September 22, 2013

Telangana river waters, irrigation & agriculture-7 (Trans-boundary water sharing)

Introduction to trans-boundary water sharing

Most of the discussion so far was about water rights of individuals and, by extension, other parties such as bodies corporate. We will now turn our attention to the examination of the rights of political entities such as states in a federal system and nations.

A trans-boundary river system is one that extends to more than one political entity. International law has often been applied (or considered for application) in inter-state water sharing. This work therefore clubs the two streams for the purpose of study while acknowledging the inherent differences.

Trans-boundary water sharing is a relatively new phenomenon. This body of knowledge & opinions emerged in response to water disputes.

International water sharing mechanisms emerged only in the second half of the twentieth century. This is not surprising as it sounds because the institutions such as United Nations did not exist earlier. Moreover the subject was not deemed important till disputes started emerging.

I will examine the situation in two phases. The Indian legal situation will be covered first while the international dimension (including the US) will be taken up later.

Inter-state water sharing in India

As we have seen earlier, the Indian position from 1935 has been that water rights is that water is a state subject while the regulation & development of inter-state rivers lies in the central domain. The relationship between the two is sometimes difficult to understand.

The legal foundation for inter-state water sharing in India rests on the following:

·         Entry 56 of List I
·         Entry 17 of List II
·         Government of India Act, 1935
·         Article 262
·         Inter-State (River) Waters Disputes Act, 1956 (ISDA)
·         Inter-State Water Disputes (Amendment) Act, 2002
·         River Boards Act, 1956 (RBA)

The two entries have been covered earlier. The others need to be looked in at some detail in the next few sections.

Government of India Act, 1935

The sections relevant to this study are 130-134 (pages 102-104) clubbed under "Interference with Water Supplies".

Section 130 labeled "Complaints as to interference with water supplies" is reproduced in full due to its importance:

"130. If it appears to the Government of any Governor's Province or to the Ruler of any Federated State that the interests of that Province or State, or any of the inhabitants thereof, in the water from any natural source of supply in any Governor's or Chief Commissioner's Province or Federated State, 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; or
(b) the failure of any authority to exercise any of their powers,

with respect to the use, distribution or control of water from that source, the Government or Ruler may complain to the Governor-General".

Section 131 relates to "Decision of complaints". Section 131 (1) requires the Governor-General to constitute a "Commission consisting of such persons having special knowledge and experience in irrigation, engineering, administration, finance or law, as he sees fit". The Governor-General can request the Commission to investigate "in accordance with such instructions as he may give to them" and submit a report. Although the section uses the word "shall", it also contains a proviso "unless he is of an opinion that the issues involved are not of sufficient importance to warrant such action".

Section 131 (2) requires a Commission so appointed to submit a report "setting out the facts as found by them and making such recommendations as they think proper". Section 131 (3) permits the Governor-General to refer the matter back to the Commission for further investigation and a further report, if he needs further explanation or guidance,

Section 131 (5) empowers the Governor-General, after considering the Commission's report, to "give such a decision and make such order, if any, in the matter of the complaint as he may deem proper". However, before the decision is made, if any Government or Ruler requests the Governor-General to refer the matter to "his Majesty in Council", he shall do so.

Section 131 (6) provides that an order issued by the Governor-General (or his Majesty in Council as the case may be) overrides any Act of the Provincial Legislature or state "to the extent of repugnancy".

Section 131 (7) empowers the Governor-General (or his Majesty in Council as the case may be) to vary any order or decision "if he considers it proper to do so" upon request by any Government or Ruler. Section 131 (9) reiterates the discretionary powers of the Governor-General in relation to section 131.

Section 132 relates to "Interference with water supplies of Chief Commissioner's Province" is similar to section 130. This section empowers the Governor-General to act on suo moto basis in the case of Chief Commissioner's Provinces "as if the Chief Commissioner's Province were similar to Governor's Province" and as if the Government had initiated the complaint.

Section 133 ("Jurisdiction of Courts excluded") bars the jurisdiction of any court including the federal court in matters relating to action taken under sections 130-132.

Section 134 labeled "Ruler of State may exclude application of provisions as to water supply". This section empowers rulers of federated states to exclude their states from the provisions of the foregoing section by declaring in the Instrument of Accession. This section never came into effect as the idea of federated states did not take off.

Article 262 of the Indian constitution

In view of its importance, the full text of the article is provided below:

"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) Coordination between States"

This article as well as the two lists are subject to wide ramifications. The import of these legal provisions are the subject of several judicial pronouncements and quasi-legal decisions.

