Although the Supreme Court of India has struck down the Punjab Act on Sutlej-Yamuna Link canal as “un-constitutional”, what has come into a sharp focus with this order is the Centre’s power to take over the entire project.
A five-member Constitution Bench of the apex court held that the Punjab Act cannot be considered legal and valid and “the State of Punjab cannot absolve itself from its duties/liabilities arising out of the agreement”.
Like in Kaveri water dispute, if there is an agreement between two or many riparian states, the state in which a river originates cannot say that it would not share water even on a pro-rata basis.
However, the SC decision has heated up the political discourse as reportedly 43 Congress legislators of Punjab have resigned. But what is legality or sociality?
You are on the top floor of a housing society, can you say that I will leave the water to go down only when my flat and all the top floor flats are filled up when pipes down dry up? This is not a simile or metaphor but this is what is happening in almost all river waters of India. As I already wrote on this website earlier, “nationalise all river waters” and all river sources, and now what has come as a shot in the arm for the central government is that the Constitution bench presided by Justice Anil R Dave has made the same clear with a direction to the Centre to form a central agency to take control of the canal works from Punjab. This would virtually give the power to the Centre to finish and take control of the SYL project and by interpretation, the Centre can now interfere in all such river disputes.
A central agency can now be formed and decide how much of the water flow is the need of the riparian states – in this case, Punjab, Rajasthan and Haryana. In Delhi, Yamuna water is almost a ditch, the industrial, municipal and domestic wastes making it un-potable.
However, the issue is the presidential reference on the Punjab Act nullifying the age-old agreement when Haryana, Himachal and Punjab were carved out as new states.
With this new order, India’s top court has revived a decree passed in 2004 whereby the Centre was directed to form a river water agency. This was not done in the Kaveri river water dispute also. The Centre, then, told the top court that it could not be done.
The apex bench also comprising Justice PC Ghose, Justice Shiva Kirti Singh, Justice Adarsh K Goel and Justice Amitava Roy, also criticised Punjab seeking to terminate its 1981 agreement with Haryana and Rajasthan.
A similar presidential reference on the Ayodhya Ram Janma Bhoomi-Babri Masjid was shot down on the ground that it was made under a rule which was not binding on the government. If a reference is made which is not binding, then why the judiciary should waste its man hours or judicial hours? In the instant case, the Supreme Court said that “Punjab had exceeded its legislative power in proceeding to nullify the decree of this court and therefore, the Punjab Act cannot be said to be a validly enacted legislation”.
The State of Punjab unilaterally terminated the agreement, the Bench noted, adding that it would deprive Haryana and other states of their share of the river water. Punjab enacted a law called Punjab Satluj-Yamuna Link canal land (Transfer of Property Rights) Bill, 2016, which has been now struck down. This is held to be in violation of the agreement signed by Punjab, Haryana and Rajasthan in 1981.
It is high time that all river waters and even water resources are nationalised so that water can be shared pro rata in accordance with the need; for a person born free, at least water and air should be free.