Mediation
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This article is written by Harsh Gupta from the School of law, HILSR, Jamia Hamdard. This is an exhaustive article which deals with the controversial issue of the Krishna River Dispute and recent progress over the petition filed by the Andhra Pradesh Government against Telangana.

Introduction

No matter where man draws a boundary, water flows downward. In India, many major rivers cross the border between two or more states, which has been a source of conflict in the past. The nation has tried to resolve conflicts using its constitutional machinery and statutory framework developed over time, however, the political climate and culture prevalent in the country at present do not lend themselves to this process, leading to protracted adjudication and settlement procedures that do not benefit anyone in particular. 

One of these is the Krishna water dispute, which has a long history and has not been resolved satisfactorily to date. Before discussing in some detail the Krishna river water dispute, this article traces the evolution of the constitutional machinery and the statutory framework over time, the main reasons for interstate disputes over river water. Ultimately, the article concludes that the politicization of water disputes is a real issue that cannot be ignored. These disputes have been exacerbated by a combination of political compulsions of the different parties and the perceived wishes of the state’s population. 

Thus, it is necessary to establish institutions through which information can be exchanged, negotiations can be negotiated, and collaborations can be facilitated. Despite the fact that these institutions cannot supplant the legal machinery in place, they can supplement it effectively. In the context of Article 263 of the Indian Constitution, the proposal to establish an interstate council may be a step in the right direction.

Krishna river dispute

As the Krishna river flows west to east along the west coast of India, it is drained by the Western Ghats, a mountain range running north to south. Maharashtra (where the river begins), Karnataka (where the river is situated in the middle), and Andhra Pradesh (where it is flowing the furthest downstream) are among the states draining by the river. In 1855, when India was part of the British Empire, the first irrigation projects in the basin were built. State water allocation agreements were signed with each other as the basin population increased, first in 1892, then in 1933, 1944, and 1946. An agreement was signed in 1951 by three states regarding the allocation of water. 

However, Mysore, the fourth state, did not approve the agreement, and the interstate disputes continued. In 1953, a new state of Andhra Pradesh was established, and in 1956, the States Reorganization Act consolidated several States in the Krishna river basin. However, disagreements over water continued. Then, in 1969, the central government invoked the Inter-State River Water Disputes Act, 1956, and set up the Krishna Water Disputes Tribunal in response to a petition from three States. The Krishna Tribunal issued its award four years later. 

The Tribunal had to reexamine its assumptions and decisions after the States requested clarifications. As a result, the Final Award was not published until 1976, but it included the following recommendations: The Tribunal evaluated two alternative solutions, which it termed “Scheme A” and “Scheme B”:

  • Using Scheme A, a water apportionment was calculated on the basis of 2,060 TMC (thousand million cubic feet) of water annually available in the basin. In the Tribunal’s decision, water was allocated to the States of Andhra Pradesh, Karnataka, and Maharashtra. As a result, the surplus reverted to the State of Andhra Pradesh, but it did not acquire a permanent (vested) right to those waters.
  • In Scheme B, a Krishna Valley Authority was envisaged, a basin-wide public authority that would allocate water and manage the river, including surplus flows. Maharashtra and Karnataka supported this alternative while Andhra Pradesh refused. Due to the absence of agreement by the three states to create a Krishna Valley Authority, the Tribunal did not adopt Scheme B. The Tribunal allowed the three states to reopen the water allocations after May 3, 2000. 

As a result of the second round of adjudication, the Krishna River Tribunal was established in 2004. As a result of the Krishna II Tribunal, the yearly allocable water has increased to 2,578 TMC. The T\tribunal reduced its reliability in 1976 by making the additional allocations less dependable than the base allocations. Similarly, the tribunal made no mention of what happens during a drought when the river does not have enough water to satisfy demands. 

Among the recommendations of the tribunal was the creation of an Implementation Board for the Krishna Water Decision. In its order, the tribunal stated States could appeal their decisions after May 31, 2050. Meanwhile, two of the states, Andhra Pradesh and Karnataka, have filed appeals in the Supreme Court challenging the award. 

