The Hindu : Opinion / Leader Page Articles : Preserving proprieties

Online edition of India's National Newspaper
Tuesday, Dec 14, 2004

Opinion

Opinion - Leader Page Articles

Preserving proprieties

By Ramaswamy R. Iyer

There are many questions on the role of the President and the Supreme Court vis-à-vis the project for interlinking rivers.

THIS ARTICLE is not about the merits of the `Inter-Linking of Rivers' (ILR) Project (on which this writer has doubts) but about the roles that the President of India and the Supreme Court have been playing in relation to the project. To obviate misunderstandings, the writer would like to declare that he has the deepest respect for the judiciary and for the presidency, and holds the incumbents in high regard. In particular, he has the greatest admiration for the present President as a person, and is mindful of the fact that he is a Bharat Ratna. The reader is requested to keep that declaration in mind while reading what follows.

It is necessary to remind the readers that in a sense the President of India and the Supreme Court are the originators of the ILR project. Though the National Water Development Agency had been carrying out studies for two decades, there was no river-linking project on the anvil up to mid-2002. It was a speech by the President that gave impetus to the idea, and following that, an application by the amicus curiae led to the Supreme Court's observations asking the Government of India to accelerate the time-frame for the completion of the links. The Prime Minister's announcement of the Project and the establishment of the Task Force followed. It seems fair to say that but for the interventions of the President and the Supreme Court, there would have been no ILR Project for us to discuss today.

The National Democratic Alliance Government was committed to the project, but perhaps the present United Progressive Alliance Government is less so. That seems a reasonable inference from the fact that the Common Minimum Programme (CMP) of the UPA states that a comprehensive assessment of the project will be undertaken in a fully consultative manner. That process has not started as yet. Meanwhile, the President continues to commend the project in his speeches on various occasions, and the Government of India is under an obligation to report periodically to the Supreme Court on the status of the project. Those two factors indirectly act as a kind of pressure on the Government, even if that is not the intention.

It is clear that the President is convinced that the linking of rivers is a good and necessary idea. One does not know the processes by which he arrived at that firm opinion; perhaps it is an old belief that he has held for a long time. He cannot be unaware that the contrary view has been expressed by many, including some scientists, engineers, economists, sociologists, environmentalists, social activists, and so on. There has been no opportunity for the critics of the project to explain their points in detail to the President. However, leaving that aside, let us accept that the President is convinced of the goodness of the project. The question that one would like to ask respectfully is whether it is proper for a constitutional President to act in public as an advocate of a specific project, particularly after a change of government and the announcement by the new government of an intention to review it.

Can one take it that in this matter the President is speaking in his personal capacity? Such an argument is untenable. While a Minister or a civil servant can occasionally claim to be speaking in a personal capacity, the President is always presumed to speak for the Government that he heads. He may of course speak as an individual in private, but surely not in public. Besides, it is as President of India and not as an individual that he is requested to grace various occasions and deliver speeches or addresses. It is on such public occasions that he has been commending the ILR Project. His advocacy assumes importance precisely because he is the President. One must assume that he is aware of this, and that he espouses the cause of the Project in public because of that awareness. In other words, the advocacy must be assumed to be deliberate and well-intentioned.

The question of propriety remains. It is of course true that apart from acting on the advice of the Council of Ministers, the President also acts as the conscience-keeper of the Government and occasionally draws the attention of the Government to certain matters or developments that cause concern. Several former Presidents have done so. The President may even refer to particular cases of apparent hardship or injustice that are brought to his notice. However, he generally does so in confidential communications to the Government or in conversations with the Prime Minister. Occasionally, he may consider it necessary to utter cautions or admonitions in his public addresses, but such occasions are exceptional and the matters in question must be of great national importance or concern, such as (for instance) corruption in public life or disharmony between communities. It seems very doubtful whether that right of advice and caution can be invoked in aid of the public advocacy of particular policies or courses of action or projects. In the case of the ILR Project, the President's advocacy has the effect, doubtless unintended, of making it difficult for the Government to undertake the "comprehensive assessment in a fully consultative manner" that the CMP had promised.

Turning now to the role of the Supreme Court, many questions arise.

First, do the S.C.'s observations in this case amount to a direction or not? Regardless of what Justice Kirpal is reported to have said on that subject after his retirement, it is clear that the Government has taken the S.C.'s desire for an acceleration of the time-frame for the project as a direction, and that by receiving and considering status reports on the project the S.C. has implicitly endorsed that interpretation.

Secondly, did the S.C. have material before it warranting a direction? There was a rather cautious affidavit by the Government of India referring to the financial, political and other difficulties involved, and indicating a fairly long period for action, and a submission by the Tamil Nadu Government supporting the idea of river-linking. Other State Governments had not responded to the S.C.'s notice. Was that an adequate basis for the S.C. to come to conclusions? If the Court wanted to enter into such a major matter with so many implications, and involving investment of a staggering magnitude, should it not have consulted a wide range of expert opinion (engineering, financial, economic, sociological, environmental, ecological, and other) before venturing to issue directions?

Thirdly, there are set governmental requirements and procedures (statutory, executive) for the preparation, examination, evaluation and approval of such projects. Was it proper for the S.C. to issue directions at a time when those requirements and procedures had not been gone through — when in fact the project had not even been properly formulated? At a later stage, the Court did say that the normal procedures must be gone through. If so, on what basis did it assume approval to the project and want the time-frame accelerated?

Fourthly, was it proper for the S.C. to ask the Government to accelerate an investment of this magnitude (Rs.5,60,000 crore at an initial estimate), which did not figure in the national Plan at that stage? Did that not amount to a short-circuiting of the Planning process, and an altering of priorities?

Finally, was it within the province of the S.C. to issue such a direction, and then to monitor implementation? Do not such actions fall squarely within the executive sphere? One is not questioning what has come to be known as `judicial activism' but asking whether this is an instance of legitimate judicial activism. The S.C. can (perhaps) direct the Government to ensure that the fundamental right to drinking water is met, but can it also prescribe the modalities (river-linking or any other) of doing so? It may (perhaps) desire the Government to obviate inter-State river water conflicts such as the Cauvery dispute, but can it say that this should be done by bringing water from another river? Perhaps the S.C. was under the impression that it was merely speeding up an existing project that was languishing in the executive sphere. If so, it was under a wrong impression, because the national planning process did not at that stage have any such project in view. Lastly, judicial activism sometimes takes the form of asking executive authorities to perform their statutory functions, but this case cannot be brought under that category. Asking municipal authorities to perform their duty of clearing garbage, and asking the Government of India to link the nation's rivers, are two very different things. (Incidentally, executive action in pursuance of a judicial direction might be rendered exempt from recourse to a writ petition by a citizen as also from judicial review; one wonders whether the learned judges considered that aspect.)

It is genuine concern and bewilderment that prompt these questions. The writer hopes that the President of India and their Lordships in the Supreme Court will not hold them to be improper, but will give them due consideration.

(The writer is former Secretary, Water Resources, Government of India.)

Printer friendly page
Send this article to Friends by E-Mail

Opinion

News Update

Stories in this Section

NON-IDENTICAL SUPER TWINS

JHARKHAND CHEMISTRY

Preserving proprieties

The kindness of animals

The Chavez phenomenon and the U.S.

Bhakti personified

Anecdotes