Dr. Justice A. K. Rajan, L .L D
Former Judge, Madras High Court
….Continued from the previous issue
BAR OF JURISDICTION OF SUPREME COURT OR ANY OTHER COURT – MEANING
12. The word jurisdiction means “Authority to judge or administer justice”. It may be under Original jurisdiction, Appellate jurisdiction, or revisionary jurisdiction or to review its own order. As stated above, Section 11 of the Inter State Water Dispute Act put a blanket Bar or prohibition over all the Courts including the Supreme Court of India from exercising jurisdiction in respect of any water dispute referred to a Tribunal under the said Act. That is once a Inter State Water Dispute was referred to a Tribunal, the decision of the Tribunal would be final. No court including the Supreme Court can adjudicate on that issue. Since the decision of the Tribunal is binding on the Central Government as well, and since the award is tantamount to an order or decree of the Supreme Court, the Supreme Court can direct the Central Government to implement the award of the Tribunal. [T.N.Cauvery Neerpasana Vilaiporulgal Vivasayigal nala Urimaigal padukappu Sangam Vs Union of India A.I.R.1990 S.C.1316].
STATE GOVERNMENTS APPEALED TO SUPREME COURT?:
13. The Central Government, as the order of the Tribunal have the same force as an order or decree of the Supreme Court, should have implemented the order of the Tribunal. But it did not take any action. It did not even publish in the Official Gazette for more than SIX long years. Presumably, the delay was for some political reasons. Immediately after the Tribunal’s Award, State of Karnataka filed appeal against the award of the Tribunal. State of T.N. also filed Appeal to Supreme Court. The Attorney General, on behalf of the Union of India, rightly argued, that no appeal lie to Supreme Court against order of the Tribunal. It appears that the action taken by the States of Tamil Nadu and Karnataka are also due to political compulsions, to escape criticism that State did not take effective steps or was inactive to modify the Tribunal’s order.
14. Initially the Hon’ble Supreme Court expressed doubt about its own jurisdiction to entertain the appeals. In the judgment the Supreme Court has considered this point in paragraph 18 of the judgment. The Hon’ble Supreme Court, on the question of maintainability of appeals, said that in the earlier case between State of Karnataka and State of Tamil Nadu, “the court has held that when judged by the principles of statutory interpretation to understand the legislative intendment of Section 6(2), it is clear as crystal that Parliament did not intend to create an embargo on the jurisdiction of this Court. ……………Founding fathers had not conferred the power on this Court to entertain an original suit or complaint and that it is luminescent from the language employed in Article 131 of the Constitution and from the series of judgments of this Court. The Court further held that Section 6 cannot be interpreted in an absolute mechanical manner and the words “same force as an order or decision” cannot be treated as an order or decree for the purpose of excluding the jurisdiction of this Court. …………it cannot be a decree as if this court has adjudicated a matter and passed a decree. The Parliament has intended that the same shall be executed or abided as if it is a decree of this Court”. How the final order passed by the Tribunal would be adjudged within the parameters of the said Constitutional provisions has to be debated when we finally address the controversy pertaining to the civil appeals”.
15. According to the Supreme Court, Sub-section 6(2) of the Inter State River Water Disputes Act 1956, extracted above, is a fiction of law. And the exposition of law relating to fiction, compelled the court to repel the contention of the Union of India that the Section 6(2) bars the jurisdiction conferred on this Court under Art 136.The Hon’ble Supreme Court further states, in paragraph 19, that “ ………………..it is submitted by Nr. Nariman….that this court should exercise the wide powers bestowed in it under Article 136… in a case of this nature and exercise its discretion. Similar was the submission of senior counsel appearing for other States. The Court went on to state “Both the states wanted a remand to the tribunal. But during arguments, the counsel appearing in the case unanimously state that the remand is no solution to such a dispute and this court should decide the legal and factual issues so that the controversy is put to rest.” Therefore, the Supreme Court proceeded to decide the various legal issues in detail as an appeal.
