By Indranil Banerjea
The Supreme Court, in its activist avatar, has given many directions which are viewed as clear usurpation of the role of the executive and that of the legislature. The latest one is its direction to inter-link rivers. As per its judgment, a committee is to be formed within one month (the judgment was delivered on February 27) to examine the project and suggest ways to implement it. On March 19, the Union minister of state for water resources told Parliament that the committee has not been set up as the government is yet to get a signed copy of the judgment. Will the judgment be implemented?
Debate over the separation of powers has been going on for long, and many a time, it has acquired acrimonious dimension. Even the prime minister, Dr. Manmohan Singh, on two different occasions, accused the judiciary of overreach. Often the legislature and the executive have complained of judicial activism which breaches the doctrine of separation of powers. All allegations of encroachment by the judiciary into the arenas of legislature and executive may not be correct as there are grey areas and the court is constitutionally bound to see to it that the law of the land is enforced. But sometimes, the encroachment is glaring and unconstitutional out and out.
Recently, the Supreme Court issued a writ of mandamus directing the Union and state governments to implement the project of inter-linking of rivers, and set up a special committee to carry out the implementation laying down that the committee’s decision shall supersede all administrative bodies created under the order of this court or otherwise and imposed a time limit of 30 days but graciously added “preferably”. It also gave liberty to the amicus curiae to file contempt petition in case of non-compliance or default by any party. This is a blatant intrusion into the policy domain of the government. It is not only beyond the jurisdiction of the Supreme Court to give such directions but also beyond its competence to examine its implementation. Such a project with huge ramifications that may cause severe law-and-order problem as it may spawn internecine wars between states has to be examined by appropriate agencies and has to obtain statutory clearances under the Environment Protection Act and the Forest Conservation Act, and then it has to be ensured that procedure prescribed in the national rehabilitation policy is adhered to. Further, the technical feasibility is to be studied which the court is not equipped to do as it cannot direct a doctor how to operate upon a patient for a particular malady. Finally, its economic viability is to be examined by the Planning Commission from the national planning point of view, and only then the cabinet can take a decision.
The first direction, in this regard, was given by a bench headed by the then chief justice of India, Mr Justice (retd) B. N. Kirpal on October 31, 2002. Mr. Justice Kirpal superannuated the very next day and later when he was asked at the National Law School, Bangalore, as to how did he give such a direction which does not fall within its jurisdiction, he proffered an apologia that his order was not a direction but merely a recommendation. However, the Supreme Court gave a definitive direction to inter-link rivers which may never be implemented. Such judgments dent the credibility of the judiciary and then even those orders are not complied which must be complied.
The proposal of interlinking rivers is a purely policy issue falling within the domain of the legislature and that of executive. Earlier, the Supreme Court conceded this and said that it was not open to the court to direct Parliament to legislate on it but kept the case open stating further: “The parties are at liberty to file in court any reports or papers containing studies in respect of the said project.” The court also drew its own inferences conveniently. It issued notices to the Union and all states, but only the Union and the State of Tamil Nadu filed affidavits. In a typical display of petitio principii, the court concluded that the non-filing of counter affidavits by other states meant that they do not oppose the prayer for interlinking rivers, and thus, there was a consensus for it. If such conclusions can be drawn, the court should not adjourn cases when counter-affidavits are not filed. What is more, the court also recorded its anguish that the project should not take 43- years for completion as the perspective plan indicated in the report of the National Water Development Agency in May 2000 showed and it expressed the hope that it would be done in ten years.
When the Bihar Reorganisation Act, 2000, under which the state of Jharkhand was carved out of Bihar, was challenged on grounds of attracting several constitutional provisions, the Supreme Court issued notices to the Union and the state of Jharkhand, but neither filed the counter-affidavit. However, the case was never listed for hearing; leave alone the court concluding that they were not opposed to the prayer made in the PIL for setting aside the bifurcation of Bihar. The fact is that no state is prepared to part with its water. Tamil Nadu supports this project because it has to receive, not give, water. However, it also must be admitted that the then NDA government at the Centre wanted to carry forward this project and used the observation of the apex court in its favour, while the water-starved state of Tamil Nadu wanted it completed by judicial fiat.
Many water-deficit states now want the Supreme Court’s direction to be carried out without delay. In about ten years, only nine states replied to the Supreme Court’s notice: three states (Assam, Sikkim and Kerala) said flat “no” to the proposal, three (the Punjab, Bihar and Odisha) gave conditional okay, but the conditions are such that it cannot be done and only three states (Tamil Nadu, Rajasthan and Gujarat) said “yes” but out of these three, Rajasthan and Gujarat have refused to share their water so far with other states; they want to take, not to give. Thus, Tamil Nadu is the only state which supports this proposal as it has to only receive water, not give it. It is almost certain that the order of the apex court will be implemented in defiance. INAV