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People
vs
Verdict
Narmada Bachao Andolan
CONTENTS
Gestures of Solidarity
3
Thus Speaketh the Lordships....
6
Directions Of Majority Judgment
11
Directions Of Minority Judgment
13
Highlights, Comments And Analysis Of Majority
And Minority Judgments
15
The People Vs The God Of Big Dams
Arundhati Roy
38
People Be Damned
Prashant Bhushan
44
A Judgment Of Grave Import
Ramaswamy R Iyer
48
Need For An Alternative Political Movement
Yogender Yadav
57
The Narmada Decision
Rajeev Dhavan
61
Unquiet Flows The Narmada
Ramachandra Guha
64
A Message For The Judges
Kalpana Sharma
67
Court Must Adhere To The Constitution
Baba Amte
2
Cover 3
People Vs Verdict
GESTURES OF SOLIDARITY
I appeal to the judicial conscience of the highest court and
the equity sense of the Gujarat, Madhya Pradesh and Maharashtra
cabinets not to put one stone more on the dam until the last and the
least human who is rendered homeless, consequence on Narmada
Dam is given shelter in dignity. If a review of the judgement is
necessary I am sure the judges on the High Bench will unhesitatingly
do what the refugees of'Dam Development' need as an aspect of
Social Justice. Development is never at the expense of distress
inflicted on the poor, as Mahatma Gandhi has taught us and the
constitution in its vision cautions us
Jst Krishna Iyer
Retired Supreme Court Judge, Kochi, Kerala
The struggle of the people under your leadership will not do in
vain. The Supreme Court's judgement dated 18.10.2000 can only be
a temporary setback. Ultimately the cause of justice for the oustees
and other deprived people for protection of right to life and social
justice shall triumph.
Haroobhai Mehta
Advocate, Gujarat High Court, (Ex. M.P)
Ahmedabad, Gujarat
This must be a very difficult time for you and your comrades
and colleagues. I know how hard you have struggled over many
years...
Having been involved in a struggle of a different sort for more
than 30 years I know that there are times when all seems to be lost,
when one is inclined to give up. However, one finds the inner strength,
based on the belief that what you are doing is right, to continue and
fight another day. Every battle we lost during the dark days of
Apartheid was met with the slogan: ‘The struggle continues!'. I hope
so with you as well.
Kader Asmal
Minster of Education, South Africa
Former Chairman, World Commission on Dams
People Vs Verdict
The National Alliance of Peoples Movements (NAPM)
expresses its shock and dismay at the Supreme Court Verdict on
Sardar Sarovar case. We believe that justice has been denied to the
tribal people and the farmers in the Narmada Valley. We had hope in
the legal system of this country and that has been shaken and
shattered with this verdict. We are dismayed by the callous attitude
of the court towards to he sufferings of the displaced. We will fight
shoulder to shoulder with the people of the valley in their fight against
the Narmada Project.
Thomas Kocherry
National Alliance of Peoples Movements (NAPM)
National Fish Workers Forum
The Supreme Court verdict against the Narmada Bachao
Andolan (NBA) came as a great shock and I feel especially sorry as
this is, perhaps, the first time a movement awakened the world about
the next to extinct flora, fauna and tribals on such a big scale. I can
only say it has been a crushing blow.
Mahashveta Devi (Gyanpeth award recipient)
President of De-notified and Nomadic tribes Right Action Group)
The struggle will go on. The battle must be fought.
Aruna Roy
Winner of Ramon Magsaysay Award
Mazdoor Kisan Shakti Sangathan
...as shocked as you and every right thinking citizen must be.
Admiral Ramdas
Former Chief, Indian Navy
We are with you in solidarity.
Mohini Giri
Former Chairperson,
National Commission for Women
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People Vs Verdict
I totally share your distress... and your disgust. The
Supreme Court has let the people down badly yet again. And the
media has been obnoxious in the way it has reacted.
Praful Bidwai
Journalist, Columnist, Delhi
My heart goes out to... all the stalwart people struggling
against this stupid, horrible, misguided project. I am so saddened by
this unfounded decision against the will and voices of so many
thousands (millions ?) of people in India.
Deborah Moore
Environment Defense Fund, USA
Member, World Commission on Dams
The Indian Supreme Court has dealt a deep blow to justice
and proved once again that political power needs more urgently than
ever before to be given back to the people whose lives it affects. The
world supports Narmada Bachao Andolan.
Keith Hyams
Oxford University, United Kingdom
In this case, Narmada has been awarded 'Capital
Punishment' by the majority judgment. We most humbly entreat you
good self (President of India)... to order an immediate cessation of all
construction work at Sardar Sarovar, pending a thorough review of all
the Human Rights Aspects of Narmada Rehabilitation, as well the
Environment Impacts of the Project
Kerala Sastra Sahitya Parishad (KSSP)
It is one of the saddest thing happened to this country in the
recent history
Manish Varma
National Dairy Development Board, Anand, Gujarat.
People Vs Verdict
THUS SPEAKETH THE LORDSHIPS....
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
WRIT PETITION © No 319 OF 1994.
NARMADA BACHAO ANDOLAN (PETITIONER)
VERSUS
UNION OF INDIA AND OTHERS (RESPONDENTS)
Excerpts from Judgment:
1)
On peoples’ i.e. public money:
(P 33) When such projects are undertaken and hundreds of crores of
public money is spent, individual or organisations in the garb of PIL
cannot be permitted to challenge the policy decision taken after a
lapse of time. It is against national interest and contrary to the
established principles of law that the decision to undertake develop
mental projects are permitted to be challenged after a number of
years during which period public money has been spent in the
execution of the project.
2)
On people as third party
(P 36 -37) ....The question which arises is as to whether it is open to
the petitioners to directly or indirectly challenge the correctness of
the said decision (meaning award of the Narmada Water Disputes
Tribunal)... Any issue which has been decided by the Tribunal would,
in law be binding on the respective states.. Once an award is binding
on the states, it will not be open to a third party like the petitioners to
challenge the correctness thereof.
3)
On tribal rights
(P 47 -48) 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 rehabilitation sites they will
have more and better amenities than which they enjoyed in their tribal
hamlets. The gradual assimilation in the main stream of the society
will lead to betterment and progress.
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(P 111) The tribals who are affected are in indigent circumstances
and who have been deprived of modern fruits of development such as
tap water, education, convenient medical facilities etc,..
(P 172) It is a fact that people are displaced by projects from their
ancestral homes. Displacement of these people would undoubtedly
disconnect from their past, culture, customs and traditions, but then
it becomes necessary to harvest a river for the larger good...
.. A properly drafted R &R plan would improve living standards of
displaced persons after displaced. For example residents of villages
around Bakra Nangal dam, Nagarjun Sagar Dam, Tehri, Bhilai Steel
plant, Bokaro and Bala Iron and Steel plant and numerous other
development sites are better of then people living in villages in whose
vicinity no developmental project came in. It is no fair that tribals and
the people in undeveloped villages should continue in the same
condition without ever enjoying the fruits of science and technology
for better health and have a higher quality of lifestyle. Should they
not be encouraged to seek greener pastures else where if they can
have access to it either through their own efforts due to information
exchange or due to outside compulsions.
(P 97) Change in environment does not per se violate any right under
Article 21 of the constitution of India.
4)
On the role of the state and court:
(P 164 - 165) There are three stages with regard to the undertaking
of an infra structural project. One is the conception or planning,
second is the decision to undertake the project and third is the
execution of the project. The conception and the decision to under
take a project is to be regarded as a policy decision. While there is
always need for such projects not being unduly delayed, it is at the
same time expected that as through a study as is possible will be
undertaken before a decision is taken to start such a project. Once
such a considered decision is taken, the proper execution of the
same should be taken expeditiously. It is for the Government to
decide how to do its job. When it has put a system in place for the
execution of a project and such a system cannot be said to be
arbitrary, then the only role, which a court may have to play is to see
that the system works in a manner it was envisaged.
People Vs Verdict
7
It is now well settled that the courts, in the exercise of their jurisdic
tion, will not transgress into the field of policy decision. Whether to
have an infra structural project or not and what is the type of the
project to be undertaken and how it has to executed, are part of the
policy making process and the courts are ill equipped to adjudicate
on a policy decision so undertaken. The court no doubt has a duty to
see that in the undertaking of a decision, no law is violated and
peoples fundamental rights are not transgressed upon except to the
extent permissible under the constitution.
Even then any challenge to such a policy decision must be before the
execution of the project is undertaken. Any delay in the execution of
the project means a run over costs and the decision to undertake a
project if challenged after its execution has commenced should be
thrown out at the very threshold on the ground of latches if the
petitioner had the knowledge of such a decision and could have
approached the court at that time. Just because a petition is termed
as PIL does not mean that ordinary principles applicable to litigation
will not apply. Latches is one of them.
(P 168) In respect of public projects and policies, which are initiated
by the government, the courts should not become the approval
authority. Normally such decisions are taken by the government after
due care and consideration. In a democracy welfare of the people at
large and, not merely of a small section of the society, has to be the
concern of a responsible government. If a considered policy decision
has been taken which is not in conflict with any law or is not
malafide, it will not be public interest to require the court to go into
and investigate those areas which are the function of the executive.
For any project which is approved after due deliberation the court
should refrain from being asked to review the decision just because
the petitioner in filing an PIL alleges that such a decision should not
be taken because an opposite view against the undertaking of the
project, which view may have been considered by the Government, is
possible. When two or more options or views are possible and after
considering them the government takes a policy decision it is then
not the function of the court to go into the matter afresh and in a way
sit in appeal over such a policy decision.
(P 171) In the case of projects of national importance where union of
India and / or more than one state(s) are involved and the project
would benefit a large section of the society and there is evidence to
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People Vs Verdict
show that the said project has been contemplated and considered
over a period of time at the highest levels of the states and the Union
of India and more so when the project is evaluated and approval
granted by the planning commission then there should be no occa
sion for any court carrying out any review of the same or directing its
review by any outside or ‘independent’ agency or body. In a demo
cratic set up it is for the elected government to decide what project
should be undertaken for the benefit of the people. Once such a
decision had been taken that unless and until, it can be proved or
shown that there is a blatant illegality in the undertaking of the
project or in its execution the court ought not to interfere with the
execution of the project.
5)
On Public Interest Litigation (PIL)
(P 166) PIL was an innovation essentially to safe guard and protect
the human rights of those people who were unable to protect them
selves. With the passage of time, the PIL jurisdiction has been
ballooning so as to encompass with in its ambit subjects such as
probity in public life, granting of largesse in the form of licenses,
protecting the environment and the like . But the balloon should not
be inflated to such much that it bursts. Public Interest Litigation
should not be allowed to degenerated and become Publicity Interest
Litigation.
6)
Ode to Dams
(P 47) There is merit in the contention of the respondents that there
would be a positive impact on preservation of ecology as the result of
the project. The SSP would be making positive contribution for the
preservation of the environment in several ways. The project by
taking water to drought prone and arid parts of Gujarat and Rajasthan
would effectively arrest ecological degradation which was returning to
make this areas inhabitable due to salinity ingress, advancement of
desert, ground water depletion, fluoride and nitrite affected water and
vanishing green cover. The ecology of water scarcity areas is under
stress and transfer of Narmada water to these areas will lead to
sustainable agriculture and the spread of green cover. There will also
be improvement of fodder availability which will reduce pressure on
bio diversity and vegetation. The SSP by generating clean eco
People Vs Verdict
9
friendly hydro power will save the air pollution which would otherwise
take place by thermal generation power of similar capacity.
(P 169) While an area of land will submerge but he construction of
the dam will result in multi fold improvements in the environment of
the areas where the canal waters will reach. Apart from bringing
drinking water with in easy reach the supply of water to Rajasthan
will also help in checking the advancement of the Thar desert.
Human habitation will increase there which, in turn will help in
protecting the so far porous border with Pakistan
There is and has been in the recent past protests and agitations not
only against Hydel projects but also against the setting up of Nuclear
or thermal power plants. In each case reasons are put forth against
the execution of the proposed project either as being dangerous (in
case of nuclear) or causing pollution and ecological degradation (in
case of thermal) or rendering people homeless and posses adverse
environment impacts as has been argued in the present case. But
then electricity has to be generated and one or more of these options
exercised. What option to exercise in our constitutional frame work,
is for the government to decide keeping various factors in mind.
7)
The Prime Minister above the Judiciary
(P 183) If for any reason serious differences in implementation of the
award rise and the same cannot be resolved in the review committee
the committee may refer the same to the Prime Minister whose
decision in respect there of shall be final and binding on all con
cerned.
8)
Dispensable People:
(P 179)... Perhaps the setting up of a thermal plant may not displace
as may families as a hydel project may but at the same time the
pollution caused by the Thermal plant and the adverse affect on the
neighborhood could be for greater than the inconvenience caused in
shifting and rehabilitating the oustees of a reservoir
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People Vs Verdict
DIRECTIONS OF MAJORITY JUDGMENT
Kirpal, J.
Pages: 180-183
While issuing directions and disposing of this case, two conditions
have to be kept in mind, (i) the completion of the project at the earliest
and (ii) ensuring compliance with conditions on which clearance of the
project was given including completion of relief and rehabilitation work
and taking of ameliorative and compensatory measures for environ
mental protection in compliance with the scheme framed by the
Government thereby protecting the rights under Article 21 of the
Constitution. Keeping these principles in view, we issue the following
directions.
Construction of the dam will continue as per the Award of the Tribunal.
As the Relief and Rehabilitation Sub-Group has cleared the construc
tion up to 90 meters, the same can be undertaken immediately.
Further raising of the height will be only pari passu with the implemen
tation of the relief and rehabilitation and on the clearance by the Relief
and Rehabilitation Sub-group. The Relief and Rehabilitation Sub-group
will give clearance of further construction after consulting the three
Grievances Redressal Authorities.
The Environment Sub-group under the Secretary, Ministry of Environ
ment and Forests, Government of India will consider and give, at each
stage of the construction of the dam, environment clearance before
further construction beyond 90 meters can be undertaken.
The permission to raise the dam height beyond 90 meters will be
given by the Narmada Control Authority, from time to time, after it
obtains the above-mentioned clearances from the Relief and Rehabili
tation Sub-group and the Environment Sub-group.
The reports of the Grievances Redressal Authorities, and of Madhya
Pradesh in particular, shows that there is a considerable slackness in
the work of identification of land, acquisition of suitable land and the
consequent steps necessary to be taken to rehabilitate the project
oustees. We direct the State of Madhya Pradesh, Maharashtra and
Gujarat to implement the Award and given relief and rehabilitation to
People Vs Verdict
11
the oustees in terms of the packages offered by them and these
States shall comply with any direction in this regard which is given
either by the NCA or the Review Committee or the Grievances
Redressal Authorities.
Even though there has been substantial compliance with the condi
tions imposed under the environment clearance the NCA and the
Environment Sub-group will continue to monitor and ensure that all
steps are taken not only to protect but to restore and improve the
environment.
The NCA will within four weeks from today draw up an Action Plan in
relation to further construction and the relief and rehabilitation work to
be undertaken. Such as Action Plan will fix a time frame so as to
ensure relief and rehabilitation pari passu with the increase in the
height of the dam. Each State shall abide by the terms of the action
plan so prepared by the NCA and in the event of any dispute or
difficulty arising, representation may be made to the Review Commit
tee. However, each State shall be bound to comply with the directions
of the NCA with regard to the acquisition of land for the purpose of
relief and rehabilitation to the extent and within the period specified by
the NCA.
