December 13, 2013

Telangana river waters, irrigation & agriculture-12 (Basins- a primer)

A quick recapitulation

In the last several chapters, we tried to decipher water rights especially as applied to trans-boundary water sharing. We looked at the elements of both the Indian water regime and international law.

However, we are still not close to determining what Telangana's "fair share" of river waters, especially in the Krishna basin, should have been. Indian law leaves the job of determining the "fair share" to tribunals while this role is assigned to the Supreme Court in the US. The methodology of doing so is to be decided by the tribunal/court.

CWDT (volume III, page 6) summarizes the position: "No doubt, the principle in respect of equitable apportionment of the water is settled, but what shall be the equitable apportionment in respect of different riparian States so far the water of such inter-State river is concerned is itself a big question". GWDT (page 123) concurs: "There is no rigid formula for the equitable apportionment of waters of a river. Each river system has its own peculiarities".

Before embarking on a study of agreements, tribunal reports and case law, it is useful to look at the hydrological factors. This will help us understand these technical aspects better. This work therefore takes a "hydrology detour" before returning to water law.

River basin

Most people understand (or believe they understand) rivers quite well. However even this is not without controversy. In Kansas v. Colorado, Colorado claimed the Arkansas is in fact two rivers and that its irrigators were confined to the "Colorado Arkansas". Justice Brewer rejected the contention and held it to be one river, even if it was "broken".

The nature of river systems (i.e. a river together with all its components including tributaries) is more difficult but still within the perception of "lay men". Understanding what constitutes a basin (sometimes called river basin, river valley, drainage basin or catchment area) is more complex and may require the assistance of experts.

Hydrologists are unanimous in their agreement that a basin is an indivisible entity. Every basin is separated from the neighboring basins. Every drop of stream runoff whether resulting from snowmelt or rainfall ends up in the appropriate river system. Every square meter of land is necessarily a part of an appropriate basin and only that one basin.

Basins, like contour lines, do not cross each other. Basin boundaries are much more rigid than "real world" features like rivers or "conceptual lines" like seashore. The fact that basins are not yet accurately mapped can not change or distort this scientific position.

Basins are often divided into sub-basins. For instance, Krishna sub-basins are labeled K-1 through K-12. These divisions do have a physical connotation (and occasionally legal implications too) although the primary purpose is convenience.

KWDT (volume I, page 98) goes into the nature of a basin at great detail. KWDT cites WG Moore's Dictionary of Geography: "The entire area drained by the river and its tributaries is called the river basin". KWDT (on the same page) refers to a textbook on Applied Hydrology: "The river basin is necessarily completely bounded by the watershed or divide which separates it from other adjacent basins".

The tribunal accordingly ruled: "The expressions "Krishna basin", "Krishna river basin" and "Krishna drainage basin" used in this Report mean the entire area drained by the Krishna river and its tributaries. The Krishna basin is bounded by the watershed or divide which separates if from other adjacent basins".

This point is elaborated and reiterated as follows (in part relying on HA Smith's The Economic uses of International Rivers):

"River basin an indivisible physical unit. Each river basin is an indivisible physical unit, a more or less self-contained unit of drainage. Nature's laws treat the river and its tributaries as the arteries of a single circulatory system. The surface streams converge, ever seeking a lower level and unite to form one mainstream. All the waters that find their way towards a common outlet form an interconnected and interdependent system, capable of transmitting within itself any disturbance caused by changes affecting water in any part of the basin. Water is a moving resource which implies that changes in quality or quantity of water in one place may directly affect uses of water somewhere else".

Basin vs. boundaries

Political boundaries are defined based on several parameters. These often include social, cultural, economic factors etc. but almost never consider hydrological factors.

Cartographers often use features like rivers or hills when they draw maps. This stems partly from the fact such features are obstacles to transport & movement. This is why rivers & streams often form boundaries between districts, states or countries. The cartographic concept of a "natural boundary" makes it much more likely that basins crisscross political divisions.

The Supreme Court in the 1991 Cauvery presidential reference stated "Though the waters of an inter-State river pass through the territories of the riparian States such waters cannot be said to be located in any one State".

KWDT observes (volume I, page 99): "Division of an inter-State river by the boundaries of several States merely limits the geographic limits of the authority of a given State; but unlike land resources whose distribution among the States is resolved by the very establishment of their boundaries, the water resources of the common river are not subjected to automatic allocation among them by the delineation of their political frontiers".

Basin vs. command area

Because waters within a state are effectively at its command, states distribute these based on their own requirements. This right is recognized by all authorities. For example, KWDT final order Clause XV reads "Nothing in the Order of this Tribunal shall impair the right or power or authority of any State to regulate within its boundaries the use of water or to enjoy the benefit of waters within that State in a manner not inconsistent with the Order of this Tribunal".

States do not limit water use by basins. They base their planning on the concept of command area (sometimes also called "culturable command area") of a project. MoWR defines this as "the area which can be irrigated from a scheme and is fit for cultivation".

The differences between the two concepts is summarized below:

·         Command area is an administrative concept that may have no hydrological or topographic connotation
·         Command area relates to a project while basin relates to a river system
·         Every square meter of land is a part of one basin or another. This is not true of command areas: due to several reasons including government policies, a piece of land may not be a part of any project's command area
·         A command area can crisscross two (or even more) basins if the state resorts to trans-basin diversion

While the scientific definition of a basin is not questioned by any authority, there is some occasional confusion among administrators. AP quoting a couple of cases argued before KWDT that a basin includes "all territories outside the river drainage basin to which the waters of the river may be diverted and beneficially applied". In other words, AP tried to club the basin & command area concepts. KWDT dismissed this "artificial definition" and proceeded to present the correct situation detailed earlier. Trans-basin diversion was held to be permissible "but those areas cannot be regarded as parts of the river basin".

