A few months ago the Supreme Court of India passed a judgement by a majority vote permitting the government of Gujarat to continue building the Sardar Sarovar dam on the Narmada river. This in effect negated the plea of the Narmada Bachao Andolan (NBA) which had filed the petition before the august court that the dam will displace a very large number of tribal people and others without just compensation, ruin vast stretches of valuable forests for highly exaggerated claims of gains.
The Supreme Court had emerged in the last few years, as a champion of the rights of the people in struggle against the highhandedness of the executive and corrupt legislatures. In recent years the court had passed a number of landmark judgements which not only asserted its relative independence from the executive but also provided the popular movements with useful tools to fight oppression and repression. It had initiated an important innovation in democratic jurisprudence in the form of Public Interest Litigation (PIL) whereby anyone could directly petition the Supreme Court on behalf of victims of violation of fundamental rights as guaranteed in the constitution. The blinding of under-trials in Bhagalpur jail or the use of bonded labour in mines, the claims of Muslim women to alimony, etc. were some of the memorable judgements. Some years ago the Supreme Court took cognizance of the case filed by the NBA, appointed a commission to look into the matter and report to it. The work on the construction of the dam was brought to a standstill on the orders of the court pending its decision. This ‘judicial activism’ had earned the judiciary especially the Supreme Court a respect, which the executive and the legislature did not have. It is considered to be a state organ, which is free from petty political considerations, with high professional standards. So much so that the authority of the court has been painted in sacrosanct colours, especially in the context of the struggle against the religious fundamentalism of the Sangh Parivar. The Sangh Parivar’s repeated proclamation that it will not abide by a court verdict if it goes against them has been held to be a violation of a sacred covenant. This defence of the judiciary as the bastion of human rights and secular democracy is fast proving to be a trap. Some recent decisions of the court have not only cast doubts on this role of the court but also has raised questions about the strategy of deifying the court. It may be recalled that the Supreme Court even took exception to some of the leaders of the NBA writing about the issue once it came up before the court and almost denied the movement the right to carry on a campaign. The forced removal of ‘polluting industries’ from New Delhi on court orders which has cost lakhs of industrial workers their jobs is another example. Another judgement, which went unnoticed, granted permission to the hotel industry to savage the sea-coasts of Goa. The Narmada judgement crowns this anti-democratic trend not only in that it has virtually brushed aside a vast mass movement but also in that it has set a retrogressive precedent for human right jurisprudence and even the separation of judiciary and executive. In the following pages we will have occasion to see exactly how the judgement takes anti-democratic implications.
On the right to question a project
' When such projects are undertaken and hundreds of crores of public money is spent, individual organizations in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time. It is against national interest and contrary to the established principles of law that the decision to undertake developmental projects are permitted to be challenged after a number of years during which period public money has been spent in the execution of the project.' (p.33 of the judgement)
The first critique of the Sardar Sarovar dam project was presented by an environment group called Kalpvriksha, the Nature Club of Hindu College, Delhi, as far back as 1985. It took some years for an activist group to build up which actively took up the question and mobilised the project affected people who themselves live in remote forest villages and were unaware of the fate awaiting them. The movement since has developed into a mass movement of a dimension not seen before and has been consistently gaining strength over the years. Under pressure from the movement the World Bank appointed an independent review committee and on its recommendation the Bank withdrew from the project. Meanwhile the NBA had filed a petition in the Supreme Court which took all these years to dispose off the case. When the Narmada Tribunal gave the award under which the dam is being constructed the people living in the valley were neither consulted nor informed at that stage. The NBA activists brought home to the people the stark reality that they were faced with the prospect of being deprived of their means of livelihood and organized them around this issue. The court’s argument that the people should have protested in time and approached the court so that the precious ‘crores’ were not wasted is a cruel joke at best. The movement precisely questioned the meaning of ‘national interest’ and ‘development’ and refused to accept that what is construed as national interest or development is also identical with the interest of the mass of the people. Quite to the contrary the NBA had argued that the projects meant the ruin of the mass of the tribal people and peasants for the benefit of a few landlords, kulaks and industrialists and building contractors.
