PUNJAB'S CASE FOR ITS RIVER WATERS (Gist)

Punjab’s case for its river waters

River Waters and their Allocation between Indian and Pakistani Punjab

The joint Punjab had five rivers Satluj, Beas, Ravi, Chenab and Jhelum which ran through its territory joining the Indus on to the sea and hence the names Punjab and Indus Basin. During partition in 1947 Chenab and Jhelum remained in Pakistani Punjab while remaining three rivers ran both in Indian Punjab and Pakistani Punjab. Thus Indian Punjab ceased to be co-riparian in respect of Chenab and Jhelum, but it continued to be co-riparian with regards to SatIuj, Beas and Ravi. Before partition Pakistani Punjab had a canal system which drew waters from these three co-riparian Punjab Rivers. Indian Punjab being the upper riparian, during the first year after partition, more than once virtually stopped water supply to Pakistani canals to the detriment of Pakistan’s agriculture, which was fed from these rivers. It gave rise to the dispute between Pakistani Punjab and the Indian Punjab.

Before partition, Punjab had about 170 MAF of water in its rivers. It also had 5.6 MAF of waters from Yamuna River flowing to the Ganga basin, because a part of that river basin was located in the old united Punjab. At the time of partition the three Punjab Rivers in the state had a total supply of about 38 MAF (including Yamuna waters). After a dispute regarding sharing of waters, both India and Pakistan finally agreed that three rivers; Satluj, Beas and Ravi would come in the share of share of Indian Punjab and the waters of the other three rivers, Indus included, went entirely to Pakistani Punjab. Under this agreement India also ‘contributed’ 62 million Pounds to Pakistan as their share of waters of these three rivers, which had earlier been used in Pakistani Punjab as well. At the time of Independence, out of about 32.5 MAF in three Punjab Rivers, about 9 MAF were being used in Punjabi area and one MAF was used in the erstwhile Bikaner state for which it paid royalty to Punjab, the waters being of the State and not of the Central Government. The rest of the water was being utilised in Pakistan Punjab or going down to the sea.

Origin of Interstate Dispute

Here it is relevant to state that in 1954 while the Indus water dispute was going on, the Indian representative, in order to plead before the Indus Water Commission about the proposed utilisation of waters of Punjab Rivers, required the Central Government to hastily draw a project report showing utilization of waters of these rivers in Punjab and Rajasthan. Accordingly, the Centre called an officer level meeting to frame the ‘project’ for utilisation of 8 MAF in Rajasthan as well and submitted to the Indus Commission. Apparently it was done only for the consumption of the Indus Water Commission, which in some of its reports even termed it as a ‘dubious’ report. However later, after ‘settlement’ of dispute with Pakistan, it became the basis for actual diversion of Punjab waters to Rajasthan. This allocation done in that officer- level meeting was, however, either not in pursuance of any decision by the Punjab Ministry, Government, or the Legislature, nor it an early post facto endorsement of this allocation sought.

Until 1966, Punjab, like other states, remained the master of its river waters but at the time of creation of ‘Punjabi Suba’, the Union Govt. of India introduced sections 78 to 80 in the Punjab Reorganisation Act, 1966, under which it virtually assumed the powers of controlling, maintaining, distributing and ‘developing’  the waters and  hydel power of Punjab rivers. This act was unconstitutional, discriminatory and violative of the provisions of the Indian Constitutional provisions on riparian laws. Pursuant to this the Government of India not only started exercising powers under these sections of the Act, but also allotted over 75% of the available Punjab waters to the non-riparian areas of Rajasthan, Haryana and Delhi.

The fact that this act was contrary to the constitutional provisions is exemplified by the well established principle of Riparian Law which clearly stipulates that disputes relating to river waters can only be settled between riparian states and not by / between the riparian and a non-riparian state. This established law, the world over is embodied even in the Indian Constitution vide entry 17 of the list to 7th Schedule of the Constitution. Rivers, River Waters and Hydel power have been state subjects.

Article 262 deals with the adjudication of disputes relating to waters of interstate rivers or river valleys. It states that;

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.

And

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 (1).

Though interpretation of law and of the Constitution falls within the ambit of ‘Lawyer’s paradise’, but a layman’s reading of the Constitution indicates that with regard to a river and its waters, the state has full and exclusive legislative and executive powers under Articles 246(3) and 162. Thus entry 56 and Article 262 mentioned above gives authority to Parliament to legislate only in regard to interstate rivers and not in regard to waters of a state river over which the concerned state alone has full, exclusive and final authority.

