The judicial go-ahead

Print edition : October 10, 2003

The Supreme Court clears the Tehri dam project by a split verdict but insists that rehabilitation of the affected people be completed before further impounding of water at the dam site is carried out.

A THREE-JUDGE Bench of the Supreme Court on September 1 held by a 2-1 majority that there was not enough evidence to show that work on the Tehri dam project was carried out without complying with the conditions of the environmental clearance and that if there were lapses at any stage, they were being taken care of by the monitoring agencies. The verdict came in response to a petition filed in 1991 by N.D. Jayal and Shekhar Singh after an earthquake measuring 6.1 on the Richter scale hit the Garwhal region, affecting Uttarkashi and Chamoli as well as the dam and Tehri town. Environmental activist Sunder Lal Bahuguna filed an intervention application in 1995, producing as evidence on-the-spot studies of the impact of the project on the environment and the people of the region.

The Tehri dam site and the Old Tehri town, now in Uttaranchal.-M. LAKSHMANAN

Reacting to the judgment, Rajeev Dhavan, one of the advocates for the petitioners, said: "The Supreme Court had a timely opportunity to lay down a due process for large projects to address their social and environmental repercussions."

The dam, which would have cost more than $3 billion (about Rs.14,400 crores) when completed, is being constructed in the Upper Ganga basin. The 2400-MW project envisages the construction of a 260.5 metre-high earth-and-rockfill dam across the Bhagirathi river, downstream of the confluence of the Bhagirathi and Bhilangana rivers near Tehri town. It is estimated to submerge nearly 100 villages and displace around 90,000 families.

Human rights and environmental activists are opposed to the dam's construction as it is built in an earthquake-prone area. Work on the dam, which had begun in 1978, was stopped in August 1986 because of the perceived danger it would pose to the towns and villages downstream.

In March 1980, the stiff opposition to the dam construction had made Prime Minister Indira Gandhi intervene and order an in-depth review of the project by an expert group constituted by the Ministry of Science and Technology. The working group, which submitted its final report in August 1986, recommended that the project be abandoned although Rs.206 crores had already been spent on it. The Ministry of Environment and Forests (MoEF) endorsed the view of the committee; the Environment Appraisal Committee (EAC), an expert body within the MoEF, ruled that the Tehri project did not merit environmental clearance.

The dam project was revived in October 1986 when the erstwhile Soviet Union agreed to provide financial and technical assistance. The project, initially taken up by the Irrigation Department of the Uttar Pradesh government, was taken over by a joint venture company of the Government of India and the Uttar Pradesh government, called the Tehri Hydro Development Corporation, in 1988.

In February 1990, the EAC withheld environmental clearance for the dam after looking at the ecological and social impact that it would have. In the normal course the project would have ceased to exist at that stage, but surprisingly the matter was referred to a Committee of Secretaries, which reassigned the task to the Department of Mines.

The Environmental Protection Act (EPA) of 1986 made it a statutory requirement to obtain clearance for the dam from the Environmental Department. In July 1990, based on the recommendations of the one-man committee of Prof. Jai Krishna, the MoEF cleared the project conditionally.

The earthquake that hit Garwhal in 1991 revived the debate on and the protests against the location of the dam and the safety aspects but the Ministry of Power maintained that the half-finished dam works were not damaged.

In July 1996, on the orders of the court, the Central government set up a five-member expert committee to study the safety aspects and a 12-member committee headed by Dr. C.H. Hanumantha Rao to study the environmental and rehabilitation aspects. The government partially accepted the Hanumantha Rao Committee recommendations. It also accepted the recommendations of the expert committee but felt that there was no need to conduct a 3-D Non-Linear analysis and a Simulated Dam Break Analysis, both of which were suggested by the expert committee as a matter of abundant caution. This decision was taken despite the government being under an obligation to undertake additional safeguards because of the `precautionary principle' contained in the Rio Declaration on Environment and Development, 1992 to which India is a signatory.

This aspect has been highlighted by Justice D.M. Dharmadhikari in his dissenting judgment of September 1. He points out that according to this precautionary principle, the government cannot be allowed to claim scientific uncertainty of 3-D Non-Linear Analysis to avoid taking effective measures to prevent environmental degradation.

Justices S. Rajendra Babu and G.P. Mathur in their majority judgment, while arguing for striking a balance between ecology and development said that the right to development was an integral part of human rights. Since the construction of a dam or a mega project was an attempt to achieve the goal of wholesome development, such works could be treated as integral components of development, they said.

