Balbir Singh Sooch

On July 18, 2004, NDTV-India interviewed Chief Minister of Punjab Capt. Amarinder Singh. Earlier (July 13, 2004) a special session of the Punjab Vidhan Sabha unanimously passed the Punjab Termination of Agreements Bill, 2004. Capt. Amarinder Singh is legally, socially and morally competent to have got this Bill passed and through it check at least a part of injustice being done to Punjab due to political reasons since long.

This injustice was perpetrated to provoke and eliminate Sikhs, and to weaken Punjab at the instance of Delhi darbar through planted Sikh leadership. And this planned injustice remains in action and the same should not continue hereafter. All the past Ravi-Beas river water agreements were pushed through by non-competent people without the consent of the people of Punjab and legal considerations.

The Constitution of India has given the power to every State to legislate, and the function of the courts is to interpret the same. Moreover river water is a State subject. The state of Punjab has the right to defend its citizens by all means. The law provides for it. This opinion is already given by legal experts in support of the legislation passed by the Punjab State Assembly unanimously which annuls the agreements with Haryana and Rajasthan on sharing the waters of the rivers Ravi and Beas.

Hon’ble Chief Minister Captain Amarinder Singh’s action to get annulled the agreements with Haryana and Rajasthan on sharing the waters of the Ravi-Beas and enacting this law is courageous, historical and an eye opener in all respects for the Indian State.

For India a true federal structure is the only solution to undo this injustice. I hope that better sense will prevail in political circles to understand Captain Amarinder Singh’s action legally, socially and morally to bring a lasting solution to Punjab. All states in India should be allowed to function independently without much interference from Delhi darbar.

Herewith I enclose the views of S. Avtar Singh Gill, (Advocate) Additional District and Sessions Judge (Retired).

What a predicament that has been constantly staring the present Punjab Government as well as the Central Government, after the June 4, 2004, Supreme Court judgment on the issue of construction of the Sutlej-Yamuna Link Canal.

Punjab has been fighting, both politically and legally, for its valuable rights to the free use of water from the Ravi-Beas rivers. Since long, there has been a complete deadlock on the issue and negotiations appeared pointless, as neither Punjab nor Haryana was in a mood to yield ground. Captain Amarinder Singh, Chief Minister of Punjab, rightly and timely took the stand that with the states concerned hardening their position, it was not possible to sit across the table and reach an amicable solution. Fortunately, the politicians in Punjab have closed ranks on the subject in public interest and to protect the rights of Punjab over its river waters.

By passing the Punjab Termination of Agreements Act 2004, all agreements relating to Ravi-Beas water sharing, have been annulled, some 48 hours before the deadline for Punjab to hand over SYL Canal construction records to Central Public Works Department (CPWD) as per the Supreme Court June 4 judgement. It is remarkable that, despite provocations, Punjab has chosen the legal option, without defying the Supreme Court.

I gather the impression that the Punjab Government is sure of the safety of their rights, on the ground that a non-riparian state cannot claim right to water of a riparian State. I have been hearing about the various legal points raised, discussed and dismissed from time to time, but have never heard about raising the basic legal objections to the 1981 Agreement to get out of this nightmare, perhaps more easily, surely and early, of course, without playing to the gallery. As such, to my mind, it needed no extra acumen to the legal luminaries to cut at the very root of the agreement which has resulted in loss of thousands of valuable lives, breaking hundreds of families to pieces, spending or wasting hundreds of crores (crore = 10 million) of rupees each month for years together, either fighting or promoting militancy, besides of course threatening the very unity and integrity of the country.

In my view, the State government should also consider the provisions of the Contract Act 1872 which applying, in terms, to all contracts including those in respect of land and water, and the Indian courts cannot, therefore, even where the result might appear hard, apply to such contracts foreign rules of law or equity, modifying in any way, to any extent and on any pretext the express terms of the Indian Statute. This is our plus point and I believe firmly in this respect.

Section 10 of the Contract Act expressly provides that all Agreements are contracts only if they are made

i. by the free consent of the parties;

ii. by the parties competent to contract;

iii. for a lawful consideration; and

iv. are not expressly declared to be void.

