The Order of the Supreme Court in the Narmada Case
Highlights, Comments, and Analysis
Part A: The Judgments
The Order of Supreme Court is in two parts. The majority judgement, by Justice Kirpal and Justice Anand (Chief Justice) is the operative judgement and the one that will be followed. It is 183 pages long. The minority judgement, by Justice Bharucha, running into 32 pages, will not be operative. However, in spite of this, the judgement by Justice Bharucha is a very significant one.
The importance of Justice Bharucha's judgement is that it shows that the highest court of the land has not rejected the main issues and concerns raised by NBA. One judge, from the bench of three judges has taken cognisance of the arguments and has ordered a de facto review of the project by calling for the project to seek fresh environmental clearance.
However, the majority order, which will hold force is a shocking order. It overlooks critical facts, is illogical, places complete and unjustified faith in the Government's machinery and assurances, and takes on overly legalistic and technical view over human and environmental concerns. It is nothing short of an anti-people judgement and clearly the institution of the Apex Court has failed miserably in safeguarding the rights of the common people of this country.
The "Directions" from the two orders are given below. These are that part of the judgement that issue explicit orders and directions for various parties to carry out. The full orders are also available separately.
Directions of Majority Judgement
Kirpal, J. Pages: 180-183
While issuing directions and disposing of this case, two conditions have to be kept in mind, (i) the completion of the project at the earliest and (ii) ensuring compliance with conditions on which clearance of the project was given including completion of relief and rehabilitation work and taking of ameliorative and compensatory measures for environmental protection in compliance with the scheme framed by the Government thereby protecting the rights under Article 21 of the Constitution. Keeping these principles in view, we issue the following directions.
- Construction of the dam will continue as per the Award of the Tribunal.
- As the Relief and Rehabilitation Sub-Group has cleared the construction up to 90 meters, the same can be undertaken immediately. Further raising of the height will be only pari passu with the implementation of the relief and rehabilitation and on the clearance by the Relief and Rehabilitation Sub-group. The Relief and Rehabilitation Sub-group will give clearance of further construction after consulting the three Grievances Redressal Authorities.
- The Environment Sub-group under the Secretary, Ministry of Environment and Forests, Government of India will consider and give, at each stage of the construction of the dam, environment clearance before further construction beyond 90 meters can be undertaken.
- The permission to raise the dam height beyond 90 meters will be given by the Narmada Control Authority, from time to time, after it obtains the above-mentioned clearances from the Relief and Rehabilitation Sub-group and the Environment Sub-group.
- The reports of the Grievances Redressal Authorities, and of Madhya Pradesh in particular, shows that there is a considerable slackness in the work of identification of land, acquisition of suitable land and the consequent steps necessary to be taken to rehabilitate the project oustees. We direct the State of Madhya Pradesh, Maharashtra and Gujarat to implement the Award and given relief and rehabilitation to the oustees in terms of the packages offered by them and these States shall comply with any direction in this regard which is given either by the NCA or the Review Committee or the Grievances Redressal Authorities.
- Even though there has been substantial compliance with the conditions imposed under the environment clearance the NCA and the Environment Sub-group will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment.
- The NCA will within four weeks from today draw up an Action Plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such as Action Plan will fix a time frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam. Each State shall abide by the terms of the action plan so prepared by the NCA and in the event of any dispute or difficulty arising, representation may be made to the Review Committee. However, each State shall be bound to comply with the directions of the NCA with regard to the acquisition of land for the purpose of relief and rehabilitation to the extent and within the period specified by the NCA.
The Review Committee shall meet whenever required to do so in the event
of there being any un-resolved dispute on an issue which is before the NCA.
In any event the Review Committee shall meet at least once in three months
so as to oversee the progress of construction of the dam and implementation
of the R&R programmes.
If for any reason serious differences in implementation of the Award arise and the same cannot be resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose decision, in respect thereof, shall be final and binding on all concerned.
- The Grievances Redressal Authorities will be at liberty, in case the need arises, to issue appropriate directions to the respective States for due implementation of the R&R programmes and in case of non-implementation of its directions, the GRAs will be at liberty to approach the Review Committee for appropriate orders.
- Every endeavour shall be made to see that the project is completed as expeditiously as possible.
This and connected petitions are disposed off in the aforesaid terms.
CJI (A.S. ANAND)
October 18, 2000.
Directions of Minority Judgment
Bharuch, J. Pages: 30-32
I should not be deemed to have agreed to anything stated in Brother Kirpal's judgement for the reason that I have not traversed it in the course of what I have stated.
In the premises,
- The Environment Impact Agency of the Ministry of Environment and Forests of the Union of India shall forthwith appoint a Committee of Experts in the fields mentioned in Schedule III of the notification dated 27th January, 1994, called the Environmental Impact Assessment Notification, 1994.
- The Committee of Experts shall gather all necessary data on the environmental impact of the Project. They shall be free to commission or carry out such surveys and studies and the like as they deem necessary. They shall also consider such surveys and studies as have already been carried out.
- Upon such data, the Committee of Experts shall assess the environmental impact of the Project and decide if environmental clearance to the Project can be given and, if it can, what environmental safeguard measures must be adopted, and their cost.
- In so doing, the Committee of Experts shall take into consideration the fact that the construction of the dam and other work on the Project has already commenced.
