Inter-State River Water Disputes in India: A Study of Water Disputes Between Punjab and Haryana

Introduction

Besides creating political tensions between the riparian states, most of the inter-State river water disputes in India, often, challenge the federal arrangements made in the Indian Constitution. One such inter-State water disputes is between Punjab and Haryana over sharing waters of Ravi–Beas rivers through Sutlej–Yamuna Link (SYL) canal. This dispute is existing since Haryana was carved out of Punjab in 1966 but took a serious turn in 2004 when, using its legislative power, the Punjab government through an Act terminated its water sharing agreements with the adjoining riparian states. While doing so, the government of the day did not take into account the fact that the water sharing agreement it terminated was mediated by the Union government of India. Therefore, its Act not only created a water-related tension between the adjoining states but also challenged the constitutional authority of the Union government over the states in India. Reacting against the legislation, the President of India, after an advice from the Union cabinet, referred the matter to the Supreme Court (SC) of India to seek an advisory opinion. ¹ On 10 November 2016, the SC delivered its opinion on the Punjab Termination of Agreement Act, 2004. In the advisory opinion, explaining Union–State relations, Justice Shiva Kirti Singh wrote:

Despite the distribution of legislative power by Article 246, leave aside the situations of emergency, even during normal times provisions like Articles 248, 249, 251, 252, 253 and 254 run counter to the normal legislative powers of States. Over subjects covered by the Concurrent List, in the case of any repugnancy, the laws by Parliament have superiority and prevail over those by State Legislature. Executive powers are understandably co-terminus with the legislative powers. (RE: The Punjab Termination of Agreement Act, 2004, 2016, p. 43)

Obviously, this opinion was not welcomed by the Punjab government and it decided to take other measures to restore its rights over ‘own’ waters. On the contrary, the Union government accepted the SC’s observation on the issue. Excluding introduction and conclusion, this article is divided into three parts. The first section looks into the constitutional provisions regarding the inter-State water issues in India. It also highlights the recommendations and the policies adopted by the Union government to address inter-State water disputes. The second part of the article discusses the water disputes between Haryana and Punjab. The last part is on another water-related bill passed by the Punjab Assembly in 2016.

Inter-State River Water-related Constitutional Provisions, Recommendations and Proposals in India

In an independent India, to accrue benefits from the water infrastructures, multipurpose hydropower plants were planned. Though federal system was adopted by the Indian Constitution, most of those projects were commissioned by the Union government because, at that time, states had not enough financial resources to build water infrastructures. This issue was settled in the Constituent Assembly debates itself where most of the members were in favour of giving more powers to the Union government to develop rivers water, especially, inter-State flowing rivers. Highlighting it, Hussain Imam ² said (Constituent Assembly Debates, Volume V, 1989, p. 172):

In the smaller rivers, or rather in the case of rivers in which only one Province is concerned it could remain as at present a Provincial subject. But where large rivers are concerned, in which two or more provinces are concerned or interested, it is only proper that these should remain a Central or Federal subject so that the present difficulties which we have to encounter of getting the concurrence of the Provinces, asking them to bear some part of the expenses and cost thereof all these create difficulties–may be avoided….I therefore suggest that in framing this item, care should be taken to see that there is no encroaching on Provincial rights, as far as rivers, in which only one Province is interested, concerned. But where more than one Province is interested in a River, and the work is of a major nature involving power development together with irrigation, it should remain a Federal subject.

Consequently, on 1 September 1949, after debates, the Constituent Assembly accepted that ‘The regulation and development of inter-State rivers and river-valleys to the extent to which such regulation or development under the control of the Union is declared by Parliament by law to be expedient in the public interest.’ (Central Water Commission, 2016, p. 146; The Constitution of India, 2015, p. 324). This was finally adopted as entry 56 in the Union List of the Constitution. However, the states retained some power over the water resources under Entry 17 of the State List, which says ‘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’ (The Constitution of India, 2015, p. 329). Hence, both Union and the State governments have their areas of jurisdictions over water bodies of the country.

