ToxicsWatch, Journal of Earth, Science, Economy and Justice

The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) supports changes to the Rotterdam Convention to protect health and save lives. IUF is an international trade union federation composed of 407 organizations in 126 countries representing over 10 million workers. The IUF is based in Geneva, Switzerland. IUF.

Exposure to pesticides regularly kills or destroys the health of thousands of agricultural workers. A shocking report in 2021 estimated that there are 385 million cases of unintentional, acute pesticide poisonings annually including 11,000 fatalities among farmers and farmworkers.

This year, the IUF is joining with global unions and national federations to demand more effective control of the international trade in hazardous chemicals. There are more than 350,000 chemicals circulating in the global economy, supposedly controlled by the Rotterdam Convention; however, the labour movement has been highly critical of the Convention for its weak procedure resulting in the failure to control paraquat and asbestos. Also concerning is the influence of the pesticides industry over the application of the Convention.

The 11^th Conference of the Parties for the Rotterdam Convention is underway. At present, the Convention’s Prior Informed Consent (PIC) procedure for hazardous chemicals and pesticides ensures that countries exporting pesticides must seek the prior informed consent of the importing countries before shipping; however, to list products using the PIC procedure requires consensus. This requirement, initially introduced to foster cooperation, has instead evolved into a veto mechanism that is now threatening the viability and effectiveness of the Convention. A small group of countries continue to block the listing of several highly hazardous substances.

Croplife, the international trade association of agrochemical companies, has a large lobbying contingent at the Rotterdam meeting for the purpose of influencing countries to defend their trade in pesticides. “It is vital for global health and the environment that Croplife fail in undermining the important new annex to the Rotterdam Convention. The lives and health of millions of agriculture workers depend upon reform.”

The IUF along with sister global unions will be campaigning for the adoption of a new annex to the Convention which will allow parties who want to share information about a substance considered dangerous by the Chemical Review Committee to do so, even when the listing of the substance has been blocked by a failure to reach consensus. Listing on the new annex will require a 75% majority vote. Furthermore, for chemicals listed in the new Annex VIII, explicit prior informed consent will be required from the importing country before the hazardous substances can be shipped.

Meetings of the Conference of the Parties (COPs) to the Basel, Rotterdam and Stockholm Conventions are underway in Geneva, Switzerland. In a significant development, Methoxychlor, UV-328 and flame retardant Dechlorane Plus is all set for inclusion in Stockholm Convention's list of hazardous POPs.

At the commencement of the meeting of the Stockholm Convention a decision was reached to add the pesticide Methoxychlor to its Annex A list of substances for global elimination, without exemptions. Methoxychlor is an organochlorine pesticide that is used as a substitute for DDT in agriculture and veterinary medicine. The chemical shows genotoxicity, reprotoxicity, and immunotoxicity, providing a strong basis for consensus among parties to list methoxychlor in Annex A for global phase-out without exemption. The listing of two other chemicals - the plastics additive UV-328 and the flame retardant Dechlorane Plus (commonly used in plastics) too were recommended for inclusion in the list of hazardous POPs which meet the criteria for global elimination, without exemptions. 

More than 120 countries have agreed to add these two toxic plastic chemicals and a pesticide to the Convention’s list of substances for global elimination, but included exemptions that will permit continued use of the plastic chemicals at the eleventh meeting of the Conference of the Parties (COP-11) to the Convention. It has been agreed that the chemicals, the plastic additive UV-328, the flame retardant Dechlorane Plus besides the Methoxychlor meet the Convention's criteria as POPs and there is a compelling scientific logic to ban them globally.

A study by International Pollutants Elimination Network with Arnika and Ecological Alert and Recovery – Thailand has found high levels of Dechlorane Plus in the blood, food chain, and communities of Thai plastic e-waste workers. Dechlorane Plus often serves as a flame retardant in plastics used for electronics and the auto industry, but the study showed that when these toxic plastics are dismantled for recycling, e-waste workers suffer significant exposures to the toxic flame retardant. Compared to a reference group of nearby organic farm workers, on average the waste workers blood contained 40 times higher levels of Dechlorane Plus.

The study underlined the importance of transparency in the regulation of chemicals in electronic and plastic waste.     