AP's "confusion" appears to persist. Before the second Krishna Water Disputes Tribunal (KWDT-II), AP made (pages 796-800) several contentions that indicate this:

·         A list of fluoride affected inhabitants cutting across basin borders
·         Out of the seven proposed new schemes, three (Srisailam Left Bank Canal, Kalwakurthy & Nettempaddu lift irrigation schemes) totaling 77 TMC are within the Krishna basin. The other four projects totaling 150 TMC are trans-basin diversions
·         When requested for details of drought prone areas, AP contended 67,650 sq. km including areas outside the basin. This is in sharp contrast to Maharashtra & Karnataka who listed only the drought prone areas within the Krishna basin (each state around 50,000 sq. km). Karnataka disputed AP's claim and submitted an estimate of 45,493 sq. km based on information obtained from AP. This led KWDT-II to record "The highest drought prone area in Krishna basin is in the State of Karnataka whereas State of Andhra Pradesh has smallest drought prone area in Krishna basin".

AP claimed its contention was based on KWDT statement (volume II, page 8) "the relevant consideration is the interest of the State as a whole and all its inhabitants and not merely the interest of the basin areas of the State". This is untenable as the context was to the injury caused to a state by the action of its riparian neighbors: "the crucial question is whether the interest of the State or of any of its inhabitants in the waters of the inter-State river and river valley is prejudicially affected by the action of another State".

A reading of ISDA sections 3 & 3a will serve to confirm the above:

"3. Complaints by State Governments as to water disputes. 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 inhabitants thereof, in the waters of an inter-State river or river valley have been, or are likely to be, affected prejudicially by--

(a) any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State; or"

It may be noted that AP did not list the entire state drought prone area 89,109 sq. km in its submission. This does not tally with the purported understanding of "state as a whole".

From the above, it emerges AP continues to treat non-basin areas benefitting from trans-basin diversions as a part of the basin. As this contention flies in the face of both accepted science and practice as established by tribunals, it may be concluded that the posturing reflects the state policy. This approach is likely to have impacted the data provided by the state too.

Basins of Andhra Pradesh

SKC page 219 shows a basin map of AP together with district boundaries. While this map's nature (raster) and scale is not amenable to spatial database creation or analysis, it does provide some interesting information based on a visual examination:

·         AP consists of 40 basins including 12 inter-state river systems
·         Khammam is spread in four basins: Godavari (# 20), Thammileru (# 22), Budameru (# 24) & Krishna (# 25)
·         With the exception of the small area in Khammam covered by Thammileru & Budameru basins, the rest of Telangana is fully in either Krishna or Godavari basins
·         Adilabad & Nizamabad districts are totally in the Godavari basin
·         Mahabubnagar & Nalgonda districts are totally in the Krishna basin
·         All other districts crisscross a minimum of two basins
·         Contrary to intuitive perceptions, both Andhra and Rayalaseema are largely outside the Krishna & Godavari basins

The map does have some shortfalls. For instance, it does not delineate sub-basins. It also ignores AP's boundary with Pondicherry (Yanam) and treats Yanam as a part of East Godavari district. This should not detract from the fact the map is otherwise useful.

Andhra Pradesh basin areas

The publication Water Resources Statistical Abstract-2010 (WRSA-2010 or WRSA) published by AP's Irrigation & Command Area Development (I&CAD) department lists (pages 25-26) lists each of the 40 basins with the "catchment" area in the state. The total works out to 262,277 sq. km i.e. 12,768 sq. km less than the state's area!

The same publication (pages 21-22) 58 rivers flowing in the state together with their "catchment" area in the state. The total works out to 318,208 sq. km i.e. 43,163 sq. km more than the state's area!

While the reasons for these discrepancies is not readily ascertainable, this is definitely a serious lapse not to be expected in a work of this nature. It may be stressed here that WRSA appears to be the most important source cited by various contenders including LSP.

In any case, WRSA does not provide region (or district) wise breakup of the river basins. This information is available from KWDT & GWDT reports. The reports provide basin area (in square miles) for each of the basin districts as well as the proportion of the basin area in the district to the entire district.

Converting at the rate of 1 mile= 1.61 km, KWDT's estimates show that AP covers 76,313 sq. km of the Krishna basin. Telangana accounts for 52,274 sq., km i.e. 68.5% of the Krishna basin in the state. Similarly, GWDT estimates show Telangana at 58,006 i.e. 79.2% of AP's 73,261 sq. km. These percentages are widely quoted and so familiar to most people on both sides of the debate.

However, a rather different picture emerges when one tries to validate the tribunal data. Bellary district is shown to be entirely within the Krishna district with an area of 9,915 sq. km whereas the district's current area is only 8,450 sq. km. Khammam district's area after prorating works out to around 11,925 sq. km against the current area of 16,029 sq., km i.e. around 4,100 sq. km short. The area of East Godavari, in contrast, is estimated at 14,967 sq., km, around 4,160 sq. km more than its present area.

On a careful examination of the discrepancies, I am led to believe the tribunal data is based on a pre-1956 estimate. The East Godavari & Khammam discrepancies are almost exact & opposite: this must be the area transferred after 1956 to Khammam. The excess estimate of Bellary district reflects the area transferred to AP in 1956. The other discrepancies are almost certainly traceable to reorganization & other territorial transfers.

Andhra Pradesh basin distribution

As most of Telangana (with the exception of 561 sq. km in two minor basins) is in Krishna & Godavari basins, I classified the AP basins in three categories: Krishna, Godavari & "Others" (i.e. all the 38 basins lumped together).

