Of all the natural resources on the earth, water is quintessential to life. In India, Right to water has been protected as a fundamental right by the Supreme Court as part of the Right to Life guaranteed under Article 21 of the Constitution of India. Great cities have been born on the rivers and many have vanished when the rivers dried up. Viewed in this light, water must be preserved and managed properly by the State. Recently, Ministry of Jal Shakti addressed a letter to the Attorney General of India regarding execution of a decree of Supreme Court on the aspect of the construction of Satluj Yamuna Link Canal (SYL Canal) which has been languishing for two decades. The same was placed before the Supreme Court and the three-Judge bench ordered the State of Punjab and Haryana to negotiate an amicable settlement to resolve the long standing dispute. It is pertinent to mention the timeline leading to the present day dispute:
PUNJAB REORGANISATION ACT, 1966
The Punjab Reorganisation Act, 1966, led to the bifurcation of the State of Punjab into two different states- Punjab and Haryana. Consequent to the creation of the State of Haryana from the erstwhile State of Punjab, the question of apportionment of the river waters made available to the erstwhile State of Punjab between Haryana and Punjab arose. A notification was issued by the Union of India on 24th March 1976 under Section 78 of Punjab Reorganisation Act, 1966, inter alia dividing the river waters between the two States. Since Haryana was not a riparian State, the only way it could enjoy its waters was through a new canal. Accordingly, the construction of the Sutlej-Yamuna Link Canal (SYL Canal) which was to pass through the Punjab and Haryana was initiated. Haryana’s portion of the canal was completed but Punjab did not complete its share of the canal.
CROSS SUITS OF 1979 AND AGREEMENT OF 1981
In 1979, State of Haryana filed a suit under Article 131 of the Constitution of India seeking completion of the construction of the canal. The State of Punjab filed a cross suit challenging notification by which the river waters were directed to be shared between Haryana and Punjab. During the pendency of the suits, a tripartite agreement was entered into between the States of Haryana, Punjab and Rajasthan on 13th December 1981 which provided that the SYL Canal works in the Punjab territory were to be completed within a two years. Resultantly, both suits were allowed to be withdrawn by the Supreme Court in 1982. However, in 1985, the Punjab Legislative Assembly passed a resolution, repudiating the Agreement of 31st December, 1981 and declaring the White paper to be redundant and irrelevant.
RAJIV GANDHI-LONGOWAL ACCORD OF 1985
As per the Rajiv Gandhi-Longowal Accord, it was resolved that Punjab and Haryana will continue to get their existing share of water from the Ravi-Beas system. It was also agreed that a tribunal headed by a Supreme Court Judge would be constituted to verify the river water claims of Punjab and Haryana and its findings will be binding on both the states.
CONSTITUTION OF INTER-STATE WATER TRIBUNAL- ERADI TRIBUNAL (1986)
The dispute was referred to the Inter State Water Tribunal as per the provisions of Section 14 of the Inter State Water Disputes Act, 1956. To reassess availability and sharing of water, Eradi Tribunal headed by Justice V Balakrishna Eradi was set up in 1986. In 1987, the Tribunal passed orders while upholding the validity of prior agreements that had been entered into, by the respective States and brought to the fore the fact that State of Haryana had same rights over the waters of Ravi and Beas as the present day Punjab since Haryana was a part of composite Punjab prior to 1966. It further stated, “In a country like India the riparian theory is not accepted because there is no fixity of state boundaries. Under our Constitution state boundaries can be changed and a state can even be abolished. So no state can claim ownership of waters.” It concluded that the additional water allocated to Haryana could only be utilised when the SYL Canal is functional. The State of Punjab filed multiple applications seeking clarifications in the order. The tribunal was wound up after 24 years as the dispute remained majorly unresolved due to administrative difficulties.
STATE OF HARYANA V. STATE OF PUNJAB, (2004) 12 SCC 673
In 1996, State of Haryana filed a suit in the Supreme Court, seeking directions to Punjab, to complete the SYL Canal that was 90% ready. The Apex Court decreed the suit in favour of Haryana and directed Punjab to construct the SYL canal within a year. The travesty of justice is that the said 2002 decree passed by the highest Court of India till date remains unexecuted.
THE PUNJAB TERMINATION OF AGREEMENT ACT, 2004
While the 2002 matter was sub judice, Punjab Legislative Assembly enacted the Punjab Termination of Agreements Act, in July 2004, thereby annulling all inter-state agreements signed by the state relating to sharing of the Ravi and Beas water, including the December 1981 tripartite agreement. The said act was declared illegal and unconstitutional by the Supreme Court on Presidential Reference, In Re: The Punjab Termination of Agreement Act, 2004.
