The Lahore High Court (LHC) judgment directing the federal government to take meaningful steps for the construction of the controversial Kalabagh Dam (KBD) has opened another Pandora’s box at a time when the country is already in the 
grip of countless political and socio-economic crises. Inspired by an Indian court judgment to resolve a dispute between two Indian states, Tamil Nadu and Kerala, over the reconstruction of Mullaperiyar Dam on the Periyar River, Chief Justice Umar Ata Bandial of the LHC has hurriedly given a statement without knowing the context and history of the dam conflict between Tamil Nadu and Kerala.
The 116-year-old Mullaperiyar Dam was constructed in 1887 in Tamil Nadu and in 1895 on Kerala state land, but it was operated by the former government. Operational control of ‘all the waters’ was given to Madras (now Tamil Nadu) state on a 999-year lease by the British government to irrigate the barren farmland on its sides. The agreement was signed by the secretary of Madras state and the king of Travancore, under the British Raj.
So, it is not about the construction of a new reservoir on any river but the Kerala state says that the dam was too old and posed immense danger to millions of people living in the region, hence needs to be destroyed and rebuilt. This argument was opposed by Tamil Nadu on the basis that the dam was repaired; walls were strengthened in 1979 to hold more water. Interestingly, in the same period, several requests of the Punjab state to build new reservoirs and canals on the Indus were rejected by the British government.
Following a Council of Common Interests (CCI) meeting and water accord in 1991, then prime minister Mian Nawaz Sharif and his two important aides, Senator Mushaid Hussain and Wapda chairman General Zulfiqar Khan, visited Sindh, Khyber-Pakhtunkhwa and Balochistan, where all three provincial assemblies consensually passed a resolution to drop the idea of the KBD.
The same idea came up during General (retd) Pervez Musharraf’s government and again on May 9, 1998, the CCI decided to ask Wapda to formulate a strategy to market the KBD project. It was decided that several supplementary projects shall be reviewed and prepared simultaneously. The electronic media shall be used to project this and the civil society and political parties shall be consulted to formulate a consensus from all relevant stakeholders.
The entire deliberations of the honourable court, while disposing of nine different petitions, was one-sided, lacking knowledge and spirit of the context as well as the background of the conflict between Sindh and Punjab and the nature of political relationship of both riparian federating units.
The LHC judgment itself carried self-explanatory remarks when it resolved that “It is therefore directed that whilst implementing the afore-noted CCI decisions, the federal government shall faithfully strive to explore and devise an administrative framework and safeguards that allay the apprehensions, political or otherwise nurtured by concerned quarters about the KBD”. It meant that the Court realised the fact that political dimensions of the project shall be kept in mind.
Those who have thoroughly reviewed the judgment can easily say that the decision was based on the arguments and papers presented by the petitioner and the CCI office carrying several documents by Wapda, the Indus River System Authority (IRSA), the federal ministry of water and power, Sindh and the Punjab irrigation departments without having prior knowledge of the background and context of the political relationship of Sindh and Punjab as well as other international treaties, protocols and obligations which protect the rights of lower riparian on a shared river.
The courts must keep in mind that people of three small provinces rejected this project through their elected assemblies and they sacrificed a lot for the restoration of the judiciary in Pakistan. There is plenty of water in the system. The only challenge is to develop an effective water management system. Some quarters are not happy to see a smooth transition of power from one elected government to another and they want to exploit legal and constitutional frameworks to divide and rule Pakistan. (By Zafar Halepoto – The writer is engaged in doctoral research on transboundary water conflicts and river diplomacy between Pakistan and India).