- Until environmental clearance to the Project is accorded by the Committee of Experts as aforesaid, further construction work on the dam shall cease.
- The Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure.
- When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall, after such inspection, certify, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ousted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States.
- This process shall be repeated for every successive proposed 5 meter increase in the dam height.
- If for any reason the work on the Project, now or at any time in the future, cannot proceed and the Project is not completed, all oustees who have been rehabilitated shall have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they shall not be made at all liable in monetary or other terms on this account.
The writ petition is allowed in the aforementioned terms. The connected matters are disposed of in the same terms.
No order as to costs.
October 18, 2000
Part B: Brief Comments and Analysis of Majority Judgement
A. Back To Square One
The most serious feature of the majority order is that it takes the whole issue back to where it was 6 years ago, when the case was filed. Except for the creation of the Grievance Redressal Authorities, the project has been cleared with virtually the same implementation and monitoring structure as was in place before the hearings. The only other change is that the Prime Minister has now been vested with the final authority to decide any inter-state dispute in the Narmada. The Court's order requires the Narmada Control Authority (NCA) to implement and monitor the project. In particular, the Resettlement and Rehabilitation Sub-group (R&R SG) and the Environmental Sub-group (ESG) of the NCA are to give clearance for further increase in height of dam after examining the R&R and environmental aspects respectively. The final clearance is to come from NCA. This is the very arrangement which was in place all the time, and this arrangement has clearly failed, and failed abysmally to ensure even proper R&R. This is clear from the fact that the Court itself had to stop the work of the dam for an unprecedented 5 years. It is also obvious from the fact that Court had to ask the States to appoint independent GRAs headed by retired judges in all three States.
Yet, the Court places the responsibility to ensure and monitor the R&R (and Environment) work on the same very R&R Sub-group (and Environment Sub-group)! Even the independent GRAs are only to be "consulted". Both the Sub-groups, as also the NCA consist essentially of Government officials and other officials connected with the project, with a few "independent" members who are mostly toe the Government line, or are rendered ineffective.
Time and again, the R&R and Environmental Sub-groups have both shown themselves to be susceptible to manipulation by the project authorities (see the role R&R Sub-group has played in "clearing" the dam for 90m); in cases, the R&R Sub-group's recommendation to stop construction has been blatantly overruled by the main NCA and the Sardar Sarovar Construction Advisory Committee.
It is clearly in recognition of all this that the minority judgement states: (Page 28)
"The many interim orders that this Court made in the years in which this writ petition was pending show how very little had been done in regard to the relief and rehabilitation of those ousted."
"Having regard to the experience of the past, only the Grievance Redressal Authorities can be trusted by this Court to ensure that the States are in possession of vacant lands suitable for rehabilitation..."
"Only after ensuring that relief and rehabilitation is so supervised by the Grievance Redressal Authorities can this Court be assured that the oustees will get their due." (Pg. 29)
Yet, majority order has placed full responsibility in the hands of these sub-groups again. Not only that, but it also makes the astounding statement that (Page 166):
|"There is no reason now to assume that these authorities will not function properly. In our opinion, the court should have no role to play."|
It is difficult to accept this faith in the machinery whose repeated failure to function properly was one of the reasons that led to the failure of rehabilitation and the 5 year stoppage of work on the dam.
Independence of the Sub-groups
NBA has asked that the R&R and Environmental aspects of the project should be monitored by totally independent bodies- bodies independent of the project authoriries. Amazingly the majority order has declared that the NCA and its subgroups are independent! It says (Page 130):
|"It is not possible to accept that Narmada Control Authority is not to be regarded as an independent authority. Of course some of the members are Government officials but apart from Union of India, the other States are also represented in this Authority"|
Thus, the Court places the implementation and monitoring of the R&R and Environmental works in the hands of the very same authorities whose basic mindset and purpose is to push the construction ahead and this is clearly a conflict of interest and function. This can only push the R&R and Environmental concerns to a low priority. The abysmal failure of these agencies so far is a clear evidence of this.
B. Peer Review/Independent Review
Indeed, the Court has also rejected one of the basic tenets of Environmental assessment - that of peer and independent review. They state (Page 79):
|"There is no reason whatsoever as to why independent experts should be required to examine the quality, accuracy, recommendations and implementation of the studies carried out."|
The studies and environmental assessments are undertaken by the project authorities themselves or by consultants paid by them. Thus, there is a clear conflict of interest since project authorities would not want studies to delay the project or call for major modifications. This conflict of interest necessitates that the environmental studies are reviewed by peers, public and independent experts. Even the notification of MoEF of May 1994 under the EPA requires MoEF to constitute an independent expert committee to examine studies carried out by the project authorities. Justice Bharucha's minority order requires the constitution precisely of such a committee. But the majority order virtually sanctions this clear conflict of interest.
C. Construction and Submergence without Rehabilitation:
Another shocking part of the majority order is the sanctioning of immediate construction of the dam to 90m. The order notes that since the R&R Sub-group has cleared the construction to 90m they are allowing this. Yet, the Court has itself noted in the order that R&R Sub-group only said that 'arrangements' for rehabilitation upto 90m were complete. There was no explicit clearance recorded by the R&R Sub Group, nor any recording that the resettlement had been completed satisfactorily. However, even this statement of the R&R Sub-group regarding "arrangements" was faulty.
