Solving Pakistan: Solution 3
Water for Nuclear Disarmament Solution (cont.)
X-Posting a conversation with SSridhar garu from Indus Water Treaty Thread
SSridhar garu,
Perhaps I am missing something with respect to the Indus Waters Treaty! Perhaps you could explain in short (or long), what exactly does India get for being in the IWT?
Okay, India averts a conflict with Pakistan, which hasn't really worked. But besides that?
SSridhar wrote:RajeshA, one has to look at the treaty in the context in which it was signed. In c. 1959, Ayub Khan took over Pakistan. In c. 1960, India and Pakistan signed a border agreement in the western sector and by Jan. 1961, troops began to withdraw from areas ceded to each other as part of the agreement. There was an American President, Eisenhower, who felt that he could establish a better relationship with India if he intervened in the water dispute (which started in 1948) as a neutral country friendly to both nations and settled the issue. India was unable to start its Bhakra-Nangal project, in which Nehru placed enormous faith for a green revolution. Nehru probably also thought that he could establish a new relationship with a new President in Pakistan.
So, all stakeholders felt something positive in the agreement.
SSridhar garu,
Thanks for your response.
Perhaps it did have its purposes in 1960. But today India has sufficient infrastructure on the Eastern Rivers. Pakistan has some on the Western Rivers. The Partition of the Indus Basin so to speak is complete, and IWT helped us get there.
My question pertained to the Present. What dividends are we getting today from IWT? It has more to do with the idea, whether it would be beneficial for India to terminate the IWT one way or the other? Should we do it, do we have anything to lose from it?
SSridhar wrote:Rajesh, the treaty, as it was drafted, is a great detriment to India. There can be no doubt about that. The award is not equitable from an Indian PoV at all. Moreover, it puts a lot of shackles on us, and we constantly have to prove our innocence to a paranoid Pakistan that hides its hatred for us under the facade of paranoia and thus deceives the world. This should be the only treaty where an upper riparian gave up so much to its sole lower riparian which has been most inimical. Such a generosity has brought us nothing but wars, skirmishes, terrorism, killing, maiming, water shortage, huge costs because of the conditions in IWT etc.
But, the question is how to scrap it now and renegotiate. I do not see that happening. We have to relentlessly implement our projects. The lesson here is that India should never barter away its interests because it would be too costly or even impossible to recover from such mistakes. Even if a there is a piece of land 'where not a blade of grass grows', it simply doesn't matter. We cannot let go of it. Similarly, even if we did not realize how to make use of waters of the so-called western rivers at that time, we should not have given four times the water that was eventually allocated to us, to Pakistan.
SSridhar garu,
I have a little amateurish proposal, consisting of a few mental somersaults.
The three parties to the treaty were India, Pakistan and the World Bank! As I understand, we cannot abrogate the treaty, we cannot terminate the treaty. But the Treaty can still be struck down as illegal in the first place.
This is where Article 370, which has been a millstone tied around our neck, can surprisingly, be of use. According to the Article 370 from 1952, J&K gave India the responsible only for Defence, Communications, and Foreign Policy of J&K, as well as other areas to which J&K Legislature gives approval. There is no mention of water. The waters did not belong to India in the first place.
So GoI in fact was not in a position to barter away the Western rivers and give them to Pakistan as per IWT from 1960.
India should recognize this fact, and allow the ownership of waters of the rivers - Indus, Jhelum and Chenab to revert to J&K state!
GoI should reach an agreement with J&K that preserves India's current rights over the waters flowing through J&K, but gives the ownership of the water itself to J&K.
In fact a simple complainant can bring a lawsuit in front of Supreme Court of India to judge on the matter, whether India was in a position to negotiate the IWT or not! The Supreme Court of India says India was not in such a position, and IWT is declared null and void. E Voilà, the waters of the Western Rivers belong to J&K.
With Indian rights secured, now it is up to J&K to give the waters to Pakistan, being the upper riparian. Of course, World Bank and Pakistan would impress upon J&K to continue with the current arrangements, but J&K can say, No!
India can make J&K an offer to pay for the waters of the Western Rivers, and gets the necessary infrastructure for the diversion built to divert the waters into other Indian rivers.
Considering, that for J&K this could be a lucrative deal, J&K decides to take up on India's offer.
After that J&K demands from Pakistan to be paid a similar amount for the water per cubic meter, that Pakistan receives from Indus, Jhelum and Chenab. That is where the fireworks begin between J&K and Pakistan.
Considering that India would be the country willing to pay for water from the Western Rivers, India controls how much water really goes to Pakistan, which would be equal to the amount India is not willing to buy!
There may be some downsides to this of which I am not sure.
I would appreciate your thoughts on this!
SSridhar wrote:Rajesh, there are two aspects as far as I can see.
The first is the constitutional matter. The second is the implication of leaving a foreign policy issue with a state.
On the constitutional issue, being only a layman, I see the following. The Constitution divides powers (legislative, executive and financial) into three lists, the Union List, the Concurrent List and the State List. Legislative power over anything not mentioned in these lists (the so called residuary powers) rests with the Central Government. Now, Article 370 makes certain exceptions for the State of J&K. In its original form of Article 370, the Union List & Concurrent List adhered to the T&Cs of the Instrument of Accession (IoA). These lists have been modified subsequently, especially in 1956. As I understand it, the Union Government can today legislate on Foreign affairs 'which bring the Union into relation with foreign countries' as well as 'Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament in the public interests'.
