SikhSpectrum.com Quarterly Issue No.17, August 2004
Punjab must protect its interests Tribune, 22 July 2004
When I took over as Legal Remembrancer and Secretary to Punjab Government, Legal Affairs, in April 1980, a Punjab suit challenging the validity of the water sharing agreement of 1976 among Punjab, Haryana and Rajasthan was pending in the Supreme Court. I was present when a three-Judge Bench, after hearing the arguments, had referred the matter to the River Water Tribunal as the dispute was basically about the riparian rights of three states.
The then Prime Minister, Indira Gandhi, who was losing the Hindu vote in the north, was out to please Rajasthan before the Lok Sabha elections. She ordered a canal to be dug up to Rajasthan before elections. She was not bothered how much water, taken from Punjab following the 1976 agreement, was wasted in Rajasthan. According to Mr Balram Jakhar’s report, some villages on the banks of the canal sunk because of seepage. But Mrs Gandhi achieved her objective and won the elections.
Subsequently, Mrs Gandhi prevailed upon Chief Minister Darbara Singh to withdraw the case from the Supreme Court. I accompanied Darbara Singh to plead Punjab’s case with the then Law Minister P. Shiv Shankar. After hearing us for three hours, he said that we should do what Mrs Gandhi wanted. The case was withdrawn.
Mrs Gandhi, without bothering about the water flowing in the two rivers for 20 years, arbitrarily picked up the highest flow in a single year and made it a basis of the fresh formula by which the share of each state was determined. She forced Darbara Singh to agree to the new proposal. That is how the agreement of Dec 31, 1981 was got signed by him. It is that agreement, biased and one-sided, which the Punjab Assembly had annulled on July 12, 2004, to safeguard the interests of millions of farmers of Punjab.
Settle the riparian rights first Tribune, 21 July 2004
The national ruckus over Punjab’s river waters is a classic instance of the manner in which issues that demand dispassionate debate are allowed to become hostage to the blinding heat of political and emotive jargon.
The Constitution clearly puts river waters in the state list with no role or authority for the Centre to intervene or adjudicate on any inter-state dispute over the issue. The Centre comes into the picture only where two riparian states jointly seek its intervention. Clause 78 inserted in the Punjab Re-Organisation Act, 1966, empowering the Centre to adjudicate between Punjab and Haryana is thus ultra vires the Constitution, said Parkash Singh Badal in a case filed by him in the Supreme Court as Chief Minister in 1980. Congress Chief Minister Darbara Singh later withdrew the case, in the wake of a widely publicized rebuke and pressure from the then Prime Minister, Indira Gandhi.
In the present debate, neither Rajasthan nor Haryana is a riparian state to the Satluj, Ravi and Beas rivers as none of these flows through either of the two states. As such, it is not hard to see that the awards, agreements or orders contrary to this principle are bad in law and worse in politics as these deny the genuine first user, Punjab, its natural right over its natural asset. If the riparian principle is to violated, then nothing can stop Punjab from demanding a share in the Narmada or Cauvery, or the closer to home Yamuna. Punjab’s protests against this natural injustice have been dubbed “seditious”. Punjab has precedents on its side.
Mahanadi, Godawari, Krishna and Cauvery were the four rivers of the undivided state of Madras. Andhra was carved out of Madras in 1953, and as Mahanadi, Godawari and Krishna fell in the Andhra region, Madras, now Tamil Nadu, ceased to be a riparian state and consequently was denied any right over the waters of these rivers. By the same logic, Andhra ceased to have any riparian right over Cauvery which flowed through Tamil Nadu.
Again, in 1974, the Narmada Water Dispute Tribunal outrightly rejected Rajasthan’s petition to be made a party along with Maharashtra and Madhya Pradesh. The Tribunal’s only ground for this decision: Narmada did not flow through Rajasthan. The enormity of Punjab’s grievance flows from the fact that the same non-riparian Rajasthan walks away with nearly 8 Million Acre Feet (MAF) of water while Punjab through which the rivers flow gets a meager 3.5 MAF.
There are more precedents to support the new Punjab Act. In 1873, the erstwhile princely states of Patiala, Nabha and Jind were given water from the Satluj only after these states recognized Punjab as “the sole owner of the Satluj waters” and paid segniorage (malkana) to Punjab for the water used. These states categorically thanked Punjab for “its favour.” Precisely this has been written into the Punjab Termination of Agreements Act, 2004. It replaces the words “favour” with “good neighbourly gesture.” Much the same way, in 1873, the Maharaja of Bikaner received water from the Punjab rivers, categorically recognizing Punjab’s sovereignty over its waters and agreeing to pay royalty in accordance with the Riparian principle.
Thus it is somewhat odd to see even legal experts and media luminaries dubbing Punjab’s insistence on the riparian principle and the Punjab Assembly’s Termination of Agreements Act 2004 “preposterous.” If anything, the Act has come two decades too late. Had this come earlier, the nation could have been spared the horrors of a bloody Punjab in the 1980s and 90s.
The plea that no party can withdraw from an agreement unilaterally is only as valid as that an agreement can continue to be valid at the unilateral will of one party. In the present case, the agreements violated national laws on contracts, which presuppose “consideration” in lieu of anything given away by one party in any agreement. Punjab never received any consideration in lieu of the water given. The fact is that the agreements and orders on Punjab exist in violation of the Indian Contracts Act and the riparian principle and without the constitutionally necessary gubernatorial assent. The miracle is that they have stood there for so long.
There is a view that Rajasthan has a right over these waters because the irrigation requirements of this state were factored into the case presented by India before the world body while determining the division of waters in the Indo-Pak Treaty. To begin with, this factoring was based on patently incompetent assessment of the future usage in Punjab where the water table has been going down by roughly two feet every year, threatening to turn the state into a desert by 2015-20. Further, does the Indo-Pak Treaty make it obligatory for India to violate the riparian principle while solving its internal river water disputes?
Certain water management experts have been spreading the impression that Punjab needs superior water management and not more water. They quote data which sublimely ignore the depredation of Punjab’s water resource through an unparalleled density of tubewell irrigation, the highest in the country, and the need to replenish its water table through a resort to canal irrigation.
Punjab’s inflammable waters demand a cool, impartial view and the only course open before the country is for the Supreme Court to settle the question of riparian rights once and for all. Ordering a canal to be built and at the same time decreeing that this order has nothing to do with the actual water to pass through it is, to say the very least, putting the cart before the horse.
