New Delhi: The Narendra Modi government buckled under political pressure and on Monday moved the Supreme Court seeking recall of the September 30 order directing setting up of the Cauvery Management Board (CMB) to resolve the Cauvery river dispute between Karnataka and Tamil Nadu.
On Friday, the apex court bench of Justices Dipak Misra and Uday Lalit had directed the Centre to set up the CMB on or before October 4 to assess the ground realities in the Cauvery river basin and submit a report by October 6. Attorney General Mukul Rohatgi had assured the court that the CMB will be set up, for which the Karnataka, Tamil Nadu, Kerala and Puduchery were asked to send their nominees by 4 pm on October 1. Except Karnataka, others complied with the direction and sent the names of their representatives. Karnataka took the stand that since it had filed a review petition relating to the CMB, it would not sending its nominee.
On Monday, Rohatgi made an urgent mention before Misra and Lalit that he had consented to the order on CMB by mistake. The attorney general said it had come to light that there is an embargo on the Supreme Court from passing orders to form a CMB under article 262 of the constitution read with section 11 of the Inter-State Water Disputes Act, 1956. Quoting article 262, he said the Supreme Court cannot entertain any matter pertaining to an inter-state river dispute once a tribunal set up under parliamentary legislation has passed its final order.
He also contended that the constitution of a CMB by the Cauvery Water Disputes Tribunal was only a “recommendation”, which the Centre could choose to either accept or reject. Misra told the AG, “But you complied with our orders to form a Cauvery Supervisory Committee, you consented then. You also consented on Friday to our order.” He told the AG that the Centre’s understanding of article 262 was wrong as the embargo related to only original disputes and not to final awards of the tribunal.
Strongly disputing the AG’s submission, senior counsel Rakesh Diwedi said, “How can article 262 take away a state’s right to file an appeal under article 136. The bar under article 262 is confined to only private parties in original disputes.” Senior counsel Shekhar Naphade for Tamil Nadu also questioned the urgency to hear this matter when the case is to come up for hearing on October 6. He informed the court that Karnataka has not complied with the order passed on September 30 and not a drop of water has been released. “We have no sense of urgency, we have now learnt to protect our interests,” Naphade said.
When Misra asked Karnataka State counsel, Raghupathy, “Have you released water?”, he said that since the state had filed a review petition, no water has been released. Misra told the counsel, “There is no compliance from your side and you file this review? There should have been some compliance”. The bench, however, posted the Centre’s application for hearing on October 4.
In its application, the Centre said the final award of the Cauvery tribunal recommended setting up of a CMB on the lines of the Bhakra-Beas Management Board. It said the Bhakra-Beas Management Board has been set-up under the Punjab Reorganisation Act, while Krishna River Management and Godavari River Management Boards has been set-up under the Andhra Pradesh Reorganisation Act, 2014. In fact, the Ravi and Beas Waters Tribunal has been set-up by virtue of section 14 of the Inter-State Water Disputes Act. It said that the constitution of a board, as suggested by the tribunal and ordered by this court on September 20 and again on September 30, is not contemplated by the statute. By setting up of a board of this nature, the central government is denuded of its power under the Act to frame a scheme based on an award which goes through a legislative process by being placed before the parliament and final say is vested in the Parliament.
It submitted that in any case, it may not be appropriate for the court to pass an interlocutory order of this nature when the appeals against the final award is pending. The Centre noted that Union of India is not a party to the award. The tribunal took note of the fact that under section 6(2) of the ISWD Act, the decision of the tribunal has the same force as an order or decree of the Supreme Court, while under section 6A, the central government has the power/responsibility to frame an appropriate scheme for implementation of the judgment of the tribunal which then goes through the legislative process of placing the same before both houses of parliament and parliament has the right to annul, modify or vary the scheme.
It said under a bonafide belief, the court was informed on September 30 that the process would be hastened and the board would do the assessment of the ground reality of the situation. It was submitted that a ‘high powered technical team’ would be appointed by the chairman of the supervisory committee, who is the secretary of the ministry of water resources. This technical team would then inspect the basin, make an assessment of the entire issue and prepare a report within 30 days.
The Centre sought a direction to recall the order to set up a CMB and to direct the chairman of the Central Water Commission to set up a technical team to proceed to the site so that an inspection of the entire basin is done for assessing the ground realities and preparing a report to place before the court.