PUNJAB WATERS - SYL CANAL
Dr Gurmeet Singh
Water dispute between Punjab and some other Indian States like Haryana and Rajasthan (Gujrat too seems to be itching to join the affray) is a legacy of the withdrawal of the British from the Indian subcontinent. River waters constitute the life line of Punjab, not only because that is the only natural wealth which God has gifted to this State but also because its very identity depends upon them. The word ‘Punjab’ literally means ‘Punj Ab’ i.e ‘five waters’ referring to the five rivers which flowed on this beautiful land. The importance of river water has increased manifold these days because of its utility in modernizing the agriculture and also on account of its utility in production of electric energy which is needed to step up industrial production. Creation of Pakistan and partition of Punjab did not pose challenge to identity of Punjab, because the waters of Western rivers allotted to Pakistan still flow in territory which is known as ‘Punjab’ and is described as such in the political map of the world, but if the waters of eastern rivers allotted to India are diverted to Haryana and Rajasthan through Satluj Yamuna Link Canal then it will cause a geopolitical upheaval and create identity crisis for the territory known as Punjab; for the last some centuries which has been Homeland of Sikh people. It will hurt Sikh psyche and may create political crisis.
Allotting waters of Punjab rivers to Haryana under the garb of distribution of assets through the Punjab Reorganization Act, 1966, is not only illegal but also unconstitutional. Haryana State which has been created by separating erstwhile Ambala Division of Joint Punjab before creation of Pakistan in 1947, was never a part of territory known as Punjab. At the Round Table Conference held at London, Sir Geoffrey Corbet who had served in joint Punjab as Financial Commissioner and was Secretary of the Indian Delegation, had suggested separation of Ambala Division from Punjab as a solution to the communal tangle on the ground that this area was never a part of Punjab. He had argued :
“Historically Ambala Division is a part of Hindustan and its inclusion in the province of the Punjab was an incident of British rule. Its language is Hindustani, not Punjabi, and its people are akin to the people of adjoining Meerath and Agra Divisions, Ambala Division is not irrigated from the five rivers but from the Jumna system on which the adjoining districts of United Provinces of Agra and Oudh) also depend. It is, therefore, fair to assume that in any rational scheme for the redistribution of provinces Ambala Division less Simla District and the north western corner of the Ambala District would be separated from the Punjab.”
Thus it is clear from the above that Haryana is neither a riparian State nor part of Punjab. It was included in the State of Punjab as a punishment for mutiny against British rulers in the year 1857. Para 38 of the report of the Parliamentary Committee on the Demand for Punjabi Suba” gives a history of the State of Haryana as under:
“In the uprising of 1857, the people of this area were in the vanguard of that movement termed by the Britishers as ‘mutiny’, but called by all patriotic Indians as the ‘War of Independence.” This movement did not succeed and the British Government decided to break down the morale of the people and their resistance to their rule. As a result of that, in 1858, the areas beyond Jamuna, that is areas of Merrut and Agra Divisions were separated and made a part of the United Provinces of Agra and Oudh. The new province which covered the districts of Simla, Ambala, Hissar, Karnal, Rohtak, Gurgoan and Delhi was known as Delhi Province. In 1912, a portion of Delhi Division was carved out in order to house the new Capital of the country which was shifted from Calcutta to New Delhi and it was made a Commissioner’s Province with an area of 528 sq. miles. Shifting of the Capital from Calcutta to New Delhi was necessitated on account of turmoil in Bengal as a result of the revolutionary movement to free India from the shackles of slavery. In 1915, a small area of 45 sq. miles from UP comprising some 65 villages and including the township of Shahadra was added to the province of Delhi. The remaining six districts were made parts of Haryana Division and included in Punjab.”
Hon’ble Supreme Court of India, in the matter of: State of Haryana vs State of Punjab and another in Original Suit No. 6 of 1996 (Reported in JT 2002(1) S.C. 123 has also held: “The State Haryana not being a riparian State, the water allocated to it has to be drawn by digging canal.”
Therefore, it is an established fact that Haryana is not a riparian State. Similarly, Rajasthan and Delhi to whom waters of Punjab have also been allotted too are not riparian States. Now the question arises whether a non-riparian state can compel an upper riparian State to spare waters for its utilization.
