PUNJAB RIVER WATERS DISPUTE
CONSTITUTIONAL ASPECT
Gurdev Singh
Synoposis
The Ravi, Beas and Satluj are Punjab rivers. The people of Punjab have constitutional rights (Article 246, entry 17 of the State List of the Constitution) to enjoy benefits of their waters just as they are vulnerable to losses due to their floods and land erosion. Any legislation impinging upon these rights is unconstitutional. Let the Constitution Bench of the Supreme Court determine the vires of the provisions of the Punjab Reorganisation Act, 1966 and Section 14 of the Inter-state River Water Disputes Act, 1956 and the validity of the SC Division Bench order of January 15, 2002.
Introductory
The Punjab impasse has been kept pulsating through mal-governance and evil designs. A small stroke of administrative, legislative, judicial or political whiff sets in seismic throbbings in the simmering cauldron of Punjab’s unresolved economic, political and social problems. In the skein of complicated Punjab tangle, river-waters dispute is a glaring strain. The recent Supreme Court order of January 15, 2002 regarding the digging of Satluj Yamuna Link canal has stirred up emotions in Punjab and Haryana which are bound to develop into a tinderbox entailing immense damage to the precarious peace and tranquility of the region.
Explicit provisions of the Constitution of India regarding river waters and river valleys have been subtly made murkier and confusing to the unwary reader while drafting the Punjab Reorganisation Act, 1966 by skillfully interweaving texts and sub-texts, theoretical reasoning and contestable facts.
Various factors, like the quantum of water in Punjab rivers, methods of determination of their flow, drainage gradient, Punjab’s needs, technical, financial, economic and historical appraisals, contractual obligation, moral values, cost-benefit effectiveness of irrigation / hydel power capacity, determination of projects durations etc. etc. can be relevant only after a decision is made regarding the use of Punjab river waters by another State either through constituional-judicial verdict binding on the parties or through volitional agreement between Punjab and seekers of its river waters, and plenty can be said in support of Punjab on these counts to dispel misinformation, confusion and ignorance pertaining to the Punjab river waters dispute. In this article I have discussed only the constitutional aspect of the problem which is primal to the solution of the impasse.
Preliminary
Before August 1947, the province of Punjab extended from river Indus (Sind) in the west to river Yamuna in the east. Its land had waters of river Sind and its tributaries Jehlum, Chenab, Ravi, Beas and Satluj and of river Yamuna. In August 1947, India was divided into two countries — India and Pakistan. This division concomitantly resulted in the creation of two Punjabs — East Punjab and West Punjab. The eastern part of the pre-partition Punjab which remained with India was called the East Punjab and the western part which became part of Pakistan was called West Punjab. Subsequently, both the countries named their provinces as Punjab (India) and Punjab (Pakistan).
The international boundary between India and Pakistan cut across the Indus system of rivers. The Indus dispute between India and Pakistan was settled through the good offices of the World Bank with the signing of the Indus Treaty on September19, 1960 which conferred full rights on India on the eastern rivers Ravi, Beas and Satluj after the transition period ending March 31, 1970. Thus State of Punjab in which these rivers lie became entitled to unrestricted rights of development and use of their waters. Punjab being a riparian state to Yamuna continued to have its rights on Yamuna waters.
Constitutional Mechanism
Part XI of the Constitution of India deals with, “Relations Between The Union and the States’ and chapter I of this part spells out Legislative Relations - Distribution of Legislative Powers’ between the Union and States. Article 246 of the Constitution enunciates, “Subject-matter of laws made by Parliament and by the Legislatures of
States -
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).
(2) Nothwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”)
(3) Subject to clauses (I) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”)
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.
Entry 17 of List II - State List reads :
“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 of List I - Union List is as under :
“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.”
The above leaves nothing in doubt that the rivers in a State are under the legislative domain of that State and the Parliament can make laws only with respect to matters concerning inter-State rivers and river valleys.
Benefiting from centuries old experience of resolving of river water disputes by various countries, the framers of the Indian Constitution not only recognised the usefulness of riparian rights of parties but specifically incorporated provision in the Constitution concerning the rights of riparian States and laid down mechanism for the resolution of disputes arising of such rights. Article 262 regarding ‘Disputes relating to Waters reads:
(1) “Article 262. (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
(2) 2. Notwithstanding anything in this 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 (1).
