BRADFORD CENTRE FOR UNIVERSITY OF

INTERNATIONAL BRADFORD
DEVELOPMENT

WATER AND IDENTITY:

AN ANALYSIS OF THE CAUVERY RIVER WATER

DISPUTE

P.B. Anand

BCID Research Paper 3

BCID, University of Bradford 1

 BCID Research Paper 3

WATER AND IDENTITY:

AN ANALYSIS OF THE CAUVERY RIVER WATER

DISPUTE

P.B. Anand

Senior Lecturer
Bradford Centre for International Development
University of Bradford, UK

BCID, University of Bradford 2

 July 2004

ISBN 1 898828 68 7

Water and Identity: An Analysis of the Cauvery River Water Dispute

Abstract
This paper focuses on the dispute over river Cauvery in Southern India. Among the
causes of river water disputes are contested property rights, difficulty in enforcing
such rights, conflict of uses and a lack of willingness to compromise. A co-operative
outcome in such cases depends on several factors: asymmetry of power in a triadic
relationship between a federal government and two riparian states (one upstream and
one downstream). Other factors influencing co-operation are the extent to which the
claims of river waters can be elevated from those of immediate riparian peoples to
those of an entire state; the dominance of a masculine paradigm towards ‘taming’
river waters using ‘hard’ investments rather than ‘soft’ and decentralised alternatives.
On the basis of district level data, the importance of river Cauvery to the hydrology,
economy and polity of the two contesting states is examined. This analysis helps us to
appreciate why the two riparian state governments have limited room to manouvre.
Drawing from two brief case studies of Murray Darling Basin and recent litigation in
the USA, and other international experiences of river water treaties, the paper
identifies various implications for the resolution of Cauvery and other river water
disputes.

Date: 10 July 2004

Key words: River waters, Collective action, Centre-state relations, conflict resolution
JEL classification: D72, D74, H41, H77, K11, Q25
Word count: 14,140
© P.B. Anand

Acknowledgements

This paper is based on author’s research made possible by a Small Research Grant of
the British Academy (SG37399). This support is gratefully acknowledged. Some
issues in this paper were presented at the Alternative Water Forum, at the University
of Bradford, May 1-2, 2003; and at the ESRC Science and Society workshop on
‘Scarcity’ at London School of Economics, November 2003. The author is
particularly grateful to a number of individuals whose co-operation was crucial during
the fieldwork in March/April 2004. In particular, the author is grateful to

BCID, University of Bradford 3

A.Mohanakrishnan, R.Hariram, Hrishikesh, Joshi Shivadutta, Vijaya Sankar,
T.S.Subramanian, Parvathi Menon, Nagesh Hegde, Gayatri and Paul Appasamy.
Usual disclaimers apply.

Contact details

P.B. Anand, Bradford Centre for International Development, University of Bradford,

Bradford BD7 1DP, UK
Tel: +44-1274-233980
Fax: +44-1274-235280
Email: p.b.anand@bradford.ac.uk
Web: http://www.bradford.ac.uk/

BCID, University of Bradford 4

Water and Identity: Making Sense of the Cauvery1 River
Water Dispute
1. Introduction

Etymologists are divided in terms of whether the word ‘riparian’ (of the boundaries of
a river) is derived from river or the word ‘river’ (that which flows between two
boundaries) is derived from riparian. It appears that where there is a river, dispute
cannot be far off. This paper aims to explore inter-state river water disputes in a
federal context using the Cauvery river dispute in India as a case study. Water
resources are prone to contested entitlements and property rights. Such contests are
exacerbated as pressure on fresh water sources increases. In the case of river waters,
co-operation is further complicated because of the asymmetry between the upstream
and the downstream users. A further complication arises when a river’s waters can be
used for multiple purposes and there is no easy way to determine which purpose
should have a priority over others.

There is a rich literature on international environmental agreements (Haas et al, 1993;

Weiss and Jacobson,1998; Sand, 1999) and on collective action, when it works and
why. Mancur Olson’s (1965) seminal analysis suggests that collective action depends
on (a) group benefits and costs; (b) whether such benefits are ‘public goods’; (c)
whether non-violators can be excluded and penalised. Olson’s recommendation to
overcome collective action problem is to create separate and selective incentives.
Sandler (1992; 1998) suggests that these principles have been crucial in explaining
why some international agreements are successful.

Against this background, this paper examines various challenges to sharing water
peacefully, in the context of the river Cauvery dispute. Section 2 presents a review of
some theoretical considerations in understanding river water disputes. Section 3
provides a historical and institutional perspective of Cauvery dispute. Section 4
identifies the various causes of the disputes. Section 5 draws together these
discussions in terms of policy implications.

2. Understanding river water disputes: International and national aspects

Considerable attention has been paid to the potential role of water resources in
causing or exacerbating conflicts between nation-states (e.g., Homer-Dixon,1998;
Correia and de Silva,1999; Yoffe and Ward, 1999; Salman, 2000; Swain, 2000). The
emergence of co-operation and developing mechanisms to resolve conflicts has been
examined in a number of studies (Elhance, 1999; Gleick,2000; Sadoff et al., 2002;
Nakayama, 2003). However, there is fairly limited discussion on inter-state water
disputes within a given country, though some of the policies recommended for
international river systems have some relevance to inter-state rivers (Chapman and
Thomsan,1995; Benvenisti,1996; Biswas and Uitto, 2001; Gleick,2000).

1
Some times spelled as Kaveri.

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In this section, first I will examine some key considerations with regard to
international water disputes. Then, the issues concerning inter-state water disputes are
examined.

2.1 Theories and Principles for resolving international water disputes

Worldwide, there are 261 international river basins. A systematic study of the various
ater agreements is presented in the Transboundary Freshwater Disputes Database
(TFDD) project of Oregon State University (Giordano and Wolf,2003). This database
also includes details of 149 international water related treaties and 34 inter-state river
compacts in the USA.

Approaches to the resolution of international river disputes reflect various legal

principles (see Benvenesti, 1996; Guhan,1993; Giordano and Wolf,2003). Some of
the major legal principles are listed below:

i. The principle of absolute sovereignty- where a riparian state may claim that it
has absolute rights over a river flowing through its territory and that how it
chooses to use those waters is its domestic concern and other states have no
right to intervene or dictate. This is popularly known as the Harmon doctrine
supposedly based on the opinion given by the American Attorney General
Hudson Harmon in the case of Rio Grande river dispute between Mexico and
the USA in 1895.

ii. The principle of absolute territorial or riverine integrity- where a (lower)

riparian claims that their right to the river's natural flow is absolute. Territorial
integrity is interpreted in terms of historical or prescriptive rights or that the
use of river waters are instrumental to the territorial integrity of the lower
riparian and thus these are inviolable.

iii. A related interpretation is known as the principle of prior appropriation

whereby the riparian who has used the waters first can claim a right.

iv. The principle of limited territorial sovereignty means that the rights of each
riparian state are co-dependent and not absolute. This requires each riparian
state to use the river waters without causing any harm to other riparians' use of
the waters.

v. The principle of equitable allocation or use is related to this and in this the
river is considered as a common property and all riparians are expected to
allocate waters equitably based on various factors.

vi. The principle of basinwide management suggests that a river basin should be
considered as a management unit no matter if it is spread across two or more
nations. The economic efficiency approach for example is reflected in the
view that the first best allocation of river waters is that which maximises the
net present value of the social benefits. This is also referred to as the economic
approach. It appears that a significant majority of the inter-state river
compacts focus mainly on economic efficiency (for example,

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 McCormick,1994; Bennett et al.,2000). However, river water sharing
instruments cannot be entirely based on economic efficiency grounds when
such water is used for multiple purposes where it is not easy to interpret the
principle of equitable distribution with ease. In such cases, a trade-off between
different purposes could trigger conflicts among different stakeholder groups.
Even if one purpose such as agriculture dominates others, arguments will
persist if subsistence agriculture is wide-spread. In such cases, other than
economic efficiency, aspects such as livelihoods and vulnerability also need to
be considered.

Giordano and Wolf (2003) consider the absolute principles such as (i) and (ii) above
to be extreme principles and other principles such as (v) and (vi) as moderate
principles. The Helsinki Rules of 1966 drawn up by the International Law Association
focused on reasonable and equitable use of international waters. These rules did not
have the status of a law but were mainly considered to be guiding principles for legal
interpretation in the case of international river disputes. The UN constituted the
International Law Commission in 1970 and after more than two decades, the
Commission's draft international bill was adapted by the UN General Assembly on 21
May 1997 as the UN Convention on the Law of the Non-navigational Uses of
International Water Courses2. As Giordano and Wolf (2003:74) point out, developing
common legal principles that can apply to over 250 international river basins is
doubtlessly a complex task and as a result it is inevitable that the principles will turn
out to be general (and vague). However, both the Helsinki rules and the UN
Convention focus mainly on the principle of equitable allocation while taking into
account all other factors such as economic, environmental and social aspects in all the
basin states.

