River Waters And Natural Resources

It is not untrue to say that the story of the last 40 years of central rule is the story of the oppression of the Punjabis and other nationalities and tribal peoples. In Punjab, the central government has so far not set up any big industry; a multi-branched economy with heavy industry at the base has never been established. Instead, the central government has repeatedly used the sword to deprive Punjab of its natural resources. Three rivers - the Ravi, the Beas and the Satluj pass through Punjab and then enter Pakistan. They do not touch Haryana or Rajasthan. But 75 percent of this river water is allocated to Haryana, Rajasthan and Delhi. Haryana and Delhi can draw upon the waters of the Yamuna River, which passes through the territories of those states, but they have been allocated water from the three Punjab rivers, even though these rivers are not sufficient to meet the needs of Punjab.

An internationally recognized law holds that natural resources belong to the state in which they exist. In the case of river waters, this is known as the riparian principle. Even under the Indian constitution this principle is recognized. But in complete disregard of the provisions of the constitution, the bulk of the river water is being taken out of Punjab, with devastating consequences for the economy of the state.

The economy of Punjab, which is mainly agricultural, relies heavily on river water for irrigation. If the river waters are taken away, agriculture suffers accordingly. This is all the more devastating for Punjab, since the central government has prevented industrial development from taking place in the state. For example, it has not allowed construction on the Thein Dam to begin, although the Thein Dam was to be built before 1970 in order to divert the Ravi water for irrigational and hydro-electrical needs of Punjab. Under one pretext or another, the central government has sabotaged the construction of this dam.

But it is not only Punjab that will be hurt by the loss of its river waters. The rest of India will also suffer, because Punjab currently contributes more than 60 percent of food grains to the national pool.

Nor is Punjab squandering its river waters. The total water capacity of these three rivers is about 32 million acre-feet, and the total requirement of Punjab is about 52 million acre-feet. If all the water of these three rivers is utilized by Punjab, then it is still short 20 million acre-feet. Punjab must supplement its water needs for irrigation and other purposes by the more expensive method of digging wells.

Canals from the rivers are the cheapest mode of irrigation, while irrigation by tubewells and diesel engines is the most costly and uneconomical method. Many farmers in Punjab will be ruined if they cannot irrigate with river water. The central government seems to have given no consideration to the devastating consequences of this policy for Punjab and the rest of the country.

Rajasthan had also applied for a share in the Narmada river, and a Tribunal was constituted under the chairmanship of a Supreme Court Judge which gavs its judgement in 1974. It held that Rajasthan had no locus standi to apply for a share in Narmada waters, as the river does not touch Rajasthan. The riparian principle was upheld in that decision. How is it that the same principle is not applicable in the case of Punjab rivers?

The riparian principle was recognized even by the British colonialists. When the Maharajah of Bikaner, Ganga Singh, wanted to dig a canal from the Satluj River in 1924, the British Viceroy of India told him that he should make his request to the Punjab government, since the river belongs to Punjab and not to India. The Punjab government permitted the Maharajah of Bikaner to dig the canal known as the Gang Canal, for which it received an annual payment until 1948, when the present rulers came into power.

The robbery of the river waters and the hydro-power resources of the state started soon after independence. But the most unconstitutional and deliberate effort to deprive Punjab of its resources was made when the new state was formed in 1966.

Sections 78 to 80 of the Punjab Re-organization Act of 1966 are contrary to the constitution itself. Under Section 78, the central government has the authority to allocate the distribution of river waters and hydropower from Punjab rivers in case of disagreement between Punjab and Haryana. This power was exercised by the central government in 1976 when it gave over 75 percent of the river waters and hydro-power of Punjab rivers to the non-riparian states of Haryana, Rajasthan and Delhi.

The powers of control, administration and maintenance of the multi-purpose projects and headworks on the three Punjab rivers have been completely transferred from the Punjab government to the central government. At first, the Bhakra Control Board was a non-statutory board of the Punjab government comprised of: a chairman, secretary, the general manager of the Project, three members from the Punjab, two members from Rajasthan and one from Himachal Pradesh. This board and its administration worked under the Punjab government.

Under Sections 79 and 80 of the Punjab Re-organization Act, a statutory board was created under the control of the central government. It provides for the chairman, two working members and two other members to be appointed from the centre and one member each from Haryana, Himachal, Punjab and Rajasthan. This board will also control the Beas project when it is completed, as well as any future extension of the projects on all three Punjab rivers. The central government also has usurped the power to decide on the extension of the multi-purpose projects involving both water and power on the three Punjab rivers.

Consequently, since 1966, the subjects of irrigation and hydro-power have virtually ceased to be state subjects and have unconstitutionally been transferred from the state government to the central government.

Sections 78 to 80 of the Punjab Re-organization Act of 1966, which have deprived the Punjabis of fundamental rights, are clearly unconstitutional. Entry 17 of List II of the constitution provides that water power and irrigation are state subjects. Under Article 262 and Entry 56 of the constitution of India, the state has full legislative and executive powers over all the state subjects. The central government has no authority, executive or legislative, in regard to any state river or its hydro power.

Under Entry 56 of the Central List, Parliament can legislate for the development of inter-state rivers. Parliament has enacted the River Boards Act ( 1956) under this provision. Its provisions clearly indicate the intention and scope of Entry 56, because they relate only to those rivers that run in the areas of operation of two or more states.

Article 262 of the constitution provides for interstate river water disputes. Parliament has expressed the intention and scope of this article in the Inter-State Water Disputes Act (1956). The provisions of this Act relate to the settlement of claims by two states over the waters of a river flowing through both states. Neither under Entry 56 nor under Article 262 does the central government have any authority to allocate the waters and hydro-power of the Satluj, Ravi and Beas rivers, which within the boundaries of India are wholly in Punjab and cannot be called inter-state rivers.