Under the International law, the rule is well established that the upper riparian state has the unrestricted right to the water flowing through her territory. A clear formulation of this rule was made by Attorney General Harmon in 1895 while justifying the action of the United States in reducing the flow of the river Rio Grande which was ordinarily used by the people in Mexico, which has come to be known as Harmon Doctrine and which has become a part of international jurisprudence. Arguing, he had concluded his arguments by saying “the rules, principles and precedents of international law impose no liability or obligation on the United States” to behave otherwise. This doctrine was accepted as law even by the International Waterway Commission in its report of 15th November, 1906, on the application of the Minnesota Canal and Power Company of Duluth, Minnesota for permission to divert certain Waters in the State of Minnesota from the boundary waters between the United States and Canada. The commission in its report said:
“It can hardly be declared that, in the absence of treaty stipulation, a country through which streams have their course or in which lakes exist, can in the exercise of its sovereign powers, rightfully divert or otherwise appropriate the waters within the territory for purpose of irrigation, the improvement of navigation, or for any other purpose which the government may deem proper. This principle was lucidly stated by Mr. Harmon.”
The principles of riparian law were adopted by the Joint Parliamentary Committee in its Report on Settlement of inter-state water disputes in India. It says:
“The effect of this is to give each Province complete powers over water supplies within the Province without any regard whatever to the interests of neighboring Provinces. The Federal Court would indeed have jurisdiction to decide any dispute between two Provinces in connection with water supplies, if legal rights or interests are concerned; but the experience of most countries has shown that rules of law based upon the analogy of private proprietory interests in water do not afford a satisfactory basis for settling disputes between Provinces or States where the interests of the public at large in the proper use of water supplies are involved. It is unnecessary to emphasise the importance from the public point of view of the distribution of water in India, upon which not only the prosperity, but the economic existence of large tracts depends.”
The Hon’ble Supreme Court of India impliedly accepted the riparian principle in the matter of Cauvery Water Disputes Tribunal (1992 S.C. 522) when it laid down:
“The provisions of Inter-State Water Dispute Act cleraly show that apart from its title, the Act is made by the Parliament pursuant to the provisions of Article 262 of the constitution specifically for the adjudication of the disputes between the riparian States, with regard to the use, distribution or control of the waters of the Inter-State rivers or river valleys.”
Principle of riparian law was also applied in the Narmada Water dispute between Madhya Pradesh, Maharashtra, Gujrat and Rajasthan wherein the Tribunal held:
i. Rajasthan being a non-riparian State in regard to Narmada, cannot apply to the Tribunal, because under the Act only a co-riparian State can do so.
ii. The state of Rajasthan is not entitled to any portion of the waters of Narmada basin on the ground that the State of Rajasthan is not a co-riparian State, or that no portion of its territory is situated in the basin of river Narmada.”
Plea of the Rajasthan that even though non-riparian, it should get share of Narmada Waters, like it is getting Punjab Waters, was rejected by the Tribunal on the ground that analogy of Punjab was not applicable because Punjab was prepared to satisfy the needs of Rajasthan provided its own needs as a riparian State were first satisfied.” From the above decision it is evident that a riparian state has a preferential right to use waters flowing through its territory and a non-riparian state cannot compel it to reduce the use of waters as per Harmon Doctrine.
Reliance by the State of Haryana on Indus (Rau) Commission Report which rejected the sovereignty principle and supported the equitable apportionment principle is irrelevant because the various provinces and States with whom the commission was dealing enjoyed only servitude status under the British Indian Government and had no independent entity. But under the Indian Constitution Provinces enjoy sovereign status viz-a-viz subjects mentioned in List II - State List. Dr B R Ambedkar speaking in the Constitutions Assembly had declared:
“The Constitution is a federal constitution in as much as it establishes what may be called a dual polity (which) … will consist of the Union at the Centre and the State at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.”
That is one reason why Rau Commission’s arguments cannot be applicable to disputes arising between independent entities. Moreover, Rau Commission had based its recommendations on principle of estoppel and only as an interim relief had recommended that Punjab should not divert its Waters before a period of three years to enable the lower riparian state to make alternative arrangement. But here Haryana is not a lower riparian State.
Provinces under the government of India Act 1935 enjoyed power to legislative w.r.t. Water Supplies, irrigation and canals but this power was subject to provisions contained in Section 130 and 131 of that Act which reads as follows:
“130. Complaints as to interference with water supplies: If it appears to the Government of any Governor’s Provinces or to the Ruler of any Acceding State that the interests of that Province or State. or of any of the inhabitants thereof, in the water from any natural source of supply in any Governor’s or chief Commissioner’s Province or Acceding State have been, or are likely to be, affected prejudicially by-
a) any executive action or legislation taken or passed, or proposed to be taken or passed; or
b) the failure of any authority to exercise any of their powers;
with respect to the use, distribution or control of water from that distribution or control of water from that source, the Government or Ruler may complain to the Governor-General.”
“131. Decision of complaints -
1) If the Governor General receives such a complaint as aforesaid, he shall, unless he is of opinion that the issue involved are not of sufficient importance to warrant such action, appoint a commission consisting of such person having special knowledge and experience in irrigation, engineering, administration, finance or law, as he thinks fit, and request that commision to investigate in accordance with such instructions as he may give to them, and to report to him on, the matters to which the complaint related or such of those matters as he may refer to them.