Based on a review of the 49 international water accords and treaties, Giordano and
Wolf (2003) suggest that there is a tendency of co-riparians to develop practices
keeping in view basin-specific charactseristics. Their analysis suggests that while
river water disputes start with 'rights based' claims by upper and lower riparians,
gradually they move towards a 'needs based' allocation requirements. Secondly, they
note that river water treaties tend to protect prior-use clauses. They point out that the
prior use of waters by lower riparians tends to be recognised and protected in the
treaties (though this does not mean that lower riparians get more quantity of water).
Thirdly, while it is unlikely that a river treaty is based entirely on economic
principles, they point out that many treaties do include economic efficiency
considerations. Fourthly, while international efforts such as the UN Convention tend
to draw up general principles to accommodate as many different river sharing issues
as possible, they note that in each case, the riparians tend to identify and develop
provisions that address issues specific and local to the river concerned. Based on their
analysis, Giordano and Wolf (2003:78-79) identify four characteristics of effective
treaties. (i) Effective treaties provide for flexible and adaptable management structure.
(ii) "Effective treaties identify clear allocation schedules [for the release of waters]

2
This was open for signatures and was to enter into force when 35 states have ratified the convention.
As of 15 August 2002, 20 states have signed the convention. See international law commission’s site at
URL http://www.internationalwaterlaw.org/IntlDocs/Watercourse_status.htm. The riparian states are
referred to as ‘watercourse states’.

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while simultaneously providing for extreme hydrological events, new understanding
of basin dynamics, and changing societal values." (iii) Successful treaties tend to
focus on equitable distribution of final benefits rather than equitable use of water
itself. (iv) Effective treaties include clear mchanisms for conflict resolution.
Interestingly, the need for flexible systems of norms and sanctions is also recognised
at microlevel studies of collective action (Bardhan,1995; Anand,2003).

2.2 Resolution in inter-state water disputes within a nation

Dispute resolution in the case of intra-national waters requires a different approach,

where (a) escalation of dispute into armed conflict or war is not possible: and (b) the
federal government, national constitution, and the supreme court can provide
opportunities for intervention. In the case of India, river Cauvery dispute has received
some attention (Guhan,1993; Jeyarajan,1998; Iyer, 1999; Pelkey, n.d.). However, the
structural or systemic aspects of the water disputes or the factors that are likely to
promote co-operation remain to be examined.

Some of the main causes of a river water dispute are contested property rights,
changes in established rights or use patterns, the degree of asymmetry, and the scope
for collective action. These are considered in this section.

a. Property rights dimensions

With regard to contested property rights, the main issues are: whether any property
rights exist in the first place; how these property rights are defined; how they are
distributed; whether these are essentially riparian rights (appropriation) or use-
preserving rights3; whether it is possible to monitor the use; whether an enforcement
mechanism exists and in case of disagreement, who intervenes. Water is a fugitive
resource that cannot be easily contained by political boundaries or property
rights. The various institutions and allocation mechanisms that work very well in
case of other liquid (and somewhat fugitive) resources such as petroleum cannot
work in the case of water for two major reasons. First, unlike petroleum, water is
not merely an input into production processes but is essential for life4. This is
recognized and codified into religious or cultural values concerning rights over
water in different societies. Such values seem to be operating fairly successfully
at the level of an individual5. However, they are not adequate to guarantee water
security at the level of a collective, such as a nation or a region or a city.
Secondly, because of the fugitiveness of water, property right institutions are far
more contested than in the case of resources such as petroleum. Two types of
property rights for allocation of water are predominant: the concept of
inalienable right attached to property rights to land (in the case of groundwater)

3
This is specially relevant when the two riparians have two different uses of the river as their first
priority. For example, an upper riparian may consider irrigation as first priority. This may affect
volumes and flows and if the lower riparian has navigation as the first priority, they may not challenge
the upper riparian’s right to withdraw water but may want a limit imposed to preserve their navigation.
4
Though vast quantities of water are used mainly for agriculture, it is difficult to develop
property right institutions to isolate productive use of water from consumptive use.
5
Hence, it is highly improbable that thirst and lack of water is recorded as the primary cause of
death of an individual in any society.

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and the riparian rights based on prior appropriation doctrine in case of surface
sources such as rivers and lakes. However, in both cases, private decisions have
significant externalities on others. As a result water extraction involves a conflict
of common property and private property mechanisms.

Quite often, a dispute is triggered by a change in established use patterns or

appropriation regimes. For example a decision to alter the volume of flow or
withdraw water by building a new dam or other impounding structures or decisions
that affect the quality of water (for example, through pollution) fall in this category.
Because river waters can be used for several purposes and because use of upstream
waters for some such purposes can preclude certain other uses downstream, there is
scope for dispute.

b. Aspects of asymmetry

The degree of asymmetry between the riparians is an important element of whether a

co-operative outcome will emerge or not. Asymmetry has two dimensions. Locational
asymmetry means that the actions of the upper riparians can produce an externality on
the lower riparians but not vice versa. Power asymmetry means that the riparians are
not equals. In the context of international rivers, the hegemonic theories of power can
be used. For example, in the case of international river basins in the Middle East,
Lowi (1993:203) argues that co-operation cannot be achieved unless the dominant
power in the basin accepts that or has been induced to do so by external powers. So in
her view, co-operation amongst riparians occurs only if: "(1) the dominant power's
relationship to the water resources in question is one of critical need, linked to its
national security concerns, and (2) it is not the upstream riparian". As Lowi (p.73)
observed in the cases of Euphrates, Indus and Jordan basins, the relative power
between riparians can change over a period of time.

It appears that one of the reasons for the success of the Indus Waters Treaty is that a
situation of asymmetry has been converted into symmetry by treating each tributary as
a single unit and allocating in its entirety to one of the parties (Lowi,1993; Iyer,1999).
Such 'no inter-dependence' approach can work when there is scope for sharing a
number of rivers rather than sharing the waters of a given river.

Asymmetry of power is more difficult to define in the case of inter-state rivers than in
the case of international rivers. Here, relative power relates to the nature of federal
and state relationships, the constitutional status of river waters and the political self-
interest of federal government regime. The distribution of power between riparian
states depends on their relative population (and hence, their ability to control any vote
in the national parliament); the strength of the ruling coalition in the federal
government; whether one or more of the riparians have alternative water sources.
Experience in India suggests that when federal government is strong (i.e., a single
party has sufficient majority in the federal parliament), it can coerce riparian states to
come to an agreement. When federal government is weak (i.e., a coalition with a
small majority), it may have a self-interest in keeping river water disputes alive.
Similarly, the strength of state legislatures can also have significant influence. Six
possibilities can be considered as shown in table 1 below. For simplicity, it is assumed
that there are only two riparian states (one upstream and one downstream).

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Table 1: Asymmetry- Six possible situations for river water disputes6

Federal government is Federal government is

Strong Weak
Both riparian states are Case A Case B
weak Minimal scope for dispute: River water sharing
federal government can agreement, if any, is likely to
coerce agreement remain a short-term and
informal arrangement.
Powerful state is the Case C Case D
upstream riparian River dispute arises if federal No river dispute: Agreement
government intervenes on will be determined by
bahalf of the downstream upstream riparian
riparian
Powerful state is the Case E Case F
downstream riparian River dispute arises if There is scope for self-
federal government enforcing agreement between
intervenes on behalf of the the two riparians
downstream state

As in the case of international rivers, in the case of inter-state rivers too, the scope for
mediation by third party (namely, the federal government) is crucial. If third parties
cannot intervene, a co-operative solution needs to evolve only through mutual consent
of the disputants. With regard to the role of federal government, three different
scenarios are possible. The first scenario is of a strong federal government and weak
state governments (case A). In such a case, the federal government can decide river
water allocation and wield its power to enforce a solution. The second scenario is of
strong states and weak federal government (case D or case F). Co-operative outcome
depends mainly on whether the more powerful state is upper or lower riparian. The
federal government is essentially a weak observer with no or limited scope to
intervene. The third scenario is of volatile distribution of power (case B, case C or
case E). In such cases, a competition may ensue between the two disputing riparians
to woo the central government to support their cause.

It is also possible to interpret asymmetry from a game theoretic model. Usually, the
prisoner's dilemma (PD) model is used as an example of two person co-operation
issues. In the classic PD model, two individuals are confronted with a single period
co-operation decision: whether to co-operate or defect. Each agent considers the pay-
offs of co-operation and defection and finds that no matter what the other agent
decides, it is in her self-interest to defect. This model can be extended to sequential
(multi-period or repeated) game where agents may decide their strategy after taking
into account the other agent's actions in the previous rounds. If played over

6
Here ‘strong’ federal government means where the federal government has the powers to act
independently and influence decisions about inter-state river waters. A weak federal government is one
which cannot intervene without the consent of the states concerned.

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sufficiently large number of turns, the norm of reciprocity may influence over lead to
the agents' strategies converging towards Nash equilibrium of co-operative outcome.

An alternative model which may be relevant in the cases of river water diputes is
known as the chicken game (CG). In this, each agent/player tries to push the situation
towards brinksmanship with a view that one of the two players will have to 'chicken
out' to avoid catastrophe (see Hardin,1982; Sandler,1992; Hirshleifer, 2001; Dixit and
Nalebuff,1993). Thus, each player asserts that their position is the correct one and that
the only way to resolve the issue is for the opponent to modify their position. In the
short term, this appears like a deadlock and if there is no inter-dependence the
situation can remain in a status quo forever. Think of a draw in a game of chess where
both players have a small number of pieces with no asymmetry. However, in real life,
states sharing rivers also tend to share other things and this inter-dependence suggests
that a chicken game cannot continue endlessly.

c. River water disputes as collective action problems

River water dispute, as a situation that requires actions by more than one party, is a
situation of collective action (see Sandler,1992; Anand,2003). Two or more agents,
need to take an action that produces some collective benefits. In the case of river
waters, agent 1 can be an upstream riparian. Left to themselves, they would like to
withdraw all the quantity of water that they can potentially withdraw and use. Agent
2, the lower riparian imposes a limit on the quantity that agent 1 can withdraw. Left to
themselves, the lower riparians would like to prevent the upper riparian from using
any water at all from the river and thus, ensure that the entire river flow is available
only for downstream peoples. Collective action, is, however not costless7. Olson’s
seminal analysis suggests that collective action will take place only if benefits to the
individual agents exceed costs to themselves. For the upper riparian, the cost of
collective action is the water foregone (and the attendant reduction in patronage that
can be distributed). Similarly, the lower riparians would like to press for as large a
claim as possible. The cost to them is in terms of loss of credibility of the claim (and
the scope for entirely losing the riparian right). The true costs and benefits are only
known to the agents and are difficult to assess. Hence, the difficulty in predicting
when collective action works and when it may not work.

