August 26, 2013

Central institutions in Hyderabad & the "presidential order"

I am interrupting my blog series on river waters, irrigation & agriculture to investigate the link between the presidential order and central institutions in Hyderabad.


Satya, a prominent commenter at Nalamotu Chakravarthy's blog, and I had exchanged a few points about the development of Hyderabad. One of these relates to the role the presidential order had on the development of Hyderabad.

The relevant excerpts are produced below:

satya says:
August 24, 2013 at 7:38 am

Hyderabad getting attention is not only  based on logical model, it is even attested by Presidential order

Jai Gottimukkala says:
August 24, 2013 at 8:12 am

I will be surprised if presidential order reference to Hyderabad can be demonstrated

satya says:
August 24, 2013 at 3:51 pm

Presidential Order
Programme in the State Plan to develop  the infrastructure of the State will benefit the capital city. Other schemes intended specifically for urban development, housing, water supply, expansion of educational and medical facilities etc., also from part of the State Plan. The formula contemplates that special assistance from the Centre to supplement these programmes would also be available. As the formula emphasised the importance of the planned development of the capital city,  Government may also consider the constitution of a suitable Capital Development Authority.”
As per the guidelines of PO, HUDA is formed on 2nd oct 1975”

(Emphasis original: Jai)


The sequence of events leading to the anti-Mulki (aka Jai Andhra agitation) is briefly outlined below:

·         The supreme court case Director Of Industries v. V. Venkata Reddy & Ors was decided on October 3, 1972. Chief Justice Sarv Mittra Sikri delivered a unanimous decision on behalf of the six member full bench of the apex court.
·         The honorable court held Mulki rules continued to be valid not withstanding the striking down of section 3 of Public Employment (Requirement as to Residence) Act, 1957 (Act 44 of 1957).
·         Interpreting the legislative intent behind the 1957 Act, the learned judge held if section 3 was struck down, so would section 2. Justice Sikri wrote: "In, our view it is clear that Parliament would not have enacted S. 2 without s.3 as far as Telangana is concerned".
·         The net effect was the reinstatement of the Mulki rules with retrospective effect
·         As Telangana was ruled to be out of the ambit of the 1957 Act, the judgment also effectively abolished the fifteen year time limit set in the Act.

This judgment provoked a widespread agitation in the Andhra & Rayalaseema districts. The political leadership of the two regions, with a few rare exceptions, threw their hats in the ring and led the agitation from the front. While a full discussion of the agitation is unwarranted at this time, it is sufficient to acknowledge the violence unleashed by the agitation wreaked great havoc.

The central government imposed president's rule on January 10, 1973. Indira Gandhi initiated measures to restore law and order and simultaneously tried to broker a solution to the vexed problem. The president's rule was lifted on December 10, 1973 after eleven months of strife.

The "solution" as worked out took the following route:

·         A so called six point formula (SPF) enunciated by Congressmen across the regions through a statement on September 21, 1973
·         Clarifications issued by Congressmen across the regions through a statement on October 22, 1973
·         Passing of the Constitution (Thirty-Second Amendment) Act, 1973
·         Insertion of new articles 371 D and 371 E as enabled by the thirty second amendment
·         Issuance of the Andhra Pradesh Public Employment, (Organization of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (aka G.S.R. 524 (E)) on October 18, 1975 as enabled by article 371 D.
·         Establishment of Hyderabad Central University (HCU) as enabled by article 371 E


The statement of September 21, 1973 outlines the six principles (points) agreed upon:

·         Point 1 stresses accelerated development of the backward areas and planned development of the capital with specific resources earmarked for these purposes. The point inter alia calls for association of backward area representatives and suitable experts in formulating & monitoring backward area development. The point does not mention any such mechanism for the development of the capital.
·         Point 2 relates to the establishment of HCU and preference to local candidates in educational institutions
·         Point 3 relates to preference to local candidates in direct recruitment of state government employees other than specifically stated exemptions
·         Point 4 calls for the constitution of a high power administrative tribunal to deal with the grievances of services regarding appointments, seniority, promotion and other allied matters
·         Point 5 calls for a constitution amendment to ensure the above principles can be implemented without giving rise to unnecessary litigation
·         Point 6 is quoted in full: "The above approach would render the continuance of Mulki Rules and Regional Committee unnecessary"

The statement concludes with the remark: "We are convinced that the accelerated development of the backward areas and planned development of the State capital are the major factors which will help in successfully implementing the above principles, We would, therefore, urge upon the Central Government to take a generous view in the matter of financial assistance to the State for the development of these areas".

SPF clarifications

The statement of October 22, 1973 provides further clarifications on the six point formula. This statement has eleven paragraphs:

·         Paragraph 1 highlights the basic approach of SPF: "The formula was intended to indicate the basic approach to promote the accelerated development of backward areas, a balanced development of the State as a whole and to provide equitable opportunities to different areas of State in the matter of education, employment and career prospects in public services, with a view achieve a fuller emotional integration of the people of Andhra Pradesh".
·         Paragraph 2 emphasizes the accelerated development of backward areas. The statement leaves the task of identifying the backward areas to the popular government
·         Paragraphs 3, 4 & 6 delves into the modalities of the development of backward areas
·         Paragraph 5 is quoted in full: "Programme in the State Plan to develop the infrastructure of the State will benefit the capital city. Other schemes intended specifically for urban development, housing, water supply, expansion of educational and medical facilities etc., also from part of the State Plan. The formula contemplates that special assistance from the Centre to supplement these programmes would also be available. As the formula emphasised the importance of the planned development of the capital city, Government may also consider the constitution of a suitable Capital Development Authority".
·         Paragraphs 7 through 10 delve at some length into the definition of local candidate, preference mechanisms and related mechanisms.
·         Paragraph 11 reiterated: "We are satisfied that the six-point formula provide all the necessary policy directives for comprehensive detailed schemes to be drawn up and implemented in due course. The association of the Central Government in the implementation of the six-point formula will make available to the State Government the necessary expertise and national guidance. As soon as a popular Government is restored in Andhra Pradesh the stage would be set for the State and the Centre to take upon themselves without any delay the implementation of the formula".