The text of the Stockholm Convention was adopted by the Conference of the Plenipotentiaries (Stockholm, 22 May 2001) and entered into force on May 17, 2004. The text was subsequently amended by the Conference of the Parties at its fourth meeting (Geneva, 4 - 8 May 2009), fifth meeting (Geneva, 25 - 29 April 2011), sixth meeting (Geneva, 28 April - 10 May 2013), seventh meeting (Geneva, 4 - 15 May 2015), its eighth meeting (Geneva, 24 April - 5 May 2017) and at its ninth meeting (Geneva, 29 April – 10 May). It was last revised in 2019. India signed it on May 14, 2002 and ratified it on January 13, 2006. It entered into force on April 13, 2006 for India. 

For the development of the National Implementation Plan (NIP) under the Convention, the Indian Ministry of Environment, Forest and Climate Change, the National Focal Point (NFP) for the Stockholm Convention works closely with the Central Pollution Control Board (CPCB), the Ministry of Agriculture-the nodal ministry for dealing with pesticides, the Ministry of Chemicals and Fertilizers where the Department of Chemical and Petrochemical is responsible for policy, planning, development and regulation of the chemical, petrochemical and pharmaceutical industries, the Ministry of Power dealing with PCB in the power sector, the Ministry of Health and Family Welfare (MoH&FW) which determines and manages the risks from chemicals in consumer products and foods, the various State Health Departments which controls shipment, storage and distribution of DDT authorized for use for public health purposes and with the Ministry of Science & Technology through their research institutions. 

India's NIP notes the growing concern over a particular class of POPs that exert biological effects on health by disruption of the hormone (endocrine) system. In human beings possible inter-linkages have been found between POPs and health whereby studies indicate that POPs could possibly cause cancer, birth defects, fertility problems, a greater susceptibility to disease and could even diminish intelligence. Other research points to significant neuro-behavioral abnormalities as a result of exposure to dioxins and PCBs. Reduced intellectual performance has been measured in both monkeys and children who have been exposed to PCBs. It has taken cognisance of the studies that demonstrate a correlation between exposure to PCBs and dioxins and the incidence of a variety of reproductive problems including infertility. POPs have been detected in human and animal blood and tissues in India and in all quarters of the environment and in food.

Notably, Naresh Pal Gangwar, Additional Secretary, Hazardous Substances Management Division, Indian Ministry of Environment, Forest and Climate Change is the National Focal Point (NFP) for the Stockholm Convention. He is also the Basel Convention Competent authority (CA) and Rotterdam Convention's Official contact point. 

India's NIP reveals that the major contribution of POPs like PCDD/DF emission is from waste incineration and ferrous and non-ferrous metal production categories followed by heat and power generation sector. Waste incineration has 66.75% share of the total annual releases. The second highest source is ferrous and non-ferrous metal production. Copper recycling is the most leading industrial activity contributing to the PCDD/DF releases. These are the most important sectors that will require special attention and control. The highest amount of PCDD/DF is released into residues 63.12%, followed by air emission which accounts for 32.66% of the total releases. Main source categories are waste incineration, ferrous and non-ferrous production, heat and power generation, production of minerals, transport, uncontrolled combustion processes, production of chemicals, consumer goods and disposal/ landfill. Contrary to these findings and the provisions of the Stockholm Convention, governments in India are building some 250 waste incineration plants to burn mixed municipal waste laden with plastic and produce electricity. This has been revealed by R. K Singh, Union Minister for Power and New and Renewable Energy (MNRE).  

In such a backdrop, the inclusion of these chemicals in the list of hazardous POPs will alert every worker and community about the toxic chemicals which threaten their bodies, their food, and their health throughout the plastic waste stream. It will help governments enact laws that can prevent contamination of human body and the food chain.

On March 2, 2023, a 3-Judge Bench of Supreme Court headed by Chief Justice (Dr.) Dhananjaya Y. Chandrachud, Justices Pamidighantam Sri Narasimha and J.B. Pardiwal passed an order on petitions concerning "the loss of investor wealth in the securities market over the last few weeks because of a steep decline in the share price of the Adani Group of companies. The decline in the share price was precipitated by a report published by Hindenburg Research on 24 January 2023." 