The Review Committee shall meet whenever required to do so in the
event of there being any un-resolved dispute on an issue which is
before the NCA. In any event the Review Committee shall meet at
least once in three months so as to oversee the progress of construc
tion of the dam and implementation of the R&R programmes.
If for any reason serious differences in implementation of the Award
arise and the same cannot be resolved in the Review Committee, the
Committee may refer the same to the Prime Minister whose decision,
in respect thereof, shall be final and binding on all concerned.
The Grievances Redressal Authorities will be at liberty, in case the
need arises, to issue appropriate directions to the respective States
for due implementation of the R&R programmes and in case of non
implementation of its directions, the GRAs will be at liberty to ap
proach the Review Committee for appropriate orders.
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People Vs Verdict
Every endeavour shall be made to see that the project is completed
as expeditiously as possible.
This and connected petitions are disposed off in the aforesaid terms.
.......................CJI
(A.S. ANAND)
....................... J
(B.N.KIRPAL)
New Delhi,
October 18, 2000.
DIRECTIONS OF MINORITY JUDGMENT
Bharucha, J.
Pages: 30-32
I should not be deemed to have agreed to anything stated in Brother
Kirpal's judgment for the reason that I have not traversed it in the
course of what I have stated.
In the premises,
The Environment Impact Agency of the Ministry of Environment and
Forests of the Union of India shall forthwith appoint a Committee of
Experts in the fields mentioned in Schedule III of the notification dated
27th January, 1994, called the Environmental Impact Assessment
Notification, 1994.
The Committee of Experts shall gather all necessary data on the
environmental impact of the Project. They shall be free to commission
or carry out such surveys and studies and the like as they deem
necessary. They shall also consider such surveys and studies as
have already been carried out.
Upon such data, the Committee of Experts shall assess the environ
mental impact of the Project and decide if environmental clearance to
the Project can be given and, if it can, what environmental safeguard
measures must be adopted, and their cost.
In so doing, the Committee of Experts shall take into consideration
the fact that the construction of the dam and other work on the Project
has already commenced.
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13
Until environmental clearance to the Project is accorded by the
Committee of Experts as aforesaid, further construction work on the
dam shall cease.
The Grievance Redressal Authorities of the States of Gujarat, Madhya
Pradesh and Maharashtra shall ensure that those ousted by reason of
the Project are given relief and rehabilitation in due measure.
When the Project obtains environmental clearance, assuming that it
does, each of the Grievance Redressal Authorities of the States of
Gujarat, Madhya Pradesh and Maharashtra shall, after such inspec
tion, certify, before work on the further construction of the dam can
begin, that all those ousted by reason of the increase in the height of
the dam by 5 meters from its present level have already been satisfac
torily rehabilitated and also that suitable vacant land for rehabilitating all
those who will be ousted by the increase in the height of the dam by
another 5 meters is already in the possession of the respective States.
This process shall be repeated for every successive proposed 5 meter
increase in the dam height.
If for any reason the work on the Project, now or at any time in the
future, cannot proceed and the Project is not completed, all oustees
who have been rehabilitated shall have the option to continue to reside
where they have been rehabilitated or to return to where they were
ousted from, provided such place remains habitable, and they shall
not be made at all liable in monetary or other terms on this account.
The writ petition is allowed in the aforementioned terms. The con
nected matters are disposed of in the same terms.
No order as to costs.
......................J
(S.P.Bharucha)
14
New Delhi,
October 18, 2000
People Vs Verdict
HIGHLIGHTS, COMMENTS AND ANALYSIS
OF MAJORITY AND MINORITY JUDGMENTS
Narmada Bachao Andolan
Part A: Introduction
After six full years of the case-proceedings, and five years of stay on the
Sardar Sarovar Project, the Supreme Court of India has finally given its
verdict in the case, Narmada Bachao Andolan Vs The Concerned Gov
ernments (1994). The comprehensive case challenging the social justi
fiability, environmental sustainability and mirage of benefits was disposed
off on October 18,2000.
The Order of Supreme Court is in two parts. The majority judgment, by
Justice Kirpal and Justice Anand (Chief Justice) is the operative judg
ment and the one that will be followed. It is 183 pages long. The minority
judgment, by Justice Bharucha, running into 32 pages, will not be op
erative. However, in spite of this, the judgment by Justice Bharucha is a
very significant one.
The importance of Justice Bharucha's judgment is that it shows that the
highest court of the land has not rejected the main issues and concerns
raised by NBA. One judge, from the bench of three judges has taken
cognisance of the arguments and has ordered a de facto review of the
project by calling for the project to seek fresh environmental clearance.
However, the majority order, which will hold force is a shocking order. It
overlooks critical facts, is illogical, places complete and unjustified faith
in the Government's machinery and assurances, and takes on overly
legalistic and technical view over human and environmental concerns.
The judgment contains a clearly baseless view of Narmada Bachao
Andolan, the petitioner, making allegations such as delay in approach
ing the Court, just as it ridicules the tribal people with a prejudiced view
of their life and resources in the valley. There is no trace of the Court’s
concern for the basic issues and fundamental rights raised on behalf of
the project-affected while undue faith is expressed in the ’official’ ma
chinery. The judgment, thus, is nothing short of an anti-people judgment
and clearly the institution of the Apex Court has failed miserably in safe
guarding the rights of the common people, especially the tribal and other
People Vs Verdict
15
downtrqdden, of this country. In this context, the Andolan feels respon
sible to analyse the verdict and the perspective behind it; to disseminate
our views and involve people's organizations and people at large in re
sponding, protesting and carrying the struggle forward.
Part B: Brief Comments and Analysis of Majority Judgment
A. Back To Square One
The most serious feature of the majority order is that it takes the whole
issue back to where it was 6 years ago. when the case was filed. Ex
cept for the creation of the Grievance Redressal Authorities, the project
has been cleared with virtually the same implementation and monitoring
structure as was in place before the hearings. The only other change is
that the Prime Minister has now been vested with the final authority to
decide any inter-state dispute in the Narmada. The Court's order re
quires the Narmada Control Authority (NCA) to implement and monitor
the project. In particular, the Resettlement and Rehabilitation Sub-group
(R&R SG) and the Environmental Sub-group (ESG) of the NCA are to
give clearance for further increase in height of dam after examining the
R&R and environmental aspects respectively. The final clearance is to
come from NCA. This is the very arrangement which was in place all the
time, and this arrangement has clearly failed, and failed abysmally to
ensure even proper R&R. This is clear from the fact that the Court itself
had to stop the work of the dam for an unprecedented 5 years. It is also
obvious from the fact that Court had to ask the States to appoint inde
pendent GRAs headed by retired judges in all three States.
Yet, the Court places the responsibility to ensure and monitor the R&R
(and Environment) work on the same very R&R Sub-group (and Environ
ment Sub-group)! Even the independent GRAs are only to be “consulted".
Both the Sub-groups, as also the NCA consist essentially of Govern
ment officials and other officials connected with the project, with a few
"independent" members who are mostly toe the Government line, or are
rendered ineffective.
Time and again, the R&R and Environmental Sub-groupshave both shown
themselves to be susceptible to manipulation by the project authorities
(see the role R&R Sub-group has played in “clearing" the dam for 90m);
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People Vs Verdict
in cases, the R&R Sub-group's recommendation to stop construction
has been blatantly overruled by the main NCA and the Sardar Sarovar
Construction Advisory Committee.
It is clearly in recognition of all this that the minority judgment states:
(Page 28)
"The many interim orders that this Court made in the years in which this
writ petition was pending show how very little had been done in regard to
the relief and rehabilitation of those ousted."
“Having regard to the experience of the past, only the Grievance Redressal
Authorities can be trusted by this Court to ensure that the States are in
possession of vacant lands suitable for rehabilitation..."
“Only after ensuring that relief and rehabilitation is so supervised by the
Grievance Redressal Authorities can this Court be assured that the
oustees will get their due.” (Pg. 29)
Yet, majority order has placed full responsibility in the hands of these
sub-groups again. Not only that, but it also makes the astounding state
ment that (Page 166):
“There is no reason now to assume that these authorities will not func
tion properly. In our opinion, the court should have no role to play."
It is difficult to accept this faith in the machinery whose repeated failure
to function properly was one of the reasons that led to the failure of
rehabilitation and the 5 year stoppage of work on the dam.
Independence of the Sub-groups
NBA has asked that the R&R and Environmental aspects of the project
should be monitored by totally independent bodies- bodies independent
of the project authorities. Amazingly the majority order has declared
that the NCA and its subgroups are independent! It says (Page 130):
“It is not possible to accept that Narmada Control Authority is not to be
regarded as an independent authority. Of course some of the members
are Government officials but apart from Union of India, the other States
are also represented in this Authority"
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17
Thus, the Court places the implementation and monitoring of the R&R
and Environmental works in the hands of the very same authorities whose
basic mindset and purpose is to push the construction ahead and this is
clearly a conflict of interest and function. This can only push the R&R
and Environmental concerns to a low priority. The abysmal failure of
these agencies so far is a clear evidence of this.
8. Peer Review/lndependent Review
Indeed, the Court has also rejected one of the basic tenets of Environ
mental assessment - that of peer and independent review. They state
(Page 79):
“There is no reason whatsoever as to why independent experts should
be required to examine the quality, accuracy, recommendations and
implementation of the studies carried out."
The studies and environmental assessments are undertaken by the project
authorities themselves or by consultants paid by them. Thus, there is a
clear conflict of interest since project authorities would not want studies
to delay the project or call for major modifications. This conflict of inter
est necessitates that the environmental studies are reviewed by peers,
public and independent experts. Even the notification of MoEF of May
1994 under the EPA requires MoEF to constitute an independent expert
committee to examine studies carried out by the project authorities.
Justice Bharucha's minority order requires the constitution precisely of
such a committee. But the majority order virtually sanctions this clear
conflict of interest.
C.
Construction and Submergence without Rehabilitation:
Another shocking part of the majority order is the sanctioning of imme
diate construction of the dam to 90m. The order notes that since the
R&R Sub-group has cleared the construction to 90m they are allowing
this. Yet, the Court has itself noted in the order that R&R Sub-group only
said that -'arrangements’ for rehabilitation upto 90m were complete.
There was no explicit clearance recorded by the R&R Sub Group, nor
any recording that the resettlement had been completed satisfactorily.
However, even this statement of the R&R Sub-group regarding “arrange
ments" was faulty.
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The Court itself has noted in its order (Page 158) the submission of
GoMP on affidavit that:
In 6 villages affected at 90m the land acquisition process for submer
gence villages still needs to be done.
Out of 10 resettlement sites necessary for the PAFs at 90m, only 5 are
ready.
Court has also noted the report of Grievance Redressal Authority, par
ticularly of that of M.P.
"... shows that there is a considerable slackness in the identification of
land, acquisition of suitable land and consequent steps necessary to be
taken to rehabilitate the project oustees." (Page 181)
What the Court has not noted in the order, but what GoMP has stated
on affidavit to the Court is that it has virtually not a single hectare of land
for rehabilitation. It has also stated that it has identified some land but
that this land is uncultivable.
GoMP has also stated on affidavit dated July 2000 that, at 90m, there
remain 1034 PAFs yet to be resettled. Out of them, 599 to be resettled
in Gujarat and 435 in M.P..
Court Order notes (Page 158):
“It has not been categorically stated [by GoMP] whether the PAFs who
are so affected [at 85 m and 90 m dam height] have been properly re
settled or not."
It is very surprising that if GoMP has not provided this critical informa
tion, why did the Court not ask for it?
Given this blatant situation, it is clear that:
a. There is no arrangement to resettle the oustees till 90m in M.P.. Land
Acquisition Awards are not passed in 6 villages, 5 out of 10 resettlement
sites are not ready, and not a single hectare of land is available.
b. The GRA too has reported slackness in identification and acquisition
of land.
People Vs Verdict
19
c. The R&R Sub-group's statement that -'arrangements’ are in place is
totally incorrect.
d. R&R Subgroup has nowhere recorded any categorical finding that
R&R upto 90 m is complete and / or clearance is given to go up to 90 m
After noting all the facts as elaborated above, the Court notes the overall
finding forM.P. that (Page 159):
“Affidavit on behalf of State of Madhya Pradesh draws a bleak picture of
rehabilitation which is quite different from that of Gujarat. There seems
to be no hurry in taking steps to effectively rehabilitate the Madhya
Pradesh PAFs in their home states. It is indeed surprising that even
awards in respect of six villages, likely to be affected at 90 mtr. dam
height have not been passed."
“Even the interim report of Mr. Justice Soni (sic), the GRA for the State of
Madhya Pradesh, indicates lack of commitment on the States part in
looking after the welfare of its own people who are under the threat of
ouster and who have to be rehabilitated.“(Page 160)
It is shocking that the Court, instead of hauling up M.P. and the R&R
Sub-group, and not allowing the work to proceed further till all arrange
ments are made and people resettled, has instead, allowed construc
tion to resume immediately! The impact of this will be clearly of flushing
the people out on the streets with no place to go and a gross violation of
the Tribunal Award (see also separate, longer note on the situation of 90
mts)
Rationale of Court in Allowing Construction
It is difficult to fathom how the Court could have allowed further construc
tion at this point when the situation was so serious. One possible expla
nation is the Court's statement, noted in the Order (Page 175):
“If there is any shortfall in carrying out the R&R measures, a time bound
direction can and should be given in order to ensure the implementation
of the Award. Putting the project on hold is no solution. It only encour
ages recalcitrant State to flout and not implement the award with impu
nity. This cannot be permitted. Noris it desirable in the national interest
that where fundamental right to life of the people who continue to suffer
due to shortage of water to such an extent that even the drinking water
20
People Vs Verdict
becomes scarce, non-cooperation of a State results in the stagnation of
the project"
This is astounding logic! First of all, the only way that the Court has
ensured some improvement in the rehabilitation performance is precisely
by putting the project on hold for 5 years! Further, contrary to its own
statement, no time bound direction has been given for the R&R of PAFs
affected at 90 m. Thirdly, the Court makes an unjustified assumption
that only this project will solve the drinking water problem of the people
of Gujarat, it further makes the assumption that Government of M.P. is
not co-operating in R&R and so the project is stagnating. It then says
that it is not desirable that this happens (i.e. project stagnates). The
conclusion is appalling: Let the PAFs suffer for the “non-cooperation" of
the State.
D.
Overall Status of Resettlement
The Court had asked the State Governments to file affidavits by 1 July
2000 giving the full details of the status and arrangements of resettle
ment for ALL the PAFs to be affected by the project to its full height. This
was after the hearing was over. The GRAs in all the three states were
asked to undertake ground surveys and verify the reality about the land
availability and also the other arrangements. They too were to submit
the reports by 1 July 2000.
The three state Governments filed their affidavits. Some of the affidavits
themselves revealed that serious problems were there in the R&R ar
rangements NBA had filed detailed replies to these affidavits. The Court
has drawn and noted extensively from the affidavit of Gujarat in its Major
ity order (some 15 pages of the order Pages 141-154) as also from M.P.
and Maharashtra affidavit; but it has completely omitted to mention the
details set out by NBA in its affidavit which pointed out the serious prob
lems with land and other arrangements in all the three states. Even if
one assumes that the Court did not accept NBA's submissions, they
should have been there on record.
More importantly, the GRAs were to verify the ground realities of the
situation. However, the report of the GRAs have not been made public or
available to the parties to the case. At least the main conclusions should
have been quoted in the Order. Right now, we only have two references
People Vs Verdict
21
in the majority order. One, at page 181, which says:
“The reports of the Grievances Redressal Authorities, and of Madhya
Pradesh in particular, shows that there is a considerable slackness in
the work of identification of land, acquisition of suitable land and the
consequent steps necessary to be taken to rehabilitate the project
oustees." And on Page 160:
“Even the interim report of Mr. Justice Soni (sic), the GRA for the State of
Madhya Pradesh, indicates lack of commitment on the States part in
looking after the welfare of its own people who are under the threat of
ouster and who have to be rehabilitated.”
