Transparency in Collegium

This was first published here by me.

The decision of the Supreme Court collegium to upload its resolutions with reasons is a watershed moment in the longtime campaign by various stakeholders to ensure transparency in its functioning, albeit with certain reservations. Until now the functioning of the collegium was shrouded in utmost secrecy with the news articles regarding the appointment, transfer of judges from the collegium published as obtained from ‘highly placed sources’. This method of functioning of the collegium came under heavy criticism from various sections of the society, since no significant improvement happened even after the court in the NJAC judgment accepted that the collegium system requires corrective measure for ‘improvement’ in its functioning. After the delivery of the judgment, declaring the National Judicial Appointments Commission as unconstitutional the bench invited suggestions for improving the functioning of the collegium, in pursuance to which a report came to be filed, containing recommendations on four categories Transparency, Eligibility, Secretariat, Complaints. Of the four categories, the recommendations made under the head of transparency were easily implementable by the collegium itself without having had to wait for the finalisation of the Memorandum of Procedure. But it was not until the recent furore over the resignation of Justice Patel that has resulted in this voluntary disclosure of collegium resolutions. What is yet baffling the is the consistent failure of the institution to recognise the importance of civil audit of its functioning, which cannot be sustained without adequate disclosure of information about its functioning. The recent episode of Justice Karnan has amply demonstrated that such disclosure of information at the level of High Collegium would have at least provided sufficient warning about the appointment of an ineligible candidate to the bench. The sordid saga of the Supreme Court having to resort to its contempt jurisdiction against a serving High Court judge cannot be erased easily.

Even now the decision to disclose the resolutions cannot be termed as sufficient. It is a first step in a long way that is to be covered. The resolution of the collegium to disclose information has made a subtle reservation at the end in stating that “The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system.” No information has been provided as to what does the maintaining of confidentiality would entail and what are the aspects and information in its functioning which would be reserved from disclosure. The protest lodged by a member of the collegium Justice Chelameswar specifically pointed that minutes of the meetings to discuss on appointments and transfers to maintained. Subsequently, only an informal source provided a news that ‘circulation’ method has been adopted, where files on appointments and transfers are circulated amongst the members with each of them having to provide their reasons in writing about their decision. The reasons provided in the resolutions are extremely limited for any meaningful understanding to be drawn about the appointment of a candidate. For example, each candidate’s, who are members of the lower judiciary, professional ability has been assessed by “Judgment Committee” which assess the quality of judgments delivered by them. With no basic information about the criteria upon which the committee makes the assessment and the weight that the conclusion of the judgement committee carries in the overall decision to appoint a candidate, it is inadequate in the least. It is also notable that for the appointment and transfer of judges of the High Court opinion of only three senior most members of the collegium is required to arrive at the decision and all the five members for the appointment to Supreme Court.

In spite of this being a very bold and welcome move, a reserved disclosure of information just as this would not completely satisfy the requirements of transparency. Adequate disclosure of relevant information must start from the High Court collegium stage itself when a candidate is under the zone of consideration. This would inculcate the first principles of transparency in the appointment process while paving way for civil participation as well. Arguably, the present mindset within the judicial set up against any move towards ensuring transparency is to protect the institutional integrity. Counterintuitively, such informational disclosure would also shield the decisions of collegium from unnecessary criticism paving way for enhanced institutional integrity that it strives for. This is very bold and welcome step, albeit in a long road that is yet to be covered.

Naz Foundation Judgement and Right to Privacy: A Revisit

Now that the much-awaited judgement of Supreme Court judgement on Right to Privacy is upon us, many interesting discussions are happening all around. On a jurisprudential level the judgement will be path breaking and will initiate further discussion on this subject, for its impact is widespread. More than putting an end to the problems involved this decision would initiate fresh grounds for development of law in this area. Some past decisions might have to be revisited based on the outcome here. One such case is the regressive jurisprudence established by the Supreme Court in Suresh Kumar Koushal & Anr. Vs. Naz Foundation and Ors. (2014) 1 SCC 1. Apart from other jurisprudential mistakes, that the judgement has made it has relied upon two judgements in particular to discredit the arguments on right to privacy made by the LGBT persons in the case. While the High Court 160 (2009) DLT 277 found Section 377 to be in violation of the Right to Privacy under Article 21, the Supreme Court simply rejected such arguments relying upon the judgement by the Court in Kharak Singh v. State of UP AIR 1963 SC 1295 and Gobind v. State of MP  (1975) 2 SCC 148. The overt reliance by the court in these two judgements is both to delineate the state interference on one’s privacy rights and to show that Section 377 challenged in the case falls under the reasonable restrictions on the fundamental rights guaranteed under the constitution. As far as the correctness of these two judgements are concerned it can be seen that these cases are no more a good law, since they were effectively been disregarded in a line of subsequent cases. Especially in Kharak Singh the ratio was based upon the premise that the fundamental rights were watertight compartments, which cannot be read together and cannot have spill over effects on each other –a pre Maneka Gandhi era with A.K.Gopalan understanding of fundamental rights. However, this understanding has been changed both in Maneka Gandhi and R.C.Cooper judgements of the court. Moreover, a seriatim of subsequent cases has identified this and has been noted by the court even very recently in Mohd Arif v. Supreme Court of India (2014) 9 SCC 737

“25. In Kharak Singh v. State of U.P. [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] , Gopalan's [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] reading of fundamental rights in watertight compartments was reiterated by the majority. However, they went one step further to say that “personal liberty” in Art. 21 takes in and comprises the residue after all the rights granted by Art. 19. Justices Subba Rao and Shah disagreed. They held:
“The fundamental right of life and personal liberty have many attributes and some of them are found in Art. 19. If a person's fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Art. 19(2) so far as the attributes covered by Art. 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Art. 19(2) of the Constitution. But in this case no such defence is available, as admittedly there is no such law. So the petitioner can legitimately plead that his fundamental rights both under Art. 19(1)(d) and Art. 21 are infringed by the State.” (at pages 356-357)
26. The minority judgment of Subba Rao and Shah, JJ. eventually became law in Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India [Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC 248] , where the 11-Judge Bench finally discarded Gopalan's [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] view and held that various fundamental rights contained in different articles are not mutually exclusive: (SCC p. 289, para 53)
“53. We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with Article 31(2). Article 31(2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions under Article 31(2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression “law” means a law which is within the competence of the Legislature, and does not impair the guarantee of the rights in Part III. We are unable, therefore, to agree that Articles 19(1)(f) and 31(2) are mutually exclusive.”
27. The stage was now set for the judgment in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (1978) 1 SCC 248] . Several judgments were delivered, and the upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See at SCR pp. 646-48 : SCC pp. 393-95, paras 198-204 per Beg, C.J., at SCR pp. 669, 671-74 & 687 : SCC pp. 279-84 & 296-97, paras 5-7 & 18 per Bhagwati, J. and at SCR pp. 720-23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer, J]