According to the report of the Hindenburg Research, "the Adani Group of companies has manipulated its share prices; failed to disclose transactions with related parties and other relevant information concerning related parties in contravention of the regulations framed by SEBI; and violated other provisions of securities laws. The report also states that Hindenburg Research has taken a short position in the Adani Group companies through US traded bonds and non-Indian traded derivative instruments." 

The order provides an overview of the petitions in this regard. "WP(C) No. 162 of 2023 states that public money amounting to thousands of crores is at risk because public institutions like the State Bank of India and the Life Insurance Corporation of India are exposed to the Adani Group. It inter alia seeks the issuance of directions to the Union of India and the Union Ministry of Home Affairs to constitute a committee headed by a retired judge of the Supreme Court to investigate the contents of the report published by Hindenburg Research."

The order records that "WP(Crl) No. 39 of 2023 is for the issuance of directions to the Union Ministry
of Home Affairs to register an FIR against Mr. Nathan Anderson (founder of Hindenburg Research) and his associates for short selling, and for directions to recover the profits yielded by the short selling to compensate investors". 

It also records that "WP(C) No. 201 of 2023 inter alia states that “the Adani Group has been in flagrant violation of ... Rule 19A of the Securities Contracts (Regulation) Rules by surreptitiously controlling more than 75% of the shares of public listed Adani group companies, thereby manipulating the price of its shares in the market.” It inter alia seeks a court monitored investigation by a Special Investigation Team or by the Central Bureau of Investigation into the allegations of fraud and the role played by top officials of leading public sector banks and other lender institutions". 

The order records: "WP(Crl) 57 of 2023 is for directions to any investigative authority to: (i) investigate the Adani Group companies under the supervision of a sitting judge of this Court; and (ii) investigate the role of LIC and SBI in these transactions."

It records that " SEBI has placed on record a brief note on the factual and legal aspects describing the existing statutory regime, regulatory mechanisms and frameworks in place for the protection of investors. It has also laid out the regulatory framework governing short selling."  

In its note SEBI has submitted that: a. It has adopted a disclosure based regulatory regime for both issuance of and trading in securities. This is in line with the discontinuation of pricing control for capital issues in favour of the principle of free discovery by the markets based on demand and supply from informed investors; and b. It is “strongly and adequately empowered to put in place regulatory
frameworks for effecting stable operations and development of the securities markets including protection of investors.” It has also detailed the extant framework governing investor protection in the context of the
subject matter at hand. It has stated that the key pillars of investor protection are:

“11.1 Mandatory disclosures by listed companies to facilitate free and fair price discovery and to ensure that all investors have equal access to material information for them to be able to take informed investment decisions;
11.2 Market systems to ensure seamless trading and settlement including volatility management;
11.3 Enforcement action in the event of misconduct in the market including fraud or violations of SEBI regulations.”

On the subject matter of these petitions, SEBI has stated that "SEBI is already enquiring into both, the allegations made in the Hindenburg report as well as the market activity immediately preceding and post the publication of the report, to identify violations of SEBI Regulations including but not limited to SEBI (Prohibition of Fraudulent and Unfair Trade Practices I relating to Securities Market) Regulations 2003, SEBI (Prohibition of Insider Trading) Regulations 2015, SEBI (Foreign Portfolio Investors) Regulations 2019, Offshore Derivative Instruments (ODI) norms, short selling norms, if any. As the matter is in early
stages of examination, it may not be appropriate to list details about the ongoing proceedings at this stage.”

In its order, the Court has recorded that "it appears that SEBI is seized of the investigation into the allegations made against the Adani Group companies. SEBI has not expressly referred to an investigation into the alleged violation of the Securities Contracts (Regulation) Rules 1957 which provide for the maintenance of minimum public shareholding in a public limited company. Similarly, there may
be various other allegations that SEBI must include in its investigation."

The Court has directed that "As a part of its ongoing investigation, SEBI shall also investigate the
following aspects of the issues raised in the present batch of petitions: a. Whether there has been a violation of Rule 19A of the Securities Contracts (Regulation) Rules 1957; b. Whether there has been a failure to disclose transactions with related parties and other relevant information which concerns related parties to SEBI, in accordance with law; and c. Whether there was any manipulation of stock prices in contravention of existing laws." It has directed, "SEBI shall expeditiously conclude the investigation within two months and file a status report." SEBI is supposed to file its report in the first week of May. 