These are the only reference to the GRAs reports, and are certainly a
cause for concern. This is especially more so since the earlier reports of
the Gujarat GRA state that it has received over 15,000 complaints from
the PAFs, out of which large number are land related. Of course, GRA
report states that 8179 out of these 15,493 had been redressed in favour
of oustees, but NBA has submitted based on ground surveys, that many
of the grievances claimed as “redressed" by the Government are not
really redressed. Whatever be the case, the very fact that so many
grievances have come shows the serious situation of the resettlement
even in Gujarat and hence it is important that the reports of the GRA be
made public from time to time.
Ground realities show that while M.P. and Maharashtra have no land
whatsoever to give to the oustees, in Gujarat even though some land is
available, it has many serious issues and problems - it is not suitable for
community based resettlement, and much of newer land seems to be
districts far away, doubts about quality of land persist based on past
experience and so on. Further, large number of oustees are yet to be
resettled even at today's height of the dam. Government says that this
is because even though they have all readiness for resettlement, the
oustees are refusing to move. However, this is not correct. Many of
these "balance" oustees are those who want to move and not opposing
the dam; but the Government has no land to offer to them. Even those
who are opposing the project on larger issues, have time and again
asked the Government to show them land for resettlement but the Gov
ernment has not been able to do so. (Latest case is of the oustees of
Maharashtra villages who went to see land on 3 Oct. 2000 at the behest
of notice issued by Government of Maharashtra but came back as the
Government could not show them any land). In reality. Government has
22
People Vs Verdict
no arrangements to resettle even those who are affected at today's height
of the dam.
Given all this, it was important for the oustees to know what the GRAs
had submitted to the Court in July 2000.
E.
Other Categories of Oustees
The Court has completely rejected any sort of consideration of resettle
ment package for the other categories of oustees like canal, colony
affected, downstream affected people and so on. The reasons given for
these are also specious. This is a very serious and gross denial of the
fundamental rights of the people who will lose their very livelihoods due
to the project.
About the people losing lands to the canal, NBA had pointed out that
there are over 24,000 families losing more than 25% of their land to
canals (as per GoG itself!) and there is no rehabilitation policy for them.
The Court has said that: (Page 124)
"..most of people falling under command area were in fact beneficiaries
of the project and their remaining land would now get relocated with the
construction of the canal leading to greater agricultural output".
NBA has pointed out that many families lose all their lands; many have
remaining lands that are out of the command. Yet, Court has refused to
consider this.
Another example: NBA had pointed out that large number of persons
living in submergence area would lose their livelihood due to loss of
community and/or loss of river. For example, fisher people, shop keep
ers, carpenters, etc. would lose their livelihoods but were not being re
habilitated. NBA had pointed out that while no surveys were done, its
estimates of these were several thousand families, mostly in M.P. NBA
called for an immediate survey of the same and development of rehabili
tation package.
The Court order quotes Gujarat in saying that number of such families in
M.P. was “not more than couple of hundred” (page 123) and then (Page
123):
People Vs Verdict
23
“In our opinion, it is neither possible nor necessary to decide regarding
the number of people likely to be so affected because all of those who
are entitled to be rehabilitated as per the Award will be provided with
benefits..."
But the very argument was that the Tribunal Award leaves out these
people. Also, why is it not possible to decide number of people so af
fected? A simple survey would suffice. Even if one supposes that these
are not more than a couple of hundred families - does that mean that
their right to life to life can be violated?
In fact, lakhs of people are going to be affected by this project in ways
other than submergence. The Five Member Group in both its reports to
the Court has called for a “complete census of all categories, .affected
in any manner whatsoever, including canal affected persons, persons
affected downstream of the dam. groups and individuals providing sup
plies and services to others...a number of category-specific rehabilita
tion package should be worked out"
All over the world, this is now being recognised as the basic norm for
assessing impact and developing rehabilitation plans. Yet, it is shock
ing that the highest Court of the land has rejected this basic fundamen
tal right of the people.
E Environmental Clearance
On the environmental clearance of the project, Justice Bharucha in his
minority judgment has pointed out that all the officials notes prepared
prior to clearance and even the order of conditional clearance itself brought
out the fact that even the basic environmental impact studies had not
been done by that time. It was noted by the Ministry of Environment,
“Indeed it is view of the Ministry of Environment, forest and wild life that
what has been done so far whether by way of action or by any of studies
does not amount too much and that many matters are yet in the early
and preliminary stages". The Ministry of Water Resources in its note put
up to the Prime Minister has stated that “considering the magnitude of
rehabilitation, involving a large percentage of tribals, loss of extensive
forest area rich in biodiversity, enormous cost of the project and consid
ering the fact that the basic data on these vital aspects was still not The
24.
People Vs Verdict
available there .could be but one conclusion that the projects are not
ready for approval". However, despite this state of affairs, conditional
environmental clearance was given to the project in June 1987. As pointed
out by Justice Bharucha, though those conditions were also violated
and no comprehensive environmental impact assessment of the project
has been done till date, the project is still being allowed to go ahead.
That is why he has directed a comprehensive environmental impact as
sessment of the project and has restrained further construction till such
assessment is done and clearance given.
However the majority judgment, even after noting the above, states that
(Page 71):
“[It] is not possible.... for this Court to accept the contention of the Peti
tioner that the environmental clearance was given without application of
mind. It is evident
that the environmental clearance of the project
was unduly delayed."
What is amazing is that the Court accepts that "application of mind" can
take place even when there is nothing to apply mind to. Because the
very next statement in the judgment says:
“The Government was aware of the fact that number of studies and data
had to be collected related to environment. Keeping this in mind a con
scious decision was taken to grant environmental clearance..."
G. Specific Environmental Impacts
While the majority judgment accepts as valid the clearance given with
out studies it exhibits a similar approach while addressing the specific
environmental impacts. A few examples are given below.
Compensatory Afforestation: The Court notes the arguments of NBA
that compensatory afforestation was being carried out outside the project
impact area as also that wasteland or lesser quality land was being
used for compensatory afforestation. It ignores these arguments by simply
stating: (Page 82)
“According to State of Gujarat it has fully complied with the condition by
raising afforestation in 4650 hectares of non-forest area and 9300 hect
ares in degraded areas... against the impoundment area of 19%. The
pari passu achievement of afforestation in Gujarat was stated to be
99.62%.".
People Vs Verdict
25
The Court has not only accepted Gujarat's claims at face value but has
not mentioned anything about other States or that the afforestation was
carried out outside the impact area. It also states,( Page 82)
“If afforestation was taking place on wasteland or lesser quality land, it
did not necessarily follow that the forests would be of lesser quantity
or quality."
Downstream impacts: The serious impacts downstream of large dams
are now recognised the world over. However, the downstream impacts of
SSP are dismissed by this Court by stating that: (Page 83)
"Again, all these contentions [of serious downstream impacts] were
based on the Morse Committee Report which the World Bank and the
union of India had already rejected ."
The Court also mentioned a study by a British Agency which says that
there "are no down stream impacts whose magnitude and effect are
such as to raise doubts to be cast over the wisdom of proceeding with
the Sardar Sarovar... It is thought unlikely that any significant negative
environmental impacts [downstream] would occur over the next 30 years
The Court ends by saying (Page 85):
“It is also evident that until all the dams are constructed upstream and
the entire flow of river is harnessed, which is not likely in the foreseeable
future, there is no question of adverse impact including fishing activity
and the petitioner’s assertions in this regard are ill-conceived.”
How can apprehensions of downstream impacts be "ill-conceived" just
because they will take place after many years? After all, the major envi
ronmental impacts like waterlogging, siltation, downstream impacts etc.
all are essentially long-term impacts. Further, the bias of the Court is
seen from the fact that Petitioner's apprehensions of downstream im
pacts are being called “assertions" even though they are based on offi
cial reports and studies.
The Gujarat Government itself has stated in its submissions to the Court
(Vol. 164 of Court, Page 27, dated April 2000):
“The effect on downstream will not be felt in the first and second states
of development of the valley i.e. in the next 25 years. As per the study of
CICFRI, the number of families who would be affected in the downstream
and who are only partially dependent on fisheries is only 4644 [families]"
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People Vs Verdict
It may be noted that the Morse Committee was an independent commit
tee and it cautioned about very serious downstream impacts. The study
by the above mentioned British Agency was commissioned just after
the Morse report came out, with a clear (albeit unstated) purpose of
countering the findings of the Morse report. They were paid for by a grant
from the British Government given to the Sardar Sarovar. Not surpris
ingly, these studies gave a virtual clean chit to the project. It is indeed in
such situations that a public and peer review of the studies becomes
critical. The need for such a review itself has been rejected by the Court.
Meanwhile, the serious downstream impacts of Sardar Sarovar are ac
knowledged even by the first study of the environmental impacts done
by the MS University of Baroda, by NCA and so on.
Archaeological Heritage: The Narmada valley has a rich archaeologi
cal heritage and evidence of earliest human and humanoid civilisations
has been found here. Petitioners had shown, among other things, spe
cific instances of important archaeological sites that need to be investi
gated, excavated, and /or protected. This was based on the official list
produced by the Environment Sub Group of the NCA submitted to the
Court. Among these are several sites which would be submerged if the
height of the dam was raised even to 90 m. One such site was a site
where indications of a Harrappan contemporary civilisation has been
found. All these sites are in M.P. NBA had pointed out to the Court that
it is necessary to at least examine and document what is being lost
before permission is given for submerging these sites.
In dealing with this submission, the Court has noted this submission of
NBA at page 85 of the order. Amazingly, in the discussion on this issue
on the subsequent 3 pages, it does not refer to this submission at all.
Instead, there is a general discussion on Archaeology, reference is made
only to some studies, and action plan in the state of Gujarat only, that's
the end of the matter! M.P. situation is not referred to at all! The most
serious issue and specific instances raised by NBA is mentioned, and
then simply bypassed and ignored.
H. Community Resettlement
Every agency right from the NWDT Award to the NCA to state policies
have professed the need for community based resettlement. Thus oustees
from one village were entitled to be resettled together if they so desired.
People Vs Verdict
27
The rehabilitation master plan of Narmada Control Authority itself stated
that “ Oustees shall, promptly after their displacement.... be relocated
as village units, village sections or families in accordance with the oustees
preference." The problem was that it was not possible for the Govern
ments to carry this out as they are not having land in large enough
chunks. Therefore, they have tried to argue that the oustees themselves
have chosen to go in dispersed groups. They made this contention with
out ever showing that the oustees were offered chance to settle together
but they refused.
However, the Court has accepted this contention without any evidence,
and has stated in addition that (Page 126):
"While resettlement as a group in accordance with the oustees prefer
ence was an important principle/objective, the other objective were that
the oustees should have improved or regained the standard of living that
they were enjoying prior to displacement and that they should have been
fully integrated in the community in which they were re-settled"
The implication is that these two objectives were somehow mutually
exclusive. With this, the Court has virtually absolved the states from the
responsibility of the implementation of community based resettlement,
while professing that it is an important principle/objective.
/. Biased Picture of Tribal Area
The Court has accepted the picture presented by the Government of the
tribal areas as being very bleak, and very poor, of a resource poor area,
people somehow eking out a living. This is then used to state that there
fore the tribals find the resettlement package very attractive. (Pages 4143). This has completely ignored the submissions made by the Petition
ers about the reality of the tribal areas, which may seem poor to outsid
ers but have their own rich resource base, skills, culture, systems and
so on. This is also backed by the findings of the Tata Institute of Social
Sciences. But the Court has ignored this.
J.
Selective Picking from the Evidence of Monitoring Agencies
The Court’s Order has noted the findings of the Monitoring Agencies in
the three states namely Centre For Social Studies for Gujarat oustees,
28
People Vs Verdict
H.S. Gaur University for M.P. and Tata Institute of Social Sciences for
Maharashtra. It notes the findings of HSG University that M P. are happy
in Gujarat, but as far as TISS is concerned, it only says that TISS has
reported 97% overall literacy while illiteracy was rampant in the submer
gence villages. (Page 139-140) It has left out the detailed findings of
TISS submitted to the Court which talked about serious problems with
resettlement, the rich resource base of the tribals, the need for commu
nity resettlement and so on.
K.
Morse Committee Report Dismissed
The Morse Committee was set up by the World Bank, consisted of
eminent and qualified members, and was assisted by best consultants
from the World over. It undertook an extensive review of the rehabilitation
and environmental aspects over 10 months, much of them in the field. It
was the only agency that had access to all the documents related to the
project from World Bank, Governments, NGOs, NBA etc. It produced a
meticulous report.
Yet, the Court dismisses this report by stating (Pages 76-78):
"Apart from criticism of this report from other quarters, the World Bank
itself did not accept this report..."
"The Government of India vide its letter dated 7th August 1992 from Sec
retary, Ministry of Environment and Forests did not accept the report
and commented adversely on it.”
“In view of the above, we do not propose, while considering the petitioner's
contentions, to place any reliance on the report of the Morse Committee”.
A more strange reason to reject the report would be difficult to find.
Since the report was heavily critical of the project and the World Bank,
it was obvious that the Bank and the Government of India would reject
the report. But for the Court to reject the report because the Bank and
Government has rejected it is inexplicable.
L.
Latches (Delay)
The majority order has found NBA guilty of latches. It states that (Page
People Vs Vcrdicl
29
32-34):
“It [NBA] has been inexistence since 1986 but has chosen to challenge
the clearance given in 1987 by filing a writ petition in 1994."
“Even though complete data with regard to the environmental was not
available, the Government did in 1987 finally give environmental clear
ance. It is thereafter that the construction of the dam was undertaken
and hundreds of crores have been invested before petitioner chose to file
a writ.. In our opinion... Petitioner is guilty of latches.”
“When such projects are undertaken and hundreds of crores of public
money is spent, individual or organisations in the garb of PIL cannot be
permitted to challenge the policy decision taken after a lapse of time.”
And on Page 166:
“...any challenge to such a policy decision must be before the execution
of the project is undertaken...the decision to undertake a project, if chal
lenged after its execution has commenced, should be thrown out at the
very threshold on the ground of latches if the petitioner had the knowl
edge of such a decision and could have approached the Court at that
time."
It is amazing that the Court has ignored the basic fact that most infor
mation about such projects is secret and classified, and very rarely
available to the public. In most cases, people are never involved or in
formed at project formulation or initiation stage. People only come to
know when the work begins. Even an organised struggle like the NBA
takes years in which it can get access to the inside information. Even
when information about lapses and problem is known, it is very difficult
to get written proof. How can the Court except people to move the court
at the time the decisions are taken?
Further, NBA had resorted to step by step approach. It believed that
rather than rush to the Supreme Court, it would be more important to
raise the issue with the Government. Only when the Government ig
nored the persistent pleas of the movement and mounting evidence did
it decide to move the Court.
Indeed, rather than find NBA guilty of latches, it would have been more
appropriate for the Court to have reprimanded the Government for undue
hurry. Even before the project had secured environment clearance, a few
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People Vs Verdict
hundred crore rupees had been spent. Loan Agreements had been signed
with the World Bank. Even the tenders had been floated, opened and
contracts awarded before the clearance was given! Many families had
been displaced. All this was in front of the Court in writing, and had been
pointed out to it during the hearings.
