‘A WAY OUT OF THE WATER DISPUTE’*
Rejoinder by Dr Kharak Singh
An article appeared under the title “A Way Out of Water Dispute” in The Tribune dated the July 19,1995. Its author, Shri Satya Pal Dang, is a senior statesman, known for devotion to public causes and support to justice and fair play. Anything coming from him, deserves serious thought. Unfortunately, in the present case, his conclusions are based on wrong assumptions, which are unsustainable.
For example, he says that “Pakistan was persuaded to give up its claim on its share under International Law, out of the surplus waters of the Ravi and the Beas, for a price paid by the Indian Government.” Facts are otherwise. Pakistan and India inherited claim to the entire Indus river system. Waters of the rivers Ravi and Beas came to India as its share as a riparian country. It was not purchased ‘for a price’, as alleged. The suggestion that Pakistan sold its surplus water is fantastic. Pakistan needs water so badly, that it would not part with a drop of water at any price, and much less to India. A small compensation of approximately Rs. 55 crores was paid, to Pakistan for replacement works, in order to cover, from their own rivers, the areas in their territories, served from the Beas and Ravi. The payment also came largely from the World Bank and a few friendly countries that arranged the agreement, out of good-will for both the countries.
Even if it is accepted that the Government of India made some nominal payment to Pakistan, it does not confer on it the right to allot it arbitrarily to any state. It will still belong to the Punjab under the universally accepted riparian principle.
Shri Dang’s contention that ‘the riparian law is applicable between countries and not between states of one country’, is ill advised. Any jurist or authority on riparian law, will affirm its applicability to states as much as to countries. In fact, according to a judgement of a court in California, under certain situations, it is applicable even within a state. Also, river waters and hydel power are a state subject under the Indian Constitution, with no authority to the Union Government to allot river waters of one state to another. In the case of Punjab, the Government of India, took the unusual and unconstitutional step of taking over the Punjab rivers through the equally unconstitutional provisions of sections 78-80 in the States Reorganisation Act (1966) that created the new state of Haryana.
Shri Dang has drawn attention to the allotment of 8.0 MAF to Rajasthan, a non-riparian state, out of the total supplies of 15.85 MAF of water from the Punjab rivers, the Ravi and Beas. The figures speak volumes of the enormity of injustice done to Punjab in allotting more than half of its total scarce resource to another state ‘just like that’. The fact that ‘no party in Punjab raised any objection to this for years’ does no credit to any political party of the state, much less to Shri Dang’s CPI, professing to be the guardians of the peoples’ rights. Another fact, not known to many, is that this broad-day robbery was committed against the advice of the World Bank experts. They clearly warned that this would render large areas in Punjab unfit for cropping due to water-logging in the long run, without lending any significant advantage to Rajasthan or the Indian Union as a whole. They argued that the Rajasthan Canal project would lead to huge losses of water over the hundreds of kilometres long route due to unavoidable seepage and surface evaporation, and that whatever quantities reached Rajasthan, would end up as a waste flowing into unproductive sands of the Thar desert. They clearly said that the waters could be used far more productively within Punjab in areas adjacent to the rivers at much less cost, and leading to much higher production and prosperity to the people of India as a whole. If at all, this gross injustice needs to be rectified, rather than used as a justification for further exploitation of the Punjab State.
The above remarks apply to the question of allocation of Punjab river waters to Haryana also. The riparian principle has been accepted by all civilised governments, and is a part of the Indian Constitution. Under this law, in the distribution of the Jamuna waters, Punjab was rightly excluded, in spite of protests from the late governor, Shri Surindra Nath, recently voiced by the Congress Government in the Punjab also. Likewise, Haryana is clearly a non-riparian State in respect of the Satluj, Beas and Ravi rivers, and has no claim whatsoever to any water from this system. To call it a ‘share’ is a contradiction in terms. Share or claim arises only among riparian states, and never between a riparian and a non-riparian state. Dispute lies, as in the case of Tamil Nadu and Karnataka over the Cauvery Waters, between two riparian states only. These can be settled through negotiation or a tribunal. The Government of India is competent to appoint a tribunal for the purpose. But there is absolutely no provision in the Indian Constitution to appoint a tribunal for any dispute between a riparian and a non-riparian state, since no claim from the latter can be entertained. As such all the tribunals appointed by the Government over the Punjab river waters, were unconstitutional, and their decisions as well as the so-called ‘awards’ by the Central Government at any level, are null and void, and liable to be rejected.
Of these, the Eradi Commission, according to Shri Dang himself, has the additional distinction of over-stepping its own mandate, and its award has no special claim to sanctity.
