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Explained: Twists and turns in Cauvery stalemate reached an uneasy resolution

The Cauvery climax, which was originally scheduled for 6 October, unraveled itself yesterday.

At the end of a detailed hearing lasting for two hours, with an interval of 25 minutes, in the afternoon, the Supreme Court directed Karnataka to release 2,000 cusecs of water from 7 October to 17 October.

We explain what happened behind the scenes, and how a crisis-like situation was finally resolved, albeit for now.

So, Karnataka has finally agreed to release Cauvery water to Tamil Nadu, and comply with the SC’s directives. How did the impossible happen? Was it because the SC threatened Karnataka that its non-compliance would invite the wrath of law?

Well, those who are familiar with Karnataka’s history of non-compliance on Cauvery, do not think so. To them, what has really happened is ​that Karnataka did not want to see the Cauvery Management Board come into being. The state does not see the CMB to be in its favour. Therefore, in order to prevent it from being formed, it has released water, so that the SC​, taking note of its compliance,​does not insist on its formation yesterday.

Well, that is what happened yesterday, right? But it was surprising to see the Attorney-General, who first readily agreed to the early formation of the Board, backtracking on it. Why did he do so?

The AG, Mukul Rohatgi, filed an application seeking modification of the SC’s 30 September order directing the rapid formation of CMB within three days. All the parties that day had agreed to it.

However, it appears the Centre was informed of Karnataka’s concerns that the CMB would be against its interests. Remember, it was Karnataka which stalled the formation of CMB, both after the Final Order of the Cauvery Water Disputes Tribunal in 2007 and again when the order was notified in 2013.

It was only because of Karnataka’s opposition to the CMB, the SC had directed the constitution of the Supervisory Committee​ in 2013.

But on 30 September, when the SC was considering how to solve the dispute, it seized on the AG’s readiness to advance CMB’s constitution, if it can find a solution. That is how the SC directed CMB’s formation withn 3 days, and scheduled the next hearing on 6 October, ordering Karnataka to release 6000 cusecs every day to TN from 1 October to 6 October.

As the day of the reckoning approached, Karnataka began to press the panic button. It realised that with CMB monitoring water release, it would end up losing more water to TN Therefore, one story is that Karnataka prevailed on the UOI to change its stand.

So, how did the AG explain his U-turn yesterday?

Well, he admitted that he had made a mistake. The CMB constitution, he said, is a legislative function. He also added that the Tribunal had only recommended its formation, and it is not binding on the Centre.

Even if it is just a recommendation,​ CMB​ is desirable in the present circumstances, right? So, why should the Centre and Karnataka hesitate?

The AG submitted yesterday the legal position on whether the SC can direct formation of CMB is not very clear, and this question must be resolved first.

As the main matter involving the SLPs filed by the two States is being heard by a three Judge bench on 18 October, he suggested that the question of CMB also can wait till then, and the present two Judge bench (comprising justices Dipak Misra and UU Lalit) should not hear it.

Then, what happened?

The bench agreed to it, and sought the views of both the states on what should be done in the interim, till 18th. The bench gave 25 minutes to Karnataka to obtain instructions on the likely quantum of water it can release from 7th to 17th October. After some wrangling on the quantum, the bench arrived at the figure of 2000 cusecs per day for the period​,even though Karnataka counsel informed the court that he had instructions to accept release of only 1500 cusecs every day for the 10 day period from 7 October.​

​++Tamil Nadu, for sure, must have expressed its disappointment.​++

Tamil Nadu appeared resigned to its fate, with its counsel, Shekhar Naphade, complaining that the excuses offered by Karnataka are endless.

Any acrimonious exchanges yesterday between the counsel​ for both the states​?

Of course. Karnataka counsel, Nariman asked TN’s counsel, Shehar Naphade not to get angry.

Naphade asked Karnataka to explain why this belated wisdom to release water. They wanted to ensure there is no CMB That is why the change of heart, he said. The UOI is playing into their hands, he further explained. There is more than what meets the eye, was another remark by Naphade.

The former Chief Minister of Karnataka​, SM Krishna, had ​apologised to the Supreme Court, when served a contempt notice, after four years, and this Court accepted it​, even though contempt was established.​

If a small man committed similar contempt, he would have been jailed, he said.

Justice Dipak Misra then tried to pacify Naphade that it is not a question of x or y personality; if there is a real natural difficulty, the court has to consider it.

So, effectively, the two Judge bench is washing its hands off, so that the three Judge bench takes over​ the dispute​on 18 October.

Yes it appears so.

The court has also accepted AG’s proposal to send a technical team to study the ground situation at the Cauvery basin, and to give a report on 17 October. Will it serve any purpose?

Tamil Nadu obviously thinks it won’t. Because, it is not clear whether the team, comprising officials from both TN and Karnataka, will be able to give a unanimous report. Secondly, it is also unclear whether its report will be binding on both the States. ​ Surely, it will help to ease the tension between the two States for the time being, and buy peace.

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