Srikakulam, Vizianagaram, Prakasam, Nellore, Chittoor & Cuddapah pose no problems as these districts entirely fall in the other basins. Nizamabad & Adilabad are also easy as these districts are entirely within the Godavari basin. Mahabubnagar & Nalgonda are similarly totally in the Krishna basin.

The districts of Visakhapatnam & West Godavari basins are also easy: I assume the GWDT estimate to be correct while the rest of the districts fall in the other basins. The districts of Krishna & Guntur were treated in a similar manner assuming KWDT estimates to be accurate.

The case of the former Hyderabad district was not too difficult either: I assumed the present Hyderabad district to be totally in the Krishna basin and assigned the insignificant Godavari basin area to Ranga Reddy.

I resolved the East Godavari discrepancy by deducting the excess GWDT estimate from its Godavari basin and allocating the balance to other basins. I similarly resolved the Khammam discrepancy by assuming the Krishna & other basin areas to be correct and assigning the balance to Godavari basin.

In the case of Medak, I assumed KWDT estimate to be accurate assigning the balance to Godavari basin. For Warangal, I took the opposite route assuming GWDT estimate to be correct.

The only problem remaining was between Anantapur & Kurnool districts. Bellary district ceded land to both in 1956 with no information on the exact extent. I assigned the Krishna basin area transferred from Bellary to Anantapur. While this is not factually correct, I had no other option as no information is available on these territories. This error should not reflect too much on the study as both Anantapur & Kurnool belong to the same region.

The end result is as follows:

·         Krishna basin: 77,721 sq. km with Telangana at 67.7% (52,587 sq. km)
·         Godavari basin: 72,787 sq. km with Telangana at 84.8% (61,692 sq. km)
·         Other basins: 124,537 sq. km

"Rivers are not human artifacts; they are natural phenomena, integral components of ecological systems, and inextricable parts of the cultural, social, economic and spiritual lives of the communities concerned. They are not pipelines to be cut, turned around, welded and rejoined": R. Ramaswamy Iyer

December 03, 2013

Telangana river waters, irrigation & agriculture-11 (International trans-boundary water sharing)

Inter-state water sharing in the US

The American position can be understood from the Supreme Court decisions. Excerpts from Justice Brewer's opinion in Kansas v. Colorado explain the situation.

"In a qualified sense and to a limited extent, the separate states are sovereign and independent, and the relations between them partake something of the nature of international law. This Court in appropriate cases enforces the principles of that law, and in addition, by its decisions of controversies between two or more states, is constructing what may not improperly be called a body of interstate law".

"If the two states were absolutely independent nations, it would be settled by treaty or by force. Neither of these ways being practicable, it must be settled by decision of this Court".

On the role of the federal government, Justice Brewer quotes Chief Justice John Marshall's opinion in McCulloch v. Maryland, 17 U.S. 316 (1819): "This government is acknowledged by all to be one of enumerated powers. The principal that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted".

Justice William O. Douglas in his opinion in Nebraska v. Wyoming, 325 U.S. 589 (1945) reiterates the position writing "a clash of interests which, between sovereign powers, could be traditionally settled only by diplomacy or war. The original jurisdiction of this Court is one of the alternative methods provided by the Framers of our Constitution".

I can not find a single judgment where a state organ was treated as an appropriator. In Nebraska v. Wyoming, the federal government claimed it acquired water rights by appropriation for two projects and retains the rights to the extent not disposed of. The secretary of interior filings for the projects were accepted by state officials. Justice William O. Douglas in his opinion did not accept the plea that this act conferred proprietorship rights to the federal government.

Justice Douglas cited several precedents including Ickes v. Fox, 300 U.S. 82 (1937): "Although the government diverted, stored, and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded. Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the landowners, and, by the terms of the law and of the contract already referred to, the water rights became the property of the landowners, wholly distinct from the property right of the government in the irrigation works".

He ruled: "The rights of the United States in respect to the storage of water are recognized. So are the water rights of the landowners. To allocate those water rights to the United States would be to disregard the rights of the landowners. To allocate them to the States, who represent their citizens parens patriae in this proceeding, in no wise interferes with the ownership and operation by the United States of its storage and power plants, works, and facilities. Thus, the question of the ownership by the United States of unappropriated water is largely academic so far as the narrow issues of this case are concerned".

It may be noted the American constitution confers no rights to the federal government respect to inter-state flowing waters. Considering this and the above together it emerges that inter-state water sharing in the US was an uncharted territory. While states are free to manage water flowing through their territories, the federal government has no right of oversight. Inter-state water disputes therefore fall in the original jurisdiction of the Supreme Court. While the states can act as parens patriae of their citizens, they do not posess any water rights themselves.

Helsinki rules

International Law Association (ILA) adopted a set of guidelines called "Helsinki Rules on the Uses of the Waters of International Rivers" ("Helsinki rules" in common parlance) at its fifty second conference held at Helsinki in 1966. While these guidelines have no formal status and lack an enforcement mechanism, these represent a pioneering effort in trans-boundary water management.

The Helsinki rules consist of 37 articles spread over 6 chapters. We will go into the relevant aspects to the extent necessary below.

Chapter 1 (articles 1-3) covers scope and definitions. It may be noted that the scope excludes "as may be provided otherwise by convention, agreement or binding custom among the basin States".

Chapter 2 (articles 4-8) is the most relevant for our study as it deals with "equitable utilization of the waters of an international drainage basin". Article 4 states: "Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin".

Article 5 has three sections. The first section requires that the reasonable and equitable share shall be ascertained "in the light of all the relevant factors in each particular case".

The second section of article 5 provides a non-exhaustive list of some relevant factors. The third section states: "The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is reasonable and equitable share, all relevant factors are to be considered together and a conclusion reached on the basis of the whole".

