On March 7, as Tamil Nadu was bracing to fight the coronavirus crisis, Tamil Nadu Chief Minister Edappadi K Palaniswami popularly known as EPS, was a busy man, meeting the farmers in the Cauvery delta districts. He was seen wading through muddy water in a paddy field to interact with the farmers.
Palaniswami was riding a bullock cart with his cabinet colleague Kamaraj as he was heading to a felicitation function at Thiruvarur, one of the Cauvery delta districts. As he got off the bullock cart to hear the grievances of the farmers and the farm labourers, the crowd was awestruck. Palaniswami told them that he was a farmer himself, as he was presented with the title of Cauvery Kaappaalar (custodian of Cauvery).
But 50 days down the line, a Cabinet Secretariat notification, published in the Gazette of India, bringing the Cauvery Water Management Authority (CWMA) under the Jal Shakti ministry has seen the opposition parties up in arms. The uproar over the gazette publication seems to weaken the ‘agriculturalist’ image of Palaniswami.
On April 24, a notification was issued by the Cabinet Secretariat, duly signed by the president, saying “National Water Informatics Centre, North Eastern Regional Institute of Water and Land Management, Krishna River Management Board, Godavari River Management Board and CWMA will be brought under the Jal Shakti Mantralaya under the sub-heading department of water resources, river development and Ganga rejuvenation.”
With the Narendra Modi government forming the Jal Shakti ministry to deal with all water, sanitation and irrigation-related issues in May 2019, the erstwhile water resources ministry has been brought under Jal Shakti ministry as a department. The management boards of all rivers like Godavari, Krishna and Narmada, which were functioning under the erstwhile water resources ministry, have been brought under Jal Shakti ministry now.
The law and the sections
With the new notification, the CWMA has been made an entity under the direct control of the Union ministry, for which necessary changes have been made. The amendment has been made in the allocation of business rules.
To enable this, Entry 32 in the rules, which meant the responsibility to implement the Inter-State Water Disputes Act, 1956, was vested with the ministry, has now been omitted. The responsibility under Entry 32 was in consonance with the provisions of the 1956 Act. But this has now been omitted. Now, the CWMA is added under Entry 33, which is for the River Board Act, 1956. Also, Entry 7A to the rules has also been added. Entry 7A takes away the rights of the states over the rivers in terms of conservation, development, management and abatement of pollution of river.
With insertion of Entry 33 E, the autonomy of the authority is compromised. Meanwhile, Entry 32, which would have restricted this violation, has already been omitted. “The new orders say that the amendment was issued under the powers conferred by clause (3) of the Article 77 of the Constitution. But there can be no powers to overstep the orders of the Supreme Court. So the notification of these rules to bring CWMA under Jal Shakti undermines the constitutional provisions,” says P. Maniyarasan, coordinator of Cauvery Rights Retrieval Committee.
Tamil Nadu government’s principal secretary, Public Works Department (PWD), argues that the notification was just a reallocation under the business rule for “administrative reasons” and that just because the CWMA is brought under the Jal Shakti ministry, it will not lose its independent nature. But the notification of forming the CWMA was based on a Supreme Court order.
The CWMA and its powers
The CWMA was formed following the instructions of the Supreme Court. The Supreme Court had instructed the then water resources ministry to frame a scheme under section 6A of the Inter-State Water Disputes Act, 1956, for effective implementation of its order on water sharing.
Accordingly, the Central government notified the Cauvery Water Management Scheme on June 1, 2018. In fact, the Centre, argued in the Supreme Court that “framing of a scheme is not mandatory and the Central government being alive to this role shall do the needful at the relevant time.” But the court insisted that a scheme be framed and its order implemented through the authority, rejecting outright the discretionary powers of the Centre. Accordingly, the CWMA is a quasi-judicial authority, which has its own powers like an independent body, which will comprise a chairman, a secretary and eight members. The salary of the chairman and others in the authority is divided among the basin states—40 per cent each for Karnataka and Tamil Nadu and 15 per cent for Kerala and 5 per cent for Puducherry.
It may be argued that the members of the other inter-state river dispute boards like the Narmada, Krishna and Godavari are also paid by the respective basin states. But in these cases, the Narmada River Control Authority was set up in 1980 under the final order of Narmada Water Disputes Tribunal and it is a body corporate with four states as its members. The Krishna River Management Board is an autonomous body set up as per AP Reorganisation Act, 2014, with Telangana and Andhra Pradesh as the basin states. And the Godavari River Management Board was constituted by the water resources ministry again under the same AP Reorganisation Act, 2014. These three were directly set up by the ministry, while CWMA was set up with the instructions of the Supreme Court.
The Centre’s move will erode autonomy and dilute the powers of the authority, argue experts. “The authority is an independent body. Now it will lose its powers. There will be no space or ground for Tamil Nadu to appeal or argue in its favour. All the efforts and time we spent since 1990 to get our rights in Cauvery, legally, have gone waste. The government of Tamil Nadu is keeping quiet like ever before,” said A. Veerapan, state secretary of the Tamil Nadu PWD senior engineers association.
On the other side, the Tamil Nadu government had earlier in 2018, a few months after the CWMA was formed, went to the Supreme Court again asking for appointment of a full-time chairman. The authority doesn’t have a full-time chairman until now and it is being chaired by the Central Water Commission chairman. “The whole idea of being an independent body is sidelined if it is brought under the ministry,” tells Professor S. Janakarajan, Madras Institute of Developmental Studies. With the new notification, the member states—particularly Tamil Nadu, being a lower riparian state—might not be able to represent their rights.
“It is yet another assault on the federal structure. It is one more ‘gift’ that has been given on the state rights by Narendra Modi. One can easily understand the coherence and logic behind these sorts of moves especially when you look at things holistically after Modi came back to power in 2019,” says senior journalist R. Mani.
Incidentally, Tamil Nadu’s farmer chief minister Palaniswami, who holds the PWD portfolio also, seems to have missed the complexity of the consequences, while handling the COVID-19 crisis.