Monday, Jul 26, 2004
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By Ramaswamy R. Iyer
DURING THE last few days there has been a great deal of discussion, much of it confused, on the Punjab action terminating past agreements and accords over river waters. The present article will try to set forth briefly some of the questions that arise from that action and from the justification offered for it by the Punjab Government through newspaper advertisements. (It must be noted that the President has now made a reference to the Supreme Court for opinions on certain questions.)
First, Punjab has been asserting its ownership of Ravi-Beas waters, but so far as one knows, Punjab has use rights over those waters; it does not own them. This has been clearly stated in the Report of the Ravi-Beas Tribunal.
Secondly, it seems doubtful whether even independent sovereign nations have the power of unilaterally terminating a Treaty or Agreement with other equally sovereign countries. In the present case, is there in fact `sovereignty' at the State Government level under our Constitution? Further, agreements and accords are entered into by executive governments; can they be terminated by an Act of the Legislature? Doubtless these questions will get conclusively answered when the Supreme Court gives its opinions on the presidential reference.
Thirdly, it has been argued that Rajasthan and Haryana have no riparian rights in relation to the Ravi and the Beas. Taking Haryana first, it was earlier a part of Punjab, and the State as a whole was surely a `riparian' in relation to the Ravi and the Beas. Does a part of the State lose that riparian character merely because of a division of the State? That is not intended as a rhetorical question but as an expression of a doubt that needs to be resolved. (We shall return to Rajasthan later.)
That leads us to the fourth and most important point, namely, that unlike the Cauvery dispute, which is a straightforward riparian dispute, this is really a dispute relating to allocation of river waters made in pursuance of a reorganisation of States. In 1976, the Central Government issued a notification under Section 78 of the Punjab Reorganization Act 1966, allocating the erstwhile Punjab's share of Ravi-Beas waters to the new States of Punjab and Haryana, with a small allocation to Delhi. Can a State Legislature nullify an order or notification issued by the Central Government? (This is part of the presidential reference.)
The legality and fairness of the 1981 agreement brought about by Prime Minister Indira Gandhi (modifying the 1976 allocations) are being questioned in Punjab. All that one can say is that following the agreement, both Punjab and Haryana withdrew their petitions from the Supreme Court. That seems to indicate that the agreement was then found acceptable; this is also borne out by the White Paper issued by the Punjab Government, hailing the agreement. However, the Punjab Legislature subsequently passed a resolution disowning the agreement.
The next stage in the dispute was the accord between Prime Minister Rajiv Gandhi and Sant H.S. Longowal on July 24, 1985. It was in pursuance of that accord that the Ravi-Beas Tribunal was set up. Now the opinion in Punjab seems to be that the accord is dead, perhaps because many elements in it remain unimplemented. Be that as it may, the Tribunal was in fact set up. For certain reasons the Tribunal was not set up by a simple notification under the Inter-State Water Disputes Act 1956, but was established following an amendment adding a new and specific Section 14 to the Act. (As a person who was officially associated with these matters at the time, the writer can state that the Punjab Government was consulted before the Tribunal was set up.) That Punjab acquiesced in the whole process was evident from the fact that it duly participated in the proceedings of the Tribunal and presented its case to it. Whether Punjab can now argue that the very establishment of the Tribunal was wrong and illegal is a question that will need to be considered.
The Tribunal is still in existence. When the report of the Tribunal was received early in 1987, it was found politically difficult to notify it. A reference back to the Tribunal was made for clarifications or a supplementary report. For whatever reasons, that clarificatory or supplementary report has not yet been received. As and when it is received, both the original and the supplementary reports will have to be notified, and will be final and binding. Even if, hypothetically speaking, there is no supplementary report (though that is hard to imagine), the original report will surely become the final report and will have to be notified; it cannot be treated as non-existent.
How does the Sutlej-Yamuna Link (SYL) Canal come into the picture? It was mooted as a means of enabling Haryana to utilise the allocation of Ravi-Beas waters made to it. It was envisaged in 1976, reiterated in 1981 and again in 1985. Right from the beginning, Punjab has been opposed to the idea and reluctant to construct the canal. The canal remains incomplete. Haryana has been going to court over this, and recently the Supreme Court asked the Central Government to take over the project and complete it. It was in order to forestall this that Punjab appears to have hastily terminated all past water agreements. This seems to destroy the basis for the SYL Canal and therefore for the Supreme Court's direction. The issue also figures in the presidential reference.
Finally, we come to the question of Rajasthan. Punjab denies that Rajasthan has any right to the Ravi-Beas waters. How then has an allocation been made to it? For an answer to this, we have to go back to 1947. Soon after Partition, talks began between India and Pakistan on the sharing of the Indus system, and after many years of negotiation the Indus Treaty was signed in 1960. The settlement could conceivably have taken the form of a joint integrated management of the entire Indus system by the two countries together, or of a sharing of the waters in each of the six rivers (Indus, Jhelum, Chenab, Ravi, Beas and Sutlej) by the two countries. Neither course was followed. What was agreed upon was the allocation of the three western rivers to Pakistan and the three eastern rivers to India. Under this settlement, roughly 75 per cent of the waters went to Pakistan and 25 per cent was given to India. In Pakistan, it is often argued that this represented an act of generosity on its part, as the portion of territory that went to India was historically using only 8 per cent of the Indus waters. Indian sources put it at a higher figure, but it seems clear that the allocation of Indus waters to India was higher than the level of past use. This was partly because India, in putting forward its claims to the waters, argued for a substantial allocation to the desert State of Rajasthan.
Let us consider what the situation would have been (a) if there had been no Indus Treaty, or (b) if the Treaty had envisaged a sharing between the two countries on each of the six rivers. In either case, India's rights as the upper riparian on the Ravi, the Beas and the Sutlej would have been circumscribed by Pakistan's rights as the lower riparian. Bhakra-Nangal might have required Pakistan's concurrence. It might not have been built or might have been a smaller project. It was the exclusive allocation of the three eastern rivers to India under the Treaty that removed the constraint of lower-riparian rights on Indian use. Punjab benefited by this. But this would not have come about if Rajasthan's needs had not been added to the arithmetic. It follows then that Rajasthan's claims on these waters are not riparian claims, but derive from the case that was built up for the Indus negotiations. This issue does not specifically figure in the presidential reference but may come up in the course of the examination of the reference by the Court.
Turning finally from rights to needs, Punjab has a strong sense of grievance. That cannot be ignored. It has also been arguing that the availability of water has to be re-assessed; it says that it is less than earlier estimates. Haryana has a sense of grievance at the non-completion of the SYL canal. Rajasthan is worried about its allocation not fully materialising. Delhi is apprehensive not only about losing its small allocation of 0.2 MAF (million acre feet) from Ravi-Beas, but even more about Haryana backing out of the agreement on the Yamuna. The crucial question here is whether the three States really need the quantities of water that they are asking for. That cannot be gone into here, but the writer would venture to suggest that with better water management all the States can meet all their needs with much less water than they project. That is the real answer to this vexed problem.
(The writer is a former Union Water Resources Secretary.)
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