many times earlier as well, the dispute turned into a clash along ethnic lines, between Kannadiga and Tamil interests. But, as Mouffe (2000: 13) argues,
The prime task of democratic politics is not to eliminate passions from the sphere of public…but to mobilise those passions towards democratic designs.
Hence the goal is not to eliminate or eradicate politicisation, but to channel the politics into democratic designs. This is feasible through the creation of the right kind of “ensemble of practices, discourses and institutions”. To a large extent, this is what the SC tried to provide in the Cauvery dispute. Beyond the call of its role, the SC diverted the two states from confrontation by asking them to negotiate with each other or seek redressal through appropriate institutions such as the CRA.
But the SC cannot be expected to continue to take on the role of facilitating a dialogue and negotiations between states each time a dispute arises. What are the other possible options for such institutional avenues? The CRA was an interim arrangement and ceased to exist after the CWDT award was notified. The proposed single permanent tribunal in the Court for adjudication of interstate water disputes may not help. The single permanent tribunal is only a rearrangement of judicial structures for improving adjudication.12 It may serve precisely this purpose of improving the adjudication process, but is unlikely to have any impact on implementation of the awards – for the same reasons the SC cannot oversee implementation. The brinkmanship of political parties who play hide and seek around legal procedures will continue to evade implementation. In the process, the time-sensitive need for water can be disadvantageous to a downstream state. The CMB recommended by the CWDT is another technocratic institutional arrangement similar to the interim CMC. This has not worked well in the interim period. But it is not yet known if the government will create the CMB.13 Creating river boards is another option available for interstate coordination as per existing laws. But they may not serve the purpose because of limitations in conceiving them as implementing agencies and advisory bodies (SANDRP 1999). Other than these options, the sole responsibility of ensuring mediation between disputing states lies with the central government, for a limited period of one year as per the legislation. But this is an ad hoc political arrangement and is unlikely to be perceived as neutral. It is also susceptible to political configurations and consequent expediencies.
In other words, interstate water disputes will continue to be affected by an institutional deficit, not just for the implementation of awards, but also for engaging with politicisation in a manner that channelises politics towards strengthening interstate relations. The purpose of such an institutional space would be to absorb and pre-empt negative discourses of politicisation, mitigate the propensity for escalation, and facilitate collaboration between states. This role seeks high-profile institutions with particular mandates. The interstate council is one such institutional option with a similar mandate, but highly underutilised so far. The council is a permanent constitutional body created with the objective of facilitating interstate coordination. While providing for it under Article 263, the constituent assembly deliberated on and conceived of it having a much larger role in nation building. As a constitutional body, the council can be a body that plays a constructive role in managing politicisation and defusing escalation of disputes through regular and institutionalised deliberations between states. It can provide a neutral space for creating conducive conditions for cooperation and help nurture fraternal relations between states.
Conclusions
In this article, I have argued that politics is a crucial missing parameter in our understanding and analysis of interstate water disputes. I used a recent episode in the Cauvery dispute to illustrate how politicisation shapes the nature and outcomes of such disputes. A combination of factors situated in historical and structural conditions contributes to the propensity to politicise water disputes, leading to their frequent recurrence and escalation. Thus, politicisation is an inevitable and ineradicable feature of interstate water disputes in India. While the adverse impact of politicising interstate water disputes cannot be discounted, I pursued an alternative perspective on these politics. With the support of recent literature on international water conflicts and Mouffe’s model of the agonistic model of democracy, I argued that politics might be helping in accentuating interstate interdependencies and deepening democracy in India. But to augment this, there is a need for creating institutional spaces to ensure the transparent exchange of information between states, defuse tensions, and facilitate negotiations and collaborations. The interstate council is a potential institutional space for channelising the politics of interstate water disputes towards stronger interstate relations. This, however, does not mean that such institutional solutions will in any way serve as a substitute for legal adjudication by the SC and/or tribunals. These institutions will supplement and support the judicial institutions in evolving the right kind of practices and discourses for improved coordination of interstate agreements and arrangements.
In these times of coalition politics, competitive and assertive regional powers make it imperative to address the politicisation of interstate disputes. These disputes are unlikely to be restricted to water alone. They may also extend to other shared natural resources, with critical implications for federal relations and democracy in India. For example, the dispute over who owns the natural gas in the Krishna basin is a case in point. Instead of pursuing entirely legal solutions, there is a need for focusing on creating institutional spaces for engaging with the politicisation of interstate disputes.
Notes
2 When Punjab’s legislative assembly resolved to annul earlier agreements with Haryana in 2004, Iyer (2004: 3435) observed, “It has been clear from the start that what we are witnessing in Punjab is as much a political game as a water dispute.”
3 Assembly elections were due in Karnataka in May 2013. In these elections, the Congress (I) received an absolute majority. The JD(S) did well, especially in the Cauvery basin districts, which was attributed to its role in the water dispute episode of 2012-13.
4 When the dispute escalated in 1995-96 while the CWDT was adjudicating the dispute, the Supreme Court asked the central government led by P V Narasimha Rao to intervene and find a political solution for the stalemate. The government formed the CRA with the prime minister as its chairman and the chief ministers of the states to the dispute as its members to resolve the crisis. Later, the CWDT gave an interim order to be implemented till the final award. The government decided to continue with the CRA for implementing the interim award with the support of an expert body, the CMC, which was to monitor ground realities and report to the CRA.
