EPW    Commentary November 11, 2000

Supreme Court and NBA

S P Sathe

The Supreme Court in its final decision over a writ petition filed by the Narmada Bachao Andolan (NBA) in 1994 has given a decision giving the green signal to the construction of the controversial dam (Sardar Sarovar Project) on the river Narmada. NBA has been agitating against the dam because, according to it, the plans for rehabilitation of the people ousted from the villages which were to be submerged had not been made and considering the vastness of the probable displacement that it was going to cause, it would be impossible for the state governments to provide the oustees with alternative lands. It further pointed out that the dam was likely to have disastrous consequences on the environment. The agitation started in 1986, after which, the World Bank, which had sanctioned a loan for the dam, decided to withdraw. The Morse report which it had commissioned did not give a positive report on the dam. But even after the World Bank withdrew, the government of Gujarat continued its pursuit of the dam. The final clearance for the dam came from the union ministry of environment in 1987 and thereafter the construction started. The clearance given by the government of India was subject to the state governments complying with certain conditions such as preparing plans for the rehabilitation of the displaced persons and making requisite studies of the possible effects on environment and ways to overcome them. Even the tribunal which the government of India had appointed to adjudicate upon the dispute between riparian states of Madhya Pradesh, Maharshtra and Gujarat had insisted that no person shall be driven out of his house unless he was provided with alternative land. The tribunal’s conditions on rehabilitation as well as assessment of environmental damage were pre-conditions to the building of the dam. The NBA is an organisation of persons who suffered and were likely to suffer displacement and loss of means of livelihood because of the construction of the dam. It started with the aim of ensuring rehabilitation of the evictees but over the years, in view of the magnitude of the possible displacement, came to the conclusion that total rehabilitation was impossible and the only way to avoid marginalisation of a large number of people, substantial number of whom were tribals, was to scrap the project of building such a dam. On the basis of cost-benefit analysis it claimed that big dams were not beneficial.

NBA found that in the name of development, the poor and the ignorant people were being exploited. The state governments did not have enough land to give to the oustees in return for the lands lost by them. Lands were offered to the evictees which were not fertile and at times had already been occupied by other evictees.

The people affected by this high profiled development plan were poor and few in number as compared to the total population of the country. The political parties were oblivious to their woes. The elites who had control over the power machine wanted more water and electricity with whose help they could augment their resources. Medha Patkar, the young leader of the NBA, a frail woman of great dedication, spearheaded the movement. The adivasis and other inhabitants of the valley were mobilised by her and they stood with determination with the slogan ‘doobenge par hatenge nahin’. She conducted the NBA’s struggle with Gandhian methods. There was scrupulous insistence on nonviolence which was sustained against the repression let loose by the Gujarat government and the pro-dam activists. It soon became apparent that a movement with Gandhian methodology was not likely to yield the same fruits against a national government as it did against the colonial government. National governments could afford to be more ruthless and less democratic. NBA was often painted as an anti-development organisation. Various charges, most of them baseless, were levelled against Medha Patkar. Medha Patkar was joined by Baba Amte, another person of charisma who had done monumental work in the service of persons suffering from leprosy. Having realised that a non-violent protest movement could either be ignored or suppressed, NBA decided to invoke legal remedies in support of its struggle. The Supreme Court of India had become activist and its public interest litigation had earned for it an image of a protector of the rights of powerless people. By powerless people we mean all those who lack political leverage. This includes dalits (other than those well organised to press their claims for reservation in government jobs and access to educational institutions), unorganised labour, bonded labour, prison inmates, children, women, persons displaced by developmental projects and silent majorities who suffer from environmental degradation, bad governance and poverty. A writ petition was filed by NBA in 1994 asking for the stoppage of the construction of the dam on various grounds.

The main objections to the continuance of the construction of the dam raised by NBA in its petition were as follows: (1) that adequate provision for rehabilitation of the families whose lands were submerged had not been made and since it was a condition precedent to the construction of the dam (laid down by the tribunal in its award), the dam construction could not go on; (2) that no environmental studies mandated by the ministry of environment, government of India to be done pari passu with the construction of the dam while granting conditional clearance to the project had been made; and (3) big dams did not yield benefits commensurate with the investment made therein. Their ill-effects in terms of seismic disorders that they could cause, the large humanity they displaced from their homes and the environmental hazards that were likely to result from them outweighed the benefits that were likely to accrue. NBA, therefore, urged the court to undertake a review of the project in the light of the developments that had taken place since its inauguration in 1987.

