Supreme Court of India
IN RE : NETWORKING OF RIVERSversus.
- Citation
- 2012 INSC 109
- Decided
- 27 February 2012
- Disposal
- Disposed off
- Bench
- S H KAPADIA
Holding
The Court held that while it cannot adjudicate water disputes reserved to Parliament under Article 262, it may direct the Union and States to constitute a special committee and take steps to implement inter‑linking of rivers in the national interest, without mandating specific policy decisions.
Summary
The Supreme Court entertained a public‑interest writ petition seeking directions to the Union and several State governments to nationalise rivers and inter‑link them for flood control and drought mitigation. The petitioners relied on the National Water Policy, the 1980 National Perspective Plan and various feasibility reports identifying 30 inter‑linking projects. The Court examined the constitutional limits of its jurisdiction, particularly Article 262 which allows Parliament to bar judicial interference in water‑dispute adjudication, and held that it could not dictate specific policy choices but could ensure implementation of a programme deemed in the national interest. It observed that most States had expressed consensus, though some reservations existed, and that an expert‑driven body was necessary to coordinate planning, financing and execution. Consequently, the Court ordered the Union to constitute a ‘Special Committee for Inter‑linking of Rivers’ with a detailed composition and mandated it to submit periodic reports, while dismissing the writs with directions and no costs.
Issues considered
- Can the Supreme Court, under Article 32, issue a mandamus directing the Union and State governments to implement river inter‑linking and nationalisation?
- Does Article 262 of the Constitution bar the Court from intervening in water‑related disputes and policy matters concerning inter‑state rivers?
- To what extent may the Court direct policy‑oriented actions, such as the creation of a coordinating committee, without overstepping its judicial review powers?
- Can the reservations of individual States be overridden in favour of the national interest in the context of inter‑linking rivers?
- Is the formation of a special committee an appropriate remedy to ensure the execution of the inter‑linking programme?
Legislation cited
Subjects
interlinking of riverswater resources managementpublic interest litigationArticle 262Article 32federalismenvironmental lawjudicial reviewnational water policywater disputes
Judgment
[2012] 1 S.C.R. 1118
A "IN RE : NETWORKING OF RIVERS"
(Writ Petition (Civil) No. 512 of 2002)
FEBRUARY 27, 2012
[S.H. KAPADIA, CJI, A.K. PATNAIK AND
8 SWATANTER KUMAR, JJ.)
CONSTITUTION OF IND/A, 1950:
Art. 32 - Writ petitions seeking directions to Central and
C State Governments for effective management of water by
nationalisation and inter-linking of rivers - Held: Government
of India has framed National Water Policy - Further, a
National Perspective Plan has been formulated for optimum
utilization of water resources in the country which envisaged
inter-basin transfer of water from water-surplus to water-deficit
0 areas - River linking plan in its ultimate stage of development
will also enable flood moderation - 30 links have been
identified - Huge amounts of public money have been spent
- These projects are to be completed with a sense of sincerity
and a desire for its completion - Keeping in view the relative
E economic and social needs of interested States, volume of
stream and its uses, land not watered, and other relevant
considerations, it will be for the expert bodies atone to
examine on such issues and their impact on the project -
Courts have their limitations to undertake such an exercise
F within the scope of-its power of judicial review and even on
the basis of expanded principles of public interest litigation -
It will not only be desirable, but also inevitable that an
appropriate body should be created to plan, construct and
implement this inter-linking of rivers program for the benefit
G of the nation as a whole - Union of India directed to constitute
a Committee to be called a 'Special Committee for Inter-
linking of Rivers' with the composition as suggested in the
judgment - The Committee so constituted shall take such
steps as specified in the judgment and submit reports to the
H 1118
"IN RE: NETWORKING OF RIVERS" 1119
Cabinet of the Government of India - Central and the State A
Governments concerned directed to comply with the directions
contained in the judgment effectively and expeditiously -
Inter-State Water Disputes Act, 1956 - River Boards Act, 1956
- Public interest litigation - Judicial review - Sepration of
powers. B
Art. 262, Seventh Schedule, List I, Entries 56, and 97,
List II, Entry 17 and List Ill, Entry 20 - Adjudication of disputes
relating to waters of intercState rivers - Inter-linking of rivers -
Held: By and large, there is unanimity in accepting interlinking
of rivers but the reservations of the States concerned can also C
not be ignored, being relatable to their particular economic,
geographical and socio-economic needs - These are matters
which squarely fall within the domain of general consensus
and, thus, require a framework to be formulated by the
competent Government or the Legislature, as the case may D
be, prior to its execution - By virtue of Art. 262 read with Entries
56 and 97 of List I Entry 17 of List II and Entry 20 of List Ill,
Parliament gets wide field of legislation relatable to various
subjects, including regulation and development of inter-State
rivers and to create adjudicatory mechanism. E
In the instant writ petitions filed in public interest,
directions were sought against the Central Government
and the State Governments concerned for effective
management of water resources by nationalization and
F
interlinking of rivers in the country. Notice was issued
to all the States and the Attorney General for India inviting
their stance on the issue of networking of rivers. On
31.10.2002, the Court recorded that there was, in
principle, consensus amongst all the States to go ahead
with the project of interlinking of rivers. A high level Task G
Force was set up. Feasibility Reports (FRs) were prepared
for the intended links. A total number of 30 links were
identified: 16 under the peninsular river development
component and 14 under the Himalayan river
development component. FRs of 16 links were placed on H
1120 SUPREME COURT REPORTS (2012] 1 S.C.R.
A the website. The status report filed on behalf of the
Government of India showed that a committee of
environmentalists, social activists and other experts
would be constituted to be involved in the consultative
process of formulation and execution of the entire
B project. The status reports filed from time to time were
considered by the Court.
Disposing of the writ petitions, connected IAs and
the contempt petitions, the Court
C HELD: 1.1 The Government of India has always
shown considerable concern regarding the management
of water resources in the country and had framed, for this
purpose, the National .Water Policy, which seeks to make
available water supply to those areas which face
D shortages. This aspect of the matter could be effectively
dealt with, only if the various rivers in the country are
linked and are nationalized. The Ministry of Irrigation,
along with the Central Water Commission, had formulated
in the year 1980 a National Perspective Plan (NPP) for
E optimum utilization of water resources in the country
which envisaged inter-basin transfer of water from water-
surplus to water-deficit areas. Apart from diverting water
from rivers which are surplus, to deficit areas, the river
linking plan in its ultimate stage of development will also
F enable flood moderation. [para 8-9] [1130-E-H; 1131-A-B]
1.2 It is significant to notice that till date no minor or
major project has been actually implemented at the
ground level despite the fact that this case has been
pending before this Court for more than ten years. Only
G the DPR of the Ken-Betwa link has been prepared and
its implementation is awaiting the approval of the State
Governments as well as the allocation of funds, even to
begin the work. This does not speak well of the desire
on the part of any of the concerned Governments to
H implement these projects, despite the fact that there is
"IN RE: NETWORKING OF RIVERS" 1121
unanimity of views among all that this project is in the A
national interest. Though, it is not difficult to visualize the
difficulties in preparation, execution, financing and
consensus building, still, it is the need of the hour to carry
out these projects more effectively and with greater
sensitivity. [paras 26 and 34] [1138-F-H; 1139-A; 1141-B] B
1.3 The National Council for Applied Economic
Research (NCAER) report clearly opines that interlinking
of river projects will prove fruitful for the nation as a
whole and would serve a greater purpose by allowing
higher returns from the agricultural sector for the benefit C
of the entire economy. This would also result in providing
of varied benefits like control of floods, providing water
to drought-prone States, providing water to a larger part
of agricultural land and even power generation.
