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 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.”
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.
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 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.
i) Interlinking of Mahanadi-Godavari-Krishna-Cauvery rivers and building storages at potential sites in these basins.
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.”
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 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.”
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.
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 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.
"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.”
Available Alternative Solution
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.”