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SATURDAY 2 DECEMBER 2000
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LEGAL AND OTHER AFFAIRS - Goolam E. Vahanvati
Damn not the dam


The judgment of the Supreme Court in the case of Narmada Bachao Andolan v. The Union of India and others was delivered on Oct.18, 2000.
The immediate reaction to the majority judgment was hysterical, frenetic and high pitched. Since the judgment is now available it would be well worth examining it and the issues involved from a dispassionate and non-emotional point of view.

The majority judgment is written by Justice B.N. Kirpal, a judge whose contribution to and concern for environmental issues is reflected in several judgments and orders. The learned judges were disposing off a writ petition filed by the Narmada Bachao Andolan .

The Narmada river originates in Madhya Pradesh. It flows through Gujarat into the Gulf of Cambay. Stretches of the river form the boundaries between the states of Madhya Pradesh, Maharashtra and Gujarat. The judgment traces the origin and the meandering flow of the Narmada saga since 1946.

Some milestones need to be noticed:

The Narmada Water Dispute Tribunal gave its award as far back as on Aug.16, 1978. This award dealt with determination of the height, geological and seismological aspects, relief and rehabilitation and allocation of Narmada waters. The award also directed the formation of the Narmada Control Authority.

In May 1985, the World Bank sanctioned funding for the Narmada Dam and Power Project, and the Water Delivery & Drainage Project. Credit was made available from Jan.8, 1986

On June 24, 1987 the Union ministry of environment and forest accorded clearance, subject to certain conditions.

The construction of the dam commenced in 1987.

The Narmada Bachao Andolan had been spearheading the campaign against the construction of the Sardar Sarovar Dam. It filed the present petition in the Supreme Court in April 1994.

There were several orders passed during the pendency of the petition calling for reports on various ecological and rehabilitation aspects.

The petition could well have been dismissed on two preliminary grounds: delay and maintainability. After a delay of seven years the petition challenged the project which had commenced in 1987.

Besides this, the tribunal award held the field since 1978. It is settled law that the jurisdiction to set aside an award (which had already become binding on the states) is severely limited. Notwithstanding this, the majority judgment has gone into all the issues raised on merits.

These issues on merits related to:

Displacement of tribals and alleged violation of Article 21 (the Right to Life).

Environmental issues, including, environmental clearance.

Rehabilitation.

Independent monitoring and evaluation.

Each of these issues have been considered in depth and with painstaking care. The majority judgment concludes that the project is eminently in national and public interest . A country which is constantly prone to drought has to resort to effective means of water storage.

The judges have concluded that the dam will play a vital role in “providing irrigation for food security, domestic and industrial water supply, hydro-electric power and keeping flood waters back.” It will also have “a positive impact on the preservation of the ecology” and “a positive contribution for preservation of environment.”

The majority judgment is well researched and reasoned. The dissenting judgment disagrees on the issue regarding environment clearance. Justice Bharucha was of the view that no construction work should continue unless the Committee of Experts appointed under a notification dated Jan. 27, 1994 had assessed the environmental impact.

Two views on this may well be possible but for the anti-dam movement to launch into a shrill denunciation of the judiciary merely because they do not like the result, only reflects their lack of maturity and their inability to concede to another point of view.

Some people apparently will respect your right to have a point of view only if you agree with them. What a pity!


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