River Waters: The Elemental Issue

The issue which agitated the Sikhs even more than the territorial dispute was the unjust and illegal allocation of Punjab's river waters and hydroelectric power generated from them to non-riparian neighbour states. The issue not only has a direct bearing on the future of agriculture in the State, the occupation of more than eighty per cent of its population, it also evokes historical nostalgia of an extinct glory of the land which is indivisible from the confluence of its five rivers, as the name Punjab itself suggests and the boon they had become in transforming the semi-deserts of the province into the fertile core of the Indian agricultural economy under development of canal irrigation in Punjab.

Following the partition of the sub-continent, India and Pakistan signed a "standstill agreement" on 18 December 1947 which guaranteed to maintain water supplies at the level of allocation in the pre-partition days. However, on 1 April 1948, India without any warning cut off supplies to Pakistan from both Ferozepur and Gurdaspur. The action was contrary to the letter and the spirit of the international law covering interstate river waters. The Barcelona Convention of 1921 on interstate river waters to which India was a signatory disallowed every State to stop or alter the course of a river which flowing through its own territories went into a neighbouring country and also forbade to use its waters in such a way as to imperil the lands in the neighbouring State or to impede their adequate use by the lower riparians. But India as the upper riparian of the Indus rivers was in a position of strength. India could deflect the Beas into the Sutlej above Bhakra or divert the Ravi into the Beas at Madhopur. It could construct a dam on Wular lake in the Kashmir valley and dry up the river Jhelum. A headwork on the Chenab at Dhiangarh, north of Jammu, could deflect the Chenab from its natural course into Pakistan. The major projects of the Bhakra, Pong and Thein dams then in the offing, if completed, could drain off the rivers of Sutlej, Beas and Ravi.

By cutting off supplies from the Madhopur and Dipalpur Canal headworks, India jolted its Muslim neighbour into the realization of the formidable Hindu power. A ministerial delegation from Pakistan rushed to Delhi to negotiate the restoration of waters. India insisted on a recognition by Pakistan that it had proprietary rights over the eastern rivers and compelled Pakistan to sign an agreement on 4 May 1948, requiring it to deposit in the Reserve Bank of India an amount of money specified by the Indian Prime Minister before the supplies could be restored.

Two important points of the agreement were that (a) the dispute was treated as one existing between East and West Punjab being co-riparian States; and (b) the question of diverting Punjab rivers for irrigation to other States of India did not figure in the agreement. Pakistan after signing the agreement tried to refer the dispute to the International Court of Justice. But India, which had already started constructing barrages over the confluence of the Beas and the Sutlej, upstream of Ferozepur at Harike, as well as at the dam site of Bhakra, resisted the attempt. As the dispute seemed to involve the fate of millions of people and a peaceful and negotiated settlement was out of sight, the famous American magazine Collier's (discontinued since 1957) sponsored David E. Lilienthal, erstwhile Chairman of Tennessee Valley Authority and Chairman of the US Atomic Energy Commission, to undertake a fact- finding tour of India and Pakistan and to report on how the imbroglio could be resolved. Lilienthal wrote about his impressions for the magazine in a series of articles the first of which appeared in its issue of 4 August, 1951. He wrote:

"The starting point should be, then, to set to rest Pakistan's fears of deprivation and a return to desert. Her present use of water should be confirmed by India, provided she works together with India in a joint use of their truly international river basin on an engineering basis that would also assure India's future use as well.... This objective, however, cannot be achieved by the countries working separately; the river pays no attention to partition - the Indus, she just keeps rolling along through Kashmir and India and Pakistan. The whole system must be developed as a unit designed, built and operated as a unit as in the seven state TVA system back in the USA."

The President of the International Bank of Reconstruction and Development, in short the World Bank, Eugene R. Black, read Lilienthal's articles and contacted him for suggestions as to how India and Pakistan could be made to accept his proposals. After consultations with Lilienthal, Black addressed letters to the Prime Ministers of the two countries offering the good offices of the Bank for negotiations for a settlement of the Indus Water dispute. Black was able to persuade the two countries to come across for a talk beginning May, 1952. Meetings continued intermittently for many years without the prospect of an agreement coming into sight. The Bank then suggested a proposal as the basis for a settlement assigning the waters of the three western rivers to Pakistan and those of the three eastern rivers to India. Pakistan pointed out that the flow of the Western rivers without the facility for storage of water as India had developed at Bhakra dam would fail to meet the water requirements at critical sowing periods.