In the much-awaited judgement on the right to privacy, if the court finds that the Right to Privacy is a fundamental right recognised under the constitution they must necessarily overrule these two judgements, which has been relied upon in Naz foundation, explicitly to arrive at such a conclusion. This would erode the fundamental premise upon which the challenge to Section 377 was made by the LGBT persons was rejected by the court. Also, while arguments were made before the 5 judge bench in the Right to Privacy case it was strenuously submitted the petitioners that the court must only identify that the Right to Privacy is a fundamental right and is a part of the Constitution and it must not venture into defining the contours of it but to leave it to be decided on case to case basis. In Naz Foundation, the state interference in the matters of personal choice and sexual orientation may have to be revisited in view of the concrete understanding that would emerge through this judgement on privacy rights. Specifically in the context of privacy rights and individual autonomy over sexual orientation would be put to question and there would be a necessity to delineate the degree of state interference in such matters. It would provide a wonderful opportunity for the court to revisit one of the most regressive judgements ever has been delivered by the court. The overarching impact of the judgment on the constitutional status of right to privacy can be keenly felt when we see the wide ranging repercussions, either positive or negative, that it could create in the established jurisprudence. It is the fondest hope that the Supreme Court would not succumb to the temptations of arming the state by failing to recognise such an inalienable right.

ADM Jabalpur Vs Shivakant Shukla: Supreme Court and its Jurisprudence of Redemption

If there is one case which marked the downfall of Indian judiciary no doubt that it will be Habeas Corpus case (ADM Jabalpur Vs. Shivakant Shukla (1976) 2 SCC 521). The case was decided by the court in a highly charged political situation and it was clearly visible for everyone that the decision was made the court not on merits but on external political considerations. The tragedy also gifted us with the courageous dissent of Hon'ble Justice H.R.Khanna who went down the annals of history and the saviour of the ideals for which the Indian democracy stood for. But the mortal blow that the decision and its subsequent repercussions dealt to the higher judiciary took a long time to recover. During the hearing of the case when Justice Khanna specifically asked whether there would be any remedy if a police officer, because of personal enimity, took into detention a law abiding citizen and even put an end to his life. The attorney general unequivocally stated that, 'consistently with my argument there will be no judicial remedy in such cases as long as the emergency lasts’. It is a treacherous path that the government went into and which the Supreme Court gave into. The decision altered the very nature and course that the judiciary was to take in its days to come. The blatant supersession of Justice Khanna in his appointment as the Chief Justice of India was a direct result of his dissent from the 4 other judges forming the majority which held that even fundamental rights are suspended when emergency is proclaimed. The then judicial reclusiveness gave way to newly found activism which elevated it to unknown heights. The judiciary cloistered itself and arrogated to it all powers that was possibly within its reach under the Constitution including its own process of appointments and transfers. Entering into a new era, its subsequent interpretive ventures expanded both reach and scope of civil liberties under the Constitution.

The new jurisprudence that which was heralded by the Supreme Court post the Habeas Corpus case ushered in an positive morality to the constituional provisions. But it is yet a surprising fact that the judgement, which is seen as a gruesome manifestation of state power, has dubious validity without being explicitly overruled. There arose no opportunity for the Apex Court to revisit this byproduct of the dark hours of emergency. In an era where far reaching rights, which were never intended or contemplated by the framers of the Constitution were provided by the judiciary purely through its powers of interpretation, it baffles one's reasoning power to think that this still forms a part of its history. In contrast with the judiciary that we know of now, this judgement yet remains a blemish in its record. To put this in perspective a passage from the majority judgement written by J. Beg will be instructive

“we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well-housed, well-fed, and well-treated, is almost maternal. Even parents have to take appropriate prevent action against those children who may threaten to burn down the house they live in.”

The subsequent jurisprudence expounded by the Supreme Court in a series of landmark judgements changed the fundamental approach towards the interpretation of constitutional rights and the remedies. Therefore it is important for us to see what is the scope and reach of the jurisprudential conclusion arrived at by the court in this infamous judgement. Apart from its conclusion on the suspension of fundamental rights during emergency it also raised several contentious issues upon the substantive and procedural justice and it's implications.

The issue that arose in ADM Jabalpur is whether constitutional remedies under Article 226 and Article 32 of the Constitution can be availed by a party whose fundamental rights are infringed during emergency or not. The issue arose when, after the declaration of emergency by the President, many leaders of the opposition were arrested by the government on one pretext or the other all over the country. Within two days of declaring the emergency the President made another declaration whereby no person could move the courts for enforcement of articles 14, 21 & 22. The detainees initiated Habeas Corpus petition before the high courts challenging their detention. Though the judiciary was not able to examine the order of detention on any illegality under the maintenance of internal security act, 1971, several High Courts granted the relief to such Petitoners by scrutinising the validity of such detention orders on the pedestal of fundamental rights conferred under Article 14, 21 and 22, in spite of the proclamation of emergency under Article 359. The Supreme Court in the challenge to such orders concluded that

"Article 359 prohibited enforcement of articles 14, 21 & 22 and it also barred anyone from approaching the High Court to question his detention on any ground whatsoever. Liberty is the gift of law and can be forfeited by law. There is a complete bar to approach the court for any violation of articles 14, 21 and 22 once a proclamation under Article 359 is made. No person can question his detention for any reason whatsoever or on the ground that it is illegal and mala fide."