Naturally, the first question to ask is who authorized the then Chief Ministers of Punjab, Haryana and Rajasthan to enter into the 1981 Agreement, how and when? Second, whether the then Chief Ministers had got the mandate from the Vidhan Sabha concerned or any prior cabinet approval or other authority to that effect, as per the provisions of the Constitution.

The next important question is what was the consideration for entering into the agreement. Consideration is what a party gets in return for what it gives to the other party under the contract. (See 1974 Bombay Law Reporter 156). It also means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor or the transferee. Illustration (a) under Section 25 of the Contract Act says–

‘A promises for no consideration to give B Rupees one thousand is a void agreement, not enforceable at law. The Illustration (d) say- A supports B’s infant son. B promises to pay A’s expenses in doing so. This is a contract. Then a meritorious and a gratuitous consideration such as natural love and affection, or obedience and submission by way of respect cannot be a good consideration or valuable consideration (See AIR 1979 Supreme Court 843). Hence, a consideration must be valuable and not superficial; it must be material and not sentimental or imaginary. It must be a material detriment to the promisee or a benefit to the promisor (See 1977 Rajdhani Law Reporter 26)’.

Similarly, explanation 2 to Section 25 of the Act imposes a duty on the Court to find out the adequacy or inadequacy of the consideration. So what did Punjab get against the supply of crores worth of water under the Agreement each year? People do not feel shy to say: beating and thrashing from the Haryana in 1982 and after, and a legal bar of Punjabis hence forth acquiring property in Rajasthan and to keep quite for decades.

The third question relates to free consent of the parties to the Agreement. Free consent is defined in Section 14 of the Act and it is expressly provided that the consent is said to be so caused when it would not have been given but for the existence of coercion, undue influence, fraud, misrepresentation or mistake as defined under Section 15 to 18 and 20 to 22 of the Act. Was the consent given or taken which may be regarded as an act of reason accompanied with deliberations of a mind which knew right or wrong, good and evil, and also rights and obligations of the parties involved in the commission of the act? If consent is obtained under duress, whether the duress is physical or moral, is not free.

It is common belief that, for sheer political gains, the then Punjab Chief Minister had played the role in bringing about the 1981 Agreement and the allegations were of exercise of undue influence on him through the then Prime Minister to agree to the terms thereof. Influence is deemed “undue” when a person, in a dominant position uses that position to obtain unfair advantage for himself at the cost of a person relying upon his authority or aid (See AIR 1961 Allahabad 295) or securing such advantage for one of the parties to the agreement to the disadvantage of the other. “Arm Twisting” need not be physical. Also, the pleas of undue influence etc. could not be raised by third party like Punjab farmers who are the real victims of the political jugglery and criminal apathy of the successive Governments.

So, in my opinion, all such aspects need thorough probe, with open mind at this stage when the Punjab Government has successfully knocked out the premises of the said contractual obligation on which the Supreme Court ruling hinges, by passing the Punjab Act of 2004 with unprecedented unanimous voice of the people. Rightly, these pleas can be appropriately raised by the executant of the document or its representative (and not by the third party) if and when the matter is raised before the Competent Court.

Whether the Punjab Government has committed the contempt of the Supreme Court, by annulling the 1981 Agreement is now much talked about in political circles. Article 141 of the Constitution do provide constitutional sanction to the binding nature of the judgments passed by the Supreme Court but it does not mean that the law once declared by the Supreme Court cannot be altered by competent Legislature. Principles declared by the highest court of the land can only be displaced by legislation. So much so, this Article does not take away the power of the Parliament to amend the Constitution itself.

When the Legislature of a State annuls the law declared by the Supreme Court, it performs a function assigned to it by the Constitution and does not encroach in any way upon Article 141 or any other provisions of the Constitution (See AIR 1969 Allahabad 594 F.B.). The Punjab Assembly has an absolute and inviolable sovereignty to legislate upon matters placed in the State list in the Constitution. The Punjab Legislature has, therefore, annulled the Agreement which, being a sovereign body to legislate within the four corners of the Constitution it is competent to do so.

Why then lose tempers, ring false alarm bells, provoke and invite chaotic conditions, and go outside the domain of established law?


Copyright ©2004 Balbir Singh Sooch. About the author