Inter-linking of rivers: Making the Supreme Court order work
N Sathiya Moorthy
29 February 2012
In ordering the Centre and State Governments to work on the inter-linking of rivers, the Supreme Court has set a tall order for the Executive at a time when efficiency is not at its peak at any level, and when issues of Centre-State and intra-State relations have been mired in debates and disputes going beyond the pale of democratic discourse. It is not only that the proposed scheme would require political will at the top, as has mostly been the case whenever the Apex Court issues directions to the Union of India, but there has to be commitment of the kind all across the political and administrative spectrum in most, if not all, parts of this vast country.
The Supreme Court order could not have come at a more needed time in the nation's socio-economic history. It has also come at a time when more and more States have been assertive vis a vis the Centre with greater regularity and equal stridency than at any time in the post-Independence past. Droughts and floods have alternated over centuries, yes, but it is in recent decades that over-exploitation, necessitated by demands of a burgeoning population and economy, have made water a more scarce commodity compared to the previous day, not just the previous generation or century. A Supreme Court order on a sensitive yet important issue of the nature thus eases the pressure on the Centre in having to convince and carry individual States, regions and sub-regions in the process.
For starters, the Court has recorded the consent and desire of most States on the inter-linking of rivers. "It is clear that primarily there is unanimity among all authorities concerned, 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 dispel all other impressions," a three-Judge Bench, comprising Chief Justice S K Kapadia, and Justice A K Patnaik and Swatanter Kumar said in their order. Accordingly, the Apex Court observed, "There shall be greater growth in the agricultural and allied sectors, prosperity and stimulus to the economy, potentially causing (an) increase in per capital income, in addition to the short and long-term benefits."
According to a news report in The Hindu, the Bench said that if the expert recommendations were implemented properly and within a time-frame, there would hardly be any financial strain on the economy. "On the contrary, such implementation would help in the advancement of India's GDP and bring greater wealth and prosperity to the nation as a whole. We have no hesitating in observing that the national interest must take precedence over the interests of individual States," the Bench said adding, "The State Governments are expected to view national problems with a greater objectivity, rationality and spirit of service to the nation, and ill-founded objections may result in greater harm, not only to the neighbouring States but also the nation at large."
The 'federal question'
Though not directly connected, the Supreme Court order came a day after the Centre withdrew a proposal to form a National Counter-Terrorism Centre (NCTE) following objections raised by nine States, citing federal principles. Such principles have not ordinarily interfered with past decisions and directions of the Supreme Court. Instead, as the watch-dog of the Constitution, the Apex Court not only interprets such federal principles but also crafts them wherever and whenever a lacuna is found. There has also not been any instance of any State, and not certainly the Centre, citing such extraneous reasons and circumstances, for not obeying the Apex Court orders, or those of the High Courts concerned, even where principles of federalism and the representative character of the State Governments are involved. In the case of the High Courts, they have moved the Supreme Court. Afterward, they may have filed a review petition -- but the matter had always rested there.
Yet, as coincidence would have it, the very day the First Bench of the Supreme Court was passing its final order on the inter-linking of rivers, a five-Judge Constitution Bench was urging the Governments of Kerala and Tamil Nadu to cooperate with the court-appointed committee to study and report back on the safety of the Mullaperiyar dam. Pointing out that the Empowered Committee headed by former Chief Justice of India, A S Anand, had reported lack of cooperation from the two States, the Bench, chaired by Justice D K Jain, urged counsel for Kerala and Tamil Nadu to cooperate with the committee and allow it to complete its work.
While taking the expected cooperation of the two State Governments at face-value, the committee did not seem to have provided for public protests in Tamil Nadu and Kerala pressuring their elected rulers on what has become a sensitive livelihood issue in the former and 'life-saving issue' in the latter. That is also the crux of the 'Mullaperiyar dispute', where the Apex Court is already involved. The irony of the situation is that at every new phase in the course of the pending case, the Supreme Court has been constrained to appoint one committee after another to study issues and concerns that had purported to have been addressed by an earlier one. A Supreme Court Bench, headed by then Chief Justice K G Balakrishnan, had named the Justice Anand Committee.