The unfortunate fact that successive governments in Punjab acquiesced, or were silent witnesses to this drama, cannot be held against the poor people of Punjab. Our misfortune is that all our leaders have always had too much faith in the Central Government. S. Prakash Singh Badal need not be singled out. It is distressing, however, that the Centre has not reciprocated it with justice, and fairness. Shri Dang has been very honest in admitting that “Various decisions/awards on the share of Punjab and Haryana after reorganisation in 1966 did injustice to Punjab”, and that “Haryana leaders should recognise that fact, even if they are not prepared to concede it openly.”
Shri Dang has suggested the ‘river basin’ in place of the riparian principle as a basis for settling the issue. Haryana falls in the Gangetic system, while Punjab is a part of the Indus system. The two are clearly demarcated, and separated by a third ‘Ghaggar System’. Haryana and even Rajasthan are clearly out of the Indus system, and as such, have no title to any waters from the Satluj, Beas or Ravi rivers. Transfer of water from one river system or basin to another, apart from being prohibitively expensive, is interference with nature, and is fraught with dangerous consequences for both regions in the long run. Far-sightedness demands that we refrain from such a step for the 4 benefit of posterity.
The basis of ‘give and take’ suggested by Shri Dang is commendable in settling an issue. In the present case, however, Punjab is expected only to give and give, without taking anything. In case, some waters from Jamuna (although not feasible) had been offered to Punjab, the basis could be considered with justification. But the position adopted on Jamuna, automatically seals the fate of Haryana’s claim to Punjab rivers. Other Issues like Chandigarh or territorial adjustments between the two states (in case these are in Shri Dang’s mind) are irrelevant to the issue of waters. In any negotiations, the leaders must remember that they have no right to barter away the destiny of their people and the coming generations.
One cannot agree more with Shri Satya Pal Dang on the view that ‘arousing of passions over territorial disputes, over disputes on sharing of river waters, etc., may serve vote bank politics of the various parties, but it does not help to resolve the dispute.’ The present issue can be resolved on the basis of justice alone. What is justice, is quite clear, in spite of a carefully planned exercise, meticulously executed, to muddy the clear waters of the Punjab rivers. Under laws of the land as well as the law of natural justice, these rivers belong exclusively to the Punjab State. This must be recognised. The Central Government has no authority to dole out any part of this sole natural asset of the state as a favour to other areas. The statement that “We will not give a drop of water to any other state except for a price, and that too, only if and when Punjab has more than it needs,” represents the correct position, and cannot be ridiculed or decried by attributing it to imaginary ‘Khalistani terrorists’. In fact, a similar position has now been taken by the present Congress Government in the Punjab, and has been whole-heartedly endorsed by even the opposition parties. From Shri Dang’s statement, it appears that his CPI is perhaps the only exception. Historical evidence of the above position on river waters is provided by the fact that the Gang Canal that serves the Bikaner district of Rajasthan, was the result of bilateral agreement between the Punjab government and the Maharaja of Bikaner, in which an agreed quantity of water was sold for a royalty, long before the partition of India. This royalty continued to be paid even after the partition, perhaps upto 1955, when the then Prime Minister stopped it for reasons best known to him.
The present issue is an opportunity for the Central Government and responsible leaders to do justice to Punjab, and to show that justice is being done. Any cleverness to strip the state of its legitimate right over its rivers, will only encourage the wide-spread, though suppressed, feeling that the Punjab is being exploited as a colony, and its people despoiled. Leaders like Shri Satya Pal Dang should rise to the occasion and assert their sanity.
* Shri Satya Pal Dang published an article under the above title in The Tribune dated 19th July, 1995. This letter is typical of the sermons delivered to mislead the public, and to confuse the real issues. Shri Dang’s advice is obviously based on wrong notions. In a rejoinder Dr Kharak Singh has explained the position clearly. The issue of river waters is a major constituent of the Punjab problem. To enable the readers to make an impartial assessment, we are reproducing Shri Dang’s article as well as the rejoinder. – Editor
[Published in the Abstracts of Sikh Studies, October 1995]
A WAY OUT OF THE WATER DISPUTE
Satya Pal Dang
The successful mobilisation of all Punjab MPs and opposition parties by Chief Minister Beant Singh to back his tough stand on the various disputes with Haryana, is likely to lead to a similar exercise by Mr Bhajan Lal. Both sides may then try — successfully or otherwise — to rouse local passions on their opposing stands. Will such a development help in any way ? Experience tells that it will not, and it may even prove counter-productive.
