Punjab’s Rivers of Sorrow
One Country – Two Laws
One country, two laws, applied selectively! Preposterous as it might sound, such is the position as it relates to riparian laws in India.
These apply to Andhra Pradesh and Tamil Nadu in relation to rivers of the erstwhile state of Madras. Riparian laws also apply to Rajasthan when related to waters of Narmada, but not so in the case of waters of Punjab rivers. Similarly, these laws do not apply to Haryana as far as waters of Punjab rivers go, but are applied to Punjab in relation to waters of the Jamuna.
The riparian principle confers on a state, complete and unfettered rights over the waters of the rivers flowing through it, just as it is vulnerable to floods and land erosion. When dealing with the issue of riparian rights in a federation, the state units have to be treated like sovereign states.
The sovereignty in the Austinian sense is vested in the constitution of a federal country and powers for the exercise and discharge of those functions have been appropriately distributed between the union and the states. Riparian law doctrine has operated right through history, including in ancient Roman law. The universally accepted principle of riparian rights was reiterated in Entry 19 of V11 Schedule (Provincial Legislative List) of the Government of India Act, 1935.
In 1868, waters of Punjab rivers were made available to the states of Patiala, Nabha etc as a matter of favour, because these states had no riparian rights, and also levied ‘signiorage charge’ (royalty). Similarly in 1920, Bikaner state too, with no riparian rights over the Punjab rivers, had to pay royalty for the waters supplied through the Gang canal from Hussainiwala.
After Independence, the aforesaid entry 19 of the Government of India act 1935 was incorporated as Entry 17 of list II of the Seventh Schedule in the Indian constitution. The Indian Constitution provides for legislation and or adjudication of any complaint or dispute between riparian states, only in the case of inter-state rivers, but gives it no authority whatever in respect to intra-state rivers.
The JPC, while in the process of drafting the Constitution observed, “ The effect of this is to give each Province complete powers over water supplies within the Province without any regard whatever to the interests of neighbouring Provinces” So much so that the Constitution of India places the river water issues outside the purview of courts.
Prof Oppenheim, a leading authority on the subject, states that, ‘theory and practice agree upon the rule that rivers are part of the territory of riparian states.’ The dispute regarding sharing of waters can only be between riparian states and not between riparian and non-riparian states. According to Prof Stark, the riparian principle stands embodied in International Laws and National Laws including the common law of England. Helsinki rules of Inter-State water allocation laid down by International Law Association during its 52nd conference at Helsinki in 1966, reinforced the riparian principle.
Ironically in the same year (01.11.1966), the Indian government through the Punjab Reorganisation Act 1966, Sections 78, 79 and 80, trampled on the unalienable constitutional rights of Punjab over its rivers. Sections 78-80 are vires of the Constitution of India. This Act also inumbrates the federal structure of the country.
On partition of the country, J and K, Himachal Pradesh and Punjab (which included present-day Haryana) became the upper riparian states to the Indus, Jehlum, Chenab, Ravi, Beas and Satluj rivers and had full riparian rights over these rivers. Yet, in the Indus Water Treaty of 1960 with Pakistan, brokered through the good offices of the World Bank, India failed to present its case adequately, and consequently could get just over 19 percent of the waters of these rivers, that too by including 8 MAF for Rajasthan, with little less than 81 percent going to Pakistan.
Quite clearly the water needs of the State of Punjab (which included Haryana and parts of present day Himachal Pradesh) were grossly under assessed. It is apparent from the fact that this quantity of water is not enough even for the state of Punjab. (excluding Haryana.) Rajasthan being non riparian to these rivers had no right on the waters of these rivers and the requirement of 8 MAF noted against it, was perhaps never taken into account in negotiating Indus Water Treaty.
World Bank experts pointed out that economical use of water was not possible in Rajasthan due to its soil composition and the same quantity of water could be put to much better use in Punjab. Not only was this Treaty poorly negotiated in relation to allocation of waters, Pakistan was able to place some serious restrictions on India in the use of waters of Indus, Jehlum and Chanab, even for power generation and storage.
Prior to the Reorganization Act, 1966, Punjab (which included Haryana) had riparian rights over the three rivers namely Ravi, Beas, Satluj, as well as Jamuna. On reorganization, Haryana became riparian, only to Jamuna, while Punjab remained riparian to the other three rivers. In the current allocation, Haryana gets waters of not only Jamuna, but also those of the three rivers of Punjab, though it is non riparian to these rivers, whereas Punjab does not get any water from Jamuna, because it is non riparian to that river. Who can miss the incongruity, injustice and inequity in this dispensation!
Further mischief was created through the myth of, ‘surplus waters of Ravi and Beas ’ where there were none. The claim that 9,939 Sq Kms area of Haryana falls in the Punjab rivers basin remains unsubstantiated even after nearly four decades.
