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RamJet asks SC to return Prez reference on river water dispute just like it did Babri Masjid reference

Contentious rivers
Contentious rivers

The Supreme Court’s constitution bench hearing on the sharing of river water through the Sutlej-Yamuna Link (SYL) canal, took an interesting turn this afternoon with Punjab’s counsel, senior advocate, Ram Jethmalani, making a strong pitch for the return of the Presidential reference on the issue unanswered.

The Presidential reference, made to the court under Article 143(1) of the Constitution, asks the court to answer whether Punjab was justified in cancelling, in 2004, its agreements with neighbouring States, for sharing of river waters of Ravi, Beas and Sutlej.

(The neighbouring states, having a dispute with Punjab are Haryana, Rajasthan, Delhi, Himachal Pradesh and Jammu and Kashmir.)

The Centre, through solicitor-general Ranjit Kumar initially expressed its disapproval of Punjab’s decision to wriggle out of its commitments completely, but later maintained a neutral stand.

This afternoon, when the bench comprising justices Anil R Dave, PC Ghose, Shiva Kirti Singh, AK Goel and Amitava Roy, began hearing counsel, Jethmalani’s turn came around 2:30 pm.

Jethmalani asked the bench to note the distinction between clause (1) and (2) of Article 143, dealing with the power of the President to consult the Supreme Court. Clause (1) says the court may, after such hearing as it thinks fit, report to the President its opinion thereon.

Under clause (2) of the same article, however, if a dispute of the kind mentioned in the proviso to Article 131, is referred to the Supreme Court by the President, for its opinion, the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.

Asking the bench to note that under clause (1), the Constitution framers deliberately used the word ‘may’ instead of ‘shall’, he said there are conclusive reasons why the court has the power to decline the reference.

Jethmalani then cited case law to suggest that even under clause (2) of Article 143, the court can decline a reference, if there are good reasons for doing so.

Relying on the Supreme Court’s decision to return in 1994 the Presidential reference on whether a temple existed prior to the Babri Masjid structure at Ayodhya unanswered, Jethmalani said the same logic should apply in this case.

In the Babri Masjid reference case, the court declined to answer the Presidential reference on the ground that the court would not be able to evaluate expert evidence on the issue, and also because, its decision to decline the reference would create the climate for negotiations between the parties concerned.

Jethmalani argued that in the present reference too, the court requires expert evidence to prove that the 1981 agreement between the parties has ceased to be binding. He contended that Punjab entered into the agreement in 1981 with the neighbouring states on the basis of statistics pertaining to the years 1921-1945.

The question of fact, whether water supply has diminished or continues to diminish, can be determined only by expert evidence, he contended.

Jethmalani argued against hearing the reference also because the disputes under the reference have already been referred to a tribunal, which has not yet been set up and that Punjab has filed a suit in 2015, asking for the same. It is only when there was no progress in setting up the tribunal, after one and a half years, (under law, tribunal has to be set up within six months, if a state seeks it), Punjab decided to annul the agreement, he reasoned.

The hearing will continue on Monday, 11 April.

Photo by Harpreet Riat

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