The reclaiming of eminent domain
The sovereignty of the people, the legitimacy of the state
The relevance of the Narmada hearings

Jai Sen

The Supreme Court began its final set of Hearings on the Sardar Sarovar case on February 29. These Hearings are now expected to be concluded in early-mid April, and other things being equal, the Court will issue the Final Orders in this case in the next few months. In many senses, and at many levels, this final set of hearings are a historic moment a moment that comes only rarely. At a time like this, it is of the greatest importance that the Court, and public debate around the case, does not get lost in the many details of the case, and that they also address the larger issues that are at stake. One would like to assume that the Supreme Court is aware of this import, but it is equally important that this is grasped in civil society and indeed, that if necessary civil society will bring its own will to bear on the court.

While the case that the Supreme Court is hearing was filed by the Narmada Bachao Andolan, and refers specifically to the Sardar Sarovar project, it is firstly important at a moment like this to remind ourselves that the issues that have been raised by the NBA (in the court and outside) in fact relate not only to the Sardar Sarovar project but to a very large number of project situations in the country. The Narmada case is only the best known today; it is vital at this point that we also have firmly in our mind all the other situations where the affected people - with or without the help of activists - have not been able to articulate their problems as clearly or strongly. The Final Orders that the Supreme Court gives will therefore, both in principle and in detail, also impact on all of these situations; and given the scope of the issues that the NBA has raised and the long history and terrain of contestation that is behind the issues the Orders should, hopefully, establish significant precedents and benchmarks. Again, it is only to be hoped that the Court is aware of the full scope of its responsibility in this case.

Starting from the strong protests by local people to the implementation of the Hirakud dam project in Orissa back in the late 40s immediately after the country gained independence, thereby making it not only one of the first such projects but also one of the earliest protests in independent India there have been dozens, even hundreds of large and medium dams built in the country which have thrown up similar issues. The Pong Dam in Himachal Pradesh, the Chandil Dam in the Subarnarekha Multipurpose Project in Bihar, the Koel Karo dam also in Bihar, the Srisailam dam in Andhra Pradesh the list is almost endless. The issues that protests around these projects have raised include forcible and involuntary displacement and the profound trauma this uprooting causes, especially for those for whom ties to the land and to the place they live in are fundamental; unjust compensation, and criminally poor (and very often non-existent) rehabilitation and consequent destitution for the victims; gross neglect, discrimination, arrogance, and corruption both among project authorities and lending agencies; and the repression of project affected people when they try to raise their point of view, and the trampling of almost all fundamental human rights in the course of all of the above. This inventory of trauma is itself exhausting, and agonising.

Difficult as it may be to comprehend or accept this for those who have not experienced something of this nature, this is not at all the exception but the utterly commonplace experience of victims of projects here in India and everywhere in the world. This is also no longer something that is denied by the perpetrators (as it once used to be). Some of the most compelling confirmation of this horror story lies in reports prepared by and for the World Bank, which otherwise finances a major proportion of the projects which cause this devastation. The central government has also laconically accepted this as a 'necessary reality' of large projects, in its draft national rehabilitation policy. If these august institutions can recognise these features, surely we and the Supreme Court must also do so.

Aside from and on top of these, it is usually the case that there is also massive environmental devastation both in the course of project implementation (on the side, as it were), such as huge loss of forest cover, and then also as a consequence of the main project (such as waterlogging instead of irrigation); and a wide range of subsequent problems, including an increase of diseases and illnesses. And here we have listed only dams; aside from these, there are a large number of other kinds of projects which have yielded the same kind of experience : Mining projects, thermal power stations, military bases, and firing and missile testing ranges; and even flood control projects projects which are supposedly undertaken specifically to help local people.

The latter is perhaps the most tragic situation of all; and among these, and all too little-known, the most tragic is the situation in north Bihar, started in 1955 with the embanking of the Kosi river, which has led to a situation today, forty-five years later, where instead of protecting the local people from flooding, the embankments that the politicians and planners (and contractors) have insisted on building on all the rivers in the region have permanently and perennially marooned some two million people, by holding in water that used once to be able to naturally drain out; and where the people, after protesting these projects for years and appealing and being driven mad, are today now themselves resorting to breaching the embankments, to save their lives and salvage their land and their homes and where they are then being criminalised for doing so, by being labelled 'anti-socials' by those same 'authorities'. What more insane world can there be than this ?