However, when coming to the financial aspect of the D
programme, two concepts are of great relevance: firstly,
the investment strain and secondly, the scope of financial
investment and its recoupment. Primarily, it is clear from
the records that this is a programme/project on which the
nation and the States should have a rational but liberal E
approach for financial investment. [para 39 and 43] [1142-
E; 1143-A-B]
1.4 From the facts, recommendations, and principles,
it is clear that primarily there is unanimity between all
F
authorities concerned including the Centre and a majority
of the State Governments 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, G
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 wlthin
a timeframe. Then there shall be hardly any financial H
1122 SUPREME COURT REPORTS (2012] 1 S.C.R.
A strain on the economy. On the contrary, such
implementation would help advancement of India's GDP
and bring greater wealth and prosperity to the nation as
a whole. Besides actual benefits accruing to the common
man, the Governments also benefit from the definite
B possibility of saving the States from drought on the one
hand and floods on the other. This project, when it
becomes a reality, will provide immeasurable benefits.
There is no reason as to why the Governments should
not take appropriate and timely interest in the execution
c of this project, particularly when, in the various affidavits
filed by the Central and the State Governments, it has
been affirmed that the governments are very keen to
implement this project with great sincerity and
effectiveness. [para 47] [1148-F-H; 1149-A-C]
D 2.1. The stand taken by the respective States shows
that, by and large, there is unanimity in accepting
interlinking of rivers but the reservations of these States
can also not be ignored, being relatable to their particular
economic, geographical and socio-economic needs.
E These are matters which squarely fall within the domain
of general consensus and thus, require a framework to
be formulated by the competent Government or the
Legislature, as the case may be, prior to its execution.
However, the national interest must take precedence over
F 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
G also to the nation at large. [para 50 and 52] [para 51]
[1149-H; 1150-A-F]
2.2 Under Article 262, Parliament, by law, can provide
for the adjudication of any dispute or complaint with
resp.ect to the use, distribution and control of water of
H any inter-state river or river valley. Further, Parliament
"IN RE : NETWORKING OF RIVERS" 1123
may by law provide that neither the Supreme Court nor A
any other court shall exercise jurisdiction in respect of
any dispute or complaint as referred to in Article 262(1).
Thus, 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 B
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. Once a specific
adjudicatory mechanism is created, that machinery
comes into operation with the creation of the Tribunal and c
probably, then alone will the Court's jurisdiction be
ousted. [para 53-55] [1151-A-C-D-G]
Tamil Nadu Cauvery Neerppasana Vilaiporu/gal
Vivasayigal Na/a Urimai Padhugappu Sangam v. Union of
India & Ors., 1990 (3) SCR 83 =AIR 1990 SC 1316 - relied D
on.
2.3 Entry 56 of List I empowers Parliament to enact
laws in relation to the regulation and development of inter-
state rivers and river valleys, to the extent that such E
regulation and development is declared by Parliament, by
law, to be expedient in the public interest. Entry 17 relates
to water, that is to say, water supplies, irrigation and
canals, drainage and embankments, water storage and
water power, subject to the provisions of Entry 56 of List F
I. Entry 20 of List Ill deals with economic and social
planning. Thus, with the aid of the residual powers under
Entry 97, List I, Parliament gets a very wide field of
legislation, relatable to various subjects. [para 56-57]
[1152-B-C, E]
G
3.1. Coordination 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 H
1124 SUPREME COURT REPORTS [2012] 1 S.C.R.
A interest, if these projects are not carried forward with a
sense of sincerity and a desire for its completion. [para
59] [1152-H; 1153-A]
State of Karnataka v. State of Andhra Pradesh & Ors.
8
=
2000 (3) SCR 301 (2000) 9 sec 572 ~ relied on.
3.2. 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
c 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
this Court has to fall within the contours of constitutional
law, as no jurisdiction is wider than this Court's
0 constitutional jurisdiction under Article 32 of the
Constitution. [para 62] [1153-H]
3.3. The tasks of making of a policy decision or
planning for the country or determining economic factors
or other crucial asp!lcts like need for acquisition and
E construction of river linking channels under that program
essentially should be left for the Central Government and
the States concerned. 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
F and expertise at its disposal. The requirements in the
instant case have different dimensions. The planning,
acquisition, financing, pricing, civil construction,
environmental issues involved are policy decisions
affecting the legislative competence and would squarely
G fall in the domain of the Government of States and
Centre. Keeping in view the relative economic and social
needs of interested states, volume of stream and its uses,
land not watered, and other relevant considerations, it
will be for the expert bodies alone to examine on such
H
"IN RE: NETWORKING OF RIVERS" 1125
issues and their impact on the project. [para 51 and 62] A
[1154-8-E; 1150-E]
3.4. This Court would recommend that these projects
are in the national interest, as is the unanimous view of
all experts, most State Governments and particularly, the
Central Government. But this Court may not be a very B
appropriate forum for planning and implementation of
such a programme having wide national dimensions and
ramifications. It will not only be desirable, but also
inevitable that an appropriate body should be created to
plan, construct and implement this inter linking of rivers C
program for the benefit of the nation as a whole. [para 63]
[1154-F-H]
3.5. Union of India and, particularly, the Ministry of
Water Resources, Government of India, is directed to
forthwith constitute a Committee to be called a 'Special D
Committee for Inter-linking of Rivers' with the
composition as suggested in the judgment. The
Committee so constituted shall take such steps as
specified in the jur:lgment and submit reports to the
Cabinet of the Government of India. [para 64] [1155-A-B] E
3.6. The Central and the State Governments
concerned are directed to comply with the directions
contained in the judgment effectively and expeditiously
and without default. This is a matter of national benefit F
and progress. There is no reason why any State should
lag behind in contributing its bit to bring the Inter-linking
River Program to a success, thus saving the people living
in drought-prone zones from hunger and people living in
flood-prone areas from the destruction caused by floods. G
[para 65] [1159-E-F]
Case Law Reference:
1990 (3) SCR 83 relied on para 54
2000 (3) SCR 301 relied on para 59 H
1126 SUPREME COURT REPORTS [2012] 1 S.C.R.
A CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
512 of 2002.
Under Article 32 of the Constitution of India.
WITH
8 Writ Petition (C) No. 668 of 2002.
A. Mariarputham, Ranjit Kumar (Amicus Curiae), R.S. Suri,
T.S. Doabia, R.S. Khosla, Sr. MG, S. Gurukrishna Kumar, Dr.
Manish Singhvi, MG, Nikhil Nayyar (Amicus Curiae), Sudarsh
c Menon, Sanjay R. Hegde, A. Subhashini, CHadra Prakash
Pandey, G. Prakash, Gopal Singh, Ravi Bhushan, Manish
Kumar, Gopal Singh, Rituraj Biswas, Guntur Prabhakar,
Hemantika Wahi, Rojalin Pradhan, Manik Karanjawala, Naresh
K. Sharma, Tara Chandra Sharma, Kuldip Singh, R.K. Pandey.
D H.S. Sandhu, Mohit Mudgil, Jagjit Chhabra, Ashok K. Mahajan,
G. Umapathy, B. Balaji, R. Ayyam Perumal, Shreekant N.
Terdal, Ranjan Mukherjee, S.C. Ghose, S. Bhowmick, Ramesh
Babu M.R., Shekhar Prasad Gupta, D. Bharathi Reddy, Vikas
Upadhyay, B.S. Banthia, Khwairakpam Nobin Singh, Sapam
E Biswajit Meitei, Shankar Chillarge, Asha Gopalan Nair,
Soumitra G. Chaudhuri, B.P. Yadav, Anima Kujur, Sampa
Sengupta, Abhijit Sengupta, Sumita Hazarika, Alok Gupta,
Abhinav Ramakrishnan, Milind Kumar, Devanshu K. Devesh,
lrshad Ahmad, G.N. Reddy, R. Nedurt'laran, D.N. Gobursdhan,
Prabal Bagchi, Shiv Kant Arora, Atin Shanker Rastogi,
F Abhishek Agarwal, Sheil Mohini Sethi, Navneet Kumar, Riku
Sarma (for Corporate Law Group), Anil Shrivastav, K.N.
