Interlinking of Rivers
Chapter Twenty-Two
Syllabus topic 1, "Water"
Pages 89 to 92 of 885
In one line
The idea is to move water from basins that flood to basins that dry, and the Supreme Court has said it cannot order the project to happen but can order the process to move.
In the wording a student can write in an exam: the National Perspective Plan of 1980 proposed thirty river links, sixteen in the Peninsular component and fourteen in the Himalayan component, to transfer water from surplus to deficit basins; in In re Networking of Rivers, (2012) 4 SCC 51, the Supreme Court held that it could not compel the Government to implement a project of this kind, that being a matter of policy, but that where the Government had itself accepted the project in principle it could require the process to be carried forward, and it directed the constitution of a Special Committee for the Inter-Linking of Rivers to plan and implement it in a time-bound manner and to report to the Cabinet twice a year.
Why the idea exists
Because Indian water is unevenly distributed in space and in time.
In space: the Ganga and Brahmaputra basins carry a large share of the country's flow with a small share of its irrigated area, while the peninsular basins are chronically short.
In time: most of the flow arrives in about a hundred days of monsoon, and a river that floods in August is dry in April.
The proposal is to store the surplus and move it. The National Perspective Plan for Water Resources Development, prepared in 1980, has two components. The Peninsular component would link the Mahanadi and Godavari to the Krishna, Pennar and Cauvery, divert west-flowing rivers, and interlink the rivers of Kerala and Karnataka. The Himalayan component would build storages on the Ganga and Brahmaputra and their tributaries in India and in Nepal and link them to the west.
The case
Facts. Writ petitions asked the Supreme Court to direct the Union and the States to implement the interlinking project. The Court had made observations in favour of it in 2002; a Task Force had been set up and had lapsed; and the petitioners complained that nothing was moving.
Held. The Court held that a project of this magnitude is a matter of policy and that a court cannot compel the Government to undertake it. But it held that where the Government has itself accepted the project in principle, and where delay is causing prejudice, the Court may require the process to be carried forward. It accordingly directed the constitution of a Special Committee for the Inter-Linking of Rivers, comprising representatives of the Ministries and of the party States and experts, to plan and implement the project in a time-bound manner, to take decisions on the links, and to report to the Cabinet twice a year, with liberty to the parties to apply.
Interlinking of Rivers
Why it matters here. It is the precise statement of what a court can and cannot do about a resource policy, which is the question MU is really asking when she asks about the role of the judiciary in inter-State water management.
Broken down: the four legal objections
1. Federalism. Water is in Entry 17 of List II. A link takes water out of one State's territory and delivers it to another, and no State can be compelled to part with water except under an award. The Union's power under Entry 56 exists but requires a declaration by law, and the general declaration for inter-State rivers is section 2 of the River Boards Act, 1956, under which no board has ever been set up.
2. What is a surplus? A basin is called surplus by comparing its flow with its own present demand. A State whose basin is called surplus says that its own future demand has been ignored, and that the calculation freezes its development. Kerala, Odisha and the north-eastern States have each said so.
3. Environmental consequence. A link is a canal, a set of storages and a series of lifts. It submerges land and forest, it changes the flow regime of both the donor and the receiving river, it affects the estuary and the fishery of the donor, and it needs clearance under the Environment (Protection) Act, 1986, and the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980.
4. International obligation. The Himalayan component depends on storages in Nepal and affects flows to Bangladesh, so it engages the Ganges Waters Treaty of 1996 and the general international law of an international watercourse.
Worked example
The Ken and Betwa are both tributaries of the Yamuna in the Bundelkhand region. The Ken is said to be surplus and the Betwa deficit. A dam on the Ken would feed a canal to the Betwa.
Step one, whose consent? Madhya Pradesh and Uttar Pradesh, both riparian to both rivers, and the Union which funds and plans.
Step two, what clearances? Environmental clearance under the 2006 Notification, forest clearance under the 1980 Act because the submergence includes forest, and wildlife clearance because a part of the submergence falls in a tiger reserve, which engages sections 35 and 38O of the Wild Life (Protection) Act, 1972.
Step three, whose rights? Those displaced have rights under the 2013 land acquisition Act, and where the land is forest land the Forest Rights Act, 2006, applies and section 4(5) bars eviction until the recognition process is complete.
Step four, what can a court do? Not order the link, and not forbid it. It reviews the decision-making process, on the standard the Lafarge judgment states, and it enforces the conditions of a clearance.
Interlinking of Rivers
Step five, the resource-management point. A link is the most extreme form of allocation there is: it changes which basin the water belongs to. Everything else in this module allocates within a basin. This allocates between basins, and that is why it needs a legal answer to the question of what a surplus is, and there is none.
Distinctions
| An award of a Tribunal | An inter-basin transfer | |
|---|---|---|
| What it does | Divides the water of one basin among its riparian States | Moves water from one basin to another |
| Legal foundation | Section 5 of the 1956 Act; equitable apportionment | Agreement between the States, and Union planning under Entry 56 |
| Consent of the donor State | Not required; the Tribunal decides | Required in practice, and there is no machinery to compel it |
| Can a court order it | It orders the reference, not the result | No. It is a policy decision |
What it does NOT mean
It does not mean the Supreme Court ordered the rivers to be linked. It declined to do that in terms. It directed a committee and a process.
It does not mean the project is under way. The Ken-Betwa link has been agreed between two States and the Union and is the only one that has advanced; the rest remain proposals.
And it does not mean interlinking is only an engineering question. Every one of the four objections above is a legal question, and three of them have no answer in the present law.
Quick revision
The National Perspective Plan, 1980: thirty links, sixteen Peninsular and fourteen Himalayan.
In re Networking of Rivers, (2012) 4 SCC 51: a court cannot compel a Government to implement such a project, that being policy; but where the Government has accepted it in principle the Court may require the process to move. A Special Committee for the Inter-Linking of Rivers was directed, reporting to the Cabinet twice a year.
Four legal objections: federalism and Entry 17 against Entry 56; the meaning of surplus; environmental and forest consequence; and international obligation on the Himalayan component.
Ken-Betwa is the only link that has advanced.
Test yourself
1. What exactly did the Supreme Court direct in 2012? The constitution of a Special Committee for the Inter-Linking of Rivers to plan and implement the project in a time-bound manner and to report to the Cabinet twice a year, with liberty to apply. It declined to order implementation, which it treated as policy.
2. Why is the definition of a surplus basin a legal problem and not only a hydrological one? Because a basin is called surplus by comparison with its present demand, and the donor State says that its own future development has been written off. Nothing in the law decides whose future demand counts.
Interlinking of Rivers
3. Which constitutional entries are in tension? Entry 17 of List II, water as a State subject, against Entry 56 of List I, regulation and development of inter-State rivers to the extent Parliament declares by law.
4. Name three clearances a link would need. Environmental clearance under the Environmental Impact Assessment Notification 2006, forest clearance under the Van (Sanrakshan Evam Samvardhan) Adhiniyam 1980, and clearance under the Wild Life (Protection) Act 1972 where a protected area is affected.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.