STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS.

The Judgment of the Court was delivered by DIPAK MISRA, J. I. In these Civil Appeals the assail by the States of Karnataka, Kerala and Tamil Nadu is to the final order dated 05.02.2007 passed by the Cauvery Water Disputes Tribunal (for short, "the tribunal") constituted under the Inter-State River Water Disputes F Act, 1956 (for short, "the 1956 Act"). It is apt to note here that certain interlocutory applications were filed by the State ofTamil Nadu for release of water highlighting the scarcity of water faced by it and further laying stress on the predicament of the farmers. This Court had passed certain interim directions on 27•h of September, 2016 while dealing with I.A. Nos. 15 and 16 of 2016. The Court sought the assistance of the learned G Attorney General for India to find out the view of the Union of India, whether it would facilitate a discussion so that the impasse between the two States would appositely melt. The matter was adjourned to 30'h of September, 2016 and on that day, Mr. Mukul Rohatgi, learned Attorney General for India apprised this Court that the meeting had been held H

p. 508 Copy page pinpoint

A under the Chairmanship of Union Minister of Water Resources, River Development and Ganga Rejuvenation and the Minutes of the said meeting were produced before the Court. The Minutes indicated that despite best efforts to make both the States to arrive at a consensus on release of Cauvery water, they took such divergent stands as a consequence of which nothing could be resolved. After noting various B aspects, the Court enquired from the learned Attorney General with regard to constitution of the Cauvery Management Board to which he responded thatthe Board would be constituted on or before 4m of October,

2016. Keeping in view the submissions, the Court directed the States, namely, Tamil Nadu, Karnataka and Kerala and Union Territory of c Puducherry to nominate their respective representatives as per the final order passed by the tribunal. The earlier order to release 6000 cusecs of water was reiterated. The matter was adjourned to 61h of October, 2016.

2Copy pinpoint2. Before the matter could be listed on the date fixed, the learned Attorney General for India mentioned the matter on 03.10.2016 that D Union of India had sought for some modification of the earlier order. The matter was taken up on 4'h of October, 2016. On that day, the Court noted that the order passed by it relating to release of water had been complied with. Thereafter, it adverted to the I.A. 18 of2016 which had been filed on behalf of the. Union oflndia seeking modification of the orders dated 20'h of September, 2016 and 30'h of September, 2016. E After reproducing the prayer, the Court dwelled upon the submissions of Mr. Rohatgi, learned Attorney General for India, Mr. F.S. Nariman and Mr. Shekhar Naphade, learned senior counsel appearing for the States of Karnataka and Tamil Nadu respectively and thereafter passed the following order:- F "It is the submission of Mr. Rohtagi that as it is a debateable issue; -the Court may not advert to the issue ofreview or recall but defer it to be considered at the time of the final disposal of the appeal. As advised, at present, we think it appropriate to defer the same. G At this stage, we are obliged to state that in course ofhearing, we asked Mr. Nariman, learned senior counsel that the note he has filed (which we have reproduced hereinabove) covers the time till 6.10.2016 and the appeals can be heard as directed earlier on 18.10.2016 and, therefor1:, what should be the arrangement for the said pe~iod. Mr. Nariman submitted that he has no

STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS. 509 fDIPAK MISRA, J.l

instructions in the matter and he does not intend to make any statement in that regard. Thereafter, we enquired who would be in a position to obtain instructions from the State of Karnataka and Mr. Mohan and Mr. Raghupathy, appearing for the State sought some time to obtain instructions. As suggested by us, the matter was adjourned by half an hour and we took up the matter at 3.20 B p.m. At 3.20 p.m., Mr. M.R. Naik, learned Advocate General forthe State ofKarnataka has filed a note which reads as follows: "In response to the Hon'ble Court's query and in view of the Hon'ble Court suggesting that the pending !As and objections c to the Supervisory Committee's recommendations cannot be heard before 18th October, 2016 and taking into account the · drinking water requirement in the State, it wil 1not be possible to release water at the inter state border Biligundlu, of a quantity not more than 1500 cusecs per day on an average limited for a period of 10 days from 7th October, to 16th October, 2016." D Mr. Naik and Mr. Mohan submitted that from 5.09.2016 to 30.09.2016, State ofKarnataka has released 17.5 TMC of water. The said aspect has been disputed by Mr. Naphade after obtaining instructions. According to him, the State ofKarnataka has released 16.9 TMC of water. Learned senior counsel for the State of Tamil E Nadu would submit that the State ofKarnataka is in deficit of 4.6 TMC of water forthe month of September and State ofKarnataka under the final order of the Tribunal is required·to give 22 TMC of water for the month of October. If the note of the State of Karnataka is taken into consideration, 3.1 TMC of water will be F released between 1.10.2016 to 6.10.2016. The learned Advocate General submitted that he has filed the note after obtaining instructions. Mr. Nariman would contend that this Court should confine the release to the instructions obtained by the learned Advocate General as a real plight faced by the inhabitants of State of Karnataka. G Before we enter into the said arena, we think it appropriate to dwell upon the facet relating to have a report pertaining to the ground reality in both the States relating to the Cauvery basin. Mr. Rohtagi, learned Attorney General submitted that in paragraph 15 of the IA No.18 of 2016, he has given certain suggestions. H

p. 510 Copy page pinpoint

A Paragraph 15 reads as follows : "(15) it is submitted that it would be in the fitness of things that a High Powered Technical Team is appointed by the Chairman of the Supervisory Committee who is the Secretary of the Ministry of Water Resources. The composition of the Technical Team B would Shri G.S. Jha, Chairman/Member, Central Water Commission (CWC), Government of India (who would be the Chairman of the said Team), Shri Syed Masood Hussain, Member (CWC), Shri R.K. Gupta, Chief Engineer (CWC) and such other experts as decided by Secretary, Ministry of Water Resources in consultation with Chairman, CWC to proceed immediately to the c site so that an inspection of the entire Basin is done for assessing the ground realities and prepare a report forthwith for being placed before this Hon'ble Court. This Technical Team will inspect the entire Basin, make an assessment of the entire issue, prepare a report forthwith within D 30 days thereof. lt is found that Karnataka has the following reservoirs: (i) Hemavathi (ii) Harangi E (iii) Krishan Raj Sagar (iv) Kabini The State of Tamil nadu has the following two reservoirs: (i) Mettur (ii) Lower Bhavani Dam F (iii) Amaravati" Mr. Naphade, learned senior counsel appearing for the State of Tamil Nadu submitted that he has no objection for the same but it should include a technical person from each of the State and the Chief Secretary of the States. Mr. Naik, learned Advocate General G for the State of l):arnataka also acceded to the same. In view of the aforesaid, we direct the.technical team headed by Mr. GS. Jha, Chairman, Central Water Commission (CWC), Government of India shall be constituted. It shall have, Shri Syed Masood Hussin, Member, CWC, Shri R.K. Gupta, Chief Engineer, CWC H and a Chief Engineer or any competent authority nomim1ted by

STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS. 511 [DIPAK MISRA, J.]

the State of Karnataka and State of Tamil Nadu and the Chief A Secretaries or their nominee of both the States. Mr. G. Prakash, learned standing counsel for the State of Kerala submitted that a Chief Engineer shall also be included in the team. Mr. Nambiar, learned senior counsel appearing for the Union Territory of Puducherry also submitted that a Chief Engineer-from Puducherryc B shall also be included in the team. It is so directed. _They shall also be included in the team. The said team shall go to the area in question and submit a report relating to the ground reality before this Court on 17. I 0.2016. Needless to say, the report shall be served on the learned counsel C for the parties prior to that. Let the I.As. and appeals be listed on 18. l 0.2016. Needless to say, the I.As., objections thereto ari'd the report shall be considered on 18.10.2016. Registry is also directed to list the appeals on that day. D As far as the interim arrangement is concerned till 18.10.2016, we direct that the State ofKarnataka shall release 2000 cusecs of water from 7.10.2016 till 18.10.2016."