Even during the British imperialism in India, inter-provincial water disputes like those between Punjab and Sindh were there. To deal with them certain provisions were enacted in Sections 130–134 of the Government of India Act of 1935. On similar lines, the members of the Indian Constituent Assembly drafted provisions in articles 239–242. Later, all such provisions of Sections 239–242 were clubbed through an amendment proposed by Dr B.R. Ambedkar and article 242 A was drafted. This article states: ‘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’ (Central Water Commission, 2016; The Constitution of India, 2015, p. 165). In the Constitution, the provisions of 242 A found space as article 262. Another clause to it was added which states that ‘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 (i)…’ (The Constitution of India 2015, p. 165).

In 1955, the Parliament introduced the Water Disputes Bill. It found support from the State Reorganization Commission (SRC) which during its surveys on possibility of formation of identity-based states in India anticipated the disputes over water bodies and structures among the adjoining regions. To address them the SRC recommended for a larger role to the Union government in managing water resources of the country (See Report of the States Reorganisation Commission, 1955, p. 225).

In 1956, the Inter-State River Water Disputes (ISRWD) Act was passed by the Parliament using the provisions of entry 56 in the Union List. Under this (ISRWD Act 1956, p. 1):

If it appears to the Government of any State that a water dispute with the Government of another State has arisen or is likely to arise by reason of the fact that the interests of the State, or of any of the inhabitants thereof, in the waters of an inter-State river or river valley have been, or are likely to be, affected prejudicially by:

any executive action or legislation taken or passed, or proposed to be taken or passed, by the other State; or

the State Government may in such form and manner as may be prescribed, request the Central Government to refer the water dispute to a tribunal for adjudication.

The ISRWD Act made the Union government to be the deciding body on the issue of setting up of inter-State water disputes adjudication tribunal. Often, the Union government has been alleged for its partisan role in setting up such tribunals. There are many such examples. A recent one is the inordinate delay in setting up of Mahadayi river water tribunal by the Union government. In July 2002, Goa made a request under Section 3 of the ISRWD Act for constitution of the Tribunal (Ministry of Water Resources & Ganga Rejuvenation) (Government of India, n.d.). The Union government was reluctant to do so and tried to resolve the matter between Goa and Karnataka through dialogues in which the former was not interested. Frustrated by the Union government’s behaviour, Goa filed a writ petition in the SC for setting up the tribunal. Though the case was listed, it did not come before the SC (ibid.). Eventually in 2009 the Union cabinet decided to constitute a tribunal, and a notification for Mahadayi Water Disputes Tribunal (MWDT) was issued on 16 November 2010. Later, in 2014 the Union government decided that the effective date of constitution of MWDT shall be 21 August 2013 instead of 16 November 2010 (ibid.).

The 1980s witnessed the rise of regional parties and the strong State-level leaders within the Indian National Congress. It made the national leadership to take steps to accommodate the State leaders by promising them to dilute the centralised power structure to give them enough space. The first step in this direction was the setting up of the Sarkaria Commission in 1983 to look into Centre–State relationships in India. This Commission was headed by Justice (Rtd.) Ranjit Singh Sarkaria. It submitted its final report in 1988. In its recommendations on the inter-State river waters, the Commission stated:

Once an application under Section 3 of the Inter-State River Water Disputes Act (33 of 1956) is received from a State, it should be mandatory on the Union government to constitute a Tribunal within a period not exceeding 1 year from the date or receipt of the application of any disputant State. The Inter-State River Water Disputes Act may be suitably amended for this purpose.

A year after the submission of the report, in 1989 India witnessed the first federal coalition government under Prime Minister V.P. Singh. Since then the regional parties and State leaders are playing an important role in the national politics of India. Their rise has made the Union government to take steps to provide a bit more share to the State governments. In the age of coalition governments, an amendment was made in the ISRWD Act in 2002. This was not the first time that amendments were made in the ISRWD Act. It has been amended more than about a dozen times, but more comprehensively in 2002 (Chokkakula, 2017, p. 9) when many other provisions were inserted and substituted:

When any request under Section 3 is received from any State government in respect of any water dispute and the Central government is of opinion that the water dispute cannot be settled by negotiations, the Central government shall, within a period not exceeding 1 year from the date of receipt of such request, by notification in the Official Gazette, constitute a Water Disputes Tribunal for the adjudication of the water dispute.