ARTICLE 136 MAY NOT APPLY:
16. With at most respect to the Hon’ble Supreme Court, and Mr.Nariman, it appears that the argument of Mr. Nariman is not acceptable. A plain reading of the provisions of Articles 132 to135 would reveal that a certificate by the High Court is necessary to entertain an appeal. Article136 is just an exception to that rule. The extraordinary power conferred under Article 136 is to hear an appeal, even without such certificate from the High Courts. Article 136 starts with the words “Notwithstanding anything in this Chapter’. That refers to Part V [The Union] Chapter IV [Union Judiciary]. Whereas Article 262 is included in Part XI, [Relations Between The Union And The States], Chapter II [Administrative Relations]. Even within the Part -XI, Articles 256 to 261 relates to relations that are “General’ in nature and Article 262 is relating to “Disputes Relating to Waters”, which is special [SUI GENRIS] in nature. Therefore, reading Article 262 along with Section 11 of The Inter-States River Water Disputes Act 1956 [Act 33 0f 1956], which reads “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”, it is clear that the Supreme Court cannot exercise jurisdiction, under Articles 131 to 136 of the Constitution, over the matter relating to Cauvery water dispute, as it had been “referred to a Tribunal” under Act 33 of 1956.
17A. It is seen from the judgment of the Supreme court that “ Mr. Nariman, learned counsel appearing for the State of Karnataka, submitted that considering more than 27 years had elapsed from the date of constituting the Tribunal and also considering that all the state parties to the dispute were before this court and each of them had challenged the Tribunal’s final order, it would be appropriate for this court to exercise its authority under Article 136 of the Constitution and decide the matter finally.” He submitted that as per judicial pronouncements, the power of this court under Article 136 read with Article 142 being plenary, is exercisable outside the purview of ordinary law in cases where the need of justice demands interference as in the present case.”{ Para 23]. The Supreme Court comes to the conclusion, that “all the learned counsel, at least on this issue, unanimously stated that the remand is no solution to such a dispute and this court should decide the legal and factual issues so that the controversy is put to rest. Thereafter, the hearing of the appeals continued. Accordingly we shall proceed to decide the various legal issues which are of priority and upmost concern and thereafter advert to the approach to be adopted in the obtaining factual matrix.” [Para 24]
17B. Merely because all the advocates appearing in a case requested or merely because the States filed appeals to Supreme Court , the Supreme Court cannot assume or would not get jurisdiction to decide the matter relating to water dispute between two or more States. No one except the Parliament, by Law, can confer jurisdiction on the Supreme Court under Article 138 of the Constitution. Surprisingly, Hon’ble Supreme Court accepted the statement of the counsels for the States as the final word on this issue.
18.There is a couplet in the 2000 years old Tamil Literature, the renowned , “ THIRUKKURAL”. [EPPORUL YAAR YAAR VAAI KETPINUM APPORUL; MEIPPORUL KAANBATHU ARIVU. ] (Lyric in Tamil written in Roman Script) A rough translation would be as follows:-
“BE HEARD WHATEVER FROM WHOMESOEVER;
CULLING OUT REAL TRUTH IS WISDOM”
That is, any one may anything truth or false hood, but all those statements should be carefully analysed and the real meaning must be ascertained; that is wisdom. When so analysed the Supreme Court may not get jurisdiction under Articles 136 of the Constitution. Reading Article 262 and Section 6 of 1956 Act together and construing harmoniously with Article 136 the Supreme Court would not get jurisdiction to sit in appeal against the order of the Tribunal. Merely because the word ‘tribunal ‘ is also found in Article 136 the Supreme Court cannot assume jurisdiction against the award of the Tribunal.
WHILE EXECUTING THE ‘DECREE’- ARTICLE 142 WOULD APPLY:
19. At the same time, the Hon’ble Supreme Court gets the jurisdiction, under Article 142 of the Constitution, while executing the ‘Directions’ given and ‘Orders, made by the Tribunal as if it were a ‘decree’ of the Supreme Court, since the decision of the Tribunal had been published in the Official Gazette of Government of India, and hence it is binding on the parties to the dispute. The Hon’ble Supreme Court also has reiterated that the “award of the Tribunal has to be treated as decree of the Supreme Court” [Paragraph 403]. While executing the decree, the Hon’ble Supreme Court, under Article 142(1) may make such order as is necessary ‘to do complete justice’ to the issue, and may even modify the order. The Supreme Court has only that limited power conferred on it by Article 142.