3Copy pinpoint3. On J 81h of October, 2016, the learned Attorney General being assisted by learned Additional Solicitor General filed the report of the E Committee which pertained to social aspects and technical aspects. It is worthy to note that the Committee had not suggested anything with regard to quantity of water that could be released by the State ofKamataka. At that point of time, learned Attorney General submitteQ that the appeals, by special leave, preferred by the States, namely, Tamil Nadu, Karnataka and Kerala are not maintainable. The submission of Mr. Rohatgi was echoed by Mr. A.S. Nambiar, learned senior counsel appearing for the Union Territory of Puducherry. In view of the aforc~aid submission, it was decided to hear the maintainability of the appeals and the interim order passed on earlier occasion was directed to be continued until further orders. The issue of maintainability ofappeals was heard and ultimately the order was reserved.

4Copy pinpoint4. Mr. Rohatgi, while questioning the maintainability ofthe appeals by special leave, submitted thatArticle 262(2) of the Constitution read with Section 11 of the 1956 Act bars the jurisdiction of this Court to adjudicate upon any water dispute as defined under Section 2(c) of the H

p. 512 Copy page pinpoint

A 1956 Act. Expatiating the said proponment, it is urged by him that Article 262 begins with a non-obstante clause :md authorizes the Parliament to provide by law to exclude the jurisdiction of this Court or any other court in respect of a dispute or complaint that has been referred to in clause ( l) ofArticle 262 and hence, this Court does not have the jurisdiction to decide anything that pertains to or emerges from water dispute. It is B canvassed by him that the Court does not have power to deal with the !is either under Article 131 or Article 32 of the Constitution and, therefore, it cannot entertain an appeal by special leave under Article 136 of the Constitution oflndia that assails the final order of the tribunal. To bolster the aforesaid proposition, he has commended us to th.e authorities in In C Re: Cauvery Water Dispute Tribuna/1, State of Karnataka v. State of A.P. and Ors.=, State of Haryana v. State of Punjab and Anr. 3, State ofHimaclial Pradesh v. Union of India and Ors.•, Tamil Nadu Cau·very Neerppasana Vilaiporulgal Vivasayigal Na/a Urinlai Padliugappu Sangam v. Union of India and Ors. 5, Narmada D Baclwo Andolan v. Union of India and Ors. 6, M ul/aperiyar Environmental Protection Forum v. Union ofIndia and Ors. 7, Atma Linga Reddy & Ors. v. Union of India and Ors. 8, Networking of Rivers, In Re9 , State of Tamil Nadu v. State of Karnataka and Ors. witlt Union Territory ofPondicl1erry v. State ofKarnataka and Ors. JO.

5Copy pinpoint5. It is further propounded by Mr. Rohatgi that the 1956 Act framed by Parliament is a complete code in itself and ifthe scheme of the said Act is scrutinized and appreciated in proper perspective, it is clear as crystal that this Court has no jurisdiction to exercise the appellate power by granting leave. The said submission is sought to be pyramided by placing reliance on Section 6(2) of the 1956 Act which provides that decision of the tribunal after its publication in the Official Gazette by the Central Government shall have the force of an order or decree of the Supreme Court. Elucidating the said aspect, it is contended by him that 1 1993 supp (I) sec 96 (2) 2 (2000) 9 sec 572 G , (2002) 2 sec 501 • (20ll) n sec 344 ' (1990) 3 sec 440 • (2000) 1o sec 664 1 (2006) 3 sec 643

• (2008) 1 sec 788 • (2012) 4 sec $1 H ''' ( 1991) Supp (I) sec 240 ~

STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS. 513 rDIPAK MISRA, J.]

once the statutory provision postulates that the award has the same A force as that of the decree of this Court, there cannot be an appeal assailing the same, for the simon pure reason that the concept of intra- court appeal is alien to the adjudicatory process of this Comt and remotely not conceived of under the constitutional scheme or by any precedent. For the said purpose, he has drawn inspiration from the authority in B Rupa As/wk H urra v. As/wk H wra & Anr. 11 •

