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CHAPTER III
Unconstitutional Legislation / Malafide Measures/Draconian Dictates
One of the most important policy planks of the Indian National Congress, the political party which spearheaded the national struggle for freedom of India from the British colonial rule, was the reorganization of state units on linguistic basis to enable the various segments of the people to develop their language and culture. Pursuant to this avowed policy, the Congress — which formed government when India attained independence on August 15, 1947 — organized different states on the basis of language but outrightly ignored the claims of Punjabi speaking people inspite of the fact that Punjabi is not only an important language in India but is one of the prominent languages of the world. The Sikhs for whom Punjab is their homeland were in vanguard of the struggle aimed at the formation of Punjabi Suba (State of Punjabi speaking people). The Sikh faith originated and developed in Punjab; their most important sacred and historical places are in Punjab; their sacred scripture Shri Guru Granth Sahib was revealed/compiled in Punjab; overwhelming percentage of total Sikh population reside in Punjab and two-thirds of the Punjab population are Sikhs.
The Sikh leadership of the stature of Master Tara Singh (head of the political party Shiromani Akali Dal) who had played stellar role in the fight for freedom shoulder to shoulder with Mahatama Gandhi and Jawahar Lal Nehru, felt incessed with the denial to the formation of Punjabi Suba. They termed it a gross betrayal of assurance of the Congress leadership and described it a glaring instance of lack of faith in Sikhs. Punjab was engulfed in turmoil of linguistic agitations which convulsed the region for a long time. Finding it too untenable to disregard the genuine demand of the Punjabis any longer, the Congress and its government willy-nilly agreed to create a Punjab Suba— a Punjabi speaking state. In the implementation of the scheme of Punjabi Suba, the Union Government did not act with grace but rather with feelings of hurt. Instead of resolving the long rankling issue sagaciously and finally, it kept the impasse lingering. The Union Government begot ab-initio crippled Punjabi Suba and that too was subject to tight leash from Delhi. Leave aside considering it at par with other States of India, it has been crumpled and humiliated by not allowing to keep its own capital, High Court and many Punjabi speaking areas in its territory. To make the predicament unbearable for Punjabis, the Union Government took control of Punjab’s dams, hydropower plants and contrived to allocate Punjab river waters to the neighboring non-riparian States. To achieve its goal, the Government while enacting the Punjab Reorganization Act, 1966 engrafted patently unconstitutional provisions of Sections 78,79 and 80 ibid nakedly impinging upon the exclusive rights of Punjab. The relevant provisions of Section 78 of the Punjab Reorganization Act, 1966 are given below.
78. (1) Notwithstanding anything contained in this Act but subject to the provisions of Sections 79 and 80, all rights and liabilities of the existing State of Punjab in relation to Bhakra-Nangal Project and Beas Project shall, on the appointed day, be the rights and liabilities of the successor States in such proportion as may be fixed, and subject to such adjustment as may be made by agreement entered into by the said States after consultation with the Central Government or, if no such agreement is entered into within two years of the appointed day, as the Central Government may by order determine having regard to the purpose of the Projects;
Provided that the order so made by the Central Government may be varied by the subsequent agreement entered into by the successor States after consultation with the Central Government
(2) An agreement or order referred to in subsection (1) shall, if there has been an extension or further development of either of the projects referred to in that sub-section after the appointed day, provide also for the rights and liabilities of the successor States in relation to such extension or further development
(3) The rights and liabilities referred to in sub-section(1) and (2) shall include-
(a) the rights to receive and to utilize the water available for distribution as a result of the projects and
(b) the rights to receive and to utilize the power generated as a result of the projects; but shall not include the rights and liabilities under any contract entered into before the appointed day by the Government of the existing State of Punjab with any person or authority other than Government
Invoking the provisions of Section 78 of the Punjab Reorganization Act, 1966, the Government of India by notification dated March 24, 1976 made allocation of the Punjab river waters as under:
Punjab 3.5 MAF
Haryana 3.5MAF
Rajasthan 8.0MAF
Delhi 0.2MAF
J&K 0.65MAF
Total 15.85MAF
Compliance with this notification was not acceptable to Punjab. Haryana filed a suit (No 1 of 1979) in the Supreme Court for compelling Punjab to implement the 24.3.76 decision. The State of Punjab too filed a suit (No 2 of 1979) challenging the decision of Government of India as also the vires of the Punjab Reorganization Act, 1966. On December 31, 1981, the Prime Minister had an agreement hammered out among Chief Ministers of Punjab, Haryana and Rajasthan for sharing of the Punjab river waters. In this agreement, the flow series was changed from 1921-45 to 1921-60 which led to a computation of increased availability of Ravi-Beas waters from 15.85 MAF to 17.17 MAF. As per this agreement the allocation was:
Haryana 3.50MAF
Rajasthan 8.60MAF
Delhi 0.20MAF
Punjab 4.22 MAF
J&K 0.65MAF
Total 17.17MAF
On the signing of this agreement, Haryana and Punjab withdrew their cases pending in the Supreme Court.
