A Judgment of Grave Import

Ramaswamy R. Iyer

Former Secretary, Water Resources Ministry
October 27, 2000

This article is about the nature and implications of the Supreme Court judgment on the Narmada (Sardar Sarovar) case, and not about the merits of the project or about the question of large dams in general. `Judgment' here refers to the majority judgment by Justices Kirpal and Anand. While the minority judgment by Justice Bhrucha is not without importance, it is the majority judgment that prevails and constitutes the judgment in this case; and being the judgment of the highest court in the land, it represents finality from a legal point of view. The petitioners have no legal recourse against it, other than a review petition to the Supreme Court itself. It follows that criticisms of the judgment may have no practical consequences. Nevertheless, they may still serve a useful purpose, and it is in that belief that this article is being written.

It is written with a heavy heart. During the last decade or two, the Supreme Court has been blazing a trail. While there has been some criticism of what has come to be known as `judicial activism', 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. Unfortunately, all that good work has been nullified at one stroke by this single judgment, which blazes a trail in the wrong direction. The complaint of the present writer is not that the judgment allows the project to proceed further. It was never his expectation that the SC would stop the project. However, he had hoped that approval to further construction would be severely conditional and that justice would be done to project-affected persons (PAPs). Those hopes have been belied. The judgment can only be described, with deep regret, as one of the worst in the history of the SC. Such a statement cannot be made lightly; the following paragraphs will provide the necessary justification.

The judgment allows the dam to go up to 90 metres, and stipulates that further construction would be conditional on a clearance (in stages of 5 m) by the Environmental and Rehabilitation Sub-Groups of the Narmada Control Authority (NCA) from their respective points of view and with reference to the conditions of clearance with which they are concerned. However, if that check is warranted after 90 metres, it is equally warranted before that height is reached. Rehabilitation has not been completed fully even in relation to a height of 85 m. This must have been clear enough from the material before the Court. It has also been clearly stated that land for resettlement is not available in Maharashtra and Madhya Pradesh. There are deficiencies in relation to the environmental conditions too. It is beyond doubt that the pari passu clause has not been complied with. Thus, there is an existing situation of failure of compliance with conditions. This is corroborated by the fact that based on the material before the Court (which was common to all three judges) the minority judgment calls for a halt to the project until it is put through a fresh scrutiny and clearance. There can be differences between the majority and minority judgments in respect of opinions, conclusions and prescriptions, but not in relation to the knowledge base. The existing failure constitutes a violation of the Tribunal's directions as well as those already given by the Supreme Court itself, and a non-fulfillment of the conditions prescribed by the Ministry of Environment and Forests and the Planning Commission while according approval to the project in 1987. Justices Kirpal and Anand may not agree with Justice Bharucha that there is need for a fresh examination and clearance, but should they not have made further progress from 85 m to 90 m conditional on the existing deficiencies being remedied and compliance completed? Overlooking present non-compliance and asking for compliance to be checked at some future time amounts to a kind of `amnesty' scheme for the project authorities and the Governments concerned.

It might be argued that the Rehabilitation Sub-Group of the NCA had found that the conditions had been fulfilled for a height of 90 m. They said nothing of the kind; they merely noted that "arrangements were in place", not that conditions had been fully complied with. Nothing that they said can be construed as a clearance for going up to 90 m.

The judgment strongly argues the case for judicial restraint and chastises the petitioners for bringing before it matters that belong to the executive sphere. The learned judges seem to have forgotten that they themselves, or their predecessors on the Bench, had raised some issues of this kind (hydrology, height of the dam, etc) and asked for a second report from the Five Member Group, and that the Further Report of the FMG was submitted in April 1985 not to the Government but to the Supreme Court as directed by it. Leaving that aside, and accepting the stress on judicial restraint as valid, one must ask why the learned judges then proceeded to write an essay on the virtues of dams. The petitioners, so far as one knows, were not asking for an injunction against dams in general; they were only making submissions on what they considered to be the adverse consequences of one dam, namely, Sardar Sarovar. Speaking subject to correction, nothing in their submissions called for an Ode to Dams by Their Lordships.

What we have here is not merely inconsistency and irrelevance, but the advancement of the personal opinions of citizens Kirpal and Anand as the judicial pronouncements of Justices Kirpal and Anand. They put forward the familiar arguments for dams (variability of rainfall over time and space, need for storages and transfers, the `clean' nature of hydro-electric power, etc); dismiss the advocacy of alternatives such as watershed development and local water harvesting; aver that dams are necessary for development; make light of the adverse impacts of dams; go to the extent of saying that dams are actually good for the environment; seem to accept the doctrine that some people must `sacrifice' (be sacrificed?) for the good of others; and observe that no instance of a dam having done any harm has been brought to notice. One keeps rubbing one's eyes in disbelief that the learned judges could really have made themselves responsible for such rash and ill-considered statements. The sheer naivety (?) of the performance takes one's breath away. If this had been a presentation made in a seminar or conference, it would have received short shrift.