2) A Commission so appointed shall investigate the matters referred to them and present to the Governor-General a report setting out the facts as found by them and making such recommendation as they think proper.
3) If it appears to the Governor - General upon consideration of the Commission’s report that anything therein contains required explanation or that he needs guidance upon any point not originally referred by him to the Commission, he may again refer the matter to the Commission for further investigation and a further report.
4) For the purpose of assisting a Commission appointed under this section investigating any matters referred to them, the Federal Court, if requested by the Commission so to do, shall make such orders and issue such letters of request for the purpose of the proceedings of the Commission as they may make or issue in the exercise of the jurisdiction of the court.
5) After considering any report made to him by the commission, the Governor-General shall give such decision and make such order, if any, in the matter of the complaint as he may deem proper.
6) Effect shall be given in Province or State affected to any order made under this Section by the Governor-General, and any Act of a Provincial Legislature or of a State which is repugnant to the order shall to the extent of the repugnancy be void.
7) Subject as hereinafter provided the Governor-General, on application made to him by the Government of any Province or the Ruler of any State affected may at any time, if after a reference to, and report from, a Commission appointed as aforesaid he considers it proper so to do, vary any decision or order given or made under this section.
8) An order made by the Governor-General under this Section may contain directions as to the Government or persons but whom the expenses of the Commission and any costs incurred by any Province, State or person in appearing before the commission are to be paid, and may fix the amount of any, expenses or costs to be so paid, and so far as it related to expenses or costs to be so paid, and so far as it relates to expenses or costs, may be enforced as if it were an order made by the Federal Court.”
The above provisions makes it clear that Provinces and States in British India were not sovereign in the spheres allotted to them because although under the 1935 Act “ Water Supplies, irrigation and canal” was subject falling in the Provincial Legislative List, yet in case of dispute the Governor-General had the final say. But under the Indian Constitution the position is different. Riparian principle has been incorporated in the Constitution vide entry 17 of the State List of 7th schedule which confers exclusive legislative power on States w.r.t. ‘Water, that is to say, water supplies, irrigation and canal, drainage and embankments, water storage and water power subject to the provision of Entry 56 of List I.’ Entry 56 of Union List confere powers on Central Parliament to legislate on Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.
A bare reading of above entries shows that water including canals and drainage and embankments is a subject in exclusive jurisdiction of States and Centre has only limited jurisdiction only in case of inter-state rivers and that too where the river is under the control of the Union declared by parliament and that too only in public interest. Rivers of Punjab do not flow through any part of Haryana and Rajasthan and as such viz-a-viz Haryana and Rajasthan they are nor inter state rivers. It can by no stretch of imagination be held that it is in public interest to deprive Punjab farmers of their river-waters when the ground water level has already gone down by more than six to eight feet.
Hon’ble Mr Justive Sawant (for himself and Kuldip Singh J.) of the Supreme Court in the case of S R Bommai and others etc. etc. Appellants Versus Union of India and others etc. Respondents, had held that federalism is part of basic structure of the Indian Constitution. Hon’ble Mr Justice B P Jeevan Reddy as a member of the Constitution Bench in the same case (for himself) and on behalf of S C Agarwal Justice ) had held:
“The fact that under the scheme of our Constitution, greater power is conferred upon the centre viz-a-viz the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the State. It is a matter of common knowledge that over the last several decades, the trend the world over is towards strengthening of central Government be it the result of advances in technological/scientific fields or otherwise, and that even in USA the Centre had become far more powerful notwithstanding the obvious bias in that Constitution, in favour of the States. All this must put the Court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in The Indian Constitution is not a matter of administrative convenience, but one of principle- the outcome of our own historical process and a recognition of the ground realities”.
But inspite of the warning by wisemen in the country against whittling down of the powers of the States which may destroy the very basic fabric of the constitution, trend in judicial decisions recently is to facilitate more and more centralization. Although under Article 262 of the Constitution the Supreme Court or any other court has no jurisdiction to enter upon factual aspect of dispute yet Supreme Court has held that dispute between Punjab and Haryana on SYL Canal was not a water dispute and it had jurisdiction in the matter. In the matter of SYL Canal, the learned Judges have wrongly described the Indian Constitutional system as “semi-federal system” and erroneously held that “all the essential powers, both legislative and executive have been conferred upon the central government. Such an approach by the judiciary is responsible for the threat, which Indian System as a whole is facing today. When the nine Judges Constitutional Bench in S R Bommai case had held that federalism is a part of basic structure of the Indian Constitution, describing the Indian constitutional system as semi-federal by a later division bench is highly unjudicious if not contemptuous.
