Anil Divan Foundation

[Cold Open : Nehru’s speech]

 

At the stroke of the midnight hour when the world sleeps India will awake to life and freedom. 

 

Host: When India won its independence in 1947, the country consisted of over 500 provinces. These were roughly divided into states ruled by vassal kings and states ruled directly by the British. Stitching together this subcontinental patchwork was a fraught task. Partition had left deep wounds and national leaders were anxious that further strife could tear apart the country’s political boundaries. With this in mind, the Constitution was designed to address potential fissures stemming from language, identity, or resources. Yet,  when conflicts did arise, they tested the limits of the constitutional framework.

​

<Insert: News audio clip montage of the Cauvery Water Dispute > 

 

Clip 1: 1892 aur 1924 me Mysore rajya aur Madras Presidency ke beech jal batware ko lekar samjhaute hue the. 

 

Clip 2: Prominent among them is the 126-year-old Cauvery water dispute between Karnataka and Tamil Nadu.  Political parties from Tamil Nadu are demanding the constitution of a Cauvery water management board that will… 

 

Clip 3: Farmers claim that despite the Supreme court’s February 16 order no attempt has been made by the government to form the Cauvery Water Management Board. 

 

Clip 4: The Cauvery River Water dispute has taken an ugly turn as protestors in Karnataka’s Mandya district vandalised the PWD office and raised the slogans against Tamil Nadu chief minister J Jayalalitha on Tuesday. The protestors are raising their voice against the Supreme court’s order to release more Cauvery river water to neighbouring Tamil Nadu. Last week the Supreme Court told Karnataka to live and let live. 

 

The dispute between Tamil Nadu and Karnataka over the river Cauvery has been one of the most high-profile interstate disputes in the history of India, played out in the form of riots, prolonged negotiations and finally a long battle in the Supreme Court. The stakes of the case have had far-reaching implications for the fate of India’s political unity itself. 

​

Welcome back to Friend of the Court, a podcast series where we are exploring constitutional cases argued by Anil Divan. I am your host Raghu Karnad. In this and the next episode, we will be looking at Anil Divan’s tryst with India’s oldest river dispute, principally between Tamil Nadu and Karnataka over the Cauvery. First we look at the history and the build-up of the issue. The fundamental question we’ll be asking is whether river disputes can be resolved through political processes, especially in a federal system like India’s. 

​

Host: In the 1972 Kannada social drama, Bangaarada Manushya or Golden Man, the film star Rajkumar plays a young man who gives up his promising life in the city to be a farmer in his village. The lofty idealism of Bangaarada Manushya inspired a generation of young Kannadigas to return to their roots, just as the protagonist had. The film was a smash hit, the most successful Kannada film at the time, and it instantly elevated Rajkumar to the status of a Kannadiga icon. 

​

The river Cauvery, a major lifeline for the farmers of south Karnataka, also plays a role in the film. One plot point revolves around a drought in the area that is ultimately tackled by building a canal following the designs of another Kannadiga icon, the visionary engineer M Visvesvaraya.  The lyrics of one song in the film even hail his dam building efforts on the Cauvery, and the outcome, as the character sings, is “our rich Kannada land”.

​

Audio: Excerpt from the hit song “Aagadu Endu” from the film 4.06 to 4.26. 

​

Host: In addition to being central to agriculture in south Karnataka, the Cauvery occupies an important place in the cultural and emotional landscape of Kannadigas. 

​

Since the early-20th Century, the state’s conflict with Tamil Nadu over the river has fuelled Kannada linguistic politics and emerged as a site for contesting regional identities. In the process, India’s longest-running water dispute has tested the limits of our federal political structure. 

 

Host: Decades later, Rajkumar would play a different kind of role in the Cauvery saga — but this time in the real world. In July of 2000, the actor, a virtual demi-god in the state, was kidnapped from his farmhouse by the notorious criminal Veerappan. The moustachioed sandalwood smuggler, wanted for over a 100 murders, ran his operations from the forests that straddled the fringes of Tamil Nadu and Karnataka. Veerappan issued a 10-point list to both state governments to secure the safe release of his high-profile captive. His demands included minimum wages for Tamil workers in Karnataka and making Tamil an official language in the state. The list also featured demands for a resolution of the Cauvery dispute, and specifically the immediate release of 205 thousand million cubic feet or TMC of water to Tamil Nadu. Here is senior journalist and author, Sugata Srinivasaraju, telling us about the episode.