The list provided in 5 (2) is produced in full below:

1.     The geography of the basin, including in particular the extent of the drainage area in the territory of each basin State
2.     The hydrology of the basin, including in particular the contribution of water by each basin State
3.     The climate affecting the basin
4.     The past utilization of the waters of the basin, including in particular existing utilization
5.     The economic and social needs of each basin State
6.     The population dependent on the waters of the basin in each basin State
7.     The comparative costs of alternative means of satisfying the economic and social needs of each basin State
8.     The availability of other resources
9.     The avoidance of unnecessary waste in the utilization of waters of the basin
10.  The practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses
11.  The degree to which the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State

Article 6 precludes inherent preference of any use over others. Article 7 prohibits denial of reasonable use to a basin state on the basis of future uses of other states.

Article 8 relates to "existing reasonable uses". Section 1 states: "An existing reasonable use may continue in operation unless the factors justifying its continuance are outweighed by other factors leading to the conclusion that it be modified or terminated so as to accommodate a competing incompatible use". Section 2 defines the entry & exit criterion of an existing use. Section 8 (3) prohibits a use that is incompatible with an already existing reasonable use at the time of becoming operational from being treated as an existing use.

Chapters 3, 4 & 5 (articles 9-25) relate to pollution, navigation & timber floating. These are not relevant to this study.

Chapter 6 (articles 26-37) outlines the procedures for preventing and/or settling disputes. This does not warrant a detailed discussion at this stage.

Convention on the Law of the Non-navigational Uses of International Watercourses

UNO adopted a document in 1997 titled "convention on the law of the non-navigational uses of international watercourses". This has not yet gone into effect as the prescribed minimum of member states are yet to ratify the law. It may be noted India has not yet ratified the convention. The document consists of 37 articles plus an additional 14 articles in the annexure. We will go into the relevant aspects to the extent necessary below.

Article 1 defines the scope of the convention. Navigation is specifically excluded from the convention's scope. Article 2 defines important terms including "watercourse". Articles 3 & 4 cover watercourse agreements.

Articles 5 & 6 are the most relevant for our study as these deal with "equitable and reasonable utilization and participation". Article 6 (1) provides a non-exhaustive list of some relevant factors (produced in full below):

(a)   Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character
(b)   The social and economic needs of the watercourse States concerned
(c)   The population dependent on the watercourse in each watercourse State
(d)   The effects of the use or uses of the watercourses in one watercourse State on other watercourse States
(e)   Existing and potential uses of the watercourse
(f)    Conservation, protection, development and economy of use of the water resources of the watercourse and the costs of measures taken to that effect
(g)   The availability of alternatives, of comparable value, to a particular planned or existing use

Article 6 (2) enjoins states to consult each other to ascertain equitable utilization. Article 6 (3) states: "The weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole".

Article 7 calls upon states to prevent significant harm to other states and, if harm does occur, mitigate and/or compensate the harm in consultation the injured states.

Articles 8 & 9 outline the responsibilities related to mutual cooperation and information exchange. Article 10 precludes (in the absence of agreement or custom) inherent priority of any use over others and prescribes the modalities of conflict resolution.

The rest of the convention relates to matters such as preventing and/or settling disputes. These do not merit a detailed discussion at present.

"All things in this creation exist within you, and all things in you exist in creation; there is no border between you and the closest things, and there is no distance between you and the farthest things, and all things, from the lowest to the loftiest, from the smallest to the greatest, are within you as equal things. In one atom are found all the elements of the earth; in one motion of the mind are found the motions of all the laws of existence; in one drop of water are found the secrets of all the endless oceans; in one aspect of you are found all the aspects of existence": Kahlil Gibran

November 25, 2013

Telangana river waters, irrigation & agriculture-10 (Criticism of indian water legislation)

Notes on this chapter

The previous chapters outlined the Indian trans-boundary legislation as well as overview & interpretation of the Indian water regime. The present chapter attempts to "complete" the discussion by looking at criticism from among the scholarly community.

By its very nature, this by no means can be exhaustive or even thorough. This should not deter us as the limited aim of this chapter is to offer a few critical insights into the Indian water regime.

This chapter for obvious reasons can only be subjective. However, the "subjectivity" does not adversely impact the findings of my study. To that extent, this chapter is peripheral to the main body of this study.

Unlike in other chapters, I present the views mostly on an "as is" basis. I limit my comments only to cases where I believe there is an urgent need to correct or supplement the scholar's opinion. This however does not mean I concur or differ with other views on which I am silent.

I realize this chapter may provide some "ammunition" for critics of this work. I leave it in deliberately in order to benefit from the resulting discussions.

RBA: a toothless wonder

Srinivas Chokkakula has published a work called "Disputes, (de)Politicization and Democracy: Interstate Water Disputes in India". This work is funded and made available by Centre for Economic and Social Studies (CESS). His study traverses the work several important scholars.

Chokkakula cites (page 8) RBA as "the only instance where Center has used powers accrued under Entry 56" and explains the boards setup under this law are only advisory bodies.

Chokkakula refers to section 22 of RBA providing for arbitration of disputes over river board advice. He argues this section is redundant as "States are bound by the agreements they enter into through mutual consent, but not by any directive by the Boards". He calls for a comprehensive review of the boards setup till date. He concludes "In the absence of alternative institutional mechanisms to manage interstate rivers, conception of the River Boards as advisory is puzzling".

Stressing that RBA & ISDA are independent pieces, Chokkakula points out that river boards cannot be setup under RBA to implement tribunal decisions.

General criticism of the trans-boundary dispute resolution process

Alan Richards & Nirvikar Singh have published a paper titled "Inter State Water Disputes in India: Institutions and Policies". This work is partly funded and made available by the University of California, Santa Cruz.

