Article 371-D implications

Background

Many "integrationists" have recently taken up the refrain that Telangana state can be formed under article 3 only after article 371-D is amended or repealed. They further contend that article 371-D can be amended or repealed only under the provisions of article 368. This line of arguments is claimed to be the ultimate weapon (brahmastra) against Telangana formation.

Chief minister Nallari Kiran Kumar Reddy reportedly decided to seek a clarification on the status of 371-D from the central government.

Telugu Desham legislator Payyavula Keshav and YSR Congress politician Raghurama Krishnam Raju have separately approached the Supreme Court against the union cabinet's decision in favor of Telangana formation. These individuals as well as other anti-Telangana politicians are reported to pin their hopes on article 371-D to stall Telangana formation.

In a colorful article published by Sakshi, journalist ABK Prasad compares Andhra Pradesh (AP) to a "relationship of six knots", an allusion to the "three knots" of traditional south Indian marriage. Prasad writes article 371-D is a part of the seventh schedule and therefore its amendment requires two-thirds majority in parliament and ratification by half the states.

Advocate Ravi Shankar Jandhyala is reported to have pointed out that text of Article 371-D speaks generally about the State of Andhra Pradesh without reference to any particular region. He is said to have referred to Indira Gandhi's alleged observation that the article "was kept in the Seventh Schedule so that no unscrupulous Government or claimant would disturb the harmony of the state".

The momentum on this subject may have been fueled in part by the terms of reference (ToR) of Group of Ministers (GoM) setup by the central government to address issues arising from Telangana formation. ToR # 10 reads "Look into the issues arising out of the Presidential Order issued under Article 371-D of the Constitution consequent to the bifurcation and examine any other matter that may arise on account of bifurcation of the state of Andhra Pradesh and make suitable recommendations".

As one would expect, the contentions are not very clear. The "integrationists" are mixing up legal & political arguments. The matter is further obfuscated by the fact that people do not differentiate between article 371-D, six point formula (SPF), GO 610 and other related subjects. The fact that the debate is being played out in the midst of lay people adds to the soundbytes.

Methodology of this report

The following questions need to be answered in my considered opinion:

·         Can the process of Telangana formation be stalled or withdrawn on the ground that article 371-D prevents it?

·         Is article 371-D a part of the seventh schedule?

·         What is the nature of the article 371-D?

·         Is article 371-D intended to perpetuate AP with its current boundaries?

·         What is the purpose of article 371-D?

·         Does article 371-D override articles 3 & 4?

·         Can article 371-D be amended/repealed only the provisions of article 368?

·         Does article 371-D as it currently stands prohibit or forbid Telangana formation?

·         Will article 371-D survive Telangana formation? If yes, to what extent?

My focus here is purely legal: I ignore political (or emotional) aspects totally. As per my usual practice, most of the sources are public domain.

Judicial interference with legislative process

It may be a good idea to start by acknowledging there are three branches of Government i.e. legislature, executive & judiciary. Legislature is generally held to be supreme among these in view of the fact that it represents the will of the people.

Can a court interfere with the legislative process? Halsbury's Laws of England, 4th edition, paragraph 832 states: "The legislative supremacy of Parliament implies not only the inability of the courts to question its power to enact in particular statutory provision, but also their duty to give effect as statutes only to, enactments answering that description. It follows that the courts can become concerned with the question whether a particular document which they are invited to apply has received the consents necessary to constitute it an Act of Parliament".

Lord Leslie Scarman wrote in Duport Steels Ltd v. SIRS, 1980: "We are to be governed not by Parliament’s intentions but by Parliament’s enactments".

Justice KM Yusuf of the Calcutta High Court relying on the above in Shyam Sundar Gupta v. Union of India and Ors, 1989 held the legislative competence of parliament must not be inferred at a stage when a matter is "under active consideration". He held: "I have no hesitation to hold that the Bill, presently before Parliament, if enacted and enforced and thereafter if it affects the federal structure and the framework of the Constitution then only the vires of the same can certainly be challenged in a Court of Law having jurisdiction and will be justiciable".

In other words, no court can or will entertain a prayer to stall or withdraw the process of Telangana formation on any grounds including the alleged conflict with article 371-D. Injunctive relief against a legislative process is neither possible nor reasonable. A plea against Telangana formation will be admissible only after the process is concluded.

Article 371-D & the seventh schedule

The seventh schedule of the Indian constitution consists of three lists. List I (union list) comes under the exclusive legislative jurisdiction of the parliament while list II (state list) falls under the domain of the state legislatures. Both the center and the states can legislate on matters of list III (concurrent list) while unlisted entries are treated at par with list I i.e. all residuary legislative rights vest with the parliament.

The jurisdiction and legislative powers of the center and states are outlined in article 246. This article together with the three lists is an exhaustive guide to the division of powers between the center and the states. It may be noted the state legislative jurisdiction is limited to its own boundaries.

The seventh schedule has been amended several times:

·         Third amendment (1954) modified concurrent list entry 33

·         Sixth amendment (1956) inserted union list entry 92A and modified state list entry 54

·         Seventh amendment (1956) deleted union list entry 33 and state list entries 19, 20, 29 & 36. It also modified union list entries 32, 67 & 79, state list entries 12 & 24 and concurrent list entries 40 & 42

·         Fifteenth amendment (1963) inserted union list entry 78

·         Thirty second amendment (1973) modified union list entry 63

·         Forty second amendment (1976) modified state list entries 1, 2 & 3 and deleted state list entry 11

·         Forty sixth amendment (1982) inserted union list entry 92B and concurrent list entries 11A, 17A, 20A. It also modified state list entry 55 and concurrent list entry 25

A quick glance reveals none of the above changes is even remotely connected to article 371-D. Seventh schedule entries relating to public employment, education & administrative tribunals, the subject matters of article 371-D, have not been amended even once after the constitution came into effect. The claim article 371-D is a part of or otherwise impacts the seventh schedule is as far from reality as possible.

