Questions over orders

The Supreme Court’s jurisdiction in adjudicating on the Cauvery water dispute is ambiguous, with the Centre questioning its constitutional basis and Karnataka defying its directions to release water.

FOR the Supreme Court bench of Justices Dipak Misra and Uday Umesh Lalit, the Centre’s stand in the ongoing Cauvery water dispute, as expressed through Attorney General (AG) Mukul Rohatgi on October 3, was a bolt from the blue. Rohatgi informed the bench that the Centre was convinced that the court could not direct the Central government to form the Cauvery Management Board (CMB), and that it was a legislative function.

Rohatgi’s stance surprised the bench because only a couple of days earlier, on September 30, he had informed the bench that he saw no difficulty in forming the board within three days as directed by the bench. The bench wanted it to be constituted immediately so that it could send a team of experts to assess the ground situation in the Cauvery basin and report back to it with data which may be required to decide how much water Karnataka could release to Tamil Nadu.

The bench was concerned because an attempt to find a negotiated settlement of the dispute between the two States, mediated by the Centre, failed to yield results.

At the meeting convened by Union Minister for Water Resources, River Development and Ganga Rejuvenation Uma Bharati in New Delhi on September 29, Karnataka Chief Minister Siddaramaiah requested the Centre to depute a team of experts to the Cauvery basin to verify the ground realities, storage positions, inflows and outflows for taking an informed decision. But Tamil Nadu’s representative did not agree to the suggestion on the grounds that it was outside the purview of the meeting.

Tamil Nadu’s position is that there is nothing to be gained from sending a team of experts to study the ground situation when the Cauvery Water Disputes Tribunal (CWDT) itself in its 2007 final order had dealt with the distress years and how the deficit in scheduled releases of water could be addressed. Suggesting a technical team to study the ground situation appears to be Karnataka’s ploy to delay the scheduled release of water and thereby deny Tamil Nadu its share, Tamil Nadu complained to the Supreme Court on October 4.

According to observers, the bench probably found that a technical team’s visit would give it an opportunity to wriggle out of the situation of having to face the continued intransigence of Karnataka in not complying with its directions to release water to Tamil Nadu.

Open defiance On September 20, the bench directed constitution of the board within four weeks after expressing its dissatisfaction with the role of the supervisory committee in resolving the dispute. The bench felt that the committee had exceeded its jurisdiction by adjudicating on the release of water to Tamil Nadu. The supervisory committee had concluded that Karnataka should release 3,000 cusecs of water a day from September 21 to 27. The Supreme Court simply doubled this figure for the same period. What irked the bench was Karnataka’s open defiance of this order citing a resolution passed on September 23 by the two Houses of the State Legislature, which asked the government not to draw water from the Cauvery except for the State’s drinking water and irrigation requirements. It directed Karnataka to release water despite the resolution or face the wrath of the law.

Karnataka continued to defy the bench’s next direction, which was to release 6,000 cusecs of water for three days from September 28 to 30. On September 30, the Supreme Court reiterated its direction to the State government to release 6,000 cusecs of water per day, this time until October 6 when the matter was first listed for hearing. The court believed that the CMB would have come into existence by then and sent its technical team to assess the ground situation in the Cauvery delta.

Karnataka continued its defiance until the evening of October 3, when the AG informed the bench about the Centre’s application seeking modification of its orders of September 20 and 30 directing it to form the CMB. At 9 p.m. on October 3, Karnataka released 12,000 cusecs of water to Tamil Nadu and promised to release the aggregate quantity of 36,000 cusecs of water by the end of October 6.

Karnataka’s decision to release water was not because of the Supreme Court’s threat to use the wrath of the law to deal with its defiance, but because of the Centre’s late reluctance to form the CMB despite its earlier assurance to the court that it would be set up within three days.

Centre’s rethink The Centre had second thoughts on the CMB after writing to Karnataka, Kerala, Tamil Nadu and Puducherry to nominate their representatives to the CMB. While Karnataka may have its own reasons for opposing the CMB, the Centre informed the Supreme Court, through the AG, that there cannot be a direction to constitute the CMB in view of the language used in the provisions contained in Sections 6 and 6-A of the Inter-State River Water Disputes (ISRWD) Act, 1956. However, Tamil Nadu, through its counsel, Shekhar Naphade, contended that the provisions of the ISRWD Act did not prohibit any tribunal or court of law from issuing a direction to constitute the board.

