Federalism

Context: Tamil Nadu government said it would move the Supreme Court over its due share of Cauvery water from Karnataka, as the neighbouring State has refused to share the water with Tamil Nadu.

About Cauvery River

The river has a total length of around 802 km, and a catchment area of 81,155 sq. km, of which 2,866 sq.km. lie in Kerala, 34,273 sq.km. in Karnataka and 44,016 sq.km. in Tamil Nadu.

Flow of Cauvery

• Cauvery, the Ganga of the South, rises at Thalakaveri, in the Brahmagiri range of hills of the Western Ghats, in Karnataka.
• It receives the Harangi which has been dammed North-West of Mysore.
• Two other tributaries-Hemavathy and Lakshmana-theertha join the Cauvery into the Harangi reservoir. 
• The main river continues to flow Eastwards up to Sreerangapatnam and then changes its course South-East wards.
• Then it receives Kabini, an important tributary that originates in the Wyanad district of Kerala.
• Then, it joins with Suvarnavathy and takes a North-Easterly direction, passing the Eastern Ghats at Sivasamudram.
• At Sivasamudram, after flowing through a very narrow gorge, it continues its East-ward journey and forms the boundary between the States of Karnataka and Tamil Nadu for about 64km. 
• Below Sivasamudram, it receives the Shimsha, and then Arkavathy, just before entering the territory of Tamil Nadu.
• In Tamil Nadu, the river Cauvery continues to flow Eastwards up to Hogenakal Falls and takes a Southerly course and enters the Mettur reservoir. 
• It leaves the Eastern Ghats below Mettur and is joined by Bhavani downstream. 
• Cauvery takes a more Easterly course after that and is joined by Noyil, and then by Amaravathy.
• Amaravathy, an important tributary of the Cauvery, has its origin in Kerala, where it is known as Pambar, and carries rich flows in Kerala. 
• Below Tiruchirappalli, the Cauvery splits into two branches, which are controlled by the Upper Anicut. 
• The Northern branch, called the Coleroon flows in a North-Easterly direction to enter the Bay of Bengal near Porto Novo. 
• The Southern branch, however, continues to trek under the name of Cauvery itself. It further divides into Cauvery and Vennar below the Grand Anicut.
• The Cauvery branch descends into the Bay at Pompuhar, North of Tranqobar as an insignificant stream. 

The Dispute between Karnataka and Tamil Nadu 

The Cauvery water sharing dispute, dating back to the British Raj, remains a contentious issue between Karnataka and Tamil Nadu. Many of the districts in both states are dependent on the Cauvery for irrigation.

• The Cauvery water dispute emerged in 1892 between British-ruled Madras Presidency and the princely state of Mysore over water sharing.
• In 1910, the two states began conceptualising the idea of constructing reservoirs to store the river water.
• The 1924 agreement presided over by the British gave Madras Presidency and the Mysore state the right to use surplus water from river Cauvery.
• As per the agreement in 1924, Tamil Nadu and Puducherry would get 75% of the surplus water, while Karnataka would get 23%. The remaining would go to Kerala. 
• There were also restrictions on how much land could be irrigated.

Post-Independence

The challenge of water sharing escalated following the state reorganization in 1956:

• Through the late 20th century, Tamil Nadu was opposed to the construction of dams on the river by Karnataka.
• Karnataka contended that the 1924 agreement's 50-year term expired in 1974, freeing the state from adhering to the regulations, especially since the river originated in the state.
• Between 1960 and late 1980s, Karnataka built four dams on Cauvery – Hemavati, Harangi, Kabini and Suvarnavathy.
• This became a problem for Tamil Nadu as the state had become dependent on Cauvery water especially huge area of agricultural land in the delta area.

Involvement of Supreme Court (SC) and Tribunal  

• Tamil Nadu argued that being the lower riparian state put them in a precarious situation and approached the Supreme Court (SC).
  • Karnataka government’s arguments
    • Karnataka argued that river water sharing should follow international norms to divide the water in equal proportions. 
    • Karnataka proposed a 47% water allocation for each state, with the remaining divided equally between Kerala and Puducherry.
• Tamil Nadu government’s arguments
  • Tamil Nadu wanted to stick to the 1924 agreement. 
• In 1986, Tamil Nadu's farmers urged the SC for a tribunal to address water sharing. 
• In 1990, the SC directed the Centre to establish a tribunal for inter-state water distribution.
  • The Cauvery Water Disputes Tribunal (CWDT) assessed 1980-1990 water inflow to Tamil Nadu. 
  • In 1991, it ordered Karnataka to provide 205 tmcft annual water and cease irrigated land expansion.
  • Karnataka rejected the tribunal’s award and sought an annulment in the Supreme Court. 
• The SC struck down the state’s ordinance attempting to nullify the award and went on to uphold the tribunal’s order.
• After which Karnataka said that the state was facing drought and hence could not release water.
• The 1998-formed Cauvery River Authority (CRA), which included the Prime Minister as Chairperson and the Chief Ministers from four states as members, enforced CWDT's interim order. 
• Cauvery Water Disputes Tribunal in 2007 gave out its final award.
  • CWDT directed Karnataka to release 192 tmcft annually, including 182 tmcft for Tamil Nadu with 10 tmcft for environment, at Billingundlu border. 
  • In a distress year, allocated shares shall be proportionately reduced among Kerala, Karnataka, Tamil Nadu and Puducherry. 

