Recently, The Hindu in a news article covered the argument of the Central Government and the Karnataka Government regarding the issue of finality of the decision of the Cauvery Water Dispute Tribunal, which was given in the year 2007. Central Government is arguing that the Tribual decision is final and Supreme Court cannot interfere in the matter due to the bar Article 262 of the Constitution of India, which deals with Adjudication of disputes relating to waters of inter-State rivers or river valleys and provides under clause (1) that "Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley" and under Clause (2) provides 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 ) Coordination between States". In view of the discretion granted to the Parliament of India enacted in the year 1956, The Inter-State Water Dispute Act. Accordingly, the tribunal was formed from time to time for various inter-State water disputes. One such Tribunal was the Cauvery Water Dispute Tribunal.
The Cauvery Water Disputes Tribunal (CWDT) was constituted by the Government of India on 2nd June 1990 to adjudicate the water dispute regarding inter-state river Cauvery and the river valley thereof for the settlement of the water sharing dispute between the states of Karnataka, Kerala, Tamil Nadu and the Union Territory of Pondicherry (now Puducherry), which gave its award in the year 2007 in which it ordered that the waters of the river Cauvery be allocated in three States of Kerala, Karnataka and Tamil Nadu and U.T. of Pondicherry for their beneficial uses as mentioned hereunder:- i) The State of Kerala - 30 TMC ii) The State of Karnataka - 270 TMC iii) The State of Tamil Nadu - 419 TMC iv) U.T. of Pondicherry - 7 TMC 726 TMC In addition,Tribunal reserve some quantity of water for (i) environmental protection and (ii) inevitable escapages into the sea as under:- i) Quantity reserved for environmental - 10 TMC protection. ii) Quantity determined for inevitable - 4 TMC escapages into the sea. 14 TMC Total (726 + 14) 740 TMC. This order of the tribunal is to be come into operation on the date of the publication of the decision of this Tribunal in the official gazette under Section 6 of the InterState Water Disputes Act, 1956. However, the award could not be notified by the central government as in the year 2007 itself, as parties to the tribunal filed SLPs challenging the tribunal order, which was admitted by the Supreme Court. These SLPs is still pending in the Supreme Court, the faith of it will be decided by the Supreme Court in the coming future. I will not be taking a side of any party and I will not be providing any solution for the problem in this article. My sole argument in this article is that the Supreme Court has the power to decide the faith of the Tribunal award/order despite the bar created by the parliament under Article 262(2) of the constitution by enacted the Inter-State Water Dispute Act, 1956
The Inter-State Water Dispute Tribunal Act, 1956 under Section 6 of the 1956 Act which deals with Publication of Decision of Tribunal and provides that "The Central Government shall publish the decision of the Tribunal in the Official Gazette and the decision shall be final and binding on the parties to the dispute and shall be given effect to by them." and further that "The decision of the Tribunal, after its publication in the Official Gazette by the Central Government under sub-section (1) , shall have the same force as an order or decree of the Supreme Court." and by Section 11 of the 1956 Act, which deals with the Bar of jurisdiction of Supreme Court and other Courts and provides that "Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act." The Central Government is arguing their case on the basis of the aforesaid Art. 262 of Constitution of India, 1950, Section 6 & 11 of the 1956 Act. On apparent reading of the aforesaid provisions of the Constitution and the Inter-State Water Dispute Tribunal Act, 1956, it seems that the Central Government is taking the correct stand as per the law of the land. But as it is saying that devil is always in the detail, one cannot read the provision of law in isolation, especially the provision of the constitution can never be read in isolation, one has to look into other provision of the Constitution as well as the precedents.
The Supreme Court in Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789) has categorically held that total exclusion of judicial review by a constitutional amendment would be void as the Judicial Review is a part of basic structure of the Constitution. When the power of judicial review cannot be taken away by way of constitutional amendment, it seems untenable that the very same power can be taken away a parliament enactment of a law, which itself found its source in the Constitution. Further, even if we accept the central government argument about the finality of the Tribunal Award, the same will not stand in the supreme Court in view of the one particular provision i.e. Article 136, which overrides the subjective clause of Article 131 in chapter IV of Part V of the Constitution. The opening line of which says, "Subject to the provision of this constitution", this subjection will include the Art.262. Article 136, which is also a part of chapter IV of Part V of the Constitution starts with a non obstante clause i.e. "Notwithsanding anythig in this chapter gives very wide discretionary power to the supreme court to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India" The Tribunal under the inter-state water dispte Act will certainly be a Tribunal for the purpose of Article 136 and the Supreme Court of India will definiatley will have the jurisdiction and should decide the appeal against the Cauvery Tribunal.
Amit Gupta
(Advocate, Delhi)
amit.gupta.983@gmail.com
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