November 25, 2013

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

Notes on this chapter

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

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

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

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

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

RBA: a toothless wonder

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

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

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

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

General criticism of the trans-boundary dispute resolution process

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

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

Center vs. states

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

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

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

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

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

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

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

Colonial & imperial structures

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

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

Basin as a unit

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

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

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

November 13, 2013

My submittal to Telangana GoM- part 3/3


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

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

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

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

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

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

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


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

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

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

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

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

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

HPRSC may be entrusted with the following:

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

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


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

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

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

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

HPESC may be entrusted with the following:

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

Pensioners shall be allocated on the following basis:

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

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

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

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

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

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


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

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

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

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

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

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


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

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


Article 3 requires that the present state legislature be provided an opportunity "for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired".

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

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

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

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

Thank you,

Jai Gottimukkala

November 11, 2013

My submittal to Telangana GoM- part 2/3


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

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

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

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


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

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

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

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

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

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

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

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

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


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

Entry 56 of list I (union list) of the seventh schedule covers: "Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest".

Entry 17 of list II (state list) of the seventh schedule covers: "Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I".

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

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

"262. Adjudication of disputes relating to waters of inter-State rivers or river valleys.-

(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.

(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1)".

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 08, 2013

My submittal to Telangana GoM- part 1/3

November 5, 2013

The Chairman
Group of Ministers (GoM)
Ministry of Home Affairs (MHA)
Government of India (GoI)
New Delhi


I am writing in response to the call by the GoM on Telangana formation for feedback. I write as an Indian citizen genuinely concerned about both the overall national interest and the welfare of the Telangana.

As desired by the MHA notification, I am providing feedback on each of GoM's terms of reference (ToR).

Nomenclature & methodology

I understand the cabinet intends to name the proposed new state as Telangana. This is a welcome move as the name represents the multiple facets of both the region and the decades long statehood movement.

The term "Seemandhra" has emerged in the recent past to denote the non-Telangana areas of current Andhra Pradesh. I urge the post-bifurcation residuary state may accordingly be named as Seemandhra. This nomenclature has the following advantages over the alternate option of retaining the existing name for the residuary state:

·         Denotes the combination of Seema (Rayalaseema) and Andhra
·         Eliminates the Hindi word "Pradesh"
·         Eliminates the possible confusion between the pre-bifurcation & post-bifurcation
·         Reinforces the fact that both Telangana & Seemandhra will be successor states of current Andhra Pradesh (AP)

Accordingly I use the term Seemandhra throughout this submittal to denote the residual state while reserving the terms "Andhra Pradesh" & "AP" to the present state.

The GoM is fully familiar with the various aspects of the long standing movement for Telangana as well the historical background of the region. The following broad methodology is accordingly suggested for the state formation process:

·         Telangana may be regarded as the sole successor of the erstwhile Hyderabad princely state as well as the post-accession part B state of Hyderabad
·         Seemandhra may be regarded as the sole successor of the erstwhile Andhra state
·         Both Telangana & Seemandhra may be regarded as successor states of Andhra Pradesh
·         To the extent practicable, the methodology may be based on an the likely consequences that may have occurred if Telangana & Seemandhra had not merged in 1956
·         Most importantly, the cardinal principle of "equality of states" must be stressed to ensure Telangana takes its rightful place as the twenty ninth state of India, on par with all other states. This requires the rights & responsibilities of both the future successor states be not impaired or fettered in any way.

Several aspects of the Telangana formation may depend on factual data and interpretations thereof. You are aware that the modalities of data collection, presentation & analysis as well as the reliability of the same are widely contested on both sides. In general, the data models adopted by the state government are neither susceptible to an audit trail nor rigorously tested for homogeneity. The situation is further complicated by the fact that senior politicians and officials have adopted a belligerent stand opposing Telangana formation.

In view of the above, it would be unfair to both Telangana & Seemandhra if irreversible decisions are taken without either the participation of the relevant stakeholders or the guidance of independent arbitrators. Data provided by the state government may therefore be used only for essential interim decisions followed by a due process of verification, negotiation, adjudication & adjustment in the post-bifurcation phase.


Determine the boundaries of the new state of Telangana and the residuary state of Andhra Pradesh with reference to the electoral constituencies, judicial and statutory bodies, and other administrative units

Telangana may be consist of territory of ten districts, namely Adilabad, Nizamabad, Karimnagar, Medak, Ranga Reddy, Hyderabad, Mahabubnagar, Nalgonda, Warangal & Khammam as per the present boundaries. The other thirteen districts may be retained with the residuary state that may be renamed as Seemandhra.

