The Supreme Court & river water disputes

Ramaswamy R. Iyer

There should be provision for an appeal to the highest court against a tribunal's award. But this should be after the reference back to the tribunal and the receipt of its supplementary or clarificatory order.

THE POINT of departure for this article is the fact that the Special Leave Petitions (SLPs) against the Cauvery Tribunal's Final Order submitted by three States (Tamil Nadu, Karnataka, and Kerala) have been admitted by the Supreme Court and will be heard further, but the article is not about the merits of those petitions; it is about the role of the Supreme Court in such cases.

Over the years, several inter-State river water disputes have come up before the Supreme Court with reference to a variety of issues such as the competence of the Tribunal to deal with a request for an interim allocation (Cauvery); the non-implementation of an Order of the Tribunal (Cauvery); failures on the environmental and rehabilitation fronts (Narmada); the constitutionality of an Act of a State Legislature terminating all past water accords (Punjab); etc. In each of these cases, what went before the Supreme Court was not the water-sharing issue, which had been adjudicated or was under adjudication by a Tribunal, but some other related legal or constitutional issue. For the first time in the history of the Inter-State Water Disputes Act 1956 as amended in 2002 (ISWD Act), the SLPs in the Cauvery case have brought the Tribunal-adjudicated water-sharing issue itself before the Supreme Court. Some interesting questions arise in this context, which this article will proceed to set forth.

In the case of any SLP under Article 136 (whether relating to river-water disputes or any other), the Supreme Court has first to decide in its discretion whether it should grant or deny the requested Special Leave. It appears that such a process of reasoned decision-making was not gone through in this case. The SLPs seem to have been admitted forthwith without discussion.

The need for a considered grant or denial of Special Leave would apply to all SLPs, but it was particularly important in this case. Whatever the justification for SLPs in other cases, there is a special hurdle to be crossed in the case of an SLP against an ISWD Tribunal's award, namely a specific and explicit exclusion of the jurisdiction of the courts, including the Supreme Court, by the ISWD Act, based on an enabling provision in Article 262. 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 not be inevitably led into an examination of the merits of the petitions? Will that be in order?

This writer is not arguing (a) that the bar of the jurisdiction of the Supreme Court was right; or (b) that the bar is absolute and cannot be overcome. He has been arguing for years that a single, non-appealable decision by an ISWD Tribunal was likely to leave one or more parties to the dispute with a sense of injustice; that it was desirable to amend the ISWD Act to provide for an appeal against the Tribunal's Final Order to the Supreme Court; that such cases were going to the Supreme Court anyway on other related issues, and it would make sense to recognise and provide for this; and that if the Supreme Court gives a decision on an appeal against the Award, the likelihood of non-compliance might be greatly reduced. However, these ideas have not so far found acceptance. The ISWD Act remains unamended insofar as the bar of jurisdiction of the courts is concerned.

What are the 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. That Article was, in fact, invoked in a petition by the Bangalore Water Users' Association. 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. It is not clear whether the fundamental right to drinking water implies a fundamental right to drinking water from a particular source, namely the Cauvery. There are other related issues, including above all the question whether any individual or organisation other than a State Government had any locus standi in relation to adjudication under the ISWD Act. In the event, the Supreme Court dismissed the BWUA's petition on the ground of absence of locus standi. The question of fundamental rights, etc., 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. It is not clear to this writer how a general provision can 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 has 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, as mentioned above, that Article begins with a "notwithstanding anything in this Constitution" clause. Is that clause over-ridden by Article 136? That question was not discussed before the petitions were admitted. Perhaps it will come up at a later stage.

It must be noted that all four parties to the dispute have also submitted petitions to the Tribunal for a clarificatory or supplementary order, as provided for in the ISWD Act. Simultaneously, then, the dispute will be before both the Supreme Court and the Tribunal. Does that not create an intriguing and possibly untenable situation?

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 will the bar actually operate? Surely a bar that can be removed in every case is not a bar at all. Speaking subject to correction by legal experts, and of course subject to whatever the Supreme Court may eventually lay down in this case, it seems to this writer that the establishment of a route to the Supreme Court against an ISWD Tribunal's Award via other constitutional provisions will be tantamount to amendments to Article 262 of the Constitution and the ISWD Act. As argued earlier, such amendments may indeed be needed; but should they not be explicitly made?

In conclusion, we must take note of an alternative suggestion made by the National Commission to Review the Working of the Constitution. This was to the effect that the ISWD Act should be repealed and that inter-State river water disputes should be brought within the original jurisdiction of the Supreme Court, as is the case in the United States. Without entering into an elaborate discussion on that subject (as warranted by its importance), this writer would merely say that there is no need to repeal the ISWD Act and bring such cases within the original jurisdiction of the Supreme Court; and that the one serious weakness in the present dispensation, namely, that some of the parties to a dispute may be left with a feeling of grievance or injustice, can be remedied by providing for an appeal to the Supreme Court against the award of a tribunal (after the completion of the reference back to the tribunal and the receipt of its supplementary or clarificatory Order).

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