DROWNED OUT

The Supreme Court's judgment in the Sardar Sarovar Project case comes as a setback to the Narmada Bachao Andolan's decade-long struggle against the adverse aspects of the project.

THE Supreme Court's judgment permitting the construction of the Sardar Sarovar dam on the river Narmada in Gujarat as per the 1979 Award of the Narmada Water Disputes Tribunal has caused dismay among the project-affected families (PAFs) in the Narmada va lley. The judgment, delivered by a three-Judge Bench on October 10, has also created serious doubts over whether the norms regarding resettlement and rehabilitation (R&R), would be properly adhered to, not to speak of meeting the requirement of assessing the Sardar Sarovar Project's (SSP) environmental impact.

The majority judgment, given by Chief Justice A.S. Anand and Justice B.N. Kirpal (who wrote the judgment with which Justice Anand concurred), allowed the construction to proceed immediately up to a height of 90 metres (from the existing 88 m) and thereaf ter up to 138 m in stages. Justice S.P. Bharucha, who had in 1995 ordered immediate stoppage of work at the dam site, gave the dissenting judgment. The court had stayed in 1995 the construction of the multi-crore-rupee project following the filing of a w rit petition by the Narmada Bachao Andolan (NBA), which represented the PAFs, and other non-governmental organisations, challenging the project on several grounds.

The judgment has, expectedly, led to jubilation in the political class in Gujarat, who considers the SSP as the State's lifeline. The governments of the other States involved, Madhya Pradesh, Maharashtra and Rajasthan, have also reasons to be happy about the verdict as they expect to reap the perceived benefits from the project in terms of irrigation, drinking water supply, power generation and employment generation.

The NBA described the judgment as an illogical, dangerous and anti-people one. The Supreme Court had violated the spirit of the Constitution and democratic governance, it said. The NBA contended that the court had neglected the fundamental rights of the most vulnerable sections of society and ignored the serious issues that had been raised regarding the dam. Instead, "it has provided a weapon in the hands of the powerholders to displace the project-affected people indiscriminately and crush their rights ," the NBA said.

The NBA's angry reaction should be seen in the context of its long struggle, primarily for the rights and welfare of the displaced people. The Sardar Sarovar dam is built at Vadgam in Bharuch district. The dam will create a reservoir that will submerge o ver 245 villages and forests, which are home to over 2.5 lakh people in Gujarat, Maharashtra and Madhya Pradesh. But the R&R measures undertaken by the respective governments have been extremely unsatisfactory, according to critics of the dam.

Counsel for the NBA Shanti Bhushan had submitted during the hearing that the forcible displacement of tribal people and marginal farmers belonging to other communities from their land and other sources of livelihood for a project that was not in the nati onal or public interest was a violation of their fundamental rights under Article 21 of the Constitution read with the International Labour Organisation's (ILO) Convention 107 to which India is a signatory. According to this Convention, tribal population s shall not be removed from their habitual territories without their free consent except in accordance with national laws and regulations for reasons relating to national security or in the interest of national economic development. The Convention also p rovides that in cases where the removal of tribal populations is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of the lands they previously occupied.

While nearly the entire population that would be displaced in Gujarat and Maharashtra belongs to the Scheduled Tribes, in Madhya Pradesh a substantial section of project-affected are non-tribal people. Justice Kirpal observed: "It is apparent that the tr ibal population affected by the submergence would have to move, but the rehabilitation package was such that the living conditions would be much better than what it was before there." In reaching this conclusion he seems to have relied on the rehabilitat ion package under the Tribunal's Award, and the package as improved further by the Government of Gujarat and other States prima facie to show that the land that would be allotted to the tribal people is likely to be equal, if not better, in quality to wh at they owned. Obviously he did not take into account the various violations of the Award and the R&R package, as pointed out by the NBA, which would have shown that the implementation of the Award in letter and spirit was not feasible, given the limited availability of cultivable land in these States.