The Court has constituted an Expert Committee  headed by Justice Abhay Manohar Sapre, a former judge of the Supreme Court of India for the assessment of the extant regulatory framework and for making recommendations to strengthen it. The committee consists of O P Bhatt, Justice J P Devadhar (retired), KV Kamath, Nandan Nilekani and Somashekhar Sundaresan. The remit of the Committee is as follows:
a. To provide an overall assessment of the situation including the relevant causal factors which have led to the volatility in the securities market in the recent past;
b. To suggest measures to strengthen investor awareness;
c. To investigate whether there has been regulatory failure in dealing with the alleged contravention of laws pertaining to the securities market in relation to the Adani Group or other companies; and
d. To suggest measures to (i) strengthen the statutory and/or regulatory framework; and (ii) secure compliance with the existing framework for the protection of investors

SEBI has been asked to apprise the expert committee of the action that it has taken in furtherance of the directions of this Court as well as the steps that it has taken in furtherance of its ongoing investigation. Secretary, Ministry of Finance has been asked to appoint a nodal officer to provide logistic assistance to the committee.

In its previous order dated 10 February 2023, the Court had noted that there was a need to review existing regulatory mechanisms in the financial sector to ensure that they are strengthened with a view to protect Indian investors from volatilities in the market."  The Expert Committee constituted in this regard has also been asked to furnish its report in "sealed cover" to the Court by first week of May 2023. 

Will the Court's committee and the SEBI succeed in uncovering the Rs 81, 000 crore scam?  The total bank debt to the top five Adani Group companies is estimated to be over Rs 81,000 crore as of January 26, 2023.

Diverting 39 rivers for interlinking of rivers project entails rewriting the geography of South Asia, Himalayan region and peninsular region through 30 links. It will vitiate international relations because transboundary Himalyan rivers like Ganga, Kosi and Brahmaputra are going to be mutilated into pipelines. 

Prior to Justice Karol's 28 page long order which endorsed interlinking of Kosi-Mechi rivers, which is part of 14 links of Himalayan component and of one of the 30 links of the national plan for interlinking of rivers (ILR), Union Ministry of Environment, Forests and Climate Change had accorded environmental clearance to it unmindful of the drainage crisis in Kosi river basin. After some 40 hearings, Justice Karol ordered, "Once the issue of funding is worked out as best possible, the interlinking of the two rivers, Kosi and Mechi be done in a time bound and expeditious manner, keeping in foremost view the principles of sustainable development." The fact is that the principles of sustainable development including precautionary principle, UN Framework Convention on Climate Change (UNFCCC), Kyoto Protocol, Paris Agreement and UN Convention on Biological Diversity create a logic against such diversion of rivers. It is an established fact that land use change contributes to climate crisis. Significantly, the order  refers to the Ken Betwa interlinking of rivers project which is an anti-river initiative. Ken-Betwa is one of the 16 links of the peninsular component of the ILR project.     

The 294 page long EIA report of 4900 crore river diversion project prepared by a New Delhi consultant based will have us believe that there will be no adverse effect and no displacement. It admits that certain studies like seismicity study have not been conducted because they were not deemed relevant. Given the fact that Kosi is a transboundary river, there was/is a need to undertake cumulative environment and social impact assessment of the project on the environmental and social health of the Kosi sub-basin as part of Ganga river basin in the light of the Ganga River Basin Master Plan. 

The proposed land use change is likely to contribute to climate crisis and aggravate the environmental crisis in the region. 

EIA report and the environmental clearance conditions merits ground truthing and rigorous scrutiny. The order of Justice Karol underlines that 80 % of the river basin of Kosi lies in Nepal and the Kosi Agreement mainly pertains to the Kosi Barrage. "A separate ‘understanding’ was reached between the two Governments in respect of DPR for Sapt Kosi High Dam Multi Purpose Project in 1991. The Indian Nepal joint team of experts is the competent authority for technical decision and the officials of the Government of Bihar are also inducted as special invitee". Before the work starts on Kosi-Mechi river diversion project for earning Rs 1448 crores annually for 100 years through irrigation for Kharif crops in Araria, Purnea, Katihar and Kisanganj, there is a need for a Mahapanchayat because Sapt Kosi High Dam is also planned for Rabi crops.

