In early May, the ministry of water resources filed an affidavit in the Supreme Court, annexing with it the resolution constituting the task force for the interlinking of rivers, a time-table for the project, other resolutions nominating part-time and full-time members of the task force and so on. The hearing of the case was a ringing reminder that the apex court continues to play the role of overseeing this mega-project. It is a role, however, that requires closer examination.

At every stage of the case on the networking of rivers, the court had two options before it. At each stage the court took the option that appeared less convincing. The seeds of the case in the court were sown by some words that President A.P.J. Abdul Kalam included in his speech on the eve of Independence Day last year. In words that were more a comment on the technical capacity of the nation to execute the project rather than its feasibility, or indeed desirability, the president 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".

It has been recently suggested that the president had not been properly briefed on this statement. However, more than the accuracy of what he said, it is the legality of what followed that deserves closer scrutiny. The president’s speech was made an annexure to a small application on the need for the inter-linking river project which was filed in the Supreme Court soon after.

The court had two options at that stage: Either to dismiss the application so filed, or entertain it. The court was technically not wrong in converting the application in an unrelated pending case into an independent Public Interest Litigation for indeed "Procedures are but be a handmaiden to Justice". The larger point is that the Supreme Court had repeatedly and consistently taken a view in the past that large infrastructure projects invariably raise technical and policy issues — "intricate questions of science and engineering" — which the courts are ill-equipped to handle. Notwithstanding this, the court entertained the application. On issuing of notices to all the state governments of the Indian Union, only two affidavits were filed. One by the Union of India and the other by the state of Tamilnadu.

In the light of that fact the court again had two options. It could have given more time to all the states to file a response to the application, in view of the scale and implications of a mega project like the interlinking of rivers, or it could have gone ahead with interim orders pending the states’ response on the issue. The court again took the latter option and in so doing again appeared very unconvincing. Significantly, the court said that as apart from the Union of India and the state of Tamilnadu, "no other state or Union Territory has filed any affidavit...The presumption therefore clearly is that they do not oppose the plea made in this writ petition and it must be regarded that there is a consensus amongst all of them that there should be interlinking of rivers in India". This appears an overhasty conclusion.

In most big PILs it is common to see states seeking more time to file their responses and in such cases there has never been a presumption that the state agrees with the contentions of the petitioner. 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 this issue. Indeed, since the court presumed the consensus, some chief ministers have openly voiced their criticism of the project, thus implicitly rebutting the court’s presumption.

After giving the aforesaid directions, the court again had two options before it. It could have disposed of the matter in terms of the plea in the application or it could have kept the matter pending. The court again went for the latter option, apparently for no good reason. On the last hearing, while taking note of the number of documents filed by the Union ministry of water resources and recording its appreciation for the work being done by the task force of interlinking rivers, it said "we would direct posting of the matter after six months".

All this is not meant as a comment on the river linking project but on the way the apex court has overseen it. Indeed, having admitted the petition, if the court had chosen not to have presumed a "consensus" it could have helped the project because it would have forced the states to come out with their respective positions. That, in turn, would have facilitated discussions to arrive at a possible agreement on the project.