The question of whether the SSP is in the interest of national economic development led Justice Kirpal to make some observations on the virtues of big dams, even though it was not an issue before the court. During the hearing, the NBA was specifically re strained from making any submissions on the issue. Justice Kirpal said that dams played a vital role in irrigation in order to achieve food security, domestic and industrial water supply, hydro-electric power generation and flood control. According to hi m, large dams did not cause environmental damage; they led to improvement in the living conditions of the oustees and were in fact essential for the economic prosperity of the country.

Prashant Bhushan, NBA counsel, said: "A Judge is required to decide issues on the basis of the evidence before him..." After denying the NBA an opportunity to submit its case against big dams, Justice Kirpal has remarked: "The petitioner has not been abl e to point out a single instance where the construction of a dam has, on the whole, had an adverse environmental impact." Prashant Bhushan observed that this violated the principles of natural justice.

There is reasonable ground, he indicated, to challenge the Supreme Court decision through a writ petition, as happened in the Antulay case in 1988. In that case, former Maharashtra Chief Minister A.R. Antulay, who was unseated following his alleged invol vement in a scam, questioned as being violative of natural justice the decision of a Constitution Bench holding him guilty. A seven-Judge ruling later set aside the judgment of the Constitution Bench.

Indeed, Justice Kirpal's judgment is entirely based on these perceived virtues of big dams. While disposing of the case, he said two conditions had to be kept in mind: one, the completion of the project at the earliest and, two, ensuring compliance with the conditions on which the project was given clearance, including the completion of R&R work and ameliorative and compensatory measures for environmental protection in compliance with the scheme framed by the government, thereby protecting the rights un der Article 21.

The essence of the judgement, as these conditions suggest is that the completion of the project at the earliest gets top priority. If there is progress in R&R measures and environmental protection simultaneously, it is well and good.

"The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilit ation sites they will have more and better amenities than which they enjoyed in their tribal hamlets. The gradual assimilation in the mainstream of the society will lead to betterment and progress," says Justice Kirpal.

Indeed, Justice Kirpal is so sanguine about it that he does not consider the complaints of violation of the Tribunal's Award by the State government and by the Narmada Control Authority (NCA), constituted under the Award. He disagrees with the contention that the NCA is not to be regarded as an independent authority, even though it had in the past (during the pendency of the petition) granted approval for construction without carrying out corresponding rehabilitation. The majority Judges entrusted the N CA with the responsibility to draw up an Action Plan in relation to further construction and related rehabilitation work.

There is no mechanism to make the NCA accountable. If there is a dispute before the NCA, it can be sorted out by the Review Committee, and if it fails to do so, the Prime Minister can decide whose decision shall be final and binding on all concerned, acc ording to the majority judgment. Author and activist Arundhati Roy said: "The whole thrust of the judgment seems to be to empower the Prime Minister to decide whether construction of the dam can go on irrespective of complaints regarding R&R. It happens only in a banana republic."

The majority judgment says that with the establishment of the R&R subgroup and the constitution of the Grievances Redressal Authorities (GRAs) by the States of Gujarat, Maharashtra and Madhya Pradesh, there is a system in force that will ensure satisfact ory resettlement and rehabilitation of the PAFs. However, it does not say what the reports of these GRAs revealed about the progress of R&R in States other than Gujarat, where vast improvement was reported at R&R sites. In Gujarat itself, the GRA's findi ngs have been challenged by the NBA.

The reality with regard to R&R, however, tells a different story. Statistics show that hundreds of persons, displaced in the process of building the dam to its present height of 88 metres have not been rehabilitated. Madhya Pradesh, in its affidavit befo re the Supreme Court, has admitted that 156 PAFs, affected by submersion at the present height, could not be rehabilitated. The State has not acquired any agricultural land for the purpose, and yet the court has sanctioned further construction.

The judgment lays emphasis on the binding nature of the Tribunal Award. Although the Award had held that the people should be rehabilitated village-wise so that community life is not disrupted, the majority judgment does not accept this.