The Court itself has noted in its order (Page 158) the submission of GoMP on affidavit that:
- In 6 villages affected at 90m the land acquisition process for submergence villages still needs to be done.
- Out of 10 resettlement sites necessary for the PAFs at 90m, only 5 are ready.
Court has also noted the report of Grievance Redressal Authority, particularly of that of M.P.
|"... shows that there is a considerable slackness in the identification of land, acquisition of suitable land and consequent steps necessary to be taken to rehabilitate the project oustees." (Page 181)|
What the Court has not noted in the order, but what GoMP has stated on affidavit to the Court is that it has virtually not a single hectare of land for rehabilitation. It has also stated that it has identified some land but that this land is uncultivable.
GoMP has also stated on affidavit dated July 2000 that, at 90m, there remain 1034 PAFs yet to be resettled. Out of them, 599 to be resettled in Gujarat and 435 in M.P..Court Order notes (Page 158):
|"It has not been categorically stated [by GoMP] whether the PAFs who are so affected [at 85 m and 90 m dam height] have been properly resettled or not."|
It is very surprising that if GoMP has not provided this critical information, why did the Court not ask for it?
Given this blatant situation, it is clear that:
- a. There is no arrangement to resettle the oustees till 90m in M.P.. Land Acquisition Awards are not passed in 6 villages, 5 out of 10 resettlement sites are not ready, and not a single hectare of land is available.
- b. The GRA too has reported slackness in identification and acquisition of land.
- c. The R&R Sub-group's statement that 'arrangements' are in place is totally incorrect.
- d. R&R Subgroup has nowhere recorded any categorical finding that R&R upto 90 m is complete and / or clearance is given to go up to 90 m.
After noting all the facts as elaborated above, the Court notes the overall finding for M.P. that (Page 159):
"Affidavit on behalf of State of Madhya Pradesh draws a bleak picture of rehabilitation which is quite different from that of Gujarat. There seems to be no hurry in taking steps to effectively rehabilitate the Madhya Pradesh PAFs in their home states. It is indeed surprising that even awards in respect of six villages. likely to be affected at 90 mtr. dam height have not been passed."
"Even the interim report of Mr. Justice Soni (sic), the GRA for the State of Madhya Pradesh, indicates lack of commitment on the States part in looking after the welfare of its own people who are under the threat of ouster and who have to be rehabilitated."(Page 160)
It is shocking that the Court, instead of hauling up M.P. and the R&R Sub-group, and not allowing the work to proceed further till all arrangements are made and people resettled, has instead, allowed construction to resume immediately! The impact of this will be clearly of flushing the people out on the streets with no place to go and a gross violation of the Tribunal Award (see also separate, longer note on the situation of 90 mts)
Rationale of Court in Allowing Construction
It is difficult to fathom how the Court could have allowed further construction at this point when the situation was so serious. One possible explanation is the Court's statement, noted in the Order (Page 175):
|"If there is any shortfall in carrying out the R&R measures, a time bound direction can and should be given in order to ensure the implementation of the Award. Putting the project on hold is no solution. It only encourages recalcitrant State to flout and not implement the award with impunity. This cannot be permitted. Nor is it desirable in the national interest that where fundamental right to life of the people who continue to suffer due to shortage of water to such an extent that even the drinking water becomes scarce, non-cooperation of a State results in the stagnation of the project"|
This is astounding logic! First of all, the only way that the Court has ensured some improvement in the rehabilitation performance is precisely by putting the project on hold for 5 years! Further, contrary to its own statement, no time bound direction has been given for the R&R of PAFs affected at 90 m. Thirdly, the Court makes an unjustified assumption that only this project will solve the drinking water problem of the people of Gujarat; it further makes the assumption that Government of M.P. is not co-operating in R&R and so the project is stagnating. It then says that it is not desirable that this happens (i.e. project stagnates). The conclusion is appalling: Let the PAFs suffer for the "non-cooperation" of the State.
D. Overall Status of Resettlement
The Court had asked the State Governments to file affidavits by 1 July 2000 giving the full details of the status and arrangements of resettlement for ALL the PAFs to be affected by the project to its full height. This was after the hearing was over. The GRAs in all the three states were asked to undertake ground surveys and verify the reality about the land availability and also the other arrangements. They too were to submit the reports by 1 July 2000.
The three state Governments filed their affidavits. Some of the affidavits themselves revealed that serious problems were there in the R&R arrangements. NBA had filed detailed replies to these affidavits. The Court has drawn and noted extensively from the affidavit of Gujarat in its Majority order (some 15 pages of the order Pages 141-154) as also from M.P. and Maharashtra affidavit; but it has completely omitted to mention the details set out by NBA in its affidavit which pointed out the serious problems with land and other arrangements in all the three states. Even if one assumes that the Court did not accept NBA's submissions, they should have been there on record.
More importantly, the GRAs were to verify the ground realities of the situation. However, the report of the GRAs have not been made public or available to the parties to the case. At least the main conclusions should have been quoted in the Order. Right now, we only have two references in the majority order. One, at page 181, which says:
"The reports of the Grievances Redressal Authorities, and of Madhya Pradesh in particular, shows that there is a considerable slackness in the work of identification of land, acquisition of suitable land and the consequent steps necessary to be taken to rehabilitate the project oustees." And on Page 160:
"Even the interim report of Mr. Justice Soni (sic), the GRA for the State of Madhya Pradesh, indicates lack of commitment on the States part in looking after the welfare of its own people who are under the threat of ouster and who have to be rehabilitated."
