Draft Briefing Paper
Supreme Court’s assumption of consensus among States for interlinking rivers flawed
Story of networking of rivers case, thus far
Gopal Krishna*
Summary
This paper presents the status of the proposed project on “Networking of Rivers” in South Asia and its relationship with Draft National Water Policy 2012. It showcases ample proof about the judicial role in the revival of a dangerous and disastrous idea, which has been dead for long on the flawed assumption of unanimity among the Indian States. The way even the pretence of democratic process has been sacrificed at the altar of judicial activism is illustrated through Indian Supreme Court’s judgment. It is observed that the very premise of the existence of judiciary is being redefined autocratically which in turn proposes to redefine the eco-system. In the absence of any definite international legal framework although both Nepal and Bangladesh have raised objections against the project, there is no time, space, or process indicated for participation of communities whose riparian rights must be considered, and who face upstream impacts and lesser-known downstream impacts. Transparency and accountability is of enormous significance given the fact that the entire valley of the river is sculpted by its waters which is in a dynamic state. Breaking the dynamic would indeed unleash forces of uncontrolled change, and invite the Law of Unintended Consequences.
Assumption of unanimity and consensus
Judgment in this almost ten year old petitioner-less “Networking of Rivers" case in the Supreme Court of India deserves the attention of not only the residents of India, Nepal, Bhutan and Bangladesh but also of China and the entire world. The Writ Petition (Civil) No. 512 of 2002 was a historic case. The judgment in the case was delivered on February 27, 2012 on a flawed assumption that there is consensus and unanimity among the states in the matter of Interlinking of Rivers concept/project.
In such a scenario the supreme question is why did the Supreme Court interfere in the policy matters of the government against its own interpretation of its lakshman rekha and presume consensus among states, which is manifestly non-existent as is evident from the Terms of Reference (TOR) of the Task Force, constituted to ensure networking of rivers and also from the courts most recent order. The TOR says, “Devise suitable mechanism for bringing about a speedy consensus”. This presumed consensus is the ratio decidendi (the reasoning behind the decision) of the judgment on networking of rivers. If something is a legal system, it must meet factual criteria. In the case of the 'networking of rivers' one fails to come across a cogent ratio decidendi that is “Any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”
In a stark admission of fact about the status of consensus among states in the matter of the project, in para 26, the judgment reads: “The process of consensus building is on-going, in regard to the feasibility of implementing other interlinking projects.” This reveals that after almost 10 years of assumption of consensus does not have any basis.
Para 20 of February 2012 judgment reads: “With regard to the approvals required, it is submitted that the Ministry of Environment and Forests, Union of India had given some clearances, while refusing the same in other cases. The consent of some of the States had not been received. The expected financial implication as far back as in 2002 was Rs.5, 60, 000 crores.” The source of financial estimate was never disclosed. It has now come to light that it is a flawed estimate.
Although para 22 records that “The Union of India and some states have shown their concerns and their apprehensions about these projects, including questioning the reliability of water supply from distant sources, distribution of water given the existing tribunal awards and the continued availability of existing water surpluses”, the judgment does not throw any light on how these concerns have been responded to.
Para 24 of the judgment reveals that “The last of the affidavits filed on behalf of the Union of India was in December, 2003. This affidavit gives details of the States, with which a dialogue was to be held as also the details of constitution of sub-committees. The Terms of Reference of the Task Force included the approval of all links. With the intention to arrive at a general consensus, before entering into agreements, the Union of India has discussed details with Maharashtra and Gujarat and preliminary discussion has taken place with the States of Andhra Pradesh, Chattisgarh, Karnataka, Orissa, Tamil Nadu and Pondicherry.” This shows that the assumption of consensus was/is premature.
The judgment notes that this case has been pending before this court for more than ten years but till date “only the DPR of the Ken-Betwa link has been prepared and its implementation is awaiting the approval of the State Governments as well as the allocation of funds, even to begin the work.” It goes on state, “This does not speak well of the desire on the part of any of the concerned Governments to implement these projects, despite the fact that there is unanimity of views among all that this project is in the national interest.” The fact is that the court has been misled into assuming that “there is unanimity of views among all”. At para 28, the order records: “even comprehensive clearances, from the Uttar Pradesh Government, have not been received. The State of Rajasthan refuses to consider the MoU for another priority link, Parbati-Kalisindh-Chambal, until the updation of its hydrology project.”
Para 27 of the judgment states: “In the Himalayan region, (Feasibility Reports) FRs of two remaining links were completed, i.e., the Sarda-Yamuna link and Ghagra-Yamuna Link. The field survey and investigation for Sone Dam on the southern tributaries of the Ganga link, was still in progress.” It adds, “The Ministry of Environment and Forests had refused permission for survey and investigation of the Manas-Sankosh-Tista-Ganga link, but the toposheet study for the alternative Jogigopa-Tista-Farakka link has been completed.”
In the Peninsular region, the projects relating to Bedti-Varada and Netravati-Hemavati-Tapi are awaiting Karnataka Government's consent. In Netravati-Hemvati-Tapi link, the Karnataka Government has refused to consent even to the preparation of FR until decision of related cases, pending in the Courts.
Para 29 of the judgment records: “In the Par-Tapi-Narmada and Damanganga-Pinjal links, residents have shown concern about the extent of land to be submerged on the construction of the proposed dam.”
Para 47 of judgment reads: “…it is clear that primarily there is unanimity between all concerned authorities including the Centre and a majority of the State Governments, with the exception of one or two, that implementation of river linking will be very beneficial. In fact, the expert opinions convincingly dispel all other impressions.” The fact is contrary to the assertion about unanimity and facts stated in the judgment itself demonstrate it.
It is noted in para 48 that “The States of Rajasthan, Gujarat, Tamil Nadu have fully supported the concept.’ The real reason for their support is that these are states which have exhausted their local water resources. What is required is to examine the unsustainable uses that led to these states becoming water stressed and rejuvenating their local sources instead of inter-basin transfer. What is stated in para 50 is not true because there is no unanimity in accepting interlinking of rivers and do not fall within the domain of general consensus.
Para 52 of the judgment seems to violate the federal spirit of the constitution wherein interest of the individual States is sought to be sacrificed in the name of national interest. South Asia’s biggest ecological crisis due to construction of embankments happened in the name of national interest. Siberian rivers that were diverted in former USSR which led to the world biggest ecological catastrophe, drying up of Aral Sea also happened by invoking the cause of national interest.
Déjà vu, been there, done that
This judgment gives a sense of déjà vu. Mikhail Gorbachev, former President of USSR has underlined that the Cold War era of "the bigger the better", which prompted the construction of 45,000 large dams throughout the world, is over. This thoughtless tampering with nature has left a terrible legacy of thousands of acres of fertile land having been lost with man-made catastrophes due to diversion of rivers such as in the Aral Sea region causing immeasurable suffering.[i] The fact is that in most cases, the practical solutions required are local, reflecting the geographically and culturally specific nature of water-use. The judgment has not factored in these lessons.
In 1959, a former Chief Engineer of West Bengal had pointed out the environmental impact of Damodar Valley project that imitated Tennessee Valley Authority of USA. He had also warned against construction of Farakka Barrage across Ganga by Government of India to divert 40,000 cusecs of water from its prevailing main flow in the Padma to its moribund branch Bhagirathi to improve navigation of Calcutta Port, improve potable water supply to the city and establish inland water transport etc. The site chosen was Farakka, 160 miles almost due north of Calcutta, situated on the Bengal-Bihar border near Rajmahal. He had rightly informed the authorities that the barrage will definitely fail in its promise of navigability because it would be impossible to get 40,000 cusecs water during lean season.[ii] The work started in 1962 and ended in 1971. It took four more years to build up the feeder canal and the project was dedicated to the nation on the May 21, 1975. Earlier during flood the flow of the water used to cut through the riverbed increasing its depth from as much as 50 to 150 ft. This process is obstructed now and maximum discharge capacity is severely affected. As a result of the obstruction in the natural process of desiltation the bed of the river in West Bengal, Bihar and U.P. has gone up. His prediction about huge floods in Malda, Murshidabad districts of West Bengal and in Patna, Barauni, North Munger, Bhagalpur and Purnia districts of Bihar was proven correct. In the aftermath of the construction of the barrage there were huge floods.
It is clear from the judgment that the lessons have not been learnt from the Farakka blunder. It appears that apex court’s bench which heard the Networking of Rivers case was kept in dark about such misplaced engineering interventions. Supreme Court’s judgment in this matter is akin to what the New Scientist (a science magazine) referred to as replumbing the planet.[iii] Majority of the people and scientists of the Indian sub-continent feel it’s a technological fantasy with irreparable disastrous consequences for our eco-system.
Judgment in this “Networking of Rivers” case was delivered by the bench of Chief Justice S.H. Kapadia, Justice A.K. Patnaik and Justice Swatanter Kumar on February 27, 2012 merits rigorous scrutiny because it seems to establish a disturbing precedent by assuming “consensus” and “unanimity” although 18 States chose not respond to the notice of Supreme Court of India “despite the grant of repeated opportunities to do so.” A notice was issued, on September 16, 2002, to the States and the Attorney General for India as respondents. In response to the said notice, none of the States or Union Territories, except the State of Tamil Nadu, had filed affidavits supporting/opposing the prayers made in the writ petition.
