Punjab law axing water pacts breaches federal structure, Haryana tells SC

Haryana on Friday told the Supreme Court that 2004 Punjab law terminating all water sharing agreements with neighbouring Haryana, Rajasthan, and Delhi breached principles of separation of powers and was also contrary to the country's federal polity.

Assailing the Punjab Termination of Agreement Act, 2004, it told the constitution bench headed by Justice Anil R. Dave that the Punjab assembly can't pass a law to neutralise the judgment of the apex court in which its own executive was a party to dispute.

Addressing Punjab's contention that there was a change of circumstance, senior counsel Shyam Divan, appearing for Haryana, said the Punjab assembly was not competent to enact a law on the grounds that the dispute had already been decided by the court, the extra-territorial nature of the legislative act and the federal structure of the country's polity.

Arguing that the state could not have usurped the judiciary's authority, Haryana told the constitution bench also comprising Justice Pinaki Chandra Ghose, Justice Shiva Kirti Singh, Justice Adarsh Kumar Goel and Justice Amitava Roy that the state could not be a judge of its own cause.

Referring to the apex court judgment on Cauvery water dispute between Karnataka and Tamil Nadu and dispute between Kerala and Tamil Nadu over Tamil Nadu's demand for increasing the water level in Mullaperiyar dam to 142 feet, Divan said that any change of circumstance could only be considered by the court alone and legislature can't step in.

He referred to the apex constitution court verdict of May 7, 2014 in Mullaperiyar dam case where the court had said: "The legislature cannot by invoking 'public trust doctrine' or 'precautionary principle' indirectly control the action of the courts and directly or indirectly set aside the authoritative and binding finding of fact by the court, particularly, in situations where the executive branch (government of the state) was a party in the litigation and the final judgment was delivered after hearing them."

The court had said this while holding unconstitutional the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 in its application to and effect on the Mullaperiyar dam.

While Tamil Nadu had sought to increase the water level in the dam to 142 feet, Kerala had opposed it citing threat to the safety of the dam.

Haryana cited the earlier ruling in the course of the hearing of a Presidential reference seeking the court's advisory opinion on the Punjab Termination of Agreement Act, 2004.

Meanwhile Punjab represented by senior counsel Rajeev Dhavan on Friday again sought to know the central government's stand on the Punjab Termination of Agreement Act so that it could address this in the course of its arguments.

Senior counsel Ram Jethmalani also representing Punjab told the court that it should refuse to answer the Presidential reference and sought time to address the court on this point.