These are the only reference to the GRAs reports, and are certainly a cause for concern. This is especially more so since the earlier reports of the Gujarat GRA state that it has received over 15,000 complaints from the PAFs, out of which large number are land related. Of course, GRA report states that 8179 out of these 15,493 had been redressed in favour of oustees, but NBA has submitted based on ground surveys, that many of the grievances claimed as "redressed" by the Government are not really redressed. Whatever be the case, the very fact that so many grievances have come shows the serious situation of the resettlement even in Gujarat and hence it is important that the reports of the GRA be made public from time to time.
Ground realities show that while M.P. and Maharashtra have no land whatsoever to give to the oustees, in Gujarat even though some land is available, it has many serious issues and problems - it is not suitable for community based resettlement, and much of newer land seems to be districts far away, doubts about quality of land persist based on past experience and so on. Further, large number of oustees are yet to be resettled even at today's height of the dam. Government says that this is because even though they have all readiness for resettlement, the oustees are refusing to move. However, this is not correct. Many of these "balance" oustees are those who want to move and not opposing the dam; but the Government has no land to offer to them. Even those who are opposing the project on larger issues, have time and again asked the Government to show them land for resettlement but the Government has not been able to do so. (Latest case is of the oustees of Maharashtra villages who went to see land on 3 Oct. 2000 at the behest of notice issued by Government of Maharashtra but came back as the Government could not show them any land). In reality, Government has no arrangements to resettle even those who are affected at today's height of the dam.
Given all this, it was important for the oustees to know what the GRAs had submitted to the Court in July 2000.
E. Other Categories of Oustees
The Court has completely rejected any sort of consideration of resettlement package for the other categories of oustees like canal, colony affected, downstream affected people and so on. The reasons given for these are also specious. This is a very serious and gross denial of the fundamental rights of the people who will lose their very livelihoods due to the project.
About the people losing lands to the canal, NBA had pointed out that there are over 24,000 families losing more than 25% of their land to canals (as per GoG itself!) and there is no rehabilitation policy for them. The Court has said that: (Page 124)
|"..most of people falling under command area were in fact beneficiaries of the project and their remaining land would now get relocated with the construction of the canal leading to greater agricultural output".|
NBA has pointed out that many families lose all their lands; many have remaining lands that are out of the command. Yet, Court has refused to consider this.
Another example: NBA had pointed out that large number of persons living in submergence area would lose their livelihood due to loss of community and/or loss of river. For example, fisher people, shop keepers, carpenters, etc. would lose their livelihoods but were not being rehabilitated. NBA had pointed out that while no surveys were done, its estimates of these were several thousand families, mostly in M.P. NBA called for an immediate survey of the same and development of rehabilitation package.
The Court order quotes Gujarat in saying that number of such families in M.P. was "not more than couple of hundred" (page 123) and then (Page 123):
|"In our opinion, it is neither possible nor necessary to decide regarding the number of people likely to be so affected because all of those who are entitled to be rehabilitated as per the Award will be provided with benefits..."|
But the very argument was that the Tribunal Award leaves out these people. Also, why is it not possible to decide number of people so affected? A simple survey would suffice. Even if one supposes that these are not more than a couple of hundred families - does that mean that their right to life to life can be violated?
In fact, lakhs of people are going to be affected by this project in ways other than submergence. The Five Member Group in both its reports to the Court has called for a "complete census of all categories...affected in any manner whatsoever, including canal affected persons, persons affected downstream of the dam, groups and individuals providing supplies and services to others...a number of category-specific rehabilitation package should be worked out"
All over the world, this is now being recognised as the basic norm for assessing impact and developing rehabilitation plans. Yet, it is shocking that the highest Court of the land has rejected this basic fundamental right of the people.
F. Environmental Clearance
On the environmental clearance of the project, Justice Bharucha in his minority judgement has pointed out that all the officials notes prepared prior to clearance and even the order of conditional clearance itself brought out the fact that even the basic environmental impact studies had not been done by that time. It was noted by the Ministry of Environment, "Indeed it is view of the Ministry of Environment, forest and wild life that what has been done so far whether by way of action or by any of studies does not amount too much and that many matters are yet in the early and prelimary stages". The Ministry of Water Resources in its note put up to the Prime Minister has stated that "considering the magnitude of rehabilitation, involving a large percentage of tribals, loss of extensive forest area rich in biodiversity, enormous cost of the project and considering the fact the basic on vital aspect was still not available there could be but one conclusion that the projects are not ready for approval". However, despite this state of affairs, conditional environmental clearance was given to the project in June 1987. As pointed out by Justice Bharucha, though those conditions were also violated and no comprehensive environmental impact assessment of the project has been done till date, the project is still being allowed to go ahead. That is why he has directed a comprehensive environmental impact assessment of the project and has restrained further construction till such assessment is done and clearance given.
