Sardar Harbinder Pal Singh
Water is the basic ingredient of human life, and without it biological existence is impossible. Hence, there is bound to be conflict and dispute over use of water between the groups of individuals, of states of a federal country or the nation states. The question arises as to what are the fundamental legal principles which have been in vogue for making decisions for allocation and control of river waters amongst various unit states in a federation.
The States in a federation are semi-sovereign constituent elements of the Federal system and the Municipal Federal Courts like Supreme Court, which are to decide the issues of law between these States, can safely draw upon principles of International Law for uniformity of doctrines over the issues on which Municipal Law is silent. Hence, in the matters of boundary questions, the issue of riparian rights or prescriptive titles in a Federation, the State units have to be treated like sovereign States, as if under International Law. It is so because in the ultimate and final analysis, the sovereignty in Austinian sense is vested in the Constitution of a Federal country and powers for exercise and discharge of those functions have been appropriately distributed between the Union and States, keeping in view the proximity and convenience.
In the leading case of Manchester vs. Massachusetts 139, US 240 (1891), the Supreme Court of United States held as a part of Constitutional Law that territorial jurisdiction of Massachusetts was that of an independent nation and that State can define its sea boundaries so as to include Buzzard’s Bay within its territories.
Riparian Law Doctrine
Historically, the oldest law for exercising control by the States is Riparian Law. It means that rivers are part and parcel of the territory of Riparian States, which have exclusive control over it. Etymologically, the word ‘Riparian’ is derived from Latin word ‘Riparions’ meaning a river bank and it implies the riparian proprietor’s legal right over the waters of the river. The ancient Roman Law acknowledged the legal right of the Riparian State to exercise control over its river waters. This rule prevailed in Middle Ages and, thereafter, it also continued to be applied in 20th century, when after World War II, the Danube Commission was set up and its membership was restricted to the six Riparian States only.
Prof. Oppenheim, the leading authority on the subject, states that “theory and practice agree upon the rule that rivers are part of the territory of Riparian States.” In case, a river lies wholly, that is, from its source to its mouth, within the boundary of one and the same State, such State owns it exclusively.
On the other hand, the river which runs through several States, belongs to the territories of the concerned States. Each of such Riparian States owns that part of the river which runs through its territory. Therefore, the disputes regarding sharing of river water can only be between Riparian States and not between a Riparian and a non-Riparian State. Here it is pertinent to point out that the word State for the purpose of this right includes a State or Province of a Federal or a Quasi-Federal Country or Nation State. According to Prof. Stark, this Riparian principle stands embodied in International Laws and National Laws including the Common Law of England and also in Helsinki rules of Inter-State water allocation laid down by International Law Association during its 52nd Conference at Helsinki in 1966.
On the basis of aforesaid doctrines of Riparian Laws, two theories have been prepared with regard to the extent of claims to be exercised in respect of water rights of co-Riparian and co-Basin States of a river.
ABSOLUTE RIGHT THEORY: It was enunciated by Herman, Attorney General of United States, that every Nation State has absolute sovereignty over the waters flowing in its own territory. This doctrine gives absolute right to upper Riparian State to appropriate the available water of the river flowing in its own territory, irrespective of its effect on the lower Riparian States. Although this concept favoured upper Riparian States, yet in practice, even the countries which upheld this doctrine have conceded water rights to lower Riparian States. For example, against the letter and spirit of Absolute Right Theory, under Indus Water Treaty, 1960, India has conceded to lower Riparian State of Pakistan, the right to use 80% of Indus waters, although all three rivers namely, Indus, Jehlum and Chenab rise in the upper Riparian State of India.
As such, India being the upper Riparian State ought to have demanded at least 50% share of total waters of the Indus system in terms of the Absolute Right Theory by laying its claim on the entire waters of the Chenab. Obviously, it would have avoided scarcity of water faced by States of north-western India, namely, Jammu and Kashmir, Punjab, Haryana and Rajasthan. Surprisingly, India’s claim to total waters of the Chenab was not put forth as a gesture to appease Pakistan and to allegedly consolidate Muslim vote banks in India as well as to gratify or assuage traditional anti-Punjabi attitude.
EQUITABLE UTILISATION THEORY: This envisages that the entire river basin is to be treated as one economic unit. This concept is also designated as the Principle of Equitable Apportionment based on the concept of limited sovereignty. It visualises an integrated approach for the entire river basin. Thus, the US-Canada Treaty of 1964 envisages development of the Columbia river basin by construction of water storage dam aggregating to 19,112 cubic metres in the upper Riparian State of Canada to help control floods in the lower Riparian State of U.S.A. Moreover, the benefit of generation of additional electric power will be shared equally by the two Riparian States of Canada and U.S.A.
