SC indeed has jurisdiction over water dispute matters

The Cauvery river water dispute gives rise to whether and to what extent the Supreme Court have jurisdiction to deal with such matters. This question assumes significance due to the spate of orders passed over the last two months and the perceived conflict between the constitutional provisions and statutory enactments. 

Although the Inter-State River Water Disputes Act, 1956 (ISRWDA), has worked satisfactorily, problems over the Ravi-Beas Rivers and the Cauvery disputes persist. However, the Cauvery river dispute proves more complex owing to its historical, legal and political dimensions.

The ISRWDA was enacted under Article 262 of Constitution of India on the eve of the reorganisation of states on linguistic basis to resolve the water disputes that would arise in the use, control and distribution of an inter-state river or river valley.  Article 262 of the Constitution provides a role for Parliament to adjudicate conflicts over inter-state rivers that arise among two or more state governments.  This Act further has undergone amendments subsequently and its most significant one was in 2002.

For instance, Article 262 read in isolation, constrains the Supreme Court jurisdiction over such disputes. Similarly, Section 11 of the ISRWD Act says that neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect to any water dispute which may be referred to a Tribunal under this Act. The award of the Tribunal is equated with a decree or an order passed by the Supreme Court. Therefore, the argument arises that the Supreme Court cannot sit in appeal over its own deemed order.

The Supreme Court in the 1950s ruled that although tribunals have all the trappings of a court, they are not courts. The underlying meaning is very clear that though the tribunals are vested with the analogous judicial powers and are quasi judicial bodies, they can never be equated with courts.

Even in the L Chandrakumar case, the Supreme Court clearly stated that the High Courts have the power of judicial review over the orders and awards passed by Administrative Tribunals. Hence, it is difficult to comprehend how the river water tribunals can be placed at a different, if not higher or equal pedestal, with that of the Supreme Court.

In view of this to opine that the Supreme Court lacks jurisdiction is incorrect. The Supreme Court is the final interpreter of the Constitution. More than a court of law, it is a court of justice and has an inherent authority to right a wrong. Its responsibility is not akin to that of dispensation of justice in accordance with law alone but extends beyond the realms of ordinary law and into the noble notions of justice, fairness and equitability. This explains why the Constitution itself acknowledges that the law laid down by the Supreme Court amounts to the law of the land.

Some jurists support the primacy of the judiciary, the Constitution and the law, but opine that Article 262 and the ISRWDA restrains the jurisdiction of the Supreme Court. Other legal thinkers contend that the Constituent Assembly conceived some special machinery, sans judicial review, to deal with extraordinary circumstances like river water disputes.

Yet some scholars posit that states possess autonomy in a federation and therefore inter-state rivers do not have rights like Article 131 which flow from the Constitution. Under Article 131 of the Constitution, the Supreme Court has original jurisdiction in any dispute between the Government of India and one or more states or between two or more states. This provision empowers the apex court to deal with the disputes like civil suits.

Power over tribunals
Importantly, Article 136 of the Constitution empowers the Supreme Court to grant special leave to appeal from any order etc, passed or made by any court or tribunal. This power is a plenary or comprehensive one and the Supreme Court invokes the same in cases where a substantial question of law is involved. This provision alone is enough to conclude both jurisprudentially and constitutionally that the apex court has jurisdiction over all courts and tribunals in the territory of India.

The Supreme Court in the exercise of its jurisdiction may, under Article 142, make orders for doing complete justice. It, as a guardian of the Constitution, enjoys a comprehensive jurisdiction to uphold the values enshrined in it.

A combined reading of Article 262 and the relevant provisions of ISRWD Act, apparently tend to limit the jurisdiction of the Supreme Court to some extent. As such, Article 262 is only an enabling one.

But to contend that the Supreme Court has no jurisdiction whatsoever over the river water disputes is to stretch constitutional jurisprudence a bit too far that verges on an attempt to stifle the independence of judiciary which is the basic structure of the Constitution. The other provisions and values discussed certainly have an over-powering force.

That apart, it should be remembered that there is virtually no appeal against an award passed by a river water tribunal and thus the aggrieved party lacks recourse to have the final word by the topmost court of the country.

Perhaps, Karnataka counsel Fali S Nariman argues in view of the primacy of the Supreme Court that such disputes should in fact be handed over to it and the ISRWDA should be repealed. It is appropriate to note that in the United States of America, the Supreme Court adjudicates river water disputes.

(The writer is an Associate Professor at the School of Law, Christ University, Bengaluru)