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05 March, 2012

Judges playing supreme

BRP Bhaskar
Gulf Today

India’s Supreme Court landed the government in a difficult situation last week by asking it to go ahead with a plan to link up the country’s major rivers, which it had abandoned three years ago.

The idea of linking the major rivers was first mooted by the British in the 19th century as they were tightening their hold on conquered territory. They had three operational bases in the subcontinent – at Calcutta (now Kolkata), Madras (Chennai) and Bombay (Mumbai). They could move troops easily from one base to another by sea. They reckoned that if inland navigation was developed troops could be moved quickly into interior areas too. The coming of the railways diminished the appeal of the project. 

KL Rao, a minister in Indira Gandhi’s government, broached the idea of a canal network which links the Ganga in the north with the Cauvery in the south as a lasting solution to the problem of recurrent flood and drought. Following this, the national water development agency identified 30 river links to be built. Mrs Gandhi, who came back from the Stockholm summit fully conscious of the need to protect the environment, did not pursue the project.

In 2002, when the Bharatiya Janata Party-led National Democratic Alliance was in power, the Supreme Court, acting on a public interest suit, asked the government to complete the whole project by 2016. Environmentalists cried foul but the BJP plumped for the project.

According to the International Water Management Institute, Colombo, which has been associated with the work on the project, it involves transfer of 178 billion cubic metres of water over 14,900 kilometres of canal and will cost $120 billion. 

The BJP, which seeks sustenance from Hindu religious traditions, expected two benefits from the project. It would be a good electoral plank as many regions experience chronic water scarcity. Also, it could cast Prime Minister Atal Behari Vajpayee in the role of a modern-day Bhagirath, the mythological character credited with bringing the mighty Ganga from the heavens to the earth. However, the NDA government could do little before being voted out in 2004.

The United Progressive Alliance government wrote finis to the project in 2009 with then Environment Minister Jairam Ramesh dubbing it “a human, ecological and economic disaster”.

There being no higher judicial authority, the new Supreme Court decision is final and binding on the government. There have been instances when Parliament amended the Constitution to override judicial verdicts. The government, which depends upon the support of a host of small parties for a simple majority in Parliament, cannot think of a constitutional amendment which requires a two-thirds majority.

The government can, of course, resort to foot-dragging, confident that the contempt-of-court mechanism through which it can be compelled to comply with a judicial verdict cannot be invoked easily in a matter of this kind. 

Not all matters brought to the courts actually involve issues which call for judicial determination on the basis of facts and law. Some are issues which demand a policy decision, and judges wisely avoid them, pointing out that the matter falls within the realm of the government. Sometimes, however, judges feel tempted to play deities, drawing upon an omnibus provision of the Constitution which says that court can pass any order to render complete justice in a matter before it.

Chief Justice BN Kripal, who delivered the 2002 judgment on river linking issue on the eve of his retirement, publicly stated later that it was “not a direction but merely a recommendation”. Barely a decade later, without the component schemes having gone through the processes of finalisation and administrative and financial sanction, the court has ordered that they be implemented. 

If the central government proceeds with the project it is sure to run into stiff opposition from states which fear it will adversely affect their water resources. Civil society groups are determined to block it as it will involve displacement of people and destruction of the environment.

Bangladesh has objected to the project saying it will reduce the water available to it from Indian rivers flowing through its territory. The project will require the concurrence of Nepal and Bhutan as it will be necessary to build dams in their area to divert river waters.-- Gulf Today, March 5, 2012.

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