Thirty Second Amendment

The statement of objects & reasons traces the history leading to the SPF evolution. It inter alia reads: "This  Bill  has  been brought forward to  provide  the  necessary constitutional authority for giving effect to the Six-Point Formula in so  far as it relates to the provision of equitable opportunities  for people  of different areas of the State in the matter of admission  to educational  institutions and public employment and constitution of an Administrative  Tribunal  with  jurisdiction  to  deal  with    certain disputes  and  grievances relating to public services.  The Bill  also seeks  to  empower Parliament to legislate for establishing a  Central University  in the State and contains provisions of an incidental  and consequential  nature  including the provision for the  validation  of certain  appointments  made  in the past.  As  the   Six-Point  Formula provides  for the discontinuance of the Regional Committee constituted under  clause  (1) of article 371 of the Constitution, the  Bill  also provides for the repeal of that clause".

It is pertinent to note development of the capital is not mentioned anywhere in the statement of objects & reasons. The fact that this matter is not covered in the amendment therefore comes as no surprise.

Presidential order

The order has 7 sections.

·         Sections 1 & 2 relate to title, commencement & definitions
·         Section 3 requires the state government to organize local cadres
·         Sections 4 & 5 relates to the allocation of individual employees to the local cadres and the associated transfers
·         Section 6 delves into local areas
·         Section 7 goes into a good amount of detail on local candidates

The presidential order is authorized by article 371 D that in turn was inserted by the thirty second amendment. The order therefore is as silent about the capital development as the amendment, its source of authority.

Initial reaction

The following conclusions may be drawn based on the above:

·         SPF # 1 related to the accelerated development of backward areas as well as planned development of the capital.
·         Paragraphs 1 through 4 of the October 1973 clarification statement relate to the first leg of SPF # 1 i.e. accelerated development of backward areas
·         Paragraph 5 of clarification statement relates to the second leg i.e. planned development of the capital
·         None of the other five SPF points or the clarification statement paragraphs relate to the development of either backward areas or the capital

Satya in effect quotes paragraph 5 of the October 1973, not the presidential order. Dismissing his contention on this technical ground is, however, unreasonable and frivolous.

Further examination

It is clear SPF # 1 did not receive any legislative support unlike the other five points that were acted upon. This may be because it was believed this principle could be established through executive action.

I am also unable to find any evidence of mechanisms to implement SPF # 1. Schemes as well as Capital Development Authority referred by clarification # 5 do not appear to have taken off. This may however not be a deterrent if executive action is adequate to implement the principle.

As SPF 2-6 are outside the present debate, I decided to ignore the following questions:

·         Were SPF 2-5 effectively implemented?
·         If yes, did they achieve the intended objective?
·         Do the results justify the scrapping of Mulki rules & regional committees as per SPF 6?
·         Will Telangana formation invalidate article 371 D in so far as it pertains to the new state?
·         If it does, are Mulki rules reinstated as on the appointed date?

I am also not concerned about the benefit if any received through SPF # 1. It is probable that the first (and arguably more important) leg of SPF # 1 was never implemented earnestly. I limit myself to the implementation, if any, of the second leg i.e. development of the capital.

I spent time looking up the central institutions located in and around Hyderabad. The results sorted by the starting date (or the date of shifting to Hyderabad) are as follows:

·         Praga Tools (1943)
·         NPA (1956)
·         NIN (1958)
·         DLRL (1961)
·         DRDL (1962)
·         BHEL (1963)
·         DMRL (1963)
·         HMT (1965)
·         HAL (1965)
·         ECIL (1967)
·         IDPL (1967)
·         NFC (1971)
·         Dundigul AFA (1971)
·         HCL (1972)
·         NRSC (1974)
·         CCMB (1977)
·         CMC (1982)
·         RCI (1985)
·         BEL (1986)


The presidential ordinance is dated 1975. However as our frame of reference is the statement of September 21, 1973, it is a good idea to treat 1974 as the cut-off date.

The first 14 institutions were started on or before 1972. They are therefore related to SPF # 1.

The next three (HCL, NRSC & CCMB) look to be based on SPF # 1.

I am not too sure about CMC (1982). Computers were still a novelty back then. CMC has since been privatized.

I strongly suspect RCI was setup as a logical consequence to the establishment of three other DRDO laboratories. The same may apply to the BEL vs. ECIL situation. In any case, the license-quota raj was slowly coming to an end.

I did not include HCU (1974) above as it clearly falls under SPF # 2. I also excluded Ordnance Factory (1984) as I deem it to be a result of Indira Gandhi's Medak election promises.

What do the results show? Three (or perhaps four if you include CMC) of the central establishments in and around Hyderabad can be linked to the SPF # 1. The others constituting the vast majority are clearly unrelated.

Did the others come to Hyderabad because it was the capital? I do not believe so. In any case, these are outside the scope of this post.

