Acrimony over the right to Indus water

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Punjab's allocation of an estimated budget of Rs211 billion for the construction of canals to channel water from the River Indus to the Cholistan region in South Punjab has sparked controversy. This project has raised alarm in Sindh, where residents fear catastrophic consequences for the province's 60 million inhabitants, who are already grappling with water shortages. Beyond irrigation concerns, the construction could harm local flora and fauna and exacerbate soil salinity. The plan has also triggered apprehension in Khyber-Pakhtunkhwa.

Before discussing the rights of provinces over historic water usage, it is pertinent to note that the River Indus originates from the mountain springs northeast of Mount Kailash in Western Tibet. Flowing northwest through Gilgit-Baltistan, the river passes through Hazara Division and District Swabi in Khyber-Pakhtunkhwa. The Kabul River joins it at Khairabad, Nowshera (Khyber-Pakhtunkhwa), after which it flows southward into Punjab. The Panjnad River (formed by the Chenab, Beas, Jhelum, Ravi and Sutlej rivers) merges with the Indus at Mithankot.

The conflict over the Indus River's waters dates back to the post-World War I era, involving disputes between Punjab, Sindh, Bahawalpur and Bikaner states. The British government initially acted as arbitrators to manage these disputes. However, tensions resurfaced after the partition, not only between India and Pakistan but also among Pakistan's federating units.

Although the Indus Waters Treaty (IWT) of 1960, brokered by the World Bank, resolved disputes between India and Pakistan, it sparked new controversies within Pakistan. Under the treaty, Pakistan forfeited its rights to the Sutlej, Beas and Ravi rivers, upsetting the balance between water demand and supply. This loss created persistent tensions among Pakistan's provinces, straining the federal structure.

The Constitution of Pakistan temporarily addressed provincial disputes over water through the Water Apportionment Accord of 1991. Signed by all four provinces, the Accord established allocations and a distribution mechanism for Indus Basin water. Its key features include: a) Protection of existing canal water usage in each province; and b) Apportionment of surplus river supplies (including floodwaters and future storages) among provinces.

The Accord allowed for minimum water flows into the sea and stipulated that surplus or shortages would be shared among provinces. The agreed distribution was: Punjab 69.03 km³ (55.94 MAF);

Sindh 60.17 km³ (48.76 MAF); Khyber-Pakhtunkhwa 7.13 km³ (5.78 MAF), plus 3.00 MAF from ungauged canals above rim stations; and Balochistan 4.78 km³ (3.87 MAF).

The remaining river supplies (including floodwaters and future storage) were to be distributed as follows: Punjab and Sindh (37% each), Khyber-Pakhtunkhwa (14%) and Balochistan (12%). Total allocations under the Accord amounts to 141.11 km³ (114.35 MAF), plus an additional 3.00 MAF above rim stations.

Despite the allocations, Khyber-Pakhtunkhwa remains unable to fully utilise its share. The province is allocated 8.78 MAF annually but uses only 5.97 MAF, leaving an unused resource of 2.81 MAF due to insufficient infrastructure. This issue was highlighted in the National Water Policy of 2018. The federal government had committed to approving the CRBC Lift-cum-Gravity Project for Khyber-Pakhtunkhwa, but the project never materialised. Furthermore, the federal government has failed to provide funds for its share of this Public Sector Development Program (PSDP)-financed project, perpetuating inequitable treatment of provinces. Consequently, Khyber-Pakhtunkhwa loses approximately 34% of its due share annually, as per the 1991 Water Accord.

To ensure fair distribution and resolve disputes, the Indus River System Authority (IRSA) was established as a regulatory body. If grievances remain unresolved, disputes can be escalated to the Council of Common Interests (CCI).

The Constitution of Pakistan, under Article 155, addresses complaints regarding interference with water supplies. It provides a mechanism for resolving disputes concerning hydro or thermal power station construction. Article 155 states:

"If the interests of a Province, the Federal Capital, or the Federally Administered Tribal Areas, or any of their inhabitants, in water from any natural source of supply or reservoir have been or are likely to be affected prejudicially by: a) any executive act or legislation taken, passed, or proposed; or b) the failure of any authority to exercise its powers with respect to water use, distribution, or control from that source, …the Federal or Provincial Government concerned may file a written complaint with the Council."

Upon receiving such a complaint, the Council may render a decision or request the President to appoint a commission of experts in irrigation, engineering, administration, finance or law. This commission will present its findings, after which the CCI must record its decision on the matter. Both federal and provincial governments are then constitutionally obligated to implement the Council's decision faithfully.

The constitutional framework and the 1991 Accord emphasise that contentious issues like water disputes must be resolved through mutual deliberation. Federalism provides mechanisms for the equitable collection and distribution of natural resources. Any deviation from these principles could encourage centrifugal tendencies, undermining national unity.

In this context, no province should unilaterally decide on the use of the River Indus's waters. Adhering to the Constitution and respecting federal arrangements is crucial to maintaining harmony among Pakistan's federating units. Let us uphold the principles of federalism that bind our federation together.