Judicial Activism and Public Interest Litigation

The petition of NBA was filed under article 32 of the Constitution. This article guarantees to every person the fundamental right to move the Supreme Court for the enforcement of her fundamental rights guaranteed in part III of the Constitution (from article 12 to 35 are provisions containing fundamental rights). Our Constitution is unique in making the right to constitutional remedies against violation of fundamental rights itself a fundamental right. While speaking on this provision in the constituent assembly B R Ambedkar had said that if he were asked which provision of the Constitution was such that without it would be a nullity, he would mention article 32. In his opinion it was the “heart of the Constitution, the very soul of it” (CAD, Vol 7, p 950-53). It is this provision which enabled the Supreme Court of India to embark upon its judicial activism during the post-emergency period. The Supreme Court not only gave liberal interpretation to various provisions of part III of the Constitution (fundamental rights) but also revolutionised the processual jurisprudence so as to make the judicial process more easily accessible to the small man of India. It entertained letters as petitions and also liberalised the rules of locus standi. The traditional rule was that only a person whose right had been infringed could move the court. Vicarious claims could not be made except in the case of the writ of habeas corpus, which was a remedy for instant release of a person held in unlawful custody. Considering that a large number of people of India were poor and ignorant and lacked the resources to invoke the judicial process for the enforcement of their fundamental rights, the court allowed social activists as well as social action groups which did not have any axe to grind to petition the court on their behalf [Sathe 1999]. This became known as public interest litigation. Through public interest litigation, issues of human rights, governance and environment were brought before the court. Where the petitioner was not able to provide all the factual data in support of her petition, the court appointed independent persons as commissioners to collect the data and ascertain the validity of the claims made in the petition. The court could make such innovations by taking advantage of the words “by appropriate proceedings” in article 32. The court gave up its positivist approach and also departed from the adversary procedure to become more proactive in protecting the fundamental rights of the disadvantaged sections of the people.

Article 21 of the Constitution had received the narrowest interpretation by the court in 1950 when A K Gopalan had petitioned it against his detention under the Preventive Detention Act (A K Gopalan v State of Madras AIR1950 SC27). But after having reached the near annihilation of that right in a decision given during the 1975 emergency (ADM Jabalpore v Shiv kant Shukla) the court revived that right with much greater power in Maneka Gandhi v India. Here the court gave liberal interpretation to its words. The article reads as follows: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The court held that there were three types of rights contained in that article, namely (a) the right to life; (b) the right to personal liberty; and (c) the right not to be deprived of the rights mentioned in (a) and (b) except by procedure established by law. The right to life included the right to live with dignity. From this emanated all the concomitant attributes of living with dignity such as the right to livelihood, the right to potable drinking water, the right to fresh air, the right to health care and the right to clean and healthy environment. Our entire environmental jurisprudence grew out of such liberal interpretation of article 21 of the Constitution.

The liberal interpretation of article 21 and the growth of public interest litigation changed the social profile of the Supreme Court from a body dealing with strictly legal issues to a body dealing with political, social and economic issues. This was the role that the Constitution envisaged for it.

NBA’s decision to approach the court must have been encouraged by such activist record of the Supreme Court. In its petition it raised questions regarding rehabilitation and environment which formed essential requisites of the right to life guaranteed by article 21 of the Constitution. All the three issues, namely, of rehabilitation, environment and review of the project arose out of the concern for the human rights of the people who were affected by the proposed dam. The fact that the court admitted the petition and gave injunction against the continuance of the construction of the dam showed that all the three contentions of the petition deserved critical judicial scrutiny.

Supreme Court’s First Response

The Supreme Court’s first response was positive. It asked the state governments to submit reports of the rehabilitation so far done and how they proposed to provide it for the future evictees. It also asked them to expedite the environmental surveys and come out with clear plans as to how the environmental hazards could be overcome. It stayed the future construction of the dam until those reports were given and it was satisfied that all conditions regarding rehabilitation of the displaced people and all precautions against degeneration of the environment had been taken. This happened in 1995. For four years, the work of the construction of the dam had stopped.

