SYL Canal and River Waters Dispute— How to Resolve it with one stroke of pen

A New Approach to Resolving the SYL Canal Conundrum. Central Act to protect existing water usage and compensating the farmers of the deficit state.

The vexed and jinxed SYL Canal Project seems to present a problem that is insoluble and intractable. Neither adjudication by the Supreme Court, whether as a Court of original jurisdiction and interstate disputes, or in its consultative jurisdiction under Article 143 of the Constitution, on a presidential reference, has been able to resolve the issue. Similarly, neither political negotiations, nor inter-state agreements or statutory River Water Tribunals have been able to come out with a lasting and equitable solution.

Even unilateral and bold legislation like the Punjab Termination of Water Agreements Act, 2004, essentially delayed the matter, but did not solve it. The November 2016 executive notification, returning the SYL project land back to the original landowners, though an innovative step adopted by the Punjab Government, did put a serious hurdle in the SYL Canal, yet it was not possible to resolve the issue permanently.

SYL Canal is not an isolated issue. Interstate water disputes, in which the environment lobby also sometimes jumps in, have created lingering problems, which is not only sap physical and fiscal resources of the state, but also prevent meaningful investments by the respective states in their subsidiary irrigation infrastructure. Narmada waters, the Cauvery waters, the Krishna and Godavari waters present ongoing cases where resolution does not seem to be in sight. And if and when new states are carved out as Telangana and Andhra Pradesh were bifurcated in the year 2014, new disputes arise.

Water disputes are essentially in nature of fighting over a small cake, and sometimes more effort and energy is dissipated in trying to achieve something, than the real value itself. Political issues are created, passions are whipped up and the states concerned as well as the nation is the loser – perhaps the only microscopic minority that gains out of the process of the standing counsels of the water legal cells, who charge astronomical fees to fight the cases for the respective state governments, without coming anywhere close to the finalisation of the cases.

Over suggestion is simple and elegant – yet bold and innovative, which can only be implemented under the visionary and dynamic leadership of a strong Prime Minister like Narendra Modi. In simple words, this is what we suggest:

1. A Central Act should be enacted, perhaps through an immediate ordinance, freezing the existing water usage of river water and the canals for every state, on the day this law comes into force.

2. This Central Act should be an overriding act that should have effect, notwithstanding anything contrary to it in any other law, custom or practice; any judgement, order or direction or verdict of any court in the country or tribunal or any agreement or settlement or any such instrument, by whatever name called.

3. Domestically, this law should be override any international agreements or conventions or traditions or usages, whether based on riparian considerations or on basis of the usage within the river basins.

4. However, international commitments of India such as the Indus Waters Treaty of 1960 and Teesta Waters Treaty with Bangladesh should be outside the purview of the new, proposed law.

1. A 20-year average of the existing usage should be calculated, and on the basis of the available data.

1. Central Government, in consultation with the State Governments concerned should determine an annual water deficit figure for a particular claimant state, to be expressed in million acre feet. To be fair to the deficit state, in case vastly different figures are available, the highest among them should be considered.

1. While the existing usage would automatically stand protected, once this law comes into operation, the Central Government should compensate this deficit state, at the rate of Rs.10,000 per acre per annum, for a period of 10 years, prospectively.

2. The Central Law should provide that the Central Government may fix, by notification in the Official Gazette, a higher rate of compensation. Also, if it deems fit, the period of 10 years may be extended by a period not exceeding ten years up to a total of 20 years, by a similar notification.

1. Every year, with prospective effect, the Central Government shall transfer in advance the requisite sum to the concerned State Government, with the overarching and mandatory provision, that this amount should be distributed among the land owners/cultivators, who would have been legitimately eligible to use this water.

1. The power to frame rules within their respective territorial jurisdiction should be left to the State Government, inter alia to determine the quantum and the manner in which this compensation is to be paid, to the farmers. The administration of the scheme, including the quasi-judicial determination of the disputes, if any, between the farmers, as well as the appeals emanating from it, should be within the domain of the State Government, while framing the statutory rules.

1. Over and above this compensation, which is payable to the farmers, the deficit state shall be earmarked, a capital grant equivalent to twice the annual instalment to be released to the deficit state, for creation of irrigation infrastructure. Discretion should be left in totality to the discretion of the state Government, and need not necessarily be confined to the so-called deficit areas within the States, identification of which can be a contentious issue in itself.

1. All the disputes, including the pending cases, as well as the execution of decree is of various courts, including those of the Supreme Court of India, shall abate as and from the promulgation of this Ordinance/ Act.

Most of the critics, as well as experts, and all stakeholders, including politicians, bureaucrats, water -experts, legal luminaries, and the judiciary will have their own views, but the fundamental structure needs to remain on this basis. The simplest way to complicate and make this enactment a still-born idea is to get into the determination of existing usage through a Judicial Tribunal. Here the issue is not be precise determination, but arriving at a ballpark figure to compensate the farmers of the state, which had been deprived of canal irrigation water, owing to the pending interstate water disputes.

Many international, national and sub-national disputes are resolved on the basis of the existing position or situation. This includes disputes regarding international boundaries, existing of places of religious worship as at dawn of independence, even  sometimes regularisation of unauthorised buildings, which have come up in contravention to the building bylaws.

Sometimes solution of long-standing and vexed problems is present, right in front of our eyes, but the atmosphere is vitiated by passions and heated debates that we are unable to see it. But there comes “Eureka Moment” in the history of a Nation, when such a solution becomes manifest. This proposed Central Law, to preserve and protect the existing river water usage, to our mind, is such a proposed solution. The cost of implementation of the same, whether social, economic or political is minimal and as compared to the overall gains, especially amicable settlement of decades-old disputes, would be disproportionately more than the Central grants which would in any way go to the individual farmers as well as in creation of agri– irrigation infrastructure in the deficit state.

Governments come and go and Prime Ministers have come and gone since the dawn of Independence, yet there is, at times, a divine constellation, an overall set of circumstances, and a charismatic leader at the helm, when these issues can be solved and resolved in the most amicable manner, not only creating goodwill, but also rinsing away the past grouses, grudges and grievances. Under the leadership of PM Narendra Modi, this is doable in matter of weeks not months. 

Modi hai to mumkin hai.

By KBS Sidhu, ex-IAS

Kbs.sidhu@gmail.com