6Copy pinpoint6. Mr. Nari man, learned senior counsel appearing for the State of Karnataka resisting the submissions of the learned Attorney General has referred us to the Draft Constitution dated 21.02.1948 prepar~d by the Drafting Committee which contained the progenitor of Article 136 of the Constitution; the Constituent Assembly debates pertaining to Article c 112( l) and (2); history of Article 262 and submitted that the protective, preclusive or ouster clauses are not unknown to the legislature and the legislature has frequently used the provisions for restricting or eliminating power ofjudicial review, but the judicial pronouncements in this country are consistent that the jurisdiction of the courts of superior jurisdiction are unaffected by such provisions. The learned senior counsel has referred to many authors and tests to highlight the principle that the jurisdiction of the Supreme Court is guaranteed by the constitutional provisions, and the exclusion ofitsjurisdiction is notto be easily infen-ed. It is propounded by Mr. Nariman that the decisions upon which reliance has been placed by the learned Attorney General lead to the indubitable conclusion that only in respect of the original dispute or complaint, the jurisdiction of the courts including the Supreme Court under Article 131 stands excluded, but do not in any manner affect the jurisdiction conferred upon this Court under Article 136 of the Constitution. He has placed heavy reliance on the three-Judge Bench decision in State of Tamil Nadu v. State of F Karnataka and Ors. with Union Territory of P01u/ic/1erry v. State of Karnataka and Ors. (supra) to strengthen uie stance that the Comt has clearly expressed the opinion that an appeal by special leave under Article 136 of the Constitution is available to the party aggrieved by an order of the Cauvery Water Disputes Tribunal and hence, the plea of maintainability has no space for any kind of debate. According to the G learned seni~r counsel, plentitude of power under Article 136 of the - Constitution has been authoritatively stated by the Constitution Bench in Durga S/tankar Mehta v. Thakur Raglturaj Singlt and Ors. 12 and 11 (2002) 4 sec 388 12 1955 (I) SCR 267: AIR 1954 SC 520 H

p. 514 Copy page pinpoint

A further in Assoc;iated Cement Companies Ltd v. P.N. Sllarma 13 , Jose Da Costa and Anr. v. Bascora Sadasiva Sinai Narcomim and Ors. 1 ~. Arunacllalam v. P.S.R. Sadllanantllam and Anr. i;, P.S.R. Sadlianantliam v. Arunacflalam and Anr. 16, Union Carbide Corporation and Ors. v. Union of India and Ors.11, Praslwnt Ramacliandra Deshpande v. Maruti Ba/aram Haibatti 18 , Malzendra B Saree Emporium (II) v. G V. Srinivasa Murtlzy 19 , U. Sree v. U. 0 1 Srinivas~ and Mathai v. George and Anr. ~ and the exercise of the said power by the Court has not been curtailed by the original constitutional provision, that is, Article 262 and could not have been crippled by any statutory provision and, in fact, has not been taken away c by the 1956 Act, for it has its source in Article 262 which does not so envisage.

7Copy pinpoint7. In reply to the submission pertaining to Section 6(2) of the 1956 Act that the final order by the tribunal once published in the Gazette has the force of an order or decree of this Court, it is argued by him that the D said provision, by no means, deprives this Court to interfere with such decision by way of appeal by special leave because it is a decision rendered . by the tribunal and a tribunal always remains a tribunal, for all purposes, and it is impossible to draw the inference that it ousts the jurisdiction of this Court under Article 136 of the Constitution. According to him, acceptance of such a stand would tantamount to rewriting Article 136 E itself. Elucidating further, Mr. Nariman contends that Section 6(2) has been inserted by the Amending Act 14 of2002 with effect from 06.08.2002 to give teeth to the final order of the tribunal in accordance with the ~arkaria Commission's recommendations given in its report on Center- State Relations, 1980. That apart, submits learned senior counsel that it F is the settled principle oflaw that even when there is a legal fiction, like a deeming provision, the interpretation of the said provision should not go beyond the purpose for which the fiction was created or expand the horizon which it was never meant to reach. For reinforcing the contention, " (1965) 2 SCR 366 G 1 '(1976)2SCC917 " ( 1979) (2) sec 297 ' (1980) 3 sec 141 1 11 (1991) 4 sec 584 • ( 1995) Supp (2) sec 539 1