This theory finds its full application in Helsinki Rules, 1966, which laid down the principle of Maximum Development of river drainage basin. It is pertinent to mention that by signing the Farrakka Agreement with Bangladesh in 1977, India also accepted and followed the Helsinki Rules, 1966, in letter and spirit, though it was not a signatory to the final Act that emerged after the 52nd Helsinki Conference, 1966.
Therefore, the second legal principle is that after considering priority of the claims of Riparian States, comes the requirement of Basin States only, to the exclusion of non-Basin States.
According to Prof. Garreson Climstead and Hyton, “a drainage basin involves the concept of integrated area drained by a single river system passing through two or more States bounded by the watershed (i.e., line of separation between river basin) extremities of system of waters, including surface and underground waters, all which flow into a common terminus.” Consequently, it means that river basin includes the area within the watershed determined according to strict geographical considerations. It also recognised that river basin includes the drainage area of tributaries as well.
Therefore, the under mentioned two important legal principles have been laid down in various international conventions like Congress of Vienna, 1815, and Helsinki Rules, 1966, which have been in vogue in the sphere of International Law as well as in Municipal Law for just apportionment and allocation of waters of various Inter-State or International rivers between the Federal Units or independent States.
Firstly, where a river lies wholly in the territory of one State, it belongs entirely to that State. In case, the river passes through several States, then those Riparian States have the complete priority of rights to control and use the waters of those rivers in accordance with the principles of Absolute Right Theory.
Secondly, if there is surplus water in the territory of Riparian States, then it may be allocated to the co-Riparian or co-Basin State for full development of the River Basin in accordance with the principles enunciated in Equitable Utilisation of Basin Theory as well as terms and conditions laid down in the universally accepted Helsinki Rules, 1966.
SEIGNIORAGE DOCTRINE: As a natural corollary to the aforesaid principles, the Riparian States, being the sovereign and exclusive controller of river waters within their territory, are legally entitled to charge seigniorage or royalty in respect of water supplied to non-Basin States (under a separate contract), who have absolutely no legal right in respect of those waters either under Riparian Laws or under Helsinki Rules, 1966. It is legally known as doctrine of Seigniorage Charge or Royalty.
Historically, the Doctrine of Seigniorage was in vogue during nineteenth century in British India and it continued upto 1947. In 1868, in the case of Sirhind Canal, which takes off from river Satluj at Ropar, the Riparian rights of British Punjab were acknowledged and the claim for supply of irrigation waters to erstwhile State of Patiala and other princely States was accepted not as a ‘matter of right’, but as a matter of favour “subject to payment of seigniorage charge or royalty to British Punjab.”
Similarly, in 1920, the supremacy of Riparian Principle was accepted again when the erstwhile princely State of Bikaner, located in non-Basin area of the Satluj, was allowed to share Satluj waters by constructing the Gang Canal taking off from left bank of the river at Hussainiwala head-works. But the claim of Bikaner State was allowed subject to condition of payment of seigniorage charge or royalty to the British Punjab at the rate of one-tenth of average water-rate prevailing in British Punjab.
Surprisingly, in 1956, this payment of seigniorage to the State of Punjab by Rajasthan, the successor State of erstwhile Bikaner State, was discontinued in an arbitrary manner without consulting the erstwhile State of Punjab in violation of the principles of natural justice and against the provisions of law and the Constitution of India. It is enjoined that the State of Punjab in its capacity as a successor State of pre-1966 State of Punjab must demand the payment of seigniorage from the State of Rajasthan with retrospective effect from 1956, when it was illegally discontinued due to unauthorised and unconstitutional action. In case of refusal by the State of Rajasthan, this unauthorised and illegal order for discontinuance of seigniorage or royalty may be challenged in the Supreme Court under Article 131 of the Constitution of India.
The universally accepted Riparian principle of sharing the river waters by the Riparian provinces or States was incorporated and acknowledged in Entry 19 of VII Schedule (Provincial Legislative List) of the Government of India Act, 1935. It is pertinent to mention that no provision for interference by the Union in the garb of ‘Regulation and Development’ akin to Entry 56 of Union List was included in the Government of India Act, 1935. Therefore, during the period of 14 years from 1935 to November 25, 1949, the date of enactment of Indian Constitution, the States or Provinces were vested with the power of absolute control over the river waters flowing in their own territory without any interference from the Centre or Union. Subsequently, the aforesaid Entry 19 of Government of India Act, 1935 was incorporated as Entry 17 of List II of the Seventh Schedule of the Indian Constitution. Entry 17 reads:
“Waters, that is to say, water supplies, irrigation and canals drainage and embarkments, water storage and water power subject to the provisions of Entry 56 of List-I.”