Richards & Singh describe (page 2) "plethora of actors and the complexity of the institutional environment" as the key factors behind the apparently inadequate mechanisms for settling inter-state water disputes. They identify the actors as "state governments (which in turn must be decomposed into professional politicians, political parties, and interest groups), the national parliament, central ministries, the courts, and ad hoc water tribunals". The authors stress (page 3): Indeed, there is growing consensus that existing institutions are increasingly fail to generate outcomes which contribute to economic growth and national welfare".

Center vs. states

Richards & Singh assert (page 5) "state governments dominate the allocation of river waters". They cite examples to state "an unambiguous institutional mechanism for settling inter-state water disputes does not exist". They also allege (page 18) the center has on occasion prolonged negotiations "by failing to speedily appoint a tribunal, even when asked".

The authors explain (pages 24-25) "extreme delays have been a very costly feature of the process of resolving inter-state water disputes in India". They cite three contributory factors: central delay in constituting tribunals, long tribunal turn-around time & delays in notification/implementation of the decision.

The authors opine (page 28) Sarkaria Commission's recommendation for amending ISDA to confer the status of a Supreme Court decree on the tribunal decision is not necessary. They note: "tribunals seem to have this force in theory: the problem is of penalties to be imposed for noncompliance". They therefore propose institutionalized enforcement mechanisms.

Chokkakula writes (pages 7-8) that the inclusion of water in the state list has given states a predominant role in water management. He cites Iyer that the center let the states take larger responsibility by not exercising its powers. He argues the phrasing of entry 56, especially the reference to public interest, extends the central scope to all situations where a state's action affects any other state. He contends this includes cases where the river is not trans-boundary.

While the second assertion is untested, most authorities accept that the rights of states are limited to waters within their territories. It is pertinent to note the supreme court held the "The Karnataka Cauvery Basin Irrigation Protection Ordinance 1991" unconstitutional on the ground it was "extra-territorial" (CWDT volume IV; pages 23-24).

Chokkakula raises (page 11) several interesting questions about the non-compliance by states: "Why a particular Act cannot be operationalized in its letter and spirit? Why should Supreme Court intervene to enforce the awards? Does Supreme Court's intervention not undermine tribunals? Why non-compliance is not treated as contempt of court? Can Supreme Court charge non-compliant States with contempt of court?" He mentions Fali Nariman's suggestion of repealing the ISDA and bring interstate water disputes under the jurisdiction of the Supreme Court.

Lahiri argues for a greater role to the central government: "I have, as a solution to this problem and to show the way ahead, advocated the cause for greater Central control. Water is a national resource and a national asset of India as a whole. It is not the property of one state to the exclusion of others. Water has to be distributed amongst the inhabitants of the States and Union Territories which form this great Union known as India. If we are to progress and forge ahead, only greater Central control over waters of inter-state rivers and works associated with them will ensure that water is distributed on the basis of need and not on the basis of ostensible ownership as if it were private property".

Colonial & imperial structures

Chokkakula explains (page 27) the alternate approach of Radha D'Souza at some length. He explains "She argues that reproducing colonial and imperial structural relations are at the root of the problem of interstate water disputes in India".

D'Souza's structural conditions are explained: "The first is a condition created by continuation and internalization of colonial power relations (legal, institutional and administrative)- as illustrated by incorporation of agreements from colonial period, which remained sources of conflict. The second is a condition likened to contemporary reproduction of imperial order ".

Basin as a unit

Richards & Singh write (page 6): "while river basins seem the natural unit for dealing with issues of water sharing, investment and management, they have been the focus of conflict rather than cooperation in the Indian case".

Chokkakula explains (page 27) Radha D'Souza's perspective is rather different. She is credited with the argument that the construction of large dams in post-independence India is an "imperial project". She posits: "Promoted by international institutions like the UN and the World Bank, river basin development as a development project was embraced by postcolonial nations like India".

“Criticism may not be agreeable, but it is necessary. It fulfills the same function as pain in the human body. It calls attention to an unhealthy state of things”: Winston Churchill

November 13, 2013

My submittal to Telangana GoM- part 3/3


Look into the issues related to power generation, transmission and distribution between the two states

Telangana has ample coal reserves while Seemandhra has none. Seemandhra is blessed with gas reserves that are absent in Telangana. As per the "merger voiding" methodology, all coal reserves may be treated as vested with Telangana while the gas reserves are accounted for with Seemandhra. The share of the other state may be determined in accordance with national policy on par with other states.

Neither Telangana nor Seemandhra has any oil reserves. Allocation to the two states may be determined in accordance with national policy.

This method however poses a problem with respect to coal allocations. Several thermal power plants in Seemandhra have received "extraordinary" coal allocations (i.e. in excess of the amount that would have accrued if the region had been an "other state"). This benefit & the resultant compensation may be quantified along with the other aspects relating to ToR8.

To ensure a fair share in power related matters, the following method may be adopted:

·         Transfer of coal from Telangana to Seemandhra in excess of "other state" based entitlement may be stopped in two years from the appointed date
·         Telangana may construct thermal power plants to utilize the expected "surplus" within the said period or sell it to any party at its sole discretion
·         Seemandhra may make alternate arrangements for the coal within the said period
·         During the two years period, Seemandhra may supply power generated from its gas on a 1:1 unit basis (or any numerical formula as close to 1:1 unit as practicable)
·         Telangana may construct gas based power plants to utilize its "other state" based entitlement within the said period
·         No compensation to Telangana for any loss caused by its own delay in setting up the gas based power plants
·         Hydro-electric power sharing from joint projects may be determined based on mutual agreement or central adjudication if it becomes necessary
·         Any requests from Telangana for funding support towards power plants may be considered favorably in order to help the people of Telangana.

The central government may provide incentives to both states for developing non-conventional energy sources. These shall not be deemed to be a package insofar as bifurcation is concerned.