As such, both under the definition of the basin and the valley; Rajasthan and Haryana are beyond the basin of the three Punjab Rivers namely Satluj, Beas and Ravi. Moreover Haryana lies in the Ganga Yamuna basin, and partly in the Ghagar basin which is clearly distinct from Satluj basin.

There have been some ‘arguments’ in favour of Haryana that even the water assets of ‘pre Punjabi Suba’ Punjab needed to be divided with Haryana as per the agreed upon ‘division of assets formula’, but for the sake of argument even in that case the waters of Ganga Yamuna basin as also of Ghaggar Basin needed to be allocated to Punjab in the same ratio subsequent to the creation of ‘Punjabi Suba’.

Narbada River Tribunal vs. Claim of Rajasthan

On the riparian principle there are clear judicial decisions favouring the stand of Punjab and the single most important one is with regard to Narmada River which passes through the territories of Madhya Pradesh, Maharashtra and Gujarat, but not through Rajasthan. State of Rajasthan sought a share in Narbada River as well. The Tribunal, however, held that case that Rajasthan being a non riparian state had no right on Narbada waters. On the issue of Rajasthan getting waters from Punjab, It held that Rajasthan was getting Punjab waters not as a matter of right but on account of ‘an agreement’ with Punjab about the sharing of latter’s waters.

In retrospect, Rajasthan’s argument about the claimed ‘agreement’ was also gravely erroneous and mischievous because no such agreement was ever signed by the state of Punjab. Government of India, on its own had apportioned Punjab river waters and Rajasthan was allotted 8 MAF out of a total available quantity of 15.85 MAF and that too as an argument which was put to the Indus River Commission and state of Punjab was not a party to it in any way.

Two important facts are, thus, clear from the Narmada Judgement. Firstly that Rajasthan accepted that it is non-riparian vis-a-vis Punjab waters, and secondly that Centre has been allocating Punjab waters to Rajasthan, despite objections from the former and fully knowing that non-riparian Rajasthan has no claim to Punjab waters.

ROOT CAUSE OF DISPUTE

The real causes of this dispute are Sections 78 to 80 of the Punjab Reorganisation Act 1966, which provide for three things.

First, that in case of difference between Punjab and Haryana, the power of making distribution and allotments of the River waters and the hydel power from the Punjab Rivers would lie with the Central Government. This power was later exercised by the Central Government vide its orders of 1976, which gave over 75% of the available river waters of the Punjab to the non-riparian states of Haryana, Rajasthan and Delhi i.e. 11.7 MAF out of 15.2 MAF.

Second, that after 1966 all powers of control, management, administration and maintenance of the multipurpose projects of the three Punjab Rivers shall vest in a Board appointed and controlled by the Central Government.

Thirdly, the powers of extension and development of the multipurpose projects involving irrigation and power on the three Punjab Rivers shall also vest in the Central Government.

The net result of these provisions is that after 1966 the State subjects of Irrigation and Hydel power, which are solely in the state list under the constitution, virtually became Central subjects.

Further Developments to the Detriment of Punjab

Just as Punjab, under the Riparian Law is said to be not entitled to Yamuna waters after 1966, similarly Haryana is also not entitled to any water of the Punjab rivers except what could be contracted on grounds of actual appropriation before 1966 according to which only 0.9 MAF of water could be used by Haryana, which was earlier, a part of the erstwhile Punjab. There was no ambiguity in this regard but since the scheme had not actually been fully implemented before the division of Punjab, Haryana became non-riparian and ceased to be entitled even to 0.9 MAF envisaged in the Project. Punjab too was denied the share of Yamuna waters on this very ground. This project was erroneously and mischievously made a ground for the inclusion of Sections 78 to 80 in the Punjab Reorganisation Act 1966, thereby giving an illegal lever to Haryana to claim Punjab waters, and the Central Government to become the masters and the arbitrator of the untenable claims of the non-riparian states.