Inter-State (River) Waters Disputes Act, 1956

The following captures the main elements of the act:

Section 2 defines important terms. Section 2 (c) defines "water disputes" as:

"(c) "water dispute" means any dispute or difference between two or more State Governments with respect to-

(i) the use, distribution or control of the waters of, or in, any inter-State river or river valley; or

(ii) the interpretation of the terms of any agreement relating to the use, distribution or control of such waters or the implementation of such agreement; or

(iii) the levy of any water rate in contravention of the prohibition contained in section 7".

Section 3 outlines the complaints covered by the act. In view of its importance, the full text of the section is provided below:

"3. Complaints by State Governments as to water disputes. Where it appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the 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

(b) the failure of the other State or any authority therein to exercise any of their powers with respect to the use, distribution or control of such waters; or

(c) the failure of the other State to implement the terms of any agreement relating to the use, distribution or control of such waters, the State Government may, in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a Tribunal for adjudication".

Section 4 relates to the constitution of a tribunal. The language of section 4 (1) is significant: "When any request under section 3 is received from any State Government in respect of any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, the Central Government shall, by notification in the Official Gazette, constitute a Water Disputes Tribunal for the adjudication of the water dispute".

Section 5 outlines the modalities of the dispute adjudication. Section 5 (2) requires the tribunal to investigate the dispute and submit "a report setting out the facts as found by it and giving its decision on the matters referred to it". Section 5 (3) provides for a three month time for the affected states or the central government to raise clarifications or seek guidance. The tribunal may submit "a further report giving such explanation or guidance as it deems fit and in such a case, the decision of the Tribunal shall be deemed to be modified accordingly".

Section 6 relating to the implementation of the tribunal decision is reproduced in full due to its importance.

"6. Publication of decision of Tribunal. The Central Government shall publish the decision of the Tribunal in the Official Gazette and the decision shall be final and binding on the parties to the dispute and shall be given effect to by them".

A new section 6 (A) inserted by an amendment in 1980 empowers the central government to frame appropriate schemes necessary for the implementation of a tribunal decision. Section 6 (A) (1) is reproduced in full below due to its importance.

"6A. Power to make schemes to implement decision of Tribunal.

(1) Without prejudice to the provisions of section 6, the Central Government may, by notification in the Official Gazette, frame a scheme or schemes whereby provision may be made for all matters necessary to give effect to the decision of a Tribunal".

The non obstante section 6 (A) (6) is reproduced in full below:

"(6) Every scheme framed under this section shall have effect notwithstanding anything contained in any law for the time being in force (other than this Act) or any instrument having effect by Virtue of any law other than this Act".

Section 8 excludes from the jurisdiction of tribunals "any dispute that may arise regarding any matter which may be referred to arbitration under the River Boards Act".

Section 9 outlines the powers of a tribunal. These confer a quasi-judicial status on the tribunal. These include, under section 9 (2) the right to ask the affected states to carry out or permit surveys or investigation considered necessary for the dispute adjudication.

Section 11 bars the jurisdiction of any court including the supreme court "in respect of any water dispute which may be referred to a Tribunal under this Act". As noted earlier, this is derived from article 262 (2).

Section 12 provides for dissolution of a tribunal "after it has forwarded its report and as soon as the Central Government is satisfied that no further reference to the Tribunal in the matter would be necessary".

The Inter-State Water Disputes (Amendment) Act, 2002

The original ISDA was amended significantly in 2002. The major changes are discussed below:

The title of the act was amended to Inter-State River Waters Disputes Act.

Section 4 (1) was amended to read:

"(1) When any request under section 3 is received from any State Government in respect of any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, the Central Government shall, within a period not exceeding one year from the date of receipt of such request, by notification in the Official Gazette, constitute a Water Disputes Tribunal for the adjudication of the water dispute:

Provided that any dispute settled by a Tribunal before the commencement of the Inter-State Water Disputes (Amendment) Act, 2002 shall not be re-opened".

Sections 5 (2) was amended to read:

"(2) The Tribunal shall investigate the matters referred to it and forward to the Central Government a report setting out the facts as found by it and giving its decision on the matters referred to it within a period of three years

Provided that if the decision cannot be given for unavoidable reasons, within a period of three years, the Central Government may extend the period for a further period not exceeding two years".

Sections 5 (3) was amended to read:

"(3) If, upon consideration of the decision of the Tribunal, the Central Government or any State Government is of opinion that anything therein contained requires explanation or that guidance is needed upon any point not originally referred to the Tribunal, the Central Government or the State Government, as the case may be, within three months from the date of the decision, again refer the matter to the Tribunal for further consideration, and on such reference, the Tribunal may forward to the Central Government a further report within one year from the date of such reference giving such explanation or guidance as it deems fit and in such a case, the decision of the Tribunal shall be deemed to be modified accordingly

Provided that the period of one year within which the Tribunal may forward its report to the Central Government may be extended by the Central Government, for such further period as it considers necessary".