Required by the Bank to show how it proposed to utilize waters of the three Eastern rivers, India conjured up a scheme allocating 8.0 MAF to Rajasthan, 7.2 MAF to Punjab and 0.5 MAF to Kashmir in a meeting hurriedly convened by then Union Minister, Gulzari Lal Nanda. The allocation to Rajasthan, in this meeting, was more than the combined total allocation of water to Punjab, although Rajasthan is non-riparian in relation to the Eastern Punjab rivers. For a while some of the technocrats and politicians involved in the negotiations gave free reign to their fancies imagining the deserts of Rajasthan transformed into fertile lands. The Bank then persuaded the Western countries to underwrite the terms of the agreement between India and Pakistan at the cost of one billion dollars and in addition to loan another 200 million dollars towards the cost of the constructions in Pakistan. The Indus water Treaty was signed at Karachi on 19 September, 1960 by Prime Minister Nehru and President Ayub Khan. Under the agreement India promised to supply waters to Pakistan for the payment of expenses for operating the Madhopur and Ferozepur head works and their carrier channels, and also to contribute Rupees 100 crore for construction of replacement headwork's to Pakistan.

Appraisal Of The Rajasthan Canal

Soon after signing the interstate agreement of 1955 India had started work on the ambitious project of the Rajasthan canal, with a feeder of 292 miles lined all along with two criss-crossed layers of baked tiles set in concrete sand mortar, with the estimated cost of 500 million dollars. No proper assessment and feasibility studies had been carried out before commencing the work. When the government asked a team of the US Bureau of Reclaimation to examine the project in 1958, the team made the report:

"In order to make a comprehensive study of a project calling for the irrigation of 4.5 million acres of land, it would be necessary for the Bureau of Reclamation to devote years of time, making land classification, agricultural economics and settlement studies....The team is of the opinion that further investigations would have been highly desirable prior to initiation of construction."

Alloys A. Michel, the author of the "The Indus Rivers - A study of the effects of partition", made his own assessment of the project and came to the following conclusions. To quote:

"Viewed realistically.... the Rajasthan Project in its ultimate form is a dubious one.... The idea of extending the Rajasthan Canal parallel to the Indo-Pakistan border in the northern portion of the Thar Desert down to a point about opposite the Sukkur Barrage was a seductive one: 7.9 million acres could be brought under command and 6.7 million of these are potentially cultivatable although the project in its present form is limited to supplying water to only 4.5 million acres of which only 3.5 million would be cultivated in a given year. Even then, these lands will receive only 1 cusec of water for each 250 to 300 acres, an intensity lower than what has prevailed in the Punjab since the British times (1 cusecs for 200 acres) and less than one third of what prevails in the US....

Assured by her geographical position and later by the treaty of the full use of the Eastern Rivers, India naturally sought an area to irrigate, an area in which to demonstrate that free India could do as much as the British in bringing new lands under cultivation. Forgotten or overlooked were the fundamental differences between the Punjab, with its convergent perennial streams, tapering doabs and silty soil, and the Thar desert, hundreds of miles from the Sutlej with its sand and sand dunes.... The cumulative irrigation experience in India, Iraq, Egypt, the US, and the Soviet Union indicates that more food and fibre can be obtained by increasing the water allowance to existing cultivated lands than by spreading water thin over new tracts. But to introduce it into the Thar Desert is economically unjustifiable. The 8.8 MAF of Beas-Sutlej Ravi water that are to be diverted from Harike for the Rajasthan canal could be put to much better use in the East Punjab, north and the south of the Sutlej, and in the eastern margins of Rajasthan served by the Bikaner Canal and Sirhind Feeder.