The trauma and tragedy that these experiences inflict on the lives of people who are grandly called 'citizens of the country' on the lives of fragile children, women, the elderly, as well as fully-grown women and men, and of communities - is immeasurable. But it is important also to emphasise its scale. Only to give an idea of this, and of the impact of these projects on the country as a whole, consider that something like 25 to 40 million people have been subjected to this experience in India since independence. With the lower figure now actually accepted by government, it can be imagined what the actual figure is. These are difficult figures to comprehend; put in more understandable terms, this means that one student in any class in the country, or two people in any crowded bus, have been (or are currently going) through this life-searing experience. It is that common, it is that close. And in some truly grotesque cases, there are some communities who go through the unbearable experience of being subjected to this twice and even thrice in one life. If it is difficult to assess how individuals live through these experiences, can we even begin to assess what this is doing to the life of the country as a whole ?

Secondly, even in the case of the Narmada project alone, it is important to realise that the project has been contested not just since 1985 the year the NBA was formed (more accurately, its predecessor and constituent, the Narmada Dharangrast Samiti the 'Narmada Oustees' Association', built by Medha Patkar and others among the villagers affected by the project who were located in Maharashtra), but for the past forty years. The project has been contested - at different levels, and by different entities - ever since it was first put forward by the state of Gujarat in 1960-61. The stakes involved in the present hearings are therefore very high taking 'stakes' to mean both material investment as well as the investment of hopes and dreams.

On the one hand, the Gujarat government which has stood firm in its demand for a high dam at that site, despite a wide range of criticism and opposition, domestically and internationally has been waiting (and fighting) for forty years, to realise its dream. And there was also a short-lived movement built up among the farmers of south Gujarat in the late 60s, to pressure the state government to implement the project (and to not weaken in its resolve). On the other hand, the project has been opposed by the government of Madhya Pradesh ever since the early 60s, at that time demanding a lower dam in Gujarat (in place of the high dam proposed) but wanting a high dam within its own boundaries; Adivasi farmers living in villages that were forcibly demolished and removed to make way for the dam and for Kevadia, the township built for the project, have agitated ever since 1961 for more just compensation than they received; Patidar farmers and traders in the Nimar valley (within Madhya Pradesh), on the wrong side of the dam, started protesting their possible displacement from as early as in the late 60s, forming themselves into a Narmada Bachao, Nimar Bachao Samiti and taking their campaign up to the level of the Prime Minister; and there was another round of protest at the height of the dam in Madhya Pradesh in the late 70s, of the same farmers and traders but this time under the banner of a Nimar Bachao Andolan, led by the Congress-I.

It was only after all this that the mobilisation that we today recognise as social movement in the Narmada valley, took shape. First, a civil organisation named ARCH Vahini started its work in the nineteen Gujarat villages affected by the dam, in 1980, and then some years later, other civil activists started building what later became the Narmada Bachao Andolan, now so well known.

This is only some of what has transpired with respect to the Sardar Sarovar project, and to the Narmada Valley Development Project as a whole. It has truly been a valley of contestation.

Issues : Sovereignty and legitimacy

It is only to be expected that a stage as wide and deep as this has thrown up a very wide range of issues, many of them fundamental in nature. An article like this cannot possibly do justice to them or to those who have struggled to articulate them and to bring them to the surface. But there are some that perhaps rise above all the others, which must surely command our attention and hopefully also that of the Bench that is now hearing the Narmada case.

Possibly more than any others, there are two issues which stand out starkly, and which are of the greatest relevance to the Court hearings now going on : First, what can only be termed the sovereignty of the people, and second, the responsibility, accountability, and legitimacy of the state which are ultimately the only source of the 'authority' it seeks to claim. (Without these qualities or attributes, a state is nothing.) These crucial issues are ones which others have already raised for instance, by Arundhati Roy, in her celebrated and popular essays (last year, on the Narmada project, and the year before, on the bomb), or by George Verghese, in his critique of Roy's essay on the Narmada; but to comprehend these questions and to get beyond passionate denunciation or defence, we need to interrogate them a little more deeply than has so far been done. They are moreover not separate issues, but deeply and inseparably intertwined and interdependent; so they have to be discussed together.