Drainage crisis 

Floods in the Kosi have become an annual ritual of aerial surveys, flood relief, dubious assurances, and constitution of committees, judicial probe and the like.

Nothing can illustrate the fate of various committees, commissions and Task Forces constituted to study flood and drainage problem since 1950s to 2008 better than what R. Rangachari, Chairman, Expert Committee on the Implementation of the recommendations of Rashtriya Barh Ayog said on August 19, 2008. He said, `I am not aware as to what follow up actions were all taken on this Report. It is my impression that really not much has been done to implement the suggestions made by the committee's report. Rangachari was on Prime Ministers Task Force on Flood Control constituted in 2004. 

Justice Rajesh Balia judicial inquiry commission constituted in the aftermath of breach in an embankment was given nine extensions to undertake a comprehensive probe on six terms of reference related to the flood-drainage crisis in Kosi river Basin. It submitted its report in March 2014 with recommendations for remedial measures. So far there has been no remedial action. 

It is noteworthy that National Common Minimum Programme (CMP) of the Government of India announced in 2004 made a solemn pledge to the people of the country to undertake Long-pending schemes in specific states that have national significance, like flood control and drainage in North Bihar (that requires cooperation with Nepal as well). Despite acknowledging the problem, it is shocking to observe that neither central nor Bihar government `conducts any survey to assess the effect of flood control measures on socio-economic condition of the society. This hold true for Nepal as well. Given the fact that the coalition government in Bihar comprises of parties that had adopted the CMP, there is a compelling logic for them to reiterate their pledge and act on it. 

A look at the statements of the Indian Prime Ministers, the Nepalese Prime Ministers and the Bihar Chief Ministers reveal how they remain enveloped in the technocentric approaches that caused the calamity in the first place. 

After the breach in the embankment at Kusaha in the Kosi region, Bihar Chief Minister requested India's External Affairs Minister on 19 August, 2008 to approach Nepal Government to ensure law and order as per Kosi Agreement in order to repair the breach that took place in Nepal. 

On 20 August, 2008, Nepali Prime Minister took stock of the post-calamity situation in the Kosi region and said "Koshi agreement was a historic blunder" and "People are suffering due to this agreement". The agreement led to the construction of embankments and proposals for a high dam.   

All this clearly demonstrates how although the more things change on the ground, the more they remain the same. A Fact Finding Mission on Kosi that visited the flood affected parts of North Bihar and Nepal demanded a White Paper on the current deluge and drainage in the Kosi basin in general and North Bihar in particular in order to address the drainage congestion crisis that has resulted from the so-called solutions. A White Paper on South Asia's biggest environmental crisis in Kosi river basin is long due. 

Following the eighth breach in th embankments in August 2008, besides four panchayats in Nepal, four North Bihar districts- Saharsa, Supaul, Madhepura and Araria- got worst affected by floods. In addition to these twelve districts -- Purnia, Katihar, Khagaria, Muzaffarpur, West Champaran, Saran, Sheikhpura, Vaishali, Begusarai, Bhagalpur, Patna and Nalanda were affected by the floods as well. An estimated 35 lakh people suffered due to the flood crisis. As per Bihar government own reports, 48 lakh people in 22 districts were in need of assistance due to flood. Despite the institutional memory of crisis in Kosi river basin, it ends up creating a situation where "contractors love drainage crisis". The primary function of floodwater is to drain out excess water. It has not been allowed to perform its functions due to unthinking engineering interventions.

Any judicial or executive probe that does not fix criminal liability is suspect because the fate of such commissions and committees are a foregone conclusion. It is a routine exercise of no consequence. However, since the terms of reference of Justice Balia Commission was focused on Kosi High-Level Committee, a multilateral body, it merited attention. But the biggest limitation of the Commission was that it did not and could not question the institutional status quo that is guilty of perpetuating the crisis. Dozens of such reports prepared by Commissions of all ilk gather dust and are moth eaten. At most they become campaign tools during elections.

