SikhSpectrum.com Quarterly Issue No.17, August 2004
Once again the SYL Canal issue is centerstage.
We are publishing some relevant material for the information of SikhSpectrum.com readers. It is extracted from India Commits Suicide by G.S. Dhillon (Singh & Singh Publishers, Chandigarh).--Editors
Water and Hydel Power Issue: Punjab Suba Sabotaged
The water and hydel power issue is the most important, revealing and dismal chapter of the Punjab problem. We have already indicated that water being an inseparable part of the land on which it flows, and territory being an integral component of a state, ‘irrigation' and 'Hydel Power' are state subjects under Item-17 of the State list. Further, under Articles 162 and 246 (3), our constitution gives full and exclusive legislative and executive powers to the states over water and hydel power. Agriculture and industry being currently dependent on irrigation and hydel power, these have been kept purely state subjects in our Constitution and in other countries as well. There is hardly any state which, except Punjab now, does not enjoy final and exclusive power in relation to irrigation and hydel power of its own state rivers. Hence, the introduction of Sections 78 to 80 of the Punjab Reorganization Act -1966, gave all powers to the Centre is ultra vires of the constitution beyond the legislative power of the Parliament and being violstive of the Articles of the Constitution referred above.
In addition, these Sections are violative of the equality article 14 of Constitution because these are discriminatory for the reason that the Act gives exclusive rights of the waters of Jamuna to Haryana, it makes the waters of three exclusively Punjab rivers not only distributable by the Centre but also vests their control with the Central government. Hence, Punjab's stand since 1966 has been that this patently unconstitutional Act either should be revised and the control of Punjab rivers given to Punjab or the issue should be referred to the Constitutional Bench of the Supreme Court to determine the constitutionality of these provisions of Punjab Reorganization Act, 1966.
The seeming excuse of this discrimination and usurpation is that before the Reorganization of Punjab, there was a project called the Beas Project, under which about 0.9MAF waters were supposed to be used in the Haryana area of erstwhile Punjab, whereas the remaining waters of the Punjab rivers were to be utilized in Punjabi Suba and for which channels etc., had also been dug. But since the reorganization took place, and Haryana had become non-riparian vis-à-vis Sutlej, Beas and Ravi, just as Punjab had become non-riparian vis-à-vis Jamuna, the question of giving even this 0.9 MAF to Haryana could not arise and nor could it be made an excuse for introducing the unconstitutional and discriminatory sections 78 to 80 in the Punjab Reorganization Act, 1966. We shall further see how by the introduction of these sections Punjab government has almost completely been excluded from the administration and development of the three Punjab rivers and their hydel power.
Abuse of Sections 78 to 80 Starts
Control of Punjab Rivers Assumed: Before 1966, Punjab
was in complete control of its rivers and the utilization of their
waters and hydel power. The multi-purpose projects in Punjab were controlled by a board. Its Chairman, Secretary, the General Manager and three members were from the Punjab Administration. There were only two members from Rajasthan and one from Himachal Pradesh. This Board and its administration worked under the Punjab Government.2, 1 The entire budget and the administration of the Punjab projects were controlled and approved by the Punjab Government and its legislature. But after 1966, the Centre under Sections 78 and 80 constituted a statutory Board which works under the Central Government. The Chairman, two Working Members and two other members are appointed by the Centre and one member each is taken from Haryana, Punjab, Himachal Pradesh and Rajasthan.
The important fact is that whereas earlier every employee in e multi-purpose projects was an employee of the Punjab Government, hence forward every one has become an employee of the Central Government. In short, the entire control, administration, functioning and development of the Punjab rivers and their hydel power have been taken over completely by the Centre from the Punjab Government.
S.Y.L. and Indira Gandhi Canals: We have indicated above how the Beas Project, in which at a later date only 0.9 MAF was to be given to Haryana area, was made an excuse for
introduction of Sections 78 to 80, giving unlimited powers of control, development and distribution of waters to the Centre. Till 1947 water to Ganganagar area, part of erstwhile Bikaner state of Rajasthan, were being paid for by the Bikaner state to Punjab, the sole owner of the waters of Punjab.