One of the fundamental tenets of the Constitution of India as in the case of many, perhaps most other countries is that it has been framed in terms of the nation's sovereignty; in other words, its power of self-governance with respect to the power of other entities to intervene. But it is crucial to point out that what has remained unarticulated in the Constitution again, as in most others is that the nation's Constitution, and in particular its sovereignty, is founded on an implicit understanding and acceptance of the sovereignty of the people that make up the country. This 'other sovereignty' is usually just taken for granted; but as this article will argue, it is now urgently necessary that it is explicitly recognised and given the respect it is due.

For India and for Indians the characteristics of this 'other sovereignty' are in theory laid out in the Chapters of the Constitution that deal with the Fundamental Rights of citizens, and even more importantly, in the Chapter which articulates the freedoms that citizens of the country enjoy : For instance, the freedom to settle and reside anywhere in the country, and the freedom to voluntarily associate. With the question of rights tending to dominate our attention, the subject of freedoms is an aspect and chapter of the Constitution that remains all but ignored, simply because we too easily assume these as given. It is only when our freedoms are taken away, that we become conscious of them, such as during the Emergency.

But we urgently need now to confront the fact that this is precisely what is relentlessly happening to millions upon millions of people, in the course of large projects such as the Sardar Sarovar project. For what such peoples lose are most fundamentally their freedoms : Their freedom to live in that area ('to settle and reside anywhere in the country'), which for many and most especially for the Adivasis has been sacred by the memory and graves of their ancestors; the freedom to live in relation to their environment as they will, which for such peoples is a fundamental part of their culture; and the freedom to conduct and live their lives as they will which is a freedom that most all of us have almost given up.

It is important also to realise that these are not 'claims on the state' that these peoples are making, but rather are assertions and reflections of something far deeper, far more organic and natural. And it is also precisely these freedoms that allow us to be sovereign in our localities, and ultimately also in the land we call our country.

In any society, these two sovereignties 'peoples sovereignty' and 'national sovereignty' - always exist in dynamic and dialectical tension with each other. In theory, people have historically accepted some degree of limitation on their natural liberties - on their sovereignty - in order to form themselves into a unit called a country, or nation, and to establish a state; and in order that the state they establish may function, and in a sense, as the price of being citizens. In most countries however and this certainly includes India the country's Constitution has not been literally drafted by people at large, so that they have any choice in the matter (and even if in our case, as in some others, the Constitution begins with a rhetorical flourish of 'We The People') but by ruling sections, which usually comprise a small minority in the country as a whole; and it is this minority which has therefore defined how much 'natural liberty' is given away in order to establish and empower the state.

The freedoms and rights as defined in the Constitution therefore, are necessarily almost by definition circumscribed and delimited by the balance that the drafters of the Constitution (and of subsequent Amendments) have sought to establish. They no longer remain a full list of 'natural liberties' of human beings. It is for this reason therefore, that one of the most important developments of the century now closing has been the preparation of the Universal Declaration of Human Rights, a historic attempt at encoding what was considered by its proponents as a more fundamental and comprehensive - enunciation of the rights and freedoms of being human, as Upendra Baxi once put it.

This document, and this attempt, has more recently come in for strong criticism, on account of attempting to make cultural prescriptions under the guise of universalism, and thereby of attempting usurp national and cultural sovereignties. Prime Minister Mahathir of Malaysia has been one of the most powerful and eloquent critics. But even as this very necessary debate takes place, there are two extraordinary other aspects, or achievements, of this initiative that remain : One, that one of the most important and pressing reasons for the drafting of this document, and for the building of a United Nations itself, was the then very immediate memory of the horrors that strident nationalism can bring about, and a specific recognition of this awesome potential in the state-nation. The document that resulted, of the rights of individuals, therefore became a permanent challenge to the power and hegemony of the state-nation, and indeed, it has subsequently been the foundation of the regime of universal human rights and of the struggle for their achievement. Not of the rights of nation-states, but of the rights and freedoms of individuals.

