By defying Supreme Court’s order on Cauvery, Karnataka has created a constitutional crisis

The fracas over the sharing of Cauvery water between Karnataka and Tamil Nadu follows a familiar script. Every time there is inadequate rainfall, the neighbouring states lock horns: Karnataka, as the upper riparian state, is loath to part with water from the river, and Tamil Nadu, as the lower riparian state, demands its share. This year too, the script was playing as expected, until Karnataka decided to defy a Supreme Court order.

It is unfortunate that the fracas recurs during every distress year, when rainfall is scanty. But what is more regrettable is that history will keep repeating itself until an acceptable water-sharing formula is arrived at by the Cauvery River Tribunal, the forum meant to work out an agreeable solution. In its final award, the Tribunal had only indicated that there has to be a pro-rata sharing of water in distress years. On the face of it, this appears reasonable. However, a closer look reveals it to be wanting: it does not take into account the complexities predicated on the unique needs of each state and the availability of other sources like groundwater, which Tamil Nadu has plenty of, but not Karnataka.

Any water-sharing formula formulated by the proposed Cauvery Management Board and approved by the Tribunal for distress years will have to account for special factors. Unless an acceptable and equitable formula is determined, this crisis will happen every distress year and ad-hoc solutions, instead of containing the problem, may exacerbate it.

Assembly resolution

To understand how things reached a head this year, let’s retrace the events of the last month.

On September 5, the Supreme Court had directed Karnataka to release 15,000 cusecs water every day to Tamil Nadu at Biligundulu for the next ten days. Some days later, when Karnataka filed a modification application, the court expressed anguish at its language and tenor, and observed this: “It is clear as noon day that the State of Karnataka, as a good gesture, had offered 0.86 TMC, that is, 10,000 cusecs of water per day and out of the said water, the State of Tamil Nadu was required to release water proportionally to the Union Territory of Puducherry.”

The prayer for keeping the September 5 order in abeyance was rejected at the hearing. However, in light of the facts and circumstances, the court told Karnataka to release 12,000 cusecs water every day till September 20. On Tuesday, as the period of that order came to an end, the court directed Karnataka to release 6,000 cusecs water a day to Tamil Nadu till September 27.

It is this last order that Karnataka has refused to follow, citing inability to spare Cauvery water.

On September 23, a special session of the Karnataka Legislative Council unanimously adopted a resolution to use the water only for “drinking water requirements of Bangalore and villages and towns in the Cauvery basin”, and not for any other purpose. A similar resolution was passed by the Karnataka Legislative Assembly on the same day.

State government’s duty

At the outset, it must be clarified that a resolution of the state assembly is not law as understood under Article 13 of the Constitution (Article 13 (3) elaborates what a law is). It cannot, therefore, take away the basis of a Supreme Court order and certainly cannot be grounds to disobey it. Even assuming that a law to that effect is passed, interfering with the order, it would be liable to be struck down since, unlike a Validation Act, it cannot take away the basis of the interim order.

The Supreme Court had made itself clear in a similar situation arising from the same water dispute. In the Cauvery Water Disputes Tribunal, Re, 1993 Supp (1) SCC 96 (2), the court had held that while “the legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.” This is not permissible.

By claiming that the Supreme Court’s order is impossible to implement, Karnataka appears to be abdicating the State’s responsibility of ensuring obedience to Supreme Court orders. Citing breakdown of law and order is also not an excuse, especially when the edifice of a democratic republic is premised on the functioning of courts and implementation of their orders.

It must be remembered that Article 144 of the Indian Constitution states that all authorities – civil and judicial – should act in aid of the Supreme Court. Indeed, Article 142 of the Indian Constitution confers the Supreme Court with powers to enforce its orders and decrees, and punish for contempt of those directives. Willful disobedience of an order and failure to fulfil the constitutional obligation to implement law and order under Article 144 – which would enable the instructions of the Supreme Court to be followed – are sufficient reasons for the court to draw upon its powers to ensure compliance.

Failure to follow court directives has serious consequences for a country as large and diverse as India, which is founded on the rule of law. This is why Entry 2A of List 1 of the Seventh Schedule to the Constitution empowers the Union to deploy any armed force of the Union or any other force subject to the control of the Union or any other unit in any State in aid of the civil power.

Options before the court

While it may be argued that the Supreme Court’s order to Karnataka to release 6,000 cusecs of water a day to Tamil Nadu till September 27 was arbitrary, unscientific, and lacking in basis, it nevertheless had a purpose. At an interim stage, the court seeks to strike a broad balance between the interests of the parties; it tries to reach an arrangement that does no irreparable damage to either side pending final decision. Besides, since Karnataka had initially conceded to release 10,000 cusecs a day, the court’s later order cannot be considered arbitrary.

The Supreme Court is now open to either take suo moto cognisance of the matter and initiate contempt proceedings either against the chief minister or the secretary of the state of Karnataka to implement its orders, or it may do so on a contempt petition filed by the state of Tamil Nadu. The court may even direct the Central government to take over the reservoirs under Article 144 of the Constitution and ensure compliance of its order.

Years ago, the Supreme Court had made observations in a similar situation in the case of State of Haryana v. State of Punjab, (2004) 12 SCC 673. Those observations bear repetition:

“The Constitution provides for an ordered polity within this country to promote integrity of the country. When disputes arise between States there are usually political underpinnings. The resolution of such a dispute in favour of one party will invariably have a political impact. Article 131 of the Constitution has therefore given this Court the exclusive jurisdiction to decide such a dispute strictly on legal considerations and in keeping with the provisions of the Constitution. To resist the execution of the decree on the ground that it would have a political fallout would result in subversion of the Constitution, an endorsement of anarchy and the disintegration of the country. Apart from rendering the provisions of Article 131 a dead letter such a stand is contrary to Article 144 which requires that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. It is not in the circumstances expected, that Governments whether at the Centre or in the States, will not comply with the decree of this Court. By refusing to comply with the decree of this Court under Article 131 not only is the offending party guilty of contempt but the very foundation of the Constitution which the people governing the State have sworn to uphold when assuming office and to which this country owes its continued existence, is shaken. It is, we repeat, the constitutional duty of those who wield power in the States to create the appropriate political climate to ensure a respect for the constitutional processes and not set such processes at naught only to gain political mileage. As was observed by the Constitution Bench in Cauvery Water Disputes Tribunal [1993 Supp (1) SCC 96 (2)] when an Ordinance was passed by a State seeking to nullify the order of this Court: (SCC pp. 142-43, para 79)

“Such an act is an invitation to lawlessness and anarchy, inasmuch as the Ordinance is a manifestation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other States, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. If the power of a State to issue such an ordinance is upheld it will lead to the breakdown of the constitutional mechanism and affect the unity and integrity of the nation.””

Therefore, while it is imperative to ensure that Supreme Court’s orders are complied with, justice also demands clarity and consistency. A water-sharing formula must be reached for distress years, taking into account various special factors in order to give some quietus to this recurring problem.