The order of Jst. Bharucha states that: (Page 30)
"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
latches in that regard. In the writ petition they raised other issues, one
among them being related to the environmental clearance of the Project.
Given what has been held in respect of environmental clearance, when
the public interest is so demonstrably involved, it would be against the
public interest to decline relief only on the ground that the Court was
approached belatedly."
This is precisely the approach that one would expect from the highest
Court of the land which is expected to protect the common person’s
fundamental rights. Unfortunately, the majority order has taken a very
narrow view of the matter.
M.
Tribunal Not Open to Challenge
The majority order observes that (Page 37):
"Once the Award is binding on the States, it will not be open to a third
party like the Petitioners to challenge the correctness thereof. ..We
therefore, do not propose to deal with any contention which in fact seems
to challenge the correctness of an issue decided by the Tribunal.”
This is a very legalistic interpretation of the Inter State Water Disputes
Act and the Article 262 of the Constitution, especially when the Tribunal
Award is challenged face to face against fundamental rights including
right to life. This raises a lot of queries. The Tribunal is a creation of the
Inter State Water Disputes Act. However, in the case of the Narmada,
the dispute is not between the states but between the state and the
people. The arena of this dispute is that of the fundamental rights of the
people. Hence, to say that a third party cannot challenge the tribunal is
not only a narrow view but also an incorrect application of the ISWDA.
The unjust nature of this limitation is further accentuated by the fact that
the people were not given a hearing in front of the Tribunal. Thus, they
People Vs Verdict
,A 311
are bound by an Order which has been passed without hearing them.
The assumption of course, is that the Governments represent the people.
In this case, however, the Governments represent to the Tribunal on
behalf of the "beneficiaries’ as also “affected”. This is a clear conflict of
interest and hence there should be the provision for meaningful repre
sentation of affected people being heard; else, they should have a right
to challenge the Tribunal. This is especially so when the issue is of the
right to life itself.
Further, what about the case when the basic facts and assumptions on
which the Tribunal based its Order are found to have been incorrect, or
have changed? This is precisely the case in the Sardar Sarovar. How
can the right to challenge the Tribunal be taken away then?
Last but not the least, in case where the implementation of (one part) of
the Tribunal Award becomes impossible, what would happen9 In the
case of Sardar Sarovar, this is precisely what is happening. The imple
mentation of rehabilitation is in shambles, and the Tribunal Order is
being violated time and again. Would it not be open to for a person to
challenge the Tribunal Order on the grounds that one part of it, espe
cially the part dealing with the very right to life of the people, is not
implementable?
N.
Public Interest Litigation
One of the most objectionable parts of the Court's noting are the re
marks regarding Public Interest Litigation. (PIL) The Order States (Page
166):
“With the passage of time, PIL jurisdiction has been ballooning so as to
encompass within its ambit subjects such as probity in public life... But,
the balloon should not be allowed to degenerate to becoming Publicity
Interest Litigation or Private Inquisitiveness Litigation.”
This is a completely uncalled for statement. If the Court wanted to say
that NBA's PIL was frivolous or filed to gain publicity, it should have
stated this in so many words. If not, then such a sentence has no place
in the Order. It should be obvious that NBAs Petition brought out issues
that were serious enough for the work to be stopped for 5 years. To
quote the minority order, “when the public interest is so demonstrably
involved", how can the PIL be frivolous?
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People Vs Verdict
Indeed, by making such remarks, the Court indicates an approach to
PIL that does not augur well for the future of PILs. PIL is a unique contri
bution of the Indian judiciary and needs to be strengthened further, rather
than weakened, even if there are the exceptional cases of frivolous litiga
tion. Indeed, the cases of frivolous and mala-fide litigation are probably
far more in the normal litigation than in PILs.
Part C: Overall Approach of the Court in the Majority Judgment
Apart from the specific parts of the order related to the Sardar Sarovar,
there is also the overall approach within which this whole judgment is
framed. It is important to understand this approach.
Court’s Approach to Environment
An astounding aspect of the majority judgment is the approach and
understanding of the Court regarding the vital issue of environment. The
whole approach and understanding is completely against the emerging
knowledge, understanding and practices - nationally and internationally.
It is statist and status-quoist. World over, the serious environmental
impacts of dams have been recognised and extensively documented.
Yet, the majority notes that (Page 174):
"So far number of such river valley projects have been undertaken in all
parts of India. The Petitioner has not been able to point out a single
instance where the construction of a dam, on the whole, had an adverse
environmental impact. On the contrary the environment has improved’’.
This is an amazing assertion; first of all, the case was about SSP and
not large dams in general. Petitioners were not expected to, and indeed
discouraged from making submissions regarding broader issues like
environmental impacts of other dams in the country. Still, the Petitioners
had submitted to the Court a list of 10 dams in the country that had been
stopped or not granted clearance due to serious environmental prob
lems including the famous Silent Valley Project.
Secondly one wonders on what evidence this assertion of Court is based;
for it had no such evidence, presentations, discussions, regarding the
environmental impacts of large dams all over the country. However, re
cently, a inter-disciplinary team of experts did a "India Case Study" on
large dams. This study was commissioned for the World Commissions
on Dams, a body of internationally eminent people from all sides of large
dams debate. The unanimous findings of this study, given in Chapter
People Vs Verdict
33
“Some Agreed Conclusions - A final summing up" are:
1. Large dams have made important contributions to the development of
irrigated agriculture..
2. However, they have also had significant adverse impacts, including
social and environmental impacts..
3. Some of the adverse impacts of large dams are of such a nature that
they can be neither prevented nor mitigated.
4. Most of the adverse impacts and some of the incidental benefits of
large dams have not been recognised and assessed in the past
5. The computation of the financial and economic costs of preventing or
mitigating the adverse impacts of large dams would undoubtedly have
an impact on their financial and economic viability.
6. This is borne out by a retrospective assessment of the economic and
financial aspects of some large dams. This showed that when the costs
of preventing and mitigation even a few of these adverse impacts were
included in the overall costs of the large dam projects of the 1990s, they
seemed to become by and large economically non-viable.
9. Further, if the costs of residual environmental and social impacts that
cannot be prevented or mitigated are brought on board, there would be
an additional impact on the financial and economic viability of large dams.
This is the finding of a expert group study.
Precautionary Principle
NBA cited certain judgments of the Supreme Court which rule that the
precautionary principle must be followed and that burden of proof (that
adverse impact will not be there) is on the agency that wants to change
the status quo.
The Precautionary Principle is being recognised all over the world and is
enshrined in Agenda 21 of Rio Earth Summit also.
Yet, the court's majority order has dismissed its application here by
stating that it applies only in cases of “polluting or other industry where
34
People Vs Verdict
the extent of damage likely to be inflicted is not known". Of course, they
miss the point that full impacts even in case of a dam are not known or
cannot be fully anticipated.
The order further states (Page 95-96):
“In present case, we are not concerned with polluting industry...what is
being constructed is a large dam. The dam is neither a nuclear estab
lishment or polluting industry. The construction of a dam undoubtedly
would result in the change of environment but it will not be correct to
presume that the construction of a large dam like Sardar Sarovar will
result in ecological disaster
The experience does not show that con
struction of a dam ... leads to ecological or environmental degradation."
Apart from the false dichotomy between polluting industry and dams,
this assertion also flies in the face of findings of studies like India Study
quoted above.
No need for independent Assessment
The Court says that there is no need for any independent agencies to
look at the studies and surveys done. This is already discussed in detail
earlier in this note.
Court’s Approach to Large Dams
A substantial part of the Court Order is nothing but an eulogy of large
dams. Again, this eulogy is based on personal opinions, since this was
not the subject matter of the litigation and was not discussed or pre
sented during the hearings or in the submissions. As Prashant Bhushan,
Advocate points out:
“Every person in the country including judges are entitled to have views
on these matters. What is disturbing is when such personal views are
delivered as judgments of a court. This is because a judge is required to
decide issues on the basis of evidence before him, not on the basis of
his personal biases. In this case, these pronouncements have been
made in a case where the viability or desirability of large dams in general
was not in issue and where the court had repeatedly told the petitioners
that they must not make any submissions on this issue. Equally dis
tressing is the fact that such pronouncements have been made without
any evidence of these facts before the judges."
Indeed, a host of extensive documentation including the India Country
Study mentioned above shows ample evidence of the serious problems
of large dams not only with respect to the social and environmental
People Vs Verdicl
35
impacts, but also with respect to the benefits that they have been able
to provide. Certainly, such an unqualified eulogy of large dams is factu
ally incorrect and essentially consisting of a large number of assertions,
which are not based on any evidence before the Court, and flies in the
face of the vast evidence the world over which has raised serious doubts
over the very benefits and viability of large dams.
The Order also contains a number of similarly unfounded statements
like hydropower is cheap, or that hydropower is necessary to combat
the global greenhouse gas effects. One question is whether we in India
need to pay for ameliorating the problem of green house gases, since it
mainly the creation of the affluent and profligate and wasteful consump
tion of the North/ West. More important is that the studies undertaken
by the World Commission on Dams show that large dams themselves
can have serious Greenhouse gas emissions.
Role of Court
The Court takes a general stand that it cannot intervene in policy matter
as long as decisions are taken with application of mind and consider
ation of all facts. It also takes a position that the Tribunal cannot be
challenged and has to remain binding. Certainly, there is no doubt what
soever that policy making is the preserve of the Government. Yet, it
cannot be that the Court will not have any role in the matter. To the
extent that the policies, and the process of making these policies and
implementing them tramples on the fundamental rights, the Court not
only has a right, but also a duty to intervene. Given the serious nature of
issues raised by infrastructure projects vis-a-vis the right to life of the
affected people, it is expected that the Courts would take a liberal and
broad rather than a narrow view of its own role. This is all the more
important since the Government has historically exhibited unbridled use
of might rather than a responsible exercise of powers.
These issues have already been commented upon earlier in the note.
It is clear that the above approach and thinking of the Court has pro
foundly influenced the judgment.
Part D: Brief Comments on the Minority Judgment
The minority judgment is a one of the very significant judgments of the
Supreme Court. There are a few contentions of the Petitioners that it
has not accepted. In particular, it has said that (Page 2):
36
People Vs Verdict
j
w
r
,,
"..the Sardar Sarovar Project does not require to be re-examined, having
regard to its cost effectiveness or otherwise, and that the seismicity
aspect of the Project has been sufficiently examined and no further con
sideration thereof is called for. I do not accept the submission on behalf
of the petitioner that those ousted by reason of the canals emanating
from the reservoir in the Project must have the same relief and rehabili
tation benefits as those ousted on account of the reservoir itself; this is
for the reason that the two fall in different classes."
Detailed reasons are not given. Note that it rejects a “same relief' for the
canal affected people, but does not reject relief for them. The demand of
NBA was for an “appropriate package" for each category of oustees. The
minority order clearly states that the clearance given to the project was
not a valid clearance and orders the project to seek a fresh clearance.
For doing this, it also orders the constitution of an expert committee to
examine the environmental studies and surveys done so far, as also to
undertake any further studies required. It also requires the cost of the
environmental measures to be considered. It indicates that the environ
mental clearance process will not be a post facto process to justify a
decision already taken in as much as it explicitly expresses the possi
bility that such a clearance may not be granted.
Regarding the resettlement aspect, it lays down very strictly the con
cept of linkage between full and proper resettlement and the dam con
struction, an idea clearly envisaged by the Tribunal but repeatedly vio
lated. It also makes it amply clear that only the GRAs can be trusted to
effectively monitor the R&R activities, indicating also that the state ma
chinery cannot be.
It states that when matters of grave public importance are involved, a
mere delay in moving the Court cannot be used to deny relief/justice.
In sum, the judgment accepts many of the very important contentions of
the Petitioners and goes significantly in addressing the basic concerns
of the fundamental rights of the affected people. It is a important ex
ample of how the highest court of this land can, by taking a broad and
liberal interpretation of its role, and through a judicious exercise of its
power, playa significant role in safeguarding the rights of the ordinary
citizens against the untrammeled exercise of the powers by the Govern
ment and other interests.
People Vs Verdict
37
THE PEOPLE VS THE GOD OF BIG DAMS
Arundhati Roy
On the morning of the 18th of October the three judge bench of the
Supreme Court delivered its verdict on the PIL filed by the Narmada
Bachao Andolan against the Union of India and the state governments of
Gujarat, Maharashtra and Madhya Pradesh. After six-and-a-half years
of litigation, the primary imperative of what has come to be called 'the
majority judgment' by Chief Justice Anand and Justice Kirpal is that the
construction of the (currently 88 meter high) Sardar Sarovar Dam be
completed as 'expeditiously' as possible. Further, it says that the court
ought to have no role in deciding such matters. (Ought it to take a six
year legal injunction and three Supreme Court judges to come to this
profound conclusion?) Justice Bharucha, the only one of the three judges
on the Bench to have heard the case through from the time it was filed,
wrote a dissenting judgment, detailing the reasons why he could not
bring himself to agree with his brother judges.
In an earlier essay on the Narmada valley, The Greater Common Good.
(for which I was rapped on the knuckles by the Supreme Court), I de
scribed how successfully the Indian State has used all the institutions
at its command - the army, the police, the bureaucracy, the courts - to
achieve what it set out to achieve. To appropriate India's resources including its land, its forests, its rivers - and redistribute them to a favoured
few. The Indian State is superbly accomplished in the art of protecting
the cadres of its paid-up elite and pulverising those who inconvenience
its intentions. Its finest feat of all is the way it achieves all this and
emerges smelling sweet. (After all, we're not Burma, or Indonesia, or
Rwanda or even Pakistan. We're the proud citizens of the world's big
gest democracy.) If you want a quick fix on how the smell is sweetened,
a sort of Lazy Person’s Guide to The Way India Works, read the two
Supreme Court judgments side by side. Had Justice Bharucha chosen
not to place his dissent on record, we would never have known the un
imaginable process by which the Sardar Sarovar project insinuated it
self into the world. For this, I doff my cap to Mr Bharucha. Thank you sir.
In 1961 Nehru laid the foundation stone for a 49.8 metre high dam - the
midget progenitor of the Sardar Sarovar. In 1979, after the Narmada Water
Disputes Tribunal announced its award, the Sardar Sarovar was rede
signed to be a massive, 138.68 metre high dam, which, though located
38
People Vs Verdict
in Gujarat, would submerge villages in Madhya Pradesh and Maharashtra.
In 1985, before any detailed studies had been done, before any costs
were computed, before anybody had any idea what the human cost or
environmental impact of the dam would be, even before the Union minis
try of environment cleared the project, the World Bank sanctioned a 450
million dollar loan. (Eight years later, in March 1993, after commission
ing an Independent Review, which said that the project was inherently
flawed and that rehabilitation would be impossible, the World Bank with
drew from the project. This does not absolve it from the sin of setting the
ball in play.)
As soon as the World Bank load was in place, the state governments
set up an unseemly clamouring for the project to be approved by the
Ministry of Environment and Forests regardless of the fact that no proper
studies had been done. In his judgment, Justice Bharucha documents
this process in detail, quoting note after incriminating note.
In October 1986, a Note was prepared by the Ministry of Water Re
sources on the environmental aspects of the Sardar Sarovar project. It
said that the clearance of the projects from the environmental angle and
under the Forest Conservation Act 1980 had become a matter of ur
gency for the governments of Gujarat and Madhya Pradesh (that lus
cious loan was waiting). The Ministry of Environment and Forests said
that it was doing its best “but have been finding the material submit
ted inadequate and unsatisfactory." Under a sub-heading “Should
the project be taken up at all?", the Note said that abandoning the
project was not advisable even though critical information (which
would take at least three years to collect) was not available.