DECISION OF THE SUPREME COURT:
20.The Hon’ble Supreme Court has held (in paragraph 382) as follows:- “In our first verdict that pertained to the delineation of maintainability of appeals by special leave while holding the appeals to be maintainable , we had kept it open for advertence at a later stage the issue whether there should be broad approach or narrow one. ……….. though the parameters of applicability of Article 136 can be broad to appreciate the materials and scrutinize the manner of appreciation by the court/ tribunal ……..in the present appeals preferred by special leave, we think it condign to adopt an approach which is neither broad or narrow but an intermediary one……..” That is the provision of Article 136 was applied for a limited purpose.
21. But, at the end, in fact, the Supreme Court has considered this as if it were another ‘routine’ appeal by special leave, under Article 136. The Tribunal after considering all the facts and circumstances in this case had held that the Agreements of 1924 was legal and survives even after 1974 and continues to be binding on Karnataka and Tamil Nadu. But the Supreme Court has held “ The continuance “ (of the 1924 Agreement between Madras Province and Mysore government ) “after 50 years was dependant on certain aspects and, therefore, we have no hesitation in holding that the agreement expired after 50 years” in the year 1974. That is the Supreme Court applied the powers of appeal by special leave in broader sense.
THE SUPREME COURT MODIFIED ALLOCATION OF WATERS:
22. The Hon’ble Supreme Court (in paragraph 396) has modified the allocation of waters as follows:- Karnataka -284.75 TMC; Tamil Nadu 404.25TMC; Kerala 30 TMC; Pondicherry 7TMC; etc. The Hon’ble Supreme Court has in Paragraph 397 has held that “Apart from the modifications effected hereinabove, no interference with the determination and findings recorded by the Tribunal, …………………is called for”. After reproducing the monthly deliveries to be effected by Karnataka, in paragraph 398, the Supreme Court state in paragraph 399 as follows:- “ The Tribunal directed appointment of a Regulatory Authority to properly monitor the working of the monthly schedule……………………..The other directions which had been issued by the Tribunal , we think it appropriate to reproduce, are under :- Clause XIV to Clause XVI and Clause XVIII are extracted. Thereafter in Paragraph 400 it sates as follows:- “400. In view of the reduction in the quantum of water, now required to be released by Karnataka at the inter-State border with Tamil Nadu, i.e. at Billigundlu, there would be ,logically, a proportionate decrease in the monthly releases as worked out by the Tribunal. However , the same pattern therefore, as modified by it would be maintained for the reduced releases”.
IMPERATIVE MECHANISM (CAUVERY MANAGEMENT BOARD) FOR IMPLEMENTATION OF THE TRIBUNAL’S DECISION:
23. The Hon’ble Supreme Court considers this and has held as follows:-
‘It (the Tribunal), thus, recommended that the Cauvery Management to be constituted on the lines of the Bhakra Beas Management Board by the Central Government. It underlined that unless an appropriate mechanism was set up, the prospect of implementation of its decision would not be secured. It further recommended that as its award involved regulation of supplies from various reservoirs and other important nodal points / diversions structures, it was imperative that the mechanism, Cauvery Management Board, be entrusted with the function of supervision of the operation of reservoirs and regulation of water releases there from with the assistance with the Cauvery Water Regulation Committee (to be constituted by the Board). It then suggested the constitution of the Cauvery Management Board, its composition, its items of business, etc. It also recommended the composition of the Cauvery Water Regulatory Committee and outlined its functions. The Cauvery Management Board was also required to submit an annual report to the four States before 30th of September of each year. The Tribunal prescribed guidelines for the Cauvery Management Board which besides being exhaustive were intended to touch upon the functional details relating to the supplies out of the allocated shares. We do not intend to state the guidelines laid down by the Tribunal as we shall be addressing to many an aspect of the scheme as envisaged under Section 6.1 of the 1956 Act. “ [Paragraph 290]
24. From the above passage it is seen that the Tribunal has recommended the following.
1). Constitution of the Cauvery Management Board on the lines of Bhakra Beas Management Board;
2). Supervision of operation of reservoirs and regulation of water releases therefrom with the assistance of the Cauvery Water Regulation Committee.
3). Composition of the regulatory Committee and its functions.
