Guest Article by Shri Manoj Misra
Delhiites in early-mid April 2020 were pleasantly surprised to find a much healthy river Yamuna in their city. Social media was full of pictures and videos. Many had resigned not to find a living Yamuna in the city in their lifetime. But the pleasant fact was that the river in the city had indeed as if by magic come alive and presented a picture that was hard to believe. There was a river side which did not stink and looked cleaner than usual.
Most thought that a strict national level lockdown due to Covid pandemic had helped the river recover since all industrial activities had come to a grinding halt. Yamuna Monitoring Committee (YMC) of National Green Tribunal (NGT), to ascertain the real facts requested the Delhi Pollution Control Committee (DPCC) and the Central Pollution Control Board (CPCB) to conduct a survey and report.
The YMC on receipt of the said reports concluded that ceasing of industrial activities (industrial effluents from 28 industrial clusters and some 51,000 household level industries and dumping of different kinds of wastes etc) due to lockdown did have a salutary impact on the river’s health. But equally important was significant increase (5 to 6 fold) in fresh water availability during the month of April downstream of the barrage at Wazirabad in Delhi thanks to copious rainfall due to western disturbances. The YMC thus observed that “… therefore, for improvement in water quality, availability of fresh water in significant quantities is of importance …”
It would be useful to understand as to how and where the river’s natural flow has disappeared?
Decade of 1990s
Let the river flow unpolluted (Judicial Action)
A public interest litigation (PIL) was filed at the Supreme Court of India as W.P. (C) 537 of 1992 by former Naval Commander Sureswar D. Sinha.
This petition was filed to seek the enforcement of measures to stop the pollution in the river Yamuna in Delhi. It also sought court’s orders to permit fair levels of water flow in the rivers Ganga and Yamuna that have been severely curtailed depriving millions of people in downstream areas of the benefits of these rivers. Wildlife and fish have been killed and been deprived of fresh water that once flowed in these rivers.1
One of the key contentions of this case was that ‘the Central Govt has no right to approve plans that kills Yamuna River for nine months in the year by virtually stopping its flow….’
Yamuna Action Plan (Executive Action)
Yamuna Action Plan (YAP) phase I began in April 1993 as an externally aided project (loan from JBIC, since renamed JICA). Implemented like Ganga Action Plan (GAP) as primarily a pollution abatement effort in 21 cities in Haryana and UP and the National Capital territory of Delhi, it claims to have created a total sewage treatment capacity of 753 MLD (million litres per day) at a cost of Rs 682 Crores. The project slated for completion in 2000 was extended till 2003.
YAP II began, again with JICA assistance in 2003 at a total cost of Rs 624 crore for abatement of pollution of river Yamuna in Delhi, UP (98 towns) and Haryana (6 towns). It claims to have created additional sewage treatment capacity of 189 MLD.
Yamuna Action Plan III, again with JICA assistance with a projected life span of 7 years is underway since 2012, aimed at pollution abatement in Delhi. The cost estimate of YAP III is Rs 1656 Crores and its components include rehabilitation of damaged trunk sewers in the Kondli and Rithala catchments; rehabilitate and modernize STPs at Okhla, Rithala and Kondli in tune with the under preparation sewerage master plan for the city.
Thus an effort to ‘clean’ river Yamuna is underway with external assistance (overseas aid) since 1993 to little effect despite claims of creation of a number of sewerage related assets.
EIA Notification 1994 (Quasi Legislative Action)
The 42nd amendment to the Indian Constitution in 1975 amongst many other changes obligated the State as under:
“The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”. (Art 48A)
The Environment (Protection) Act (EPA) was accordingly enacted by the Parliament in 1986.
The EPA was consequent to India’s participation at the Stockholm United Nations Conference on Human Environment (UNCHE) in June 1972 and the trigger was the unfortunate MIC gas leak disaster on the night of 2-3 December 1984 at the Union Carbide factory in Bhopal, MP that killed thousands and affected hundreds of thousands.
Section 3 (2) (v) of EPA 1986 reads:
The Central Government shall have the power to “restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.”
Consequently the Central Government acting through the Ministry of Environment & Forests (MoEF) notified three areas as ‘restricted’. These were Doon Valley (then UP and now Uttarakhand) in 1989; Dahanu Taluka (Maharastra) in 1991 and Aravalis range (Rajasthan & Haryana) in 1992.
Three categories of Industries were identified namely Green, Orange and Red and regulations / prohibitions with respect to them were made in Doon Valley and in the Dahanu Taluka. Other than that prior approval from MoEF was required for any mining, tourism, grazing and land use planning in the Doon valley. In the Aravalis range the restrictions related to mining of major minerals.
