Punjab River Water Forum 742 Sector 8, Chandigarh-160009 (India)  .    Tel: 0172-2544920 Note: The views on this page are that of the Punjab River Forum. All questions or clarifications should be addressed to them. . Interpreting the bewitchingly smooth talk . Punjab River Issue: Some Facts Interpreting the bewitchingly smooth talk Gurtej Singh August 18, 2004 Ever since the 12th of July this year, the Punjab has been inundated with threats and also with bewitchingly smooth talk. The situation is like the weather in the rest of the country. Half of which is ravaged by floods and the other half by drought. Om Parkash Chautala, the chief minister of Haryana has been breathing fire and brimstone. With one breadth he has threatened to harass and to lynch all Punjabis who pass through Haryana to go to Delhi very much on the pattern of 1982. He has gone to the extent of insinuating that the chief minister of the Punjab is a traitor to the nation. With the other breadth he has talked of going to Bhai Kanhaya’s birth place in Pakistan to symbolically fetch water from there to embarrass the Sikhs. He means thereby to remind the Sikhs that their incomparable Guru Gobind Singh had appointed Bhai Kanhaya to serve water to the wounded (enemy included) even in battle field whereas they were denying river water to his state. Others have been less crude. Atal Bihari Vajpayee the former prime minister of India and now the leader of the opposition, can be relied upon to utter the smoothest words without making it obvious that he is indulging in “double think double speak”, the favourite pastime of topmost Indian politicians. Nehru and particularly Gandhi was a past-master in the art. Nehru’s daughter was second to none. As her army seething with hatred of the Sikhs, was poised to storm the holiest shrine at Amritsar, she went on the air to advise the nation, “shed hatred not blood”. Taking a “strong exception to the recent Punjab decision”, Vajpayee has written to the prime minister to draw his attention to, “the dangerous question - (as) emotions on the issue of water have arisen alarmingly”. Ignoring the legal aspect which is the only one relevant, Vajpayee goes on to pompously proclaim, “every state, every political party has a right o take a stand in the (sic) democracy”. So he wants the issue to be decided at an “all-party meeting which will evolve a consensus at a meeting”. (The Tribune, August 10, 2004, 20). The Tribune, lost no time and in its tradition of opposing whatever is the unassailable right of the Sikhs and the Punjab. It carried an editorial in its very next edition (August 11), to support the ex-prime minister. This double talk calculated to deprive the Punjab of a proper legal decision according to the constitution is referred to as “this noble goal” by it. Condemning “Punjab’s unilateral decision”, and supporting Vajpayee’s warning to the nation, it further warns of, “the dangerous consequences of letting the river water dispute linger on”. What it strongly recommends is “consensus - the best way to solve a problem when people’s emotions are involved”. Pray! Why is a judicial decision by the Supreme Court in accordance with the constitution, not the best way? The present prime minister has been made to follow the Raghukulreet of the Nehru-Gandhi dynasty. In his televised address to the nation on August 15, 2004, he said, “I urge you and all political leaders to take a nationalistic and holistic view of the challenge of managing our water resources”, and that “we cannot allow the waters to divide us”. Manmohan Singh significantly does not want a constitutional solution either. The Hindu supported the prime minister editorially on the next day while utilising the opportunity to condemn the Punjab chief minister, who, according to it has, “created an unprecedented crisis”. By now we are pretty sure that neither the Media nor the country’s leading politicians want the Supreme Court to decide the water case judicially. This has been the attitude of the previous prime ministers and others also. Clue to their reticence lies in the very bad legal position of the case. The Punjab has been deprived of its water by a clear illegal approach and process from the beginning to the end. This is objectively demonstrable. The water problem has its source in India s loudly proclaimed desire to retain the Punjab as its colony in the orthodox colonial traditions of the ancient and the medieval world. It wants to be the first democratic power to hold a colony “democratically”. Its most potent instruments are the frenzied public opinion and the Punjab Reorganisation Act of 1966. As the matters stand at present, the outcome of the case in the