Earlier, the court had drawn upon the expertise of the Central Water Commission (CWC) and other technical authorities of the Union of India for the purpose -- and ruled that the dam was safe to store water up to 136' for now, to be increased in phases to 141' and the original 152' feet -- as had been argued by the Tamil Nadu Government. The Supreme Court declared that the dam was 'safe' after an expert committee had studied the dam structure and recommended measures to strengthen the same, to assuage the decades-old concerns of the Government and people of Kerala. Post-restoration, court-appointed committees had cleared the reservoir before the Apex Court gave its go-ahead for restoring the storage-level.
Cauvery, Ravi-Beas, Teesta and Ganga
The Mullaperiyar is not even about the sharing of waters between riparian States, as would happen in any inter-linking of rivers yet public protests were seen as forcing the hands of respective State Governments. Neither Kerala, nor Tamil Nadu, has disputed, at least not for now, the quantum-share of water either. The story of the 'Cauvery water dispute', again involving water-started Tamil Nadu incidentally, is different. Not only have the Centre and the Supreme Court appointed technical committees and panels under the Inter-State River Water Disputes Act to try and solve the problem, the two have also alternated in taking the lead in trying to resolve the problem, either through litigation or through negotiations. After a time, the Centre and/or the Supreme Court was/were seen seeking the intervention of the other to a greater or a lesser degree than in the past, to try and resolve what had become an emotive issue between Tamil Nadu Karnataka, but also involving two other lower riparian States, namely Kerala and the Union Territory of Puducherry.
What however stands out in this case is the fast-unto-death launched by Tamil Nadu Chief Minister Jayalalithaa during her first innings in office (1993), and the large-scale anti-Tamil violence across Karnataka (1991), in which hundreds were butchered and their businesses and other property burnt, purportedly with the connivance of the State Government in Bengaluru, then Bangalore. While the subsequent 'Gujarat riots' cases (2001) are being agitated both in courts and in public forums, nothing was done to address the Tamil grievances after the 'Karnataka riots' a decade earlier. The fact that slain brigand Veerappan, then in the company of pan-Tamil militants, put forth demands regarding anti-Tamil sentiments in Karnataka for him to free abducted Kannada matinee icon Rajkumar (2000) should not be overlooked, either.
The issues involved in the sharing of the Ravi-Beas waters among the northern States of Punjab, Haryana, Rajasthan and Jammu and Kashmir was no different, but it turned out to be less emotive in comparison. Yet, the concerns of the riparian farmers and the consequent pressure on the political leadership of the States concerned, was no less formidable. In between, then Chief Minister Laloo Prasad flatly declined suggestions for Bihar having to route excess waters of the Ganga under a proposal to link the nation's rivers -- thus minimising floods in the North and irrigating and quenching thirst in the rest of the country. With the Brahmaputra too listed as among the water-rich rivers that could be diverted, it remains to be seen how the existing riparian States, and also those through which the proposed link-canals would flow, would react to specifics. In the case of the Brahmaputra, drawing of 'excess waters' would also be linked to the conditions of the upper riparian in China and the expectations of the lower-riparian, Bangladesh.
In more recent weeks, West Bengal Chief Minister Mamata Banerjee has raised issues over the sharing of the Ganga waters with neighbouring Bangladesh, where international law and precedents pertaining to lower-riparian States, and also foreign policy priorities of the Union are also involved. Late last year, the Chief Minister caused avoidable embarrassment to the country and also caused eyebrows to be raised not only by the polity but also the India-friendly sections of the Bangladesh population, when she dropped out of Prime Minister Manmohan Singh's entourage to Dhaka, where he was scheduled to sign the Teesta water-sharing treaty with his counterpart, Begum Hasina. The treaty itself had to be suspended then, and is being re-negotiated since, under pressure from West Bengal, though the State under the erstwhile Left Front Government had no reservations.