The waters of Ravi, Beas and Satluj are inadequate to meet the requirements of Punjab. That is the reason for Punjab to have dug nearly a million tube wells, half of these operated by diesel, drawing sub-soil water, and that still leaves 20 lakh acres of land without any means of irrigation.
In this land of freedom lovers, the only people who opposed the imposition of emergency were the farmers of Punjab, under the aegis of the Akali Party. The Akali Government also filed a suit in the Supreme Court challenging the allocation of waters of Punjab rivers to non riparian states and the vires of the Punjab Reorganisation Act 1966. Over a hundred thousand Punjab farmers courted arrest in protest against the emergency; with twice that number on the waiting list.
When the authors of emergency came back to power, the Akali Government was dismissed and the Punjab farmers had to be punished for daring to oppose the emergency. What better way can there be to punish farmers than to take away their water!
The Agreement (distribution of waters of Punjab rivers) of 31 December 1981, was hammered out by Indira Gandhi, revising allocation of waters, based on the year of highest flow in the series from the years 1921-1960. This gave 3.5 MAF to Haryana. 8.60 MAF to Rajasthan, 4.22 MAF to Punjab, 0.2 MAF to Delhi and 0.65 MAF to J and K, while the actual availability of waters in the Punjab rivers was much less.
At the same time, the Congress government in Punjab was made to withdraw the State’s case pending before the Supreme Court to annul Sections 78-80 of the Re-organisation Act 1966, thereby paving the way for illegally and unconstitutionally allotting Punjab river waters to non riparian states.
The Agreement of December 31, 1981 is seriously flawed. It was drawn to the total disadvantage of Punjab and without the recipient states paying any ‘consideration’ for the waters taken away from Punjab under threat and duress; there being witnesses to the threats and pressures. In a democratic polity, the Chief Minister of a province cannot sign away the very future of the people of the province without ratification of the said agreement by the State Assembly.
Further, the Chief Minister of Rajasthan had nothing to do with the divisions of assets and liabilities of the state of Punjab, in pursuant to the provisions of the Punjab Reorganisation Act 1966. This further casts doubts on the validity of the Agreement.
Consider this, water being the very life blood of the farmers of Punjab, a Farmers Organisation in Punjab, filed a writ in the Punjab and Haryana High Court on the grounds that sections 78,79 and 80 of the Punjab Re-organisation Act 1966, was unconstitutional, and should be struck down.
After preliminary arguments, Chief Justice SS Sandhawalia constituted a full bench with himself as the presiding judge. He announced his order on the last working day of the week and fixed the date of hearing on the following Monday ( 25.11.83) In the intervening two days, two things happened.
One, chief justice Sandhawalia was posted to Patna High Court.
Two, the attorney General made an oral Application to the Supreme Court that the case was important and should be transferred to the Supreme Court, where it rests in peace.
There followed a virulent agitation in Punjab against the December 31, 1981 Agreement resulting in the Rajiv-Longowal Accord, (Punjab Settlement-July, 1985) which superseded the December 31 agreement. Section 14 of Rajiv–Longowal Accord was an addition to the inter-state River Water Dispute Act, 1956, which provided for a tribunal for verification and adjudication of matters referred to as per paragraph 9.1 and 9.2 respectively of the Punjab Settlement Accord. Paragraph 9.1 of this Accord specifically laid down that farmers of Punjab, Rajasthan and Haryana will continue to get water not less than what they were using from Ravi-Beas system as on 1.7.1985.
The usage of water as on that date was reckoned as 9.6 MAF for Punjab, which never figured in the subsequent considerations. Of all the sections of the Rajiv-Longowal Accord, only those few related to the river water issue were taken up, and others simply ignored.
If the present distribution of waters is accepted, then 9 lakh acres of land in Punjab will become barren and 1.5 million families rendered destitute. The water table in Punjab has been falling at an alarming rate and if this depletion of ground water is to continue due to lack of availability of waters of its own rivers, then the better part of Punjab will turn into desert, sooner rather than later. Punjab ushered in the Green revolution, made the country food surplus and provided food security to the nation. 90 percent of the food grains produced by the Punjab farmers are sent to other states.
Much of the folklore, culture, history, tales of great love stories and the very sustenance of the people of Punjab is intwined with these rivers. Through the centuries, their waters have brought much joy and happiness to the people of this land. Now these very rivers have been made a bone of contention between the people of different states and turned them into rivers of sorrow for the people of Punjab. Punjab is the granary of India and its own minimum requirement of water must be met first, and if there are any waters to spare, then these are there for the other states to take.
Punjab has been grossly wronged and dealt an unfair hand. The state has a case and must be heard. It asks for nothing other than justice and fair play, and what is its lawful right as spelled out in the Indian Constitution.
(Lt General Harwant Singh is retired from the Indian Army)
(Cover Photograph: 2016 when Congress legislators led by Amarinder Singh submitted their resignations to protest Supreme Court ruling on Sutlej. Now Singh is CM of Punjab)