Combined with concentrated application of the limited fertilizers at India's disposal, yields in the established areas could be doubled or trebled at a saving in cost and pain in Rajasthan. The very experience with the Bhakra project itself, which increased water supplies to 3.3 million acres south of the Sutlej demonstrates this. Yet even here, out of every 182 run into a canal, 112 are lost by seepage, evaporation and non beneficial transpiration of plants. On the Rajasthan canal, although the lining will reduce seepage in the main canal to a minimum, evaporation alone might reduce supplies by 50 per cent. And the seepage losses in the unlined branch canals, distributaries, minors, sub-minors, water courses, and on the bunded fields themselves will further reduce the share of water that can be used beneficially by plants of economic value...."

Both the US Bureau of Reclamation and the author of the "The Indus Rivers" criticized India in severe terms for undertaking a costly project to irrigate the lands which like all desert lands are highly porous and deficient in organic matter without first carrying out the basic soil surveys and the studies on land classification. They warned that the consequence of persisting with the project for the sake of pride by negating the technical and the economic values could be plain frustration in the end.

As the experts know today the Rajasthan project has been a failure. Water logging and salinity in the areas irrigated by the canal have found no remedy. Absence of natural drainage is yet another hurdle and unless artificial drain or channels falling into the Sutlej are created, which will in turn pollute the Sutlej river, salts and alkali from water logging will soon poison the upper horizon of the canal irrigated lands. Also Rajasthan has not been able to find any use for the 8.5 MAF of water allocated to it under the inter-State agreement of 1955. The average annual use of Rajasthan is still only 4.9 MAF, out of which nearly half is lost in the process. The rest of the water is just going waste.

Riparian Principles

Most significantly the allocations of Punjab's river waters among various Indian States, under the arbitration of the Central government, have been violative of the well established terms of the riparian laws which have been the basis for the settlement of both international and interstate disputes on river waters.

Dr. F.J. Berber who studied the treaties, compacts and disputes involving international and interstate rivers between 1950-1954 explains in his book "Rivers in International Law" (Stevens & Sons Limited, London 1959) the meaning of the riparian right in intelligible terms:

"(It is) the principle of community in the waters by virtue of which the rights in waters are either vested in the collective body of riparians or are divided proportionally; no one State can dispose of the waters without the positive cooperation of the others."

The Helsinki Rules of 1966 adopted by the International Law Association explain that each Basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the water of an international drainage basin, equitability being determined by many factors including the past utilisation of the waters of the Basin and the existing utilisation, the economic and social needs of each Basin State, the avoidance of unnecessary waste in the utilisation of waters of the Basin etc.

The case of the Jordon River dispute is a good practical example of the riparian law in application. The dispute involved Lebanon, Syria, Jordon and Israel. Israel which is a riparian State in relation to the Jordon river prepared a scheme of irrigation from its own share of the river's waters contemplating diversification outside the watershed area of the river. Other riparian States raised objections and the United Nations intervened to stop Israel from implementing its scheme. This was in 1953. The UN then requested the Tennessee Valley Authority to prepare a scheme which would ensure the most efficient method of utilising the whole of the watershed in the best interests of the area disregarding the political boundaries. The TVA prepared a scheme which was based on the following principle explained in the introductory note of its report:

"... A quantity of water is suggested for each area of use within gravity reach of the supply made available and at the lowest cost.... The reasonable needs of all in-basin users in the riparian states must be provided for before out of basin users can be considered ..."

In the Indian history of riparian disputes there is one example of transbasin diversification of a river's waters. The example is worth a cursory examination.

Madura, a district of the Madras Presidency, was hit by severe famine in the late 1850s due to scanty rainfall year after year. The only river passing the city of Madura, the Vaigai, which is a 240 Kms long stream rising in the Varushanand hills flowing into the Pal Strait, the inlet of the Bay of Bengal between southeastern India and northern Sri Lanka, at Attangarai, had dried up. The Secretary of State for India approached the kingdom of Travancore in South Western India with the request to permit the Madras Presidency to build an artificial reservoir in its Kottayam district by damming the river Periyar, the main river of the Travancore State, for diversion of its waters through a tunnel into the Vaigai river mainly bring waters to the parched lands of Madura.