In a textualist reading of the provisions the majority concluded the above by ignoring the fact that one does always have to read the provisions of the Constitution with strict fidelity to its text, or in a manner faithful to the intent of its framers. The parochial understanding of Article 21 and its substantive reach was directly carried over from the A.K.Gopalan (AIR 1950 SC 27) where the court rejected the arguments to import the due process clause from the American Constitution. The entailing effect was that even when a procedure established by law passed by the legislature offends Part III the validity of such a law or the procedure cannot be challenged. The court also concluded the fundamental rights to be mutually exclusive and are water tight compartments which cannot have spilling effects on the other rights conferred under Part III of the Constitution. The substantive effect of such a conclusion is that the rights that were not explicitly recognized under the Part III cannot be enforced. The dissent by J. Khanna in refusal tellingly stated that 

“The right not to be deprived of one's life or liberty without the authority of law was not the creation of the Constitution. Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights  I did not have the effect of exterminating the independent identity of such a right and of making Article 21 to be the sole repository of that right.” (para 531)

This conclusion of the court over the ambit and scope of Article 21 that is seen above was substantially overruled by the court the celebrated case of Maneka Gandhi Vs. Union of India (1978) 1 SCC 248. It is of interest to know that (ironically) three of the judges (Beg, Chandrachud, and Bhagwati) in the bench which decided the Maneka Gandhi were also a part of the bench which decided the Habeas Corpus case. It substantially imported the due process clause, which was consciously eschewed by the framers of the Constitution. The jurisprudence that was spearheaded by the Supreme Court in the subsequent decades expanded the ambit of the ‘due process’ to include 'substantial’ due process. In fact, it is the author of the Habeas Corpus judgement J. Bhagwati who opened up a whole new arena of rights under Article 21 by recognizing the epistolary jurisprudence for the first in the history heralding the new era of Public Interest Litigation (PIL). If one looks at the human participants behind these judgements, one cannot help but think that the ground breaking jurisprudence heralded by the Apex Court is a jurisprudence of redemption for what it failed to do during the hours of want for this country. While the external pressure made these decision makers to follow this path of regression, the subsequent decades, post emergency, provided valuable lessons for the judiciary to be cautious of the executive excesses affecting the Independence of judiciary and its ability to curtail the freedom. The judiciary saw this as an opportunity to redeem its role as a protector of civil liberties enshrined under the Constitution. Undoubtedly the subsequent developments be it the expansion of Article 21 to include civil rights of the new era or the expansion of its powers of judicial  review is towards this goal. It is necessary for the court to not forget such lessons in the present when questions as to the very existence of rights as basic as privacy are put to question by the state before the court.

P.S: In the arguments before the 9 Judge bench, constituted for deciding on the fundamental right to privacy, Advocate Mr.Gopal Shankaranarayanan made an argument (albeit as a passing remark) that this judgement can be overruled by the present bench. The legal effect of the judgement, apart from the implied overruling by subsequent judgements of the court, the 44th constitutional amendment nullified it. Making it irrelevant as far as the legal effect is concerned. However, it yet remains as a blot in the judicial reasoning and deserves to be overruled by the present bench of 9 judges.

Right to Privacy: Summary of Arguments Made by the Petitioners on Day 2 of the Hearings

Day 2: 

The bench comprised of 9 judges sitting from left to right in the following order

• Sanjay Kishan Kaul J.
• A.M. Sapre J.
• R.K. Agarwal J.
• Jasti Chelameshwar J.
• J.S. Kehar J.
• S.A. Bobde J.
• R.F. Nariman J.
• Dhananjay Chandrachud J.
• Navin Sinha J.

10:30 AM: Arguments were continued by Sr. Advocate Mr.Arvind Datar from where he let off the previous day

• The three types of privacy that an individual can command are as follows
• Physical privacy: Protection against tangible and intangible invasion of private space.
• Informational privacy: An individual's control over the dissemination of his private information.
• Decisional privacy: Protection of an individual's autonomy over fundamental personal choices.
• Interrupted by Dhananjay Chandrachud J. (DyC) with the following question 

DyC: For us to claim the protection from invasion of privacy from the state is one thing. But for a horizontal right like Right to Privacy can the same be enforced against private entities?

Datar: The remedy in that case is of damages.

DyC: But, the state has equal obligation for protection even against violations by a private player. Say for example its role might by to frame appropriate rules and regulations to prevent such violations from happening.

Datar: Yes! I completely agree. The state is obligated to play its role.

DyC: But the obligation and the entailing burden on the state may not be equal in all such horizontal rights.

11:00 AM: Mr.Datar rested his arguments and the stage was taken by Sr.Adv. Mr.Anand Grover

• Maneka Gandhi has overrules Kharak Singh, so there is no need to get into that discussion.
• The UOI has made a primary argument that the Right to Privacy is not present within the constitution in any form. If at all it is granted as a common law right. I say that English Common Law does not recognise the right. It is imported by the American Jurisprudence.
• It is baffling that we are still debating upon the very existence of a right as essential as this after the passage of such a long time.
• Such form of human rights is a part of the obligation that India has under the international instruments that it has signed. (Cites Article 17 of International Covenant on Civil and Political Rights).
• Sr. Adv. Mr.Gopal Subramanium (GS) interrupts: The recent Manipur judgement (Extra Judl. Exec. Victims Families Association & Anr. Vs. Union of India & Ors. W.P. Crl. No.129/2012) delivered by M.B. Lokur J. discusses this.
• It is the obligation of the state to implement and comply with such international instruments if it is not against any of the domestic law. It is in pursuance of such obligation that several acts like Protection of Human Rights Act, 1993 were enacted. In fact, Section 12 (f) of the Act obligates the National Human Rights Commission to study treaties and other international instruments on human rights to make suitable recommendations for their effective implementation. Interrupted by Rohinton F. Nariman J. (RFN)

RFN: The court can issue a mandamus to the government to enforce the commitments of the nation under such international instruments.

GS: Yes! It has happened in the past.

• If there is no domestic law and there is international law then the international law will prevail. This has been enunciated in the Vishaka Judgement by the Supreme Court itself.

RFN: Then we can say that the 8 judge bench in the M.P.Sharma case is outrightly wrong since it was delivered in the face of international instruments such as Universal Declaration of Human Rights (UDHR).

Grover: Also it does not have the ratio decidendi. Privacy was never an issue before that bench.

• Dignity is always associated with privacy. Interrupted by DyC: "Then the NALSA judgement would become vulnerable". (Mr.Grover enters into an animated discussion about the NALSA judgement by tracing out the dignity and privacy aspects of the issues involved in that case).
• The present bench should not precisely define the Right to Privacy in its totality. It may trace its contours to provide a general idea and leave the rest to be decided on case to case basis. 
• Cites Govind Vs. State of Madhya Pradesh 1975 SCR (3) 946. DyC: This judgement by Mathews J. is a rather narrow conception of privacy. The issue was not entertained in its full context. Only now the issue is entertained in full fledged manner.
• Tests that can be used differs from the Article under which the issue of privacy arises. It can either arise in Art.19 or 21. So the issue must be adjudicated and tested in the appropriate context. Several of such tests can be 
• Compelling state interest test.
• Proportionality test.
• Least Restrictive test.
• Legitimacy test.
• Privacy would also entail the right to identity and right to remain anonymous. DyC cites several practical examples where the issues of privacy and state necessity are encountered.

In applying for a passport for an adopted child can the authority compel to disclose the details of biological parents. Also in case of a single mother can there be any compulsion to disclose the identity of the father? To what extent such rights can be claimed, if at all there is any?

