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The problem of Punjab river waters has been made complicated by its distribution to other non-riparian states in the last few decades. These states had no legal or valid claim to these waters, which are to be exclusively used for Punjab lands in accordance with riparian law. The state of Punjab and its legislature has got the exclusive jurisdiction over Punjab river waters under the provisions of constitution of India. Punjab has no surplus river waters to spare and these do not meet the needs of Punjab lands even. The total flow of all the three river waters of Punjab is 32.5 maf,while the need for Punjab lands is 52.5 maf. The distribution of Punjab river waters to other states left the river waters for only twenty five per cent of Punjab lands. The remaining seventy five per cent are irrigated by tube wells. There are about a million tube wells in the state. It has resulted in the over exploitation of the under ground water, lowering its level too much. If this process continues at such a speed then it may become impossible to pump out the under ground water in the near future. Even now the centrifugal pumps have become unworkable which are being replaced to submersible at a very high cost, which the farmers can not afford. Experts point out that the water at further lower table may be saline and containing. such chemical mixtures as to not fit for agriculture. It would cause the serious problem even for the availability of drinking water in Punjab. Bulk of Punjab lands would become semi deserts, unfit for agriculture. It is the time now to allow Punjab river waters to be exclusively used for Punjab lands. So that the people of Punjab may be able to improve their ruining economy. It can never be in the national interest to make the Punjab lands to be deserts and to ruin the economy of the brave people of Punjab. No doubt the lands of other states need the waters for irrigation but it should not be at such a high cost of Punjab and particularly when they have no legal claim to it. The govt. of India, with the vast resources at its command should tap the other resources in that regard, just as canalizing the ghagar river waters and of Yamuna river etc, to which these states may have the valid claim .The distribution of Punjab river waters to these states is unlawful, unjust and unconstitutional.
Constitution of India separates the powers of union and states, as India is union of states as defined in article 1 of the constitution. Schedule seventh of the constitution contains the state list and the subject of river waters is included in it at entry 17.Article 246 of the constitution lays down that the states have the exclusive jurisdiction over the subjects enumerated in the state list, while union has the exclusive jurisdiction over the subjects of the union list. Punjab river waters are thus under the control of Punjab state and its legislature exclusively. Govt. of India and Parliament having no jurisdiction over it. The distribution of Punjab river waters by the Prime Minister Indra Gandhi obviously violates these constitutional provisions and as such unconstitutional and void, having no binding effect.
Similar is the fate of sections 78 to 80 of Punjab reorganization act 1966 and section 14 of inter state river waters disputes act 1956 being unconstitutional as these violate these constitutional provisions, Parliament having no jurisdiction over Punjab river waters, being the subject of state list. These unconstitutional provisions cannot confer any legal powers on Govt.of India to intervene in Punjab river waters. The Iradi tribunal set up under section 14 of inter state rivers water disputes act automatically becomes illegal when this section is unconstitutional. This act can have no application to Punjab river waters, being not interse rivers as these flow in the Punjab territories and not in any other state to which these waters have been distributed.
Punjab has the exclusive right to Punjab river waters on the basis of riparian law. The other states to which these waters have been distributed are non-riparian, havingh no valid claim to it. The riparian law is based upon justice and equity, having international acceptance. It has been approved by United Nations. In India it has been followed in all other states and Punjab has been made the only exception. On the reorganization of Madras state its areas were allocated to Tamilnadu, Andhrapardes and Karnataka. The rivers of that state, Krishna, Godawari,and Mahanadi did not flow in Tamilnadu state and so it was not given the waters of those rivers that it ceased to be the riparian state. The case of Haryana is similar to it as it ceased to be riparian state as Punjab rivers do not flow in its territories and so not entitled to waters of these rivers. Rajisthan state made an application in the tribunal to claim waters of Narbada river, which had been set up in the dispute between Maharashtra and other riparian states, which was rejected that it was not riparian state and is not entitled to the waters of that river. Rajisthan is a non riparian state for Punjab rivers and thus not entitled to the waters of these rivers.Similarly J&K and Delhi are not riparian states for Punjab rivers and as such not entitled to waters of these rivers. Thus none of these states has any right to Punjab river waters.