There is a remarkable, Kafkaesque section in the Note: "with the
project postponed for three years and with no assurance at the end
of that period that the decision will be positive, it is difficult to believe that
all these studies, surveys and plans relating to the environmental as
pects will be pursued with energy and enthusiasm and the necessary
resources devoted to them. In other words, the postponement of the
decision in the interest of collecting information...may in fact prove to be
a self defeating exercise.”
In other words, the government sees no point in doing studies unless it
already knows the outcome will be favourable to the project. (And, axiom-
Pcople Vs Verdict
39
atically, if it already knows the outcome, why bother with the studies?)
On November 20, 1986, another Note was prepared by the Ministry of
Water Resources and forwarded to the Additional Secretary to the Prime
Minister. Considering the fact that basic data on vital aspects of the
project was still not available the Note says “there could be but one
conclusion, that the project(s) are not ready for approval." Yet on Janu
ary 15, 1987 a note was put up to the Prime Minister by his Secretary,
seeking his approval for conditional joint clearance of the Sardar Sarovar
and Narmada Sagar projects The Department of Environment and For
ests said that the rehabilitation plan was not ready, that land had not
been surveyed, that areas of land use capability and water availability
had not been identified and the land being suggested for rehabilitation,
prima facie appeared to be infertile. The PM’s Secretary, however, said
that the project had been waiting for clearance for over seven years
(what were they doing all that time?) and that the chief ministers of MP
and Gujarat were "keenly awaiting" it. On January 19, 1987 the Prime
Minister (Rajiv Gandhi) jotted a hand-written comment on the note; "Per
haps this is a good time to try for a River Valley Authority, discuss."
This is the only thing on record that constitutes the 'Prime Minister's
clearance'. This single throwaway sentence is then used to announce
to the press that the projects have been cleared. The file is judiciously
fattened with various notes and letters from the state governments
hailing the clearance.
On June 24, 1987, based on what the Ministry itself called inadequate
information, the Ministry of Environment and Forests gave a clearance
to the projects subject to several conditions including a Catchment Area
Treatment Scheme, Command Area Development Plan and the submis
sion of a Rehabilitation Master Plan. In his dissenting 'minority' judg
ment, Justice Bharucha says “An environment clearance based on next
to no data in regard to the environmental impact of the project was con
trary to the terms of the then policy of the Union of India in regard to
environmental clearances and, therefore, no clearance at all." His judg
ment goes on to say that it was mandatory under the conditions of
clearance that catchment area treatment and the full rehabilitation of all
displaced people be completed before any water is impounded in the
reservoir. According to Justice Bharucha, the fact that this has not hap
pened constitutes a clear violation of the conditions of clearance. He
40
People Vs Verdict
says that in the 13 years that have passed since the conditional clear
ance, no comprehensive environmental impact assessment has been
done. For all these reasons the dissenting judgment says that the project
must be sent back to the Ministry of Environment for fresh clearance
after proper studies have been done.
The ‘majority judgment' however, sweeps this aside calling environmen
tal clearance “only an administrative requirement." Only an administra
tive requirement? Environmental clearance for two dams whose reser
voirs will, between them, hold more water than any other reservoir in the
Indian subcontinent is only an administrative requirement? What sort of
precedent does this set for the planners of the 695 big dams that are
being planned and constructed in India right now? Should they throw
darts at a map where they want to build a dam and then go ahead and
build it? Will the Supreme Court support them pari pasu?
The 'majority judgment’ actually goes on to blame the NBA for filing the
petition so late. “For any project which is approved after due deliberation
(notice how in the course of 13 years a Prime Minister's casual one-liner
becomes ‘due deliberation') the Court should refrain from being asked to
review the decision...Pleas relating to height of the dam and the extent
of submergence, environment studies and clearance, hydrology, seis
micity and other issues except implementation of relief and rehabilita
tion, cannot be raised at this belated stage.”
What this means is that the government sees no point in doing studies
before the project starts, and that citizens have no right to question it
once construction begins. The message from the highest court in the
land is pretty clear: Poor? Adivasi? Dalit? Happen to live in the submer
gence zone of a big dam? Tough luck. Go away, and go quietly.
The 'majority judgment’ decrees that the project should be completed
according to the guidelines of the Narmada Water Disputes Tribunal
Award under the supervision of the Narmada Control Authority (NCA),
supposedly an independent authority. The Chairman of the NCA Review
Committee is the Minister of Water Resources. The Chairman of the
NCA itself is Secretary, Ministry of Water Resources. (Round and round
the apple tree. Little partner dance with me...) Never mind that for 13
years the NCA has consistently violated the Award of the Tribunal, which
is what led to the filing of the petition in the first place. Despite this
shocking record, their lordships see no reason to “assume that the auPeoplc Vs Verdict
41
thorities will not function properly." In October 2000, 13 years after the
so-called "environmental clearance" and commencement of construc
tion, the court asks the NCA to produce within four weeks a Rehabilita
tion Master Plan which they haven't managed to produce in 13 years.
Mind you, we're still talking of a plan —not of actual rehabilitation.
In 1979, the number of families that were to be 'officially' displaced by
the SSP was 6,000. In 1987, it was 12,000. In 1991, it surged to 27,000.
In 1994, when the petition was filed it was 41,500. That's more than
200,000 people. Today God knows what the real figure is. The court has
it on affidavit from the government of Madhya Pradesh (the state to which
80 per cent of the displaced people belong) that it has no land for reha
bilitation. In the last 13 years, since construction began, MP has not
provided a single hectare of agricultural land for rehabilitation. What's
more, the governments of MP and Maharashtra have said under oath on
legal affidavits that 368 families who have been displaced by the present
height of the dam (88 metres) have not been given land. (Of course the
MP government doesn't mention the 114,000 oustees from the Bargi
Dam and the 30,000 oustees from the Maheshwar Dam and the indeter
minate number of oustees from all the other dams it has planned, who
have also not been given land). And yet, the Supreme Court of India
clears the immediate raising of the dam height up to 90 metres.
In other words, it orders the violation of the Tribunal Award. For the BJP
government in Gujarat this comes as a life-raft. Having suffered a severe
setback in the local panchayat elections, the judgment couldn't have
been better-timed for the Gujarat government had drafted it itself. The
perfect Diwali gift for a perfect government. Honestly, some people have
all the luck.
After having repeatedly prevented the NBA from making any submis
sions in court on the merits and demerits of Big Dams, the last few
pages of the 'majority' judgment launch into a badly written eulogy to big
dams based on no evidence whatsoever. Two quotes, two points:
(a) The petitioner has not been able to point out a single instance where
construction of a large dam has, on the whole had an adverse environ
mental impact. On the contrary the environment has improved.
Maybe their lordships don't travel very much. They could go to Punjab
and have a water-logged weekend in the command area of the famous
Bhakra Nangal Dam. Or stay at home and read the study of 300 projects
42
People Vs Verdict
by the Expert Committee on River Valley projects which found that 89
per cent of them violated the guidelines laid down by the Ministry of
Environment Or just keep in mind that despite India's 3,600 Big Dams,
drought-prone and flood-prone areas have actually increased since 1947,
that 200 million Indian citizens have no access to safe drinking water,
that not a single river in the plains has potable water, and that 10 million
hectares of irrigated agricultural land are currently saline and water-logged.
(b) At the time of lndependence foodgrain was being imported to India
but with the passage of time and the construction of more dams the
position has been reversed. The large-scale river valley projects per se
all over the country have made lndia>more than self-sufficient in food.
I thought so too, your lordships. Until I began to look for some official,
government facts to back that thesis up and found that there weren't
any. Until now no studies have been done to determine what percentage
of India’s foodgrain is produced by big dams. To believe that Big Dams
are the key to India's food security is to have faith without facts because
facts don't exist. At least they didn't until recently. This year, a chapter
in the India Country Study done for the World Commission on Dams
(whose report will be released in London by Nelson Mandela on Novem
ber 16) says that 10 per cent of India’s foodgrain is produced by big
dams. That's 20 million tonnes. The Ministry of Food and Civil Supplies
says that 10 per cent of India's foodgrain is eaten every year by rats.
And that’s 20 million tonnes. We must be the only country in the world
that builds dams, uproots millions of people (56 million people in the last
50 years according to the India Country Study), submerges forests and
destroys the environment in order to feed rats. Clearly we need better
warehouses more than we need Big Dams.
[An ardent campaigner of the Narmada Bachao Andolan, Arundhati
■Roy is a writer and activist]
People Vs Verdict
43
PEOPLE BE DAMNED
Prashant Bhushan
At last we have it on excellent authority. The Chief Justice AS. Anand
and Justice B.N. Kripal of the Supreme Court have decreed that large
dams do not cause environmental damage, they lead to improvement in
the conditions of the oustees and are in fact essential for the economic
prosperity of the country.
In the words of their lordships contained in the majority judgment on the
Sardar Sarovar project, “The experience does not show that the construc
tion of a large dam is not cost effective or leads to ecological or environ
mental degradation. On the contrary there has been ecological upgradation
with the construction of large dams." They say: “The petitioner has not
been able to point out a single instance where the construction of a dam
has, on the whole, had an adverse environmental impact."
They go on to say that in most cases of involuntary displacement, the
oustees have in fact been left better off after their displacement. "A prop
erly drafted R&R plan would improve living standards of displaced per
sons after displacement. For example, residents of villages around Bhakra
Nangal Dam, Nagarjun Sagar Dam, Tehri, Bhilai Steel Plant, Bokaro and
Bala Iron and Steel Plant and numerous other developmental sites are
better off than people living in villages in whose vicinity no development
project came in." So now we have a resounding endorsement of the
virtues of large dams from the highest judicial authority in the country.
Every person in the country including judges are entitled to have views
on these matters. What is disturbing is when such personal views are
delivered as judgments of a court. This is because a judge is required to
decide issues on the basis of evidence before him, not on the basis of
his personal biases. In this case, these pronouncements have been
made in a case where the viability or desirability of large dams was not
an issue and where the court had repeatedly told the petitioners that
they must not make any submissions on this issue. Equally distressing
is the fact that such pronouncements have been made without any evi
dence of these facts before the judges.
The issue of large dams has become controversial with increased un
derstanding of the problems of those who are involuntarily displaced and
long- term damage to the ecology of the area. Most developed countries
44
People Vs Verdict
some of them. Recently, the World Bank has sponsored an interna
tional commission to review the performance of large dams. This World
Commission on Dams (WCD) has representatives from all major stake
holders including the dam industry. The recently released India Study of
the WCD presents a dismal picture.
The report concludes that major and medium irrigation projects are largely
unviable. On hydropower the report concludes that, “Given the high capi
tal cost, long-term gestation period and environmental and social costs,
hydro power development is not the preferred option for power genera
tion compared to other options". Contrast this with the sweeping state
ment of the judges (without any evidence): “The cost of generation of
electricity in hydel projects is significantly less".
The WCD India study goes on to estimate that 56 million persons, of
whom 62 per cent are SC and ST, have been involuntarily displaced due
to large dams, and over 5 million hectares of forests have been sub
merged. The dams have consumed Rs. 1,56,000 crore which represents
more than two-third of the water resource budget in the country for the
last 50 years, while contributing less than 10 per cent to the agricultural
production. The report says that even the electricity and irrigation ben
efits routinely bypass the affected and poor communities and are con
sumed by landed farmers, urban consumers and well to do people. “The
distribution of most of the costs and benefits of large dam seem to
accentuate social-economic inequities."
On the Sardar Sarovar project, the World Bank had commissioned a
high powered review (the Morse Committee) which submitted its report
in June 1992. The report concluded that, “Environmental and social trade
off have been made, and continue to be made, without a full understand
ing of the consequences. As a result, benefits tend to be overstated,
while social and environmental costs are frequently understated...
“We think that the Sardar Sarovar Projects as they stand are flawed,
that resettlement and rehabilitation of all those displaced by the projects
is not possible under the prevailing circumstances, and that the environ
mental impacts of the projects have not been properly considered or
adequately addressed."
This high powered committee's report has been rubbished in the judg
ment of Justice Kirpal by saying that it was not accepted by the World
People Vs Verdiet
45
ment of Justice Kirpal by saying that it was not accepted by the World
Bank or the Government of India. The court routinely appoints experts
committees on its own when it is dissatisfied with Government commit
tees, and acts on the reports of such committees. But curiously, the
court refuses to even look at a report which is not endorsed by the World
Bank or the Government. Virtually the same short shrift has been given
to the two reports of the high powered Five Member Group (FMG) con
stituted by the Centre to look at certain aspects of the projects.
The FMG, virtually all official agencies and the Narmada Tribunal Award
have emphasised the need for community rehabilitation of the oustees.
Thus oustees from one village were entitled to be resettled ’together’ if
they so desired. Yet the court goes on to hold that community rehabili
tation of these mostly tribal oustees was not required.
Justice Bharucha in his minority judgment has pointed out that all the
official notes prepared prior to clearance and even the order of condi
tional clearance brought out the fact that the basic environmental im
pact studies had not been done by that time. It was noted by the Minis
try of Environment. “Indeed, it is the view of the Ministry of Environment,
Forests and Wild Life that what has been done so far whether by way of
action or by way of studies does not amount to much and that many
matters are yet in the early and preliminary stages."
The Ministry of Water Resources in its note put up to the Prime Minister
has stated that “considering the magnitude of rehabilitation, involving a
large percentage of tribals, loss of extensive forest area rich in biodiversity,
enormous cost of the project and considering the fact the basic data on
vital aspects was still not available, there could be but one conclusion
that the projects are not ready for approval".
However, despite this, conditional environmental clearance was given to
the project in June 1987. As pointed out by Justice Bharucha, though
those conditions were also violated and no comprehensive environmen
tal impact assessment of the project has been done, the project is still
being allowed to go ahead. That is why he has directed a comprehen
sive environmental impact assessment of the project and has restrained
further construction till such assessment is done and clearance given.
The majority judgment of Justice Kirpal holds that “the pleas relating to
height of the dam and the extent of submergence environmental studies
46
People Vs Verdict
mentation of relief and rehabilitation cannot be permitted to be raised at
this belated stage." It is surprising that this comes from judges who
have acquired the reputation of'Green judges’, having issued tough di
rections in matters relating to deforestation and pollution.
Distressingly, the court has also allowed immediate construction of the
dam till 90 meters on the basis of a clearance given by the NCA in early
1999. This is despite the admission of Madhya Pradesh that it had not
been able to provide agricultural land to at least 156 families. The court
notes that in six villages of MP affected at 90 meters, even land acquisi
tion awards had not been passed. This means that this construction up
to 90 metres would violate the Narmada Tribunal Award itself which
mandates that under no circumstances can the land of an oustee be
submerged till he has been rehabilitated.
The Narmada Bachao Andolan had been reluctant to approach the court
since many in the NBA viewed the court as an instrument of the haves,
the powerful and the influential. I persuaded them to come to court since
I had more faith. I must admit that I have been proved wrong. This judg
ment is bound to shake the confidence of the people in the ability of the
judiciary to protect the rights of the weak from onslaughts by the State
and powerful vested interests.
[Prashant Bhushan is a senior advocate in the Supreme Court of
India and has represented Narmada Bachao Andolan, along with Adv.
Shanti Bhushan]
People Vs Verdict
47
A JUDGMENT OF GRAVE IMPORT
Ramaswamy Iyer
This article is about the nature and implications of the Supreme Court's
judgment on the Narmada (Sardar Sarovar) case, and not about the
merits of the project or about the question of large dams in general.