We find that out of 15.2 MAF Punjab river waters, 8MAF remained earmarked for non-riparian Rajasthan, and later actually 8.6 MAF were allowed to it. The net result is that out of 15.2MAF only 3.5 MAF were given to riparian Punjab and the rest were managed to be diverted to non-riparian States. It is significant to note that Rajasthan applied to the Narmada tribunal for water of that river. Its request was rejected outright because Rajasthan was non-riparian in regard to river Narmada. But knowing all this the same government almost gave half of the available waters to non-riparian Rajasthan and only 25% to riparian Punjab.
Judicial Process Thwarted
Case Withdrawn From the Supreme Court
Since the Award of 1976, as indicated above, was highly detrimental to Punjab, in 1978 when the Akali ministry was in power in the state and the Janata Government at the center, it filed a case before the Supreme Court on the constitutionality of Sections 78 to 80 of the Punjab Reorganization Act.
It was obvious that the Sections were ultra vires of the legislative powers of the Parliament and apprehensions of a judicial verdict against Haryana and Rajasthan became evident. In 1980 Indira Gandhi returned to power. At that time there were Congress Ministeries in Punjab, Haryana and Rajasthan. She called the Chief Ministers of the three States and virtually got the allotment under her Award endorsed through an Agreement (1981) among the three States. The allocations made under the Award are as under:
(Government of Punjab, Ravi-Beas Agreement 1981, White Paper (Chandigarh, 1982), Appendiz II.)
There is a public report that the Punjab Chief Minister Darbara Singh was made to sign the above Agreement under the threat of a "gun." It was a report confirmed and reiterated by the correspondent of the Tribune (The Tribune January 1, 3, 4, 5, 1982).
Throughtout the period of dispute the demand of Punjab has been that the issue being purely a constitutional matter, the only right solution could be, and to which no party could have any objection, a judicial verdict of the Supreme Court on the constitutionality of Sections 78 to 80 of the Punjab Reorganization Act. Because the question was not of the distribution of Punjab waters, the real issue was whether a non-riparian state had any right to any portion of the waters of the Punjab rivers.
Here it is pertinent to reiterate that Rajasthan pleaded its case before the Narmada Tribunal. Rajasthan, a non-riparian state, sought waters of Narmada river on the ground that though a non-riparian state vis-à-vis Punjab rivers it had got water from these rivers. The clear verdict in the case was that Rajasthan was non-riparian vis-à-vis Punjab rivers and Narmada, and, as such, it could not get any waters from those rivers as of right (Council of Sikh Affairs (Chandigarh), op. cit., p.7).
Chief Justice Transferred
There is another incident which clearly suggests that the Centre had a conviction that its diversion of waters and hydel power to non-riparian States of Rajasthan, Haryana and Delhi was unconstitutional and untenable. For this reason it was very particular that the issue about the vires of Sections 78 to 80 of the Punjab Reorganization Act was not allowed to be adjudicated upon by the Supreme Court.
In 1983, a farmers organization from Punjab filed a writ in the Punjab and Haryana High Court on the ground of unconstitutionality of Sections 78 to 80 of the Punjab Reorganization Act of 1966 and the diversion of Punjab waters, which were badly needed in the State, to non-riparian States. After some preliminary argument, Chief Justice S.S. Sandhanwalia constituted a full bench with himself as a Presiding Judge. He announced the order on the last working day of the week and fixed the case for hearing on the following Monday (25.11.1983). But before the hearing of the case could start, in the intervening holidays two things happened. Chief Justice Sandhanwalia was transferred from Punjab and Haryana High Court to Patna High Court (The Tribune, Nov. 30, dec. 1, 2, 1983; The Indian Express, Nov. 26, 27, 1983)).