Paragraph 14 of the judgment reads: “this Court, vide Order dated 31st October, 2002, recorded that there is in-principle consensus amongst all States to go ahead with the project of interlinking of rivers.” If one read the recent judgment of February 27, 2012 and the original order of October 31, 2002 together, it is quite manifest that both them are based on the assumption of “consensus” and “unanimity” among the States. This appears to be against ‘the principles of Federalism’ and ‘a Constitutional impropriety’[iv] because the judgment itself notes that several states are opposed to it and some 18 states did not even respond to court’s repeated notices. A larger bench or legislature may have to set the factual position right in near future.
Till February 2012, only ten States responded to the court’s notices. In October 2002 when only one State had filed the affidavit giving its consent even then the Court had assumed consensus. The dictionary meaning of 'consensus' must be crying in its grave. Out of these ten, the judgment records that “The States of Assam, Sikkim and Kerala had raised their protests on the grounds that they should have exclusive right to use their water resources and that such transfer should not affect any rights of these States. The State of Sikkim was concerned with particular reference to tapping of the hydro power potential in the State and the State of Kerala entirely objected to long distance, inter-basin, water transfer.” The assertion that Punjab has given their approval to the concept in-principle is ambiguous because “according to the State of Punjab, inter-linking of rivers should be started only from water-surplus States to States facing water deficit.” Such contention is insincere given the fact that like Kerala Assembly, Punjab Assembly too has unanimously opposed the proposal of interlinking rivers. The former in the case of central plan and the latter in the case of Sutlej-Yamuna link canal despite Supreme Court’s order as it remains opposed to transfer water to Rajasthan. In the former case, Chief Minister of Kerala, Oommen Chandy stated that the Supreme Court judgement on interlinking of rivers would not apply to Kerala or its rivers on February 28, 2012 adding that the verdict was applicable only to concurring States. “Kerala has opposed interlinking of rivers. In view that, the judgement will not apply to us.”[v] VS Achuthanandan, Leader of Opposition in Kerala Assembly reacted, the project was "detrimental" to the state's interests and termed as "unfortunate" the Supreme Court directive to the Centre to implement it.[vi]
Yamuna Pollution case became Networking of Rivers case
On 16th September 2002 the Intervention Application No. 27 in the writ petition (civil) No. 725/1994 came up for hearing before the three-judge bench of the then Chief Justice, Justice B.N. Kripal, Justice K.G Balakrishnan, and Justice Arijit Pasayat. Upon hearing the counsel the court passed the order.[vii]
Paragraph 3 of the February 2012 judgment reads: “We must notice, to put the records straight, that on 29th September, 1994, a Bench of this Court took suo motu notice of a write-up that had appeared in the Hindustan Times newspaper, dated 18th July, 1994, titled "And quiet flows the maili Yamuna".…Since then, the writ petition is being continuously monitored by this Court, till date. During the pendency of this writ petition, I.A. No. 27 came to be filed (which)…referred to the address of Dr. A.P.J. Abdul Kalam, the then President of India, on the eve of the Independence Day.” Para 4 of the judgment states, “This is how I.A. No. 27 in Writ Petition (Civil) No. 725 of 1994 was converted into Writ Petition (Civil) No. 512 of 2002. The Writ Petition (Civil) No. 512 of 2002 was taken up for hearing and notice was issued to all the States, inviting affidavits regarding their stance on the issue of networking of rivers.
It further reads: On 16th September, 2002, this Court, while considering the said I.A., directed that the application be treated as an independent writ petition and issued notice to the various State Governments as well as the Attorney General for India and passed the following order:-"Based on the speech of the President on the Independence Day Eve relating to the need of networking of the rivers because of the paradoxical phenomenon of flood in one part of the country while some other parts face drought at the same time, the present application is filed. It will be more appropriate to treat to treat it as independent Public Interest Litigation with the cause title "IN RE: NETWORKING OF RIVERS -- v. ---" Amended cause title be filed within a week. Issue notice returnable on 30th September, 2002 to the respondents as well as to the Attorney General. Serve notice on the standing counsel of the respective States.”
In Tamil Nadu, despite sane advice of academicians against it, there is a political consensus as far as Interlinking of Rivers concept is concerned. Dr Kalam seems to have been overwhelmed in his home state by the latter and has chosen not to pay heed to the former.
In para 7 of the order it is stated that “we make it clear that presently, we are not dealing with Writ Petition (C) No. 725 of 1994.” It appears to be a glaring omission given the fact that the issue of quality of water which is the subject matter of original Writ Petition (C) No. 725 of 1994 is co-exists and is co-terminus with the quantity of water is the subject matter of I.A. No. 27 in it which was converted into Writ Petition (Civil) No. 512 of 2002. In fact I.A. No. 27 had advanced the prayer that networking of rivers will lead to dilution of pollution of polluted rivers.
Para 8 of February 2012 judgment states, “the National Water Policy which is being (is) updated on a yearly basis”, this is factually incorrect. The National Water Policy 2002 is now being updated in 2012 it was not updated in between. There is inter-basin transfer of water through interlining of rivers finds mention in both. It seems the whole Interlinking Project is a gimmick with no seriousness in it. It is only aimed at diverting the attention of the prople from the issues facing them. Now for all the problems like irrigation, floods, waterlogging, rehabilitation, the conflicts of this side and that side, lower and upper riparians, malfunctioning of the projects, non-implementation of the promises, costs and so on, it is "Surf Excel Hai Naa" type of solution.[viii]
Referring to National Water Policy 2002, it further states, “The National Water Policy seeks to make available water supply to those areas which face shortages. This aspect of the matter could be effectively dealt with, only if the various rivers in the country are linked and are nationalized.” This is also not true because there are alternative and better cost effective ways of dealing with water supply shortages and the remedy for effectively dealing with it does not lie in linking various rivers in the country and nationalizing them. It is indeed shocking that the court was not informed about the alternative ways to deal with water supply shortages.
Para 9 of the order reveals that a National Perspective Plan (NPP) for optimum utilization of water resources in the country which envisaged inter-basin transfer of water from water-surplus to water-deficit areas was formulated in 1980, the pre-climate crisis period.
The contention in the judgment that “Apart from diverting water from rivers which are surplus, to deficit areas, the river linking plan in its ultimate stage of development will also enable flood moderation” is flawed. There isn’t any credible piece of paper that can support this claim.
The judgment acknowledges that “the construction of storage reservoirs on the principal tributaries of rivers Ganga and Brahmaputra in India, Bhutan and Nepal” makes it an international issue. Bangladesh is also an affected party as downstream country.
The judgment states that Networking of Rivers scheme is divided into four major parts:
i) Interlinking of Mahanadi-Godavari-Krishna-Cauvery rivers and building storages at potential sites in these basins.
ii) Interlinking of West flowing rivers north of Bombay and south of Tapi.
iii) Interlinking of rivers Ken & Chambal.
iv) Diversion of other west flowing rivers from Kerala.
It is clear from above that “Diversion of other west flowing rivers from Kerala” is unlikely to happen given genuine unanimous opposition from Kerala Assembly.
As to “Interlinking of Mahanadi-Godavari-Krishna-Cauvery rivers and building storages at potential sites in these basins”, a recent cover story of Down To Earth underlines the conflict over water allocation in Mahanadi and Krishna river basin.[ix] In Mahanadi basin, Odisha and Chhattishgarh water is being allocated for industrial use indiscriminately without accurate forecast of future needs and without any water sharing treaty. How can water from such a river be diverted for interlinking of rivers project? In the matter Krishna river basin, there is already a raging conflict among Maharashtra, Karnataka and Andhra Pradesh despite adjudication by two Tribunals because demand for water has exceeded supply ignoring needs for riverine ecology. It has been underlined that ground water and surface water co-exist but because they have been treated separately hydraulic connection between the aquifers and the river has been broken is leading to shrinking of the river because aquifers are not recharging the river due to overdraft of groundwater. The categorization of Mahanadi as ‘surplus’ a river is clearly an error of judgment.
At para 62, the judgment reads: “The Court can hardly take unto itself tasks of making of a policy decision or planning for the country or determining economic factors or other crucial aspects like need for acquisition and construction of river linking channels under that program. The Court is not equipped to take such expert decisions and they essentially should be left for the Central Government and the concerned State. Such an attempt by the Court may amount to the Court sitting in judgment over the opinions of the experts in the respective fields, without any tools and expertise at its disposal. The requirements in the present case have different dimensions. The planning, acquisition, financing, pricing, civil construction, environmental issues involved are policy decisions affecting the legislative competence and would squarely fall in the domain of the Government of States and Centre.” But it goes on to add, “We certainly should not be understood to even imply that the proposed projects of inter-linking of rivers should not be completed.”