Did I miss any others? Please let me know if I did and I will gladly reassess.

August 25, 2013

Telangana river waters, irrigation & agriculture-5 (Water rights: other perspectives)

Harmon "doctrine"

Harmon "doctrine", more correctly the assertion of "absolute territorial sovereignty", is attributed to the former US Attorney General Judson Harmon. This assertion is sufficiently important to this study to warrant a brief discussion.

Stephen C. McCaffrey in his work "The Harmon Doctrine One Hundred Years Later: Buried, Not Praised" offers insights into the origin of the "doctrine" as well as its applicability.

McCaffrey explains (page 3) absolute territorial sovereignty as a concept "according to which a state could do virtually as it pleased with the portion of an international watercourse within its territory- at least short of changing its course so it entered the downstream state at a different location- irrespective of the harmful consequences in the downstream state".

The assertion is traced to Harmon's 1895 opinion in response to the Department of State's request on the dispute raised by Mexico over the waters of Rio Grande.

McCaffrey quotes (page 17) Harmon: "The fundamental principle of international law is the absolute sovereignty of every nation, as against all others, within its own territory". He argues (page 20) Harmon's premise is based on a misinterpretation and selective reading of the supreme court's decision.

As it turns out, the Harmon opinion was not used by the US Government in its response to the Rio Grande dispute. McCaffrey writes (page 33): "In a number of instances the United States has taken positions inconsistent with the Harmon Doctrine. The arguments of the United States in these cases tend to reinforce the conclusion that the Harmon Doctrine represented advocacy in a particular case rather than a statement of what the United States objectively regarded as a principle of international law".

Even though the "doctrine" that McCaffrey calls "perhaps the most notorious theory in all of international natural resources law" has never been used to determine water rights anytime, it has been invoked on several occasions. Karnataka invoked this indirectly (and unsuccessfully) before the Cauvery Water Disputes Tribunal (CWDT). Peter Gleick in his article "Whose water is it? Water rights in the age of scarcity" calls the three countries (China, Turkey & Burundi) that voted against Convention on the Law of the Non-navigational Uses of International Watercourses "upstream nations who want to apply the Harmon doctrine on their major rivers to the detriment of their downstream neighbors".

The theoretical opposite of the Harmon "doctrine" is the principle of "absolute territorial integrity". We will encounter this in one form or the other later in the study.

"Modern" water rights

Having started the discussion on water rights with Hodgson's definition, it may be fitting (or ironic?) that I return to Hodgson's main focus i.e. "modern" water rights towards the end of the discussion on this subject.

Hodgson provides a variety of reasons for the origin of modern rights. These include the inadequacy of land based approaches, the transition from socialist to market economics etc. He also delves briefly into the associated concept of "transferable water rights" (TWR) that are amenable to trading. A detailed discussion on these factors as well as most of the details in Hodgson's publication is beyond the needs of this study.

Hodgson describes (pages 46-47) the "nationalization" of water resources (including ground water) as the first step towards the establishment of "modern" water rights. This effectively takes out water from the "negative community" and bestows the "ownership" and/or "control" in the state. He cites examples of several countries that enacted laws or issued "water codes" to formalize the change. Most of the examples relate to the period after 1989.

Hodgson demonstrates the next step of institutionalizing water resources management in some detail. He proceeds to describe the other steps such as assignment of rights and involvement of stakeholders. He includes examples of Albania, Uganda, Victoria, Italy, Morocco and several other countries.

The details of Hodgson's commendable work are unnecessary to the purpose of this study. It is sufficient to acknowledge the following:

·         The "modern" rights regime is expected to recognize all "existing" rights
·         The only reference to India relates to the selling of ground water that Hodgson acknowledges has "nothing to do with water rights or the trade in water rights except to demonstrate that farmers and other water users understand that water has an economic value"

The former is not surprising given similar "grandfather clauses" are common in most transitions. The latter is also on expected lines based on the widely prevalent notion of "negative community" in India. It may be noted here the National Water Policy, 2002 (NWP) issued the Ministry of Water Resources (MoWR), India, does not take up either "nationalization" of water resources or the "economic value" of water.

In summary, the emerging concept of "modern" water rights is by no means established well or widely accepted. In the Indian context, it could be much more difficult for this to evolve. The concept is likely to face fierce resistance from those who portray water as a "commons". Given that these scholars dominate the water discourse in contemporary India, it is doubtful if the concept will be relevant to Indian water scenario anytime in the near future. The idea, especially the possibility of trading water rights, is nevertheless interesting for future thinking.

An interesting point in Hodgson's publication is that it does not prescribe how water rights should be assigned. This may be because it would vary between nations based on law, custom and needs. The major focus is on the management of rights and this needs to be welcomed. The fact that some countries have implemented the concept of "water as an economic good" is incidental and not integral to the process.

Nature of water

As the previous section on "modern" water rights touches on water as a tradable commodity, it is important we delve slightly deeper into the subject. This requires us to understand the intrinsic nature of water as applied to human endeavors.

KK Lahiri has authored a work titled "The Genesis and Evolution of the Inter-State River Waters Disputes Act, 1956- a Study”. The introduction and first part (titled "Proprietorial and other Rights in Flowing or Running Waters") is available as an article made available by the Indian Law Journal. Lahiri citing Roscoe Pound on the evolution of res communes. Pound is quoted as saying:

“Pufendorf rests his whole theory upon an original pact. He argues that there was in the beginning a “negative community”. That is, all things were originally res communes. No one owned them. They were subject to use by all. This is called a negative community to distinguish it from affirmative ownership by co-owners. He declares that men abolished the negative community by mutual agreement and thus established private ownership. Either by the terms of this pact or by a necessary implication what was not occupied then and there was subject to acquisition by discovery and occupation, and derivative acquisition of titles proceeding from the abolition of negative community was conceived to be a further necessary implication”.