Section 6 was renumbered as 6 (1) and a new section 6 (2) was inserted "The decision of the Tribunal, after its publication in the Official Gazette by the Central Government under sub-section (1), shall have the same force as an order or decree of the Supreme Court".

Section 9 (1) (b) was amended permitting a tribunal to requisition "any data, as may be required by it". A new section 9 (A) inter alia requires the central government to maintain a national level database covering "water resources, land, agriculture, and matters relating thereto" for each river basin and empowers the verification of data supplied by the states.

Section 13 (2) (e) was amended to include service terms for assessors in the central government's purview.

River Boards Act, 1956

The key elements of the act are enunciated follows:

Section 2 asserts public interest: "it is expedient in the public interest that the Central Government should take under its control the regulation and development of inter-State rivers and river valleys to the extent hereinafter provided".

Section 4 covers the establishment of river boards. Section 4 (1) states "The Central Government may, on a request received in this behalf from a State Government or otherwise, by notification in the Official Gazette, establish a River Board for advising the Governments interested in relation to such matters concerning the regulation or development of an inter-State river or river valley or any specified part thereof and for performing such other functions as may be specified in the notification, and different Boards may be established for different inter State rivers or river valleys: Provided that no such notification shall be issued except after consultation with the Governments interested with respect to the proposal to establish the Board, the persons to be appointed as members thereof and the functions which the Board may be empowered to perform".

Section 13 relates to the jurisdiction of the boards setup under section 4. These include advice on several subjects including promotion and operation of irrigation/hydro-electric power/flood control/navigation schemes as well as conservation, control & optimum utilization of inter-state water resources.

Section 22 provides for arbitration of disputes between two or more governments arising out advice given by any river board as well as measures recommended by the board.

September 09, 2013

Stay calm in the face of provocations

Having failed to arouse ordinary Andhras in places like Vijayawada, anti-Telangana forces appear to be shifting gears. As the major driver behind the agitation is the refusal to let go of Hyderabad, they logically turn attention to the 400+ year old city.

September 7, 2013 is in many ways a red letter day for Telanganites, especially Hyderabadis. Andhra "NGO's" held a meeting in the historically significant Fateh Maidan grounds with the objective of obstructing Telangana formation.

During the long agitation for Telangana, the government created several hurdles to all attempts to hold meetings, rallies etc. Permission was denied even to national party meetings & cultural events. In most cases, the Telangana movement had to seek judicial intervention. The historic Telangana march was accorded conditional permission just before commencement. Preventive arrests, bindovers, road blocks & barbed wire have been the government's favored tools to greet Telangana citizens protesting for their rights. OU campus received "special treatment" at the hands of the khatmals.

In sharp contrast, the anti-Telangana meeting has received kid glove treatment right from the time the idea was floated to its "successful" completion. According to reports police provided escort to around 380 private buses hired by the agitators. The railways added additional cars to trains reaching Hyderabad to accommodate others. Wonderful to see the government turning over a new leaf and respecting the fundamental rights of Indian citizens!

Wait a minute, this friendly reception is limited only to those opposing Telangana. MRPS has been denied permission to hold a meeting on September 6, 2013. OU students were refused the right to hold a meeting in the historic Nizam college. TJAC request to hold a peace rally was negated.

The ground cited for the denial is the possibility of tempers flaring up leading to violence. A good argument but how can MRPS meeting the previous day lead to clashes? How is Manda Krishna Madiga's demand to exempt schools, social welfare hostels & buses from strikes less democratic a right than that of those opposing Telangana formation?

If the proximity of the two venues could lead to trouble, a prudent alternative would be to ask either party (or both) to shift to a different location. The government under an avowedly anti-Telangana chief minister has chosen not to do so.

What about the possibility of violence breaking out at the meeting itself? The police imposed 19 conditions to the permission. These include limiting the attendance to government employees. No assurance was obtained from the organizers on any of these.

What were the intentions of the meeting organizers? Some clues can be found below:

This meeting is being called an NGO meeting by the media. This is a misleading term. The meeting was actually conducted under the aegis of a group styled as Samaikhya (sic!) Rashtra Parirakshana Vedika (SRPV).

SRPV constituted a committee to coordinate the Hyderabad meeting. Only two of the 28 committee members are NGOs. Three are from RTC while another six are teachers or other government employees. The committee is dominated by non-employees.

True Mr. Paruchuri Ashok Babu, the unelected Andhra NGO "leader" is the chairman of the committee. This by itself does not substantiate the claim that the meeting was for employees, much less NGOs.

Ashok Babu was interviewed on Gemini News on August 19, 2013. He explained two problems for Andhra employees due to bifurcation.

·         He (yes, he specifically said "I") has been selected to Secretariat at Hyderabad. He therefore believes he is entitled to this location & department throughout his career.
·         If the state is bifurcated, whole of residual AP will become one zone. Srikakulam employees can be transferred to Chittoor & vice-versa.

