The Petitioner in Writ Petition (Civil) No. 668 of 2002, a practicing advocate, instituted the petition based on some study that there was a need to conserve water and properly utilize the available resources. The petition had been instituted with the following prayers:
- Issue an appropriate writ order or direction, more particularly a writ in the nature of Mandamus directing the Respondent No. 1 to take appropriate steps/action to nationalize all the rivers in the country.
- Issue an appropriate writ order or direction, more particularly a writ in the nature of Mandamus, directing the Respondent No.1 to take appropriate steps/action to inter link the rivers in the southern peninsula namely, Ganga, Kaveri, Vaigai and Tambaravani.
- Issue an appropriate writ order or direction in the nature of mandamus directing the Respondents to formulate a scheme whereby the water from the west flowing rivers could be channelized and equitably distributed.
After discussing the facts, stated recommendations and principles, the Supreme Court observed that primarily there is unanimity between all concerned authorities 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 convincingly dispel all other impressions. There shall be greater growth in agricultural and allied sectors, prosperity and stimulus to the economy potentially causing increase in per capita income, in addition to the short and long term benefits likely to accrue by such implementation. These would accrue if the expert recommendations are implemented properly and within a timeframe. Then there shall be hardly any financial strain on the economy.
The National Commission for Review of the Working of the Constitution (NCRWC) 2002 in its Report also dealt with another important facet of river interlinking i.e. sharing of river waters. Explaining the doctrines of river sharing, it described Doctrine of Riparian Rights, Doctrine of Prior Appropriation, Territorial Integrity Theory, Doctrine of Territorial Sovereignty, English Common Law Principle of Riparian Right, Doctrine of Community Interest, Doctrine of Equitable Apportionment. It also explained that when determining what a reasonable and equitable share is, the factors which should be taken into consideration. In that behalf, it specifically referred to agreements, judicial decisions, awards and customs that already are in place. Furthermore, relative economic and social needs of interested states, volume of stream and its uses, land not watered were other relevant considerations. Thus, it will be for the expert bodies alone to examine on such issues and their impact on the project.
The national interest must take precedence over the interest of the individual States. 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 to the nation at large.
Under the constitutional scheme, there is a clear demarcation of fields of operation and jurisdiction between the Legislature, Judiciary and the Executive. The Legislature may save unto itself the power to make certain specific legislations not only governing a field of its legislative competence as provided in the Seventh Schedule of the Constitution, but also regarding a particular dispute referable to one of the Articles itself. Article 262 of the Constitution is one of such powers. Under this Article, the Parliament, by law, can provide for the adjudication of any dispute or complaint with respect to the use, distribution and control of water of any inter-state river or river valley.
Article 262(2) of the Constitution open with a non-obstante expression, that ‘notwithstanding anything contained in the Constitution, Parliament may by law -provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any dispute or complaint as referred to in Article 262(1). In other words, the Parliament can reserve to itself, the power to oust the jurisdiction of the courts, including the highest Court of the land, in relation to a water dispute as stated under this Article. The jurisdiction of the Court will be ousted only with regard to the adjudication of the dispute and not all matters incidental thereto. For example, the Supreme Court can certainly direct the Central Government to fulfill its statutory obligation under Section 4 of the Act, which is mandatory, without deciding any water dispute between the States. [ Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam v. Union of India and Ors. AIR 1990 SC 1316].
The River Boards Act, 1956 was enacted by the Parliament under Entry 56 of List I. The Inter-State Water Disputes Act was also enacted with reference to the same Entry. Whereas the mandate of the latter is to provide a machinery for the settlement of disputes, the former is an Act to establish Boards for the Regulation and development of inter-State river basins, through advice and coordination, and thereby to reduce the friction amongst the concerned States. It is this kind of coordination which is required to be generated at all levels to implement the inter-linking of rivers program, as proposed. Huge amounts of public money have been spent, at the planning stage itself and it will be travesty of good governance and the epitome of harm to public interest, if these projects are not carried forward with a sense of sincerity and a desire for its completion.
A greater element of mutuality and consensus needs to be built between the States and the Centre on the one hand, and the States inter se on the other. It will be very difficult for the Courts to undertake such an exercise within the limited scope of its power of judicial review and even on the basis of expanded principles of Public Interest Litigation. A Public Interest Litigation before the Court has to fall within the contours of constitutional law, as no jurisdiction is wider than the Supreme Court’s constitutional jurisdiction under Article 32 of the Constitution. The Court can hardly take unto itself tasks of making of a policy decision or planning for the country or determining economic factors or other crucial aspects like need for acquisition and construction of river linking channels under that program. The Court is not equipped to take such expert decisions and they essentially should be left for the Central Government and the concerned State. Such an attempt by the Court may amount to the Court sitting in judgment over the opinions of the experts in the respective fields, without any tools and-expertise at its disposal. The requirements in the present case have different dimensions. The planning, acquisition, financing, pricing, civil construction, environmental issues involved are policy decisions affecting the legislative competence and would squarely fall in the domain of the Government of States and Centre.
