The au­thor at­tempted to place a pri­vate mem­bers bill in the just-con­cluded Pun­jab As­sem­bly ses­sion on the con­tentious Pun­jab Wa­ters Dis­pute with Haryana and Ra­jasthan. Here he tells the ra­tio­nale of his bill and how suc­ces­sive gov­ern­ments in Pun­jab and the Union gov­ern­ment of In­dia have been de­ceived by not fol­low­ing through court cases ap­pro­pri­ately and only play­ing pol­i­tics on the sub­ject.

Pun­jab has lost all le­gal bat­tles at all stages re­lat­ing to the Sut­lej Ya­muna Link Canal. As we await a for­mal de­ci­sion by the Supreme Court of In­dia whose ju­di­cial bench, at the last hear­ing, has clar­i­fied that Pun­jab has to con­struct the canal and that at the next court hear­ing (11 July 2017), Pun­jab has to clar­ify what it pro­poses to do. Just as the Cen­tral gov­ern­ment is re­spon­si­ble for this fi­asco, so are the var­i­ous state gov­ern­ments of Pun­jab from time to time. None of the gov­ern­ments have taken a clear-cut pro-Pun­jab stand on the is­sue.

To save the wa­ters of Pun­jab for Pun­jab, the Lok In­saaf Party had pro­posed to place a pri­vate mem­bers bill in the just-con­cluded bud­get ses­sion of the Pun­jab As­sem­bly. Had the state gov­ern­ment al­lowed us to place the bill and then sub­se­quently passed it on merit, there was a big pos­si­bil­ity to suc­cess­fully stop the con­struc­tion of the Sut­lej Ya­muna Link Canal as well as stop the flow of nearly 75 per­cent of Pun­jab wa­ters to neigh­bour­ing states. In case Pun­jab would want to give the wa­ters away, if it can af­ford it, then Pun­jab could earn mil­lions of ru­pees in the bar­gain. The state of Ra­jasthan owes a whop­ping 16 lakh crores in roy­alty for wa­ters re­ceived from Pun­jab in the last five decades.  

The wa­ters dis­putes be­tween Pun­jab and Haryana is viewed as a fight for dis­tri­b­u­tion of river wa­ters; var­i­ous gov­ern­ments of Pun­jab, from time to time, have at­tempted to re­solve this from this stand­point. As per the Con­sti­tu­tion of In­dia, Haryana can­not be a part­ner in the shar­ing of wa­ters from the Pun­jab. In an un­con­sti­tu­tional man­ner, at the time of the di­vi­sion of Pun­jab into Pun­jab and Haryana, the state of Haryana was given a right to share Pun­jab wa­ters by in­ser­tion of Sec­tion 78 into the Pun­jab Re­or­gan­i­sa­tion Act, 1966.

“The wa­ters dis­putes be­tween Pun­jab and Haryana is viewed as a fight for dis­tri­b­u­tion of river wa­ters. As per the Con­sti­tu­tion of In­dia, Haryana can­not be a part­ner in the shar­ing of wa­ters from the Pun­jab. At the time of the di­vi­sion of Pun­jab into Pun­jab and Haryana, the state of Haryana was given a right to share Pun­jab wa­ters by in­ser­tion of Sec­tion 78 into the Pun­jab Re­or­gan­i­sa­tion Act, 1966.”

Ac­tu­ally, the state of Pun­jab should have sought the an­nul­ment of Sec­tion 78 of the said Act which en­ti­tled Haryana to a share of Pun­jab river wa­ters. If the ques­tion of shar­ing was re­solved ab ini­tio, then the ques­tion of dis­tri­b­u­tion of Pun­jab wa­ters would not have arisen. All along, Pun­jab kept plead­ing that Pun­jab does not have spare wa­ter for Haryana, whereas the ar­gu­ment should have been that Haryana has no right over Pun­jab wa­ters.  This dif­fer­ence in the ar­gu­ment has led to the pre­sent stale­mate.

How is Sec­tion 78 un­con­sti­tu­tional?

As per en­try 17 in the State List in Sched­ule 7 of the Con­sti­tu­tion of In­dia, the com­plete own­er­ship of the non-in­ter-state rivers and the elec­tric­ity head­works built thereon would de­volve on the state in which the river flows. The Union gov­ern­ment can­not make a law on the sub­ject.  As per en­try num­ber 56 of the sev­enth sched­ule of the Con­sti­tu­tion of In­dia, the Union gov­ern­ment can make laws only on in­ter-state river wa­ters. There is no con­nec­tion be­tween the river wa­ters of Pun­jab with Haryana and Ra­jasthan as the Pun­jab wa­ters are not in­ter-state wa­ters. There­fore, sim­ply speak­ing, the Union gov­ern­ment has no au­thor­ity to make any rule or law con­nect­ing the wa­ters of Pun­jab with that of Haryana and Ra­jasthan. In this way, the pro­vi­sions of Sec­tion 78, 79 and 80 of the Pun­jab Re­or­ga­ni­za­tion Act 1966, which rule about the wa­ters and elec­tric­ity head­works of Pun­jab is grossly il­le­gal and un­con­sti­tu­tional.

