EPW – Vol XLVII No.11 March 17, 2012
The higher judiciary should desist from the temptation to play God.
Over the past few decades, with the executive unable to play its role properly and the legislature in a regular logjam, the courts have come forward to grant relief to the citizenry and order the government to carry out the tasks which it had failed to. The judiciary has de facto come to exercise some powers which ideally should have never been its remit. Therefore, given the extra responsibility that has been thrust on the courts due to the acts of omission and commission of the other two legs of the republic, it is even more necessary for the judiciary to act with caution and restraint.
However, it is distressing to find that in a number of cases the judges of the higher courts have been slipping into policymaking and implementation. In the latest disturbing act of overstepping judicial boundaries, the Supreme Court has ordered the Government of India to implement the river interlinking project. And to ensure that the government does implement this order, the Court has “issue[d] a mandamus to the Central and the State Governments concerned to comply with the directions contained in this judgment effectively and expeditiously and without default”. Further, the Court has given the power of filing a contempt of court cases in the event of default or non-compliance of this order.
This order is a disaster, not only for the economy, the environment, the tens of millions of people who will be displaced by hundreds of projects, for interstate relations and federalism, but more so and crucially, for the basic structure of our republic. That the Supreme Court finds itself competent to order a project of this scale, which will have such wide ramifications for almost all aspects of the country’s life, which goes against the larger sense of both the union and state governments as well as the various legislatures of the country, and which will have serious international ramifications, shows the extent of judicial over-reach in this matter.
For decades now, interlinking of rivers has been proposed by starry-eyed engineers and bureaucrats who have despaired at the parallel sight of drought and floods which afflict India every few years. In post-Independence India, this idea was mooted in the form of a Ganga-Cauvery link canal which grew to become the idea that various “northern rivers” that are perennially fed by the Himalayan snows could be tapped to send their “excess” water to the seasonal rivers of central and south India. Fortunately, the sheer impracticality and impossibility of implementing this idea have stalled previous attempts.
Proponents of this project claim that it will prevent floods in the north and simultaneously provide relief to drought-prone regions in the south and thereby improve irrigation and drinking water supply. Even by the estimates acknowledged by the Supreme Court order, the project’s cost estimate is close to Rs 5,00,000 crore at 2003-04 prices; at today’s prices, the cost would be double this humongous amount. At what financial cost are we attempting a certain kind of flood protection and drought-proofing? Are there not less environmentally damaging and less expensive measures to achieve the same ends? Also, is it for the courts of law to decide which measure suits which region and the political choice of people in different regions?
After all, how each region consumes and conserves water is a political decision, dependent on a range of factors that are open to a variety of possibilities. It cannot be stressed enough that the basic assumption that the northern, Himalaya-fed rivers are water surplus is dubious at best. Otherwise, the Yamuna in Delhi would not be a stinking sewer and we would not go into a national panic each time a Chinese dam on the Bramhaputra is mentioned. There is also the matter of having to build over 200 large dams to tap and transport the so-called surplus water over the entire geography of the country. Will the Court fiat overrule all matters of displacement, environment assessment, and other factors on which other benches of the same Court have often upheld the rights of the people? Despite this massive infrastructure to store and divert water, the estimate prepared in 2003 by the National Water Development Agency, which had been commissioned with implementing this scheme, was that only 1,500 cusecs, out of a total of 30,000 to 60,000 cusecs of water in the northern rivers during floods, would be diverted. How is this ever going to be a flood prevention measure? Finally, the rivers which are proposed to be controlled and diverted are not known to follow national boundaries or even the sentiments of India’s various states.
The learned justices of the Supreme Court have opened a Pandora’s Box by handing down such an order. It is necessary for all estates of the republic and all its citizens to come forward to oppose this directive. It is important first of all that the Government of India immediately seek a review and revocation of a judicial order which if implemented even in part will occasion a social, economic, and financial disaster across the country.