Ramifications Of Water Sharing

Updated: Jul 28 2004, 04:16am hrs
The origin lies, as in other historical instances of partition, in the creation of Haryana out of the state of Punjab (Punjab) in 1966, necessitating the apportionment of the river waters. In 1976, the Union of India, under a statutory notification, directed construction of the Sutlej-Yamuna Link (SYL) canal project jointly by both states. Haryanas portion of the canal was completed by June 1980, Punjab, though in receipt of the funds, did not do its share.

In 1979, Haryana had filed a suit in the Supreme Court under Article 131 of the Constitution seeking completion of Punjabs part of the SYL. In 1981-82, both states and Rajasthan arrived at an agreement, providing for completion of the canal works within an agreed time frame, and the suits were withdrawn.

The Punjab portion however was not completed, and the state tried to repudiate the agreement. Reconciliation efforts resulted in the 1985 Punjab Settlement between Haryana and Punjab, which among others, dealt with the SYL issue. Clause 9 dealing with sharing allocation and usage of river waters was incorporated in the Inter-State Water Disputes Act under Article 262 of the Constitution. But clause 9.3, which dealt with the construction and completion of the canal, remained distinct and operative.

Punjab stopped work again, and Haryana filed a second suit in the SC in 1996, which was decreed in 2002 by issue of a mandatory injunction directing completion of the canal. Punjab filed a review petition against the verdict, which was dismissed. There followed a flurry of court actions Haryanas application for execution of the decree, a fresh suit by Punjab for declaration that the same decree was unconstitutional and unenforceable because of changed circumstances, Haryanas application for rejection of Punjabs plaint, a writ petition challenging the constitutional validity of the relevant SC Rules (Rules).

States desire to assume judicial authority is fatal to the federal structure
Punjabs case is not the first instance of court verdicts being overruled
The court first dealt with the challenge to Rules, relying on earlier precedents to hold that in Constitutional jurisdiction, the limitations of an ordinary suit were not applicable. In considering Haryanas application for rejection of Punjabs plaint, the maintainability of the suit under Article 131 had to be decided. Punjab claimed that an order of injunction could be modified in the present case. The court on examination of the various foreign and Indian precedents cited, held this was warranted in cases of interim prohibitive injunction, and a decree of mandatory injunction could be modified only prospectively in case of substantial change in circumstances, which the facts failed to justify.

On the constitutional issue, the court took pains to clarify that the decree was not based on the quantum of water sharing nor on the Punjab settlement. In doing so, the court reiterated the finding in the decretal order that the construction of the SYL canal is not a water dispute. The court also explored whether Punjab could raise these issues, when they stood determined in the earlier suit and held that Punjabs fresh suit was barred by the doctrine of res judicata. In any event, the decree whether right or wrong, could not be impeached.

In this disposing of this third round of litigation, the SC deprecated the attitude of Punjab in disregarding constitutional provisions, particularly Article 144, which mandates all authorities to act in aid of the SC. The court probably anticipated the events to follow, when it observed that by refusing to comply with a decree under Article 131, the very foundation of the Constitution is assailed. Reference is made to the Constitution bench judgement in the Cauvery water disputes matter when an ordinance was passed to nullify the courts order, that it expresses the states desire to assume judicial authority, which is fatal to the federal structure.

A month later, Punjab found the predictable loophole to evade the SC mandate the Punjab Termination of Agreements Bill, 2004 was passed unanimously annulling the 1981 agreement with retrospective effort. This is not the first instance of judicial verdicts being overruled by legislation. Shah Bano and the Bangalore Water Supply are instances; but neither were verdicts arising out of cases under Article 131; nor did they involve legislating out of contractual obligations with retrospective effort. Further, the state legislature is not competent to legislate on water sharing. The Act has been made effective notwithstanding anything contained in other law, including any court decision and also ousts the civil courts jurisdiction on this point.

Given the political sensitivity, the Centre has made a reference under Article 143 to the SC for opinion on the validity of the Act, the termination of the 1981 agreement there under, and also whether by reason of the legislation the State stands discharged from the obligations flowing from the SC orders. The SCs decision will be a Constitutional landmark as well as an indicator in matters of contracts where legislation has to assume a secondary role.

The author is a partner in Rajinder Narain & Co, a Delhi-based law firm