EPW    Perspectives August 11, 2001

Interpreting Narmada Judgment

Mathew John

On October 18, 2000, the Supreme Court delivered its verdict in the Narmada Bachao Andolan case,1 bringing to an uneasy close, one of the most important judicial journeys in recent times. Confronting bitterly contested imaginations and constructions of the Indian nation, the court was forced to respond, however unsuccessfully, to the sustained interrogation of the idea of ‘national development’ from those who have long been the outcasts or grudgingly tolerated margins of the nation. It is into this socio-legal conversation that this essay seeks to make its intervention, attempting to uncover the meanings that this case might have for public-interest legal practices in India. Though not a detailed reading of the judgment itself,2 the essay discusses the case through its genealogies and the modes by which it is translated into law. Through this mode of reading the judgment, the essay tries to understand the capacities and proclivities of the Indian judiciary to respond to the demands being made by social movements for more representative and participative modes of constructing the process of development and governance.

All judicial pronouncements operate in a social field. The process of interpreting a judicial decision is an exercise that cannot be undertaken solely through judicial canons of interpretation. It is, therefore, crucial to attempt at least a cursory look at the history of the path that has led up to decision by the court, to be able to position the judgment in the sociological matrix within which it operates. Very broadly, the paths that this case has taken trace back to the emergence of the Narmada Bachao Andolan (NBA), and its organised opposition to one of India’s largest multi-purpose river valley projects, the Naramada Valley Project (NVP). Broadly the NVP is a series of dams sought to be built on the Narmada that seeks to abrogate and fundamentally reorder the riparian rights of the many sets of people who currently use the waters of the Narmada, to provide water and electricity to amorphous sets of other peoples.3 Though dams have been important instruments in the construction of the modern Indian nation, they have often been built ignoring popular demands for equity, efficiency, participatory decision-making, sustainability and accountability.4 These have been problems that have dogged the various projects within the NVP as well. Therefore, the formation of the NBA was crucially linked to attempts aimed at addressing these undemocratic modes employed in the planning and execution of projects within the NVP.

Until recently, most of the opposition to the NVP was focused on the Sardar Sarovar Project (SSP), which forms the subject of the Narmada case. The history of opposition to the SSP dates back to 1978, soon after the Narmada Water Disputes Tribunal (NWDT)5 gave its award. At that point, Arjun Singh, a leading figure in the Congress Party, organised the people in the plains of Nimar to form the Nimar Bachao Andolan. The Congress apparatus was interested in the issue only to further its electoral fortunes. As soon as it had won the election, the party’s support to the issue waned, and soon the movement collapsed. The second attempt to organise opposition to the dam began around 1985, when Medha Patkar, a social scientist from Mumbai, started working in the submergence sone of the SSP in Maharashtra, leading to the eventual formation of the Narmada Bachao Andolan. According to its own narrative, the NBA did not initially challenge the validity of the SSP itself, but began with the intention of working towards adequate rehabilitation of those slated to be displaced by the project. However, with increasing involvement with the issue, the NBA began to develop far more nuanced positions on the dam. These have ranged from a biting critique of the non-participative modes of development adopted by the post-independent state, the limited capacities of the state to rehabilitate all project-affected persons, as well the large numbers of persons whose livelihoods would be substantially affected by the project but were not considered as project-affected persons under the NWDT award and therefore not entitled to rehabilitation as stipulated under the award. Rigorous technical studies of the project made it apparent to the NBA that many of the claims that the project was making on water irrigation and power were also seriously flawed.6 Thus, from around 1988, the NBA decided to change its public position to a total opposition to the dam though, it still held itself open to any meaningful dialogue on alternatives.

Opposition to, and questioning of, the project was aired at all available fora. In addition to mobilisation in the areas affected by the project, the movement also forged creative ties with a wide range of social movements and formations, both within as well as outside India. Concerted action by all these groups, especially those in the US, forced the World Bank, which had agreed to fund the project, to announce a review of its participation. Following the failure of the project authorities to abide by the minimum benchmark conditions stipulated by the report of the bank’s review committee,7 the World Bank finally withdrew from the project in 1992. Mobilisation in Japan forced that country too to suspend the monetary support that was promised for the SSP. It was about at this stage, with the issue in the glare of public scrutiny, with huge local mobilisation against the dam and the refusal of the state to open itself to any meaningful scrutiny, that the NBA brought the case to the Supreme Court, in 1994. The case was filed as a public interest writ petition under Article 32 of the Indian Constitution8 alleging violation of the fundamental rights of the various groups of persons who were to be affected by the dam.