There is no lawful agreement for the distribution of Punjab river waters to other states The essential ingredients of an agreement are, consideration of agreement, free consent of parties, competency of the parties to enter in to agreement. In the so-called agreements to distribute Punjab river waters none of these ingredients are present. No consideration, no free consent and no competency of the parties for the agreement. The provisions of Indian contract act specifically lay down that the agreement or contract which is without consideration or without free consent as the consent having been taken under undue influence or the parties being not competent to enter in to agreement is null and void and of no binding effect. In the case of agreements by states there are also further requirements as laid down in Article 299 of constitution of India, that it must be in accordance with the procedure prescribed therein and in the name of the Governors of the states. None of these constitutional procedures have been followed in these so-called agreements. In fact these cannot be called as agreements, what to say of lawful agreements.
The 1955 distribution of Punjab river waters was made by recording in the proceeding of the meeting of deputy secretaries, held in the irrigation department at Dehli, that Punjab can spare 8 Maf waters for Rajisthan, but Punjab needs will be met first and this arrangement will be reviewed from time to time. Deputy secretaries are not even heads of the departments and had no powers to take such a decision. No decision by the Govt., no consideration, no free consent, no competency. It is on the face of it null and void.
The 1976 distribution of Punjab river waters, was award of Prime minister Indra Gandhi vide which Rajisthan was allocated 8.6 maf, Haryana 3.5 maf, Delhi 0.2 maf and Punjab 3.5 maf out of 15.8 maf which was declared as surplus, though there was no surplus water and this entire water was much less than the needs of Punjab. The Prime minister had no power and jurisdiction to distribute Punjab river waters. Thus no consideration, no free consent and no competency. It was null and void. Punjab Govt.challenged it in Supreme court to be illegal and void, but Indra Gandhi Prime minister got the case withdrawn from Punjab Chief minister Darbara Singh under the political pressure to withdraw the case or resign, who preferred to retain his post.
The 1981 distribution of Punjab river waters was also made by Indra Gandhi Prime minister with the imaginary increase of surplus waters to 17.17 maf.The allocations of Rajisthan, Haryana and Delhi remained the same, but of Punjab was increased to 4.2 maf, while J&K was added in the list with allocation of 0.65 maf waters. This time it was got signed from the Chief ministers of Punjab, Haryana and Rajisthan.The same strategy to get the signatures of Chief minister Punjab,Darbara Singh to sign or resign. There is evidence of witnesses in this regard and press statement of Darbara Singh himself. This so called agreement is also null and void. No consideration, no free consent, no competency for agreement and no compliance of Article 299 of the constitution, no decision of the council of ministers, no approval of state legislature. The chief minister has no authority to give any state property without consideration. The state Govt.also cannot do it, as it is a mere custodian to manage it for the benefit of the people of the state. The river waters are the most valuable state property and the chief minister or the state Govt.and even the state legislature can have no powers to give it without consideration These institutions are elected by the people of the state for the best management of its affairs in the best interests of the state and its people. And they are duty bound to discharge their duties bonafide for the benefits of the people of the state If they waste any state property or give it to any one without consideration for their vested interests, might be to retain political power or to get monetary gains or for any other reason whatsoever it would be null and void. The construction of s y l canal was also a part of this so-called agreement. It can never be for any benefit of the state and of the people of the state. Can it ever be in the interest of state and its people to waist thousands and thousands of acres of lands belonging to thousands of land owners to construct a canal to take Punjab river waters to Haryana without any consideration and make the remaining Punjab land semi deserts and unfit for agriculture. No land for such a purpose could even be acquired under the land acquisition act, being not the public purpose and rather being anti public purpose.