Lahiri demonstrates that land ceased to be a negative community while running water, air & light continue to remain so. He concludes "Thus, unlike land, no individual, state or government can own running waters like land or territories".

R. Ramaswamy Iyer, former MoWR secretary and a prolific scholar on water matters, summarizes three popular alternate views about the nature of water in the article "Water: from Problems and Issues to Questions of Law" (keynote address at the IELRC 2006 workshop on "Water, Law and the Commons"):

·         Water as a basic right
·         Water as an "economic good"
·         Water as "Common Pool Resource (CPR)"

Iyer reiterates the "negative community" status of flowing water and postulates the public trust doctrine that holds "water and other natural resources are not owned by the state but held by it in trust for society". He suggests the doctrine should not be limited to state vs. society alone but needs to extended (e.g. between present & future generations).

Nirmal Sengupta in the article "Common Property Water–a Comparative Perspective" (another keynote address at the IELRC 2006 workshop) posits the "pre-eminence of state" doctrine. He explains this is why the government, when starting an irrigation project, acquires land for "public purpose" but does not feign to formally acquire water rights.

Joseph Dellapenna in his article "Markets for Water: Time to Put the Myth to Rest?" (published by the Journal of Contemporary Water Research & Education) summarizes his own arguments against the concept of water markets.

He begins by observing markets in flowing waters have been extremely rare. He asks "If markets for water are so good, why are they so seldom used?" He writes that economists and other water market proponents have no reasonable answer "except to denigrate their critics as holding cultural, religious, even mystical prejudices about water". He concludes "This attitude, however, overlooks that water is not like other resources".

Dellapenna captures the two essential qualities of a "public good" like flowing water: indivisibility and "publicness". He defines indivisibility as meaning "goods cannot be divided among the consuming public so as to allow some consumers access to the resource while excluding other potential consumers". Publicness means "the resource is shared freely (if not equally) among the group—consumption by one person does not, at least under most circumstances, interfere with consumption by others". He concludes a public good as "one that all within the relevant public must enjoy more or less equally, or none will enjoy the good at all".

Dellapenna colorfully asks "How much can one charge others for viewing the blue sky over one’s property?" He goes on to answer "The only costs, if any, associated with a public good are the costs of capture, transportation, and delivery, not a cost for the good itself".

Dellapenna obliquely refers to the CPR angle by citing "the tragedy of the commons” that led to obliteration of precious resources. He cites other options including "water banks" and the "public property option".

The differences of opinion between two eminent experts (Iyer & Dellapenna) provide interesting clues about the future dimensions the water debate is likely to take. Some of the positions are nuanced to a good extent. For the purpose of this study, it is sufficient to acknowledge the Indian situation of public trust should not result in the tragedy Dellapenna warns us of.

Turning to water pricing, Iyer argues against the extreme positions of "water free for everyone" and "full cost recovery". Without making any firm recommendations, he cites factors that are suggestive of a via media. He is pragmatic on full pricing and writes: "At the same time, the principle of economic pricing is valid not merely in the case of economic uses such as irrigation or industry, but even in respect of domestic water supply to the relatively more prosperous and of course the rich. There is no reason why the middle and upper classes should not be charged the full economic price for the water that the public system delivers to them".

August 16, 2013

Telangana river waters, irrigation & agriculture-4 (Water rights in modern legal traditions)

Water rights in civil law jurisdictions

Hodgson writes that water rights in both civil law and common law traditions are "land based approaches". He states "Under both the common law and civil law traditions, the right to use water depended primarily on the use or ownership of land or structures built on such land. The logic of this approach is based on the fact that historically most water rights, apart from those relating to "in-stream" uses, related to the use of water on land".

He separates surface water rights (pages 19-25) from ground water rights (pages 25-27) in his study. It may be noted that both traditions treat underground streams on par with surface water. I will follow my own method of separating civil law from common law.

Hodgson also devotes a few paragraphs to "rights to water in artificial water courses". I do not propose delving into this subject.

Hodgson states Roman law (and others including Islamic law) held that running water was a part of the "negative community" (res communes) of things that could not be owned along with air, the seas and wildlife. However, it could be used for benefit and the usufruct (i.e. right of enjoying a negative community item) needs to be regulated.

Roman law differentiated between the more important watercourses (e.g. rivers) from the less important. The latter was considered amenable to private ownership but the others were deemed to be public. A public stream was open to anyone who had access to them.

The Napoleonic code retained a similar distinction. A "navigable" or "floatable" watercourse was deemed to be public. Their use required a permit or authorization from the Government.

Hodgson mentions other cases including "the Spanish Water Act of 1886 considered as private all surface waters, that is waters springing in a private property and rainfall waters, but only for its use on that land and not beyond the limits of that estate".

Hodgson writes civil law surface water rights could be considered a riparian system to some extent as "Roman law did not provide for involuntary servitude of access". This point will become clear when we discuss the doctrine of riparian rights applicable in common law.

Regarding ground water, Hodgson shows it to be a property of the owner of the land above it. He cites article 552 of the French Civil Code "Ownership of the ground involves ownership of what is above and below it. An owner may make above all the plantings and constructions which he deems proper, unless otherwise provided for in the Title of Servitudes or Land Services".

