|
.
Linking of Rivers: Judicial Activism or Error?
The Supreme
Court's direction that the rivers of India shall be linked within 10 years
is not at all a defensible instance of judicial activism. That apart,
turning to the merits of the direction, one wishes that the learned judges
had undertaken a more careful study of the subject before deciding to
issue directions. Fortunately these are interim directions, and there is
still time for a reconsideration of the matter. It is to be hoped that the
Task Force that is to be set up as directed by the Supreme Court will
consider not merely the 'modalities' of the `linking of rivers' but also the
soundness and wisdom of the idea. Any headlong rush in the pursuit of this
chimera will be disastrous.
By Ramaswamy RIyer
The Supreme Court has decreed that
the rivers of India shall be linked within 10 years. The usual response
“one does not know whether to laugh or to cry” would be inappropriate in
this case, as one is not permitted to laugh at anything that the judges say
except at their jokes if they make any; but presumably one is not
precluded from crying in despair. An almost abandoned idea has been given
fresh currency; a dubious idea has been given legitimacy; and a wild-goose
chase has been not merely sanctioned but mandated.
However,
before we go into the merits of the direction it is necessary to ask: is
this a legitimate venture in what has come to be known as judicial activism?
Please note that the question posed is not whether judicial activism is
legitimate, but whether this particular direction is a legitimate exercise
of judicial activism. (To obviate misunderstanding it may be stated that
this writer shares, with some reservations, the prevailing admiration in
this country for judicial activism.)
Generally,
when the judiciary stretches its scope or jurisdiction or concerns, the
objective is to secure human rights or ensure justice or protect the
environment; and even that last-mentioned objective can be regarded as an
attempt to ensure the human right to a clean environment. No such
justification is available in the present case. The Supreme Court can hold
that the right to drinking water is part of the right to life, and can
direct the state to ensure that that right is not denied; but precisely
how that right is to be ensured is not within the domain of the
judiciary. There are many different ways in which the future drinking water
needs of the people can be met, and the linking of rivers is only one of the
ideas mooted in this context. The Supreme Court could have directed the
state to take steps to see that the need is met without specifying the
particular route to be chosen for this purpose.
Moreover,
it is by no means clear that there is a direct link between the right to
water and the linking of rivers. The ‘human right’ to water is invoked
in the context of water as life-support, i e, drinking water. Drinking water
is only a small part of total water needs. The really large demands for
water usually arise in the context of irrigation which accounts for upwards
of 80 per cent of our usable water resources. It is for meeting those huge
demands that big projects – large dams, long-distance water transfers, the
linking of rivers – are mooted. Thus, the link with human rights that
justifies judicial activism cannot be invoked in aid of a direction for
the linking of rivers.
It
could be argued that the judiciary is concerned with conflicts and their
prevention, but here again, it is only entitled to say: ‘find ways and
means of avoiding conflicts over river waters’, and not: ‘transfer
waters from surplus to deficit rivers for augmenting the flows of the latter
and obviating conflicts’. (A further point is that even assuming that such
a transfer may help in obviating conflicts in relation to the recipient
river, it may in fact generate a conflict in relation to the river from
which the transfer is to be effected.)
A form
that judicial activism has taken in this country is the assumption of the
right to ask public authorities why they have not been discharging their
responsibilities. The present case cannot be brought under that umbrella
either. The Supreme Court seems to have assumed that the linking of rivers
was an accepted idea that has been languishing for decades for want of
attention and action. If so, a direction to accelerate action may seem a
legitimate exercise of judicial activism. That is not the case. The idea is
doubtless an old one, but there have always been doubts about its
soundness and practicability.
All
these points lead to the conclusion that the Supreme Court’s direction in
this case was not at all a defensible instance of judicial activism. One
wonders whether it was a judicial act at all.
That
is a very important point, but let us put it aside and consider the merits
of the direction. As already mentioned, there has always been much
scepticism in regard to this idea. With respect, one wishes that the learned
judges had undertaken a more careful study of the subject before deciding to
issue directions. Fortunately these are interim directions, and there is
still time for a reconsideration of the matter. How questionable the idea is
will be clear from the following.
The
gigantic Brahmaputra-Ganga gravity link canal that India had proposed in the
seventies was rejected by Bangladesh for many reasons, at least some of
which were and continue to be valid; that proposal is dead. An alternative
link canal passing entirely through Indian territory (the Siliguri
chicken-neck!) will involve large lifts and seems likely to be both
non-viable and questionable from other points of view, even if it is
physically do-able and the money can be found. We must disabuse ourselves of
the notion that the vast waters of the Brahmaputra can be diverted westwards
or southwards. At best we can think in terms of some minor transfers within
the Brahmaputra system (say, to Teesta).
