Cauvery row: SC directs Karnataka to release water, Centre asked to set up Management Board

Karnataka was directed on Tuesday to release 2,000 cusecs Cauvery water per day to Tamil Nadu from October 7 to 18 by the Supreme Court, which deferred its order asking the Centre to set up Cauvery Water Management Board till it finally decided on appeals relating to the age-old water dispute.

Instead, the apex court agreed to the suggestion that a Supervisory Committee, comprising officials and technical experts from the Centre, Tamil Nadu, Karnataka, Kerala and Puducherry, be set up to inspect Cauvery basin for assessing ground realities. The committee was asked by the bench, comprising Justices Dipak Misra and UU Lalit, to file its report by October 17.

The matter will be taken up a day after when the court reopens after the Dussehra break. The order was passed after taking on record the written note of Karnataka government that it has released around 17.5 TMC of water from September 5 to 30 and the proposal was to release 3.1 TMC by October 6.

However, Tamil Nadu government complained that there was a deficit 4.6 TMC of supply of water in the month of September and it required a total of 22 TMC of water till October. The bench agreed with the suggestion of Attorney General Mukul Rohatgi that the Supervisory Committee can have GS Jha, Chairman/Member of Central Water Commission (CWC) as chairman.

The panel, which would also comprise Chief Secretaries or his nominees of Tamil Nadu and Karnataka, will have chief engineers of all stakeholders including Kerala and Puducherry. Rohatgi suggested the names of CWC member Syed Masood Hussain and its chief engineer RK Gupta as other members of the proposed panel.

The apex court deferred the orders of September 20 and 30 for setting up of the CWMB, after the Attorney General said the civil appeals against Cauvery Tribunal's recommendation on it was pending and listed for hearing before a three-judge bench on October 18. 

The bench agreed that nobody has argued that appeals were pending to be heard by a three-judge bench and said, at the moment, it cannot pass an order as urged by the Centre to "recall or review" the orders on CWMB, but can defer it.

The day's hearing saw senior advocate FS Nariman making a comeback as Karnataka's lead counsel after the state complied with the apex court's September 30 direction to release water to Tamil Nadu and there were moments when he entered into heated exchange of words with opposite counsel Shekhar Naphade, representing Tamil Nadu.

Naphade said there was not a "change of heart" by Karnataka, rather it was a change in "strategy" to release water and "the Union of India was playing in their hands and there is much more to it than what meets the eye".

"It is the question of rule of law and the orders of the court are not being complied with. Why this soft approach towards the politicians? Chief Minister SM Krishna appeared after four years before this court and said sorry. If a small man would have committed contempt of this court, then he would have been punished and sent to jail. Why," Naphade said after Nariman submitted that the interim orders were passed even after he had raised objections and "those were not reasoned orders".

The bench said those orders were based on arithmetic, but Nariman countered saying "Arithmetic alone is not enough." "I pleaded not to pass the order but you (bench) did not listen. I received a lot of flak for this order. I do not want to receive any more flak," Nariman said.

When Naphade drew parallel between Krishna, former Chief Minister, and the common man by raising the issue of contempt, the bench said, "we have been quite tough in our orders and we know our business. We are not on 'X' or 'Y' person."

The matter was heard on Tuesday as the Centre filed an interim plea on Monday seeking modification of earlier orders asking it to set up Cauvery Water Management Board (CWMB). Rohatgi had said the Centre cannot be directed to set up the CWMB as the issue fell under the domain of legislature.

The apex court  on Monday also ordered Karnataka government to apprise it by Tuesday afternoon whether it has released water to Tamil Nadu as per its directions of September 30.  The Centre, in its plea, said, since it was "not a party to the proceedings before the Tribunal, it did not have opportunity to submit to the Tribunal that the Tribunal will not have any power of recommending to create a Board as suggested. Setting up of a Board is part of legislative exercise...

"It is submitted that constitution of a Board as suggested by the Tribunal and ordered by this Court on September 20 is not contemplated by the statute. By setting up of a Board of this nature, the Central Government is denuded of its power under the Act of 1956 to frame a scheme based on an award which goes through a legislative process by placing thereof before Parliament and the final say is vested in Parliament."

On September 30, SC had directed Karnataka to discharge 6,000 cusecs water from October 1-6, warning it that no one would know when the "wrath of the law" would fall on it. The apex court had also directed the Centre to establish the CWMB, saying once it was constituted, its team would visit the sites to take a prima facie view of the ground reality and submit a report.

On October 1, Karnataka had moved a review petition in the apex court against its three orders on Cauvery water release to Tamil Nadu and direction to the Centre to create the CWMB. In its review petition, Karnataka said "grave miscarriage of justice" has been caused to it pursuant to the three apex court orders of September 20, 27 and 30, by which it was directed to release 6000 cusecs of water till October 6 and the Centre was to constitute the Board by October 4.