 

Srinivasaraju: Veerappan was into sandalwood smuggling and both states come together to form the special task force to nab him. He's a bandit who has to be nabbed… So, joint effort is continuing on that front. And incidentally, he was a Tamil. Incidentally, Raj Kumar was born in an area which adjoins the Tamil area. eHe's a common criminal. Until that point, I don't think he was concerned about the Cauvery river waters. See he is also playing to the gallery and trying to make it look like that he's a statesman or an ambassador for the Tamil Nadu government trying to negotiate the Cauvery river waters.

​

Host: A dacoit with folk hero aspirations, Veerappan was both a deadly criminal and a cult figure. By 1991, the governments of Tamil Nadu and Karnataka were co-operating on his capture. Perhaps desperate for sympathy, Veerappan was now attempting to refashion himself as a saviour of the Tamil people. Rajkumar fans, meanwhile, were enraged. They went on a rampage, destroying public property in Bangalore and demanding that the state government step up its efforts for the actor’s safe return. It took 108 days and multiple rounds of negotiations, before Rajkumar was ultimately released. Though the particulars of the deal remain a matter of speculation to this day, one thing was clear—almost none of Veerappan’s publicly stated demands were met. Here is Karnataka chief minister SM Krishna speaking to NDTV shortly after Rajkumar’s release:

​

<Audio: SM Krishna at 1.09 to 1.19 in the NDTV clip: Veerappan has said that we have to go to the International Court of Justice for settling Cauvery dispute, we have said no. Veerappan said that Tamil should be the second language of Karnataka, we have said no.>

​

Host: This strange and emotional incident was steeped in linguistic politics. Veerappan was attempting to style himself as a Tamil hero not only through his conditions, but by capturing an icon of the supposed enemy. Here is Srinivasaraju broadly commenting on the force of these identities and what shapes them.

​

Srinivasaraju: India itself was reorganised as linguistic states. So, you have a nationalism and there is a sub-nationalism and sub-nationalism is framed on one as your either your land or water or language or your ethnicity… So linguistic identity becomes primary identity. With the linguistic identity, the more important thing, see the linguistic identity is there of course, very important, but connected with the linguistic identity or interlinked with the linguistic identity is your rights over the water that belongs to that land. So land, water and language, it's a tripod on which sub-nationalist politics operates.

​

Host: Jawaharlal Nehru’s generation of leaders were worried  that India could disintegrate if the embers of regional identity were fanned. In an interview to India Today, historian and author Ramachandra Guha described apprehensions over creating linguistic states. 

​

[News clip]

​

Ramachandra Guha: At the time, you are right, there was a debate, there was a great worry that India and Pakistan were divided along religious lines and that the demands for linguistic states would lead to further balkanisation. And Nehru and Patel were both worried. But Gandhi had promised the people of the south and the west that they would have linguistic states once India became independent. And finally Nehru conceded the principle… he formed the states reorganisation commission, which mandated the creation of linguistic states.

​

<Music here>

​

Host: But politics over water inspired no special concern. Before Independence, water disputes had arisen and had been resolved through committees set up by the colonial government. Perhaps based on this experience, the Constituent Assembly too, treated such disputes as a purely administrative problem. But as the years rolled on, it became clear that the drawing of linguistic boundaries was at odds with the geographic reality of sharing rivers. And the Cauvery dispute emerged as one of the most divisive interstate disputes of independent India. What was the issue though and why did it hold such cultural and political significance? 

​

Originating at the Talakaveri in the Kodagu district of Karnataka, the Cauvery is an east-flowing river that travels through present-day Kerala, Puducherry and Tamil Nadu, before draining into the Bay of Bengal. Southern Karnataka lies upstream while central and eastern Tamil Nadu lie downstream or in the delta areas. Historically, agriculture has prospered in this delta region, in Thanjavur district. The first dam in this area, known as the Grand Anicut, was built by the Cholas as far back as the 2nd Century AD. Here is senior journalist and commentator AS Panneerselvan telling us about the overall importance of the Cauvery in Tamil Nadu. 

​

Panneerselvan: One is, it is providing drinking water, second, it is providing water for industrial use. Remember, we are talking about a state which is highly industrialised. For a state which is highly industrialised, water for its industrial uses is central. And if we're looking at the Cauvery’s route, we find Tirupur as a first Cauvery centre and even Hosur, which is the beginning of the state, gets its support through Cauvery. Then the tributaries like Noyal, or Amaravati, they are all again fed through Cauvery. Therefore this Tirupur, Karur - the entire industrialisation is linked with Cauvery, then it's providing the biggest support for irrigation. 