The petition details the NBA’s objections to the project. By demonstrating the non-completion of mandated environmental studies relating to the project and the failure of the governments concerned to meet the stipulations on rehabilitation as mandated by the NWDT, the petition attempted to point to the ongoing illegality that the project represented. It also detailed the stated costs and benefits of the project and questioned, quite persuasively, many of the assumptions on which the project was based. On the strength of this interrogation of the costs and benefits of the project, the NBA pointed to a lack of application of governmental mind and therefore the need for reconsideration of the project taking into account the fresh evidence that it had brought before the court. Based on this petition, the NBA asked the court to order a halt to construction work on the dam and also order a total review of the project to allow for the emergence of the broadest democratic opinion on the project.

In response to these pleadings, in 1995 the Supreme Court stayed the construction of the dam at a height of 80.3 meters until further orders. Both parties then built their case in court through hearings as well as through the filing of numerous affidavits. Much of the debate on the case was framed around the issue of relief and rehabilitation of the persons slated to be affected by the dam. In February 1999, while the case was posted for final hearing, the court passed an interim order allowing for the raising of the height of the dam by an extra 5 meters to 85.3 meters. Finally, after completing hearings on the case, in May 2000, the court delivered its verdict in October, allowing the construction of the dam to a height of 90 meters and thereafter to its full height of 138.6 meters,provided that for every increase in height of 5 meters it would require the clearance of the Naramada Control Authority, the body constituted to look into the issues of compliance with the provisions of the NWDT award. Though hotly contested, this order of the court was broadly based on the assumption that relief and rehabilitation had been and was being carried as required under the NWDT award, that all environmental studies were completed and that all safeguards had been met. The court further refused to go into any other objection raised by the NBA with regard to the project on the grounds that the latter’s petition was guilty of ‘latches’ (that is, the petitioners delayed in bringing the petition before the court) as also its unwillingness to question the sanctity of the NWDT’s award in any manner.

Lineage and Location

The many volumes of affidavits that constitute the Narmada case make for fascinating reading on the manner in which the NBA was forced to tell its story in court. For most of the six years during which the court heard the case, it proceeded on the basis that the legitimacy of the project was beyond question. It was only on the question of relief and rehabilitation that it was willing to hear the representation of the NBA.9 Therefore, in the process of representing its concerns before the court, the NBA was forced to concede the ground on which it constructed its politics as very few of its concerns beyond the issue of relief and rehabilitation were actually allowed expression in court. Using an alibi in the doctrine of the separation of powers, the court successfully evacuates the case of its politics, sidestep issues of entitlement and suffering and then proclaims itself the guardian of rights, but only those rights in connection with the issue of relief and rehabilitation. The case, therefore, never becomes a ground where meaningful debate on the dam can be held.

This evacuation of politics from governance has had a long history in independent India, where the rational developmentalist state speaking the will of the nation through its emissaries, the ‘expert’ and the bureaucrat, could operate almost outside of the pressures and tensions of civil society.10 For the most part the judiciary, relying on the doctrine of the ‘separation of powers’, did not substantially question the consensus that had come to form around this process of state formation and the constitution of state/executive ‘developmental’ agenda. It was only in the early 1980s, with the emergence of the public interest litigation or social action litigation (SAL),11 that the judiciary, responding to an increasingly non-functioning or lawless state, for the first time refused to recombine with the remainder of state power, opening out the judiciary to the partnership of social groups and movements potentially allowing for substantial challenge to the universalising thrust of the developmental state.12 As a public interest petition, it is to this lineage that the Narmada case belongs.