After coming into power, Atal Bihari Vajpayee-led National Democratic Alliance (NDA) government (1998–2004) set up National Commission to Review the Working of the Constitution (NCRWC) in 2000, to review various important provisions of the Indian Constitution. The Commission found that ‘since the mechanism of a formal Tribunal has not proved to be very satisfactory, it should be considered whether some other alternative should not be adopted’ (National Commission for Reviewing Constitution, 2002). This alternative, as the NCRWC found, was to allow the adjudication of the water disputes by the SC of India. Although the NCRWC recommendation was not inserted in the ISRWD Act, the SC of India does play a crucial role in few of the important inter-state water disputes that finally end up there as residuary jurisdiction of the apex constitutional court. For example, the tribunal for the Cauvery water dispute itself was set up on the Court’s order. In 1986, the Farmers’ Association from Thanjavur area called Tamil Nadu Cauvery Neerpasana Vilaiporugal Nala Urimai Padhugappu, moved to the SC and filed a petition under article 32 of the Indian Constitution to constitute Cauvery Water Dispute Tribunal (CWDT). After hearings, the SC directed the riparian states to negotiate the water sharing deal among themselves. As the states failed to find a solution, in 1990 the SC directed the Central government to set up the CWDT (Chokkakula, 2017, p. 18). After years of work, in 2007 the CWDT delivered its final verdict which was challenged in the SC. In February 2018, finally, the Court delivered its verdict. In its verdict the SC revised the share of waters allocated to Karnataka by the CWDT. The new water share is –284,750 (270,000 plus 14,750) million cubic feet to Karnataka, 404,250 (419,000 minus 14,750) million cubic feet to Tamil Nadu, 30,000 million cubic feet to Kerala, 7,000 million cubic feet to Puducherry and 10,000 million cubic feet for environmental protection while 4,000 million cubic feet was written off as inevitable escapages into the sea (The Supreme Court of India, 2018).

Earlier, in 2004, as a result of the general elections, another federal coalition government known as the United Progressive Alliance (UPA) government came into power (2004–2014). To satisfy the demands of its coalition partners the UPA set up the second Centre–State Relations Commission under Justice (Retd.) Madan Mohan Punchhi. The Commission submitted its Report in 2010. On inter-State river waters disputes the Commission recommended:

The Tribunal should be a multidisciplinary body, presided over by a Judge. It should follow a more participatory and conciliatory approach. The statute should prescribe a time limit for clarificatory or supplementary orders. Appeals to the SC should be prescribed under the Statute; and in the long run; and

Although the Union government has an upper hand over the inter-state river waters of the country, it faces problems in implementing the mega water infrastructure-related projects such as Interlinking of Rivers (ILR). This is primarily because states’ cooperation is practically necessary for their implementation. Originally, Entry 20 of the Concurrent List covers social and economic planning (The Constitution of India, 2015, p. 333) which also includes water-related projects for agricultural activities, industrial needs and for drinking purposes. All such Central government-funded or -aided projects in the states are first cleared by the Union government (see Siddiqi & Shirin, 2004, p. 77). Moreover, Entry 17 dealing with water in the State List of the Seventh Schedule of the Constitution is made subject to the provisions of Entry 56 of the Union List dealing with regulation and development of inter-State river valleys to the extent declared by Parliament by law expedient in the public interest.

In 2010 the Union Ministry of Water Resources argued for a shift of water to the Concurrent List. The Ashok Chawla committee, which was primarily concerned with the question of rationalising the allocation of natural resources with a view to reducing the scope for corruption, had also recommended for shifting of water issue to the Concurrent List. This question of shifting was also in front of the Sarkaria Commission but it felt that this sort of change was unnecessary (Iyer, 2011). Arguing against recommendation of Chawla committee, Ramaswamy R. Iyer found, first, a move to put water to the Concurrent List at this stage will be generally regarded as a retrograde step that runs counter to the general trend towards decentralisation and enhanced federalism, and it will face serious political difficulty because there will be stout opposition from the states. Second, an entry in the Concurrent List will mean that both the Centre and the states can legislate on water, but the Centre can already do so in respect of inter-State rivers under Entry 56 but has not used that power (ibid.). On the fear of centralisation, Iyer argued that putting water into the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development, which must be avoided in favour of the subsidiarity principle, that is, the principle that decisions must be taken at the lowest appropriate level (ibid.).

