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Cauvery water dispute case (1992)

July 20, 2024

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This article is written by Gauri Gupta. The article aims to provide a detailed analysis of the landmark judgement of the Supreme Court in the case of the Cauvery Water Disputes Tribunal, re (1992). The article focuses on one of the major inter-state water disputes in India and draws a timeline from the history of the conflict till the judgement of the Supreme Court of India.

Introduction

Since ancient times, river water has been a contentious issue among the different States of India. Every State in the sub-continent endeavours to use as much water as there is in its terrain, leading to unjust and ineffective allocation among the neighbouring States. Despite following the directives of the Central Government and the Supreme Court to collaborate on building multipurpose projects for the efficient use of water resources, the progress has been slow and delayed due to the inter-state conflicts between the State Governments. States have collaborated on building multipurpose projects.

The Constitutional challenge lies in the fact that rivers flowing across State boundaries cannot be claimed by any single State, thus complicating the resolution of water disputes. Some of the most significant and largest inter-state water conflicts in India include the disputes regarding the water of Krishna-Godavari, Narmada, Sutlej-Yamuna Linking Canal and the Cauvery River dispute.

Inter-state water disputes hold a peculiar position under the Constitution of India, as they do not fall within the jurisdiction of any particular Court. In order to address this issue and the growing Inter-State water conflicts, tribunals were established under Section 3 of the Inter-State Water Disputes Act, 1956 (hereinafter referred to as the Act)The object behind the same was to ensure the adjudication of the Inter-State water disputes while enabling the Central Government to oversee and manage these conflicts directly and efficiently.

The Cauvery River water dispute between the States of Karnataka and Tamil Nadu dates back to the 19th century. The erstwhile States of Mysore and Madras signed two agreements to regulate the use and development of Cauvery water in 1892 and 1924. As per the agreement, 75% of the Cauvery water was to be used by Tamil Nadu and Puducherry, 23% by Karnataka and the remaining 2% by Kerala.

During the pre-independence era, this water dispute between the cities of Mysore and Madras was settled through an arbitration agreement on the advice of the Britishers. However, the division of the water resources became a major cause of conflict between the States of Mysore and Madras after these States were reorganised in 1956. Following this, the State of Tamil Nadu opposed the construction of dams on the Cauvery River by Karnataka, however, the State went ahead and built the dams. This initiated the Cauvery water dispute.

In order to resolve these disputes, the Parliament under Article 262 of the Constitution of India enacted the Inter-State River Water Dispute Act, 1956 to regulate and control the distribution of Inter-State river water. As per this Act, the water dispute tribunal will be constituted to adjudicate disputes pertaining to the use of water at the request of the State Government.

Details of the case

Case name

Cauvery Water Disputes Tribunal, re

Case No.

Criminal Appeal No. 1774 of 2010

Judgement date

November 22, 1991

Name of the Court

The Supreme Court of India

Provisions and Statutes Involved

Section 3 of the Inter-State Water Disputes Act, 1956
Section 4 of the Inter-State Water Disputes Act, 1956
Section 5 of the Inter-State Water Disputes Act, 1956
Section 6 of the Inter-State Water Disputes Act, 1956
Article 14 of the Constitution of India
Article 21 of the Constitution of India
Article 32 of the Constitution of India
Article 136 of the Constitution of India
Article 245(1) of the Constitution of India
Article 262 of the Constitution of India
Entry 17 of the States List and Entry 56 of the Union List

Background of Cauvery water dispute case

Cauvery is the largest river in South India with its basin area and tributaries having a substantial spread over the territories of the States of Karnataka and Tamil Nadu, with the former being the upper riparian State and the latter being the lower riparian State. With a total length of 802 kms, the river travels about 381 kms in the Southern Easterly direction before reaching the borders of the States of Karnataka and Tamil Nadu. Before joining the Bay of Bengal, it transverses a distance of about 357 kms and flows on the boundary of the two States for about 64 kms.

The Presidency of Madras and the State of Mysore entered into an agreement in 1892 following which the States of Karnataka and Tamil Nadu entered into an agreement in 1924 for sharing the river water. The agreement expired in 1974 following which there were negotiations between the two States regarding the extent of utilising the river water. These negotiations resulted in the establishment of a Fact Finding Committee in June 1972 to ascertain the facts and understand the availability of utilisation of the water resource and the nature of the areas in both the States especially the area within the river basin.

The Committee submitted its reports in December 1972 and August 1973. Following this, A Central Team was set up to examine the question of assessing the savings of the water resources in the existing and planned projects of the three States in the basin of the Cauvery River. The Team was headed by Shri CC. Paten and the Addl. Secretary to the Government of India, Ministry of Irrigation. The Committee recommended improving and modernising the irrigation system by strengthening the works and lining of channels, integrating operations of the reservoirs within the basin of the Cauvery River, scientifically assessing the water requirement in the command area and further, by monitoring the releases from the reservoirs.

These negotiations resulted in the “1976 Understanding” which envisaged the apportionment of the surplus water in the ratio of 30:53:17 amongst the States of Tamil Nadu, Karnataka, and Kerala respectively. Furthermore, the Study Team suggested that in case of savings, the apportionment should be in the ratio of 87 TMC to Karnataka, 4 TMC to Tamil Nadu and 34 TMC to Kerala.

Although the Inter-State meetings were conducted on a regular basis, they failed to be of any use. As a result, the State of Tamil Nadu lodged a Letter of Request under Section 3 of the Act in June 1986. As per the provision, the Central Government was under a mandate to constitute a Tribunal for efficient adjudication of the water dispute. In the letter, the State of Tamil Nadu made a grievance against the construction works in Karnataka and made a request for appropriating the water upstream to prejudice the interests down-stream in the State. Furthermore, it sought to implement the agreements of 1892 and 1924 which had expired.