Constitutional provisions 

Part XI of the constitution under the title Relations between the Union and the States provides for Disputes relating to Waters.

Article 262: Adjudication of disputes relating to waters of inter-State rivers or river valleys.

1. Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
2. 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).

Seventh Schedule

Entry 56 of List I: Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.

Entry 17 of List II: Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I.

Provision used by Courts 

• Tamil Nadu filed a preliminary complaint in 2001 of Article 131, in which it stated that interim measures were not effectively regulated. 
• The States of Karnataka, Tamil Nadu and Kerala, disturbed by the decision of the Cauvery Water Dispute Tribunal in 2007, have applied for a special permit pursuant to Article 136. The Supreme Court accepts them.

Article 131: Original jurisdiction of the Supreme Court

Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute

1. Between the Government of India and one or more States; 
2. Between the Government of India and any State or States on one side and one or more other States on the other; 
3. Between two or more States 

Art 136: Special leave to appeal by the Supreme Court

1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. 
2. Nothing in clause (1) shall apply to 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.

Inter-State River Water Disputes Act, 1956

In Pursuant to the power conferred by the Constitution under Article 262, Parliament has enacted the Inter-State Water Disputes Act, 1956. Following are Its main features: 

1.  Filing of dispute: A State Government which has a water dispute with another State Government requests the Central Government to refer the dispute to a tribunal for adjudication.
2. Scope for negotiations: The Central Government, if it is of the opinion that the dispute cannot be settled by negotiation, refer the dispute to a Tribunal.
3. Tribunal and its composition: As laid down by the act It consists of a chairman and two other members, nominated by the Chief Justice of India from among persons who, at the time of such nomination, are Judges of the Supreme Court or High Court.
4. Appointment of Assessor: Central government in consultation with the Tribunal can appoint assessors to advise it in the proceedings before it.
5. Investigation and Report: With the reference being made by the Central Government, the Tribunal investigates the matter and makes its report, embodying its decision. The decision is to be published by the centra government and is to be final and binding on the parties.
6. Bar on Courts: Jurisdiction of the Supreme Court and other courts, in respect of the dispute referred to the Tribunal, is barred.
7. Formulation of scheme: Central Government may frame a scheme, providing for all matters necessary to give effect to the decision of the Tribunal. It can provide for establishing an authority for implementing the scheme. (Section 6A)
8. Dissolution of Tribunal: The Central Government dissolves the Tribunal after it has forwarded its report and the Central Government is satisfied that no further reference to the Tribunal would be necessary.

The River Boards Act 1956

The River Boards Act, 1956, provides for the establishment of River Boards, for the regulation and development of inter-State rivers and river valleys. 

1. Establishment: The Central Government can establish a Board for “advising the Government of state”when a request is received from a State Government or otherwise. 
   1. Establishment: The established board deals in relation to matters concerning the regulation or development of an inter-State river or river valley, or any specified part as notified by the Central Government.
   2. Different Boards may be established for different inter-State rivers or river valleys.  
   3. The Board consist of the Chairman and such other members as the Central Government thinks fit to appoint. 
   4. The appointed member must have special knowledge and experience in irrigation, electrical engineering, flood control, navigation, water conservation, soil conservation, administration or finance. 
2. Functions of the Board: As set out in the Act, they are very wide, covering conservation of the water resources of the inter-State river, schemes for irrigation and drainage, development of hydro-electric power, schemes for flood control, promotion of navigation, control of soil erosion and prevention of pollution.
   1. All functions of the Board are advisory and not adjudicatory. 
   2. The Board is directed to consult all the Governments concerned and to secure agreement among such governments, as far as possible. (Section 14(3))
3. Formulation of scheme: The Board is empowered to frame schemes, obtain comments from the interested Governments and finalise a scheme. (Section 15(2)).
   1. The schemes so framed are not mandatory to implement, they are of an advisory nature. (Section 15(5)). 
4. Central Assistance: The Central Government can “assist the state Governments interested”, in taking such steps as may be necessary, for execution of the scheme. (Section 15(6))
5. Arbitration: The act provides for arbitration in the listed matters where any dispute or difference arises between two or more Government interested. (Section 22)

Context: The Kerala Assembly passed a resolution urging the Centre to rename the state as “Keralam” in the Constitution and all office records.