Clearly, Chief Minister Banerjee did not want to be seen as giving away scarce water resources to a neighbouring country, even if of the same Bangla blood, by which she otherwise swears -- owing to practical reasons, and political, too. Considering that her State was in the throes of the nation's worst drought that claimed a million lives in the early forties, no Chief Minister in her place would want to be charged with something that they could not politically defend before their people. So much so, the West Bengal Government has since indicated doubts over the cause for the breakage in two of the sluice-gates on the Farakka Barrage, letting off water to Bangladesh -- a direct or indirect affront on the Centre, this.
Controlling the levers of water-release
It is in this background that the committee proposed by the Supreme Court to implement the inter-linking of rivers and report back every six months has to draw up discussion papers and working models, if the project has to make any headway. As was seen during various stages of the Cauvery water dispute, the Mullaperiyar issue and the 'Alamatti row' involving Karnataka and Andhra Pradesh, the question is not always about the sharing of river waters. It is even more about the control of the storage, which seems to give individual States a vicarious sense of security while thinking of drought years that could be far away.
The 'Alamatti row' related to complaints from Andhra Pradesh that Karnataka as the upper riparian on the Krishna was raising the dam-height and thus storage without prior consultations and concurrence. A proposal for an additional dam across the Cauvery has been pending for years, as both Karnataka and Tamil Nadu readily agree to the need and possibility for one, but would want it located within their respective territory. Tamil Nadu also took up with the Cauvery Water Tribunal the issue of Karnataka dredging and deepening the river's canals and tanks with World Bank aid. The work would have facilitated larger storage within Karnataka, thus possibly depleting the storage in its reservoirs, and thus providing perverted justification for denying Tamil Nadu the share allocated since by the Tribunal and attested by the Apex Court.
The fact that those drought years have been more frequent than acknowledged, and also the fact pressured by the people, politicians and even film personalities join mass protests, would mean that the logic, however skewed, has to be the expected line.In the late Seventies, when the Janata Party Government of Prime Minister Morarji Desai came up with a proposal for a 'Garland Canal', the cost was put at a high Rs 25,000 years, for works spread over 25 years. Subsequently, studies on inter-linked river projects have put the cost variously at Rs 1 lakh-crore to Rs 3.5-lakh crore. Today, a fresh estimate could put the cost astronomically high, going by present-day prices, costs and wages.
Whether the Centre and/or States put together would be able to come up with the funds for the purpose, or if they would be able to raise the kind of moneys required for the project, even if spread out over years and decades, remains to be seen. The global economic and fiscal scenes do not seem all that promising, though as a project it is the kind of technological challenge and execution opportunity that any international consortium would be keen to be identified -- not that the money that they would earn is going to be small.A special purpose vehicle could also be considered.
With the Centre expending tens of thousands of crores of rupees on NRLEGP (National Rural Landless Employment Generation Programme) each year, the money could be put to good use if the beneficiaries are deployed to work on the project, as and when launched. Independent of this, a project of this magnitude could employ tens of thousands of people at all levels -- followed by maintenance projects and expanded farming and allies industries, not to speak of the capacity for hydro-power generation. Yet, given the practicality of large-scale shortage of manual labour at all levels and in all sectors, the authorities should undertake a honest study of the hand required for executing such a massive and prestigious national project -- and the number of hands available on any given day, what with an increasingly urbanised India not being able to supply enough labour to meet its own daily needs, anywhere in the country.
Commercialisation of water
In a globalised world, anything is possible -- and there lies an ideological and sociological hitch.The Supreme Court verdict comes at a time when the Centre has circulated a draft law that amounts to privatisation of water as a commercial commodity, in terms of exploitation, storage and distribution. Independent of the basic issues involved in the privatisation of water as a resource, there is a need for clarity, based on a careful study, if inter-linking of rivers should be a State-sponsored project or a private sector initiative, or a joint venture -- delineating in the process the rights and privileges of individual stake-holders.