SAL inaugurated new and radical modes of judging, reinterpreting constitutional provisions more liberally, thereby expanding the scope and content of various fundamental rights13 and also by expanding and liberalising the scope of various rules of procedure such as ‘standing’,14 setting into motion a huge movement demanding an increased access to justice. SAL has also been marked by the active role that the court has been assuming in resolving conflict,15 breaking away from the role that courts in common-law countries generally assumed, confined to deciding the issue at hand based on the contending positions of the parties to the dispute and the evidence that they bring to the court. This kind of active participation of the court has been effected through16 (i) Collaborative litigation: Here the court facilitates and brings about cooperation between the parties involved. This kind of litigation generally takes place in cases where there is no dispute over basic facts and there is a clear agreement between the parties that a particular course of action is required;17 (ii) Investigative litigation: Here the Supreme Court appoints a commission or a similar body. The primary functions of these bodies are to aid the court in fashioning an adequate remedy with regard to the issue that is before the court and also to monitor any relief that the court might order.18 Assuming this new persona, the court dealt with cases of all kinds ranging from violation of fundamental rights in custodial institutions like prisons, remand homes, asylums, violence in police custody, violation of fundamental rights by the armed forces, violence against women, violation of fundamental rights of labour such as bonded-labour cases, violation of the fundamental rights of consumers, cases relating to the appointment of judges, cases relating to public accountability, cases relating to the protection of the environment and many others. SAL, a creation of the post-emergency court, was one of independent India’s most spirited interrogations of an increasingly lawless and non-functioning state.19

Though locating Narmada within these histories of radical institutional reshaping is a relatively simple though important move, the rather more difficult task is the attempt to place it within the complex body of decisions that constitute the SAL phenomenon. Though an exercise at mapping SAL is far from complete, there have been some preliminary efforts in the direction, pointing to the impossibility of an encompassing characterisation of SAL.20 It is probably in this uneven terrain of SAL jurisprudence that the search for understanding a decision like the Narmada one can begin. Though it is important to characterise SAL, as it is popularly understood, to be coextensive with the finest traditions of institutional dissent attempting to address crises in governance, it is also important to point to the unevenness of this tradition, which allowed for the production of a decision like Narmada. The task, therefore, is to try and identify some important conditions and processes that have played a significant role in the production and shaping of the Narmada decision.

Narmada is produced as an SAL at the interface of at least three important processes. Firstly, it is created as a product of institutional ambivalence and constraint regarding its exact role as an arbiter of issues of public interest that are brought before it for resolution. Through a specious categorisation of ‘economic issues’ or ‘executive decisions’ that are to be solely dealt with by the executive and none else, the judiciary, in cases involving decisions to be made by the executive government in matters of economic policy like Narmada, refrain from second-guessing executive decisions however absurd or unjust they might appear.21 For example, in the Narmada case, the court has stood by a decision decreed by the tribunal stating that the water available in the Narmada is 28 million acre feet when figures from more reliable studies done subsequently clearly indicate that the water in the Narmada could be much less. The changed figure is likely to change all assumptions on which the project stands, but the court sticks to this principle of non-intervention in matters in the executive realm and refuses to question this absurdity. However, this position of non-intervention is an ambivalent one and stands in contrast with the court’s own intervention and deep involvement in the ‘executive realm’ in many cases,22 with the recent CNG conversion case in Delhi being one in point.

Being pejoratively characterised as activist,23 faced with attempts to tie down the court’s tendencies towards activism through efforts such as the Public Interest (Regulation) Bill, 1996,24 and having to respond to the pulls and pressures of an aggressively globalising India, the judiciary itself has moved towards what Upendra Baxi calls the structural adjustment of SAL jurisprudence.25 This turn has been used to understand a judicial tendency towards measured intervention in issues affecting the civil and political rights of people while practising as far as may be, abstinence, with regard to issues related to economic rights, inventing an alibi in the ‘separation of powers’ doctrine. In effect, this structural adjustment of SAL jurisprudence produces a court that is hamstrung from putting in motion state formative processes that incorporate participation and accountability in the state’s encounter with its people. SAL, therefore, runs the risk, as in Narmada, of being increasingly less capable of questioning executive policy that strays from constitutionally permitted mandates.