​

Host: Under the British, the Cauvery delta became a part of the Madras Presidency, directly ruled by a Governor appointed by the Crown. The fertile delta region was a source of revenue for the administration. And it took measures to improve irrigation along the river. The Presidency included all of present-day Tamil Nadu, and parts of the neighbouring states. To its west lay the Wodeyar-ruled kingdom of Mysore, which mainly consisted of Southern Karnataka. In the late-19th century, new dam technologies had ushered in a new era of river water utilisation, especially for areas such as Mysore. Beginning in 1881, Mysore also embarked on a mission to industrialise its economy. Dam building became a priority, especially after two devastating droughts in the preceding decade. At first, Madras bristled. But the two states brokered an agreement in 1892 to govern the use of their shared river systems—it would now be mandatory for Mysore to take consent from Madras before constructing on its portion of the river. A flashpoint arose again in 1910, when chief engineer and future Bharat Ratna M Visvesvaraya proposed a dam in the village of Kannambadi in Mandya. Alarmed by the prospect of a dam upstream, Madras refused its consent. The matter now became the subject of prolonged legal negotiations. Finally in 1924, after many failed rounds, and an unsuccessful arbitration attempt, Mysore and Madras reached an agreement. The agreement provided for the construction of the Krishnarajasagar dam or the KRS Dam in Mysore and the Mettur Dam in Madras. This agreement fixed the quantity of water that Mysore would have to release to Madras each month before impounding water for their use in the KRS Dam. It also specified the acreage of land that could be developed for agriculture by both sides. However, the onus was on Mysore to ensure that its activities did not affect the flow of water downstream into Madras. Panneerselvan tells us more about the advantage Madras enjoyed in 1924:

​

Panneerselvan: See, 1924 definitely Madras state had an advantageous position because it was under colonial rule. And it also had a Justice Party government. The Justice Party government and the colonial rule gave weightage to Tamil Nadu compared to the princely state of Mysore, and the princely state of Mysore was not really busy in securing its rights because it was trying to renegotiate its own position. The difference between a partly-elected and a full-fledged state arrangement of Tamil Nadu versus a princely state. Then in that sense, when Karnataka is talking about the unfair nature of the 1924 (agreement), one has to concede this element of unfairness.

​

Host: The 1924 agreement, which would be reviewed after 50 years, also contained other seeds for future trouble.

​

Panneerselvan: 1924 agreement had no idea of river water resources sharing when there is a shortfall. It assumed that every year is going to be a decent rainfall (year). Therefore there was no distress formula which was embedded into that agreement. And the second issue is that the agreement did not take into account the new demands on water. That agreement has no clue about drinking water requirements, that water had no clue about industrial requirements. That's a reason in the case of Tamil Nadu, that delta region, the cultivation history goes back to 2000 years. Whereas the region from Kodagu to Mandya was developed over the last 200 years, therefore this historical dispute discrepancy was also not recorded into that agreement. And these are the past which come back to haunt us in the present.

​

Host: Although the agreement was reached between two territories that enjoyed different degrees of sovereignty, within a few decades, the political landscape of  India would change dramatically. In 1951, after the Constitution came into force, Madras and Mysore became two states of the new Indian nation with equal rights and bound by the rules of a federal system. In 1956, Indian provinces were reorganised along linguistic lines. Madras was broadly divided into Telugu-speaking Andhra Pradesh, and Tamil-speaking Tamil Nadu. Mysore, along with other Kannada-speaking provinces including areas of erstwhile Bombay, and Hyderabad were united to create the state of Mysore, later renamed, Karnataka. This, however, did not change the course of the Cauvery; it still remained a transboundary river.

​

<SFX Transition - Industrial Sound Design>

​

Host: In the initial years after independence, Nehru’s government was dedicated to building a large industrial base for the Indian economy, and dams were a key component in this project. In 1955, amid much fanfare, Nehru laid the foundation for one of the world’s tallest dams at Bhakra Nangal on the Sutlej river.

​

<News report on inauguration of the Bhakra Nangal in 1964, Reporter: A herculean effort to harness the might of the turbulent Sutlej to serve one of India’s most arid regions.. The world’s biggest single irrigation network, the Bhakra Nangal project symbolises the growing strength of the nation and its determination to go ahead. A button is pressed and the Sutlej flows into the canal.>

​

Host: With the Nehru government’s growing focus on dam building, came the potential for more water-sharing conflicts. But Article 262 of the Constitution gave Parliament the power to create a legal  framework for adjudicating interstate river water disputes. It made explicit provisions to keep the dispute out of the courts. Here is Advocate KK Lahiri, the author of a book on the River Disputes Act, telling us about its origins. 