EXECUTION PETITIONS BY HARYANA
State of Haryana filed execution petitions for implementing the two judgments in the SYL suit on February 19, 2011. When the execution petition came up for the hearing in July 2019, the Court noted with anguish that the decree passed in January 2002 decree remains unexecuted till date. Pursuant to that, it passed several orders to work out some amiable and amicable settlement acceptable to the parties. In 2016, Punjab State Assembly passed the Punjab Sutlej-Yamuna Link Canal Land (Transfer of Property Rights) Bill, 2016. It denotified the land acquired for the SYL Canal and provided for it to be returned to farmers for free. The Supreme Court directed that status quo be maintained until the matter is disposed of. Further, vide in 2019, the Supreme Court directed functionaries ensure deliberations take place with the intervention of the Central Government at the highest level to work out a solution. In the latest order, the Court has granted time to the parties to negotiate an amicable settlement and devise ways to execute the decree. The matter is next listed for hearing in January, 2023.
LEGISLATIVE COMPETENCE
Under the Constitution of India, regulation and development of Inter State Rivers is Entry 56 of the Union list whereas States have power to legislate with respect to intra-water supply and irrigation. Article 262 contains express provisions for adjudicating Inter State Water Disputes and empowers the Union Government to enact laws for the same. Deriving power from Article 262, Parliament enacted the Inter State River Water Disputes Act in 1956 to provide normative framework for addressing inter-state rivers disputes and constituting tribunals. If a State Government makes a request regarding any water dispute and the Central Government is of opinion that the water dispute cannot be settled by negotiations, then a Water Disputes Tribunal is constituted for the adjudication of the water dispute. The Act was amended in 2002 to mandate one year time frame to setup the water disputes tribunal and 3 year time frame to give a decision. The award of the Tribunal is binding and final. Article 262 (1) and Section-11 of the Inter State River Water Disputes Act bar jurisdiction of the Supreme Court but the States can approach the Supreme Court invoking writ or special leave petition jurisdiction matters on jurisdictional and constitutional issues. Judicial Review being a part of basic structure of the Constitution of India, such matters can be decided inevitably by the Supreme Court. Interstate River Water Dispute (Amendment) Bill, 2019 which is passed by Lok Sabha and pending in Rajya Sabha streamlines the timelines and provides for constitution of a permanent tribunal. It also binds the Central Government to set up Dispute Resolution Committee to amicably resolve the issue by negotiations in one year which is a progressive step.
EPILOGUE
The technical nature of inter-state water disputes and the adversarial nature of existing tribunal proceedings is invariable a complex and time consuming process. The existing statutory framework clearly falls short in providing authoritative guidance for effective water dispute resolution. The tribunal system has also failed to produce sustainable results. The Tribunals require nod from the Centre before they are constituted and take considerable time to pass orders. To add to the complexity, the decision of Tribunal becomes enforceable as an order of the Supreme Court when published by the central government in the official gazette. There is a dire need for speedy disposal of such disputes with a permanent institutional mechanism. Post-Cauvery litigation the doors of special leave appellate jurisdiction of the Supreme Court were opened for Inter-state River disputes which adds to more delay. Once the matter is taken to the Supreme Court in special leave appeal, it joins the serpentine queue of matters, thus adding to the delay. It is therefore suggested that inter-state water disputes be directly taken up by the Supreme Court under its original jurisdiction rather than special leave appellate jurisdiction. Similar recommendations were put in perspective by the National Commission to Review the Working of the Constitution (2002) and National Commission on Centre-State Relations (2010). A water body has to flow through some State and it would be travesty of justice if the riparian States deny equitable distribution of river water amongst non-riparian States on technical grounds. Due to politicization and defiance by the State Governments, co-operative federalism in matters pertaining to river water sharing is at a crossroads. State of Punjab instead of cooperating with Union and State of Haryana in larger public interest has been defying judicial and executive orders since inception. The instant dispute is a collective failure of the constitutional functionaries in administering water justice for its citizens. The half-dug SYL Canal and two decade-old unexecuted decree continues to languish while the basic tenets of co-operative federalism are being eroded. It is the solemn duty of Union and State Governments to ensure that its citizens have physical as well as economic access to water. The welfare state concept obligates the State to ensure that the material resources are so distributed to best sub serve the common good of “We the People.” The Supreme Court of India in State Of Haryana v. State Of Punjab (2004) remarked,
“Great states have a temper superior to that of private litigants, and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration to bring it to an end.”