A politically aggressive and administratively vigorous campaign was launched by Haryana and Central Governments to dig a canal —called Satluj Yamuna Link Canal — for carrying Punjab river waters to Haryana. This was encountered by equally robust and menacing agitation in Punjab against the 31.12.81 dispensation that ended with the signing of the Rajiv-Longowal accord (Punjab Settlement) on July 24, 1985 which suppressed the 31.12.81 agreement. The relevant provisions of the Punjab Settlement (paragraph 9) are reproduced below:
“9.1 The farmers of Punjab, Haryana and Rajasthan will continue to get water not less than what they are using vm from the Ravi-Beas system as on 1.7.1985.
Waters used for consumptive purposes will also remain unaffected. Quantum of usage claimed shall be verified by the Tribunal referred to in para 9.2 below;
9.2. The claims of Punjab and Haryana regarding the shares in their remaining waters will be referred for adjudication to a Tribunal to be presided over by a Supreme Court Judge. The decision of this Tribunal will be rendered within six months and would be binding on both parties. All legal and constitutional steps in this respect to be taken expeditiously;
9.3 The construction of the SYL Canal shall continue. The canal shall be completed by 15th August 1986.”
To clothe 24.7.85 Punjab Settlement with legal robe, Section 14 was added to the Inter-state River Water Disputes Act, 1956 in the following terms:
“Section 14: Constitution of Ravi and Beas Waters Tribunal : -
14(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 paragraph 9.1 and 9.2 respectively of the Punjab Settlement.
(2) When a Tribunal has been constituted under sub-section(1), the provisions of sub-sections(2) and (3) of Section 4, sub-sections (2),(3) and (4) of Section 5 and Sections 5A to 13 (both inclusive) of this Act relating to the constitution, jurisdiction, powers, authority and bar of jurisdiction shall, so far as may be; but subject to sub-section (3) hereof , apply to the constitution, jurisdiction, powers, authority and bar of jurisdiction in relation to the Tribunal constituted under sub-section (1).
(3) When a Tribunal has been constituted under sub-section (1), the Central Government alone may suo motu or at the request of the concerned State Government refer the matters specified in paragraphs 9.1 and 9.2 of the Punjab Settlement to such Tribunal.
Explanation For the purposes of this Section:
‘Punjab Settlement ‘means the memorandum of settlement signed at New Delhi on the 24th day of July, 1985.
The Punjab Assembly on November 5, 1985 repudiated the 31.12.81 agreement.
