How Punjab was stripped of its waters & rights

PUNJAb’S alluvial soil, enriched by the sweat of a hardy farming community, has been feeding the whole country since Independence. It ultimately led to freedom from the clutches of nouveau colonialists, who were taking a price to keep our ship afloat in the sea of hunger. But the state’s farmers have not got any rewards and recognition. Instead, they have been waging a struggle for years against what they say is an injustice done to them since they have been largely stripped of their precious resources, especially river waters.

The Rajasthan canal project was finalised in 1948 and the provision for the canal gates at Harike made in 1952, when Punjabis were still healing the wounds inflicted by Partition. Eight million acre feet (MAF) water of the Ravi-Beas rivers was allocated to Rajasthan through a secret government note of January 29, 1955, violating the Constitution. It was in operation for five years. The Union government, thus, took away more than 50 per cent of Punjab’s total water of 15.85 MAF, leaving 7.85 MAF for the three states of Punjab, PEPSU and J&K.

The Centre made undue pressure on the Punjab Irrigation Minister, Choudhary Lehri Singh, to sign the minutes of the said notification. He signed it under protest after seven months. Since then, “jungle raj" has replaced the finer points of our Constitution. Clause 5 of the notification states that the cost of water would be worked out later. But the cost has not been worked out till date.

The precedent for payment in lieu of river water usage existed in the country. The erstwhile Bikaner state was paying seigniorage for river waters and now the state of Delhi is paying Rs 21 crore annually to Himachal Pradesh for using its share of the Yamuna waters. The Union government should honour its commitment and pay Rs 9.5 lakh crore towards the cost of water supplied to Rajasthan over the past 60 years.

Article 3 grants Parliament the power to form new states, alter areas, boundaries or names of states, but not take control of a state’s resources. The government, while enacting the Punjab Reorganisation Act, 1966, engrafted a patently unconstitutional provision of Sections 78-80, which were used to allocate 70 per cent of Punjab river waters to non-successor, non-riparian states and acquire Central control over the BBMB.

Sections 78 to 80 of the Punjab Reorganisation Act violate Article 162 of the Constitution as they strip the state of its executive powers over matters within its legislative competence. There is a conflict between these sections and the constitutional provisions. The key question is whether the Central government could legislate on matters that fall under Entry 17 of the State List.

Among the states that have been reorganised are Bihar/ Jharkhand (2000), Madhya Pradesh/Chhattisgarh (2000), Uttar Pradesh/Uttarakhand (2000) and Andhra Pradesh/ Telangana (2014).

Each of them has retained sovereignty over its territorial waters without any permanent Central control imposed. But the degree of Central control in Punjab’s territorial waters is unparalleled and unprecedented. The Yamuna flowing through the erstwhile Punjab was excluded from this sharing arrangement, allowing Haryana exclusive rights to its waters.

The first litigation under the water-sharing dispute came in 1976 when Punjab filed a suit in the Supreme Court, challenging the validity of Section 78 of the Reorganisation Act. Haryana approached Prime Minister Morarji Desai for intervention. He invited the CMs of Punjab, Haryana and Rajasthan for a meeting. Desai asked the Haryana CM to show him the courses of the Sutlej, Beas and Ravi rivers. On learning that none of them passes through Haryana and Rajasthan, the PM said these states had no claim to any water from Punjab.

Stunned, Haryana approached the SC against Punjab for its failure to take up the construction of the SYL canal in its territory. On July 11, 1979, Punjab filed a suit in the SC challenging the notification of the Union Government dated 24.03.1976. During the pendency of the petition, on December 31, 1981, the then Prime Minister Indira Gandhi negotiated an agreement between Punjab, Haryana and Rajasthan under threat and undue influence on Punjab CM Darbara Singh, but without any consultation with the other two successor states of Himachal Pradesh and Chandigarh. Being a non-successor state [Section 2(m), Punjab Reorganisation Act], Rajasthan’s participation in the agreement was illegal.

Thus, the agreement has no legal validity. After signing the agreement, Gandhi asked Darbara Singh to withdraw the case from the SC, which he did.

The decision of 29.1.1955 regarding the allocation of river waters had nothing to do with the Punjab Reorganisation Act, 1966. Yet, 21 years later, its selective clauses, like the allocation of 8.6 MAF of the Ravi-Beas waters to Rajasthan, were included in the 1976 notification issued by the Centre while important clauses, including the cost of water, were excluded.

This amounts to falsification and fraud of classified documents. The 1976 notification was issued during the Emergency, 10 years after the Punjab Reorganisation Act

There is a misstatement (the 1955 decision to be called “hereafter an Agreement”) of fact in para 2 of the 1981 agreement which creates a false legal foundation and misleads the parties concerned about the binding nature of the 1955 document (fraudulent misrepresentation). This mischaracterisation is a fundamental legal mischief which “fraudulently elevates" a secret executive decision to an agreement status.

Further, Clause VII of the 1981 Agreement states that the 1955 Agreement shall be “deemed" to be enforced as modified. Deemed enforcement is an attempt to bypass the constitutional requirements through legal fiction.

Error upon error cannot create validity. The entire 1981 Agreement is built on an invalid foundation. The Rajiv-Longowal Accord of July 24, 1985 is constitutionally invalid due to one party (Longowal) lacking the constitutional authority to represent Punjab. These agreements/ accords stand repudiated one after the another.

The Jago Punjab Forum recommends that Sections 78 to 80, which violate the Constitution’s mandate, be declared unconstitutional. Punjab’s constitutional authority over its territorial waters should be restored and the BBMB should be either dissolved or restructured under Punjab’s control.

SS Boparai is ex-Secretary, GoI and Chairperson, Jago Punjab.

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