‘Judgment’ here refers to the majority judgment by Justices Kirpal and
Anand. While the minority judgment by Justice Bharucha is not without
importance, it is the majority judgment that prevails and constitutes the
judgment in this case; and being the judgment of the highest court in the
land, it represents finality from a legal point of view. The petitioners have
no legal recourse against it, other than a review petition to the Supreme
Court itself. It follows that criticisms of the judgment may have no prac
tical consequences. Nevertheless, they may still serve a useful pur
pose, and it is in that belief that this article is being written.
It is written with a heavy heart. During the last decade or two, the Su
preme Court has been blazing a trail. While there has been some criti
cism of what has come to be known as ‘judicial activism’, it has on the
whole won national approval. Most of us (this writer included) have been
grateful to the judiciary for trying to rescue the country from the egre
gious failures of the executive and the legislature. Unfortunately, all that
good work has been nullified at one stroke by this single judgment,
which blazes a trail in the wrong direction. The complaint of the present
writer is not that the judgment allows the project to proceed further. It
was never his expectation that the court would stop the project. How
ever, he had hoped that approval to further construction would be se
verely conditional and that justice would be done to project-affected per
sons (PAPs). Those hopes have been belied. The judgment can only be
described, with deep regret, as a most unfortunate and disquieting one.
Such a statement cannot be made lightly; the following paragraphs will
provide the necessary justification.
First, the judgment, delivered after six long years of proceedings, fails to
deal with the very issue that was brought before it, namely, a situation of
lapse and failure in relation to certain aspects. The judgment allows the
dam to go up to 90 metres, and stipulates that further construction would
be conditional on a clearance (in stages of 5 m) by the Environmental
and Rehabilitation Sub-Groups of the Narmada Control Authority (NCA)
from their respective points of view and with reference to the conditions
of clearance with which they are concerned. Those sub-groups are in
48
People Vs Verdict
any case charged with that responsibility, and the judgment has said
nothing new: this article will return to that question. However, the point
that needs to be noted here is that if a check with reference to the
environmental and rehabilitation aspects is warranted after 90 metres, it
is equally warranted before that height is reached. Rehabilitation has
not been completed fully even in relation to a height of 85m. This must
have been clear enough from the material before the court. It has also
been clearly stated that land for resettlement is not available in
Maharashtra and Madhya Pradesh. The judgment itself faults the MP
government for its failures in this regard. There are deficiencies in rela
tion to the environmental conditions too. It is beyond doubt that the pari
passu clause has not been complied with. Thus, there is an existing
situation of failure of compliance with the conditions prescribed by the
ministry of environment and forests and the Planning Commission while
according approval to the project in 1987. That failure also constitutes a
violation of the Tribunal's directions as well as those given by the Su
preme Court itself in the past. The minority judgment of Justice Bharucha
does not specifically refer to this, but in a sense it goes further: it says
that the very clearance given to the project in 1987 was wrong because
it was not based on a proper examination: on that ground it calls for a
halt to the project until it is put through a fresh scrutiny and clearance.
There is thus room for some concern (to put it mildly) on the environ
mental and rehabilitation fronts. Justices Kirpal and Anand may not agree
with Justice Bharucha that there is need for a fresh examination and
clearance, but should they not at least have made further progress from
85m to 90m conditional on the existing deficiencies being remedied and
compliance completed? Overlooking present non-compliance and ask
ing for compliance to be checked at some future time amounts to a
condonation of violations - a kind of 'amnesty' scheme for the project
authorities and the governments concerned. (It might be argued that the
Rehabilitation Sub-Group of the NCA had found that the conditions had
been fulfilled for a height of 90m. They said nothing of the kind; they
merely noted that "arrangements were in place", not that conditions had
been fully complied with. Nothing that they said can be construed as
warranting further construction up to 90m.)
Secondly, the judgment muddies the waters by making sweeping pro
nouncements about the desirability of dams. The learned judges strongly
argue the case for judicial restraint and chastise the petitioners for bringing
before the court matters that belong to the executive sphere. They seem
to have forgotten that they themselves, or their predecessors on the
People Vs Verdict
49
bench, had raised some issues of this kind (hydrology, height of the
dam, etc) and asked for a second report from the Five- Member Group
(FMG), and that the Further Report of the FMG was submitted in April
1995 not to the government but to the Supreme Court as directed by it.
Leaving that aside, and accepting the stress on judicial restraint as
valid, one must ask why the learned judges then proceeded to write an
essay on the virtues of dams. The petitioners, so far as one knows, were
not asking for an injunction against dams in general; they were in fact,
instructed by the court at an early stage of the case, not to raise general
issues regarding dams but to confine themselves to the particular project
in question. They were not even asking for an immediate abandonment
of the Sardar Sarovar Project (whatever their views on dams in general
and this dam in particular might have been) but making submissions on
what they considered to be the adverse environmental, social, human
and economic consequences of the project, and asking for a stoppage
of work on the project pending a comprehensive independent review.
Conceivably, such a review could lead to either a negative or a positive
conclusion. Speaking subject to correction, nothing in the petitioners’
submissions called for an Ode to Dams by Their Lordships.
Apart from that inconsistency, the advocacy of dams in thejudgment is
undistinguished, to say the least. The judgment puts forward the familiar
arguments for dams (variability of rainfall over time and space, need for
storages and transfers, the 'clean' nature of hydro-electric power, etc);
dismisses the advocacy of alternatives such as watershed development
and local water harvesting; avers that dams are necessary for develop
ment (with no hint of an awareness of the debate regarding the notion of
'development'); makes light of the adverse impacts of dams; goes to the
extent of saying that dams are actually good for the environment, seems
to accept the doctrine that some people must 'sacrifice' (be sacrificed?)
for the good of others; and observes that no instance of a dam having
done any harm has been brought to notice. One keeps rubbing one’s
eyes in disbelief that the learned judges could really have made them
selves responsible for such rash and ill-considered statements. If this
had been a presentation made in a seminar or conference, it would have
received short shrift. The case for dams could have been much better
argued; and the case against dams can be argued with even greater
force. There is a major unresolved controversy and a vast literature on
this subject. There are books on large dams by Goldsmith and Hildyard,
Patrick McCully, B D Dhawan, Enakshi Thukral Ganguly, Jean Dreze et
al, Satyajit Singh, and many others. The latest addition to this literature
50
People Vs Verdiet
is the India Country Report (Large Dams: Indian Experience) submitted
by a team of five to the World Commission on Dams (WCD). WCD's
own report (likely to be path-breaking) is expected shortly. Against that
background, one wishes that the judgment had not rushed headlong
into this dangerous terrain. In any case, the mere fact that these obser
vations about dams have been made by judges in a judgment does not
give them any greater legal force than the views of others - engineers,
economists, sociologists, environmentalists, or even ordinary people.
They remain mere unsupported personal opinions that have no place in
a judgment.
Thirdly, apart from a naive belief in the virtues of dams (and an undercur
rent of disapproval of those who argue against them), another force driv
ing this judgment is a strong disapproval of the NBA. Consider some of
the remarks made by the learned judges: “an anti-dam organisation";
“Publicity Interest Litigation"; Private Inquisitiveness Litigation"; and so
on. With respect, these dismissive remarks do not reflect a judicious
frame of mind. The petitioners managed to persuade at least one judge
that there was something in what they were saying; this was therefore
hardly a case of frivolous or trivial public interest litigation (PIL). Be
sides, the submissions made and documentation presented could have
been accepted or rejected by the court, but nothing in them could have
warranted the kind of remarks cited above. The animus that is evident in
the judgment is very similar to the anger that marred the judgment in the
famous Election Commission (T N Seshan) case some years ago.
Incidentally, the very use of the expression "anti-dam" with an undertone
of disapproval is revealing. Why should that term carry a pejorative con
notation? Both 'pro-dam' and 'anti-dam' positions are surely mixtures of
valid and invalid arguments?
The animus against the petitioners is particularly evident in the section
entitled 'Laches' in which strictures have been passed on NBA for delay
in bringing the case to the court. The point made is that the clearance to
the project was given in 1987 whereas NBA came to the court as late as
1994, on which ground alone, according to the learned judges, the peti
tion could have been rejected. With respect, one wishes that they had
done so; much time would have been saved, and NBA would have been
left free to explore other channels or forums. The answer to the charge of
delay is evident and was available in the material before the court. NBA
started by trying to improve the rehabilitation policies and packages and
People Vs Verdict
Xs
1
their implementation. Over a period of time it gradually came to the
conclusion that the project was badly flawed and needed a major review.
It was only at that stage that NBA began to think of going to the Su
preme Court, partly encouraged by the new receptivity of the court.
Meanwhile, NBA's campaign produced some results: the World Bank
appointed an Independent Review, and some time later, the government
of India set up the Five-Member Group. Unfortunately, the Gujarat gov
ernment boycotted the FMG and questioned its constitutionality, and
someone filed a case in the Gujarat High Court against the establish
ment of the FMG. It was because of a growing sense of despair at the
failure of its efforts to find an adequate response from the executive
machinery that NBA thought that it should move the Supreme Court.
That is an understandable development and one fails to see any occa
sion for a reprimand. It must be noted that Justice Bharucha finds no
merit in the ‘laches’ argument.
It may not be out of place here for the writer to share with the readers a
piece of relevant history. When NBA filed a copy of the FMG's report of
April 1994 before the SC, the judges wanted a supplementary report on
certain aspects and wanted to know how much time the FMG would
need. This was in March 1995. The FMG said that it would give a report
by May 31. Their Lordships were furious. They asked the solicitor gen
eral whether the members of the FMG did not realise the urgency of the
matter, and said that they wanted a report by April 16 as they were
anxious to pass an early judgment on the case. Some members of the
FMG were unhappy at the tone of the judges' remarks in court, but out
of deference to the apex court the group agreed to do whatever it could;
and its report was submitted to the court on April 16,1995 as required.
The court has delivered judgment in October 2000. Presumably it would
be improper to ask why the SC took so long to give a judgment in this
case, but against that background the learned judges could at least
have refrained from talking about the petitioner's putative delay.
Fourthly, in allowing construction to proceed and asking for checks to
be made at intervals of 5m after the height of 90m has been reached, the
judgment has introduced no new safeguards to ensure compliance but
has advanced the doctrine that the existing institutions must be pre
sumed to be working. That doctrine is not corroborated by actual expe
rience. The judgment refers to the NCA, its Environment and Rehabilita
tion Sub-Groups, and the minister-level Review Committee. All this ex
ists already. The pari passu clause implied a continuous check to see
52
People Vs Verdict
that construction did not proceed ahead of measures on the environ
mental and rehabilitation fronts, but it broke down. The Environment and
Rehabilitation Sub-Groups have not been very effective. In this context,
this writer (who was a member of the FMG) would like to state the
following. During the course of a session that the FMG had with a former
secretary of the environment ministry and chairman of the Environment
Sub-Group, that functionary expressed his anguish at the difficulties
that he had experienced in discharging his responsibilities, the inad
equate response that he had received from his colleagues on the SubGroup, and the force of the peer-pressure on him to be'positive' and not
stand in the way of construction, and wanted the FMG to take note of
this. There is a veiled reference to this in the FMG's report. That very
passage has been cited in the judgment but without an appreciation of
its significance.
The failure of the existing machinery was in fact what led to the PIL.
NBA must be presumed to have established some kind of a prima facie
case, because the court itself suspended construction for several years,
and even now at least one judge finds enough ground for ordering a fresh
scrutiny and clearance. What then is the point in recapitulating the ex
isting arrangements as if new orders were being passed? Even the pre
scription of a reference to the Prime Minister (as if he were a judicial
authority) is nothing new. The Review Committee is a minister-level com
mittee. A disagreement at that level is bound to lead to a reference to the
cabinet or to the PM; this has happened before. The judgment offers
nothing new. It is in fact a denial of relief and of justice.
The court has not in the past presumed that the existing machinery is
working. One of the innovations of the Indian judiciary has been the
assumption of the right to ask public authorities why they have not been
discharging their statutory responsibilities. The court has given direc
tions to the CBI in certain cases, and asked for periodical reports; it has
gone into garbage clearance by municipalities; questioned public health
authorities on measures to prevent the outbreak of dengue; directed the
shifting of industries; laid down schemes for admissions to educational
institutions in the private sector; expressed displeasure with pollution
control measures; concerned itself with the state of the Yamuna, with
the saving of the Taj Mahal from the effects of pollution, and with emis
sion norms for automobiles; and ordered the establishment of the Cen
tral Groundwater Authority. Some of this was undoubtedly excessive
activism, but the presumption in the present judgment that existing arPeople Vs Verdict
53
rangements are working is a complete volte-face. The steady widening
of the scope of judicial review during the last several years (sometimes
carried too far) now yields place to the doctrine of 'government knows
best’ and the abdication of judicial responsibility for protecting the rights
of the people; the earlier encouragement of PIL (again, sometimes car
ried too far) now changes to the deprecation of PIL in sarcastic lan
guage; and the enthusiasm for environmental causes (not always well
thought out) has been succeeded by faith in government committees
and the proposition that these are not matters for the courts. This is
indeed full-scale retreat on a wide front. Assuming that some degree of
correction had to be applied to the excesses of judicial activism, the
learned judges need not have gone quite so far; and it is ironic that for
the purpose of cutting PIL down to size they should have chosen the one
case where, more than in any other, PIL was appropriate and called for.
This cannot even be regarded as ‘passivism’ as opposed to the earlier
'activism'; it is in fact, activism of the wrong kind - on behalf of the state.
In future, if the existing machinery fails and if the state uses the police
as an instrument of enforcement of its policies for what it considers
‘development’, what recourse does the citizen have? In effect the present
judgment throws the affected people to the tender mercies of the govern
mental machinery. The people who approached the Supreme Court for
justice have been given a dusty answer. (This invites comparison with
the judgment that upheld the suspension of fundamental rights during
the Emergency period.) This is a severe setback not merely to NBA and
Medha Patkar but to all movements for the empowerment of the people
vis-a-vis the state and the cause of environmental protection.
Finally, something needs to be said on the 'non-reviewability' of certain
portions of the Tribunal’s award, as the judgment seems to set much
store by that argument of the Gujarat government. A Tribunal is essen
tially a conflict-resolution mechanism. Its award (including the 'non- re
viewability' of parts of it) is indeed binding on the parties to the dispute in
the sense that no party can unilaterally resile from it. However, if all the
parties to the dispute reach an agreement, surely they can not only
make changes but even set aside the award and sign a new accord.
Further, in the context of the Inter-State Water Disputes (ISWD) Act
1956 an 'inter-state dispute' means essentially an inter-governmental
dispute: if it has been resolved without consulting the people whose
interests are affected, can they be asked to accept the consequences,
say, a project involving displacement on a large scale, without demur? Is
54
People Vs Verdict
an award under the ISWD Act also an adjudication between the state
and the people (who were not parties before the Tribunal)? Are questions
of human rights overridden by an award on the inter-state sharing of
waters?
In Shakespeare’s The Merchant of Venice, Portia said that in terms of
the contract Antonio could have his pound of Shylock’s flesh, but with
out shedding a drop of blood. In the present case, she might have ar
gued that the Gujarat government could go ahead and raise the dam to
455', but not displace more than 7,000 families (which was the number
mentioned by the Tribunal). That number is evidently regarded as flex
ible: it has gone to upwards of 40,000 now; but the dam height of 455' is
considered inflexible. In other words, the dam must be built to 455',
regardless of whether 7,000 or 40,000 or 1,00,000 families are displaced,
and regardless of whether land for resettlement is available or not. Is
that what 'non-reviewability' means?