The Hon’ble two judges of the Apex Court while deciding the SYL Canal matter have also erroneously ignored the fact the rivers in question Satluj, Ravi and Beas are not inter-state rivers but international rivers and flow of waters therein is governed by an international Treaty known as Indus Water Treaty of 1960. The existing rights and duties regarding the waters of a particular international river, must be determined on the basis of existing treaties. Waters of Punjab rivers flow into Pakistan and Article IV Clause (2) of the aforesaid treaty lays down as under:
2. Each party agrees that any non-Consumptive use made by it shall be so made as not to materially change, on account of such use, the flow in any channel to the prejudice of the uses on that channel by the other party under the provisions of this Treaty. In executing any scheme of flood protection or flood control each Party will avoid, as far as practicable, any material damage to the other party, and any such scheme carried out by Indian on the Western Rivers shall not involve any use of water or any storage in addition to that provided under article III.
3. Nothing in this Treaty shall be construed as having the effect of preventing either Party from undertaking schemes of drainage, river training, conservation of soil against erosion and dredging, or from removal of stones, gravel or sand from the beds of the Rivers:
a. In executing any of the schemes mentioned above, each party will avoid, as far as practicable, any material damage to the other party.
b. Any such scheme carried out by Indian on the Western Rivers, shall not involve any use of water or any storage in addition to that provided under Article III.
c. Except as provided in Paragraph (5) and Article VII (1) (b), India shall not take any action to increase the catchment area, beyond the area on the Effective Date, of any natural or artificial drainage or drain which crosses into Pakistan, and shall not undertake such construction or remodeling of any drainage or drain which so crosses as might cause material damage in Pakistan or entail the construction of a new drain or enlargement of an existing drainage or drain in Pakistan; and
d. Should Pakistan desire to increase the catchment area beyond the area on the Effective Date, of any natural or artificial drainage or drain, which receives drainage waters from India, or, except in an emergency, to pour any water into it in excess of the quantities received by it as on the Effective Date, Pakistan shall, before undertaking any work for these purposes, increase the capacity of that drainage or drain to the extent necessary so as not to impair its efficacy for dealing with drainage waters received from India as on the Effective Date.”
The construction of SYL Canal may be violation of Indus Water Treaty because it will divert waters of Punjab rivers from their natural flow in Indus Basin to Yamuna-Ganga basin, as admitted by Sh I D Swamy, Union Minister of State for Home, who had said that the canal was required not only to bring the Haryana’s share but to divert the Bakhra Canal Water in West Yamuna Canal. Clause 7 of Art. IV reads:
7. Neither party will take any action which would have the effect of diverting the Ravi Main between Madhopur and Lahore, or the Satluj Main between Harike and Suleimanke, from its natural channel between high banks.
Whether the diversion of Bhakra Canal Water to West Yamuna will be in accordance with treaty is a question to be decided by experts.
A wrong impression is being given that India had paid Pakistan a huge amount to procure exclusive right to use waters of eastern rivers. The amount was paid not for the waters but to enable Pakistan for building of link canals and as cost of the replacement works for feeding the Pakistan Canals and major portion of the cost was borne by the World Bank out of the Indus Basin Development Fund.
Thus construction of SYL will be violative not only of provisions of our own constitution but also of International Treaties. An argument is advanced some time that Punjab had agreed to the construction of SYL and thus under the law of Constracts it must carry out its part of obligation. The question arises who had the locus standi to contract the rights of the people of Punjab in the river waters of the State. Section 132 of the Government of India Act, 1935 recognized the rights of the inhabitants of the province in the water from any natural source of supply and their locus standi to challenge any action interfering with their right. There is no specific provision in the Constitution of India in this regard but a Division Bench of the Punjab and Haryana High Court in the matter of allocation of Punjab River Waters has held in the case of S. Ravinder Singh Kaleka and others Versus Union of India and others (1984 Punjab & Haryana 235) that the farmers of the State of Punjab have a locus standi to challenge the provisions of Section 78 of Punjab Reorganization Act and competence of Parliament to enact the same. In this writ petition it was alleged that even on the assumption that the agreement of Chief Ministers of Punjab, Haryana and Rajasthan of 31-12-1981 is contractual in nature, the same does not satisfy the mandatory requirements of Article 299 of the Constitution and is therefore void and unenforceable. Farmers of Punjab are not a party to the contract although under the constitution sovereignty vests in the people. Even Punjab Assembly on 5-11-1985 had passed a resolution rejecting the alleged agreement. Therefore, no valid agreement exists.
From whatever angle we examine, Haryana has no rights in Punjab waters and allocation to Haryana, Rajasthan and Delhi is an act of high handedness on the part of the centre.