Section 6(1) of the Act requires the Centre to publish the decision of the Tribunal in the Official Gazette, and says that the decision shall be final and binding on the parties to the dispute and shall be given effect to by them.

Section 6(2) of the Act says that the decision of the Tribunal, after its publication in the Official Gazette by the Central government under subsection (1) shall have the same force as an order or decree of the Supreme Court.

‘Anomalous situation’

Under Section 6-A (1) of the Act, the Centre has the power to make schemes to implement the decision of the Tribunal without prejudice to the provisions of Section 6. This provision says that the Centre may, by notification in the Official Gazette, frame a scheme or schemes whereby provision may be made for all matters necessary to give effect to the decision of a Tribunal.

According to the AG, there appears to be some inconsistency between Sections 6 and 6-A. The Centre observed in its application submitted to the Supreme Court: “In view of the Tribunal’s understanding, an anomalous situation has occurred because of the interplay of Section 6(2) on the one hand and Section 6A on the other.”

The Centre pointed out to the Supreme Court that in 2013 too Tamil Nadu had sought a direction to the Centre to constitute the CMB. In response to this the Supreme Court directed on May 10, 2013, constitution of the supervisory committee. The committee was headed by the Secretary of the Union Ministry of Water Resources and the other members were the Chief Secretaries of the party States and the Union Territory of Puducherry.

Tamil Nadu filed another application in 2013 seeking the formation of the CMB, but withdrew it on August 5, 2013, following good rain that year, the AG told the court.

The AG also contended that wherever there was a legislative exercise to evolve a scheme to implement a statutory provision, the court could not issue a mandamus. Article 262 of the Constitution, read with Section 11 of the ISRWD Act, bars the jurisdiction of the Supreme Court from hearing appeals against the Tribunal’s verdict, and the present case is one such, the Centre told the apex court.

As the Tribunal has only recommended the setting up of the CMB, it is up to the Centre to decide whether to accept or reject it; the court cannot direct the Centre to do so, the AG submitted.

The AG’s other argument was that the Tribunal did not have the power to recommend the setting up of a CMB, as it was part of a legislative exercise. He cited the instances of the Bhakra-Beas Management Board, which was set up under the Punjab Reorganisation Act, while the Krishna River Management Board and Godavari River Management Board were set up under the Andhra Pradesh Reorganisation Act, 2014.

The Supreme Court bench agreed with the AG’s submission that the issue of jurisdiction of the court to deal with the Cauvery issue could be decided only by the three-judge bench before which appeals are pending against the final order of the Tribunal. The bench is to hear the appeals on October 18.

Technical team In lieu of the CMB, the Centre suggested the formation of a high-powered technical team comprising officials from the Central Water Commission and such other experts as chosen by the Secretary, Ministry of Water Resources, in consultation with the Chairman, CWC. This team, the Centre suggested, could be asked to proceed to the site to assess the ground realities in the entire Cauvery basin and prepare a report for the consideration of the court.

The Centre sought 30 days for the team to make a rapid assessment to present a realistic picture before the court. The Supreme Court, however, gave the team only 10 days to inspect and submit its report.

Meanwhile, the court directed Karnataka to release 2,000 cusecs of water every day to Tamil Nadu for the 10-day period. The court’s direction came after Karnataka revealed its willingness to release not more than 1,500 cusecs of water daily for the same period. The court enhanced the quantum even though Karnataka’s counsel, Fali S. Nariman, was critical of the manner in which the court had fixed the quantum of such releases during the earlier hearings, stating that they were without any logic.

Whatever the outcome of the case in the Supreme Court, the opposition to the CMB by Karnataka and the Centre appears to be based only on technicalities and procedural issues rather than on any substantive grounds.

Clearly, a permanent mechanism to deal with the recurrent issues in sharing the Cauvery water is the need of the hour, rather than getting the judiciary to step in, especially with Karnataka’s history of non-compliance with the Supreme Court’s directions in this regard looming large.