And second, it is of no less importance that nation-states all over the world then consciously accepted and ratified this document (and the subsequent Covenants which took the exercise further) and thereby implicitly accepted that the rights and freedoms of individual human beings constantly contend with and sometimes transcend national sovereignty; and conversely, that these rights and freedoms and the Universal Declaration itself thereby tend to define limits to the powers of national sovereignty, from 'below' and 'above', as it were. The tension that implicitly exists within national contexts therefore, as referred to above, between the sovereignties of the people and the state, was brought out into the open by this document, and made explicit. It should therefore be of no surprise at all that it is precisely the Universal Declaration of Human Rights that has become the most important source to which oppressed and exploited peoples all over the world have since then turned, to claim their natural rights.

But these remain theoretical principles; the actual limitations of life and liberty are defined and established through the actual experience of actually existing society : Through the countless and constant struggles that make up the life of society. These are not abstract, theoretical propositions; this is precisely what the situations that this article addresses are all about. And on top of these, structural issues such as caste, class, gender, ethnicity, and race also weave through this fabric, giving us life as we actually experience it.

One of the most fundamental issues that have been raised by the struggles and the debate around the Narmada project paralleled, as has already been emphasised, by countless similar other situations and struggles is that the sovereignty of the peoples of the valley has been grossly trampled upon, curbed, and violated; and conversely, that the institutions of state which have taken it upon themselves to promote and undertake such projects, at state, national, and international levels, have arrogated to themselves and exercised huge powers, powers which are far beyond the powers that any system of natural justice would allow. These powers have now become almost unlimited, and their exercise unaccountable; but what has also happened is that by depriving the people of their natural liberties and by forcing upon them unnatural and inhuman conditions, the state has delegitimised itself, and deprived itself of the authority by which alone it can function.

In the Narmada valley (and all over the country) this is especially true of the manner in which the Adivasi community as a whole has been treated. Peoples who the independent state of India has totally ignored (the first time since the country became independent that a Collector of Jhabua district in Madhya Pradesh visited the village of Anjanwara, for instance, was in 1993 and that too, only to ask the villagers to leave, to make way for the Sardar Sarovar reservoir !), and for whom the river is their Mother and the forests their life itself, in material as well as spiritual terms, are being ripped away from this world they consider their home and being bureaucratically shunted to so-called 'resettlement sites' in another state. Planners are clever enough to generally not use such terms, but the attitude of the project authorities towards the Adivasi was more succinctly put when a politician from Gujarat thundered that they are 'rats who will be flushed out of their rat-holes when the waters rise'.

Most fundamentally, what the planners and advocates of this kind of project seem utterly blind to is the crucial role that the place where we live, which we call our home, plays in our lives, and particularly in the lives of peoples such as the Adivasi. We, today, need to open our eyes to this. This place is not mere 'housing'; it refers not merely to the four walls and roof (and floor) within which we may dwell, but to the deeper existential relations of dwelling and to its wider social and cosmological sense; it refers to the act of 'settling and residing' somewhere, of in-habiting it, and of making it one's home; and ultimately, to struggling for and building 'one's place in the world'. Indeed, it is a fundamental part of the act of building our world itself, and through this, of gaining some control over our lives.

Where we live, after all, is or becomes, if we can live there for long enough the centre of our cosmos and universe, at that point in our lives, and indeed, it contributes strongly to our cultural and social identity, and in a very real sense, all our social, economic, and other relations are constructed around and from this 'place'. It gives us meaning. Our home is also the place from which we claim two of our most basic political rights and freedoms : Our right to vote (and thereby to participate in institutional governance), and in many senses even more fundamentally, our freedom to build community and so to exercise governance over our individual and collective lives. It is in fact generally the case that in India, many of our Constitutional and statutory rights are linked to where we dwell. And it is precisely all of this that is extinguished, that is obliterated, when people are forcibly evicted from their homes and 'resettled'. Those who are displaced, and even if resettled, are in fact victims of these processes, and not their beneficiaries, as is commonly made out. And it is precisely for this reason that our homes give us meaning - that those who perpetrate such traumas lose whatever legitimacy and authority dry documents vest them with. They are rulers without any clothes.