The Inquiry Commission should have recommended fixing charges of criminal neglect against the members of the Kosi High-Level Committee, who waited for the calamity to happen despite having sufficient information that could have at least led to evacuation of the people on time prior to the man-made crisis. However, it is quite sad that the Terms of Reference of the Commission was so devised as to create a rationale for Kosi High Dam in Nepal. The Commission has underlined in its report that relevant departments of the state government did not provide the information it sought. The report of Justice Balia Commission met the fate of the reports of the Rangachari Committee and Rashtriya Barh Aayog. 

Drainage problem in Kosi has failed to alter the policy regime of the State that favours structural solutions regardless of the natural drainage it may impede. Proposals like High Dam on Kosi is as good as jumping from the frying pan into the fire if the experience with embankments is anything to go by.

Even when one chooses to ignore changing morphology of the river, the estimated lifespan of a dam and embankment is 25 years and 37 years respectively underlines the transitory nature of technocentric interventions.

For several decades, each and every proponent of embankments, Multi-purpose Kosi High Dam, and diversion of rivers for Interlinking of Rivers project have merely been shouting I have all the facts about the dynamic and unstable geology and violence of Kosi to scare people in order to make people surrender their judgement. People seem to have unquestioning and unsuspecting respect for facts. Governments in India and Nepal relied on these very facts to sign Kosi agreement. Now the Nepal Prime Minister has regretted the suicidal agreement on Kosi, signed in 1954, as the main cause behind the flooding of the Nepali territory every year. Nepals sense of grievance regarding Kosi may be justified because the treaty reveals itself as outdated and unfair to both the parties. The proponents of High Dam and diversion of rivers seem to feign ignorance about decommissioning of 1,797 dams in USA since 1912 to make room for the free flow of the rivers. Notably, 69 dams were removed in 2020 alone. 

Counting on the Kosi treaty, Union Ministry of Water Resources misled the Rajya Sabha on March 11, 2008 on the issue of Floods in North Bihar by claiming, Government has taken various steps in the direction of water management to stop the flood in north Bihar coming from the rivers of Nepal. There has been no significant shift in the way the Kosi issue was perceived in the 1950s and in recent times. 

The treaty has remained quite pronounced because a carrot of Kosi High Dam, first raised in 1948, has been dangling before the flood victims as one of the `permanent solutions to the problem of recurring floods. Ironically, embankments as temporary solution have become reasonably permanent whereas the `permanent solution has remained elusive. What is `permanent and how permanent is `permanence? It must be acknowledged now that there is a manifest and condemnable insincerity in proposing Multi-purpose High Dam for flood control because the dam is proposed to tap the hydro-power potential. The multiple purposes (irrigation, power-generation, flood-control, etc) are conflict ridden because objectives of flood-control, irrigation and power-generation would require opposite functions from the reservoir. This is ignored since well-entrenched beneficiaries across political lines have an incestuous relationship with the structural solutions like embankments, dams and their victims that prevents rational vulnerability assessment based interventions to remove the impediments to the drainage of the ecological flow of water. 

All endeavors at course correction at this stage must take into account how did the transformation of flood dependent agrarian regimes into flood vulnerable landscapes took place since it was primarily driven by the need to secure private property in land, which was a key concern of the colonial powers. It `soon disrupted natural flow regimes and ended up aggravating flood lines and thereby opening up the deltas to enhanced flood vulnerability; Constructed a network of roads, railway lines, and bridges, which by running in the east- west direction ended up interrupting natural drainage lines that mostly dropped from north to south! These structures, in time, not unexpectedly, began to unsettle a complex and fragile arrangement for drainage. Thus, north Bihar has been deprived of the most fertile land in the world. The Royal Commission of Agriculture had blamed lack of adequate drainage for it. Traditional systems made the agricultural districts of north Bihar Ganga basin prosperous in the early part of the 19th century. The neglect of that system over the years led to the area being impoverished by the late 19th century. 

