General Arthur Cotton’s exhortation in the 19th century to inter-link Indian rivers to streamline export of raw material from India to Britain (and officially, to mitigate the water crisis in South India) was in 1960 re-iterated by Dr. KL Rao and Captain Dastur, although with diametrically opposite ends in mind. Thereafter, the concept of inter-linking the major rivers of India has not escaped the imagination of the political fraternity, from Indira Gandhi to Narendra Modi. The project has captured the intrigue of the judiciary too, with the Supreme Court in In re Networking of Rivers directing the executive to implement the project at the earliest.The recent controversy surrounding the Ken-Betwa river linking, a template for similar projects in the future, has catapulted the question of the ILR Project to the centre of public discourse and the Court’s role thereby assumes greater significance.
Conceptualized as a national water grid, the inter-linking of rivers project (hereinafter ILR Project) seeks to transfer ‘surplus’ water from one basin to a basin facing a water ‘deficit’ to control floods and prevent droughts. The project has however been confined to theoretical musing and largely, for the better. While concerns relating to implementation; land acquisition, environmental degradation, displacement of people amongst others have been raised, this post shall go on to demonstrate how first, the Supreme Court’s direction to implement the ILR project, and second, its implementation itself erodes two founding principles of the Constitution: federalism and the separation of powers.
The Supreme Court has time and again emphasized the importance of the doctrine of separation of powers (though possibly not in its purest form) in the Indian constitutional framework. Fascinatingly, in In re Networking of Rivers, the Court bypassed the elements of restraint embedded in the principle of separation of powers to extend the notion of ‘checks and balances’ to govern not only excesses of state power, but also state inaction. Grounding this extension in a contemporary understanding of positive rights, the seemingly laudable activist, rights-centric role of the Court however diluted the principle of separation of powers under the cloak of judicially reviewing executive inaction. While the Court recognizes that it should abstain from entering the realm of policy (on inter-linking of rivers), in the very same judgment it does the exact opposite. Confronted with the temptations of populism underlying the ILR project, the Court directed (and not merely recommended) “the Union of India and particularly the Ministry of Water Resources, Government of India, to forthwith constitute a Committee to be called a `Special Committee for Inter-linking of Rivers.
Though the Court may justifiably seek to remedy the water scarcity in the country and order the Executive to consider the ILR project, it cannot specify the process through which the right to water ought to be realized. What the Court should do henceforth is withdraw its order passed in 2012 and seek a clarification on the Centre’s stand on the matter at hand, on the efficacy and socio-economic imperatives of the ILR project and its viability. What it cannot do is direct implementation of the project, for that would only blur the dividing lines between the 3 organs of Government and invite conflict between the Executive and the Judiciary, ultimately eroding notions of constitutionalism. Preserving the distinction between ordering the Executive to consider the project, as opposed to implementing it will only aid in protecting the principle of separation of powers.
Now we must turn our attention to the more ‘politico-legal’ question of legislative competence, political conflict and Centre-State relations. The primary entry in the Constitution pertaining to water is Entry 17 of List II (the State list). However, Entry 17 is subject to Entry 56 of List I (the Union list), which empowers the Centre to legislate (regulate and develop) on inter-state rivers if it is imperative in public interest to do so. Any subsequent attempts to launch the ILR project must be tested against the touchstone of federalism for the project would effectively nationalize water.
The Centre and the Court must be careful in preserving the status of the Constitution as a compromise document according to which agrarian States sought to retain their power to regulate ‘water’ as a resource and not vest it in the Centre. The ILR project rebels against the idea of states being quasi-federal units representing the unity of a diverse group of people joined together by the freedom struggle. Instead, it reduces states to a position subservient to the Centre. Allowing the Centre to source its power from Entry 56 to implement the ILR Project (or indeed shift ‘water’ to the Concurrent List) is anti-thetical to the prevalent trend towards de-centralization of power and ‘enhanced federalism’. History has shown us that the Centre has rarely made use of Entry 56, and perhaps for the better, in the interest of maintaining harmony between the Centre and the States, and the States, inter-se. Whether Entry 56 itself should be amended is probably a question best left for further discussion and judicial deliberation. The Centre has however brought about a degree of supervision over State-utilisation of river water. By virtue of Entry 20 of List III [note]The Constitution of India, List III, Entry 20.[/note] (‘economic and social planning’), clearance by the Central government for projects pertaining to flood control, irrigation and hydel-power has almost been made mandatory. While States continue to question the necessity of such Central clearance, the same has shown no signs of relaxation.
A project of such magnitude which strives to nationalize rivers, devoid of consent of the concerned States ignores that we have not even reached that initial stage of co-operative federalism where states located within one basin can be effectively persuaded to share river water. While examples of two states sharing basin waters may be cited, the ILR project would require mutual agreement of multiple states, which is difficult to imagine in the current political environment of India. The tussle between Karnataka and Tamil Nadu, over sharing of the Kaveri waters is possibly symptomatic of the scale of disagreement that may arise between States. Consequently, in the absence of constitutional mechanisms to facilitate the hydraulic inter-connection of States bringing water from distant basins represents the apotheosis of impossibility. This centralization of water can only damage the federal schema of power sharing and with the Centre seeking to avoid State conflict; we are unlikely to witness the first effective usage of Entry 56.
The Modi Government’s $87 billion-dollar plan to inter-link 60 rivers of India does not bode well for our federal scheme. This centralization of water is bound to be ensnared in the quagmire of Centre-State conflict and one hopes that the Centre considers other avenues to solve India’s water scarcity, whether it be water conservation projects, expanded rainwater harvesting or even the National Waterways Project (‘NWP’) which utilizes only surplus flood water that flows unused into the sea. Recently, in 2017, AC Kamraj, head of the National Waterways Development Technology project, proposed the idea of an alternative method of linking rivers, referring to it as the Smart Waterways (under the ambit of the National Waterways Project). A Smart Waterway, entails development of a mechanism wherein inter-linking of rivers is facilitated through a water way built on an even plane, thus facilitating a two-way flow between the rivers so linked. The potential benefits of the NWP also far outweigh that of the ILR Project, with the NWP being able to irrigate greater amounts of land and generate 76% more power than the ILR. It is imperative that constitutional caution be exercised before the ILR Project is implemented.
Rudresh Mandal is a 4th year student of NALSAR University of Law, Hyderabad. He takes a keen interest in the intersection of environmental law and human rights.