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Judicial Control of Policymaking and Implementation

The Supreme Court has handed down an extraordinary decision with some extraordinary arguments directing the central government to execute the "river interlinking project". How could the Court which says "it can hardly take unto itself tasks of making of a policy decision or planning for the country on the need for acquisition and construction of river linking channels" then go on to actually take the very same policy decision and create an implementing mechanism that cannot open the policy decision itself? Should not the judgment be reviewed?

COMMENTARY

Judicial Control of Policymaking and Implementation

Interlinking Rivers

Videh Upadhyay

The Supreme Court has handed down an extraordinary decision with some extraordinary arguments directing the central government to execute the “river interlinking project”. How could the Court which says “it can hardly take unto itself tasks of making of a policy decision or planning for the country on the need for acquisition and construction of river linking channels” then go on to actually take the very same policy decision and create an implementing mechanism that cannot open the policy decision itself? Should not the judgment be reviewed?

Videh Upadhyay (videhup@gmail.com) is a lawyer and consultant based in New Delhi.

...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. 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.

–Supreme Court, February 2012.

T
ake a close look at the aforesaid important words of the Supreme Court from its recent judgment on 27 February 2012.1 From these words you shall find it difficult to understand how the Court, while inferring that on interlinking rivers, the “reservations of the States cannot be ignored” and acknowledging that “these are matters which squarely fall within the domain of general consensus, and thus, require...Government or the Legislature” went on to eventually direct the “Government of India, to forthwith constitute a Committee”, that “shall take firm steps and fix a defi nite timeframe to lay down the guidelines for completion of feasibility reports or other reports and shall ensure the completion of projects...”. Let us understand this more and dig a little deeper.

‘By and Large Unanimity’

Given that there was a clear recognition of reservation of states, the need for general consensus, and that this is a task best left to the government or the legislature, the Supreme Court’s operative directions are apparently incredible. How did the Supreme Court manage to do that? The answer is in the Court’s inference that the stand of the states before it shows that “by and large, there is unanimity….”. Once this “by and large unanimity” is seen then the non-execution

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of the project simply becomes a straightforward question of governmental lethargy. This then allows the Supreme Court to easily say what it said in its February judgment:

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 affi davits fi led 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.

This inference of the unanimity of states on the project has an interesting history within the Supreme Court. Recall that in the early days of the case before the Court in September 2002, the Supreme Court issued a notice to the central government and to all the state governments on an application (later converted into a separate writ petition) relying primarily on some words in favour of the project that the then president, A P J Abdul Kalam, included in his speech on the eve of Independence Day in 2002.2

In the initial years of the pendency of the case only two affidavits were fi led before the Supreme Court, one on behalf of the central government and other on behalf of Tamil Nadu. In their affi davit, the central government explained the steps taken by the Ministry of Water Resources with respect to the said project and also stated that a high-powered task force will be formed to create consensus among the states. Tamil Nadu in its affidavit supported the concept of interlinking rivers and stated that this project had been on the cards of the central government in the last two decades, how ever, no considerable progress had been made, and, therefore, the Supreme Court should immediately issue directions.

These two affidavits became the basis for the Supreme Court’s order on 31 October 2002 where, while recording the averments made in the affi davits, the Court stated:

No other State or Union Territory has fi led any affidavit and the presumption, therefore, clearly is that they do not oppose the prayer made in this writ petition and it

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COMMENTARY

must be regarded that there is a consensus amongst all of them that there should be interlinking of rivers in India.

This appeared to be an overhasty conclusion at that time. Even assuming that the Court felt that the non-filing of the responses could mean that there was no opposition to the pleas made in the petition, it is far-fetched to assume that there was a “consensus” on the issue at that time.3

That same logic of consensus presumed then in 2002 has returned fi rmly in the recent judgment of the Supreme Court. To be sure, after the initial two affidavits, following some “judicial prodding”, there were some other states that filed their affi davits before the Supreme Court in later years. The position of the states in these affidavits is best captured in the words of the Court itself:

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 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 interlinking must be from water surplus to water deficit States and in regard to environmental and fi nancial implications. Some of the other States are not connected with these projects as they have no participation in interlinking of rivers. The State 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 intricate network of natural and man-made channels. It is also the case of the State of Kerala that their rivers are monsoonfed and not perennial in nature, therefore, Kerala experiences severe water scarcity during summer or off-monsoon months.

Again take a hard look at the position of the states. Going by the position as summarised by the Court itself, four states approve of the project, four other states have given “qualified approvals” – but as the Court noted with reservations that cannot be ignored – and one state rejected the project. Does this amount to “by and large unanimity”? Does this support the Court’s conclusion, in its words, that “it is clear that primarily there is unanimity between all concerned authorities including the Centre and a majority of the State Governments, with the exception of one or two, that implementation of

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river linking will be very benefi cial”? Judges formed one view on the basis of the position of the states. Can they deny that, at the very least, another view is possible on these facts and fi ndings?