The issue of whether a non-riparian state has any right to the waters of rivers running in other states was decided in 1974 by the Narmada Water Tribunal constituted under the Inter-State Water Disputes Act (1956). At that tribunal, Rajasthan, a non-riparian state, made a claim to the Government of India for water rights in the Narmada river, which runs through Madhya Pradesh, Maharashtra and Gujrat but not through Rajasthan. The tribunal ruled: "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. And the state of Rajasthan is not entitled to any portion of the waters of Narmada basin on the grounds that the state of Rajasthan is not a co-riparian state in that no portion of its territory is situated in the basin of River Narmada."

This tribunal was presided over by a sitting judge of the Supreme Court. Sections 78-80 of the Punjab Reorganization Act are not only beyond the legislative powers of Parliament, but are also discriminatory and violate the fundamental rights as provided in the Equality Clause of Article 14 of the Constitution of India. These sections fail to protect the constitutional and riparian rights of Punjab by assuming powers of control, distribution and administration over Punjab river waters, headworks and projects.

On the other hand, they give protection to Haryana by excluding from these sections the powers of control, distribution and administration of the waters of Yamuna and its related projects and headworks like Tajewala and Okhla, etc.

The Supreme Court has consistently held that the Equality Clause of Article 14 of the Constitution of India is violated where unequals are treated equally, and equals are treated unequally. Such a violation is evident in the context of Punjab's river waters and their distribution to other states.

In 1955, it was decided that Punjab would give eight million acre-feet of the waters of its rivers to Rajasthan.

This allotment was not an agreement between Punjab and Rajasthan, but a hastily-made arrangement purely for the consumption of the World Bank team visiting that year.

This allotment, which has no legal basis was first included in the award of 1976 and later in the agreement of 1981. Regarding the utilization of Ravi and Beas, the tribunal reported: "The apportionment of water was the result of an agreement. It appears from Rajasthan Documents Volume VI at page 26 and 32, that Punjab was prepared to satisfy the needs of Rajasthan provided its own needs as a riparian state were first satisfied."

Justice S.M. Sikri, retired Chief Justice of the Supreme Court, points out: "The fact that the central government paid to Pakistan a sum of Rs62 million in order to obtain unrestricted use of all waters of eastern rivers, the Sutluj, Ravi and Beas, is irrelevant to the question, namely what, if any, are the rights of Haryana in the Ravi and Beas. It is irrelevant because the effects of the Indus Treaty (1960) was that the sovereign right of erstwhile state of Punjab to control or regulate the use of water of Ravi and Beas, which was a limited right in 1966, in view of the existing international servitude (page 51 of law of succession by Counsel) ceased to be limited in 1970. It was the re-organized state of Punjab which had either retained the sovereignty under the Act, or acquired it under the Act."

These issues relate to constitutional matters. It was the Supreme Court alone which had jurisdiction to adjudicate them. Therefore, the Punjab government filed a suit under Article 131 of the Constitution of India, questioning the validity of the award of 1976 and the relevant provisions of the Re-organization Act. The Government of India could easily foresee the outcome of the Supreme Court case and the fate of its award of 1976. Faced with the possibility of having an Act declared unconstitutional, it asked the Congress governments of Rajasthan, Haryana and Punjab to enter into an agreement and therefore to withdraw the case from the Supreme Court.

This was clearly engineered to avoid the exposure of the unconstitutional and undue benefits given to Haryana, Rajasthan and Delhi at Punjab's expense.

After the case was withdrawn, the Prime Minister herself laid the foundations of the SYL Canal, the execution of which was clearly illegal and unconstitutional. Had the Supreme Court case not been withdrawn, and had the court rendered its widely anticipated decision, there would not have been any water disputes, or any agitation in this regard.

Punjab has an arable area of 10.5 million acres. According to land-use experts, double-cropping needs five to six acre-feet of water per acre annually. Therefore, the minimum water requirement of Punjab comes to about 50-60 million acre-feet. At present, out of 10.5 million acres, only about 3.5 million acres are irrigated by canals, about five million acres are irrigated by tube wells and about two million acres remain unirrigated. The subsoil water table in Punjab is being depleted and going down every year, under the strain of 600,000 tube wells. Punjab has only 32 miliion acrefeet of available water. Before 1947, out of the waters of these three Punjab rivers, about nine million acrefeet were being used in the riparian Punjab, and only about 1.2 million acre-feet were going to the nonriparian Bikaner state for which Punjab was getting a set fee. After independence, when the central government got an opportunity to allot the remaining 22 million acre-feet of water, about 18 million acre-feet were given to the non-riparian states of Haryana, Rajasthan and Delhi, and less than 20 percent of its own remaining water fell to the share of riparian Punjab.

The same ratio has applied to the distribution of hydro energy.

Such is the unfairness and unconstitutionality of central decisions since 1947 that have led Punjab and Punjabis generally to lose confidence in the sense of justice and fairness of the central government, and to resort to the agitational approach. Punjab is being starved of water and electric energy, seriously affecting both its industrial and agricultural development.

The capitalized value of the water allotted to the other states under the central government decisions, when assessed at standard rates, comes to Rs360 trillion. The loss of agricultural production alone is about Rs25 trillion per annum, with a corresponding gain to the other states. The loss in industrial development on account of the corresponding allotment of energy would be about four times more than the loss in agricultural production.

Therefore, no honest person in the state can look upon this loss or drain with a sense of equanimity. This loss will continue for all time to come. It will adversely affect the future generations and all their employment and economic prospects.