The Cauvery Water Disputes Tribunal was established in 1990, under the Inter-State Water Disputes Act, at a specific direction of the Supreme Court. Ironically, and despite a constitutional and statutory bar on jurisdiction, the court has made it very difficult for the Tribunal to function in accordance with the Act.

This article has been prompted by the excellent and succinct editorial in The Hindu of January 5, 2010 (“Three years and counting,”). It seeks to strengthen the thrust of that editorial.

The first point to note is that the protracted and vexed dispute stands adjudicated through a constitutionally sanctioned process. One had hoped that the award of the Cauvery Water Disputes Tribunal, coming after 17 years of proceedings, would mark the end of the historic dispute. But that was a naïve expectation, given the state of politics in this country. However, let us leave that kind of lament aside as old-fashioned and futile.

The Inter-State Water Disputes Act 1956 (ISWD), which was amended in 2002, does provide for a reference by the parties back to the Tribunal after it gives its final order. The parties to the Cauvery dispute were fully entitled to use that provision. In the normal course, the Tribunal could have disposed of the petitions submitted to it and issued supplementary or clarificatory orders (or revised its Final Order) within three to six months, or at the most a year. Unfortunately, it has not been able to deal with the petitions because the parties have simultaneously gone to the Supreme Court with Special Leave Petitions, and the Supreme Court, having admitted the SLPs, has not yet (in three years’ time) taken them up.

How could the parties go to the Supreme Court with SLPs when there is a clear and explicit bar on the jurisdiction of the courts in the case of a river-water dispute that has been referred to a Tribunal under the ISWD Act? Such a bar is provided for in Article 262 of the Constitution and it is part of the ISWD Act. In other words, it is a constitutionally sanctioned bar. The governments, their Law departments, and their learned and eminent counsel know these provisions very well. How then were the SLPs submitted, and how did the Supreme Court admit them?

In the case of any SLP under Article 136 (whether relating to river-water or any other dispute), the Supreme Court has first to decide in its discretion whether it should grant or deny the requested Special Leave. Special Leave is not automatic. The need for a considered grant or denial of Special Leave would apply to all SLPs. But it was particularly important in this case because of the specific and explicit exclusion of the jurisdiction of the courts. One would have expected that bar to be taken note of and the means of overcoming it gone into before the petitions were admitted.

It is of course possible that this aspect will be examined when the petitions are taken up for detailed hearing. However, it is not clear how the question of jurisdiction will come up at that stage. The petitioners are hardly likely to raise the issue. Perhaps the learned judges themselves will do so. But does not the very admission of the petitions constitute an implicit decision on admissibility? Having admitted them, how can the Supreme Court go into the question of admissibility? Will it then de-admit them?

It may be argued that the bar on the jurisdiction of the courts is not absolute. If so, what are there ways in which the bar can be overcome? Among the possible routes are Articles 32, 131, and 136 of the Constitution.

Article 32 relates to fundamental rights, and it does not seem easy to invoke it in the context of river-water-sharing. The Bangalore Water Users’ Association (BWUA), in fact, invoked that Article in a petition. Among the BWUA’s arguments was the one that the Tribunal’s allocation to Karnataka did not make an adequate provision for Bangalore’s drinking water needs and that this constituted a violation of a fundamental right. That seems to me an argument of doubtful validity, but it is not necessary to go into it here. In the event, the Supreme Court dismissed the BWUA’s petition on the ground of absence of locus standi. The question of fundamental rights did not come up at all.

Article 131 is about Centre-State or inter-State disputes in general, whereas Article 262 is specifically about inter-State river-water disputes. How can a general provision be invoked in a case covered by a specific provision? Besides, clause (2) of Article 262 that enables the barring of the jurisdiction of the courts begins with the words “Notwithstanding anything in this Constitution.” That does not seem to leave recourse to Article 131 open. However, the question whether Article 131 provides a route for an appeal to the Supreme Court against an ISWD Tribunal’s Order did not come up for consideration.

Article 136 is the actual route taken by the three petitioner States in this case. The wording of the Article, and in particular the reference to “any Court or tribunal in the territory of India,” seems to bring the ISWD Tribunals within the purview of the Article. But we cannot forget the specific bar in the ISWD Act in pursuance of Article 262; and that article begins with a “notwithstanding anything in this Constitution” clause. Is that clause over-ridden by Article 136? Is it possible to over-ride a “notwithstanding anything” clause (a non obstante clause)? Does Article 136 carry an unstated super non obstante clause that over-rides the explicit non obstante clause in Article 262? Such questions were not discussed before the petitions were admitted. Perhaps they will come up at a later stage.

Finally, there is a further question of some importance. If a way out of the bar of jurisdiction can be found via Article 32 or 131 or 136 in this case, it can be found in every case. Under what circumstances then will the bar actually operate? Surely a bar that can be removed in every case is not a bar at all. It does appear that the establishment of a route to the Supreme Court against an ISWD Tribunal’s Award via other constitutional provisions will be tantamount to major amendments to Article 262 of the Constitution and the ISWD Act. If such amendments are felt to be needed, should they not be explicitly made in the appropriate manner?

One has heard the argument that judicial review is part of the basic structure and cannot be ousted but that does not apply in this case. Judicial review applies to legislation or executive action. The Tribunal’s award is a judicial decision. In such a case, there can be a review by the same court or an appeal to a higher court. Review by the Tribunal itself is possible, but appeal to a higher court (the Supreme Court) is ruled out by the bar on the jurisdiction of the courts. That bar is sanctioned by an Article of the Constitution. An amendment to the Constitution can be struck down as violating the basic structure of the Constitution, but can an original article of the Constitution itself be held to violate the basic structure?

One must hope that these issues will receive due consideration when the SLPs are taken up. The fact is that in three years’ time the Supreme Court has not found it possible, or has not deemed it fit, to take them up. In the meanwhile, the Tribunal has been unable to deal with the petitions submitted to it. In other words, the Supreme Court has made it very difficult, if not impossible, for the Tribunal to function in accordance with the ISWD Act. There is some irony here because the Tribunal was established in 1990 under a specific direction of the Supreme Court.

(Ramaswamy R. Iyer is a former Secretary for Water Resources in the Government of India.)

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