The 1978 Narmada Water Disputes Tribunal (NWDT) decided basic features of the Sardar Sarovar Project and apportioning of costs and benefits among the concerned states. The Interstate Water Disputes Act states clearly that the decision of such a tribunal is
final and binding on the parties.
How can the Supreme Court choose not to examine the merits of the arguments relating to hydrology, height of the dam and extent of submergence that were put forward by the petitioner but simply reject them saying "We, therefore (referring to the sanctity
of the award), do not propose to deal with any contention which, in fact, seems to challenge the correctness of an issue decided by the tribunal"?
One such issue that has been ‘decided’ by the tribunal is the amount of water available in the Narmada. The NWDT arrived at a figure of 28 million acre feet of water in the river. However, two members of the five-member group appointed by the SC in 1994
were of the opinion that fresh data available indicates availability to be only 23 million acre feet. The Apex Court, however, simply rules that there is 28 million acre feet of water because the tribunal has ‘decided’ that! Any evidence to the contrary is
not even examined.
The award under the Water Disputes Act is final and binding. But is the law a dead letter, beyond judicial interpretation or has the SC simply chosen to refrain from any interpretation? If it indeed has chosen so, then what are the reasons and why are they
not evident in the judgment?
Is there no merit at all in the arguments that given the significant expansion in our knowledge and understanding of the scale and complexity of socio-environmental impacts, there is a case for reviewing decisions taken 22 years ago?
The petitioner had relied on several reports and reviews in pleas related to environmental and resettlement issues. One such report that was substantially referred to was that of the Morse Committee — an independent committee of international experts set
up by the World Bank to review various aspects including environmental and resettlement of the SSP.
The SC has completely refused to accept the Morse Committee report as reliable on the grounds that the World Bank and the Government of India had rejected the report. The Morse Committee report was critical of the World Bank due to which the final version
was not cleared by it, something that is not rare or uncommon. How can the SC refuse to accept a report as untenable evidence merely because one of the respondents — which happens to be the Government — rejects it?
On issues such as catchment area treatment, downstream impacts, compensatory afforestation, impacts on fishing etc. after outlining the arguments of the petitioner, the SC judgment says: "Again all these contentions were based on the Morse Committee report
which the World Bank and the Union of India has already rejected". The judgment then goes on to refer to submissions by the respondents that all these impacts are well taken care of.
It is important to note that the SC then goes on to quote extensively from the report on downstream impacts given by M/s H.R. Wallingford to demonstrate that the dam would on the whole have beneficial impacts both downstream and upstream. Why does the SC
give no specific reasons as to why it favours the Wallingford report over the Morse report? Is it because the former is accepted by the Government while the latter is not?
The petitioner contends that a large number of people within the submergence area not dependent on land are adversely affected due to loss of (livelihood) the river and/or the community they serviced. The SC simply says: "In our opinion, it is neither
possible nor necessary to decide regarding the number of people likely to be so affected because all those who are entitled to be rehabilitated as per the award will be provided with benefits of the package offered and chosen." Why has the SC not thought
it fit to spell out why it holds this ‘opinion’?
Regarding resettlement and rehabilitation, the SC says, "If one compares the living conditions of the PAFs (project affected families) in their submerging villages with the rehabilitation packages first provided by the Tribunal’s Award and then liberalised
by the states, it is obvious that the PAFs had gained substantially after their resettlement." Why doesn’t the judgment spell how exactly this is ‘obvious’? Why is there no discussion at all on the evidence that was placed before the SC, supporting or
disputing this?
How can a comparison be made between the living conditions in original villages (harsh realities) and the rehabilitation packages (good intentions)? Isn’t the acid test of effective rehabilitation to compare living conditions in the original villages with
living conditions in the resettlement sites, and not with what is merely on paper?
Why is the basis on which this comparison is made and indicators used showing that PAFs have gained substantially after resettlement not spelt out by the SC? In fact, the only evidence the SC refers to in this regard is an affidavit by an Additional
Director of the Narmada Valley Development Authority (NVDA) reporting on a two-day visit to resettlement sites in Gujarat!
On the question of effectiveness of the mechanism set up to execute the project and the resettlement issue, the SC maintains that "there is no reason to assume that these authorities will not function properly. In our opinion the Court should have no role
to play". Is this ‘assumption’ sufficient grounds for the SC to summarily reject all pleas regarding ineffective functioning of the concerned authorities? Why was a Grievance Redressal Authority constituted only last year by the Gujarat Government?
"It is now well-settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision". Have not courts in recent years ‘transgressed’ into many policy areas ranging from the issue of mining leases and profit
sharing in scheduled areas to location of polluting industries to running of polluting vehicles to censorship etc.
"Even then any challenge to such a policy decision must be before the execution of the project is undertaken." The petitioner is even held guilty of not approaching the court earlier. Is this realistic given the prevailing scenario of severe inequity in
society and the lack of transparency in governance?
The second paragraph of page 177 reads as follows: “The availability of drinking water will benefit about 1.9 lakh people residing in 124 villages in arid and drought-prone border areas of Rajasthan who have no other source of water and are suffering grave
hardship". The third sentence of the very next paragraph reads, "The only benefit from the project which Rajasthan get is its share of hydel power from the project"! Will the SC please tell us what is the truth?
"India has an experience of 40 years in the construction of dams. The experience does not show
that construction of a large dam is not cost-effective or leads to ecological or environmental degradation. On the contrary, there has been ecological upgradation with construction of large dams." Why is the SC silent on the nature and extent of such
‘ecological upgradation’?
"The large scale river valley projects per se all over the country have made India more than self-sufficient in food." Why doesn’t the judgment explain how this it true?
"For example, residents of villages around Bhakra Nangal Dam, Nagarjun Sagar Dam, Tehri, Bhilai Steel Plant, Bokaro and Bala Iron and Steel Plant and numerous other developmental sites are better off than people living in villages in whose vicinity no
development project came in." What specific evidence did the SC consider regarding each of the projects and how was this verified? Is the SC unaware that the Tehri dam is incomplete and only a fraction of the total number of ‘oustees’ have been resettled?
Which are these ‘numerous other developmental sites where people are better off’?
The SC cautions that "Public Interest Litigation should not be allowed to degenerate to becoming Publicity Interest Litigation or Private Inquisitiveness Litigation." But the question is whether this judgment is in public interest. And who will decide
that?