5 This section reconstructs events using the archives of www.ndtv.com. On another issue with Kerala, the AIADMK government requested Prime Minister Manmohan Singh to intervene and stop Kerala from going ahead with the Attapadi irrigation scheme on the Siruvani river in Palakkad district, arguing that it would affect water supply to Coimbatore in Tamil Nadu. See http://www.ndtv.com/article/tamil- nadu/jayalalithaa-urges-pm-to-tell-kerala-to-halt-irrigation-scheme-234371
7 Tamil Nadu eventually filed a suit before the Supreme Court seeking up to Rs 2,500 crore from Karnataka for loss of crops. See http://www.thehindu.com/news/national/tamil-nadu/retaining-extra-water-a...
8 See Iyer (2004) for a brief discussion on how political configurations affected the emergence and escalation of the Punjab-Haryana dispute over Ravi-Beas river water sharing in 2004.
9 See Wolf (1999) for a discussion about how equitable apportionment of water can be a difficult concept to apply in international transboundary water conflicts.
10 See http://www.thehindu.com/news/national/ tamil-nadu/drought-forces-kerala-tn-to-agree-on-water-sharing/article4663771.ece
11 See http://www.ndtv.com/article/south/good- news-for-tamil-nadu-farmers-karnataka-releases-water-into-cauvery-253219
12 The proposal to set up a single permanent tribunal is apparently in response to suggestions for bringing interstate water disputes within the juridical domain of the Supreme Court by legal scholars such as Fali Nariman (2009). In my view, this arrangement is a roundabout way of achieving this without contradicting the provisions of the Article 262. But there is no reason why we cannot re-examine the provisions of Article 262. As some scholars interpret it, the Article does not make it mandatory to keep adjudication of interstate water disputes out of Supreme Court’s original jurisdiction, but only suggests it.
13 There are some ambiguities around the scope of the tribunal, and whether it can or should suggest implementation mechanisms. The CWDT engages with these ambiguities at considerable depth while suggesting CMB guidelines. These ambiguities leave the question open if the government will indeed create the CMB as suggested. But on 23 May 2013, the ministry of water resources notified a temporary arrangement, the formation of a supervisory committee headed by the water resources secretary with chief secretaries of the Cauvery basin states (Tamil Nadu, Karnataka, Pondicherry and Kerala) as members. The supervising committee’s role will be to give effect to the CWDT award of 2007 until a permanent scheme along the lines of proposed CMB is constituted. In case the committee or any party to the dispute faces difficulty, they may approach the Supreme Court for redressal.
Imperative to Reform Political Funding
It is scandalous that in India’s vaunted democracy, political parties by and large fudge and brazenly underreport their income and expenditure, with gross impunity. And what is worse, there is little or no political will to end political funding by corrupt and dishonest means. A report by Delhi-based NGO Association for Democratic Reforms shows that for 2012-13, as in previous years, national parties like the Congress and the BJP have filed what are obviously sham accounts. The Congress has claimed that its total income was .`425 crore for the year, while the BJP has asserted that its earning was no more than .
`324 crore for the period. This is laughable.
The monies required to fund legitimate expenses of national political parties are thousands of crore.
Yet, parties deem it fit to disclose piffling sums. The BSP has actually declared that it got no donation above .
`20,000. This is humbug. It is also hypocritical. Political funding by unaccounted money and the proceeds of corruption vitiates society and our moral standing, with the result that the powers that be routinely sell their patronage or leverage power or simply cheat the exchequer to raise funds by myriad, questionable ways. And by wantonly compromising principles, we also end up wallowing in staid mediocrity.
Such a state of affairs clearly must stop if India is to realise its potential. Our electoral laws, which stipulate wholly unrealistic ceilings on spending by individual candidates, are also perverse incentive to summarily hide party expenditure and sources of funding. We need to remove them and, in tandem, put in place norms and systems to independently vet party accounts. Till this basic reform is done, it would be impossible to raise India’s ranking in ease-of-doing-business surveys or end crony capitalism.
`324 crore for the period. This is laughable.
The monies required to fund legitimate expenses of national political parties are thousands of crore.
Yet, parties deem it fit to disclose piffling sums. The BSP has actually declared that it got no donation above .
`20,000. This is humbug. It is also hypocritical. Political funding by unaccounted money and the proceeds of corruption vitiates society and our moral standing, with the result that the powers that be routinely sell their patronage or leverage power or simply cheat the exchequer to raise funds by myriad, questionable ways. And by wantonly compromising principles, we also end up wallowing in staid mediocrity.
Such a state of affairs clearly must stop if India is to realise its potential. Our electoral laws, which stipulate wholly unrealistic ceilings on spending by individual candidates, are also perverse incentive to summarily hide party expenditure and sources of funding. We need to remove them and, in tandem, put in place norms and systems to independently vet party accounts. Till this basic reform is done, it would be impossible to raise India’s ranking in ease-of-doing-business surveys or end crony capitalism.
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