Is a resolution passed by the state legislature more binding than the direction of the Supreme Court?
This question assumes significance in the context of Karnataka government’s defiance of the Supreme Court’s directives to release 6,000 cusecs of Cauvery water per day to Tamil Nadu for a week from September 21 and for three days from September 28.
In support of its non compliance with the court’s directions, the state government has told the court that it is bound by the resolution passed by both Houses of the state legislature on September 23.
On September 27, Karnataka’s counsel Fali S. Nariman told the Supreme Court bench – comprising Justices Dipak Misra and Uday Umesh Lalit – that the resolutions were passed under Article 208 of the constitution, which enables any house of the state’s legislature to make rules for regulating – subject to the provisions of this constitution – its procedures and the conduct of its business.
However, he dissuaded the bench from examining the issue further. Although he did not explain why, the answer perhaps lies in Article 212, which bars courts from inquiring into proceedings of the legislature on the grounds of any alleged irregularity in procedure.
Justice Misra, who initially began to question under which provision of the constitution the legislature had passed these resolutions, he perhaps got the hint and did not probe the issue further.
The bench, however, made it known that despite the resolution Karnataka should follow the order passed by them, making it clear which among these two was more binding on the state government.
But the question of whether the resolution has a legal effect and, therefore, is binding on the state government needs to be answered in public interest.
What does the resolution say?
The resolution, passed unanimously by both Houses of the state legislature, says the following:
The House notes that in the water year 2016-17, there has been an acute situation of distress, but the shortfall in the basin will become known only at the end of the season (January 31, 2017);
This House further seriously notes that the combined storages in the four reservoirs viz. Krishna Raja Sagara, Hemavathy, Harangi, and Kabini, have reached alarmingly low levels with only 27.6 tmc of water; and
It is now resolved to direct that in this state of acute distress, it is imperative that the government ensures that no water from the present storages be drawn, save and except the meeting drinking water requirements of the villages and towns in the Cauvery basin and for the entire city of Bruhat Bangalore.
The above resolution was passed by the council saying, “The resolution is unanimously passed after carefully considering the needs of the inhabitants of the state of Karnataka, whose interests are likely to be gravely jeopardised if the water in the four reservoirs is in any way reduced, other than for meeting the drinking water requirements of inhabitants in the Cauvery basin including the entire city of Bangalore.”
Rules of procedure
Rule 147 of the Rules of Procedure governing the conduct of the Karnataka legislature says that subject to the provisions of these rules, a member or a minister may move a resolution relating to a matter of general public interest.
In order that a resolution may be admissible, the rules require that certain conditions be satisfied. Among these is a sub rule which requires the following:
“It shall not relate to any matter which is under adjudication by a court of law having jurisdiction in any part of India.”
No doubt the resolution is silent on the pending Cauvery dispute between Karnataka and Tamil Nadu before the Supreme Court. But the mere silence on the dispute does not wipe out the relationship of the subject matter of the resolution with it, which is obvious to everyone.
However, rule 149(1) says that it is the speaker of the assembly (or the chairperson of the legislative council), who shall decide whether a resolution, or part thereof, is or is not admissible under these rules, and may disallow any resolution, or a part thereof, when in his opinion it is an abuse of the right of moving a resolution, or calculated to obstruct or prejudicially affect the procedure of the house or is in contravention of these rules.
Rule 150 is another restriction on the resolution that can be moved in the legislature. It reads:
“No resolution which seeks to raise discussion on a matter pending before any statutory tribunal or statutory authority performing any judicial or quasi-judicial functions or any commission or court of enquiry appointed to enquire into, or investigate any matter shall ordinarily be permitted to be moved.”
Rule 150 has a proviso that says that the speaker may, in his discretion, allow such matter being raised in the House as is concerned with the procedure or subject or stage of enquiry, if the speaker is satisfied that it is not likely to prejudice the consideration of such matter by the statutory tribunal, statutory authority, commission or court of enquiry.
Although the Cauvery Water Disputes Tribunal has submitted its reports and decision under Section 5(2) of the Inter-State River Water Disputes Act, 1956 to the government on February 5, 2007, Karnataka, Tamil Nadu and the central government have sought clarification and guidelines under Section 5(3) of the Act. The clarification applications are pending for consideration by the tribunal because of the pending litigation in the Supreme Court.
Therefore, the question that arises is whether the presiding officers of both houses of Karnataka’s legislature have satisfied themselves that the subject matter of the resolutions would not prejudice the tribunal’s consideration of the applications seeking its clarification, in terms of the provisio to Rule 150.
The academic literature on the resolutions passed by parliament and the state legislatures classifies them into three categories: those which have the statutory effect, those which the House passes in the matter of control over its own proceedings and those which are mere expressions of opinion of the House.
Resolutions under the first category are moved under the constitution or a statute of the parliament and have a binding effect, since passing such resolutions attract in law the consequences mentioned in the statutory provisions.
The resolutions under the second category are those passed by the House in relation to its proceedings. Such resolutions are something like law and cannot be disobeyed as such. For instance, resolutions committing a contemnor for breach of privilege, and those expelling a member from the House, fall under this category.
The last category of resolutions refers to those that merely express an opinion. They are generally used to test the feeling of the House with regard to proposals which are still indefinite or ahead of public opinion.
Since resolutions that merely express opinions lack the force of law, the government is not bound to give effect to opinions expressed in such resolutions. It rests entirely on the discretion of the government whether or not to take action suggested in such resolutions.
The Cauvery resolution passed by the Karnataka legislature is one such, whose admissibility and legal status are questionable, even though it may enjoy immense political significance.
The Supreme Court, under Article 142(1) of the constitution, may pass such decree, or make such order as is necessary for doing complete justice in any cause or matter pending before it. Any decree so passed or order so made shall be enforceable throughout the territory of India in a manner that may be prescribed by or under any law made by the parliament and until provision in that behalf is so made, in such manner as the president may by order prescribe.
It is clear that a Supreme Court order – passed under Article 142(1) of the constitution – can in no way be circumscribed by a resolution of the legislature, whose admissibility and legal effect, are dubious.