The Madhya Pradesh government had developed serious apprehensions
about the feasibility of resettling and rehabilitating the large numbers
involved and proposed a reduction in the height of the dam to 436' to
minimise displacement and make the task of rehabilitation more man
ageable. Others (scholars and analysts) had proposed alternatives that
might have envisaged still lower heights and reduced displacement dra
matically. Those propositions may or may not have survived a careful
scrutiny. However, they have been ruled out of consideration by the simple
argument of the sanctity of the Tribunal's Award, and that argument has
been accepted and endorsed in the judgment. Let us suppose for a
moment that MP had proposed an increase in the height of the dam for
enhancing power generation: what would have been Gujarat's reaction?
Again, in the hypothetical event of a generous MP government offering
to reduce its share of Narmada waters and let Gujarat have 2 MAF
more, would Gujarat have refused such an offer on the ground of the
sanctity of the Tribunal's Award?
The details mentioned in the Tribunal's Report have not in fact been
treated as immutable. The power-house configuration has been com
pletely changed. Changes (liberalisations) have been made from time to
time in the R and R policies and packages. The Supreme Court itself
has modified the time limit laid down by the Tribunal for the completion
of rehabilitation arrangements (in relation to submergence of land). If all
these changes were considered acceptable, then why should the sugPeoplc Vs Verdict
55
gestion of changes in the physical features of the project to minimise
human suffering be considered improper and unacceptable?
Besides, the fact that the project was mandated by a Tribunal was not
held to exempt it from the usual procedures of techno-economic exami
nation and approval. The need for approval implies the possibility of non
approval. If the examination had resulted in a negative finding, or in an
approval subject to some modifications, would that have constituted a
violation of the Tribunal’s Award? If new facts come to notice that show
that a dam of the prescribed height at the stated place might be danger
ous, would it be nevertheless obligatory to build it? This is not a hypo
thetical question. The recurring tremors in the Koyna area and the oc
currence of the Latur earthquake seem to call into question our earlier
understanding of the nature of seismic activity in central and southern
India. Does this call for a review of the safety aspects of the Sardar
Sarovar Project, or should we take the view (as Justice Bharucha does)
that those aspects have already been studied adequately? If in fact the
hydrological assumptions of the Tribunal were wrong, would that call for
a review of project design or would the specifications laid down by the
Tribunal preclude such a review? What absurdities we are driven to by
the 'non-reviewability' argument of the Gujarat government which has
been upheld in the judgment!
In conclusion, the judgment is a negative answer to those who sought
relief, and a severe blow to people's movements. Armed with this judg
ment the Gujarat government will now press forward with construction,
and they will be in no mood to listen to anyone other than ardent advo
cates of dams in general and of SSP in particular. There will be even
greater intolerance towards dissenting opinion than before. The fragile
facade of politeness maintained with difficulty earlier will now disappear.
As for water resources planning in general, there will beeven less recep
tivity than before to pleas for a reorientation and for a consideration of
alternatives to big dams. What can one say except "Cry, the Beloved
Country”?
[Ramaswamy Iyer was the member secretary of the Five Member
Group constituted by Govt, of India in 1994 to review Sardar Sarovar
Project. He was also the Secretary, Ministry of Water Resources,
Govt, of India]
56
People Vs Verdict
NEED FOR AN ALTERNATIVE POLITICAL
MOVEMENT
Yogender Yadav
Medha behan,
The sight of tears in your eyes on the television the night of the judgment
prompted this letter. Reacting to the Supreme Court judgment with a
clearly broken heart and in a broken voice, you were saying "andolan ko
marne nahin dena hai” (the movement must not be allowed to die/be
killed). The tears did not convey any helplessness; that drop reflected
both the anguish of Narmada and the resolve of a true satyagrahi. The
tremendous dignity with which you have stood up to such heavy odds is
an ennobling and enhancing sight for those millions who would have
watched you that night. But there was also something unsaid there and
in your statements since then, that causes alarm. It is as if you are
taking on the moral responsibility of the ‘defeat' and planning a major
step with a sense of finality. Hence this letter. And it is addressed to
you, as the one who stands for the hundreds of activists of Narmada
Bachao Andolan [NBA] whose dedication has turned this movement
into one of the legends of post-independent India.
It might well seem as if the establishment in Gujarat has won the case.
But for how long can the powers that be cloud the truth?. The fifteen year
old satyagraha for Narmada has challenged the established notions of
'victory' and 'defeat'. Your clip on television was followed by the reac
tions of the Gujarat CM and a minister. While they mouthed something
about the decision having given a hope to the dry regions of Saurashtra
and Kuchch, their eyes betrayed the truth. The Supreme Court decision
has given a ray of hope to the BJP government in Gujarat, up against the
wall of popular unrest. How else does one view the official celebrations,
crackers and all, but as a ploy for political encashment? How else does
anyone interpret the public holiday except as a decision of an ecstatic
state to release the people from its subjugation for a day? Lakhs of
viewers must have seen how ridiculous and obscene power can be.
Those who did not, will surely see that in days to come. An honest audit
of who ‘won' on the 18th October can only be done 25 years from now. It
might show that the true victors of this verdict were the contractors,
engineers and the middlemen.
People Vs Verdict
57
You did not lose on the 18th. The Supreme Court did. When the NBA
decided to approach the Supreme Court, fresh winds were blowing in
the corridors of courts. PILs had opened the doors of the Supreme and
the High Courts for the ordinary citizens. There was a hope that the
highest court of the land may not remain the battleground for the legaltechnical contestations between the well-to-do and instead occasion
ally be a site for meaningful social struggles. These hopes did not quite
materialise. There has been a lurking suspicion in the minds of many for
some time that while the judges are deeply concerned about pollution in
the big cities, the life of its labouring classes doesn't touch them in the
same way; while they worry about the tigers in jungles, the adivasis that
share the same space do not matter in the same way. October 18th will
lend credence to these suspicions. Legal minds will debate the ratio
nale and the logic behind the majority judgment. They are already sur
prised that the same court that did not permit arguments on the general
merits or otherwise of the big dams has deemed fit to make statements
on this issue in their judgment. Civil rights activist and NBA lawyer
Prashant Bhushan has already expressed his concern that the learned
judges may have allowed their private biases to affect their judgment. He
regrets having persuaded a reluctant NBA to repose its trust in the Su
preme Court. His regret will resonate far and wide. In future no grassroots
movement will make the mistake of knocking on the doors of the Su
preme Court. That surely is a defeat for the Supreme Court and for all
those who hope to use the judicial process for common citizens.
You did not lose. Your satyagraha is not merely against a single dam, it
never was merely a legal battle. You said in one of your letters three
months ago “The struggle for the last 15 years on the banks of Narmada
is not an opposition to one big dam; it is a struggle for the right water
and development policy....We have moved forward in a quest to find
people-centred and participatory ways to ensure the utilisation of water,
land and forest products ... It is necessary today for the entire society,
not just the powers that be, to listen to the story of the common people
... you have to be a moral adjudicator." And you have won that adjudica
tion in that difficult court, ever so long ago! Your unparalleled movement
has shaken the conscience of our nation sensitive citizens arrived at the
valley to see the truth for themselves and went away convinced of the
disaster in the name of development. The letter Baba Maharia, the unlet
tered son of his mother 'Motli Bai' Narmada, wrote to 'Diggi Raja’, the
Chief Minister of Madhya Pradesh, will survive as one of the most mov-
58
People Vs Verdict
ing testimonies of our time. The NBA has done much more than simply
oppose the SSP. It has exposed the big lie that all the big dams in our
country have been so far. You had won the day the Gujarat government
had to expand the official definition of 'damages' that qualify for compen
sation to the victims. Actually, if even a drop of Narmada water ever
reaches the parched lands of Kutch or Saurashtra, it will again be a
victory for you. The NBAs real victory will become evident only in the
coming century. No new Sardar Sarovars will be dreamed up. SSP or no
SSP, the inheritors will live to tell the tales of this extraordinary struggle
of the valley and the flag of the NBA will fly higher than a ninety or a
hundred and thirty eight meters.
All this is not to soothe your anguished heart, nor to bolster the spirit of
the rest of the satyagrahis but merely to recall a fundamental lesson of
history. No great movement can be measured by its immediate conse
quences. Just think of it, Gandhiji failed to realise the immediate de
mands of any of the movements he led with the exception of Champaran.
Institutionalised racism continued long after he left South Africa. The
main demands of the workers in the Ahmedabad mills remained unful
filled when the agitation was called off. Neither the Non-cooperation, the
Civil Disobedience nor the Quit India movements were successful in
bringing to an immediate end the British rule in India. But each of these
movements irretrievably altered the equations of the exploiter and the
exploited. That is the mark of a great movement. That is what distin
guishes a satyagraha from any other ordinary movement.
Gandhiji was also heart broken by each of these 'failures', he too shed
many a tear. But on each such occasion, he determinedly created new
sites while expanding the scope of the struggle, rather than trying to
take the immediate struggle to its logical and fatal conclusion. And this
is where the worry lies reading your press statements and your face on
the television, it seems that you are thinking of taking the struggle of the
valley to its logical conclusion. Perhaps Gandhiji would have thought
otherwise. The model of'development' that your satyagraha has sought
to oppose has its roots in politics. If the state implements such policies
in a cavalier fashion, it is only because the entire mainstream politics
shares this model. Governments and ruling parties change but the poli
cies don't. In the last instance colossal political follies and vested inter
ests underwrite the established model of development of which SSP is
but an instance. That is why a movement for an alternative model of
People Vs Verdict
59
development must be a part of a movement for an alternative politics.
This is the time when your carefully forged alliance of the victims of
‘development’ in the form of the National Alliance for People's Move
ments needs to be suffused with a new political energy. It is only when
you take this challenge that this satyagraha of the Narmada will be the
creative force of a new yuga-dharma. And who else but you, Medha
behan, will take up this challenge?
Yours,
Yogendra Yadav
[Yogendra Yadav is a psephologist working with CSDS. This letter
was originally written and published in Hindi in Hindustan and Dainik
Bhaskar. Translated into English by the author and Madhulika
Banerjee.]
60
People Vs Verdict
THE NARMADA DECISION
Rajeev Dhavan
The Narmada is not just a river. It is a living heritage that defies compari
son. In and around the Narmada rests a veritable civilisation of cultures,
wedded to the soil with a simplicity that has hitherto brooked no opposi
tion from history. From time to time, modern projects such as dams
have been conceived to displace people and the environment, to drown
composite cultures into oblivion. Legal regimes have been created to
facilitate such annihilation - more often than not with insensitive cruelty.
The people who suffer displacement are usually poor, and - but for their
own courageous struggles - easily forgotten. Once neglected, they suf
fer continuous and multiple displacement.
India inherited the imperial regime of land acquisition whereby Govern
ments declared a ‘public purpose' to acquire land and offered compen
sation only to land owners at market rates, with a solatium of 15, now 30
per cent. Over the years, successive Governments have used this impe
rial model of 1894 ruthlessly. Confronted with these imperial and post
imperial acquisitions, judges have tended to submissively accept what
the Government has declared to be a public purpose in the public inter
est; and, interfered within narrow limits on the quantum of compensa
tion. This is the colonial doctrine of eminent domain which remains a
mindset with the judges of 21 st century India, even when dealing with
projects that subsume social and natural topography.
Neither the Constitution nor humanitarian law applicable to India permits
this imperial model of 'land acquisition' or its executive variations to
apply to huge projects which are designed to irreversibly mal-affect the
environment, displace lakhs of people and then offer them Government
largesse instead of a genuine rehabilitation. Even the World Bank which
funds many such projects has underlined the need for (i) a viable public
purpose in the public interest, (ii) insistence on strict scrutiny of the
environment impact and (iii) total social justice to oustees. These three
are now regarded as essential condition precedents to every large project
even if repeatedly ignored by the Indian Government.
The crucial issue in the Narmada case was whether the Union and State
Governments can be allowed to get away with violating these universal
and human rights considerations which are enshrined in, and by, law?
The Supreme Court has virtually decided that in dealing with such
People Vs Verdict
61
projects, the Governments concerned can be a law unto themselves
and seriously violate the legal conditions circumscribing such projects.
First, the issue of‘public policy' and the ‘public interest'. After the com
posite substantive due process created by the Supreme Court in the
Bank Nationalisation Case (1978 and the Maneka Gandhi Case (1978),
it has a constitutional duty to examine whether any infringement of fun
damental rights is a reasonable restriction in the public interest. There
is no dispute that the rights to environment and to re-settlement are
fundamental rights. Equally, the public interest demands that far-reach
ing policies which irreversibly alter not just the lives of people but nature
and history itself must be properly arrived at. it may well be that the
original decision on Narmada was taken in 1949; and, there was an
Inter- State Water Award on this in 1979. But, that cannot foreclose a
constitutional examination of the issue. The period 1950-2000 has wit
nessed the most fantastic technological reassessments of all time. In
1980, a Government department may have been committed to buy a
million typewriters. In 2000 AD, such a commitment would be laugh
able. In 1993, the World Bank's Morse Report indicated that the pro
posed Narmada dam was not in the public interest. Mr. Justice Kirpal's
judgment that the Government of India did not accept the World Bank
Report can hardly conclude the issue. The question is why and on what
basis? Peremptory rejections cannot obviate examinations in the public
interest. The foundation of Mr. Justice Kirpal's judgment is the Tribunal
Award of 1979 between various State Governments is binding. But, against
whom? How can a Water Tribunal prevent the Supreme Court from ex
amining a public policy issue which affects millions in the public inter
est? While courts do not normally interfere in policy matters, in cases of
such magnitude, the Chief Justice, Mr. A. S. Anand and Mr. Justice
Kirpal (who form the majority in the Narmada case) have never hesitated
to force policy changes in the Vehicular Pollution and Forest cases even
at the cost of ensuing social and economic havoc. The Supreme Court
has a duty to invoke the doctrine of proportionality against unreasonable
Government decisions which are against the public interest. Mr. Justice
Kirpal's judgment that the Water Tribunal's judgment is 1979 prevents
the Supreme Court from examining the public interest in a fundamental
rights case abdicates the Court’s jurisdiction to a lesser fora.
Second, is the issue of environment. Mr. Justice Bharucha is surely
right in his dissent when he refers to Article 21 and the irreversibility of
environmental damage. He rightly points out that the Supreme Court As
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not place its seal of approval on so vast an undertaking without first
assuring that those best fitted to do so have had the opportunity of
gathering all the data on the environmental impact of the Project and of
assessing it". All the relevant data has never been available. In 1986-87
and later, there was a mighty conflict between the Ministry of Environ
ment and Forests (MOEF) and that of Water Resources on environmen
tal clearance. In recent years, out of some 330-odd projects some 70 to
90 percent have escaped environmental scrutiny. If the right to environ
ment requires strict constitutional scrutiny, why was such scrutiny aban
doned by the Court9 it is difficult to accept Mr. Justice Kirpal casual
distinguishing of the Tennessee Valley Tellico Dam Project and the
Wallisville Project cases where American courts stopped the projects on
environment grounds even though considerable costs were incurred. If the
Supreme Court is serious about the environment, it cannot abandon the
jurisprudence it has built over the years just for the Narmada case.
The third issue is that of oustees. There is little dispute that the rehabili
tation process is grossly incomplete. Some 41,000 families are affected.
It is splitting hairs to distinguish between ‘submergence' and 'canal' af
fected people or non- cultivators. Government surveys do not include amongst
beneficiaries all those whose right to livelihood is affected. The Chief
Minister of Madhya Pradesh openly states he cannot find land for land.