' (2005) 1 sec 481 1

20 (2013)2 sec 114 H 11 (2010) 4 sec 358

STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS. 515 [DIPAK MISRA, J.]

reliance has been placed on Aneeta Hada v. God/allier Travels and A Tours Private Limited'-" and State of Uttar Pradesli v. Hari-Ram" 3 •

8Copy pinpoint8. Mr. Naphade, learned senior counsel appearing for the State of Tamil Nadu has submitted that in Article 262(2) of the Constitution as well as in Section 11 of the 1956 Act, the words used are "in respect of any dispute" and the ouster clause is to the effect that "no court including B the Supreme Court shall exercise the jurisdiction in respect of such dispute or complaint" and the ouster ofjurisdiction of this Court is limited and by no stretch of imagination it allows any room for expansion. It is put forth by him that under Article 136 power of judicial review is conferred on this Court by the Constitution oflegislative action, judicial decision and administrative action and the said power of judicial review is the basic c feature of the Constitution which cannot be curtailed by a statutory provision as enshrined under Sections 6(2) and 11 of the 1956 Act. For the aforesaid purpose, learned senior counsel has commended us to the authorities in L. Chandra- Kumar v. Union of India and Ors."\ Minerva Mills Ltd. and Ors. v. Union of India and Ors.=;, Kiiloto D Hollo/ion v. Zac/1illm and Ors." 6, M. Nagaraj and Ors. v. Union of India and Ors." 7 and Nabam Rebia am/ Bamang Felix v. Dy. Speaker, Arunacllal Prades/i Legislative Assembly and Ors." 8•

9Copy pinpoint9. It is further contended by Mr. Naphade that the tribunal is bound by the Constitution and rule oflaw and denial of powerofjudicial review to this Court under Article 136 of the Constitution would be an obstruction in the process ofadjudication and justifiable decision making process, for it is the duty of the tribunal to render a decision which should be made by application of established principles oflaw, namely, adherence to principles of natural justice, good conscience, absence of arbitrariness, just and appropriate appreciation of evidence on record, showing respect for precedents, demonstrable ratiocination that would show application of mind and in such an adjudicatory process, it is inconceivable that the founding fathers of the Constitution had contemplated creation of a tribunal with unguided, uncontrolled or G 22 s (2012) sec 661 " (2013) 4 sec 280 "(1997) 3 sec 261 " ( 1980) 3 sec 625 · "(1992) 1sec309 21 (2006) 8 sec 212 "(2016) 8 sec 1 H

p. 516 Copy page pinpoint

A uncanalised judicial powers. He has anchored on the authority P. Sambamurtlly and Ors. v. State of Andllra Prmle~·fl and Anr. "9 to bolster the proposition that it is a basic principle of rule of law that exercise of power by any authority must not only be conditioned by the Constitution but must also be in accordance with law and that power ofjudicial review is conferred by the Constitution with a view to ensure that the supremacy B oflaw is sustained. It is further put forth by him that the tribunal which is constituted under Section 4 of the 1956 Act is not a constitutional functionary as contemplated by th~ Constitution and, therefore, the argument on behalf of the Union oflndia that Article 262 being a part of the original Constitution, any law made under Article 262 can oust the c jurisdiction of this Court including the power of judicial review ur.der A1iicle 136 is wholly untenable. It is additionally expounded in this regard that "there is a qualitative difference between the provisions of the Constitution and the law made under the Constitution. For the aforesaid purpose, he has drawn inspiration from c_ertain passages from Nabam Rebia (supra). 0 IO. Mr. Naphade has scanned the anatomy of the 1956 Act to substantiate that the legal fiction contemplated under Section 6(2) of the 1956 Act operates only with regard to the execution of the decision of the tribunal which has the same force as an order or decree of this Court and cannot be allowed to travel beyond the same. Developing the . E said argument, it is astutely urged by him that the provision under Section 6(2) has to be understood in the limited sense, that is, the decision has to be enforced as a decree of this Court as per the rules framed by this Court, but that does not create an impediment to entertain an appeal by special leave and further such kind of curtailment of power of judicial F review is not provided for under Article 262 of the Constitution. Learned senior counsel would contend that a procedural power for implementation cannot be equated with the substantive exercise of power or reexamination or review of the correctness of the decision of the tribunal, and if such an interpretation is placed, the said provision of the 1956 Act would become unconstitutional. He has referred us to a passage from G Interpretation of Statutes by G.P. Singh (12'h Edition, Pg 381) and relied upon Kilwta Hol/ollon (supra).