Look into the issues arising on account of distribution of assets, public finance, public corporations and liabilities thereof between the two states

All physical assets including those of public corporations and Government shares in companies & associated liabilities shall be allocated on the following basis:

·         Assets belonging to erstwhile Hyderabad princely state as well as the post-accession part B state of Hyderabad shall be allocated to Telangana
·         Assets belonging to erstwhile Andhra state shall be allocated to Seemandhra
·         All assets other than the above shall be allocated to the state in whose territory they are presently located
·         In case of common assets (e.g. relating to state level institutions or joint projects), the same may be computed and shared as per a formula jointly agreed
·         The liabilities of common assets may be divided in the same ratio as the assets
·         All other liabilities shall be allocated to the corresponding asset

All liabilities relating to public servants including those of public corporations and Government shares in companies & associated assets shall be allocated on the following basis:

·         Pensions shall be allocated based on the local cadre assigned to the individual under the methodology described against ToR9
·         In case of individuals assigned to more than one local cadre under the ToR9 methodology, pensions shall be allocated in the ratio of salary drawn
·         Pension related assets shall be allocated to the corresponding liability
·         Employee loans shall be allocated based on the local cadre assigned to the individual under the methodology described against ToR9
·         Loan related liabilities shall be allocated to the corresponding asset

A High Power Reconciliation & Settlement Committee (HPRSC) may be constituted for a permanent settlement. The committee may consist of three members with representatives of both Governments as ordinary members and a representative nominated by the CAG acting as Chairman. All members may be assisted by a team of experts drawn from various fields. The committee's period of reference may be November 1, 1956 to the appointed day. The term of the committee may be fixed at two years.

HPRSC may be entrusted with the following:

·         Reconcile & compute revenues & receipts as well as expenditure & investment from Telangana & Seemandhra as well as expenditure & investment towards the two future states
·         Reconcile & compute a fair share of central funding including Gadgil share, aid & grants for Telangana & Seemandhra
·         Arrive at a formula for splitting common assets & associated liabilities
·         Decide claims relating to "opportunity losses" & other compensation demands
·         Consider & recommend representations for financial assistance/packages
·         Reconcile & compute the settlements if any to be made

To enable the smooth functioning of the committee, all public servants in both the states may be required to cooperate fully with the committee. Refusal or failure to cooperate with the committee or misleading/obstructing the functioning in any manner shall attract instant disciplinary action.


Look into the issues relating to the distribution of the employees in the subordinate as well as all India services between the two states

There have been serious accusations of discrepancies in public service appointments all these years. These include violation of Mulki rules and the subsequent presidential orders. Similarly there have been allegations on the absence of "fair share" to Telangana officials. The fact that the Girglani Commission suggested as many as 35 remedial measures lends credence to the allegations. It is also alleged that several respondents failed to respond totally or submitted misleading data to the Commission.

A High Power Employment Settlement Committee (HPESC) may be constituted for a permanent settlement of the contentious subject. The committee may consist of three members with representatives of both Governments as ordinary members and a representative nominated by GoI acting as Chairman. All members may be assisted by a team of experts drawn from various fields. The committee's period of reference may be November 1, 1956 to the appointed day. The term of the committee may be fixed at two years.

A one time amnesty scheme may be announced for all serving officials and pensioners. Any individual who may have violated Mulki rules and subsequent presidential orders or abetted/aided in such violations may be allowed to disclose the same within a period of three months from the setting up of the committee. Failure to do so or furnishing a false declaration shall attract instant disciplinary action

HPESC may be entrusted with the following:

·         Verify all claims of violations, whether intentional or otherwise
·         Perform audit checks of appointments to verify compliance to rules
·         Study the violations disclosed during the amnesty period & make appropriate recommendations
·         Initiate actions where found necessary
·         Allocate pensioners & serving officials to the appropriate state (and zone if applicable)
·         Reconcile & compute the settlements if any to be made

Pensioners shall be allocated on the following basis:

·         Individuals guilty of violating the applicable rules directly or indirectly shall be assigned to the region they actually belong to
·         All other individuals shall be assigned to the region to which they were assigned to

Serving public officials shall be allocated on the basis of the local cadre they belong to irrespective of where they presently serve. To the extent practicable, all officials may be accommodated in the same department they presently serve or a related department. Rank, seniority & salary may be protected unless there are strong reasons for not doing so. Retrenchment may be avoided unless absolutely essential. Where retrenchment becomes unavoidable, the first choice may fall on individuals guilty of violating the applicable rules directly or indirectly.

Temporary & outsourced staff shall be allocated on the basis of the local cadre they actually belong to irrespective of where they presently serve. There can however be no guarantees about their continuation in service. The appropriate successor state shall decide each such case.

As a compassionate measure, spouse, children & wards of individuals assigned to a particular region/zone may be accorded local status waiving domicile requirements.

It is expected that Telangana may fall short of the required staffing. These may be filled in by absorbing temporary & outsourced staff allocated to the state. If the shortage persists, these may be filled in by direct recruitment.

To enable the smooth functioning of the committee, all public servants in both the states as well as pensioners may be required to cooperate fully with the committee. Refusal or failure to cooperate with the committee or misleading/obstructing the functioning in any manner shall attract instant disciplinary action.


Look into the issues arising out of the presidential order issued under article 371-D of the constitution consequent to the bifurcation

Article 371-D is essentially of an enabling nature and does not have any effect unless the relevant presidential orders are issued. The provisions relating to public employment, for example, remained in abeyance for a full fifteen months. It may be noted the orders are of an executive nature and therefore can be amended (or withdrawn) without any legislative process.