Common law

India, like most of the former English colonies, follows the common law. Krishna Water Disputes Tribunal (KWDT or KWDT-I) states: "The Indian law is based on the common law of England. The common law doctrine has been considerably modified in England by the Water Resources Act 1963, Chapter 38, sections 23 to 32, but the general Indian law continues to be the same as before" (volume I, page 79).

As the Indian law is based on the common law of England (as it was in 1950), it is important for us to understand the system in slightly greater detail than the previous chapter's brief coverage. The following paragraphs provide adequate input on the fundamental thrust of the common law tradition.

Justice David Brewer in the opinion (as judgments are called in the US) in Kansas v. Colorado, 206 U.S. 46 (1907) quotes the jurist James Kent: "The common law includes those principles, usages, and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature".

Justice Brewer goes on to explain further: "As it does not rest on any statute or other written declaration of the sovereign, there must, as to each principle thereof, be a first statement. Those statements are found in the decisions of courts, and the first statement presents the principle as certainly as the last".

The role of precedent in common law is confusing to many people including some in the legal fraternity. Precedence as a concept relates to the principle, not the fact being judged.

The importance of precedent has sometimes led to the common law tradition being described as "judge made". This is misleading: judges state the legal principles applicable but do not draft the law. The "first statement" is a summary of positions already established and being followed.

Several judgments in the American system are "unpublished" i.e. these opinions are not published in the appropriate Law Report. This is because the judge deems these are deemed not to have any precedential value.

Stare decisis is subject to the hierarchy as well as jurisdiction. A legal principle set out in a lower court may not be relied upon by a superior or appeals court. Similarly a precedent from a different jurisdiction may not be treated as binding.

It is essential to note stare decisis is neither infallible nor eternal. Legal principles can be (and, in several instances, have been) subsequently overturned. A legal principle thus overturned on fundamental grounds ceases to be stare decisis and may not be relied in further discourse.

For instance, the landmark class action suit Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) overturned the "separate but equal" principle legal doctrine prevalent for over sixty years and previously upheld in Plessy v. Ferguson, 163 U.S. 537 (1896). Chief Justice Earl Warren took a fresh look at the doctrine writing "In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written". Justice Warren goes on to state: "Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal".

Water rights in common law jurisdictions

Hodgson states that common law tradition did not share the distinction between public and private waters. However, common law continued the Roman practice of treating flowing water as publici juris. On a different note, Hodgson is no fan of the distinction writing elsewhere "Whatever logic it may have held for the legal scholars of old, the idea of distinguishing private waters from public waters is nonsense from a hydrological perspective".

Hodgson describes the riparian rights doctrine (sometimes referred as riparianism) in detail. The doctrine developed gradually in England and the original 13 US states through a series of court decisions.

Riparian rights were treated as not subsidiary land rights but an integral part of land ownership.

The riparian rights doctrine held that a riparian owner had the right of making "ordinary" use of water flowing in his or next to his property. This encompassed "reasonable use" for domestic purposes and for watering livestock. These rights could be exercised without considering any effect they may have on downstream proprietors.

In addition, a riparian proprietor also had the right of using the water for "extraordinary" purposes (such as irrigation) provided it did not interfere with the rights of other proprietors, whether upstream or downstream.

Hodgson states that the extraordinary use rights are subject to significant restrictions. He writes "Specifically, the use of the water must be reasonable, the purpose for which it is taken must be connected with the abstracter's land and the water must be restored to the watercourse substantially undiminished in volume and unaltered in character". The question of reasonableness of an extraordinary use must, he avers, be ascertained by reference to all circumstances.

Hodgson details a special system called "prior appropriation doctrine" prevalent in certain parts of the USA. As we will see, this doctrine is of considerable importance to this study. We will therefore go into it in a greater detail later in the study.

Regarding ground water, Hodgson says the net effect is the same as in civil law although the conceptual route is different. He quotes Ballard v. Tomlinson, 1885, to show "there is no property in water percolating through the sub-soil until it has been the object of an appropriation". This means the proprietor can sink a well in his property to prevent the flow of water to nearby streams. The major difference is that a common law proprietor can not bring suit on a neighbor whose actions interfere with "his" ground water.

Prior appropriation doctrine

The prior appropriation doctrine, often stated as "first in time, first in right" and sometimes referred to as the "Colorado doctrine" presents a dramatically different approach to water rights. This doctrine effectively severs the link between land ownership and water rights.

Hodgson explains the doctrine originated in the nineteenth century gold rush to meet the needs of miners. As they washed their gold in public lands, they could not claim riparian rights. Subsequently the doctrine was extended to include private lands.

Hodgson cites David Getches to show the prior appropriation doctrine applies to nine American states (including Colorado, New Mexico & Wyoming). The situation in ten states (including Kansas & Nebraska) is mixed as both prior appropriation and riparian rights doctrines prevailed either simultaneously (in different parts) or in parallel (at different times).

The prior appropriation doctrine confers water rights on any individual who diverts water for a beneficial use. The date of appropriation determines the priority of an individual proprietor. If the volume of water available is inadequate for the requirements of all users, junior proprietors may receive only some of their needs or even none.

Hodgson lists three essential elements for an appropriation to be valid:

·         "the intention to apply the water to a beneficial use;
·         an actual diversion of water from a natural source;
·         the application of the water to a beneficial use within a reasonable time period"

Hodgson cites Getches to demonstrate that the states following the prior appropriation doctrine established administrative measures (e.g. a permit) to record the water volume and priority (i.e. the effective date of appropriation).