Looking into the inter-State water disputes in India, 2016 Draft National Water Framework Bill by the Ministry of Water Resources states that

None of the states in a river-basin own the river but, as public trustees of the water resources of the river, all of them have rights to use the water of the river, provided that such use does not violate the right to water for life of any person in the river basin. (Draft National Water Framework Bill, 2016)

Highlighting the caution the upper riparian State has to take, the bill says that

The upper basin state shall adopt a cautious and minimalist approach to major interventions in inter-state rivers; provide advance information to the lower basin states about plans for intervention; consult them at all stages on possible impacts; and take care to avoid significant harm or injury to them […]. All basin states in [the] river system are equal in rights and status, and there is no hierarchy of rights among them, and further, in this context, equality of rights means not equal but equitable shares in the river waters. (ibid.)

Later, in March 2017, Union Minister of Water Resources, Ms Uma Bharati introduced Inter-State River Water Disputes (Amendment) Bill, 2017 in lower house (Lok Sabha) of the Parliament. The (Amendment) Bill talks about:

A single standing tribunal (with multiple benches) instead of existing multiple tribunals, which shall consist of one Chairperson, one Vice-Chairperson and not more than six other members. While the term of office of the Chairperson is 5 year or till he attains the age of 70 years, whichever is earlier, the term of office of Vice Chairperson and other member of tribunal shall be co-terminus with the adjudication of the water dispute.

In spite of having constitutional mechanisms to address them, most of the inter-State rivers water disputes in India still linger on for years. The tribunals have been set up but, except a few, most of them have failed to address or resolve the inter-State rivers water disputes. Sharing this concern, the 2017 amendment bill points out that:

Only three out of eight Tribunals have given awards accepted by the States, while Tribunals like Cauvery and Ravi–Beas have been in existence for over 26 and 30 years respectively without any award. Delays are on account of no time limit for adjudication by a Tribunal, no upper age limit for the Chairman or the Members, work getting stalled due to occurrence of any vacancy and no time limit for publishing the report of the Tribunal.

Such a long time period is mainly because of legal complexities where the parties to the disputes keep on challenging the verdicts delivered by one institution or the other (ISRWDA, 1956, Amendment Bill, 2017).

In May 2019, the Ministry of Water Resources got a new name-Ministry of Jal Shakti ( Water Power). In July 2019 the minister, Gajendra Singh Shekhawat introduced ISRWDA (Amendment) bill in the lower house of the parliament. This bill talks about having a single tribunal with different benches. To expedite the decisions over river water disputes, like earlier one, it also mentions the time limit. As mentioned, in this amendment bill maximum time limit for the DRC would be one-and-half years, for the tribunal three years and for reconsideration another one-and-half years. This makes the total time limit to six years. However, in its current form, this amendment bill is facing opposition from the Shiromani Akali Dal, an ally partner of the Bharatiya Janata Party in the government.

Waters Disputes Between Punjab and Haryana

Constitutionally and legally, the controversy over the Punjab–Haryana water sharing disputes is unique, in a sense that the disputing states are not co-riparian, and so do not fall into the ambit of ISRWDA 1956 (Sankaran, 2009, p. 28). However, it is not against the internationally adopted principles of water distributions based on historical users’ right of a riparian.

Historically, the issue of water distribution among Punjab, Haryana, Jammu & Kashmir (J&K) and Rajasthan is related to the Indus Water Treaty (IWT) signed between India and Pakistan in 1960 to share water from the Indus River System (IRS; Indus, Ravi, Beas, Chenab, Sutlej and Jhelum). All these states fall under the catchment area of the IRS. During the negotiations between India and Pakistan mediated by the World Bank, in January 1955, ahead of the tour by the officials from the World Bank and Pakistan, India thought to have a water sharing arrangements made among, Punjab, PEPSU (Patiala and East Punjab States Union), J&K and Rajasthan (Gulhati, 1972, p. 159; Subramaniam, 2016). This was primarily to show the quantity of water consumption from the IRS rivers in India. To secure an arrangement among Rajasthan, PEPSU, Punjab and J&K, an inter-State conference was held on 29 January 1955 under the chairmanship of the Union Minister for Irrigation and Power. In that conference waters from Ravi and Beas were allocated among the four states. Punjab got 5.90 million acre feet (MAF), J&K, 0.65 MAF, Rajasthan 8 MAF and PEPSU 1.30 MAF (Gulhati, 1972, p. 160). Sutlej waters were distributed between Punjab and Rajasthan in 1959 when the two governments concluded a formal agreement on the Bhakra-Nangal project (ibid.). Under this, Punjab got the maximum share of about 84.78 per cent of waters while Rajasthan got 15.22 per cent in a period from 21 September to 20 May (ibid., p. 161). In 1958, the Rajasthan Canal Project was sanctioned. It included a feeder canal from Harihake to Rajasthan (ibid., p. 163). In 1960 Unit I and Unit II of the Beas project was sanctioned to provide power benefits to Punjab and Rajasthan (ibid.).