It is added that Entry 56 of List I of Indian Constitution limits the Union’s authority to “regulate and develop 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 to be expedient in the Public interest.”
In addition, Article 262 of the Indian Constitution states that:
1) Parliament may by law provide for adjudication of any dispute or complaint with respect to use, distribution or control of waters of, or in any Inter-State river or river valley.
2) Notwithstanding anything in the Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in Clause (I).
Further, it may be added that regarding a river, the unit State has full and exclusive legislative and executive powers under Article 246 (3) and 162 of the Indian Constitution. It is pertinent to mention that Entry 56 (ibid) and Article 262 mentioned above confer authority to Parliament to legislate only in regard to “Inter-State rivers” and not in regard to waters of a State, over which the concerned State alone has exclusive and final authority.
It has been held by the Supreme Court that the expression “regulation and development” in Entry 56 of List-I is wide enough to include the “use, distribution and control of waters of Inter-State Rivers as between Riparian Waters” [vide para (14) in the matters of Cauvery Water Dispute. (AIR 1992, S.C. page 522)].
It is evident from the aforesaid interpretation of the Supreme Court that powers of Parliament under Art. 262 providing for adjudication of dispute in respect of ‘use, distribution or control of waters of any Inter-State river or river valley’ is limited to disputes between Riparian States in respect of Riparian Waters and it cannot provide for allocation of Riparian State Waters to non-Riparian or non-Basin States. It is so, because there is no provision in the Constitution for exercise of the powers of Union to deprive a Riparian State of its legal right to ownership and control of its river waters and for favouring other non-Basin States to allow them to use those waters without prior consent of the Riparian State’s Legislative Assembly or people. In fact, there is no provision for such Doctrine of Favouritism for non-Riparian States to the disadvantage of the Riparian States under the Indian Constitution.
Therefore, the proprietary and sovereign rights of Riparian States over the rivers flowing in their territory are fully acknowledged and protected by provisions of Entry 17 of State List of the Constitution and these rights are in no manner curtailed by the provisions of Entry 56 of the Union List of the Constitution. In fact, the provision of Entry 56 of the Union List read with Article 262 (1) accord only a regulatory and supervisory prerogative because they confer on the Union only the power of “regulation and development of Inter-State rivers and river valleys”, which have already vested in the proprietary ownership and control of the Riparian State (vide Entry 17 of List II of Seventh Schedule). It will be unimaginable and injudicious to interpret this power of development as power to transfer and allocate the waters of Riparian State to non-Riparian or non-Basin State in an arbitrary manner.
It may be added that the aforesaid Constitutional concept of supremacy of Riparian States was also upheld in the case of the Narmada water dispute where a Tribunal, set up by the Government of India in 1969 to resolve the dispute over the sharing of Narmada waters by the Riparian States of Madhya Pradesh, Maharashtra and Gujarat, rejected petition of Rajasthan on the ground that Rajasthan being a non-Riparian State was not entitled to any portion of waters of the Narmada basin.
Recently, the Doctrine of Riparian States, as incorporated in Entry 17 of List I of the Seventh Schedule, was again invoked, implemented and upheld by the Government of India when the Yamuna River Agreement was signed for a period of 30 years on May 12, 1994 among the Riparian States of Haryana, Uttar Pardesh, Delhi, Himachal Pardesh and Rajasthan for allocation of respective shares in the Yamuna waters. It is pertinent to point out that although Punjab was one of the successor States of erstwhile Yamuna river, it was neither called to participate in the Chief Ministers’ meeting of respective States nor was it allocated any share in Yamuna waters.
In the end, it is suggested that the right to use water is a ‘Public juris’ and is common to all the Riparian proprietors, which are unit States of the Federation of India. This right stands guaranteed in terms of Entry 17 of List II of the Seventh Schedule.