Madhusoodhanan, R. Sathish, Atul Jha, Sandeep Jha,
Dharmendra Kumar Sinha (for Rajesh Srivastava), Pradeep
Misra, Amit Singh, Kamlendra Mishra, Aruna Mathur, Yusuf
G Khan, Kaustubh Sinha, D.D. Kamat, S.W.A. Qadri, D.K. Thakur,
D.S. Mahra, Rupansh Purohit, Manjit Singh, Kamal Mohan
Gupta, Edward Belho, C.M. Kennedy, K. Enatoli Serna, Amit
Kumar Singh, Pardeep Kumar Rapria, Ramesh K. Mishra,
Prashant Bhushan, Bhavanishankar V. Gadnis, B. Sunita Rao,
H
"IN RE: NETWORKING OF RIVERS" 1127
C.K. Sucharita, Runi Chanda, Anisha Panicker, Rachana A
Srivastava, Ruchi Daga for the appearing parties.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. Nearly ten years back, the
petitioner in Writ Petition (Civil) No. 668 of 2002, a practicing B
advocate, instituted the petition based on some study that there
was a need to conserve water and properly utilize the available
resources. Thus. the present petition has been instituted with
the following prayers:-
c
"a. 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. D
b. 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 E
Tambaravani.
c. Issue an appropriate writ order or direction in the
nature of mandamus directing the respondents to
formulate a scheme whereby the water from the F
west flowing rivers could be channelized and
equitably distributed."
2. The above directions were sought by the petitioner
against the Central Government as well as against various G
State Governments, for effective management of the water
resources in the country by nationalization and inter-linking of
rivers from Ganga - Cauveri, Vaigai-Tambaravarmi up to Cape
Kumari. According to him, as early as in 1834, Sir Arthur
Cotton, who had constructed the Godavari and Krishna dams,
suggested a plan called the 'Arthur Cotton Scheme' to link the H
1128 SUPREME COURT REPORTS [2012) 1 S.C.R.
A Ganga and Cauveri rivers. In 1930, Sir C.P. Ramaswamy Aiyar
also suggested and supported such a scheme. Thereafter,
various political leaders of the country have supported the
cause; but no such schemes have actually been implemented.
It is the case of the petitioner that the Inter-State Water
B Disputes Act, 1956 (for short 'the Act') and the River Boards
Act, 1956 were enacted by the Parliament under Article 262
read with Entry 56 of List-I of the Seventh Schedule to the
Constitution of India, 1950 (hereafter, 'the Constitution'). Due
to reluctance of water-rich States, the National Water
c Development Agency (hereafter, 'nwda') has not been allowed
to undertake detailed survey and it is argued that only by
nationalization of the rivers, by the Government of India, this
problem can be resolved to some extent. The petitioner had
filed a writ before the High Court of Judicature at Madras, being
D Writ Petition No. 6207 of 1983, praying for various reliefs. This
Writ Petition was disposed of without any effective orders by
the High Court. Persisting with his effort, the petitioner earlier
filed writ petitions before this Court, Jeing Writ Petition (C) No.
75 of 1998 and Writ Petition (C) no. 15 of 1999, praying inter
E alia for nationalized navigation and inter-linking of all the rivers
in the country.
3. We must notice, to put the records straight, that on 29th
September, 1994, a Bench of this Court took suo motu notice
of a write-up that had appeared in the Hindustan Times
F newspaper, dated 18th July, 1994, titled "And quiet flows the
maili Yamuna". Notice was issued to the Central Pollution
Control Board, Municipal Corporation of Delhi, Irrigation and
Flood Department of the Government of India, National Capital
Territory of Delhi and the Delhi Administration. Since then, the
G writ petition is being continuously monitored by this Court, till
date. During the pendency of this writ petition, I.A. No. 27 came
to be filed, wherein the learned Amicus Curiae in that case
referred to the address of Dr. A.P.J. Abdul Kalam, the then
President of India, on the eve of the Independence Day. This,
H inter alia, related to creating a network between various rivers
"IN RE : NETWORKING OF RIVERS" 1129
[SWATANTER KUMAR, J.)
in the country, with a view to deal with the paradoxical situation A
of floods in one part of the country and droughts in other parts.
In other words, it related to the inter-linking of rivers and taking
of other water management measures. On 16th September,
2002, this Court, while considering the said I.A., directed that
the application be treated as an independent writ petition and 8
issued notice to the various State Governments as well as the
Attorney General for India and passed the following order:-
" Based on the speech of the President on the
Independence Day Eve relating to the need of networking
of the rivers because of the paradoxical phenomenon of C
flood in one part of the country while some other parts face
drought at the same time, the present application is filed.
It will be more appropriate to treat to treat it as
independent Public Interest Litigation with the cause title
"IN RE : NETWORKING OF RIVERS -- v. ---" Amended D
cause title be filed within a week.
Issue notice returnable on 30th September, 2002 to the
respondents as well as to the Attorney General.
E
Serve notice on the standing counsel of the respective
States.
Dasti service, iri addition, is permitted."
4. This is how I.A. No. 27 in Writ Petition (Civil) No. 725 F
of 1994 was converted into Writ Petition (Civil) No. 512 of
2002. The Writ Petition (Civil) No. 512 of 2002 was taken up
for hearing and notice was issued to all the States, inviting
affidavits regarding their stance on the issue of networking of
rivers.
G
5. In view of the above order, the petitioner in Writ Petition
(Civil) No. 668 of 2002 withdrew Writ Petition (C) No. 75 of
1998 as well as Writ Petition (C) 15of1999, which leave was
granted by this Court.
H
1130 SUPREME COURT REPORTS (2012] 1 S.CY.
A 6. As already discussed above. the petitioner had filed Writ
Petition (Civil) No. 668 of 2002 with somewhat similar prayers
as contained in I.A. No. 27. In that writ petition, the petitioner
has averred that no prayer with regard to inter linking of rivers
covering the southern part of the Peninsular Region had been
B claimed and it was also his contention that the southern part
was most drought prone and had been witnessing more inter-
state water disputes. Thus, he had filed Writ Petition (Civil) No.
668 of 2002 and prayers made therein were liable to be
allowed.
C 7. In the present case, we are concerned with Writ Petition
(C) No.668 of 2002, Writ Petition (C) No. 512 of 2002 as well
as the l.A.s and the contempt petitions filed in these two
petitions. Accordingly, this order shall dispose of all these
matters but we make it clear that presently, we are not dealing
D with Writ Petition (C) No. 725 of 1994.
8. It has also been averred by the petitioners and the
intervenors in these petitions that the need to conserve water
resources and assuring their optimum consumption can be
E seen from the steps taken in th is regard, not only by the
developed countries but also by developing and under-
developed countries. The Government of India has always
shown considerable concern regarding the management of
water resources in the country and had framed, for this purpose,
F the National Water Policy which is being updated on a yearly
basis. The National Water Policy seeks to make available
water supply to those areas which face shortages. This aspect
of the matter could be effectively dealt with, only if the various
rivers in the country are linked and are nationalized. This has
been a matter of public debate and discussion for a
G considerable time and still continues to be so, without showing
any reflection of ground reality.
9. The Ministry of Irrigation, along with the Central Water
Commission, had formulated in the year 1980 a National
H Perspective Plan (NPP) for optimum utilization of water
"IN RE: NETWORKING OF RIVERS" 1131
[SWATANTER KUMAR, J.]
resources in the country which envisaged inter-basin transfer A
of water from water-surplus to water-deficit areas. Apart from
diverting water from rivers which are surplus, to deficit areas,
the river linking plan in its ultimate stage of development will
also enable flood moderation. It was comprised of two
components: Peninsular Rivers Development and Himalayan B
Rivers Development. The first involved major inter-linking of the
river systems and the latter envisaged the construction of
storage reservoirs on the principal tributaries of rivers Ganga
and Brahmaputra in India, Bhutan and Nepal. This was to help
transfer surplus flows of the eastern tributaries of the Ganga to c
the West, apart from linking the main Brahmaputra and its
tributaries with the Ganga and Mahanadi rivers. The scheme
is divided into four major parts:
(i) Interlinking of Mahanadi-Godavari-Krishna-Cauvery
rivers and building storages at potential sites in D
these basins.