No le­gal re­course for re­peal of Sec­tion 78:

Pun­jab has at­tempted to re­peal Sec­tion 78 on two oc­ca­sions in the past. The first at­tempt was made by Prakash Singh Badal on 11 July 1979 when he pe­ti­tioned the Supreme Court of In­dia on the sub­ject. When he was not in power, the next in line Chief Min­is­ter Dar­bara Singh with­drew the State of Pun­jab pe­ti­tion on 12 Feb­ru­ary 1982. On 13 Jan­u­ary 2003, Cap­tain Amarinder Singh chal­lenged the im­pugned pro­vi­sions in the Supreme Court. On 4 July 2004, while de­liv­er­ing a judge­ment on the Sut­lej Ya­muna Link Canal, the Supreme Court, among other things, ad­ju­di­cated that since Pun­jab had on its own with­drawn the said pe­ti­tion ear­lier, it can­not ask the Court to ad­ju­di­cate again on re­peal of Sec­tion 78 of the Pun­jab Re­or­gan­i­sa­tion Act. For this the Supreme Court cited Supreme Court rules of 1966. Prior to the Supreme Court judge­ment on the is­sue, the State of Pun­jab had chal­lenged this rule of the Supreme Court too, but that too was dis­lodged by the Court at the ini­tial hear­ing it­self.

The Pres­i­dent of In­di­a’s du­bi­ous ques­tion­naire to the Supreme Court:

Cap­tain Amarinder Singh made a half-hearted at­tempt to stop the con­struc­tion of the Sut­lej-Ya­muna Link Canal by en­act­ing the Pun­jab Ter­mi­na­tion of Agree­ments Act 2004. It was half-hearted and tech­ni­cally wrong be­cause Haryana was not seek­ing wa­ters as per an agree­ment but as a mat­ter of right flow­ing from the pro­vi­sion of Sec­tion 78. The agree­ments made sub­se­quently were only to en­sure that the shar­ing of wa­ters would be ef­fec­tively car­ried out. The ques­tion­naire sent by the Union gov­ern­ment on be­half of the Pres­i­dent of In­dia to the Supreme Court was so worded that the elicited re­sponse would go against the State of Pun­jab. The ques­tions for which opin­ion was sought were:

1. Is this Pun­jab law as per the con­sti­tu­tion of In­dia?
2. Is this law not a vi­o­la­tion of Sec­tion 14 of the In­ter-State Dis­putes Act 1956? b. Is this Act not a vi­o­la­tion of the pro­vi­sions of Sec­tion 78 of the Pun­jab Re­or­gan­i­sa­tion Act? c. Is this Act not a vi­o­la­tion of the no­ti­fi­ca­tion is­sued on 24 March 1976?
3. It ap­pears that the Pun­jab Act is a vi­o­la­tion of the three sub-ques­tions asked in ques­tion num­ber 2 by the Pres­i­dent of In­dia be­cause the above three con­sid­er­a­tions and the said no­ti­fi­ca­tion re­late to shar­ing Pun­jab wa­ters of Ravi-Beas with Haryana which the Pun­jab Act pro­poses to stop and hence is a vi­o­la­tion.
4. Is the Pun­jab Act a vi­o­la­tion of the Wa­ters Agree­ment of 31 De­cem­ber 1981?
5. Has Pun­jab car­ried out its du­ties as per the or­ders of the Supreme Court of In­dia re­gard­ing start­ing the con­struc­tion of the Sut­lej Ya­muna Link canal?

The ques­tions were so stated that it was ob­vi­ous that the opin­ion would go against the State of Pun­jab and so it did. This is be­cause the Pun­jab Act was a vi­o­la­tion of Sec­tion 78 of the Pun­jab Re­or­gan­i­sa­tion Act and the pro­vi­sions of the 1956 Act. It was also a vi­o­la­tion of the no­ti­fi­ca­tion dated 24 March 1976 and the agree­ment reached on 31 De­cem­ber 1981.

How did Pun­jab lag be­hind?