Later, Punjab was divided in 1966 into the states of Punjab and Haryana. The goods and resources were distributed between the two states under Section 78 of the Punjab Reorganisation Act, 1966. Under the Act, PEPSU was merged with Punjab. The newly formed Haryana is mainly inhabited by the Hindi-speaking Hindus. The division of Punjab created disputes over sharing of river water from the rivers Sutlej, Ravi and Beas, and construction of SYL canal through which waters allocated to Haryana could be transferred.

The Punjab Re-organisation Act mentioned only the distribution of water from the river Sutlej and not from the river Ravi and Beas while the 1976 decision of the Government of India does it (Swami, 2004a). River waters of the Ravi–Beas system was allotted to Haryana, despite the fact that after its formation it no longer falls under catchment region of the rivers. To get water from the Ravi–Beas system there arose a need for a linking canal and the conflict is about the status of canal and on the legality of transferring water from Punjab to Haryana (Sankaran, 2009).

Under Section 78 of the Punjab Reorganization Act, 1966, 3.5 MAF water from the river Sutlej was distributed between Punjab and Haryana and 0.2 MAF was allocated to Delhi. Since the water could not be physically carried, Haryana’s entitlement was to be taken out from the Sutlej River in Punjab through a canal fed by the Bhakra-Nangal Dam that would empty into the Yamuna after passing through Haryana (Swami, 2004a). Punjab was against such arrangement, so it filed a suit in the SC against such allocations. Haryana too filed a suit in the SC in an effort to force Punjab to build its part of the canal (ibid.). Though the SC gave green signal to the SYL canal, it reserved its final verdict on the matter of distribution of waters between the two states. Afterwards, Haryana started the construction of SYL in its own side in 1978 and the first phase of the SYL, a 75.5 km long stretch from Ismailpur to Karnal, was completed in March 1982 at cost of forty crore rupees (ibid.).

As the matter was pending in the SC, and the construction work of SYL was not moving because of Punjab’s reluctance to the project, to break the impasse chief ministers of the two disputant states—Punjab’s Darbara Singh and Haryana’s Bhajan Lal—joined by the adjoining riparian State Rajasthan’s S.C. Mathur signed an agreement to share their common waters on 31 December 1981. This was mediated by the Union government under the Prime Minister, Indira Gandhi. According to the agreement the new allocation quota from Ravi–Beas was Punjab 4.22 MAF, Haryana 3.50 MAF, Rajasthan 8. 60 MAF, J&K 0.20MAF and Delhi 0.20 MAF (RE: The Punjab Termination of Agreement Act, 2004, 2016). Under the agreement, Punjab committed itself to build the SYL Canal in a 2 years’ time. Prime Minister Indira Gandhi countersigned the agreement and on 8 April 1982, she laid down the foundation for the SYL near Kapuri village in Punjab’s Patiala District (Wood, 2007). This was opposed by the Akali Dal leadership. The Akalis under the leadership of Sant Harchand Singh Longowal took out a morcha (procession) to express their protest against the canal (Dhaliwal, 2014; Wood, 2007, p. 73).

During the phase of the Sikh militancy in the late 1970s and 1980s in Punjab, issues passed under Akali Dal’s Anandpur Sahib resolution ³ became articulated. A demand for a separate sovereign State called Khalistan ⁴ was made by the militants. At that time along with other issues the sharing of what was called Punjab’s water with other states and construction of SYL canal were also highlighted as an evidence of discrimination against the Sikhs in the Hindu India. Indira Gandhi’s assassination in 1984 by her Sikh bodyguards further tensed the situation in Punjab. The assassination was followed by a pogrom against the Sikhs by the Hindus in many parts of India (see Chakravarti & Haksar, 1987; Suri, 2015). To overcome the situation the Union government took many measures—democratic and coercive. One of the democratic steps was signing of Rajiv Gandhi–Haracharan Singh Longowal Accord ⁵ in 1985.

