Subject: Case in Supreme Court on Punjab River Waters- Now your stand thereof
On behalf of IHRO, I would like first to compliment you on being instrumental in filing a suit in the Supreme Court (SC) according to the wishes of the people of Punjab. I have been greatly impressed by the choice of your priorities. Taking up the Punjab River water issue correctly in the SC is welcome.
From your initial moves, it appeared, however, that the problem was being attacked in the right direction. But unfortunately now, you are clearly treading a wrong path when you reportedly ask Deputy Prime Minister Mr LK Advani to constitute a new water tribunal on the SYL canal issue. And Punjab Congress president Mr H S Hanspal is repeating the same mistake in a section of the media.
If you do not correct this mistake here and now, your earlier efforts in filing the suit in the SC, I am afraid, will go waste. And You will prove to be more spoiler rather than trouble-soother of the river waters (a life line of Punjab), even worse than the Akalis, who had betrayed Punjab’s interests on its river waters just for sinister political gains when they signed Rajiv-Longowal accord in 1985.
It is wrong in the first instance to make such demands when you (the State) are in the SC. Other emotion- packed measures and some economic-packages, therefore, will not do the trick, if you lose on River Waters. So, Punjab Government would do well to prepare itself for a drastic, new thinking and to distance itself from the outmoded, stereotyped and deceptive framework built round the Rajiv-Longowal Accord.
I have already written to you in my letter (Nov 20, 2002) that the principle embodied in Entry 17 of the List II (State-List) of the Seventh Schedule of the Constitution of India says that River waters and hydel power have been kept as a State Subject upon which only the said State has full and exclusive legislative and executive powers [Arts 146(3) & 162].
"Whereas, the Centre (Parliament) can legislate only in regard to inter-State rivers [Entry 56 of List I (Union-List) of the Seventh Schedule and Article 262 of the Constitution] and not in regard to the waters of a State river/s over which the concerned State alone has full and final authority." (Please also see first ten paragraphs of my letter herewith)
And you, Capt Singh, as a State, had accordingly filed the suit in the SC on the basis of riparian rights of rivers. How does, then the Centre or the Deputy PM Advani, come into picture to whom you have been urging for setting up of a new tribunal on river waters which are not, in any way, inter-state rivers .
And you have very rightly challenged the provisions of section 14 of the Inter-State Water Dispute Act 1956, whereby the amendment was made to enable the Centre to refer the matter to the Tribunal, in addition to sections 78-80 of the Punjab Reorganisation Act 1966.
It is really intriguing why you have chosen such a path of destruction on this issue. Or, are you, Capt, under the pressure of your High Command, I mean Mrs Sonia Gandhi. Nay, you are certainly surrounded by pro-Haryana people in Punjab. Shunt-out these people! Otherwise, the People of Punjab will not allow you to barter away riparian right, as they are more aware of their rights now than Longowal-Barnala-Balwant’s era.
We believe that you will give a serious thought to our concern. And we will appreciate if you could immediately drop the idea of water tribunal and do the needful to streamline the case in the SC.
Reference the IHRO deputation that met you on November 12 on the Subject Matter of this letter, we were asked to put our viewpoint in writing with special reference to filing a suit/petition in the Supreme Court (SC), in view of the fact that the apex court had already given its verdict against the State of Punjab on the suit filed by the State of Haryana requiring the Punjab government to complete the construction of the SYL canal by January 10, 2003.
In the prevailing legal position and the given circumstances, we, in short, have to say that Haryana is gloating over the course of events, more so happily after the SC decision in its suit (No 6 of 1996) under Article 131 of the Constitution. We must realise the gravity of the situation. The SC decision is based on the unequal, illegal, unconstitutional agreements, which are anti-national and anti-international laws and practices. We need to start afresh and challenge the very vires of the so-called agreements and awards in order to re-establish the correct constitutional status of Punjab rights over its rivers.
Let us be very explicit in asserting that Punjab has an absolute riparian right over its three rivers- the Ravi, the Beas and the Sutlej. And, the neighbouring states of Haryana and Rajasthan, being non-riparian, have no legal right whatsoever over these rivers. Therefore, Punjab has nothing to do with "sharing of waters" with these neighbours. Punjab has also nothing to do with the "60:40 ratio" as far as its river waters are concerned. It may be relevant for territorial matters. Sharing of river waters can be possible only with co-riparian state/s, to elucidate it further, discussions could be held and thoughts expressed and exchanged with legal experts.