The Constitution not only bars the Parliament from legislating over intra-State rivers, it empowers the Parliament to legislate over matters concerning inter-State waters only if Parliament by law declares that such legislation concerning inter-State river waters is expedient and in the public interest.
The rights of States to legislate over matters concerning intra-State waters are left to no ambiguity whatsoever. The Joint Parliamentary Committee while in the process of drafting the Constitution observed “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 neighbouring Provinces.”
It is explicit that rivers fall under the legislative control of the state in which they lie and such rivers are not in the legislative ambit of the Union.
Framers of the Constitution were fully conscious that the disputes relating to inter-State rivers are loaded with such complexities and emotions that would not be amenable to resolution through courts as the courts are obliged to function under specified judicial procedures, rules and regulations. Consequently, the Constitution specifically kept such disputes outside the jurisdiction of the courts including the Supreme Court.
Unconstitutional Legislation
The State of Punjab was reorganised with effect from November 01, 1966. A big chunk of its hilly areas was merged with Himachal Pradesh and the rest was bifurcated to form a new State Haryana and the present day Punjab. Haryana remained riparian to the river Yamuna and the rivers Ravi, Beas and Sutluj continued to be intra-State rivers of the shortened Punjab State.
The Ravi, Beas and Satluj are intra-State rivers and the Parliament cannot deprive the people of Punjab of their rights to exclusive use of these waters. This notwithstanding, the Government of India while enacting the Punjab Reorganisation Act, 1966, unconstititionially engrafted Sections 78, 79 and 80 impinging upon the exclusive rights of Punjab. The relevant provisions of Section 78 of the Punjab Reorganisation Act, 1966 are as follows :
“Rights and liabilities in regard to Bhakra-Nangal and Beas
Projects :-
1. Notwithstanding anything contained in this Act but subject to the provisions of Section 79 and 80, all rights and liabilities of the existing State of Punjab in relation to Bhakra-Nangal Project and Beas Project shall, on the appointed day, be the rights and liabilities of the successor States in such proportion as may be fixed, and subject to such adjustment as may be made by agreement entered into by the said States after consultation with the Central Government or if no such agreement is entered into within two years of the appointed day, as the Central Government may by order determine having regard to the purpose of the Projects :
Provided that the order so made by the Central Government may be varied by the subsequent agreement entered into by the successor States after consultation with the Central Government.
2. An agreement or order referred to in sub-section (1) shall if there has been or extension or further development of either of the projects referred to in that sub-section after the appointed day provide also for the rights and liabilities of the successor States in relation to such extension or further development.
3. The rights and liabilities referred to in sub-section (1) and (2) shall include :
a) the rights to receive and to utilise the water available for distribution as a result of the projects and
b) the rights to receive and to utilise the power generated as a result of the projects,
but shall not include the rights and liabilities under any constract entered into before the appointed day by the Government of the existing State of Punjab with any person or authority other than Government.”
Attempts at resolving / acerbating the dispute ?
Haryana made claims on Punjab river waters which were not accepted by Punjab. The dispute was sought to be resolved through the Central Government. Invoking the provisions of Section 78 of the Punjab Reorganisation Act, 1966, the Government of India by notification dated 24-3-1976 made allocation of the Punjab river waters ear-marking 3.5 MAF to Haryana. Compliance with this notification was not acceptable to Punjab. Haryana filed a suit (No 1 of 1979) in the Supreme Court for compelling Punjab to implement the 24-3-76 decision. The State of Punjab too filed a suit (No 2 of 1979) challenging the decision of Government of India as also the vires of the Punjab Reorganisation Act, 1966. On 31-12-1981, the Prime Minister had an agreement hammered out among Chief Ministers of Punjab, Haryana and Rajasthan for sharing of the Punjab river waters. On the signing of this agreement, Haryana and Punjab withdrew their suits pending in the Supreme Court.