The hearings continued and in 1999 the court seemed to change its attitude. Although conditions regarding rehabilitation or environment had not appreciably improved in 1999 as compared to those in 1995, the court allowed the state governments to resume construction and raise the height of the dam from 85 metres to 88 metres. In the court it was argued by lawyers who represented the state of Gujarat that the court must give a clear signal in favour of the dam so that foreign investors would be encouraged to invest money in India. We do not know how far this influenced the court but it clearly showed the mind of the Gujarat government and the pro-dam enthusiasts who thought more of foreign investment than of the lives of the people in the valley. This decision came as a great disappointment to NBA because it had all the while hoped that the court would not allow the dam to be built unless the fundamental right to live of the large number of people of the valley, whose lands were likely to be submerged by the rise in the height of the dam, was adequately protected.

Final Decision in 2000

NBA’s petition was finally disposed of by the court on October 18, 2000. The decision given in Narmada Bachao Andolan v Union of India on writ petition no 319 of 1994 was by a majority of two judges against one. The majority judgment was written by Kirpal J on behalf of himself and Chief Justice Anand. Justice Bharucha gave a dissenting judgment. The majority dismissed all the contentions put forward by NBA and allowed the state governments to immediately raise the height of the dam to 90 metres and to increase the height further by taking permission from the Narmada Control Authority (NCA), which is an administrative agency appointed for monitoring the work of the dam. It held that rehabilitation was going on quite well and complaints in that regard could be handled by the grievance redressal authorities headed by retired judges of the High Court and the Supreme Court. Justice Bharucha in his dissenting judgment held that since environmental clearance had not been issued, the construction of the dam could not continue unless all those issues were resolved. He said: “when the public interest is so demonstrably involved, it would be against public interest to decline relief” (p 30, mimeographed copy). He asked the Environmental Impact Agency of the ministry of environment and forests of the union of India to forthwith appoint a committee of experts called the environmental Impact Assessment. Such a committee was to gather all necessary data on environmental impact of the project. But Justice Bharucha was not oblivious to the problems of rehabilitation. He asked the grievance redressal authorities of the states to certify before work on the further construction of the dam could begin, that all those ousted by reason of the increase in the height of the dam by 5 metres from its present level had already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who would be ousted by the further increase in the height of the dam was already in the possession of the respective states (p 31-32).

The majority judgment has dismissed objections regarding rehabilitation and environment by entirely depending on the affidavits given by the state governments. According to NBA, the affidavits were based on false information. The state governments of Gujarat and Maharashtra said that they had made ideal arrangements for rehabilitation. NBA said that whatever appeared on paper did not exist on the ground. Lands which were shown as given to the oustees had earlier been given to other oustees and many of them were infertile. Many families which had moved out in the hope of getting alternative lands had come back after finding that there were no lands or that the lands given to them were barren. Only the state of Madhya Pradesh frankly told the court that it would not be in a position to give so much land. The state of Gujarat offered to settle the people of MP in Gujarat. Rehabilitation has to be understood in a holistic sense. It is not enough to give land for land but land plus other benefits of community life which the displaced people enjoyed before their displacement. The grievance redressal authorities appointed by the court were headed by retired judges of the higher courts. There is a fear that such committees might conduct their proceedings in a formal adversarial manner. Where government affidavits, which according to NBA, did not give correct information about rehabilitation, had to be interrogated, an inquisitorial process which is more sensitive to the realities of human suffering had to be adopted. It is not easy for any non-government organisation to combat the facts given in a government affidavit. It does not have access to information. Investigation into the truth of rehabilitation claims made by the government would have required talking to people and actually visiting the land sites. We do not know if any such investigations had been made by the grievance authorities. Some grievance authorities are reported to have taken a very formal adversarial approach. The court should have appointed commis-sioners as it did in cases like Bandhua Mukti Morcha v Bihar ((1984) 3 SCC 161) for finding out the truth. (In Bandhua Mukti Morcha’s case, the commissioner was appointed to find out whether bonded labour existed despite the law having banned it.) But the majority judges do not seem to have taken the reports of the grievance redressal authorities into consideration. Unlike Justice Bharucha, they did not insist on the certificates of those authorities that all those so far ousted had been rehabilitated.

