Ramaswamy Iyer's perspective in the EPW on the recent Supreme Court decision
Authored By :
The Supreme Court judgement of 27 February 2012 directed the executive government to implement the river inter-linking project through a special committee which will take precedence over all other administrative bodies. In this article, first published in the Economic and Political Weekly, Ramaswamy Iyer explains why this backing of a 'potentially disastrous' project is disturbing. The article then calls for a reconsideration of this judgement.
Two writ petitions were filed in 2002 on the subject of interlinking. The judgement finally passed in 2012 directs the implementation of this project. This judgement is disturbing for the following reasons:
· It encroaches into the executive domain
· The various controversies about the project have not been considered
· It supports a project that many citizens fear will have disastrous consequences
This section looks at the history of the river-linking project since 1982, when the Ministry of Water Resources brought out a report titled 'National Perspectives for Water Resources Development' that presented a general outline of possible links and transfers. In 2002, the Supreme Court converted an application for a mandamus on the subject of river linking into a writ petition for the purpose of delivering a judgement. In the current, and final, judgement, the Supreme Court has issued clear and firm directions to go ahead with the project. The various decisions, and political manipulations from 2002 to 2012 are summarised in this section.
3. Creation of a project
In 2002, when the writ petition was filed, there was no project 'interlinking of rivers'; neither was such a project mentioned in the ninth or tenth five year plans. Since the judgement giving the impetus for a previously non-existent project was given for a writ petition created by the court itself, it can be considered that this project is the creation of the then President, the amicus curiae and the Chief Justice.
4. Beyond the judicial domain
Judicial activism, in terms of interpretation of the constitution, has done good in some cases in this country as in others. The present example, however, is a case of judge-directed executive action, which is less common.
Possible arguments for judicial intervention:
Since the right to water is a citizen;s fundamental right, it is the concern of the Supreme Court. However, it can only direct the government to ensure that this right is not denied. To recommend a particular project is beyond the jurisdiction of the Court.
Ignoring their own caution:
The judges have remarked in their judgement that 'the Court is not equipped to take such expert judgements'. However, in the same judgement, they ignore their own caution against going beyond the judicial judgement and clearly direct the implementation of the project as well as the manner in which it is to be implemented.
This judgement has been passed on several worthy assumptions, that conclude that the project will benefit the nation and its citizens. However this is an error, and the reasons why are explained in the article. These reasons include the fact that there is no national consensus on the topic, that the stated importance of the project is merely a matter of opinion, and that the judges were not in a position to evaluate opposing views.
The observation made in the judgement to the effect that the state governments' objections are unsubstantiated and even anti-national is dismissive. In addition, this judgement is anti-constitutional, since water is a state subject, and inter-basin transfers cannot be ordered by the Centre, but requires consent.
Failure to understand central ambivalence:
Not just the states, but even the successive Central governments have displayed ambivalence towards this project, which the Court has failed to read.
Pre-empting procedures and processes:
The implications of a judicial order to implement a project extend beyond the project. This order effectively negates the due procedure of decision making installed in the Government (including required evaluations and clearance as well as state approvals) and requires immediate implementation without due consideration of the impacts by the government.
Taking away executive decision making:
The order by the court judgement is not to consider the project, but to implement it. This effectively takes away decision making power from the government and the planning commission and reduces them to the level of implementation agencies. Crucial here is the fact that the Court is not ordering the early implementation of an approved project- there is no such project till the judgement called the concept into being. This concept involves a large amount of construction spread over 30 links, which involves construction of between 60-80 dams. All these are to be implemented without due process or consideration.
Implications for executive accountability:
The Court order to implement the project implies that failure to do so may result in contempt proceedings. in this case, the process of examination and consideration before clearance is negated.
5. The case against the project
The Supreme court's supporting a decision on an issue over which there are several conflicting views is in conflict with its mandate to be neutral and impartial.This is even more momentous in the case of a project which many consider to be folly. This article lays out the reasons for concern. Two of the overarching points, which are not discussed in detail as the author chooses to examine the project on its own terms, are:
i) The projected water crisis is more a crisis of demand rather than supply.
ii) Even if additional supplies are called for, several alternative- and better- measures exist for meeting this demand.
The project goal is more to create a 'network' of rivers (similar to the national power grid) than to address the needs of water scarce areas. However, this concept of a water grid has two major flaws:
· Unlike a power or transport grid, rivers only flow one way.
· Rivers are not merely conduits of water, but living ecosystems and integral parts of the communities they flow through
Rationale of the project:
Flood mitigation and drought relief are the main justifications for the project, which is envisioned as taking water from the 'surplus' areas to the 'deficit' areas.
The significant quantities of water that will need to be diverted in order to achieve measurable flood control may not be technically feasible; if it is, this will have serious impacts on the river, its ecosystem and communities downstream of the diversion, on the diversion route, and in the recipient areas. The article raises several questions that need to be answered before thee project can be considered a viable flood moderation measure.
'Surplus' and 'deficit':
There are several problems in calculating the 'surplus' in a basin, one of which is simply that a river serves many ecological purposes as it flows. Just as a river is not a pipe for carrying water, a basin is not merely a bowl to contain it- or spill over. Any diversion of water from a river has consequences which the paper lists in detail. In such a case, the very concept of 'surplus' is questionable. Similarly, if once considers demand management, the idea of a 'deficit' is equally inappropriate.
The claim of net generation of electric power needs study before it can be verified.
Answer to drought:
Areas along rivers are not the worst hit. This project does not serve the areas that are most vulnerable to droughts, which are the uplands and dry lands that are distant from rivers. Secondly, the primary solution to drought needs to be local.
Water for irrigation: Meeting large demands for water through supply side measures does not help the case for increasing water efficiency. Introducing irrigation-dependent agriculture to drought prone areas will increase the farmer's risk.
The article questions the accuracy of the claim that most transfers will be through gravity, with only a few lifts (none greater than 120m). If true, then it is likely that the neediest areas will remain unserved.
Impacts and consequences:
The dying Aral sea is held up as an example of the unintended and unforeseen consequences of large water transfers. This should serve as a warning to India.
Generating new conflicts:
India's history with intra- and inter- state water sharing has been fraught with conflict. Similarly, there is emerging conflicts in the mountain states over the large number of dams being built in those fragile areas. It is expected that this project will exacerbate existing conflicts and create new ones.
Nearly all the non-peninsular rivers are international in nature, and the project will have serious repercussions on the riparian countries. This will increase conflict with our neighbours in South Asia, especially since the Court judgement has failed to mention them in any way.
Following the discussions on the propriety of the judicial judgement and on the project, the author hopes that some doubt has been planted among the concerned judges, which will cause them to put the order on hold.
DOWNLOAD THE FULL ARTICLE - Interlinking of rivers project - A disquieting judgement - Ramaswamy Iyer - EPW (2012)