The Central Government at the hearing of the Writ Petition filed by the Tamil Nadu Ryots Association left the matter to the Court. The judgement was rendered on May 4, 1990, after thorough consideration of the negotiations between the States and the length of amount that had passed. The Court observed that the negotiations had failed and ordered the Central Government to constitute a Tribunal under Section 4 of the Act. Following the directions of the Court, the Central Government constituted the Cauvery Water Disputes Tribunal on June 2, 1990 and referred the dispute emerging from the State of Tamil Nadu along with their Letter of Request to the Tribunal.

The Cauvery Water Disputes Tribunal (“Tribunal’) held its first sitting on July 20, 1990 at which the State of Tamil Nadu submitted its letter before the Tribunal seeking interim reliefs, following which the Tribunal ordered the State to submit an application. As per the directions of the Tribunal, two applications were submitted for interim reliefs by the Union Territory of Pondicherry and the State of Tamil Nadu.

Pondicherry in its application sought a direction from the Tribunal ordering both the States of Tamil Nadu and Karnataka to release water from Cauvery River as agreed upon during the period of September to March.

The Tribunal considered these applications along with the procedure governing the trial of the main dispute. It directed the disputing States to file their pleadings by way of statement of cases and required the States of Kerala and Karnataka to submit their replies to the applications for interim relief.

All the disputing States submitted their first round of pleadings and statements of the cases and the States of Karnataka and Kerala filed their replies to the applications for interim relief by the end of the year.

In 1991, the Tribunal passed an interim order which states that Karnataka will provide a fixed proportion of water from the Cauvery River to Tamil Nadu. Furthermore, the Tribunal also considered how much water would be released every month, however, a final decision could not be made regarding the same. Following the direction of the Tribunal, Tamil Nadu filed a petition in the Supreme Court of India seeking the implementation of the order.

Following the intervention of the Court, the Tribunal gave its final award in 2007. The Centre notified the order of the Tribunal in 2013. The order provided that of the total available 740 TMC ft of water 419 TMC ft of water will be allocated to Tamil Nadu, 270 TMC ft of water to Karnataka, 30 TMC ft water to Kerala and 7 TMC ft water to Pondicherry.

Facts of Cauvery water dispute case

In spite of the recommendations of the Fact Finding Committee and the Study Team set up by the Central government, the negotiations between the States were not fruitful. Following this, the Tamil Nadu Ryots Association filed a petition before the Supreme Court of India under Article 32 of the Constitution of India seeking the issuance of writ of mandamus to the Central Government to transfer the dispute to the Tribunal under the Act. Furthermore, it also provided for an application seeking interim relief. This writ petition filed before the Supreme Court was supported by the State of Tamil Nadu.

The petition remained pending before the Supreme Court for seven years and no application for interim relief was moved during this period.

Aggrieved by the same, the State of Tamil Nadu approached the Supreme Court by way of a Special Leave Petition under Article 136 of the Constitution of India. The same was filed against the orders passed in the original application for interim relief before the Tribunal as well as the application for an urgent relief before the Supreme Court. Furthermore, the Union Territory of Pondicherry filed a special leave petition against the order passed by the Tribunal in its application for interim relief. These petitions were combined and converted into Civil Appeals.

Furthermore, the Governor of Karnataka issued an ordinance called the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 which provided for the protection and preservation of irrigation in irrigable areas of the Cauvery River basin in Karnataka. The ordinance empowered the State to take decisions regarding the quantum of water that will be appropriate to the State of Tamil Nadu.

Issues raised

The following issues were raised by way of a Special Leave Petition under Article 136 of the Constitution of India before the Supreme Court of India:

Whether the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 constitutional in nature?
Whether the order of the Tribunal falls within the purview of Section 5(2) of the Act?
Whether the Tribunal was empowered to grant interim reliefs to the disputing parties?

Arguments of the parties

Petitioners

The arguments presented by the petitioners are summarised below:

The State of Tamil Nadu contended that the scheme of the Act does not envisage the making of an interim order by the Tribunal. Section 5 of the Act stipulates that after a Tribunal has been constituted under Section 4, the Union Government shall refer the dispute pertaining to water and any matter connected with the same to the Tribunal. When such a matter is referred to the Tribunal, the Tribunal is under a mandate to investigate the matters referred to it and forward a report stating its findings and providing a decision on all the matters that were referred to it.
Furthermore, if the Central Government or any State Government is of the opinion that anything provided in the report requires an explanation upon any matter referred to the Tribunal, such Government may within a period of three months from the decision refer the matter for consideration once again. Once the same has been done, the Tribunal may forward another report providing explanation as to the matter which will be deemed to be modified.
The petitioners further argued that Section 6 of the Act enjoins the Central Government to publish the decision of the Tribunal in the official gazette which is then considered to be final and binding on the disputing parties and shall be effective immediately.
The State of Karnataka contended that the scheme of the Act provides that only one final report shall be made after full investigations wherein the findings of the Tribunal will be put forth on the matters which are referred to it by the Union Government for adjudication.
They further explained that the report is considered to be final when the facts are based on investigation and are not tentative and prima facie based on cursory investigation.
Furthermore, the Government of Karnataka contended that the order of the Tribunal cannot be considered to be a “decision” or “report” under Section 5(2) of the Act since the same was not in accordance with the investigation as provided for under the Act. Therefore, the report cannot be considered to be final and even if it is published in the Official Gazette, it cannot be binding on the parties to the dispute. It was also contended that since there was no investigation, findings on facts, report or decision, the Union Government is not under an obligation to publish the interim order of the Tribunal.
The State of Tamil Nadu further contended that the Karnataka Ordinance which was later enacted is ultra vires the Constitution of India. The rationale provided for the same was that the real object and purpose of the legislation was to nullify the order of the Tribunal and unilaterally take decisions regarding the quantum of water appropriated from Cauvery River to other states.
They also argued that such matters can be adjudicated by the Tribunals established by the Central Government under the Act, and the State Governments have no power to legislate on such matters. Thus, the object of the legislation was not bona fide and the same cannot be allowed since it overrules the judicial order passed by the Tribunal appointed by the Union Government for specific purposes.
In other words, the State of Tamil Nadu contended that the Ordinance is ultra vires the Constitution as it seeks to override the law enacted by the Parliament in accordance with its powers under Article 262 of the Constitution of India. Furthermore, the legislation which purports to be under Entry 17 of List II of the Constitution has extra-territorial operation and violates the rights of the people of Tamil Nadu to use the water of Cauvery River.
Moreover, the legislation is violative of Articles 14 and 21 of the Constitution of India as the action of the Government of Karnataka is arbitrary and disregards the life of the inhabitants who survive on Cauvery River for water.
The Union Territory of Pondicherry contended that the Ordinance was unconstitutional and a piece of colourable legislation since the State of Karnataka was not empowered to enact a law on the dispute pertaining to Cauvery River water once the Central Government constituted a Tribunal for the same. The legislation is violative of Article 21 of the Constitution of India as it reduces the supply of water to Tamil Nadu and Pondicherry, thus, depriving them of a vital resource for survival.