Para 63 of order reads: “We would recommend, with all the judicial authority at our command, that these projects are in the national interest, as is the unanimous view of all experts, most State Governments and particularly, the Central Government. But this Court may not be a very appropriate forum for planning and implementation of such a programme having wide national dimensions and ramifications. It will not only be desirable, but also inevitable that an appropriate body should be created to plan, construct and implement this inter linking of rivers program for the benefit of the nation as a whole.” From the above it appears that it is only a recommendation not an order given the fact that at para 64, it adds, “Realizing our limitations, we would finally dispose of this Public Interest Litigation” but goes on to issue sixteen directions including warning for contempt in case of non-compliance including constitution of a `Special Committee for Inter-linking of Rivers' with a “liberty to the learned Amicus Curiae to file contempt petition in this Court, in the event of default or non-compliance of the directions contained in this order.”
Given the fact that court has recorded its limitations and its jurisdiction, these sixteen directions and warning the states and central agencies of contempt appears to be an act of the bench overstepping its jurisdiction.
One Chairman, Two Committees and Contrary Recommendations
The judgment has failed to take cognizance of the recommendations of the National Commission for Integrated Water Resource Development Plan. Volume-I of Commission's report says: “The Himalayan river linking data is not freely available, but on the basis of public information, it appears that the Himalayan river linking component is not feasible for the period of review up to 2050.” On the Peninsular river component, the conclusion of this Commission is that "there is no imperative necessity for massive water transfer. The assessed needs of the basins could be met from full development and efficient utilisation of intra-basic resources except in the case of Cauvery and Vaigai basins. Some water transfer from Godavari towards the south should take care of the deficit in the Cauvery and Vaigai basins." Here also abundant caution has been recommended. How can S R Hashim who was the Chairman of the National Commission for Integrated Water Resource Development Plan set up by the Union Ministry of Water Resources feign ignorance about the relevant recommendations of the Commission given in the two volume report that was submitted in September 1999 now in his role as Chairman of the Drafting committee of the National Water Policy, 2012. How can he forget about it in his new role?[x]
It is a sad commentary on the scientific temper of our policy makers who have drafted the Draft National Water Policy 2012 and the legal minds that they have failed to understand that every river and water source is a living organism (not mechanically piped water) with different alkalinity acidic and saline levels that allow for unique and individual ecosystems. Inter-basin transfer and interlinking of rivers will lead to environmental catastrophe. The fact is that it a river and land diversion project akin to rewriting of geography. This implies mindlessly linking toxic river waters with those which are cleaner. This means mixing glacier waters to grassland waters that will have a killing effect on the entire ecosystem of the Indian sub-continent. International rivers like Brahmaputra and Ganga are also involved. It is not surprising these planners have ended up misleading the Supreme Court in passing the order of February 27, 2012 on networking rivers in which more than 20 states have shown no interest it at all and several have explicitly objected to it as is evident from the order itself.
How Networking of Rivers Case Started
On 30th September, 2002 the three-judge bench of the then chief Justice, Justice B.N. Kripal, Justice K.G Balakrishnan, Justice Arijit Pasayat heard the “IN RE: NETWORKING OF RIVERS” petition and upon hearing the counsel made the following order: “Learned Amicus Curiae has drawn our attention to Entry 56 List I of the 7th Schedule to the Constitution of India and contends that the interlinking of the inter-State rivers can be done by the Parliament and further contends that even some of the States are now concerned with the phenomena of drought in one part of the country, while there is flood in other parts and disputes are arising amongst the (riparian) egalitarian States relating to sharing of water. He submits that not only these disputes would come to an end but also the pollution levels in the rivers will be drastically decreased, once there is sufficient water in different rivers because of their interlinking. Response to the petition by the Union of India and the States be filed by 28th October, 2002.”
The case was listed for hearing on 31st October, 2002 and Nikhil Nayyar, Advocate on Record was appointed as Amicus Curiae to assist Ranjit Kumar, senior advocate appointed as Amicus Curiae in this matter.
On 31st October 2002, the petition in question was called on for hearing before the three-judge bench of Chief Justice BN. Kripal, Justice Y. K. Sabharwal and Justice Arijit Pasayat. Respondents included Government of India and the State Governments. Upon hearing counsel the Court made the following order, “Pursuant to the notice issued by this Court to all the States and the Union Territories in relation to the inter-linking of the rivers, an affidavit has been filed by the Union of India and also by the State of Tamil Nadu. No other State or Union Territory has filed any affidavit and the presumption, therefore, clearly is that they do not oppose the prayer made in this writ petition and it must be regarded that there is a consensus amongst all of them that there should be inter-linking of rivers in India.” A majority of the State governments have yet to concur with the court’s views. The Kerala assembly has in fact - besides rejecting the plans for interlinking - questioned the constitutional validity of transfer of waters from one State to another in its resolution![xi]
The order further says, “In the counter affidavit filed on behalf of the Union of India, it has, been stated that the Government of India has been studying and planning for inter-linking of rivers for over two decades. It is also mentioned in this affidavit that the Ministry of Water Resources had made a representation on 5th October 2002 before the Prime Minister on inter-linking of rivers and in that presentation the Deputy Prime Minister and other senior Ministers and officers were also present. It was suggested that a High Level Task Force can be formed which will go into the modalities for bringing consensus among the States. This affidavit further states that the presentation was also made to the President of India on 16th October 2002 where emphasis was laid on inter-linking of rivers that has given rise to the filing of the present petition.”
The order notes, “The Union of India has accepted the concept of inter-linking of rivers and in the affidavit spelt out the benefits. The State of Tamil Nadu is the only State which has responded to the notice issued by this court and filed an affidavit. The said State also supports inter-linking of the rivers and in its affidavit has prayed that a direction be issued on the Union of India for constituting a High Powered Committee in order to see that the project is completed in time schedule. Along with this affidavit the prospective plan for implementation of inter-basin water transfer proposals prepared by the National Water Development Agency in May, 2000 has been placed on record. We are distressed to note that milestone for the perspective plan indicated in the report of the Agency shows that even though the Pre Feasibility Reports regarding the Peninsular & Himalayan projects are already completed, the completion of the link projects ultimately will be completed by the year 2035 in respect of Peninsular Link Project and by 2043 regarding Himalayan Link Project.”
After stating this the order observed, “It is difficult to appreciate that in this country with all the resources available to it, there will be a further delay of 43 years for completion of the project to which no States has any objection and whose necessity and desirability is recognised and acknowledged by the Union of India. The project will not only give relief to the drought prone areas but will also be an effective flood control measure and would be a form of water harvesting which is being rightly propagated by the Union of India and all the States.” This is quite a weird understanding of water harvesting.
The order further noted, “Learned Attorney General states that a more realistic view will be taken and a revised programme on completion would be drawn up and be presented to the Court. We do expect that the programme when drawn up would try and ensure that the link projects are completed within a reasonable time of not more than ten years. We say so because recently the National Highways Projects have been undertaken and the same is nearing completion and the inter-linking of the rivers is complimentary to the said Project and the water ways which are so constructed will be of immense benefit to the country as a whole.” The way judges considered National Highways Projects for roads as complementary to networking of rivers provides a glimpse of a flawed reasoning involved.
Union List Entry 56 of Indian Constitution
Elaborating on it the judges further observe, “The report of the National Water Development Agency refers to negotiations and signing of agreements. This aspect is also adverted to by the Union of India in its affidavit when it mentioned that consent of all the States affected by the Inter-linking of the rivers has to be obtained. Learned Attorney General would like to consider this aspect as it is contended by Mr. Ranjit Kumar that if a legislation under Entry 56 is made, the need for the consent would not arise and the Centre would be in a position to undertake the project and complete the same within a reasonable period of time.”
The Constitution-makers, anticipating such situations, have provided ample power to the Union Government to enable it to deal with them. Why should not the Union, it is asked, exercise its powers of legislation under Entry 56 of List 1, which empowers it to legislate for the regulation and development of inter-State rivers and river valleys, to the extent, to which such regulation and development under the control of the State is declared by Parliament by law to be expedient in the public interest? Such action by the Union, it is urged, will have the advantage of ensuring a quick solution of these disputes arrived at from the national perspective. Under the Indian Constitution, States have power to legislate (State list, Entry 17), with respect to the following subject: “Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, subject to the provisions of Entry 56 of List 1.” Union list, Entry 56, reads as under: “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 by law to be expedient in the public interest.”
The judges observed, “It is not open to this Court to issue any direction to the Parliament to legislate but the Attorney General submits that the Government will consider this aspect and, if so advised, will bring an appropriate legislation.” The order in effect does exactly what it rightly feels it is not open to do.
Misplaced Claims
The matter was listed 27 times for hearing in the apex court but at no stage was the basis of claims of direct benefits from networking rivers, like the irrigation of 35 million hectares (Mha), full exploitation of existing irrigation projects of 140 Mha, power generation of 34 million Kilowatt (KW) mentioned in the February 2012 judgment revealed.[xii] Revealing disputable statistics, National Council for Applied Economic Research (NCAER) study referred to in the judgment cites different figures. The study states that the ILR programme is aimed at providing additional irrigation in about 30 million hectares and net power generation capacity of about 20,000 to 25,000 MW.
The claims of indirect benefits like flood control, navigation, water supply, fisheries, pollution control, recreation facilities, employment generation, infrastructure and socio-economic development etc was also never explained. Only general statements like “It is emphasized that the cost is negligible when compared to the potential benefits which may be bestowed on the nation” were made.