A politically aggressive and administratively vigorous campaign was launched by Haryana and Central Governments to dig a canal — called SYL canal — for carrying Punjab river waters to Haryana. This was encountered by equally robust and menacing agitation in Punjab against the 31-12-81 dispensation. That ended with the signing of the Rajiv - Longowal accord (Punjab Settlement) on 24-7-1985, which superseded the 31-12-81 agreement. The relevant provisions of the Punjab Settlement (paragraph 9) are reproduced below:
“9.1. The farmers of Punjab, Haryana and Rajasthan will continue to get water not les than what they are using from the Ravi-Beas system as on 1-7-1985. Waters used for consumptive purposes will also remain unaffected. Quantum of usage claimed shall be verified by the Tribunal referred to in Para 9.2 below;
“9.2. The claim of Punjab and Haryana regarding the shares in their remaining waters will be referred to adjudication to a Tribunal to be presided over by a Supreme Court Judge. The decision of this Tribunal will be rendered within six months and would be binding on both parties. All legal and constitutional steps in this respect to be taken expeditiously;
“9.3 The construction of the SYL Canal shall continue. The canal shall be completed by 15th August, 1986.”
To clothe 24-7-85 Punjab Settlement with legal robe, Section 14 was added to the Inter-state Water Disputes Act, 1956 in the following terms:
“14 (1) Notwithstanding anything contained in the foregoing provisions of this Act, the Central Government may, by notification in the Official Gazette, constitute a Tribunal under this Act, to be known as the Ravi and Beas Waters Tribunal for the verification and adjudication of the matters referred to in paragraphs 9.1 and 9.2, respectively, of the Punjab Settlement.
When a Tribunal has been constituted under sub-section (1), the provisions of sub-sections (2) and (3) of section 4, sub-sections (2), (3) and (4) of section 5 and sections 5A to 13 (both inclusive) of this Act relating to the constitution, jurisdiction, powers, authority and bar of jurisdiction shall, so far as may be, but subject to sub-section, (3) hereof, apply to the constitution, jurisdiction, power, authority and bar of jurisdiction in relation to the Tribunal constituted under sub-section (1).
When a Tribunal has been constituted under sub-section (1), the Central Government alone may suo moto or at the request of the concerned State Government refer the matters specified in paragraphs 9.1 and 9.2 of the Punjab Settlement to such Tribunal.
Explanation for the purposes of this section, ‘Punjab Settlement’ means the Memorandum of Settlement signed at New Delhi on the 24th day of July, 1985.”
The Punjab Assembly on 5-11-1985 repudiated the 31-12-81 agreement as also the 24-7-85 settlement.
On April 2, 1986 the Central Government in exercise of powers under the newly added Section 14 of the Inter-state River Water Disputes Act, 1956, constituted the Ravi and Beas Waters Tribunal (under the Chairmanship of Justice V. Balakrishna Eradi) for the verification and adjucation of the matters mentioned in paragraphs 9.1 and 9.2 of the Punjab Settlement. This Tribunal gave its interim award on 30-1-1987. An application under Section 5(3) of the Inter-state River Water Disputes Act, 1956 was filed by the Punjab State before the Tribunal on 19-8-1987, but no final decision has been made on that application. The Central Government also sought some clarifications regarding the interim award of January 30, 1987. So far the Tribunal has not given its final award. Consequently, to make it enforceable no notification as required under the Inter-state River Water Disputes Act, 1956 has been made.
Supreme Court order of January 15, 2002
Haryana filed a suit (No 6 of 1996) in the Supreme Court seeking injunction for compelling Punjab for discharging the obligations arising under the 24-3-76 notification, 31-12-81 agreement and 24-7-85 settlement. The Supreme Court on 15-1-2002 ordered that the SYL canal should be made functional in a year’s time. While decreeing the suit in favour of Haryana, the learned Division Bench of the Supreme Court held that the dispute before it is not in any way related to the use, distribution or control of the waters and that the dispute centres round the question of the obligation on the part of Punjab to dig the canal which became necessary for carrying the allocated waters.
The Supreme Court DB assumed to itself jurisdiction, which did not belong to it. The whole gambit of issues/averments before it clearly establishes that the dispute pertains to the allocation of the waters and their carriage/distribution/control/use. The suit was clearly a dispute concerning river waters. And the rivers concerned are in the territory of Punjab. So the jurisdiction of the Supreme Court is barred in such a dispute. The Supreme Court did not let in the plea concerning lack of its jurisdiction and ricocheted it off holding that the construction of the SYL canal has absolutely no connection with the sharing of water between the States and as such is not a “water dispute” and that the State Governments having entered into agreements among themselves on the intervention of the Prime Minister of the country, resulting in withdrawal of the pending suits in the Court, cannot be permitted to take a stand contrary to the agreements arrived at between themselves. The Supreme Court further held that the SYL canal should be completed and made functional within one year from its order of January 15, 2002.