Related to this is the question of whether there is any issue-linkage. Suppose that two
riparians share a river but also have other transactions (say, a joint police task force to
nab a gang of brigands using a forest on the border between the two states or narcotics
control operations). The rivals may determine their strategy of whether to co-operate
or not on one issue depending on what the other did in case of the other issue/s. For
example, a tit-for-tat strategy means non-co-operation on other issues may trigger
non-co-operation in sharing river waters and vice versa. A further issue relates to

7
From a purely theoretical point of view, it is also possible to use a Coasean bargain framework to
depoliticise the riparian rights. However, for Coasean trading to work, the riparian rights must be
finally linked to quantities of water and how such quantities are valued. Valuation of water as an input
in production process may be feasible but such valuation may be irrelevant or very inequitable in case
of drinking water security issues. Apart from the ethical dilemmas, politically, such a framework is
almost impossible. Why should any rational, self-interest maximising political party willingly give up
its source of power?

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whether each of them uses a ‘compensatory’ framework where shortfall in one aspect
can be compensated with improvement on another aspect. Thus, whether or not two
riparian states will co-operate depends on (a) whether the river is the only transaction
between them; (b) if not, whether there is any issue-linkage; and (c) if so, whether the
issues are considered in a compensating framework or whether they are considered to
be discrete entities.

Thus, a range of scenarios exist and the policy choice depends on whether the central
government is stronger or weaker than the states, whether the riparian rights are
clearly identifiable, whether there can be gains from specialisation among the diputant
states and so on. In the absence of a recognition of such factors, a 'one size fits all'
approach to river water disputes leaves it ad hoc and reactive.

2.3 Experiences with regard to resolving river water disputes

As already noted, there is considerable literature on international river basins and their
management responses. However, literature on inter-state disputes within a federal
context, is rather scanty. In this section, two illustrative examples one from Australia
and one from the USA are briefly considered.

Case study 1: Murray-Darling Basin8

The Murray-Darling basin initiative is considered to be the largest integrated

catchment programme in the world. The watershed area of the two rivers totals about
1 million square kilometres.Murray river, apart from being a source of water for
agriculture and water supply, is also used for navigation. When attempts were being
made to divert Murray waters for irrigation in around 1880, the conflicts surfaced.
The sharing of waters became an important issue by the time the Australian
Federation constitution came in operation in 1901. A severe drought from 1895 to
1902 and a non government initiative for a conference in 1903 facilitated various
colonies and states to come together. However, the River Murray Waters agreement
did not emerge until 1915. This agreement was signed by the Federal government of
Australia and the governments of New South Wales, Victoria and South Australia.
The agreement provided for various storage schemes to be constructed. The River
Murray Commission was created with the responsibility to ensure that the main river
stream was maintained and that three states received their shares as per the agreement.
Until the late 1960s, the Commission focused mainly on water quantity. While
investigating salinity issues in the 1960s, the Commission gradually enlarged its focus
to include water quality issues. By 1980s, it was becoming clear that water resources
management cannot be confined to water alone but must be considered along with
water quality, environmental issues and land management concerns. In 1985, a
meeting of various ministers dealing with these and other issues in Adelaide,
ultimately led to the 1987 Murray Darling Basin agreement between the federal
government and the three states as an amendment to the Murray Waters Agreement.
This was replaced by an entirely new agreement in 1992. Two other members joined
subsequently- Queensland in 1996 and Australian Capital Terriroty in 1998.

8
Information for this case study is mainly from Murray Darling Basin initiative’s website: URL <
http://www.mdbc.gov.au/>

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The agreement provides for three institutions. The MDB ministerial council is the
primary decision making body. It comprises land, water and environment ministers in
the party states. From each state and federal government, up to three ministerial
members can sit in the council meetings. ACT government member sits on the council
as a non-voting member. At the bureaucratic level, the agreement provides for the
MDB Commission which is the executive arm. The commission is an autonomous
organisation equally responsible to the governments of the agreement.Apart from the
President, it has two commissioners from each state. The commissioners are the chief
executive and senior executives of state agencies responsible for land, water and
environmental policies within the state.The commission is also responsible for
monitoring water quantities and quality of water in the Murray River (article 41).
There is also a community advisory committee consisting of individuals and members
of networks from the MDB area. This committee's responsibility is to advise the
Ministerial Council from a community point of view. While it is recognised that there
are limits to participation in a mutli-jurisdiction river basin, nevertheless, community
participation is considered as one of the crucial elements to the robustness of MDB
(Chenoweth et al, 2002).

The costs of programme and projects are apportioned to the state governments equally
unless the council decides otherwise (article 65). Any state drawing a plan or project
proposal that is likely to affect the flow of water in the river is obliged to inform the
commission (article 46). The commission is required to conduct an environmental
assessment of such proposals (article 47). Goss (2002) notes that the recently created
Environmental Manager role in the Commission in relation to the integrated
catchment management programme and the sustainable rivers audit is expected to
contribute to strengthening accountability in this respect.

Case study 2: Inter-state river compacts in the USA

In the USA, the allocation of waters of many inter-state rivers are carried out through
a mechanism of inter-state river compacts. These compacts are essentially negotiated
contracts between states. Benvenisti (1996) provides a detailed study of the inter-state
river compacts and various design considerations from a collective action perspective.
Bennett et al (2000) focus on economic efficiency arguments. Most recently, the
sharing of Missouri river waters has emerged as a prominent dispute. Missouri is an
inter-state river involving seven riparian states from Montana to Missouri. A system
of dams has been built on the basis of a 1944 flood control legislation to control river
flows. This system of dams is maintained by the Army Corps of Engineers. Due to
prolonged drought in 2002, the Federal government intervened to change the existing
legislation to change flows in the river. The core of the present debate is a tension
between protecting fishing and recreation uses in the upstream states versus
maintaining river flow (volume of water) for navigation in the midstream states and
the possible effects of fluctuations in flows for downstream end states. According to
reports in the Columbia Daily Tribune, the states of Montana and Dakotas claim that
release of waters from the dams in their states to maintain navigation in downstream
states adversely affects fishing and recreation uses which according to them is crucial
to their economies. According to the lawyers representing Missouri, the people of that
state which is at the downstream end of the river are worried that changes to spring

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and summer flows will increase their vulnerability to floods and droughts
respectively.

Arkansas River dispute has been another long standing dispute9. The river compact
for sharing of the waters between Kansas and Colorado was signed in 1949. However,
in 1985, Kansas state brought a case before the US Supreme Court claiming damages
on the grounds that for years Colorado has been permitting farmers to develop wells
which have affected the flow of water to Kansas. In its judgement of 1995, the
Supreme Court ruled that while the agreement was not intentionally violated by
Colorado, it amounted to vilation of the agreement in terms of drawing more quantity
of water than it was entitled. Following this, the dispute focused on the amount of
compensation for Kansas and how the river should be managed in future. The claim
from Kansas was to the tune of $53 million. The Supreme Court appointed a Special
Master to examine the claims and make a report. While the Master's final report is
awaited, the draft report is said to have placed the compensation at $29 million (closer
to the amount suggested by Colorado).

Discussion of the two case studies:

A number of factors seem to have contributed to the success of the MDB initative.
The issue was active at the time when the constitution of Australia was being
considered. This in itself may not be an important factor but may have helped in
developing a flexible institutional structure for decision making in the case of the
River Murray. Secondly, the main tension in the case of this river is between
withdrawal of water for consumption versus maintaining river flow (for navigation).
In some ways, this tension seems to have favoured a conciliatory approach. Thirdly,
during the last three decades, the scope of the initiative shifted away from narrow
focus on water quantities to include water quality, later environmental objectives
including habitat protection, biodiversity and linked with land management
perspective. This has also reflected in management mechansims such as Fourthly,
this enlargement in focus was matched by appropriate organisational structure for
instance, in the composition of the MDB Council. Fifthly, apart from political
representation, a more direct role was also created for community consultation and
participation of stakeholders. Finally, while the primary decision making body
remained a political council, the technical and executive responsibilities are devolved
to an autonomous Commission. This approach seems to have been used later in
Mekong River Basin as well (see Nakayama,2003).

Going back to the four characteristics of effective treaties as identified by Giordano

and Wolf and discussed in the previous section, we find that the MDB initiative scores
well on all four of those dimensions. The Council-Commission provides the flexible
management structure. The inclusion of ministers responsible for land and
environmental issues suggests how the institution was adapted to the changing needs.
Clear allocation rules are strengthened through integrated management and
sustainable river audit methods. Focus on broader environmental concerns also
reflects an emphasis on equitable distribution of final benefits rather than merely
quantities. Some provisions are laid down for conflict resolution.