The case for dams could have been much better argued; and the case against dams can be argued with even greater force. There is a major unresolved controversy and a vast literature on this subject. Have the learned judges heard of books on large dams by Goldsmith and Hildyard, Patrick McCully, B.D.Dhawan, Enakshi Thukral Ganguly, Jean Dreze et al, Satyajit Singh, and many more? The latest addition to this literature is the India Country Report (Large Dams: Indian Experience) submitted by a team of five to the World Commission on Dams. WCD's own Report (likely to be path-breaking) is expected shortly. Against that background, need the learned judges have rushed headlong into this dangerous terrain and written an Ode to Dams? In any case, what was the propriety of incorporating their totally subjective private opinions (whatever their worth) into a judicial pronouncement? The mere fact that these observations about dams have been made by judges in a judgment does not give them any greater legal force than the views of others - engineers, economists, sociologists, environmentalists, or even ordinary people.

Two forces drive this judgment: one is an ardent belief in the virtues of dams (and the implicit disapproval of those who argue against them); and the other is a strong prejudice against the NBA. Consider some of the remarks made by the learned judges: "an anti-dam organization"; Publicity Interest Litigation"; Private Inquisitiveness Litigation"; and so on. These dismissive remarks do not reflect a judicious frame of mind. The petitioners managed to persuade at least one judge that there was something in what they were saying; this was therefore hardly a case of frivolous or trivial PIL. The Narmada Bachao Andolan is a movement of some importance, though there may be a difference of opinion as to some of its methods and regarding its overall impact. As for Medha Patkar, the judgment does not mention her but it is clear that when the judges refer to NBA they have her in mind. There are differences of views as to the wisdom and propriety of some of her actions, but a fairly large number of people (including this writer) hold her in respect as a selfless and determined campaigner for a cause, who has willingly accepted much personal hardship and suffering in its pursuit. The remarks of the learned judges diminish not her but themselves. Besides, nothing in the submissions made and documentation presented to the court could have warranted the kind of remarks cited above; it seems clear that the prejudice against Medha Patkar and NBA was independent of what was presented or happened in the court room. This is very similar to the exhibition of prejudice that marred the judgment in the famous Seshan case some years ago.

The prejudice against the petitioner clearly manifests itself in the section entitled `Latches' in which strictures have been passed on NBA for delay in bringing the case to the court. The point made is that the clearance to the project was given in 1987 whereas NBA came to the court as late as 1994, on which ground alone, according to the learned judges, the petition could have been rejected. One wishes that they had done so; much time would have been saved, and NBA would have been left free to explore other channels or forums. The answer to the charge of delay is evident and was available in the material before the court. NBA started by trying to improve the rehabilitation policies and packages and their implementation. Over a period of time it gradually came to the conclusion that the project was badly flawed and needed a major review. It was only at that stage that NBA began to think of going to the Supreme Court, partly encouraged by the new receptivity of the Court. Meanwhile NBA was carrying on a campaign with some results: the World Bank appointed an Independent Review, and some time later, the Government of India set up the Five Member Group. Unfortunately, the Gujarat Government boycotted the FMG and questioned its constitutionality, and someone filed a case in the Gujarat High Court against the establishment of the FMG. It was because of a growing sense of despair at the failure of its efforts to find an adequate response from the executive machinery that NBA thought that it should move the Supreme Court. That is a perfectly understandable development and one fails to see any occasion for a reprimand.

Let us not forget what the SC for its part did. When NBA filed a copy of the FMG's Report of April 1994 before the SC, the judges wanted a supplementary report on certain aspects and wanted to know how much time the FMG would need. This was in March 1995. The FMG said that it would give a report by 31 May. Their Lordships were furious. They asked the Solicitor General whether the members of the FMG did not realize the urgency of the matter, and said that they wanted a report by 16 April as they were anxious to pass an early judgment on the case. Some members of the FMG were unhappy at the tone of the judges' remarks in court, but out of deference to the Apex Court the Group agreed to do whatever it could; and its Report was submitted to the Court on 16 April 1995 as required. The Court has delivered judgment in October 2000. Presumably it would be improper to ask why the SC took so long to give a judgment in this case, but against that background the learned judges could at least have refrained from talking about the petitioner's putative delay.