Respondent

Six intervention applications were filed by different persons and authorities from the State of Karnataka including the Advocate General of the State in support of the case of Karnataka raising contentions which were similar to those raised by the State itself.

The Respondents contended that the object of the provisions of the Ordinance is obvious as to the Tribunal has no power or jurisdiction to pass any interim order or grant an interim relief to override the said decision of the Tribunal and its implementation. Therefore, the Act has defied and nullified the effect of any interim order of the Tribunal appointed under the law.
The same was not disputed by the State of Karnataka. The other effect of the Act is the right to appropriate as much water from Cauvery River and its tributaries as deemed necessary by the State of Karnataka.
Furthermore, it was contended that it cannot be disputed that the Inter-State Water Disputes Act, 1956 is not legislation under Entry 56 of List I of the Constitution of India. The rationale behind the same is that the Entry provides for the development and regulation of inter-state rivers and river valleys. It does not relate to the disputes regarding the riparian States. Furthermore, none of the Entries in either of the Lists provide for adjudicating disputes pertaining to inter-State river waters.
The Advocate General contended that Entry 97 of the Union List deals with the topic of use, distribution and control of waters of an inter-state river. Article 262 does not include within its ambit the use, distribution and control of the waters of such rivers.
Furthermore, Shri Venugopal had the same contention as that of the State of Karnataka regarding the scope of Entry 56 of the Constitution. He contended that although the waters of an Inter-State river pass through the territories of the riparian States, it cannot be said to be located in any one specific state since they are in a state of flow.
As a result, no particular state can claim the exclusive ownership of such waters and deprive the flow of other States. In other words, no particular State can legislate for the use of river water since the power of legislation does not extend beyond its territories.

Overview of the laws enacted by the Government for resolving water disputes

Inter-State River Water Disputes Act, 1956

The Act was enacted by the Parliament to comply with Article 262 of the Constitution of India which provides for settling disputes pertaining to water arising from administration, ownership, and allocation of an Inter-State river and river valley. The Act elaborates on the ingredients of a water dispute and provides the procedure for evolving the same.

As per the Act, if the State Government is of the opinion or has reasons to believe that there is or will be a dispute relating to water, it can request the Central Government under Section 3 of the Act to refer the dispute to a Tribunal. If the Central Government is convinced that the dispute cannot be resolved by negotiations, it constitutes a Tribunal for adjudication of such disputes under Section 4 of the Act.

After hearing the case, the Tribunal submits its decision in a report to the Central Government and the Government publishes it in the Official Gazette. After publication, it becomes binding on the disputing parties.

It is crucial to note that such disputes cannot be heard by the Supreme Court or any other Court. Their jurisdiction is barred by Section 11 of the Act.

However, experts are of the opinion that the Act lacks principles and guidelines which are crucial for ensuring uniformity in resolving such disputes by the Tribunal.

River Board Act, 1956

The River Board Act,1956 was enacted to ensure that the Central Government looks into the development of transactional rivers and river valleys by establishing river boards for the regulation and development of inter-state rivers and river valleys. The Board established under the Act primarily has two responsibilities: a) to oversee the correct and optimal use of the resources of the inter-state river water, and b) to monitor irrigation, supply of water, and hydroelectricity power generation programmes. Furthermore, the Centre is empowered to constitute a council at the request of the concerned authorities to look into the same.

It is pertinent to note that the role of the Board is advisory in nature and the recommendations rendered by it are not binding in any way.

Laws involved in Cauvery water dispute case (1992)

The Inter-States Water Disputes Act, 1956

Section 3 of Inter-States Water Disputes Act

This provision provides for the power of the State Government to refer the matter pertaining to water disputes to the Central Government for the establishment of a Tribunal for the adjudication of such disputes.

Section 3 of the Act provides that if a particular State Government believes that there is a dispute or a potential for a dispute in the near future regarding the use of water from a river flowing within the shared boundaries of the States or there is a negative impact on the people within its territory due to such disputes for the following reasons:

a) the other State has carried out or plans to carry out an executive or legislative action,

b) the other State or its authorities fail to exercise their powers regarding the use, distribution or control of river water, or

c) the other State has failed to implement the terms of the agreement regarding the use, distribution, or control of such water; the State Government is empowered to approach the Central Government to refer such a dispute to the Tribunal established under the Act for adjudication of the dispute.