In 1981 the Union Government under Indira Gandhi convened a meeting of Chief Ministers (all Congress) of Punjab, Haryana and Rajasthan. This meeting gave a new legally untenable ‘award’ under which Punjab was given 4.22 MAF, Haryana 3.5 MAF, Rajasthan 8.6 MAF, J & K 65 MAF and Delhi 0.2 MAF after over-assessing waters at 17.17 MAF as compared to 15.2 MAF as in 1976. It is in spite and despite the fact that the amount of river waters had, in fact, been shrinking and not increasing. After this so-called agreement, a case pending in the Supreme Court regarding the constitutionality of the PR Act was also withdrawn by Punjab. The Prime Minister soon thereafter laid the foundation of the disputed SYL Canal.

In 1983 Chief Justice, S.S. Sandhawalia of Punjab and Haryana High Court admitted a long pending petition by a group of Punjab farmers challenging the unconstitutional supply of Punjab waters to non-riparian states under the Reorganisation Act. He also announced the constitution of a Full Bench, with himself as Chairman, for the hearing of the case the following Monday, the 25th November, 1983, but he was overnight transferred to Patna and the full bench never sat. Moreover on the oral request of the Attorney General of India, the case was also transferred to the Supreme Court.

Hydel Power Issue and further Arm Twisting

Narration above indicates how over 75% of the available waters of riparian Punjab was allotted to non-riparian states, and the channel of approach to the Supreme Court closed. But there was a snag still left. The agreement of 1981 among the three Chief Ministers dealt with only the water issue. In relation to hydel power, a possibility of challenging the constitutional violation of Articles 14, 162 and 246, and item 17 of the State List by Section 78 to 80 of the Reorganisation Act still existed.

And as such in May 1984, a situation was deliberately created whereby the Hydel Power issue too could not be referred to the Supreme Court.

 For that end, a new ground was found to twist the arm of Punjab and to have an ‘out of the Court agreement’ regarding the hydel power issue as well. By this time, Punjab had a thermal plant at Ropar, which was to yield over 400 megawatts of electric power. For its smooth and efficient working, appropriate cooling it was essential which necessitated drawing of water from the Satluj channel. Cooling was to be done by circulating water which was to be flowed back in to the irrigation channel. Rajasthan and Haryana, both non-riparian states, objected to even this temporary use by Punjab, of the water of its own river. Centrally appointed Bhakra Board refused to allow the proposed necessary circulation and raised the issue to the level of a major dispute. Instead of advising Rajasthan to follow the constitutional path and obtain the verdict of the Supreme Court, the Government became a self-appointed mediator and used the issue of the cooling channel as a lever for pressurising Punjab into entering a ‘Hydel Power Agreement’. It only reminded one of the arms twisting of the kind that was made in 1981 on the water issue. The Governor of Punjab readily signed that agreement because the state was under his ‘rule’ at that point of time.

The ‘agreement’ in effect provided for arbitration by a nominee of the Centre. It envisaged that the Centre could refer any dispute on the issue, for the opinion of the Supreme Court, and in case it declined to give such an opinion, the States would request the Supreme Court to appoint a Judge for giving an award on the dispute and if the Supreme Court declined to do so, the Centre would itself nominate a Judge to give an award on the claims and the award will be binding on the parties. Evidently, the object of the agreement, as in the case of the 1981 agreement, was three fold, which in a few words could be summarised as ‘Arm Twisting’.

Like the 1981 Water ‘Agreement’, the 1984 Hydel Power ‘agreement’ closed the door of the Supreme Court for its verdict on the hydel power issues ‘under’ the Reorganisation Act. It also became a subject of arbitration by the Centre or its nominee. Thus, ‘the ultra vires character of the Section 78 to 80 of the Reorganisation Act remained unchallenged and unexposed. The agreement of 1981 and 1984 appear to be clear instruments both to legitimise the permanent channelising of 75% of the Punjab waters, and hydel power to non- riparian states, and to destroy the constitutional right of Punjab under Article 131 to have the SYL drain set aside by a judicial verdict of the Supreme Court.

Water Needs of Punjab

As per available estimates, Punjabi has about 105 lakh acres of cultivable land. Needs of modern agriculture, double cropping, and hybrid seeds etc. place minimum water needs to over 5 to 6 acre feet per annum for the commonly followed paddy- wheat rotation. Thus, Punjab’s minimum water need comes to 52.5 MAF, of water per annum whereas Satluj, Ravi and Beas, have a water flow only of about 32.5 MAF.