(ii) Interlinking of West flowing rivers north of Bombay
and south of Tapi.
E
(iii) Interlinking of rivers Ken & Chambal.
(iv) Diversion of other west flowing rivers from Kerala.
10. The petitioners have also made several suggestions
which have been appreciated by the competent authorities on F
consideration. It is emphasized that the cost is negligible when
compared to the potential benefits which may be bestowed on
the nation. The petitioners rely upon Article 262 of the
Constitution, read along with Entry 17, List II and Entry 56 of
List I of the Seventh Schedule to the Constitution to substantiate G
their submissions. Finally, the petitioners submit that the
preservation of water resources is a part of the right to life and
livelihood, enshrined in Article 21 of the Constitution and that
the Central Government should take immediate and urgent
steps to nationalize the rivers, so that equitable and proper H
1132 SUPREME COURT REPORTS [2012] 1 S.C.R.
A distribution of water can be ensured for the betterment of the
population. According to them, the Central Government should
also adopt all necessary measures, both scientifically and
naturally, to increase the usable water resources and to
preserve whatever resources the Union of India has already
B been naturally gifted with.
11. As a result and because of the inaction on the part of
the Central Government and the State Governments, it is
submitted that grant of the reliefs as prayed for in the writ
C petition would be in consonance with the constitutional spirit
and in the larger public interest.
12. The learned Amicus Curiae, who had been pursuing
this public cause for a number of years, in furtheran.ce to the
request of this Court, has also submitted a detailed note with
D regard to the background and summary of the proceedings in
these petitions'.
13. As per the learned Amicus Curiae, on 14th August,
2002, the then President of India, Dr. APJ Abdul Kalam, in his
E address to the nation on the eve of Independence Day, had
observed that the need of the hour was the creation of a Water
Mission which, inter alia, would look into the question of
networking of rivers with a view to deal with the paradoxical
situation of floods in one part of the country and drought in the
other. Based on this and as afore-recorded, a notice was
F issued, on 16th September, 2002, to the States and the
Attorney General for India as respondents. In response to the
said notice, none of the States or Union Territories, except the
State of Tamil Nadu, had filed affidavits supporting/opposing
the prayers made in the writ petition. The time for filing of
G affidavits was again extended up to 30th September, 2002, but
no further affidavits were received by that time.
14. The learned then Attorney General for India, on behalf
of the Union of India, stated that the Government had accepted
H the concept of interlinking of rivers and a High Powered Task
"IN RE: NETWORKING OF RIVERS" 1133
[SWATANTER KUMAR, J.]
Force would be formed. Therefore, this Court, vide Order A
dated 31st October, 2002, recorded that there is in-principle
consensus amongst all States to go ahead with the project of
interlinking of rivers.
15. Vide Order dated 30th August, 2004, it was noticed
8
by this Court that, though there had been a change in the
Government, the then Solicitor General, appearing for the
Government, informed this Court that a decision had been
taken, in principle, to continue with interlinking of rivers.
16. A high level Task Force was set up. However, vide C
order dated 5th May, 2003, this Court observed that inputs from
other experts, in many fields, were necessary and that the Task
Force was to give due consideration to such inputs. Feasibility
Reports (hereafter, 'FR') were prepared for the intended links.
Subsequently, vide its order dated 8th April, 2005, this Court D
made it absolutely clear that the orders of the Court in these
respects have to be complied with in letter and spirit. The FR
of all links were to be put on the website after their completion.
This Court had also made observations that the prior consent
of any State Government was not necessary for placing the FRs E
on the website and directed them to be so placed. With great
persuasion and efforts, the FRs of 16 links had been placed
on the website. At the request of the Amicus, the website was
ordered to be made interactive so that people could submit their
response thereto. F
17. The status report filed on behalf of the Government of
India also showed that a committee of environmentalists, social
activists and other experts would be constituted to be involved
in the consultative process of formulation and execution of the
entire project. G
18. The status reports filed, from time to time, have been
considered by this Court.
19. Now, we may deal with the response of various States,
H
1134 SUPREME COURT REPORTS [2012) 1 S.C.R.
A as they appear from the record before us. The response
affidavits have been filed on behalf of ten States. However, the
remaining States have not responded, despite the grant of
repeated opportunities to do so. While the States of Rajasthan,
Gujarat and Tamil Nadu have supported the concept of inter-
B linking of rivers, the State of Madhya Pradesh had stated that
networking of rivers is a subject falling under the jurisdiction of
the Central Government and the Central Government should
consider the matter. The States of Karnataka, Bihar, Punjab,
Assam and Sikkim have given their approval to the concept in-
c principle, but with definite reservations, i.e., a kind of qualified
approval, arguing that the matters with regard to the
environmental and financial implications, socio-economic and
international aspects, such as inter-basin water transfer, need
to be properly examined at the appropriate levels of the
0 Government. For example, all the rivers in Bihar originate from
Nepal and it may be necessary or desirable to take consent of
neighbouring countries, is a matter which would require
consideration of the appropriate authority in the Central
Government. According to the State of Punjab, inter-linking of
E rivers should be started only from water-surplus States to States
facing water deficit. The States of Assam, Sikkim and Kerala
had raised their protests on the grounds that they should have
exclusive right to use their water resources and that such transfer
should not affect any rights of these States. The State of
Sikkim was concerned with particular reference to tapping of
F the hydro power potential in the State and the State of Kerala
entirely objected to long distance, inter-basin, water transfer.
20. The Union of India filed three different affidavits dated
25th October, 2002, 5th May, 2003 and 24th December, 2003.
G From these affidavits, the stand of the Union of India appears
to be that networking of rivers had been considered with great
seriousness even after the 1972 Rao Committee Report.
Surveys and studies were underway. The 1980 National
Perspective Plan of the erstwhile Ministry of Irrigation, presently
H the Ministry for Water Resources, envisaged inter-basin transfer
"IN RE: NETWORKING OF RIVERS" 1135
[SWATANTER KUMAR, J.)
from water-surplus to deficit areas. It would have direct benefits, A
like the irrigation of 35 million hectares (Mha), full exploitation
of existing irrigation projects of 140 Mha, power generation of
34 million Kilowatt (KW); besides the indirect benefits like flood
control, navigation, water supply, fisheries, pollution control,
recreation facilities, employment generation, infrastructure and B
socio-economic development etc. With regard to the
approvals required, it is submitted that the Ministry of
Environment and Forests, Union of India had given some
clearances, while refusing the same in other cases. The
consent of some of the States had not been received. The c
expected financial implication as far back as in 2002 was
Rs.5,60,000 crores.
21. However, the Union of India has submitted that there
is no necessity for formation of a high-powered committee as
prayed for in the petitions. The high-level task force is to be D
set up for considering the modalities of state-wise consensus.
The NWDA was set up as autonomous registered society under
the aegis of Ministry of Water Resources, in new Delhi in 1992,
for the purposes of preparation of FRs, conduct of water-
balance and other scientific studies, etc. for Peninsular Region E
rivers (and for Himalayan Region rivers also, since 1990) and
is headed by the Union· Minister of Water Resources. The Chief
Ministers and/or the Ministers and the Secretaries as their
nominees for Water Resources/Irrigation of the State
governments are its members. The pre-feasibility reports of F
all 30 identified links had been completed by the nwda.
22. The Union of India and some states have shown their
concerns and their apprehensions about these projects,
including questioning the reliability of water supply from distant G
sources, distribution of water given the existing tribunal awards
and the continued availability of existing water. surpluses.