new legal draft

Controversy and the current issue 

  • As the Supreme Court had suggested, the Andhra Pradesh government denied mediation in the Krishna river water sharing dispute between Telangana and Andhra Pradesh on Wednesday, 4th August 2021.
  • The Andhra Pradesh state government lawyer, G. Umapathy, informed the Supreme Court that the Krishna river water dispute sharing matter between AP and Telangana would require judicial resolution. Because mediation did not work, the Chief Justice of India (CJI) Nuthalapati Venkata Ramana said, “we will assign it to another bench”.
  • It is intended that the States do not agree to mediation as suggested by the Supreme Court, Umapathy informed the Supreme Court bench including Justice Surya Kant, along with Chief Justice Ramana.
  • CJI said, “We cannot force you (AP Government) to participate in mediation. Let this issue be decided by another Court.”
  • As advocate general (SG), Tushar Mehta represents the Union of India (UOI). He says that we do not object to you (the government of Andhra Pradesh) hearing the matter.
  • On August 2, 2021, CJI Ramana recused himself from hearing the case since he claims to belong to both Andhra Pradesh and Telangana. By indicating he did not wish to adjudicate the legal aspects of the case, he implied that he did not want to deal with it in that way.
  • On August 2, the Chief Justice had called on all parties to settle the case through mediation, otherwise, it would be heard by another bench.
  • On July 14, the Andhra Pradesh government filed a lawsuit against Telangana and its officials alleging denial of “legitimate share” of drinking and irrigation water to its people.
  • A copy of the petition accessed by ANI states that the State of Andhra Pradesh (AP) is required to move the Supreme Court under Article 32 of the Constitution of India to protect the fundamental rights of its citizens, including the right to life of its citizens, as well as the right to water and water supply, that are being seriously impaired and infringed on by the State of Telangana and its officials through unconstitutional, illegal, and unjust action.
  • The petition copy further stated that certain officials of the Telangana government committed illegal acts that caused Andhra Pradesh to lose its legitimate share of water for drinking and irrigation.
  • As indicated by the petition, the Andhra Pradesh government has filed a lawsuit because Telangana did not follow any decisions taken in the Apex Council, directions left by the Krishna River Management Board (KRMB) constituted under the 2014 Act or directions from the Indian government.
  • In addition, Telangana violated a binding Award made on May 31, 1976, and provisions of the 2014 Act, whereby Andhra Pradesh was divided into Telangana and AP, according to the petition filed by the AP government.
  • According to the petition filed before the Supreme Court, this depletion of water in the Srisailam Dam project, as well as other projects such as the Nagarjuna Sagar Project and the Pulichintala Project, has caused great hardships for the people of Andhra Pradesh.
  • A copy of the petition copy indicates that the Chief Minister of Andhra Pradesh has also written to the PM and requested his urgent intervention in consideration of the serious threat to the right to life of tens of millions of Andhra Pradesh citizens in the petition copy.
  • Furthermore, the Chief Minister of Andhra Pradesh had already addressed letters to the Jal Shakti Ministry on July 1 and May 5, 2021.
  • Although the Reorganization took place in 2014 and the Apex Council has been set up, the new jurisdiction of the Krishna River Management Board (KRMB), which is supposed to be notified under Section 87 of the 2014 Act, has not been notified.
  • Telangana’s government and authorities are engaging in illegal acts, posing serious constitutional problems, according to a petition filed before the Supreme Court.

In the center versus states debate, interstates river waters are the issue 

In India, strong perceptions and debates often point to the constitutional division of legislative powers between the states and the center as one of the causes of interstate water disputes; another factor is poor implementation of awards. The Seventh Schedule under Article 246 of the Constitution lists three categories of subject matters: Union List, Concurrent List, and State List. Legislation on matters in the Union List is exclusive to Parliament, while legislation on matters in the State List is exclusive to states. Subjects in the Concurrent List include those in which the union (center) can also make laws in addition to States.

This listing of water in the State List has given the predominant role to the states in managing water resources. Entry 17 for water in the State List reads: “Water, including water supplies, irrigation, drainage, embankments, storage, and power”. The emergence and recurrence of interstate water disputes are attributed to the lack of uniform national policy and synergy among the states. Consequently, it was believed that moving water to the Union List would give the center a greater role, which, in turn, would lead to the necessary synergy. 

However, these arguments seem ill-informed. Entry 17 of the State List is subject to Entry 56 of the Union List, which states: “The regulation and development of interstate rivers and river valleys to the extent that such regulation and development is declared by the Parliament to be expedient in the public interest.” 

A comprehensive critique of this view is provided by Iyer (1994a, 1994b, 2002) who argues that the center has never exercised its powers under Entry 56 and has always left it up to the states. The center’s willful abdication led to an understanding that water resources are exclusively the responsibility of the states. Entry 56 emphasizes public interest, which means that center involvement extends to situations in which the actions of one government negatively impact fellow governments. The rule applies even when a river flows entirely within a state’s boundary but has an impact on other states.

Conclusion 

Is it an opportunity missed by Justice Ramana? As he sidelined himself from hearing the Krishna river dispute case between Andhra Pradesh and Telangana. The CJI said that since he belongs to both the states, he thereby did not want to adjudicate the legal issues involved in the case. But he is someone who is well aware of the facts of the case and could have adjudicated the dispute very well. Now, the decade long dispute will take more time to solve as Andhra Pradesh has refused to mediate with Telangana over the Krishna river dispute as according to the State Government Lawyer, G. Umapathy, mediation did not work and it requires judicial resolution, now, again a bench will be constituted after Andhra Pradesh declined Supreme Courts’ suggestion to go for mediation.

References


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