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Supreme Court should have been more definite on rehabilitation

There is a strong opinion among lawyers
that rehabilitation provisions should have been a precondition to giving the Sardar Sarovar dam the go-ahead. Manish Chand speaks to some legal eagles

New Delhi, October 19

"If half of Delhi were to be evacuated, how would the Supreme Court have reacted? Is it because the oustees are villagers that they don't matter?" asked Rajeev Dhavan, senior advocate, reacting to the Supreme
Court judgment clearing the construction of
controversial Sardar Sarovar dam.

Rajeev Dhavan lashed out at the Supreme Court judgment as "violative of the rule of law, besides ignoring crucial questions of social justice and environmental norms".

The majority judgment was delivered by a three-judge bench, consisting of Chief Justice A S Anand and Justice B N Kirpal ruling in favour of the dam, with Justice S P Bharucha dissenting. Justice Bharucha advised against construction of the dam till the environment ministry clears the project on the basis of experts' report.

Dhavan said: "The Supreme Court judgment is flawed on three counts. Firstly, contrary to a number of Supreme Court judgments, it completely ignores environmental concerns. Justice S P Bharucha in his dissenting judgment said that there was non-application of mind
on issues of environmental clearance. I agree with
him on this. Secondly, it completely ignores questions
of social justice. What it says, in effect, is that rehabilitation can't be done. Thirdly, it is wholly
contrary to the rule of law. The minimal requirements
in respect of both environmental norms and social
justice haven't been met."

In Dhavan's opinion, the court seems to have been misled about the implications of the Narmada Appellate Tribunal. It is concerned not with the desirability of the project, but the allocation of water and responsibilities. Above all, it violates of environmental norms both in relation to the project and the ruling."

The intriguing question is why the Supreme Court adequately failed to address the problem of rehabilitation, which was in many ways, the focal point of the anti-Narmada movement
Senior Supreme Court lawyer
V M Tarkunde said that the court's ruling is not the end of
the road for the people whose lives will be uprooted by the
dam. "The Supreme Court ruling
hasn't made rehabilitation a precondition for the construction of the dam. That's the major flaw of its ruling in the Narmada
case. The displaced can go
in for direct action if they
are not satisfied with the relief andrehabilitation package as per the award of the tribunal. The ruling itself is subject to judicial review, " said Tarkunde.

The intriguing question is why the Supreme Court adequately failed to address the problem of rehabilitation, which was in many ways, the focal point of the anti-Narmada movement. The Supreme Court could have provided for an independent machinery to assess and provide for rehabilitation.

Tarkunde, however, said that he is opposed to what he calls an instinctive aversion that some people have to construction of the dam. "I am not in favour of big dams per se, but in the case of the Sardar Sarovar dam, I feel that the decision was long overdue because of the large amount of money which has already gone into it," he said, stressing that pragmatism is the need of the hour. He commended Medha Patkar on her crusade for the rights of the dispossessed.

Tarkunde has reassuring words for those who are paranoid about the court ruling: "If they stick to the height of the dam prescribed by the Court, and it is regularly monitored, then there shouldn't be problems."

Senior advocate Abhishek M Singhvi said that it was
time litigation on dam issue be brought to a close.
Said Singhvi: "After weeks of argument and months
of deliberation, the Supreme Court has delivered a reasoned, albeit divided, verdict. This is also the culmination of several earlier rounds of litigation, which had considered the matter in some detail. Ultimately, there should be some finality to litigation and public issues. The nation should accept the verdict. A
closure to the whole issue is needed."

Singvi added that those accusing the Court of wrong motives are biased. Pre-empting negative reviews of
the judgment, Singhvi said: "I strongly deprecate the tendency to attribute motives to judges or the court
or use strong pejorative adjectives amounting to
contempt of court."

Maintaining a politically and constitutionally correct stance, Singhvi added: "Judicial verdicts after elaborate arguments and considerations must be accepted gracefully by the winning and losing parties alike. Otherwise, the very administration of justice will be undermined." The prime minister's may be the final and binding decision on the issue of relief to the oustees, said Singhvi, but added that there is room for legal redressal.

Former Union law minister Ram Jethmalani, who has been extremely critical of judicial activism in the recent past, is surprisingly supportive of the judgment. Said Jethmalani, "I believe on the whole, the majority judgement is right. One cannot impede government policies through judicial action. Whether the environment is sufficiently taken care of is a matter of government policy. I realise that Justice Bharucha had a very strong dissenting note and with due respect to him, I believe
that there are government policies which should not be interfered with. In any case, I don't think a situation will arise wherein the prime minister will interfere."

It is still not clear whether justice will be done to
outsees of the Sardar Sarovar. It remains to be seen
how, and to what extent, the promise of proper rehabilitation will be fulfilled.

Sonia Gandhi
Chhota Rajan

Sushmita Sen

strologer Uma Shankar Shukla
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