SYL: SC rejects Punjab’s plea against judge

R Sedhuraman

Legal Correspondent

New Delhi, March 8

The Supreme Court today rejected the Punjab government’s objection to Justice Adarsh Kumar Goel, who hails from Haryana, being part of a 5-member Constitution Bench hearing the Presidential reference on the validity of the Punjab Termination of Agreements Act 2004.

In another setback to Punjab, the Centre today continued to question the logic behind the 2004 Act under which Punjab sought to cancel its agreements with neighbouring states, particularly Haryana, for sharing of river waters of Ravi, Beas and Sutlej.

The other states involved in the reference are Rajasthan, Delhi, Himachal Pradesh and Jammu and Kashmir, besides the Centre.

Arguing for the Centre, Solicitor General Ranjit Kumar said if Punjab felt the flow of water in these rivers had dwindled it could have reduced the share of other states on a pro rata basis, instead of trying to wriggle out of its commitments altogether.

“We are rejecting this application,” the Bench headed by Justice Anil R Dave told senior advocate Ram Jethmalani who argued for Punjab. The other members of the Bench are Justices Pinaki Chandra Ghose, Shiva Kirti Singh and Amitava Roy.

Jethmalani said Punjab wanted Justice Goel to opt out of the Bench, as six SC Judges had done so in such sensitive cases in the recent past as they hailed from one of the states involved in the litigation over sharing of river waters.

Punjab’s application had named the six Judges as Justices JS Khehar, HL Dattu and SS Nijjar (both retired), J Chelameswar, NV Ramana and Kurian Joseph.

All of them had opted out voluntarily without giving any chance to any of the states to raise objection, Jethmalani said.

“Punjab is constrained to move this application in the interest of justice. The Presidential reference is not only complex, but extremely sensitive. Each party state is seeking to protect its own interest which is of vital importance to its residents,” the state government had pleaded in its application filed by advocate JS Chhabra. Justice Goel’s recusal was necessary as there should not be even a remote possibility of any inadvertent bias in deciding the case.

Citing the reasons for rejecting Punjab’s plea, Justice Dave said he had decided several cases from Gujarat, while the other Judges also cited the cases they had handled despite the fact that these had involved their home states.

“Judges decide cases without any bias, love and affection,” the Bench said.

Persisting with his plea, Jethmalani said “everything has become so dirty in politics these days” and as such Justice Goel’s recusal would save a lot of unnecessary embarrassment.

Taking a neutral stand on the recusal plea, Solicitor General Kumar said it was entirely up to the Bench to take a view and that the Centre had nothing to do with it.

When the Bench began the hearing on February 29, the Centre had taken a stand against Punjab by contending that the Act was against the SC orders for the completion of the Sutlej-Yamuna Link (SYL) canal.

“We stand by the two judgments of the SC for construction of the SYL canal which was opposed by Punjab,” it had said.

Today, Punjab’s senior counsel Rajeev Dhavan said his client wanted to know the reasons for Centre’s opposition to the Act and as to why the Centre got the reference made to the SC through the President. He insisted that the Centre should explain the reference first, before Haryana and other states put forth their arguments.

The Bench accepted the plea and asked the Solicitor General to make his contentions.

The Punjab Assembly had passed the relevant Bill on July 12, 2004 when Capt Amarinder Singh was the Chief Minister, while the then Governor OP Verma gave his assent to the legislation the same night.

The state had enacted the law in the wake of an SC directive, asking the Centre to use its agencies to complete the SYL canal on the Punjab side to enable Haryana to get its full share of water. Punjab had abandoned the work on the canal.

Under the reference, the SC would answer if the 2004 Act was in accordance with Section 78 of the Punjab Reorganisation Act, 1966 that deals with the rights and liabilities of Punjab, Haryana, Himachal Pradesh, Rajasthan and Delhi.

Under Section 78, the Centre issued a notification on March 24, 1976, announcing the shares of Punjab and Haryana in the waters of the three rivers at 15.2 million acre feet (MAF) each, besides that of Delhi and Rajasthan.

The other issues involved in the reference are: Whether the Punjab law is in violation of the Inter-State Water Disputes Act, 1956 and the SC's directive for the completion of the SYL canal.