Gigantic challenge'

Ranjit Kumar: Nobody can deny the benefits accruing from these projects.-SUSHIL KUMAR VERMA

Interview with Ranjit Kumar, senior advocate and the amicus curiae in the interlinking of rivers case.

Ranjit Kumar, the amicus curiae in the interlinking of rivers case, is a senior advocate in the Supreme Court and has been practising for nearly 32 years. He has been the amicus curiae in about 14 matters before the Supreme Court, including the ones on the cleaning of the Yamuna and the sealing of illegal commercial establishments in Delhi. In this interview to Frontline, he tries to clarify many of the concerns voiced by experts about the Supreme Court's judgment in the interlinking of rivers case.

Critics of the judgment have pointed out that none of the 30 projects being planned has been approved or sanctioned and that none of them is ready for implementation. The delay has been attributed to the divergence of perspectives on the project between the National Democratic Alliance government and the United Progressive Alliance government which succeeded it.

I don't want to get into the political realm of the matter. What had already been achieved was that the peninsular and the Himalayan links had been identified. There are 14 Himalayan links and 16 peninsular links. That apart, most of the rivers are inter-State rivers. After the drawing up of the pre-feasibility reports, which itself took time, there was a bar chart presented by the government as to how much time it would take. The government had given milestone timetables under which the implementation of the project would be completed by December 31, 2016.

The steps required were first, the feasibility study, then funding proposals, then the concurrence of the Chief Ministers of the States and then the completion of the detailed project reports (DPRs). And even in 2002, while the matter was going on in the court, the government informed that feasibility studies in respect of six river links had already been completed. So, I would not like to say that none of the projects is lying in limbo. The Standing Committee of Parliament for Water Resources, which has been noticed in paragraph 24 of the judgment, had asked why the project was at a nascent stage. The committee had strongly recommended going ahead with the project. That was why I sought the court's intervention. Undoubtedly, the ILR [interlinking of rivers] programme is a gigantic challenge, and a momentous one before the Union government.

The report of the National Council for Applied Economic Research (NCAER) appears to be the only basis for the judgment. Does this report adequately assess the gains from ILR for drought prevention and flood control?

The Union of India in all its affidavits filed in the Supreme Court always supported the programme and the NWDA [the National Water Development Agency] continued to function under the aegis of the Secretary, Water Resources. Feasibility reports and DPRs were made, or have been made in the cases of some. Therefore, to say that the NCAER 2008 report is the only basis for the judgment is not correct. The court has definitely lifted from the report's conclusions dealing with the economic aspect and social impact and the benefits arising from the project.

The two basic premises that determined the admission of PIL in this case were that the ILR would lead to drought proofing and flood control and that there was consensus among the States. These two premises have subsequently become vulnerable.

I do not agree that they are vulnerable. Because nobody can deny that there is flooding every year and droughts every year. How much money does the Prime Minister's Relief Fund have to expend to mitigate the devastation caused by floods and droughts? For the last 60 years, can we say that the premises of flooding and drought are vulnerable?

Critics point out that courts cannot lay down the manner in which the right to water should be ensured.

It is not the right to water which is being ensured. What is being ensured is the beneficial aspects of having 40 million hectares irrigated. And when you can have waterways systems, the yearly misery of droughts and floods can be got rid of. Chapter 2 of the NCAER report amply bears this out. It explains the benefits of river valley projects, namely, the Indira Gandhi Canal project, the Tennessee Valley project, the Colorado River Canal system and the Three Gorges dam.

The relationship between the right to water and the ILR project has been described as tenuous.

The judgment itself doesn't say that there is a link between the right to water and the project. The court is only saying that the project is in the national interest. In paragraphs 50, 52, and 63, the court says that these are matters of national interest and national problems should be viewed with greater objectivity, rationality and spirit of service to the nation.

Does the ILR project adequately address the concerns on biodiversity and impact on the environment?

That is why environmentalists are in the task force. They have a big say in the matter. I have attended a few meetings of the task force. Most of the objections pertain to rehabilitation programmes for those being displaced. Therefore, the aspect which relates to rehabilitation will be a part of the project itself as we have seen in other places such as Tehri, and Narmada dam. I don't agree that the project ignores the concerns on the environment and biodiversity. Even if environmentalists say so, they have to give reasons, and the court will look into the reasons. If it is successful all over the world, and specifically in China, Brazil and Pakistan, then surely it cannot be said that it will not be successful here.

Some of the projects may involve international agreements, especially between India and Bangladesh. Has the judgment taken this into account?

There are issues with Nepal and Bangladesh, which will be sorted out. This will be part of the implementation process. Whatever will be required will be done.

Has the court considered the need for clearances under the Environment Protection and Forest Conservation Acts and the National Rehabilitation Policy, and from the Planning Commission and the Cabinet?

These are all in the implementation process. Reports have to be filed. The court will consider the grounds cited by these agencies if they conclude that the project is not feasible and will dwell on it. I can file a contempt, if nothing is happening, for default or for non-compliance of the directions by the Supreme Court as mentioned in Paragraph 64 (XVI) of the judgment.

Did the UPA government make its stand clear to the court on the ILR project despite its reservations?

The government has at no stage expressed any reservation about the project. A few States may have. The Centre has never taken the stand that it is not feasible. It went along, filed status reports about what has been happening and how the matter has progressed. It did not say that it is not feasible or that we should not do it. If the government were to come to such a conclusion that it is not feasible, then it will make a somersault of its earlier position. Nobody can deny the benefits accruing from these projects.

How do you react to the criticism that the ILR can lead to fresh inter-State river disputes and that it may not solve the existing ones?

I have informed the court that in view of the provisions of the River Boards Act, 1956, enacted by Parliament, there is a declaration under Section 2 that the Central government should take under its control the regulation of inter-State rivers and river valleys. Section 13 provides for optimum utilisation of water resources and for promotion and operation of schemes of flood control. Section 15 empowers preparation of schemes to develop inter-State river or river valleys. And this has been noted in Paragraph 58 of the judgment. Therefore, if there is an existence of regulatory framework by the declaration of Parliament, there need not be any inter-State river dispute. The tribunal is not necessary. The Central government can exercise that power. The Central government never applied its mind to this Act when disputes arose and tribunals were set up. When I brought this to the notice of the court, the judges found a way to deal with the matter.

It is pointed out that the Supreme Court has failed to consider the diversity of views on the reasons for India's water crisis and that the ILR may not be the best possible answer.

This judgment does not deal with water crisis. This judgment deals with the benefits arising from interlinking and the malice or misery that is prevailing on account of droughts and floods. This judgment does not deal with the water crisis to the extent of drinking water. But it deals with an aspect that if interlinking takes place, how many million hectares of land will be irrigated.