My submittal to Telangana GoM- part 2/3

ToR4

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

ToR5

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.

ToR6

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.