Of all the dispensations wrought on 24-3-76, 31-12-81 and 24-7-85 only the one of 31-12-81 was termed as agreement. Even if it were so, it could be valid only if executed by the competent parties, volitionally and for lawful purposes. It is as apparent as daylight that the then Chief Minister, Punjab was forced to append his signature to the so-called agreement of 31-12-81. He was not willing and authorized to barter away the rights of the people of Punjab and deprive them of the very existence. Further, as regards the validity of agreements, explicit or by conduct, it is apparent that the 24-3-76 order was superseded by the 31-12-81 agreement and the latter was set aside by the 24-7-85 settlement. Furthermore, the 31-12-81 order and the 24-7-85 settlement were repudiated by the Punjab Assembly resolution of 5-11-85.
So there is no enforceable agreement or award with respect to the allocation of Punjab river waters. Then what the canal is to be dug
for ?
Punjab’s consistent opposition to the unconstitutional provisions
Right since the enactment of the Punjab Reorganisation Act, 1966, resulting in the creation of Haryana, Punjab has been agitating / protesting against the unconstitutional provisions of Sections 78, 79 and 80 ibid and unremittingly asserting that Haryana had no claim on Punjab river waters. Thus Punjab has by its consistent conduct demonstrated non-acceptance of any obligation of any sort for supply of its river waters to Haryana.
The people of Punjab have been subjected to curious paradoxical treatment. Patently unconstitutional legislation, harsh administrative fiats and draconian commands termed as agreements are thrust upon them and they are obligated to abide by them. All their efforts to seek examination from the Supreme Court of the various invalid laws and orders (including the ones touted as agreements) are thwarted by closing shut the avenues to judicial appraisement from the Supreme Court through unconcealed and unconcealable governmental foreclosures. Sufferance undergone because of denial of relief and justice is phraseologised as acceptance by conduct.
Related observations
It would be appropriate to appraise the outcome of the inter-state River Waters Dispute Tribunal after its final award is made but I feel a cursory comment is necessary here. The Tribunal is required to verify the claims to the quantum of usage of water by the farmers of Punjab, Haryana and Rajasthan as on 1-7-85 and adjucate the claims of Punjab and Haryana regarding the share in their remaining waters. Instead of carrying on an exercise of onion-peeling of manifest terminology, it should confine itself to the job assigned to it in specific terms.
It is a geographical fact established through centuries natural action that the rivers Ravi, Beas and Satluj as at present lie in Punjab and these are not riparian to Haryana or Rajasthan. Mere insertion of Section 14 in the Inter-state Water Disputes Act, 1956 mentioning the Ravi-Beas system will not turn these rivers into inter-state rivers.
In this article, I have not dealt with the January 1955 decision of the Government of India allocating Punjab river waters to Rajasthan. Neverthless, even that decision / agreement is not maintainable.
Impact
It is well known that Punjab’s needs are not met with the water available to it from its rivers now when it is using about 8 MAF of water sought to be allocated to Haryana and Rajasthan. If the SYL canal is dug to carry Punjab river waters to other states, it will spell ruin of the already tottering State economy and cause grave turbulence in the region. Here I may emphasize that we may be able to count the lives shattered, compute the cost in rupees and paisas, but we will never be able to add up the psychic and emotional toll that the forced diversion of Punjab river waters to other states will entail.
Remedy
Remedy lies in seeking/obtaining the verdict from the Constitution Bench of the Supreme Court as to the vires of the Punjab Reorganisation Act, 1966 and Section 14 of the Inter-state Water Disputes Act, 1956 and the validity of the Division Bench order of 15-1-2002.
Appeal
Keeping in view all the relevant factors, I urge upon the Government of Punjab, political parties, other associations and well-wishers of Punjab to allow no let-up in their efforts to safeguard constitutional rights of the people of Punjab. At the same time, I would earnestly appeal to the people of Punjab to keep cool and thoughtfully devise their strategy which should enable them to deal with the gravest of situations in a peaceful and dispassionate manner.
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