Earth Summit 1992
Twenty years after the Stockholm Conference in 1972 global leaders met once again at Rio de Janeiro (Brazil) in 1992 in what is popularly called the Earth Summit. Principle 17 of the Rio Declaration obligated all nations “to use environmental impact assessment (EIA) as a tool for informed decision-making towards sustainable development”.
It was expected that the nations shall enact laws for the implementation of EIA as an informed decision making tool. However India, rather than enact a new law, preferred to utilize the provisions of EPA 1986 for the needful. Result was the EIA Notification of 1994.
Notified on 27 January 1994, it was meant “to impose restrictions and prohibitions on the expansion and modernization of any activity or new projects being undertaken in any part of India unless environmental clearance has been accorded by the Central Government or the State Government in accordance with the procedure specified…”
Public hearing to elicit people’s views on the planned activity / project was a key component of the process outlined under the Notification.
Amongst the list of activities / projects covered by the EIA Notification, “River Valley projects” including hydel power, major irrigation projects and/or their combination were prominent.
And Quiet Flows the Maily Yamuna, AQFM case (Media and Judicial Action)
The Hon’ble Supreme Court (SC) of India on 27 February 2012 directed the Central Pollution Control Board, CPCB to take samples of water of river Yamuna from the states of Haryana, Delhi and Uttar Pradesh till Agra and submit its report.
Directions as above were given by the Court during hearing in a public interest litigation, PIL No 725 of 1994. Interestingly the said PIL popularly known as the AQFM case, is based on a 1994 article titled “And Quiet flows the Maily Yamuna” in the Hindustan Times newspaper, which the Hon’ble Court noted and suo moto converted into a public interest litigation with the CPCB as the principal respondent.
CPCB report to the SC based on Yamuna water samples collected in the month of March 2012 found that:
“River Yamuna is not conforming to the desired levels from Panipat downstream to Agra downstream due to higher concentration of one or the other criteria/ pollutants.” The report added that, “efforts of state governments of Haryana, Uttar Pradesh and the National Capital territory of Delhi for collection and treatment of waste water are not showing improvement in the water quality of river Yamuna.”
The Supreme Court after a protracted adjudication with little result has since referred the case to the NGT and it is now tagged with the OA No 6 of 2012 (Maily se Nirmal Yamuna) case at the NGT. A judgment delivered by the NGT on 13 January 2015 is currently under implementation under the supervision of NGT created Yamuna Monitoring Committee (YMC).
MoU between the upper Yamuna riparian states (Executive Action)
On 12th May 1994, chief ministers of 5 basin states of river Yamuna namely Himachal Pradesh, Uttar Pradesh (now since 2001 Uttarakhand as well), Haryana, Delhi and Rajasthan signed a memorandum of understanding (MoU) in the presence of the then union Minister of water Resources for the allocation of surface flow of Yamuna. Currently there are some doubts about the legal validity of the MoU since Rajasthan had objected to a revision in the 1994 MOU as suggested by the state of Himachal Pradesh. Despite that MOU has been put into force.
Broadly the MoU allocated 11.983 BCM (billion cubic meters) amongst the various states against a 75% dependable notional virgin flow in the Yamuna till Okhla in Delhi of 11.70 BCM. It was presumed that the mean year availability in the river is 13.00 BCM and some 0.68 BCM is unutilisable due to flood spills.
In simple language, the entire surface flow in river Yamuna was distributed amongst the various claimant states, with a lament that some flow during monsoon would still be left in the river it being unutilisable (sic).
It may be mentioned that it is at a barrage on river Yamuna at Tajewala (since replaced in 2002 by another barrage little upstream at Hathnikund) in Haryana and another at Okhla in National Capital Territory of Delhi (NCTD) that this agreed sharing was to be executed.
The MoU very condescendingly provided for a minimum flow going upto 10 cumec (350 cusec) downstream of Tajewala/Hathnikund and Okhla throughout the year from “ecological considerations” as upstream storages (read high Dams) are built up progressively in a phased manner.
These upstream high dams were planned to ‘maximize’ (MoU language, not mine) the utilization of the surface flow of river Yamuna. It was as if River Yamuna was an ice cream cone to be sucked dry to its bare bones.
One wonders if the framers of the MoU had any understanding of the meaning of ecological needs of River Yamuna. The largesse of 10 cumec would not last even few tens of km downstream specially during the desiccating summer months when river’s ecological requirements are at its peak.
An interstate agency called the Upper Yamuna River Board (UYRB) was duly constituted on 11 March 1995 to oversee the implementation of the MoU. The MoU is up for a review on request by any signatory state after the year 2025.