However the majority judgement, even after noting the above, states that (Page 71):
|"[It] is not possible.... for this Court to accept the contention of the Petitioner that the environmental clearance was given without application of mind. It is evident, ....that the environmental clearance of the project was unduly delayed."|
What is amazing is that the Court accepts that "application of mind" can take place even when there is nothing to apply mind to. Because the very next statement in the judgement says:
|"The Government was aware of the fact that number of studies and data had to be collected related to environment. Keeping this in mind a conscious decision was taken to grant environmental clearance..."|
G. Specific Environmental Impacts
While the majority judgement accepts as valid the clearance given without studies it exhibits a similar approach while addressing the specific environmental impacts. A few examples are given below.
Compensatory Afforestation: The Court notes the arguments of NBA that compensatory afforestation was being carried out outside the project impact area as also that wasteland or lesser quality land was being used for compensatory afforestation. It ignores these arguments by simply stating: (Page 82)
|"According to State of Gujarat it has fully complied with the condition by raising afforestation in 4650 hectares of non-forest area and 9300 hectares in degraded areas... against the impoundment area of 19%. The pari passu achievement of afforestation in Gujarat was stated to be 99.62%.".|
The Court has not only accepted Gujarat's claims at face value but has not mentioned anything about other States or that the afforestation was carried out outside the impact area. It also states,( Page 82)
|"If afforestation was taking place on wasteland or lesser quality land, it did not necessarily follow.....that the forests would be of lesser quantity or quality."|
Downstream impacts: The serious impacts downstream of large dams are now recognised the world over. However, the downstream impacts of SSP are dismissed by this Court by stating that: (Page 83)
|"Again, all these contentions [of serious downstream impacts] were based on the Morse Committee Report which the World Bank and the union of India had already rejected."|
The Court also mentioned a study by a British Agency which says that there "are no down stream impacts whose magnitude and effect are such as to raise doubts to be cast over the wisdom of proceeding with the Sardar Sarovar ... It is thought unlikely that any significant negative environmental impacts [downstream] would occur over the next 30 years ..".
The Court ends by saying (Page 85):
|"It is also evident that until all the dams are constructed upstream and the entire flow of river is harnessed, which is not likely in the foreseeable future, there is no question of adverse impact including fishing activity and the petitioner's assertions in this regard are ill-conceived."|
How can apprehensions of downstream impacts be "ill-conceived" just because they will take place after many years? After all, the major environmental impacts like waterlogging, siltation, downstream impacts etc. all are essentially long-term impacts. Further, the bias of the Court is seen from the fact that Petitioner's apprehensions of downstream impacts are being called "assertions" even though they are based on official reports and studies.
The Gujarat Government itself has stated in its submissions to the Court (Vol. 164 of Court, Page 27, dated April 2000):
|"The effect on downstream will not be felt in the first and second states of development of the valley i.e. in the next 25 years. As per the study of CICFRI, the number of families who would be affected in the downstream and who are only partially dependent on fisheries is only 4644 [families]"|
It may be noted that the Morse Committee was an independent committee and it cautioned about very serious downstream impacts. The study by the above mentioned British Agency was commissioned just after the Morse report came out, with a clear (albeit unstated) purpose of countering the findings of the Morse report. They were paid for by a grant from the British Government given to the Sardar Sarovar. Not surprisingly, these studies gave a virtual clean chit to the project. It is indeed in such situations that a public and peer review of the studies becomes critical. The need for such a review itself has been rejected by the Court. Meanwhile, the serious downstream impacts of Sardar Sarovar are acknowledged even by the first study of the environmental impacts done by the MS University of Baroda, by NCA and so on.
Archaeological Heritage: The Narmada valley has a rich archaeological heritage and evidence of earliest human and humanoid civilisations has been found here. Petitioners had shown, among other things, specific instances of important archaeological sites that need to be investigated, excavated, and /or protected. This was based on the official list produced by the Environment Sub Group of the NCA submitted to the Court. Among these are several sites which would be submerged if the height of the dam was raised even to 90 m. One such site was a site where indications of a Harrappan contemporary civilisation has been found. All these sites are in M.P. NBA had pointed out to the Court that it is necessary to at least examine and document what is being lost before permission is given for submerging these sites.
In dealing with this submission, the Court has noted this submission of NBA at page 85 of the order. Amazingly, in the discussion on this issue on the subsequent 3 pages, it does not refer to this submission at all. Instead, there is a general discussion on Archaeology, reference is made only to some studies, and action plan in the state of Gujarat only, that's the end of the matter! M.P. situation is not referred to at all! The most serious issue and specific instances raised by NBA is mentioned, and then simply bypassed and ignored.
H. Community Resettlement
Every agency right from the NWDT Award to the NCA to state policies have professed the need for community based resettlement. Thus oustees from one village were entitled to be resettled together if they so desired. The rehabilitation master plan of Narmada Control Authority itself stated that " Oustees shall, promptly after their displacementů. be relocated as village units, village sections or families in accordance with the oustees preference." The problem was that it was not possible for the Governments to carry this out as they are not having land in large enough chunks. Therefore, they have tried to argue that the oustees themselves have chosen to go in dispersed groups. They made this contention without ever showing that the oustees were offered chance to settle together but they refused.