The Supreme Court thus recommended that the projects are in the national interest. It will not only be desirable, but also inevitable that an appropriate body should be created to plan, construct and implement the inter linking of rivers program for the benefit of the nation as a whole.
The Court thus issued the following directions:
“(I) We direct 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’ (hereinafter referred as ‘the Committee’) of which, the following shall be the Members:
(a) The Hon’ble Minister for Water Resources.
(b) Secretary, Ministry for Water Resources.
(c) Secretary, Ministry of Environment and Forests.
(d) Chairman, Central Water Commission.
(e) Member-Secretary, National Water Development Authority.
(f) Four experts to be nominated, one each from the following Ministries/bodies:
(i) One Expert from the Ministry of Water Resources
(ii) One Expert from the Ministry of Finance
(iii) One Expert from the Planning Commission
(iv) One Expert from the Ministry of Environment & Forests.
(g) Minister for Water and/or Irrigation from each of the concurring States, with the Principal Secretary of the concerned Department of the same State.
(h) The Chief Secretary or his nominee not below the rank of the Principal Secretary of the concerned Department in case of any other State involved directly or indirectly in the water linking river project.
(i) Two social activists to be nominated by each of the concerned Ministries.
(j) Mr. Ranjit Kumar (Amicus Curiae).
(II) The Committee shall meet, at least, once in two months and shall maintain records of its discussion and the Minutes.
(III) In the absence of any person from such meeting, irrespective of his/her status, the meeting shall not be adjourned. If the Hon’ble Minister for Water Resources is not available, the Secretary, Ministry of Water Resources, Government of India, shall preside over the Meeting.
(IV) The Committee would be entitled to constitute such sub-committees, as it may deem necessary for the purposes of carrying on the objects of the Inter-Linking of River Program, on such terms and conditions as it may deem proper.
(V) The Committee shall submit a bi-annual report to the Cabinet of the Government of India placing before it the status-cum-progress report as well as all the decisions required to be taken in relation to all matters communicated therewith. The Cabinet shall take all final and appropriate decisions, in the interest of the countries as expeditiously as possible and preferably within thirty days from the date the matters are first placed before it for consideration.
(VI) All the reports of the expert bodies as well as the status reports filed before this Court during the pendency of this petition, shall be placed before the Committee for its consideration. Upon due analysis of the Reports and expert opinions, the Committee shall prepare its plans for implementation of the project.
(VII) The plans so prepared shall have different phases, directly relatable to the planning, implementation, construction, execution and completion of the project.
(VIII) We are informed that large sums have been spent on preparation of initial and detailed project reports of the project ‘Ken-Betwa Project’. The DPR is now ready. The States of Madhya Pradesh and Uttar Pradesh and also the Central Government had already given their approval and consent. The clarifications sought will be discussed by the Committee. We would direct the Committee to take up this project for implementation at the first instance itself.
(IX) Keeping in view the expert reports, we have no hesitation in observing and directing that time is a very material factor in the effective execution of the Interlinking of Rivers project. As pointed out in the Report by NCAER and by the Standing Committee, the delay has adversely affected the financial benefits that could have accrued to the concerned parties and the people at large and is in fact now putting a financial strain on all concerned.
(X) It is directed that the Committee shall take firm steps and fix a definite timeframe to lay down the guidelines for completion of feasibility reports or other reports and shall ensure the completion of projects so that the benefits accrue within reasonable time and cost.
(XI) At the initial stages, this program may not involve those States which have sufficient water and are not substantially involved in any inter-linking of river programme and the projects can be completed without their effective participation.
(XII) However, the Committee may involve any State for effective completion of the programme at any subsequent stage.
(XIII) There are projects where the paper work has been going for the last ten years and at substantial cost to the public exchequer. Therefore, we direct the Central and the State Governments to participate in the program and render all financial, administrative and executive help to complete these projects more effectively.
(XIV) It is evident from the record that the Reports submitted by the Task Force have not been acted upon. Thus, the entire effort put in by the Task Force has practically been of no use to the concerned governments, much less the public. The Task Force has now been wound up. Let the reports of the Task Force also be placed before the Committee which shall, without fail, take due note of the suggestions made therein and take decisions as to how the same are to be implemented for the benefit of the public at large.
(XV) The Committee constituted under this order shall be responsible for carrying out the inter-linking program. Its decisions shall take precedence over all administrative bodies created under the orders of this Court or otherwise.
(XVI) We grant liberty to the learned Amicus Curiae to file contempt petition in this Court, in the event of default or non-compliance of the directions contained in this order.”
The Supreme Court also issued a mandamus to the Central and the State Governments concerned to comply with the directions contained in the judgment effectively and expeditiously and without default.