Constitution: Explicit provisions of the Constitution of India, regarding river waters and river valleys, have been subtly made murkier and confusing to the unwary reader while drafting the Punjab Reorganisation Act, 1966 by skilfully interweaving texts and sub-texts, theoretical reasoning and contestable facts. With a view to dispelling misinformation, confusion and ignorance pertaining to the Punjab river water dispute, I have, in this article, discussed only the Constitutional and legal aspect of the problem.

"Article 262. (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the water of, or in, any inter-state river or river valley."

"2. Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1)."

The Parliament is competent to make laws for the adjudication of disputes relating to water of inter-state rivers or river valleys.

In explaining the need for an extra-judicial machinery to settle inter-state dispute relating to water supplies, the joint Parliamentary Committee Report observed:

Under Article 246 of the Constitution, the Legislature of any State has exclusive power to make laws with respect to the matters enumerated in List II (State List) of the Seventh Schedule of the Constitution. Entry number 17 of the State List reads as under:

"17. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of list I. (Union List)."

Entry 56 of the Union List is set out below:

Mala-fides: While enacting the Punjab Reorganisation Act, 1966, the Government of India unconstitutionally engrafted Sections 78, 79 and 80, impinging upon the exclusive rights of Punjab. The relevant provisions of Section 78 of the Punjab Reorganisation Act, 1966 are as follows:

On March 24, 1976 Government of India issued a notification distributing Punjab river waters, at the behest of Prime Minister Indira Gandhi and Congress Government in Punjab. The Akali Government of Punjab, in suit No. 2 of 1979, challenged this distribution as also the vires of the Sections 78 to 80 of the Punjab Reorganisation Act, 1966, before the Supreme Court. The Akali Government in Punjab was succeeded by Congress Government, and the Prime Minister Indira Gandhi had an agreement hammered out on 31-12-1981 among the chief ministers of Punjab, Rajasthan and Haryana (all of them of her party) and had the 1979 Punjab suit withdrawn on 12-2-82.

Contentious Canal: The Prime Minister then inaugurated the digging of SYL canal at Kapuri (Dist. Patiala). The Shiromani Akali Dal and Communist Party (Marxist) launched an agitation against the 31-13-81 agreement and consequential start of the canal digging (CPM withdrew from this agitation when it was turned into ‘Dharam Yudh’ by the Akalis who carried on the agitation for a long time).

This agitation ended with the signing of an accord between Prime Minister Rajiv Gandhi and President, SAD Sant Harchand Singh Longowal on July 24, 1985 (Punjab settlement). As per this settlement, the ‘dispute’ was referred to a Tribunal and this Tribunal was recognised by adding Section 14 in the Inter-State Water Disputes Act, 1956 which reads as under:

"Section 14: Constitution of Ravi and Beas Waters Tribunal:

(1) Notwithstanding anything contained in the foregoing provisions of this Act, the Central Government may, by notification in the official gazette, constitute a tribunal under this Act, to be known as the Ravi and Beas Waters Tribunal for the verification and adjudication of the matters referred to in paragraphs 9.1 and 9.2 respectively of the Punjab Settlement:

The Punjab Assembly, through a resolution on 5-11-85, repudiated the agreement of 31-12-81.

The Inter-State Water Dispute Tribunal (Eradi Tribunal) gave interim award on January 30, 1987 with respect to the distribution of Punjab river waters. The Punjab Government filed objections before this Tribunal which are still awaiting decision.

No award has been notified by the Government of India and, consequently, there is no award to be enforced. The Haryana Government filed suit under Article 131 of the Constitution, which was decided by the Division Bench comprising of Justice G.B. Patnaik and Justice Ruma Pal on January 15, 2002. In their order, the learned Division Bench held that the construction of the SYL canal has absolutely no connection with the sharing of water between the states and as such is not a "water dispute" and that the state governments having entered into agreements among themselves, on the intervention of the Prime Minister of the country, resulting in withdrawal of the pending suits in the court, cannot be permitted to take a stand contrary to the agreements arrived at between themselves. The Supreme Court further held that the SYL canal should be completed and made functional within one year from its order of January 15, 2002.

The Supreme Court DB assumed to itself authority which is not vested in it by the Constitution of India and erred in arriving at its conclusions. The whole case before the Supreme Court was with respect to the completion of SYL canal for the carriage of Punjab river waters to Haryana, pursuant to the notification 24-3-76, agreement of 31-12-81 and settlement of July 24, 1985. Case of none of the parties before the Supreme Court was with respect to any matter other than the use, distribution and carriage of Punjab river waters through a canal termed as SYL canal. The SYL canal, as per contention of the parties is meant only for use as irrigation canal. It is crystal clear that the SYL canal is to be used for the carriage and distribution of river waters and is not intended for any other use, say, engineering museum, tourist park or a defence embankment. So far there is no enforceable award for the distribution of Punjab river waters and the SYL canal, if dug up, cannot be used as canal for carriage of any waters.