Punjab state and its people were not allowed to get the judicial verdict in these unlawful and unjust distributions of Punjab river waters. The case filed in the Supreme Court by Punjab state was got withdrawn by Indra Gandhi by putting undue pressure on the congress chief minister Darbara Singh. The cases filed in Punjab High court against 1981distribution were fixed for hearing by chief justice S S Sandhawalia for Nov,15.1983, by the Bench presided over by him, but he was transferred a day earlier to Patna High court. Those cases were transferred to Supreme court on Nov.18, 1983 on the oral request of the Attorney General, which have not been fixed for hearing as yet in the last over two decades. Supreme court rather, on the application of Haryana state directed Govt.of India on june, 4,2004 to get the s y l canal constructed through its agency as Punjab Govt.had not constructed it as per the agreement.Govt.of India authorized central public works dept; to construct the canal.
Punjab legislature in a special session on July, 12,2004 enacted, Punjab termination of agreements act 2004. For terminating the 1981 agreement and all other agreements relating to Punjab river waters unanimously. It exhibited its unity in the matter of Punjab river waters that these waters must be exclusively for Punjab, as it can no longer afford to give it to any other state. Punjab legislature has the jurisdiction to enact such law, the river waters being under its exclusive powers being the subject of state list. It is perfectly legal and constitutional. However Govt, of India made a Presidential reference to Supreme court to seek its advice as to whether it is constitutional and its effect on Supreme court directions on s y l canal e t c. Supreme court will now give its judicial verdict as to it.
Ultimately this problem has to be solved by Govt.of India, who created and complicated it. Courage, honesty and the farsighted vision of statesman are needed. Two very sensitive issues are involved in it, which should never be over loocked. One is the basic feature of the constitution as to the division of powers between union and states as enumerated in the Union and state lists. Govt. of India should no longer intervene in state list to maintain the cordial relations with states and neither oblige one state at the cost of the other nor transgress over the lawful rights of a state and its people. It had been so done in case of Punjab river waters, which needs to be undone. The other is that there should be no communal tinge or feeling to a problem. Sikhs feel and openly express that perhaps Punjab river waters have been distributed to other states to which they had no claim, to ruin their economy and to oblige them at their cost. The cause of this feeling is the continuous conflict between the Sikhs and Govt. of India just after the independence, refusing to implement the,,,pre independence agreements, refusing the reorganization of Punjab on linguistic basis, making the capital of Punjab Chandigarh as union territory at the time of reorganization, taking the Punjab Dams, power houses, river headwork’s. out of its control, besides the Sikh agitations against emergency imposed by Indra Gandhi and for Sikh and Punjab rights .Sikhs are the worst victims of Punjab river waters distribution to other states as mainly they are the owners of the Punjab lands and dependant on agriculture, whose lands are likely to become semi deserts and un fit for agriculture resulting in the ruin of their economy. These sensitive issues if not resolved with honesty of purpose may cause serious problems as to peace, unity and integrity of the country,
It must be ensured that river waters do not create conflicts between one state and the other and states and the union. This aim can only be achieved by honoring the constitutional dictums, legal norms, justice and lawful rights, which are favorably to Punjab stand that Punjab river waters are exclusively for Punjab lands and can no longer be spared for any other state.
Constitution of India separates the powers of union and states, as India is union of states as defined in article 1 of the constitution. Schedule seventh of the constitution contains the state list and the subject of river waters is included in it at entry 17.Article 246 of the constitution lays down that the states have the exclusive jurisdiction over the subjects enumerated in the state list, while union has the exclusive jurisdiction over the subjects of the union list. Punjab river waters are thus under the control of Punjab state and its legislature exclusively. Govt. of India and Parliament having no jurisdiction over it. The distribution of Punjab river waters by the Prime Minister Indra Gandhi obviously violates these constitutional provisions and as such unconstitutional and void, having no binding effect.
Similar is the fate of sections 78 to 80 of Punjab reorganization act 1966 and section 14 of inter state river waters disputes act 1956 being unconstitutional as these violate these constitutional provisions, Parliament having no jurisdiction over Punjab river waters, being the subject of state list. These unconstitutional provisions cannot confer any legal powers on Govt.of India to intervene in Punjab river waters. The Iradi tribunal set up under section 14 of inter state rivers water disputes act automatically becomes illegal when this section is unconstitutional. This act can have no application to Punjab river waters, being not interse rivers as these flow in the Punjab territories and not in any other state to which these waters have been distributed.
