People Be Damned

– Prashant Bhushan

At last we have it on excellent authority. The Chief Justice A.S. Anand and Justice B.N. Kripal of the Supreme Court have decreed that large dams do not cause environmental damage, they lead to improvement in the conditions of the oustees and are in fact essential for the economic prosperity of the country.

In the words of their lordships contained in the majority judgment on the Sardar Sarovar project, “The experience does not show that the construction of a large dam is not cost effective or leads to ecological or environmental degradation. On the contrary, there has been ecological upgradation with the construction of large dams.” They say: “The petitioner has not been able to point out a single instance where the construction of a dam has, on the whole, had an adverse environmental impact.”

They go on to say that in most cases of involuntary displacement, the oustees have in fact been left better off after their displacement. “A properly drafted R&R plan would improve living standards of displaced persons after displacement. For example, residents of villages around Bhakra Nangal Dam, Nagarjun Sagar Dam, Tehri, Bhilai Steel Plant, Bokaro and Bala Iron and Steel Plant and numerous other developmental sites are better off than people living in villages in whose vicinity no development project came in.” So now we have a resounding endorsement of the virtues of large dams from the highest judicial authority in the country.

Every person in the country including judges are entitled to have views on these matters. What is disturbing is when such personal views are delivered as judgments of a court. This is because a judge is required to decide issues on the basis of evidence before him, not on the basis of his personal biases. In this case, these pronouncements have been made in a case where the viability or desirability of large dams was not an issue and where the court had repeatedly told the petitioners that they must not make any submissions on this issue. Equally distressing is the fact that such pronouncements have been made without any evidence of these facts before the judges.

The issue of large dams has become controversial with increased understanding of the problems of those who are involuntarily displaced and long-term damage to the ecology of the area. Most developed countries some of them. Recently, the World Bank has sponsored an international commission to review the performance of large dams. This World Commission on Dams (WCD) has representatives from all major stakeholders including the dam industry. The recently released India Study of the WCD presents a dismal picture.

The report concludes that major and medium imigation projects are largely unviable. On hydropower the report concludes that, “Given the high capital cost, long-term gestation period and environmental and social costs, hydropower development is not the preferred option for power generation compared to other options”. Contrast this with the sweeping statement of the judges (without any evidence): “The cost of generation of electricity in hydel projects is significantly less.

The WCD India study goes on to estimate that 56 million persons, of whom 62 percent are SC and ST, have been involuntarily displaced due to large dams, and over 5 million hectares of forests have been submerged. The dams have consumed Rs. 1,56,000 crore which represents more than two-third of the water resource budget in the country for the last 50 years, while contributing less than 10 percent to the agricultural production. The report says that even the electricity and irrigation benefits routinely bypass the affected and poor communities and are consumed by landed farmers, urban consumers and well to do people. “The distribution of most of the costs and benefits of large dam seem to accentuate social-economic inequities.”

On the Sardar Sarovar project, the World Bank had commissioned a high powered review (the Morse Committee) which submitted its report in June 1992. The report concluded that, “Environmental and social trade off have been made, and continue to be made, without a full understanding of the consequences. As a result, benefits tend to be overstated, while social and environmental costs are frequently understated…

“We think that the Sardar Sarovar Projects as they stand are flawed, that resettlement and rehabilitation of all those displaced by the projects is not possible under the prevailing circumstances, and that the environmental impacts of the projects have not been properly considered or adequately addressed.”

This high powered committee’s report has been rubbished in the judgment of Justice Kirpal by saying that it was not accepted by the World ment of Justice Kirpal by saying that it was not accepted by the World Bank or the Government of India. The court routinely appoints experts committees on its own when it is dissatisfied with Government committees, and acts on the reports of such committees. But curiously, the court refuses to even look at a report which is not endorsed by the World Bank or the Government. Virtually the same short shrift has been given to the two reports of the high powered Five Member Group (FMG).con stituted by the Centre to look at certain aspects of the projects.

The FMG, virtually all official agencies and the Narmada Tribunal Award have emphasised the need for community rehabilitation of the oustees. Thus oustees from one village were entitled to be resettled together if they so desired. Yet the court goes on to hold that community rehabilitation of these mostly tribal oustees was not required.

Justice Bharucha in his minority judgment has pointed out that all the official notes prepared prior to clearance and even the order of conditional clearance brought out the fact that the basic environmental impact studies had not been done by that time. It was noted by the Ministry of Environment. “Indeed, it is the view of the Ministry of Environment, Forests and Wild Life that what has been done so far whether by way of action or by way of studies does not amount to much and that many matters are yet in the early and preliminary stages.”

The Ministry of Water Resources in its note put up to the Prime Minister has stated that “considering the magnitude of rehabilitation, involving a large percentage of tribals, loss of extensive forest area rich in biodiversity, enormous cost of the project and considering the fact the basic data on vital aspects was still not available, there could be but one conclusion that the projects are not ready for approval”.

However, despite this, conditional environmental clearance was given to the project in June 1987. As pointed out by Justice Bharucha, though those conditions were also violated and no comprehensive environmental impact assessment of the project has been done, the project is still being allowed to go ahead. That is why he has directed a comprehensive environmental impact assessment of the project and has restrained further construction till such assessment is done and clearance given. The majority judgment of Justice Kirpal holds that “the pleas relating to height of the dam and the extent of submergence environmental studies mentation of relief and rehabilitation cannot be permitted to be raised at this belated stage.” It is surprising that this comes from judges who have acquired the reputation of ‘Green judges’, having issued tough directions in matters relating to deforestation and pollution.

Distressingly, the court has also allowed immediate construction of the dam till 90 meters on the basis of a clearance given by the NCA in early 1999. This is despite the admission of Madhya Pradesh that it had not been able to provide agricultural land to at least 156 families. The court notes that in six villages of MP affected at 90 meters, even land acquisition awards had not been passed. This means that this construction up to 90 metres would violate the Narmada Tribunal Award itself which mandates that under no circumstances can the land of an oustee be submerged till he has been rehabilitated.

The Narmada Bachao Andolan had been reluctant to approach the court since many in the NBA viewed the court as an instrument of the haves, the powerful and the influential. I persuaded them to come to court since I had more faith. I must admit that I have been proved wrong. This judgment is bound to shake the confidence of the people in the ability of the judiciary to protect the rights of the weak from onslaughts by the State and powerful vested interests.

(Prashant Bhushan is a senior advocate in the Supreme Court of India and has represented Narmada Bachao Andolan, along with Adv. Shanti Bhushan)