The special leave petitions of Karnataka, Kerala and Tamil Nadu against the Cauvery Tribunal’s final order of February 5, 2007 are said to have been admitted by a two-judge bench of the Supreme Court on May 7, 2007 and referred to the chief justice of India for constituting a larger bench in view of the important questions of law involved. The purpose of the present article is not to discuss the issues raised in the petitions but to raise certain preliminary questions.

All three petitions question the allocations made by the tribunal on different grounds; in other words they are virtually appeals against the final order. The first question that comes to mind is, whether such a course is open under law. But, it appears that the petitions were forthwith admitted.

This is puzzling because there is an explicit jurisdictional bar to be overcome at the outset. Article 262 of the Constitution that provides for parliamentary legislation for the adjudication of inter-state river water disputes enables Parliament to bar the jurisdiction of the courts (including the Supreme Court) in such cases. Clause (2) of Article 262 says: “Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in Clause (1).” In accordance with that provision, Section 11 of the Inter-State Water Disputes Act 1956 says: “Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a tribunal under this act.” Perhaps the bar is not absolute; perhaps it can be overcome via certain other constitutional provisions.

... contd.