The confusion (or mischief) appears to be stem from union list entry 63. Section 4 of the thirty second amendment act states: "4. Amendment of Seventh Schedule. In the Seventh Schedule to the Constitution, in List I, in entry 63, for the words "Delhi University, and", the words, figures and letter "Delhi University; the University established in pursuance of article 371E;" shall be substituted".

While articles 371-D and 371-E both derive their existence from the thirty second amendment, the latter relates purely to the establishment of a central university in AP. As the relevant union list entry at that time referred to specific universities by name, this entry needed to be amended. Surely not the context to wax eloquently on harmony of the state and other high sounding platitudes, Mr. Jandhyala?

The nature of article 371-D

A plain reading of the article reveals it enables the president "by order" to make provisions related to public employment & education facilities for different regions in AP. Such orders may include several facets such as creating local cadres, local areas, administrative tribunals etc.

Article 371-D came into effect on July 1, 1974. Two presidential orders were issued under the article. An order relating to education admissions came into force in October 1974 while the second order regulating direct recruitment came into effect much later in October 1975.

Being an enabling provision by nature, article 371-D by itself 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. The various amendments (including the most recent "14f amendment") prove this beyond doubt.

Article 371-D & AP's "territorial integrity"

The concept of territorial integrity is derived from sovereignty. All jurists accept the position that Indian states do not have any sovereign powers.

Chief Justice Prahlad Gajendragadkar held in the Berubari Union presidential reference, 1960: "It may, therefore, be assumed that in construing Art. 3 we should take into account the fact that the Constitution contemplated changes of the territorial limits of the constituent States and there was no guarantee about their territorial integrity".

The oath of affirmation for a state legislator as prescribed by the third schedule paragraph B runs: "I, AB, having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter". This is more or less the same as that of a parliament member. This proves adequately that states have no inherent rights of territorial integrity.

Even though perpetual existence of AP is clearly beyond the competence of article 371-D, let us still check if the article solely or even primarily intended to preserve AP in its current boundaries. This point can not be established by plain textual interpretation. Nowhere does the article (or the thirty second amendment) explicitly state this.

The purpose of article 371-D

The statement of objects & reasons of the thirty second amendment traces the history leading to the SPF evolution. It inter alia reads: "This Bill has been brought forward to provide the necessary constitutional authority for giving effect to the Six-Point Formula in so far as it relates to the provision of equitable opportunities for people of different areas of the State in the matter of admission to educational institutions and public employment and constitution of an Administrative Tribunal with jurisdiction to deal with certain disputes and grievances relating to public services".

In other words, the amendment's purpose is limited to SPF # 2-4. Article 371-E relates to the second leg of SPF # 2 while article 371-D covers the rest of the three points. The text of the relevant points is provided below in full. It is clear from the points that these do not seek to perpetuate AP's existence in any manner.

"(2) Institution of uniform, arrangements throughout the state enabling adequate preference being given to local candidates in the matter of admission to educational institutions and establishment of a new Central University at Hyderabad to argument the exiting educational facilities should be the basis of the educational policy of the state.

(3) Subject to the requirements of the state as a whole, local candidates should be given preference to specified extent in the matter of direct recruitment to (i) non-gazetted posts (other than in the Secretariat. Offices of Heads of Department, other State level offices and institutions and the Hyderabad City Police) (ii) corresponding posts under the local bodies and (iii) the posts of Tahsildars, Junior Engineers and Civil Assistant Surgeons. In order to improve their promotion prospects, service cadres should be organized to the extent possible on appropriate local basis up to specified gazetted level, first or second, as may be administratively convenient.

(4) A high power administrative tribunal should be constituted to deal with the grievances of services regarding appointments, seniority, promotion and other allied matters. The decisions of the tribunal should ordinarily be binding on the state government. The constitution of such a tribunal would justify limits on recourse to judiciary in such matters".

The purpose of article 371-D thus clearly emerges as follows:

·         Enabling the definition of local areas

·         Enabling preferential reservations to local candidates in admission to public educational institutions

·         Enabling the organization of local cadres in public service

·         Enabling the allocation of public servants to the appropriate local cadre

·         Enabling preferential reservations to local candidates in direct recruitment of public servants

·         Enabling the fixation of extent & modalities of such preferential reservations

·         Enabling the setting up of administrative tribunals in service matters

The so called "open list" and the "exempted cadres" are features arising from the presidential orders issued pursuant to article 371-D. As we saw earlier, these may be modified or rescinded through executive action. These can therefore be not regarded as the raison d'être of article 371-D.

Please see my blog post titled Central institutions in Hyderabad & the "presidential order" for some other aspects relating to SPF & the presidential order on local cadres.

Article 371-D vs. articles 3 & 4

Issue 1 of Mullaperiyar Environmental Protection Forum v. Union of India & Ors, 2006 read: "Whether Section 108 of the States Reorganization Act, 1956 is unconstitutional"? The plaintiff contended the section encroached on Kerala's entry 17 rights.

Rejecting the plaintiff's contention, Chief Justice Yogesh Kumar Sabharwal held: "The creation of new States by altering territories and boundaries of existing States is within the exclusive domain of Parliament. The law making power under Articles 3 and 4 is paramount and is not subjected to nor fettered by Article 246 and Lists II and III of the Seventh Schedule". He further ruled "The power of Parliament to make law under Articles 3 and 4 is plenary and traverse over all legislative subjects as are necessary for effectuating a proper reorganization of the States".