The majority judgment agreed with the decision in the Narmada case (Narmada Bachao Andolan vs. Union of India, 2000) that the questions as to whether to have an infrastructural project or not, the type of project to be undertaken and how it is to be executed are part of the policy-making process and the courts are ill-equipped to adjudicate on them. But the courts have the duty to see to it that in the undertaking of such a decision, no law is violated and people's fundamental rights as guaranteed under the Constitution are not violated, the judgment noted

An important difference between the Tehri and Narmada projects is that the clearance in the Narmada case was given in 1987 while the writ petition was filed in 1994. The notification under the EPA in 1994 was deemed not applicable in that case and the issue of the applicability of the EPA itself was not gone into. However, in the Tehri case the project proceeds on the presumption that the EPA is applicable in its case.

The MoEF cleared the Tehri project in 1990 on the understanding that the required environmental studies would be completed within a specified period and that preventive and mitigative measures would be carried out pari passu with the construction work. This means that conditions laid down by the Hanumantha Rao Committee had to be implemented simultaneously as the construction work progresses, so that by the time the engineering works are finished the conditions should have been fulfilled.

Says Rajeev Dhavan: "There are few projects in India which are resolved pari passu. Although extracted from commercial law, it must not be seen as an ideal requirement to protect preference but mandatory to protect the environment and address the social impact of the project. What we leave behind if pari passu is not followed is a debris of unfulfilled conditions, environmental havoc, social uprooting and uncomputed loss."

THERE are instances of large dam projects being stopped because they did not comply with environmental standards. These include two projects in the United States - the Walisville project, where work on the dam was stopped because of non-compliance with the provisions of the National Environmental Policy Act, and the Tellico dam project, which was stopped (even though a major portion of it had been completed) because a certain species of fish would be endangered.

Ashish Kothari has pointed out (Frontline, August 11, 1995) that a review by the EAC in 1995 revealed that nearly 90 per cent of all hydroelectric and irrigation projects in India did not fulfil the required conditions that these projects had been cleared under. According to him, the EAC found that the MoEF rarely took stringent action despite being apprised of the huge scale of defaulting that was taking place, and had on no occasion halted construction work or prosecuted officials concerned even in cases of extreme violation of conditions.

The conditions the MoEF had fixed at the time of granting clearance to the Tehri dam have to be fulfilled pari passu as the construction of the dam includes treating the entire degraded catchment area, developing the command area to prevent water logging and salinity, conducting studies of the flora and fauna, setting up water quality monitoring stations, developing the Bhagirathi basin, undertaking a study of the health impact of the reservoir, and framing a disaster management plan.

On the issue of rehabilitation, the court has agreed with the Hanumantha Rao Committee recommendations of providing only two acres of land to each displaced family as opposed to the Sardar Sarovar Project where each family is getting a minimum of two hectares. This is because the Tehri project is being carried out in a hilly area where land is scarce.

A recent report of the Project Monitoring Committee constituted to monitor the Tehri project (which included a representative from the Ministry of Power) notes that rehabilitation efforts have not been successful on the ground. It says that out of the 5,129 families in Old Tehri town, only 3,000 have shifted to New Tehri town.

Says Sanjay Parikh, another advocate for the petitioners: "We expected that the court will come out with guidelines on rehabilitation based on human rights principles and Article 21 of the Constitution. But this did not happen."

Justice Dharmadhikari, in his dissenting judgment, noted: "...when natural resources are exploited in a big way for big projects by the State... social conflicts arise as a natural adverse consequence... When such social conflicts arise between the poor and more needy on one side and the rich or affluent or less needy on the other, prior attention has to be paid to the former group which is financially and politically weak." He added that in order to avoid mistakes in the resettlement and rehabilitation of people ousted by similar projects in the past, the construction of the Tehri dam should not be allowed to proceed and leave the oustees high and dry.

For those who have been fighting for the rights of those affected by the project, the judgment does have a few positive aspects. The Court has ruled that the project authorities have to ensure that prior to closing the diversion tunnels for the impoundment of water in the reservoir, evacuation, resettlement and rehabilitation are completed in all aspects.

Vimal Bhai, an activist with the Matu People's Organisation, said: "The judgment has accepted the politics of dam building but it does have a human face."

Dhavan, for his part, said: "The success in this case is the one-third moral success of the dissenting judgment. The other partial success is that the tunnels cannot be blocked until rehabilitation is done."

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