Preliminary questions, against the flow

This is puzzling because there is an explicit jurisdictional bar to be overcome at the outset. Article 262 of the Constitution that provides for parliamentary legislation for the adjudication of inter-state river water disputes enables Parliament to bar the jurisdiction of the courts (including the Supreme Court) in such cases. Clause (2) of Article 262 says: “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).” In accordance with that provision, Section 11 of the Inter-State Water Disputes Act 1956 says: “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.” Perhaps the bar is not absolute; perhaps it can be overcome via certain other constitutional provisions.

What are the ways in which the bar can be overcome? Among the possible routes are Articles 32, 131 and 136. Article 32 can be invoked only in relation to fundamental rights; in the present case, the dissatisfaction felt by the three states is with the fairness of the allocations of Cauvery waters made by the tribunal. It does not seem easy to invoke Article 32 in this context. 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 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”, and that does not seem to leave recourse to Article 131 open.

Article 136 is the actual route taken by the three petitioner states in this case. It provides that the Supreme Court may grant special leave to appeal from any judgment, decree, determination, sentence or order in any case or matter passed or made by any court or tribunal in the territory of India (except any court or tribunal constituted by or under any law relating to the armed forces). Superficially, that seems to bring in the ISWD tribunals, 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? No opinions are ventured here, it is for eminent counsel to argue and learned judges to decide. One is merely expressing a sense of bewilderment that they were not gone into before the petitions were admitted.

It is, of course, possible that these aspects will be examined when the petitions are taken up for hearing by a larger bench, if one is constituted. However, two questions arise. First, are these not issues to be decided prior to the admission of the petitions? Does not the very admission of the petitions constitute an implicit decision on admissibility? Having admitted them, will it be easy for the Supreme Court to dismiss them on the ground of non-admissibility? Will the SC not be inevitably led into an examination of the merits of the petitions? Will that be in order? Secondly, as the three states of Karnataka, Kerala, and Tamil Nadu have all filed petitions, can any of them raise the question of jurisdiction when the petitions are taken up? Will they not find themselves precluded from doing so? If so, who will raise this question?

Another interesting question: 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. What happens then to the provision for the bar of jurisdiction in Article 262 and the ISWD Act? Under what circumstances will it operate? The answer is clear: A bar that can be removed in every case is not a bar at all. The relevant provisions will be rendered otiose.

Finally, it appears 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?

The writer is former secretary, water resources, Government of India