Telangana formed as above would consist of 119 Vidhan Sabha members. The rest of the 175 MLA's would be members of the Seemandhra Vidhan Sabha. The lone nominated MLA may be treated as belonging to Telangana while a suitable nominee for Seemandhra may be decided as per the applicable due process.

There are 90 members in the present Vidhan Parishad. Telangana Vidhan Parishad may be constituted with 40 members with the other 50 MLC's may be allocated to Seemandhra. The allocation of Vidhan Parishad members representing local authorities, graduates & teachers may be based on the constituency they represent. MLC's elected by AP MLA's and those nominated by the Governor may be assigned to an appropriate successor state by applying the following criterion in sequential order:

·         If he has held an elected office in the past, he may be assigned based on the constituency he represented in the past
·         If he has contested for an elected office in the past, he may be assigned based on the constituency he sought to represent in the past
·         If he has held a public office, he may be assigned based on the local cadre he belonged to
·         If he was educated in a university, he may be assigned based on the local area he belonged to
·         Place of birth

In case of excess membership in any successor state, an appropriate decision on who shall forfeit his membership may be taken under the applicable due process. In case of a shortfall, the vacancy may be filled at the earliest opportunity.

All constitutional offices may be continued to be held by the existing office bearers in their respective bearers. The other positions may be filled by the applicable due process. It may be noted that the Chief Minister, Speaker and Vidhan Parishad Chairman hail from Seemandhra while the Deputy Speaker & Deputy Chairman belong to Telangana.

It is envisaged that the days leading to the "appointed day" and the immediate aftermath thereafter are likely to be tumultuous. Given the delicately balanced situation and the stiff resistance to Telangana statehood in the upper reaches of political leadership, the role of the Governor may become crucial to the effective functioning of the two successor states. It is therefore prudent to allocate the honorable Governor to Seemandhra while appointing an eminent person from outside political/bureaucratic spheres as the Governor of Telangana.

As per convention, a new Advocate General may be appointed for the two new states on the advice of the political leadership.

There are 18 Rajyasabha seats presently allocated to AP. As Telangana electors are 42.8% of AP's 5.79 crores in 2009, the state may be allotted 10 Rajyasabha seats on a prorata basis. The other 10 seats may be allocated to Seemandhra.

Using the criterion outline above for MLC's, eight Rajyasabha members (MA Khan, Nandi Yellaiah, Rapolu Anand Bhaskar, Sudha Rani, Hanumantha Rao, Govardhan Reddy, Devendar Goud & Renuka Chowdary) may be allocated to Telangana. Eight other members as well as the lone vacancy similarly relate to Seemandhra. Allocating the sole non-AP member (Jairam Ramesh, honorable Rural Development Minister) to Seemandhra would ensure minimum disruption to the honorable MP's. The lone vacancy may be filled by election in the Seemandhra assembly.

The constituencies reserved for SC/ST in the Loksabha & Vidhan Sabha may be continued to be so reserved till the next delimitation exercise.

There are 17 Loksabha constituencies in Telangana and 25 in Seemandhra presently. Based on the 2009 delimitation exercise, the electors in the two successor states are 2.48 crores & 3.31 crores respectively. This yields a skewed result of 14.58 lac electors/Loksabha seat in Telangana as opposed to 13.24 lacs in Seemandhra. This anomaly may be corrected before the next elections by increasing the Loksabha seats in Telangana to 18 and a corresponding decrease in Seemandhra. The Vidhan Sabha membership in both states can be changed in the ratio of 1 Loksabha: 7 Vidhan Sabha members.


Look into the legal and administrative measures required to ensure that both the state governments can function efficiently from Hyderabad as the common capital for 10 years

It may be noted at the outset that the constitution does not mention the term "capital" anywhere. The so called "common capital" is essentially a political decision that is being sought to be imposed through executive action.

It is worth recalling the situation that prevailed during the agitation for the erstwhile Andhra state. Initially the Andhras claimed Madras should be the capital of the proposed new state. However these efforts failed to materialize due to the strong principled stand taken by the central leadership. In the violent aftermath following the demise of late Potti Sreeramulu, the center conceded the demand for the Andhra state but held firm in its resolve that Andhras forego their claim on Madras.

This gave rise to a demand that Madras be made a "common capital" or a "joint capital" of both the states. Justice KN Wanchoo Committee was constituted to "set out, consider and report on the financial and other implications of this division and the various questions which will arise in the course of implementing the decision of the Government of India more particularly by reason of the non-inclusion of the city of Madras in the Andhra State”.