I recall the massive all-party demonstration in Chandigarh many years ago. The most popular slogan was: “Khirya phul gulab da, Chandigarh Punjab da”. There were equally massive demonstrations in Haryana. The pressure generated by one was cancelled by counter-pressure of the other. The inter-state disputes remained unresolved.
Then there is the recent experience in connection with the dispute between Tamil Nadu and Karnataka over their respective share in the waters of the Cauvery river. An interim order passed by the Supreme Court provoked widespread violence in the two states.
The lesson is obvious. Rousing of regional passions over territorial disputes, over disputes on sharing of river waters, etc., may serve vote bank politics of the various parties but it does not help to resolve the disputes. These are best resolved through talks across the table in a peaceful atmosphere.
Of course, a precondition for success is that all parties to the dispute must be willing to be reasonable; must want justice for all, while displaying a spirit of give and take, and keeping very much in view the interests of the country as a whole.
Let us briefly review what is clearly the main dispute, namely, the dispute about sharing of river waters. Some relevant facts are as under.
Pakistan was persuaded to give up its claim on its share under international law, out of the surplus waters of the Ravi and the Beas, for a price paid by the Indian government.
It was decided at an inter-state conference on the development and utilisation of the waters of the Ravi and the Beas held in 1955, that the supplies — both flow and storage — in these rivers over and above the actual utilisation before partition will be 15.85 MAF : out of this Rajasthan was allocated 8 MAF, Punjab (composite) 7.2 MAF and Kashmir 0.65 MAF.
No party in Punjab raised any objection to this for years — not even the Akalis.
A dispute arose for the first time when the river waters share of composite Punjab had to be divided between present Punjab and Haryana after reorganisation in 1966. No one, however, took the position that Haryana was not entitled to any share.
Various decisions/awards on the share of Punjab and Haryana undoubtedly did injustice to Punjab. Haryana leaders should recognise this fact, even if they are not prepared to concede it openly.
Haryana has some valid objections to the Rajiv-Longowal agreement. One cannot understand the logic of guaranteeing the quantum of water to a state on the basis of the flow measurement of one particular day instead of over a reasonable period. Punjab has a very valid objection that the award of the Eradi Commission violates the terms of the agreement under which it was appointed. Thus, the real dispute remains unresolved.
Even so, the right of Haryana was not being challenged, and it was the Akali government led by Mr. Parkash Singh Badal, which had ordered the acquisition of land for the construction of the Sutlej-Yamuna Link canal. Not only that, it also notified the stringent provisions of Section 17 of the Land Acquisition Act to speed up the process.
The Akali government had also accepted Rs 1 crore from the Haryana Government in March 1979.
In other words, the Akali government had agreed to build the canal even before an agreement was reached about the share of the two states out of that composite Punjab. Mr Badal should have the courage to at least own these facts. In my opinion, Mr. Badal did not commit any wrong. It is unfortunate that he should now give the highly disruptive slogan of “filling up the SYL canal”. He says he has given this slogan on behalf of the opposition. At least the CPI has not given him any authority to do so.
“We will not give a drop of water of Punjab rivers to any other state except for a price, and that too, only if and when Punjab has more than it needs.” This was the slogan first given by Khalistan terrorists. It was soon adopted by the Akalis and later by some others too. There is no justification whatsoever for such slogan. How do rivers being called Punjab rivers belong to Punjab ? If rivers are not to be treated as national assets, Himachal may have a greater right to claim them as its property than Punjab can.
Second, neither Haryana nor Punjab can claim a share on the basis of same principle.
The riparian principle is cited in support of the argument that Haryana, not being a riparian state, cannot claim any share. However, the riparian principle is applicable between countries, and not between states of one country. In the latter case, the river basin principle may be more appropriate.
How the dispute should be resolved, if not through confrontation ? Here are my suggestions.
Let all national parties as well as the regional parties in the states concerned agree that no agitation and counter-agitation would be kicked up. Let these leaders go to the people and explain the need for resolving the dispute in a peaceful atmosphere.
Let these leaders sit together and hammer out an agreement which will not do injustice to any state, though it may be on the basis of give and take and which will keep in view the interests of the country as a whole. State leaders of national parties should have the right to be consulted by their national parties, but should not participate in the conclave.
This is necessary to avoid the shameful spectacle of state units of some national parties taking conflicting stands in furtherance of their vote bank politics, having no concern for long-term interests of the country.
In case this is not found feasible, or not considered practicable, let all agree to refer the entire dispute to a Supreme Court Bench, in which no Judge belonging to any of the concerned states should be there. Whether or not Punjab can claim any share out of the Yamuna waters, can also be part of the reference.