The background and current status of this case is of enormous significance to get a sense of the world’s biggest river linking project that is pregnant with the possibility of an ecological catastrophe. The judgment’s Himalayan failure lies in not recognizing that rivers do change their course and will do so in future as well because they do not obey judicial command.
The government claims that its engineering exercise will transfer 1500 cubic m of water per second, from the surplus rivers to the Deficit Rivers “through 12,500 km of canals”.[xiii] On the other hand, official estimate indicate that floodwaters in the Ganga, Brahmaputra, Mahanadi, and the Godavari add up to 30 000 cubic m at peak flow.[xiv] This mismatch indicates that the inter-linking plan would be totally incapable of solving the annual flood problems in the country.
Unmindful of the contradictory claims, the bench observed, “Mr. Ranjit Kumar, learned amicus has drawn our attention to River Board Act, 1956 which had been enacted by the Parliament. Learned Attorney General would look into this in order to examine whether any further piece of legislation is necessary for bringing about the inter-linking of the rivers. The parties are at liberty to file in Court any reports or papers containing studies in respect of the said project.” The order ignored the fact that the River Boards Act, 1956 was enacted under Entry 56 of List I of the Constitution for the establishment of River Boards for the regulation and development of Inter-State River and River valleys. Central Government has however not been able to constitute any River Board under this act so far. Moreover the role of the River Boards as envisaged in the said Act is only advisory in nature. The National Commission for Integrated Water Resources Development Plan has recommended repealing the Act and enacting new Act called Integrated and Participatory Water Resources Management Act. The recommendation is under consideration in the Ministry.[xv] The next date of hearing was for further order was on 16th December 2002. Meanwhile Justice Kripal retired as the chief justice. After retirement when he was confronted with the consequences of his order, he had clarified that it was just an obiter dicta recommendation. Unmindful of this observation, the case continued.
On 16 December 2002 the apex court order by the two judge bench of Justice Y.K. Sabharwal and Justice H.K. Sema reads: “Learned AG has brought to our notice resolution dated 13.12.2002 passed by Ministry of Water Resources, Government of India, inter alia, stating that National Water Development Agency has, after carrying out detailed studies and investigations for preparation of feasibility reports identified 30 links and prepared feasibility reports of six such links. It also notices that various basin states have expressed divergent views about the studies and feasibility reports prepared by the said Agency and with a view to bringing out a consensus among the States and provide guidance on norms of appraisal of individual projects and modalities for project funding etc, the Central Govt has set up a Task force details whereof are given in paras 3 & 4 of the resolution. Para 5 sets out the terms of reference of the said Task Force and para 8 sets out the timetable for achieving the goal of inter-linking of rivers by the end of 2016. Mr Ranjit Kumar, learned amicus curiae, prays for a short adjournment for filing response thereto.” The next date of hearing was on 20th January, 2003.
Rare Judicial Thrust
It is not the case that the court overstepped its jurisdiction on February 27, 2012. This trend has been continuing from the outset of this case. On January 20, 2003 the two-judge bench of Justice Y.K. Sabharwal and Justice H.K. Sema said, “It would be expedient if the matter is adjourned by about three months so that the Court is in a position to know as to what progress has been made in the matter. List the matter in the Ist weeks of May, 2003.”
On May 5, 2003 the petition came up for hearing again. The judges observed, “Pursuant to order dated 20th January, 2003,
an affidavit dated 5th May, 2003 has been filed by Mr. Pandey, Deputy Commissioner, Ministry of Water Resources, Government of India, annexing thereto the resolution dated 13.12.2002 constituting a Task Force, time table for interlinking of rivers, other resolutions nominating part time and full time members of the Task Force and few other documents. It seems that in last about four months three meetings of Task Force have been held on 6th January, 2003, 27th March, 2003 and 28th April, 2003. In the last meeting the first Action Plan as per Government Resolution was considered and adopted. Now as per Action Plan-I the schedule for implementation is 10 years from the start. It stipulates that the work on the links can be started from 2007. It is envisaged to be completed by say end of 2016. Further it envisages that the group of Task Force of interlinking rivers will examine the two schedules and is expected to arrive at a reasonable and predicable implementation schedule in due course.”
Unrealistically, the Indian government assured the court that it would achieve this by the year 2016 instead of arguing that, since 1960s the idea to connect country’s rivers has been talked about at regular intervals. It has been rejected each time, with incremental doubts about the feasibility and viability about the project. It could have further argued that the Planning Commission’s 10th plan adopted by the government has no provision for this.
Dismissing an intervention petition seeking the attention of the court about the ecologically disastrous nature of the project, the judges in their 5th May, 2003 order said, “According to Action Plan -I the said Task Force has laid emphasis on demonstrative value of starting work on a link or two, as soon as possible. The process of preparation of Detailed Project Report for an inter basin link need to cover also, Detailed Environmental Impact Assessment, Environmental Management Plan and R&R Plan for project affection persons. We find no substance in the apprehension that the Task Force will not implement the law. We have also no doubt that in case the other experts in the field provide necessary inputs to the Task Force, it will give it due consideration the same deserves. For the present, we would direct posting of the matter after six months.”
The judges paid no heed to the nation-wide rejection of the project. A case in point is the experts rejection of the project in Jawaharlal Nehru University (JNU), New Delhi on March 31-April 2 2003 at the National Workshop on Fresh Water Issues, with a Round Table on National River Linking Plans which was inaugurated by the Vice-Chancellor of JNU. The workshop was organised at the request of Mr Suresh Prabhu, the then chairman of the Task Force on networking rivers. The National Workshop concluded that nobody is in favour of this grand plan.
Speaker after speaker from academia has dismissed the project and said the claims about irrigation and electricity are based on old data, which are no more relevant. They said it is painful that there is no transparency. Geological Survey of India is also not sharing information. Some of the questions raised at the meeting included: Are citizens, communities willing to have interlinking? Who is to evaluate the performances? Is there any credible evaluation of existing projects? Whether Ganga is a surplus or a deficit river? Also questions about the basis of claims about irrigation and electricity benefits went unresponded and remain unanswered till date. Can advocates of this project be judges of the project too?
While the scientific community found no merit in the mega project, the Court on November 10, 2003 asked the Central Government to give a status report detailing the progress made in the networking of rivers project to link major rivers by 2016 in which the second phase of work has already begun. A bench comprising Justice Y K Sabharwal and Justice S B Sinha gave four weeks time to the government to file an affidavit detailing the progress made in the working out of the action plan II of river networking dealing with funding and execution of the project and suggested methods of recovery of revenue.
The government counsel informed the court that the task force has already identified 30 major links in networking of the rivers to minimise the devastation caused by flood and hardship by drought. The Task Force in April 2003 had considered and adopted the first action plan, which gave the outline of the time schedule for completion of feasibility studies, detailed project reports, estimated cost, implementation schedule, concrete benefits and advantages of the project.
As per the Government Office Memorandum dated 29th December, 2004 the Task Force on inter-linking of rivers (ILR), having submitted its report, was wound up with effect from 31st December, 2004. And a Special Cell has been constituted to look after the residuary work of the Task Force and for taking follow up action on the ILR project under the Union Ministry of Water Resources, which is headed by the Commissioner, Project in the Ministry.
Further, it was noted that the Committee of Environmentalists, Social Scientists and other experts have been formed. The Court also noted that “the sixth meeting of `Consensus Group' was held on 13th May, 2005, representatives of various states” and its next meeting was due on 23rd August, 2005. The matter again came before the apex court in the month of November, 2005. The knowledge gap on data analysis and interpretation in the emerging fields of hydrometeorology, snow and lake hydrology, river morphology, hydraulics, evaporation, seepage, seismic designs and numerical analysis exhaustive understanding to gauge social, climate change and geological impacts while examining the networking of rivers case is quite evident.
It must be noted that it is the same court, which had assumed consensus among the states, and based on this assumption it had directed the Government of India undertake the ILR project. This acknowledgement by the apex court that the Consensus Group is working to build consensus demolishes the rationale of its October 2003 order. Interestingly, the court did not assume consensus among the co-riparian countries, which does not exist. In fact no one has so far been audacious enough to even claim so. The edifice of the entire ILR projects rests on Himalayan rivers and since the Government realizes it and is cognizant of the impossibility of undertaking river diversion scheme in the Himalayan component, it has prioritized Peninsular rivers.
Regime Changes but Order Remains Same
After the Bhartiya Janata Party led National Democratic Alliance (NDA) lost in the election with its campaign for networking of rivers, Congress led United Progressive Alliance (UPA) is now the ruling alliance. Although the promise of networking of rivers failed to provide democratic mandate to the NDA, the project remains alive due to judiciary. Wittingly or unwittingly this subverts the mandate against “networking of rivers”. On 30 August 2004, the “networking of rivers” petition was called on for hearing by the bench comprising of Justice Y K Sabharwal, Justice D.M. Dharmadhikari and Justice Prakash Prabhakar Naolekar.