It is, therefore, essential that the adjudication of disputes pertaining to the existence and extent of such rights of unit States of the Federation should be entrusted to the highest judicial authority, namely the Supreme Court and not to quasi-judicial bodies like Water Disputes Tribunals, which being mere creatures of the Central Government, are liable to be influenced by the overlords of New Delhi. It will be most appropriate that like the federations of U.S.A. and Australia, the power of adjudication of Inter-State Water Dispute must be vested in the Supreme Court to have an impartial and legally valid judgment for distribution and final settlement of issues like Indus River System Waters or Cauvery Waters or Krishna River Waters between various Riparian claimant States.
The history of the Punjab river waters dispute, which began since August 15, 1947, is a tragic story of denial of the legitimate share in the waters of Indus river system. Indeed, as some alleged, it was a struggle against the malafide object of making the fertile fields of Punjab into an arid and desolate desert. The signing of the Indus Water Treaty after partition in 1960 resulted in giving away more than 80% of the waters of the Indus river system by allocating the three western rivers, namely, Indus, Jhelum and Chenab, which carried more than 80% waters, to Pakistan, despite the fact that all these three rivers geographically rose in Indian territory, and India, as an upper Riparian State, could have legally claimed at least waters of the Chenab to increase its share of the Indus river system in terms of the Absolute Right Theory propounded by Mr. Herman, Attorney of United States. Perhaps ignoring the right to the Indus system was meant to appease Pakistan with an eye on the Muslim vote-bank in India. Thus, the Indus Waters Treaty of 1960 signed by Pt. Nehru, the Prime Minister of India and Mohammad Ayub, President of Pakistan, allocated only 32 MAF (Million Acre Foot) of water to Indian Punjab out of total quantity of 170 MAF water flowing into the Indus, amounting to only 19% of the total quantity. It may be pointed out that of the 32 MAF, Punjab was already using 9 MAF from the canals of the Ravi and the Satluj, whereas 1 MAF was taken by the princely State of Bikaner for which seigniorage or royalty was paid to Punjab.
Subsequently, in 1966, a heavily truncated unilingual State of Punjab was created after the Punjab Reorganisation Act, 1966, on the recommendations of Shah Commission. The Commission intentionally ignored the authoritative and impartial findings of Sir George Grierson as recorded in his classic book under the caption of The Linguistic Survey of India and Ambala District Gazetteer. Astonishingly, Chandigarh Capital Project, built exclusively by Punjab after loss of Lahore in 1947 and situated in the heart of Punjabi speaking Kharar Tehsil, and many other Punjabi speaking areas, was declared as non-Punjabi by Mr. Shah, although Mr. S. Dutta, the second senior member of the Commission, refused to agree with these findings and submitted a dissenting note emphasizing that whole of Kharar Tehsil, with the exception of Kalka police station or thana, should be merged with the State of Punjab. However, successive governments were never reconciled to the idea that the boundaries of the Hindi speaking State of Haryana could not be extended to the Sutlej for according it a Riparian State status of Indus River Waters. In pursuance of this objective, the Award in 1970 sought to use Chandigarh as a bait in exchange for the Punjabi speaking areas of Fazilka Tehsil including Abohar, so that the boundaries of the Hindi speaking State ofHaryana could be extended to the banks of the Sutlej to enable it to become a Riparian State of the Indus System. Fortunately, the Award was never accepted by Punjab.
BASIN STATES: The whole of an area drained by a river and its branches or tributaries is called the river basin. Two river basins are usually separated by a ridge of hills or an independent river. River Basin has been defined by Conference of International Law Association, held in 1958, as follows:
“A drainage basin is an area within territories of two or more States in which all the streams of flowing surface water, both natural and artificial, drain a common watershed terminating in a common outlet to a lake or some inland place from which there is no outlet to sea.”
In view of this definition, it is evident that the area between the Satluj and Yamuna is the actual divide between the Indus River System and Gangetic River System. In almost the middle of this area is the, Ghaghar, which is the only river rising from Shivaliks between the Satluj and Yamuna. Few streams rising from the Shivaliks converge into the Ghaghar. Therefore, the Ghaghar is an independent river with its own basin and it also constitutes the demarcation line between the Satluj and Yamuna.
According to this definition, Rajasthan and Haryana lie beyond the Indus Water Basin of the three Punjab rivers, namely, Satluj, Beas and Ravi. In fact, Haryana lies in the Ganga-Yamuna Basin and partly in the Ghaghar Basin, which is geographically distinct from the Satluj Basin. It may be specifically pointed out that no river stream or drain from Haryana or Rajasthan has common ending in the Punjab rivers of Satluj, Beas and Ravi. Therefore, both the States of Rajasthan and Haryana are not the Indus Basin States.