9
See http://www.uswaternews.com/archives/arcrights/2kanand9.html

BCID, University of Bradford 14

On the other hand, the river compacts approach in the USA seems to score high on
conflict resolution mechanisms but somewhat low on the other three dimensions.
Specially, there is little emphasis on equitable distribution of final benefits of water.

3. River water disputes in India

In India, until the Montagu-Chelmsford reforms in 1919, water and irrigation were
part of the public works department. In these reforms, the responsibility for irrigation
was given to the provincial governments and the Government of India's role was
confined to advice, co-ordination and settlement of disputes over inter-provincial
rivers10. This role continued after Independence in 1947 in terms of the provisions in
the Constitution of India. The Seventh Schedule to the constitution determines the
legislative domain of federal and state governments. Water is a state subject and is
included as entry 17 in list 2 (i.e., subject matters for state legislation). This entry
reads: "Water, that is to say, water supplies, irrigation and canals, drainage and
embankments, water storage and water power subject to the provisions of Entry 56 of
List I". The role of federal government is stipulated in entry 56 of list 1: ""Regulation
and development of inter-State rivers and river valleys to the extent to which such
regulation and development under the control of the Union is declared by Parliament
by law to be expedient in the public interest". Further, article 262 of the constitution
empowers the Parliament to make laws for the adjudication of inter-state water
disputes. That article also permits the Parliament to exclude such disputes from being
referred to the Supreme Court.

The Inter States Water Disputes (ISWD) Act, 1956, was enacted by the Parliament to
deal with inter-state disputes. If one or more riparian states of an inter-state is/are of
the opinion that their interests are (or are likely to be) affected by actions or plans of
other states, they can request the government of India to constitute a tribunal under the
Act. Within one year of receiving such a request and when convinced that such
dispute cannot be resolved through negotiations, the government of India shall
constitute a tribunal to hear the disputes concerning claims of water sharing and
adjudicate an award. Such a tribunal should have three members who should be
judges of the supreme court or the high court and are appointed by the Chief Justice of
India; the government of India can appoint up to two assessors to assist the tribunal;
after considering all the aspects as may be necessary, the tribunal gives its report to
the government of India; if the riparian states or the government of India need any
clarification, they can apply seeking such clarification from the tribunal; the tribunal
may give further clarifications. Then the report, called award, is published by the
government of India in the offocial gazette. Once it is published, the award is binding
on all the parties and it is deemed equivalent to an order or decree of the Supreme
Court. The act also empowers the central government to make schemes and constitute
an authority to implement the tribunal's award.

So far, five Inter-state water disputes tribunals have been constituted, namely: Krishna
Water Disputes Tribunal (constituted in January 1969; final report given in 1976);
Narmada Water Disputes Tribunal (constituted in October 1969; final report given in
December 1979); Godavari Water Disputes Tribunal (constituted in April 1969; final

10
See Ministry of Water Resources website < http://wrmin.nic.in/welcome.html>

BCID, University of Bradford 15

report given in July 1980 incorporating various out of court bilateral and trilateral
agreements among riparian states); Ravi and Beas Waters Tribunal (constituted in
April 1986) and the Cauvery Water Disputes Tribunal (constituted in June 1990). See
Salman (2002) and Iyer (2003) for a discussion on these aspects. Considering that 9
out of the 12 major rivers in India are inter-state rivers, it appears that not every inter-
state river is a source of dispute11.

The nature of relationship between the federal and state governments has significantly
changed from that of the 1950s when the ISWD act was created (see Kohli,1990;
Varshney,1998; Dasgupta,2001). In the 1950s, the Indian political space was
essentially uni-polar with the Indian National Congress having an unassailable
position as the lead party in national government as well as in many states. By mid
1980s, this position began to change with the emergence of regional parties. Since
1989, it became necessary for coalitions to be formed to command a majority in the
lower house of the Parliament and thus form the national government. There is,
therefore, a need to examine the potential of pro-active, consensus based and flexible
approaches. However, the present scheme of things very much relates to the
discussion of asymmetry in the previous section and until recently, the federal
government could 'sit on' requests for constitution of tribunals indefinitely.

Many important provisions including the limit of one year from the date of receipt of
a request by government of India to constitution of a tribunal, the requirement for the
tribunal to give its award within three years (with a proviso that government of India
can extend this by another two years), the provision for central government to appoint
two assessors to assist the tribunal and so on were introduced through a recent
amendment to the Act in 2002.

4. The Cauvery River Dispute

River Cauvery is a peninsular river in southern India. Its origin is in the Western
Ghats and it is a perennial river fed by rain waters. It is of about 800 km long with a
drainage basin estimated to be about 81,000 square km12. Though the states of
Karnataka (K), Kerala (M), Tamil Nadu (T) and Pondichery (P) are riparian states, the
river flows mainly through K and T states and discharges into the Bay of Bengal. The
river basin consists of three distinct areas (see figure 1). The part of the basin at the
source of the river is in Western Ghats and it receives annual rainfall of over 2,000 to
2,500 mm mainly from the South West monsoon (June-September). The middle
section of the basin consists of many of the Cauvery districts in K and T where the
annual rainfall is in the range of 700 to 1,000 mm. The third section of the basin is
mainly the delta region in T including the districts of Tiruchy, but mainly Tanjavur,
Tiruvarur and Nagapattinam. Here too, the average annual rainfall is around 1,000
mm but mainly from the North East monsoon (October-December).

11
The twelve major rivers are: Indus, Ganges-Brahmaputra, Sabarmati, Mahi, Narmada. Tapi,
Brahmani, Mahanadi, Godavari, Krishna, Pennar, and Cauvery. The first two are also international
rivers. See Government of India, Ministry of Water Resources web page URL <
http://wrmin.nic.in/resource/wresource1.htm>.
12
For comparison: Thames has a length of 340 km and a drainage basin of about 10,000 sqkm.

BCID, University of Bradford 16

Much of the dispute concerns the quantity of water. Hence, the following figures
about the quantity of flow are only a guideline and not authoritative. Based on the
data for the period of 1934 to 1972, Guhan (1993) reports that the total yield of water
from Cauvery per annum was 670 TMC ft13 at 75% dependability and 740 TMC ft at
50% dependability. The claims made by the four riparian states total about 1,150
TMC ft. A majority of these claims are towards irrigation. Industrial and drinking
water supply requirements are estimated to be less than 100 TMCft. This includes 30
TMCft of water allocated for water supply to Bangalore city. The Cauvery system
includes many tributaries some entirely in K and some entirely in T.

M P

K- Karnataka Source region (rainfall>2,000mm)

T- Tamil Nadu Middle region (rainfall 700 to
M- Kerala 1,000 mm)
P- Pondichery Delta region (rainfall ~1,000mm)

Figure 1: Schematic diagram of Cauvery basin states

3.1 The 1892 and 1924 agreements

In any major river water dispute, the bone of contention is about rights over resources.
In most cases, the riparian rights are customary rights based on prior use rather than
statutory rights and these are based on agreements made several decades ago, for
historical, social and political rather than economic reasons. For example, in the
Cauvery dispute this goes back to an agreement between the then states of Mysore

13
1 TMCft= 1 thousand million cubic feet = 27 million cubic metres.

BCID, University of Bradford 17

and Madras14 in 1892. At the time of this agreement, the then Madras state was under
the British administration while Mysore was a princely state. For a short period of
time between 1831 to 1881, both Madras and Mysore were under the British
administration. During this period, irrigation projects were continued in both Mysore
and Madras. According to Guhan (1993:8-9), a master plan was prepared in 1866 for
restoring and improving tanks and other irrigation works in Mysore and these were
approved by the Secretary of State in 1872. However, due to 1877 famine, public
works programmes were severely curtailed and interest in irrigation schemes was
revived after the transfer of Mysore to Maharaja's administration in 1881. Madras
state raised concerns about the proposals for expansion of irrigation by Mysore and
after about a decade of correspondence, a conference was held in 1890 with the
objective of agreeing "…on the principles of a modus vivendi, which would on the
one hand allow to Mysore reasonable freedom in dealing with her irrigation works,
and on the other, give to Madras practical security against injury to her interests" (c.f.
Guhan, 2003). Following this conference, various rules were identified and agreed by
both states and in effect formed the 1892 agreement. As per the agreement, Mysore
state should not erect any new irrigation reservoirs across any of the main rivers
without the prior consent of Madras state. When any new irrigation scheme is
proposed, all information about this should be shared with Madras state and its
consent is essential before any work commenced. The agreement also stipulates that
the Madras government is bound not to refuse consent except for the protection of
prescriptive right already anquired and actually existing. Between 1900 and 1910,
both Mysore and Madras states developed proposals to irrigation projects. The former
was known as Kannambadi dam project (now Krishna Raja Sagar or KRS); the latter
was known as Cauvery-Mettur project (now referred to as Mettur reservoir). Guhan
(1993:11) notes that both states were exchanging details of the proposals and were
also corresponding with the Government of India. The KRS project envisaged two
phases; in phase 1 the dam was to create a storage of 11 TMCft; in the second phase
the capacity was to be increased to 41 TMCft. While Madras gave its consent to the
first phase, it wanted the Government of India to ensure that the consent should not be
given to second phase until assurances are given that water requirements of Madras
will not be adversely affected. During 1910 to 1924, a number of discussions took
place and on the basis of these, the 1924 agreement emerged.

