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Advisory Opinion of Supreme Court of India over Punjab Termination of Agreement Act, 2004: A Study |
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| Paper Id :
18146 Submission Date :
2023-09-12 Acceptance Date :
2023-09-21 Publication Date :
2023-09-25
This is an open-access research paper/article distributed under the terms of the Creative Commons Attribution 4.0 International, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. DOI:10.5281/zenodo.8403117 For verification of this paper, please visit on
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| Abstract |
The State Assembly of Punjab Unanimously enacted the Punjab
Termination of Agreements Act, 2004 on July 12, 2004 and terminating and
discharging the Government of Punjab from its obligations under the agreement
dated 31.12.1981 and all other agreements relating to waters of Ravi and Beas
rivers. This unilaterally terminations of agreements in a federal state arise
serious doubt of constitutional validity of the provisions of this Act. The
differences and doubts have given rise to public controversy undesirable which
may consequences lead and that to a question of law has arisen which is of such
a nature and of such public importance that is expedient to obtain the opinion
of the Hon'ble Supreme Court of India. A five-judge Constitution bench
headed by Justice A. R. Dave, P. C. Ghose, Shiva Kirti Singh, A. K. Goel and
Amitava Roy, unanimously held that its response to all the five questions
contained in the presidential reference[1] is negative. Present paper is based on keen observation of advisory
opinion given by the Supreme Court of India. It is a humble attempt to suggest
some remedial measures to combat the serious issue of interstate water disputes. |
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| Keywords | Advisory Opinion, Agreement, Inter-state Water Disputes, Sutlej Yamuna Link Canal, Union of India | ||||||
| Introduction | The rivers floated in Punjab[2] from centuries consist of the Indus Basin. The Indus Basin comprises of the rivers Indus, Jhelum, Chenab, Ravi, Beas and Sutlej. After the independence and partition of the country, two sovereign nations India and Pakistan were come into existence. In division, the area of Punjab[3] was fall in both side i.e. India and Pakistan. However, the Indus Water Treaty 1960[4] was entered between the Governments of India and Pakistan in September, 1960. Under the treaty, India is entitled to free, unrestricted use of the waters of the Ravi, Beas and Sutlej till finally cross into Pakistan. At the time of signing the said treaty, the waters of Sutlej had already been planned to be utilised for the Bhakra-Nangal Project.[5] The surplus flow of rivers Ravi and Beas, over and above the pre-partition use, was allocated by the Agreement in 1955 between the concerned states.[6] The dynamics of national politics of that period were strongly advocating the formation of separate linguistic states.[7] After the aforementioned allocation, there was a reorganisation of the State of Punjab[8] under the Punjab Reorganisation Act, 1966. As a result of which successor states, namely, State of Punjab and State of Haryana were come into existence. It became necessary to created and determine the respective shares of the successor states out of the quantum of water which could become available accordance with aforesaid allocation for use in the erstwhile State of Punjab and when the failed to reach successor states an agreement, a notification dated 24th March, 1976 was issued by the Central Government under Section 78 of the Punjab Reorganisation Act, 1966 under which State of Haryana was allocated 3.5 MAF quantity of water; to the State of Haryana under the said 1976 notification, construction of Satluj-Yamuna Link Canal was started by the State of Haryana in their portion after the 1976 notification.[9] The construction of SYL Canal was also started by Punjab in their portion in early eighties. The States of Punjab, Haryana and Rajasthan, in view of overall national interest and optimum utilisation of the waters, entered into agreement dated 31.12.1981 agreed on the reallocation of the waters among the States.[10] It was also agreed under the aforesaid 1981 agreement that the SYL Canal project could be completed in a time bound manner with a maximum period of two years from the date of signing of the agreement that the State of Haryana is enabled to draw its allocated share of water. This agreement is in use for deciding the periodical distribution of waters among the concerned states by the Bhakra Beas Management Board. An accord called the "Punjab Settlement"[11] was signed on 24th July, 1985 to resolve the issues relating to the State of Punjab. Paragraph 9.1 of the Punjab Settlement' provide that the farmers of Punjab, Haryana and Rajasthan will continue to get water not less than what they are using from the Ravi-Beas System as on 1.7.1985, though waters used for consumptive purposes will also remain unaffected and that quantum of usage claimed shall be verified by the Tribunal referred to in Paragraph 9.2 of the settlement under which the claims of Punjab and Haryana regarding their shares in the remaining waters will be referred for adjudication to a Tribunal.