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.