11Copy pinpoint11. Keeping in view the aforesaid submissions raised at the Bar, it is necessary to have a keen scrutiny of the Articles of the Constitution H "'(1987) 1sec362

STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS. 517 roIPAK MISRA, J.l

that have been referred to by the learned Attorney General for Union of A India and the learned senior counsel for the Union Territory ofPuducherry to support the stand that an appeal by special leave is not maintainable or this Court has no jurisdiction under any Article of the Constitution to entertain any proceeding pertaining to a dispute or complaint as regards the use, distribution or control of the waters or in any inter-State river or B river valley, and the arguments advanced in oppugnation by the learned senior counsel for the States involved.

12Copy pinpoint12. Article 131 defines the original jurisdiction of the Supreme Court which reads as follows:- " 131 . Original jurisdiction of the Supreme Court Subject to the' c provisions of this Constitution, the Supreme Court shall, to the exclusion ofany other court, have original jurisdiction in any dispute (a)between the Government oflndia and one or more States; or (b) between the Government oflndia and any State or States on one side and one or more other States on the other; or ( c) between two or more States, if and in so far as the dispute involves any question (whether oflaw or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument_ which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the saidjurisdiction shall not extend to such a dispute." [Emphasis supplied] F

13Copy pinpoint13. At a later part ofour decision, we shall delve into the authorities that have dealt with the said provision to appreciate the purpose, impact and the ambit of the same, but it is suffice to say at this stage that the power under Article 131 ofthe Constitution, subject to the other provisions of the Constitution, can be exercised in respect of any original dispute. G

14Copy pinpoint14. At this stage, it is essential to understand the constitutional scheme as regards the conferment of power on the judiciary. Art1cles 132 to 134(2) deal with appellate jurisdiction of Supreme Court in appeal from High Courts in certain cases, appellate jurisdiction of Supreme Court in appeal from High Courts in case of civil matters and appellate ' H

p. 518 Copy page pinpoint

A jurisdiction of Supreme Court with regard fo criminal matters. To have a complete picture, the aforesaid three Articles are reproduced . below:- , "132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases ( 1 )An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in B the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Article 134-A that the case involves a substantial question oflaw as to the interpretation of this Constitution. (2) Omitted c (3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided. Explanation- For the purposes of this article, the expression "final order" includes an order declaring an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case

133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a J:Iigh Court in the territory oflndia ifthe High Court certifies under Article 134-A (a) that the case involves a substantial question oflaw of general importance; and (b) that in the opinion of the High Court the said question needs to -be decided by the Supreme Court F (2)Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question oflaw as to the interpretation of this Constitution has been wrongly decided (3) Notwithstanding anything in this article, no appeal shall, unless G Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.

134. Appellate jurisdiction of Supreme Court in regard to criminal matters H ( 1) An appeal shall lie to the Supreme Court from

STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS. 519 [DIPAK MISRA, J.]

any judgment, final order or sentence in a criminal proceeding of A a High Court in the territory of India ifthe High Court- (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or · (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the B accused person and sentenced him to deat.1,1; or (c) certifies under Article 134-A that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under sub clause (c) shall lie subject to such provisions as may be made in that behalfunder clause ( 1) of c Article 145 and to such conditions as the High Court may establish or require (2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in D the territory oflndia subject to such conditions and limitations as may be specified in such law.

