Did AP Act authorise Centre to grab rivers?
The Union Government has claimed that it has invoked powers under Andhra Pradesh Reorganisation Act 2014 for taking over Krishna Godavari rivers from both Andhra Pradesh and Telangana
The Union Government has claimed that it has invoked powers under Andhra Pradesh Reorganisation Act 2014 for taking over Krishna Godavari rivers from both Andhra Pradesh and Telangana. Whether this Act gave such a huge power to Union to deprive states of its rivers? Whether Constitutional scheme of distribution of powers will approve this kind of deprivation of states?
AP Act enables the Union to constitute two River Management Boards and decide its jurisdiction. Section 84 provides for Apex Council for Godavari and Krishna River Water Resources and their Management Boards. Union Irrigation Minister will be chairperson, while two CMS will be members. This was entrusted with duty to resolve any dispute amicably.
Section 84(3) says: (i) supervision of the functioning of the Godavari River Management Board and Krishna River Management Board; (ii) planning and approval of proposals for construction of new projects, if any, based on Godavari or Krishna river water, after getting the proposal appraised and recommended by the River Management Boards and by the Central Water Commission, wherever required; (iii) resolution of any dispute amicably arising out of the sharing of river waters through negotiations and mutual agreement between the successor States; (iv) reference of any disputes not covered under Krishna Water Disputes Tribunal, to a Tribunal to be constituted under the Inter-State River Water Disputes Act, 1956 (33 of 1956).
When this is the prescription, how can Union take over the complete ownership of two rivers and impose entire liabilities on two states? It is a clear violation of Parliamentary mandate through 2014 Act.
As per Section 85 the Boards were constituted in 2014. These boards will be chaired by Secretary or Additional Secretary of Government of India to be appointed by Centre, and two members nominated by two states plus one expert nominated centre. Its member secretary will be Chief Engineer rank officer to be appointed by Centre. Functions include regulation of supply of water from the projects and implementation of awards. They have to make appraisal of proposals of new projects.
Section 87 talks about the Jurisdiction of Board. It says: (1) The Board shall ordinarily exercise jurisdiction on Godavari and Krishna rivers in regard to any of the projects over headworks (barrages, dams, reservoirs, regulating structures), part of canal network and transmission lines necessary to deliver water or power to the States concerned, as may be notified by the Central Government, having regard to the awards, if any, made by the Tribunals constituted under the Inter-State River Water Disputes Act, 1956. (2) If any question arises as to whether the Board has jurisdiction under sub-section (1) over any project referred thereto, the same shall be referred to the Central Government for decision thereon. These are the powers prescribed by Act 2014. But the Centre has issued taking over notifications on 15th July 2021.
What is the meaning of taking over?
Seven years after the constitution of River Boards, the Centre decided their 'jurisdiction', which, according to them, means transferring of the operation of all projects including hydel generation. It is not just transferring the controls but entire asset- lock stock and barrel – being divested from Andhra Pradesh and Telangana and vesting them in Union, through the nomenclature of River Management Boards.
The notification in the name of prescribing jurisdiction of the Krishna and Godavari River Management Boards (KRMB and GRMB), has usurped all the powers of the State Governments over all the irrigation projects (35 on Krishna basin and 71 on Godavari). The centre has imposed all liabilities arising out of functions on the States. The notification disqualifies the engineers and personnel of two states from becoming chairman or any functionary in the Boards, and empowers the Centre, to appoint its officers only. The civil servants and top engineers will be the owners of Krishna and Godavari as far as they flow in AP and Telangana, but do not own the parts of rivers flowing in other states.
States to pay
The states are directed to deposit funds Rs 400 crore each to Boards as seed money to enable them to discharge functions effectively, and the states were told to deposit required funds additionally within 15 days of the demand by the boards. States have to give their money, staff, assets, projects, operational powers and control over all the projects in which they invested lakhs of crores of rupees since long time. All powers to Centre and all responsibilities or liabilities are thrust on the heads of the states.
Two boards will have power to give any directions to two states for maintenance of projects and states are supposed to obey. The boards were given full authority to get their orders implemented. The notification further mandates: Everything in Plant, machinery equipment and stores, besides vehicles with all assets will go to KRMB and GRMB. If any question arises as to whether the KRMB or GRMB has jurisdiction, the decision of the Centre shall be final (Paragraph (o)); The states should try to get approvals for unapproved projects within six months. Both the state governments shall stop all the ongoing works on unapproved projects as on the date of publication. If approvals are not secured within six months, the projects shall cease to operate.
All the unapproved projects will have to come to a grinding halt, even if it causes economic disaster to the state. But the centre will not take any responsibility. Paragraph (g) says financial liability of any contract before the date of commencement of this notification, liability arising out of any of the present and future cases filed in the Supreme Court, High Court, any other Court or Tribunal in regard to the projects or components specified in Schedule-2 shall be the responsibility of the respective State Governments.
It is not that approved projects, either completed or ongoing- are left to the states. They were also taken over and brought under the 'jurisdiction' of relative River Management Boards.
Deciding jurisdiction or regulation does not mean taking over the assets and all controls depriving the riparian states of their rights over the rivers running through their states. When states have spent huge amount on various projects, how can they deprive them of their property? If there is a dispute between two or three states, it is the duty of the Centre to manage the affairs and see that dispute is settled. But it cannot abdicate this constitutional duty and own the rivers at the cost of state's autonomy and sovereignty. When Centre was asked to manage, it has chosen to damage.
The Andhra Pradesh welcomed this taking over. It means submitting their sovereignty at the feet of Delhi. Telangana Government questioned this saying how can the Centre take over this without reallocating the shares in the water especially after a new state was born and seeking the relook or re-distribution of water.
Justice Brijesh Kumar, chairman of Krishna Water Tribunal, the term of which was extended did not agree with the demand for the reallocation of water shares in Krishna among four riparian states. In October 2016 the Tribunal headed by Justice Brijesh Kumar made certain crucial observations:
1. Section 89 of the Reorganisation Act does not lead to any such inference or conclusion for fresh allocation amongst the four riparian States.
2. There was not even a mention of Telangana let alone reallocation of water in the section.
3. Section 89 did not specify allocations to projects, in general, and mentioned allocations only to projects for which allocation were fixed by the earlier tribunals.
4. The allocations made on the basis of water utilisations outside Krishna basin were valid on historic grounds.
5. Rayalaseema, which was outside the basin, was therefore entitled for Krishna water.
6. The two successor States (Andhra Pradesh and Telangana) could only share what was allocated to the undivided Andhra Pradesh, nothing more or nothing less.
7. The claim of Telangana state that erstwhile Andhra Pradesh was divided because of the inequitable and faulty allocation of water is not correct. This reason that was stressed repeatedly by Telangana in its petition to the Supreme Court was not borne out from the statement or Objectives and Reasons and the Salient Features of the Bill.
8. The primary reason for the division of the erstwhile state was to "fulfil the political and democratic aspirations of the people of Telangana region," and not inequitable sharing of water.
Unfortunately, the tribunal, which is hearing the dispute for the last 17 years, has ruled that the water sharing between Andhra Pradesh and Telangana states would be finalised project wise from the water allocations made to erstwhile Andhra Pradesh state by earlier Bachawat tribunal and will not consider the formation of a new state or equity to it. Its serious injustice that should not be perpetuated under the chairmanship of a former Judge.
(The author is Dean & Professor, School of Law, Mahindra University, Hyderabad, and former Central Information Commissioner)