In an interesting observation, Justice Sabharwal wrote: "The new State owes its very existence to the law made by the Parliament. It would be incongruous to say that the provision in an Act which gives birth to a State is ultra vires a legislative entry which the State may operate after it has come into existence".

The present context is somewhat similar. AP itself is a creation of parliament's exercising of powers under article 3. Article 371-D while not derived from AP legislation would not have come into existence but for the creation of AP by the very same parliament. To that extent it can be treated as a creation of article 3. Claiming it has overriding powers over its creator is therefore equally incongruous.

In Maharashtra v. Narayan Shamrao Puranik and Ors, 1982, one of the issues raised was whether section 51 (3) of the States Reorganization Act, 1956, continued to be valid. The Bombay High Court had earlier held the section was transitory. Justice Ananda Prakash Sen of the Supreme Court overturned the ruling holding inter alia: "The Act is a law under Art. 3 for the reorganization of the States. Art. 4 of the Constitution provides that the law referred to in Art. 3 may contain "such supplemental, incidental and consequential provisions as Parliament may deem necessary" Under the scheme of the Act, these powers continue to exist by reason of Part V of the Act unless Parliament by law otherwise directs".

The historic case Kesavananda Bharati Sripadagalvaru and Ors v. Kerala and Anr, 1973, is best celebrated for its "basic structure" doctrine. This embodies the principle that certain features of the Indian constitution lie outside the amendment powers of article 368. Chief Justice Sarv Mittra Sikri (who coincidentally delivered the unanimous judgment upholding Mulki rules just a few weeks later) mentioned supremacy of the constitution, republican & democratic form of government, secular character, separation of powers among the legislature, executive & judiciary, federalism and dignity & freedom of the individual as the essential features of the constitution. While the basic structure was not given a final definitive shape in this case, the direction pointed to a sea change in the annals of Indian jurisprudence.

The overriding powers claimed for article 371-D are based on the non obstante section 10: "(10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force".

Supreme Court in P. Sambamurthy & Ors v. Andhra Pradesh & Anr, 1986, struck down section 5 of article 371-D. Chief Justice PN Bhagwati delivering the unanimous judgment held: "The Proviso to Clause (5) of Article 371-D is therefore clearly violative of the basic structure doctrine" as the tribunals envisaged failed to meet the judicial review powers vested in the high courts under articles 226 & 227.

The Sambamurthy case is interesting on two angles:

·         Transition of the basic structure doctrine from "article 368 based amendment" to inviolability. This is a welcome sign of the doctrine's evolution over the years.

·         The non obstante section 10 did not prevent the decision. This is not surprising given that articles 226 & 227 are essential to the preservation of the basic structure and thus override formal non obstante sections. This can additionally be used to infer that article 371-D does not form a part of the basic structure.

The non obstante section 10 requires the provisions of the article (and resulting presidential orders) to have effect not withstanding any other constitutional provision or law. While this is subservient to the basic structure doctrine as established in the Sambamurthy case, it is adequate if the seven "purposes" listed in the previous section are not disabled.

As we saw earlier Justice Sikri opined that federal structure is a part of the constitution's basic structure. Though India is not a true federation of states, the federal principle (e.g. distribution of powers) is an important feature of the constitution. The center's powers to admit/create/modify states is derived from articles 2-4. There is a thus a reasonable ground to treat these articles as a part of the basic structure. When (if) this conclusion is reached, article 371-D will be totally powerless against articles 3 & 4.

Telangana formation & article 371-D

There are two possible options for the formation of Telangana. The first would be to amend article 371-D as a part of the reorganization act. This is possible under article 4 (produced in full below):

"4. (1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.

(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368".

Section 85 of the Bombay Reorganization Act, 1960, made two incidental changes to article 371. Section 71 of the North-Eastern Areas (Reorganization) Act, 1971, changed article 371-B. Several similar supplemental, incidental and consequential amendments were incorporated during every reorganization.

Section 13 of the Punjab Reorganization Act, 1966, assigned 54 assembly seats to Haryana against the "not less than sixty prescribed by article 170 (1). This was contested in Mangal Singh & Anr v. Union of India, 1966. Justice JC Shah delivering the unanimous judgment wrote: "On the plain words of Art. 4, there is no warrant for the contention advanced by counsel for the appellants that the supplemental, incidental and consequential provisions, which by virtue of Art. 4 the Parliament is competent to make, must be supplemental, incidental or consequential to the amendment of the First or the Fourth Schedule".

The learned judge further observed: "Power to reduce the total number of members of the Legislative Assembly below the minimum prescribed by Art. 170 (1) is, in our judgment, implicit in the authority to make laws under Art. 4. Such a provision is undoubtedly an amendment of the Constitution, but by the express provision contained in cl. (2) of Art. 4, no such law which amends the First and the Fourth Schedule or which makes supplemental, incidental and consequential provisions is to be deemed an amendment of the Constitution for the purposes of Art.368". In other words, the act informally but effectively amended article 170 (1).

In view of the above, Telangana formation is possible by amending article 371-D formally or otherwise through the powers of article 4. The non obstante section 10 would not be able to prevent this as long as the seven stated purposes are not disabled. Even this condition would be unnecessary if article 3 is treated as a part of the basic structure.

The second option (perhaps the path of least resistance) is to let article 371-D unchanged during the reorganization process. The fate of article 371-D under this scenario is examined in the next section.

Post-Telangana article 371-D

It is an accepted position that a law (whether a piece of legislation or an executive order) would continue to be valid in the entire original territorial jurisdiction unless repealed or modified by a competent authority. If this were not so, states would need to reintroduce every single legislation and executive order every time administrative boundaries change. The obvious exception to this principle is situations where a law (or its parts) is inherently repugnant to the changed circumstances e.g. an AP coastal fishing regulation would be inapplicable in Telangana.