Towards the end of his interview, he admitted the solution might be in a compromise. He frankly said he was jostling to get a better deal and hoped the compromise will be towards "unity" and not bifurcation.

During the run-up to the present meeting, neither of these issues were raised. Rather the avowed purpose changed to "save Andhra Pradesh".

SRPV called for registration from netizens wishing to attend the meeting. The registration form lists only for name, email ID & mobile phone. No employment details like department, location were sought.

If the organizers were not planning to mobilize non-employees, why did they ask all & sundry to register?

Dileep Konatham called up the Andhra NGO office to enquire how he can obtain an ID card to attend the meeting. He was told an ordinary ID card like a ration card is enough. When he specifically mentioned he was not a government employee, they said "మరేం పర్లేదండి. ప్రభుత్వ ఉద్యోగస్తులే కాదు, ఎవరైనా రావచ్చండి. మీదగ్గర రేషన్ కార్డు లాంటి గుర్తింపు పత్రం ఉంటే చాలు మీరు వచ్చేయవచ్చు. పోలీసులు ఏమీ అనరండి. అక్కడ మనాళ్లుంటారు, వాళ్లు మిమ్మల్ని రిసీవ్ చేసుకుంటారు

Andhra NGO's reportedly issued receipts to those without ID cards. How can a government employee register attendance if he does not have one?

B. Raghavulu of CPM and Majlis's Akbaruddin Owaisi (yes, he of the inflammatory speech fame) were invited to the meeting. The fact that these politicians declined does not detract from the fact the NGOs did not intend to stick to the condition of limiting to employees.

One Mr. Ramarao speaking on NTV pooh pooh'd MRPS's attack threats. While this is commendable, he went on to provocative MRPS by claiming it owes its existence to Andhra government employee support. He called Manda Krishna a "kirayi goonda" forcing the anchor to step in and stop.

Speaking to the press on September 6, Ashok Babu said his organization would not take responsibility for any unwarranted events. He also said they would not be able to conclude the meeting by 5 PM as permitted. He specifically repudiated the conditions placed on the meeting by the police.

The intentions of the organizers appear to two fold: provocation and an assertion that "Hyderabad belongs to all Telugus". They were willing to go to any extent to establish these. The state government and the police did their best to support these intentions.

It has been reported that there was virtually no checking at the meeting. Families were also allowed. Visuals of a young girl standing on the stage were telecast prominently.

Congress politician & singer "Ghazal" Srinivas was personally escorted to the stage by PSR Anjaneyulu, a police officer censured by the courts several times. Srinivas returned the favor by mauling the national anthem. Former Advocate General Mohan Reddy, another non-employee gracing the stage, stood as a mute spectator to this hideous insult.

Dr. Mitra, a former PRP ideologue, was another politician honored at the stage. An elderly woman called Satyavani believed to be a Loksatta activist delivered a pithy speech comparing Telangana to the defeated Kouravas.

Ramakrishna Reddy, an RTC union leader under criminal investigation, was the only government employee to be given a prominent place. All the others hailed from other sections such as journalism, law & student bodies.

The organizers did not honor the other conditions like time of meeting and the permitted attendance. The estimated crowd of around 30,000 was double the permitted 15,000.

An unarmed youth Balraj Yadav was beat up by the agitating Andhras for the "crime" of waving a black flag. The perpetrator is believed to be a "leader" of the YSR party.

The agitators raised slogans & took out a rally in a clear violation of the conditions. Some agitators made gestures threatening to behead Telangana students. The "NGO" responsible is considered to be a TDP activist from Uravakonda.

The khatmals as usual excelled themselves. Police entered the Nizam college hostel and attacked students eating breakfast. They forcibly evicted Kranti Kiran, a lone unarmed journalist covering the beat. Even Srinivas Goud, a fellow constable, was attacked when he raised Jai Telangana slogan.

Andhra politicians who stayed behind the scenes claim the meeting was a grand success. No doubt whoever paid for the shenanigan got more than his money's worth. They not only got to hold a meeting in Hyderabad but received a red carpet treatment from a benign circar. As a bonus, they got to thrash a few lazy drunkard feudal Naxalite jihadi separatist Telaban alaga janam J

More seriously, did the organizers achieve their objectives? By restricting the attendance, speakers & even the media to Andhras they themselves conceded their demand is limited to 13 districts. Despite trying hard, they failed to invite retaliation.

The euphoria over the meeting will not last long. The sight of a young man raising a banner of revolt amidst thousands of hostile individuals will stay etched in memory. Ms. Satyvani, this is Abhimanyu facing the Kouravas in Chakravyuh!

What should we do? Many Telanganites argue we should stay calm because retaliation will only strengthen the propaganda & fear psychosis built assiduously over the years.