Arguments by Kerala Government to change the name 

• The name of the State is Keralam in Malayalam language. 
• The need to unite Kerala for the Malayalam-speaking communities has been strongly evident since the time of the national freedom struggle and even reflected in the linguistic reorganisation of the states.

Origin of the name 

• The earliest epigraphic record that mentions Kerala is emperor Asoka’s Rock Edict II of 257 BC. The inscription refers to the local ruler as Keralaputra (Sanskrit for “son of Kerala”).
• About ‘Keralam’, it is believed to have originated from ‘Cheram’.
• The origin of the term Cheram could possibly be from the root ‘cher’, which means to join. This clears the meaning in the compound word ‘Cheralam’, in which alam means region or land.

Constitutional Provisions

According to constitution of India parliament has the power to change the name of a state under Article 3. 

Article 3 of the constitution 

Formation of new States and alteration of areas, boundaries or names of existing States:

Parliament may by law— 

1. Form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State 
2. Increase the area of any State 
3. Diminish the area of any State 
4. Alter the boundaries of any State
5. Alter the name of any State

- Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States.

- Provided the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.

- According to Article 4 which deals with Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters provides that law made under Article 2 and 3 shall not be deemed to be an amendment of this Constitution for the purposes of article 368.

Procedure to change the name of a state 

• A bill with the intent to change the name of the state can be presented in Parliament or State Legislative Assembly of the concerned state for such alterations. 
• In Parliament, the bill cannot be presented without a recommendation from the President. 
• The bill should be represented to the Legislative Assembly of the state concerned to present its views on the bill within the prescribed time period. This Consultative mechanism provided helps in maintaining the spirit of federalism
• The views or suggestions of the State Legislature are not binding to the President or The Parliament. After receiving the suggestions of the State Legislative Assembly or after the expiration of the limited time period the bill goes back to Parliament. Then the bill gets further deliberated upon in Parliament.
• The bill, like any ordinary bill, must be passed with a simple majority.
• The bill is next sent for assent to the President.
• After the approval is given by the President. The Act will be enforced, and the name of the state will be changed.

Context: The Supreme Court will decide the constitutionality of the Presidential Orders that removed Jammu and Kashmir’s special constitutional status under Article 370.

Article 370

Article 370 was inserted in the twenty-first part of the constitution that proclaimed it to be Temporary, Transitional and Special Provision.

• It provided for a special status to Jammu and Kashmir, which was granted to it through the Presidential Order of 1954.  
• According to it Jammu and Kashmir have a constitution of their own. 
• The Centre must take the concurrence of the state's constituent assembly before passing any legislation or an act on the state. 
• The boundary of the state and name cannot be altered under Article 3 of the Indian Constitution.
• The President is empowered to make an order to amend or abrogate the article, but he can only do this with consent of the state's constituent assembly.
• The amendment concerning Article 368 will only be applicable when it is applied by the President's order. 
• In Article 370(3), the President may declare Article 370 to be inoperative but for this he requires the consent of the constituent assembly of the state. 

On 5 August 2019, the Government of India issued a Presidential Order superseding the 1954 order and making all the provisions of the Indian constitution applicable to Jammu and Kashmir. 

The order was based on the resolution passed in both houses of India's parliament. A further order made all the clauses of Article 370 except clause 1 to be inoperative.

Issue with abrogation 

• State of J&K historically represented a unique relationship unlike princely states like Hyderabad, Junagarh etc. which integrated into the Union.
• Article 370 cannot be revoked, as concurrence of constituent assembly was necessary according to the constitution of India.
• The Governor took on the role of the ‘State government’ after keeping the State Legislative Assembly in suspended animation who lack the representation of state.
• There is a fear that this will threaten the local culture of the state by increasing the inflow from the other states. 

Arguments in favour of abrogation 

• The Constituent assembly is not a permanent body like parliament so the provision making the Constituent Assembly’s ‘recommendation’ necessary before abrogation has no application at present.
• Article 370 was mentioned in the Constitution only as a “temporary” provision and not with other permanent features.
• This abrogation will realise the true spirit of unity and lead to the economic benefits and development of the J&K state.
• This may decrease the separatism and terrorism tendencies prevailing in the state.

Court cases 

Sampat Prakash v. Jammu & Kashmir (1968)

The Supreme Court said:

• Article 370 will only dissolve upon the recommendation of the Constituent Assembly under Article 370(3).
• The power to issue orders includes the power to add, amend, vary or rescind them.

SBI v. Santosh Gupta (2016)

• The Supreme Court overturned the J&K high court judgment, holding that Parliament had legislative competence to enact the provisions because India’s Constitution is superior to Jammu & Kashmir’s.
• The court held that Article 370(1)(b) does not limit Parliament’s power because the Constitution of India is applicable to Jammu & Kashmir via the 1954 Presidential Order.