LT GEN HARWANT SINGH (RETD) | 13 SEPTEMBER, 2018
Punjab's Case for Water Must Be Heard
One country, two sets of riparian laws
One country, two laws, applied selectively! Preposterous as it might sound, such is the position of riparian laws in India.
These apply to Andhra Pradesh and Tamil Nadu in relation to rivers of the erstwhile state of Madras, and also apply to Rajasthan in relation to the waters of the Narmada, but not so in the case of Punjab's rivers. Similarly, these laws do not apply to Haryana as far as the waters of Punjab rivers go, but are applied to Punjab in relation to Jamuna waters.
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.
This 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 the Seventh Schedule (Provincial Legislative List) of the Government of India Act, 1935.
In 1868 the 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, with the levying of a ‘seigniorage charge’ (royalty). Similarly in 1920, Bikaner state too, with no riparian rights over the Punjab rivers, had to pay royalty for waters supplied through the Gang canal from Hussainiwala Headworks.
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 arising between riparian states, but only in the case of interstate rivers. It has no authority whatever in respect to intrastate rivers.
The Joint Parliamentary Committee 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 river water issues outside the purview of courts.
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.’ Disputes regarding the sharing of waters can only be between riparian states, not between riparian and non-riparian states. And according to Stark, the riparian principle stands embodied in international law and national laws including the common law of England. The Helsinki Rules of interstate water allocation laid down by the International Law Association at its 52nd conference in Helsinki in 1966, reinforced the riparian principle.
Ironically, in November of the same year, 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 outside the powers of the Constitution of India. The Act also casts a shadow over the federal structure of the country.
Upon partition of the country, Jammu and Kashmir, 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 adequately present its case. It could get only about 19 percent of the waters of these rivers, that too by including 8 million acre feet (MAF) for Rajasthan, with the remaining 81 percent going to Pakistan.
Quite clearly the water needs of the state of Punjab (which till 1966 included Haryana and till 1952 parts of present day Himachal Pradesh) were grossly underassessed. This quantity of water is not enough even for present-day Punjab state. Rajasthan being non-riparian to these rivers had no rights over the waters of these rivers and the requirement of 8 MAF noted against it, was perhaps never taken into account in negotiating the 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 Indus, Jehlum and Chanab waters, even for power generation and storage.
The Indus Water Treaty greatly disadvantaged not only Punjab but equally the Ladakh region. A number of valleys in Ladakh, with vast stretches of virgin land with potential for irrigation, were denied the waters of the Indus and its tributaries which run through these valleys. They could have been used to build minor irrigation projects with facilities to provide water for irrigation and produce electricity to meet requirements of the local population.
While India had the first right on the waters of these rivers, the Treaty allotted 0ver 80 percent of waters of these rivers to Pakistan with less that 20 percent to India, though the areas related to distribution of water (river basins) were 65 percent in Pakistan and 35 percent in India. The distribution of waters should have been based on these percentages. That apart, India was made to give money to Pakistan for digging new canals and additional water for the next ten years. Pandit Nehru along with his team of ‘experts’ cast away these simple features of Indian requirements and legal claims, and signed the Indus Water Treaty along with some additional largesse in 1960 in Karachi, to Pakistan’s great advantage.
Prior to the Reorganisation Act, 1966, Punjab including Haryana had riparian rights over the three rivers, namely Ravi, Beas and Satluj, as well as the Jamuna. Upon reorganisation, Haryana became riparian, but only to the Jamuna, while Punjab remained riparian to the other three rivers. In the current allocation, Haryana gets waters of not only the Jamuna but also those of the three rivers of Punjab, although it is non-riparian to these rivers. At the same time Punjab does not get any water from Jamuna, because it is non-riparian to that river. Who could 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 square kilometres of Haryana fall in the Punjab rivers basin remains unsubstantiated even after nearly four decades.
The waters of Ravi, Beas and Satluj are inadequate to meet Punjab's requirements. This is the reason Punjab has had to dig nearly a million tubewells, half of them operated by diesel, to draw subsoil water, which still leaves 20 lakh acres of land without any means of irrigation.
In this land of freedom lovers, perhaps 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 powers of the Punjab Reorganisation Act. 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 the Emergency came back to power the Akali government was dismissed and Punjab's farmers had to be punished for daring to oppose it. What better way 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 the allocation of waters, based on the year of highest flow 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 Jammu and Kashmir, while the actual availability of waters in the Punjab rivers was much less.
This Agreement 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, pursuant to the provisions of the Punjab Reorganisation Act 1966. This casts further doubts on the validity of the Agreement.
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 Reorganisation Act of 1966, paving the way for illegally and unconstitutionally allotting Punjab river waters to non-riparian states.
Water being the very lifeblood of farmers, 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 Reorganization Act were unconstitutional, and should be struck down. After preliminary arguments, Chief Justice S.S. 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 (November 25, 1983).
In the intervening two days, two things happened.
One, Chief Justice Sandhawalia was posted to the 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 still rests in peace.
There followed a virulent agitation in Punjab against the December 31, 1985 Agreement, resulting in the Rajiv–Longowal Accord (Punjab Settlement of July 1985) which superseded the December 31 agreement. Section 14 of the Rajiv–Longowal Accord was an addition to the interstate River Water Dispute Act, 1956, which provided for a tribunal for the verification and adjudication of matters referred to in 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 would continue to get water not less than what they were using from Ravi-Beas system as on July 1, 1985.
The water use 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 the few relating 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 the depletion of ground water continues due to the 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 and the very sustenance of the people of Punjab is twined 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 the bone of contention between people of different states and turned 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. 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 its lawful right as spelled out in the Indian Constitution and international riparian laws.