It is important to add that it is not only the Adivasi in the Narmada valley, or in other parts of the country, for whom this treatment is reserved : In the Narmada case, the prosperous Patidar farmers and traders of the Nimar valley also stand to face precisely the same future, if the project is implemented as planned. The only mitigating factor in this case might be that precisely because they are not as insular as the Adivasis, nor possibly quite as integrally linked to their homes, and because they are fully 'integrated' into the wider economy of the region, the trauma of the experience for them may well be somewhat less.

But go to any project area, or indeed to most parts of the country at large, and it is this same story that will unfold : Wherever there is a civil movement (and in most places where there is not, as well), it is the movement that is seen as having authority, and legitimacy; and to the contrary, the state today is seen by most of the local people as being a cruel hoax, a vile fraud. The 'authorities' of the country today enjoy little or no authority; and to the extent they do, is largely a function of the powers of extortion and coercion they hold by virtue of laws that are themselves now seen by ordinary people as exploitative and unjust. The corrupt nexus that state authority exercises with contractors and corporate vested interests only deepens the resentment, suspicion, and cynicism that ordinary people feel.

It is this tragic, urgent, and fundamentally untenable condition that the Supreme Court must therefore address itself to; in many senses, before the question of the height of the dam, and before the question of how adequate resettlement and rehabilitation may or may not be achieved. To underline this, I can do no better than quote Sumir Lal, of the Hindustan Times, who wrote the following after he visited the Narmada valley last August : "What a movement like the one in the Narmada Valley does is carry the voice of the people, the ones most directly affected by development policies, into the realm of public debate and policy making. It ensures that policy is negotiated in an informed manner by those formulating it and those affected by it". "The people of the Narmada Valley have intense grievances; they are being destroyed in a manner that should send a chill down every citizen's spine. Yet, through their peaceful, mass, 15-year struggle, they have shown maturity, patience, understanding of the nation's imperatives, and democratic spirit. The nation should cherish and respect such citizens. To crush them, and to dismiss those willing to hear them as publicity-seekers or eccentrics or romantics, is to insult the very building blocks of our yet-evolving democracy." [From 'Don't shoot the messenger', in The Hindustan Times, August 17 1999. Emphases added.]

To repeat, the Narmada is only one of countless such situations in the country; but it is vital to keep in mind that it is symbolic, and to keep in mind also the power of symbols. If the Court does not do this, then it is avoiding one of the most basic existential crises that any modern society can experience, and that modern India is facing as it builds more and more such projects. The question that arises today not only in India but also across the world is one where we see, and can experience, that through such projects, the state alienates its people and usurps their sovereignty. The task that the Court must confront is how this process can be arrested, and reversed, to one where the state once again celebrates the sovereignty of the people it draws its powers from.

It is very obvious that it is not only 'project-affected people' (PAPs; even the terminology that bureaucracy invents is dehumanising and insulting) who see the world this way. Once again recall, for instance, Arundhati Roy's essays. It was this sentiment that lay at the base of both her essays : A gross disillusionment and cynicism about the state as we have it in India today, a passionate cry of protest at the monster we have created. The criticism she received was too much in terms of mere detail; and the essays were celebrated and popular precisely because the sentiments they articulated resonated so strongly in so many people, both here in India and also in many other countries. It is also for this reason that the journal Outlook devoted a whole issue last year to this question of the state of the state in India today and it came to much the same conclusion. In short, this is a part of the condition of the country today. The question is whether the Court is willing to confront this reality. The Narmada case offers it and all of us an extraordinarily rich opportunity to do so : To democratise the state, to humanise the state.

Though this is hardly something to be mentioned as a footnote, it may be useful to also emphasise that the real issue is not whether the state itself is necessary, as tended to come through in Roy's essays. The issue is the nature of the state that we have created; and the task before us in civil society in India today and perhaps historically, of civil society in general - is to domesticate, civilise, and humanise the state. And in concrete and immediate terms, this is one of the most basic tasks before the Supreme Court at the very moment.