Article 371-D would therefore continue to apply unless amended. Section 1 of the article reads: "(1) The President may by order made with respect to the State of Andhra Pradesh provide, having regard to the requirements of the state as a whole, for equitable opportunities and facilities for the people belonging to different parts of the state, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the state".

The term "Andhra Pradesh" obviously refers to the state as it existed in 1974. Therefore the article would continue to be valid for both the successor states of Telangana and residual AP. The presidential orders too would continue to be valid within both states without territorial overlap. Telangana public servants would be organized into two local areas & cadres while the residual state will stay content with the other four zones. State level institutions in each state would continue to be governed in the same way as before. The exempted cadre (e.g. secretariat staff) would be organized in both states i.e. Paruchuri Ashok Babu would be eligible to continue at the residual AP secretariat wherever it is located.

What if Telangana or residual AP wants to change any of the terms of the presidential orders? For example Telangana may desire to opt out of article 371-D. Similarly residual AP may wish to local areas to be reorganized?

The solution is simple: through presidential order! Pass a resolution in the relevant assembly and forward it to the president for implementation. Article 371-D places no restriction on the number of orders as long as there is no contradiction between the various orders.

Telangana river waters, irrigation & agriculture-9 (Interpretation of Indian water legislation)

Atma Linga Reddy & Ors v. Union of India & Ors, 2008

In the case of Atma Linga Reddy & Ors v. Union of India & Ors, 2008, the petitioners owning lands in the RDS (Rajolibunda Diversion Scheme) ayacut approached the Supreme Court praying for a stay against construction of a power project in Karnataka. They contended that the bar on judicial intervention under section 11 does not extend to private individuals. Justice CK Thakker rejected the contention.

The court noted "another equally sustainable and well-founded reason for not entertaining the so-called grievance of the petitioners". The issue was already being considered by KWDT-II (issue 22A: "Whether the State of Karnataka is entitled to construct Mini Hydel Power Project from the common bondage of Rajolibunda Diversion Scheme without the consent of State of Andhra Pradesh?") and AP was acting as parens patriae in this matter. The subject matter was therefore clearly a water dispute taken up by an appropriate tribunal.

Justice Thakker took a dim view of AP's withholding information about KWDT-II's consideration of the issue. In his stricture, he wrote:

"The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State' and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondent- State of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so".

R. Krishnaiah v. Union of India, 1996

One R. Krishnaiah approached the AP high court under article 226 praying for implementation of the Bachawat Commission (sic!) award. The petitioner's primary interest was AP & Karnataka governments were among those impleaded as respondents.

On the question of the scope of section 11, Chief Justice Prabha Shankar Mishra wrote: "The Supreme Court or any other Court, if its jurisdiction is not otherwise barred, can always issue a direction to the Central Government to perform its duty and to restrain other States who are likely to violate the award/decision of the Tribunal".

Justice Mishra found AP had "maintained as vigorous if not more vigorous position as the petitioner". The learned judge accordingly rejected the leave for appeal to Supreme Court sought by the petitioner and held the issue has to be resolved between AP & Karnataka.

Explaining the rationale behind the decision, Justice Mishra wrote: "Parens Patriae status of the Government of the State under the scheme of our Constitution is indeed recognized as water disputes are not always raised on a just a cause and people arrayed on both sides take on many occasions very hard and uncompromising stands. While State Governments in their sovereign capacity are expected to protect and represent the interests of all its people they do not act as at adversaries in the usual sense".

Andhra Pradesh v. Karnataka & Ors, 2000

As a fallout of the R. Krishnaiah judgment, AP approached the Supreme Court (Andhra Pradesh v. Karnataka & Ors, 2000 i.e. the Almatti dam case) praying the court to "declare that the report/decision dated 24.12.1973 and the further report/decision dated 27.5.1976 of the Krishna Water Disputes Tribunal (KWDT) in their entirety are binding upon the three riparian States of Maharashtra, Karnataka and Andhra Pradesh and also the Union of India" and an injunction against the construction of several projects including the Almatti dam.

AP's case was the enbloc allocation to Karnataka "has to be read in the light of the relevant stand of the parties before the tribunal, the facts and figures produced before the tribunal and the ultimate basis on which the conclusion was arrived at". In other words, AP claimed KWDT allocated water to specific projects listed in the report. Interpreting sections 5 (2) and 6 of ISDA, the court rejected AP's contention that the entire tribunal report should be treated as equal to a judgment and the decision was similar to a decree. The phrase ""facts as found by it and giving its decision" in 5 (2) was interpreted as the report being ""facts as found by it" while the gazetted decision (award) was covered by "giving its decision".

Justice Gopal Ballav Pattanaik wrote: "At the outset we are unable to accept the contention of Mr. Ganguli that the decision of the Tribunal which is ultimately notified under Section 6 of the Act can be held to be a decree of a suit and the report being the judgment and, therefore, the decided case laws on which reliance has been placed has no application at all. The inter-State Water Disputes Act having been framed by the Parliament under Article 262 of the Constitution is a complete Act by itself and the nature and character of a decision made thereunder has to be understood in the light of the provisions of the very Act itself".

Justice Pattanaik also decided "Under Section 6 of the Act the Central Government is duty bound to publish the decision of the Tribunal in the Official Gazette whereafter the said decision becomes final and binding on the parties to the dispute and has to be given effect to, by them. The language of the provisions of Section 6 is clear and unambiguous and unequivocally indicates that it is only the decision of the Tribunal which is required to be published in the Official Gazette and on such publication that decision becomes final and binding on the parties".