Justice Willis Van Devanter writes in his opinion in Wyoming v. Colorado, 259 U.S. 419 (1922):

"This doctrine of appropriation, prompted by necessity and formulated by custom, received early legislative recognition in both territories, and was enforced in their courts. When the states were admitted into the Union, it received further sanction in their Constitutions and statutes, and their courts have been uniformly enforcing it".

Justice Van Devanter also dwells at length to determine the principle behind the effective date of appropriation. While the first proposal for the project at the heart of the dispute was mooted in 1897, the eminent judge held "the appropriation should be accorded a priority by relation as of the latter part of October, 1909, when the work was begun".

The priority is tightly coupled to the beneficial use of the appropriation, not to the proprietor. The priority ceases when the use is abandoned, modified, terminated or when the termination activities are begun. A new use of a previously beneficial appropriation goes to the bottom of the line. The priority can not be traded or transferred independent of the use. Different proprietors pooling their uses would still retain the individual priorities.

Justice Thurgood Marshall writes in his opinion in Colorado v. New Mexico, 459 U.S. 176 (1982):

"Appropriative rights do not depend on land ownership, and are acquired and maintained by actual use. Riparian rights, by contrast, originate from land ownership and remain vested even if unexercised. Appropriative rights are fixed in quantity; riparian rights are variable, depending on stream flow and subject to the reasonable uses of others".

Justice Gregory Hobbs, Jr. of the Colorado Supreme Court in his paper "History of Colorado Water Law: Adaptation & Change" (published by the Colorado Foundation for Water Education) provides an interesting insight into the origin and applicability of the prior appropriation doctrine. We will go into this at a more appropriate point later in this work.

As we will see later, the prior appropriation principle is neither unfettered nor absolute. The limitations of a priority are recognized in American case law and acknowledged internationally.

It is important to note the prior appropriation doctrine is not limited to water rights. Simultaneously (and in large parts for similar reasons), the doctrine was also applied to the mining of precious metals. The federal General Mining Act of 1872 gave individuals the right to stake mining claims on public lands with similar restrictions (e.g. effective date of appropriation & invalidation in the case of non-use). The application of the doctrine to both domains complemented each other.

"A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it": Justice Oliver Wendell Holmes, Jr. in New Jersey v. New York, 283 U.S. 336 (1931)

August 09, 2013

Telangana river waters, irrigation & agriculture-3 (Water rights)

Defining water rights

A precise definition of the term "water rights" is not easy.

The publication titled "Modern water rights- theory and practice" prepared by Stephen Hodgson for Food and Agriculture Organization (FAO), a United Nations (UN or UNO) agency, looks at the theory and practice behind the emerging concept of "modern water rights". While much of the work relates to this concept, the publication is also useful in understanding "traditional" water rights in the two currently dominant legal traditions (civil law & common law).

The publication also provides a definition of the term "water rights" as generally understand. Hodgson states (pages 13-14) "Indeed the term "water right" is actually used in different contexts and different jurisdictions to mean quite different things". He explains this is so because each country has its own unique needs and argues "What is normal and reasonable in one country as regards both the use and regulation of water may appear quite strange or even irrational elsewhere". He argues separately (page 17) that the terms "water rights" and "right to water" are broadly unrelated.

Hodgson starts with a simple definition: "So just what is a water right? In its simplest conception a water right is frequently understood to be a legal right to abstract and use a quantity of water from a natural source such as a river, stream or aquifer".

Hodgson goes on to mention other factors including the flow of water and "non-consumptive" rights. He thus arrives at a complex but more inclusive definition:

"Thus, depending on the specific legal rules in force in a given jurisdiction a water right may be necessary:

·         to divert, restrict or alter the flow of water within a water course;
·         to alter the bed, banks or characteristics of a water course, including the construction (and use) of structures on its banks and adjacent lands
·         including those related to the use and management of water within that water course;
·         to extract gravel and other minerals from water courses and the lands adjacent to them;
·         to use sewage water for irrigation;
·         to undertake fishing and aquaculture activities;
·         for navigation; and/or
·         to discharge wastes or pollutants to water courses"

An overview of legal systems

Because water rights depend to a great extent on the applicable legal system, a brief study of legal systems is in order.

The sources of law are generally categorized as:

·         Natural law (or natural justice) based on inherent natural aspects (and therefore universal)
·         Religious law (sometimes called "canon law") derived from religious text, rulings & practices
·         Customary law based on traditions & customs
·         Constitutional law (statute law) as codified in the respective constitutions and systems derived from the constitution

There are several overlaps or contradictions. Customs and religious practice often influence each other. Several statutes in the civil law tradition codify traditional practices.

It needs to be emphasized here that most national legal systems include elements from one or more sources. The above classification is therefore important but not adequate for the purpose of this study.

While every nation has its own set of laws, these can be broadly categorized into one of the below legal traditions:

·         Civil law
·         Common law (sometimes called the English common law)

Both these traditions originated in Europe (ancient Greece & the Roman empire) and gained adherence as nations developed. Common law is believed to have emerged in England & Wales between the end of the Roman rule and the Norman conquest. This explains the widespread use of Latin terminology in common law.

Common law is prevalent in England & Wales as well as most of the former English colonies. North of Hadrian's Wall, Scotland developed a separate indigenously developed common law. A small group of nations (e.g. South Africa) follow a hybrid of civil law and common law traditions. Most other countries follow the civil law tradition.