On 29 October 1986 an agreement was signed between the Secretary of State for India in Council as Lessee and the Maharaja of Travancore as Lesser. The agreement allowed Madras to build the reservoir on 8100 acres of land in the catchment basin of the Periyar river and also the tunnel to diversify its waters into Vaigai for an annual rent of Rs.40,000. The arrangement lasted without any controversy till 1937 when the Madras government mooted a scheme to generate hydroelectric power from the flow of Periyar from the tunnel into its own territory. Travancore objected to the scheme on the ground that the indenture of 1886 did not permit use of Periyar's waters for any purpose other than irrigation of Madura.

The dispute went before a retired judge of the Calcutta High Court for arbitration who in his award given in May 1941 upheld the objection raised by Travancore as being valid. The two governments concluded a new agreement after Indian independence by which Madras acquired the right to harness hydroelectric power from Periyar's waters generated by it by paying Rs. 12 per kilowatt year if the units in a year did not exceed 350 million and Rs.18 per kilowatt a year for units generated in excess. In May 1970 the government of Tamil Nadu had the annual seigniorage of Rs.40,000 as in the indenture of 1886 reduced to Rs.30,000 by giving up fishing rights in the Periyar reservoir. Other conditions of the original agreement remained in full force.

The points which emerge as general principles from this example are;

1. A State which commands a river exclusively can sell its waters for use outside the Basin.

2. It does not cease in its riparian right over the waters so diversified and can claim additional seigniorage from the lessee State if the latter decides to harness the waters for additional benefits.

3. Cessation of political sovereignty of a riparian State does not lead to annulment of its riparian rights.

The history of the development of Canal irrigation in India, particularly in the Punjab, indicates that the law of riparian right evolved not only from the legalistic approbation to the claims of sovereignty of the geopolitical units over the natural resources they commanded but also from the legalistic appreciation of the rationality of their development. For example, in the early stages of the British initiative to exploit the rivers of the Indus Basin for canal irrigation, the State of Patiala approached the British government with the proposal to meet the expenses for the surveys to build the Sirhind Canal on the river Sutlej mainly to irrigate its own agricultural tracts. Colonel Dyas, then Chief Engineer of the irrigation works for the North Western Provinces, after studying the proposal made by the State of Patiala submitted a memorandum to the government laying down one of the basic principles which continued to guide the developmental policy of river waters until India attained independence. The memorandum said:

"If a larger extent of Patiala than of British territory can be irrigated from the Sutlej with the same quantity of water at a smaller cost, it would appear to me that the Sutlej was intended for irrigation of Patiala.... "

When the project of the Sirhind Canal was finally ready for implementation, an agreement was signed between the British Government and the States of Patiala, Jind and Nabha on 18 February 1873 setting out the main following terms for sharing of the irrigation potential of the Canal:

1. The project is to be drawn out under the exclusive control of the British Government on the general basis of taking the water in the most economical manner to those districts east of the Sutlej to which it can from an engineering point of view most advantageously be carried.

2. The States concerned shall pay to the British government an annual sum as seigniorage on the Sutlej water supplied in proportion to the quantity of water allotted to each.

Seigniorage was imposed also on Bikaner, a non-riparian State, when under the Sutlej Valley Project it was agreed to extend irrigation to the State. The agreement between the British government and the States of Bikaner and Bahawalpur was concluded on 4 September, 1920.

The riparian principles found articulate expression in the report prepared by the Indian Irrigation Commission which had been appointed by Lord Curzon to recommend measures for extending canal irrigation as a protection against recurring famines in 1901. The Commission was headed by Sir Colin C. Scott Moncrieff. One of the questions the Commission had been asked to resolve was whether the waters of the Punjab rivers could not be diverted to irrigate tracts in the upper Ganges basin particularly the dry areas of Rajasthan. The Commission ruled against the suggestion and recommended that the waters of the Punjab could not be diverted to irrigate tracts in the upper Ganges basin particularly the dry areas of Rajasthan. The Commission ruled against the suggestion and recommended that the water resources be utilized optimally within the Basin to produce surplus food which may be exported to famine-prone regions outside.