Second the Attorney-General made an oral application to the Supreme Court that the case was of importance and should be transferred from the file of the Punjab and Haryana High Court to that of the Supreme Court. The request was granted and the case was transferred to the Supreme Court where it continued pending without any decision. This shows how reluctant the Central Government is to follow the constitutional course which otherwise is the only right solution of the issue about the water and the hydel power dispute.
The point of constitutional importance is that land and water being an integral component of a State, territorial jurisdiction over them can neither be transferred or sold, because the transfer of water rights means the transfer of the land and the territorial rights thereof. Such a contradiction about the transfer or sale of water is thus a constitutional impossibility.
Trap of Tribunal Adopted
Another point is that whereas insistent Sikh demand has been for the judicial verdict of the Supreme Court, the Center has persistently declined to follow that simple course. The suggestion of the Center has been that the issue be placed before the Government appointed tribunal under the Inter-State Water Disputes Act. The evident object of this suggestion was two fold, first, the tribunal cannot give verdict on the constitutionality of the Sections 78 to 80 of the Punjab Reorganization Act, and, second, that once the tribunal gives a verdict, the issue cannot, thereafter, be placed before the Supreme Court for its judicial verdict. Thus, the Government suggestion for a tribunal, was just a method to avoid permanently the constitutional verdict of the Supreme Court.
One of the chief objections to a reference to the tribunal was that Punjab rivers were not inter-state rivers and under Inter-State Water Disputes Act only a dispute concerning an inter-state river could be entertained by a tribunal. Hence, a reference to the tribunal, was not only legally uncalled for, but was considered a trap. And, in 1985, under an Agreement (Accord), instead of following the constitutional course, a reference to the Tribunal was made. The Center succeeded in having the verdict of a Government appointed Tribunal, even though it knew that Rajasthan, on its own admission, was non-riparian vis-à-vis Punjab rivers and the dispute did not relate to the waters of any inter-state river. The Tribunal virtually endorsed indira Gandhi’s Award and made the following allotments:
(Amarinder Singh, Rivers Issue: Beyond Eradi Report, The Tribune, June 26, 1987.)
Actually the waters for distribution remain, as earlier assessed, only at 15.2 MAF and the present assessment of 18.28MAF is the result of technical juggleries. Thus the Government appointed Tribunal has allocated to non-riparian States about seventy-five percent of the waters of the Punjab rivers that stood unutilized in the Indian Punjab in 1947, and are essentially required in the State.
Water Requirements of Punjab
The Punjab Suba has an area of 105 lac acres (lac=100,000). According to the experts of Punjab Agriculture University and official estimates, about 5 to 6 acre feet of water are required annually to mature an acre plot for the normal paddy-wheat rotation. As such, a minimum annual requirement of the total cultivable land comes to 52.5MAF. The Punjab rivers have a total water flow of 32.5 MAF of which about 10MAF were used in Punjabi Suba at the time of partition. Of the remaining about 22MAF hardly about 5MAF have been allotted to Punjab under the Central powers of distribution. The rest of the water, without reference to the Constitutional issue, has been allotted to the non-riparian Haryana, Rajasthan, and Delhi to be used in the Yamuna basin and the Rajasthan desert outside the basin of Ravi, Beas and Sutlej.
Whereas Punjab needs every drop of 32.5MAF of its waters, it has been deprived of most of its available waters by diversion to the non-riparian States. The present situation is that out of 105 lac acres of cultivable land, only about 37 lac acres are irrigated by canals while the rest 55 lac acres are irrigated by private tube wells. The cost for private irrigation runs 3 to 4 times more than the cost of canal irrigation. Diesel irrigation is 10 to 12 times more.
But the most significant and real danger to Punjab irrigation is the feared fate of tubewell irrigation. At present, each year over 8 lac tubewells are over-drawing sub-soil water, with the result that sub-soil water table has gone down from 3 to 10 feet in different parts of the State. The result is that most of the 118 community blocks in the State have been declared unsuitable for further irrigation. Experts have already given the warning that it will not take long to make most of our tubewell irrigated land barren. And the irony is that all this is happening under the powers of irrigation and hydel, unconstitutionally assumed by the Centre over the Punjab rivers.