Suppose the government maintains a register about all people who has committed a crime. The violation of the Right to Privacy is not merely of the maintaining the register. There will be one if such an information is used to profile individuals and their propensity to commit crime. 

Ultimately, the important issue is that the identity should not be used to stigmatise the person. (Cites NALSA judgement.)

• Cites Right to Privacy and bodily integrity of a mentally unstable woman and a victim of rape to give birth to a child. (Suchita Srivastava Vs. Chandigarh Administration)
• There is a right to privacy. But it should not be defined now. It should be on case to case basis. It should be indicative (Sr. Adv. GS whispering in Grover's ears: Let us not go into the merits of Aadhaar case now. Grover nods in agreement).
• The Right to Privacy is all pervading, the test for which will depend on the right in which it manifests itself.

1:50 PM: Arguments rested by Mr.Anand Grover and the stage has been taken by Sr. Adv. Sajjan Poovayya (SjP).

• Cites United States Vs. Jones (2012). DyC: Please tell us about consent, informed consent and its entailing effects.

DyC: If any surveillance is a transgression of Right to Privacy, then what about the legitimate requirements of the state such as a person being put under surveillance under alleges terrorist activities?

SjP: Then it must be done under the procedure established by law.

Chelameshwar: What is the objection on mere collection of data?

SjP: Given the advancement in technology the collection of data and its processing happens near simultaneously due to artificial intelligence. The possibilities of abuse is large. Moreover, in case of a private player I consent for such a collection on a case to case basis on a private contract to avail its services. That is not the case with the state.

• Secrecy is not a prerequisite for protection under Right to Privacy. Even the information in public domain is entitled to such a protection.
• The state is not merely obligated to protect the physical being of its citizens, in modern times it is to protect their digital identity as well.
• Cites the various instances where the legislature has already acknowledged the existence of Right to Privacy.
• Section 5(2) of Telegraph Act.
• Section 8 (j) of RTI Act.

RFN: What happened to the privacy bill?

3:30 PM: Arguments rested by Mr.Poovayya. The stage was taken by Ms.Meenakshi Arora

• Cites Wolf Vs. Colorado.
• Rights there were already there before the Constitution came into being were inhered into the Constitution. Just because it is not stated there does not mean that it does not exist. A similar argument was taken by H.R. Khanna J. in A.D.M.Jabalpur case (Habaeus Corpus Case).
• Cites Row Vs. Wade.

04:00 PM: Adjourned. Hearing of Respondents arguments to continue on Tuesday.

Book Review: Neither Roses Nor Thorns

If we look at the post-independence history of India one can easily see the tumultuous times that this young nation has gone through to reach the stage where it can call itself a robust democracy. Littered with doubts, the journey was always on the verge of derailment. A few gentlemen of extraordinary grit and calibre saved it, however. With most of those men, as is usual with the history, the importance of their actions and the men themselves have gone unnoticed during their times, except a gifted few. Justice H.R.Khanna is one such man who was celebrated in his times and continues to be a venerated personality of this order. His was the lonely voice that sung the triumph of democracy in testing times. To arrive at a decision with wide ramification to both him personally and to the moral fabric that made the country like India takes the kind of courage that is rarely encountered in the history. What makes the man that he is? The answer comes straight from the horse's mouth in 'Neither Roses Nor Thorns'. The narration starts with his childhood and traces it to his ascension as the judge of the highest court of India. The best part of this journey is that, more than the man himself, it is the importance that he gives for those people who partook the burden of the journey with him. Littered with hear warming anecdotes of such men this book just shows the immense importance that this man gives to others that surrounded him in his life, how much ever small they may be. In spite of being a well-written prose there are significant shortcomings that I felt made the book somewhat of a disappointment. The book does not carry the much-required depth that one would expect from it. The lack of depth makes one to think that this is a half-hearted attempt by the author to write an autobiography. For a towering personality that he is, this book has all the possibilities to set the golden standard in writing, since his life offered immense scope for the grandeur in such a scale. In fact, I was not able to help myself but to draw comparisons with the “Roses in December by M.C.Chagla” (The greatest autobiography ever written in my opinion) against which this book fails in every possible aspect of writing. If my guess is right, this is the mistake of editor who was not able to bring the best out of the author. Another major problem that I encountered in reading this book is that it does not make any chronological sense. At places, it jumbles within the overall timeline without much making sense or purpose confusing the reader. Granted! A non-linear narrative is a style of writing. But it must go organically with the story that the writer intends to convey to the reader, which is missing here.
I was utterly disappointed with the book. However, few stray snippets of information about people and incidents qualifies this book to be a read worth one time. There went the unsung song of one of the greatest composers of the democracy called India.

Secularism Under Section 123 (3) of the Representation of Peoples Act

The Supreme Court of India recently in a very short of period heard and delivered several judgements of wide import, several of which were heard by a large bench of seven judges. One of those judgements involving the usage of 'religion' to appeal to the voters by a candidate invited much public and media attention. The decision of the court was much lauded for its progressive interpretation of Section 123 (3) of the Representation of Peoples Act, both by the media and public at large. In a political landscape fraught with communalism and other narrow-minded considerations this seen as a welcome move to cleanse the democratic elections to ensure the survival of constitutional ideals. In all this hubris something very fundamental about this judgement has gone unnoticed by everyone. The gravity of this misconception is too large to be brushed aside easily. Though on the face of it the judgement comes out as a progressive stance taken by the judiciary towards ensuring the elections to be free of parochial sectarian considerations, the overall outcome of the interpretation offered by the Court proves to be diametrically an opposite one at that. The jurisprudential error committed have widespread ramifications, not merely confined to the corrupt electoral practices that it sought to adjudicate. The spillover effect that this judgement can have over other legitimate democratic aspirations that find its way through freedom of speech and expression is the main concern that I wish to address here.
The fundamental issue that arose for the consideration is the scope and purport of section 123(3) of the representation of people act, more specifically the scope and application of the word "his" as used in the section.

