No 13347 of 1983
Under Article 32 of the Constitution of India
KK Venugopal CS Vaidyanathan and KV Viswana than for the Petitioner
PK GoswamiAdditional Solicitor General PS Poti K Parasaran SS Javalai and FS Nariman BV Acharya Advocate General PR Ramasesh Ms A Subhashini TT Kunhikanan V Krishnamurthy K Ramkumar and R Karuppan in person the Respondents
86 The Judgment of the Court was delivered by RANGANATH MISRA J
This is an application under Article 32 of the Constitution filed by the Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimal Padhugappu Sangam which is said to be a society registered under the Tamil Nadu Societies Registration Act asking this Court for direction to the Union of India respondent No 1 to refer the dispute relating to the water utilisation of the Cauvery river and equitable distribution thereof in terms of section 4 of the  and for a mandamus to the State of Karnataka not to proceed with the construction of dams projects and reservoirs across the said river andor on any of its tributaries within the State and to restore supply of water to the State of Tamil Nadu as envisaged in the agreements dated 18th of February 1924
To the petition States of Karnataka Tamil Nadu and Kerala and the Union Territory of Pondicherry have been added as re spondents 2 to 5 respectively
In the petition it has been alleged that the petition er s society is an organisation of agriculturists of Tamil Nadu and they are entitled to the lower reparian rights of Cauvery river for cultivating their lands over the years
The petitioner alleges that inflow into the Cauvery at the Mettur dam point as also down the stream has considerably diminished due to construction of new dams projects and reservoirs across river Cauvery and its tributaries by the State of Karnataka within its own boundaries
In the year 1970 the State of Tamil Nadu had requested the Union of India to set up a tribunal and refer the question of equita ble distribution of Cauvery waters under section 3 of the Act
A suit filed under Article 131 of the Constitution by the Tamil Nadu State in this Court was withdrawn on politi cal consideration and in anticipation of the evolving of a mutual and negotiated settlement
Petitions of the present type had also been filed in this Court being writ petitions Nos 303 and 304 of 1971 but on 24775 they were withdrawn on account of suspension of the Fundamental Rights during the period of Emergency
Petitioner has further alleged that the sharing of the Cauvery waters between the then Madras State and the then princely State of Mysore was covered by a set of agreements reached in 1892 and 1924
According to the petitioner several attempts were made through bilateral and multilateral talks for a negotiated settlement for equitable distribution of the Cauvery waters but no solution could be reached and the problem continued
Since we are not on the merits of the matter relating to distribution of waters it is unnecessary to give any details of the further pleadings
87 The State of Karnataka by filing several affidavits has opposed the maintainability of the petition as also the tenability of the plea for relief
The Union of India in the Ministry of Water Resources has also opposed the maintain ability of the application
Reliance has been placed on section 11 of the Act to which we shall presently made a reference
At the hearing Mr Nariman on behalf of the State of Karnataka along with the Advocate General of the State and the Solicitor General appearing for the Union of India have reiterated the aforesaid stands
The State of Tamil Nadu filed an affidavit in this Court on 6th of May 1987 wherein it not only supported the contention of the petitioner but effectively joined the dispute by adopting the stand of the petitioner
The State of Kerala has left the matter to the good sense of Union of India to bring about an amicable settlement
At the hearing of the matter the Union Territory of Pondicherry was not represented though we were told that their stand was common with that of the State of Tamil Nadu
This petition was filed on November 18 1983 on 121283 this Court directed issue of notice and as already pointed out the State of Tamil Nadu by its affidavit of 6th of May 1987 came to the support the petitioner in toto
The adoption by the State of Tamil Nadu of the petitioner s stand by associating itself with the petitioner is perhaps total
Before this Court societies like the petitioner as also the State of Tamil Nadu and earlier applied for the same relief as the petitioner seeks
In view of the fact that the State of Tamil Nadu has now supported the petitioner entirely and without any reservation and the Court has kept the matter before it for about 7 years now to throw out the petition at this stage by accepting the objection raised on behalf of the State of Karnataka that a petition of a society like the petitioner for the relief indicated is not maintainable would be ignoring the actual state of affairs would be too technical an approach and in our view would be wholly unfair and unjust
Accordingly we treat this petition as one in which the State of Tamil Nadu is indeed the petitioner though we have not made a formal order of transposition in the absence of a specific request
The main stream of river Cauvery has its origin in the hills of Coorg
Some tributaries have their origin in the State of Kerala while some having their origin in Karnataka have joined the river
The 88 river flows for a distance of about 300 Kms
within the State of Karnataka and almost an equal span within the State of Tamil Nadu before it ultimately joins the Bay of Bengal
It has not been disputed that Cauvery is an inter State
river within the meaning of Article 262 of the Constitution