Imposition: The March 24, 1976 notification (government fiat) was superseded by the agreement of 31-12-81 and the latter was superseded by the Punjab Settlement of 24-7-1985. It was not an agreement between competent parties and even this settlement was rejected by the Punjab Assembly on 5-11-85. Thus there had been no binding agreement between the parties and Punjab has been - persistently and assiduously - pleading against the unjust and unconstitutional awards and agreements all this time. The conduct of Punjab has through out been consistent in its opposition to the awards and agreements. Furthermore, the 24-7-1985 Settlement (Punjab Settlement) was recognised as part of the Inter-State Water Disputes Act, 1956. It clearly established that the matter was treated as inter-state water dispute by the Government of India.

Contentions of the parties, phraseology of the agreements and the provisions of relevant enactments leave nothing in doubt that the matter of dispute concerns the construction of a canal for use, distribution and carriage of water of Punjab rivers to Haryana. The rivers Ravi, Beas and Satluj being intra-state rivers of Punjab, these belong to Punjab, and as per entry 17 of the State List of the Seventh Schedule of the Constitution of India, the State of Punjab is entitled to their ownership and control. In case these rivers are reckoned as inter-state, disputes in respect thereof are to be dealt with in accordance with the provisions of Clause(2) of Article 262 of the Constitution. In either case, Supreme Court jurisdiction is barred with respect to adjudication of this dispute concerning rivers Ravi, Beas and Satluj (exclusively of Punjab).

Some time back Punjab farmers filed a writ petition before the High Court of Punjab and Haryana at Chandigarh which was admitted by the then Chief Justice S.S. Sandhawalia. Curiously Justice Sandhawalia was transferred to Patna and the case was transferred by the Supreme Court to its own file. That case is still pending.

As per the Constitution of India and the relevant law, Punjab has complete powers over waters of its rivers Ravi, Beas and Satluj and it cannot be deprived of its right to enjoy its natural, constitutional and legal endowments. Of the three dispensations of 24-3-76, 31-12-81 and 24-7-85, only the 31-12-81 transaction was termed as agreement. Even that was ab initio void and subsequently superseded by the 24-7-85 settlement and was outrightly rejected by the Punjab Assembly on 5-11-85. It is apparent that there was/is no voluntary agreement which may be binding on Punjab.

Right since the enactment of the Punjab Reorganisation Act, 1966, resulting in the creation of Haryana, Punjab has been agitating/protesting against the unconstitutional provisions of Sections 78,79 and 80 ibid, and unremittingly asserting that Haryana had no claim on Punjab river waters. Thus Punjab has, by its consistent conduct, demonstrated non-acceptance of any obligation of any sort for supply of its river waters to Haryana.

Various factors, like the quantum of water in Punjab rivers, methods of determination of their flow, drainage gradient. Punjab’s needs, technical, financial, economic and historic appraisals, contractual obligation, moral values, cost-benefit effectiveness of irrigation/hydel power capacity, determination of projects durations, etc. can be relevant only after a decision is made regarding the use of Punjab river waters by another state either through constitutional-judicial verdict binding on the parties or through volitional agreement between Punjab and seekers of its river waters.

I think the best course lies in settling the matter through dispassionate negotiations among the leaders of the region who must demonstrate sound statesmanship, serene sagacity, diplomatic dexterity and credible commitment to craft a settlement and see to it that it is accepted and acted upon approvingly by all concerned. If this is not to happen, the parties should be allowed to have a judicial verdict on the constitutional/legal aspects of the matter.

Experience of most countries has shown that rights and interests with respect to river waters are best settled through mutual goodwill and cool headed negotiations. The courts have to function within certain judicial parameters which would not sometime help arrive at decisions satisfying the disputants. Neither will terminological twists, phraseological jugglery, legal shibboleths, political chicanery, or vacuous verbosity replete with moral bankruptcy lead to amicable solutions in the matter of water disputes concerning rivers and valleys. Geographical geometry, geological contours, historical veracity established through millennia of natural processes cannot be altered to suit the whims of political operators with puny visions.

To clinch the issue, there can be either of the following two courses:

First; the matter be got settled by the Supreme Court as to whether the provisions of Sections 78,79 and 80 of the Punjab Reorganisations Act, 1966 are intra vires of the Constitution of India and whether the waters of Punjab rivers, Ravi, Beas and Satluj are shareable with Haryana. In case the Supreme Court holds that Haryana is entitled to Punjab river waters, adjucation regarding allocation of waters can be carried out by a Tribunal under the Inter-state Water Disputes Act, 1956. The award of that tribunal will be enforceable after notification by the Central Government. The unsatisfied party may seek relief against the tribunal’s award, before or after its notification, through writ jurisdiction. Consequently, the matter may linger on indefinitely.

Second; decision may be arrived at through volitional give and take between the leaders of Punjab and Haryana. The citizens of Punjab and Haryana are one people having harmonious social relations, family ties, historical bonds, ethnic unity, cultural connections and they are large hearted and jovial. Their leaders are capable of rising above petty prejudices, parochial politicking and are competent enough to settle the matter amicably. The central government should act as an impartial mediator and honest broker to help evolve a workable and mutually satisfying agreement.