There is a compelling logic behind seeking immediate review of Indo-Nepal Kosi Treaty that created the rationale for embankments and dams. Continuing with it would tantamount to riding a dead horse. The treaty must acknowledge that technology can only help create irreparable problems. If technology is indeed the answer, surly the technologists have got their questions wrong. Drainage congestion in North Bihar and Nepal is the question that has remained overlooked for several decades.

The litmus test for a sane, credible, fair and democratic treaty lies in providing treatment for permanent water-logging that has come to characterize the Kosi region.

Floods or Earthquakes or hurricanes or tornadoes or tsunamis cannot be controlled. But the catastrophe they can cause be predicted, anticipated and preventable. If that is the case the best flood proofing mechanism since times immemorial is rely on simple truths and beware of the law of unintended consequences. The simple truths being drainage of the river must remain sacrosanct come what may besides early preparedness, timely evacuation of human and animal population and establishment of robust public health system.   

Given its distinct geo-morphological features and complicated hydrological characters,  Kosi is one of the Himalayan rivers that has yet to be understood in its entirety. There is no substitute of reversing the past policies, as is being done world over to combat adverse planetary changes. Land use changes such those attempted in the past and those proposed are acknowledged to be significant contributor to it. It is high time policy makers gave up their outdated "conquest over nature" paradigm and acknowledge "we shall have to learn to live with floods". 

Instead of pretending to be surprised by river's natural functions, scientific logic of water cycle creates a compulsion for re-visiting the Kosi Agreement to factor in fragility of Himalayan watershed, Ganga Basin Master Plan, decommissioning of numerous dams in Europe, South America, USA, and China and the UN report "Aging Water Infrastructure: An Emerging Global Risk". Besides recognising the rights and duties of the riparian parties, the revised legal agreement will have to ensure that the natural right of the river  is recognised the way it has been done in rights of rivers Brazil, Panama, Colombia, Bolivia, Mexico, Ecuador, New Zealand, Uganda, Canada, Northern Ireland and Bangladesh. Unless primacy is accorded to the legal rights of Kosi river, human suffering due to drainage crisis will remain a permanent feature of the river basin as an outcome of a myopic and misplaced "temporary" engineering "solution". 

Diverting rivers for interlinking, a catastrophic idea

Several states remain opposed to rewriting of geography through interlinking of rivers , after Supreme Court, Government reveals there is no consensus on the mega project. Court observed NCAER Study “did not consider the plan's environmental aspects or cost-benefit calculus”. ILR project and Ganga Waterway project pose threat to Ganga basin, contrary to efforts for Ganga rejuvenation

The terms of reference of the constituted ‘a Special Committee/ 'Task Force’ on Interlinking of Rivers’ constituted in September 2014 chaired by B.N. Navalawala reveals that Supreme Court’s order dated February 27, 2012 in petitioner-less Writ Petition (Civil) No. 512 of 2002 is based on a flawed assumption that there is consensus and unanimity among the states in the matter of Interlinking of Rivers concept/project. The press release of the Union Ministry of Water Resources, River Development & Ganga Rejuvenation issued by Press Information Bureau states that the Task Force “would also device suitable mechanisms for bringing about speedy consensus amongst the states and also propose suitable organizational structure for implementing the Interlinking of Rivers. The Task Force would also try to forge a consensus amongst the states in order to take forward the speedy implementation of the Interlinking of Rivers Program.” After some fifteen meetings, this Special Committee submitted its Status-Cum-Progress report to the Union Cabinet which last discussed it on June 6, 2018. 

The terms of reference of the earlier Task Force on Inter-Linking of Rivers under the Chairmanship of Suresh P. Prabhu that was constituted on December 13, 2002 was also tasked to “Devise suitable mechanism for bringing about speedy consensus amongst the States” revealing absence of unanimity on the implementation of ILR project.

The judgment in the petitioner-less “Networking of Rivers" case inconsistently admitted absence of consensus and unanimity among the states in the matter of Interlinking of Rivers concept/project and still erroneously went on to conclude that there is unanimity and consensus.

The judgment dated February 27, 2012 in the “Networking of Rivers” case was authored by Justice Swatanter Kumar on 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.”

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 said, “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 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.

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 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.” VS Achuthanandan, as 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.

Yamuna Pollution case became Networking of Rivers case

On September 16, 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.

