One wonders why is the Supreme Court of India taking an executive's role and why is our President issuing statements based on selective memory of his own assertions on the issue of the proposed interlinking of rivers.

The success of a democracy, especially one based on a federal system, depends largely on an impartial and independent judiciary endowed with sufficient powers to administer justice....judges can import their personal views in interpreting a statute but they must not assume the role of guardians of public morality and should not play god. A distinction must be drawn between personal idiosyncrasy and incorporation of new social policies in the administration of law.

By and large, our Supreme Court and High Court judges have borne these principles in mind. Except in rare cases, our judges have been incorruptible, impartial and independent. The courts have been active in enforcing the fundamental rights of the citizen against the state.

In public interest litigation, they have rendered considerable service to bonded labour and child labour and in cases relating to pollution and environment. Some of them might have gone too far in public interest litigation, carried away by the praise showered on activist judges. And the activism being shown by the Judges in the proposed interlinking of rivers project falls in this category.

It is not great jurisprudence to suggest that ways of waste managment without understanding the basic tenets of the management.

In Delhi the waste total waste generated is more than 8, 000 Metric Tonnes, if one were to follow the logic of these Judges, it would be an enormous problem which should be dealt with the help of a mega project and this mega project model should be imposed on all small towns in national interest.

But in reality it is a problem of each colony where just about 50-100 kilo grams of waste is to be managed. It can be managed locally on a partcipatory model.

If there is water problem in various parts of the country. Each local region will have its own solution. The judges' strange reasoning of preapring a dress which will fit all size of people defies understanding.

In the past, the judiciary was acknowledged as the least corruptible of all departments.

The issue in question is a petition filed by amices curiae Ranjit Kumar on 31st October 2002 in the apex court where the Judges led by the then Chief Justice B. N. Kripal had rejected the plea of the government that the linking of rivers was time consuming and would take at least 40 more years to work out. The Judeges asked the government to link the rivers by the year 2012.

This observation was made by Justice Kripal just a day before his retirement and a day after retirement he said, it was an obiter dicta (said in passing) not an order. Obiter dicta: Words of an opinion entirely unnecessary for the decision of the case.

Whether or not a particular pronouncement (technically called a precedent) by a judge sitting in court when deciding a case does become binding (according to the doctrine of "stare decisis" - stand by what has previously been decided) on later judges depends on two main factors. One, the pronouncement must be made by a court of sufficient seniority. Two, the pronouncement must have formed the ratio decidendi of the case (the reasoning behind the decision). The reasoning must be a matter pertaining to the law rather than a factual decision. In addition, the pronouncement must not be obiter dictum - something said either about the law or the facts of the case which is "by the way", in other words, not strictly necessary for the legal basis for the decisions.

Pursuant to this "by the way" statement of the apex court which is not strictly necessary for the legal basis for the decisions, the government constituted the task force which after working out the time schedule had informed the court that it was possible to get major rivers interlinked by the year 2016.

Ranjit Kumar had filed the petition following the speech of President A P J Abdul Kalam on the ever of the independence day suggesting inter-linking of rivers to curtail shortage of water and control floods.

The President in his independence day speech on 14th August 2002 said, "...One major part of the water mission would be networking of our rivers. Technological and project management capabilities of our country can rise to the occasion and make this river networking a reality with long term planning and proper investment. In addition, the vast sea around us can help by providing potable water through desalination as a cost effective technology. There are of course short-term techniques such as water harvesting by revitalizing rural ponds, water recycling to water conservation. Such programmes should have a large-scale people participation even at the conceptual and project planning stages. The entire programme should revolve around economic viability leading to continued prosperity for our people with larger employment potential, environmental sustainability, grass root level motivation and benefit sharing."

Unmindful of his last year speech, which underlined that "such programmes should have a large-scale people participation even at the conceptual and project planning stages, " honorable President in his independence day speech on 14th August 2003 said, the first mission on the Networking of Rivers is under active consideration of my government and from the task team evolving the plan of action, we must move on to a mission mode programme including an ecological enhancement plan for executing the project. This mission will eliminate the periodical problem of droughts and floods experienced in a number of river basin states and provide both water and power security. In addition the nation has to embark on water harvesting and desalination of seawater as national missions.

The President has not paid even an iota of attention to the participatory democratic decision making process which he mentioned in his 2002 speech in gross violation of his own words, which in real terms is the bedrock of democracy. The Freedom of Information Bill, 2000 introduced in Lok Sabha on 25 July, 2000 was passed as The Freedom of Information Bill, 2002 by Lok Sabha on December 2002 in pursuance of Article 19 of the Universal Declaration of Human Rights. Rajya Sabha has also passed it. Although the President has given his assent in January 2003 and it has been notified in the Gazette of India as Act No. 5 of 2003 to make democracy and the rule of law work effectively through a mechanism of accountability but the government is yet to notify a date from which the Act will come into force.