AP's request that all riparian states are duty bound to disclose to each other & the central government details of projects taken up after 1973 was denied. Justice Pattanaik ruled: "Though it may be fully desirable for all the States to know about the developments of the other States but neither the law on the subject require that a State even for utilization of its own water resources would take the consent of other riparian States in case of an Inter-State river".

In a separate but related issue, the learned judge rejected AP's contention that AP's concurrence was required for the Almatti dam. He held: "Neither there exists any law which compels any State to get the concurrence of other riparian States whenever it uses water in respect of inter-State river nor the decision of the Tribunal which allocates the water in the Krishna Basin on the basis of 75% dependability which figure was in turn arrived at by an agreement of parties puts any condition to have the concurrence of other riparian State".

Justice Shailesh Majmudar in his concurring opinion held the dispute related to execution of KWDT decision and therefore not a water dispute under section 3. He ruled: "The grievance of the plaintiff State is that though the decision is binding on the upper riparian States namely, defendant nos. 1 and 3, the executive action of the concerned States amount to flouting and violation of the binding decision of the Tribunal. This clearly raises a question of execution and implementation of an already adjudicated water dispute. Once that conclusion is reached, it becomes obvious that Article 262 would be out of picture and only Article 131 will remain operative for being invoked by the disputant State against the defendant States, as it would certainly raise a dispute regarding execution and implementation of binding award of the Tribunal and, therefore, a contest does arise between two or more States on this score".

Karnataka filed a counter case that was decided at the same time. Karnataka's contention scheme B was a part of KWDT decision was also rejected on the same interpretation of section 6 as above.

Cauvery presidential reference, 1991

Tamil Nadu (TN) petitioned CWDT to prevent Karnataka from impounding or utilizing water in excess of beyond the past extent. TN followed up by praying for release of 20 TMC as an emergency relief. Karnataka & Kerala objected arguing the tribunal had a limited jurisdiction without any inherent powers. The tribunal refused to grant relief on the ground that interim relief was not included in its reference.

TN & Pondicherry approached the supreme court. The apex court held the interim relief was under the purview of the dispute and directed the tribunal to decide the interim relief request on merit. The tribunal accordingly considered the request on merit and granted relief to TN. Karnataka passed an ordinance in an attempt to nullify the tribunal's order. The central government raised a presidential reference seeking supreme court's opinion under article 143.

Before going further, it may be noted the jurisdictional bar in section 11 of ISDA was not deemed to prevent the supreme court from hearing the case. This firmly establishes section 11 is limited to inter-state water disputes referred or liable to be referred to a tribunal.

Karnataka argued the ordinance was covered under entry 17 and, in the absence of a river board setup under RBA, a state retained full legislative powers under entry 17. It also submitted that ISDA envisaged only one decision and therefore the impugned interim award could not termed as a "decision" under section 5 (2).

TN inter alia argued that a tribunal had "inherent jurisdiction" to grant interim relief and such a decision would be a "decision" under section 5 (2). TN also contended the impugned ordinance was extra-territorial and therefore Karnataka had no right under entry 17.

The court opined the ordinance was an "an extra-territorial operation, and is thus beyond the legislative competence of the State and is ultra vires the provisions of Article 245(1) of the Constitution". The court passed severe strictures against Karnataka stating "it has assumed the role of a judge in its own cause". Karnataka was also held to have challenged the apex court's order directing CWDT to consider the interim relief on merit.

Karnataka's claim that interim award was not a part of the tribunal reference was negated: "Sub-section (1) of Section 5 expressly empowers the Central Government to refer to the Tribunal not only the main water dispute, but any matter appearing to be connected with or relevant to it. A request for an interim relief, whether in the nature of mandatory direction or prohibitory order, whether for the maintenance of status quo or for the grant of urgent relief or to prevent the final relief being rendered infructuous, would be a matter connected with or relevant to the main dispute".

Karnataka's contention that the interim award was not a decision was rejected: "It is not correct to say that since the Order does not say that it is a report and decision it is not so under Section 5 (2) of the Act. Either the Order is such a report and decision because of its contents or not so at all. If the contents do not show that it is such a report, it will not become one because the Order states so. The contents of the order clearly show that it is a report and a decision within the meaning of Section 5 (2)".

It should be noted that the supreme court's response to a reference under article 143 is an "opinion". The foregoing should be read accordingly. Having said this, there are no known cases where such an "opinion" was treated as being inferior to a judgment insofar as stare decisis is concerned.

Tribunal interpretations

KWDT asserts (volume I, page 100) "The decision of the Tribunal overrides all repugnant State legislation and executive action. In this manner, the plenary powers of a State over the waters of the inter-State river and river valley within its jurisdiction are regulated and controlled by the decision of the Tribunal". This is based on the phrase "final and binding on the parties" in section 6 of ISDA and the fact that state legislation is covered by section 3 (a).

On the same page, KWDT states "If there is competent legislation by Parliament on the subject of the apportionment of the waters of an inter-State river and river valley, that law binds all the States and there is no room for an inconsistent apportionment. The Tribunal has no power to override the paramount Central Legislation". While the source of this assertion is apparently based on Arizona v. California, 373 U.S. 546 (1963), ISDA does not provide any such right to a tribunal. Only state legislation is covered by section 3 (a).

KWDT (volume I, page 105) states: "However, the Union Government and the Planning Commission have no statutory authority to allocate the water resources among the States or to fix the order of priorities for their projects. If a water dispute arises and the same cannot be settled by negotiations, a reference has to be made to a Tribunal appointed under the Inter-States Water Disputes Act, 1956, for adjudication of the dispute". The phrase "has to be" is based on "shall" used in section 4 (1) of ISDA.

ISDA section 6 (A)

KWDT report text (volume II, pages 42-47) relates to the proposed Krishna Valley Authority (KVA). The first draft of the proposed water sharing formula (Scheme B) is provided in pages 64-65 of the same volume. This was modified in response to Karnataka's clarification III after the final request was submitted. Scheme B as finalized is provided in pages 32-39 of volume IV.