Upon hearing counsel the Court made the following order: “We have perused the affidavit of Mr. M.S.Gupta, Senior Joint Commissioner (Basin Division), Ministry of Water Resources, Government of India dated 24th August, 2004 along with which progress report in the matter of interlinking of rivers has been filed. The progress report being not very clear on our query, learned Solicitor General states that the Government has taken, in principal, decision to continue with interlinking of rivers. The matter, after comprehensive review is likely to be placed before the Cabinet after about six weeks”.
It further noted, “The report of the Standing Committee on Water Resources has been taken on record. Our attention has also been drawn by Mr. Ranjit Kumar, Amicus Curiae to the Report of the Standing Committee on Water Resources 2004-2005 inter alia stating that the committee desires that the Government to make earnest efforts to get going the interlinking of the Northern and Southern rivers under Inter Linking of Rivers (ILR) Programme in a definite time schedule which, in their considered view, would save the nation from the devastating ravages of chronic droughts and floods. Be that as it may, as prayed by learned Solicitor General, we defer the matter by eight weeks. The up-to-date progress report be filed within eight weeks and the matter be listed thereafter.”[xvi]
The case came for hearing one again on November 1, 2004, where the judges once again dismissed the apprehension of environmental damage as they had done in their 5th May order. Referring to their previous orders the judges asked the Government of India to put the feasibility studies on two links in the north: Ken-Betwa and Parbati-Kalisindhi-Chambal on website. In the former the concerned states are Uttar Pradesh and Madhya Pradesh. In the latter the concerned states are Madhya Pradesh and Rajasthan.
The court was informed that the project will be pursued with a focus on peninsular components and the concerned State would be fully consulted. The Prime Minister, the finance Minister and the Deputy chairman of Planning commission in a meeting on this project decided to set up consensus groups for linking rivers the Ken-Betwa and the Parbati-Kalisindhi-Chambal, which is estimated to cost Rs 1,000 crore, the solicitor General, G E Vahanvati, stated before a bench of Justic Y K Sabharwal and Justice D M Dharmadhikari. The consensus group would intensify its efforts to resolve technical issues with Uttar Pradesh, Madhya Pradesh and Rajasthan and submit its report by the middle of November 2004, a status report discussions would be held with concerned, State for reaching the memorandum of understanding so that detailed project reports of the two links could be prepared. The matter has been listed 13 times earlier and it was last listed on 14th August, 2006.
Contrary to early signals now it is clear that the UPA Government now is taking the approach of NDA Government as far is networking of rivers is concerned. On 6th October 2004 in a presentation to the then President A P J Kalam, Union Water Resources Minister outlined a schedule for it. He informed him that the National Water Development Agency would complete its feasibility report of 18 links out of 30 before December 31, 2005. The Water Resources Minister also made another presentation, on the progress and future course of action, before the Prime Minister, Dr Manmohan Singh on October 11, 2004. Details of this presentation and Prime Minister’s response to it are not known. But after the presentation the Minister has been reported to be saying that networking of rivers was an ``idea conceived by Indira Gandhi''(former Prime Minister of India).[xvii]
Addressing the nation on Independence Day, Dr Manmohan Singh said, “Water is a national resource, and we have to take an integrated view of our country’s water resources, our needs and our policies and water utilization practices. We need to ensure the equitable use of scarce water resources.”[xviii] Having floated the notion of water being a national resource contrary to the customary provision of communities being custodians of water, it was not surprising when on 4th September 2004, the Prime Minister made the stand of UPA government on networking of rivers almost clear at his first National Press Conference. He said, “The idea of linking river systems is not a new idea. I think this has been discussed and, in fact, included in Plan documents right from the early 1980s. What is going on are a number of feasibility studies. These feasibility studies have thrown up various issues, which need to be resolved, the ecological consequences, the economic cost, the economic benefits, I do not think, the proposals are in that stage where we can say that we are ready to take investment decisions. All these factors will have to be taken into account before we start implementing this project”.[xix]
One can easily sense that the Indian Prime Minister is circumspect. The UPA Government was charged with ignoring the interests of Tamil Nadu by undertaking the Ken-Betwa river links in Uttar Pradesh and Madhya Pradesh on a priority basis in the Rajya Sabha but UPA Ministers absolved itself by saying that these links were identified by the previous NDA Government in March 2005. The AIADMK leader, P.G. Narayanan had said that the 40 Lok Sabha MPs from Tamil Nadu should take up the issue or the people of the State would give them a ``fitting reply'' in the next Assembly elections. Given the fact that Narayanan is the Chairman of the Parliamentary Standing Committee on Science, Technology, Environment and Forests, its quite evident that the ILR project is not being pushed both inside and outside the parliament on merit but because of parochial regional interests.[xx]
On April 20, 2005 Jairam Ramesh (currently Union Rural Development Minister) gave a speech ffffffin Rajya Sabha saying, “Sir, since 1951, according to the Tenth Plan document, there have been 1,300 irrigation projects that have been taken up for implementation, out of which, only 900 have actually been completed. So, in this country today, there are 400 irrigation projects being implemented at some critical levels of financing, and I think, really this reinforces the point that I want to make that it is really project implementation, projects under implementation, that need to be completed. You don't need a new category called 'projects under contemplation'.
During the course of the meeting with civil society members six leading advocates of decentralisation and people centred planning met the Dr Kalam, the then President of India on 20 April, 2005 to impress upon him that the Interlinking of Rivers project as currently being envisaged is the wrong direction for the country to take. They have since written a letter to Dr.Kalam addressing his questions. President Kalam made some observations and raised some questions, to which it was not possible for them to respond immediately and adequately. However, the points were important and needed to be answered properly. In fact, he asked for notes on some of his questions. In what followed, this is what transpired at the meeting. Dr Kalam posed some questions and he was adequately responded to.
Citizens Respond to Dr Kalam
Given below are responses to some of the issues and questions which Dr Kalam has been raising:
Dr Kalam: “There are floods in Assam and Bihar and droughts in Rajasthan. Through water-transfers, it makes sense to moderate the former and mitigate the latter.” “There are huge floods in the Brahmaputra. How can we use them? Let us not talk about flood management; let us think about how the flood waters can be used.”
Citizen’s Answer: Yes, there are floods in Assam and Bihar, and droughts in Rajasthan and elsewhere. The answer to the latter does not lie in the former. The two phenomena have to be dealt with separately.
Floods (sometimes high floods and occasionally catastrophic ones) are bound to occur in our rivers periodically. They cannot be prevented or controlled. Embankments are a remedy worse than the disease. Big dams (if properly operated – which is problematic because of the claims of irrigation and power-generation) may moderate floods to a small extent, but may themselves cause problems if waters have to be released in the interest of the safety of structures. (This has happened from time to time.)
Increasing green cover in the catchment area, extensive water harvesting, groundwater recharging, and so on, may perhaps slightly reduce the incidence of floods. However, floods will occur from time to time, and we have to learn to live with them, minimize harm and damage and maximize benefits. Good and timely information systems, and contingency plans for dealing with disaster when it comes, are the answers.
As for ‘using’ flood waters, floods and waters that flow to the sea are in fact ‘used’ waters and not ‘wasted’ waters. Floods bring many benefits. They carry silt and make lands fertile; deltaic areas are their creation; that is why all folklore praises floodwaters as a ‘gift’. Waters that flow to the sea also serve many economic, social, cultural, ecological and other purposes, including the control of salinity ingress from the sea.
Massive transfers (which might moderate floods to some extent) are infeasible, and if attempted, will cause enormous problems. Small diversions through canals will have hardly any ‘moderating’ effect during the flood season, but could cause problems downstream in the lean season. (A 100m-wide 10m-deep canal that can carry only about 1,500 cumecs cannot make a dent on the Ganga floods that are around 50,000 cumecs on an average, while the same level of diversion can seriously deprive the downstream area of water during the lean season when the river flow is at 5,280 cumecs.)
In so far as the Brahmaputra is concerned, its location in a corner of India, its sheer size (it can be 18 km wide in places), and the magnitude of its floods (60,000 cumecs), are such that its waters simply cannot be ‘transferred’ to distant areas. Any such attempt will make little techno-economic sense. The best that can be done is to use the waters locally to the advantage of the North-eastern States. There are apprehensions (well-founded or not) in the Northeast of their waters being taken away. It seems unwise to add one more irritant in an already troubled area. (The links envisaging transfers from the Ganga and the Brahmaputra have also caused great anxiety in Bangladesh. That anxiety needs to be allayed through appropriate explanations.)
As for droughts, experience of decades has shown that the existence of thousands of dams, reservoirs and canals has not prevented or reduced droughts. (Incidentally, droughts are not entirely natural phenomena; there are also politico-socio-economic factors behind them.) The answer to droughts has to be primarily local. It is only in an exceptional case where local answers are inadequate or infeasible that one needs to think of bringing in external water. In any case, the ILR will not serve the needs of the uplands and dry lands of India.
Dr Kalam: “How much of the Brahmaputra basin or catchment is outside India? How can you do water-harvesting there?” (Similarly about the Ganga.) “Rainwater harvesting is all right if there is rain. How can we do water harvesting if there is no rain?” “Pointing to success stories (local augmentation of availability through water harvesting, social mobilization) in a few villages here and there is not enough. We have to think about the 600,000 villages of India.”
