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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.