However, the Court has accepted this contention without any evidence, and has stated in addition that (Page 126):
|"While resettlement as a group in accordance with the oustees preference was an important principle / objective, the other objective were that the oustees should have improved or regained the standard of living that they were enjoying prior to displacement and that they should have been fully integrated in the community in which they were re-settled"|
The implication is that these two objectives were somehow mutually exclusive. With this, the Court has virtually absolved the states from the responsibility of the implementation of community based resettlement, while professing that it is an important principle/objective.
I. Biased Picture of Tribal Area
The Court has accepted the picture presented by the Government of the tribal areas as being very bleak, and very poor, of a resource poor area, people somehow eking out a living. This is then used to state that therefore the tribals find the resettlement package very attractive. (Pages 41-43). This has completely ignored the submissions made by the Petitioners about the reality of the tribal areas, which may seem poor to outsiders but have their own rich resource base, skills, culture, systems and so on. This is also backed by the findings of the Tata Institute of Social Sciences. But the Court has ignored this.
J. Selective Picking from the Evidence of Monitoring Agencies
The Court's Order has noted the findings of the Monitoring Agencies in the three states namely Centre For Social Studies for Gujarat oustees, H.S. Gaur University for M.P. and Tata Institute of Social Sciences for Maharashtra. It notes the findings of HSG University that M.P. are happy in Gujarat, but as far as TISS is concerned, it only says that TISS has reported 97% overall literacy while illiteracy was rampant in the submergence villages. (Page 139-140) It has left out the detailed findings of TISS submitted to the Court which talked about serious problems with resettlement, the rich resource base of the tribals, the need for community resettlement and so on.
K. Morse Committee Report Dismissed
The Morse Committee was set up by the World Bank, consisted of eminent and qualified members, and was assisted by best consultants from the World over. It undertook an extensive review of the rehabilitation and environmental aspects over 10 months, much of them in the field. It was the only agency that had access to all the documents related to the project from World Bank, Governments, NGOs, NBA etc. It produced a meticulous report.Yet, the Court dismisses this report by stating (Pages 76-78):
"Apart from criticism of this report from other quarters, the World Bank
itself did not accept this report..."
"The Government of India vide its letter dated 7th August 1992 from Secretary, Ministry of Environment and Forests did not accept the report and commented adversely on it."
"In view of the above, we do not propose, while considering the petitioner's contentions, to place any reliance on the report of the Morse Committee".
A more strange reason to reject the report would be difficult to find. Since the report was heavily critical of the project and the World Bank, it was obvious that the Bank and the Government of India would reject the report. But for the Court to reject the report because the Bank and Government has rejected it is inexplicable.
L. Latches (Delay)
The majority order has found NBA guilty of latches. It states that (Page 32-34):
"It [NBA] has been in existence since 1986 but has chosen to challenge the
clearance given in 1987 by filing a writ petition in 1994."
"Even though complete data with regard to the environmental was not available, the Government did in 1987 finally give environmental clearance. It is thereafter that the construction of the dam was undertaken and hundreds of crores have been invested before petitioner chose to file a writ.. In our opinion... Petitioner is guilty of latches."
"When such projects are undertaken and hundreds of crores of public money is spent, individual or organisations in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time."
And on Page 166:
|"...any challenge to such a policy decision must be before the execution of the project is undertaken...the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of latches if the petitioner had the knowledge of such a decision and could have approached the Court at that time."|
It is amazing that the Court has ignored the basic fact that most information about such projects is secret and classified, and very rarely available to the public. In most cases, people are never involved or informed at project formulation or initiation stage. People only come to know when the work begins. Even an organised struggle like the NBA takes years in which it can get access to the inside information. Even when information about lapses and problem is known, it is very difficult to get written proof. How can the Court except people to move the court at the time the decisions are taken?
Further, NBA had resorted to step by step approach. It believed that rather than rush to the Supreme Court, it would be more important to raise the issue with the Government. Only when the Government ignored the persistent pleas of the movement and mounting evidence did it decide to move the Court.
Indeed, rather than find NBA guilty of latches, it would have been more appropriate for the Court to have reprimanded the Government for undue hurry. Even before the project had secured environment clearance, a few hundred crore rupees had been spent. Loan Agreements had been signed with the World Bank. Even the tenders had been floated, opened and contracts awarded before the clearance was given! Many families had been displaced. All this was in front of the Court in writing, and had been pointed out to it during the hearings.
The order of Jst. Bharucha states that: (Page 30)
|"When the writ petition was filed the process of relief and rehabilitation, such as it was, was going on. The writ petitioners were not guilty of laches in that regard. In the writ petition they raised other issues, one among them being related to the environmental clearance of the Project. Given what has been held in respect of environmental clearance, when the public interest is so demonstrably involved, it would be against the public interest to decline relief only on the ground that the Court was approached belatedly."|
This is precisely the approach that one would expect from the highest Court of the land which is expected to protect the common person's fundamental rights. Unfortunately, the majority order has taken a very narrow view of the matter.