23. In another affidavit, the Union of India referred to the
Terms of Reference to the Task Force and the appointment of
its Members. Action Plan I was prepared, which was expected H
1136 SUPREME COURT REPORTS [2012] 1 S.C.R.
A to be implemented by 2016. Out of the independent links to
be pursued for discussion, the first were the links in the States
of Gujarat. Maharashtra, Chattisgarh; secondly, the S_tates of
Karnataka, Madhya Pradesh, Uttar Pradesh and Rajasthan
were to be included in discussions and thirdly, the States of
B Andhra Pradesh, Tamil Nadu and Orissa were to be invited for
discussion. The Detailed Project Reports (hereafter, 'DPR')
were expected to be completed by December, 2006. However,
from the record, it appears that these DPRs have not been
completed even till today. The scheme of inter-linking of rivers/
c preparation of DPRs is stated to be under review by different
groups and authorities.
24 The Union of India also intended that these project
reports should encompass water sector schemes, rainwater
harvesting schemes etc., as these cannot be implemented
D independent of the inter-linking scheme. The last of the
affidavits filed on behalf of the Union of India was in December,
2003. This affidavit gives details of the States, with which a
dialogue was to be held as also the details of constitution of
sub-committees. The Terms of Reference of the Task Force
E included the approval of all links. With the intention to arrive at
a general consensus, before entering into agreements, the
Union of India has discussed details with Maharashtra and
Gujarat and preliminary discussion has taken place with the
States of Andhra Pradesh, Chattisgarh, Karnataka, Orissa,
F Tamil Nadu and Pondicherry. According to the Union of India,
invoking the matter internationally, at this stage, was not
advisable as the matter was premature. The nwda was to begin
the DPR for the first link, i.e., the Ken-Betwa project, which itself
was expected to take 30 months time. In this, the DPR has
G now been prepared; however, the implementation is yet to
begin. We must notice that in all other links even the DPRs
are not ready, as of now. The draft Memorandum of
Understanding (hereafter, 'MoU') had been circulated for
conduct of DPR of three more Peninsular links. The Standing
H Committee of the Parliament on Water Resources, (hereafter,
"IN RE: NETWORKING OF RIVERS" 1137
[SWATANTER KUMAR, J.]
'the Standing Committee'), in its report for the year 2004-05 A
has commented that for the purpose of preparation of DPRs
for the Ken-Betwa link and the Parbati-Kalisindh-Chambal link
projects, a sum of Rs.14 crores had been earmarked, out of
the total Rs.35 crores allocated for NWDA. However, the
Standing Committee had been constrained to observe that, 8
though the FR of the Ken-Betwa link was completed in
November, 1996, the project was still at a nascent stage. At
the time of the report in 2004-05, the basic MoU between the
Governments of Uttar Pradesh and Madhya Pradesh, for
preparation of DPR, still remained to be signed, on the ground C
that the State of Uttar Pradesh required more water to be
allocated to it. They further observed that, if the Ministry of Water
Resources, Government of India had set a time frame for
finalization of issues like this, the precious time of eight years
would not have been lost. The matter still rests at that stage.
Today, though DPR has been prepared for this link alone, no 0
. link project has reached the implementation stage.
25. The report of the Standing Committee which, inter alia,
had examined the river inter-linking proposal was presented to
the Parliament of India on 23rd August, 2004. It was strongly E
recommended that the Government should take firm steps and
fix a definite time frame to lay down the guidelines for
completion of FRs, preparation of DPRs and completion of
projects so that they may be completed and the benefits
accrued within reasonable time and costs. It was the opinion F
of the Standing Committee that the inter-linking of Himalayan
and Southern region rivers, if done within a definite schedule,
would save the nation from the devastating ravages of chronic
droughts and floods. The recommendations of the Standing
Committee deal primarily with two kinds of States; the States G
having water shortage and the States having surplus water.
Still, there would be a third category of States, which would be
comprised of those States which have just sufficient water and
therefore, do not fall in either the flood-affected or the drought-
affected categories of States. The role of such States may not H
1138 SUPREME COURT REPORTS [2012] 1 S.C.R.
A be very project-related; but, their consent/concurrence is
needed for complete implementation of the programme. Their
role is relevant as some canal projects, linking different rivers,
may pass through such States. But as already noticed, except
one, no other DPR has so far been finalized and in fact, none
B put into implementation. Thus, this question would remain open
and has to be examined at the appropriate stage by the
competent forum.
Projection of Status Reports:-
C 26. Different Status Reports have been filed in this case.
The last of the Status Reports have been filed by the Union of
India on 18th March, 2011. It has been pointed out that the
NWDA, which was to complete the task relating to preparation
of FRs and DPRs of link projects, has completed 208
o preliminary water-balance study of basins, sub-basins and
diversion points, 74 toposheets and storage capacity studies
of reservoirs, 37 toposheet studies of link alignments and 32
pre-feasibility reports of links, towards the implementation of
inter-linking of rivers in the country. Based on these studies,
E this agency identified 30 links (16 under the peninsular river
development component and 14 under the Himalayan river
development component) for preparation of FRs. The process
of consensus building is on-going, in regard to the feasibility
of implementing other interlinking projects. These reports have
F shown that a significant effort and attempts have been made
and the unquestionable benefits that would accrue on the
implementation of the interlinking projects will be to benefit the
country at large. One aspect that needs to be noticed is that,
till today, no minor or major project has been actually
implemented at the ground level despite the fact that this case
G has been pending before this Court for more than ten years.
Only the DPR of the Ken-Betwa link has been prepared and
its implementation is awaiting the approval of the State
Governments as well as the allocation of funds, even to begin
the work. This does not speak well of the desire on the part of
H
"IN RE: NETWORKING OF RIVERS" 1139
[SWATANTER KUMAR, J.]
any of the concerned Governments to implement these projects, A
despite the fact that there is unanimity of views among all that
this project is in the national interest.
27. The Committee of Environmentalists, Social Scientists
and other Experts on inter-linking of rivers, had met after the B
submission of the Status Report dated 5th March, 2010. They
discussed· various aspects of different projects. In the
Himalayan region, FRs of two remaining links were completed,
i.e., the Sarda-Yamuna link and Ghagra-Yamuna Link. The
field survey and investigation for Sone Dam on the southern
tributaries of the Ganga link, was still in progress. The Ministry C
of Environment and Forests had refused permission for survey
and investigation of the Manas-Sankosh-Tista-Ganga link, but
the toposheet study for the alternative Jogigopa-Tista-Farakka
link has been completed. In the Peninsular region, the projects
relating to Bedti-Varada and netravati-Hemavati-Tapi are D
awaiting Karnataka Government's consent. In Netravati-
Hemvati-Tapi link, the Karnataka Government has refused to
consent even to the preparation of FR until decision of related
cases, pending in the Courts.
E
28. In the Dhadun dam, relating to the Ken-Betwa link, two
power houses and a link canal will be taken up in Phase I and
the Betwa basin will be completed in Phase-II. Upper Betwa
Sub-Basin will receive priority completion and minor projects
are proposed to be completed first. Phase-II will be commenced F
after survey and investigation. However, this project is still at
the survey and planning stage and even comprehensive
clearances, from the Uttar Pradesh Government, have not been
received. The State of Rajasthan refuses to consider the Mou ·
for another priority link, Parbati-Kalisindh-Chambal, until the G
updation of its hydrology project.
29. Similarly, there are other projects where public
hindrances are caused against carrying out of survey and
investigation. In the Par-Tapi-Narmada and Damanganga-
Pinjal links, residents have shown concern about the extent of H
1140 SUPREME COURT REPORTS [2012] 1 S.C.R.
A land to be submerged on the construction of the proposed dam.
In response, the State Governments of Gujarat and
Maharashtra have set up Committees to take up the matters
with the panchayats and to commence the projects.
30. The NWDA had also, in the course of framing of its
8
policies, proposed intra-state links. Except for six States and
four Union Territories, all other States and Union Territoties have
interest in these intra-State links. There are eight inter-linking
projects which are under review by different State authorities.
