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dam-l LS: Article in edit page of Hindu, Feb. 26, 1999.
://www.webpage.com/hindu/daily/990226/05/05262523.htm
<TITLE>THE HINDU ONLINE : Friday, February 26, 1999 Opinion
Dams or people?
by Rajeev Dhawan
Date: 26-02-1999 :: Pg: 12 :: Col: c
<P>
By Rajeev Dhavan
<P>
HEGEL'S owl of Minerva should not surface after twilight. History
with hindsight speaks to us now. Decades from now, few will
believe that in the latter part of the 20th century Independent
India created dams and large projects which flooded huge tracts
of land, destroyed ancient sites, shifted communities into
homelessness and traded people off like unwanted animals. Still
less will people believe that the judiciary stood by and let it
happen.
<P>
A troubled Nehru inaugurated the Sardar Sarovar project in 1961.
In time, it has become a much contested showpiece. The Narmada
Water Disputes Tribunal (1969-79) took long, but gave a report
which made it clear that all "Project Affected Families'' would
be reestablished as communities in villages with full facilities
of water, education and health, (Cl. IV(1)) on a
'land-for-land'' basis without being fobbed off with just money. In Clause
IV(6) (ii), the sequences were clear that "in no event shall any
area in Madhya Pradesh and Maharashtra be submerged under the
Sardar Sarovar Project unless all payment of compensation,
expenses and costs... is made for acquisition of land and
arrangements are made for rehabilitation...''
<P>
The logic of this is as compelling as its humanity, namely:
People first, projects later. Rehabilitation now, building later.
Virtually, two generations of young oustees have been cruelly
neglected. The people concerned are poor. No doubt, they are
``their'' children, not ``ours''. Their lives cannot subsidise
the Government's urgency or a contractor's greed. Solicitude for
the displaced people is part of the rule of law. Take it away and
you take justice away.
<P>
Twenty years later - in 1999 - the oustees, whose numbers have
grown, suffer without the condition precedent to rehabilitation
being met. With a seemingly Olympian detachment, the Supreme
Court on February 18, 1999 (almost 10 years to the day after the
disastrous Bhopal settlement) sanctioned further construction
with insufficient and perfunctory directions to protect the
oustees.
<P>
In 1991, the Morse Report of the World Bank deprecated the
``environmental and social tradeoffs (that) have been made and
continue to be made without a full understanding of the
consequences,'' noting that rehabilitation and environmental
issues had not even been considered. The history of the project
is ``a history of non-compliance''. The Union of India's Group of
Five (1993-95) lamented virtually the total unpreparedness for
rehabilitation and the absence of a master plan, with some
members considering the need for a project of ``more manageable
size''.
<P>
The promise belies both reality and law. In 1979, the Tribunal
dealt with 456 and 6,147 oustee families for Maharashtra and
Madhya Pradesh. Now the corresponding figures are 6,147 and
33,104. If statistics tell a story better, a survey of the Madhya
Pradesh oustees in Gujarat in January-February 1999 shows that
out of 2,761 oustee families 37 per cent are without land,
possession or title, 26 per cent with inadequate or `bad' land
and 26 per cent with fragmented or insufficient land.
<P>
Nor will the promise made to them redeem itself. Maharashtra's
own affidavit of September 1998 admits that out of an allotted
4,200 hectares, 836 is unfit for cultivation. Some of the land
released is forest land. It is officially recognised that in
Gujarat, land was woefully short, 300 or so families lived in
waterlogged conditions and several others were without irrigation
for more than five years. According to the monitoring Centre for
Social Studies in Gujarat, low productivity stalks the land of
the oustees. An anguished letter by the oustees in 1997 invoked
the court's oral remonstrance. Even the crucial principle of
``choice'' not to be settled in another State was accepted but
violated. There was the promise of better life - with contiguous
land, community life intact, village ponds for water and better
facilities. None of these has happened in any satisfactory
measure.
