Narmada Bachao Andolan vs. Union of India and others
Author: Regina Menachery Paulose
In 2000, the Indian Supreme Court made a decision that would allow “progress” to plunder and pillage the homes of the indigenous populations in India ((See Anjana Chatterji’s Op Ed “India Harsud Lost” in Asian Age, August 18, 2004, where stories illustrate the magnitude of resettlement in the name of Narmada. )). The decision was carefully deliberated upon and a myriad of factors were used by the Court to come to its conclusion. Among the chief factor, as this article suggests, is the idea that “green projects,” such as hydroelectric power helps society in a beneficial way. Although this theory is partially correct, there are devastating consequences to energy projects that do not take into account the rights and well-being of the people. This article focuses on the controversial the Narmada decision and the impact that it has had on the human rights of the indigenous populations since 2000.
HISTORY
In the late 1940’s, shortly after India declared independence, government authorities began investigating potential uses of the Narmada River ((Narmada Bachao Andolan. v. Union of India, Writ of Petition (C) No. 319 of 1994, 2000 p.1)), the fifth largest river in India ((Id at 1)). A Commission study concluded in 1955 that the Narmada Basin had, “hydroelectric potential ((Id at 2)).” In 1961, Pandit Jawaharlal Nehru ((Nehru was the first prime minister of India. Under his direction, he encouraged the development of science and technology, which lead to a sizeable growth in agricultural and industrial production. “Jawaharlal Nehru (1889 – 1964) Biography” ASIABIOGRAPHY)) inaugurated the Narmada Project and construction began under the direction of the newly formed Gujarat state government ((Narmada Bachao Andolan v. Union of India, Writ of Petition (C) No. 319 of 1994, 2000 p.2)).
The largest and most contentious among the thirty dams planned to be built along the Narmada by the Indian government, was the Sardar Sarovar dam ((Friends of the Naramda, “Sardar Sarovar )). Starting in the late 1960’s, the Sardar Sarovar Project (SSP) was the central problem between the states of Gujurat, Madhya Pradesh, and Maharastra over the, “use, distribution, and control of the waters.” ((Narmada Bachao Andolan v. Union of India, Writ of Petition (C) No. 319 of 1994, 2000 p.5)) As a result of this dispute, the Supreme Court of India created the Narmada Water Disputes Tribunal (NWDT) to settle conflicting claims of the states over sharing the river water, cost of rehabilitating displaced people, and the height of the dam. ((Id at 5-6)) The SSP is now operated as a, “multipurpose, interstate,” project being implemented by the governments of Gujarat, Maharashtra, Madhya Pradesh, and Rajasthan. ((Habitat International Coalition, “The Impact of the 2002 Submergence on Housing and Land Rights in the Narmada Valley” p.8))
In 1978 India solicited the World Bank for a loan to finance the Narmada project. ((Narmada Bachao Andolan v. Union of India, Writ of Petition (C) No. 319 of 1994, 2000 p.12)) In response, the World Bank sent out a team of inspectors to visit the project site ((ID at 12))and in 1985 the Bank approved four hundred and fifty million-dollars in loans for the project. ((Arundhati Roy, Power Politics,“The Reincarnation of Rumpelstilskin” (2001). 72-73)) Two years later, the Indian Ministry of Environment and Forests authorized clearance for construction under certain conditions. ((Narmada Bachao Andolan v. Union of India, Writ of Petition (C) No. 319 of 1994, 2000 p.12)) Among those conditions were, “detailed surveys/studies,” completed field surveys, and rehabilitation plans to be drawn out ahead of reservoir filling. ((Id 12-13)) Construction of the dam began in 1987 and a human rights catastrophe was created. ((Id at 14))
Narmada Bachao Andolan AND PEOPLE’S MOVEMENT
The Narmada Bachao Andolan (NBA) was founded in 1986 and is a movement formed in the states that are affected by hydro power development. ((Id. This group was formed by Medha Patkar and Baba Amte, who received awards for their work. See also Friends of the River Narmada, a support group for the NBA))The Narmada Bachao Andolan, through a series of protests and non violent strategies, brought international attention to the SSP. ((Id)) As a result of the Narmada Bachao Andolan’s protests the World Bank quickly started to pay attention to the SSP ((Id)) and began to investigate the impact of the SSP beginning in 1991. ((Id and Berger, Thomas “The World Bank’s Independent Review of India’s Sardar Sarovar Project” American University Journal of International Law and Policy. (1993).))The World Bank set up an Independent Review Panel (IRP) which was given a twofold mandate; to assess the measures taken to “resettle and rehabilitate” people who were affected by the project and to “evaluate measures” designed to ameliorate the impact of the dam on the environment. ((Berger, p. 35.))
