Centre’s Control Over River Management Boards in Telugu States Violate Constitution

It is no gainsaying that formation of a new state by dividing an existing state is in the exclusive domain of Parliament. So also the power to enact incidental and consequential provisions. The reorganisation of the state involves, amongst others, the division of assets and liabilities and sharing of river waters. The Constitution in Schedule-VII, List-1, Entry 56, enables Parliament to pass laws for regulation and development of inter-state rivers and river valleys only if Parliament declares that such law is expedient in the public interest. However, Act of 2014 empowered the Union government much beyond the scope of Entry 56 in List-1 without considering the element of public interest. In other words, the enactment in respect of the River Management Board under Sections 84 and 85, which take over all major projects in both states does not pass the test of legislative competence.

The Centre has usurped the powers of the state government over all irrigation projects (35 in the Krishan basin and 71 on the Godavari). The notification issued on May 15, 2021, deprives the successor states of any role in the management and development of water sources, while fully placing the financial burden on the states. The cost of the management boards is burdensome as evident from a direction that was issued to both the successor states to deposit `400 crores and a further amount of seed money to each board within 15 days of direction avowedly to enable them discharge functions effectively.

In this context, vires of Sections 84 and 85 and related provisions in Part-IX of the Act of 2014 needs to be examined. The Entry 17 of List-II of Schedule-VII of the Constitution empowers the state governments to make laws on projects on the inter-state river waters allocated to that state as well as on the rivers exclusively flowing within that state. The legislative power of Parliament in Entry 56 of List 1 on inter-state rivers does not conceive taking over of the projects.

Even assuming for a moment, it has the authority to regulate and develop inter-state rivers, it kicks in only when Parliament declares in the reorganisation Act that this provision is expedient in public interest but no such provision is present in the Act of 2014. It is a different matter, if a board was formed for a particular project which was declared as a national project as in the case of Polavaram Project.

The River Boards Act, 1956, was passed in Parliament using its legislative power under Entry 56 and its objective was regulation and development of inter-state rivers and river valleys.

The role of the Centre under this Act was to advise the state governments relating to matters concerning the regulation and development of an inter-state river after consultation with them on a proposal to establish the board. From this, it is clear that Parliament was conscious in 1956 itself that its powers under Entry 56 were advisory and consensus-driven, otherwise, nothing could be achieved in the field with recalcitrant states if a one-sided policy was pursued. It is important to note that provisions of Sections 84 and 85 of Act of 2014 are not under the River Boards Act 1956.

Parliament is empowered under the Constitution to enact a law for adjudication of river water disputes. In this regard, the Inter-state River Water Disputes Act, 1956, came into existence. This provision is not under Entry 56 of List 1 but under Article 262. In case of any dispute between states in the use, distribution and control of the waters of an inter-state river, a state can request the Centre to refer the dispute to a tribunal for adjudication.

At the time of reorganisation, there was no attempt to allow the successor states to arrive at a ratio of share in the river Krishna as per the Bachawat Award. Only when there is a failure to agree in the distribution of water, there is scope for reference of dispute to the tribunal by the Centre. The Act of 2014 does not provide for it either.

Another to be noted is that these provisions are not in tune with the several other Acts passed by Parliament while reorganising states like Punjab, Uttar Pradesh, Bihar and Madhya Pradesh. In the case of the Punjab Reorganisation Act, all the rights and liabilities of the existing state of Punjab in respect of river waters were to be divided between successor states in such proportion as may be agreed by the said states after consultation with the Centre and if no such agreement is reached within two years of the Appointed Day, the Centre may by order determine it and even this determination is subject to variation by any subsequent agreement by successor states. The same provision more or less finds place in the Reorganisation Acts of Madhya Pradesh, Uttar Pradesh and Bihar.

The Bakra Management Board was provided in the Punjab Reorganisation Act, but the function of the Board basically is to regulate the supply water among the successor states having regard to the agreement entered into by the states. But such is not the case in the AP Reorganisation Act, 2014.

It is to be noted that the management board has no role in the determination of water share and any attempt to do so would be usurping the autonomy of states in the matter of use, distribution and control of water. Only when there is breakdown in the effort, the dispute is referred to the tribunal conceived in Article 262. As stated above, even the River Boards Act, 1956, does not provide for unilateral taking over of the projects and it confines itself to an advisory role and preparation of the schemes for optimal development of water resources of an inter-state river and the whole idea is to forge consensus to initiate such advisory role. If any dispute arises between states as regards the advice rendered by a river board, there is a provision for arbitration of these disputes.

In the light of these facts and the law, the provisions of the Act of 2014 creating management boards is unconstitutional. This is a deadweight on new states. The reorganisation of the states of Punjab, Madhya Pradesh, Uttar Pradesh and Bihar is no different from the division of Andhra Pradesh. In those states, the control on the water resources of successor states was very much left in the hands of states whereas in case of the Telugu states, it was taken over by the Centre. The laws enacted by Parliament have to be consistent and produce the same effect in similar circumstances. However, newly formed states have been singled out for inequality and injustice and they stand discriminated against in violation of Article 14 (equality before law) of the Constitution.

As regards the efficacy of two boards created under the Act, the management board for Godavari is unnecessary. The utilisation of the waters of this river in each of the new states is far less than the allocation. The river Krishna is the only source of friction between the states since it flows along the border of the states for significant length and there are several projects built on this and the potential of the river is fully utilised within and outside the basin.

The best way to resolve any dispute in distribution of Krishna waters allocated by the Bachawat Award is to build a public opinion of citizens from both the states consisting of civil society, former judges of superior courts, former engineers who worked on the projects and others. In order to accomplish this, both the governments can take the initiative in forming the committee of eminent people from both sides and enough data relevant to distribution of water and other contentions issues should be made available by the government to them so that effective deliberations can take place.

Both the states should write to the Centre to move a proposal to amend the AP Reorganisation Act for omitting Sections 84 and 85 and for dissolution of the river boards and putting in its place a more consensual structure acceptable to both the states. In any case, the option to approach the Centre to form a tribunal is always there.

Without considering these aspects, forcing both the states to accept the management boards is like ‘fox guarding the hen house’ and placing the heavy burden of the boards on new states is unconstitutional and does not promote the federal polity of the nation.