Nowhere in the MoU it is explained as to how the figure of 10 cumec was arrived at by the framers of the MoU?
A recent study on E flow in Yamuna downstream of Hathnikund carried out by the National Institute of Hydrology (NIH) at the prodding of the NGT Yamuna Monitoring Committee (YMC) and commissioned by the NMCG (National Mission for Clean Ganga) has suggested a minimum release of 22 cumec (in the month of January) at Hathnikund. Even the findings of this study have been critiqued by experts for its failure to account for the surface – ground water relationships in the river system.
While the MoU speaks of basin states but the fact that its writ ends at Okhla in Delhi and the agency implementing it is called Upper Yamuna River Board, any contracting party has obviously to be an upper Yamuna riparian state.
As geography goes, Rajasthan has little to do with Yamuna till way downstream of the barrage at Okhla in Delhi and is thus not an upper Yamuna riparian state.
A document dated 19 Feb 2019 produced by a consultant for the Rajasthan government titled “Pre-Feasibility Report (PFR) Transfer of Rajasthan share of Yamuna Water at Tajewala Headworks to Churu and Jhunjhunu districts of Rajasthan by Underground Conveyance System” says:
Rajasthan is considered as one of the 6 basin states for Yamuna River as Chambal River which flows through Rajasthan is a major tributary to Yamuna. Other 5 states are Haryana, Himachal Pradesh, Delhi, Uttar Pradesh and Uttarakhand.
Now this is a classic example of geographical illiteracy since river Chambal is hundreds of km away from being an upper Yamuna riparian river and if this is the basis of Rajasthan’s claim then why is the state of Madhya Pradesh (MP) where Chambal originates from and has its major basin coverage not also being treated as an Upper Yamuna Riparian state? Obviously the claim if any of both Rajasthan and MP (hypothetically) in waters of Upper Yamuna till Okhla is based on absurd reasoning.
The only plausible reason that Rajasthan is sitting in UYRB could be its past water sharing relationship with the former undivided state of Punjab, which should have been revisited once Punjab had been divided and Haryana created? There is also a mention in http://www.cwc.gov.in/sites/default/files/legalinst-Vol-III(Part1).pdf of a 1905 agreement between the then Princely state of Bharatpur (now a part of the state of Rajasthan) and the British United Provinces regarding Nandgaon-Dig escape and further Rules dated 9th march, 1909 for running the ‘Dig’ escape. But this was specific to a particular escape originating from the Agra Canal (originating from River Yamuna at Okhla weir in Delhi) much downstream of the then Okhla weir and hence cannot be used as a basis to proclaim Rajasthan, an Upper Yamuna Riparian state. Whatever, this matter needs to be addressed as and when the MoU is reviewed.
The basis of allocation of surface water also requires a much better reasoning and clarity in view of peculiar shape of Yamuna River basin where states like Haryana with maximum current share has hardly any major stream from its territory feeding the river Yamuna.
There is a popular saying in Hindi, sau sunar ki aur ek lohar ki (One hit of blacksmith is enough to outperform 100 hits of goldsmith). This is exactly what the Yamuna 1994 MoU amongst upper riparian states has done.
While quasi-legislative action in form of EIA Notification 1994, executive action in form of Yamuna Action Plan 1993 (with external aid from Japan) and judicial action in form of PIL in 1992 at the Supreme Court by Commander Sureswar D. Sinha and media cum judicial action in the suo moto AQFM case in 1994 at the Supreme Court were all making attempts to improve the health of the river Yamuna, one single Executive action in form of the 1994 MoU signed amongst the upper Yamuna riparian states put paid to all the other actions. For if the river had already been sucked dry at the barrage at Tajewala / Hathnikund then which river is sought to be rejuvenated or cleaned downstream of it?
Another point is that were the framers of the said MoU in 1994 not aware of the various previous or concurrent efforts at river rejuvenation as mentioned above? If they were then how could they not take them into consideration? If they were not then obviously such left hand not knowing what the right is doing in official circles is unacceptable to say the least.
And would at least now necessary amends be made when the MoU comes up for a review post 2025 whereby provision of surface water for the needs of the river is first allocated before the rest is divided based on scientific reasons amongst the ‘true’ upper riparian states. Amen!
Manoj Misra (firstname.lastname@example.org)
Manoj Misra, a former forester is the Convener of Yamuna Jiye Abhiyaan.
- Dutta, R. (2009). The Unquiet River. An Overview of Select decision of the Courts on the River Yamuna. PEACE Institute Charitable Trust, New Delhi.