Former Supreme Court judges have termed the resolution passed by the two Houses of Karnataka on September 23 to deny Tamil Nadu Cauvery water merely an ill-advised misadventure.
They said the resolution was no match for the constitutional might of the Supreme Court as the final and sole arbiter of Inter-State and Inter-State water disputes.
Former Supreme Court judge, Justice K.T. Thomas said the “resolution is only to fit to be kept in the records of the Karnataka Legislature and has no authority.”
“At best, its [Karnataka Legislature] resolution can be treated as an expression of opinion or a criticism of the Supreme Court order. Everyone has the right to criticise a court order. But the Supreme Court is the final authority in resolving inter-State water disputes,” Justice Thomas said.
Karnataka found itself on thin ice earlier in the day when the Supreme Court flexed its constitutional muscle and refused to entertain Karnataka counsel and senior advocate Fali Nariman's objections against releasing 6,000 cusecs of Cauvery water to Tamil Nadu for three days.
Mr. Nariman protested it was “not possible” to comply with the Supreme Court order against the wishes of the State Legislature. So, the Bench of Justices Dipak Misra and U.U. Lalit directed Karnataka to release the water “despite the resolution”.
“The Supreme Court's mandate to be the final arbiter of inter-State water disputes is derived from the Indian Constitution itself, and not even the Parliament. The Constitutional makers gave the Supreme Court this power to prevent a situation by which one State will pass a resolution against the other and a constitutional crisis will ensue,” former Supreme Court judge Justice K.S. Radhakrishnan explained.
Justice Thomas referred to Article 144 of the Constitution to note that the Supreme Court could even call summon the services of the Army to aid it in implementing a judicial order.
'Legislature can't overrule decision'
Both former apex court judges referred to the May 2014 judgment by a Constitution Bench led by then Chief Justice of India R.M. Lodha in the Mullaperiyar dam case. The Bench had quashed a State law promulgated by the Kerala Legislature to defy a Supreme Court order allowing water level in the dam to be increased from 136 feet to 142 feet in favour of Tamil Nadu.
In his judgment, Justice Lodha held that “the legislature, cannot by a bare declaration, directly overrule, reverse or override a judicial decision”.
Upholding the sanctity of the Constitutional principle of Separation of Powers, the Mullaperiyar judgment said “a law enacted by the legislature may apparently seem to be within its competence, but yet in substance if it is shown as an attempt to interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers”.