In the same vein as the above extract the honourable judges say:
'Any issue which has been decided by the Tribunal would, in law be binding on the respective states (the three riparian states) …. Once an award is binding on the states, it will not be open to a third party like the petitioners to challenge the correctness threreof.' (pages 36-7)
It is indeed strange that decisions affecting the life and property of a people living in remote villages be taken without their knowledge by distant authorities and they be denied the right to even question them!
On Public Interest Litigation (PIL)
'PIL was an innovation essentially to safeguard and protect the human rights of those people who were unable to protect themselves. With the passage of time the PIL jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life, granting of largesse in the form of licenses, protecting the environment and the like. But the balloon should not be inflated so much that it bursts. Public Interest Litigation should not be allowed to degenerate and become Publicity Interest Litigation or Private Inquisitiveness Litigation.' (p.166)
Hoary judges are not expected to make flippant comments, but here we have the two honourable judges equating the case filed on behalf of nearly two lakh people who are threatened with loss of their land and culture with publicity seeking. The objective of the flippancy is quite clear – to restrict the meaning and scope of the uncomfortable ‘innovation’ of PIL.
On Tribalism and ‘Development’
'The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At rehabilitation sites they will have more and better amenities than which they enjoyed in their tribal hamlets. The gradual assimilation in the main stream of the society will lead to betterment and progress.' (p 47-48)
'The tribals who are affected are in indigent circumstances and who have been deprived of modern fruits of development such as tap water, education, convenient medical facilities….' (p 111)
The honourable court seems to have chosen to ignore the vast documentation available on the condition of the rehabilitated people, especially the tribal people. They have been relocated in ghettos worse than slums. The Tata Institute of Social Studies (TISS) which conducted a long term study of ‘Experiences with Resettlement and Rehabilitation’ between 1987 and 1993 concluded:
'As the state governments are still not aware of the exact extent of displacement, assurance cannot be provided that all project affected persons would be appropriately rehabilitiated…. Even if a total of 4000 hectares of land (required in Maharashtra) is released by the government it will prove to be inadequate as families grow and have to seek an alternate livelihood for which there is no provision in the resettlement colonies. It is anticipated that they will be reduced to landless and possibly, even migrant wage labourers ...
… due to the nonavailability of large land plots …even group of inter-dependent families and major sons and daughters have not been resettled together with their families…. As a result village communities have been split…
The dislocation from the valley has eliminated access to river and forest produce. This has resulted in a change in the consumption pattern in the new colonies. Fish and meat have vanished and while cereals are available and some good crops have been harvested, a general shortage of pulses and vegetables has been noted in some resettlement colonies. ….in a number of resettlement colonies the average intake per capita is less than 2400 calories…
In 1992 in Parveta with a poor monsoon wage labour became the only alternative if and when it could be found. …In the pre-resettlement situation the option of expanding land under plough and availing forest produce existed to tide over such periods. Wage labour may continue to rise in the future since there are few alternatives/cushions available.
The maintenance of large herds.. has become problematic due to inadequate pasture lands… A large number of persons have sold their cattle due to this reason..
Excessive dependency on land and integration into the market economy, has reduced the earlier self-sufficiency and thereby created indebtedness in a market economy where only cash can obtain their requirements. People now have to purchase certain items which were earlier obtained gratis from the environment. … hence while increased availability of cash is cited as an improvement over their earlier living , in fact, their standards have fallen because it is insufficient to meet their needs.
Earlier women were agriculturalists and did not have to leave their villages for wage labour. After moving to rehabilitation sites they have had to engage in wage labour as activities related to tending cattle and collection of forest produce disappeared.'
