The Indo-Pakistan Agreement on river waters signed by Pandit Nehru and President Ayub Khan in September 1960 involves a provision for utilising river waters of Punjab for building the Rajasthan Canal, renamed as Indira Gandhi Nahar Pariyojana. Punjab, therefore cannot cancel the Punjab-Rajasthan accord on river water. THE report in The Tribune, February 13, 2010 saying that the Centre was considering a proposal to transfer water to the Concurrent List (List III, Seventh Schedule of the Constitution of India ) from the State List (List II) is like a breath of fresh air in the clogged Constitutional log jam of treating this vital sector of the country’s economy and much more as a State subject.
Whatever might have been the considerations for treating-rather maintaining-water along with agriculture as a State subject in the Constitution promulgated on January 26, 1950 it appears that our Constitution makers did not touch several aspects of the Government of India Act, 1935, two of which were maintaining water and agriculture as State subjects, or rather “transferred subjects” according to the Morley-Minto Reforms of 1919.
According to entry 17 in the State List (List II), “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’. Entry 56 of List I (Union List) says, “Regulation and Development of inter-state rivers and river valleys to the extent to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.”
Thus although the Constitution makers did place water as a state subject, they did provide for entry 56 in List I, which could be invoked in order to bring upon the issue the strength of the Centre for implementation. However, this provision has not been used so far. This is probably because successive governments at the centre did not want to unleash the ghost of “provincial autonomy” granted by the British during the pre-Independence period. During the post-Independence period, the Union Governments did not wish to promote chauvinism by not touching this entry in the name of state autonomy.
It is more than sixty years that we have attained Independence and it is time politicians and the people at large start considering certain matters from the national point of view and accept the proposals to transfer “water’ from the State list to the Concurrent List.
Unfortunately and as could be expected, Punjab has objected to this proposal. One recalls in this connection the decision taken by Punjab State Assembly on July 12, 2004 that all water resources agreements signed by the State since Independence should be annulled. This resolution was moved by the then Chief Minister Amarinder Singh of the Congress party and all other parties including the Akali Dal; and the BJP had agreed to this proposal.
Not surprisingly, the Akali Dal Chief Minister Sardar Parkash Singh Badal lost no time to oppose this move. On February 13 itself, he issued a statement from Chandigarh saying: “Any such move will be fraught with serious implications on the economy as well as the political front.” All other parties are expected to express the same opinion.
There are two issues involved in this stance of Punjab, although one must mention that Punjab is the granary of India and this year even after a devastating drought, Punjab has provided more rice to the central pool than in normal years.
The Indo-Pakistan Agreement on river waters signed by Pandit Nehru and President Ayub Khan in September 1960 involves a provision for utilising river waters of Punjab for building the Rajasthan Canal, renamed as Indira Gandhi Nahar Pariyojana. Punjab, therefore cannot cancel the Punjab-Rajasthan accord on river water, one feels.
Secondly, one may humbly point out that the three rivers of Punjab, the Rabi, the Beas and the Sutlej, do not originate in Punjab. The Sutlej comes from Tibet and after flowing through Himachal Pradesh, joins the Bhakra Reservoir, from which it emerges as the Sutlej in Punjab from south of Ludhina. Both Beas and the Ravi (the Chandrabhaga) originate from Himachal Pradesh, from the mountains in the Rohtang Pass area.
In 2004, when the issue came up suddenly, the matter was placed before the President for referring it the Supreme Court under Article 143 of the Constitution, where the matter still rests. The State Assembly had enacted the Punjab, Termination of Agreements Act (PTAA) in the meanwhile.
Around that time, the issue of Sutlej-Yamuna Link (SYL) Canal also came for hearing in the courts. It went up to the Constitution Bench of the Supreme Court. On January 1, 2003 Punjab filed suit no 1 regarding its objections to the completion of the SYL canal on various grounds. To this, the Bench had observed: “The Constitution provides for an orderly polity to promote integrity of the country. When disputes arise between states, there are usually political underpinnings. The resolution of such a dispute in favour of one party will invariably have a political impact, Article 131 of the Constitution has therefore given this court the exclusive jurisdiction to decide such a dispute strictly on legal consolidations and in keeling with the provisions of the Constitution. To resist the execution of the decree on the ground that it will have a political fall out would result in subversion of the Constitution, an endorsement of anarchy and the disintegration of the country, apart from rendering the provisions of the Constitution a dead letter.
As was observed by the Constitution Bench in the Cauvery Water Disputes Tribunal when an ordinance was passed by a state seeking to nullify an order of this Court: “Such an act is an invitation to lawlessness and anarchy, in as much as the Ordinance is a manifestation of a desire on the part of the State to be a judge its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it, disregarding not only the rights of the other States, the orders passed by instrumentalities constituted under an Act of parliament but also the provisions of the Constitution. If the power of a State to issue such an ordinance is upheld, it will lead to the breakdown of Constitutional mechanism and affect the unity and integrity of the nation.”
In view of these observations, one hopes that the Government of Punjab would readily agree to the transfer of water from the State List to the Concurrent List. A Bill to this effect has to be moved in Parliament under Article 368 of the Constitution and once this Bill is passed, half the number of State Assemblies would have to endorse it for enabling this Bill to become a law.