Citizen’s Answer: It is true that parts of the catchments of the Himalayan rivers lie in the mountains and outside India. When we talk about water harvesting, we usually have in mind areas in central, western and southern parts of the country with medium to low rainfall, and not mountainous or high-rainfall areas in the country, much less areas outside the country. However, among the early success stories in water harvesting was Sukhomajri in the Shivaliks; and even Cherrapunji, one of the wettest places on earth in terms of seasonal rainfall, suffers from drinking-water shortages in the lean season because of rapid runoff, and rainwater harvesting seems to be the only answer to its problem. If there is no rain then even dams and reservoirs will be of no use.
The benefits brought by local community-led water harvesting are not negligible. The instances mentioned above not only brought about prosperity and economic transformation, but they enabled the villages in question to cope with three or four successive droughts. If such instances are multiplied in thousands across the country, the results will not be minor or insignificant. Two distinguished scholars (Profs. Kanchan Chopra and Biswanath Goldar of the Institute of Economic Growth, Delhi) have estimated the “additional runoff capture” as 140 BCM, which is a substantial figure. Others may differ on the number, but there is no reason to doubt that this can be a significant component of national water planning. (In other words, the 600,000 villages of the country can benefit by this approach; it is difficult to say whether, and if so to what extent they will benefit from the ILR Project.)
Dr Kalam: “It is not good to be negative all the time. Instead of saying why things cannot be done, let us consider how they can be done.” “The ILR is not yet a Project. Everything will come into the public domain. The Project will be discussed in Parliament. There will be plenty of opportunities to examine everything in due course. There is no need for anxiety at this stage.”
Rajya Sabha divided, Jairam Ramesh opposes ILR project, Court in darkness
In a speech in Rajya Sabha, he said, “Sir, so much has been said on river linking. This was made the touchstone of Indian nationalism by the NDA Government. On the scale and magnitude that is being talking about, I think we need to proceed with some caution; obviously, it needs to be sequenced. There may be some cases where intra-basin transfers could be financially feasible, but I do believe that in today's day and age, with today's media, with today's civil society, it is not possible for us to overlook the ecological and human population resettlement consequences of such a massive scheme. Sir, even today's day and age, I do not think that we can rush into this project oblivious of the consequences of resettlement of millions of people, and let us also face it, Sir, India's track record in resettlement and rehabilitation has been pathetic, has been poor. This is a blot on our collective conscience.”[xxi]
In July 2005 media reported that Rajya Sabha was divided over the issue of Inter-linking of Rivers programme to tackle the problem of recurring drought and floods. Congress member Jairam Ramesh opposed it. Participating in a short-duration discussion on the situation arising due to drought and floods in parts of the country, Ramesh said inter-linking of rivers was not a solution to the problem.[xxii] It is indeed a glaring omission that the February 2012 judgment did not take cognizance of it.
Supreme Court OVERSTEPS its Jurisdiction
It is relevant to note that the Supreme Court of India has ruled that High Courts cannot interfere in the government’s policy decisions. They cannot intercede even if they have an alternative view. It has ruled that High Courts cannot interfere with policy decisions of the government. The apex court cautioned the lower courts against intervening in the executive’s administrative actions, since the scope of judicial review is limited in questioning such decisions.[xxiii] This Court ruling was made on July 17, 2006, while dismissing petitions filed by the Ekta Shakti Foundation, Surya Society and Jay Gee Society against the Delhi government’s policy decision to implement the Integrated Child Development Scheme underlining, “The scope of judicial inquiry is confined to the question (as to) whether the decision taken by the government is against any statutory provisions or is violative of the fundamental rights of citizens or is opposed to the provisions of the Constitution,” said the bench of Justice Arijit Pasayat and Justice C K Thakker.
“The correctness of the reasons which prompted the government in decision-making, taking one course of action instead of another, is not a matter of concern in judicial review and the court is not the appropriate forum for such investigation,” said the Supreme Court bench. “Thus the position is that even if the decision taken by the government does not appear to be agreeable to the court, it cannot interfere,” the bench ruled. Maintaining that policy decisions must be left to the government, as it alone can decide which policy should be adopted after considering all points from different angles, the Court said: “So long as the infringement of fundamental rights is not shown (the) court will have no occasion to interfere and the court will not and should not substitute its own judgment for the judgment of the executive in such matters.”
The bench noted that, “while exercising the power of judicial review of administrative action, the court is not the appellate authority and the Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise on any matter, which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory powers”. It added that even if the court does not agree with the decision taken by the government, it could not interfere. In matters of policy decisions, the court should not substitute its own judgment for the executive’s judgment. It also ruled out the possibility of a review of the correctness of the reasons for the government adopting a particular course of action, saying, “In assessing the propriety of a decision of the government the court cannot interfere even if a second view is possible”.
It is not great jurisprudence to suggest ways of water management without understanding democratic tenets of management through community participation. If there is water problem in various parts of the country, each local region will have its own solution. This strange reasoning of judges to provide judicial solution to management problem defies understanding. Citizens fail to comprehend how it falls under its jurisdiction and mandate of interpretation of law.
The “networking of rivers” petition was filed following the 2002 speech of the then President A P J Abdul Kalam suggesting inter-linking of rivers. Unmindful of his initial speech, where the President underlined that "such programmes should have a large-scale people participation even at the conceptual and project planning stages, " honorable former President who comes from Tamil Nadu never misses an opportunity to express his support for the networking of rivers project precluding any scope of participation in the decision making which entails rewriting the geography of the country. This seemed quite autocratic. The then President did not pay even an iota of attention to the participatory democratic decision making process in gross violation of citizens right to be consulted which is in real terms the bedrock of democracy.
Selective amnesia of NCAER Study
Para 31 of the judgment merits special attention as it takes cognizance of the study that was undertaken by the National Council for Applied Economic Research (NCAER) published in April 2008 assessing “the economic impact of the rivers interlinking program and suggested an investment roll out plan, i.e., a practical implementation schedule, for the same. A copy of this report was submitted in the year 2011, before this Court.”
The Foreword to the NCAER 135 page study claims, “Economic impact of certain benefits such as mitigation of drought and floods to a certain extent, increased revenue/income from fishing, picnic site and amusement park are not taken into consideration” from Interlinking of Rivers. If one looks at NCAER itself observes saying “interlinking of rivers programme (ILR) programme is aimed at linking different surplus rivers of country with the deficient rivers so that the excess water from surplus region could be diverted to deficient region,” it is clear drought, flood and livelihood from activating like fishing has not been considered. This is the outcome of the study was meant to assess the macro impact of the ILR programme on Indian economy both at short- as well as long-term.
At para 44 of the judgment, NCAER reference to the recommendations of A Vaidyanathan Committee is cited but in an exercise of selective amnesia it ignores the fact that Vaidyanathan has opposed ‘interlinking’ on the grounds of its feasibility, desirability and viability.[xxiv] Vaidyanathan argues that the volume of flows during the flood season is misleading as a basis for judging surpluses. Three-fourth of the water flows in perennial rivers occur between June and September. The “deficit” regions are far from those considered “surplus” requiring transport over very difficult terrain and long distances. Moreover, since the surplus occurs in the rainy season and the demand is in the dry season, it is not enough to merely carry the water from one point to another. Large storages will be necessary. One needs to know the quantum of water to be stored, and whether and where potential sites on the required scale are available, and their likely impact on environment and human displacement, he says. According to him, decentralised local rain-water harvesting, by reviving and improving traditional techniques, can meet essential requirements more effectively and at a far lesser cost. NCAER’s exercise cannot be termed intellectual honest when it cites Vaidyanathan’s 2001 paper titled ‘Irrigation Subsidies’ and the 1992 ‘Report of the Committee on Pricing of Irrigation Water’ for Planning Commission under his Chairmanship but his later views that debunk the myth of ‘surplus’ rivers is deliberately ignored.
This is the quality of the NCAER study on the basis of which Ministry of Water Resources claims that the ILR project is viable has revealed that drought and flood is a non-issue as far as economic impact of ILR is concerned. The fact is that the interlocutory application that was filed in the Maili Yamuna case in the Supreme Court was turned into a Public Interest Litigation by the then Chief Justice B N Kripal on the premise that the ILR project would lead to drought proofing and flood proofing of the country. The Court’s order for ILR project was based on the assumption that there is consensus among the states for this project. Subsequently, it has been found that both these premises do not exist.
The NCAER study observes that the cost of the overall ILR programme was estimated by the task force/NWDA as Rs 5,60,000 crore at 2002-03 prices. This estimate suffers from two infirmities. First, the cost of 30 links has been taken, whereas there are only 29 links. Jogigopa–Tista–Farakka (JTF) is an alternative link to Manas–Sankosh–Tista–Ganga (MSTG) and only one of these two links will be constructed. The February 2012 judgment fails to take cognizance of it.
It is noteworthy that in the meeting of Government’s Experts Committee on Interlinking of Rivers that Manas and Brahmaputra rivers were discussed. The minutes reveal that it was contended that they are international in nature, planning of water resources of the region need lot of care with respect to international dimensions. It has also been contended that there are problems presently in sharing of Ganga waters and this type of problem may also arise in Brahmaputra and Manas regions in additions to the environmental and ecological issues attached to the regions. Therefore, it is better to give up the MSTG link under ILR.