In spite of the recommendation, the government sanctioned Sutlej Valley Project, envisaging three canals, one of them to irrigate tracts in the State of Bikaner. However, seigniorage was imposed on the State, it being non- riparian in relation to the Sutlej, by an agreement signed by the States of Bikaner, Bahawalpur and British India in September 1920. The Government of India Act of 1919 granted autonomy to the provinces in the subjects of river waters and irrigation. The Central government retained the power to intervene only if disputes between co- riparian States could not be settled through mutual consultations, the government of India Act of 1935 further consolidated the provincial powers to control the waters of all rivers within their territories as well as the hydroelectric power generated from them. Accordingly, when a dispute developed between Sind and Punjab, as co-riparian States in relation to the Indus rivers, over their conflicting claims of rights of utilisation of the river waters, the government appointed the Indus Commission in September 1941 under the chairmanship of B.N. Rau on which the Central government was not represented at all.

The Commission conducted its proceedings with Sind as the plaintiff and Punjab as the defendant arguing their cases. The Commission reviewed their arguments by the standards of riparian principles and concluded that the projects of Punjab be examined from the point of view of their effect on the co-riparian States. The Commission ordered Punjab to share the costs of the projects in Sind, concluding that the inundation irrigation of Sind had already been damaged by excessive withdrawals from the Indus rivers for projects in Punjab, the upper riparian.

The Indian Statute On River Waters

The Constitution of free India retained the principle of provincial autonomy in the subject of river waters. The Central government only acquired the power to advise and adjudicate through legally constituted River Boards and Tribunals on disputes involving co-riparian States. Article 246 (3) enjoined with the Entry 17 of List 11 of the State subjects confers on the State Legislatures the power to legislate in respect of their "waters": irrigation, canals, drainage, embankments, water storage and water power. Article 162 gives absolute executive powers to the State governments to administer the subjects over which their legislatures have the power to legislate. Article 246(1) enjoined with Entry 56 of List 1 of the Seventh Schedule confers on the Union the power to legislate and regulate on waters only of inter-State rivers and river valleys. Article 262 gives the power to the Union Parliament to make laws to adjudicate disputes or complaints with respect to the use, distribution or control of inter-State river waters or river valleys.

Armed with these constitutional powers the Union Parliament enacted several legislations specific to inter-State rivers and river valleys. The River Boards Act of 1956 empowers the Union government to set up River Boards for inter-State rivers with the objective to "advise the States.... in particular on questions relating to the coordination of their activities.... with a view to the resolution of inter-State conflicts. "The Statement of Objectives and Reasons appended to the River Board Bill, 1955, before it was passed as an Act by Parliament, had categorically stated the following:

"Water being a State subject, it is necessary that the initiative and responsibility for development of inter-State rivers and river valleys primarily rest on the State governments in relation to inter- State rivers and river-valleys remain unaffected, it is also necessary to make suitable provision for resolving conflicts among the State governments and for achieving maximum results in respect of conservation, control and optimum utilisation of water resources of inter- State rivers."

It is obvious that under the Act the Union has no power to intervene in matters of a State river or even an inter-State river or river valley if there is no inter-State dispute. Another Legislation passed by Parliament in 1956 - the inter-State Water Disputes Act, 1956 - empowers the Union government to arrange for adjudication of inter-State water disputes if the conditions mentioned below apply:

1. The dispute or "difference" must be between two or more State governments.

2. It must not relate to "any matter which may be referred to arbitration under the River Boards Act".

3. The dispute must be with respect to (a) the use, distribution or control of the waters of any inter-State river or river valley, or (b) the interpretation of the terms, or the implementation, of a subsisting agreement relating to the condition(s).

4. It becomes justifiable only when the "interests" of the complaining State in the waters have been, or are likely to be affected prejudicially.

Politics Against The Law

However, following the reorganization of Punjab in 1966, the Central government acquired the authority under the Punjab Reorganization Act to control and dispense river waters of Punjab as well as hydroelectric power generated from them and to manage the Bhakra Nangal and the Beas projects. These powers acquired by the Central government under the Punjab Reorganization Act of 1966 are not only unprecedented but are also violative of the Indian Constitution which makes it plain that the Centre has no authority to allocate waters from the rivers of a State which flowed only within its own territories to non-riparian States or to assume their management. River water under the Constitution is a State subject. When the State of Madras was bifurcated, it had lost all rights to the waters of the Krishna and Pannar rivers because Madras became non-riparian in regard to these rivers which, after bifurcation, belonged to Andhra State alone. In another case pertaining to Rajasthan's claim on Narbada, a tribunal presided over by a sitting judge of the Supreme Court of India had observed: "Rajasthan, being a non-riparian state in regard to Narmada, cannot apply to the tribunal because under the Act only a co-riparian State can do so.S However, in an unprecedented move of discrimination against Punjab, the Central government asked both Punjab and Haryana to come to an agreement on the sharing of river waters within two years of their constitution. In 1976 during the period of Emergency when most of the Akali leaders were in jails, Prime Minister Indira Gandhi gave an award allocating 3.5 MAF of water each from the Ravi-Beas project to Haryana and Punjab and 8.0 MAF of water from Punjab's rivers to Rajasthan. Before the reorganisation of the states, the region of Haryana had been receiving 0.9 MAF of water from the same projects.