Section 4 of Inter-States Water Disputes Act

This provision stipulates the constitution of the Tribunal. When a State Government makes a request for the establishment of a Tribunal under Section 3 of the Act and the Central Government believes that the dispute cannot be resolved through negotiations between the States, there is a mandate on the Central Government to establish a Water Disputes Tribunal for adjudication of such disputes within one year of receiving such request from the State Government by issuing a notice in the Official Gazette.

The proviso to the provision provides that any dispute pertaining to water or any matter related to it which was settled by the Tribunal before the commencement of the Inter-State Water Disputes (Amendment) Act, 2002, shall not be reopened.

Furthermore, Section 4 provides for the composition of the Tribunal which shall be as follows:
1. The Tribunal shall consist of a Chairman and two other members nominated by the Chief Justice of India from among the persons who at the time of the nomination are Judges either of the Supreme Court of India or High Courts of any State.

2. The Central Government has the discretion to appoint two or more persons as accessors to advise the Tribunal in the proceedings conducted before it in consultation with the Tribunal.

Section 5 of Inter-States Water Disputes Act

This provision provides for the adjudication of water disputes. It provides for the following:

Referring the matter to a Tribunal

When a Tribunal is constituted under Section 4 of the Act, the Central Government is under a mandate to refer the dispute or any matter connected to it to the Tribunal for adjudication. It is subject to the prohibition under Section 8 of the Act. Section 8 provides that no reference shall be made to a tribunal with respect to a dispute which has arisen in matters which are to be referred to arbitration under the River Boards Act, 1956.

Tribunal powers to investigate and a report:
The Tribunal has the power to investigate the matters referred to it by the Central Government and send a report to the Central Government within a period of three years. The report shall outline the facts and provide its decision with respect to the matter.

If the Tribunal does not arrive at a decision within a period of three years due to reasons which are unavoidable in nature, the Central Government is empowered to extend this period for two or more years.

Referring to the matter for further consideration

If the Central Government or any of the State Governments after careful consideration of the decision of the Tribunal is of the opinion that it requires an explanation or guidance that was not originally put forth by the Tribunal, the Central Government or any State Government can refer the matter to the Tribunal once again within a period of three months from the date on which the decision was originally rendered. When the matter is referred to, the Tribunal may forward the report to the Central Government within a period of one year from the date of such reference elaborating on the explanation and providing guidance to the Central Government and the State Governments. In such a case, the decision is said to be modified.

This provision provides that the Central Government has the power to extend this period of one year within which the Tribunal has to forward its report as it deems necessary.

Section 5(4) of the Act provides that in case of a difference of opinion between the members of the Tribunal, the point shall be decided in accordance with the majority opinion.

Section 6 of Inter-States Water Disputes Act

This provision provides for publishing the decision of the Tribunal. It states that the Central Government is under a mandate to publish the decision of the Tribunal in the Official Gazette. Once published, the decision shall be final and binding on the disputing parties and shall be effective from such date.

Furthermore, this provision provides that once the decision of the Tribunal is published, it shall have the same force as the order or decree of the Supreme Court of India.

Constitution of India

Article 14 of the Indian Constitution

Article 14 of the Constitution of India guarantees the fundamental right to equality to all the citizens of India. It provides for the principles of equality before the law and equal protection of the law. It prohibits discrimination on the basis of caste, creed, religion, place of birth, sex, etc.

In other words, it prohibits unequal treatment and provides that every citizen of India is equal before the eyes of the law.

The concepts of equality before the law and equal protection of the law, although used interchangeably, are distinct from each other.

The concept of equality before the law has been borrowed from the British Constitution. Equality before the law explains that no individual is above the law. In other words, it provides for the absence of privileges and subjects all individuals to the ordinary law of the land equally. The concept is considered to be negative in connotation since it restricts the States from engaging in discrimination between the citizens. On the other hand, the concept of equal protection of the law has been borrowed from the American Constitution. Equal Protection of Law provides that every individual must be treated alike and no one should be discriminated against. The concept states that individuals should be afforded equal treatment in cases of equal circumstances which implies that the government is empowered to take affirmative actions in favour of the vulnerable and weaker sections of the society.

Article 21 of the Indian Constitution

Article 21 is the heart of the Constitution of India. Considered to be the most organic and progressive provision in the Constitution, Article 21 is considered to be a living provision.

Justice P. Bhagwati in the case of Francis Coralie Mullin vs. The Administrator (1981) stated that Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Furthermore, Justice Krishna Iyer stated that the Article is the “procedural Magna Carta protection of life and liberty.”

The provision provides that no individual (whether an Indian citizen or a foreign national) within the Indian territory shall be deprived of his/ her right to life and personal liberty except according to the procedure established by the law.

It provides for two rights:

a) right to life, and

b) right to personal liberty.

It is crucial to note that the term “life” under Article 21 of the Constitution does not refer to the mere physical act of breathing. It has a wide connotation and a growing ambit and includes within its scope the right to live with dignity, the right to die with dignity, the right to livelihood, the right to safe drinking water and safe pollution free environment, the right to health, etc.

In the landmark judgement of A.P. Pollution Control Board II vs. Professor M.V. Nayudu (1999), an exemption was granted by the Government of Andhra Pradesh to polluting industries to set up their industries near two main reservoirs in Andhra Pradesh, namely the Himayat Sagar Lake and the Osman Sagar Lake. However, the same was in violation of the Environment Protection Act, 1986. The exemption was struck down by the Supreme Court and the Court further observed that the Environment Protection Act, 1986 and The Water (Prevention and Control of Pollution) Act, 1974 do not empower the States to grant exemptions to a particular industry within areas which are prohibited for setting up polluting industries.

