Mumbai December 10-25, 2000

Sardar Sarovar Case: What Now?

Ajit Roy
(Ajit Roy is the Editor of Marxist Review)

The Supreme Court judgment of September 18, 2000 on the Sardar Sarovar dam dispute has rightly created deep consternation and grave disappointment among the adversely affected tribal people of Gujarat, Maharashtra and Madhya Pradesh and their vast supporters and sympathisers within the country and abroad. In consequence of the judgment, thousands of the project-affected-persons (PAPs) will be doomed to eviction and destitution.

The judgment has raised many legal questions on its legal justifiability as also the possibilities and limitations of the search for legal redress in a case of this nature.

This has also generated a search for alternative lines of advance. At a deeper level, this situation, created by this judgment, has raised in some circles the question of the effectiveness of the so called 'non-political people's movement' in general. Since the Narmada Bachao Andolan (NBA) is one of the longest-duration movements of this category, which has even been able to secure the acknowledgement of the UN, World Bank and other significant international institutions, any perceived failure of this movement will adversely affect the interests and prospects of similar movements elsewhere today and for some time to come.

Hence, all the relevant issues have to be examined in depth. First, of course, is the question of the legal justifiability of the Supreme Court judgment? From the legal angle, I have been persuaded convincingly that the judgment is not legally justifiable.

In a very competent and penetrating assessment of the Supreme Court judgment, recently published in Economic & Political Weekly of Mumbai, November 4-10, 2000, Ramaswamy R. Iyer, shows that the majority, i.e., the effective, judgment "after six years of proceedings, failed to deal with the very issue that was brought before it." Iyer also notes many other lapses in the judgment such as, "overlooking of present non-compliance (by the authorities) and asking for compliance to be checked at some future time."

Secondly, the judgment "muddies the water by making sweeping pronouncements about the desirability of the dams." The desirability or otherwise of dams was not an issue before the Court. Iyer has also exposed the ""animus against the petitioners evident in a section" of the judgement. Iyer, and also reportedly the independent Indian People's Tribunal sitting to examine the Supreme Court judgment, have recommended that a review petition be made to the Supreme Court as provided by law.

Blazing a trail

Iyer writes, "During the last decade or two, the Supreme Court has been blazing a trail. While there has been some criticism of what has come be known as 'judicial activist', it has on the whole won national approval." Most of us (this writer included) have been grateful to the judiciary for trying to rescue the country from the egregious failures of the executive and the legislature. Along with Iyer, some of the leading figures of the NBA may have shared the same admiration of and expectations from the Supreme Court. If some people had placed unqualified confidence in the Court, they should hold themselves responsible for their disappointment. They should have remembered the notorious example of its failure in the past the miscarriage of justice in the Bhopal Gas Disaster case. In a very sober and serious review of the judgment, the Rome-based Permanent People's Tribunal (of which the present writer has the privilege of being a founder-member and also a participant member of the bench in the Bhopal case) noted in its judgment: "The failure of the Indian Supreme Court to seize the opportunity to keep Union Carbide in its continuing jurisdiction for a definite period of time to ensure that its duties of cooperation in recognising rights of victims and meeting their legitimate claims arising from the latent, unfolding and long term effects of MIC would be fulfilled."

Some of the aggrieved and disappointed personalities have now discovered that the Court has class bias. From this, there may arise a reluctance to pursue whatever legal course may still be open. This will be a mistake.

First of all, there is no fixed degree of class bias in judiciary. It differs from person to person and occasion to occasion. Witness the dissenting judgment of Justice Bharucha in this case.

"The judiciary", as EMS Namboodiripad has rightly said and Medha Patkar rightly recalls, "is an organ of the class state and has class bias. But it is some times in the interest of the class state that the bias should not be very explicit."

Further, "it is simplistic and hence operationally harmful to hold that law in a class society is an exclusive weapon of the ruling elite. Although fundamentally designed to serve the basic interests of the owners of property, progressive jurists can most of the time operate within the system and use the weapon of law more or less effectively depending upon a number of circumstances, for seeking to protect and extend the rights, liberties and even the economic interests of the people." (Paper read at a seminar on Amending the Constitution, held under the auspices of West Bengal Association of Democratic Lawyers, on April 25 1976, in Calcutta)

The Options

If one section of the NBA is no skeptical about the organs and functionaries of the extant state power, some others seem to have shifted their faith and dependence from the judicial summit to the chief executive of the same state power, viz., the President.

No doubt, the present incumbent in that high office is personally very progressive and has many other high qualifications, but he is also subject to many basic constraints. Indeed, compared to the judiciary, the President is more handicapped. The judiciary, at least has the legal-Constitutional powers to pass mandatory orders according to its own light. The President, on the other hand, has only advisory powers except in very few specific cases. In the present case, he can only forward the papers with his 'advice' to the prime minister who is the leader of the ultra-right BJP.

All this, however, does not imply that the President's intervention should be sought. All such avenues should be explored, but always keeping their limitations in mind. There, perhaps, is or may arise a third type of reaction, which may seek to reject all legal/Constitutional avenues and may, out of desperation, think of resorting to Maoist type of armed action as the only path to success that is open now.

This would be a great mistake. This negative opinion is based not on any abstract or general principle, but on the specific historical and objective considerations. It has been time and again stressed for decades, the present political, topographical, strategic and tactical factors most emphatically preclude this path. It may prove suicidal. This option may thus lead to internecine struggles among the people and may play to the hands of the vested interests.

Three immediate tasks

The situation at the ground level is no doubt desperate. The NBA leaders, their supporters and sympathisers have the grave responsibility to indicate the path forward to escape the doom. For this, they have to pool their collective wisdom and seek advice and cooperation from all available quarters. Keeping this spirit of cooperation are some suggestions.

First, in the present historical context when consequences of globalisation and structural changes led to a certain disarray in the ranks and formations of traditional fighting organs like trade unions and mass organisations, the working people devised new modes of struggles which are in effect more powerful that the earlier forms. Witness: the recent actions in France road blockades, port blockages, Channel blockades and the like. The essence of these new forms is to strike at some selected vital nerve centres by ad hoc people's formations with a small number of participants. The key to the success of this form of action, however, is the assurance of at least the passive support of wider mass of the people.

From the standpoint of immediate effect, a measure like the solidarity of tribal MPs and MLAs is very vital. Dependent as they are, on their votes for their survival, the NDA governments at the Centre and Ranchi are extremely vulnerable to their pressures.

For his, the campaigns have to be integrated with other movements on people's demands to ensure adequate popular mobilisations. Secondly, the NBA movement has to be more closely related to the wider democratic currents headed by the left and democratic forces. The NBA should take the initiative to woo the left forces and the left, for their par, should re-examine their historical lack of empathy for the NBA and similar movements.

The political significance of the Supreme Court judgment should not be missed. Leaders of the right wing like L.K.Advani and Keshubhai Patel have hailed the judgment. Indeed, Advani has bracketed this with Pokhran II and Kargil was, both of which are landmarks of political reaction.

They have been directly or indirectly created and utilised by BJP-led government, for which the people are paying enormous prices.

The votaries of 'non-political people's movement' have to understand that no movement for justice and equity can be or really remain non-political. Directed against the dictates of the ruling echelons as they are, these movements are inherently political. They, however, can and may remain non-party.

The left have also to realise that in the face of the emerging fascist threats, they have to move beyond their narrow bases and peripheries and seek fraternal relations with all other forms of movements for democratic and popular aims.