Following an all-party meeting, the Karnataka government on Wednesday decided not to implement the Supreme Court’s directive to release Cauvery water to Tamil Nadu till September 23, when a special session of the state legislative assembly will be convened to make a decision on the issue.
The Supreme Court on Tuesday had mandated the state to release 6,000 cusecs of water daily for a week from September 21 to September 27, when the apex court will hear the case again.
Karnataka’s decision to not release water to Tamil Nadu has given rise to questions of whether the state is guilty of civil contempt of court, and if so, what remedies would be available to it.
While the Supreme Court may have to address the question of civil contempt of court – either suo motu or if it is moved by Tamil Nadu – Karnataka’s assumption that it can defy the direction of the apex court through the help of a resolution by the state assembly in favour of deferring further release of water from Cauvery to Tamil Nadu, appears to be legally untenable.
The issue has been previously settled by the Supreme Court’s five-judge constitution bench in 1991, while answering a presidential reference on November 22, 1991.
The issue then was the validity of the Karnataka Cauvery Basin Irrigation Protection Ordinance of 1991, promulgated by the governor of Karnataka on July 25, 1991. The ordinance was subsequently replaced by an Act of the legislature.
The ordinance and the Act followed the Supreme Court’s judgment on April 26, 1991.
In this judgment, the court had concluded that the reference made to the Cauvery Water Disputes Tribunal in 1990 included the question of grant of interim relief and that the tribunal was duty bound to “decide the same and such decision would constitute a report under Section 5(2) of the Act which the central government would be duty bound to publish as required by Section 6 of the Act.”
Following this, the tribunal had given its interim order on June 25, 1991.
The ordinance had the effect of defying and nullifying any interim order of the tribunal appointed under a law of the parliament.
The Supreme Court’s constitution bench – in its advisory opinion to the president in this case – held that 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.
However, it held that it cannot set aside an individual decision inter parties 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, the court observed.
As the Karnataka ordinance sought directly to nullify the order of the tribunal passed on June 25, 1991, it impinged upon the judicial power of the state, and was thus held to be ultra vires the constitution.
Moreover, the Supreme Court held that the effect of the ordinance was to affect the flow of the waters of the Cauvery into the territory of Tamil Nadu and Puducherry, which are the lower riparian states. The court held that the ordinance had an extra-territorial operation, and on that account was beyond the legislative competence of the state and was ultra vires the provisions of Article 245(1) of the constitution.
The Supreme Court further observed in that case:
“The ordinance is also against the basic tenets of the rule of law inasmuch as the state of Karnataka, by issuing the ordinance has sought to take law in its own hand and to be above the law. 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.”
It may be argued that the Supreme Court’s opinion in 1991 was only advisory, let alone having any precedential value, but the court itself considered this question and held that its advisory opinion to the president was entitled to due weight and respect, and normally this should be followed.
The bench had then observed:
“We feel that the said view which holds the field today may usefully continue to do so till a more opportune time.”
Karnataka may have legitimate grievance about the Supreme Court’s interim direction given on September 20, but the legal precedent makes it clear that it should seek remedy before the court itself, rather than undo it through a resolution of the assembly.
If the Supreme Court in 1991 did not consider that an ordinance – and the Act which replaced it – could undo the decision of a tribunal, the present circumstances could hardly justify an assembly resolution to undo the interim direction issued by the apex court itself.