C However, the details of the divergence between the State
Governments are not clearly spelt out, even as of now.
31. An additional study was undertaken by the National
Council for Applied Economic Research (hereafter, 'ncaer') and
the revised final report, published in April 2008, assessed the
D economic impact of the rivers interlinking program and
suggested an investment roll out plan, i.e., a practical
implementation schedule, for the same. A copy of this report
was submitted in the year 2011, before this Court.
E 32. As already noticed, the Task Force was constituted by
the Central Government for interlinking of river projects in
December 2002. It submitted its Action Plans I and II for
implementation of the project and also finalized the terms of
reference for the purposes of the DPRs. Action Plan I,
F submitted in April 2003, envisages completion of 30 FRs by
the authorities by December 2005.
33. Action Plan II, submitted in April 2004, mainly
envisaged the appraisal of individual projects, in respect of their
economic viability, socio-economic and environmental impacts,
G preparation of resettlement plans and reaching speedy
consensus among States. The reports have been submitted
to the Central Government and are under consideration. With
this completion of work, the Task Force had completed its object
and stood dissolved. After winding up of the Task Force, a
H Special Cell on interlinking of rivers was created under the
"IN RE: NETWORKING OF RIVERS" 1141
[SWATANTER KUMAR, J.]
Ministry of Water Resources. However, what happened to the A
two Action Plan reports submitted by the Task Force is a matter
left to the imagination of anyone.
34. From the above, it is not difficult to visualize the
difficulties in preparation, execution, financing and consensus B
building, still, it is the need of the hour to carry out these projects
more effectively and with greater sensitivity.
Economic Aspect :
35. As per the report of the Standing Committee for the c
year 2004-05, which was presented to the Parliament of India,
the planned budgetary allocation was made under NWDA as
follows:
36. Actual allocation for 2002-03 was Rs.15.30 crores, the
budget estimate for 2003-04 was 20 crores, the revised 0
estimate for the same year was Rs.21.95 crores and for 2004-
05, the budget estimate was Rs.35 crores.
37. The Amicus Curiae, in his report, has noted that the
new aggregated cost of the entire program varies between Rs. E
4,44,331.20 crores, at 2003-04 prices, and Rs.4,34,657.13
crores, at 2003-04 prices, depending on the implementation
of the proposed Manas-Sankosh-Tista-Ganga link or the
Jogigopa-Tista-Farakka link respectively.
F
38. As already noticed, the NCAER had been assigned
the work of assessing the economic impact of river interlinking
programmes, which in turn, suggested an investment roll-out
plan for the same. The report of the NCAER was prepared in
April, 2008. This report considers various financial aspects
and the impact of various river interlinking projects in India. G
They point out that after independence, irrigation was viewed
as infrastructure for agricultural development rather than as a
commercial enterprise. In 1983, the Nitin Desai Committee
forwarded the idea of Internal Rate of Return (hereinafter
H
1142 SUPREME COURT REPORTS [2012] 1 S.C.R.
A referred to as 'IRR'), suggesting that projects should normally
earn a minimum IRR of 9 per cent. However, for drought-prone
and hilly areas and in areas with only 75 per cent of dependable
· flows in the basin, a lower IRR of 7 per cent was recommended.
Successive Finance Commissions also stressed on recovery
s of a certain percentage of the capital investment apart from
working expenses. The Eleventh Finance Commission has
recognized that this would have to be done in a gradual
manner. Receipts should cover not only maintenance
expenditure but also leave some surplus as return on the capital
C invested.
39. This NCAER report, with some significance, noticed
that until 2003-04, it was only in four years that !he economy
gre~{ at more than 8 per cent per annum. Each of these years
coincided with very high rate of growth in the agricultural sector.
D In contrast, industry and services sectors have, at best, pulled
up the Gross Domestic Product (GDP) growth to. 7.3 per cent
per annum when there was no significant contribution from the
agricultural sector. The report clearly opines that interlinking of
river projects will prove fruitful for the nation as a whole and
E would serve a greater purpose by allowing higher returns from
the agricultural sector for the benefit of the entire economy. This
would also result in providing of varied benefits like control of
floods, providing water to drought-prone States, providing water
to a larger part of agricultural land and even power generation.
F Besides annuring to the benefit of the country, it will also help
the countries like Nepal etc., thus uplifting India's international
role. Importantly, they also point out to a very important facet
of interlinking of rivers, i.e., it may result in reduction of some
diseases due to the supply of safe drinking water and.thus serve
G a greater purpose for humanity.
40. The Bhakra dam has also been cited as an example
in this report as having enabled the States of Punjab and
Haryana to register faster growth as compared to the rest of
the country. This project provided an additional irrigated area
H
"IN RE: NETWORKING OF RIVERS" 1143
[SWATANTER KUMAR, J.]
to the extent of 6.8 million hectares over 35 years. Increased A
irrigation intensity led to increased usage of High Yielding
Variety (HYV) seeds which at present constitute more than 90
per cent of the area under wheat and 80 per cent of area under
paddy cultivation. The region uses some of the most advanced
agricultural technologies in India. NCAER, while depicting the B
poverty ratio vis-a-vis these States and the other States all over
India, has provided the following tables:
States Rural Urban All Areas
1973-74 1999-00 1973-74 999-00 1973- 1999- c
74 00
Punjab 28.21 6.35 27.96 5.75 28.15 6.16
Haryana 34.23 8.27 40.18 10.00 35.36 8.74
D
All India 56.44 27.09 49.01 23.62 54.88 26.10
41. Thus, they conclude that the Bhakra Dam was
instrumental in helping India achieve food security, in reducing
volatility of food grain prices and declining the incidence of E
poverty in those regions.
42. Besides pointing out the benefits of Bhakra Dam, the
NCAER Report also states that the link canals have both short
and long term impacts on the economy. Short term impact of
link canals is in the form of increased employment opportunities F
and the growth of the services sector. In the medium to long
term, the major impact of link canals is through increased and
assured irrigation. Although the major and direct gainers from
the interlinking of rivers (ILR) programme will be agriculture and
agriculture-dependant households, the entire economy will G
benefit because of increased agricultural production and other
benefits.
43. The Report of the NCAER has pointed out various
benefits of rivers interlinking programme at the State and
H
1144 SUPREME COURT REPORTS [2012) 1 S.C.R.
A National levels. However, wher. coming to the financial aspect
of the programme, two concepts are of great relevance: firstly,
the investment strain and secondly, the scope of financial
investment and its recoupment. Primarily, it is clear from the
records before us that this is a programme/project on which
B the nation and the States should have a rational but liberal
approach for financial investment. Referring to the financial
strain, the NCAER Report projects two sets of investment
rollout plan. At the start of the programme, investment would
be small, but would increase gradually peaking in the year
c 2011-2012. It will then start falling. Investment rollout from the
year 2008-2009 to 2014-2015 will have considerable strain on
the Central Government finances, especially after the passage
of Fiscal Responsibility and Budget Management Rules
(FRBMR). The Government is now committed to reducing
D fiscal deficit by 0.3 percentage points of GDP every year and
was to reduce the fiscal deficit down to 3 per cent of GDP by
the fiscal year 2007-2008. The FRBMR also put a restriction
on Government borrowings. In each subsequent financial year,
the limit on borrowings of 9 per cent of GDP was to
progressively reduced by at least 1 percentage point of
E GDP, a commitment which is to be adhered to by all
Governments. The investment plan prepared by the NCAER
was intended to help in clearing doubts in the minds of the
people and opponents of the programme that investment is not
going to take place in a single or couple of years, but over a
F period of at least ten years. Since the impact analysis
undertaken by the NCAER assumes that the Interlinking of
Rivers (ILR) programme is entirely financed by the Central
Government, a longer rollout plan would also help in reducing
the impact on public finances.