Punjab has the exclusive right to Punjab river waters on the basis of riparian law. The other states to which these waters have been distributed are non-riparian, havingh no valid claim to it. The riparian law is based upon justice and equity, having international acceptance. It has been approved by United Nations. In India it has been followed in all other states and Punjab has been made the only exception. On the reorganization of Madras state its areas were allocated to Tamilnadu, Andhrapardes and Karnataka. The rivers of that state, Krishna, Godawari,and Mahanadi did not flow in Tamilnadu state and so it was not given the waters of those rivers that it ceased to be the riparian state. The case of Haryana is similar to it as it ceased to be riparian state as Punjab rivers do not flow in its territories and so not entitled to waters of these rivers. Rajisthan state made an application in the tribunal to claim waters of Narbada river, which had been set up in the dispute between Maharashtra and other riparian states, which was rejected that it was not riparian state and is not entitled to the waters of that river. Rajisthan is a non riparian state for Punjab rivers and thus not entitled to the waters of these rivers.Similarly J&K and Delhi are not riparian states for Punjab rivers and as such not entitled to waters of these rivers. Thus none of these states has any right to Punjab river waters.
There is no lawful agreement for the distribution of Punjab river waters to other states The essential ingredients of an agreement are, consideration of agreement, free consent of parties, competency of the parties to enter in to agreement. In the so-called agreements to distribute Punjab river waters none of these ingredients are present. No consideration, no free consent and no competency of the parties for the agreement. The provisions of Indian contract act specifically lay down that the agreement or contract which is without consideration or without free consent as the consent having been taken under undue influence or the parties being not competent to enter in to agreement is null and void and of no binding effect. In the case of agreements by states there are also further requirements as laid down in Article 299 of constitution of India, that it must be in accordance with the procedure prescribed therein and in the name of the Governors of the states. None of these constitutional procedures have been followed in these so-called agreements. In fact these cannot be called as agreements, what to say of lawful agreements.
The 1955 distribution of Punjab river waters was made by recording in the proceeding of the meeting of deputy secretaries, held in the irrigation department at Dehli, that Punjab can spare 8 Maf waters for Rajisthan, but Punjab needs will be met first and this arrangement will be reviewed from time to time. Deputy secretaries are not even heads of the departments and had no powers to take such a decision. No decision by the Govt., no consideration, no free consent, no competency. It is on the face of it null and void.
The 1976 distribution of Punjab river waters, was award of Prime minister Indra Gandhi vide which Rajisthan was allocated 8.6 maf, Haryana 3.5 maf, Delhi 0.2 maf and Punjab 3.5 maf out of 15.8 maf which was declared as surplus, though there was no surplus water and this entire water was much less than the needs of Punjab. The Prime minister had no power and jurisdiction to distribute Punjab river waters. Thus no consideration, no free consent and no competency. It was null and void. Punjab Govt.challenged it in Supreme court to be illegal and void, but Indra Gandhi Prime minister got the case withdrawn from Punjab Chief minister Darbara Singh under the political pressure to withdraw the case or resign, who preferred to retain his post.
The 1981 distribution of Punjab river waters was also made by Indra Gandhi Prime minister with the imaginary increase of surplus waters to 17.17 maf.The allocations of Rajisthan, Haryana and Delhi remained the same, but of Punjab was increased to 4.2 maf, while J&K was added in the list with allocation of 0.65 maf waters. This time it was got signed from the Chief ministers of Punjab, Haryana and Rajisthan.The same strategy to get the signatures of Chief minister Punjab,Darbara Singh to sign or resign. There is evidence of witnesses in this regard and press statement of Darbara Singh himself. This so called agreement is also null and void. No consideration, no free consent, no competency for agreement and no compliance of Article 299 of the constitution, no decision of the council of ministers, no approval of state legislature. The chief minister has no authority to give any state property without consideration. The state Govt.also cannot do it, as it is a mere custodian to manage it for the benefit of the people of the state. The river waters are the most valuable state property and the chief minister or the state Govt.and even the state legislature can have no powers to give it without consideration These institutions are elected by the people of the state for the best management of its affairs in the best interests of the state and its people. And they are duty bound to discharge their duties bonafide for the benefits of the people of the state If they waste any state property or give it to any one without consideration for their vested interests, might be to retain political power or to get monetary gains or for any other reason whatsoever it would be null and void. The construction of s y l canal was also a part of this so-called agreement. It can never be for any benefit of the state and of the people of the state. Can it ever be in the interest of state and its people to waist thousands and thousands of acres of lands belonging to thousands of land owners to construct a canal to take Punjab river waters to Haryana without any consideration and make the remaining Punjab land semi deserts and unfit for agriculture. No land for such a purpose could even be acquired under the land acquisition act, being not the public purpose and rather being anti public purpose.