In his book ‘An introduction of International Law,’ I G Stark says: "Where a river lies wholly within the territory of one State, it belongs to that State and generally speaking no other State is entitled to rights of navigation on it. Also where a river passes through several States, each State owns that part of the river, which runs through its territory."
This is the principle on which both national laws and international and, including the Common Law of England, are based. Helsinki Rules on the Inter-State water allocation also lays down the same principle as mentioned above. This was also confirmed by Mr N D Gulati, the Indian Representative before the Indus Water Commission, in his report that he made in 1955.
This principle has been embodied in Entry 17 of the List II (State-List) of the Seventh Schedule of the Constitution of India. River waters and hydel power have been kept as a State Subject upon which only the said State has full and exclusive legislative and executive powers [Arts 146(3) & 162].
Whereas, the Centre (Parliament) can legislate only in regard to inter-State rivers [Entry 56 of List I (Union-List) of the Seventh Schedule and Article 262 of the Constitution] and not in regard to the waters of a State river/s over which the concerned State alone has full and final authority.
At the moment, we suggest the following that may be taken into account and considered before going to the SC for seeking justice in this regard:
i. First of all, we need to challenge the very vires of the provisions of sections 78-80 of the Punjab Reorganisation Act, 1966 that have taken away Punjab’s riparian right over its rivers, enshrined in Entry 17 of the list II (State List) of the Seventh Schedule of the Constitution of India. These sections of the 1966 Act rape the very spirit of the Fundamental Rights enshrined in the Constitution, especially the Article 14 which provides equality before law and equal protection of laws for the people and of Punjab as well who have patently become the victim of motivational discrimination on Punjab issues, especially the river waters.
ii. Article 21 guarantees the right to life and the Punjab River waters are a lifeline and God blessed natural wealth of its people. And, the riparian Punjab has its sovereign right over its rivers that can not be taken away by any means. Unfortunately, Punjab has been a victim of discrimination on several accounts, especially over its waters, disregarding its right over waters without any consideration (Article 31). Over 75% of its waters are being looted under the garb of so-called arrangements, awards and agreements, including the unconstitutional laws and amendments made to deprive it of its natural wealth, despite the fact that Punjab needs more water than that of its own three rivers.
iii. This riparian right has been acknowledged by the Tribunal made under the Inter-State Water Disputes Act, 1956, in case of Narmada river that passes through MP, Maharashtra and Gujarat and NOT through Rajasthan. Rajasthan, being non-riparian state (as it is in case of Punjab rivers), could not become a party to share the water of Narmada because under the Act, 1956, only co-riparian state can do so. The Tribunal was presided over by the sitting judge of the SC and the best talent of the country, such as Mr Daphtary, Mr Palkhiwala, Mr Nariman, Mr A K Sen and Mr Niren De argued the case.
iv. The view of Mr Justice S M Sikri, formerly the Chief Justice of India, regarding the right of Haryana in Punjab rivers, is: "The fact that the Central government paid to Pakistan a sum of 62 millions pounds (Rs 110 crores) in order to obtain unrestricted use of all waters of Eastern Rivers, the Sutlej, the Ravi and the Beas, is irrelevant to the question, namely, what if any, are the rights of Haryana in the Ravi and the Beas. It is irrelevant because the effect of the Indus Treaty, 1960, was that the sovereign right of erstwhile State of Punjab to control or regulate the use of waters of the Ravi and the Beas which was a limited right in 1966 in view of the existence of International Servitude (page 51 of law of succession by Counsel), ceased to be limited in 1970. It was the reorganised State of Punjab that had either retained the sovereign right under the Act or acquired it under the Act." The net result is that, under the Constitution no non-riparian state has any right to the waters or the hydel power of the riparian Punjab.