Articles 3 & 4 confer wide ranging powers to the central government. This was reiterated in several cases including Mangal Singh & Anr v. Union of India, 1966, Maharashtra v. Narayan Shamrao Puranik and Ors, 1982 and Mullaperiyar Environmental Protection Forum v. Union of India & Ors, 2006.

It may be best if the two popularly elected state Governments decide on whether they would like the provisions of the article in their respective states. It is therefore a good idea to rescind the appropriate presidential orders. These may be substituted by a single order covering the following:

·         Constituting on HPESC
·         Protection of existing service category for a period of two years or a decision by HPESC, whichever is earlier
·         Protection of existing educational benefit for a period of two years or completion of Post Graduate education, whichever is later, subject to a maximum period of five years

Appropriate presidential orders may be released on the recommendation of the two state Governments after the elections.


Examine any other matter that may arise on account of the bifurcation of the state of Andhra Pradesh and make suitable recommendations

Any other matter that may arise may be settled in accordance with existing constitutional provisions, applicable due process or precedent in that order.


Article 3 requires that the present state legislature be provided an opportunity "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".

This may be achieved by forwarding the draft reorganization act to AP assembly. In order to expedite the matter, it is suggested that the assembly be provided a period of 5 (five) working days from November 25-29 (both days inclusive). A special assembly session may be called for the purpose.

As article 3 does not require any resolution to be passed or voted, this may be dispensed with. The transcript of the assembly proceedings may be forwarded by the speaker as proof of compliance with the procedural requirement.

The reorganization bill may be tabled on the opening day the winter session of the parliament. Accordingly Telangana can be formed with January 1, 2014 as the appointed day. This would be a welcome Christmas/New Year/Pongal gift to the people of India especially those from Telangana and Seemandhra.

In parting, I would like to thank the GoM for providing an opportunity to Indian citizens to express their views.

Thank you,

Jai Gottimukkala

November 11, 2013

My submittal to Telangana GoM- part 2/3


Look into the special needs of the backward regions and districts of both the states and recommend measures

As stated earlier, it is unrealistic to make any irreversible decision based on data provided by the present AP Government. It is therefore wiser to take up this matter after the next elections based on representations made by the two popularly elected state Governments on the backward areas within their own state.

In principle, the following aspects may be kept in mind in doing so:

·         The erstwhile Andhra state neither requested nor received any financial assistance/package
·         The importance of not further subsidizing a region/district/sector that is already better off comparatively
·         The need for financial assistance/package should be on merits and not as a "competitive bidding" process
·         The need for financial assistance/package in a successor state does not depend on that of the other i.e. these are independent activities
·         Where a state's representation impacts the other state, the latter must be afforded an opportunity to explain & defend its interests
·         The overall interest of the nation, including in particular the fiscal position


Look into the issues relating to law and order, safety and security of all residents and to ensure peace and harmony in all regions and districts consequent to the formation of the state of Telangana and the residuary state of Andhra Pradesh, and the long term internal security implications arising out of the creation of the two states and making suitable recommendations

Entry 1 of list II (state list) of the seventh schedule covers: "Public order (but not including the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in aid of the civil power)".

It is thus amply clear that law & order is a subject within the domain of the state government. Any interference with this division of powers constitutes an assault on the federal nature of the country and therefore tantamount with tampering with the "basic structure" of the constitution. It is earnestly hoped that the central government will refrain from a misadventure of this nature irrespective of such calls by motivated individuals bent upon creating a fear psychosis.

It may be noted at this juncture that article 258-A may not be invoked unilaterally by the center. The provisions of this article are based on the state initiating the transfer on its volition subject to the consent of the center.

Certain individuals are calling for Hyderabad to be made a union territory (UT). This unprecedented retrograde step must be resisted putting at rest the temptation to "buy peace" with such disgruntled elements.

Certain other individuals are canvassing for a "Delhi style" mechanism for Hyderabad. This would again be an unparalleled arrangement without precedent. The situation of Delhi is substantially different on several grounds:

·         An existing UT was converted to a "quasi state" unlike the present case where a city is sought to be deprived of its democratic voice
·         Being the national capital, Delhi needed to be under "dual control"

As no such aspect attends the present case, this "proposal" does not warrant any consideration.

While on the subject of law & order, it may be noted there are criminal allegations including land grabbing, corruption in high places as well as violent crime against several individuals including some who are highly placed. Similarly there are several allegations of atrocities against political & public officials. It is but natural that these cases will be pursued vigorously in the near future. These investigations should not be treated as a "security/safety problem" merely because the accused may happen to hail from a different state.


Look into the sharing of the river water, irrigation resources and other natural resources (especially coal, water, oil and gas) between the two states and also inter-se with other states, including the declaration of Polavaram irrigation project as a national project

Entry 56 of list I (union list) of the seventh schedule covers: "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 (state list) of the seventh schedule covers: "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".

Reading the two lists together, it transpires that every state has the full powers to regulate & develop all its intra-state river waters as well as any inter-state river waters allocated to its share under the applicable legal process.

There is no mechanism for the center to divide river waters between different riparian states. This power is covered in article 262:

"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)".

Inter-State (River) Disputes Act, 1956 (ISDA) is the legislative vehicle enacted under article 262. Section 3 of the act enables any state government to raise a water dispute with one or more other states. Section 4 mandates the central government to constitute a tribunal to resolve the dispute if it cannot be settled by negotiations.

It may be noted here that the tribunal decision is binding on all parties. The jurisdiction of the courts (including the Supreme Court) is barred by ISDA section 11.

The only permissible methods for resolving any inter-state water dispute (including water sharing) therefore are as follows (in sequential order):

·         By mutual agreement between the states
·         By negotiations after a water dispute has been raised under ISDA section 3
·         By the decision of a tribunal appointed under ISDA

None of these methods are open before the formation of a state. An entity can enter into agreements or be a party to a dispute only after it comes into existence.