​

Lahiri: Our constitutional forefathers did not want to cast the adjudicatory mechanism of water disputes in stone. And you then had only article 262 emerging. And six years later, in exercise of powers under 262, you had the Interstate Water Disputes Act coming in of course. 

 

[Parliament Sound Design (Generic)] 

Speaker: The Bill is being passed. Those in favour can say “aye”. Response: Aye. Those against may say “no”. Response: No. Speaker: The ayes have it, the ayes have it, the ayes have it. The bill is passed. 

​

Host: Parliament passed the Act in 1956. It gave the central government the power to mediate water disputes between states. If mediation failed, the centre would have to establish a Tribunal, a body set up for areas of law that require a great degree of technical input like environment, telecom, and of course river water. Crucially, the Act prevented such disputes from being taken to court.  

​

Just as the Act was passed in 1956,  the newly-reorganised state of Mysore came into being. Mysore’s Chief Ministers in the early years came from the Lingayat community which dominated the north of the state. This meant that the concerns of the Cauvery basin in the south, which was dominated by the landed Vokkaliga caste, were not well represented. However, one ambitious young Vokkaliga politician from the Cauvery Basin would change this. His name was HD Deve Gowda. Here is Srinivasaraju explaining the future prime minister’s role in pushing the Cauvery issue to the centre of the state’s politics.

​

Srinivasaraju: There is this newbie legislator who's trying to make a mark, until then, there is no decisive leadership for the Cauvery river harnessing the Cauvery river waters in the Cauvery basin area… Besides making logical arguments, he is also picking on emotion and making it an emotive issue for the people in the basin area. So, he hails from Hassan, so Hassan  is part of it, there is Mandya, there is Mysore, then you have Kolar, you have Bangalore rural district. So all of this, there is a new awakening about the Cauvery river waters… And then he's playing the game beautifully, by picking a policy thing, something which is both policy and an emotive connect has a policy and emotive connect to the people. It affects the lives of people, it affects their livelihoods, because you know, it's about several 1000 hectares lakhs of hectares of cultivable area, there is drinking water issue, which comes much later, of course, so he's saying if you give away all water see, it's a very interesting thing, if he says he tells Mr. Nijalingappa, if you give away all water to Tamil Nadu as you have promised then what are my people going to drink?

​

Host: Deve Gowda was reacting to the Chief Minister, S Nijalingappa informally agreeing to release water to Tamil Nadu. Nijalingappa was a Lingayat, Gowda was a Vokkaliga. By the late 1960s, a newly emboldened Mysore, soon to be renamed Karnataka, started planning reservoirs on the  Cauvery. The old, 1924 agreement created restrictions, but in Karnataka’s view, that agreement would end in 1974 – potentially freeing up the state to explore new agricultural developments. Sharad Javali, a senior advocate who represented Karnataka for close to 30 years, explains: 

​

Javali: Afterwards, when the agreement was due to expire, according to us (in) 50 years after 1924. We were approaching 1974. Around that time, say for about 10 years earlier, the awareness started guiding Karnataka, the new state of Karnataka, the state felt that it need not get bogged down in correspondence with Madras seeking their approval for projects to be set up in the territories of Karnataka. 

​

Host: Predictably, these plans did not sit well with Tamil Nadu. Upset by what they saw as disturbances to an age-old understanding, Tamil Nadu approached the centre in 1969 asking it to step in and mediate. Unlike the shaky consensus in Karnataka, Tamil Nadu politicians across party lines were united on the Cauvery issue. The State Assembly passed a resolution in 1971 urging the centre to set up a Tribunal to adjudicate between the states and halt fresh constructions. Here is Javali again:

​

Javali: The government of the new state of Karnataka resolved that whatever be the trouble that the state might face, we would proceed with the construction of these projects on the tributaries as that would satisfy the extensive areas in the state, and that would satisfy the needs of the state of Karnataka. So, they proceeded. It was then in that background, that Tamil Nadu realised that this is a new Karnataka, they are not going to bend anymore, as has been accustomed over the decades. So what was the course available to Tamil Nadu? Tamil Nadu approached by a suit as if it's a dispute between the two states in 1971. 