v. The compensation paid to the West Punjab (Pakistan) was regarding the cost of essential works of diversion of Jhelum and Chenab waters to old Punjab canals and NOT for the cost of river waters of Sultej, Beas and Ravi. The proprietorship of these rivers was accepted as that of East Punjab (India) in the same way as that of West Punjab on Chenab, Jhelum and Indus. Chief Engineers of two Punjabs concluded at Shimla two agreements on April 18, 1948. The final agreement ratified by India and Pakistan incorporated these proprietary rights over respective rivers of both East and West Punjabs.
vi. And this was the reason why the Punjab case (Suit No 2 of 1979) challenging Ss 78-80 of the Act, 1966 and the so-called Awards of 1976 (Notification of March 24, 1976) was withdrawn from the SC on February 12, 1982, after making an Agreement on December 31, 1981, out of the court, just to avoid SC’s verdict on the constitutional matter. Haryana too withdraw its suit (No 1 of 1979). And Rajasthan was added as third party to the December 31, 1981 agreement (even though Rajasthan is not a successor State of Punjab).
vii. So, if we challenge Ss 78-80 of the Act, 1966, the award of 1976 and the 31-12-1981 agreement will become ineffective (though these stand withdrawn or superseded by the Punjab Settlement of July 24, 1985). It was absolutely proper for Punjab legislature to pass a resolution on November 5, 1985, repudiating the 1981 Agreement. Otherwise also, the so-called agreement was a result of undue influence and coercion exercised upon the parties to the agreement, particularly the Punjab. And more so, the agreement was void ab initio for WANT of consideration under the Indian Contract Act of 1872 and relevant constitutional provisions.
viii. Interestingly, the SC’s decision (AIR 2002 SC 685) says: "It is true that the aforesaid agreement (July 24, 1985) was entered into by Sant Harchand Singh Longowal, the then President of the Shiromani Akali Dal and as such, had no constitutional sanctity to bind the State of Punjab. But having regard to fact that in terms of the paragraphs 9.1 and 9.2 (of the Accord) a tribunal was constituted and even the provisions of the Inter-State Water Disputes Act, 1956, were amended, thereby granting Parliamentary recognition to the so-called agreement, the terms of the said agreement cannot be thrown out as piece of paper only.
ix. This decision of the SC will lose its ground (base) once we challenge the said provisions of the Reorganisation Act. That the subsequent actions mentioned in the Para No 6 would automatically become infructuous. Moreover, the July 1985 agreement is not agreement in eye of law for want of proper parties to the agreement and consideration thereof.
x. We also need to challenge the provision (Section 14) of the Act, 1956, whereby the amendment was made to enable the Centre to refer the matter to the Tribunal, in addition to Ss 78-80 of the Act, 1966.
xi. As far as the so-called 1955 allotment (January 29, 1955), by which Rajasthan was given increased water is concerned it is no agreement. The Narmada Tribunal, before which Rajasthan filed this "agreement" and put in its claims regarding the Punjab water, observed: "Utilisation of Ravi and Beas: The apportionment of the waters was the result of an "agreement". It appears from Rajasthan documents that Punjab was prepared to satisfy the needs of Rajasthan provided its own needs as a riparian state were first satisfied."
xii. The net result has been that the state subject of irrigation and hydel power have virtually been unconstitutionally transferred to the Centre, thus sabotaging the riparian rights of the Act, 1966 and that we need to challenge in the SC without any delay, of course, not before Mid-December for some other reasons.
xiii. Next, in the case we need to elucidate the basic needs of water and hydel power for the people of Punjab not only for the irrigation and drinking purposes but also for sustaining industry and promoting economic growth, and to re-rail the otherwise fractured state economy.
xiv. Besides this, we need to highlight the political plight of Punjab, which had to face a turbulent period for the last two decades. Thousands of people of Punjab, including personnel of the security forces, were killed in the political conflict that had basically started to stop the digging of the controversial SYL canal.
xv. Along with it, we need to urge the SC, in the meantime, to stay its decision for the construction of SYL canal by January 10, 2003, before deciding the constitutional status of Punjab on its rivers.
These are few suggestions to which many more can be added on the advice of constitutional experts over the matter. We will continue to extend our support on the subject matter. We are sure you will appreciate the spirit behind our suggestions and give the same full consideration while going before the apex court of the country.