The central government has no powers to decide on water shares between two states. Its powers under entry 56 and article 4 do not encompass subverting the provisions of article 262. Any such subversion violates the principle of judicial review and therefore tantamount with tampering with the "basic structure" of the constitution.

The present AP Government's entry 17 rights over the entire state are extinguished from the territory of Telangana on the appointed day. Any attempt by AP to impose water share of its choice on Telangana is invalid after the appointed day as the state does not have extra-territorial jurisdiction.

The cardinal principle is that all states are on an equal footing is especially true in a subject like river waters. This principle has been reiterated not only in India but internationally. For instance, Justice David Brewer in Kansas v. Colorado, 206 U.S. 46 (1907): "One cardinal rule underlying all the relations of the states to each other is that of equality of right. Each state stands on the same level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none".

Certain individuals in both the region believe Krishna Water Disputes Tribunal (KWDT) distributed the river waters among different projects. They rely on this to contend the water sharing has been completed. This contention does not hold water for the following reasons:

·         KWDT final order Clause XV reads "Nothing in the Order of this Tribunal shall impair the right or power or authority of any State to regulate within its boundaries the use of water or to enjoy the benefit of waters within that State in a manner not inconsistent with the Order of this Tribunal".
·         AP admitted before the tribunal on March 5, 1976 vide Advocate General P. Ramachandra Reddy's statement: "In view of the contention of the State of Andhra Pradesh concerning the scope of section 5(3) of the Inter-State Water Disputes Act, 1956, and that the allocations are en bloc, the State of Andhra Pradesh is not pressing clarification No. 4 of Andhra Pradesh Reference No. II/1974."
·         The honorable Supreme Court rejected the contention of project based allocations in Andhra Pradesh v. Karnataka & Ors, 2000
·         A tribunal appointed under ISDA does not have any jurisdiction over intra-state waters. Project wise allocations would violate the state's entry 17 rights

AP is divided into 40 river basins including 12 inter-state basins. Two basins (Thammileru & Budameru) would achieve the "status" of inter-state basin post Telangana formation.

Telangana is dominated by two large riverine systems namely Godavari & Krishna. These two basins drain 99.5% of the new state's area.

The situation regarding the various river basins in Telangana is follows:

·         Godavari Water Disputes Tribunal (GWDT) award is a sum of several agreements between the various riparian states. An appropriate agreement can be negotiated between the two successor states after bifurcation. If a negotiated settlement is not reached, a new tribunal may be appointed under the law of the land.
·         The situation regarding the Krishna basin is slightly different. The status of the second KWDT is presently fluid due to litigation by some of the disputing parties. After the decision is gazetted, the sharing between the two successor states can be settled either through negotiations or by a new tribunal appointed for the purpose if negotiations are not fruitful.
·         An appropriate board/scheme under ISDA section 6 (A) may be constituted if the relevant tribunal so decides
·         The rights of the other states are unaffected by the bifurcation process.
·         The basins Thammileru & Budameru cover an area of 3,405 square km and are estimated to generate 20.4 thousand million cubic feet (TMC) of water between them. As Telangana covers only 561 square km (16.5%) of this area, no major difficulty is anticipated in the negotiations for these two minor basins.

Regarding the proposed Polavaram project, it may be noted the project is mired in several controversies. To list just a few:

·         The 1975 agreements restricted submergence of MP & Orissa lands to R.L. +150 feet due to all effects including backwater effect. GoAP however repudiated the agreements submitting that these were concluded due to erroneous understanding. The subsequent agreement of 1980 is believed to have emerged after a good deal of arm-twisting exerted on the states of MP & Orissa then under president's rule
·         Polavaram is not guaranteed to provide any real benefit to Seemandhra farmers. Out of the 288,000 ha proposed ayacut, around 208,000 ha is believed to be already covered under existing and under construction projects. In addition, the project is expected to result in the loss of 74,000 ha of ayacut in the form of land lost to reservoir, canals and urbanization. Thus the net new ayacut created by Polavaram is estimated to be a meager 6,000 ha
·         In addition, lakhs of people in Telangana, Orissa will be displaced due to the submergence. The displaced population include large numbers of tribals thus attracting the provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 and the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959
·         The land submerged includes over 3,800 ha of prime forest land rich in flora & fauna
·         The states of Orissa & Chhattisgarh are opposed to the project. Orissa has approached the honorable Orissa High Court who has decreed that there shall be no submergence within the boundary of the state
·         There is no firm plan on how the additional 45 TMC in Krishna basin would be distributed between Telangana & Seemandhra
·         The dam breakdown analysis of Polavaram conducted by independent engineers indicates catastrophic effect in Telangana as well as Seemandhra. The historic town of Rajahmundry as well as the sacred Ram temple at Bhadrachalam are both likely to suffer severe damage.

Proceeding further with the highly controversial Polavaram project may not be in the interests of the nation or even Seemandhra. It must be stressed here that the so called "national project status" does not facilitate bypassing any statutory requirements or eliminate the opposition by the other riparian states. Granting "national project status" to Polavaram smacks of "enriching the already rich". It therefore appears the decision to accord "national project status" to Polavaram is based on political exigencies. While this is a prerogative of the central leadership, it is essential that no funds should be released till all hurdles to the project are cleared. It is also essential that the central government should stay out of all controversies including inter-state disputes by avoiding even the semblance of arm twisting or leaning towards one side.

As per AP's revenue department records, Seemandhra accounts for around 83.6% of the net canal irrigated area (NCIA) in AP. Telangana which accounts for a meager 16.4% NCIA would obviously require similar funding support. It is proposed that such requests from the new state be considered favorably in order to help the farmers of Telangana.

The ToR related to coal, oil & gas is covered with ToR7.