M. Tribunal Not Open to Challenge
The majority order observes that (Page 37):
|"Once the Award is binding on the States, it will not be open to a third party like the Petitioners to challenge the correctness thereof. ..We therefore, do not propose to deal with any contention which in fact seems to challenge the correctness of an issue decided by the Tribunal."|
This is a very legalistic interpretation of the Inter State Water Disputes Act and the Article 262 of the Constitution, especially when the Tribunal Award is challenged face to face against fundamental rights including right to life. This raises a lot of queries. The Tribunal is a creation of the Inter State Water Disputes Act. However, in the case of the Narmada, the dispute is not between the states but between the state and the people. The arena of this dispute is that of the fundamental rights of the people. Hence, to say that a third party cannot challenge the tribunal is not only a narrow view but also an incorrect application of the ISWDA. The unjust nature of this limitation is further accentuated by the fact that the people were not given a hearing in front of the Tribunal. Thus, they are bound by an Order which has been passed without hearing them. The assumption of course, is that the Governments represent the people. In this case, however, the Governments represent to the Tribunal on behalf of the "beneficiaries" as also "affected". This is a clear conflict of interest and hence there should be the provision for meaningful representation of affected people being heard; else, they should have a right to challenge the Tribunal. This is especially so when the issue is of the right to life itself.
Further, what about the case when the basic facts and assumptions on which the Tribunal based its Order are found to have been incorrect, or have changed? This is precisely the case in the Sardar Sarovar. How can the right to challenge the Tribunal be taken away then?
Last but not the least, in case where the implementation of (one part) of the Tribunal Award becomes impossible, what would happen? In the case of Sardar Sarovar, this is precisely what is happening. The implementation of rehabilitation is in shambles, and the Tribunal Order is being violated time and again. Would it not be open to for a person to challenge the Tribunal Order on the grounds that one part of it, especially the part dealing with the very right to life of the people, is not implementable?
N. Public Interest Litigation
One of the most objectionable parts of the Court's noting are the remarks regarding Public Interest Litigation. (PIL) The Order States (Page 166):
|"With the passage of time, PIL jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life... But, the balloon should not be allowed to degenerate to becoming Publicity Interest Litigation or Private Inquisitiveness Litigation."|
This is a completely uncalled for statement. If the Court wanted to say that NBA's PIL was frivolous or filed to gain publicity, it should have stated this in so many words. If not, then such a sentence has no place in the Order. It should be obvious that NBA's Petition brought out issues that were serious enough for the work to be stopped for 5 years. To quote the minority order, "when the public interest is so demonstrably involved", how can the PIL be frivolous?
Indeed, by making such remarks, the Court indicates an approach to PIL that does not augur well for the future of PILs. PIL is a unique contribution of the Indian judiciary and needs to be strengthened further, rather than weakened, even if there are the exceptional cases of frivolous litigation. Indeed, the cases of frivolous and mala-fide litigation are probably far more in the normal litigation than in PILs.
Overall Approach of the Court in the Majority Judgement
Apart from the specific parts of the order related to the Sardar Sarovar, there is also the overall approach within which this whole judgement is framed. It is important to understand this approach.
Court's Approach to Environment
An astounding aspect of the majority judgement is the approach and understanding of the Court regarding the vital issue of environment. The whole approach and understanding is completely against the emerging knowledge, understanding and practises - nationally and internationally. It is statist and status-quoist. World over, the serious environmental impacts of dams have been recognised and extensively documented. Yet, the majority notes that (Page 174) :
|"So far number of such river valley projects have been undertaken in all parts of India. The Petitioner has not been able to point out a single instance where the construction of a dam, on the whole, had an adverse environmental impact. On the contrary the environment has improved".|
This is an amazing assertion; first of all, the case was about SSP and not large dams in general. Petitioners were not expected to, and indeed discouraged from making submissions regarding broader issues like environmental impacts of other dams in the country. Still, the Petitioners had submitted to the Court a list of 10 dams in the country that had been stopped or not granted clearance due to serious environmental problems including the famous Silent Valley Project.
Secondly one wonders on what evidence this assertion of Court is based; for it had no such evidence, presentations, discussions, regarding the environmental impacts of large dams all over the country. However, recently, a inter-disciplinary team of experts did a "India Case Study" on large dams. This study was commissioned for the World Commissions on Dams, a body of internationally eminent people from all sides of large dams debate. The unanimous findings of this study, given in Chapter "Some Agreed Conclusions - A final summing up" are:
- 1. Large dams have made important contributions to the development of irrigated agriculture..
- 2. However, they have also had significant adverse impacts, including social and environmental impacts..
- 3. Some of the adverse impacts of large dams are of such a nature that they can be neither prevented nor mitigated.
- 4. Most of the adverse impacts and some of the incidental benefits of large dams have not been recognised and assessed in the past.
- 5. The computation of the financial and economic costs of preventing or mitigating the adverse impacts of large dams would undoubtedly have an impact on their financial and economic viability.
- 6. This is borne out by a retrospective assessment of the economic and financial aspects of some large dams. This showed that when the costs of preventing and mitigation even a few of these adverse impacts were included in the overall costs of the large dam projects of the 1990s, they seemed to become by and large economically non-viable.
- 9. Further, if the costs of residual environmental and social impacts that cannot be prevented or mitigated are brought on board, there would be an additional impact on the financial and economic viability of large dams.
This is the finding of a expert group study.
NBA cited certain judgements of the Supreme Court which rule that the precautionary principle must be followed and that burden of proof (that adverse impact will not be there) is on the agency that wants to change the status quo.
The Precautionary Principle is being recognised all over the world and is enshrined in Agenda 21 of Rio Earth Summit also.