Under this agreement, the Madras state gave its consent to the KRS project with
storage up to 44 TMCft. The Mysore government was required to regulate the
discharges and ensure flows as per the rules in the annexure to the agreement. The
agreement also stipulated that new irrigation in Mysore (over and beyong what was
already existing or those permissible under the rules) to 110,000 acres. Similarly, the
Madras government agreed to limit new area of irrigation from the Mettur project to
301,000 acres. The Mysore government was also permitted to extend irrigation in the
main rivers of Cauvery to an effective storage capacity of 45 TMCft. Both states
agreed to inform each other of any proposals for new projects. It was also stipulated
that the limitations mentioned in the agreement should be open to reconsideration at

14
After Independence, states in India were re-organised in 1956. Mysore state became Karanataka; a
part of Madras Presidency became Tamil Nadu state. A part of Madras Presidency became part of the
Andhra Pradesh.

BCID, University of Bradford 18

the expiry of 50 years. It is due to these agreements that the stretch of river between
KRS and Mettur Dam acquired the centre-stage in Cauvery water dispute.

The 1924 agreement was in some respects ahead of its time. However, through the
benefit of experience we can now see that the agreement did not meet with the four
characteristics identified by Giordano and Wolf. It does not provide for a flexible and
adaptable management structure. While it does stipulate clear allocation mechanisms,
it does not include extreme variations due to hydrological events and how the flow
patterns and distress should be shared in such cases. The emphasis was very much on
equitable distribution of quantity of water rather than final benefits. It includes limited
provisions in relation to conflict resolution.

3.2 Milestones in the River Cauvery dispute- 1970 to date

According to the Government of India (2001), the main milestones concerning the
dispute are the following:

a) The 1924 agreement provided that it should be open for reconsideration at the
expiry of 50 years.

b) Discussions between K and T during the 1960s and 1970s did not produce an
agreement. According to Guhan (1993:29), between 1968 and 1990, there
were 26 ministerial meetings concerning the Cauvery river; 5 of these were
bilateral meetings between K and T and 21 were tripartite meetings involving
the Union Minister for irrigation as well. He also notes (p.34) that while some
progress was made on technical proposals during 1972-76, these technical
discussions did not result in political agreement. According to him, when the
government of India played a mediating role as in 1972-76 period, an
agreement was more likely. However, elections in 1977 changed this scenario.

c) By 1981, the claims from the riparian states became quite divergent. The
government of K claimed 465 TMCft of water; Kerala claimed another 100
TMCft; Pondichery’s claims were for 10 TMCft. This adds up to 575 TMCft.
Government of T wanted the flows to be in accordance with the 1892 and
1924 agreements. In its view, the existing utilisation suggested that the total
amount of Cauvery water used was 748 TMCft; of which T (including P) used
566 TMCft; Karnataka used 177 TMCft and Kerala used 5 TMCft.

d) The government of T made a request to the federal government in 1986 to

constitute a tribunal under the ISWD Act, 1956. The tribunal was constituted
in June 1990.

e) One of the main issues raised by T is to stop K from using any more waters of
Cauvery and to maintain a status quo as of May 1972. For this, T wanted the
tribunal to restrain K from constructing any new projects or dams etc. T also
wanted the tribunal to direct K to make ‘timely and adequate release of
waters’.

BCID, University of Bradford 19

 f) In January 1991, the tribunal gave an interim award directing K to ensure that
205 TMCft of water is available to Tamil Nadu. The year for this purpose is
from June to May. The tribunal specified the quantities that K must release
each month.

g) The government of K was not happy with the interim award and passed an
ordinance rejecting the validity of the award. Governments of T and P on the
other hand requested the central government to publish the order in the gazette
to give it a finality. The central government referred the matter to the Supreme
Court.

h) The Supreme Court clarified various legal issues, held the K ordinance to be
ultra vires and asked the tribunal to consider the appeals on merit. The central
government published the interim award of the tribunal in central government
gazette in December 1991. Protests ensued in K and in the resulting tension up
to 25 people were killed (Guhan, 1993).

i) The Tribunal had to be reconstituted in January 2003 following the death of

one of the members. The Tribunal was duly reconstituted and it has since
considered all 50 issues framed for its consideration and grouped them into
three groups, namely (i) the 1892 and 1924 agreements; (ii) availability of
water- surface flows, additional/alternative resources and (iii) Equitable
apportionment. As of March 2004, the Tribunal has completed hearing both
parties with regard to issue groups 1 and 2. It is expected that the Tribunal will
finalise its award towards the end of 2004 or early part of 2005.

Though the interim award was given in 1991, the matter remained contested until
1998. In August 1998, the federal ministry of water resources constituted two
institutions as per the ISWD Act.

a) The Cauvery River Authority (CRA) with the Prime Minister as the
chairperson and the chief ministers of the four states of K,M, T and P as
members. The purpose of this authority is to implement the interim award of
the tribunal.
b) The Monitoring Committee, mainly consisting of various federal and state
civil servants and a few technocrats. The purpose of the monitoring committee
is to collect data, monitor the implementation of the decisions of the authority
and in case of any difficulty, to refer the matter to the CRA.

The authority has met six times until February 2003. As per the rules, the quorum
required is 3 members (i.e., chief ministers of at least three states out of K, M, T and
P). However, in November 2002 and again in January 2003, a meeting of the CRA
had to be cancelled at the lat minute due to lack of quorum. Later, the Supreme Court
directed that quorum is not necessary. In February 2003, the CRA directed K to
release a certain amount of water so that crops in T can be saved. Soon after the
meeting, the chief minister of K said that he was “unhappy” at the decision; ironically

BCID, University of Bradford 20

the chief minister of T also said that she was “terribly disappointed”15. The dispute
persists and it was observed to be an important political issue in the recently
concluded (April-May 2004) general elections to the lower house of Indian Parliament
and also the state legislature of Karnataka. It is seen that the Common Minimum
Programme of the United Progressive Alliance led by Congress includes the
resolution of Cauvery dispute as a priority. Also, in the last week of May 2004 and
first week of June 2004, delegations of members of parliament from both K and T
states have been meeting with the Prime Minister seeking his intervention with regard
to the release of waters.

3.3 The main sticking points in CauveryDispute

While the Cauvery dispute is fairly complex, in this section an attempt is made to
summarise the main sticking points from each riparian’s viewpoint.

(a) The main arguments of K:

The main arguments are presented by each state to the Cauvery Tribunal and these
arguments are not in the public domain. However, from the material that is available
in the public domain, mainly a set of three volumes published by the government of
Karnataka16, and from the statements made by state political leaders and reported in
the newspapers, the following five main points can be identified.

First, K’s claim is that at the end of 50 year period in 1974, the 1924 agreement in its
entirety should be deemed to have expired. Therefore, claims based on that agreement
should not determine allocation of waters today. According to K, the 1924 agreement
was made at a time when T was under the British rule and K was under Maharaja’s
administration when K did not have the freedom to argue strongly to put forth its
interests.

Second, in K’s view, the farmers in the upstream areas have as much right to irrigate
and grow crops as do farmers in the downstream areas. K’s claim is that the so called
prescriptive use of downstream farmers is essentially because such areas were under
the British administration which could use its authority and powers to extract more
waters to downstream needs than would normally be the case.

Thirdly, it is argued that K is mainly dependent on the South East monsoon (June-
September) which contributes significantly to the flow in river Cauvery. On the other
hand, it is argued that while T is pressing for claims, T also benefits from a significant
amount of rain from the North East monsoon (October-December). It is, therefore,
suggested that a claim on Cauvery waters ignores this unequal distribution of rainfall
and the resulting runoff. While T does not have to share any water from its N-E
monsoon, K is forced to share water from the S-E monsoon with T and this it is
argued is inherently unfair.

15
See The Hindu, February 11, 2003 at URL <
http://www.hinduonnet.com/thehindu/2003/02/11/stories/2003021105540100.htm>
16
Government of Karnataka, n.d.; Government of Karnataka, 2002a; and Government of Karnataka,
2003.

BCID, University of Bradford 21

Fourthly, it is argued that a downstream state cannot make a claim when there is
scarcity of water and inadequacy in upstream areas. Thus, it is argued that K can
discharge waters to T only if there is adequate quantity of water to meet with K’s
needs. In recent years, this has been an important issue with regard to implementing
the flow pattern as stipulated in the interim award of the Tribunal. The government of
K finds itself in a difficult position to release waters to T when its own farmers face
acute water stress. In 2003, reportedly a farmer in K committed suicide by falling in
the reservoir17. The government of K is thus pushed into a tight corner whereby
implementing the Tribunal’s award in terms of flows in summer months is perceived
by local farmers as denying water to them.

Fifthly, K’s argument appears to be that riparian rights need to be reconsidered such
that the share of water of the rivers is in proportion to basin area and contribution to
the river flow. For example, according to Government of Karnataka (n.d.:10) the
extent of Cauvery basin area and yield contribution are as given in table 2 below.

Table 2: Cauvery basin area and yield contribution by different riparian states
according to Government of Karnataka (n.d.:10).
K T M P
Basin area in sq km 34,273 43,868 2,866 148
(% of total basin area) (42.2%) (54.3%) (3.5%)
Drought area in the basin in sq km 21,870 12,790 -- --
(% of basin area in the state) (63.8%) (29.2%)
Yield contribution in TMCft 425 252 113
(53.8%) (31.9%) (14.3%)

The argument seems to be that K’s claims over Cauvery waters must be seen in the
context of its contribution to Cauvery flow and also its needs in terms of drought
prone area in the basin.