Supreme Court will squarely depend on whether sections 78, 79 and 80 of the Act are held to be in conformity with the constitution of India or not. Nothing similar to these sections is found in any other similar law in India and have had a devastating effect upon Punjab’s case. These are particularly designed to loot Punjab’s river water and to retain the Punjab in the position of a sub-state. These sections have been challenged half a dozen times and suits have remained pending in the highest courts including the Supreme Court of India for sufficient length of time, without attracting adjudication. These sections violate the riparian principle, which is an integral part of the Indian constitution. River water “sharing” (euphemism for loot), since 1985 has been based on the provisions of Longowal-Rajiv political accord which were inserted into the Inter-state River Water Disputes Act 1956. These again militate against the constitution as it is a fact of geography that the Punjab Rivers Ravi, Beas and Satluj are not inter-state rivers. It is plain for even the blind to see that these provisions too were inserted to deprive the Punjab of its water belonging exclusively to it, to forge another chain for binding the Punjab head and foot. It was consciously done by the whole Parliament and the executive, each member of which had sworn to “bear true faith and allegiance to the constitution as by law established.” The word “agreement” as all the water instruments of extortion, have been termed by the nation, has been defined by the relevant law (Section 10 of the Contract Act 1872) to have four basic ingredients. Firstly, it must be arrived at by free consent of the contracting parties; secondly, it must have been concluded by the parties competent to contract; thirdly, it must be for a lawful and adequate consideration and fourthly, it should not have been declared to be void. No chief minister of the Punjab has ever willingly concluded any water agreement. All of them were cajoled to do so. Wishes of the Congress Party high command were imposed upon them. They were threatened to be divested of office as it was the party high command, which appointed the chief minister of a state from the elected members of the Legislative Assembly. Further, no chief minister of the Punjab was ever authorised by the Punjab Legislative Assembly to conclude any agreement concerning river water. None was therefore competent to enter into a contract affecting the coming generations and the present one. Section 25 of the Contract Act provides that there has to be adequate compensation for something given in an agreement. One special feature of all the water “sharing” agreements is that these just take away Punjab’s water (estimated value 36,000 crores of rupees at 1981 prices) and gives the state nothing in return. They therefore violate this section and are void ab initio. When and if the matter comes up before the court it is duty bound by section 25 (Explanation 2) to give the finding whether the compensation was adequate. In this case there is a total absence of compensation and therefore again the water sharing agreements are all void ab initio. There is another reason also why these agreements are bad in law. Constitution of India provides a procedure for the conclusion of agreements between the federating states. Any such agreement has to be under Article 299 and has to be concluded in the name of the Governor which involves a certain set procedure. It is established that none of these agreements has taken place according to the provisions of Article 299 and none is therefore valid. There is yet another stark illegality about the Satluj-Yamuna Link canal (SYL) which is again fatal to the entire process as has been carried out so far. The first step towards acquisition of land was taken by Parkash Singh Badal and is perhaps the only link in the chain of actions that was executed willingly by any chief minister so far. On February 20, 1978, notification number 113/5/SYL was issued in the name of the Governor of the Punjab. It says “land is required to be taken, for public purpose, namely the construction of the Sutlej Yamuna Link Canal; notification is made under Section 4 of the Land Acquisition Act 1894”. The fallacy is that the notification is by the Punjab Governor and the land is required for the purpose of carrying the looted water to the detriment of the state and its farmers to another state. This is by no means a “public purpose” for the Punjab by any stretch of imagination. There is much case law to define what constitutes a public purpose and what does not. So it is apparent that according to law no land can be acquired for digging