The reasoning given as to why the NBA's petition could not be entertained is debatable. Although the public interest petition questioned the very rationale of the SSP, it took some years for the NBA to collect data, much of which were not in the public d omain. The Centre gave environmental clearance to the project in 1987, after which construction began. The NBA filed its petition in 1994 in the Supreme Court. "In our opinion, the petitioner, which had been agitating against the dam since 1986, is guilt y of laches in not approaching the court at an earlier point of time," the majority judgment observed.

It went on: "When such projects are undertaken and hundreds of crores of public money is spent, individuals or organisations in the garb of public interest litigation cannot be permitted to challenge the policy decision taken, after a lapse of time. It i s against the national interest and contrary to the established principles of law that decisions to undertake developmental projects are permitted to be challenged after a number of years during which period public money has been spent in the execution o f the project."

Justice Bharucha, in his dissenting judgment, says: "When the writ petition was filed the process of relief and rehabilitation, such as it was, was going on. The writ petitioners were not guilty of any laches in that regard. In the writ petition, they ra ised other issues, one among them being related to the environmental clearance of the project. Given what has been held in respect of the environmental clearance, when the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the court was approached belatedly."

Justice Kirpal says that the Centre gave the environmental clearance in 1987 even though all the data with regard to the environmental aspect were not available. However, he does not agree in the judgment that the clearance was given without the applicat ion of mind. The fact remains that there has not been a comprehensive environmental impact assessment. As Justice Bharucha points out, the notes prepared by the Ministry of Water Resources and the Ministry of Environment and Forests leave no doubt that t he requisite data for an assessment of the environmental impact of the project were not available when the environmental clearance was granted. In that case the clearance could not have been given, Justice Bharucha observed.

The majority judgment has refused to concede Madhya Pradesh's request for a reduction of the dam's height from 455 feet to 436 feet, on the grounds that there would be a corresponding loss in power generation and that it would be against the Tribunal's A ward, which is binding on all the States. However, the court did not deem it necessary to direct the States that they conform to another one of the Tribunal's conditions - that the construction of the dam should be linked to satisfactory progress on the environmental and R&R fronts.

The majority judgment holds that while protecting the rights of the people from being violated in any manner, utmost care has to be taken that the court does not transgress its jurisdiction. The court articulated this view to justify its stand that the c ourt will not interfere in matters of policy. When there is a valid law requiring the government to act in a particular manner the court ought not to, without striking down the law, give any direction that is not in accordance with the law. The NBA agree s with this explanation.

IN retrospect, the NBA was perhaps being less than realistic in expecting the court to give a ruling against the very rationale of the SSP. There is a view thus that it could have focussed on the stringent conditions under which the construction should p roceed rather than question the necessity of the dam itself. Even Justice Bharucha, in his dissenting judgment, says that the SSP does not require to be re-examined in terms of cost effectiveness or concerns of seismicity. What is important in his view i s due environmental clearance by a committee of experts, to be appointed by the Environmental Impact Agency of the Ministry of Environment and Forests.

Once this is obtained, he says, the GRAs of Gujarat, Madhya Pradesh and Maharashtra must certify, after inspection, before work on further construction of the dam could begin, that all persons ousted by reason of the increase in the height of the dam by five metres from its present level have been satisfactorily rehabilitated, that suitable vacant land to rehabilitate all those who would be ousted is already in the possession of the respective States, and that this process must be repeated for every pro posed five-metre increase in the dam's height. This seems to be a sensible approach, which could satisfy both the oustees and the States involved. The NBA has appealed to the President to intervene and stop work on the SSP, "in view of the injustice caus ed by the Supreme Court's judgment". As the Prime Minister is empowered to take a decision in case of a dispute, the President can use his moral authority and play an advisory role, Prashant Bhushan said. Will the Prime Minister gather the moral courage to intervene and use his power to mediate?