Courts’ Role When Another View Is Possible

Take the case of Kerala. Soon after the February judgment of the Court, the chief minister of Kerala said that the judgment will not apply to Kerala or its rivers. This begets a question – can the Supreme Court strike down a policy decision of the state government merely because it feels that another policydecision would have been fairer, or wiser, or more scientific or logical? A number of earlier judgments of the Supreme Court itself say that the Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fi de, and on not on any other ground.4

It is also instructive to take note of the fact that the Supreme Court has relied extensively and almost exclusively on a report of the National Council for Applied Economic Research (NCAER) that outlines various benefits of the river interlinking programme. The Court then delves at some length on the financial aspect of the programme, including what it says “the two concepts of great relevance: firstly, the investment strain and secondly, the scope of financial investment and its recoupment”.

It then lays down some economic data and figures before concluding the discussion of the financial aspect saying, “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 roll-out plan would also help in reducing the impact on public fi nances”. Given these stances of the Court, it will suffice to take note of unforgettable words of Justice Frankfurter (and words that have been adopted and used by the Supreme Court in many of its decisions ever since) on how courts need to see regulatory measures involving economic dimensions who said:

The Courts have only powers to destroy and not to reconstruct. When these are added to the complexity of economic regulation, the

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uncertainty, the liability of error, the bewildering conflict of experts, and the number of times judges have been overruled by events, self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.5

It is not that the Supreme Court in the river-linking case has missed the need for self-limitation. In fact, in the February 27 judgment itself, the Court records in unmistakable terms 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 se on the other. It will be very diffi cult 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. ...The Court can hardly take unto itself tasks of making of a policy decision or planning for the country or determining economic factors or other crucial aspects like need for acquisition and construction of river linking channels under that programme. 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 fi elds, without any tools and expertise at its disposal. The requirements in the present case have different dimensions. The planning, acquisition, financing, pricing, civil construction, environmental issues involved are policy decisions affecting the legislative competence and would squarely fall in the domain of the Government of States and Centre…. this Court may not be a very 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 interlinking of rivers programme for the benefit of the nation as a whole.

From the above, by extracting all the words except the very last line it would seem to suggest that the courts needed to take its “hand off” the case and over the project. But then as the “bottom line” quoted above shows the Court felt that while it may not have the authority or the expertise to take the project, it needs to create an “appropriate body” to “plan, construct and implement” the interlinking of rivers. It then went on to direct constitution of “Special Committee for Interlinking of Rivers” forthwith.

COMMENTARY

Then a series of operative directions follow from the Court making clear that the “Special Committee” is only an implementing body for a final and irreversible policy decision taken judicially. Thus, the Court says that – “Upon due analysis of the Reports and expert opinions, the Committee shall prepare its plans for implementation of the project”; and adds “we have no hesitation in observing and directing that time is a very material factor in the effective execution of the Interlinking of Rivers project”, and finally: “It is directed that the Committee shall take firm steps and fi x a definite time frame to lay down the guidelines for completion of feasibility reports or other reports and shall ensure

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the completion of projects so that the benefits accrue within reasonable time and cost”.

How could the Court say that “it can hardly take unto itself tasks of making of a policy decision or planning for the country on the need for acquisition and construction of river linking channels” and then go on to actually take the very same policy decision and then create an implementing mechanism that cannot open the policy decision itself? There is lot of talk amongst, experts, nongovernmental organisations (NGOs), and even some state governments that the Supreme Court needs to be approached again for a review of its decision. Well, why not?

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Notes

1 In Re: Networking of Rivers, Writ Petition (Civil) Nos 512 and 668 of 2002; MANU/SC/0155/2012.

2 This author noted at that time that “In words that were more a comment on the technical capacity of the nation to execute the project rather than its feasibility, or indeed desirabi lity, the president had observed that Technological and project management capabilities of our country can rise to the occasion of making this river networking a reality with long term planning and proper investment”. See Videh Upadhyay, “River Links and Judicial Chinks”, Indian Express, 26 July 2003.

3 Indeed, soon after the Court presumed the consensus, some chief ministers openly voiced their criticisms of the project, thus, implicitly rebutting the Court’s presumption.

4 See for example, separate Supreme Court judgments reported in (1986), 4 SCC 566; (1992), 2SCC, 343; and (1994), 2 SCC 691.

5 Justice Frankfurter in Morey vs Dond (1957) 354 US 457. It has been quoted by the Supreme Court in its judgments including in R K Grag vs Union of India & Ors, (1981) 4 SCC 675.

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