Mrs. Gandhi had given her award during the period of Emergency when the democratic process in the country was under suspension. In the general elections held in March 1977, Mrs. Gandhi's Congress party was defeated. The Akali Dal in alliance with the Janta Party formed a coalition government in Punjab. The government filed a petition in the Supreme Court of India, challenging the Constitutional validity of the award as well as the sections 78 and 80 of the Punjab Reorganisation Act by whose mandate the Union government had arrogated to itself the authority to allocate Punjab's river waters to its non-riparian neighbours. The petition was admitted and was still pending in the court when in 1980 Mrs. Gandhi's Congress Party staged a comeback to capture power at the Centre as well as the States in the northern India. In 1981 Mrs Gandhi persuaded the Chief Ministers of Punjab and Haryana to withdraw their cases against the award of 1976 from the Supreme Court while she was still negotiating with the leaders of the Akali Dal who were carrying out their agitation with the river waters being one of the main issues.

Punjab was a deficit State in food production for some years after the partition of 1947. But soon it became India's bread basket because the enterprising peasants of the State adopted the system of multiple cropping which depended on, fortunately, available intensive irrigation. Wheat paddy rotation, alternating with cultivation of cash crops like sugarcane and potatoes, which is the key to the Green Revolution in Punjab, depended on assured irrigation of five to six acre feet of water per acre. With its cultivable area of 10.5 million acres, Punjab's water requirement for agriculture is 50 to 60 MAF. The total availability of waters from the Sutlej, Beas and Ravi rivers is only 37 MAF, which is 23 MAF short of its actual requirement. To make up for the deficiency, they have had to depend on tube well irrigation whose costs are prohibitive, especially if pump sets are run on diesel instead of electricity. The most dangerous aspect of this dependence on sub-soil water is that the source is getting depleted fast. If the depletion of sub-soil water is not checked, the process will lead to the advent of semi-arid conditions in Punjab. Every drop of Punjab's river water resources must be saved for the requirement of its peasantry. The State has no river water to give away to its non riparian neighbours; the main contention of the Sikh agitation.

Linked closely with the dispute regarding the sharing of river waters is the issue of hydroelectric power generated from harnessing Punjab's river waters. Under sections 79 and 80 of the Punjab reorganisation Act the Central government acquired the authority to control distribution of hydel power generated from the multipurpose projects on the three rivers of Punjab. The reorganisation of the State in 1966 also excluded from Punjab territory its major dams and head works like the works like Thein, Pong and Bhakra by few kilometres. The Bhakra Nangal Dam, the eighth largest project of its kind in the world and the largest in Asia, with the capacity to irrigate 1,000,000 hectares of land and a power capacity of 1,050,000 kilowatts was, until 1966, controlled by a non- statutory Board under the Punjab government. After the reorganization of the State, control of the project was taken over by the Central government.

The Central government also interfered to stop the functioning of a Thermal Plant near Ropar which was to generate 400 megawatts (400,000 Kilowatts) of electricity. An objection raised by the government of Rajasthan against the drawing of water from a canal on the Sutlej river to cool the plant, was used as a pretext. The objection was raised to blackmail Punjab into sharing its hydroelectric and thermal power with other states even as they shared Punjab's river waters. The Central government sustained the objection and the plant remained inoperative until Punjab succumbed to the blackmail.

These are, and remain, since the reorganization of the State in 1966 some of the main issues of agitation of the Akali Dal against the Centre, themselves supervening from the socioeconomic paradoxes of the situation in the State.