The dispute between India and Pakistan over the use of the waters of the Indus and its tributaries and its resolution through a treaty in 1960 constitute a useful precedent to solve the present row.
KARNATAKA, ruled the Supreme Court in 1991, answering a Presidential Reference under Article 143 of the Constitution, "has assumed the role of a judge in its own cause... The action (of the State) forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires, disregarding not only the rights of the other States, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. If the power of a State to issue such an Ordinance is upheld, it will lead to the breakdown of the constitutional mechanism and affect the unity and integrity of the nation".
Every word of this unusually strong opinion in the Cauvery water disputes case, directed at the Cauvery Basin Irrigation Protection Ordinance issued by the Governor of Karnataka in 1991 to frustrate an Interim Order of the Cauvery Water Disputes Tribunal, applies fully, if not with greater force, to the Punjab Termination of Agreements Act, 2004, passed by the Punjab Assembly on July 12 in order to defeat a mandatory injunction granted by the Supreme Court itself to complete the Satluj-Yamuna Link (SYL) Canal.
Faced with similar intransigence by an erring State, and a similar response by the Union government - following the 1991 precedent, the President referred the Punjab Act to the Supreme Court on July 22 for its advisory opinion - it is highly unlikely that the court will take a different view of the matter this time even though the Punjab Act is far more carefully worded than the Karnataka Ordinance and has the advantage of a preambulary recital no less than 20 paragraphs long.
In addition to the larger considerations that prevailed with the Supreme Court in the Cauvery case - the threat to the federal structure and the lack of legislative competence in States to enact laws affecting the rights of other States - the Punjab case involves an issue of even greater import extending beyond federal or national boundaries: the sanctity of the Indus Waters Treaty of 1960 between India and Pakistan.
Rightly described by N.D. Gulhati, the principal negotiator of the treaty from the Indian side, as the "biggest and the most complicated river dispute in the world, national or international", the dispute over the use of the Indus waters (including the waters of its tributaries, the Jhelum, the Chenab, the Ravi, the Beas and the Satluj) and its resolution in 1960, constitute a necessary historical and legal background to the current dispute among Punjab, Haryana and Rajasthan over the waters of the Ravi and the Beas.
The manner in which the dispute was resolved adds not inconsiderably to the value of the conclusion.
THE Indus diplomacy, writes Gulhati in his book on the treaty, was neither like the highly stylised diplomacy of the old days nor of the "gold-fish bowl" variety. "There was no mass audience to address, no occasion for rhetoric nor for inflammatory debating tactics." The approach was functional and highly professional. The negotiators were "not just playing with opinions and views, they were measuring and proving ideas by facts and figures".
Signed finally by Jawaharlal Nehru and Field Marshal Ayub Khan (and, for certain specified purposes, by Sir William Iliff for the World Bank that had brought the two nations together), the treaty effected a lasting division of the Indus waters to the mutual advantage of India and Pakistan, a division that has survived two full-fledged wars plus a third, the Kargil conflict, that was almost so. A division between the so-called "Eastern Rivers" - the Satluj, the Beas and the Ravi taken together - was made available for the unrestricted use of India (Article II) and the so-called "Western Rivers" - the Indus, the Jhelum and the Chenab taken together - for Pakistan's unrestricted use (Article III).
The significance of the opening clause of Article II - "All the waters of the Eastern Rivers shall be available for the unrestricted use of India" - the single most important provision in the treaty from the Indian point of view, is writ large over the whole of Gulhati's book, a work as indispensable for a proper understanding of river water disputes in the Indus basin as, say, Granville Austin's work on the labours of the Constituent Assembly is for understanding the Constitution. The following passage on page 246 of the book is, however, particularly instructive in the context of the present crisis:
"After ten years of hard and devoted work, we had secured almost a world-wide recognition of our claim to use in India all the waters of the Eastern Rivers, including the 12 MAF which was actually being let down for use in Pakistan as at the time of partition... In India, we had already allocated all these waters, including the 12 MAF referred to above, between Punjab (including the present Haryana), Rajasthan and Jammu and Kashmir. The scope of the Bhakra-Nangal project had been considerably increased, the Madhopur-Beas Link and the Sirhind Feeder had been completed and opened for operation, several new channels had been built on the Upper Bari Doab Canal and the Rajasthan Canal was under construction."
For anyone to suggest, adds Gulhati, that India should forego the use of the 12 MAF of waters of the Eastern Rivers and allow them to flow into Pakistan "seemed to us more dangerous than a fifth-column activity in the battle for the Indus waters or, to put it more charitably, showed a complete lack of appreciation of the large and vital role this quantity of river flow could play in meeting the food deficit of the country, in the development and prosperity of north-west India".
Both, then, the actual wording of Article II of the Indus Waters Treaty (all the waters of the Eastern Rivers being made available for use by "India" rather than any particular State therein), and its understanding and application by India, embodying what lawyers call contemporanea expositio (contemporaneous exposition) of a statute, rule out a claim or an exclusive claim to the waters of the Satluj, the Beas and the Ravi by any individual State within India.
