With little warning, the Satlej-Yamuna Link canal issue has rocked the nation, forcing a number of players to examine their stands on a number of questions. The national media has unanimously raised doubts about the 'intent and validity' of the unilateral decision of the Punjab Government to terminate the 1981 Agreement on sharing of Ravi, Beas and Sutlej river waters with neighbouring states, through the Punjab Termination of Agreement Act 2004. The Central Government has taken a more measured approach, first filing an application for directions and then moving a Presidential Reference leaving it to the Supreme Court to pronounce on the validity of the Termination Act.
The Act has serious implications for our federal polity; thus the failure of the Centre to take a decisive stand on the issue may be politically understandable, but not justifiable. It smacks of the familiar political tradition of come controversy, go court that has taken hold in recent years. The Act itself is undoubtedly in blatant disregard of a judgment passed by the Supreme Court barely a month ago, when the court directed the state of Punjab to complete the construction of its share of the Satlej Yamuna link canal within 4 weeks. Besides the Union Of India was directed to mobilize a Central agency to take control of the canal works from Punjab within the month of the date of the decision (The judgment dated June 4, 2004 was in pursuance of a suit filed in 1996 by Haryana seeking completion of the construction of the canal. This judgment titled State of Haryana v. State of Punjab is reported in 2004 (6) SCALE 75).
Notwithstanding the Court's directions, the Termination Act is quite likely popular among the people of the state. The state government's precipitous decision has pushed a latent conflict to the surface. The tension arising out of an undercurrent of conflict between a decisive judicial will and an amorphous public opinion in Punjab has really been brewing for some time now.
The timing and the content of the Act was surely to take away the legal basis of the Supreme Court judgment on June 4. Also, the precedents provided by the Cauvery adjudication were against Punjab, and the unilateral decision to terminate an agreement has no legal footing whatsoever. However the real challenge to the Supreme Court was not the immediate incident itself, but a larger and more important question. It is the fact that while the Court keeps on adjudicating on the inter state water disputes, these decisions seem to produce little results on the ground. Often, the court has been pronouncing verdicts and giving decisions which are not solutions, but as the present case shows, can become part of the problem themselves. The challenge thus is to the credibility of the Apex Court, and the repeated fact that court decisions, while decisive, do not necessarily prevail.
The Judiciary's response to this challenge can be to haul those
responsible for flouting its orders to face contempt charges. However the Court knows
that it is difficult to see a decision of a democratically elected government backed by
popular will - even where it goes against a Court order - as contempt. plus, even if
the Court succeeds in one case, the chances of it succeeding consistently in similar water disputes remain thin. The Supreme Court itself has spent lots of time on the Cauvery issue. Yet despite all that it was not the lordships in the court room, but really the rain gods from above and a Chief Minister below who relented soon thereafter, that allowed the heat to subside this season. Next year, there is no guarantee of a repeat of this fortune!. Likewise the Supreme Court continues to oversee the Interlinking Rivers Project seeing it more as in the national interest, and ignoring that it was really a political decision. With the new Government doing a serious rethink on the mega project, the Court faces a potentially awkward situation here too.
The real way to respond to this larger challenge is for the Court to not only lay down how far it is prepared to go while dealing with the water disputes between the States, but also show clearly and consistently that having gone thus far it will not go further. This is really a constitutional tightrope because first the Court's intervention is necessary in interstate water disputes; these are ultimately disputes affecting people's rights to water, and judicial review is both legal and proper. However it should now be obvious to one and all that disputes on sharing of river waters are really a combustible mix of conflicting factual assertions, conflicts of interests masquerading as conflicts on facts, and heavy politicization where the helms men are busy generating more heat than light.
The way the political parties in Haryana have responded to the new Act with the Congress and it allies not supporting the Chief Minister shows that forget the national interest, the issue is also not only about the State interest. There is thus a 'rights' perspective that sees the conflict as an essentially legal dispute, and a second perspective that shows that these are intensely political disputes as well.
The Court needs to construct a credible long-term response on such issues. It needs to facilitate and enforce the coming of the Draft National Policy Guidelines for Water Allocation, which would need to spell out in detail the broad legal and technical parameters for allocation of water among the basin states. A Draft of this policy has been in circulation with States for a long time now but is not getting finalised in the absence of any consensus. In a nation where droughts and flood frequently coexist, it is imperative that the states come to an understanding on questions of sharing, and put that understanding in the form of these guidelines. It is only proper that if the states are failing to respond to human suffering that this lack of understating is leading to year after year, the judiciary should oversee the establishment of these guidelines. This is very much possible in a country where 'judicial co-governance' is a reality and where there are precedents of the Courts enforcing the establishment of guidelines in other areas.
Once it is agreed that each basin state is entitled to a reasonable and equitable share, and once considerations in determining equity - e.g. population dependent on water, contribution of water by each basin state, availability of alternate water sources and maximum satisfaction of the need of a state without causing substantial injury to other states - are all agreed upon, specific disputes could be decided within the framework of these parameters. In the last meeting of the National Water Resources Council the need for these parameters was emphasised but, like in the past, not agreed upon. Unless discussions and decisions on disputes on sharing river waters center around these parameters, political considerations will continue to haunt both the national and the state interests.
The judiciary has a direct stake in ending this harmful stasis, and should convert the present challenge by Punjab into an opportunity.
