SC reserves order on maintainability of appeals against Cauvery award

New Delhi: The Supreme Court on Wednesday reserved its order on the maintainability of appeals against an inter-state river water tribunal award and observed that Article 262 of the Constitution doesn’t say that such award is so sacrosanct that the apex court can’t look into it.

“Prima facie, we feel that Article 262 does not say that the (river water) tribunal award is so sacrosanct that the Supreme Court can’t look into it,” said a bench of Justice Dipak Misra, Justice Amitava Roy and Justice A.M. Khanwilkar.

The court said this as Karnataka, Tamil Nadu and Kerala contested the Centre’s position that their appeals challenging the Cauvery Water Disputes Tribunal award were not maintainable as under Article 262, read with Section 11 of the Inter-State River Water Disputes Act, 1956, the top court was barred from hearing the appeals.

The court reserved its order and gave all the parties time till Monday to file their written submissions.

Section 11 bars the jurisdiction of the Supreme Court or any other court in water disputes referred to the Water Disputes Tribunal.

Article 262 provides for the adjudication of disputes relating to use, distribution and control of waters of inter-state rivers or river valleys.

The Centre on Wednesday reiterated its stand that Article 262 and Section 11 eclipsed the Supreme Court jurisdiction to examine the tribunal award on the river water disputes.

Assailing the Centre’s position, senior counsel Fali S. Nariman — appearing for Karnataka — said Clause (2) of the Article 136 explicitly says that the Supreme Court will not interfere with any “judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces”.

He said that besides this, the jurisdiction of the top court has not been ousted in any other area.

Nariman said that a statutory provision — the Inter-State River Water Disputes Act of 1956 — can’t take away the constitutional powers of judicial review of the top court under Article 136.

Article 136 spells out the power of judicial review of the apex court.

Nariman said Article 136 pertains to Supreme Court’s residuary powers which is outside the purview of ordinary laws and same can be taken recourse to for meeting the ends of justice.

The senior counsel said under Section 6(2) of the 1956 Act, the tribunal award has the same force as a Supreme Court decree but it does not become the order of the Supreme Court itself.

He drew distinction between the tribunal order having the same force as the apex court’s decree and the Supreme Court’s order itself.

Appearing for Tamil Nadu, senior counsel Shekhar Naphade said that giving the tribunal award the status equivalent to a Supreme Court decree under Section 6 (2) of the 1956 Act does not take away its (top court’s) jurisdiction to look into the award.

Naphade said what the apex court will examine is not the dispute over river water sharing but the tribunal award.

Attorney General Mukul Rohatgi contested this, saying that the court by examining the award was in fact examining the contentions raised by rival states on the sharing of Cauvery waters.

“Can it be said that we are disputing the award but are not disputing water-sharing?” Rohatgi asked, wondering on the rationale of the argument that it was the award that was under challenge and not the dispute over the Cauvery river waters.