​

Host: With the two states at loggerheads, Prime Minister Indira Gandhi stepped in. She persuaded Tamil Nadu to drop its suit by promising to mediate a dialogue. But even those talks failed. Panneerselvan explains why: 

​

Panneerselvan: In 1972 Tamil Nadu realises that it's not going to be an easy task. Because, the original agreement - the 1924 agreement - Tamil Nadu got 75% of the water share and Karnataka was given 25% of the water share… Karnataka wanted a formula of  50-50... this position Tamil Nadu was not willing to accept in toto because it says that it's not recognising the historic commitment – the delta, the Cauvery delta region is a historic commitment of the state. And it says that this agreement is not addressing the historic commitment. Yes, we are not going to increase the new areas under the river water requirements, but we cannot deny the existing beneficiaries. That was Tamil Nadu’s argument. And that argument was not actually working well with Karnataka. 

​

Host: 1974 came and went with no new framework to replace the 1924 agreement. The two states continued having talks to arrive at a sharing framework but there was no resolution in sight. All this while, the centre showed no inclination to set up a Tribunal, a demand that Tamil Nadu had first made in 1970. Their reluctance stood out, especially since the centre had recently set up not one, but three tribunals; to resolve the Godavari, Narmada and Krishna river disputes. So what was stopping them here? The Cauvery had grown into such a sensitive issue, that no national political party was willing to risk their electoral chances by taking a stand. Panneerselvan again:

​

Panneerselvan: Primarily the difference between Tamil Nadu and Karnataka is that Tamil Nadu has been always ruled by a regional party and Karnataka has been ruled by a national party…. and there is a bias towards a national party regime. Though we talk about cooperative federalism, we also know that there is a particular political bias towards national parties, which has been entrenched and in cases like Cauvery, this becomes very very important.

​

Host: Tamil Nadu was growing frustrated. The negotiations with Karnataka were going nowhere. And the central government also seemed to be stalling. Tamil Nadu sensed that the reason was the Congress party’s desperation to hold on to power both at the centre and in Karnataka. 

​

Eventually, in 1983, after one of the decade’s worst monsoons, a farmers’ association in Tamil Nadu filed a writ petition in the Supreme court. It made the same plea: that the court direct the central government to establish a Tribunal. The Supreme Court heard the petition, and in 1990, that is precisely what it did. 

​

The Tribunal, consisting of the Chief Justice of the Bombay High Court and two sitting judges of other high courts, would now have to come up with a resolution. While in Tamil Nadu there was a sense of victory over this development, the reception in Karnataka was muted. And it would only get worse. The first order of business before the Tribunal was to design a temporary framework for water-sharing while it heard the matter. It issued an interim order directing the Karnataka government to release 205 thousand million cubic feet, or TMC, of water to Tamil Nadu. This figure was based on the average inflow into the state between 1980 and 1990, adjusted for extreme years. This meant that Karnataka had to reduce its own share of water, triggering angry reactions in the state. Srinivasaraju explains why Kannada groups felt wronged. 

​

Srinivasaraju: They produce a video, which shows the Tribunal members travelling across Tamil Nadu, accepting felicitations and gifts and all that. So they're trying to draw this conclusion that these people are not fair. They've acted against the interests of Karnataka. And of course, there are enough agents, you know I mean, with the Kannada identity gets mixed up, there are Kannada organisations, which, you know, come into the picture immediately, and no political party or no politician wants to be left out of the whole thing. And, you know I mean, if he's not seen condemning it, then you know, he'll ben hung in public, you know, I mean, that is the kind of environment that exists whenever the Cauvery dispute started. And it was no different in 1991. 

​

Host: Where the tribunal was expected to bring tempers down, its first actions had the opposite effect. Riots broke out following the interim order, in 1991. Twenty eight people died in Bangalore alone, and thousands more across the state were displaced. It was the first time that widespread violence erupted over the Cauvery dispute but it would not be the last. 

​

[Kannada News Clip]

Balikka  magadi raste Kamakshi palya navarang, heege west bengaluru ninda hidedu east bengalurna varegu prathipatanegalu horatagalu haralibitbodu nodi, Firingge hadinaru palli magadi raste alli kanunu sugyavaste kaapadalu Policeru laati charge maadidaru.

​

Host: The tribunal would conduct its hearings for 17 years, till 2007 and both states would engage leading lawyers and experts in this high-stakes case. But could a tribunal resolve such a politically charged matter? Join us in the next episode of Friend of the Court as we follow the Cauvery dispute to the one place it was never meant to go – the Supreme Court of India.