I reject this argument. The propaganda machinery does not need a real incident. They will anyway rake up some stray happening trying to stoke fears.

We should stay calm in the face of provocations because of our own values, not out of fear of adverse propaganda. We should remain peaceful because tolerance is the heart of our tahzeeb. In this city named after Imam Ali, the spirit of qurbani will prevail over all forms of antagonism.

Stay calm in the face of provocations and celebrate the advent of the festival season with joy, peace and an indomitable spirit.

September 03, 2013

Telangana river waters, irrigation & agriculture-6 (Evolution of Indian water law)

Water in the ancient Indian culture

Water plays a crucial role in the ancient Indian way of life that is recognized both in the Vedas and the Upanishads. Water is treated as the second of the five primordial elements (panchamahabhuth).

Varuna is the god of water, sky and oceans. Befittingly, Makara (crocodile) is his mount. Rather surprisingly, rain & thunder are the domain of another dikpalaka (guardian of direction) i.e. Indra, the leader of gods.

Lakshmi, the consort of Vishnu, is the daughter of the ocean. Ganga (Ganges), the celestial river, is one of the consorts of Mahadeva.

Matsya (fish), the first avatar of Vishnu, appeared to Satyavrata (later known as Manu, the law giver) when he was washing his hands in a river. The story detailed in Matsyapurana speaks about a deluge and a huge boat that Manu housed with his family, animals & seeds in order to repopulate the earth (somewhat like Noah's ark).

Kurma (tortoise), the second avatar, contributed to the churning of the celestial ocean that culminated in the discovery of nectar.

The Indian epics too contain several references to water. Sage Bhagiratha is credited with the descent of the Ganga to earth. Ganga is also linked to the story of Santanu & Bhishma.

Vasudeva while spiriting away his newborn son Krishna from the evil Kamsa crosses a flooded Jamuna. In a different story, Krishna challenges the need to pray to Indra for rain. The story ends with Krishna lifting a hill on his little finger to provide a shield for his people from the rain unleashed by Indra in retaliation.

Water is an essential component of all Hindu rituals. Most pujas require the use of water from a kalasa (pot). Ritual purification and bathing are quite common.

Water is essential in death as well. After cremation, the family members take a ritual bath in the river. The ashes from the pyre are ceremonially cast in a river in a separate ceremony. Sinners cross the Vaitarna river on their way to naraka (hell).

Rivers like Ganga, Jamuna, Krishna, and Cauvery are treated as sacred. Their names are often suffixed with the local language word for "mother". River banks are dotted with temples throughout India. A sangam (confluence of rivers) is likewise treated as a sacred place. Triveni sangam at Prayag (the confluence of Ganga, Jamuna and the mythical river Saraswati), a major Kumbh Mela venue, is considered to be one of the holiest spots in the world. Several major rivers celebrate similar pushkar festivities.

Indian law under Hindu rulers

MS Vani published a paper titled "Customary Law and Modern Governance of Natural Resources in India- Conflicts, Prospects for Accord and Strategies". This paper is in part based on a Ford Foundation project called “Law and Custom in Water Resources Administration in Uttaranchal State, India”.

Vani describes (pages 7-13) in great detail the Hindu jurisprudence framework. She writes the framework was based on three "delicately balanced" sources: dharma, royal order and custom. She cites AL Basham that dharma and custom were generally held inviolable. Kings were expected to uphold dharma and let subjects follow their customs.

Vani cites Basham on the relationship between the three sources: "Generally, Dharma was thought to override all other sources of law, though the Arthashastra maintained that the royal ordinance overrides the others. However, this doctrine is ascribed to the totalitarianism of the Mauryas, which few jurists would have supported".

Vani lists the four bases of justice (in the order of increasing importance) citing Arthashastra verses 3.1.39 & 40: dharma based on truth; evidence based on witness testimony; custom based on accepted tradition and royal edicts based on promulgated law.

Cullet & Gupta (page 4) cite the same four bases from Arthashastra. They concur with Vani that the kings were required to ensure dharma and let existing customs continue.

Water rights under Hindu law have been described earlier in adequate detail. The brief discussion here is to establish the theoretical foundation of these rights.

Indian Water law under Muslim rulers

Cullet & Gupta cite (page 5) IA Siddiqui to show the "Islamic rulers refrained from significant intervention in existing arrangements". This may have been with because "the relatively high availability of water in India precluded conflicts with Islamic norms".

Vani concurs (page 13) quoting Marc Galanter:

"Under Muslim rule, the judicial system remained a plural one. Muslim populations were governed by Muslim law in criminal, civil and family matters and disputes settled before royal courts established in cities and administrative centers. Hindus were generally allowed their own tribunals in civil matters. When such matters came before royal courts, Hindu law was applied and sustained by the sanctions of the State. While there was a hierarchy of courts and rights of appeal, there was no supervision of lower courts. No attempt was made to control the administration of law in the villages".