Entry 56 of List I of the Seventh Schedule to the Constitu tion runs thus 56
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
 Article 262 provides 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 re spect 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 Parlia ment 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
 It is not disputed before us that the 33 of 1956 is a legislation within the meaning of this Article
Section 3 of the Act provides 3
If it appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State or of any of the inhabitance there of in the waters of an inter State river or river valley have 1Seen or are likely to be affected prejudicially by a    b    c    89 the State Government may in such form and manner as may be prescribed request the Central Government to refer the water dispute to a tribunal for adjudication
 Section 11 of the Act provides 11
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
It is thus clear that section 11 of the Act bars the juris diction of all courts including this Court to entertain adjudication of disputes which are referable to a tribunal under section 3 of the Act
Therefore this Court has no juris diction to enter upon the factual aspects raised in the writ petition
No serious dispute however has been raised before us challenging our jurisdiction to consider the claim in the writ petition confined to the question of a reference of the dispute to a tribunal within the meaning of section 3 of the Act
Section 4 of the Act provides 4
1 When any request under section 3 is received from any State Government in respect of any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations the Central Government shall by notification in the official Gazette constitute a Water Disputes Tribunal for the adjudication of the water dispute
2    3   
Undoubtedly section 4 while vesting power in the Central Government for setting up a Tribunal has made it conditional upon the forming of the requisite opinion by the Central Government
The dispute in question is one over which the people and the State of Tamil Nadu have been clamouring for more than 20 years now
The matter has been pending in this Court for more than 6 12 years
It is on record that during this period as many as 26 sittings spread over many years have been held in which the Chief Ministers of the Karnataka and Tamil Nadu have unsuccessfully tried to bring about settlement some of 90 these have been at the instance of the Central Government in which the Union Minister for Water Resources and others have participated
There was a time after the dispute arose when the Governments in the States of Karnataka and Tamil Nadu as also at the Centre were run by one common political party
Perhaps if the Centre had intervened in an effective way during that period there was considerable chance of settle ment by negotiation
No serious attempt seems to have been made at that time to have the dispute resolved and it has been shelved and allowed to catch up momentum and give rise to issues of sensitivity
This case after a number of ad journments freely granted by this Court in view of the nature of the subject matter was called on 2621990 when the following order was made The writ petition is adjourned to 2441990 for final hearing and is to be listed at the top of the board
No further adjournment shall be granted
The Advocate Generals of the States of Karnataka and Tamil Nadu are present in Court
Learned Solicitor General is also present
Counsel in WP No 1334783 in sists that the matter should not be further adjourned as several adjournments on the same plea of reconciliation between the two States have not borne any fruit
Learned Solicitor General has told us that in course of the month of March the Chief Ministers of the two States shall meet
He has also told that in the month of February a meeting of Chief Ministers of Kerala Karnataka Tamil Nadu and Pondi cherry had been called but that could not be held on account of the air crash at Bangalore
In these circumstances leaving the parties to negotiate we have decided that the matter shall now be heard on merits in the event no settle ment takes place by then
 A long adjournment of about two months was then granted to provide a further opportunity of negotiation
We have now been told that the two Chief Ministers met on the 19th of April 1990 and a further meeting was stipulated to be held on the following day when the Minister of Water Resources of the Central  Government was also to participate
The meeting of the two Chief Ministers failed to bring about any result and the meeting stipulated for the following day for some reason or the other did not take place
When we heard the matter on the 24th of April 1990 the counsel for the State of Tamil 91 Nadu in clearest terms indicated that the Chief Minister of the State was not further prepared to join the negotiating table
An affidavit along with the telex message received from Madras supporting its stand has now been made a part of the record
26 attempts within a period of four to five years and several more adjournments by this Court to accommodate these attempts for negotiation were certainly sufficient opportu nity and time to these two States at the behest of the Centre or otherwise to negotiate the settlement
Since these attempts have failed it would be reasonable undoubtedly to hold that the dispute cannot be settled by negotiations
Yet since the requisite opinion to be formed is of the Central Government as required by s 4 of the Act when we reserved judgment on the 24th of April 1990 we allowed two days  time to the learned Additional Solicitor General for the Central Government to report to the Court the reaction of the Central Government