The IRP found a history of non-compliance with the conditions set forth in the loan agreements with the Bank, and that “no proper data and assessments” had been created to allow the IRP to develop “effective ameliorative measures.” ((Id at 43))The IRP concluded, “unless a project can be carried out in accordance with existing norms of human rights and environmental protection, norms espoused and endorsed by both the World Bank and borrower countries [should] not to proceed.” ((Id at 48))As a result of the investigation, in 1993 the Board heeded the assessments and withdrew from the project. ((“World Bank to cancel loan to Narmada Dam in India: EDF calls World Bank environmental and social record dismal” Business Wire, March 30, 1993.))However, the Indian government continued with construction.
In 1994 the Narmada Bachao Andolan petitioned the Supreme Court of India for relief. ((The 1994 Writ of Petition is what resulted in the 2000 Judgment by the Indian Supreme Court.))The petitioners sought the Court’s guidance for, “some independent judicial authority to review the entire project, and examine the current best estimates of all costs (social, environmental, financial), benefits and alternatives in order to determine whether the project is required in its present form in the national interest or whether it needs to be restructured or modified.” ((Narmada Bachao Andolan v. Union of India, 2000 SOL Case No.319 of 1994 p.17))The Narmada Bachao Andolan requested a “comprehensive review of the project” and an injunction to prevent further construction until the review was completed. ((Id at 17))
THE DECISION
In 2000, the Court cleared construction for the Narmada project to continue. The main legal basis of the judgment was premised on the doctrine of latches. ((Id at 18))The Court, in its majority opinion, articulated that while the “anti-dam” organization had been in existence since 1986, “it [chose] to challenge ((It should be noted that the NBA was proactive prior to the 1994 petition. The Court mentioned earlier in its opinion that in 1990, Dr. B.D. Sharma wrote a letter to the Court asking for rehabilitation of the oustees. The Court “entertained” and treated the writ under article 32 of the Constitution being Writ Petition 1201 of 1990. (Id at 14).)) the clearance given in 1987 by filing a writ petition in 1994.” ((Id at 18))The Court stated that the Narmada Bachao Andolan has been “agitating” against construction of the dam since 1986, but that “having failed in its attempt to stall the project the petitioner has resorted to court proceedings by filling this writ long after environmental clearance was given and construction started.” ((Id at 19))The majority opined, “this Court has entertained this petition with a view to satisfy itself that there is proper implementation of the relief and rehabilitation measures.” The Court had only “entertained” the petition because of the Court’s concern for the “protection of fundamental rights of the oustees.” ((Id at 19))
The doctrine of latches, similar to that of the statute of limitations in the United States, allows for finality in decisions and claims to be brought. The Court held “it is against the national interest and contrary to established principles of law that decisions to undertake developmental projects are permitted to be challenged after a number of years during which period public money has been spent in execution of the project.” ((Id at 18-19)) Prior to this decision, the Court has overruled latches before to accommodate humanitarian emergencies. ((In Kaur v. State of Punjab, the Court allowed the Commission to investigate human rights abuses that took place in Punjab although the statute called for claims to be brought within one year.))
A closer examination of Article 32 of the Indian Constitution reveals that the Supreme Court has the broad power to issue writs, petitions, or whatever tool may be appropriate to enforce fundamental rights. ((Indian Constitution Part III Article 32 subsection 2 )) The Article also guarantees that one may petition the Court to enforce these rights. ((Id subsection 1))With such sweeping power to enforce rights, the Court should have offered a better reason to deny petitioners their claim, especially because of the catastrophe that has been created because of inadequate rehabilitation. The Court once espoused,
“Fundamental Rights, contained in Part III of the Constitution of India, represent the basic human rights possessed by every human being in this world inhabited by people of different continents, countries, castes, colours and religions. The country, the colour and the religion may have divided them into different groups but as human beings, they are all one and possess the same rights.” ((Kaur v. State of Punjab, 1998 SOL Case No. 524))
All parties in this matter failed to also recognize relevant protections under two large international treaties. In 1979 India ratified both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). ((Australian Commission on Human Rights, “Human Rights Explained“))These treaties both embody the principles set forth in the Universal Declaration of Human Rights, which is the framework the World Commission on Dams used for its report on the utility and use of dams. ((World Commission on Dams, p. xxxiii))
The ICESCR protects the right to adequate housing. The right to adequate housing encompasses the right to security of tenure; essential services such as water, sanitation; affordability; access to means of livelihood; protected from forced eviction; community identity; non-discrimination; protection from arbitrariness. ((Habitat International Coalition (HIC), “The Impact of the 2002 Submergence on Housing and Land Rights in the Narmada Valley” p.6))The U.N. Commission on Economic, Social, and Cultural Rights has stated that evictions should not result in rendering people homeless or vulnerable to violations of other human rights. ((HIC at 6, quoting from General Comment 7; para 3 and 7 UN Commission on Economic Social and Cultural Rights.))International treaty obligations aside, the World Bank’s loan policies obligate India to protect human rights under the “Involuntary Resettlement Policy.” ((HIC at 7, quoting World Bank memo for Mr. Shhata to Joseph Wood (March 20, 1993) OMS 2.33 Issued February 1980 discussing §6.06 of the General conditions applicable to all World Bank loans))
Perhaps the application of the ICCPR, ICESCR, and Involuntary Resettlement Policy, would have provided for a fair evaluation of rights in this situation given India’s treaty obligations.