(b) The main arguments of T:

In the case of T, there is no published information from the government in the public
domain to gauge government’s stance. On the basis of reported items in the
newspaper media and occasional statements in the Policy Notes in the State
Legislature, the following points can be identified.

According to T, the 1924 agreement is foundational to the development of key

projects in both the states and therefore, it cannot be changed now as any such change
will have significant detrimental effects. In T’s view it appears that the provision of
reviewing at the end of 50 years relates to various arrangements to implement the
agreement rather than changing the core principles of the agreement itself.

17
Approximately, around 2,000 deaths per annum in K are said to be suicides. However, suicides
amongst farmers in K appears to be mainly related to debts and financial crises (Menon, 2003). The
Expert Committee on Investigating into Causes of Suicides by Farmers, set up by the government of K
in its 2002 report identified alcohol, family problems and poverty as the three main causes of suicides.

BCID, University of Bradford 22

Second, the long history of farmers in Cauvery delta irrigating and producing rice
should not be denied. As the 1924 agreement recognised these prescriptive rights,
these need to be protected. Farmers in K are not denied from using the waters but that
there is a limit on the volume of water and area to be irrigated so that downstream
users’ rights are not jeopardised.

Thirdly, monsoon features are natural factors based on which claims cannot be made.
These monsoon patterns have existed long before river water sharing agreements
came into picture. The main point seems to be that K is free to exploit the S-E
monsoon or other sources so long as the flow of water in Cauvery is guaranteed such
that the downstream farmers’ prescriptive right is not negatively affected.

Fourthly, T’s argument seems to be that an inter-state river is a common property and
not a private property of the upstream state. Hence, it cannot be argued that after the
needs of one state are met, only excess waters, if any, will be released.

Fifthly, T seems to recognise that basin area, contribution to river flow and other
factors can be taken into account. However, this needs to be applied to distribution of
waters beyond those needed to meet the prescriptive rights of downstream farmers.

4. Identifying the key issues of Cauvery dispute

4.1 Is Cauvery so important to both states?

For the purpose of this analysis, I am focusing on data at state and district levels. By
overlaying the river basin map available from the Ministry of Water Resources of
Government of India on a map of districts, in my analysis, the following districts are
identified as Cauvery basin districts.

In Karnataka- Kodagu, Hassan, Tumkur, Bangalore Urban, Bangalore Rural, Kolar,

Mandya and Mysore of the southern Karnataka plateau are included in my analysis.
Some areas in some of the other districts in central Karnataka plateau also are part of
Cauvery basin but they are not included in my analysis here.

In Tamil Nadu- Erode, Salem, Namakkal, Karur, Tiruchy, Perabalur, Tanjavur,

Tiruvarur and Nagapattinam are included. Some areas in the districts such as
Coimbatore, Dharmapuri, Dindigal and Pudukottai are in the basin area. However, in
my analysis I am not including these districts.

(a) Hydrology-Importance of Cauvery to state water resources:

In both T and K, there are also arguments that Cauvery is not the only source of water
for either state. For instance, in the case of T, apart from Cauvery, there are 16 major
river basins (The World Bank, 1995:293). Of course, compared to total surface water
potential of T, estimated to be about 25,000 million cubic metres (Mcum), Cauvery
alone accounts for 7,000 Mcum or approximately 30% of total potential. Based on
figures from Government of Karnataka (2002b), in K, there are 7 river basins. The
surface potential is estimated to be 79,000 Mcum at 75% dependability. If the west
flowing rivers are excluded, the surface water potential is significantly lower than the

BCID, University of Bradford 23

above figure and is around 32,000 Mcum. K’s claim of 465 TMCft of Cauvery water
works out to about 12,000 Mcum of this potential (approximately 37% of total
potential). Thus, in both states, Cauvery water forms a very significant share of the
potential.

That Cauvery contributes to a significant share of each riparian state’s water resources
is not a sufficient explanation of the dispute. In both states, a very high proportion of
the Cauvery water resources are committed. This leaves limited resilience to cope
with shocks and variations. In years of below average rainfall, the situation can reach
flash-point quickly. To analyse this, I have attempted to look at the rainfall statistics.
However, long term time-series data is available at state level for K only but not for T.
District-wise data is available for period 1991 to 2002 for K and for period 1997-2002
for T. These are shown in tables 3 and 4 below.

BCID, University of Bradford 24

Table 3: Annual rainfall (mm)-Cauvery districts and Karnataka average:1991-2002
Year Kodagu Hassan Tumkur Bangalore Bangalore Kolar Mysore Mandya State
U R
1991 2627 1272 911 1377 1210 1027 901 882 1251
1992 2942 1503 647 687 835 730 794 649 1333
1993 2156 999 728 941 982 813 731 730 1123
1994 3379 1322 614 654 678 590 957 690 1229
1995 2686 1196 516 661 673 645 663 616 1219
1996 2997 1272 684 787 873 834 911 844 1325
1997 3358 1585 624 799 828 631 875 826 1490
1998 2826 1258 727 934 1092 776 791 708 1479
1999 2939 1436 651 964 998 573 912 815 1431
2000 2835 1417 785 1053 954 788 955 898 1422
2001 2557 1206 618 723 797 802 743 691 1194
2002 2118 732 521 471 657 478 586 483 863
Mean 2785 1266 667 838 881 724 818 736 1280
SD 393.8 229.2 109.9 236.0 172.9 148.0 119.9 122.3 177.0
Mean/SD 7.1 5.5 6.1 3.5 5.1 4.9 6.8 6.0 7.2
Source: Department of Agriculture, Government of Karnataka.

Table 4: Annual rainfall (mm)-Cauvery districts and Tamil Nadu average: 1997-2002
1997-98 1998- 1999- 2001-2002 Mean SD Mean
99 2000 /SD
Total in Total Total SW NE Total in
the year in the in the mon- mon- the year
year year soon soon
Erode 820 704 632 170 255 500 664 134.0 5.0
Salem 973 1194 1020 397 199 698 971 205.5 4.7
Namakkal 973 766 724 260 165 490 738 198.1 3.7
Karur 820 544 674 63 194 313 588 215.1 2.7
Tiruchy 820 822 751 198 243 552 736 127.2 5.8
Perambalur 820 1107 730 147 344 606 816 213.1 3.8
Tanjavur 1267 1111 942 264 450 989 1077 145.2 7.4
Tiruvarur 1813 1413 1275 213 463 973 1369 348.7 3.9
Naga- 1813 1470 1431 258 818 1447
pattinam 1540 182.5 8.4
State 1152 1080 897 260 379 795
average 981 164.0 6.0
Source: Data for years 1997 – 2000 from Government of Tamil Nadu, 2000; data for
2001-2002 from Government of Tamil Nadu, 2002.

The above tables confirm the point made in the introduction to section 3 about the
three distinct areas of the Cauvery basin, namely the source region mainly in Kodagu
district (rainfall above 2,000mm); much of the middle region with low rainfall (600 to
1,000 mm) and the delta districts benefiting from NE monsoon (1,000 to 1,500 mm).
Another important conjecture that can be drawn is that the variation in rainfall is high
in some districts. For example, the ratio of mean to standard deviation (µ/σ) seems to
suggest that some districts may be highly vulnerable to rainfall variations. For

BCID, University of Bradford 25

example, such high degree of variation in the two Bangalore districts and Kolar in K
and Karur, Namakkal and Perambalur in T could be a trigger that leads to political
mobilisation in years of distress.

(b) Economy- Importance of agriculture to state economy:

Though both K and T states have attracted technologically advanced industries,

agriculture continues to be an important activity in both states (see table 5 below). In
1993, agriculture’s share of state GDP for Karnataka was 33%. The data for 1993 to
2001 in constant prices indicates that this share has slightly decreased to 26.7% in
2000-01. In the economy of T, agriculture’s share has been slightly smaller than that
in K and this relative share appears to have declined slightly in recent years.

Table 5: Agriculture in state gross domestic product of K and T: at constant 1993

prices- Rs. millions
1993-94 2000-01
Karnataka
State domestic product 410,790 699,513
Agriculture SDP 135,362 187,039
Share of Agriculture in 32.95% 26.74%
state SDP
Tamil Nadu
State domestic product 515,763 791,206
Agriculture SDP 123,535 136,742
Share of Agriculture in 23.95% 17.28%
state SDP
Sources: 1. Government of Karnataka, Department of Agriculture website: URL<
http://raitamitra.kar.nic.in/main_stat.htm>.
2. Tamil Nadu data from Government of Tamil Nadu, 2002.

While agriculture is important to both states, Cauvery districts in both states play an
important role in the agricultural activity and production. From table 6, we can see
that in all the Cauvery districts in K apart from Bangalore Urban, nearly 50% of the
geographic area is sown. About 15% of the area is sown more than once. For the
Cauvery districts as a whole, about 25% of the area is irrigated. The proportion varies
from district to district. In Mandya and Mysore districts, irrigated area forms a
significant share of the area sown and in both these districts, much irrigation comes
from canals. More than a fourth of foodgrains production of K’s comes from these 8
districts.

BCID, University of Bradford 26

Table 6: Area sown and area irrigated in Cauvery districts in Karnataka: 2001-02
(sqkm)
Net area Net Area Share of
sown irrigated irrigated state’s
area by canals foodgrains
production
Kodagu 1,471 30 24 0.8
Hassan 3,704 806 286 4.1
Tumkur 5,747 1,425 49 4.8
Bangalore U 818 129 0 1.3
Bangalore R 2,950 615 84 3.6
Kolar 3,506 921 0 3.3
Mandya 2,471 1,111 882 3.8
Mysore 3,909 1,262 971 5.2
Sub-total 24,576 6,299 2296 26.9
State total 100,315 25,649 9,035 100.0
Source: Government of Karnataka, Agriculture Department website: URL<
http://raitamitra.kar.nic.in/main_stat.htm>.

