Karnataka is defying the Supreme Court’s order by not releasing the required 3,000 cusecs of water from the Cauvery to Tamil Nadu. It has, in a sense, already begun that process after the all-party meeting, boycotted by the BJP, by deferring release of the water from 21 September. Why is Karnataka initiating a confrontation between the legislature and the judiciary? Firstpost asked BV Acharya, senior advocate, as to what are the issues relating to the Supreme Court order that has led to a situation fast deteriorating into a crisis.
Acharya was also the special public prosecutor in the Supreme Court appointed trial of Tamil Nadu Chief Minister Jayalalithaa Jayaram in the disproportionate assets case. He speaks to Imran Qureshi in his capacity as a senior advocate, former advocate general and a former member of the Law Commission of India.
A number of questions have been raised about the latest verdict of the Supreme Court in Karnataka. What, in your opinion, are the inconsistencies in the order?
First and foremost when the application of the Tamil Nadu government is for the release of water for the present, the Supreme Court went on passing orders on 5, 12 and 19 September. The most damaging part of the latest order that it is illegal, unwarranted and uncalled for, is the direction that the Centre shall appoint the Cauvery Management Board (CMB) within four weeks from today and then saying produce gazette copy of the notification and thereafter we will go on giving directions. This part of the order by the two-judge bench is without jurisdiction.
In the first place, there was no application from anybody nor was there any argument advanced by anyone with regard to the CMB. Suddenly, the order is passed totally ignoring the fact that Tamil Nadu had last year filed an interlocutory application (IA-7) praying for the Central government to constitute the CMB with a three-judge bench presided over by Justice RM Lodha. The bench had directed that this IA shall also be heard along with the main SLP (special leave petition) which is now posted for hearing on 18 October. When this is the position, a two-judge bench has no right to overrule a three-judge bench or to ignore it.
Therefore, this sort of an order without anybody asking for it, without anyone advancing an argument for it or without giving Karnataka an opportunity to point out that it cannot be done because there is an earlier decision of the court, baffles anybody as to why the two-judge bench should go to that extent.
Just as a clarification, this bench which is going to hear the main SLPs is a three-judge bench?
Certainly. There is a specific direction that the main SLPs shall be heard by a three-judge bench. So, how a two-judge bench can arrogate to itself the power that a three-judge bench alone has without anyone even asking for it is a surprise. Therefore, to do justice the bench should recall its order.
I believe that Karnataka should immediately file an IA before the two-judge bench requesting it to recall its order because it was passed without anyone asking for it and passed without knowledge that such an order existed. Certainly, they were unaware of it or they wouldn’t have passed it.
What are the options before the aggrieved party when the court passes orders which cannot be implemented as Karnataka is pleading, particularly when the technical panel or the supervisory committee had said that only 3,000 cusecs of water need to be released?
Let me, first, briefly explain the irregularities in the entire procedure. When Tamil Nadu filed its application for release of water, the first objection Karnataka government had raised was that for the very purpose of resolving such disputes, the Supreme Court had constituted the supervisory committee in 2013. The judges, rightly so, directed Tamil Nadu to go before the supervisory committee within three days. It’s an expert committee which has all the data and representatives of all the (riparian) states, including the Centre. Once having asked Tamil Nadu to go before the committee, it is highly improper on the part of the Supreme Court to give an interim order to Karnataka to release 15,000 cusecs of water without having any basis and merely on the basis of arguments. Karnataka sought modification of the order as legally permissible but as if they were favouring the state, they reduced 15,000 cusecs to 12,000 cusecs but extended the number of days the water should be released.
The result is that for having approached the Supreme Court, Karnataka got a worse order. The second and third mistake they have done is that when the supervisory committee considered everything and stated in its order that 3,000 cusecs should be reduced, the court said release 6,000 cusecs. In the entire order, there is not even a sentence as to why they are increasing the quantum from 3,000 cusecs to 6,000 cusecs. It is also conceded by both sides that Tamil Nadu has a storage of 50 TMC feet of water at Mettur for irrigation. This water is not for immediate release. Whereas in the case of Karnataka, it has 22 or 26 TMC feet of water preserved for drinking water needs of the state that too for a short time. When this is the situation, this order is highly inequitable. It is accepted that drinking water is the most important thing. Supposing I have collected one bucket of water for drinking water purposes for the next one week. Can you say that your neighbour needs water for his coconut tree, so give it? Is it equitable?
In the wake of the decision of Karnataka to defer release of water, do you think the state is committing contempt of the apex court?
No. For various reasons, it does not amount to contempt. In the first place, the Supreme Court had no jurisdiction at all under Article 262 to pass such orders in relation to a water dispute. Secondly, when the Supreme Court directed the supervisory committee to deal with the situation and also directed Tamil Nadu to go there. It is a void order. It cannot say water collected for drinking water purposes be supplied to fulfill irrigation needs of the neighbouring state. It is a void order without jurisdiction. Apart from all that, it's an order almost incapable of implementation in a sense that the state government cannot say that it does not matter if our people die for want of drinking water but we will supply water to the next state for irrigation. It will not amount to willful disobedience or an order and therefore it will not be contempt.
The latest move to seek the seal of approval from the Karnataka legislature is bound to lead to a confrontation. What is your opinion on this aspect?
Supposing a resolution is passed not to release water, there will be a clear conflict between the legislature and the judiciary. The resolution will put the state government in a fix because both are constitutional bodies which have given contradictory instructions. Whoever it follows, it will be disobeying one of them. Therefore, the state government can keep quiet and say I will not be able to decide, so I have not committed contempt. Yes, it does lead to confrontation.
What is the choice the state government when it is asked to implement an order that is void or unimplementable?
In the high court, it is possible to appeal to a division bench or even go to the Supreme Court. But, in the Supreme Court, there is no such provision. From a two-judge to a three-judge bench it all depends on the reference and the prerogative of the Chief Justice of India. I can only request this bench to refer it to a three-judge bench and they can refuse. They have that right.