These findings are consistent with the fact that India was generally not regarded as a dar al-salam under Muslim rule.

Water law under the British Raj

Cullet & Gupta write (pages 5-6) the British did not, until 1857 (i.e. under "company rule") interfere with local custom unless it impacts their own policies. After the assumption of direct crown control in 1858, they began to invest in and regulate canals & irrigation.

The authors cite Dellapenna:

"British colonial water law had two main strands. First, control over water and rights to water were regulated through the progressive introduction of common law principles, emphasizing the rights of landowners to access water. For surface waters, riparian rights allow a landowner the right to take a reasonable portion of the flow of a watercourse".

The laws established in the above pursuit include:

·         Embankment Regulation, 1829
·         Bengal Embankment Act, 1855
·         Northern India Canal and Drainage Act, 1873
·         Indian Easements Act, 1882

Cullet & Gupta consider the Northern India Canal and Drainage Act, 1873, as an important enactment in the evolution of Indian water law. This law regulated irrigation, navigation and drainage in much of North India.

They write "While this Act did not directly assert the state’s ownership over surface waters, it recognized the right of the Government to ‘use and control for public purposes the water of all rivers and streams flowing in natural channels, and of all lakes’".

This trend was strengthened over time with the passage of other laws. The colonial rulers also introduced the division of responsibilities and a conflict resolution mechanism. According to Cullet & Gupta:

"The Government of India Act (1935) empowered the provinces to take decisions on water supply, irrigation, canals, drainage and embankments, water storage and hydropower. Conflicts between provinces and/or princely states were subjected to the jurisdiction of the Governor General who could appoint a commission to investigate the sufficiently important conflicts".

Lahiri looks at water rights in the early colonial period and explains the situation in greater detail:

"More provincial autonomy came in the form of Entry 19 of List-2 to the 7th Schedule of the Government of India Act, 1935 by which power to legislate on “water, that is to say water supplies, irrigation and canal, drainage and embankments, water storage and water power” was transferred by Entry 19 of List 2 in the 7th Schedule of the Act of 1935 to the Provincial Government. The executive authority of the provinces were also made co-extensive or co-terminus with its legislative power by virtue of Section 49 (2) of the Act of 1935 and subject to the restrictions placed by Sections 130 to 133 of the Act of 1935.

The Provincial Government was free to do what it thought fit in respect of water supplies within its province. However, this was subject to the provisions of Sections 130 to 133 under which the Governor General could, on the basis of a complaint by one province against another regarding interference with its water supplies, appoint a Commission to investigate the matter and submit a report on the basis of which the Governor General could pass final orders unless any party to the dispute desired a reference to His Majesty in Council for final order. Such orders made by the Governor General or His Majesty in Council, as the case may be, were binding on the provinces affected thereby unless varied. All these central safeguards indicate that even under the Government of India Acts, 1919 and 1935 no province could take action which would prejudicially affect the interest of another province or its people".

KWDT reiterates (volume I, page 9) the position: "Under the Government of India Act, 1935, water became an exclusive provincial subject and specific provision was made for settlement of water disputes".

KWDT returns to the subject later (volume I, page 104) elaborating in greater detail:

"Under the Government of India Act, 1935, as from the 1st April, 1937, water became an exclusive provincial subject and specific provision was made in sections 130 to 134 of the Act for decision of water disputes".

Godavari Water Disputes Tribunal (GWDT) agrees with this assessment stating (page 95): "British India was subject to the unitary control of the Government of India and even the princely states were under its paramount control. Under the Government of India Act, 1935 water became an exclusive provincial subject and specific provision was made for the settlement of water disputes".

The situation prior to the passing of the 1935 act (labeled "pre-genesis" by Lahiri) was to a good extent different. CWDT (volume IV, page 36) mentions the dispute between Madras & Mysore on the former's insistence on a particular flow of water in its territories ahead of the 1924 agreement on Cauvery water sharing. The award of the arbitrator, Justice HR Griffin, was challenged by Madras. CWDT summarizes the final decision: "In due course it went upto the Secretary of States who set aside the said award with certain directions".

The situation before the 1935 Act is summarized by KWDT (volume I, page 104) as:

"Till 1921, irrigation works were subject to the unitary control of the Central P.W.D. Since 1921, under the Government of India Act, 1915, as amended by the Government of India Act, 1919, "Water supplies" became a provincial subject, but even then the Government of India could decide inter-Provincial water disputes".

"The Government of India used to decide inter-Provincial water disputes on administrative considerations".

"Under the Government of India Act, 1935, as from the 1st April, 1937, water became an exclusive provincial subject and specific provision was made in sections 130 to 134 of the Act for decision of water disputes".