We are surprised that the majority judges completely accepted the government’s story about rehabilitation. Where fundamental rights were alleged to have been violated, and a prima facie case had been made out, which was evident from the fact that the court had admitted the petition and granted a stay against the further construction of the dam, the onus to prove that they were not violated lay on the state governments. Such onus could not be discharged merely by filing affidavits. The fact that adequate plans for rehabilitation of the future evictees had not been made is obvious from the fact that even the majority has in its judgment asked the NCA to “draw up an action plan in relation to further construction and the relief and rehabilitation work to be undertaken” within four weeks. In fact, the majority should not have allowed the construction of the dam to continue without making sure that plans for rehabilitation of the persons who would be displaced by such construction were ready. Was it not rather optimistic on the part of the majority to expect that such plans would be ready within four weeks? What happens if they are not provided? Mere plans are not enough. There must be infrastructure for such rehabilitation. When even previously displaced persons had not been fully rehabilitated, did the court not take great risk in allowing future construction of the dam to go on before such plans were in hand?

The same could be said about environmental studies. It is obvious from the judgments that the entire process of sanctioning this project was done in great hurry and without full study of the possible environmental hazards that the dam could lead to. Initial sanctions were given in 1987 on the condition that these studies and plans for rehabilitation would be made pari passu with the construction of the dam. That itself was wrong. No government should have done it. But even till the year 2000, what progress had been made? Did the court envision that what could not be done in 13 years would be done in just four weeks?

The court had said that it would not go into the wisdom of having big dams. That was a matter of policy into which only the legislature and the government could go. Having said this, we wonder why the majority praised big dams for their contribution to the agricultural and other progress of India. Justice Kirpal said: The large-scale river valley projects per se all over the country have made India more than self-sufficient in food. Famines, which used to occur, have become a thing of the past. Considering the benefits which have been reaped by the people all over India with the construction of the dams, the government cannot be faulted with deciding to construct the high dam on the river Narmada” (p 170-71, mimeographed copy).

This they did without referring to various studies on big dams in general and on this dam in particular. They brushed aside the Morse committee’s report submitted to the World Bank on the ground that it had not been accepted either by the government of India or the World Bank. This ground for not considering that report was rather too legalistic. There is now a World Commission on Dams (WCD) which has undertaken a study of cost-benefit analysis of the big dams taking into account the human and environmental problems that they produced. Various advanced countries have of late chosen not to go in for such big dams. The court could have taken judicial notice of such studies. But what was objectionable was the majority’s expression of view in favour of big dams in a judgment which is supposed to contain not the personal opinions of judges but opinions based on evidence. These expressions reflected the policy bias in favour of the big dams.

NBA had asked the court to have the entire project of the Narmada dams reviewed by an independent judicial authority. In view of the fact that so much new knowledge on dams had become available, a new cost-benefit analysis of the dams had become necessary. Just because a lot of money had already been spent over the project, such review could not be avoided since in its view the price of going ahead with it could be dearer than the costs already incurred. The majority judges refused to have the project reviewed on the ground that the request had come rather too late. But the request had not come late. It was implicit in its prayer for not allowing the construction to proceed, which had been conceded by the court in 1994. The five years had elapsed due to the stay granted by the court for which the petitioners could not be held responsible. Moreover, the delay does not always disentitle a petition particularly when public interest is at stake. Recently the Supreme Court held that delay would not be a ground for refusing a petition where such refusal would result in harming the public interest. The court pointed out that when a petitioner raised questions pertaining to his personal rights, he had to come to court within a reasonable time but where a petition raised questions of public interest, the court would not refuse a petition if refusal caused harm to public interest. A person occupied the office of the speaker of a legislative assembly and the petitioner raised questions regarding the legality of his holding that post. Although the high court had rejected the petition on the ground of delay, the Supreme Court on appeal held that it could be entertained because not to do so would help an illegal occupation of a public office to perpetuate (Dr Kashinath G Jalmi v The Speaker – (1993) 2 SCC 703). It is submitted that NBA’s request for review of the project ought to have been conceded by the majority.