Aiding the ambivalences of the structural adjustment of SAL has been the failure of the bar in creatively co-authoring with the court, a jurisprudence capable of addressing and engaging with the challenges of a globalising India. While recognising that power significantly shapes the manner in which law is performed in the Supreme Court, it is the weak interrogation of the doctrine of separation of powers that has allowed the court to abdicate much of its responsibility to those affected by the SSP in the Narmada case. With the court taking cover under the separation of powers, the performance of law loses its importance as a ground from which a significant critique can be launched against the project. The broad failure of the Indian bar to creatively respond to enriching SAL jurisprudence therefore represents the second level at which the Narmada decision is produced.

The third level is the tussle in court to establish competing truth claims with regard to facts that are in contest. To allow for easy access to the courts of higher judicature, SAL jurisprudence was structured by the dilution of many rules of procedure. Among these was also the relaxation that was allowed in presentation of relevant facts through affidavits or sworn statements. In a system where an opaque government skews the credible functioning of information economies, arriving at any approximation of truth in situations involving the violation of the fundamental rights of hundreds of thousands of people, as in the Narmada case, can be an extremely difficult task. Especially when there is no agreement on facts between the contending parties. What generally happens in a typical SAL is the trading of affidavits. Both sides to the dispute make allegations and counter-allegations, through affidavits, undercutting the reliability of what can be placed on affidavit and thereby making it extremely difficult to arrive at some credible and agreeable truth.

Upendra Baxi describes the difficulties involved in the proving facts to the court in an SAL. He describes the processes by which the government frustrates the attempts of lawyers and social activists who have brought a matter to court. “Firstly, state counsels deny on affidavit any or all allegations made by the petitioners. Secondly, they contest if not any more the standing, the bona fides or the degree of reliable information of the social activist who comes to court. Often attributing wildest ulterior motives to them. Thirdly, they decry the sources on which the SAL petitioners rely – mostly media and social science investigation reports. Fourthly, they raise all kinds of claims to prevent passing over of vital documents relevant to the determination of the violation of fundamental rights. Fifthly, even when information is disclosed there is always the possibility of the device of impugning their evidentiary value. When despite all of this if the state is likely to lose the proceedings in favour of the SAL petitioners, it proceeds to give concessions and undertakings, thereby avoiding a decision on merits”.26 Though much less likely, it is also possible that evidence based on affidavits that are put to minimal scrutiny can be manipulated by non-state petitioners as well, seriously affecting the credibility of this mode of arriving at truths.

The problem of proof plagues the entire proceedings in the Narmada case. With relief and rehabilitation having been the main axis along which the project was contested in court, it might be a useful exercise to look into the manner in which the problem of proof plays itself out with regard to this issue. For most part of the case, the NBA was cornered into trying to prove that relief and rehabilitation had/has not been in accordance with the NWDT award. This process took place with both parties filing affidavit after affidavit either stating that relief has taken place or that it has not. While it was important to try and show that relief has or has not taken place according to the award, it was also a process fraught with enormous difficulties when placed in the current context within which truth is generated. Proof in court regarding whether or not relief and rehabilitation has taken place is based on competing truth claims of the government and the NBA. Rehabilitation in a project of this nature is so large that to talk in terms of a complete picture on rehabilitation is extremely difficult for both the government as well as for the NBA. If at all any one can make an authoritative comprehensive statement it is probably the government, officially accepted as being the final purveyor of information. However, the absence of the government drawing up a master plan for relief and rehabilitation as required by the NWDT award,27 combined with the opaque manner in which it produces information (facts), allows for very little credibility in the information that it presents. Nevertheless, if the NBA was to disprove a claim made by the government it had no option but to reference its claim to that of the government and point to the incorrectness of this or that claim that the government was making. Therefore, much of what the NBA was doomed to doing was partially disputing the truth claims of the government. The NBA could never, within this framework, make a descriptive statement on the issue with an overall picture on relief and rehabilitation that it was comfortable with and unless that could happen, the NBA was, as it turned out to be, an uncomfortable participant in the process of proving.

