The rule of law is a fragile thing. It depends upon the consent of the governed. It requires forms of constitutional propriety to be obeyed and deference paid to the duly constituted authorities. If that deference breaks down, the entire network of relationships and obligations that underpins the rule of law begins to fray. In its defiance of the Supreme Court’s order on the Satluj-Yamuna Link (SYL) canal, the government of Punjab has taken a big step towards undermining the Constitution. It is now up to the central government to ensure that Punjab’s defiance does not continue and that the rule of law is restored.
Last week, the Supreme Court declared unconstitutional a law passed by the Punjab legislative Assembly in 2004 that sought to end the state’s responsibility to construct the canal and share water with other states, especially Haryana. Punjab had sought to escape a 1981 agreement with Haryana and Rajasthan on water-sharing, one that had been upheld by the Supreme Court already. “Once a binding decree has been passed by a court of law, a party to the litigation cannot unilaterally act in a manner which would nullify the effect of the decree,” said the court about the Punjab law. Instead of recognising that the Supreme Court had declared the end of the matter, Punjab has doubled down on its defiance. Pressured by the Opposition, and mindful of upcoming state elections, the Punjab government decided to further change the facts on the ground. The state government passed an executive order a few days after the Supreme Court judgment saying it did not intend to give even “a drop of water” to another state. The Haryana government went again to the Supreme Court in response, and the court set a hearing for Monday. Given this deadline, the Punjab government reportedly gave its bureaucrats 24 hours to transfer over 5,000 acres of project land back to the original owners. On Monday, Punjab’s Revenue Minister Bikram Singh Majithia declared that all 4,261 acres of land in 202 villages of four districts had been transferred back to 21,511 farmers. It is difficult to see these actions as anything other than open defiance.
This is not the only instance of state governments refusing to listen to court judgments, only the most egregious. In the recent past, the government of Karnataka also failed its responsibility to constitutional order, again on the matter of sharing water. And even more recently, the Lieutenant Governor of Delhi, Najeeb Jung, came under fire for undermining the National Green Tribunal’s orders by lifting a ban on construction in the city. It is true that the judiciary has, over time, over-stepped and frequently passed orders on subjects that are in the executive’s domain, such as the movement of trucks in the national capital. The risk of defiance by the executive is increased under such circumstances. But the Punjab case is different, the Supreme Court is the ultimate arbiter of inter-state disputes. If a state defies the apex court, then the Centre has no option but to step in. It should follow the court’s orders and seize control of canal construction from Punjab and complete the work. What is astounding here is that the Bharatiya Janata Party is in power in Punjab, in Haryana, in Rajasthan, and at the Centre. It has no excuse to not find a political solution immediately to what has become a constitutional crisis.