The gov­ern­ment of Pun­jab should have in­sisted that the Pres­i­dent of In­dia in­clude an­other ques­tion in the ques­tion­naire to the Supreme Court of In­dia seek­ing to know the con­sti­tu­tional va­lid­ity un­der Ar­ti­cle 14 of Sec­tion 78 of the Pun­jab Re­or­gan­i­sa­tion Act and the 1956 Act. Both are un­con­sti­tu­tional. The 1976 no­ti­fi­ca­tion and the 1981 agree­ment were made un­der pro­vi­sions of Sec­tion 78. There­fore, both the no­ti­fi­ca­tion and the agree­ment would have been ren­dered un­law­ful and il­le­gal. How­ever, from the year 2002 to 2016, for 14 years, Pun­jab did not con­sider this at all.

“On be­half of the Lok In­saaf Party, I ap­peal to the gov­ern­ment of Pun­jab to in­tro­duce the con­tents of the bill in whichever for­mat they deem proper. The ques­tion here is not of seek­ing cred­its for a move, the moot point is how we can save the wa­ters of Pun­jab.”

When the land records of a piece of land are recorded in the state rev­enue reg­is­ter, there is a col­umn wherein the name or names of own­ers are filled in and the own­ers be­come part­ners of the said land. In case some­one through com­plic­ity of rev­enue of­fi­cials records a third per­son’s name in the own­er’s col­umn, then he too be­comes a part­ner in the said land. In such a sce­nario, the pre­vi­ous own­ers can­not dis­al­low the new part­ner from shar­ing the land on the ba­sis of the ar­gu­ment that his share is a very small one.

In such a sit­u­a­tion, the ac­tual owner files a case against the fraud­u­lent owner seek­ing an amend­ment to the rev­enue records. How­ever, if some­one in his naivety, con­tin­ues to main­tain the same tam­pered rev­enue records but keeps re­peat­ing and sulk­ing ad nau­seam that he has only a small piece of land, then he can­not hope for jus­tice from any court. This is the tragedy of Pun­jab. Haryana and Ra­jasthan, through pro­vi­sions of Sec­tion 78 have fraud­u­lently and forcibly en­tered as co-own­ers of Pun­jab wa­ters with full com­plic­ity of the Union gov­ern­ment.

Un­for­tu­nately, Pun­jab never made Sec­tion 78 as the prime fo­cus of the wa­ters dis­pute with its neigh­bour­ing states. This is the main rea­son for in­jus­tice to Pun­jab. Catch­ing the bull by its horns, it can be said that by show­ing a fraud­u­lent rev­enue record, the Supreme Court was asked to ad­ju­di­cate upon the ques­tion of Haryana’s share of Pun­jab wa­ters. In­stead, if the Supreme Court was clearly asked to strike down the va­lid­ity of pro­vi­sions of Sec­tion 78, the im­pugned pro­vi­sions would have been stood an­nulled and along with that the pseudo-rights of Haryana.

Our Pro­posed Bill:

As it stands, Pun­jab has no le­gal re­course to re­peal pro­vi­sions of Sec­tion 78. Now, only the Pres­i­dent of In­dia can ask the Supreme Court to ad­judge the va­lid­ity of the pro­vi­sions of this sec­tion. What we had pro­posed is that the gov­ern­ment of Pun­jab take up our pri­vate mem­bers bill and pass the same in the Pun­jab As­sem­bly. Sub­se­quently the same is to be sent to the Pres­i­dent of In­dia who through a pres­i­den­tial ref­er­ence seeks to add the same to its ques­tion­naire sent in 2004, seek­ing to know the va­lid­ity of Sec­tion 78 and the pro­vi­sions of the 1956 un­der Ar­ti­cle 14 of the Con­sti­tu­tion of In­dia.

I chal­lenge that if this route is fol­lowed the Supreme Court of In­dia will have no choice but to strike down the pro­vi­sions of Sec­tion 78. To me, this and only this is the only way out to get jus­tice for Pun­jab. Both Cap­tain Amarinder Singh and Prakash Singh Badal have ear­lier pe­ti­tioned the Supreme Court of In­dia seek­ing an­nul­ment of the Sec­tion 78 pro­vi­sions. There­fore, it is their duty to lend voice to this last-ditch at­tempt to save Pun­jab wa­ters. The Aam Aadmi Party has al­ready sup­ported the bill. On be­half of the Lok In­saaf Party, I ap­peal to the gov­ern­ment of Pun­jab to in­tro­duce the con­tents of the bill in whichever for­mat they deem proper. The ques­tion here is not of seek­ing cred­its for a move, the moot point is how we can save the wa­ters of Pun­jab.

Notwith­stand­ing the pos­si­ble judge­ment of the Supreme Court of In­dia in the com­ing days, we will make a fresh at­tempt to rein­tro­duce our pri­vate mem­bers bill seek­ing an­nul­ment of Sec­tion 78 in the next ses­sion of the Pun­jab As­sem­bly.