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In Defence of Punjab

Harwant Singh is a former lieutenant-general and deputy chief of army staff (D.C.O.A.S.) of the Indian Army and a recipient of the P.V.S.M. and A.V.S.M. gallantry awards. He resides at 1709, Sector 33-D, Chandigarh, Punjab, India.

Note: "In the early 1940s, when the question arose as to what is the law to govern the sharing of trans-boundary waters in India, the Indus Commission, after discussing the Harmon doctrine, which enabled the upper riparians to fully control all waters within its territory and the Riparian theory, which on the other hand benefited lower riparians by ensuring uninterrupted natural flow of water, ruled that the rule of equitable apportionment recognized by the Supreme Court of the United States of America, beginning from Kansas v. Colorado [1907] is the law."

"Since then, this law with some local modifications having regard to the conditions, has become a common law on trans-boundary waters in India. The tribunals appointed to resolve Krishna, Godavari, Narmada and Ravi & Beas inter-State water disputes have reiterated the position that the rule of equitable apportionment is the governing principle in the allocation of trans-boundary waters in India. The Supreme Court of India, while dealing with the ordinance passed by the Government of Karnataka in 1991, has finally set at rest the doubts by accepting the rule of equitable apportionment as 'true legal position about the inter-State river water and the rights of the riparian States.' "

-- Extract from a paper presented by Mohan V. Katarki, advocate at The Supreme Court of India in New Delhi, on November 6, 2002 at the International Conference conducted by the Natural Resources Law Center, University of Colorado Law School, Boulder, U.S.A., Cite as: (2003) 2 S.C.C. (Jour) 29

The Hindustan Times, Aug. 2, 2004

Photo: Sutlej Yamuna Canal (S.Y.L.)

Scanning newspapers recently, one couldn't help but get the impression that Punjab is part of another country. But Punjab is no less concerned than any other state in safeguarding national interests. It is equally possible that Punjab has a case in the river waters dispute.

Any agreement, if drawn to the total disadvantage of one of the parties, that too under threat or duress, can't find favour in law, or provide an amicable solution. The agreement between the Punjab, Haryana and Rajasthan C.M.s [chief ministers], brokered by Indira Gandhi on December 31, 1981, is such an agreement. The then Punjab C.M. was commandeered to put his signature on the dotted line under duress, to the disadvantage of his people.

It is this patently one-sided agreement that the Punjab assembly, acting within its constitutional rights and through the unanimous resolution of July 12, 2004, terminated. The J.P.C. [Joint Parliament Committee] which drafted the Constitution, in its report on settlement on inter-state water disputes, recorded, 'The effect is to give each province complete powers over water supplies within the province without any regard whatsoever to the interest of neighbouring provinces.' It is this constitutional provision which was undone vide Sections 78, 79 and 80 of the Punjab Reorganisation Act, 1966.

While a number of other states were reorganised, no such unconstitutional provision relating to distribution of river waters was introduced. On the reorganisation of the state of Madras, Andhra became non-riparian to Cauvery and, thus, could not lay any claim to its waters. Similarly, Tamil Nadu ceased to have riparian rights over the Mahanadi, Godavari and the Krishna. Rajasthan's claim over the Narmada, too, was rejected. So why is there one set of laws for Punjab and another for Andhra, Tamil Nadu and Rajasthan?

The Indus Water Treaty of 1960 was badly negotiated, with India getting only 19 per cent of the waters of the Indus river system. India got rights to the waters of the Ravi, Beas and Sutlej. At the time, the requirement of Punjab (including Haryana) was under-assessed and an inflated figure of 8 M.A.F. [million acre feet] was pitched against Rajasthan, though this projection by itself gives no legal rights to the state. All the three rivers flow through Himachal Pradesh and Punjab, and confer on them full riparian rights. They don't touch Haryana and Rajasthan, nor do these states fall within their basins. They are, therefore, non-riparian states.

Prior to the Reorganisation Act, 1966, Punjab (Punjab and Haryana) had riparian rights over the rivers of Punjab and the Yamuna. On reorganisation, Haryana was given rights over the Ravi, Beas and Sutlej, though it has no riparian rights. But Punjab has no right over the Yamuna, whereas Haryana exercises its earlier rights over this river. Here again, we have two sets of laws in operation.

The Reorganisation Act provides for division of assets and liabilities between Punjab and Haryana in the ratio of 54.84 and 37.78. What is the rationale behind allotting 3.5 M.A.F. to Haryana, when Punjab too gets the same M.A.F. from the Ravi-Beas and none from the Yamuna?

The Centre, invoking the provisions of Section 78 of the Reorganisation Act, made allocations of the Punjab rivers, giving Haryana 3.5 M.A.F., Punjab 3.5 M.A.F., Rajasthan 8.0 M.A.F., Delhi 0.2 M.A.F., J. & K. 0.65 M.A.F., making a total of 15.85 M.A.F. vide notification dated March 23, 1976. The flow series was taken from the years 1920-45. This was not acceptable to Punjab, which challenged this decision and the vires of the Reorganisation Act in the Supreme Court. The 1981 agreement revised the allocations, basing it on the year of highest flow from the years 1921-1960, giving 3.5 M.A.F. to Haryana, 8.60 M.A.F. to Rajasthan, 4.22 M.A.F. to Punjab, 0.2 M.A.F. to Delhi and 0.65 M.A.F. to J. & K., a total of 17.17 M.A.F. when the actual availability is much less. Punjab was made to withdraw its case from the Supreme Court.

A farmers' organisation in Punjab had filed a writ in the Punjab and Haryana High Court on the grounds that Sections 78-80 of the Punjab Reorganisation Act was unconstitutional. Chief Justice S.S. Sandhawalia 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 two days, two things happened. One, Sandhawalia was posted to Patna High Court. Two, the attorney general made an oral application to transfer the case to the Supreme Court. It's been lying there since.

However, an agitation in Punjab against the 1981 agreement resulted in the Rajiv-Longowal Accord (Punjab Settlement, July 27, 1985). Section 14 of the accord was an addition to the Inter-State River Water Disputes Act, 1956, which provided for constitution of a tribunal for verification and adjudication of matters referred to in paras 9.1 and 9.2 respectively of the accord. Para 9.1 laid down that farmers of Punjab, Rajasthan and Haryana would continue to get water not less than what they are using from the Ravi-Beas systems as on August 1, 1985. The usage of water then was reckoned as 9.6 M.A.F. for Punjab, which was never considered later.

If the present dispensation of water allocation is accepted, 9 lakh acres in Punjab will become barren and 1.5 million families rendered destitute. The water table in Punjab has been falling alarmingly and if this continues, the better part of Punjab could turn into a desert. Ninety per cent of the foodgrain produced in Punjab is sent to other states. If there are any surplus waters, then it is there for the neighbouring states to take. But Punjab's own minimum needs of waters must be met first. Punjab asks for nothing but its lawful rights.