On April 2, 1986 the Central Government in exercise of powers under the newly added Section 14 of the Inter-state River Water Disputes Act, 1956 constituted the Ravi and Beas Waters Tribunal (under the chairmanship of Justice V. Balakrishna Eradi ) for the verification and adjudication of the matters mentioned in paragraphs 9.1 and 9.2 of the Punjab Settlement. This Tribunal made its interim report on January 30, 1987. An application under Section 5(3) of the Inter-state River Water Disputes Act, 1956 was filed by the Punjab State before the Tribunal on August 19, 1987, but no final decision has been made on that application. The Central Government has also sought some clarification regarding the interim award of January 30, 1987. So far the Tribunal has not given its final award. Consequently, no notification as required under the Inter-state River Water Disputes Act, 1956 has been issued for publication of the Tribunal report.
Haryana filed a suit (No. 6 of 1996) in the Supreme Court seeking injunction for compelling Punjab for discharging the obligations for construction of SYL canal arising under the 24.3.76 notification, 31.12.81 agreement and 24.7.85 settlement. The Supreme Court on January 15, 2002 ordered that SYL canal should be made functional in a year’s time. While decreeing the suit in favour of Haryana, the learned Division Bench of the Supreme Court held that the dispute before it is not in any way related to the use, distribution or control of the waters and that the dispute centres round the question of the obligation on the part of Punjab to dig the canal which became necessary for carrying the allocated waters.
The Supreme Court DB assumed to itself jurisdiction which did not belong to it. The whole gambit of issues/averments before it unmistakably establishes that the dispute pertains to the allocation of waters and their carriage / distribution / control / use. The suit was clearly a dispute concerning river waters. And the rivers concerned are in the territory of Punjab. So jurisdiction of the Supreme Court is barred in such a dispute. The Supreme Court did not let the plea concerning lack of its jurisdiction and ricocheted it off holding that the construction of 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 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 SYL canal should be completed and made functional within one year from its order of January 15, 2002.
Thus one of the fundamental rules of ordinary logic was dropped; namely, the principle of the excluded middle, which says that a thing either has or does not have a certain characteristic, there is no other possibility. Of all the dispensations wrought on 24.3.76, 31.12.81 and 24.7.85 only the one of 31.12.81 was termed as agreement. Even if it were so, it could be valid only if executed by the competent parties, volitionally and for lawful purposes. It is apparent as day light that the then Chief Minister of Punjab was forced to append his signature to the so-called agreement of 31.12.81. He was not willing and authorized to barter away the rights of the people of Punjab and deprive them of their very existence. How was Chief Minister, Rajasthan a competent signatory of the 31.12.81 agreement when Rajasthan was unconcerned with division of assets and liabilities to be dealt with pursuant to the provisions of the Punjab Reorganization Act, 1966? Further, as regards the validity of agreement, explicit or by conduct, it is apparent that the 24.3.76 order was superseded by the 31.12.81 agreement and the latter was set aside by the 24.7.85 settlement. Furthermore, the 31.12.81 agreement was repudiated by the Punjab Assembly resolution of 5.11.85.
So there is no enforceable agreement or award with respect to the allocation of Punjab river waters. Then what the canal is to be dug for?
Right since the enactment of the Punjab Reorganization 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.
The people of Punjab have been subjected to curious paradoxical treatment. Patently unconstitutional legislation, harsh administrative fiats and draconian commands termed as agreements are thrust upon them and they are obligated to abide by them. All their efforts to seek examination from the Supreme Court of the various invalid laws and orders (including the ones touted as agreements) are thwarted by closing shut the avenues to judicial appraisement from the Supreme Court through unconcealed and unconceivable governmental foreclosures. Sufferance undergone because of denial of relief and justice is phraseologised as acceptance by conduct.
Pleading that the decree of injunction passed by the Hon’ble Supreme Court on 15.1.2002 in suit No 6 of 1966 is not binding or enforceable, the State of Punjab has filed a suit (No. 1 of 2003) in the Supreme Court in January 2003 seeking discharge and dissolution of the injunction issued against it and has, inter alia, challenged the vires of Section 78 of the Punjab Reorganization Acts, 1966 on the basis of which Punjab river waters are to be allocated to non-riparian State as also the vires of Section 14 of the Inter-state Water Disputes Act, 1956.
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