How the Supreme Court Prolonged the Cauvery Dispute

Constitutionally, the apex court should have refused to hear the special leave petitions against the Cauvery Water Dispute Tribunal’s final order of 2007.

New Delhi: Before he died last year, Ramaswami R. Iyer, the legendary former secretary at the union ministry of water resources, critiqued the Supreme Court’s role in encouraging litigation over the Cauvery dispute.

Iyer’s contention was that the Supreme Court ought not to have admitted the special leave petitions (SLPs) of the states concerned against the final order of the Cauvery Water Disputes Tribunal in 2007, because of Article 262 of the constitution.

Article 262, dealing with the adjudication of disputes relating to waters of inter-state rivers or river valleys, says:

• Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley.

• Notwithstanding anything in this constitution, parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).

Section 11 of the Inter-State Water Disputes Act (ISWD), 1956 enacted in pursuance of this Article, reads as follows:

Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act.

Iyer wrote in 2013 in an article in the Economic and Political Weekly:

“Adjudication is necessary, but is inherently divisive. Each party makes maximal claims, engages eminent counsel, and fights a bitter legal battle.  When the parties submitted clarificatory petitions [to the Tribunal, after its release of the Final Order], the Tribunal put them on hold on the ground that they had gone to the Supreme Court with SLPs…. When the state governments went to the Supreme Court in 2007 with SLPs against the Tribunal’s Final Order, the  Supreme Court promptly admitted the SLPs, without any discussion of the bar on the jurisdiction of the courts provided for by Article 262 and enacted by Parliament in the ISWD Act 1956.  The questions whether the SLPs should be admitted despite the bar, and if so on what grounds, and what implications this would have for the ISWD Act and Article 262, were not explicitly raised and answered.”

Iyer added in the same article that having admitted the SLPs and making things difficult for the tribunal, the Supreme Court had not taken them up for hearing in six years. He, however, acknowledged that it was the Supreme Court that brought about the notification of the final order in 2013.

The Wire understands from the counsels who appeared in the case that the question of Article 262’s bar on the hearing of the dispute was never raised by any of them before the Supreme Court when the SLPs were heard and admitted in 2007. But the question of whether the Supreme Court should have restrained from hearing the SLPs on its own remains.

A look at the case status on the Supreme Court’s website reveals that there were three SLPs against the final order of the tribunal, filed by three out of the four parties before the tribunal. These SLPs were converted into civil appeals following their admission by the court in 2007 and are yet to be heard substantively. Meanwhile, there were a few hearings in 2013 as well as this year, but only on the 12 interlocutory applications filed by the parties in the civil appeals.

These civil appeals are listed together with the original suit filed in 2001 by Tamil Nadu against Karnataka under Article 131, on the latter’s failure to implement the interim orders of the tribunal. This suit and the civil appeals are likely to be listed on October 18. A three-judge bench framed issues in the suit on September 18, 2007, seven months after the tribunal released its final order.

In retrospect, the issues in the suit may appear infructuous, with the Supreme Court aware of the tribunal’s final order. It is likely, then, that the court may ask Tamil Nadu to withdraw its suit.

At least in the suit, the question of its admissibility was kept open, so that the court could decide after hearing the arguments of the counsel representing Tamil Nadu and Karnataka. Doubtless, Karnataka is likely to oppose the suit’s admissibility.

Questions remain

However, the admission of SLPs without resolving the question of the bar imposed by Article 262 on their hearing by the Supreme Court raises uncomfortable questions.

How could the Supreme Court ignore the bar imposed by the constitution  even if the parties have a vested interest in not raising it at the time of admission?

The SLPs are heard by the Supreme Court under Article 136(1) of the constitution. This provision enables the Supreme Court to grant “special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India”.

Because of the non-obstante clause in Article 262, which starts with “Notwithstanding anything in this constitution”, Article 136(1) cannot be invoked to hear appeals against the tribunal’s final order.

The Supreme Court had the opportunity to interpret Article 262 in another case, after the tribunal gave its final order in 2007.  In Atma Linga Reddy v Union of India, decided by the two-judge bench comprising justices C.K. Thakker and D.K. Jain on July 10, 2008, the court held that Article 262 is probably the only provision which enables parliament to oust and exclude the jurisdiction of all courts, including the Supreme Court. The court held in this case:

“The founding fathers of the constitution were aware and conscious of sensitive nature of inter-state disputes relating to waters.  They, therefore, provided machinery for adjudication of such disputes relating to waters of inter-state rivers or river valleys.  By enacting Article 262, they empowered parliament to enact a law providing for adjudication of any dispute or complaint with respect to the use, distribution or control of waters of any inter-state river or river valley.   They, however, did not stop there. They went ahead and empowered parliament to exclude the jurisdiction of all courts including the final court of the country in such disputes.  The intention of framers of the constitution, in our opinion, was clear, obvious, and apparent.  It was thought proper and appropriate to deal with and decide such sensitive issues once and for all by a law made by parliament.”

In this case, the court dismissed a writ petition filed by a private individual under Article 32, seeking the interference of the court in the Krishna river dispute between Karnataka and Andhra Pradesh. The petitioner had alleged that Karnataka had illegally sanctioned a power project in favour of a private party, due to which residents of the Mehboobnagar district of Andhra Pradesh were not getting sufficient water for drinking and irrigation. As the matter was being dealt with by the Krishna Water Disputes Tribunal, the Supreme Court found that Article 262 would be valid. More important, the court said that the decision of tribunal, as carried in its final report dated December 27, 1976, has the force of a decree of the Supreme Court.

In 1993, the Supreme Court, while answering the advisory opinion sought by the president under Article 143 of the constitution, said that Karnataka’s ordinance to nullify the interim order of the Cauvery Water Disputes Tribunal is inconsistent with the scheme envisaged under Article 262 of the constitution and Section 11 of the ISWD Act. Therefore, the court ruled, this impinged upon the judicial power of the state and undercuts the constitution.

More important, the court expressly rejected the contention of the petitioner that the Article 262 bar only applied to disputes between states under Article 131 and cannot be stretched to restrict the filing of writ petitions where the fundamental right to drinking water is infringed upon by an action of the state.

It is, therefore, inexplicable that the Supreme Court has encouraged litigation to continue between the parties to the Cauvery dispute, especially when it has repeatedly exposed its lack of technical competence to adjudicate the matter to the satisfaction of the disputing parties.