In the case of M.C. Mehta vs. Kamal Nath (1997), the Supreme Court observed that the States are bound to regulate the supply of water and furthermore, realise the right to healthy water to ensure there are no health hazards.

Furthermore, in the case of M.C. Mehta vs. Union of India (1988), the Supreme Court of India recognised and revived the doctrine of riparian rights and observed that every riparian owner has a right to the continued flow of the waters of a natural stream in its natural condition without any obstruction, destruction or unreasonable pollution.

In its historic Pavement Dwellers Case, also known as Olga Tellis vs. Bombay Municipal Corporation (1985), the Constitution Bench of the Supreme Court held that the right to livelihood is borne out of the right to life. The Court observed that life cannot be taken away or it cannot be extinguished except according to the procedure laid down by the law in force. A crucial facet of this right is the right of an individual to livelihood which is crucial for his sustenance and survival.

Article 32 of the Indian Constitution

The provision is considered to be the heart and soul of the Constitution of India. The most crucial fundamental right enshrined under the Constitution of India, Article 32 provides for the enforcement of fundamental rights. The provision empowers individuals to approach the Supreme Court of India to enforce their fundamental rights against the States.

The Supreme Court has the power to issue directions, orders, or writs in the nature of habeas corpus, mandamus, certiorari, quo warranto and prohibition. This right cannot be suspended except according to when the Constitution provides so.

There are certain conditions under which the Supreme Court can refuse to grant this right to the citizens. These include:

Delay in filing a petition
Malicious petition
Misrepresentation or Suppression of Material Facts
Existence of an alternative remedy to the right of constitutional remedies

Article 136 of the Indian Constitution

The provision deals with Special Leave Petitions (SLP) which is a legal remedy available before the Supreme Court of India and allows individuals to seek permission from the Apex Court to appeal against a judgement, decree, or order of a lower court or tribunal of the country. It is an extraordinary power vested with the Supreme Court and is not limited to a particular matter. It depends on the discretion of the Court whether it wants to consider cases involving the questions of fact or law or both.

The time period within which an SLP must be filed is 90 days from the date of the judgement or order of the Court or Tribunal against whose decision an appeal is filed before the Court. However, the Supreme Court is empowered to condone the delay in filing the SLP if it believes that the same is under exceptional circumstances.

It is crucial to note that an SLP cannot be claimed as a matter of right. Furthermore, it excludes judgements, determinations, sentences, or orders that are passed by any Court or Tribunal under the laws which are related to the Armed Forces.

Article 245(1) of the Indian Constitution

The provision deals with the extent to which the laws can be enacted by the Parliament and the State Legislatures. It provides that the Parliament is empowered to pass laws which are applicable to the territory of India or a part of it. Similarly, State Legislatures are empowered to enact laws that are applicable to the entire state or parts of it.

The provision is not absolute in nature and is subject to the Constitution of India. In other words, the Parliament or the State Legislature does not have the unlimited power to enact laws and is subject to the Constitution of India. Any law ultra vires to the Constitution will be struck down by the Court.

Article 262 of the Indian Constitution

The provision deals with the adjudication of disputes relating to inter-state rivers and river valleys. It provides that the Parliament is empowered to provide by law for the adjudication of disputes or complaints with respect to the use, distribution, and control of water in such river valleys or inter-state rivers. Furthermore, it states that irrespective of the provisions of the Constitution of India, the Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction over such matters.

If the Parliament has not enacted any legislation under this provision, it may refer the same to either the Supreme Court or the concerned High Court. However, it is crucial to note that the same depends on the discretion of the Parliament.

Entry 17 of the States List and Entry 56 of the Union List

Entry 56 of the Union List provides that only the Parliament is empowered to make laws on the development and regulation of interstate rivers and river valleys in the interest of the public. Furthermore, Entry 17 of the States List provides that water and all the matters related to it shall be subject to the provisions of Entry 56 of the Union List, which empowers the Parliament to legislate on the same.

In other words, water falls within the ambit of the State List which implies that only the State has the power to legislate on the same. However, this authority is limited by Entry 56 of the Union List. Article 262 of the Constitution of India clearly provides that the Parliament is empowered to legislate on the subjects provided for under Entry 57. The rationale behind the same is that rivers flow from different territories and no state has the sole right over the water resource. States must not enact discriminatory legislation or undertake arbitrary practices to gain the advantage over the resource. As a result, it was necessary to empower the Centre to maintain equality and ensure that the necessities of any State are not discriminated against.

Judgement in Cauvery water dispute case

The Supreme Court observed that it firmly believes that the Ordinance was enacted to affect the flow of river water from Cauvery into the territories of Pondicherry and Tamil Nadu which are low riparian States. With respect to the same, the Apex Court observed that the Ordinance has an extra-territorial jurisdiction and is beyond the legislative jurisdiction of the State, as a result, it is violative of Article 245(1) of the Constitution of India.

Furthermore, the Court observed that if the Tribunal does not have the power to grant an interim relief, the Union Government would be incompetent to make references pertaining to these disputes to the Tribunal. This in turn implies that the Tribunal would have no jurisdiction over such matters even if reference to those disputes were made to it. Moreover, if the Tribunal does not have the power to grant interim relief to the disputing parties, then the order made by the Tribunal would constitute a report within the purview of Section 5(2) of the Act and thus, would not be published by the Union Government under Section 6 of the Act. This implies that the order passed by the Tribunal would not be effective in such a case. The Court while elaborating as explained observed that the Tribunal had the jurisdiction to consider the request made by the Union Government for considering the claims made for granting interim relief by the State of Tamil Nadu. As a result, the Union Government is empowered to refer such disputes to the Tribunal for adjudication.