It is to be noted that the Supreme Court has not disapproved or rejected or modified the mechanism for implementation of the award. That is, the Supreme Court while disposing the appeal did not specifically disapproved the establishment of the Cauvery Management Board [CMB], or the Cauvery Regulatory Committee [CRC]. It one of the axiomatic principles of jurisprudence that what was not specifically disapproved by the appellate court is deemed to have the seal of approval of the appellate Court. Therefore, the view of the Hon’ble Supreme Court is that CMB and CRC, as devised by the Tribunal shall be constituted.
INTERPRETATION OF SECTION 6A OF 1956 ACT :
25. Quoting Section 6A of State Reorganisation Act 1956 in full, the Supreme Court, in paragraph 402, has stated “We have already noted the submission of the learned Solicitor General. His submission, in essentiality, is that the Court should not issue any direction to the Central Government and allow the discretion to be exercised by it as the provision uses the word may. On the ‘Power to make schemes to implement the Decision of the Tribunal, the Hon’ble Supreme Court refers to the submission made by the Solicitor General, that ‘the Court should not issue any direction to the Central Government and allow the discretion to be exercised by it as the provision uses the word ‘may’, (in Section 6A), the Supreme Court said categorically, that the said “argument cannot stand the substance test”. It refers to the earlier decision rendered by the Supreme Court between the state of Karnataka and Tamil Nadu, wherein it was held that Section 6(2) “ has been inserted to provide teeth to the decision of the Tribunal after its publication in the official Gazette by the Central Government and it has been done keeping in view the Sarkaria Commission ‘s Report”. Further, the Supreme Court (in paragraph 403) has stated as follows:-
“403. We have referred to the above passages, as the award of the Tribunal has to be treated as decree of the Supreme Court. It is so stated in Section 6(2) to give teeth to the award passed by the Tribunal so that none of the States can raise objection to the same and be guided by the directions of the Tribunal. …………….. It needs no special emphasis to state that the purpose of Section 6A is to act in the manner in which the award determines the allocation or sharing of water. Keeping in view, we direct that a scheme shall be framed by the Central Government within a span of six weeks from today so that the authorities under the scheme can see to it that the present decision which has modified the award passed by the Tribunal is smoothly made functional and the rights of the States as determined by us are appositely carried out. When we say so, we also categorically convey that the need based monthly release has to be respected. It is hereby made clear that no extension shall be granted for framing of the Scheme on any ground.
26. From the above observation the Supreme Court has made it clear (1) the award of the Tribunal got the force of the judgment of the Supreme Court when it was published in the Official Gazette of the Central Government.(2) under Section 6A, The Central Government is bound to implement the award of the tribunal once it was published in the Official Gazette.(3) The word ‘may’ used in Section 6A should be read as ‘SHALL’; no discretion is given to the Central Government after it was published under the Official Gazette.
CONCLUSIONS OF THE SUPREME COURT:
27. Supreme Court enumerated its final decision in seriatim :
(1)The two agreements of 1892 and 1924 had neither any political arrangement nor touched any facet of sovereignty of India. The agreements cover larger public interest which do not have any political element in the backdrop, the agreements are neither inoperative nor completely extinct.
(2)The issues in this case no connection, whatsoever, with the concept of sovereignty and integrity of India and therefore, the bar under Article 363 of the Constitution of India is not attracted.
(3).The two agreements cannot be said to be ‘unconscionable’.
(4).Both the agreement remained in force even after State reorganisation Act 1956;
(5)The 1924 agreement was never intended to be of permanent character; on the contrary, it contemplated a fixed term of 50 years in the years. Therefore, the said agreement expired after 50 years in the year 1974.
(6)The Tribunal’s decision of rejection of Harmon doctrine and placing reliance of the Helsinki Rules are correct. Tribunal’s approach, in determining reasonable and equitable shares in the waters are correct.
(7)Waters of an inter-state river constitute a national asset; no single State can claim exclusive ownership of its water.
(8)……..
(18).The State of Karnataka is now required to release 177.25 TMC of water at the inter-state border Billigundulu;
(19). The ‘framing of the schemes is exclusively meant for implementation of the award or as the same gets modified by this Court.
(20). “It is made clear that subject to the scheme to be formulated under Section 6A of the 1956 Act, in terms of the present adjudication, the recommendations / directives of the Tribunal with regard to the monthly releases and not inconsistent with anything decided herein, are hereby endorsed for the present for a period of 15 (fifteen) years hence”.