(The Sardar Sarovar Project - Experiences with Resettlement and Rehabilitation 1987-93, TISS, Bombay undated pp 11-21))
This could have been a page from Marx’s chapter on primitive accumulation of capital! As for the crocodile tears about the indigent communities being deprived of tap water and education, the report has the following trenchant observation to make:
'The claim is now being put forward that they have access to government services in the resettlement sites. This is unjustified since they were supposed to be entitled to these services even in their original villages…earlier neglect cannot be sought to be made up by this claim. It is accepted the some of the services are now more accessible such as PHC, schools roads and transport, yet observed that their overall position has actually deteriorated in both economic and social dimensions..' (ibid. pp.24-5)
What the august court considered appropriate development for the tribal people is clear enough when seen in conjunction with the report of the actual condition of the rehabilitated people. The court is keen to break the self-sufficient minimally commercialised tribal society and convert the tribals into sellers of wage labour and buyers of their subsistence from the market. The court in its wisdom declares:
It is not fair that tribals and the people in undeveloped villages should continue in the same condition without ever enjoying the fruits of science and technology for better health and have a higher quality of life style. Should they not be encouraged to seek greener pastures else where if they can have access to it either through their own efforts due to information exchange or due to outside compulsions? (p172)
Since the tribals themselves were not wise enough to know what was good for them the court provided the much needed ‘outside compulsion’. When the honourable judges express regret over the damage that will be caused to the tribals due to displacement it is over their ‘past, culture, custom and traditions’ and not over the crucial loss of control over their own means of subsistence and sharing of labour. Culture, customs and traditions which form the basis of a tribal society can be dispensed with for ‘the larger good’. In other words tribal identities and tribal life can and should be dissolved.
'It is a fact that people are displaced by projects from their ancestral homes. Displacement of these people would undoubtedly disconnect them from their past, culture, custom and traditions, but then it becomes necessary to harvest a river for the larger good.' p. 172.
Role of the government, the courts and the civil society
The judges are at pains to establish that it is the prerogative of the elected government to take policy decisions ‘after due consideration’ and that the courts cannot have any jurisdiction over policy matters. Nor should they entertain any litigation by any party opposing the project once the policy decision has been taken and work on the project commenced. In other words the people who are likely to be affected by a project have no say in the matter. The government need not consult them or take them into confidence when taking its decision and once it takes a decision and starts evicting the people the people will not have the right to move the court because public money has already been spent on the project.
'There are three stages with regard to the undertaking of an infrastructural project. One is the conception or planning, second is decision to undertake the project and the third is the execution of the project. The conception and the decision to undertake a project is to be regarded as a policy decision. While there is always need for such projects not being unduly delayed, it is at the same time expected that as thorough a study as is possible will be undertaken before a decision is taken to start such a project. Once such a considered decision is taken, the proper execution of the same should be taken expeditiously. It is for the Government to decide how to do its job...
'The Court no doubt has a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means a run over in the costs and the decision to undertake a project if challenged after its execution has commenced should be thrown out at the very threshold…(pp.164-165 )
'For any project which is approved after due deliberation the court should refrain from being asked to review the decision just because a petitioner in filing an PIL alleges that such a decision should not be taken because an opposite view against the undertaking of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the court to go into the matter afresh and, in a way sit in appeal over such a policy decision.(p.168)
'In a democratic set up it is for the elected government to decide what project should be undertaken for the benefit of the people. Once such a decision had been taken that unless and until, it can be proved or shown that there is a blatant illegality in the undertaking of the project or in its execution the court ought not to interfere with the execution of the project.'(p.171)
In other words the judges call upon the citizens to cast their votes to ‘elect’ the government and remain at the mercy of that government for all times to come. Even a casual look at the daily newspapers would have told the judges what goes to constitute the ‘elected government’ and what it means for citizens to entrust their fates to them.
In an amazing abdication of responsibility in favour of the executive, the court decreed that
' If for any reason serious differences in implementation of the award rise and the same cannot be resolved in the review committee the committee may refer the same to the prime minister whose decision in respect thereof shall be binding on all concerned.'(p.183)
Here the prime minister is being made the final decision maker in case of disputes between the parties to the tribunal. This document recalls the the mahzar of 1581 issued by the qazis and mullahs of emperor Akbar’s court whereby it was declared that in case of dispute amongst the ulema on interpretation of the Koranic law the verdict of the emperor would be final.
Dispossessing the tribal people
The judgement seems to be sweeping the ground and making very far reaching statements. This cannot but serve as a necessary background for repealing the law under which alienation of tribal land is prohibited. This law has been under attack from a variety of land hungry lobbies including mining interests and agribusiness multinationals. The tribal people control a vast stretch of mineral rich and biologically rich lands and these lands are formally outside the reach of capitalist market. It has become vital to dispossess them before this rich resource can be made available to world capital. Newspaper reports indicate that the government has already drafted a bill to repeal or substantially amend this law.