[12] To give effect to paragraphs 9.1 and 9.2 of the 'Punjab Settlement', Section 14 was inserted in the Inter-State water Disputes Act, 1956 under which Eradi Tribunal[13] constituted for verification of the quantum of usage of water claimed by the farmers of Punjab, Haryana and Rajasthan regarding shares in their remaining waters. The Tribunal forwarded a report in January, 1987. References of the States of Punjab, Haryana and Rajasthan and Central Government seeking clarification/guidance on certain points of the report was made to the Tribunal in August, 1987 under relevant provisions of the Inter-State River Water Disputes Act, 1956.The SYL Canal could not be completed as the works came to a halt following the killings of Chief Engineer and a Superintending Engineer of the project.[14] Nearly 60 per cent of the 112 km long canal had been constructed before grinding to a halt in 1990.[15] In July, the State of Haryana filed Suit No. 6 of 1996 before the Supreme Court of India praying for early completion of the SYL Canal in Punjab territory.[16] The said suit was decreed by the Supreme Court by its order dated 15.01.2002, by relying on the 31.12.1981 agreement and the State of Punjab was directed to make the SYL canal functional within a period of one years.[17] The State of Punjab filed Suit (O.S. No. 1 of 2003) a seeking discharge/dissolution of the obligation to construct the SYL Canal directed and Suit O.S. No. 1 of 2003 was dismissed by Supreme Court by its judgment and order dated 4.6.2004. The Union of India was directed in the said judgment and order dated 4.6.2004 to mobilise a central agency to take control of the canal works within period of a one month and the State of Punjab was directed to handover the works to the Central Agency within two weeks thereafter. On July 12, 2004, a special session he Punjab assembly was held which unanimously passed a bill terminating all agreements relating to sharing of waters of Ravi and Beas with Haryana and Rajasthan, two days ahead of the Supreme Court deadline to the centre to take up construction of the canal in the state. This Punjab Termination of Agreements Bill, 2004 also abrogated the Yamuna Agreement of May 12, 1994 between Punjab, Haryana, Rajasthan, Delhi and Himachal Pradesh and all other accords for sharing river water.[18] As the inter-State and Union–State tensions were going on due to The Act passed by Punjab State Legislative Assembly. On 15th July, 2004, the Union of India filed an application for taking on record subsequent facts and developments after the passing of the order of the Supreme Court dated 4.6.2004 and requesting to pass such other and further orders as interest of justice; deemed fit in the interest of justice. Doubts have been expressed with regard to the constitutional validity of the Punjab Act, 2004 and its provisions and also whether the agreement dated 31.12.1981 can be said to have been validly terminated by the State of Punjab and whether the State of Punjab has been lawfully discharged from the said agreement; whereas in view of the aforesaid, it appears that there is likelihood of constitutional validity of the provisions of the Punjab Act 2004 being challenged in Courts of law involving protracted and avoidable litigation, that the differences and doubts have given rise to public controversy which may undesirable consequences lead to and that a question of law has arisen which is of such a nature and of such public importance that is expedient to obtain the opinion of the Hon'ble Supreme Court of India thereon.[19] |
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| Objective of study | 1. To analysis the inter-state and
international water agreements of the rivers of Punjab. 2. To explore the legality and
implications Special Reference No. 1 of 2004. 3. To find the solution of water
disputes of Punjab. |
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| Review of Literature | Approach of political parties of Punjab over inter-state water sharing Punjab since independence is witness of competitive politics and ruled by Indian National Congress and Shiromani Akali Dal alternatively[20]. There are two broad reasons of inter-state water dispute. First is its geographical and demographic set-up was changed with the course of history. The split and merger of new areas always create controversies during the time of sharing of natural resources with these areas. Secondly, the economy of Punjab primarily based on agriculture. So sharing water with other states is against the economic interest of Punjab. The Government of Punjab 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 the soil of Punjab. This is a violation of the internationally accepted principle of ‘historic users’ rights’ or ‘prior appropriation rights’[21] After the twelve ears of Termination of Agreements, 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. 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. This was done despite the orders from the SC freezing all landfill activity and maintain status quo at the canal. 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. 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 SYL canal.