The Act envisages the appointment of Public Information Officer (PIO) in every Government Ministry and Department to attend to the demands of the people for official information against nominal service charge for certified photocopies of the documents. Officials are also to be made accountable for non-compliance but for this purpose government has not amended the relevant provisions of the Central Civil Services (Conduct) Rules and the All-India Services (Conduct) Rules. Despite the legal right of citizens having been granted by the Parliament and the President to seek information, the Task Force has remained non-transparent.

The Prime Minister announced on 15 August 2003 that the ambitious project to link all major rivers of the country will start by the end of this year. While the first project will link the Ken and Betua rivers in Uttar Pradesh and Madhya Pradesh, the second will connect the Parvati, Kalisindh and Chambal rivers in Madhya Pradesh and Rajasthan.

On 30th September 2003, the water resources minister Arjun Charan Sethi informed Bangladeshi officials that its proposal to link the rivers was only at a "conceptual stage". On 9th October, 2003, the Indian High Commission officials in Kathmandu informed that they have conveyed to the Nepal government that the project was at a amorphous stage. But the President has said that active consideration of my government and from the task team is evolving the plan of action. Not only that the Prime has identified two of the river links which is to commence from the end of this year.

The government has ignored president's advice given in his 2002 speech on large-scale people participation at the conceptual and project planning stages and has chosen to impose the river linking on the country autocratically. Although only lip service is being paid to the environmental sustainability, the bench said in its last order that "We find no substance in the apprehension that the Task Force will not implement the law. We have also no doubt that in case the other experts in the field provide necessary inputs to the Task Force, it will give it due consideration the same deserves."

Responding to the submission by the Attorney-General, Soli Sorabjee's on negotiations and signing of agreement for consent of the affected States, the Supreme Court bench said "if a legislation under Entry 56 of List I of the Constitution was made, the need for consent would not arise and the Centre would be in a position to undertake and complete the project. The Centre could consider this aspect and, if so advised, could bring in legislation in Parliament." The next date of hearing is on 5th November 2003 and the apex court might take note of Kerela assembly's resolution denouncing river linking.

The apex court in its latest order of 10 November, 2003 has asked the Central Government to give a status report detailing the progress made in the ambitious Rs 5,00,000 crore river networking project to link major rivers by 2016.


A bench comprising Justice Y.K. Sabharwal and Justice S.B. Sinha has given four weeks time to the government to file an affidavit detailing the progress made in the working out of the action plan II of river networking dealing with funding and execution of the project and suggested methods of recovery of revenue.

The counsel for the Central Government informed the court that the river networking has been taken up by the government with utmost priority and that it has already taken up work in rivers Betwa and Parvati in the states of Madhya Pradesh and Uttar Pradesh. He said that for Betwa river, the feasibility report of the link has already been drawn and at present a detailed project report is being worked out. For Parvati river, the feasibility report was being worked out.

The Press Trust of India has reported that the second phase of work has already begun.

Appearing for the Centre, counsel Sayed Naqvi stated that a task force under the chairmanship of former environment minister Suresh Prabhu has already identified 30 major links in networking of the rivers to minimise the devastation caused by flood and hardship by drought.

The Task Force in April had considered and adopted the first action plan, which gave the outline of the time schedule for completion of feasibility studies, detailed project reports, estimated cost, implementation schedule, concrete benefits and advantages of the project. The Centre said that under the action plan II, two committees have been set up under K.V. Kamath to look into the financial aspect of the project.

The civil society groups opposing river linking ought to persuade the Attorney-General about the disaster involved in the river linking project so that he can argue for the democratic right of states and its citizens as he has done in the case where the Court passed a judgement saying Workers do not have the moral Right to Strike. The Attorney-General spoke in favour of the Workers Right-saying the Court's concern is to limit itself to legal interpretation and not to the moral ones. The Supreme Court is likely to review its order. The order in the case of Inter Linking of Rivers must also be reviewed.

Lgeal analysis in the sense of chemical analysis, reducing complicated and otherwise incomprehensible issues to their fundamental constituent parts will make the Judges follow the principles of empirical science based on clear and evident observations of facts.

All the scholars of law know that much of English legal thought perhaps being followed by the concerned judges is obscure, non-scientific, high-minded and not empirical. It is high time Indian jurists paid heed to analysis in their judegments to banish these anti-scientific elements from legal thinking.

Judges at all levels have, by and large, justify the confidence reposed in them. But there is scope for improvement in several spheres and it is up to the judiciary itself to rectify the defects in its role and prove to the public that as long as there is an efficient, impartial, independent and incorruptible judiciary, democracy in India will be safe from the tyranny of the executive and also from the tyranny of the judiciary.