Justice Wanchoo recommended that the "temporary capital" of Andhra may be located in Madras for a period of 3-5 years. He noted however: "It should be clearly understood that the jurisdiction over the city of Madras will in all matters rest in the residuary State (Madras) and the Government of the new State (Andhra) will merely be in the nature of guests or tenants in Madras city".

Acknowledging the Tamil fears that Andhras will not leave Madras after the period of 3-5 years, Justice Wanchoo refuted these on the ground that "Andhra Government would have no powers in the city of Madras and one would normally expect that such as Government would like to go to its own territory, where it can exercise all the powers of Government, as early as possible". He further recommended that essential parts of the Andhra government to be shifted from Madras "at once". He identified these parts as "the Governor, the Legislature, the Ministers and the Secretariat and certain other essential Heads of Departments like Inspector General of Police".

In the end, wiser counsel prevailed and the "temporary capital" idea was given a decent burial. The brief history of the erstwhile Andhra state was full of bickering and political high drama, mostly centered on the location of its capital.

The situation today is similar or even worse:

·         Much of the turmoil caused in the recent weeks by ambitious political interests centers around the city of Hyderabad
·         These high decibel campaigns are trying to generate a fear psychosis on the future of Andhras in Hyderabad
·         The memories of bitterness over Madras city persist
·         The imbroglio over Chandigarh raises apprehensions among Telanganites that Andhras will not let go of Hyderabad
·         The probability that motivated agitations demanding a share of Hyderabad will continue through the "common capital period" is high
·         A fresh round of disturbances as the "expiry date" comes close is almost certain
·         The question of Seemandhra capital location is likely to be as contentious as before

It is therefore imperative that the idea of "common capital" is dropped. This is essential to ensure the smooth functioning of the two successor states with minimal transition effect.


Take into account the legal, financial and administrative measures that may be required for transition to a new capital of the residuary state of Andhra Pradesh

As stated above, there are serious apprehensions that Seemandhra capital will be a contentious issue. The location of the new Seemandhra must be settled by the appointed day via consultation among the different stakeholders or by central government decision if consultations do not bear fruit.

Following the spirit of the Sribagh Pact, the Seemandhra High Court may be located in a region other than that housing the capital. For example, if the capital is located in Rayalaseema, the High Court may be situated in Andhra. It may be recalled that Andhra lawyers have been agitating for a long time for a High Court Bench to be located in Guntur.

The reorganization act may therefore provide for a separate Seemandhra High Court. The location of the court may be decided in consultation among the different stakeholders or by central government decision if consultations do not bear fruit.

The allocation of barristers to the respective high courts may be on the he following criterion in sequential order:

·         If he has held an elected office in the past, he may be assigned based on the constituency he represented in the past
·         If he has contested for an elected office in the past, he may be assigned based on the constituency he sought to represent in the past
·         If he has held a public office, he may be assigned based on the local cadre he belonged to
·         If he was educated in a university, he may be assigned based on the local area he belonged to
·         Place of birth

Seniority of practice may be used as a "tie breaker" if so required.

The transition may be handled as follows:

·         The essential parts of the Seemandhra government including Governor, Legislature, Ministers, Secretariat, the upper echelons of bureaucracy (e.g. Police, heads of departments) to move by the appointed day
·         Establishing a High Court in Seemandhra with a skeleton staff by the appointed day
·         Fully staffing the Seemandhra High Court within one year from the appointed day
·         Most of the Seemandhra state level government machinery (excluding only those functions that face serious logistical difficulties) to move within one year from the appointed day
·         Complete transition within two years from the appointed day

Physical separation of Telangana & Seemandhra facilities is essential throughout the transition period. Telangana state must receive priority in the allocation of facilities in order to ensure that all Government functions continue at the same facility without relocation at the end of the "temporary capital period".

The following measures are required to ensure peaceful & vacant possession at the designated period:

·         The costs associated with the High Court shall be borne by the central government in totality
·         To ensure the spirit of "guests or tenants" it must be ensured that the Seemandhra government reimburses all other expenses relating to rent, maintenance, upkeep, utilities, security etc.
·         The identified facilities may be handed over only after the essential parts of the Seemandhra government move to the identified location in its boundary
·         The lease agreements shall be for a strictly limited specific duration with no extension clause
·         The security deposit shall be fixed at twenty five times the estimated annual expenditure towards rent, maintenance, upkeep, utilities, security etc.

·         Any financial assistance/package provided to the Seemandhra government shall be linked to the milestones specified above and released only after the milestone is achieved