River-engineering and the courts

With all due respect, My Lords

RAMASWAMY R. IYER

In recent times the Supreme Court of India, with a series of remarkable decisions, has earned our admiration, respect and gratitude. Alas, it has now come out with an extraordinary order on the Inter-Linking of Rivers (ILR) Project, which has caused consternation and dismay to many of us.

In 2002, in a post-retirement explanation, a defensive Justice Kirpal had said that his order on the river-linking project was not a direction but merely a recommendation. That defensiveness has now been abandoned. In the present order, the Supreme Court explicitly directs the Executive Government to implement the project and to set up a Special Committee to carry out that implementation; it lays down that the committee's decisions shall take precedence over all administrative bodies created under the orders of this court or otherwise; it (graciously) authorises the Cabinet to take all final and appropriate decisions, and lays down a time-limit of 30 days for such decision-making (though it has the saving grace to say “preferably”); and it grants “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”.

The normal course

In the normal course, a project goes through certain stages and procedures: formulation; examination from various angles by the appropriate agencies, Committees, and Ministries; statutory clearances under the Environment Protection Act and the Forest Conservation Act; compliance with the procedures prescribed in the National Rehabilitation Policy; acceptance of the project by the Planning Commission from the national planning point of view; and finally a decision by the Cabinet. The Supreme Court rides roughshod over all this and orders not quick consideration and decision-making by the government, but implementation .

Are the proposed Special Committee and the Cabinet free to examine the project and come to the conclusion that it is unacceptable and must be rejected? No, they are under the Supreme Court's order to implement the project and may face contempt proceedings if they fail to do so. The project decision has been taken away from the hands of the government; it has been exercised by the Supreme Court; the government and the Planning Commission have been reduced to the position of subordinate offices or implementing agencies of the Supreme Court.

It could be argued that the above is a misrepresentation of what the Supreme Court has done, and that the learned judges are only concerned at the delay in the implementation of an approved project and asking for early implementation. In fact, there is no approved, sanctioned project called “the inter-linking of rivers project”. In 2003, when there was a raging controversy about this idea, an important defence by its supporters was that it was not a project but a grand concept; that it will consist of 30 links, each of which will be a project that will go through all the usual examinations and procedures; and that the critics are needlessly raising the bogey of gigantism. If it is a concept, how can it be ‘implemented'? It has first to be translated into projects, and each of those projects has to be properly approved or rejected, as the case may be. Thereafter we can talk about implementation.

How many of those 30 projects have been actually approved? None. Three — Ken-Betwa, Damanganga-Pinjal, Par-Tapi-Narmada — have reached the stage of preparation of Detailed Project Reports, and one (Polavaram), though included in the ILR Project, was separately taken up by the Andhra Pradesh government on somewhat different lines, but is mired in controversy. There is not a single case of a project actually sanctioned and ready for implementation.

The learned judges may say that this is precisely what worries them; that by now the projects should have been well under way; that a good project or concept or whatever it was, announced in 2002, is languishing; and that the judiciary has to step into the vacant space created by non-action by the Executive and issue the necessary direction. This is the gap-filling theory. However, there is a fallacy here. The “delay” is not the result of executive failure or inefficiency, but a deliberate (though unstated) slowing down of action on the project. The NDA had announced the project in 2002 with fanfare and trumpets. The UPA government which followed in 2004 was not very enthusiastic about the project but at the same time did not want to abandon it; its Common Minimum Programme stated that the project would be comprehensively re-assessed in a fully consultative manner. This was a clear indication of reservations about the project. Thereafter the project has been in the doldrums. Unfortunately, the government's attitude towards the project was never made unambiguously clear to either the general public or the Supreme Court.

The Supreme Court was clearly entitled to ask the government to state categorically where it stood in this matter: whether it considered the project to be a good (or the only) answer to the country's needs; if so, whether it intended to proceed with it; or alternatively, whether it had decided to drop the whole idea, and if so, on what grounds. What the Supreme Court was not entitled to do was to issue a direction to the government to implement the project.

Why has it done so? It would be wrong to attribute this to a desire for aggrandisement. The Supreme Court is convinced that the project is good and urgently needed; and that a very important national initiative is getting bogged down because of various reasons and needs to be galvanised. It has come to that conclusion because of a report by the National Council for Applied Economic Research.

Two problems

There are two problems here. First, assuming that there is a serious water scarcity problem, it is not the business of the Supreme Court to deal with it; there is an Executive Government to deal with such matters. True, the citizen's right to water is a fundamental right, and therefore the Supreme Court is concerned with it; but while it may direct the government to ensure that the right is not denied, it is not for it to lay down the manner in which or the source from which that right should be ensured. Moreover, the connection between the right to water and the ILR Project is very tenuous; it is the large demand for irrigation water that generally drives major projects and long-distance water transfers. It is true, again, that there are intractable inter-State river-water disputes, and these are of concern to the Supreme Court; but the Supreme Court can at best direct the Executive Government to find early answers to river water disputes, and not recommend a particular answer such as the ILR project, which may in fact generate new conflicts.