In the meanwhile, what are the poor to do? Would such a policy have
been acceptable if the affected area were Lutyens' Delhi? Or any urban
area where the rich and well-off were suddenly pushed into a nomadic
existence? The policy has to be clear: no risk of ouster until rehabilita
tion. The Court seems to assume that it is constitutionally permissible
for a few lakh people to live in limbo for sometime in the name of progress
and inter-generational equity. In 1970, the Supreme Court punished E.M.S.
Namboodripad because he claimed the courts were class biased. Here
is reason to doubt whether that judgment was correct.
The Narmada cases confronted the Supreme Court with the issue of
constitutional courage. After agriculture, building is always the second
largest economic activity in India. Contractors and middlemen are the
driving force of large projects. The Supreme Court should review its re
fusal to strictly examine the public interest, social justice and environ
ment issues. Not to do so would shortchange the Court's own enviable
public interest and social justice jurisprudence.
[Rajeev Dhavan is a senior advocate in the Supreme Court of India]
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63
UNQUIET FLOWS THE NARMADA
Ramachandra Guha
In the demonology of market fundamentalism the slim, slight figure of
Medha Patkar looms large. It is she who seeks to stop the dams that
will power the modern mills, and it is she who opposes the highways
that will carry goods and commodities from the producer to the con
sumer. To the liberalizing Indian, Patkar is a backward-looking reaction
ary who enjoys an uncomfortably high level of support. Every summer,
when the mercury touches 48 degrees Celsius in northern India and the
air-conditioners break down, prominent columnists in New Delhi blame
it all on Medha Patkar.
Back in the old days, when they opposed commercial forestry and nuclear
power plants, environmentalists used to be spoken of as “CIA agents",
sent by or at least paid by the West to keep India underdeveloped.
Since 1991, however, that line of argument has become anachronistic.
The bureaucratsand politicians, once paranoid about foreign investment,
have rolled out the red carpet. The greens, and the greens alone, stand
in the way of the new factories and the dams and thermal plants that
must power them.
Hence the regularly vicious attacks on the environmentalists and their
most famous leader. Were a visiting foreigner only to read columnists
like Tavleen Singh of India Today, he might conclude that Medha Patkar
is the single most important impediment to the successful Singaporeization of Indian society. Would he believe that this Enemy of Progress,
this Anti-National Element, has no job, no bank balance, and no party?
What precisely do Patkar and her movement stand for? They stand, first
of all, forthe rights of the people whose lands and homes are acquired
by new projects. Though this is not commonly known, forced displace
ment is a subject on which the apostle of truth had himself spoken. In
1942, at the height of World War II, Mohandas Karamchand Gandhi had
been alerted by his follower Mira Behn to the moving out of villages in
Orissa to make way for a landing strip. As he put it to the journalist,
Louis Fischer: “When the British come and say, we must remove these
peasants to build an aerodrome here, and the peasants must go today,
I say, 'Why did you not think of that yesterday and give the poor people
time to go, and why don’t you find places for them to go?' ”
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As in many other areas, the government of free India followed and fur
thered colonial precedent. Steel mills, universities, roads, barracks, above
all, dams: to allow for the building of these artefacts of modernity count
less villagers were made to leave their homes. In 1988, Walter Fernandes
and his colleagues at the Indian Social Institute estimated that 18 mil
lion people had been forcibly displaced by officially sponsored projects
in independent India. Scholars now claim that this was an underesti
mate, and that the true figure is closer to 30 million.
The statistics shall be disputed, but three facts are clear. First, that the
displaced peasants were given no time to go, and no places to go either.
Second, that they were paid monetary compensation that was a fraction
of the cost of the lands they were dispossessed of. (No allowance was
made, of course, for the emotional costs of relocation, for the loss of
landscape and cultural memory.) Third, that an overwhelming proportion
of those displaced were of adivasi or low caste origin.
This last truth is the most telling. It appears that the First Command
ment of planned economic development is: The Rich Shall not be Dis
placed. What, for the sake of argument, would happen if the home of the
present writer came in the way of a new highway? I would first contact
my old college friends in the administration, suggesting discreetly that
the road be re-routed. Were that to fail, I would ask a lawyer-friend who
belongs to the same club to file an anticipatory petition in the court.
With luck, the judge might also be a club member. In any case, one
could skillfully delay proceedings for years, even decades (that is how
the Calcutta Metro was stalled by middle-class home owners). If the
road came up anyway, I would depart my home only after extracting a
proper monetary compensation for it.
To displace the rich is costly, time-consuming and (most important)
against the canons of class solidarity. Far easier to build factories and
dams at the expense of the unlettered peasant. It was this game that
the Narmada Bachao Andolan sought to bring a halt to. In this respect,
the struggle led by Medha Patkar against the Sardar Sarovar project is
principally a struggle for self-respect and social justice. It asks the In
dian dam-builders the question Gandhi asked the British makers of aero
dromes: where will these people go?
The defense of elementary human rights was the basic issue. A subsid
iary question, however, related to environmental sustainability. Would
People Vs Verdict
65
not the building of large dams lead to a serious loss of forests and
biodiversity? Would not a series of small dams, run-of-the-river schemes,
be a less damaging alternative?
There were also questions of empirical economics. In the past, dam
builders have tended to exaggerate the benefits and underestimate the
costs. But materials have been more expensive than anticipated. Siltation rates have been higher than predicted, thus reducing the life of the
dam. The power generated by past projects has been erratic and unreli
able. The benefits of flood control have stayed “on paper".
To these ecological and economic arguments some would add an ethi
cal one. The peasants threatened with displacement have cultivated a
deep relationship with the land, as manifest in their art, their music, their
shrines, their myths, legends and poetry. To drown this all out in the
name of progress or development is to commit a crime against aes
thetic beauty and collective cultural memory. To this planned act of vio
lent forgetting the anthropologists have given a name: "Ethnocide".
The case against large dams has recently received a setback in the
form of the Supreme Court judgment allowing the construction of the
Sardar Sarovar project to its full, projected height of 140 metres. The
dam has reached an elevation of 80 metres already, and perhaps the
court thought it unwise to abandon the project after so many thousand
crores had been sunk into it.
The Narmada Bachao Andolan appears to have lost the battle, but it
might yet win the war. The injustice of forced displacement is now widely
acknowledged. The search for sustainable and cost-effective systems
of energy generation and water management is continuing. Meanwhile,
the government must declare a moratorium on large dams, pending a
thorough inquiry into their past performance by a team of acknowledged
experts.
[Ramachandra Guha is a writer, historian and environmental journalist]
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A MESSAGE FOR THE JUDGES
Kalpana Sharma
Perhaps our Supreme Court Justices should have waited a couple of
weeks before passing their final orders in the Narmada case. For if they
had, they would have been privy to the important perspectives contained
in the report of the World Commission on Dams, released in London on
November 16 The WCD report might not be the last word on dams. But
it is important for a number of reasons. It is the first comprehensive
survey of large dams. It presents a balance-sheet of the benefits and
adverse impacts of these capital-intensive infrastructure projects. And it
sets out criteria that could govern future decisions on large dams.
Even if one were to dismiss some of the suggestions of the WCD as
being unworkable within the political context that governs so many de
velopmental decisions in many countries, including India, as a docu
ment that assesses the record of large dams it is invaluable. This is
particularly so because of the composition of the WCD. This is not a
bunch of anti-dam NGOs who are picking faults with existing dams and
those still under construction. This is a Commission made up of people
in Government, such as the Chair, Prof. Kader Asmal, South Africa's
Education Minister, Mr. Goran Lindahl, President and CEO of Asea Brown
Boveri (ABB), one of the largest private sector infrastructure developers,
and Mr. Jan Veltrop, a former president of the pro-large dam body, the
International Commission on Large Dams (ICOLD). The Commission
also had its share of critics of large dams, pre-eminently Ms. Medha
Patkar of the Narmada Bachao Andolan but also Ms. Joji Corino repre
senting the issues concerning indigenous peoples and Ms. Deborah
Moore, until recently senior scientist with the U.S.- based NGO, Envi
ronment Defense Fund (EDF).
In balance, what emerges from the report is not a happy picture. The
45,000 large dams worldwide have displaced 40 million to 80 million
people, affected 60 per cent of all rivers, have fallen short of their irriga
tion targets, have failed to recover costs, have had extensive negative
impacts on rivers, watersheds and aquatic systems, many of them irre
versible. Further, mitigation measures, where they have been taken, have
usually proved ineffective. In other words, even if one argues that large
dams are necessary and that the damage that they do can be minimised
by taking adequate measures, the record suggests that this is not al-
Pcople Vs Verdict
67
ways possible. At the same time, large dams have contributed to the
spread of irrigation, generated hydro power, have been useful for flood
management and have been very useful for urban water supply. The
question that always arises then is: is the cost worth the ostensible
benefits?
The WCD has argued that a cost-benefit calculation is insufficient in the
context of large dams because of the nature of the costs. It suggests
instead a rights and risks approach that accommodates the rights of
those who will be adversely affected and takes into account the risks to
the environment and to future generations. Such an approach necessar
ily requires an open and transparent decision-making system, a pro
cess that is based on full consultation with the affected groups.
This, of course, does not mean that countries should not build large
capital-intensive infrastructure such as large dams. What it does mean
is that the process should allow the voiceless to have a voice, that there
should be fairness and justice in the way the affected communities are
treated, and that if giving them the best possible compensation is not
possible, the project is reviewed. In other words, the cost to the people
who get no benefits from projects should not be so high that a project
cannot pay it.
If one were to apply these criteria to existing projects, including those
such as the Sardar Sarovar which are still under construction, they would
fail miserably. There is too much evidence to suggest that in the initial
design of the project, these human and environmental costs were not
accommodated. And today, it is more than evident that the project can
not mitigate them in its present design. The tragedy is that despite
innumerable committees - and Madhya Pradesh's recorded admission
that it has no land to accommodate all those who will be affected by the
SSP - there has been no serious attempt to rework the project to minimise
the damage. Instead, the Supreme Court has virtually closed the door
on any further discussion.
In fact, a section in the WCD report makes a point of acknowledging
that “dams in the pipeline" constitute a special case. It suggests that
evidence from its survey, which covered almost 1,000 large dams world
wide, demonstrates that “it is never too late to improve outcomes. On
this basis, the Commission proposes an open and participatory review
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People Vs Verdict
of ongoing and planned projects to ascertain the extent to which project
formulation can be adapted to accommodate the principles outlined in
this report". The SSP authorities should take note of this.
Further, it suggests to Governments that they use the opportunity of
reviewing such dams that are already underway to assess the plans
they have for water and energy options. "This can serve to launch a
process of internal review and modification of existing policies and legis
lation, and reinforcement of appropriate capacity that will facilitate imple
mentation of the Commission's recommendations in the future.'ls that
too tall an order? Considering the enormous cost over- runs of projects
such as the SSP because there was resistance to any suggestion that
environmental and social costs had not been covered, and given that
now few projects can hope to get international finance without account
ing for these costs, it makes eminent sense to stop and think before
proceeding further.
Unfortunately, neither common sense nor open-ness and transparency
are the hallmarks of Governments in this country, at the Centre or in the
States. Large dams involve a $ 2 trillion investment worldwide. Everyday,
somewhere in the world, a new dam is being commissioned. Most of
these are in developing countries. Yet despite conventions on the envi
ronment, on human rights, and the international movement for the rights
of people affected by large infrastructure projects, most Governments
proceed with an outdated set of values and criteria that try and sneak
past any need to listen to the voices of those who will be affected. The
result, repeatedly, has been resistance from people, and delay in an
already costly project. This alone should make Governments such as
ours consider alternative approaches. It would be cost- effective, apart
from being the only decent and humane way of conducting business.
The real stumbling block, however, is not just absence of logic and a
refusal to face the evidence, but the benefits that accrue to a few from
such large projects. As the WCD aptly points out in its report, “As a
development choice, the selection of large dams often served as a focal
point for the interests and aspirations of politicians, centralised Govern
ment agencies, international aid donors and the dam-building industry
and did not provide a comprehensive evaluation of available alternatives".
This statement comes from people who know how the system works.
People Vs Verdict
69
So, to come back to the beginning, would our Supreme Court judges
have paused if they had read the WCD report before they ruled in the
Narmada case? The report makes a compelling case for a different ap
proach to decision-making about large dams, and about developmental
infrastructure as a whole. Its arguments are reasonable, placed within
the context of internationally-endorsed environmental and human rights
conventions. It argues not that no dams should be built, but that such a
step should only be taken if the criteria that include social and environ
mental costs are fully met. If we accept even some of the criteria set out
in the report, the SSP would need to be drastically modified even if it
cannot be abandoned altogether. At the very least, our apex court could
have thrown the project back on the drawing board. However, even if it
thinks the case is over, in fact it remains wide open. The controversy
over large dams will not die that easily.
[Kalpana Sharma is a seniorjournalist with The Hindu]
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People Vs Verdict
COURT MUST ADHERE TO THE CONSTITUTION
The majority verdict of the Supreme Court about the Sardar Sarovar
dam is beyond the rule of law and only reinforces the government’s
oppressive ways against the people.
It has been observed that the judiciary, at times, wearing the cloak of
priesthood, suffocates the human rights of the poor. Corruption and
Capital are given legitimacy instead of adhering to the rule of law. But,
we have different expectations from Indian Judiciary. The Constitution
of India, created basically for the protection of the rights of the poor and
depressed, inspired by the values that Mahatma Gandhi cherished and
drafted with the egalitarian passion by Dr. Babasaheb Ambedkar, lies
sacrificed at the altar of the corporate interests and their crafty plans.
Our constitution makers envisaged the equality, democracy and the pro
tection of the fundamental rights of the depressed classes, as the ut
most values, which the judges should have heeded.
The dissenting judgment by Jst. Barucha is a face-saver for Indian Judi
ciary and it does vindicate the issues raised in the court. He has asked
for stopping the dam and having a new environmental clearance for the
dam. It is unfortunate that his judgment is considered as minority judg
ment The majority - minority issue should not have been allowed to be
used against the rights of the have-nots in India.
The judgment against the people in the Narmada Valley heralds a new
battle ahead for the poor and the dispossessed of this country. When on
sees the death procession of the human rights of the marginalised people,
it is imperative that the President of India must intervene as his Constitu
tional duty. It is a time that we strengthen another Freedom struggle for
a sane, just, non - violent and sustainable society.
From my sick bed, remembering the pristine flow of Narmada and the
warmth of life around it, I still hope that the judiciary recognises its com
mitment to the values in the Constitution as given by Ambedkar and
Gandhi. Do not sacrifice the life of the last person of India for the sake
of corporate powers. The protectors should not become the connivers
of the crime against the depressed classes.
- Baba Amte
After six full years of the case-proceedings, and five years of
stay on the Sardar Sarovar Project, the Supreme Court of India has
finally given its verdict in the comprehensive case filed by Narmada
Bachao Andolan Vs the Concerned Governments (1994), challeng
ing the social justifiability, environmental sustainability and mirage
of benefits, on October 18 2000.
The Order of Supreme Court is in two parts. The majority
judgment, by Justice Kirpal and Justice Anand (Chief Justice) is the
operative judgment. The minority judgment was given by Justice
Bharucha.
“The court has missed an important moment in its evolution
ary history when it could have extended the reach of the justice
system. It could have paved the way to establishing necessary
structures and mechanisms through which public opinion may be
sought and taken into cognisance at the planning stage of large
infrastructure projects rather than have protest movements gather
momentum over the years and stall projects. But led by its particular
vision of development, it has now established the ground for confrontationist actions which can only delay, not enhance, development.”
[ EPW Editorial October 28, 2000]
This is a collection of analytical articles on the judgment,
written by people from different walks of lives.
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