[22] Both political parties of Punjab failed to construct logical arguments and could not protect the interest of Punjab. They always played blame game and could not develop a single integrated approach for protecting water resources of Punjab. Presidential reference and the advisory opinion of Supreme Court of India over Punjab Termination of Agreements Act, 2004 Conferred Article 143 in exercise of powers upon me by clause of the Constitution of India, I, A.P.J. Abdul Kalam, President of India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely:[23] i). Whether the Punjab Termination of Agreements Act, 2004 and the provisions thereof are in accordance with the provisions of the Constitution of India; ii). Whether the Punjab Termination of Agreements Act, 2004 and the in provisions thereof are in accordance with the provisions of Section 14 of the Inter-State Water Disputes Act, 1956, Section Reorganisation 78 of the Punjab Reorganization act,1966 and the Notification dated 24th March, 1976 issued there under; iii). Whether the State of Punjab had validly terminated the agreement dated 31.12.1981 and all other agreements relating to the Ravi-Beas waters and discharged from its obligation under the said agreement (s); and iv). Whether in view of the provisions of the Act; the State of Punjab is discharged from its obligations from the judgment and decree dated 15.01.2002 and the judgment and order dated 4.6.2004 of the Supreme Court of India."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 and pronounced that Thus, in our view, all the questions referred to this Court are answered in the negative[24]. Opinion of Justice Shiva Kirti Singh The opinion of Justice Shiva Kirati Singh further enhances the remedial measures for avoiding these junctures which damage the constitutionalism in India. The states collectively comprise the federal system, and should know its nature, use all their powers according to constitutionalism in India.[25] He clearly pointed out the fact that the survival of state is depending upon the mercy of union government. The various provisions strengthen the union legislature and powerful Supreme Court is the custodian of the Constitution of India. An observation necessitated by the somewhat disturbing facts: delay in execution of a final judgment or decree, more so when it is of the Apex Court, should never be countenanced by any authority because it would surely tend to undermine people's faith in the judicial system of the country, entailing in turn avoidable harm to all the institutions and functionaries under the Constitution, may be even to the Constitution itself.[26] |
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| Conclusion |
In this advisory opinion, the Supreme Court analyzes the historical,
social political and legal aspects of the Punjab Termination of Agreement Act,
2004. The legislative assembly of Punjab have no right to terminate the
agreements where others states, union government, judiciary and the plinth of laws
are involved actively. Politicians involved irrespective of their state, party
or ideology should make consensus on this vital issue of sharing water within
them. The observations of Justice Shiva Kirti Singh clearly indicate that
nobody in the constitutional set-up India can disregard the laws. For amicable
solution, all concerned parties consciously took initiative for water
conservation, change of crops system; take scientific measures to lessen the
consumption of water for irrigation. |
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| References | 1.
Special Reference 1 of 2004. 2.
The term Punjab consists with Panj means five and aab means waters. 3.
Spate, O.H.K (Oct-Dec 1947) The Partition of the Punjab and Bengal, The
Geographical Journal, Vol. 110, No. 4/6,pp 201-218. 4.
Külz, Helmut R. (Jul 1969) Further Water Disputes between India and Pakistan,
The International and Comparative Law Quarterly, Vol. 18, No. 3, pp. 718-738. 5.
Chopra Kanchan R. (Oct 1972) The
Regional Effect of Bhakra Nangal Project—A Case Study, Indian Economic
Review Vol. 7, No. 2, pp. 170-188. 6.
Punjab (Including 1.30 MAF for PEPSU) 7.20 MAF, Rajasthan-8.00 MAF, Jammu &
Kashmir 0.65 MAF, Total-15.85 MAF. Special Reference 1 of 2004. 7.
Arora, Satish Kumar (Feb. 1956) The Reorganization of the Indian States, Far
Eastern Survey, Vol. 25, No. 2, pp. 27-30. 8.
Lamba, Krishan Gopal (1999) Dynamics of Punjabi Suba Movement, Deep & Deep Publications,
New Delhi. 9.
Special Reference 1 of 2004. 10.
Share of Punjab 4.22 MAF, Share of Haryana 3.50 MAF, Share of Rajasthan 8.60
MAF, quantity earmarked for Delhi water Supply 0.20 MAF, share of J&K
0.65MAF, Total 17.17 MAF, Special Reference No. 1 of 2004. 11.
It was also agreed under paragraph 9.3 of this accord that the construction of
the SYL Canal shall continue and it shall be completed by 15th August, 1986. _
(1985) The Rajiv Sikh Peace Accord, Strategic Studies, Vol 8, No. 4, pp 8-11. 12. Special
Reference No. 1 of 2004. 13.
Ghuman, Ranjit Singh (Jan. 2017) Water Use Scenario in Punjab: Beyond the
Sutlej—Yamuna Link Canal, Economic and Political Weekly, Vol. 52, No. 3, pp.
34-37. 14.
Since 1990, when militancy escalated in the state, the 1,700 strong staff that
Punjab has employed to build the canal have not had serious work. The engineers
and labourers are unwilling to work on the project ever since militants killed
a chief engineer in July 1990, in his office in Chandigarh. Khurana, Indira
(Feb. 2006) Politics and Litigation Play Havoc: Sutlej Yamuna Link Canal,
Economic and Political Weekly, Vol. 41, No. 7, pp. 608-611. 15.
Ibid. 16.
Special Reference No. 1 of 2004. 17.
Ibid. 18.
Indira Khurana, Politics and Litigation Play Havoc: Sutlej Yamuna Link Canal,
Economic and Political Weekly, Vol. 41, No. 7 (Feb. 18-24, 2006), pp.
608-611 19.
Ibid. 20.
It was first time in State assembly elections 2022 that any third party i.e.
Aam Aadmi Party won elections and form the government in Punjab. 21.
Ranjan, Amit (Nov, 2019) Inter-State River Water Disputes in India: A Study of
Water Disputes Between Punjab and Haryana, Indian Journal of Public
Administration, Vol. 65, No. 4 pp 1–18. 22.
Ibid. 23.
Special Reference No. 1 of 2004. 24.
Ibid. 25. Ibid. 26. Ibid. |
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