Cauvery River Water Sharing Dispute - Will Karnataka Assembly Stand Invite Contempt Proceedings?

Will Karnataka Assembly Stand Invite Contempt Proceedings?

On September 20, 2016, the Supreme Court directed Karnataka to release 6,000 cusecs of water per day to Tamil Nadu. This was to be done till the next date of hearing, ie, September 27. On the same day the Karnataka cabinet deferred the release of water pending a special session of the legislative assembly. The decision came on the heels of an all-party meeting, where it was unanimously stated that the court’s order was "unimplementable".

On September 23, 2016, the Karnataka Legislative Assembly passed a resolution noting that the combined storage in the four reservoirs had reached alarmingly low levels. It was resolved that no water would be withdrawn from the said reservoirs except for the drinking water needs of the state. Effectively, the resolution refuses to follow the diktat of the Supreme Court.

The legal status of such a resolution is ambiguous. A division bench of the Madras High Court, in K Anbazhagan v. TN Legislative Assembly, AIR 1988 Mad. 275, has held that a resolution, expelling a member from the assembly, is not law under Article 13 of the Constitution. The legal status of such resolutions was also discussed by the Supreme Court in Babulal Parate v. State of Bombay and another, AIR 1960 SC 51.

Though, a resolution does not have the status of legislation, courts have frequently inquired into the validity of the same. Moreover, such resolutions do give a sense of the feeling of the House.

The upshot of this resolution is that Karnataka has a government which is answerable to the Legislative Assembly. This Assembly is of the considered opinion that no water should be released. At the same time, Government is bound by the rule of law and the order of the Supreme Court, which mandates that 6,000 cusecs of water be released till September 27,2016

It is interesting to note that a bench of three judges of the Supreme Court (including Justice UU Lalit, who is also a member of the bench hearing the Cauvery dispute) in Gyani Chand v State of Andhra Pradesh (delivered on September 20, 2016) has held: "It would not be fair on the part of a court to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt.”

Article 144 of the Constitution of India mandates that all authorities - civil and judicial - within the territory of India act in aid of the Supreme Court. This read with Article 129 and Article 142 of the Constitution is a vast repository of power and enables the Court to pass a range of orders in order to secure compliance of its orders. However, in the light of the decision delivered in Gyani Chand, it would be fascinating to see whether the Supreme Court initiates suo-motu contempt action in order to ensure the compliance of its order.

Going by past precedent in this case, the apex court is more likely to wait for the Tamil Nadu Government to initiate contempt proceedings. The Court can then direct a full hearing to ascertain whether contempt is made out. This was the course adopted in 2002, when under similar circumstances, a bench presided over by Justice BN Kirpal initiated contempt proceedings against the Karnataka Chief Minister Shri SM Krishna. The proceedings lingered on for years. They were later dropped, long after Krishna had ceased to be active in Karnataka politics.