Tribal and ethnic minorities in the constitution
The constitution of India was inspired by western European liberal constitutions which based themselves on the notion of a common citizenry. This usually gave the ruling ethnic majority the right to ride roughshod over the minorities. This gave rise to nationalist and quasi-nationalist movements all over Europe in the late 19th century and early 20th century. The USSR, born when these struggles were at their height, incorporated the principle of right of nations to self-determination and also autonomy for ethnic minorities which were not viable as nation states. It was probably the only constitution in the world which in a consistent way recognised the rights of nationalities and ethnic groups and consciously work out a framework of a multinational state.
The Indian constitution even though it accepts the principle of federalism does not treat the Union of India as the unity of equal and independent states. For example it does not elaborate the principle on which the states are to be organised. However in practice the Indian state was forced to organise the states on the principle of linguistic nationalities. Nevertheless, the existence of such nationalities was never explicitly recognised in the constitution. More so when it came to the so-called scheduled tribes. Article 29 of the constitution, which forms a part of the section on fundamental rights of the citizens says,
'Any section of the citizens residing in the territory of India having a distinct language, script or culture of its own shall have the right to conserve the same'.
In other words the constitution sees ethnicity as only consisting of language and culture and not the right of an ethnic group to autonomy and autonomous development. The constitution indeed was saddled with the older British special provisions for the tribal people and these were retained in the constitution as special provisions under the fifth schedule. This provided for imposition of a direct paternalist administration over tribal territories and for the constitution of tribal councils and operation of tribal customs in the place of the civil law. How exactly these have been operating in reality over the last 50 years can be glimpsed from the periodic reports of the Commissioners for Scheduled Castes and Tribes.
The honourable judges were only defending the constitution when they dismissed the right of the tribal people to take decisions regarding their own welfare and expected them to ungrudgingly alienate those rights to the ‘democratically elected government’.
The above discussion would indicate to the readers that the struggle of the people of the Narmada valley is also in reality a struggle of the tribal people to self-determination and this has to become a part of the larger struggle for national self-determination. Historically the only states which have accepted and guaranteed these principles are workers’ states. In the long run therefore it becomes imperative for movements like the Narmada movement to join hands with the struggle of the working class.
The NBA has been caught in a dilemma after having generated faith in the Supreme Court’s sense of justice.
‘The Andolan has already said that we do not want to reject the judiciary. Rather we want it to become a protector of Constitution that is in favour of people’s rights. Although we reject the confused, illogical verdict of the court, we will still file a review petition on the verdict in the very same court.’
At the same time the NBA is conscious of the fact that little can be hoped for from the court at this stage. This leaves it with little legal options and so it has to resort to direct action. The NBA has not only sustained mass action all the while but has also used the decision of the court to intensify the struggle. Initially it mabilized its middle class metropolitan support to protest against the court decision. Then it turned to mass action in the Narmada valley. A notable success was achieved when a US multinational power firm opted out of the Maheshwar power project.
It was in January of 2000, that the affected people first heard of the interest of Ogden Energy in the Maheshwar Project through the newspapers. Immediate letters from the affected people to the power utility in the U.S evoked no response, and the affected people decided to wait and watch. It was in March then, during the visit of the US President Clinton that Ogden representatives who had traveled to India as part of Clinton’s corporate entourage signed a Memorandum of Intent with the private promoters of the Maheshwar Project. The Memorandum expressed the intention to put in 49% of the total equity of the Project making them the strategic investor. Obviously, this outraged people in the affected area and they responded first by gheraoing the Senior Vice President of Ogden, Mr. Kent Burton, as he flew into the dam site in a helicopter the next day, and then by demonstrating at the US embassy in New Delhi. Protests followed at Calcutta and by members of the Indian Diaspora at Washington .A team of Ogden officials in India were located in the Maheshwar area and the popular people’s struggle compelled the team to visit a large number of villages in the area to gauge both the extent of popular resistance as well as the failure of the rehabilitation process. Hundreds of villagers gathered in each of these villages to represent to the team that investment in this Project would not only destroy one of the richest land and water economies in India, but be also extremely risky for any potential investor on techno-economic and social grounds. The continuation of mass struggle alone seems to be the way out at this stage. However it is clear that the struggle of the dam oustees alone will not be able to clinch the issue. There is a dire need to join hands with all democratic forces especially the working class struggles.
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