After the accord, the Akali Dal government came into power. On 5 November 1985 the newly elected Punjab Assembly repudiated the 1981 Chief Ministers’ Accord (Wood 2007, p. 74). However, they agreed for a tribunal which was a part of that Accord. Consequently, a tribunal was set up under Justice V. Balakrishna Eradi to look at water sharing from rivers Ravi–Beas. The tribunal declared an interim award within its allotted time of 6 months. In an interim award the Commission allotted 5 MAF to Punjab and 3.83 MAF to Haryana. The increase in their share was because of the fact that the Commission discovered that 6.6 MAF of surplus water remains non-utilised by either of the two states (ibid., p. 74). The ordinance for this was signed on 25 January 1986 by the then President of India, Giani Zail Singh. This was an unprecedented move because, as mentioned earlier, under the terms of ISRWD Act of 1956 a tribunal could only be constituted on receipt of a complaint by one of the disputing states. To find a solution to such constitutional hurdle, a new section was inserted by an amendment to the Act, which provided that the Central government could refer a dispute to a tribunal suo motu (on its own initiative) (ibid., p. 74).

The issue of canal construction and water sharing were two different matters and so different approaches were followed. On canal, the SC was looking after the affairs while the tribunal was working over water sharing disputes from rivers Ravi and Beas. In its final award of 30 January 1987 the tribunal upheld the legality of the earlier agreements of 1955, 1976 and 1981. It rejected Punjab’s claim of exclusive proprietary rights and declared that although Haryana and Rajasthan were non-riparian states vis-à-vis the Ravi and Beas, they lay within the Indus basin, which was the relevant unit for the purpose of allocating water. The tribunal used the principle of ‘equitable apportionment’ to deliver its judgment (ibid., p. 74). It verified the existing use of Ravi–Beas waters as 3.106 MAF for Punjab, 1.620 MAF for Haryana and 4.985 MAF for Rajasthan. Regarding the shares of remaining yet un-used water, Punjab was allocated 5.00 MAF and Haryana 3.83 MAF. The projected shares of surplus waters would remain 8.60 MAF for Rajasthan and 0.2 MAF for Delhi. The Tribunal noted that the SYL canal was completed in its Haryana portion but not in Punjab and urged that it be ‘expeditiously completed’ as it was the ‘lifeline of the farmers of Haryana’ (Rajlakshmi, 2004). Punjab filed an application before the Tribunal asking for a review of its decision, which remains pending. Acting according to Tribunal’s order by 1990 the Akali government under Surjit Singh Barnala initiated the building of the SYL canal in Punjab but continuous agitation against the canal stopped the work (Wood, 2007, p. 75). In 1990 Chief Engineer M. L. Sekhri and a Superintending Engineer Avtar Singh Aulakh were killed by the militants. Also, labourers were shot dead in Majat village near Chunn and Bhartgarh near Ropar (Vasudev, 2019).

As the deadline was not followed, Haryana government filed another suit. Punjab’s response was that the canal was unnecessary because Haryana was to get additional water from other rivers and hence the State had no right to water from the Ravi. Punjab pointed out that this water was useless for the simple reason that no dams or barrages could be built along the Pakistan border to store it. The 1994 agreement gave 4.6 MAF to Haryana augmented by the completion of the SYL. In 1997 another round of confrontation took place, just after the tribunal re-commenced hearings (Rajlakshmi, 2004).

The apex court took up the canal issue on 15 January 2002. The Punjab government raised the issue of militancy in Punjab and therefore in its plea wanted the SC to resist itself from issuing any order in regard to the SYL. The SC rejected this plea saying that ‘we are of the considered opinion that those submissions are of no consequence and there could not be any fetter on the power of this Court to issue appropriate directions’ (Case No.: Original Suite 6 of 1996, 2002, p. 28). The SC issued a mandatory injunction to Punjab to complete the construction of the canal and to make it functional within a year. It said that in the event that Punjab failed to meet the deadline, the Union government would have to get it done through its own agency as soon as possible (ibid.).