FAST FORWARD: THE FUTURE
Twelve years after the controversial decision was handed down by the Indian Supreme Court there are situations that continue to highlight the impact of the Court’s decision on the people who are affected by these development projects. Some of these impacts include ineffective resettlement packages that are offered to those who are displaced, the abolition of protections for tribal peoples, and the annihilation of the indigenous tribes who lived along the Narmada and sustain themselves on the Narmada.
Corruption among state governments and within the rehabilitation process is festering and rampant. After the 2000 decision, less than a month later, corruption started becoming exposed on all levels of government. ((“No Land for Oustees: People Protest Against Unjust Submergence and Displacement.” NBA Press Release, November 8, 2000. )) As recently as of August 2008 the Madhya Pradesh High Court ordered the State of Madhya Pradesh to properly rehabilitate approximately 974 houses of 46 villages which were arbitrarily left off the list to be compensated and rehabilitated. ((“Madhya Pradesh High Court orders acquisition of 974 excluded houses: GRA confirms that houses in Gov’t surveys were arbitrarily excluded.” NBA Press Release, August 7, 2008))The Court followed up its decision with a recent ruling to inspect the fake rehabilitation registries and potential money laundering. ((“Jabalpur High Court Gives Final Order on Case Regarding Corruption in Sardar Sarovar Rehabilitation.” NBA Press Release, August 21, 2008.))In the twenty five years of “development” this is one of multiple incidences that the people have requested Courts to intervene. ((“CBI Arrests Rehabilitation Officer for Narmada Projects Red-Handed accepting Bribe.” NAB Press Release July 16, 2008.))
The 2000 decision has also destroyed tribal self-governance policies put into place on a national level. The Tribal Self Rule Law is codified in the Indian Constitution under Article 342. ((Sanjay Upadhyay, “Tribal Self Rule Law and Common Property Resources in Scheduled Areas of India: A new Paradigm Shift or Another Ineffective Stop?” August 2004))The amendment gives the 532 scheduled tribes in India the right to self governance because of special customs and lifestyles that are distinct from general agrarian communities throughout India. ((Id))The State of Madhya Pradesh, one of the key states as mentioned above in the development of the SSP, has the largest tribal population in the country. ((Id))The Tribal Self Rule Law calls for “consultation before land acquisition for development projects and before resettling or rehabilitating persons affected by such projects.” ((Id))It is evident that “forest based resources are one of the most significant resource for tribal people in India.” ((Id))Among the people who actually make it on to the list and receive land, the land is generally found to be inadequate and uncultivable. ((Human Rights Experts Express Concern About Impact of Raising Height of Dam in Narmada River, India” United Nations Press Release, April 13, 2006.))Water release schedules from the dam have made agriculture a thing of the past and unemployment a state of the future. ((See generally Lyla Bavadam, “Narmada’s Revenge” Frontline Magazine, May 6, 2005. Volume 22 Issue 09.))It is evident that the Indian government, the Court, and other parties affiliated with the SSP and other dam projects throughout India have neglected to follow the law with regards to the Tribal Self Rule Law. It is evident from projects such as the SSP that even amendments to the Indian Constitution have no bearing with regards to people’s right or liberties.
