by Dr Bharat Jhunjhunwala

The Preamble of the Indus Water Treaty says that the Governments of India and Pakistan have entered into the Treaty to attain satisfactory utilisation of the waters of the Indus system of rivers “in a spirit of goodwill and friendship…” India made a great sacrifice by giving 80 per cent of the water of our west-flowing rivers to Pakistan in order to secure this friendship. This friendship, however, has been shattered by the support given by Pakistan to cross-border terrorism. 

The Treaty provides that any modification will be done only by mutual agreement of India and Pakistan. However, since the very objective of the Treaty has not been achieved, India would be justified in either abrogating or otherwise modifying the terms of the Treaty unilaterally.

It is a well-established principle that a law must be interpreted in the light of the Preamble. Let us say, one enters into an agreement with a taxi driver to carry oneself from Mumbai to Pune for Rs 2,500. That agreement falls if the taxi driver is not willing to take the passenger to Pune.

Similarly, India and Pakistan entered an agreement to secure goodwill and friendship. The Treaty falls if Pakistan works contrary to the principles of goodwill and friendship. 

Article III of the Treaty provides that India may interfere with the flow of the rivers allotted to Pakistan for domestic use, non-consumptive use, and generation of hydro-electric power. The basic idea was that India should not withdraw water for these rivers for “consumptive” uses such as agriculture that would reduce the amount of waters that would flow to Pakistan.

The generation of hydropower is non-consumptive. The amount of water coming from upstream is released downstream after generation of electricity. The amount of water flowing to Pakistan remains unchanged. Water is stored in the small reservoir behind the dam for a few hours and released for the generation of electricity when the demand for electricity is more.

Therefore, there is no intra-seasonal storage as in projects like Bhakra and Tehri. The hydropower projects being made by India on the three rivers allotted to Pakistan are therefore within the four corners of the Treaty. India has built the Kishanganga and Ralte hydropower projects on the Neelum and Ravi rivers under this provision of the treaty.

Pakistan has objected to two aspects of these projects. First objection is that India is diverting waters of the Neelum river into Ravi for increasing the supply of water to the Kishanganga project. The water of Neelum will flow to Pakistan through the Ravi after generation of electricity; instead of flowing directly through the Neelum itself.

There is no reduction in the supply of water to Pakistan — only the point of supply is being changed from Neelum to Ravi. Pakistan is not convinced. Pakistan is building hydropower projects on the Neelum river downstream after she enters Pakistan. The diversion of water of the Neelum to Ravi will reduce the water available to the downstream projects on Neelum being made by Pakistan.

The Treaty does not explicitly says whether Indian can or cannot divert water of one river of Pakistan quota to another river of Pakistan quota. The Treaty only says that India will not make any consumptive use of the waters. Hence, India’s action is in the grey area. That said, this much is true that the investment made by Pakistan on downstream projects on the Neelum will be rendered waste if the water of Neelum is diverted to Ravi and supplied to Pakistan through the Ravi.

The second objection raised by Pakistan is that the flushing of sediment done by the Kishanganga Project will disturb the flow of sediments and affect the working of downstream hydropower projects on the Ravi. Sediments are brought by the river from upstream and are accumulated in the reservoir behind the dam of hydropower projects. These sediments fill the reservoir behind the dam.

In due course of time, often as short as a couple of years, the reservoir gets filled up with sediments and is no longer able to hold the water for supplying to the turbines in a regulated manner. The project becomes dysfunctional once this happens. Gates are installed at the bottom of the dams to flush out the sediments to overcome this problem. These gates are opened, say, once a week.

At this time a gush of sediments is flushed out of the reservoir, the sediments are removed and the project remains functional. Pakistan has objected that the flushing undertaken by India leads to a gush of sediments at a particular time and disturbs the working of the downstream hydropower projects being made by it. Pakistan’s objection is technically correct.

These two objections made by Pakistan were referred to the World Bank under the mediation clause built into the Treaty. The World Bank has largely given decision in favour of India. The details are not important here. The overall situation, then, is that India and Pakistan entered into the Indus Treaty in a spirit of goodwill and friendship.

India gave 80 per cent of the waters of the west-flowing rivers to Pakistan to secure this goodwill and friendship. The support by Pakistan to cross-border terrorism has removed this basic foundation of the Treaty. Therefore, India is within her rights to abrogate the Treaty and deny the 80 per cent water of the rivers to Pakistan. 

But Pakistan has made a fool of India by raising petty technical matters such as diversion of waters from the Neelum to the Ravi and installation of flushing gates in the hydropower projects.

In accepting the validity of these disputes, and by not abrogating the Treaty, India has allowed itself to be trapped into these petty issues and strayed away from raising the basic violation of the Treaty by Pakistan in the sponsor of cross-border terrorism. This is like the wrongdoer in a property dispute cleverly raising the issue of what clothes are worn by the contending parties and distracting attention from the property dispute.

India must wake up. We should remind ourselves that the there is no International law that binds India to honour the Treaty. The United Nations has passed a non-binding resolution that an upstream country will take into account the interests of the downstream country in managing its international rivers. India is within her rights to abrogate the Treaty and start diverting the 80 per cent waters presently she is allowing to flow to Pakistan until Pakistan stops sponsoring cross-border terror. Formerly Professor of Economics at IIM Bangalore.