Punjab state and its people were not allowed to get the judicial verdict in these unlawful and unjust distributions of Punjab river waters. The case filed in the Supreme Court by Punjab state was got withdrawn by Indra Gandhi by putting undue pressure on the congress chief minister Darbara Singh. The cases filed in Punjab High court against 1981distribution were fixed for hearing by chief justice S S Sandhawalia for Nov,15.1983, by the Bench presided over by him, but he was transferred a day earlier to Patna High court. Those cases were transferred to Supreme court on Nov.18, 1983 on the oral request of the Attorney General, which have not been fixed for hearing as yet in the last over two decades. Supreme court rather, on the application of Haryana state directed Govt.of India on june, 4,2004 to get the s y l canal constructed through its agency as Punjab Govt.had not constructed it as per the agreement.Govt.of India authorized central public works dept; to construct the canal.
Punjab legislature in a special session on July, 12,2004 enacted, Punjab termination of agreements act 2004. For terminating the 1981 agreement and all other agreements relating to Punjab river waters unanimously. It exhibited its unity in the matter of Punjab river waters that these waters must be exclusively for Punjab, as it can no longer afford to give it to any other state. Punjab legislature has the jurisdiction to enact such law, the river waters being under its exclusive powers being the subject of state list. It is perfectly legal and constitutional. However Govt, of India made a Presidential reference to Supreme court to seek its advice as to whether it is constitutional and its effect on Supreme court directions on s y l canal e t c. Supreme court will now give its judicial verdict as to it.
Ultimately this problem has to be solved by Govt.of India, who created and complicated it. Courage, honesty and the farsighted vision of statesman are needed. Two very sensitive issues are involved in it, which should never be over loocked. One is the basic feature of the constitution as to the division of powers between union and states as enumerated in the Union and state lists. Govt. of India should no longer intervene in state list to maintain the cordial relations with states and neither oblige one state at the cost of the other nor transgress over the lawful rights of a state and its people. It had been so done in case of Punjab river waters, which needs to be undone. The other is that there should be no communal tinge or feeling to a problem. Sikhs feel and openly express that perhaps Punjab river waters have been distributed to other states to which they had no claim, to ruin their economy and to oblige them at their cost. The cause of this feeling is the continuous conflict between the Sikhs and Govt. of India just after the independence, refusing to implement the,,,pre independence agreements, refusing the reorganization of Punjab on linguistic basis, making the capital of Punjab Chandigarh as union territory at the time of reorganization, taking the Punjab Dams, power houses, river headwork’s. out of its control, besides the Sikh agitations against emergency imposed by Indra Gandhi and for Sikh and Punjab rights .Sikhs are the worst victims of Punjab river waters distribution to other states as mainly they are the owners of the Punjab lands and dependant on agriculture, whose lands are likely to become semi deserts and un fit for agriculture resulting in the ruin of their economy. These sensitive issues if not resolved with honesty of purpose may cause serious problems as to peace, unity and integrity of the country,
It must be ensured that river waters do not create conflicts between one state and the other and states and the union. This aim can only be achieved by honoring the constitutional dictums, legal norms, justice and lawful rights, which are favorably to Punjab stand that Punjab river waters are exclusively for Punjab lands and can no longer be spared for any other state.