KWDT is somewhat skeptical about the pre-independence situation (volume I, page 104): "Though the Government of India in the exercise of its powers of paramount control professed to apply rules of international law and the precept of the greatest good to the greatest number irrespective of political boundaries, the actual settlement of the disputes used to be made on political considerations".

Vani analyzes (pages 19-20) the impact of the introduction of the colonial legal system in Indian traditions. She states this made the system rigid, reduced the importance of the traditional dispute resolution mechanisms and in general paved the way for disintegration of customs preserved for ages. She writes: "The rule of stare decisis put paid to the flexibility of Indian law by obviating innovation in shastric and customary law to meet changes in community opinion and sentiment. The modern legal machinery ‘forces local law to fall in line with national standards’".

Water law in independent India

Lahiri explains the legal situation in India is similar to that of England. He quotes Halsbury's Laws of England:

“86. Rights in flowing water at common law. Although certain rights as regards flowing water are incident to the ownership of riparian property, the water itself, whether flowing in a known and defined channel or percolating through the soil, is not at common law, the subject of property or capable of being granted to anybody. Flowing water is only publici juris in the sense that it is public or common to all who have a right of access to it.

87. Statutory rights in flowing water. Proprietary interests in water flowing in certain channels may be, and have in certain instances been, created by Act of Parliament. Rights can also be obtained to abstract water”.

KWDT (volume I; page 79) reiterates the Indian legal situation vis-à-vis that of England:

"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".

The term "publici juris" needs to be understood carefully. It is understood to mean "public right" or "common property" available to everyone in the community. This does not make it a property in the conventional sense. Flowing water, like air or light, is not susceptible to ownership by anyone including the state.

Lahiri shows the Government of India Act, 1935 continued to be applicable even after independence till the Indian constitution came into effect. He also demonstrates the Indian constitution broadly adopts the scheme of Government of India Act, 1935. For instance, state control over water enshrined under entry 19 of list-2 of the 7th schedule of the 1935 act were reiterated under entry 17 of list 2 to the 7th schedule of the constitution. The central government role was defined under entry 56 in list 1 on lines similar to the 1935 act. Similarly the exclusion of jurisdiction clause from section 133 of the 1935 act was embodied in article 262 (2).

The applicable text from the lists is shown below:

Entry 56 of List I ("union list") of Seventh Schedule: "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 under List II ("state list") of Seventh Schedule: "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".

The year 1956 can be regarded as a milestone in the history of the Indian water law. Inter-State (River) Waters Disputes Act (ISDA) came into effect paving the way for the resolution of simmering inter-state water disputes. The lesser known but potentially significant River Boards Act (RBA) that enables the setting up of a board to regulate and develop inter-state rivers and river valleys was also adopted in the same year.

With the introduction of a sovereign constitution derived from "we the people", the Indian jurisprudence firmly asserts the supremacy of constitutional law over other sources. In a way, Kautilya's dictum on the inter-relationship between the "four bases of justice" has now been established albeit under a democratic regime.

Water law in India: a brief summary

The evolution of water law in India can be broadly divided into the following "eras":

·         Before the assumption of direct crown control in 1858
·         1858-1935 till the passing of the 1935 act
·         Till 1950, when the Indian constitution came into effect
·         After 1950

It can be argued that the dates are slightly different e.g. perhaps the current phase began in 1956. What is more important, however, is to note these different periods correspond to qualitative changes in the legal perspective surrounding water rights. It is unquestionable that the four eras are demonstrably different.

Lahiri terms the period 1949-2004 as the evolution phase. He traces the history of the ISDA act from the original draft in 1955 till its adoption in 1956.

It is interesting to note these eras do not necessarily relate to or arise from regime change. For instance, the "traditional rights era" continued through Hindu kingdoms, Muslim rule and company hegemony.

"Hinduism is like the Ganga, pure and unsullied at its source but taking in its course the impurities in the way. Even like the Ganga it is beneficent in its total effect. It takes a provincial form in every province, but the inner substance is retained everywhere": MK Gandhi

September 01, 2013

Reporting from Vijayawada

My blog post titled Telangana march- a first hand account was well received both by friends and netizens in general. This is my most popular post till date both on hits and comments.

A private visit to Vijayawada provides me an opportunity to provide a similar eye witness from the "other side".

Two of my colleagues and I just returned after spent a day in Vijayawada to attend a function. We arrived by an overnight train and checked into a hotel near the railway station. The function was just off Bandar Road, approximately half way between Benz Circle (the most important intersection in the city) and Kankipadu (the Eastern boundary). The drive in both directions gave sufficient opportunity to study the impact of the ongoing anti-Telangana "movement" (aka Operation Grab Hyderabad).