Table 7: Area sown and area irrigated in Cauvery districts in Tamil Nadu- 2000-01
Net area Net irrigated Area Share of
sown area irrigated state’s rice
by canals production
Erode 3,082 1,739 916 3.5
Salem 2,646 1,134 85 2.7
Namakkal 1,962 706 141 1.2
Karur 1,025 540 234 1.1
Tiruchy 1,771 1,053 450 4.3
Perambalur 2,157 727 116 2.4
Tanjavur 2,029 1,730 1,564 9.8
Tiruvarur 1,497 1,445 1,389 9.0
Nagapattinam 1,503 1,281 1,278 7.4
Sub-total 17,672 10,355 6,173 41.4
State total 53,033 28,876 8,342 100.0
Source: Government of Tamil Nadu, 2002: Statistical Handbook, from URL
<http://www.tn.gov.in/deptst/Tab04.HTM>

Similarly, from table 7 it can be seen that the 9 Cauvery basin districts in T together
account for more than a third of the net area sown in T; they account for more than a
third of the irrigated area in the state. Again, the Cauvery delta districts (Tanjavur,
Tiruvarur, Nagapattinam) seem to be almost entirely dependent on canal irrigation.
The crucial significance of these 9 districts to state’s rice production is clear. Also, the
three delta districts account for more than a fourth of all rice produced in the state-
hence their nickname as ‘rice basket of the state’.

BCID, University of Bradford 27

(c) Polity- Importance of Cauvery belt to government formation in the state:

In a parliamentary system of democracy, it is difficult to argue that a group of

constituencies can critically determine the formation of government and thereby its
policies. Without detailed analysis of electoral trends, any such arguments remain
conjectures. The analysis in this section is based on two recent elections to state
legislatures in both K and T states.

Table 8 below presents details of state K. In 1999 elections, Indian National Congress
(INC) formed a majority government. Out of 132 seats won by INC, 32 seats i.e.,
approximately 24% were from the Cauvery districts. In 2004 elections, INC won 65
seats in the state; 19 of these were won in the Cauvery basin districts. The present
state government is formed by a coalition/support arrangement between INC and
JD(S) parties. Together, these two parties have won 123 seats (out of 224 seats in the
assembly). Of these 123 seats, 43 seats, i.e., 35% were won in the Cauvery districts.
Druing the last two years, almost all parties in Karnataka took a ‘hardline’ position
with regard to release of Cauvery waters. While we cannot prove beyond doubt the
impact of such position on electoral performance, it does appear from the data in table
5 that such a hardline position may have been electorally crucial. Also, relatively, the
share of assembly members from the Cauvery district constituencies in the state ruling
coalition has increased significantly. This suggests that the scope for the present state
government to pursue conciliatory measures may have narrowed further.

BCID, University of Bradford 28

Table 8: Winning assembly seats in Cauvery districts- is it crucial to forming state
government? Assembly results of Karnataka 1999 and 2004 elections
District Constituency serial Total 2004 Elections 1999
numbers number elections
of
constitue
ncies
INC JD(S) Total INC
for
JD(S)
and
INC
Kodagu …
Hassan 129,130, 131, 132, 8 1 6 7 4
133, 134, 135, 136
Tumkur 54,57,58, 59, 8 0 5 5 4
60, 61, 62, 63
Bangalore 84, 85, 86,87, 8 4 1 5 6
U 88, 90,98,99
Bangalore 76,77,78,79, 8 7 0 7 4
R 80,81,82,83
Kolar 68, 69,70,71, 8 4 1 5 4
72,73,74,75
Mandya 101,102,103,105, 8 2 5 7 6
106,107,108,109
Mysore 114,115,116,117, 8 1 6 7 4
122,123,124,125
Sub-total 56 19 24 43 32
State total 224 65 58 123 132
Source: Compiled by author based on information from Election Commission of
India, from website URL http://www.eci.gov.in/
Note: District-wise detail of assembly constituencies was unavailable. Instead of
districts, Paraliamentary constituencies closely corresponding to the Cauvery basin
districts are used here.

Similarly, the data relating to assembly constituencies in the Cauvery districts of

Tamil Nadu, and the assembly election results of 1996 and 2001 are presented in table
9 below. While we cannot establish a causal relationship, it seems that there is an
association between winning a significant number of seats in the Cauvery districts and
winning a majority in the state assembly. Also, the proportion of legislative assembly
members from Cauvery districts in the house has increased from 27% in 1996 to 31%
in 2001. Thus, it appears that the scope for conciliatory stance for Tamil Nadu
government may also be rather limited.

BCID, University of Bradford 29

Table 9: Winning assembly seats in Cauvery districts- is it crucial to forming state
government? Assembly results of Tamil Nadu 1996 and 2001 elections18
District Constituency serial Total number Won by Won by
numbers of AIADMK in DMK in
constituencies 2001 1996
elections elections
Erode 113,117,118,119,120, 10 8 8
121,122,123,124,125
Salem 84,85,86,87,88,89, 11 8 7
90,91,92,93,100
Namakkal 94,95,96,97, 6 4 4
98,99
Karur 151,152,153,155 4 3 4
Tiruchy 154,156,157,158,159, 9 6 9
165,166,167,168
Perambalur 160,161,162,163, 5 4 3
164
Tanjavur 179,180,181,182,183, 10 5 8
184,185,186,187,188
Tiruvarur 173,174,177,178 4 0 1
Nagapattinam 169,170,171,172,175, 6 4 4
176
Sub-total 65 42 48
State total 234 132 173
Source: Compiled by author based on information from Election Commission of
India, from website URL http://www.eci.gov.in/

The above tables also seem to suggest the incentives that opposition parties in the
respective state assemblies face. It is possible to argue that given the limited room to
manouvre of the ruling parties, opposition parties may use the Cauvery dispute to
cause discomfort to the government.

4.2 Other factors that may hinder a solution

Peculiar impact of asymmetry: First, the nature of asymmetry is not static but
undergoes change as national and regional politics changes. River water disputes
seem to become more pronounced when federal government is formed by a weak
coalition and at least one of the riparian states has a strong state government (i.e.,
stable majority in the state legislature). River water disputes provide an opportunity
for competitive politics and short term negotiations to form ‘alliances of
convenience’. Recall the various cases discussed in table 1. By the time the 1924
Cauvery agreement lapsed in 1974, the relative power of central government in India
was in decline. This is caused by various factors including the erosion of moral
legitimacy commanded by previous generation of central government leaders due to
their role in the Independence struggle, the increasing spectre of corruption and re-

18
DMK and the AIADMK are the two main regional parties in Tamil Nadu. Since 1968, the state
government has been formed by one of these two parties: DMK from 1968-1977; again from 1989-
1991; and 1996-2001. AIADMK from 1978-1988; again from 1991 to 1996; and from 2001 to date.

BCID, University of Bradford 30

organisation of some rural interests along new power groupings. The situation since
then has remained as one of case B (weak federal government; two weak riparian
states) or case C (strong centre; powerful upstream riparian); or case E (strong centre;
powerful downstream riparian) opening up a situation of competitive claims and
counter-claims of legitimacy. In the case of river waters, the asymmetry is also linked
to geography, terrain, moisture retention capacity of the soil, ground water resource
distribution and links between river waters and the overall hydro-geology. A number
of issues emerge from this. Should riparian rights be linked to ground water
resources? The UN Convention and revised Helsinki rules point to the need for
considering both surface and groundwater resources in an integrated manner. Other
questions include: should rain fall and contribution to river flow determine riparian
rights? Should shortfalls in allocation in one period be carried forward to the next
period?

Lack of incentives to co-operate: Secondly, there is no attempt among the basin states
to take a basin-wide approach to integrated development and conservation of Cauvery
waters. The political processes are forcing each state to behave as a self-interested
utility maximising agent. Basin-wide initiatives seem to be important in promoting
collective action to resolve the disputes in the case of transboundary river basins. The
CRA as it stands now is more a meeting than an authority. Apart from the prime
minister, the members of the authority are also the ones who are the disputants in the
first place. In its present form, the CRA seems to depend on either the charisma or
respect that the prime minister could potentially command or the moral suasion that
such a highly public meeting and the related media attention could generate. Both of
these are important elements. However, either cannot guarantee that a decision will be
reached or that it will be implemented.

Much focus on absolute quantities of water: Thirdly, all the claims and counter-claims
relate to absolute riparian rights in terms of quantities and measures in TMCft. An
agreement based on absolute quantities is prone to serious difficulties when there is
significant variability in flows. An alternative is to examine a 10 year or 25 year
record (reasonably longish period to capture variability) and on that basis, agree to a
regime of relative riparian rights, i.e., shares mentioned in proportion or percentage
terms19. The Guhan formula of sharing waters on the basis of proportionate allocation
encourages sharing of both surplus waters in bountiful years and also sharing distress
in drought years equitably among the riparian states.