The NCAER study considers two alternatives of cost estimates taking into account alternative links (MSTG or JTF). The new aggregated cost of entire programme with MSTG link is estimated as Rs 4, 44, 331.20 crore at 2003-04 prices. The new aggregated cost is Rs 1, 15, 668.20 crore or 20.7 per cent lower than the earlier aggregate cost estimate of Rs 5,60,000 crore at 2002-03 prices. The new aggregated cost of entire programme with JTF link is estimated as Rs 4, 34, 657.13 crore at 2003-04 prices. The aggregate cost mentioned in the February 2012 judgment is based on a note by amicus merits further examination. The judgment did not take note that as per NCAER, the new aggregated cost is Rs 1, 25, 342.87 crore or 22.4 per cent lower than the earlier aggregate cost estimate of Rs 5, 60, 000 crore at 2002-03 prices.
The study cites experience of Pakistan in the area of interlinking of river could be an inspiration for India arguing that if it can complete the interlinking of its river in 10 years, it should not be difficult for India to complete the task of interlinking of rivers.
The judgment records at para 33 that “what happened to the two Action Plan reports submitted by the Task Force is a matter left to the imagination of anyone” but refrained from fixing accountability for waste of public money in this regard. After the change in government and after the winding up of the Task Force, a Special Cell on interlinking of rivers was created under the Ministry of Water Resources.
The judgment refers to budgetary allocation of Rs.15.30 crores, Rs.21.95 crores and Rs.35 crores that was made for NWDA during 2002-03, 2003-04 and 2004-05 respectively. It is silent about the allocation made thereafter.
Para 39 of the judgment refers to the NCAER report that underlines the role of the agricultural sector in higher Gross Domestic Product (GDP) growth. “The report clearly opines that interlinking of river projects will prove fruitful for the nation as a whole and would serve a greater purpose by allowing higher returns from the agricultural sector for the benefit of the entire economy. This would also result in providing of varied benefits like control of floods, providing water to drought-prone States, providing water to a larger part of agricultural land and even power generation. Besides annuring to the benefit of the country, it will also help the countries like Nepal etc., thus uplifting India's international role. Importantly, they also point out to a very important facet of interlinking of rivers, i.e., it may result in reduction of some diseases due to the supply of safe drinking water and thus serve a greater purpose for humanity.” It does not explain how it helps Nepal and Bangladesh and how it will uplift and not undermine India’s international role.
Although NCAER conclusion that “the Bhakra Dam was instrumental in helping India achieve food security, in reducing volatility of food grain prices and declining the incidence of poverty in those regions” has been disputed, the judgment appears to except their inferences as gospel truth.
Since 2005 a committee of environmentalists, social scientists and other experts on Interlinking of Rivers has been meeting infrequently at the whims and fancies of its chairman to deliberate on the impact of this project. The Committee was constituted by the Ministry of Water Resources, Government of India in December 2004. The committee finds mention in the February 2012 judgment. There are 14 members in the committee with two special invitees but given the conflict of interest in the Committee which is headed by the Secretary, Union Ministry of Water Resources it is subservient and with no independence of its own. It is high time the members from civil society resigned from it since their voices do not have any impact on the fate of the adverse environment impact project in question.
The NCAER study refers to Tennessee Valley Authority (TVA), Tennessee Valley and Tennessee River in the USA and efforts at controlling floods, improving navigation, and producing electrical power and how Damodar valley development project in Jharkhand emulated facets of the TVA’s development but forgets to mention its disappointing non-performance. It refers to Indira Gandhi Canal project but fails to articulate its ecological and human cost. It mentions Colorado River Canal System in southwest US but ignores how its ecosystem is severely truncated and degraded by transbasin diversions to advocate ILR project and still claims to “oversee a water management regime based on a river basin approach.”
As to mitigation of flood and drought to a certain extent, fishing at dams and reservoirs, they are mentioned in passing as “fringe benefit of programme. Thus, all claims of drought proofing, flood proofing and dilution of pollution through linking rivers as argued by the lawyer who filed the application 2002 is insincere, an exercise in sophistry and totally misplaced.
The judgment records the shortcomings of the NCAER report states as under:
"One shortcoming of the above analysis is that it has not considered the issue of cost of resettlement of displaced people due to ILR Project. A draft National Rehabilitation Policy was prepared with the objective of minimizing development induced displacement of people by promoting non-displacing or least displacing alternatives for meeting development objectives. The draft policy is yet to be finalized by the National Advisory Council (NAC). The NAC intends to finalise a rehabilitation package that includes, inter alia, providing land for all agricultural families, implementing special employment guarantee programmes, providing homesteads and dwelling houses, bearing transportation cost, providing training and other support services, instituting a rehabilitation grant in order to compensate loss of income/livelihood. The ILR project has to consider displacement costs on the basis of norms stipulated in the national Rehabilitation Policy as and when it gets finalized."
Not only that the study “did not consider the plan's environmental aspects or cost-benefit calculus.”[xxv] As per 11th Five Year Plan document, "there are apprehensions that the assessed surplus is somewhat illusory for many basins and future generations would actually need all the water." It takes congnisance of "reservations about the economic viability of such large projects. Environmental concerns would need to be addressed through the environmental appraisal process of each project." In such a backdrop, it is indeed strange that after violating the norms of river basin approach and ecological integrity of the basin, the judgment records: “NCAER also suggests that after completion of the linking of rivers programme, the different river links should be maintained by separate river basin organizations, which would all be functioning under the direct control of the Central Water Commission or such other appropriate central body.”
It is a sad commentary on NCAER’s research that while it acknowledges how agriculture is “susceptible to the vagaries of rainfall” and the judgment internalizes it in para 46, the same is not factored in while pronouncing some rivers as surplus and some as deficit.
Judicial Reasoning & International Law
All the scholars of law know that much of English legal thought perhaps being followed by the concerned judges is obscure, non-scientific, high-minded and not empirical. It is high time Indian jurists paid heed to analysis in their judgments to banish these anti-scientific elements from legal thinking in India which has starkly come to light through this judgment.
Besides technical problems in the networking of rivers project, given the enormity of political and legal problems witnessed from the way in which neighboring countries like Nepal, Bangladesh have raised objections and the way Indian states been quarrelling with each other over water in general and networking of rivers in particular, the feasibility of the project is questionable and improbable. These states have been compelled to flout not only the tribunal awards but also the apex court orders.
The court has not been informed about the Report of the National Commission for Integrated Water Resources Development Plan, Government of India which felt that the interlinking of Himalayan component may not be feasible till 2050[xxvi], pondered over UN Convention on Law of Non-Navigational Uses of International Watercourses as well. The Report concluded: “The bilateral or regional treaties and understanding entered by India with any of its neighbors will normally take precedence over the UN Convention, which is framework to which India is not a signatory. However, although India abstained from signing the Convention, we could draw upon the principles enunciated in it usefully for the purpose of evolving an interpretative matrix not spelt out in our bilateral treaties.”[xxvii]
In the context of networking of rivers a balance between the theories of limited territorial integrity and community of interest through a binding international law or treaty is urgently required to obviate war like situations due to disputes over sharing of water.
Available Alternative Solution
In any case the moot point is how to solve the water problem. As per the Planning Commission’s Tenth Plan document, there are 383 ongoing major and medium projects awaiting completion, 111 of which are pending since pre-fifth Plan period i.e. more than 26 years. All these can be completed within five to eight years, yielding an additional potential of about 14 million hectares at a cost of Rs 77,000 crore as estimated by the plan task force, now raised to Rs 100,000 crore.[xxviii]
The second component listed in the Plan is development of minor irrigation, mostly in the eastern and northeastern regions. The total potential assessed is 24.5 million hectares with a total investment of Rs 54,000 crore, of which the government is expected to provide only Rs 13,500 crore, the balance coming from beneficiary farmers and institutional loans. The cost per hectare is only Rs 20,000 and gestation period almost nil, against a cost of Rs 100,000 and 12 years' gestation in case of major and medium projects. The third equally beneficial scheme mentioned in the Plan is the groundwater recharge master plan prepared by the Central Ground Water Board needing Rs 24,500 crore to trap 36 billion cubic metres of water annually.[xxix]
These measures are quite clearly better than the project of networking of rivers. The concerned judges would serve the ecological interest of the subcontinent better if they could pay heed to these proposals of the Plan document. Judges at all levels have, by and large, justified the confidence reposed in them. But there is scope for improvement in several spheres and it is up to the judiciary itself to rectify the defects in its role and prove to the public that as long as there is an efficient, impartial, independent and incorruptible judiciary, democracy in India will be safe from the tyranny of the executive and also the judiciary.
The apex court came to the rescue of a river in the Kamalnath motel case where a hotel company which had stakes of Kamalnath, the then Union Environment Minister (presently Union Commerce Minister) had unilaterally taken a number of measures to divert the course of Beas River near Kulu-Manali in Himachal Pradesh (for instance, earthmovers and bulldozers were used to create a new channel) when floods threatened land in its possession. The court used the Public Trust Doctrine to define the state as a trustee of natural resources.