In a reforms-minded India, where subsidies have become a 'bad word' for some policy-planners, questions will be asked on making a massive project on inter-linking of rivers to pay for itself, post facto. The political masters who had heralded economic reforms in the early Nineties at the national-level and championed the same further down in the States, have begun taking a pragmatic political view of things, where votes hurt. They have seemingly learnt the difference between economic reforms and fiscal reforms -- the former loosely facilitating foreign investments, and the latter relating to social subsidies.
It may be one thing to promote a hygiene-based concept of bottled water that even the man on the street prefer to pay for in an increasingly urbanised India. It is another to expect the small-scale farmer to pay high prices for irrigation water, based on the cost of construction and maintenance of the river-link project. The alternative to subsidised, if not continued free flow of irrigation water, hoping the higher farm production to push the GDP, will be a situation in which corporatisation of the farm sector through acquisition of small and unaffordable land-holdings could become inevitable and at times justifiable. It is again a socio-political issue that the policy-maker, rather than the policy-planner would have to decide upon.
Tweaking in political pragmatism
It has long since been said that future wars the world over will be fought not over land or national pride, but over water. Within the country, there have been enough instances to prove that the dictum might be right, after all. Yet, the nation has been tweaking ad hoc solutions seeking to address an isolated episode on hand -- rather than taking a broad-frame approach to address the basics -- be it of varied concerns or various hydrological, legal and constitutional issues. The fact that those ad hoc solutions too have not worked on the ground should be overlooked.
Politics at the national-level has come a long way since the then Chief Minister of Madras, the late K Kamaraj, said that the State had nothing to fear from neighbouring Mysore building new dams across the Cauvery. It was in the mid-Fifties, and his confidence was based on the mere fact that the monolithic Indian National Congress (INC) was in power at the Centre and also both the States, as much of the rest of India. Today, Madras State has become Tamil Nadu, and Mysore, Karnataka. Everything else too has changed. Not just the Congress but also the rival Bharatiya Janata Party (BJP), and so do the third group of Left national parties, have their State units taking different positions on inter-State disputes, particularly involving the sharing of river waters. Their national leaderships on most occasions are found wanting not only for a clue but even for words.
Better or worse still, they have also been shifting positions while in power and in the Opposition. The BJP's position on the 'Sethusamudram Project' is a case in point. As Prime Minister, Atal Behari Vajapyee announced the Centre's clearance to the project and its specifics from a public platform in Madurai, Tamil Nadu. Once in the Opposition, his BJP took a different position, altogether -- that too after a substantial portion of the work had been completed. It was so also with the AIADMK in Tamil Nadu, which had demanded the project, like all other Dravidian parties in the State for long, but publicly opposed it once it was launched -- when the party was in the Opposition.
Less said about the complexities attending on the Centre's decision on such matters in these days of 'coalition politics' the better. Not only does it become essential for the leading partner of the ruling coalition, but also the Government at the Centre by extension to yield to pulls and pressures from other partners. It has come to a stage where the pressures brought upon by a regional partner on a national government is proportionate not to the relative merits of the project or issue involved. Instead, it is based on the relative strength of such a partner to the continuance and stability of the Government at the Centre. Here, not just hard numbers but the relative equations, both in terms of respective numbers and mutual dependency in terms of the States concerned, also matter.
It is in such circumstances that the Centre and the States will have to make an ambitious yet absolutely necessary project such as the inter-linking of river work, and work fast. As the course of the pending river water disputes have demonstrated, there are ad hoc problems and ad hoc solutions -- larger issues still awaiting permanent resolution. These involve the upper riparian releasing excess water in a rain-surplus year and the lower riparian complaining of inadequate receipts in a poor-rainfall year or season. A lot will thus depend not only on the ingenuity of the Centre as the authority responsible for the execution of the Supreme Court order, but also on the interventionist mechanisms that the latter too may have to innovate and design -- and at times divine -- to make the nation's collective dream come true!
(The writer is a Senior Fellow at Observer Research Foundation)