The instability in the process of proving very clearly spills into the final judgment that the court delivered. A substantial portion of the majority judgment, which was devoted to the question of relief and rehabilitation, addresses none of the key questions that the issue throws up. The relief and rehabilitation question required that at least two questions be authoritatively answered before the project could be allowed to continue: (1) Was a master plan for the relief and rehabilitation exercise, taking into account all persons who would be affected by the fully completed project, prepared by the concerned authority?28 (2) Were all persons who were to be affected up to the height of 90 meters rehabilitated?29 Preparing a master plan was crucial as it was only on the basis of this that a credible exercise in proving the implementation or non-implementation of relief and rehabilitation could take place. Once the court decided that preparation of a master plan was not necessary, every subsequent statement that any party to the case made, including the court, was free from being referenced or held to a credible standard. The freeing of the court from the master plan allowed the court a licence to choose any fact from the huge mass of affidavits placed before it. Free from a standard, the court came to the unverified conclusion that the relief and rehabilitation was proceeding according the NWDT award. Thus the case, constructed largely by unverified affidavits, results in the production of a court unable to deal with the totally incommensurable positions that the contending parties bring to the dispute.

Conclusion

This essay has broadly tried to locate the Narmada case within the proud though troubled lineages of SAL jurisprudence. As a product of judicial wavering in the face of an aggressively globalising India, it is a judgment that is undoubtedly a script of judicial failing. The judgment points to the failure of the entire SAL movement to institutionalise a state formation that would allow for far more coherent modes to determine the instances in which the judiciary would intervene in cases that involve the violation of fundamental rights. However, the judgment also signals the failure of the other legal communities in India, most notably the Indian bar, to evolve, shape and co-author innovative partnerships capable of addressing the crises faced by SAL jurisprudence. It is probably in these failures that legal communities in India can begin the search for partnerships that can push towards fashioning state formation and the rule of law that are grounded in democracy and accountability.

Notes

 1 (2000) 10 SCC664.

 2  For comments on the details of the judgment see Ramaswamy Iyer, ‘A Judgment of Grave Import’; Economic and Political Weekly, Vol 35, No 45, 2000, pp 3913-16; L C Jain, Dams vs Drinking Water: Exploring the Narmada Judgment, Parisar, 2001; Prashant Bushan, ‘A Damning Judgment’, (e-mail dispatch by the Narmada Bachao Andolan (NBA) October, 2000); ‘Displacement, Submergence and Rehabilitation in Sardar Sarovar Project: Ground Reality Indicating Utter Injustice’, (e-mail dispatch by the NBA, October 2000).

 3 For detailed studies on the damming of the Narmada as also the histories of multi-purpose projects in India, see Jean Dreze (ed), The Dam and the Nation, Oxford University Press, 1998; Amita Baviskar, In the Belly of the River: Tribal Conflict Over Development in the Narmada Valley, Oxford University Press, 1998, Rahul N Ram, Muddy Waters: A Critical Assessment of the Benefits of the Sardar Sarovar Project, Kalpavriksh, 1993, Arundhati Roy, The Greater Common Good, Inktree, 1999.

 4 ‘Dams and Development, A New Framework for Decision-Making’ The report of the World Commission on Dams, Earthscan Publishers, 2000.

 5 A body that was set up under Section 4 of the Inter-state Water Disputes Act, 1956 having the power to adjudicate inter-state river disputes and to allocate to different states their shares in the waters of the river under contest.

 6 Rahul Ram, Muddy Waters: A Critical Assessment of the Benefits of the Sardar Sarovar Project, Kalpavriksh, 1993.

 7 Bradford Morse and Thomas Berger, Sardar Sarovar: The Report of the Independent Review, Resource Futures International, 1992.

 8 Writ Petition No 319 (Civil) of 1994.

 9 A position clearly spelt out in the majority decision of Kirpal J, (2000) 10 SCC664.

10 See Partha Chaterjee, ‘The Nation and its Fragments: Colonial and Postcolonial Histories’ in The Partha Chaterjee Omnibus, Oxford University Press, 1999, pp 200-219.

11 Upendra Baxi prefers to call this important legal movement ‘Social Action Litigation’ (SAL), pointing to its specific histories in India, which seemed to have allowed for an unprecedented cooperation between the court and people’s organisations working with marginalised peoples across India. He saw in social action litigation a mode of doing law “located at the centres of governance and clogging as it were some of the arteries of power.” Though SAL today has come to symbolise a phenomenon that addresses the concerns of more than just the poor in India, it is important to recognise the specific histories that have constituted SAL in India as divergent from public interest litigation as it developed in the US. Therefore the essay chooses to use the terminology SAL and not PIL.

