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Verdict that flummoxes
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Thursday, November 2, 2000

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Verdict that flummoxes
Manoj Mitta

The differences between the honourable judges of the Supreme Court on the Narmada project are as revealing as they are disturbing. Though the Narmada Bachao Andolan (NBA) had challenged the project on many grounds, there was a split on the bench on only one aspect: the validity of the environmental clearance. But the split involved more than a matter of interpretation. The majority and the dissenting judgements delivered last month abound in conflicting claims on facts as well.

What is at issue is the validity of the environmental clearance given to the Narmada project in 1987 by then Prime Minister Rajiv Gandhi. The majority verdict delivered by Justice B.N. Kirpal and concurred by Chief Justice A.S. Anand makes out that there was nothing legally wrong with the clearance. The dissenting judgement of Justice S.P. Bharucha marshals an altogether different set of facts to assert that it was legally ``no clearance at all.'' This contradiction demands a close scrutiny, especially because Bharucha's dissent is based entirely on his conclusion that the clearance of the project was invalid. The differences between the two judgements on the validity of the clearance extend to both procedural and substantive aspects.

Kirpal and Anand see no scope for any procedural objection because when the clearance was given in 1987 there was no statutory obligation to seek one at all. The majority judgment, therefore, held that Gandhi's clearance of the Narmada project was ``essentially administrative in nature'' and ``at that time no procedure was prescribed by any statute, rule or regulation.''

Bharucha still finds scope to fault the procedure of the clearance because it was ``contrary'' to the then government policy as spelt out in the 1985 Guidelines for Environment Impact Assessment of River Valley Projects. According to Bharucha, the government records ``leave no manner of doubt'' that the data needed under the guidelines to assess the environmental impact of the Narmada project was ``not available when the environmental clearance was given.'' Not surprisingly, the Environment Ministry noted around that time that the clearance was ``neither desirable nor recommended.''

Thus, from what Bharucha says, it appears that the validity of the clearance should be decided in terms of the 1985 guidelines. But, surprisingly, the majority verdict does not at all deal with those guidelines and their alleged violation while upholding the clearance. This omission puts a question mark over the majority verdict and may well be highlighted in the review petition proposed to be filed by the NBA. The closest Kirpal and Anand come to addressing the question of the guidelines (without mentioning them explicitly) is when they say: ``There are different facets of environment and if in respect of a few of them adequate data was not available it does not mean that the decision taken to grant environmental clearance was in any way vitiated.''

Regardless of this procedural shortcoming, Kirpal and Anand dismiss the NBA's contention that the clearance was given ``without application of mind.'' They say approvingly that when Rajiv Gandhi cleared the project despite the Environment Ministry's reservations, ``whatever studies were available were taken into consideration.'' But Bharucha puts in perspective the extent of information that was available prior to the clearance. He quotes an Environment Ministry note saying ``what has been done so far whether by way of action or by way of studies does not amount to much and that many matters are yet in the early and preliminary stages.''

Another factual difference between the majority and dissenting judgements is over the studies that have been carried out following the 1987 clearance. The majority verdict has recorded its finding as follows: ``The clearance required further studies to be undertaken and we are satisfied that this has been done and is being done.'' On the other hand, Bharucha feels the need for setting up an independent committee of experts as the studies conducted so far ``are not, due to what are euphemistically called slippages, complete''.

To be fair to the majority verdict, its self-acknowledged thrust is on the relief and rehabilitation measures. It even said that all other pleas, including those relating to environmental ramifications, ``cannot be permitted to be raised at this belated stage.'' Reason: Though the NBA has been agitating against the project since 1986, it challenged the 1987 clearance before the court only in 1994.

Bharucha again gives a very different factual picture of the case. He says though the implementation of the relief and rehabilitation measures was the main concern of the court at the time of the admission, ``it was not contemplated that the other issues in the writ petition would not be considered at the stage of its final hearing.'' He further held that ``it would be against public interest to decline relief only on the ground that the court was approached belatedly.'' These and other such differences apparent on the face of the two verdicts at the least suggest that the environmental questions involved in the Narmada project did not get the attention they deserve.

To be fair to the verdict, its self-acknowledged thrust is on relief and rehabilitation.

Copyright © 2000 Indian Express Newspapers (Bombay) Ltd.


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