Maharashtra, Karnataka & AP filed a document (exhibit MRK-340) before the KWDT. This inter alia envisages the setting up of "a joint control body to give effect to the decision of the Tribunal". While the states differed on the water volume to be apportioned and percentage shares, this was left to the tribunal's adjudication. The tribunal accordingly submitted drafts of the scheme for the parties to consider.

After considering the drafts, Maharashtra agreed to the proposal while Karnataka while agreeing suggested certain modifications. AP, on the other hand, made a U-turn stating "Andhra Pradesh is unable to give its formal consent to set up the Krishna Valley Authority having the constitution and powers as mentioned in Part II".

Maharashtra objecting to AP's volte face submitted that AP's acceptance was not necessary. Relying on the word "final and binding" in section 6 and the jurisdictional bar cited in section 11, the state argued "A final and binding adjudication of a water dispute can only be made by the Tribunal which has power to make its decision effective by setting up, if necessary, a controlling body or authority which would implement the decision of the Tribunal". Maharashtra, in short, sought to apply the principle "ubi aliquid concediture, concediture etiam id sine quo res ipsa non esse potest" (a duty imposed or a power granted by Parliament carries with it the power necessary for its performance or execution).

Maharashtra also stressed other grounds including the argument that MRK-340 constituted an agreement. Karnataka pleaded the proposed KVA "is a necessity which cannot be avoided".

AP rejected the argument that MRK-340 was an agreement claiming only Parliament can create such a body and also on grounds of implementation shortcomings. The state also argued KVA was a Corporation and setting this up falls in the jurisdiction of Parliament, not tribunal. It was also submitted that "power to adjudicate is different from the power to execute the decision and in the absence of conferment of any express power on the Tribunal to pass an executable order the Tribunal cannot exercise this power".

KWDT rejected AP's contention on the limitations of adjudication. The tribunal did not accept Maharashtra's argument that MRK-340 constituted an agreement due to the implementation shortcomings pointed out by AP. While rejecting AP's "corporation" argument, KWDT did not elaborate as it gave up the KVA idea. Interestingly the tribunal did not delve into Maharashtra's "duty carries with it necessary powers" argument. This is not surprising given the importance given to the wider encompassing concept of "judicial intent" in Indian jurisprudence.

Concluding the matter, KWDT wrote: "After deeply pondering over the matter we have come to the conclusion that it would be better if we devise two schemes for the division of the waters of the river Krishna between the States of Maharashtra, Mysore and Andhra Pradesh. These schemes will be called Schemes A and B. Scheme A will come in operation on the date of the publication of the decision of this Tribunal in the Official Gazette under Section 6 of the Inter-State Water Disputes Act, 1956. Scheme B may be brought into operation in case the States of Maharashtra, Mysore and Andhra Pradesh constitute an inter-State administrative authority which may be called the Krishna Valley Authority by agreement between them or in case such an authority is constituted by legislation made by Parliament". It noted "propriety of the matter rather than legality" as the prime factor behind this decision.

The subject came up again after the final report was submitted. The central government in its clarification 6 requested for a modus operandi for water sharing in deficit year. KWDT replied: "Scheme ' B ' which provides for sharing of both surplus and deficiency in the entire Krishna river basin could not be implemented for reasons given in the Report and on account of the opposition by Andhra Pradesh, In the scheme of allocation embodied in the Final Order, Andhra Pradesh will be at liberty to use the excess flow in surplus years and at the same time will have to bear the burden of the deficiency in lean years save as indicated in this Report".

Karnataka's clarification II requested for implementation of scheme B. The tribunal in response outlined the previous initiatives in this direction and wrote (volume IV, page 30):

"However, one of the States did not agree to Part II of the Scheme, see Report Vol II pages 521-522 We have pointed out that it, is unwise and impractical to impose an administrative authority by a judicial decree without the unanimous consent and approval of the parties, see Report Vol II page 539 Even to day, the State of Andhra Pradesh is opposed to the implementation of Scheme 'B' and to the constitution of Krishna Valley Authority Consequently the Krishna Valley Authority which includes a nominee of Andhra Pradesh as envisaged by the common draft of Part II of Scheme 'B' cannot be constituted Unless the Krishna Valley Authority is constituted, Scheme ' B' cannot implemented". The tribunal reiterated that the best way to setup the authority was agreement among the parties or central legislation.

Justice Umesh Chandra Banerjee in his concurring judgment in Andhra Pradesh v. Karnataka & Ors, 2000 touched upon the subject. He initially expressed surprise that KWDT chose to take upon itself the framework of scheme B without the necessary power to constituite KVA. Going into the KVA related discussions at KWDT, he comes to "an unmistakable conclusion that the Tribunal wanted to provide certain guidelines to the Krishna Valley Authority as and when it is so constituted and significantly, the Tribunal itself has left it to the good sense and better appreciation of the parties or the legislative intent for the formation of such an authority".

Justice Pattanaik in Karnataka's counter case dwelt into the matter at some length stating: "While placing Scheme 'B' in its Report the idea was that the labor of the Tribunal in evolving the Scheme would not be totally lost and that is why it hoped that the parties may agree for constituting an authority or if they fail to agree the Parliament also could make a law but unfortunately, neither of the two contingencies has happened".

Issue # 8 in Karnataka's counter case reads: "8. Whether insertion of Section 6A in 1980 in the ISWD Act, 1956, ipso facto entitles Karnataka to seek implementation of Scheme 'B' as referred to in the reports of the Tribunal by framing a scheme? (Karnataka as modified by AP)". The court did not take up the issue on merit as scheme B & KVA have already been held not to be a part of the KWDT decision. This is based on the phrase "necessary to give effect to the decision of a Tribunal" in 6 (A) (1).