Mr Goswami learned Additional Solicitor General appearing for the Union of India informed us on the 26th April 1990 in the presence of the counsel for the other parties that the Central Government did not want to undertake any further negotiation and left the matter for disposal by the Court
In these circumstances we have no option but to conclude that a clear picture has emerged that settlement by negotiation cannot be arrived at and taking the developments in the matter as indicated above it must be held that the Central Government is also of that opinion particularly when the Chief Minister of Tamil Nadu has indicated that he is no more prepared to loin the nego tiations
We are cognizant of the fact that the matter is a very sensitive one
Judicial notice can be taken of the fact that the Government at the Centre is by one political party while the respective Governments in the two States are run by different political parties
The dispute involved is howev er one which affects the southern States of Kerala Karna taka and Tamil Nadu and the Union Territory of Pondicherry
The disputes of this nature have the potentiality of creat ing avoidable feelings of bitterness among _the peoples of the States concerned
The longer the disputes linger more the bitterness
The Central Government as the guardian of the interests of the people in all the States must there fore on all such occasions take prompt steps to set the Constitutional machinery in motion
Fortunately the Parlia ment has by enacting the law vested the Central Government with the power to resolve such disputes effectively by referring the matter to an impartial Tribunal
There was no reason therefore for the dispute to protract for such a long time
Any further delay in taking the statutorily 92 mandate action is bound to exasperate the feelings further and lead to more bitterness
It is therefore necessary that the legal machinery provided by the statute is set in motion before the dispute escalates
A stitch in time saves nine
What is true for an individual is perhaps more true for the nation
Section 4 indicates that on the basis of the request referred to in section 3 of the Act if Central Government is of the opinion that the water dispute cannot be settled by negotiation it is mandatory for the  Central Government to constitute a Tribunal for adjudication of the dispute
We were shown the Bill where in section 4 the word may  was used
Parliament however substituted that word by shall  in the Act
Once we come to the conclusion that a stage has reached when the Central Government must be held to be of the opin ion that the water dispute can no longer be settled by negotiation it thus becomes its obligation to constitute a Tribunal and refer the dispute to it as stipulated under section 4 of the Act
We therefore direct the Central Government to fulfil its statutory obligation and notify in the official gazette the constitution of an appropriate tribunal for the adjudication of the water dispute referred to in earlier part of this judgment
We further direct that the same should be done within a period of one month from today
The writ petition is accordingly allowed
There shall however be no order as to costs
SB Petition allowed


Summary:
In these petitions in the nature of public interest litigation under Article 32 of the Constitution the relief asked for is one for mandamus to the Union of India to fill the vacancies of Judges in the Supreme Court and the several High Courts of the country and ancillary orders or direc tions in regard to the relief of filling up of vacancies
In response to the rule the Union of India relying upon SP Gupta vs Union of India 1982 2 SCR 365 raised a preliminary objection as to the justiciability of the issue
The objection however was later withdrawn by the succeed ing Attorney General who made a statement that it was the constitutional obligation of the Union of India to provide the sanctioned Judge strength in the superior courts and default if any was a matter of public interest and the writ petitions requiring a direction to the Union of India to fill up the vacancies were maintainable
Disposing of the petitions this Court HELD 1 The ratio in SP Gupta s case left the matter of fixing Up Of the Judge strength to the President of India under the constitutional scheme and the choice of Judges to the prescribed procedure but once the sanctioned strength was determined it was the obligation of the Union of India to maintain the sanctioned strength in the superior Courts
437H 438A 2 It is too late in the day to dispute the position that justice has to be administered through the courts and such administration would relate to social economic and political aspects of justice
The Judiciary therefore be comes the most prominent and outstanding wing of the Consti tutional System for fulfilling the mandate of the Constitu tion
434 For its sound functioning it is necessary that there must be an efficient judicial system and one of the factors for providing the requisite efficiency is ensuring adequate strength
440E F 3 For the availability of the appropriate atmosphere where a Judge would be free to act according to his con science it is necessary that he should not be over burdened with pressure of work which he finds it physically impossi ble to undertake
This necessarily suggests that the judge strength should be adequate to the current requirement and must remain under constant review in order that commensurate Judge strength may be provided
441F G Bradley vs Fisher  1871 referred to
4 It is a matter for immediate attention of all con cerned and of Government in particular that the Adminis tration of Justice is made a plan subject and given appro priate attention
444C 5 Backlog in Courts has become a national problem