the canal. In any country where rule of law prevails, this would have sufficed to strike down the whole project as unviable. These are the reasons why no enemy of the Punjab wants a judicial verdict on the Punjab river water case. The international community has often lauded India as the “world’s largest functioning democracy” with a “written constitution sensitive judiciary, and elected parliament and the rule of law.” This mantra has been particularly chanted when the smaller nations within India and the minorities have rightly alleged large scale human rights violations. It served as a fig leaf to pacify the world’s conscience even when the fact of extra-judicial killings of the Sikhs, Christians, Muslims and Dalits was thrust upon the world attention. An objective appreciation clearly pointed to a state sponsored genocide. It is like a life in pre-war Nazi Germany for the smaller definable groups, but is even more carefully camouflaged. It has been contended that the Sikh massacre of the last two decades in the Punjab was perpetrated to facilitate the loot of water. The most highly placed in the land have already started talking of “emotions running dangerously high.” The warning is plain and must be deciphered well if the impending disaster is to be efficiently averted. Clearly as the sun at noon, the message is; either surrender water without a murmur or be prepared for another blood-bath. The decimation can be averted by the Sikhs themselves becoming aware and by making the world aware of their situation. “If one becomes alert sufficiently beforehand, one escapes the punishment,” says the great Guru Nanak in the Babarvani, (aggon de je cheteeai ta kayat mile sajai). Punjab River Issue: Some Facts When the peaceful Akali agitation started in 1982, I had suggested to Sant Jarnail Singh Khalsa and Sant Longowal that they should authorise a number of our distinguished intellectuals to give an authoritative interpretation of the issue involved. Consequently an informal body was formed. It later came to be known as the Council of Sikh Affairs. For a long time it worked in the background and prepared papers for the politicians to use (which of course, they seldom did). The basic paper has been updated several times. Sardar Daljeet Singh, a Sikh theologian of distinction, was the most active member of the body. I translated and carried most of the fact sheets to the Akali leaders and Sant Jarnail Singh Khalsa. One such paper defined the water problem. It deals mainly with facts which remain unchanged. I am reproducing this paper below. It can serve as a good background material for anyone trying to write or to understand the Punjab problem. -- Gurtej Singh The Punjab Water and Hydel Power Issue Facts After 1947 on the basis of the riparian principle or geographical location out of about 170 M.A.F. of Punjab waters, only 38.3 M.A.F. fell to the share of East Punjab, viz 32.7 M.A.F. in Ravi, Beas and Satluj and 5.6 M.A.F. in the Yamuna. But of 32.7 M.A.F. of Ravi, Beas and Satluj about 9 M.A.F. were then used in present Punjabi Suba, 1 M.A.F. in Ganganagar area and the remaining 22 M.A.F. were used or flowed to Pakistan - Punjab. With Bikaner, Punjab had a contract and charged royalty for the use of its waters in Ganganagar area. The present position is that out of the 22 M.A.F. of available and unused water of Ravi, Beas and Satluj in 1947, about 5 M.A.F. have been allotted to Punjab and the remaining 17-18 M.A.F. have been allotted to the non-riparian states of Haryana, Rajasthan and Delhi, and in addition the entire Yamuna waters go to Haryana. In short after 1947, the central government has contrived grounds for not only giving the entire Yamuna waters to Haryana but also more than 75% of the available waters of the Punjab Rivers. Water Needs of Punjab Punjab has a cultivable area of 105 lac (1 lac = 100,000), acres. According to the experts, the normal acre of wheat-paddy rotation needs about 5 acre-feet of water, per acre or 52.5 M.A.F. for its entire cultivable area. Since Punjab Rivers have only 32 M.A.F. of water in its Rivers, its water resources are hardly adequate for 60% of its cultivable area. But, the unfortunate position today is that out of 32 M.A.F. the major share has been allotted to non-riparian states. Punjab, thus, is obliged to reduce its surface water supply rate per acre to less than to 2 acre feet, and have resort to heavy, expensive, and, to an extent, suicidal tube-well irrigation. At present, of the 90 lac acres irrigated in the Punjab, less than 38 lac acres are irrigated by canals and over 52 lac acres irrigated by over seven lac tube-wells of which only about half are run by electricity. Unconstitutional