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The Hindu on : The Supreme Court & human rights

Online edition of India's National Newspaper on
Wednesday, December 06, 2000

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The Supreme Court & human rights

By Balakrishnan Rajagopal

THE REPUTATION of the Indian judiciary in international human rights circles is usually quite sound. It is seen as having pioneered public interest litigation and as having contributed significantly to the growth of human rights jurisprudence in crucial areas including criminal procedure, environment and economic, social and cultural rights.

Thus, the judgment in Olga Tellis vs. State of Bombay is often cited on United Nations human rights fora and in academic publications as evidence of the court's activist role in the area of economic, social and cultural rights. Indeed, it is not too much to claim that the Supreme Court is seen as one of the most influential expounders of human rights, especially in this area.

Therefore, its recent decision in the Narmada case raises serious questions about the extent to which this well-deserved reputation may be tarnished. If implemented, the decision is likely to lead to a massive displacement of more than 2,00,000 people in the Narmada valley, thus earning the infamous distinction of being perhaps the largest court-sanctioned, forced eviction in history. In addition, the displacement will violate various human rights of the people of the Narmada valley including their right to housing, shelter, livelihood and cultural cohesion as a community.

Further, the decision may also run foul of the international legal norm against collective/mass population transfers against the people's will, and given that a very large percentage of the affected are also tribals and Dalits, this `development cleansing' may well be seen as ethnic cleansing in disguise. The reality is that no member of the upper castes or the middle/upper classes needs to fear the loss of his home and entire community due to a development project in India.

Had the judgment been a carefully circumscribed one that focussed on the issues raised by the petitioners the court might have avoided giving the impression that it was taking sides openly in a bitter ideological conflict over the nature and meaning of development, and the place of costly infrastructure projects such as dams in it. Instead, it launched into the most partisan defence of dams, defying the overwhelming evidence that is globally available against the feasibility of large dams. The sense one gets from reading the judgment in the Narmada case is that for the court, the issue seems to have become one of developmental nationalism, the importance of modernisation and the ability of India to catch up with the West.

This stance has also been reflected in the comments by the Union Home Minister, Mr. L. K. Advani, in the aftermath of the judgment, that those who criticise projects such as Narmada are foreign agents. Besides the fact that such attitudes have the potential to generate dangerous consequences for those who advocate peaceful criticism, the court itself seems to have really stepped over the line from the legal to political terrain.

More importantly, the court seems to have abandoned its established role as the protector of the human rights of the most vulnerable in Indian society. Here was perhaps one of the most significant peaceful human rights movements in post-Independence India and the court's decision has sent the signal that peaceful protests are not taken seriously anymore in the country. Indeed, its previous activism in the area of economic and social rights or rights of detainees arose partly from the recognition that the court must do its part to alleviate the most oppressive conditions of existence for the population before they turn to extreme measures. By abandoning this crucial position, the court has shown itself to be against human rights.

This anti-human rights position would not have been surprising 20 years ago when courts around the world were generally more reluctant to entertain human rights challenges to development projects. But it simply bucks contemporary global trends and standards.

For example, the judgment in the Narmada case can be usefully contrasted with a recent verdict of the South African Constitutional Court - Government of R.S.A vs. Grootboom - given on October 4, 2000. The question involved the enforcement of the right to housing and shelter under the South African Constitution, for a group of children and adults living in appalling circumstances in informal settlements, whose homes were forcibly removed and who then had to settle in desperation on a sports field and in a community hall nearby.

In a unanimous decision, the court held that the Constitution obliged the state to act positively to ameliorate the plight of the hundreds of thousands of people living in deplorable conditions throughout the country. It must provide access to housing, health-care, sufficient food and water and social security to those unable to support themselves and their dependants. The court stressed that all rights in the Bill of Rights were inter-related and mutually supporting. It said the question was whether the measures taken by the state to realise the rights afforded by the Constitution were reasonable. To be reasonable, the court pointed out, the measures could not leave out of account the degree and extent of the denial of the right they endeavoured to realise, and those whose needs were the most urgent and whose ability to enjoy all rights was most in peril must not be ignored. Importantly, ``if the measures, though statistically successful, fail to make provision for responding to the needs of those most desperate, they may not pass the test of reasonableness''.

Judging by this yardstick, the Indian Supreme Court's decision in the Narmada case appears to fall far short of international human rights norms.

Numerous other examples can be provided from around the world and they clearly show that several countries take their responsibility to protect human rights very seriously - particularly economic, social and cultural rights which are of critical importance to the survival of vast impoverished and oppressed populations in non-Western countries.The Indian Supreme Court, by going against this trend, has shown that it is losing touch with human rights. If the goal of the court in this judgment was to defend the possibility of India attaining modernisation and equality with the West, that is hardly likely to come about by showing the world that we are becoming less civilised.

(The writer is a professor and Director of the Program on Human Rights and Justice at the Massachusetts Institute of Technology, U.S.)

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