12 Though the emergence of judicial governance can be traced back to the Keshavananda Bharathi and I C Golaknath cases, it was not until the SAL phenomenon that the court aggressively asserted its powers of governance as a curb against executive despotism.

13 For example, in Maneka Gandhi vs UOI AIR 1978 SC 597, the court effectively rewrote the Constitution including substantial due process into the content of Art 21 of the Constitution contrary to the intentions of the framers of the Constitution.

14 For example, in Hussainara Khatoon vs State of Bihar AIR 1979 SC 1360; Olga Tellis vs Bombay Municipal Corporation AIR 1986 SC 180.

15 For example, in Bandhua Mukthi Morcha vs UOI 1984 SC 802.

16 These conceptual categories are taken from Clark D Cunningham’s, ‘Public Interest Litigation in the Indian Supreme Court: A Study in the Light of the American Experience’ in Jagga Kapur (ed), Supreme Court on Public Interest Litigation Vol I, LIPS Publication, 1999, pp A74-76.

17 For example, Sheela Barse vs State of Maharashtra AIR1983 SC 378.

18 For example, M C Mehta vs UOI AIR 1987 SC 965; Bandhua Mukthi Morcha vs UOI AIR 1984 SC 802.

19  Though yet a footnote in the absence of a more engaged analysis, the optimism with SAL that this paragraph and much of this essay displays is not without a sense of unease. For instance, the Olga Tellis case, which an entire generation of law students have grown to revere as a fountainhead of rights jurisprudence, did not quite live up to the eloquence of the decision in its order. In other decisions the court has not been able to effectively enforce its strictures. Nevertheless, the SAL phenomenon has been enormously important at the level of generating symbolic capital crucial to the self-definition of the court as an institution.

20 U Baxi, ‘The Avtars of Indian Judicial Activism: Explorations in Geographies of [In]justice’ in S K Verma and Kusum (eds), Fifty Years of the Supreme Court of India: Its Grasp and its Reach, Oxford University Press, 2000, pp 156-209.

21 Besides the Narmada case, the court has taken similar positions in cases like Tehri Bandh Virodhi Sangarsh Samiti vs The State of UP 1990(2) SCALE 1003, The Dahanu Taluka Environmental Protection Group vs Bombay Suburban Electricity Supply Corporation 1991(1) SCALE 472, The Goa Foundation vs The Konkan Railway Corporation, AIR 1992 Bom 471.

22 For example, the court position in Rural Litigation and Entitlement Kendra and others vs State of UP and others, AIR 1988 SC 2187, Tarun Bharat Sangh Alwar vs Union of India and others, AIR 1992, SC 514, etc.

23 That is, characterised as potentially threatening of constitutional governance. See Upendra Baxi, ‘Judicial Activism: Usurpation Or Re-democratisation’ in Jagga Kapur (ed), Supreme Court on Public Interest Litigation Vol I, LIPS Publication, 1999, pp A 131-44.

24 Section 3 of the bill clearly lays down that a citizen may file a PIL only if he has locus in the case to do so, diluting the court’s own radical reading of the rule of ‘standing’ or ‘locus standi’, which was an important procedural innovation that allowed for the emergence of the SAL phenomenon.

25 Upendra Baxi, ‘The Structural Adjustment of Judicial Activism’ in Jagga Kapur (ed), Supreme Court on Public Interest Litigation Vol I, LIPS Publication, 1999, pp A-A145-A – A-145-X.

26 Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigaton in the Indian Supreme Court’ in Jagga Kapur (ed), Supreme Court on Public Interest Litigation Vol I, LIPS Publication, 1999, pp A91-114.

27 Though the words ‘master plan’ are not used in the NWDT award, a reading of Clause XI (IV)(2)(i) and (iii) indicates that the NWDT award contemplates a strongly planned relief and rehabilitation effort.

28 Ibid.

29 Clause XI (IV)(2)(iv), Clause XI (IV)(6)(ii) of the NWDT award, read with the order of the Supreme Court in B D Sharma vs Union of India, dated August 9, 1991, clearly says that all persons who were affected by the project were to be rehabilitated at least six months before submergence.


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