15Copy pinpoint15. Article 134-A provides for Certificate for appeal to the Supreme Court by every High Court passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of Article 132 or clause (1) of Article 133, or clause (1) of Article 134 either on its own motion, if it - E deems fit so and upon oral application made by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, after determination whether a certificate of the nature referred to in clause (I) of Article 132, or clause (1) of Article 133 or, as the case may be, sub-clause (c) ofclause (1) of Article F 134, may be given in respect of that case. Article 135 states about jurisdiction and powers of the Federal Court under any existing law to be exercisable by the Supreme Court. In the instant case, thi: controversy centres around Article 136. The said Article reads as follows:- " 136. Special leave to appeal by the Supreme Court G (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 oflndia. H

p. 520 Copy page pinpoint

A (2) Nothing in clause (l) 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."

16Copy pinpoint16. The Draft Constitution of2 I .02. I 948 prepared by the Drafting Committee had the draft of Article I 09 and draft of Article 112. Draft B Article 109 after deliberation came in the shape of Article 131 and similarly, the draft Article 112 took the shape ofArticle 136. DraftAi:ticle 109 read as follows:- " 109. Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original c jurisdiction in any dispute:- ( a) between the Government of India and one or more States, or (b) between the Government oflndia and any State or States on one side and one or more other States on the other, or D (c) between two or more States. If in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to- (i) a dispute to which a State for the time being specified in Part E III of the First Schedule is a party, ifthe dispute arises out of any provision of a treaty, agreement, engagement, sanad or other similar instrument which was entered into or executed before the date of commencement of this Constitution and has; or has been; continued in operation after that date; F (ii) a dispute to which any State is a party, ifthe dispute arises out of any provision of a treaty, agreement, engagement, sanad or other similar instrument which provides that the said jurisdiction shall not extend to such a dispute."

17Copy pinpoint17. The draft Article 112 was couched in the following language:- ~ .

G "112. The Supreme Court may, in its discretion, grant special leave to appeal frpm any judgment, decree or final order in any cause or matter, passed or made by any court or tribunal in the territory oflndia except the States for the time being specified in Part III of the First Schedule in cases where the provisions of article 110 or article 111 of this Constitution do not apply." H

STATE OF KARNATAKA v. STATE OF TAMIL NADU & ORS. 521 rDIPAK MISRA, J.l

18Copy pinpoint18. On 16.10.1949 draft Article 112 was substituted by a new draft Article 112(1) and (2). Articles 112(1) and (2)which were adopted and added to the Constitution by the Constituent Assembly, read .as follows:- "112(1) 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 oflnd ia. (2) Nothing in Clause (1) of this article shall apply to any judgment, determination, sentence or order passed or made by any court of tribunal co'nstituted by or under any law relating to the Armed C Forces."

19Copy pinpoint19. Be it noted, on 16.10.1949 Clause (2) of Draft Article 112 (Corresponding to Article 136 of the Constitution of India, 1950) was added to exclude from the jurisdiction of the Supreme Court any determination, sentence ororder passed or made by any Court or tribunal constituted under any law related to the armed forces.

20Copy pinpoint20. While moving the alteration, Mr. T.K. Krishnamachari spoke:- "'The reason for introducing these two new amendments is the view expressed by the Defence Ministry that such protection is necessary in respect of the decisions of courts-martial which deal with the Armed Forces and the analogy of what obtains in other countries was brought before us. We therefore felt there was a case for putting in a, provision of this nature in articl.es 112 and 203."

21Copy pinpoint21. In his speech to Constituent Assembly Dr. B.R. Ambedkar F (on 16.10.1949) explained why Clause 2 was added in Draft Article 112:- "This question is not merely a theoretical question but is a question of great practical moment because it involves the discipline of the Armed Forces. If there is anything with regard to the armed forces, G it is the necessity of maintaining discipline. The Defence Ministry feel that if a member of the armed forces can look up either to the Supreme Court or to the High Co mt for redress against any decision which has been taken by a Court or tribunal constituted for the purpose of maintaining discipline in the armed forces, discipline H

p. 522 Copy page pinpoint