By an interesting coincidence, our visit date (August 30, 2013) was exactly one month after the Congress resolution in favor of Telangana. The "fast unto death" undertaken at the Chanchalguda jail by its most famous under-trial inmate, the Cuddappah MP YS Jaganmohan Reddy (Jagan), had been forcibly interrupted by the police the previous night.

A short while after landing, I overheard a conversation between two locals. It ran on the following lines:

·         Individual 1 (a Jagan fan): what is happening about Telangana formation?
·         Individual 2 (did not sport any outward political links): Have you ever been to Hyderabad?
·         Individual 1: no
·         Individual 2: why do you care then?
·         Individual 1: Telangana people are getting their state. What are we getting?
·         Individual 2: what do you want?
·         Individual 1 (changing track): it would have never happened if YS (the late YS Rajashekhar Reddy) had been alive
·         Individual 2: గాడిద గుడ్డేం కాదూ ("gadidaguddem kadoo" roughly equal to "nonsense")
We chartered an autorickshaw to go to our function. The autowala was an interesting soul who spoke most of the way (much like a New York or Bombay cabbie). When he lamented the ongoing bus strike, I suggested he should be pleased because it improves his earnings. He politely disagreed pointing out that the auto business depended mostly on people who reached the city by bus from nearby districts.

Before we hit Bandar Road, we encountered a small shamiana housing a relay fast by a group calling itself "Samaikyandhra Doctors JAC'. The shamiana size was just over a typical Hyderabadi pan shop. The modest size was adequate for the handful of individuals sitting there.

Before we reached Benz Circle, we saw three more shamianas. Two of these were manned by Government employees and had about 20 odd middle aged men. The third shamiana housing "friends of Vangaveeti Radha" relay strikes in support of Jagan's fast had just three people, the only youth we encountered in the "movement".

A small group of around 30 people were staging a rasta roko just after Benz circle. I thought this was a strategic location being right opposite the Enadu office (if you save time for the press they will reciprocate in kind by providing good coverage). We had to make a slight detour that added around 5 minutes to our journey time.

There were two more shamianas after Benz Circle. The one outside Siddartha Engineering College had around 15 male staff members but no students. Another one near the Tatigadapa Circle was smaller with perhaps 10 people.

The public spirit of the shamianawalas (or perhaps their modest expectations) was clear from the fact that none of these encroached on the road. All were well within the sidewalk & shoulder.

There was no shamiana outside the Telugu Desham Party (TDP) office.

I counted 6-7 large size banners on the way. A couple of these belonged to the TDP while the rest were put up by the Congress. TDP also put up a couple of banners welcoming their party supremo Chandrababu Naidu without mentioning the present agitation. TDP office had a few large anti-Telangana posters but these were all inside the compound and therefore not prominently visible to passers by.

The road dividers along the entire stretch were decorated with small posters spaced at around 100 feet. Just under half of these were put up by one Devineni Avinash, son of Congress politician Devineni Rajashekhar alias Nehru. The others were all non political with birthday wishes to movie actor turned politician Chiranjeevi hogging the limelight. Birthday wishes to actor Mahesh Babu and commercial posters contributed the rest.

Avinash's posters had the photograph of the late Potti Sreeramulu apart from himself. Looks like he does not agree with his party leader Tulasi Reddy's contention that Sreeramulu was never linked to the formation of Andhra Pradesh. Given his family's naming/nick naming conventions, I was surprised to see Nehru giving up the tradition of naming their progeny after national leaders. Or perhaps there was indeed a great freedom fighter called Avinash about whom I am ignorant.

On the way back, the situation changed to some extent. The rasta roko opposite Enadu ended. The Tatigadapa crowd disappeared totally while the three Jagan (or Radha) fans had left for the day. The shamiana's beauty was enhanced greatly by a solitary homeless individual taking shelter from the sun. Three other shamianas had shrunk to a half of its previous strength.

One shamiana housing a relay strike by Government employees had grown quite a bit. There were around 50 people who continued to exhibit the same public spirit of not obstructing traffic. My initial surprise vanished as we came closer: Lagadapati Rajagopal, the Andhra businessman-cum-politician was addressing the group. I could not catch what he spoke as we breezed past at a high speed.

The action was almost entirely run by men past their youth. There were no women and very few young folks.

Someone I met at the function said a trade bandh was on. I was thankful for this information as there was no way I could have figured this out on my own. Just a handful of stores near Benz Circle were closed or operating under half shutters.

Unfortunately for us, we missed a couple of important events. Two senior railway trade union leaders retired on this day. Their respective parties tool out rallies in felicitation. According to a reliable eye witness, the smaller of the two attracted over 300 people. The banners announcing these events were more numerous and larger than that of the anti-Telangana folks.

Thirty days after the Congress's Telangana resolution, the biggest political news in the political capital of Andhra, is that two senior leaders of rival railway trade unions retired on the same day.

Wishing you a peaceful, joyous & healthy retired life, gentlemen!