BJP TODAY

May 16--31, 2003 - Vol. 12, No. 10

Consensus approach ensures co-operation from States for Inter-linking of Rivers (ILR) project
Telugu Ganga Project shining example of consensus
Arabinda Ghose

While most of the States in the Indian Union are agreeable to the implementation of the Inter-linking of Rivers project initiated by the Union Government and the Chairman of the Task Force for Inter-linking Rivers (TF-ILR) Suresh Prabhu has adopted the consensus approach in order to secure the full co-operation of the States in the implementation of the all world's largest water resources project.

This has paid dividends already and it is like that in the future also such an approach will be adopted instead of taking the easier route of making the States opposing the project fall in line by passing a law in Parliament under Entry 56 of List I (Union List) in the Seventh Schedule of the Constitution. This law can be enacted by a simple majority and it view of the fact that the ambitious programme was launched during the Prime Ministership of Indira Gandhi and which received enthusiastic support from the Congress president Sonia Gandhi in the Lok Sabha last year, enacting such a law will not be a difficult task at all. (Constitutional issues are discussed later in this article.)

One positive impact of the consensus approach has been the consent given by the Kerala Chief Minister A.K. Antony for conducting a joint study by this State and Tamilnadu for the Pamba-Achinkovil-Vaiappar link, which envisages diversion of some waters of the Pamba river in Kerala flowing westwards towards the east across the Western Ghats into the Vaiappar for irrigation in the southern districts of Tamilnadu. Earlier, Kerala Government had steadfastly opposed the taking up of this link.

It is also a happy augury that the Orissa Government too has reportedly not opposed the inter-linking project, which it was earlier not agreeable to. The source of the Peninsular component is the Mahanadi, the life-line of Orrisa, which is estimated to have surplus waters during the monsoon months. The proposal is to divert a part of this excess flow from a point called Manibhadra downstream of the huge Hirakud Dam near Sambalpur.

From Manibhadra, a canal is proposed to be taken out for connecting the river with the Godavari, about 900 kilometeres away, at the Dowalaiswaram barrage near Rajahmundry. This is the first leg of the Peninsular link, which will end at the river Vaigai, south of the Cauvery and the Gundar.

It is in this connection that the Chairman Shri Prabhu has net several Chief Ministers of States and will continue to do so. Now the Constitutional issues.

The framers of India's Constitution have placed "water" in List II (State List) in the Seventh Schedule with certain conditions. Entry 17 in this List gives almost "sovereign" rights of the States over water flowing in rivers passing through those States.

This provision has been made use of by certain States to block construction of inter-state irrigation projects. In the emerging scenario when inter-linking of rivers has become a programme sponsored by the Union Government and supported by not only most political parties in the country but also most of the States, a few States can today invoke this provision to deny supply of even surplus waters to other States which will otherwise flow down to the sea, for the inter-linking project.

In a recent observations during the course of arguments on a Public Interest Litigation, the Supreme Court said it favoured "nationalisation" of rivers, and also expressed the view that the provision in Entry 56 in list I(Union List) should be invoked for passing a legislation by Parliament in order to remove obstacles in the path of implementing inter-State river valley projects.

Let us, at this point, examine the three provision on water enshrined in the Constitution of India and which have not been amended either by a simple-majority enactment or through a Constitutional Amendment under Article 368 of the Constitution. Here they are :

Entry 17, List II - "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."
Entry 56, List I - "Regulation and Development of inter-State rivers and river valleys to the extent to which such regulations and development under the control of the Union is declared by Parliament by law to be expedient in the public interest."

There is just one article in the Constitution which relates to dispute relation to water, this is Article 262. It says: "Adjudication of disputes relating to waters of Inter-State rivers or rivers valleys -

(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of 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 not any other court shall exercise jurisdiction in respect of any such dispute or complaint as is refered to in clause (1)

There are no other provisions regarding water in the Constitution consisting of as many as 395 Articles.

Does this mean that it is not possible to implement any inter-State river valley project unless two or more States agree to implement them or the Constitution has to be amended in order to make States not agreeable to spare water to a neighbouring State fall in line? The Supreme Court in the PIL hearing, had commented that the Centre might take recourse to enact a law provided for in Entry 56 in List I quoted earlier in this article in order to regulate and develop inter-State rivers. It had also observed at one point of time why could water not be taken out of the State list and placed in the Union List.

