PUCL Bulletin, 2001

Narmada: a human rights issue

--- By Rajindar Sachar

THE SUPREME Court judgement in the Narmada Dam case has sharpened the debate about the real content of the "right to development". Are bureaucratic decisions without prior consultation with the affected disadvantaged sections a sufficient answer? Is just parroting the refrain that a price has to be paid - without answering why the sacrifice must always be made by the disadvantaged and tribals and the benefits should always go to the powerful, political as well as moneyed, - justifiable?

No doubt, the judgement has disappointed human rights activists who were hoping for a more incisive examination of the rationale of the project and a greater sensitivity to the cry of the affected families. But the pro-dam lobby has no reason to make the vulgar dance of victory, complete with firecrackers that the Gujarat Government indulged in. Has sensitivity dipped so low that the undoubted displacement and sufferings of lakhs (which even the court accepts) leave the Government cold? This was not a football match between the Government and the Narmada Bachao Andolan, the latter only highlighting the human rights aspect of the people and demanding recognition of their right to live with dignity guaranteed by the Constitution.

The NBA prayer that considering the factors of wrong data and actual experience the court should appoint an expert committee to re-examine the project for its cost-effectiveness and that till then construction beyond 85 metres be kept in abeyance has not been accepted. But on the environmental aspect the court split 2:1, Environmental clearance was given by the Rajiv Gandhi Governments in 1987. The minority judgement by Mr. Justice Bharucha expressed anguish that the requisite data for assessment of the environmental impact was not available when the clearance was granted. He pointed out that further in May 1992, the environment Secretary, took the view that the conditions were not yet met and, failing compliance, a formal notification might be issued revoking the clearance. Mr. Justice Bharucha, therefore, directed that "until environmental clearance to the project is accorded by a committee of experts, to be appointed by the Ministry, further construction work on the dam shall cease". But the majority, on the same material, came to the contrary opinion, thus highlighting the oft-repeated dictum that the highest court is not necessarily right; it is only right because it is the last court.

The majority surprisingly adopted a technical approach, not applying the requirement and conditions of the Environment Act, 1994; on the found that clearance had been given in 1987. No. such exclusionary rule to environmental considerations has been entertained by the court as it has treated environmental considerations as broad fundamentals arising out of Article 21, right to life. That is why it directed relocation of industries outside Delhi even though they had been established decades ago and when no environment clearance was required in the law. The plea of labour that this would result, and in fact has resulted, in unemployment of over a lakh of workers was of no avail.

Similar was the court response to evictions of an immigrant population of 1,50,000 settled on the border of the Sanjay Gandhi National Park - a forest reserve on the outskirts of Mumbai - as far back as 20 years ago when even no alternative location was earmarked for them. The oustees continue to live under the open sky and without a shred of shelter. The evictions involved the removal of besides slum dwellers, nearly 2,500 Adivasi or tribal families - whose hamlets had occupied parts of the forest even before the area was declared a national part in 1982.

The majority seems to have taken it for granted that the construction of big dams will improve the living standards of the oustees. One regrets that it was not made aware of the misery suffered by the Chambal Dam outstees. A sensitive officer who dealt with these oustees even now feels a pang of guilt, remembering the fate of Rampur town which was totally submerged leaving 30,000 families to start life afresh. Further raising of the Narmada Dam height as permitted would result in the forest area of Hoshangabad being completely destroyed.

The court has accepted that the States are lagging behind in identification and acquisition of land to resettle the oustees. Mr. Justice Bharucha has given directions that the Grievance Redressal Authorities of Gujarat, Madhya Pradesh and Maharashtra should, after inspection, certify, before further construction of the dam begins, that all those ousted by the increase ion the height by 5 metres from the 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 by another 5 metres is already in the possession of the respective States. This process shall be repeated for every successive 5-metre increase in height.

The majority, however, has permitted continuance of the construction of the dam. But it has recognised the possibility of environmental lapses, directing that the Government of India give environmental clearance at each stage before further construction beyond 90 metres can be undertaken. The majority has also directed that further rising of height beyond 90 - metres will only be pari passi with relief and rehabilitation and on the clearance by the sib-group, which it will give after consisting the three grievance Redressal Authorities.

The majority, while accepting the legal position that the international treaties and covenants can be read into the domestic laws, has permitted firther construction notwithstanding the cateforical assertion by the Chief Minister of Madhya Pradesh that he has no land for the oustees. As a matter of fact, the oustees of the Bargi Dam (near Jabalpur) built years ago have not yet been properly rehabilitated because of non-availability of land. Such a situation is violative of the principles laid down in the United Nations Comprehensive Guidelines, 1997, which mandate that " all persons, groups and communities have the right to suitable resettlement which includes the right to alternative land and housing which is sage, secure, available and habitable."

Through this judgement may apparently seem a setback to the NBA and its supporters, they need not throw up their hands. The court direction that a further raising of the dam height be done only on getting clearance from all authorities including the Grievance Redressal Authorities which are headed by former Chief Justice will enable the organisers to keep this issue alive and, meanwhile, sensitise public opinion and political parties to the human sufferings and compel the Government of India to have an impartial examination of the matter. This is not a partisan issue but a human rights issue, and must be seen in that context.

The direction by the majority that in case of disputes the matter will be decided by the Prime Minister, whose decision will be binding and final, raises an important jurisprudential issue. Directions by the court can be given to statutory bodies or Grievance Authorities created by the court itself. But providing for a reference, by a court order, to the Prime Minister in his individual capacity, which will preempt the rights of the parties to seek remedy according to the law, is, to say with respect, rather unusual. This direction might also embarrass the Prime Minister, who may understandably wish to keep away from this dispute in which different State Governments have conflicting perceptions and which are run by rival political parties. Any such involvement by him could become a political issue and introduce unnecessary complexities in the matter, which is already, complicated enough.

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