Punjab Reorganisation Act, 1966
The Punjab Reorganisation Act, 1966, resulted in creation of successor States of Chandigarh, Haryana and Punjab. It is settled law of State Succession that when one State succeeds de facto to another State, it succeeds to all public and proprietary rights of the extinct State.
Obviously, the State property such as rivers, forests, roads, etc., falling in the territory of successor State becomes the absolute property of that State. But in utter disregard of these accepted principles of International Law and Municipal Law, the Punjab Reorganisation Act, 1966, was passed which provided for utilisation of the Satluj and Beas waters by non-Riparian successor State of Haryana, whereas no such provision regarding utilisation of 5.6 MAF of the Yamuna by the successor State of Punjab was made. Therefore, the aforesaid Act was discriminatory and violative of principle of Equality before Law as enshrined in Article 14 and Preamble of the Constitution of India.
Section 78 of the Punjab Reorganisation Act, 1966, provides that “all rights and liabilities of the existing State of Punjab in relation to Bhakhra-Nangal projects and Beas project shall, on the appointed day, be the rights and liabilities of the successor State in such proportion as may be fixed, and subject to such adjustments as may be made, by agreement entered into by the said States after consultation with the Central Government”.
Moreover, Section 2(i) of the aforesaid Act defines Population Ratio in relation to successor States of Haryana, Punjab and Chandigarh. It means the ratio of 37.38 to 54.84 to 7.78%. It is evident from the aforesaid provisions of Section 78 of Punjab Reorganisation Act that the rights and liabilities in relation to Bhakhra-Nangal project and Beas project shall be the rights and liabilities of the successor States in such proportion as may be fixed by an agreement entered into by the successor States after consultation with the Central Government. It means that appointment of the rights and liabilities of Bhakhra-Nangal project and Beas project will be limited to the successor States of Punjab, Haryana and Chandigarh and under no circumstances can it be extended to non-successor States ofDelhi and Rajasthan as was arbitrarily stipulated in the Awards of 1976 and 1981 relating to distribution of waters of Satluj and Beas rivers.
Secondly, the apportionment of these rights may be fixed by an agreement entered into by successor States after consultation with the Central Government. It implies that agreement regarding apportionment of Satluj and Beas waters has to be approved or ratified by Legislative Assemblies of successor States and not by the Governments of successor States as word ‘Government’ has not been used in regard to agreement between the successor States, although word ‘Central Government’ has been specifically used to denote position of the Union Government. Therefore, any agreement entered into by the Government of successor States regarding distribution and utilisation of waters of the Satluj and Beas rivers or utilisation of power generated by Bhakhra and Beas projects requires the approval and ratification of legislatures of successor States, otherwise such agreement will be violative of provisions of Section 78 of Punjab Reorganisation Act, 1966, and will become invalid as well as unenforceable.
Moreover, the Central Government has limited power of ‘consultation’ in arriving at the agreement between the successor States of Punjab and Haryana and by no stretch of imagination this power of consultation can be interpreted as the power to dictate the terms of agreement to be entered into between the successor States as was arbitrarily done in the two Awards of 1976 and 1981.
Thirdly, under Section 78 (1) read with Section 2(i), the rights and benefits of the Beas project could be allocated between the successor States of Haryana, Punjab and Chandigarh in the ratio of 37.38 to 54.84 to 7.78%. These figures of sharing may be conveniently rounded as 37%, 55% and 8%, respectively, for depiction of respective share of the three successor States. But surprisingly, the aforesaid ratio was never adhered to by the Central Government, and State of Haryana was treated on equal footing with Punjab in utter disregard of the aforesaid statutory provisions of Punjab Reorganisation Act, 1978.
Fifthly, Ravi waters and allied works like Thein Dam, constructed subsequently for storing waters of the Ravi, stand excluded from the scope of aforesaid Section 78, because there is no mention of Ravi waters or any project relating to the Ravi in the Punjab Reorganisation Act, 1966. Obviously, the Award of 1976 and subsequent modified agreement of December 1981 providing for distribution of waters of the Ravi and assumed to be made under Section 78 of the Act (ibid) were ultra vires, because there was no such provision relating to Ravi waters in the Act, 1966.
Sixthly, the participation of Rajasthan in the Agreement of December 1981 is beyond the provisions of Section 78(i) under which only the successor States as defined in Section 2(M) of the Act, 1966 could participate in the agreement. Consequently, the illegal and uncalled for participation of Rajasthan in December 1981 Agreement is a fatal blow which vitiates the entire agreement.