Section 5 of the Act empowers the Central Government to refer disputes pertaining to water and any other connected or relevant matters to the Tribunal established under the Act. This explains that a request for interim relief even if it is in the nature of mandatory direction or prohibitory order would be a matter which is connected to the main dispute itself. As a result, the request made by the State of Tamil Nadu pertaining to the grant of interim relief is a part of such reference. Therefore, the decision of the Tribunal will be within the purview of Section 5(2) of the Act and therefore, be published under Section 6 of the Act in order to be effective in nature.

In conclusion, the Supreme Court of India observed that the Ordinance passed by the Governor of Karnataka in 1991 was beyond the legislative scope of the State of Karnataka and, thus, violative of the Constitution of India. Furthermore, the order of the Tribunal was a decision within the purview of Section 5(2) of the Act and is thus required to be published by the Central Government as per Section 6 of the Act in the Official Gazette. The Supreme Court observed that the Tribunal established under the Act was competent to grant interim reliefs to the disputing parties when a dispute has been referred to it by the Central Government.

Historic judgements on water disputes

T.N. Cauvery Neerppasana Vilai Porulgal Vivasayigal Nala Urimai Padhugappu Sangam vs. Union of India (1990)

The Supreme Court in this case observed that the issue regarding the distribution of water from the Cauvery River must be looked into by the Central Government directly. The rationale behind the same was that there was a bar on the jurisdiction of the Supreme Court for hearing disputes pertaining to river water. As a result, the Central Government constituted a tribunal to look into the dispute wherein the State of Tamil Nadu filed an interlocutory application for the distribution of water. However, the application was dismissed since the State had no right to file the same.

State of Tamil Nadu vs. State of Karnataka (1991)

The decision of the Supreme Court in the case of T.N. Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam vs. Union of India (1990) was not accepted by the State of Tamil Nadu. As a result, in this case, they approached the Supreme Court under Article 136 of the Constitution of India by way of a Special Leave Petition and contended that tribunals should accept interlocutory applications. The Supreme Court stated that the Tribunals are empowered to decide on interlocutory applications since they are a competent authority within Article 262 of the Constitution of India with respect to matters involving water disputes. Based on its power, the Tribunal ordered the State of Karnataka to release water. However, it refused to do so and enacted an ordinance to overrule the order of the Tribunal which was later challenged in the case of Cauvery River Water Tribunal, re (1992).

State of Andhra Pradesh vs. State of Karnataka (2000)

In this case, the Supreme Court once again reiterated that it is empowered to look into the validity of the award rendered by the Tribunal and has the authority to interpret the decisions of the Tribunal. Furthermore, it clarified that what it is not empowered to do is look into matters pertaining to the adjudication of water disputes. In other words, there is a bar on its jurisdiction over disputes pertaining to water. Similarly, the Supreme Court expressed similar views and reiterated its position in this regard in the case of State of Haryana vs. State of Punjab (2004) wherein it looked into the validity of the award of the Tribunal in a matter concerning the dispute over the canal built over rivers Yamuna and Sutlej.

Gandhi Sahitya Singh vs. Union of India (2003)

In this case, the awards granted by the Cauvery Water Disputes Tribunal constituted under Section 4 of the Act consisting of the Chairman and two other members appointed by the Chief Justice of India were challenged before the Supreme Court of India. The Apex Court clarified that no individual is empowered to challenge the validity of the award granted by the Tribunals and furthermore, such a power vests only with the State Government under Article 131 of the Constitution of India.

Atma Linga Reddy vs. Union of India (2008)

This is a crucial decision regarding the jurisdiction of the Supreme Court in matters pertaining to disputes regarding water and related matters. The Court excluded the jurisdiction of Article 32 and Article 131 from disputes related to water and stated that such disputes would be dealt with by the Tribunals only.

State of Tamil Nadu vs. State of Kerala (2014)

The case is crucial to understand the scenario wherein the Supreme Court has jurisdiction over disputes pertaining to water. The Apex Court explained that in cases where the issue does not only revolve around water disputes but involves other disputes as well, the Supreme Court is empowered to decide all the disputes including the dispute related to sharing the water resource.

State of Karnataka vs. State of Tamil Nadu (2017)

The Supreme Court of India, in this case, elaborated on the scope of its jurisdiction and observed that irrespective of the bar imposed by Article 262(2) of the Constitution of India read with Section 11 of the Act, the Supreme Court is empowered to exercise its authority to carry out the award rendered by the Tribunal. The rationale provided for the same was that the Tribunal is a statutory authority constituted under the Act enacted by the Parliament of India. As a result, the Supreme Court has jurisdiction to look into the parameters, scope, authority and jurisdiction of the Tribunal.

State of Haryana vs. State of Punjab

The State of Punjab and Haryana had entered into an agreement for digging the link canal built on the Sutlej-Yamuna River under the Ravi Beas project. The State of Punjab did not carry out its obligation to dig the portion of the canal within its territories. Following this, the State of Haryana filed a suit under Article 131 of the Constitution of India and prayed for a mandatory injunction for Punjab to fulfil its obligations.

The Supreme Court observed that the construction of the canal was not a water dispute within the purview of the Inter-State River Water Disputes Act, 1956. The rationale provided for the same was that the construction of the canal had no relation to sharing the water resources between the disputing states.