The fact that a sum of 62.06 million (over Rs.100 crores) was paid to Pakistan by India, rather than any State or States within India, under Article V of the Indus Waters Treaty, towards the cost of construction by Pakistan of a system of replacement" works such as link canals (envisaged by Article IV) that would convey the waters of the Western Rivers to areas in Pakistan hitherto dependent for irrigation on the waters of the Eastern Rivers, further confirms this interpretation.
This financial assistance or contribution by India to Pakistan was the third main plank of the Indus Waters Treaty as proposed by the World Bank, the first two being the allocation of the use of the Eastern and the Western Rivers respectively to India and Pakistan.
More than anything else, therefore, Punjab's claim to the ownership of the waters of the Satluj, the Ravi and the Beas flies in the face of the Indus Waters Treaty which, strictly speaking and subject to the provisions of Article IV(15) thereof, recognises no such title or right of ownership even in India - nor, for that matter, in Pakistan in relation to the Indus, the Jhelum and the Chenab - and grants India only the right of "unrestricted use" of these waters.
Clause (15) of Article IV preserves, no doubt, "existing territorial rights over the waters" of both the Western and Eastern Rivers, a clear reference to territorial sovereignty on either side of the border. This is subject, however, to the phrase with which the clause opens: "Except as otherwise required by the express provisions of this Treaty", which is, by all accounts, a phrase of limitation and cannot be construed otherwise.
Determination of the precise extent of the limitation would entail a minute analysis of all the provisions of the Indus Waters Treaty and its various Annexures (which form, by virtue of Article XII, a part of the treaty) and the rights and obligations of India and Pakistan set out therein, an exercise not possible in the present article. It would suffice and be safe to state that any such analysis would vindicate the opinion of the outstanding German international lawyer and expert on river waters, Professor F.J. Berber, that even though "fairly elastic" and not free of "lacunae, obscurities and inaccuracies" the principle of "restricted" and not absolute territorial sovereignty should prevail in this area of international law.
Especially engaged by the Government of India in the 1950s to provide the necessary legal back-up in the negotiations over the Indus Waters Treaty, at first on a whole-time basis and later as a consultant after he left to join the University of Munich, Prof. Berber contributed significantly to the general plan and final text of the treaty. Translated from the German and published by the London Institute of World Affairs in 1959, his work Rivers in International Law is not likely to be surpassed for its depth and maturity of comprehension.
The principle of absolute territorial sovereignty, he adds, joining issue with Max Huber, may be pertinent for the problems of two neighbouring nations in relation to their territory composed of land. Water, however, is not an immovable but a movable element which today is in the territory of one state (or country) and tomorrow in the territory of another, and that creates further problems which are not exhausted by the principle of absolute sovereignty.
COMING back to Punjab's case, its claim to "proprietary rights in the waters of the rivers in East Punjab" was noticed in so many words, albeit only as a contention, in the Inter - Dominion Agreement concluded at Delhi on May 4, 1948 and signed by Jawaharlal Nehru, N.V. Gadgil and Swaran Singh on behalf of India and Finance Minister Ghulam Mohamed, Shaukat Hyat Khan and Mumtaz Daultana on behalf of Pakistan.
Staked by the then government of East Punjab, the claim was strongly disputed by the West Punjab government, contending that West Punjab had a right to the waters of the East Punjab rivers "in accordance with international law and equity".
Neither of the Dominion governments stated their views with respect to the rival contentions, resting content with the "hope" that a friendly solution would be reached. Behind the dull prose of East Punjab's claim in the Agreement of May 1948 lay a dramatic action on the ground, whose reverberations continued to be felt in the corridors of power in Asia and the West long thereafter. In a sudden, unprecedented move on April 1, 1948, East Punjab stopped all delivery of waters to West Punjab from the Upper Bari Doab Canal.
"In an area as arid and densely populated as the Indus basin," Pakistan was to state five years later, unable to forget the incident, "the appropriation by one community of the water of another is an act with tragic and far-reaching consequences. In its implications and results, such an act can be more devastating than an armed attack."
Had the Inter-Dominion Agreement of May 1948, containing East Punjab's claim to proprietorship of the river waters, remained in force, Punjab would have had an eminently arguable case today, Section 78 of the Punjab Reorganisation Act notwithstanding. Its challenge to the constitutionality of Section 78, now rather thin, would also have carried far greater conviction in that event.
Unfortunately for Punjab, however, the May 1948 Agreement did not survive the Indus Waters Treaty. Incorporated in Annexure `A' to the treaty is the Government of India's express declaration, agreeing with Pakistan, that the 1948 Agreement and "the rights and obligations of either party thereto claimed under, or arising out of, that Agreement" shall be without effect as from April 1, 1960, the date on which the treaty itself came into force pursuant to its ratification.
All its claims under the 1948 Agreement having been thus effaced, how can Punjab now legally claim what under the Indus Waters Treaty belongs only to "India" or not even to India?
For all my reservations about the twin judgments of the Supreme Court in the SYL canal case - the specious reasoning employed in the first to assume a jurisdiction expressly denied under Article 262 and the obsessive preoccupation with the technicalities of ordinary civil law in the second - and for all the intensity of sentiment in Punjab today, it is apparent that, in the ultimate analysis, Punjab has no case.
Anupam Gupta is a senior lawyer based in Chandigarh.
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