It needs to be noted that the legal systems adopted by individual nations vary quite a bit. All civil law countries for instance do not necessarily follow the same law. An interesting example is Germany, a leading civil law nation and Israel that follows English common law use the jus sangunis principle of nationality determination as distinct from the jus soli principle followed by the rest of the world.

The difference between the two traditions is quite deep. A full examination of these differences is not necessary to the current study. It is sufficient to acknowledge that civil law is subject to a great degree of codification while common law is driven primarily by stare decisis (precedent). In other words, the difference between the two traditions is about law making, not laws.

It has been argued that the two traditions are converging in today's changing world. Common law jurisdictions do have extensively codified statutes. Civil law regimes have of late started recognizing precedent. While this argument has a good deal of merit, the differences persist at the time of writing.

For the purpose of this study, I decided to examine water rights in important religious laws and both the major legal traditions.

Hindu water law

The collection titled "The Evolution of the Law and Politics of Water" edited by Joseph W. Dellapenna & Joyeeta Gupta includes a chapter (# 10) on "India: Evolution of Water Law & Policy" written by Phillippe Cullet & Joyeeta Gupta. This chapter is made available by the International Environmental Law Research Center (IELRC).

Cullet & Gupta write (page 3):

"The Laws of Manu (ca 200–100 BCE), within this tradition, provide indications of the water law of the time. Water was considered indivisible. Those who could were obligated to develop water works for the benefit of others (chapter IV, §§226, 229). Kings should protect public waters and collect fees for crossing waters (chapter VIII, §§61, 69; chapter IX, §§264–266, 281). Diversion or obstruction of waters was discouraged (chapter III, §151) and the laws imposed a system of social reprimands and punishments for those who polluted the water or who stole or diverted (chapter IV, §§46, 48, 56; chapter XI, §174; chapter VIII, §309; chapter IX, §281). Destruction of embankments was illegal. The law encouraged the use of water bodies as boundaries between villages to ensure that as many villages as possible had access to water (chapter VII, §§4–7). Water bodies of enemies, however, could be destroyed in times of war (chapter IX, §28). A water controller was in charge of water administration".

The authors go on to discuss Kautilya's Arthashastra on page 4. They state "Arthashastra discusses the use of water for the development of water works, irrigation, and transport, specifying that all water belonged to the king and that users were to pay a water tax to withdraw water from irrigation systems installed by the king (Kautilya ca 300 BCE–300 CE: 73–74)".

According to Cullet & Gupta, there were limited provision for private ownership of tanks & embankments. While these rights were somewhat akin to property rights (for instance the "owners" could sell these), the "ownership" was limited to use & maintenance. Rights lapsed if tanks were not used for five years.

With respect to irrigation Cullet & Gupta write "The Arthashastra stated that in irrigating one’s own field, no harm is to be caused to others. It prohibited the release of water from dams without a legitimate reason, the obstruction of the legitimate use of water by others, the obstruction or diversion of the watercourse, and the building of water works on the land belonging to someone else. Where damage was caused to another party as a result of overflowing waters, compensation was owed to the other party. The Arthashastra provides a list of damage types and the corresponding compensation or penalty due".

It may be worth noting that Manu is a law giver while the Arthashastra is a guide to statecraft. As such it is more appropriate to defer to Manu's prescription. However this is not serious in the present context as there are no apparent contradictions between the two scholars on water rights.

Hindu water law may be briefly summarized as below:

·         Water is considered to be indivisible
·         Water is to be used for the benefit of the general public
·         Water is owned by the state (or king)
·         Limited water rights to private individuals subject to continuous beneficial use
·         Water users should cause no harm to other users
·         Compensation or penalties for damages caused to others

Jewish water law

Halakha (Jewish law) does not provide much material on water rights. None of the 613 mitzvahs (commandments) directly relate to water rights. This may be because the law is primarily addressed towards individuals.

The Book of Genesis is the first section of the Hebrew Bible, covering the creation of the world. Genesis 2.6 can be translated as "streams came up from the earth and watered the whole surface of the ground". Ecclesiastes, a book of writings presented as the autobiography of an unknown teacher named Koheleth, is another section of the Hebrew Bible. The book is considered alternatively as an embodiment of wisdom or a way of life. Ecclesiastes 1:7 can be translated as "All streams flow into the sea, yet the sea is never full. To the place the streams come from, there they return again". These verses are often interpreted to determine the ancient Hebrews had a good knowledge of the water cycle.

Dr. Daniel Eisenberg, a Talmudic scholar specializing in Jewish medical ethics, wrote an article called "Rationing Health Care" for the Jewish Law Commentary. The article relates in part to the subject of water shortages. This section can be used to understand the stance of Judaism on water rights.

Dr. Eisenberg cites the Talmud (Nedarim 81a) that describes a scenario in which two cities share a water supply that originates with the city at the top of a hill. He writes "Talmud rules that the upstream community takes precedence if there is only enough water to provide drinking water to one community, because the water "belongs" to the upstream community".

He goes on to raise a much more difficult question:

"But what if the upstream community wants to use the water to bathe and wash clothes, and the result will be a shortage of drinking water for the downstream community? In this case, the Talmud has a disagreement. While the majority opinion forbids the first city to hoard water for bathing and washing clothes if the second city will lack drinking water, there is an opinion of Rabbi Yossi that permits the upstream city to keep the water at the expense of the downstream community.

