Meanwhile, as an interim arrangement, a Bench of Justices Dipak Misra and U.U. Lalit ordered Karnataka to release 2,000 cusecs of water from October 7 to 18.
“On what basis is Your Lordships saying ‘Give 10,000 cusecs’, ‘Give 15,000 cusecs’, ‘Give 6,000 cusecs’?” senior advocate Fali Nariman for Karnataka demanded from the Bench.
“We are basing it on arithmetic,” replied Justice Misra.
“Well, arithmetic is not enough. You have to look at the ground realities,” Mr. Nariman retorted.
Appearing for the Centre, Attorney-General Mukul Rohatgi, at the outset of the hearing, submitted that the October 30 order to constitute the CMB cannot be complied with. The Supreme Court had wanted the CMB to be set up on October 4, inspect the 80,000 sq km Cauvery basin and submit a report by October 6.
Mr. Rohatgi said while the CMB was recommended by the Cauvery Water Disputes Tribunal in its final order in 2007, the tribunal award itself was under challenge in the Supreme Court.
“I am only asking this court to defer its order for the constitution of the Board till disposal of the appeals,” Mr. Rohatgi submitted.
Later, the Bench agreed with Mr. Rohatgi, saying it was more “appropriate” to defer the setting up of the CMB. It then proceeded to list the appeals for hearing on October 18.
Asked by Mr. Nariman whether the appeals would be heard on merits on October 18, Justice Misra replied that their “maintainability” has to be first considered.
Though initially the Bench toyed with the idea of sending the Cauvery Supervisory Committee to visit the basin, it had second thoughts after Mr. Rohatgi said the Committee comprised Secretaries of the Union and the States and they would anyway need technical assistance. Mr. Rohatgi advised that the choice of the Supervisory Committee was “unwieldy” and brought the Bench on the same page with the Centre’s suggestion to send a technical team.
Senior advocate Shekhar Naphade for Tamil Nadu questioned the very need of this “inspection”, especially when the 2007 tribunal award has already prescribed an in-built “deficit formula.” He submitted that Karnataka has stonewalled the orders of the court and was acting as “a judge in its own case.”
“The question is of rule of law in this court. Karnataka has taken the court’s orders lightly and has the gall to play victim,” Mr. Naphade said.
“This is not the time for all this. If you [Tamil Nadu] go on like this, you [the Bench] pass whatever orders and we will see what we can do…. Lives of millions of people are at stake,” Mr. Nariman objected.
The court recorded Karnataka’s submission that, pursuant to the apex court orders, it has released 17.5 TMC water from September 5 to 30. This was disputed by Tamil Nadu, which said that only 16.9 TMC was released during the period.
Tamil Nadu submitted that Karnataka was in deficit of 4.6 TMC in September and has to release 22 TMC in October as per the 2007 tribunal award.
Karnataka informed the court that it would complete the release of 3.1 TMC by October 6.