Furthermore, the Court observed that the State Governments had entered into an agreement following an intervention by the Prime Minister of India in 1981. As a result, they are not permitted to take a contradictory stand on the same. The Supreme Court directed the State of Punjab to continue the digging of the canal on the Sutlej-Yamuna rivers and to ensure that the canal was functional within a year. In case the State of Punjab fails to fulfil its obligations within a year, it shall be the duty of the Central Government to ensure that the canal is functional through its agencies.

International landmark judgements on inter-state water disputes

Several courts across the globe have rendered landmark judgements in various cases suggesting crucial points to be taken into consideration about Inter-State Water Disputes. India has been facing these disputes since time immemorial and analysing these judgements can have a positive impact in resolving such disputes and finding efficient solutions to the problem.

State of Kansas vs. State of Colorado (1907)

In this landmark case, the Supreme Court of the United States provided for the cardinal rule which provides that what every State has with the other is the equality of rights. This implies that the States stand on an equal pedestal with the other States and no State is in a position to impose its laws and views on the others. The Court used this relationship to explain that every state has the right to the water which flows from its territories. It clarified that the same is a right publici juris, and nobody has the right to divert or obstruct it. This implies that there is a right to reasonably use the same.

In other words, the judgement rendered by the Supreme Court of the United States explained that the right to flowing water vests with the State whose land it runs on and no one has the right to divert or obstruct this flow of water. This does not imply that the proprietor has an unreasonable right to use the water flowing from its territory.

The same is relevant for this case as the Riparian States were concerned more about their interests rather than the interests of the other States as is evident from this case wherein the State of Karnataka started building dams to store the water within its boundaries without considering the needs of the other States. However, every State has an equal right to the water of the Cauvery River flowing within its boundaries as has been explained by the Supreme Court of the United States.

State of New Jersey vs. State of New York (1931)

In this landmark case, the Supreme Court of the US observed that removing water to a different shed must be allowed at certain times unless the States are deprived of the use of water on formal grounds. In the context of this case, the diversion of water to different sheds must be taken into consideration since India is an economy deriving its major livelihood from the agricultural sector. As a result, water should also be diverted to areas where there is the scarcity of water and should not only be concentrated in the riparian states.

State of Connecticut vs. Commonwealth of Massachusetts (1931)

In this case, the Supreme Court of the US observed that the equality of the right to settle disputes with respect to the allocation of water does not connote the division of water but implies that the principle of equality means that all States are on an equal pedestal before the Constitution.

Kansas vs. Colorado (1907)

In this case, the Supreme Court of the US observed that the right to flowing water is a right publici juris which implies that it is common and equal to all those whose land it flows through. No authority, entity or individual is empowered to obstruct or divert it. Furthermore, everyone is entitled to the reasonable use of water which is flowing through their land.

Shortcomings in the decision of the tribunal

The Tribunal gave its decision on February 5th, 2007 and allocated the water from the Cauvery River as follows:

Tamil Nadu: 419 TMC

Karnataka: 270 TMC

Kerala: 30 TMC

Pondicherry: 7 TMC

Furthermore, the award reserved 10 TMC for environmental purposes and 4 TMC for inevitable outlets into the sea.

This implies that the final award provided that Karnataka will release 192 TMC to Tamil Nadu from its Billigundlu site. This includes 10 TMC allocated for environmental purposes. The award granted the State of Tamil Nadu an additional 25 TMC through rainfall in the distance which is intervening between Billigundlu and Mettur. This implies that the total amount of water flowing from Karnataka’s territory into the Mettur dam in the State of Tamil Nadu as per the award of the Tribunal was 217 TMC and the remaining share for the State will be from the rainfall and the rivers that flow within its territories. Furthermore, the award provided that the State of Tamil Nadu will release 7 TMC to Pondicherry from its share of 192 TMC that comes from Karnataka.

The decision of the Tribunal had severe shortcomings. These included extreme delays in the resolution of the disputes along with protracted proceedings. Furthermore, there was no period within which the Tribunal had to give its decision and submit the report. Another significant disadvantage is regarding the finality of the award. As per the Act, the award of the Tribunal is final and beyond the jurisdiction of the Courts. However, the States can approach the Supreme Court under Article 136 of the Constitution of India which provides for Special Leave Petitions. Another backdraw of the decision of the Tribunal is regarding the composition of the Tribunal which consists of only judicial officials instead of individuals who are experts in such matters. Furthermore, the growing connection between disputes pertaining to water and politics has transformed such disputes into vote bank policies.

How is the water being shared

The final decision of the Cauvery Water Disputes Tribunal as explained in its 2007 award along with the judgement of the Supreme Court of India in February 2018 elaborate on the system of sharing the river water. Furthermore, it provides for the institutional mechanisms to ensure the implementation of these decisions. The Supreme Court provides that 740 thousand million cubic feet (tmc ft) of water should be available in the Cauvery basin in a normal year. Following this, the Court made the following allocations:

Karnataka: 284.75 TMC ft.
Tamil Nadu: 404.25 TMC ft.
Kerala: 30 TMC ft.
Puducherry: 7 TMC ft.

Furthermore, the Supreme Court provided that 10 TMC ft and 4 TMC ft are to be set apart to ensure environmental protection and inevitable escapes into the sea.

Out of the total quantity allocated to the State of Tamil Nadu, the State of Karnataka has to ensure that 177.24 TMC ft is given to Biligundulu, located on the inter-State border on a monthly basis. Out of this quantity, 123.14 TMC ft is to be given between the months of June and September, which mark the season of southwest monsoon. As a result, the Cauvery River flared up during this.

Recent developments in Cauvery water dispute case

A special bench of the Supreme Court consisting of the former Chief Justice of India, Justice Deepak Mishra in 2007 stated that Cauvery River is a national asset. He stated that Karnataka will supply 177.25 TMC of water to the State of Tamil Nadu. The rationale behind the same was an increase in the demand and need for water in the city of Bengaluru.