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

Section 123 of the Representation of People Act, 1951 provides for penal actions against corrupt practices that are defined under the section. Subsection 3 of the provision defines any action by the candidate or his electoral agent using religion, race, caste, community or language to seek votes for himself or using it to the detriment of another candidate. A seemingly straightforward definition, however, gave rise to confusion on whether the appeals made is deemed to be a corrupt practise under the section only when it is of the religion to which the candidate belongs or it is a wholesale ban against the use of religion to seek the favour of the voters. The issue before the court was to decide whether it is a corrupt practice to use religion in all its forms to appeal to the voter or it must be confined only to those appeals made by a candidate on the ground of his religion. The judgement of the majority, after going through the usual rigmarole of framer's intent, the legislative history and other paraphernalia, decided in favour of an interpretation that gave the section widest possible import resulting in a blanket prohibition on the use of religion in election. The dissenting judgement assumes much significance for it espouses correct stand in this regard.
Though the intention behind the prohibition of using religion, either to seek the favour or to the detriment of another candidate is laudable, the mechanism devised should not be so restrictive as to have detrimental effect upon other constitutionally guaranteed rights of the citizens. While the fact remains that the broad and purposive interpretation used by the Supreme Court to justify its conclusion to give a sweeping effect to the provision itself suffers from serious defects.
In any democracy the process of election is a democratic negotiation between competing groups of interests to have their views represented in the corridors of power. A minority, be it a language or a religion, might want to voice their concern against any issue that threatens their existence, for which elections are one of the best tool provided under constitution. It is through the elections they are given a possibility to voice their views either by electing someone as their representative or by pressurising the political parties to consider their views. The conclusion of the majority, in its aim to thwart unhealthy influence of religion in elections, has completely ignored the need for sufficient latitude in the interpretation of the provision so that such legitimate concerns are not curtailed. In this light, the overt reliance of the majority view upon the purposive interpretation is not right, since the inherent conflict that the resultant interpretation has with certain fundamental rights under Constitution of India. Surprisingly the majority has brushed this aside lightly, citing Jamuna Prasad Mukhariya vs. Lachhi Ram (1955) 1 SCR 608, where the similar arguments raised upon objections raised as against Article 19(1)(a) were rejected by the bench. Being a bench of seven judges, which is a rarity on its own, this was a golden opportunity missed by the court to reverse it. In the process the subtle line of difference that must be drawn between its aim to secularise the electoral process and protecting the rights like freedom of speech and expression has been lost.
What is surprising is the fact that the past decisions of the Supreme Court, which were considered and rejected in the present case, offers the apt perspective in this regard. The Supreme Court, in the case of Jagdev Singh Sidhanti v. Pratap Singh Daulta (1964) 6 SCR 750, perfectly draws the subtle distinction between using such parochial considerations for ulterior motives and a legitimate use as part of electoral process that I am advocating here. The relevant passage is extracted here

“The corrupt practice defined by clause (3) of Section 123 is committed when an appeal is made either to vote or refrain from voting on the ground of a candidate’s language. It is the appeal to the electorate on a ground personal to the candidate relating to his language which attracts the ban of Section 100 read with Section l23(3). Therefore it is only when the electors are asked to vote or not to vote because of the particular language of the candidate that a corrupt practice may be deemed to be committed. Where, however for conservation of language of the electorate appeals are made to the electorate and promises are given that steps would be taken to conserve that language, it will not amount to a corrupt practice.” [Emphasis Supplied]

The Dissent

In all those rejoicing and unexpected attention paid to the majority view is the feeble voice of the dissenting judges, which was penned by Justice Dhananjay Chandrachud. The dissent strikes a distinct note in stark contrast with the majority view by providing the appropriate context in which the issue must be adjudicated to begin with. In a multicultural society like India it is impossible to divorce social institutions like religion, culture, language and other formative identities while considering such issues. Above all, if one looks at the Constitution, unlike other foundational documents around the world, it is these elements that are sought to be protected in some form or the other. This is in spite of the fact that its ultimate aim is to promote secular fabric for the society without such differences. The drafters of the constitution recognised this inner conflict but knew well that for any member of the society to become a part of the society it is vital to recognise and protect legitimate aspirations of his identity, be it cultural, religious or linguistic. This assurance by the state can only be ensured when they are given protection from any encroachment upon its safe practice while also providing a chance for them to voice their concern. It also includes the opportunity for them to be a part of the governing structure of the society, which can but be a result of social mobilisation. An oppressed class of citizenry can be mobilized only on those terms upon which they fell oppressed in the process of election; it would be silly to suggest anything otherwise. The fundamental rights in all its form were made with the sole intent of providing this to all the members of the society, in spite of the apparent conflict that it could cause with the constitutional ideals of secularism amongst others, resulting in forging of an unique constitutional identity. Reading it independent of this forged identity would render it to mere abstraction. This has been rightly pointed out in the dissent in the following words

"Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far-fetched to assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy."

The majority view has committed a grievous error in extending its misconceived notions of secularism here. The concept of secularism, at least in the Indian context, cannot be read to mean a society that is devoid of institutions and differences like religion and language. Here, it would mean a cohesion that coexists with such differences. It is not an anachronism in a democracy as it is portrayed in this decision.
This unfortunate decision is another addition to the series of regressive judgements that the Supreme Court has delivered in the recent times. Being a judgement delivered by a large of bench of seven judges it is going to prevail for a long time in the future. However, I put my belief upon the resilience of the Supreme Court to get back again, given its glorious history.

Arbitrability of Disputes and Alternative Standard of Tests

While the importance of Arbitration as an important avenue for resolution of a dispute has consistently been emphasised by the Indian judiciary through various judicial pronouncements there still exists considerable lacunae in the interpretation offered towards the advancement of this thought process. In more than a few instances, the intervention of judiciary has proved to be an unwanted thorn in ensuring the much-needed consistency within the discourse. The necessity for coherent and logical pronouncements, commensurate to the changing needs of the time, cannot be emphasised anymore. Yet, there exist several glaring voids within this discourse that require some attention. One such important issue is the ‘arbitrability’ of disputes, which goes to the very root of the arbitral process. While it is axiomatic to state that not all disputes can be arbitrated, the question over species of subjects that falls under the genus of non-arbitrability has given rise to unforeseen quandaries restricting the scope of arbitration at times.
Typically, the question over arbitration can arise at three stages in arbitration[1]

1. On an application to stay arbitration.
2. When the opposing party questions the authority of the tribunal to entertain the subject matter of arbitration.
3. On an application challenging the award.

In the Indian context, the above-mentioned situation arises under Section 9, Section 16 and Section 34 respectively.
The piquant question though came up for consideration several times before the judiciary, it was in the landmark decision of Booz Allen and Hamilton Vs. SBI Home Finance Limited and others (2011) 5 SCC 532 that an attempt was made to rationalise the issue while analysing the true scope of the problem involved. The primary question that was considered by the bench in the case was to adjudicate the true scope and import of the term arbitrability of a subject matter. In other words, what are the subject matters that cannot be adjudicated through a private arbitration due to its inherent nature and what is the framework upon which the arbitrability of a subject matter can be tested?
Commenting on the ability of an arbitral tribunal to adjudicate certain disputes it states that ‘every civil or commercial dispute, either contractual or non-contractual and which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless it is excluded either expressly or by necessary implication.’ The express or implied exclusion stated in the decision is based on the limitation imposed due to overarching public policy considerations. Furthermore, the decision enunciates several examples of non-arbitrable disputes, which are

1. disputes relating to rights and liabilities which give rise to or arise out of criminal offences;
2. matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody;
3. guardianship matters;
4. insolvency and winding up matters;
5. testamentary matters (grant of probate, letters of administration and succession certificate); and
6. eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.