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 para 7 of the order of 2012, 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 people 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.

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. 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 judiciary overstepping its jurisdiction.

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.” It is apparent that ILR project and Ganga Waterway project pose a threat to Ganga basin. Admittedly, Ganga’s aviral dhara or unimpeded flow and nirmal dhara or quality water flow has been violated by “dams and barrages that snap her longitudinal connectivity” and “significant water withdrawals, increased disposal of debris, and altered water recharge/extraction rates…thereby crippling river functioning.” ILR and waterway projects entail sever longitudinal connectivity. These projects are contrary to efforts aimed at rejuvenation of Ganga.

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-basin 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.

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 B.N. 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!

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.

Misplaced Claims

In the court at no stage has 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 and power generation of 34 million Kilowatt (KW) mentioned in the February 2012 judgment. 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”. 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. This mismatch indicates that the inter-linking plan would be totally incapable of solving the annual flood problems in the country.

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 decision making with regard to ILR entails rewriting the geography of the country.

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. 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.

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.

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.”

"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.”

Not only that the study “did not consider the plan's environmental aspects or cost-benefit calculus.” 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.

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 quarreling 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, 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.”

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.

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.

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, earth movers 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.

Government’s National Environmental Policy 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.”

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.”

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.

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”.

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 rivers 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.” 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.”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 judgements are 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.

In a letter dated May 21, 2014, Prime Minister was given 15 suggestions one of which argued for abandonment of ILR project. It drew Prime Minister’s attention towards the pearls of wisdom from Mahabharata that describes the Divine Being saying, “The mountains are his bones. The earth is his fat and flesh. The oceans are his blood. Space is his stomach. The Wind is his breath. Fire is his energy. The rivers are his arteries and veins. Agni and Soma, otherwise called the Sun and the Moon, are called his eyes. The firmament above is his head. The earth is his two feet. The cardinal and subsidiary points of the horizon are his arms,” the new government should reject the idea of “inter-linking of rivers based on feasibility”. This is narrated by Bhishma in conversation with Yudhishthira while referring to the reply of sage Bhrigu to sage Bharadwaja. This verse occurs in the Shanti Parva of Mahabharata.

Interlinking of rivers entails mutilation of the veins and arteries of the divine nature. Rivers shape the terrain and lives of people by its waters which are always in a dynamic state. Breaking this dynamic would unleash forces of uncontrolled change and invite the ‘law of unintended consequences’. Let’s remember the terrible Aral Sea disaster caused by the mistakes of Soviet Union in which two Siberian rivers were diverted. If water scarcity is the perennial question, there better answers like the groundwater recharge master plan available with the government. Water can be made to “Reach to All Homes, Farms and Factories” by adopting this plan as well at a minimal cost.

Whenever there is conflict between financial gains and rivers, the latter must get priority over monetary benefits because by any yard stick economic value of a free flowing river is bigger than dammed and mutilated rivers. The capitalist, communist and colonial legacy of treating rivers as material flow that flow through pipelines must be abandoned and rivers must be treated as living beings that nourished our civilization for centuries and can nourish all the coming generations if cannibalistic tendency of diverting waters in bottles, dams and banks is stopped.

With regard to pollution in rivers, if the Prime Minister can demonstrate the political will to stop all the effluents and sewage from entering into river streams through a single executive decision, he would have done an exemplary act of arresting ecological collapse and for safeguarding the quality of blood flowing in veins and arteries of the present and future generations. Notably, one of the aims of the ILR project was dilution of pollution, disregarding its implications for the clean rivers. NWDA is under structural compulsion to push these ecologically destructive projects envisaged in 1970s to justify their continued existence. NCAER, NWDA and their promoters remain trapped in pre-climate crisis era wherein “taming of rivers”, dams were temples and not outcome of disease of gigantism and conquest over nature was considered part of scientific temper with which rivers could be murdered with impunity. The ToRs of the Task Force of 2002 and 2015 and court orders of 2002 and 2012 reveal that proponents of ILR project are frozen in a time warp. Earlier, Supreme Court had suggested that this project should be completed by the year 2016.

Dr. Gopal Krishna 

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The author is a law and public policy policy researcher.