<P>
The rehabilitation is supposed to work in batches corresponding
to an increase of five metres in the dam height. The records of
each government show that construction goes on - supported only
by paper or inadequate rehabilitation plans. Against this
astonishing background, the Supreme Court permitted a further
construction from 80 to 85 metres, aware that crucial
rehabilitation conditions were simply not met. The direction that
the P. D. Desai Committee will examine the claims of the oustees
is not a substitute for or a proper review of the rehabilitation;
and hardly in fulfilment of the conditionalities.
<P>
Now, the crucial question: is the construction of dams and large
projects lawless? Or, worse still, a law unto itself? Large
projects are much too devastating to be allowed de hors the
prescribed norms. Such projects have three kinds of
conditionalities: condition precedents without which the project
cannot continue, conditions pari passu which must be done in
tandem - failing which the project would have to stop, and
subsequent to which may be deferred. In Narmada, the Tribunal of
1979 made aspects of rehabilitation a condition precedent. It was
not for the Supreme Court to make it a condition pari passu which
will, no doubt, become a condition subsequent.
<P>
In the Narmada case, there is a gross violation of condition
precedents as well as conditions pari passu in relation to
forests, environment and the protection of ancient sites and
monuments. Significantly, the Ministry of Environment and Forests
denied environmental clearance between 1983 and 1987. Crucial
conditionalities were not met. A debris of violations followed
and continued. These were noted by the Morse Report (1991) and
the Group of Five (1994). So much so, the Ministry threatened
formal revocation in 1993. Even today, all conditionalities are
not met satisfactorily.
<P>
This is becoming a perennial feature of projects. In an extensive
survey done in 1995, out of 319 large projects and dams in India,
there was non-compliance in 85 per cent of them. In the past, the
Supreme Court concerned itself with the Okhla Industries,
forests, the Taj Mahal, the Coast Line and Delhi vehicular
pollution and others. Extensive schematic orders were given in
each case. The Supreme Court has an earlier legacy with the poor
and disadvantaged. More recently, urban hawkers in Delhi were
sympathetically rehabilitated. If entire colonies in Delhi were
relocated, the courts would surely intervene - more so in
response to the articulate well-off. Yet, in the case of dams and
large projects, the Supreme Court orders do not exude certitude.
<P>
In the Narmada case which is not over but in which signals have
been sent out to the dismayed oustees, the Supreme Court has a
splendid opportunity to lay down the law in two areas: (i) First,
clear directions need to be given across the board in respect of
the conditionalities to create a substantive and procedural due
process in this area. (ii) Second, consistent with the scheme of
the Constitution, the ``environmental'' and oustee conditions
must be ranked as condition precedents and higher pari passu.
Such a view would arise from the court's own decisions and the
priorities of the Constitution. In Mr. Justice Jeevan Reddy's
words in the Katha case (1995), environmental justice is founded
on inter-generational equity. No less, ``oustees'' are victims of
government schemes. The resource basis which defines their life,
livelihood and community life have been taken way. They will also
be hurt for generations.
<P>
The rich cannot wholly comprehend what the loss of a resource
means to an individual, family or community. Not to give the
forlorn oustees justice first is to make the dispensation of the
Constitution worthless. But to add injury to irony, the Supreme
Court basically overlooked the human priorities and permitted
increased building by five metres. The reference to the P. D.
Desai Committee offers too little and alters priorities. Counsel
for the States wanted the oustees - the most unfortunate amongst
the poor - taught a lesson. It appears they were.
<P>
In recent years, the Supreme Court has often echoed a formula of
the House of Lords to the effect that they will interfere only
where there are ``judicially manageable'' standards. This formula
is as flexible as the Supreme Court wishes to make it. In its
ceaseless jurisprudence, the court has found many socio-economic
issues ``judicially manageable''. It would be very sad if faced
with a litany of legal breakdowns, the court hid behind this
elusive formula, permitted irreversible damage between
generations and allowed the State to dam the already damned
oustees of the Narmada Dam and not the project as a whole. People
must come before projects.