G
44. The NCAER has also suggested changes which are
necessary for the effective implementation of the river
networking programme. Inter alia, it includes the pricing of
irrigation benefits and improvement in the quality of service.
H It will be useful to notice at this stage, these suggested
"IN RE: NETWORKING OF RIVERS" 1145
[SWATANTER KUMAR. J.]
changes termed as 'Changes necessary' which are as under: A
"A revision of water rates is necessary in the interest of
efficiency. However, it should go hand in hand with
improvement in the quality of service (Government of India
1992). Specific recommendations were made by the B
Committee on Pricing of Irrigation Water (Government of
India, 1992) with regards to pricing:
1. Water rates are a form of user charges, and not a
tax. Users of public irrigation must meet the cost
of the irrigation service. C
2. As irrigation is one of the key inputs similar to
seeds and fertilizer, its pricing should be addressed
in the first step.
3. Under-pricing of irrigation is mainly responsible for D
the deteriorating quality of irrigation services. A
revision of water rates is necessary in the interest
of efficiency. However, it should go hand in hand
with improvement in the quality of service.
E
4. Rates for non-agricultural users (domestic and
industrial) should also be revised so that full cost
is recovered.
5. Rates should be based on O&M norms and capital
F
charges (interest and depreciation).
6. Averaging of rates by region and/or categories of
projects is desirable. Categorisation could be:
• major and medium storage system, G
• major and medium projects based
exclusively on barragesfdiversion works,
• minor surface irrigation works,
H
1146 SUPREME COURT REPORTS [2012) 1 S.C.R.
A • lift irrigation canals, and
• lift irrigation from groundwater.
7. Distinction of rates in terms of tail and head
reaches of a system, soil quality, and other criteria
8 for rate determination should be approached with
caution due to complexities involved with it.
8. Water rates should be applied on two-part tariff. All
lands in command area should pay a flat annual fee
c on a per hectare basis for membership of the
system and a variable fee Jinked to the actual extent
of service (volume or area) used by each member.
9. The move to full-fledged volumetric pricing cannot
be introduced immediately. The proposed
D rationalization of water pricing will have to be.
accomplished in three phases.
10. In the first phase, rationalization arn:J simplification
of the existing system of assessment (based on
E crop-wise irrigated area on an individual basis) to
a system of season-specific areas rates should be
taken up. The level of cost recovery to be aimed
during the first phase should at least cover O&M
costs and 1 per cent interest on capital employed.
F The irrigated area under a crop which spreads over
to more than one season should be charged at the
rates applicable to different seasons. However, in
each season, distinction should be made between
paddy, sugarcane, and perennial crops.
G 11. In the second phase, the aim should be on
volumetric measure for irrigation water charging.
12. In third phase, the focus should be on people
participation for improving water use and, thus,
H productivity.
"IN RE: NETWORKING OF RIVERS" 1147
[SWATANTER KUMAR, J.]
13. The recommendations of the Committee on Pricing A
of Irrigation (also known as the Vaidynathan
Committee Report) were further studied by the
Group of Officers formed by the Planning
Commission in October, 1992. It recommended
that the irrigation water rates should cover the full 8
annual 0 & M cost in phases in the next five years.
These recommendations and the Vaidyanathan
Committee Report were, in Februar/ 1995, sent to
all the States/union territories that had started
taking action with several states revising water rates C
upwards."
To sum up the short comings and their analysis, the report
states as under :
"One shortcoming of the above analysis is that it has not o
considered the issue of cost of resettlement of displaced
people due to ILR Project. A draft National Rehabilitation
Policy was prepared with the objective of minimizing
development induced displacement of people by
promoting non-displacing or least displacing alternatives E
for meeting development objectives. The draft policy is yet
to be finalized by the National Advisory Council (NAC).
The NAC intends to finalise a rehabilitation package that
includes, inter alia, providing land for all agricultural
families, implementing special employment guarantee F
programmes, providing homesteads and dwelling houses,
bearing transportation cost, providing training and other
support services, instituting a rehabilitation grant in order
to compensate loss of income/livelihood. The ILR project
has to consider displacement costs on the basis of norms
stipulated in the national Rehabilitation Policy as and when G
it gets finalized."
45. Besides making the above observations and
recommendations, the NCAER also suggests that after
completion of the linking of rivers programme, the different river H
1148 SUPREME COURT REPORTS [2012) 1 S.C.R.
A links should be maintained by separate river basin
organizations, which would all be functioning under the direct
control of the Central Water Commission or such other
appropriate central body.
46. In the summing up of its Report, th~ NCAER has stated
8
that water is essential for production of food, economic growth,
health and support to environment. Its main contribution to
economic well-being is through its use of agriculture to improve
food security. Water is essential to increase agricultural
productivity under modern technology. Nearly 64 per cent of
C the population in rural area and 4 per oent in urban area
depends on agriculture as their principal so[1rce of income. The
analysis carried out in the State shows that the ILR programme
has ~he potential to increase the growth rate of agriculture, which
declined from 4.4 per cent in 1980s to 3.0 per cent in 1990s
D and which is still susceptible to the vagaries of rainfall. In order
to put our economy on the high growth path and improve the
quality for life of people in the rural areas, a mixed policy of both
increased availability of irrigation and increasing non-farm
activity is required.
E
Principles Applied:
4 7. From the above narrated facts, stated
recommendations and principles, it is clear that primarily there
is unanimity between all concerned authorities including the
F 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
G 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
H
"IN RE: NETWORKING OF RIVERS" . 1149
[SWATANTER KUMAR, J.]
the economy. On the contrary, such implementation would help A
advancement of India's GDP and bring greater wealth and
prosperity to the nation as a whole. Besides actual benefits
accruing to the common man, the Governments also benefit
from the definite possibility of saving the States from drought
on the one hand and floods on the other. This project, when it s
becomes a reality, will provide immeasurable benefits. We see
no reason as to why the Governments should not take
appropriate and timely interest in the execution of this project,
particularly when, in the various affidavits filed by the Central
and the State Governments, it has been affirmed that the c
governments are very keen to implement this project with great
sincerity and effectiveness.
48. The States of Rajasthan, Gujarat, Tamil Nadu have fully
supported the concept. Madhya Pradesh has also supported
the Scheme, but believes that it must be implemented by the D
Central Government. The States of Karnataka, Bihar, Punjab
and Sikkim have given some qualified approvals. Their main
concern is, with regard to inter basin transfer, which must involve
quid pro quo, as with any other resources inter-linking must be
from water surplus to water deficit States and in regard to E
environmental and financial implications. Some of the other
States are not connected with these projects as they have r:io
participation in inter-linking of rivers. The Stale of Kerala has
protested to some extent, to the long distance inter basin water
transfer on the basis that the State needs water to supply their F
intricate network of natural and man-made channels.
49. It is also the case of the State of Kerala that their rivers
are monsoon:fed and not perennial in nature, therefore, Kerala
experiences severe water scarcity during summer or off- G
monsoon months.
50. The stand taken by the respective States, as noticed
above, shows that, by and large, there is unanimity in accepting
interlinking of rivers but the reservations of these States can
also not be ignored, being relatable to !heir particular econQmic, H
1150 SUPREME COURT REPORTS [2012] 1 S.C.R.
A geographical and socio-economic needs. These are matters
which squarely fall within the domain of general consensus and
thus, require a framework to be formulated by the competent
Government or the Legislature, as the case may be, prior to
its execution.
B
51. 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,
C 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
D 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.
E Thus, it will be for the expert bodies alone to examine on such
issues and their impact on the project.
52. Be that as it may, we have no hesitation in observing
that the national interest must take precedence over the interest
F 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.
G 53. Now, we may refer to certain constitutional provisions
which have bearing on the matters in issue before us. 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
H power to make certain specific legislations ·not only governing
"IN RE: NETWORKING OF RIVERS" 1151
[SWATANTER KUMAR, J.]
a field of its legislative competence as provided in the Seventh A
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 s
control of water of any inter-state river or riv13r valley.