These matters are still being debated, but let us refer to one instance in which four States had come together for implementing an inter-State water resources project without even considering any amendment to the Constitution, and the project they had envisaged is now more or less complete.

Ever since the State of Madras, now renamed Tamilnadu, came into being after the reorganisation of States, it has been appealing to the Centre and its neighbours to spare water for it in order to meet the drinking water needs of Madras, now renamed Chennai, city. The State realised that it was no longer possible to source the drinking water for Chennai from a river or a group of rivers from within the State as these did not have sufficient waters in them for most part of the year. Only during the months when the north-east monsoon precipitations come, do these rivers have sufficient water to spare for Chennai. It made the authorities concerned realise that the only source of augmenting drinking water supply for Chennai city was to source the supply from the Krishna river basin, at least four hundred kilometres to the north and which has huge potential to spare some volume for Chennai city.

The problem was that no part of Tamilnadu falls within the basin of the Krishna river and hence the State has absolutely no right to demand water from the Krishna.
When the Bachawat tribunal was set up in the midseventies for settling the disputes between the States of Maharashtra, Karnataka and Andhra Pradesh regarding their respective shares of the Krishna river, Tamilnadu Government has appealed to the Tribunal to spare some water for it out of the flow of this fairly large river of the Peninsula. The Tribunal did not find it possible to accede to this request.

During 1976, the then Prime Minister Indira Gandhi had announced that Chennai city would get supply of drinking water from the Krishna rivers. However, she did not remain the Prime Minister after the March 1977 general elections and her promise could not be redeemed. She returned back to power in 1980 and by that time, Tamilnadu had elected a Government led by the charismatic leader M.G. Ramchandran, a staunchlly of the party led by Mrs. Indira Gandhi. At about that time, probably early 1981, all the three basin States of the Krishna - Maharashtra, Karnatka and Andhra Pradesh - had governments led by her partymen.

Taking this fact into consideration, and in order to redeem her pledge to Tamilnadu to provide drinking water to Chennai city from the Krishna, she convened a meeting of the four Chief Ministers at Chennai itself. The Chief Ministers decided that each one of three Krishna basin States would spare just five thousand million cubic foot (TMC) of water each from their shares according to the Bachwat Award and this water would be conveyed to Chennai through a canal which will carry a total of 15 TMC to Chennai city.

It was also decided that the source would be the reservoir just created then by completing the Srisialam Dam across the Krishna, downstream of the river's confluence with the Tungabhadra and within the Andhra Pradesh territory. Since the conveyor system, an open canal, was to be constructed entirely within the territory of Andhra Pradesh, it was also decided that this Government would build the conveyor system consisting of canals, balancing reservoirs, etc. The flow, it was found, would entirely by gravity and no lift would be necessary.

This proposed drinking water channel (rather than a canal) entered a very interesting phase towards the beginning of the year 1983, when a charismatic cinema personality was deeply hurt by what he felt deliberate humiliation inflicted on the Telugu people who inhabit Andhra Pradesh. He contested the State Assembly elections under the banner of the Telugu Desam Party (TDP), and handsomely won in January 1983. He became the Chief Minister of Andhra Pradesh, the first non-Congress government of this State.

He, however, did not scrap the agreement arrived at by his predecessor even though he could legitimately have done so in view of the powers of the State under Entry 17, List II mentioned earlier. Instead, what he did was to expand the Scope of this scheme in order to provide enroute irrigation waters for the parched Rayalseema regions of this State. He proposed to alter the channel's size, making it a canal carrying much than 15 TMC of water. This proposed canal he named the Telugu Ganga.

There was instant opposition from the Maharashtra and Karnataka States to this proposal of Andhra Pradesh and they had taken up the issue with the Union Minister of Water Resources. However, water being a State subject, neither the State Governments nor the Union Government could intervene in this matter. The Andhra Pradesh Government stuck to this decision and after about 20 years, the entire canal system-there were different sections where construction involved blasting of rocks- is complete and ultimately water has been delivered from the Srisailam reservoir to the Poondi tank in Chennai for distribution in the city. This year, however, the discharge from the Kandaleru reservoir up to the border between the two States appears to have been extremely limited, resulting in acute drinking water scarcity in Chennai. However, that is another story.

The fact is that an inter-basin transfer of water has taken place based on mutual goodwill and with no need to amend the Constitution.