It is pertinent to note here that the amendment of 1980 inserting section 6 (A) was enacted after the KWDT-I decision came into force after the due process of gazette notification.

KWDT-II notes (pages 828-829): "it is the duty of each State to the dispute to act in accordance with the decision rendered by the Tribunal. The decision given by the Tribunal is to be followed and given effect to by the parties without there being anything else to happen or to be provided for. But for the purposes of better implementation of the provisions made in the decision, it may be helpful to have a machinery to do so. It may be helpful to the parties to the dispute also as they would be getting assistance in giving effect to the decision. We find that under sub-section (1) of section 6A of the Act, the Central Government has also been authorized to frame a scheme, if it so chooses to do, for implementation of the decision of the Tribunal". Accordingly the tribunal finalized a scheme for setting up of Krishna Waters Decision- Implementation Board (KWD-IB). This was included in clause XVIII of the decision with the details of the scheme together with Appendix-I of the decision.

"The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written": Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803)

Telangana river waters, irrigation & agriculture-8 (Indian water regime-an overview)

General

The previous chapter focused on the Indian trans-boundary legislation. We will now turn our attention to the overview, interpretation & criticism of the legislative regime. The present chapter will cover a broad overview of ISDA and the role of prior agreements in the legal landscape.

The language of the applicable legislation provides several pieces of interesting information.

The definition of "water disputes" in section 2 (c) of ISDA refers to three types of disputes. Trans-boundary water sharing is not explicitly included as a "water dispute": it is only covered through sections 2 (c) (i). More over, other types of disputes are specifically included. This leads to the inference that ISDA's primary role is the adjudication of water disputes including but not limited to water sharing. The very title of the act reinforces this inference.

ISDA title change through 2002 amendment may be interpreted to clarify the exclusion of lakes and ground water (excluding sub-surface streams) from the scope of the legislation. Lahiri notes "It became the Inter-State River Water Disputes Act, 1956 only after the 2002 Amendment on and from August 6, 2002".

Section 3 of ISDA empowers state governments to raise water disputes. This (together with the title itself) can be inferred to bar individuals and other non-state players such informally defined "regions". Only a state government can pray for remedy if aggrieved.

Section 3 (and indeed ISDA itself) relates only to inter-state disputes. This is evident from both the language and the title. Taken together it is not possible for any one other than a state government (e.g. a regional council) to escalate a water dispute against another district, region or state. Distribution of water within a state (i.e. entry 17 rights) is clearly out of bounds.

I emphasize some of the above assertions are based on the sum total of my understanding after going through hundreds of pages of case law, tribunal reports & scholarly works. I realize I am not backing up some of these "on the spot" but this is to avoid increasing the pages of this work.

Commission, tribunal & courts

A commission appointed under section 130 of the 1935 act is limited to an advisory role. The Governor-General had wide discretionary power as confirmed in section 131 (9). He has the authority to take decisions or modify decisions he has already taken. The arbitrariness in his role as well as possible conflict with "his Majesty in Council" appear to be the main reasons why KWDT suspected "political considerations". The situation did not appear to have improved much from the pre-1935 period when the Griffin arbitration award was overturned by executive action.

Another distinction relates to the composition and appointment. Section 131 (1) of the 1935 act permits a commission to include individuals "having special knowledge and experience in irrigation, engineering, administration, finance or law", as decided by the Governor-General. The Indus Commission consisted of two members apart from the Chairman Justice BN Rau: both were engineers.

On the other hand, ISDA section 4 (2) limits the membership to serving (at the time of nomination) judges selected by the Chief Justice of India. Section 4 (3) relates to the appointment of assessors.

Unlike a commission setup under the 1935 act, a tribunal constituted under ISDA is empowered to pronounce a decision. This decision is binding on all the parties to the dispute as well as the central government. Tribunal decisions may not be questioned in a court of law. In practice this may not have worked out smoothly due to several reasons. Nevertheless a tribunal is a powerful adjudication institution.

Tribunals vs. courts

How do tribunals compare with courts? While a tribunal decision may not be challenged in any court, this relates only to the decision itself. This is not helpful in determining a tribunal's hierarchy insofar as stare decisis is concerned.

KWDT (volume IV, page 11) provides some clues:

"But a Tribunal constituted under a special statute has no common law or inherent power, see Kamaraja Nadar v. Kunju Thevar (1959) S.C.R. 583, 596 (Election Tribunal). However, if authorized by the statute by which it was constituted, it may review its decision, see Sree Meenakshi Mills Ltd. v. Their Workmen (1958) S.C.R. 878, 888 (Labor Appellate Tribunal under the Industrial Disputes Act, 1947); Mulla's Code of Civil Procedure 13th Edition, page 1669; and may correct an accidental omission, see Tulsipur Sugar Company Ltd v. State of U.P. (1970) 1 S.C.R. 35, 37, 41-45 (Labor Court under U.P. Industrial Disputes Act, 1947).

This Tribunal is set up under the Inter-State Water Disputes Act, 1956. Its powers are circumscribed by the provisions of that Act. It has no inherent powers. It has some trappings of a Court. Section 9 of the Act gives the Tribunal some powers of a Civil Court and also enables it to regulate its practice and procedure. But the powers under section 151, 152 or under section 114 or Order 47 Rule 1 of the Code of Civil Procedure have not been conferred on it. Section 5(1) of the Act provides for reference of a water dispute and any matter appearing to be connected with or relevant to the water dispute to the Tribunal for adjudication. Section 5 (2) directs the Tribunal to 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.