The framework upon which the list is enunciated is the nature of rights that is sought to be enforced. The primary test prescribed is whether the subject matter of reference relates to action in rem, in the case of which it would fall outside the scope of powers provided to an arbitral tribunal under the Arbitration Act. The test restricts those rights, adjudication of which shall affect the rights of third parties who are not privy to the arbitration agreement. The underlying principle for such a restriction is that such rights in rem come within the protection offered by a state as its duty towards its citizenry. The sovereign duty to enforce such rights cannot be delegated to a private adjudicatory forum, the delegation of which would go against the public policy. Hence, applying this test, only in personam rights can be referred to arbitration.
While this may sound straightforward enough as a solution to determine the arbitrability of a subject matter, the subjective nature of the test makes it a tool which can be applied rather too liberally leaving much scope for restricting the subject matters which can be arbitrated. This can prove counter-productive for the whole arbitration eco-system. An example can be had when one looks at the widely fluctuating decisions rendered by the Supreme Court over the arbitrability of issues involving fraud in an arbitration agreement, especially in international commercial arbitration. In the case of World Sport Group (Mauritius) Ltd. Vs. MSM Satellite (Singapore) Pte. Ltd. AIR 2014 SC 968 for the first time it was ruled that disputes involving fraud are not inconsistent with jurisdiction conferred on an arbitral tribunal in an international commercial arbitration. For the domestic arbitration involving claims of fraud similar inconsistency still prevails, however, with the passage of time a high standard has been developed that must be satisfied to refuse a matter to arbitration. For an arbitration agreement to be held as inapplicable the court must find that there are very serious allegations of fraud which make a virtual case of a criminal offence or where allegations of fraud are so complicated that it becomes absolutely essential that such complex issues can be decided only by a civil court.[2] This absolute standard has come to be recognised consistently in various judicial pronouncements.
As mentioned earlier, the ambiguity of this test is primarily due to its subjective nature, which provides much leeway to take away many subjects from the scope of arbitration. Going merely by this test, if, for an example, when a dispute involves enforcement of intellectual property rights at the first blush it can easily be rejected as a right in rem and hence incapable of being arbitrated. However, when one takes into consideration the nature of reliefs sought for, in most cases, it can easily be distinguished from the enforcement in rem IP rights. The observation made by Raveendran J. in the Booz Allen (Supra) case acquires significance here.
“Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to subordinate rights in personam arising from rights in rem have always been considered to be arbitrable.”
The problem arises when the distinguishing features of such subordinate rights which are sought to be enforced is not taken note of and a blanket assessment of test prescribed in Booz Allen is preferred, restricting the scope of arbitration clauses. It would be too broad a proposition to state that any dispute involving rights in rem due to its inherent nature are incapable of arbitration. Whenever such disputes arise it will be prudent to give a widest possible interpretation to the arbitration clause to see whether the dispute falls within its scope or not, to further the cause. A recent decision of Eros International Media Limited Vs. Telemax Links India Pvt. Ltd. and Ors. (Suit No. 331 of 2013) by Bombay High Court articulates this in the best possible manner. Drawing analogy striking between the IP rights like Trademark et al and other property rights the judgement concludes that albeit all those rights are in a sense a protection conferred to an individuals’ right over a property against the whole world, the enforcement of such rights are still done against individuals, making it an in personam right subordinate to the in rem rights conferred upon them.
The contrary parochial interpretation with a blanket assessment has been offered by a recent pronouncement of Supreme Court in the case of Shri Vimal Kishor Shah & Ors. Vs. Mr. Jayesh Dinesh Shah & Ors. (Civil Appeal No.8164 of 2016). In this case, the issue that arose for consideration was the arbitrability of an issue arising out of trust deed. While the decision follows the right path in its reasoning to exclude disputes that are exclusively to be dealt with under the mechanism provided under the Trusts Act, an opportunity to distinguish between those set of rights that can be arbitrated for being subordinate to the rights and responsibilities conferred under the Act.
In order to resolve such inconsistencies, as noted above, it is imperative that the standard of test prescribed in Booz Allen (Supra) should be modified to test the dispute involved upon the nature of reliefs sought rather than mechanically testing the subject as a whole in its widest ambit. Such moves end up restricting the scope of arbitration act as a whole. The decision of Bombay High Court discussed above is a welcome move towards ensuring the achievement of real intent behind the Arbitration and Conciliation Act.


[1] Russel on Arbitration, 23rd Edition at Page 15.
[2] A. Ayyasamy Vs. A. Paramasivam and Ors. Civil Appeal Nos. 8245-8246 of 2016

CAUVERY: A SERIATIM OF NEVER ENDING CONFLICTS

As the acrid tussle that is going on between Tamil Nadu and Karnataka, over sharing of interstate river water, is stooping down to physical violence by a few, it has raised all sorts of debates justifying either of sides. However, in most cases they are far from being well informed or based on logic. All sorts of information are being shared in social media that possess none of the signs of reliable information. More than often, they aim at stoking the emotional chord of the people to create acrimony amongst the people from both the states. Though on more than a few occasions I wanted to give a reply to them about this I was not sure about my knowledge about the whole problem myself. A basic search into the orders that came to be passed by the Water Disputes Tribunal and the Supreme Court of India where the Tribunal’s order has been challenged enlightened me a great deal. I began with the Supreme Court’s orders dated 05.09.2016 & 12.09.2016, which opened up the doors for present issue and traced myself back to the Tribunal’s order dated 05.02.2007. The sheer size of these orders and documents is mind-boggling. For giving an idea, the order of the tribunal itself is close to 1000 pages, while the depositions and other supporting documents filed by the states party to the dispute easily cross the mark of 50,000. I must confess that I haven’t even scratched the surface when I claim that I read these orders before writing the present post. I picked only those portions of the final order passed by the Tribunal that matters the most, which in itself ran into several hundred pages. I have attempted to give a summary of the dispute from its historical origin to the present day proceedings here for an easy read. I have excluded many happenings with the sole intention of making this succinct.