Generally,
when people talk about the linking of rivers, they have one of two ideas in
mind: ‘Garland Canal’ or ‘Ganga-Cauvery link’. The ‘Garland
Canal’ idea mooted by Capt Dastur was merely a fanciful notion that never
commanded respect among knowledgeable people. It does not deserve serious
discussion here. K L Rao’s idea of a Ganga-Cauvery link was long ago
given up by the ministry of water resources as unworkable. Apart from
considerations of techno-economic viability (on which the proposition was
abandoned), it will have international implications. Under the
India-Bangladesh Treaty of December 1996 on the sharing of Ganga waters,
India has undertaken to protect the flows arriving at Farakka, which is
the sharing point. How will a diversion of waters from the Ganga to the
southern rivers be consistent with this? Will the flows at Farakka be left
intact, and water diverted from, say, whatever is now being used by UP and
Bihar? Bihar has already a strong sense of grievance that its interests have
not been given due consideration. Besides, in the context of the
India-Bangladesh talks, it is a proposition accepted by both sides that the
Ganga is water-short and needs to be `augmented’, though the two sides
have different notions on the means of augmentation: one has reservations on
that proposition, but if that is in fact true, where is the scope for
diversion from the Ganga?
We
entertain grand visions of long-distance water transfers from one basin to
another, when we cannot even persuade neighbouring states within a basin to
agree upon a sharing of waters (e g, Ravi-Beas, Cauvery). The National Water
Development Agency has been studying the possibilities of linking the
peninsular rivers (Mahanadi-Godavari-Krishna-Pennar-Cauvery), but Orissa
does not agree that there is a surplus in the Mahanadi, and Andhra Pradesh
does not agree that there is a surplus in the Godavari.
Turning
to theoretical considerations, we cannot simultaneously urge (i) that
planning must be on the basis of a basin as a natural hydrological unit, and
(ii) that we must cut across the basins and link them. Quite apart from the
technical challenges involved, this implies the redrawing of the geography
of the country. One’s misgivings about that kind of technological hubris
or Prometheanism (‘the conquest of nature’ philosophy) may be dismissed
by some as romantic, but the practical difficulties involved cannot be so
dismissed.
Every
inter-basin transfer must necessarily involve the carrying of water across
the natural barrier between basins (which is what makes them basins) by
lifting, or by tunnelling through, or by a long circuitous routing around
the mountains if such a possibility exists in a given case. Exceptionally
heavy capital investments and continuing energy costs (in operation) are
almost always likely to be involved. In addition, big dams, reservoirs and
conveyance systems will need to be built, involving not merely large
investments but also substantial environmental impacts and
displacement/rehabilitation problems. All this will need to be looked at
very closely in every case. Not too many projects are likely to survive such
a scrutiny. Even more serious is the funding problem. Plan outlays are
barely adequate even for the completion of projects already undertaken. One
estimate – that of the National Commission referred to later in this
article – of amounts needed for completing spill-over projects is Rs
70,000 crore in the Tenth Plan and Rs 1,10,000 crore in the Eleventh Plan.
That leaves no scope for new major projects, and necessitates a severe
selectivity even in regard to the continuance of what are called ‘on-going
projects’. Against that background, there seems to be little likelihood of
finding the massive resources needed for a major river-linking undertaking.
The rough figure mentioned in the Supreme Court in this context was Rs
5,60,000 crore. This is where that expression ‘one does not know whether
to laugh or to cry’ (mentioned earlier) forces itself upon one. One is
reminded of the Tamil saying ‘asking for directions to a place to which
one does not propose to go’. We may be wasting a good deal of time in
pursuing such grandiose and unpromising propositions, and distracting
ourselves from finding time and money for more modest, worthwhile and urgent
activities, such as extensive water-harvesting all over the country
(wherever feasible) and the massive task of rehabilitation of tanks in the
south and other similar traditional systems (‘dying wisdom’) elsewhere.
Even more important is effective demand management through improved
efficiency and economy in water use, whether in agriculture or in industry
or in domestic and municipal uses, so as to minimise the need for
supply-side solutions.
Lastly,
the idea of ‘linking of rivers’ that everyone is now talking about has
already been carefully considered by a high-level National Commission (on
Integrated Water Resources Development Plan) and found to be not so
promising. Should we not at least look at that commission’s report and see
what it had to say before re-floating the idea?
We
must hope that the Task Force that is to be set up as directed by the
Supreme Court will consider not merely the ‘modalities’ of the
‘linking of rivers’ but also the soundness and wisdom of the idea. Any headlong
rush in the pursuit of this chimera will be disastrous.
Courtesy http://www.epw.org.in
| 
