In re Cauvery Water Disputes Tribunal: A State Cannot Legislate Away an Order
Chapter Twenty
Syllabus topic 1, "Water"
Pages 81 to 84 of 885
In one line
Karnataka passed a law authorising itself to ignore the tribunal's order, and the President asked the Supreme Court whether it could.
In the wording a student can write in an exam: after the Cauvery Water Disputes Tribunal made its interim order of 25 June 1991 requiring Karnataka to ensure a stated release at Mettur, Karnataka promulgated the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991, which empowered it to disregard the order. The President referred questions to the Supreme Court under article 143(1), and the Court's opinion of 22 November 1991, In re Cauvery Water Disputes Tribunal, AIR 1992 SC 522, held that the Ordinance was beyond the legislative competence of the State and unconstitutional, that the interim order was a report and decision under section 5(2) which had to be published under section 6 to be effective, and that a Tribunal may grant interim relief when the Central Government refers such relief to it.
Why a Presidential reference at all
Because there was no other route. The Tribunal had made an interim order against Karnataka, and Karnataka had legislated against it. Tamil Nadu could not sue, because section 11 barred a water dispute. The Union could have used article 256 or 365, which are political weapons. Article 143(1) let the Union ask the Supreme Court a question of law without anybody suing anybody.
Article 143(1). "If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon."
Two features of article 143 matter here. The Court may report; it is not obliged to answer. And what it gives is an opinion, not a judgment, though, as the Court said in this reference, an advisory opinion is entitled to due weight and respect and is normally followed.
What the reference asked, and what was answered
The three questions referred asked whether the Karnataka Ordinance was in accordance with the Constitution; whether the Tribunal's interim order was a report and decision under section 5(2) that had to be published by the Central Government to be effective; and whether a Tribunal is competent to grant any interim relief.
The propositions the case is cited for, as the opinion itself states them, are these.
The Ordinance was unconstitutional and beyond the State's legislative competence. A State legislature cannot annul, nullify or set at naught the order of a Tribunal constituted under a law made by Parliament under article 262. To do so is to sit in judgment over the Tribunal, and it offends the rule that no man may be a judge in his own cause. The Ordinance also operated beyond the State's territory, because it affected the flow of the Cauvery into Tamil Nadu and Pondicherry, and a State's legislative power over water does not extend to the waters of an inter-State river beyond its borders.
In re Cauvery Water Disputes Tribunal: A State Cannot Legislate Away an Order
A Tribunal may grant interim relief when the Central Government refers such relief to it. Section 5(1) lets the Central Government refer any matter connected with or relevant to the water dispute, and a request for interim relief is such a matter. Whether a Tribunal may grant interim relief without such a reference did not arise, and the Court declined to answer it. That builds on State of Tamil Nadu v. State of Karnataka, 1991 Supp (1) SCC 240, which had held that Tamil Nadu's request was part of the reference while keeping that question open, and whose facts and holding are worked in the chapter on the Cauvery dispute.
And the interim order is a report and decision under section 5(2), which binds the parties once the Central Government publishes it under section 6; a State dissatisfied with it may seek explanation or guidance under section 5(3), but may not legislate it away.
Broken down: the three constitutional ideas
1. Legislative competence is not cured by a good motive. Karnataka's Ordinance recited the protection of its own irrigation. The vice was not the purpose but the effect: a State legislature purporting to override the decision of a body created under a Union law made under an express constitutional head.
2. Nobody may be a judge in his own cause. The maxim is nemo judex in causa sua, which means nobody is a judge in his own case, and it is one of the two rules of natural justice. A State that legislates to set aside an order made against it in a dispute to which it is a party is deciding its own case.
3. A power can come with the reference. The Act says nothing about interim orders. The Court found the power in the reference: a request for interim relief is a matter connected with the water dispute, section 5(1) lets the Central Government refer it, and once it is referred the Tribunal may decide it, its decision being a report and decision under section 5(2) like any other. That reasoning is worth remembering, because the Court expressly declined to say whether a Tribunal has such a power without a reference.