Secondly, and finally, we come to the heart of the matter, namely the view that the country faces a looming water crisis; that the answer lies in augmenting supplies; that given the magnitude and distribution of India's future water requirements, the ILR project is the best possible answer; and that it is in the national interest to implement it quickly. It is that conviction that provides, in the Supreme Court's view, the justification for its intervention. If that view of India's water crisis and its solution is challenged, the whole basis for the Supreme Court's order collapses.

This article will not enter into a discussion of this vital question, but will merely point out that there is a diversity of views on it, which the Supreme Court has failed to consider. The NCAER may have taken one view of the matter, but there are other views. The cogent case against the project has been succinctly stated in the editorial in this paper on 1 March 2012. That knocks the bottom out of the Supreme Court's order.

In 2002, when the NDA government announced the ILR Project, a fierce controversy broke out. There were many who hailed the initiative, but there were many others who deplored it as not only uncalled for but as positively disastrous. Many State governments expressed strong reservations on the project. Articles appeared in newspapers and journals. Books were published on the subject. How much of this vast literature have the learned judges read? How could they rely on the NCAER's report without reading other scholarly work? Even if the learned judges did not have time to read all the available material, should they not at least have heard a dozen scholars representing different disciplines and a few social activists before they decided to issue directions to the government?

This article will conclude with an earnest and respectful request to the Supreme Court to withdraw or at least put on hold its order, conduct further hearings, listen to a wider range of opinions, and reflect on the matter before it comes to firm conclusions.

(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)

It is not for the Supreme 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.

March 2, 2012

http://www.thehindu.com/todays-paper/tp-opinion/article2952303.ece

River-engineering and the courts


V.R. KRISHNA IYER

"THE SPILLOVER: A national debate involving all stakeholders is essential before undertaking the implementation of a national project like river-linking.

The article in The Hindu by Ramaswamy R. Iyer, “With all due respect, My Lords,” on March 2, a critical study of the ruling of the Supreme Court giving certain directions under the authority of Article 141, relating to inter-linking of rivers was noteworthy. And his request to reconsider the decision deserves serious consideration.

What the Supreme Court decides is final not because it is infallible; it is infallible because it is constitutionally final and structurally supreme. If ignorance is made final, governance becomes chaos. That is why the Montesquieuan theory of the trinity of instrumentalities is accepted by many Constitutions across the world, including the Indian Constitution. What is in the realm of the Executive is decided by the Executive. What is legislative, in the shape of law, is decided by the Legislature. When there is a dispute over a fact or law, the decision of the court is final, and all the other branches of the structure are bound by the judicial decision.

From this perspective, river disputes fall within the jurisdiction of the judiciary. But, for instance, how high an aircraft should fly without the possibility of danger, or how a safe dam should be constructed to store water, are matters highly technical, and hence these do not belong to jurisprudence or judges.

I was once a Minister for Irrigation and Electricity (in Kerala) and started projects on the advice of engineers. The court never interfered, nor could they. There may be some areas where submergence by a river may cause risks — and on the basis of clear technical advice a court may pronounce an order. The jurisdictional borders of the Executive, the Legislature and the Judiciary are fairly clear, and one of them cannot interfere with the other. Viewed from this angle, I agree with Mr. Ramaswamy Iyer's critical observations.

Judges, merely because they wear robes, cannot decide on the course of rivers, whether they should be linked or not, and if at all, how they should be linked — just as they cannot decide on matters to do with the safety of flights or other such technical issues. Judges are not infallible; and they cannot issue executive directions or promulgate legal mandates or punitive impositions in such contexts.

‘Hasten slowly'

The central flaw of the Supreme Court's verdict on the inter-linking issue is the failure to realise that a pan-Indian river project may have dangerous limitations. The Ganga and the Cauvery are two great rivers, but they cannot be linked up without first making a careful and exhaustive study of the various features of the terrain through which they flow over a vast territory of India. Otherwise, it may well end up as a horrendous blunder, irreparable after the decision is operationalised. A national debate involving also the great engineers, especially river engineers, that we have is essential before undertaking the implementation of a national project such as this.

The Supreme Court is indeed infallible, but while in its jural specialties it may well be top of the league, it is largely innocent in matters to do with mighty river-engineering. Therefore, great caution with all the wisdom at our command, must first be used to study the implications and the perils of this Himalayan-scale project before implementing a juristic wonder beyond what the Supreme Court has so lightly directed. Where the implications are too great to grasp and the consequences may be beyond repair, “hasten slowly” will be a good piece advice. Never assume that the robed wisdom that is good for jurisprudence will not land us in dangerous waters.

Therefore, never be in a hurry. Study every dimension of this huge project.

When the project was announced a decade ago in 2002, one section of public opinion supported it, and another opposed its implementation. It is without taking any note of the conflicting public opinion that the present binding directions have been issued by the court.

(V.R. Krishna Iyer was a Judge of the Supreme Court of India)

The concept of judicial infallibility is valid, but a legal pronouncement need not always be the last word on a given subject.

March 12, 2012

http://www.thehindu.com/todays-paper/tp-opinion/article2986060.ece