The UPA Government released its National Environmental Policy (NEP) that refers to Public Trust Doctrine saying, “The State is not an absolute owner, but merely a trustee of all natural resources, which are by nature meant for public use and enjoyment, subject to reasonable conditions, necessary to protect the legitimate interest of a large number of people, or for matters of strategic national interest.”[xxx]
The NEP says, “The broad direct causes of rivers degradation are, in turn, linked to several policies and regulatory regimes. The result is excessive cultivation of water intensive crops near the headwork’s, which is otherwise inefficient, waterlogging, and alkali-salinization of soil.” It also refers to factors causing reduced flows in the rivers and seeks to ensure maintenance of adequate flows. As an action plan for river systems, the NEP expresses its intent to...“mitigate the impacts on river flora and fauna, and the resulting change in the resource base for livelihoods, of multipurpose river valley projects, power plants, and industries.”
Need for Legislation Watch
Citizens of the sub-continent wonder why is the Supreme Court of India taking executive's role even as it admits that implementation of interlinking of rivers is beyond its jurisdiction. It is not for the court to decide how the government should ensure the right to water; in any case, the connection between this right and the river linking project is tenuous.[xxxi] The success of a democracy, especially one based on a federal system, depends largely on an impartial and independent judiciary endowed with sufficient powers to administer justice. Judges can import their personal views in interpreting a statute but they must not assume the role of guardians of public policy and should not play god. A distinction must be drawn between personal idiosyncrasy and incorporation of new economic and social policies in the interpretation of law.
The proposal of networking peninsular and Himalayan rivers emerges from a lack of rigorous evaluation of the ecological impacts which would prove disastrous not only to the fishery, but also to the biodiversity and biotic processes that have evolved over the past hundred of millions of years. One cannot expect the judges and legislators to understand but venturing into an area of their ignorance is against all canons of wisdom.
In the case in question the judges went on to advise the government that in case consent was not forthcoming from the states, the government should consider passing a legislation to obviate consent of the states for this project. Since criticizing the judges is a criminal offense, the advocates of resistance who are not shackled by their funding sources from among the citizenry and civil society need to keep a watch on the impeachable antecedents and future activities of the judges and legislators because it is quite possible that legislation for ILR or nationalization of rivers may get introduced in the Parliament. The rampant violation of the statutory principles and natural justice requires a vigilant citizens’ network as opposed to fund agency driven initiatives to investigate as to why the judges and legislators appear to have sold themselves to the ideology of the free market undermining ecosystem beyond repair and democratic rights of its citizens to bring the truth about it public domain.
Conclusion
Networking rivers does not mean drawing some mega litres from one river and pouring it into another like one does with static containers, or even with canals. The ramifications are much wider because a river is not only the water that flows or the channel, which holds the flow rather its much more. The river is the dynamic face of the landscape. “In the drama of history, the ecosystem is not the stage setting; it is the cast”.[xxxii]
In the past the court has rightly and consistently held that large infrastructure projects invariably raise technical and policy issues which the courts are not equipped to handle. In view of the reasons cited above and especially an evolving international law on transboundary river there is a clear case for the apex court to review its order on “networking rivers”.
As per National Water Policy, 2002, “Water resources development and management will have to be planned for a hydrological unit such as drainage basin as a whole or for a sub-basin, multi-sectorally, taking into account surface and ground water for sustainable use incorporating quantity and quality aspects as well as environmental considerations.” [xxxiii] Outlining India's National Water Policy in 2002, the then Prime Minister Atal Bihari Vajpayee said that the policy should be people-centered and those communities ought to be recognized as the “rightful custodians of water.”[xxxiv] This clearly shows that networking of river is contrary to the Government’s stated policy which means vested interests are so powerful that they can subvert both executive’s and judiciary’s role.
Given such a background the judgment in the Writ Petition (Civil) No. 512/2002 is very crucial. In the days, months and years ahead it is likely to reveal Indian Government’s exact policy vis-à-vis networking of rivers and court’s considered response while dealing with contempt applications in the face of sub continental protest. This case is likely to give birth to a new international legal order to safeguard the legitimate regime of river basins from the obsolete notions of ‘conquest over nature’, ‘surplus’ rivers and taming rivers. If the environmental movement in the Indian sub-continent fails to stop this mega project, it would mean nothing short of a premature death of the movement itself and acceptance of the proposed rewriting of sub-continent’s geography with painful consequences as fait accompli.
*For Details: Gopal Krishna, Convener, ToxicsWatch Alliance (TWA) & founder, WaterWatch Group comprising of over 3000 members advocating sustainable use of natural resources like land and water against diversion of rivers for interlinking. E-mail:krishna1715@gmail.com, Mb: 07739308480, 09818089660
REFERENCES
[i] Mikhail Gorbachev (October-November 2000), “The Global Water Crisis”, former President of USSR, Civilization, the Magazine of the US Library of Congress
[ii] Bhattacharya, Kapil, Farakka Barrage O Banya (Farakka Barrage and Flood); Swadhin Bharatey
Nadnadi Parikalpana; Kalam, Calcutta quoted in A Report on the impact of Farakka barrage on the human fabric: A study of the upstream and downstream areas of Farakka Barrage, a submission to World Commission on Dams: Thematic Review: Flood Control Options And many other thematic reviews by Manisha Banerjee, Nov. 1999
[iii] Fred Pearce (7th June 2003), Replumbing the Planet, New Scientist,
[iv] Interlinking of Rivers: Sudheeran against SC directive February 2012, http://www.thehindu.com/news/states/kerala/article2946241.ece
[v] SC verdict on interlinking of rivers will not apply to Kerala: CM, February, 2012 http://www.thehindu.com/news/states/kerala/article2946269.ece
[vi] 'SC directive on river-linking unfortunate', February 2012 http://zeenews.india.com/news/kerala/sc-directive-on-river-linking-unfortunate_761357.html
[vii] Supreme Court order, 16 September, 2002, writ petition (civil) No. 725/1994
[viii] Dr D K Mishra, http://www.mail-archive.com/assam@pikespeak.uccs.edu/msg06116.html
[ix] Conflict Over Krishna, Bharat Lal Seth & Mahanadi in distress, Richard Mahapatra (Down to Earth, February 16-29, 2012)
[x] Panel did volte-face on river interlinking, Rashme Sehgal, March2, 2012 http://www.asianage.com/india/panel-did-volte-face-river-interlinking-774
[xi] Dr Sudhirendar Sharma (February 2004), Director, The Ecological Foundation, “Interlinking the Chief Ministers”
[xii] Supreme Court order, February 27, 2012, Writ Petition (Civil) No. 512 of 2002 on “networking of rivers"
[xiii] R. J. Ranjit Daniels (25 October 2004), Current Science, “Interlinking of rivers: Ecologists wake up!”
[xiv] Dams, Rivers & People (March-April 2003), a periodical of South Asian Network for Dams, Rivers and People
[xv] http://wrmin.nic.in/constitution/rb_act.htm
[xvi] Supreme Court orders, Writ Petition (Civil) No. 512 of 2002 on “networking of rivers" (orders till 1 November 2004)
[xvii] Gargi Parsai (7 October, 2004), The Hindu, River-linking plan not abandoned, says Dasmunshi
[xviii] Dr Manmohan Singh (August 15, 2004), Independence Day Speech
[xix] Dr Manmohan Singh (September 4, 2004), First National Press Conference
[xx] March 25, 2005, The Hindu, “Centre denies ‘north-south’ divide on linking of rivers”
[xxi] May, 2005, “Not the litmus test of patriotism”. http://www.indiatogether.com/2005/may/opi-jairamilr.htm
[xxii] July 27, 2005, The Hindu, “Rajya Sabha divided on linking of rivers”
[xxiii] July 20, 2006, The Hindu, Indian Express, “Courts cannot interfere with govt's policy decisions: Supreme Court”
[xxiv] Interlinking of rivers — I & II, A Vaidyanathan, The Hindu, 26-27 March, 2003
[xxv] Chasing a mirage, March 1, 2012 http://www.thehindu.com/todays-paper/tp-opinion/article2947973.ece
[xxvi] September 1999, The Report of the National Commission for Integrated Water Resources Development Plan, Government of India, page
[xxvii] September 1999, The Report of the National Commission for Integrated Water Resources Development Plan, Government of India
[xxviii] Som Pal (September 30, 2004), Forgotten Links: Focus on Existing Projects, Not 'River Garland', former member, Planning Commission, The Times of India
[xxix] Som Pal (September 30, 2004), Forgotten Links: Focus on Existing Projects, Not 'River Garland', former member, Planning Commission, The Times of India
[xxx] National Environment Policy 2004, Ministry of Environment and Forests, Government of India, http://envfor.nic.in/nep.htm
[xxxi] With all due respect, My Lords, Ramaswamy R. Iyer, March 2, 2012 The Hindu
[xxxii] Devashis Chaterji (2004), http://groups.yahoo.com/group/waterwatch/
[xxxiii] National Water Policy (2002), Ministry of Water Resources, Government of India, http://wrmin.nic.in/policy/default4.htm
[xxxiv] Francois M. Farah (October 23, 2003), UNFPA Representative, UNFPA Water and Sanitation Report
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