Furthermore, the Supreme Court recognised that the Constitution bestows an equal status on the States within the territory of India. As a result, no State is empowered to claim full rights on any part of the river that is flowing within its territory or is sharing its boundaries. The Supreme Court further upheld the principles of equitable and just distribution of the resources by refusing absolute rights over the water resources.

Following this, the Court ordered the Central Government to constitute a Cauvery Management Scheme for releasing water from the State of Karnataka to Tamil Nadu, Kerala and Puducherry. The approval for the same came on May 18, 2018.

However, the authority of the Court to render an order and the jurisdiction of the board appointed by the Central Government was challenged under the Tribunals Act. The Supreme Court concluded that its judgement and the constitution of the Board by the Central Government was in good faith and to ensure the implementation of its order.

It is pertinent to note that the decision of the Supreme Court highlights the essential features of the customary principles of international law.

Analysis of Cauvery water dispute case (1992)

The Supreme Court in the landmark decision of the Cauvery Water Disputes Tribunal, re clarified its position regarding the legislative scope of the State of Karnataka with respect to enacting the Ordinance. Furthermore, it observed that the order of the Tribunal is considered to be a legal decision within the purview of Section 5(2) of the Act and as a result, the Tribunal is empowered to grant interim reliefs to the disputing parties. The same is not only with respect to the disputes pertaining to the sharing of river water but also those relevant and connected to such matters. The dispute pertaining to the sharing of Cauvery River water between several States presents a clear picture of what should be done in case States face such disputes. Every riparian State should have equal rights on the rivers that are flowing through its territories ensuring fair and equitable distribution of water. No particular State should take into consideration its selfish interests. Furthermore, the water should be diverted into areas that are prone to droughts and areas that require more water for agricultural and other developmental purposes.

Furthermore, multiple awards have been rendered by the Tribunals in major river water disputes involving the Krishna, Narmada, and Godavari rivers. However, there is no provision under the Constitution of India to ensure the effective implementation of these awards. As a result, even though the awards have been rendered by the Tribunals, conflicts still exist due to ineffective implementation of the awards. Furthermore, it is crucial to appoint experts in the Tribunal to overcome technical difficulties relating to specialised laws.

Furthermore, the disputing parties do not have the right to appeal against the decision of the Tribunal. The decision of the Tribunal once published becomes binding on the parties. Although the Central Government or the State Governments may seek elaborate explanations on the decision which can later be modified, there are no effective remedies to seek the implementation of the award nor to appeal against its decision.

Recommendations

In view of the current case and the involving issues regarding the same, the author would like to make the following recommendations:

The Parliament of India should look into the landmark decisions regarding the water disputes of foreign countries especially the United States and Canada. Understanding their doctrines and principles, the Parliament can amend the existing laws to resolve the disputes in the context of the Indian scenario.
The Supreme Court must lay down detailed guidelines for the Central Government and the Tribunals to adjudicate matters relating to water disputes.
The Central Government should appoint a committee of experts to supervise the Tribunals in resolving disputes pertaining to water and related matters. Furthermore, the committee can ensure transparency and separation of powers.
Tribunals should understand different Alternative Dispute Resolution Mechanisms to ensure that the disputing parties can come to an amicable settlement. This is necessary to ensure that their needs are fulfilled within a stipulated time period. Furthermore, this would reduce the burden of the case on the Tribunal and ensure an efficient and speedy resolution with effective outcomes.

Conclusion

Disputes pertaining to the sharing of Interstate river water have been a major issue in India since the pre-independence period. However, these disputes still exist and have not been resolved completely. Rivers are a crucial resource in India since India is an agrarian economy. Every riparian State has its own rights over the river water flowing and passing through its territories. It is crucial for every State to consider the necessities of the other States, and since most riparian States fail to do so, it leads to conflicts regarding the sharing of river water. Experts explain that since the order of the Tribunal established by the Central Government often leads to further disputes between the disputing parties, the best way to resort to disputes pertaining to sharing river water is negotiations wherein the States can put forth their claims, requirements and necessities. Following the same, a mutual agreement can be arrived at without any party losing its best interests.

The case of Cauvery River Water Tribunal re, is an example of such a dispute. Dissatisfied with the order of the Tribunal which provided for the share of Cauvery River water for the States of Karnataka, Tamil Nadu, Kerala and the Union Territory of Pondicherry, the aggrieved State of Tamil Nadu approached the Supreme Court questioning the decision of the Tribunal. This not only delays the dispute resolution process and makes it more complex, but also causes a delay in the distribution of a crucial resource like water, thus, affecting thousands of livelihoods, and in turn, the growth and development of the economy.

Frequently Asked Questions (FAQs)

Which authority exercises jurisdiction over water disputes in India?

The Central Government constitutes a Tribunal under Section 3 of the Inter-State River Water Disputes Act, 1956 to exercise jurisdiction over disputes pertaining to water or matters relevant or connected to it. No other court or authority is empowered to look into such disputes and their jurisdiction is barred by the Constitution of India as well as the Act.

Is the Supreme Court of India empowered to look into the water disputes?

Article 262 of the Constitution of India bars the jurisdiction of the Supreme Court or any other Court in India to look into disputes pertaining to water or connected matters. Furthermore, Section 11 of the Act bars the jurisdiction of the Supreme Court with respect to the same. However, it is crucial to note that there is an exception to the same. The Supreme Court can exercise jurisdiction over matters involving water disputes if they are connected with other issues over which the Supreme Court exercises jurisdiction. In this case, all the disputes involving those relating to water will be adjudicated by the Supreme Court of India.