The S.C. & the Narmada case - II

By Jai Sen

ITS JUDGMENT in the Sardar Sarovar case also suggests that the Supreme Court did not examine at all the merits of the Madhya Pradesh Government's appeal that the dam's height be reduced by just 5.8 metres. Here, the petitioner was a State Government after all, and one of the partners to the original 1974 inter- State agreement that led to the Tribunal's award in 1979. This simple action, which would still have given Gujarat all the water it is entitled to under the Tribunal's award for irrigation and for drinking, would have enormously reduced inundation and consequent displacement, human suffering, and loss of farm land and forests. The Court's order has not even discussed this appeal. Surely we need to ask ourselves why? And surely a Court should be obliged to explain such a stand?

No less striking is the manner in which it has come to the conclusion that constuction should go ahead and by which it has even instructed the Governments to move ahead without delay and take the dam up to a height of 90 metre. The majority decision has said: ``As the Relief and Rehabilitation Sub-Group (of the Narmada Control Authority) has cleared the construction up to 90 metres, the same can be undertaken immediately...''. But, as the NBA has pointed out in a note prepared after the Court's order, this is a decision that appears to have misread the obvious facts placed before it. First, the R&R Sub-Group has apparently never in fact given any explicit clearance for dam construction up to 90 m; so far, the minutes of the Sub-Group show that it has simply said that `arrangements' for R&R up to this height were `adequate'. Second, the Government of Madhya Pradesh has both openly declared in an affidavit to the Court, as well as documented in official letters, that a large number of project affected families at 85 m and 90 m remain to be resettles, that the Government has no farm land for them, and that even resettlement sites for them have yet to be established. Third, the Grievance Redressal Authority appointed directly by the Court has reported this state of unreadiness; and fourth, the Court itself has acknowledged and noted this reality, elsewhere in its order - and has admonished the Government of Madhya Pradesh for its lapse.

Collectively, this clearly suggests that as of the date of the Court's order, the project authorities were still not ready; and that since the Court has itself held the Tribunal's order in 1979 to be inviolable (which said that ``In no event shall any areas in Madhya Pradesh and Maharashtra be submerged under the Sardar Sarovar unless all payment of compensation etc, are completed0''), this in turn means that the Court's order has itself directly contradicted the provisions of the Tribunal's order in this area.

Overall, one of the clearest and most important positions of the judgment is in relation to its assertion of what most liberally could be termed the autonomy of Government and of governmental process - including in terms of its setting sharp limits on how the Courts should relate to public policy, projects, and planning In short, it has observed that policy and project implementation are purely the prerogatives of the Government, and the Courts should not interfere in this process. Coming from the Supreme Court, this is an observation with far-reaching consequences.

This very definite position raises several crucial questions. Among them are: Should the Government be given this degree of autonomy? Does doing so serve the purposes of justice (and not merely of administration)? After all, PIL (Public Interest Litigation) was created to protect citizens, and especially the voiceless. Given that this is a Supreme Court judgment, for years to come the administration is very likely to take recourse to this ruling, to block questioning of projects it is promoting; as will - even more so - the increasing number of private concerns, domestic and multinational, who are currently being enabled by the Government to enter this field. Does this position not fundamentally erode the principles underlying PIL, and also more recent trends in favour of freedom of information and of transparency and accountability of Government and private concerns?

Given the history of PIL of the past two decades, this is an extraordinary and extremely conservative position. But even if one accepts that judicial climate shifts over time and it is quite possible that a given Court will rule differently, the further problem that arises here is in terms of the application of this principle in the judgment - of how the Court has done this. First, there are so many places in the judgment where the Court has carefully built up the impression that the respondents (the Governments in question, and the project authorities) are really `pretty fine people' - that they are doing a good job - that they are extraordinarily generous, going well beyond what they were obliged to do - and that therefore, always they must be given the benefit of the doubt.

This may or may not be the case, but is this the job of a court? Second, there are large sections of the judgment that read like a project report, without so much as the gesture of a reference to source documents. In other words, the Court does not seem to have been even-handed in this judgment, or exercised its faculties of discernment as rigorously as it should have. This is questionable enough, but on the other hand the majority judgment seems also not only to not have taken into account the arguments of the petitioners but also to have gone as far as to strongly put down their arguments and to question their bona fides. Indeed, the judgment has gone beyond this; it has used the opportunity to question the very grounds on which the petitioner came to the court - the doctrine of PIL - and thereby to substantially reduce the space that is available to such litigants in future.

Among other ways, it does this in particular by aggressively advocating the medieval legal concept of `laches' (remissness, negligence; an act of neglect; negligence in the performance of a legal duty; delay in asserting a right, claiming a privilege, or applying for redress). Arguing that displacement and R&R for the project started in the late 1980s, by coming to the courts only in 1994, the petitioners had deliberately delayed their appeal; and by extension, by virtue of moneys having been spent on the project in the meanwhile, the petitioners had lost their right to approach the Court for redress.

But especially given our present context, where people affected by such projects are as yet not even informed in advance about the projects, how can they be expected to approach the courts before projects start? And, given the well-documented evidence in this area that was placed before it in this case, does taking such a position not place an accompanying responsibility on the Court to also rule that it is the mandatory duty of project authorities to inform each and very project affected person of projects planned and of their likely consequences, well in advance? With punitive consequences if this is not done?

In terms of our respect for the judiciary and for judicial process, the small mercy is that the dissenting minority judgment by Mr. Justice Bharucha has rejected and rebutted the arguments and positions of the majority judgment, on the questions of both PIL and of `laches' (on the very straightforward argument that since R&R was still on when the NBA approached the courts in 1994, it was certainly within its right to come forward). But we still need to be sharply aware that this was only in the minority judgment, and that it is the majority judgment - and therefore the operative judgment, which establishes precedent - which now becomes the country's law.

In recent years, the Supreme Court has taken great pains to establish itself as a green court. But here, in an extraordinary turn of events, it has used one of the most important and prominent of all such recent public cases to fundamentally question - and erode - the concept of PIL and the rights of litigants, and to lay out an approach to governance, to litigation, to court behaviour, and to jurisprudence, that is conservative in the extreme.

(Concluded)

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