28. “ENDORSED” — MEANS CONFIRMED / APPROVED / RATTIFIED:
The word ’endorsed’ used by the Hon’ble Supreme Court is very significant. In the Constitution of India the word ‘endorsed’ is found used in Article 110(4). When a money Bill is transmitted from the House of People to the Council of States and also when it is presented to the President of India, for assent, the Speaker shall endorse that it is a money Bill. When so endorsed it is final. No authority can question that the Bill does not satisfy the requirements of a money Bill. Thus the word endorse conveys finality on the question.
The Law lexicon, by P.Ramanatha Iyyer, makes it clear that to endorse means to ‘confirm’ [endorsing a statement or opinion]. The Oxford Dictionary defines endorsement as a ‘public approval’. Black’s legal dictionary defines the word endorsement as ‘stamp of approval’, commendation, or recommendation. Therefore, it is very clear, and there is absolutely no scope for any doubt, that the Hon’ble Supreme Court has confirmed/ ratified / approved all the recommendations and directives of the Tribunal. That is, the direction to the Central Government was to frame a “scheme”, incorporating all the recommendations and all the directives issued by the Tribunal, and to constitute the Cauvery Management Board and the Cauvery Water Regulatory Committee.
29. The Hon’ble Supreme Court has directed the Central Government to frame a scheme incorporating all the recommendations and directives issued by the Tribunal. That is, the Supreme Court has directed that a Cauvery Management Board, be constituted and that Board shall constitute Cauvery Water Regulatory Authority, in order to regulate and ensure monthly supply to all the States, including T.N. Kerala, and Pondicherry. There is absolutely no reason for any doubt or seeking any clarification. This direction “that a scheme shall be framed by the Central Government within a pan of six weeks from today………”, in paragraph (403) appears to have given for the only reason that Section 6A of the 1956 Act imposes the duty of enforcing the award of the Tribunal on the Central Government. At the same time such a scheme shall be in conformity with and also incorporating all the “recommendations / directives issued by the Tribunal”. A plain reading of the judgment would convey this.
CONCLUSION:
30. An amicable settlement on the Cauvery Water Dispute has eluded for more than four decades, not because of any real dispute, it was more a political game. The Central Government failed to bring about a settlement across the Negotiation table. One of the main reasons for that may be the fact that Tamil Nadu was not ruled by the party in power at the Centre. The fact that Cauvery river water is an inter – State river and hence no single State can claim the entire waters of the river. It has been, now, categorically laid down by the Supreme Court in this judgment. The Supreme Court has also reiterated that the ’Horman doctrine’, (upper riparian-State can prevent the water flowing to the lower riparian State ) claimed by State of Karnataka, was not acceptable, and that the inter-State River water shall be shared equitably by all the riparian Sates. The equitable sharing of waters also means ensuring monthly and periodical supplies. Persons who occupy the highest offices in India should not forget that all the States in India are part of the Indian Union. People in India are also aware of the fact that International river water disputes between India and Pakistan, India and Bangladesh were settled without any difficulty or delay.
It is expected, from any court, that a judgment should resolve all the disputes fully. It should not give any scope for misinterpretation of the judgment itself. That is a judgment should not create any room to further litigate. In as much as the Supreme Court has only reduced the quantum of the water to be given to Tamil Nadu, and at the same time approved the mechanism The real intention of the Supreme Court appears to be that, the scheme to be formulated under Section 6A of the 1956 Act, SHOULD INCORPORATE ALL THE RECOMMENDATIONS AND DIRECTIONS ISSUED BY THE TRIBUNAL (extracted in paragraph 24 above). That could be achieved by concluding “the award of the Tribunal is confirmed as modified by this Court”. The Tribunal gave its award like a decree of a civil court. That is not so found in the judgment of the Court. The words “subject to” and also the words “and not inconsistent with anything decided herein”, in paragraph 404 (XX), are not only unnecessary but also not definite, but are capable of giving scope for inventing reasons for creating imaginary doubts. . The Hon’ble Supreme Court should have made its intention more explicitly. The vexed, Cauvery Water Dispute, sustained for decades together, thanks to the attitude of some politicians who failed to take decisions as Statesmen should find finality at least now before the Supreme Court.
[ Dr.Justice A.K.Rajan]
9th April 2018
Chennai