EPW    Commentary November 4-10, 2000

A Judgment of Grave Import

Ramaswamy R 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 practical consequences. Nevertheless, they may still serve a useful purpose, 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 Supreme Court has been blazing a trail. While there has been some criticism 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 egregious 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. However, he had hoped that approval to further construction would be severely conditional and that justice would be done to project-affected persons (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 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 relation 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 Supreme 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 environmental 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 asking 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 pronouncements 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 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 the judgment 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 development (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 themselves 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 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 observations 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 undercurrent of disapproval of those who argue against them), another force driving 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). Besides, 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 connotation? 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 petition 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 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 Supreme 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 government boycotted the FMG and questioned its constitutionality, and someone filed a case in the Gujarat High Court against the establishment 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 occasion 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 general 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 presumed to be working. That doctrine is not corroborated by actual experience. The judgment refers to the NCA, its Environment and Rehabilitation Sub-Groups, and the minister-level Review Committee. All this exists already. The pari passu clause implied a continuous check to see that construction did not proceed ahead of measures on the environmental 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 inadequate response that he had received from his colleagues on the Sub-Group, 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 existing arrangements as if new orders were being passed? Even the prescription of a reference to the prime minister (as if he were a judicial authority) is nothing new. The Review Committee is a minister-level committee. 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 directions 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 emission norms for automobiles; and ordered the establishment of the Central Groundwater Authority. Some of this was undoubtedly excessive activism, but the presumption in the present judgment that existing arrangements 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 carried too far) now changes to the deprecation of PIL in sarcastic language; 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 governmental 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 essentially a conflict-resolution mechanism. Its award (including the ‘non- reviewability’ 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 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 without shedding a drop of blood. In the present case, she might have argued 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 flexible: 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 manageable. Others (scholars and analysts) had proposed alternatives that might have envisaged still lower heights and reduced displacement dramatically. 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 completely 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 suggestion 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 examination 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 dangerous, would it be nevertheless obligatory to build it? This is not a hypothetical question. The recurring tremors in the Koyna area and the occurrence 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 judgment the Gujarat government will now press forward with construction, and they will be in no mood to listen to anyone other than ardent advocates 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 be even less receptivity 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”?

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