Notwithstanding the urgency of the court’s order and the long-standing nature of the problem, there was little progress on the matter. On 13 January 2003, 2 days before the deadline was to expire, Punjab filed a suit seeking to dissolve the obligation on its part to construct the canal. It cited several reasons, including ‘changed circumstances’ and the unconstitutionality of the SC decree (Rajlakshmi, 2004). Haryana filed an application under Order XXIII Rule 6 of the SC Rules, for the rejection of the pliant and the summary dismissal of the suit. On 13 August 2003 Haryana filed a second application seeking a direction to the Union government to carry out its obligations under the apex court decree (ibid).

Supreme Court’s Judgment Over Water Disputes, and 2016 Bill of Punjab Government

In an attempt to stop the court’s meddling further into the water affairs, in 2004, the Punjab Legislative Assembly passed The Punjab Termination of Agreements Act 2004 which repudiated the 1981 agreement with Haryana and Rajasthan and other agreements such as Yamuna Agreement of 12 May 1994. The termination Act described those agreements as ‘ad hoc’ decisions… ‘dictated by prevalent circumstances, rather than by recognised riparian/basin principles’ (Wood, 2007, p. 75). For that act of his, then Congress party’s Chief Minister of Punjab Captain Amrinder Singh is known as ‘the Saviour of Punjab’s Waters’ by majority of farmers from Punjab (Singh, 2016). Before taking such step he did not even inform the Congress-led UPA government’s Prime Minister Dr Manmohan Singh or take a ‘consent’ of his party President Sonia Gandhi (ibid.).

On 22 July 2004, the then President of India, Dr A.P.J. Abdul Kalam, acting on an advice of the Union cabinet, referred the Termination of Agreement Act to the SC of India under Article 143 (1) of the Indian Constitution for its advisory opinion. This was unprecedented because it was the first time a State government has sought to overturn a Union-mediated inter-State agreement through legislative means.

Accepting the Presidential request to give advice, the apex court on 2 August 2004, examined the validity of the Punjab’s Act and issued notices to the Central government, and to the State governments of Punjab, Haryana, Rajasthan, Himachal Pradesh, J&K and National Territory of Delhi to file written submissions on facts and the question of law formulated under Article 143(1) of the Constitution (Indira, 2008). The SC agreed to look into:

Whether the Punjab Termination of Agreements Act, 2004 and the provisions thereof are in accordance with the provisions of the Constitution of India;

While looking into the above questions, the SC issued an interim order on the canal issue on 24 August 2004. In that order it dismissed the review petition filed by the Punjab government, and upheld its 4 June 2004 orders in which the court directed the Centre to construct the remaining portions of the SYL canal in Punjab. It also ordered the Punjab government to provide security to the central team (ibid.; Indira, 2008).

As the inter-State and Union–State tensions were going on due to Punjab Termination Act, the Punjab Assembly under the leadership of the then Chief Minister Prakash Singh Badal from Shiromani Akali Dal (SAD (B)) passed the Sutlej Yamuna Link Canal Land (Transfer of Proprietary Rights) Bill 2016. However, the Governor is yet to give his final assent to it.

This provides for the transfer of proprietary rights to the landowners from whom land was acquired by the Punjab government for the construction of the SYL main canal (Khemka, 2016). This was done despite the orders from the SC freezing all landfill activity and maintain status quo at the canal (Express News Service [ENS], 2016). As alleged, Prakash Singh Badal has always maintained an ambiguity over the issue of SYL. It was under Badal’s regime in 1977 when the design of the SYL canal was finalised, and the first notice for the land acquisition to build the canal was issued (Singh, 2016). Refuting the allegation, in 2016, during the budget session, Badal submitted a semi-official letter of 1976 in the Punjab Legislative Assembly, which he claimed was a communication between then Chief Minister of Punjab and Congress leader Giani Zail Singh and his Haryana counterpart Banarsi Das Gupta to construct the SYL canal (Gopal, 2016, March 11).

In its advisory opinion over the termination Act, on 10 November 2016, the SC struck down the validity of the 2004 law enacted by the Punjab government. The bench stated that:

In our opinion, the Punjab Act cannot be said to be in accordance with the provisions of the Constitution of India and by virtue of the said Act [Punjab Termination Act, 2004] the State of Punjab cannot nullify the judgment and decree referred to hereinabove [of 15 January 2002] and terminate the Agreement dated 31st December, 1981. (RE: The Punjab Termination of Agreement Act, 2004, 2016, p. 40)

The SC was critical about the fact that the Punjab government, through its Act, had nullified the SC judgments of 2002 and 2004, and the consequent decree passed by it whereby Punjab was asked to construct the canal on its territory (ibid.).