In allowing construction to proceed and asking for checks to be made at intervals of 5 m after the height of 90m has been reached, the judgment has introduced no new safeguards to ensure compliance but has advanced the doctrine that the existing institutions must be presumed to be working. That doctrine is not corroborated by actual experience. The judgment refers to the NCA, its Environment and Rehabilitation Sub-Groups, and the minister-level Review Committee. All this exists already. The pari passu clause implied a continuous check to see that construction did not proceed ahead of measures on the environmental and rehabilitation fronts, but it broke down. In this context, this writer, as a member of the FMG, would like to state the following. During the course of a session that it had with a former Secretary of the Environment Ministry and Chairman of the Environment Sub-Group, that functionary expressed his anguish at the difficulties that he had experienced in discharging his responsibilities, the inadequate response that he had received from his colleagues on the Sub-Group, and the force of the peer-pressure on him to be `positive' and not stand in the way of construction, and wanted the FMG to take note of this. There is a veiled reference to this in the FMG's Report. That very passage has been cited in the judgment but the learned judges seem to have failed to understand its significance.

The failure of the existing machinery was in fact what led to the PIL. NBA must be presumed to have established some kind of a prima facie case, because the Court itself suspended construction for several years, and even now at least one judge finds enough ground for ordering a fresh scrutiny and clearance. What then is the point in recapitulating the existing arrangements as if new orders were being passed? Even the prescription of a reference to the Prime Minister (as if he were a judicial authority) is nothing new. The Review Committee is a Minster-level Committee. A disagreement at that level is bound to lead to a reference to the Cabinet or to the PM; this has happened before. The judgment offers nothing new. It is in fact a denial of relief and of justice.

Curiously enough, the Court has not in the past presumed that the existing machinery is working. It has given directions to the CBI in certain cases, and asked for periodical reports; it has gone into garbage clearance by municipalities; questioned public health authorities on measures to prevent the outbreak of dengue; directed the shifting of industries; expressed displeasure with pollution control measures; concerned itself with the state of the Yamuna and with the saving of the Taj Mahal from the effects of pollution; and ordered the establishment of the Central Groundwater Authority. Perhaps some of this was excessive activism, but the presumption in the present judgment that existing arrangements are working is a complete volte face.

This cannot even be regarded as `passivism' as opposed to the earlier `activism'; it is in fact activism of the wrong kind - on behalf of the state. In future, if the existing machinery fails and if the state uses the police as an instrument of enforcement of its policies for what it considers `development', what recourse does the citizen have? In effect the present judgment throws the affected people to the tender mercies of the governmental machinery. The people who approached the Supreme Court for justice have been given a dusty answer. (This invites comparison with the judgment that upheld the suspension of fundamental rights during the Emergency period.) This is a severe setback not merely to NBA and Medha Patkar but to all movements for the empowerment of the people vis Ó vis the state and the cause of environmental protection.

Finally, something needs to be said on the `non-reviewability' of certain portions of the Tribunal's award, as the judgment seems to set much store by that argument of the Gujarat Government. A Tribunal is essentially a conflict-resolution mechanism. Its award (including the `non-reviewability' of parts of it) is indeed binding on the parties to the dispute in the sense that no party can unilaterally resile from it. However, if all the parties to the dispute reach an agreement, surely they can not only make changes but even set aside the Award and sign a new accord. Further, in the context of the Inter State Water Disputes Act 1956 an `inter-State dispute' means essentially an inter-governmental dispute: if it has been resolved without consulting the people whose interests are affected, can they be asked to accept the consequences, say, a project involving displacement on a large scale, without demur? Is an Award under the ISWD Act also an adjudication between the state and the people (who were not parties before the Tribunal)? Are questions of human rights over-ridden by an Award on the inter-State sharing of waters?

In Shakespeare's The Merchant of Venice, Portia said that in terms of the contract Antonio could have his pound of Shylock's flesh, but without shedding a drop of blood. In the present case, she might have argued that the Gujarat Government could go ahead and raise the dam to 455', but not displace more than 7000 families (which was the number mentioned by the Tribunal). That number is evidently regarded as flexible: it has gone to upwards of 43000 now; but the dam height of 455' is considered inflexible. In other words, the dam must be built to 455', regardless of whether 7000 or 43000 or 100000 families are displaced. Is that what `non-reviewability' means? What does this amount to but giving an absolute priority to the project over the people?

The details mentioned in the Tribunal's Report have not in fact been treated as immutable. The power-house configuration has been completely changed. Changes (liberalizations) have been made from time to time in the R&R policies and packages. The Supreme Court itself has modified the time-limit laid down by the Tribunal for the completion of rehabilitation (in relation to submergence of land). If all these changes were considered acceptable, then why should the suggestion of changes in the physical features of the project to minimize human suffering be considered improper and unacceptable?

In sum, it is a shockingly bad judgment, a negative answer to those who sought relief, and a severe blow to people's movements. Armed with this judgment the Gujarat Government will now press forward with construction, and they will be in no mood to listen to anyone other than ardent advocates of dams in general and of SSP in particular. There will be even greater intolerance towards dissenting opinion than before. The fragile fašade of politeness maintained with difficulty earlier will now disappear. As for water resources planning, there will be even less receptivity than before to pleas for a reorientation and for a consideration of alternatives to big dams. Are Justices Kirpal and Anand even remotely aware of the enormity of what they have done?