Yet, the court's majority order has dismissed its application here by stating that it applies only in cases of "polluting or other industry where the extent of damage likely to be inflicted is not known". Of course, they miss the point that full impacts even in case of a dam are not known or cannot be fully anticipated.
The order further states (Page 95-96):
|"In present case, we are not concerned with polluting industry...what is being constructed is a large dam. The dam is neither a nuclear establishment or polluting industry. The construction of a dam undoubtedly would result in the change of environment but it will not be correct to presume that the construction of a large dam like Sardar Sarovar will result in ecological disaster. ....The experience does not show that construction of a dam ... leads to ecological or environmental degradation."|
Apart from the false dichotomy between polluting industry and dams, this assertion also flies in the face of findings of studies like India Study quoted above.
No need for independent Assessment
The Court says that there is no need for any independent agencies to look at the studies and surveys done. This is already discussed in detail earlier in this note.
Court's Approach to Large Dams
A substantial part of the Court Order is nothing but an eulogy of large dams. Again, this eulogy is based on personal opinions, since this was not the subject matter of the litigation and was not discussed or presented during the hearings or in the submissions. As Prashant Bhushan, Advocate points out:
|"Every person in the country including judges are entitled to have views on these matters. What is disturbing is when such personal views are delivered as judgements of a court. This is because a judge is required to decide issues on the basis of evidence before him, not on the basis of his personal biases. In this case, these pronouncements have been made in a case where the viability or desirability of large dams in general was not in issue and where the court had repeatedly told the petitioners that they must not make any submissions on this issue. Equally distressing is the fact that such pronouncements have been made without any evidence of these facts before the judges."|
Indeed, a host of extensive documentation including the India Country Study mentioned above shows ample evidence of the serious problems of large dams not only with respect to the social and environmental impacts, but also with respect to the benefits that they have been able to provide. Certainly, such an unqualified eulogy of large dams is factually incorrect and essentially consisting of a large number of assertions, which are not based on any evidence before the Court, and flies in the face of the vast evidence the world over which has raised serious doubts over the very benefits and viability of large dams.
The Order also contains a number of similarly unfounded statements like hydropower is cheap, or that hydropower is necessary to combat the global greenhouse gas effects. One question is whether we in India need to pay for ameliorating the problem of green house gases, since it mainly the creation of the affluent and profligate and wasteful consumption of the North/ West. More important is that the studies undertaken by the World Commission on Dams show that large dams themselves can have serious Greenhouse gas emissions.
Role of Court
The Court takes a general stand that it cannot intervene in policy matter as long as decisions are taken with application of mind and consideration of all facts. It also takes a position that the Tribunal cannot be challenged and has to remain binding. Certainly, there is no doubt whatsoever that policy making is the preserve of the Government. Yet, it cannot be that the Court will not have any role in the matter. To the extent that the policies, and the process of making these policies and implementing them tramples on the fundamental rights, the Court not only has a right, but also a duty to intervene. Given the serious nature of issues raised by infrastructure projects vis-Ó-vis the right to life of the affected people, it is expected that the Courts would take a liberal and broad rather than a narrow view of its own role. This is all the more important since the Government has historically exhibited unbridled use of might rather than a responsible exercise of powers.
These issues have already been commented upon earlier in the note.
It is clear that the abvoe approach and thinking of the Court has profoundly influenced the judgement.
Part D: Brief Comments on the Minority Judgement
The minority judgement is a one of the very significant judgements of the Supreme Court. There are a few contentions of the Petitioners that it has not accepted. In particular, it has said that (Page 2):
|"..the Sardar Sarovar Project does not require to be re-examined, having regard to its cost effectiveness or otherwise, and that the seismicity aspect of the Project has been sufficiently examined and no further consideration thereof is called for. I do not accept the submission on behalf of the petitioner that those ousted by reason of the canals emanating from the reservoir in the Project must have the same relief and rehabilitation benefits as those ousted on account of the reservoir itself; this is for the reason that the two fall in different classes."|
Detailed reasons are not given. Note that it rejects a "same relief" for the canal affected people, but does not reject relief for them. The demand of NBA was for an "appropriate package" for each category of oustees. The minority order clearly states that the clearance given to the project was not a valid clearance and orders the project to seek a fresh clearance. For doing this, it also orders the constitution of an expert committee to examine the environmental studies and surveys done so far, as also to undertake any further studies required. It also requires the cost of the environmental measures to be consider. It indicates that the environmental clearance process will not be a post facto process to justify a decision already taken in as much as it explicitly expresses the possibility that such a clearance may not be granted.
Regarding the resettlement aspect, it lays down very strictly the concept of linkage between full and proper resettlement and the dam construction, an idea clearly envisaged by the Tribunal but repeatedly violated. It also makes it amply clear that only the GRAs can be trusted to effectively monitor the R&R activities, indicating also that the state machinery cannot be.
It states that when matters of grave public importance are involved, a mere delay in moving the Court cannot be used to deny relief/justice.
In sum, the judgement accepts many of the very important contentions of the Petitioners and goes significantly in addressing the basic concerns of the fundamental rights of the affected people. It is a important example of how the highest court of this land can, by taking a broad and liberal interpretation of its role, and through a judicious exercise of its power, play a significant role in safeguarding the rights of the ordinary citizens against the untrammelled exercise of the powers by the Government and other interests.Narmada Bachao Andolan
26 October 2000