54. Article 262(2) of the Constitution opens with a non-
obstante expression, that 'notwithstanding anything contained
in the Constitution, Parliament may by law provide that neither C
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 D
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 E
States. [See : Tamil Nadu Cauvery Neerppasana
Vilaiporulgal Vivasayiga/ Na/a Urimai Padhugappu Sangam
v. Union of India & Ors., AIR 1990 SC 1316].
55. One of the possible views taken with regard to Article F
262 is that the use of expression 'may' in the Constitution does
not indicate a clear legislative intent, thus, it may be possible
that Section 11 of the Act could refer only to such disputes as
are already referred to a Tribunal and which are outside the
purview of the courts. Once a specific adjudicatory mechanism G
is created, that machinery comes into operation with the
creation of the Tribunal and probably, then alone will the Court's
jurisdiction be ousted.
56. The Seventh Schedule to the Constitution spells out
H
1152 SUPREME COURT REPORTS [2012] 1 S.C.R.
A different fields of legislation under the Union List (List I), State
List (List II) and Concurrent List (List Ill). Entry 56 of List I
empowers the Union Parliament to enact laws in relation to the
regulation and development of inter-state rivers and river valleys,
to the extent that such regulation and development is declared
B by the Parliament, by law, to be expedient in the public interest.
Entry 57 deals with fishing· and fisheries beyond territorial
waters. Entry 97 is a residual entry, which confers those
legislative fields upon the Union Parliament which are not
specifically provided for under List II and/or List Ill. Entry 17
C relates to water, that is to say, water supplies, irrigation and
canals, drainage and embankments, water storage and water
power, subject to the provisions of Entry 56 of List I. Agriculture
is again a State subject. The Concurrent List (List Ill) does not
contain any entry in regard to water and agriculture, as such.
D 57. Entry 42 of List Ill is the law relating to acquisition and
requisition of property by the Union and the State Parliaments.
The result is that, in relation to acquisition, the Centre and the
State, both, have power to legislate. Entry 20 of List Ill deals
with economic and social planning. Thus, with the aid of the
E residual powers under Entry 97, List I, the Union Parliament gets
a very wide field of legislation, relatable to various subjects.
58. The River Boards Act, 1956 was enacted by the
Parliament under Entry 56 of List I. The Inter-State Water
F 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 forrner is an Act
to establish Boards for the regulation and development of inter-
state river basins, through advice and coordination, and
G thereby to reduce the friction amongst the concerned States.
59. 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
H
"IN RE: NETWORKING OF RIVERS" 1153
[SWATANTER KUMAR, J.]
of good governance and the epitome of harm to public interest, A
if these projects are not carried forward with a sense of sincerity
and a desire for its completion.
60. In a more recent judgment of this Court in the case of
State of Karnataka v. State of Andhra Pradesh & Ors. [(2000)
B
9 SCC 572], a Constitution Bench of this Court took the view
that in Section 11 of the Act, the expression 'use, distribution
and control of water in any river' are the key words in
determination of the scope of power conferred on a Tribunal
constituted under Section 3 of the Act. If a matter fell outside
the scope of these three crucial words, the power of Section C
11 in ousting the jurisdiction of the courts in respect of any water
dispute, which is otherwise to be referred to Tribunal, would not
have any manner of application. The test of maintainability of
a legal action initiated by a State in a Court would thus be,
whether the issues raised therein are referable to a Tribunal for D
adjudication of the manner of use, distribution and control of
water.
61. Further, this Court while declining to issue a mandamus
directing the States of Karnataka, Andhra Pradesh and E
Maharashtra to constitute a common Tribunal, held:
"168 ....... It is settled law that such a direction cannot
possibly be granted so as to compel an authority to
exercise a power which has a substantial element of
discretion. In any event the mandamus to exercise a power
F
which is legislative in character cannot be issued and I am
in full agreement with the submission of Mr. Solicitor
General on this score as well. At best it would only be an
issue of good governance but that by itself would not mean
and imply that the Union Government has executive power · G
even to force a settlement upon the State."
62. The above stated principles clearly show that 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 H·
1154 SUPREME COURT REPORTS [2012] 1 3.C.R.
A 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
this Court has to fall within the contours of constitutional law,
B as no jurisdiction is wider than this 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
c 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.
0
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. We
E certainly should not be understood to even imply that the
proposed projects of inter-linking of rivers shi;>uld not be
completed.
63. We would recommend, with all the judicial authority at
F our command, that these projects are in the national interest,
as is the unanimous view of all experts, most State
Governments and particularly, the Central Government. But this
Court may not be a very appropriate forum for planning and
implementation of such a programme having wide national
G dimensions and ramifications. It will not only be desirable, but
also inevitable that an appropriate body should be created to
plan, construct and implement this inter linking of rivers program
for the benefit of the nation as a whole.
·H
"IN RE: NETWORKING OF RIVERS" 1155
[SWATANTER KUMAR, J.]
64. Realizing our limitations, we would finally dispose of A
this Public Interest Litigation with 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
B
'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.
c
(b) Secretary, Ministry for Water Resources.
(c) Secretary, Ministry of Environment and Forests.
(d) Chairman, Central Water Commission.
D
(e) Member-Secretary, National Water
Development Authority.
(f) Four experts to be nominated, one each from the
following Ministries/bodies:
E
(i) One Expert from the Ministry of Water
Resources
(ii) One Expert from the Ministry of Finance
(iii) One Expert from the Planning F
Commission
(iv) One Expert from the Ministry of
Environment & Forests.
G
(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 H
1156 SUPREME COURT REPORTS (2012) 1 S.C.R.
A Department in case of any other State involved
directly or indirectly in the water lir1king river project.
(i) Two social activists to be nominated by each of the
concerned Ministries.
B Q) 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.
c (Ill} 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.
availab'e. the Secretary, Ministry of Water
D
Resoui"ces, Government of India, shal!
preside over the Meeting.
(IV) The Committee would be entitled to constitute
such sub-committees, as it may deem
E 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
F
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
G 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.
H
"IN RE: NETWORKING OF RIVERS" 1157
[SWATANTER KUMAR, J.]
(VI) All the reports of the expert bodies as well as A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
1158 SUPREME COURT REPORTS [2012] 1 S.C.R.
A firm steps and fix a definite timeframe to lay
down the guidelines fat completion of
feasibility reports or other reports and shall
ensure the completion of projects so that the
benefits accrue within reasonable time and
B 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
c projects can be completed without their
effective participation.
(XII) However, the Committee may involve any
State for effective completion of the
D 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
E
State Governments to participate in the
program and render all financial,
administrative and executive help to complete
these projects more effectively.
F (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
G 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
H decisions as to how the same are to be
"IN RE : NETWORKING OF RIVERS" 1159
[SWATANTER KUMAR, J.]
implemented for the benefit of the public at A
large.
(XV) The Committee constituted under this order
shall be responsible for carrying out the inter-
linking program. Its decisions shall take
8
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 C
event of default or non-compliance of the
directions contained in this order.
65. We would fail in our duty if we do not place on record
the appreciation for the valuable and able assistance rendered 0
by the learned Amicus Curiae and all other senior counsel and
assisting counsel appearing in the present PIL.
66. We not only express a pious hope of speedy
implementation but also do hereby issue a mandamus to the
Central and the State Governments concerned to comply with E
the directions contained in this judgment effectively and
expeditiously and without default. This is a matter of national
benefit and progress. We see no reason why any State should
lag behind in contributing its bit to bring the Inter-linking River
Program to a success, thus saving the people living in drought- F
prone zones from hunger and people living in flood-prone areas
from the destruction caused by floods.
67. With the observations and directions recorded supra,
Writ Petition (Civil) No.512 of 2002, Writ Petition (Civil) No.668 G
of 2002 and all the applications filed in both these writ petitions
are hereby finally disposed of with no order as to costs.
R.P. Writ Petitions disposed of.
H
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