Contrivance used for Usurpation of Punjab Waters and Hydel Power Under item 17 of the state list-II, Schedule 7 of the Indian Constitution, River waters, irrigation, canals, Hydel power and land are state subjects and the state legislature and government have exclusive legislative and executive powers under Articles 162 and 246(3) of the Indian Constitution. But, in 1966 when the Centre was obliged to create the Punjabi Suba, it incorporated Sections 78 to 80 in the Punjab Re-organization Act of 1966 (P.R. Act) vesting in the Central government powers of control, maintenance, distribution and development of the waters and Hydel power of Punjab Rivers. Under these Sections any unresolved dispute between Punjab and Haryana regarding River waters is referred for Central decision. This Act was patently violative of the Indian Constitution because (a) it made a legislation about the River waters and Hydel power of Punjab Rivers which subjects were in the exclusive jurisdiction of the State, and, (b) it was discriminatory since, on the one hand, it applied the riparian principle to Yamuna waters by letting it remain as a subject for the exclusive jurisdiction of the Haryana Government and legislature, and, on the other hand, it took Central control for the maintenance, distribution and development of the waters and Hydel power of Punjab Rivers running exclusively in the state. It is, thus, an obvious case of heads I win and tales you lose, and a patent violation of the Indian Constitution which embodies the universally accepted riparian principle, based on the equitable convention that those who for centuries have suffered losses in life and property from the ravages and floods of a River are the only people entitled to the benefits of its waters and Hydel power. It is this principle which has been observed at the time of division of the Madras state into Tamil Nadu and Andhra Pradesh, again, at the time of the decision about Narmada Water when it was clearly laid down that Rajasthan had no locus standi nor any rights to its waters, it being non-riparian regarding that River. But the Central Government maneuvered, rather coerced the Punjab State, when it had a Congress Government, into coming to an agreement with the Congress Governments of Haryana and Rajasthan and part with a major portion of its river waters as indicated above. As to Hydel power, the PR Act provided that Hydel power to Haryana would go to it in proportion so the Punjab rivers waters allotted to it. In 1984 Punjab had constructed a Thermal plant and wanted the use of its own River waters for its cooling arrangements. But the Central Government, which was in control of the Bhakhra Project, would not allow it, and used that control as a lever to pressurize Punjab into entering into an agreement with Haryana and Rajasthan Governments accepting that all Hydel power disputes would be submitted for decision to a Commission appointed by the Centre. The Economic Future of Punjab Jeopardized The losses of Punjab are manifold. (1) The capitalized value at the 1980 rates, of the Punjab waters transferred to the non-riparian states is Rupees 36000 crores. (2) The recurring loss of crops alone and corresponding gains to the non-riparian states is about Rupees 2500 crores (1 crore = 100 lac) per annum. (3) The loss on account of industrial production because of transfer of Hydel power to non-riparian states is many times that of the annual loss of agricultural production. (4) Electric tube-well irrigation being six times, diesel irrigation being twenty times more expensive than canal irrigation, the additional expense incurred by way of investment and interest is over hundreds of crores each year. (5) The flood loss suffered by Punjab each year is colossal. The enormity of this injustice and drain can be judged from the fact that in the 1988 floods alone, the Punjab state suffered a loss of over 20 billion rupees in property alone apart from loss, and suffering of human life, while the principal beneficiaries of Punjab waters and Hydel power, namely the non-riparian states of Rajasthan, Haryana and Delhi, and their people did not suffer even a penny worth of loss from the Punjab floods. (6) The greatest anticipated calamity from this unconstitutional diversion, is the continuous lowering of the water table and the feared cessation of most of the tube-well irrigation. The manual re-charge of sub-soil water is considered to be between 4 and 5 M.A.F. But the suction of sub-soil water by the 7.5 lac tube-wells irrigating 52 lac acres is considered to be over 11 M.A.F. The present position has been that each year the sub-soil water table has gone down from 5 to 15 