History

Agreements of 1892 & 1924

The entire gamut of arguments over the rights of these states over the Cauvery water hinges upon two agreements entered into between the states of Karnataka and Tamil Nadu or Mysore and the State of Madras, as they were known at that point in time. The first agreement was signed in the year 1892 (available here at Page 277) to regulate many major rivers and minor streams that are common to both the states. One of the important aspects of this agreement is that Government of Mysore must obtain the previous consent of Madras Government before constructing any “New Irrigation Reservoirs” or any “New Anicut” across the rivers and major and minor streams listed in the agreement itself. If Mysore Government wanted to build any such structures, consent for which must be taken before the construction actually begins, they must provide full information regarding the proposed work to Madras Government. This might seem to be an imbalanced bargain in favour of Madras Government. However, the catch is where the subsequent clause dictates that Madras Government shall not refuse such consent except for the protection of prescriptive rights that already stands acquired and actually exists. I found this to be a very vague way of defining the rights of the Madras Government under the agreement. Since there was no prior agreement or within 1892 agreement itself that defined any of those rights. It all came down to one’s own common sense and principles of fairness to regulate it. In pursuance to this agreement, Mysore sought the permission of Madras to construct Krishnarajasagar dam across Cauvery, over which disputes arose as to the terms under which the dam was to be constructed. An arbitrator was appointed to resolve the disputes whose decision again was appealed to the Secretary of State by Madras. After prolonged negotiations, a common ground was arrived at, which resulted in the 1924 agreement (Available here at Page 347). The major result of the agreement is that it contained the terms under which Mysore Government were to construct the Krishnarajasagar dam across the River Cauvery and to provide for the extension of irrigation in both the States utilising the flows in the River Cauvery. The agreement also contained a clause stating that at the 50 years from the date of execution of the agreement certain clauses can be reconsidered based on the experience gained and of an examination of the possibilities of further extension of irrigation within the territories of respective governments.

The real disputes arose when Karnataka unilaterally decided to build irrigation projects across the tributaries of Cauvery without the prior consent of Madras as envisaged under the agreements, which are:

1. Kabini,
2. Hemavathy,
3. Harangi, and
4. Suvamavathy

Karnataka continued with the projects though the Government of India and the Central Water Commission did not clear these projects and the Planning Commission has also not approved these projects for plan assistance, the Government of Karnataka proceeded with these projects in stages from their own funds under Non-Plan expenditure.

No agreeable formula was found even after prolonged negotiations, with the Central Government playing the arbiter. With no solution on the horizon, in 1970 Tamil Nadu sought the Central Government to refer the matter to a tribunal for final resolution, under Section 3 of the Inter-State Water Disputes Act of 1956.[1] It is to be noted that while all these happened in the foreground, Karnataka proceeded with the projects simultaneously. Even after a passage of a considerable amount of time, the Central Government failed to form a tribunal for the adjudication of the dispute. It was not until 04.05.1990[2] some positive movement was shown by Central Government, when Supreme Court in a Writ Petition filed by Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam[3] rapped the Union for not constituting a tribunal to resolve disputes. The Court directed the Central Government to fulfill its statutory obligation and notify in the official gazette the constitution of an appropriate tribunal for the adjudication of the water dispute, further directing that the same should be done within a period of one month. The Union Government, to comply with the order, constituted the Cauvery Water Disputes Tribunal through a notification dated 2^nd June 1990.

Cauvery Water Disputes Tribunal

While the notification for the formation of a tribunal was only the beginning of a process that was more than a decade long. In the course of its existence, the tribunal was reconstituted a couple of times, once due to the resignation of a member and the other time due to the demise of a member. The process was so complicated and the documents involved were so voluminous that tribunal in its final decision itself notes that The total pages of depositions on behalf of different States and Union Territory of Pondicherry come to about 10,000 pages. So far, the documents and publication brought on record by the different party States in support of their respective claims ran into more than 50,000 pages. The sheer volume of paper work itself delayed the process considerably apart from the other extraneous factors like for one instance when the arguments in respect of several issues by different riparian States had virtually been concluded before the sad demise of Mr. Justice S.D. Agarwala. Because of the reconstitution of the Tribunal, the arguments in respect of those issues were again heard with Hon’ble Mr. Justice Sudhir Narain, as a new Member. After a decade and a half long process of depositions and other things, the arguments and replies on behalf of the States concluded on 21.04.2006. Thereafter, on 27.7.2006, the order was reserved. It is to be noted that the Tribunal passed certain interim orders for the sharing of water until the time the process of adjudication was concluded. Disputes arose over those orders as well between Tamil Nadu and Karnataka.

Interim Order

As an interim measure after the formation of the tribunal, Karnataka was directed to release 205 TMC of water into Mettur reservoir of Tamil Nadu in a water year (1^st June to 31st May) with monthly and weekly stipulations. Karnataka government in defiance of the orders promulgated an ordinance and refused to release the water as directed. Since negotiations to implement the order fell through in spite efforts by Central Government, President using his powers under Article 143 of Constitution of India referred the matter to Supreme Court of India with the following questions

1)      Whether the Ordinance and the provisions thereof are in accordance with the provisions of the Constitution;

2)  (i) Whether the Order of the Tribunal constitutes a report and a decision within the meaning of Section 5(2) of the Act; and

(ii) Whether the Order of the Tribunal is required to be published by the Central Government in order to make it effective;

3)      Whether the Water Disputes Tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute.

The Supreme Court gave its answer in the following terms[4]

•   Question No.1 The Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 passed by the Governor of Karnataka on 25th July 1991 (now the Act) is beyond the legislative competence of the State and is, therefore, ultra vires the Constitution.
•    Question No.2

(i)     The order of the Tribunal dated June 25, 1991, constitutes report and decision within the meaning of Section 5 (2) of the Inter-State Water Disputes Act, 1956.

(ii)       The said order is, therefore, required to be published by the Central Government in the Official Gazette under Section 6 of the Act in order to make it effective.

•    Question No.3 A water disputes tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute when a reference for such relief is made by Central Government.