In March 2008, the Supreme Court of India was called upon again to take action with regards to the rehabilitation and resettlement packages. ((“Supreme Court Hears Sardar Sarovar Case” NBA Press Release, March 10, 2008))Struggling to find resolution, the Narmada Bachao Andolan continues to garner domestic and international attention with non-violent protests and legal claims in order to make their voices heard. ((“Adivasi Applicant To Pursue Complaint with Appropriate Legal For Full Justice” NBA Press Release, January 3, 2010))
Of course, the most obvious issue that this decision has created is the enormous human rights violations that continue to occur in the status quo. In April 2005, many oustees died when the Government released water from the dams, causing floods to sweep people in to the waters of the Narmada. ((Lyla Bavadam, “Narmada’s Revenge” Frontline Magazine,( May 6, 2005) Vol 22 Issue 09.))In 2008, thousands had been evacuated because of water breaches in the water carrying canal of the SSP. ((Thousands Evacuated” The Hindu, June 12, 2008 ))As of 2012, the bells rang again, as the alerts went off warning low laying villages to evacuate the areas because the rise in water levels were set to be broken. ((The Times of India, “Flood Alert in 55 Villages Near Dam” (August 8, 2012), available))While many are without homes, food, and work; there are those that continue to suffer at an enormous expense because of development. Not surprisingly, this past summer, Government authorities came “down heavily” on farmers who were using water to irrigate their lands, because there was a water shortage. ((Vadadora, “Narmada Dam Overflows Again” The Indian Express, (August 23, 2012), ))Tragically the overflowing dam is being seen as nothing more than a “tourist” spectacle, instead of a humanitarian catastrophe. ((Vadadora, “Villagers throng Narmada dam site, land in through a Modi fare,” The Indian Express, (August 12, 2012), ))
The controversy regarding the Narmada did not die in 2000. In the most recent civil appeals decision that was decided in 2011, the Court dealt another blow to the Narmada Bachao Andolan. The Narmada Bachao Andolan challenged another project along the Narmada River, the Omkareshwar Dam. ((NBA v. State of MP, Civil Appeals No. 2115-2116 of 200, November 5, 2011))The petition alleged that the rehabilitation policies were not adequately meeting the needs of the displaced people. The Court responded by notifying the Narmada Bachao Andolan that in this particular instance that they did not plead with particularity the claims they were bringing before the Court. “Pleadings and particulars are required to enable court to decide the rights of the parties at trial.” ((Id at 9))The Court then made its favorite argument, once again accusing the Narmada Bachao Andolan of delay and violating laches doctrine. ((Id))While the Court did acknowledge the importance of tribal rights, it merely reiterated the fact that individuals can file their grievances, but generalized petitions do not allow the Court to take action. ((Id. It should be noted that the Court also mentions that the rehabilitation policies had been amended in 2003 to give agricultural land “as far as possible” and those who did not file a petition to receive land would automatically receive settlement money in to their accounts. Id at E.))
India’s decision in Narmada Bachao Andolan foreshadows the coming of “water hegemony” that India is asserting over others, even at the expense of its own people. ((Khalid Iqbal, “India’s Water Hegemony” (July 12, 2011), This situation is not only unique to India, see Julie Trottier, “Water Wars: The Rise of a Hegemonic Concept”))It is clear that international law, domestic Constitutions, and even global treaties such as the Indus Waters Basin, will have no affect if the world community does not step up to help the tribal people of India gain access to their lands. The World Bank has even continued to cede to India’s request for developing hydropower, despite the impact these projects have upon the people. ((World Bank, “India’s Hydropower Development” (March 23, 2012),))If the world community is not careful to voice their opinions on these particular conditions, India’s “water hegemony” could have serious implications for other populations near India. ((See “India violating Indus Basin Treaty: PMKM” Pakistan Associate Press, July 12, 2011. )) Although it has been twelve years since the day the Supreme Court decided on the Narmada decision, the Narmada River has continued to create a nightmare for those who live by the river. In September 2012, the Sardar Sarovar overflowed, reaching its highest point since 2006. ((Harish Joshi, “Narmada Dam Overflow Highest in Seven Years” The Times of India, (September 6, 2012),))In typical fashion, an “alert” was issued asking residence to move to safer ground. ((Id, “alerts” are typically alarm bells that ring. See Shastri, Lalit, “Alarm Bell Starts Ringing in Harsud” The Hindu, July 11, 2004.))
In a region already full of potential nuclear strife, a fight over such a dwindling natural resource could cause greater instability. “Build a dam to take water away from 40 million people. Build a dam and pretend to bring water to 40 million people. Who are these gods that govern us? Is there no limit to their powers?” ((Arundhati Roy, The Greater Common Good, April 1999, ))
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