JOIN USWater wars between Karnataka and Tamil Nadu are not new. Both states have been fighting for many decades and despite numerous meetings, negotiations, mediations and adjudications, the dispute continues. What is interesting, and rather surprising, is the numerous times that the Supreme Court has exercised jurisdiction in this matter.
In the past, it has been argued that the Supreme Court has encouraged litigation by not dealing with the questions of its jurisdiction. However, in this article, we try to ascertain that in the light of the existing constitutional and legal provisions, the Court does not have any power to exercise original or appellate jurisdiction to hear the Cauvery dispute.
The Supreme Court in 1990 directed creation of a special tribunal to hear and resolve the Cauvery water dispute. The Cauvery Water Disputes Tribunal was created by the Central government under the Inter-State Water Disputes Act, 1956.
As per the Act, the Tribunal is a specialised body empowered to hear disputes relating to Cauvery water sharing between two or more states that involve use, distribution, control of waters, interpretation of agreements relating to the issue and of disputes relating to levy of water rate.
The Cauvery dispute was referred to the Tribunal, rightly so, as the Supreme Court felt that it did not have the expertise and resources to adjudicate such a dispute which involved complex questions of potamology (study of rivers), geology, ecosciences, farmers’ needs, etc.
In this context, Article 262(1) of the Constitution of India states that Parliament may by law provide for means through which inter-state water dispute can be resolved. The more significant provision is, Article 262(2) of the Constitution which states that: “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)”.
Parliament has, in accordance with these provisions, constituted the Tribunal as stated above by promulgating the Act. Under Section 11, the Act specifically bars the Supreme Court or any other court from exercising jurisdiction over any matter that has been referred to the Tribunal.
In view of these explicit provisions, the Supreme Court has in the past refrained from entertaining matters that were referred to or adjudicated by the Tribunal. While dealing with issues of similar kind, the Supreme Court has explicitly stated that the Constitutional framers empowered Parliament to exclude jurisdictions of all courts in such disputes.
Perhaps, it could be argued that even though the aforesaid judgments make it clear that the Supreme Court does not have the jurisdiction to hear these disputes in the first instance, the question of whether the Supreme Court can entertain appeals against the verdict of the Tribunal is still open.
However, this may not be true as the Act also specifies that the decision of the Tribunal, once notified in the government gazette, will have the same force as an order or decree of the Supreme Court. This implies that once a decision is notified by the Tribunal, it will be as if the Supreme Court has passed that decision.
SC’s blind spot
In view of these provisions, can the Supreme Court then entertain appeal of its own decision? Perhaps, not. Doing this would also vitiate the raison d’etre of constituting the Tribunal to adjudicate this dispute.
It is rather regrettable that the Supreme Court has ignored these legal provisions and despite the Tribunal having heard the matter for almost 17 years, the apex court has allowed various special leave petitions against the orders of the Tribunal and is examining the merits of the matter once again by way of an appeal.
It seems that before entertaining these appeals, the Court has ignored that (i) it does not have expertise and hence a specialised tribunal was created and (ii) the Constitutional provisions and scheme of the Act does not allow the Supreme court to entertain an appeal against a judgment, deemed to be its own.
If the law was followed in its original or strict sense, the decision of the Tribunal (which was notified in 2013) would have attained finality. Final decision in any litigation is likely to leave one or more sides aggrieved, particularly when the dispute was vehemently contested and argued by both the sides. However, that alone does not warrant revisiting merits of that dispute.
At best, a substantial change in circumstance (as was apparently argued by the State of Karnataka citing poor rainfall this season), could be a ground to seek review or clarifications from the Tribunal on its order; but not be a reason for the Supreme Court’s interference. Perhaps, in the present times of activism, judicial restraint of some form will be welcome.
(Motwani is a practicing lawyer and currently a Master of Public Policy scholar at the University of Oxford; Grover is a practicing lawyer and teaches at Tamil Nadu Law School)