To
Union Minister for Water Resources, River Development and Ganga Rejuvenation
Government of India
New Delhi
June 10,
2015
Subject-Why
several states remain opposed to rewriting of geography through
interlinking of rivers
Madam,
This is
to draw your attention towards the terms of reference of the newly constituted
‘Task Force’ on Interlinking of Rivers’ chaired by B N Navalawala which reveals that
Hon’ble 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 attached 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.”
We
submit that 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.
We
submit that 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.
We
submit that 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.
We
submit that 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.”
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.’It is also a comment about who all have not supported it.
We
submit that 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.
We
submit that 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, 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
We
submit that on 16th September, 2002 the Intervention Application No.
27 in the writ petition (civil) No. 725/1994 came up for hearing before the
three-judge bench of the then Chief Justice, Justice B.N. Kripal, Justice K.G
Balakrishnan, and Justice Arijit Pasayat. Upon hearing the counsel the court
passed the order.
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.
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.
i) Interlinking of Mahanadi-Godavari-Krishna-
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.
We
submit that 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.”
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.”
We submit
that 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.
We
submit that 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 unimpded 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-basic resources except in the case of Cauvery and Vaigai
basins. Some water transfer from Godavari towards the south should take care of
the deficit in the Cauvery and Vaigai basins." Here also abundant caution
has been recommended.
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
We
submit that 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 Shri Nikhil
Nayyar, Advocate on Record was appointed as Amicus Curiae to assist Shri Ranjit
Kumar, senior advocate appointed as Amicus Curiae in this matter.
We
submit that on 31st October 2002, the petition in question was called on for
hearing before the three-judge bench of Chief Justice BN. Kripal, Justice Y. K.
Sabharwal and Justice Arijit Pasayat. Respondents included Government of India
and the State Governments. Upon hearing counsel the Court made the following
order, “Pursuant to the notice issued by this Court to all the States and the
Union Territories in relation to the inter-linking of the rivers, an affidavit
has been filed by the Union of India and also by the State of Tamil Nadu. No other
State or Union Territory has filed any affidavit and the presumption,
therefore, clearly is that they do not oppose the prayer made in this writ
petition and it must be regarded that there is a consensus amongst all of them
that there should be inter-linking of rivers in India.” A majority of the State
governments have yet to concur with the court’s views. The Kerala assembly has
in fact - besides rejecting the plans for interlinking - questioned the
constitutional validity of transfer of waters from one State to another in its
resolution!
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
We
submit that 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.
We
submit that 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.
We
submit that 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.
We
submit that 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.
We submit that 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.
We submit that 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.”
As to
mitigation of flood and drought to a certain extent, fishing at dams and
reservoirs, they are mentioned in passing as “fringe benefit of programme.
Thus, all claims of drought proofing, flood proofing and dilution of pollution
through linking rivers as argued by the lawyer who filed the application 2002
is insincere, an exercise in sophistry and totally misplaced.
The
judgment records the shortcomings of the NCAER report states as under:
"One
shortcoming of the above analysis is that it has not considered the issue of
cost of resettlement of displaced people due to ILR Project.”
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.”
We
submit that 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.
We
submit that 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.
We
submit that besides technical problems in the networking of rivers project,
given the enormity of political and legal problems witnessed from the way in
which neighboring countries like Nepal, Bangladesh have raised objections and
the way Indian states been quarrelling with each other over water in general
and networking of rivers in particular, the feasibility of the project is
questionable and improbable. These states have been compelled to flout not only
the tribunal awards but also the apex court orders.
We
submit that the Hon’ble 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.”
We
submit that 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
We submit
that 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.
We
submit that 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.
We
submit that the apex court came to the rescue of a river in the Kamalnath motel
case where a hotel company which had stakes of Kamalnath, the then Union
Environment Minister (presently Union Commerce Minister) had unilaterally taken
a number of measures to divert the course of Beas River near Kulu-Manali in
Himachal Pradesh (for instance, earthmovers and bulldozers were used to create
a new channel) when floods threatened land in its possession. The court used
the Public Trust Doctrine to define the state as a trustee of natural
resources.
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.”
We submit
that 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.
We
submit that 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 judgment in the Writ Petition (Civil) No. 512/2002 is
very crucial. In the days, months and years ahead it is likely to reveal Indian
Government’s exact policy vis-à-vis networking of rivers and court’s considered
response while dealing with contempt applications in the face of sub
continental protest. This case is likely to give birth to a new international
legal order to safeguard the legitimate regime of river basins from the
obsolete notions of ‘conquest over nature’, ‘surplus’ rivers and taming rivers.
If the environmental movement in the Indian sub-continent fails to stop this
mega project, it would mean nothing short of a premature death of the movement
itself and acceptance of the proposed rewriting of sub-continent’s geography
with painful consequences as fait accompli.
In a
letter to the Prime Minister Shri Narendra Modi dated 21st May ,
2014, ToxicsWatch Alliance (TWA) had 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.
TWA had
submitted that 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.
It
submitted that 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.
In
view of the above and the collective wisdom of the past and the present
and responsibility towards coming generations besides concerns for
non-human species there is a compelling reason to abandon ILR project
for the sake of sanity and humanity.
We
would be happy to meet you and share relevant documents in this regard.
Yours faithfully
Gopal Krishna
Khet Bachao Jeewan Bachao Sangharsh Samiti (KJBSS),
Bihar
Mb: 08227816731, E-mail-1715krishna@gmail.com
Web: www.biharwatch.org
Mb: 08227816731, E-mail-1715krishna@gmail.com
Web: www.biharwatch.org
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