The sovereignty of our homes : Reclaiming eminent domain

But in order to do this, there is a need to dig a little deeper into what is actually happening. The most primary violation in such projects takes place as a consequence of the manner in which they are planned and implemented. The fact that living, sentient human beings in this case, supposedly also citizens of the republic, with rights and freedoms in theory inhabit the specific parts of the land that the authorities, in their wisdom, consider suitable for other purposes, and that they consider it their home, the centre of their universe, is given no value at all. The land is seen simply as property, and the people as potentially inconvenient statistics if that. All else ensues from these perceptions. The task becomes simply how to appropriate the land, and to drive the people away, out of sight and out of mind, in the most effective way possible.

In legal terms, the particular power that is invoked at these times is that of 'eminent domain'. This is an artifice which is premised on the proposition that the state always, by definition, acts in the public interest and that it can therefore claim eminent domain over all other social entities; and conversely, that people so-called 'citizens' must equally by definition submit to it. The particular piece of legislation which is most commonly used in these situations is the Land Acquisition Act, a relic of colonial rule that is much treasured by our post-colonial rulers. Another law that is also invoked is the Forest Act, which though rewritten in post-independence India still derives its inspiration from the colonial act of 1927, by which the British proclaimed the right of state over all forests in the country.

With this concept in any case being derived from feudal times, with the instrument a left-over from colonial times, and given the manner in which a supposedly democratic state has used this power, it is this regime above all which needs to be most severely interrogated today. It needs to be radically revised, and delimited. The Act itself has been a subject of much controversy for many years now, and there have been several proposals for its revision, primarily by civil groups but also by more progressive civil servants. The present case is an extraordinarily appropriate time for the Court to intervene in this situation, and to define directions that should be taken and to suggest the character of revisions that required.

It will not be enough however, just to interrogate and delimit these powers. The delimitation must also be accompanied and counterbalanced by a positive recognition of people's sovereignty, which is ultimately the only manner of providing protection against the kind of excess that has taken place in such situations. Equally, and even more importantly, it is only this recognition which can lead to the restoration of a better balance in society between the sovereignty of its people and the rights of the state.

This recognition and this restoration need to be done on several fronts. This includes the further strengthening of local self-government in both rural and urban areas, and urgent attention to how this can be best put into practice in Adivasi areas (which are governed under special provisions in the Constitution). It also must include the strengthening of the recognition that has grown over the past two decades that local communities, especially those living in forested areas, have the central role to play in the protection and management of the environment and of all local resources. This again is especially true of Adivasi areas.

Assuming that the logic of this argument is accepted, it is of course up to the Court to define how this counterbalancing can be achieved. But again because of the symbolic as well as very real character of the present case, it would seem the right time to recall the rich range of proposals that were made in precisely this area in the late 80s by a civil body called the National Campaign for Housing Rights.

The essence of the NCHR's proposal was that it is the fundamental and natural right of all peoples of all women, men, and children, and of all communities, in rural as well as urban areas to be able to have a place to live in security and dignity, and that this should be made a Fundamental Right in the Constitution. In a draft 'People's Bill of Housing Rights' that it produced in 1992, after several years of discussion and debate that it coordinated across the country, the NCHR proposed an Amendment to Art 19 of the Constitution, a new Art 19(1)(e) which would cover this area. It also backed this with a detailed draft of a statute that would give teeth to the right. The particular relevance of the NCHR's formulation was that the right would act both as an instrument of defence for ordinary people against the excesses of the state (and for that matter, of private interests), and also as a vehicle for strengthening self-governance and for expanding participation by ordinary people in managing issues that affect their lives. 'Housing' was seen and put forward by the NCHR as not being just a physical object, or product, but as a live process of people building their lives. The document prepared by the NCHR remained only a first if very detailed draft; but its proposals remain extremely relevant even today, and it could provide a very useful base on which to take forward this vital task.