As against these requirement only about 37 lakh acres of Punjab lands are estimated to be ‘canal irrigated’. The sanctioned water supply per acre of commanded area is hardly adequate for the requirements of assured irrigation necessary for modern agriculture. On the basis of minimum requirement of water, the supply necessary for 37lakh acres comes to about 18 MAF, whereas the agreed allotment to Punjab is only about 15 MAF. It means that after 1947 out of the available waters less than 25% have been allotted to Punjab.

Dismal Future of Tubewell Irrigation

As such the peasant is perforce required to sink tube wells to make up for the deficiency of canal water supply. It is estimated that more than 14 lakh tube wells exist in Punjab and applications for more than 3 lakh more tube wells await the nod of the concerned power commission. The cumulative result is dangerously dwindling water table which, in its wake has also been bringing serious health (read cancerous) problems in the entire state particularly those areas where the water table has gone dangerously low and radioactive minerals and elements are being thrown up along with water.

The root cause of this ironical health and dwindling irrigation situation is nothing but the injustice to Punjab by way of unconstitutional allotment of over 75% of Punjab water resources to non-riparian States.

Satluj -Yamuna Link Canal

There is a strong expert opinion that 3.5 MAF allocated for the SYL Canal, the waters of which have to join Yamuna waters to be lifted for irrigation in Gurgaon (in Yamuna basin), would not be available to it without substantial decrease in supply’ to the old running canals of Punjab, thereby reducing the irrigated area of the state by about ten lakh acres. The corresponding damage, it has been stressed, would be serious in districts like Bathinda, Faridkot and Ferozepur, especially because the ground water in those districts is saline and carries toxic elements like boron and fluorides. Supplies to the level of allotments made by the Central Government for Rajasthan and the SYL Canal would never be available from Satluj even if the MB Link were completed, although before its completion the question of supply to SYL ‘Canal cannot arise.

Contribution of Punjab Politicos

We Punjabis are our worst enemies. This is the conclusion that I have, once again, arrived at after studying court orders, newspaper clippings, articles and other material available on net regarding the Punjab water crisis.

Most of our politicians, irrespective of the parties are the biggest enemies of our Punjab, Quom and Race. They become Punjabis only when elections are around the corner and then hibernate only keeping their ‘financial interests alive. And we gullible Punjabis as such are simple, straightforward and amenable to emotional blackmail by most of these politicians.

I feel that the issue of SYL canal, which some politicians are raking-up as on date, is just to befool gullible people like us, simple hearted and straightforward ‘emotional and sensitive Punjabis’. SYL canal, I feel cannot be constructed, will not be constructed and made operational, on account of the reasons enumerated in preceding paras, in our lifetimes. The entire issue will be forgotten after elections and re-emerge during next elections. Even now, no politician is doing anything to seriously raise the issue of continued river water supply to other states through existing canals which are flowing full stream despite acute shortage of water in Punjab. Half hearted statements of our politicians remind me of what we call ‘chid chid and khich khich’ in Punjabi. It all is neither here nor there. Just some weird sounds and that is about all it. Damn such opportune leaders and damn their ‘Gairat’.

Recent ‘drama bazi started after the recent verdict of the Supreme Court of India invalidating PUNJAB TERMINATION OF AGREEMENT ACT 2004 by which Punjab had terminated its ‘water pact’ with Haryana, Himachal, Rajasthan, Jammu &Kashmir and Delhi for sharing its river waters.

And the second Drama Bazi is ‘seeking royalty’ from other states. Were they sleeping till now? It is just an election oriented gimmick and what hurts most is that people still believe such loudmouthed yet insincere politicians.

Punjab has always been victimised in all possible ways, be it funds, our own water, drugs, health plans, royalty for electricity / water/ development etc etc. Just name anything.

If our political leaders and even we civilians have some guts then they need to descend on ground and make serious legal efforts to prevent out flow of Punjab waters.

Acknowledgement;

The writings of S. Daljeet Singh and other writers, particularly the former in his article ‘Punjab River-Waters Dispute’ (http://www.sikhfreedom.com/punjab-river-waters-dispute), as they appear on internet are graciously acknowledged in interest of Punjab. Their in-depth writings will certainly help in creating a favourable air in the country as such which unfortunately is shrouded in anti Punjab myths and propaganda. Without their ground work this attempt could never have been successful.