At pages 512 to 513 of Vol. II of the Report we have pointed out that a Tribunal appointed under the Inter-State Water Disputes Act, 1956 is not a permanent body and it cannot retain jurisdiction to modify its decision, apart from its statutory power to do so upon a reference made to it under section 5 (3) of the Act within three months of the decision".

The above may be considered in view of the following:

·         Tribunals frequently cite both case law (Indian & international) as well as other tribunal reports

·         The converse does not appear to be true. The Indian case law I referred frequently cited the appropriate tribunal but this was only for understanding the reason behind a decision

·         I have not come across a single instance where an Indian court cited a different tribunal's report

Not withstanding the jurisdictional bar, it is therefore safe to conclude a tribunal's report has little if any precedential value outside of water dispute adjudication. Even this may be limited by context e.g. CWDT's approach on basin transfers may not be relevant to different situations.

Prior agreements

KWDT (volume I, page 101) reading sections 2 (c) (ii) and 3 (c) of ISDA together determined: "if there is an agreement between the States relating to the use, distribution or control of the waters, that agreement should be implemented". GWDT (page 109) also cites this. KWDT also cites the Indus Commission's views "The agreement determines their respective rights and obligations and furnishes the agreed "law" on the subject".

On a similar note, Lahiri states the Indus Commission held "where there was an agreement, the agreement itself determine the limits and any transgression of this agreement would make the transgression actionable".

It may be noted that section 3 (c) refers to any agreement "relating to the use, distribution or control of such waters". While water sharing agreements are included, this may also include other agreements relating to the use/distribution/control of waters. There is also no restriction on the modalities of sharing. Agreements signed for Godavari water sharing adopted several methods including specific projects, sub-basins or part thereof, TMC shares as well as combinations of these.

In an agreement signed on July 12, 1974 Madhya Pradesh (MP), Gujarat, Maharashtra & Rajasthan agreed on several aspects relating to the dispute then being adjudicated by Narmada Water Disputes Tribunal (NWDT). Apart from agreeing the water quantity available at 75% dependability as 28 MAF (million acre-feet), the parties agreed to set aside 0.25 MAF & 0.50 MAF respectively for Maharashtra & Rajasthan. NWDT accordingly allocated this water to the two states in clause III of the decision.

GWDT also refused to interfere with valid agreements between states. The central government in its clarification 5 requested the tribunal to provide for a review as water available may become scarce with the passage of time. The tribunal refused the request stating "The decision of the Tribunal is based on the Agreements between the parties and there is no stipulation in the Agreements for the review of the decision. As such, we do not find it necessary to amend the Final Order in this respect".

Interpreting agreements

Andhra Pradesh v. Maharashtra & Ors, 2013 (Babhali barrage case) provides an interesting case study on how agreements are to be drafted. The case centered to a great extent around clause II (i) of the agreement dated October 6, 1975, between the two states. This agreement was included in the award as Annexure II vide clause V (A) (b). The relevant text is shown below for ready reference.

"II. (i) From the waters in the area of the Godavari basin below Paithan dam site on the Godavari and below Siddheswar dam site on the Purna and below Nizamsagar dam site on the Manjira and up to Pochampad dam site on the Godavari, Maharashtra can utilize waters not exceeding 60 TMC for new Projects including any additional use over and above the present sanctioned or cleared utilization, as the case may be".

AP argued inter alia the phrase "up to Pochampad dam site" includes the entire storage area of the dam. Maharashtra argued the phrase had to be interpreted literally i.e. "up to the concrete structure of the dam" as this meaning was used in other clauses of the agreement. Any other interpretation, it argued "would result into absurdity and make other clauses unworkable".

Maharashtra also contended that there was no limitation in its rights in its territory: "If the intention of Andhra Pradesh was that Maharashtra should not utilize the waters of Pochampad reservoir in its territory, such limitation would have been provided expressly".

Justice Rajendra Mal Lodha agreed with Maharashtra holding: "We are in agreement with Mr. TR Andhyarujina that if the intention of Andhra Pradesh was that Maharashtra should not utilize the waters of Pochampad reservoir in its territory, such limitation would have been provided expressly. When an agreement is entered into between two or more states, they have assistance of competent legal and technical minds available with them. The states do not have lack of drafting ability. Such agreement is drafted by trained minds. An agreement such as inter-state water sharing agreement would not leave its interpretation to chance. In our view, in the absence of any express limitation, except quantity, on the use of water by Maharashtra within its territory in Clause II i), the interpretation put by Andhra Pradesh to this Clause cannot be accepted".

Justice Lodha rejected AP's interpretation of the phrase "dam site" and upheld Maharashtra's contention. "The contention of Mr. K. Parasaran, learned senior counsel for Andhra Pradesh that up to Pochampad dam site in Clause II (i) and Clause II (ii) means up to the spread area of Pochampad dam and not the concrete structure of the dam does not appeal to us. The common meaning of the word “dam” is the structure across the stream, including the abutment on the sides".

The learned judge agreed with Maharashtra that an expression must carry the same meaning at all places where it is used, unless expressly provided otherwise. He wrote: "If the meaning of Pochampad dam site is given meaning as spread area of Pochampad dam, Clause V does not make sense and leads to absurdity. Clause V becomes workable only when Pochampad dam site is understood to mean concrete structure of the dam".

While agreeing with AP that "generally there cannot be lake/pondage of a project of one state within the lake/pondage of the project of another state", the court held this was not the focus of the case in the absence of engineering and hydrographic testimony. As the arguments on either side were centered on the interpretation of II (ii), this alone was considered for the judgment. The learned judge held "Like any other agreement, the terms of inter-state agreement ordinarily must be found out from the actual words employed therein".

"All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void": section 10 (excerpt) of the Indian Contracts Act, 1872