Justice Bharucha, in his dissenting judgment, has conceded the possibility of the scrapping of the entire project. He said: “It is necessary to provide for the contingency, that, for one or other reason, the work on the project, now or at any time in the future, does not proceed and the project is not completed” (p 29). If such a thing happens, according to Justice Bharucha, “all oustees who have been rehabilitated must have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from”. Justice Bharucha held unequivocally that the petitioners were not guilty of any laches (delay).

Judicial Restraint on Policy Questions

The judicial restraint of not going into policy issues, which is mandated by the doctrine of separation of powers, has always been subject to the duty of the court to protect fundamental rights. Where a policy was likely to result in denial of fundamental rights, can the court refuse to go into it? Under article 32 of the Constitution, it is the duty of the court to protect the fundamental rights. When the government’s decision to reserve jobs for the backward classes was challenged, the court did undertake an examination of that policy because it was contended that it violated the right to equality. The court held that the policy of reservation did not violate the right to equality and declared that such reservation shall not exceed 50 per cent of the total number of jobs. Did the court not evaluate the policy while upholding it and did it not make policy when it laid down the limit of 50 per cent? We can point out a number of instances in which the court has gone into questions of policy. In fact at times the court has taken such liberty in clear violation of the principle of separation of powers when really no question of fundamental right was involved. When a petition was made asking the court to lay down how the vigilance commissioner should be appointed and what should be his qualifications, these being clearly matters within the purview of the legislature, the court could have refused to answer but it did. And even the government did not protest against such usurpation of power by the court (Vineet Narain v Union of India – (1996) 2 SCC 199; (1998) 1 SCC 226). Politicians have taken full advantage of judicial activism to get decisions made for them by the court, which would have cost them a political price. But what is relevant for our discussion is that the court has not stayed away from issues involving policy. Why should it stay away when the right to life of so many people from the Narmada valley was at stake?

It was wrong on the part of the majority to leave all decisions to an administrative agency like the Narmada Control Authority. The NCA is a highly government dominated body. It consists of secretaries of the departments of water resources and environment and chief secretaries of the states. Its review committee is presided over by the union minister for water resources and has union minister for environment and chief ministers of the states of Gujarat, MP, Maharashtra and Rajasthan as members. How can such a body really act against the governments and in favour of the people? When the department of technology of the government of India took decisions regarding distribution of airwaves and uplinking facilities between Doordarshan and private channel proprietors, the court said that such decisions could not be taken by a government body but ought to be taken by a public but not government body (Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal – (1995) 2 SCC 161). This decision really laid down a norm for regulatory authorities like the power regulatory authority or the telecom regulatory authority. Why should similar rule not apply to a body which is supposed to monitor the programme of rehabilitation when rival claims are made by the government and the oustees? NCA being an administrative agency created under S 6 of the Inter-State River Disputes Act is subject to judicial review. The Supreme Court has left future monitoring of the rehabilitation to NCA and it is supposed to take decisions regarding future construction. If the displaced persons of the valley feel that the construction is rushed without adequate regard to rehabilitation, where do they go? Can they go for judicial review to a High Court under article 226 or the Supreme Court under article 32? In public interest litigation, the court has taken into account the poverty of the average Indian person and has used technologies for avoiding individualistic litigation. The court has used its jurisdiction under article 32, which is a jurisdiction merely for stopping encroachment on fundamental rights, to award at least token compensation to the victims knowing fully well how difficult it would be for them to fight adversarial litigation on their own. It was rather insensitive on the part of the judges to leave these poor people entirely at the mercy of an administrative agency like the NCA.