The adjudicatory process is being blamed for not equalling itself to the challenge of the times
There is a general complaint that the judicial system is on the verge of col lapse
It is therefore the obligation of the constitution al process to keep the system appropriately manned
There is no justification for the sluggish move in such an important matter
447C D 6 If in a given case the Chief Justice of the High Court has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through the Ministry of Justice and the Chief Justice of India as the highest judicial authority in the country on due application of his mind has given finality to the process at his level there cannot ordinarily be any justi fication for reopening the matter merely because there has been a change in the personal of the Chief Justice or the Chief Minister of the State concerned
This has to be the rule and the policy adopted by the Union of India should immediately be given up
448B D 7 In the functioning of public offices there is and should be continuity of process and action and all objective decisions taken cannot be transformed into subjective issues
That being the position recommendations finalised by the Chief Justice of India unless for any particular reason and unconnected with the mere change of the Chief 435 Justice or the Chief Minister justifying the same should not be reopened and if in a given case the Union of India is of the view that the matter requires to be looked into again a reference should be made to the Chief Justice of India and there can be a fresh look at the matter only if the Chief Justice of India permits such a review of the case
448E F 8 Consistent with the constitutional purpose and process it becomes imperative that the role of the institu tion of the Chief Justice of India be recognised as of crucial importance in the matter of appointments to the Supreme Court and the High Courts of the States
This aspect dealt with in Gupta s case requires re consideration by a larger bench
450E 9 In India the judicial institutions by tradition have an avowed a political commitment and the assurance of a non political complexion of the judiciary cannot be divorced from the process of appointments
Constitutional phraseology of consultation has to be understood and expounded consistent with and to promote this constitutional spirit
These implications are indeed vital
The constitutional values cannot be whittled down by calling the appointment of Judges as an executive act
The appointment is rather the result of collective constitutional process
It is a participatory constitutional function
It is perhaps inappropriate to refer to any power  or right  to appoint judge
It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories
457D F 10 The executive on whose advice the President acts as a participant in the process has its own important and effective role
To say that the power to appoint solely vests with the executive and that the executive after bestowing such consideration on the result of consultations with the judicial organ of the State would be at liberty to take such decision as it may think fit in the matter of appointments is an over simplification of a sensitive and subtle constitutional sentence subversive of the doctrine of judicial independence
457F G 11 The word consultation is used in the constitu tional provision in recognition of the status of the high constitutional dignitary who formally expresses the result of the institutional process leading to the appointment of judges
To limit that expression to its literal limitations shorn of its constitutional background and purpose is to borrow Justice Frankfurter s phrase to stick in the bark of words
458B 12 Judicial Review is a part of the basic constitutional structure 436 and one of the basic features of the essential Indian Con stitutional policy
This essential constitutional doctrine does not by itself justify or necessitate any primacy to the executive wing on the ground of its political accountability to the electorate
458C 13 It might under certain circumstances be said that Government is not bound to appoint a judge so recommended by the judicial wing
But to contemplate a power for the execu tive to appoint a person despite his being disapproved or not recommended by the Chief Justice of the State and the Chief Justice of India would be wholly inappropriate and would constitute an arbitrary exercise of power
458D E 14 The purpose of the consultation  is to safeguard the independence of the judiciary and to ensure selection of proper persons
The matter is not therefore to be consid ered that the final say is the exclusive prerogative of the executive government
The recommendations of the appropriate constitutional functionaries from the judicial organ of the State has an equally important role
Consultation should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation
458F G 15 There are preponerant and compelling cousideratious why the views of the Chief Justices of the States and that of the Chief Justice of India should be afforded a decisive import unless the executive has some material in its posses sion which may indicate that the appointment is otherwise undesirable
458G H 16 The correctness of the opinion of the majority in SP Gupta s case relating to the status and importance of consultation the primacy of the position of the Chief Justice of India and the views that the fixation of Judge strength is not justiciable should be reconsidered by a larger bench
459B 17 In view of the fact that the bulk of vacancies in the High Courts have been filled up and in view of the assurance held out by the learned Attorney General that prompt steps are being taken to fill up the remaining vacan cies further monitoring for the time being is not neces sary
459F