On the constitutional legality of Sutlej Yamuna Link Canal Land (Transfer of Proprietary Rights) Bill, Ashok Khemka finds out that, like the 2004 Act, the 2016 Bill also violates many constitutional principles: first, the subject matter of the Bill falls under Entry 56 of the Union List. According to Article 246 (1) of the Constitution only Parliament can make law therefore it is beyond legislative competence of the Punjab. Second, the land for the SYL canal is under management of the Bhakra Beas Management Board constituted under Section 79 of the Punjab Reorganisation Act, 1966. He further adds that the Bill directly affects and is repugnant to two Union legislations—Sections 78, 79 and 80 of the Punjab Reorganisation Act, 1966 and Section 14 of the ISWRD Act, 1956. It cannot prevail unless the President of India considers it and gives an assent under Article 254(2) of the Constitution (Khemka, 2016).

While delivering the advisory opinion on Punjab Termination of Agreement Act, 2004, the SC had made an observation on the Sutlej Yamuna Link Canal Land (Transfer of Proprietary Rights) Bill 2016. The SC maintained that this bill is a violation of the 31 December 1981 agreement between the riparian states and the Union government (RE: The Punjab Termination of Agreement Act, 2004, 2016, p. 18).

In reaction to the 2016 advisory opinion by the SC, all members of legislative assembly from the Indian National Congress party resigned from their membership; while the Chief Minister Prakash Singh Badal wrote a letter to the President of India in which he maintained:

the “advice” of the SC has raised serious apprehensions in the minds of the people of Punjab. We respect the Hon’ble court. But we respect the Constitution of India even more. The Constitution of India clearly forbids the Government of India from arrogating to itself the right to adjudicate on distribution of river waters among states. (Gopal, 2016, November 12)

He further added that ‘grave injustice had been done to Punjab by the Union government by “violating this constitutional clause”’ (ibid.).

Conclusion

Punjab government had repeatedly raised the issue that Haryana is not a co-riparian, so it does not have any right to use waters from the rivers flowing in Punjab. This is a violation of the internationally accepted principle of ‘historic users’ rights’ or ‘prior appropriation rights’. Punjab has only user rights over Ravi–Beas waters and it does not own them. This has been clearly stated in the report of the Ravi–Beas tribunal (Iyer, 2007). Contrary to this logic, earlier, Punjab itself had pressed its own claims to a share of Yamuna waters despite not being a co-riparian (Swami, 2004b).

As mentioned in the article, the IWT between India and Pakistan has its impact on the water situation in Punjab, Haryana, Rajasthan and J&K. The IWT allocates three western rivers to Pakistan—Indus, Jhelum and Chenab—barring some limited uses for India. India got almost entire waters of the eastern rivers—Ravi, Beas and Sutlej. On eastern rivers, Pakistan is allowed to use waters for irrigation from the four tributaries of the river Ravi—Basantar, Bein, Tarnah and Ujh—without making any claims on them. On the other hand, India is allowed to have about 3.6 MAF of water storage (0.40 MAF on Indus, 1.50 MAF on the Jhelum and 1.70 MAF on the Chenab). In a nutshell, of the total average annual flow of about 168 MAF in the Indus Rivers System, India can utilise only 33 MAF from the eastern rivers. Out of its share, India uses about 94–95 per cent of waters, the remaining flows into Pakistan. To stop such flow a dam was started in Shahpur Kandi in 2013 but works stopped in 2014. The work was re-started in 2018 after the governments of J&K and Punjab finally agreed on its cost and other details. Second, the project at Ujh in J&K was finally approved by the Union government of India in 2019. Once completed it is expected that waters from Ujh would be distributed to the adjoining states by the second Ravi–Beas link project. With the coming of these projects, burden on the current waters would slightly lessen, but not completely resolved because growing population needs more waters to satisfy their domestic consumption, food production and for industrial activities. Hence, the riparian states and the Union government have to take political decision on effective use of the available waters in the region.