The majority decision in NBA v Union of India disappoints more because of the majority judges’ attitude towards public interest litigation. At times there has been abuse of this facility by some unscrupulous litigants. But the judges are also responsible for not being selective in admitting writ petitions. They should throw out at the threshold those which are motivated by private interest or publicity hunger. The courts have commented upon the abuse of the process of law by such petitioners and have some times even punished them. But just because some people abuse it, PIL does not become bad. The court must not throw the baby away with the bath-water. But in recent years one witnesses a trend among judges to despise PIL and impose greater restraints on litigants raising issues of public interest. Two years ago, the Supreme Court observed in a case that where a PIL litigant had obtained a stay order against a development project but in the final disposal the decision went against it, it should be made to pay the increased costs of that project (Raunaq International Ltd v IVR Construction Ltd – (1999) 1 SCC 492). The court must make a distinction between a private litigation and a litigation in which public interest is involved. The court may be more demanding in granting injunction but once granted it cannot hold the litigant responsible for it if the ultimate decision did not go in her favour. The court must not apply all the rules which are designed for adversarial private litigation to public interest litigation. In the NBA case also, reference to ‘private inquisitiveness [sic] litigation’ or ‘publicity interest litigation’ (p 166, mimeographed copy) was uncalled for because the litigation it adjudicated upon did not belong to either of those categories. By taking a very formal view of issues like rehabilitation or environment, the court unfortunately seemed to be suggesting its withdrawal from the larger role which it had assumed in recent decades. This causes us concern because through judicial activism the court has played the role of legitimising and channellising various social movements for social change and social justice. It is judicial activism and particularly public interest litigation which has given social legitimacy to the court’s decisions. The dissenting judgment of Justice Bharucha does encourage us to hope that the trend of going back to the narrow legalistic paradigm of judicial process will not be shared by the entire court.

Judges are after all human beings and they are bound to make mistakes. People must have freedom to express their views on the decisions of the court. The Constitution of India guarantees freedom of speech and expression, which is subject to reasonable restriction in the interest of contempt of court. The power to punish for contempt is to be used only when somebody defies the order of the court or says something which is likely to undermine people’s faith in the judicial process. Criticism of the decisions of the court has always proliferated the legal literature. Would NBA’s peaceful resistance to the construction of the dam amount to contempt of court? In my opinion it ought not to. The court has not asked the government to build the dam, it has merely dismissed the constitutional objections which NBA took against the construction. Therefore resistance to the state government’s action of constructing the dam should not amount to contempt of the court. The law of contempt must be interpreted so as to cause minimum restriction on people’s right to freedom of speech.

NBA on its part could say that the decision of the majority was not just or fair. In its criticism it will have to make sure that it does not undermine people’s faith in the judiciary. Decisions of courts have been criticised in the past also. There was severe criticism of the Supreme Court’s decision given during the 1975 emergency where it was held that a person could not raise questions regarding the validity of a government action howsoever arbitrary it might have been (A D M Jabalpore v Shiv kant Shukla, AIR 1976 SC 1207). Similarly the decision of the Supreme Court under which a settlement between Union Carbide and the government of India regarding compensation for the victims of the gas tragedy that occurred at Bhopal (Union Carbide v Union of India – (1989) 3 SCC 38) was severely criticised. NBA must also appreciate that despite such unfortunate decisions, the court as an institution has stood by the people and has protected their rights in a large number of cases. It is not in the interest of social activists to disparage the court because they will need it in future also.

But the court on its part also must appreciate that overuse of the power to punish for contempt could erode its social legitimacy. An activist court has to be more tolerant of public criticism. Since it is no longer a court dealing strictly with legal issues but deals with social, economic and political issues, it must become more tolerant to public criticism. The Supreme Court is a political institution insofar as it decides issues of policy and principles on behalf of the people of India who are the source of the Indian Constitution. Having adopted this wider paradigm, it cannot continue to use the parameters of the old paradigm for determining what amounts to contempt. Ultimately the court’s strength is not derived from its power to punish but it lies in the confidence of the people that it is fair and just. The Supreme Court of India enjoys it in large measure.

Abbreviations

AIR : All India Reporter.

CAD : Constituent Assembly Debates.

SC : Supreme Court.

SCC : Supreme Court Cases.

References

Sathe, S P (1999a): ‘Judicial Activism III: Growth of Public Interest Litigation: Access to and Democratisation of the Judicial Process’, Journal of Indian School of Political Economy, Vol XI, p 1. – (1999b): ‘Judicial Activism IV – Legitimacy’, Journal of Indian School of Political Economy. Vol XI, p 219.

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