Final Order

Answering close to 50 questions to the disputes, the final decision was given by the tribunal and notified by the Central Government in the year 2007. The decision analysed the whole problem by going through its almost 150-year-old history and technical aspects threadbare to arrive at the final solution. The decision analyses separately the claim of each state including the claims of Kerala and Pondicherry, as riparian states. Shorn of other conclusions arrived at but are irrelevant to the present post, the decision of the tribunal in its effect finally precipitates to the following points

1. Against the contention of Karnataka, the agreements of 1892 and 1924 were held to be valid. However, the agreement of 1924 provides for review of some of the clauses after the passage of 50 years i.e. 1974. Accordingly, the tribunal reviewed and re-examined various provisions of the agreement.
2. The decision of the tribunal was to supersede both the agreements of 1892 and 1924.
3. The total utilizable quantity of water of Cauvery was quantified at 740 TMC (Thousand Million Cubic feet).
4. In case the yield of Cauvery basin is less in a distress year, the allocated shares shall be proportionately reduced among the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry.
5. The release of water of Tamil Nadu by Karnataka was broken down to monthly intervals during a normal year and quantity of water to be released in each the specified months were provided in the decision.

The Arithmetics of Allocation

After taking into account all relevant factors like the area of land under irrigation, soil percolation rate and various other scientific factors the tribunal allocated the available water of 740 TMC in the following manner.

			States		Total
	Kerala	Karnataka	Tamil Nadu	UT of Pondicherry
1.       Area	1.93	18.85	24.71	0.43	45.92
2.       Irrigation requirement	27.90	250.62	390.85	6.35	675.72
3.       Domestic and Industrial water requirement projected for 2011	0.35	1.85	2.73	0.27	5.20
4.       Water requirement for environmental protection	-	-	-	-	10.00
5.       Inevitable escapages into sea	-	-	-	-	4.00
6.       Share in balance water	1.51	17.64	25.71	0.22	45.08
Total	29.76	270.11	419.29	6.84	740.00
Say	30.00	270.00	419.00	7.00	726+14 =740

It is significant here to note that the specific provisions were made available to other aspects such as requirements of the industries, requirement for environmental protection apart from the irrigation requirement. The calculations provided may seem to be inequitable in pure terms. In the allocation, Tamil Nadu (419 TMC) seems to have more share than Karnataka (270 TMC). Out of the 419 TMC allocated as Tamil Nadu’s share of Cauvery water, 237 TMC is generated within Tamil Nadu in its basins. Hence, Karnataka is supposed to ensure the balance 182 TMC of water flow to Tamil Nadu from its dams.

Compliance with the Order

Even after the notification of the order the dust did not settle down. The acrimony between Karnataka and Tamil Nadu continues to hang in the air. Problem arose when Karnataka refused to release water as per the tribunal’s decision whenever there was a deficiency in the rainfall due to local political compulsions. The most important part of the tribunal’s decision is where the states are directed to share the deficiency due to reduced yield in a particular year (which it calls as ‘distress year’) in proportion to their allocated share. In other words, in case the rainfall is short of projections in a distress year, the allocated shares shall be proportionately reduced amongst the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry. Karnataka refused to comply with this principle on multiple occasions, which embittered the relationship between the states further. In fact, this is despite the fact that the tribunal specifically directed for the constitution of an inter-State forum to be called “Cauvery Management Board” shall be established for the purpose of securing compliance and implementation of the final decision and directions of the Cauvery Water Disputes Tribunal. The Board was envisaged be under the control of the Government of India, Ministry of Water Resources. It is in spite of these directions that Karnataka refused to implement the orders.

Another important aspect of the decision is that, though in terms of pure numbers the directions of the tribunal are eminently implementable; it contains various caveats that in long term must be complied with by the states to work out a permanent solution. Rather than a mere solution involving numbers to share the water, the Tribunal in its decision has tried to work out a long-term sustainable framework for the states. The solutions suggested ranges form change in the cropping pattern to encouraging the farmers to use better water management practices to deal with the deficiencies that could arise in the future. Tamil Nadu, if one looks at the history and its stand all throughout these proceedings has maintained its strong stand, while however, has not taken any tangible steps in the gamut of sustainable solutions suggested by the tribunal.

Before the Supreme Court

Unsurprisingly Tamil Nadu took the matter to the Supreme Court for Karnataka’s non-compliance with the decision of the tribunal, where it is pending as of now. Time to time the matter was taken up by the court but no order of any tangible consequence was passed until 05.09.2016 when Karnataka was directed to release 15,000 Cu. Secs. of water for ten days as an interim measure, which resulted in the carnage that we witnessed in Bangalore. It is rather weird if one notices the manner in which the quantity of 15,000 Cu. Secs. was directed to be released. Karnataka as a goodwill gesture assured flows at the Inter-State Border, at the rate of not less than 10000 cusecs per day (about 0.86 TMC), as measured by the gauge station of the Central Water Commission as from 7th September, 2016 to 12th September, 2016. Tamil Nadu on the contrary demanded a total of 20,000 Cu. Secs. of water per day for the sustenance of crops and to protect interest of the farmers. Without any reasoning to back Supreme Court, adopting a middle ground, directed to release 15,000 Cu. Secs.

The violence unleashed by the mobs, when the Karnataka Government decided to comply with the order and release water, is well known. Citing this as a reason Karnataka moved an application seeking a modification of the previous order. The court rapped them for citing such an absurd reason, however, reduced the quantity from 15,000 to 12,000 Cu. Secs. and extending the period till 20.09.2016.[5]

An Amicable Solution

If one looks at the entirety of facts it is plainly visible that the solution provided by the disputes tribunal is well grounded and is based on scientific evidence. The decision is a result of decades worth deliberation and provides for a pragmatic solution for the problems. Unless the party states comes together overcoming parochial political considerations no solution whatsoever can be found. The Supreme Court too must not interfere much in the decision of the tribunal, for it is not competent to adjudicate the highly technical aspects involved. Moreover, any interference on its part is only going to muddle the waters further. A cautious approach must be taken by the court before arriving at any decision in this regard.

Furthermore, legally speaking there arises questions as to the very maintainability of the case filed by the parties. This aspect has been discussed in this article published in The Wire. Even otherwise, Union of India has filed an application and affidavit for impleadment in the case citing that Section 11 of the Inter State River Water Disputes Act, 1956 reads

“Neither Supreme Court nor any other Court shall have or exercise the jurisdiction in respect of any water dispute which may be referred to the Tribunal under the Act.”

The matter is under consideration of the Court; however, no order has been passed in this regard. It would be pragmatic for the court to maintain a hands-off approach in the dispute for the best interests of both the parties.

[1] I am deliberately leaving out many happenings that went on simultaneously to keep this short. Most them related to some proceedings before the Supreme Court over the dispute or about the background negotiations that happened in between the states.

[2] AIR 1990 SC 1316

[3] Writ Petition No.13347 of 1983 

[4]  In the matter of : CAUVERY WATER DISPUTES TRIBUNAL, Special Reference No. 1 of 1991 Decided On: 22.11.1991, reported in AIR 1992 SC 522

[5] Order dated 12.09.2016