The S.C. & the Narmada case - I

By Jai Sen

GIVEN THAT the petitioner was a popular movement, the Supreme Court's order to the Gujarat Government to proceed with the construction of the Sardar Sarovar dam is predictably being strongly protested in the public realm. Not only have many crucial issues been overlooked but the order has some extremely serious consequences for civil society, in particular for the space available for the practice of civil politics.

Unfortunately, the judgment tells us nothing new about what were supposedly the main and overt concerns, resettlement and rehabilitation of oustees and concern for environment. Nor does it say anything about how the project should have handled the special requirements and entitlements of the large proportion of oustees, Adivasis, whose special position under the Constitution is something that the Supreme Court might have been expected to concern itself with.

It has, in effect, dismissed even the need for community rehabilitation, thus undermining a key concept that project planners and Governments in India and abroad accepted only after decades of struggle and debate. This is one among several unfortunate outcomes. The disappointment is all the more intense given the sheer scale of the Narmada project; but equally important because - being a judgment of the Supreme Court - of the ramifications for all such situations in India and for public interest litigation itself. And, at a different level, because the contestation over the Narmada project has become a symbol of the struggle over meaning itself. On the other hand, the court's order makes clear that this struggle must continue, with even greater seriousness.

The case was decided by a 2:1 majority judgment. Perhaps the most dominant character of the majority judgment is its strong concern with form - in particular, with governmental procedure - and with using the case to establish certain ideological positions it has on the role of the Government, courts and litigants. It goes to extraordinary lengths to establish what the Government and the project authorities were doing, what structures they set up, what meetings were held, and what letters and notes were exchanged. By itself, this is useful; but the judgment has made very little reference to the dozens of other reports, affidavits and documents the court received in the course of the four years and more that the case was heard, especially from non-government entities. In short, the judgment seems to have been highly selective in its consideration and in its presentation.

Most prominently, it has openly said it did not consider the exhaustive report on the Sardar Sarovar Project prepared by the Independent Review commissioned in 1991 by the World Bank (the so-called ``Morse Commission''), which looked into precisely the same areas the case was about: the environment and resettlement and rehabilitation. The extraordinary argument was that the Commission's report was not accepted by either the Bank or the Government of India. But given that the Supreme Court itself is commissioning independent reports when it is not satisfied with documents it receives from the Government administration, it is more than curious that it ignored such a major document in this case.

Relative to the volume of the judgment, the findings and recommendations of a five-member group set up by the Government of India in 1994, which was then specifically called upon by the court to submit recommendations on the core issues of the case, have also been given short shrift. In many ways, it is this selectiveness and the manner in which the court seems to have reached its conclusions that are one of the most troubling aspects of the judgment. In the section on rehabilitation and resettlement - which the court itself declares the centre of its attention - the burden of the majority judgment is an elaborate presentation of official structures and procedures in place, and not an examination of actual conditions and experiences, either in villages which will be displaced or in the resettlement sites. It relies on Government reports alone. But frequently using the device of somewhat ambiguous double negatives sprinkled throughout the document (such as ``There is no reason now to assume that these authorities will not function properly,'' p. 165), the majority then declares itself satisfied with the procedures in place, and says ergo, the project should go ahead. It does not concern itself much with judging what it is actually happening on the ground.

The somewhat selective manner in which it refers to the role of institutions involved in the processes is also surprising. For instance, it says that ``In Maharashtra the monitoring and evaluation was earlier done by the Tata Institute of Social Sciences, Mumbai,'' and goes on to cite the positive things this institution said about the resettlement and rehabilitation experience. What it has overlooked, however, is that the TISS had also several severely negative things to say about what was happening, and that it was ultimately ``relieved'' of its position as the official monitoring agency for that state because of its reports.

This approach manifests most powerfully in sections of the judgment where the court goes into detail why large dams are good for the country, how those resettled in projects across the country have ``invariably'' ended up enjoying better conditions than before and how such projects do not ``necessarily'' lead to environmental destruction (a point repeated by the Home Minister, Mr. L. K. Advani, at the recent restart of construction). For instance, it says ``... India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost-effective or leads to ecological or environmental degradation. On the contrary, there has been ecological upgradation with the construction of large dams.''

Why is this approach so troubling? First, because the court has offered no justification at all in support of its sweeping generalisations - thus leaving these as mere opinion - but then has gone on to base its judgment on precisely this ground.

Second, as Mr. Prashant Bhushan, counsel for the petitioner, has also pointed out, ``these pronouncements have been made in a case where the viability or desirability of large dams was not an issue.'' This is extraordinary.

Moreover, even if - for the sake of argument - we assume that the other large dams have been beneficial, this does not lead to the conclusion that the Sardar Sarovar Project will necessarily be so. Again, can this be the basis for a Supreme Court judgment? Third, all this, more so given that the recently-published World Commission of Dams' Country Report for India lays out in detail the massive failure that large dams represent. This has been prepared by a panel of Indian experts, coming from a wide range of persuasions on the subject and none of them is ``anti-dam.'' Surely the court should have consulted this exhaustive study before pronouncing its judgment.

The court not taking all this into account is surely troubling in itself; also, as Mr. Bhushan's further pointed out, it specifically proscribed the lawyers during the hearings from citing the record of other such cases in support of their arguments. Then, extraordinarily, the judgment declares that ``The petitioner has not been able to point out a single instance where the construction of a dam has, on the whole, had an adverse environmental impact. On the contrary, the environment has improved. ...'' What should one make of all this?

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