If 'water' was not mentioned in the IoA, it comes under the residuary power of the Union Government.
On the issue of leaving it to the state of J&K, there are several issues. Firstly, not the entire Indus system of Rivers concern J&K. The eastern rivers do not flow through J&K. Among the Western rivers, only Jhelum originates in J&K. The Chenab originates in Himachal Pradesh and the Indus itself near Manasarovar in Tibet. So, the entire system of rivers cannot be considered as a package for settlement by an entity other than GoI. Secondly, Indian Constitution does not allow any state to negotiate a treaty with another country. that is a sure recipe to fragmentation in double quick time. Thirdly, we cannot selectively go back on the integration of J&K to suit our convenience.
SSridhar garu,
Again thanks for your response!
On constitutional matters, this is what I read:
The Instrument of Accession says the following with regard to External Affairs:
1. External affairs; the implementing of treaties and agreements with other countries;
From the wording, I would assume, that negotiation of treaties and agreements does not fall into the purview of Indian Government.
According to Article 370 the J&K State Assembly has to give its concurrence to any Indian Law for it to be valid over J&K.
That would mean for any Law, which is not about Defence, Communications or Foreign Affairs, India would have to get the
concurrence of the J&K State Assembly, regardless of whether the law in question deals with a subject in the Union, Concurrent or Residual List. This is different for other states in the Indian Union.
SSridhar wrote:If 'water' was not mentioned in the IoA, it comes under the residuary power of the Union Government.
My reading is different on this matter. Water would perhaps come under Residuary Power of the Union Government, if it is not part of the Union List or Concurrent List or State List. But the Schedule in the Instrument of Accession is a
positive list, and not a negative list. It states the issues over which the Dominion of India may avail without concurrence of J&K State Assembly. For all other issues, the concurrence of J&K State Assembly is required.
So even as GoI would be the only instance to deal with foreign issues externally, in this case IWT, GoI internal to India, would first need to bring the resources or aspect in question under its responsibility, in this case river waters of J&K, which can only happen with concurrence of J&K State Assembly. I am not sure whether GoI has received that concurrence on this matter.
So J&K State Assembly can always claim that before India signed on to the IWT, India should have sought concurrence and clearance from J&K State Assembly. As India did not do so (I am assuming here), India did not have the right to barter away J&K water wealth.
SSridhar wrote:On the issue of leaving it to the state of J&K, there are several issues. Firstly, not the entire Indus system of Rivers concern J&K. The eastern rivers do not flow through J&K. Among the Western rivers, only Jhelum originates in J&K. The Chenab originates in Himachal Pradesh and the Indus itself near Manasarovar in Tibet. So, the entire system of rivers cannot be considered as a package for settlement by an entity other than GoI.
- For Jhelum, J&K takes full responsibility!
- For Chenab, J&K would have to find a sharing formula with Himachal Pradesh, perhaps share in the profits of selling the water, where Himachal's share would flow back to India. The Central Govt. can adjudicate the sharing of river waters. The last law has the concurrence of the J&K State Assembly.
- For Indus, J&K would simply claim all water that passes through its area as its own. Are the Chinese going to change the course?
SSridhar wrote:Secondly, Indian Constitution does not allow any state to negotiate a treaty with another country. that is a sure recipe to fragmentation in double quick time.
I am not saying GoI should not be the party to sign treaties and agreements with foreign countries and then take the responsibility of their implementation.
What I am saying is that GoI should have first brought the river waters of the Western rivers under its responsibility by reaching an agreement with the J&K State Assembly (making the assumption, that they didn't), and then having the J&K State Assembly pass a law to this effect, and then India could/should have signed the IWT.
Only GoI could have signed the IWT, of course! Only GoI did not do the needful to get the authority to do so from the J&K State Assembly as per Article 370 prior to signing on the IWT. This means GoI signed the IWT without the necessary authorization from J&K State Assembly (again some assumption being made here).
So GoI's sole privilege to deal with External Affairs for the Union of India is not being questioned or diluted, just the manner in which it was executed with respect to J&K river waters, thus making India's signature on the IWT untenable.
SSridhar wrote:Thirdly, we cannot selectively go back on the integration of J&K to suit our convenience.
J&K is well integrated with Union of India. Just for reference
a list of all the Indian Laws which are applicable to J&K.
There is a certain procedure laid down on how Indian Laws would be extended to J&K. Considering how many laws are already part of J&K legal corpus, it has been proven that at least on this front the J&K State Legislators do not deem necessary to underline the separateness.
Of course, Article 370 has many negatives with respect to India, especially in regard to owning property there or voting there. But in this particular case, Article 370 may be our savior.
<rhetoric start>
If we have had to carry the burden of Article 370 for so many years, why not enjoy this rare opportunity, where it works in our favor. If we water the trees for so long, why not enjoy this one time fruit, it brings forth!
<rhetoric end>
I understand, that my exposition above almost sounds seditious, but the cause is noble - to bring the Western Rivers under Indian control, and with that to bring Pakistan itself under Indian control!
If IWT is so bad, we should explore all venues to get rid of it! We should look for loopholes where ever we can!
If we get Pakistan under our control, then Kashmir gets solved by itself.