In re Cauvery Water Disputes Tribunal: A State Cannot Legislate Away an Order
Worked example
State X is required by an interim order to maintain a monthly release. Its legislature passes an Act declaring that the release shall be subject to the State's own irrigation requirements as determined by its Cabinet.
Step one, is the Act about water? It is, and Entry 17 of List II covers water within the State.
Step two, does Entry 17 help? It is expressly subject to Entry 56 of List I, and the subject is an inter-State river.
Step three, what is the Act's real effect? To nullify the order of a Tribunal constituted under a Union law made under article 262.
Step four, the answer. The Act is beyond the State's competence and unconstitutional, on the authority of the Cauvery reference. A State may argue before the Tribunal, may seek modification, and may appeal by special leave; it may not legislate the order away.
Step five, and what if the Act had merely regulated the State's own canals? That would be within Entry 17 and valid, so long as it did not defeat the order. The distinction is between regulating within the State's own share and altering the share.
Distinctions
| Article 143 reference | Article 131 suit | Article 136 appeal | |
|---|---|---|---|
| Who initiates | The President | A State or the Union | A party aggrieved by a decision |
| What the Court gives | An opinion, and it may decline to answer | A judgment and decree | A judgment on appeal |
| Available in a water dispute | Yes, on a question of law arising out of it | Barred by section 11 for the dispute itself | Yes, against a Tribunal's decision |
| Used in the Cauvery matter | 1991, on the Karnataka Ordinance | Not available | 2018, against the award |
What it does NOT mean
It does not mean a State may never legislate about an inter-State river. It may legislate within Entry 17 for water within its own territory, including its own share. What it may not do is nullify the order of a Tribunal.
It does not mean an opinion under article 143 is a judgment. It is an opinion, and the Court may decline to answer, as it did here with the first part of the third question. Whether such an opinion binds all courts the Court left open, repeating that an advisory opinion is entitled to due weight and respect and is normally followed.
And it does not mean the Tribunal's interim power is unlimited. It rests on the reference, so it extends to the interim relief the Central Government has referred as a matter connected with or relevant to the dispute, and an interim order the parties must implement takes effect only when it is published under section 6.
In re Cauvery Water Disputes Tribunal: A State Cannot Legislate Away an Order
Quick revision
The trigger: the Cauvery Tribunal's interim order of 25 June 1991, and the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991, passed to defeat it.
The route: a Presidential reference under article 143(1).
The opinion of 22 November 1991: the Ordinance was beyond the State's legislative competence and ultra vires, because a State cannot annul the order of a Tribunal constituted under a law made under article 262, cannot legislate for the waters of an inter-State river beyond its territory, and cannot be a judge in its own cause; the interim order of 25 June 1991 is a report and decision under section 5(2) and must be published under section 6 to be effective; and a Tribunal may grant interim relief when the Central Government refers such relief to it.
Reported as In re Cauvery Water Disputes Tribunal, AIR 1992 SC 522; 1993 Supp (1) SCC 96 (II).
Test yourself
1. Why was article 143 used rather than a suit? Because section 11 of the 1956 Act barred every court from the water dispute, and the question was one of constitutional law of public importance. Article 143(1) allows the President to obtain the Court's opinion without any party suing.
2. On what grounds was the Karnataka Ordinance held bad? That a State legislature cannot annul or set at naught the order of a Tribunal constituted under a Union law made under article 262, which is beyond its competence, and that to do so is to be a judge in its own cause; and that the Ordinance operated beyond the State's territory, affecting the flow of the Cauvery into Tamil Nadu and Pondicherry.
3. Where does a Tribunal's power to make an interim order come from? From a reference by the Central Government. A request for interim relief is a matter connected with or relevant to the water dispute, which section 5(1) allows the Central Government to refer, and the Court advised that a Tribunal is competent to grant interim relief when such a reference is made. Whether it may do so without a reference did not arise, and was not answered.
4. What is the difference between an opinion under article 143 and a judgment? An opinion is advisory, the Court may decline to give it, and it is reported to the President. A judgment decides a lis between parties. In this reference the Court left open whether an opinion binds all courts, noting that it is entitled to due weight and respect and is normally followed.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.