It is worthwhile mentioning here that the Supreme Court has itself come close, in some of its own previous judgements, to recognising this right and to calling for the recognition of a fundamental right in this area; for instance in the case Shantistar Builders vs Narayan Khimalal Totame, in 1990, and R G Gupta vs State of Gujarat. The present Solicitor General of the country, Soli Sorabjee, has also supported this view in articles he has written on the subject. Although both these particular cases were to do with urban areas, and with the subject more literally of built housing rather than the expanded concept that the NCHR developed and advocated, 'a place to live in security and dignity' it is clear from these and other judgements handed down by the Court that it itself saw 'housing' in somewhat broader and more fundamental terms.

Equally, the Narmada case, though it has nothing at all to do with 'housing' as such, in fact has everything to do with the right and freedom of people to have and here, to retain - a place to live in security and dignity. This would therefore be a highly apposite context for the Court to draw together its thinking in this area and, drawing also on the work of the NCHR in which several senior legal personalities played key roles -, to give a definitive judgement.

On the other hand, it is important, and even crucial, to also reiterate that the question of sovereignty of the people lies and must always lie in direct relation with the exercise of government and the responsibility, accountability, and legitimacy of the state. The Court also needs to make clear that it is a fundamental and non-negotiable minimum condition that the State will act responsibly towards its people, at all times; and as prescribed by the Constitution, that it will treat people with equality and respect, guaranteeing them all their freedoms. It is only through the exercise of these obligations that a state can command legitimacy and respect from its citizens. It was also only with this objective in mind that the state was granted such a wide range of powers by its people, to manage their affairs, including the power to build the infrastructure of the country so that all can prosper.

This is an ideology that was put into practice not only in India, and is a foundation of all modern states, whether socialist or capitalist. But what happens in India, and what the Indian state does, is and has been in any case of much interest to people (and governments) in many parts of the world, and especially since the 50s, in the context of decolonisation across the world and then of the Non-Aligned Movement, because of the leading role that India played then. This continues to be the case today, in large part because India for all our other weaknesses remains, as Ignacy Sachs has said, one of the 'whales' in the 'developing' world.

This is now also true of the civil world. What the civil campaigns around the Narmada project have done locally, nationally, and internationally - is to focus attention in such a way that 'Narmada' has become an icon, a symbol of the much wider struggle for socially and environmentally sustainable development. This has been reflected in, among other things, the several international awards that the NBA has received.

This role in the public imagination has been confirmed by my own research into the history of the Narmada campaigns in other countries, which have shown me how widely the issue is known and how much respect people in many walks of life there have for what has taken place in India and for the issues that have been raised, from activists to journalists to members of Parliament. The outcome of the Narmada case is therefore likely to be of very wide interest indeed and therefore assumes a wider historical responsibility than the next case. Indeed, it is perhaps not too much to speculate that just as the courts in India periodically cite cases from the House of Lords in Britain, or from the US Supreme Court (or from the courts in Australia, Canada, or Nigeria), it is quite likely that this particular case will also achieve that status. But this will only be the case, of course, if the judgement that is arrived at addresses the more fundamental issues and the universal concerns that have been raised.

There is no question that the state has played a crucial role in the building of modern India. But the time has now come to also confront the reality of our experience, that we have produced a monster that has to be tamed and made accountable to the people it is meant to be serving. We, the people of India, need to reclaim the eminent domain and the sovereignty that the state has usurped from us. This is really what is at stake in the struggle over the Narmada dams and in the case now before the court, and that is at stake so widely across the country. We can only hope that the Supreme Court, in its ruling in this case, will seize the extraordinary opportunity it has in its hands at the moment to provide important direction in this vital area. This moment comes only too rarely.

Jai Sen

Published in Frontline, May 12 2000, pp 104-109.


'Setting a tide mark', in The Hindu, March 8 and March 9 2000, p 10; 'Milestone or Landmark ? Narmada Case in Historical Perspective', in Mainstream, March 11 2000, pp 7-10 + 34-35; and 'Narmada needs a historic judgement', in Hindustan Times, March 12 2000, p 15.
Soli S Sorabjee, March 1995 - 'Right to shelter is a basic right', in The Pioneer, March 21 1995.