The lack of independent monitoring: However, the Guhan approach will work
effectively if the function of monitoring the flows and determining the total volume to
be shared in a given year is completely delinked (i.e., depoliticised) from the riparians
i.e., an independent monitoring commission20. My argument is to merely make the
monitoring function independent. (This is different from Richards and Singh,2002,
who argue in favour of a depoliticised national water commission. In my view, such
depoliticisation is not possible.)
19
I suggested this in 2003 before gaining access to Guhan,1993, where I find that a similar formula has
already been proposed. In his memory, hereafter, this suggestion is referred to as Guhan formula.
20
Technically, this is like the Drinking Water Inspectorate in the UK or a meteorological department.
The secretariat of the Mekong Committee and now the Mekong River Commission has been doing this
for several years; see Nakayama, 2003: 103.

BCID, University of Bradford 31

Limited role for non-state actors: This relates to why river water disputes become
inter-state disputes. In international rivers, sovereignty means that only the national
government is competent to legally represent the people and sign any treaties. The
issue is slightly different in the case of an inter-state river within a nation. Of course,
theoretically, a state government is a legitimate representative of people of the state.
State governments attempt to use river water disputes to enhance their legitimacy and
monopolise the role of representing the various riparian interests. Such river disputes
seem to present an important opportunity to construct a visible threat to food security
but in turn the essential foundation of a society and the identity of the people
themselves. In Indian context, statehood and identity can be closely related. Such a
climate may lead to prejudices and tribalising individuals by essentialising one aspect
of identity over others and resorting to a language of ‘us’ and ‘them’. As the tragic
experiences of communal riots in India and organised killings in Rwanda suggest,
such tribalising of identities can lead to potentially dangerous consequences.

A crucial ingredient for resolution of water disputes is the development of common

understanding and trust. This cannot be done by government alone; for instance, in the
case of Nile apart from the basin states, the role of international NGOs has been
considered to be crucial in encouraging co-operation (Nakayama,2003). As seen
earlier, non government action to organise a conference in 1902 was considered
crucial to the eventual River Murray Waters Agreement of 1915. There have been a
number of non-government initiatives including citizen dialogues in 1992 and most
recently the ‘Cauvery family’ approach to establish dialogue between Karnataka and
Tamil Nadu farmers from Cauvery districts in both states. However, at present, both
legal and political factors limit the scope for non-government initiatives.

The paradigm of masculinity: The paradigm in which river water disputes are
conceived and analysed is predominantly one of masculinity. whole discussion
revolves around riparian rights and measurements and about why the problem is
mainly caused by the other riparian. The detail of what the water is used for and
whether it exaggerates the inequality are not discussed. For instance, as of 1991, about
33% of rural population in K and 36% of rural population in T did not have access to
safe drinking water (the Government of India,2003:S-114). However, the water
disputes focus mainly on how the river water is crucial for agriculture. Where
drinking water is mentioned, it tends to be a legitimising device than the main basis of
claim. As Arnold notes in the case of famines, (1984:67), water scarcity and contests
over riparian rights are also not socially indiscriminant. The riparian rights and
arguments mainly relate to irrigation and, as other studies have shown, access to
irrigation and whether or not such irrigation infrastructure works successfully and the
necessary collective action institutions emerge can be highly selective (Wade,1988;
Bardhan, 2000). The water resources management paradigm of masculinity focuses
on ‘hard’ investments rather than on ‘soft’ institutions. The most recent example of
this paradigm is a proposal being examined by the Ministry of Water Resources in the
Government of India to construct a national river grid involving inter-basin transfer of
water on a very large scale. This paradigm of ‘hard’ projects seems to fit well with the
recent emphasis on liberalisation of agriculture. The expressions of control,
measurement, orderly allocation of water, its productive use fit better in a so-called
picture of ‘progress’ which urban and more vocal groups can identify with. Such

BCID, University of Bradford 32

identification by vocal groups may be essential to elevate the issue from one of
natural resources management to one of identity of a people.

5. Conclusions

The analysis in this paper suggests that political and institutional factors determine
whether a river water dispute arises and whether it remains a dispute. The scheme
provided by the ISWD Act of 1956 is mainly a constitutional-legal approach. While
this is important, many limitations remain. At present, as in the USA, the Indian
approach seems to be mainly legal-constitutional approach. This scheme centres
around claims over water rights in terms of water quantities. Thus, even while the
tribunals take into account a number of factors, the overwhelming public perception
centres around quantity of water and how it is apportioned between different riparian
states. Also, in the Indian case, the ISWD act’s scheme provides for limited triadic
relationships. The act is symptomatic of an era when diadic relationships between a
paternal federal government and ‘childly’ states were constructed as vertical
relationships. In this scheme, state governments have limited incentives to develop co-
operative projects. As in the case of global and regional public goods, the transaction
costs of forming collective action can be minimised by exploiting economies of scope
i.e., states which co-operate on one issue can use that experience to develop other co-
operative ventures. In the present constitutional scheme, such there is little incentive
for states to co-operate except when an inter-state issue such as a river is involved.

While the Tribunal’s award may settle some of the legal disputes, many of the root
causes of the dispute will still remain. There is need for developing a viable collective
action institution to implement the award of the Tribunal. Various possibilities exist.
Some of the priority actions are identified below.

In both K and T states, it is important to highlight the fact that in the constitutional
scheme of things, allegiance to the constitution means the award of the tribunal must
be accepted even if the award is not entirely to the liking of one or the other parties.
Otherwise, a situation of constitutional breakdown can arise. There is a need to ‘de-
emotionalise’ the issue. The media and non-governmental organisations and
international organisations can play an important role in this respect. The various
attempts to organise people-to-people dialogues can also be useful.

Secondly, the fixation with absolute volumes or quantities of waters is one of the
contributing factors to the dispute. The Guhan formula of proportionate sharing has
the potential to allocate waters equitably in both bountiful as well as drought years. As
the analysis of Giordano and Wolf identified, including provisions for water
allocation mechanisms in the event of extreme variations is crucial to the success of a
water sharing agreement.

Thirdly, there is need to examine the scope for a river-basin wide authority. Lessons
can be drawn from the Murray-Darling basin initiative and the Mekong basin
initiative. It is possible for riparian states to voluntarily take a proactive approach to
managing a river basin and request the federal government to constitute a river water
board under the River Boards Act of 1956. However, as Iyer (2003) notes, that act is
considered to be a 'dead letter' in that few river boards have been constituted to

BCID, University of Bradford 33

formulate integrated development schemes. In the immediate future, the existing
experience suggests that formation of a single river authority is less likely. However,
in the long run such an authority can ensure that river waters are allocated efficiently,
equitably and transparently. An inter-state river can have a unitary management
authority with representatives of the four basin states, for example, the ministers in
charge of water resources or irrigation and the federal water resources minister as an
ex officio member. The chair person of the authority can be elected for a specific term
of office.

Fourthly, water sharing and distress sharing must be undertaken within the context of
transparent assessment of all water resources and also the water use patterns. In the
cases of both Mekong and Murray Darling basins, the emphasis has shifted towards
sustainable management of river waters to meet a diverse set of purposes. No doubt,
farmers in both K and T states have a rich heritage of knowledge capital developed by
experience. It is still important to take a critical look at water use patterns and explore
ways to produce ‘more crop per drop’. This includes exploration of alternative
agricultural and water management practices including watershed development
approaches (Iyer, 2003).

Finally, it is important to recognise and encourage a self-critical awareness in water

organisations and policy makers. The paradigm of masculinity is inherent in a sector
where engineering and technology aspects dominate management and decision
making approaches. This cannot be countered or removed in one step. It is important
recognise that such biases exist and these shape and influence the way societies
conceive human-environment interactions and the responses developed. Evolving and
learning organisations are crucial to achieve the goal of sustainable management of
precious resources such as river waters.

BCID, University of Bradford 34

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About the Bradford Centre for International Development

The Bradford Centre for International Development (BCID) is a multi-disciplinary

department of the School of Social and International Studies providing undergraduate
and postgraduate taught courses in the broad areas of economics, international
development, project planning and management. Academic staff engage in research,
training and consultancy activities in these areas. The Centre was established in 1969.
It now offers 5 Masters degree programmes with over 84 students. It has a vibrant
doctoral programme with over 25 students at different stages of completion. During
1999-2003, the Centre has been a co-host of the British Chevening Scholarship
programme’s Young Indian Environmental Managers Course. Other research papers
in the present series are:

A.Toner, 2002, Sustainable Livelihoods Approaches: Can they transform

development, BCID Research Paper number 2, Bradford: University of Bradford.

A. Carrington, 2002, A divided Europe? Regional convergence and neighbourhood

spillover effects, BCID Research Paper number 1, Bradford: University of Bradford.

These are available for download from the BCID website:

http://www.brad.ac.uk/acad/bcid/researchpapers.html

About P.B. Anand

The author of this paper, Dr Anand is a senior lecturer in environmental economics

and Director of the Postgraduate Programme at BCID. His research focus is on
understanding issues related to collective action for public policy with a focus on
institutions for water supply, waste management and the local environmental
governance. Recently, he completed a research study for UNU/WIDER on design
issues related to providing global public goods. He is currently working on water and
human security issues with the support of a British Academy Small Research Grant.
His papers have been published in the Journal of International Development, World
Economy, the Journal of Development Studies, Environment and Urbanisation and
the Journal of Economic Studies. He was a short-term sabbatical fellow at the United
Nations University's World Institute for Development Economics Research
(UNU/WIDER), Helsinki, during September-November 2001. He was awarded the
Chancellor’s Award for Distinguished Teaching at the University of Bradford in July
2001. He is a member of the Royal Economic Society and the Co-Convenor of the
Environmental Resources and Sustainable Development Study Group of the
Development Studies Association (since December 1998).

BCID, University of Bradford 39

Copyright with author

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