What possible rationale could there be for depriving a city of drinking water so that others may wash clothes? The opinion makes sense when we understand that Rabbi Yossi accepts the opinion of a physician-Rabbi in the Talmud who felt that abstaining from bathing and washing clothes could result in the development of life-threatening illnesses. Therefore, according to this opinion, one may put the second city's welfare in present danger in order to save the first city from a grave future danger".

Dr. Eisenberg argues Rabbi Yossi's view is based on the fundamental Jewish principle of not unnecessarily endangering oneself on behalf of another. Returning to his main subject, he however cautions that healthcare rationing is a much more complex matter than the hypothetical situation answered by Rabbi Yossi.

On balance, it may not appropriate to treat Rabbi Yossi's view as representative of Jewish water law. Firstly the argument is based on an individual perspective. More importantly, his is clearly a minority view. The unambiguous portion of Nedarim 81a may therefore be considered to represent Jewish water law acceptable to all scholars.

It may be argued that Dr. Eisenberg is not a water rights scholar and his reference to water is incidental to the article on healthcare rationing. While this may be correct, the article was considered on the basis of the Talmudic reference without any undue weightage to the author's medical ethics. As there does not appear to be any other Jewish material contradicting the above, this can be considered as reflecting Jewish tradition on water rights.

Jewish water law may thus be briefly summarized as below:

·         Water "belongs" to the originating (i.e. upper riparian) user subject to "a hierarchy of benefits"
·         Water is to be used for the benefit of the general public
·         Water may be shared on "equally beneficial use" basis
·         Water users should not cause significant harm to others

The last point is not directly mentioned but can be inferred based on the fact that the majority of the scholars forbid the upper riparian community from hoarding water. It is reasonable to interpret the restriction as relating to significant harm rather than "any harm".

Islamic water law

Water law in Islam does not appear to be derived directly from the Qur'an. None of the 114 suras directly cover water rights.

Most Islamic jurists accept hadith and sunnah as being supplementary to the Qur'an. Hadith, narratives about Prophet Mohammed (peace be upon him) including his quotations as cited by early Muslims, are in particular treated as essential to understanding the Qur'an and/or Islamic jurisprudence. While there are thousands of hadith in circulation, scholars such as Bukhari & Muslim classified various hadith based on their authenticity. The highest classification is referred to as sahih i.e. authentic. A sahih hadith is one that meets five stringent conditions including trustworthiness of the narrator (or everyone in the chain of narrators) and non-contradiction with another already established hadith.

There is only one sahih hadith directly relating to water rights. As this is classified as authentic by the reputed scholar Bukhari, this may be treated as a crucial element of Islamic water law.

Hadith 3:548 (sahih al-Bukhari) is reproduced below:

"Narrated 'Abdullah bin Az-Zubair:

An Ansari man quarreled with Az-Zubair in the presence of the Prophet about the Harra Canals which were used for irrigating the date-palms. The Ansari man said to Az-Zubair, "Let the water pass' but Az-Zubair refused to do so. So, the case was brought before the Prophet who said to Az-Zubair, "O Zubair! Irrigate (your land) and then let the water pass to your neighbor". On that the Ansari got angry and said to the Prophet, "Is it because he (i.e. Zubair) is your aunt's son?" On that the color of the face of Allah's Apostle changed (because of anger) and he said, "O Zubair! Irrigate (your land) and then withhold the water till it reaches the walls between the pits round the trees". Zubair said, "By Allah, I think that the following verse was revealed on this occasion": "But no, by your Lord They can have No faith Until they make you judge In all disputes between them". (4.65)"".

Hadith 3:543 (sahih al-Bukhari) recognizes the concept of "right to water" for humans as well as water. This has been termed as "right of thirst" by Naser Faruqui (as quoted by Cullet & Gupta) that gives humans and animals the right to quench their thirst from any available water point. It may be noted the miraculous Zamzam well was discovered by the thirsty infant Ismail.

"Narrated Abu Huraira:

Allah's Apostle said, "Do not withhold the superfluous water, for that will prevent people from grazing their cattle"".

Hadith 4:538 (sahih al-Bukhari) also supports the concept of "right of thirst".

"Narrated Abu Huraira:

Allah's Apostle said, "A prostitute was forgiven by Allah, because, passing by a panting dog near a well and seeing that the dog was about to die of thirst, she took off her shoe, and tying it with her head-cover she drew out some water for it. So, Allah forgave her because of that"".

There are several hadith relating to the use of water including the need to conserve water.

Cullet & Gupta cover Islamic water law briefly (pages 4-5). They cite Thomas Naff to the effect that "water is a gift of God, that no individual or ruler can own water". While they do not provide a reference, these can be interpreted/inferred from several texts both in the Qur'an and various hadiths. They also quote Naff & Dellapenna "everyone should have access to water" that appears to be related to or derived from hadiths 3:543 and 4:538.

Islamic water law may be briefly summarized as below:

·         Water is not owned by any individual
·         Water is to be used for the benefit of the general public including both man & beast
·         Limited water rights subject to beneficial use
·         Water users should cause no harm to others

"यापो दिव्या उतावा स्रवंति खनित्रिमा उतावा या स्वयार्ण जा
समुद्रार्था या सूचय पावकास्ता आप देवी इह ममावान्तु"

(Yaapo divyaa utavaa sravanti khanitrimaa utavaa yaa swayarn jaa/samudraartha yaa soochayapaavakaasta aap devi iha mamavantu)

"The waters which are from heaven and which flow after being dug and even those that spring by themselves, the bright pure waters which lead to the sea, may those divine waters protect me here": Rig-Veda VII 49.2