feet in about three fourth of the Punjab areas. Accordingly, such three fourth of the Punjab Community Development blocks have been declared as black, meaning thereby that tube-well irrigation is un-economic there. The dismal damage would be that by 2010 majority of these tube-wells would become useless, involving a proportionate fall in the present tube-well irrigation area of 52 lac acres and in the Punjab becoming a desert. The above losses and dangers are well known. The unconstitutional drain of Punjab Waters and Hydel Power to the non-riparian states is considered ruinous for the agricultural and industrial future of the state and its people. All Attempts to Undo Injustice Frustrated As the above unconstitutional drain of the natural resources of Punjab was being continued, the Sikh peasantry and the Akali Party resorted to two constitutional means to undo this drain of Punjab's wealth. First, since 1966 they have been agitating and making peaceful protest through fasts, morchas and otherwise. The last civil disobedience movement was started in 1981, in order to prevent the construction of the S.Y.L. canal, the foundation of which had been laid by the then Prime Minister Indira Gandhi. The simple demand of that protest was that the water and Hydel power issue should be referred to the Supreme Court since the same concerned a constitutional matter, so purely within the purview of the Supreme Court. But, instead of referring the issue to the Supreme Court, the camouflage of law-and-order, separatism and terrorism was used to hide and side-track the reality. It is too well known that this policy led to the tragic events of Attack on Darbar Sahib, the Woodrose Operation, November 1984 massacres, the murder of Prime Minister Indira Gandhi, and the extra judicial killing of hundreds of thousands of the young Sikhs. The second step the Akali Government look was to file a case in the Supreme Court for a judicial verdict regarding the unconstitutional character of the section 78 to 80 of the PR Act of 1966. But, by the afore mentioned coercive agreement among the Congress Governments of Punjab, Haryana and Rajasthan, the judicial process was abrogated and the pending case in the Supreme Court was withdrawn before it could adjudicate upon it. Another attempt to file a similar case in the Punjab and Haryana High Court met a similar fate. As soon as the Chief Justice of Punjab and Haryana High Court admitted the writ petition and constituted a full Bench to hear it, the Chief Justice was immediately transferred, and on the request of Attorney General the pending case was taken over by the Supreme Court on its own file. Since 1984 that petition remains unheard. The above has been the tragic fate of all peaceful protests for over two decades, and resort to the judicial process for attempting to save Punjab from the continuous drain of its wealth and the economic ruin of its people. It is an irony that the so called Accord which was supposed by the Government to be a solution of the Punjab problem, involved the very acceptance of the S.Y.L. canal and the drain of Punjab's natural resources which the people had tried to stop during the earlier two decades both through peaceful protests and the judicial process. As to how the people have reacted to the so-called Accord and the solution there under, is evident from the present fate of all those leaders who had directly or indirectly supported the Accord considered by the voters to be a betrayal of their interests. Conclusion It has to be understood that sections 78 to 80 of the P.R. Act are a real strangle hold. Because, first, Punjab's political fate stands sealed in so far as it will remain perpetually a sub-state with the crucial subjects of water and Hydel power virtually in Central hands and being worked for the benefit of non-riparian states. And, second, because economically, its growth will remain artificially dwarfed, in so far as an unalterable ceiling has been placed on the development, use, and exploitation of Punjab Waters and energy, the key factors for all industrial and agricultural progress. In this context, it would be sheer moonshine for the Government on the one hand, to go on digging the S.Y.L. and the Rajasthan canals and continue the unconstitutional drain and on the other hand to assure the people of the sincerity of the Government in solving the Punjab problem and doing justice to the people of the state. The only hope for the state lies in the Supreme Court accepting the validity of Punjab Termination of Agreements Act of July 12, 2004. It is, as we all know, now being examined by the Supreme Court which is to advise the President of India on its legal status.