Reviving outdated superstitions and creating new claims for the supernatural powers of dams, the Supreme Court majority judgment in the Narmada case has taken India back to an era of divine rule of kings. Directing the people, the planners, the engineers, and the civil servants to abide by plans drawn up 3-4 decades ago, it has rejected all the progress made since then.  Along with facts the Court has rejected the aspirations of the people for true development through modern processes of
decision making such are being pioneered through democratic decentralization and tribal self-rule.

In haughty ignorance of plain truths experienced by millions and documented by decades of research, the Majority Judgment of Justice B.N. Kirpal, co-signed by Justice Anand states that large dams upgrade the environment, that displacement improves people's lives, that tribal villagers do not live in communities, and that government offices function efficiently and responsibly.  Absolute faith in state power goes so far  asto raise the spectre of long-rejected concepts as divine right of kings as acceptable substitute for constitutional democratic processes.  The evidence offered to support these claims would make anyone laugh, were it not the Order of the Supreme Court.

Comparison of the Majority Judgment with the Minority Judgment highlights the ignorance at every level from grammar to life on earth.  Split decisions may be common but the two decision read quite opposite.  While the majority calls for immediate construction, the minority calls for an immediate halt.  Were the two Brothers in the same Courtroom, one wonders? As a matter of fact Justice Bharucha who wrote the Minority Judgment was the only one of the three Justices to hear the Narmada case from day one. Still, the Majority Judgment, albeit by a Majority of One, is the Order of the Supreme Court.

Two of the main points of disagreement concern the Environmental Clearance and the "latches" or time limit for filing a case. The crux of Bharucha's order to halt the construction immediately is the simple fact that the Sardar Sarovar Project has not yet been cleared by the Planning Commission, because the requirement of Environmental Clearance has not yet been completed.  In the course of explaining why, he says that there was "next to no data" collected on which to base the studies required for this
clearance.  In contrast Kirpal writes that "The Project was essentially cleared when late Pandit Jawaharlal Nehru laid the foundation stone in 1961."  If India is a constitutional democracy and not a monarchy or theocracy, if the dam was indeed a "development project" and not merely a "temple" then one must ask why Nehru laid the stone before the Planning
Commission cleared the project?

The only alternative to divine right of kings left to us by Kirpal is the unchecked power of capital.  Faulting the NBA for "latches" or as he puts it, for filing a case in 1994 thought the organization was formed in 1987."  From this he goes on to generalize that no one may challenge a project after money is spent.

(Actually what he says is that any project, if challenged, must be thrown out:

"Any delay in the execution of a project means over run in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of latches ... "

While some have suggested that what Kirpal meant was not that the decision but the challenge to the project must be thrown out.  However that would mean that whoever has money to begin a project may simply begin and thus prevent the possibility of any challenge by the people on the grounds that money has already been spent.  Surely the Supreme Court in the World's
Largest Democracy could hardly have meant that money rules and people had better put up or shut up!

Sadly, we must correct incompetent English and conclude that this is indeed, what the Learned Brother meant.)

What about studying impacts, planning for compensation?  Kirpal answers: delay.  Not only will delay in these tasks not affect implementation of the project and associated loans and contracts, but it will also earn you points for having given the matter due deliberation.  In short, whoever has power to spend public money had better do it as fast as possible, and deal with consequences as late as possible.

Bharucha on the other hand sees no merit in faulting the petitioner for the timing of filing the suit.  Bharucha's is not a pro-people verdict, in that it dismissed the Narmada Bachao Andolans' demand for a review of the project as well as for recognition of various categories of oustees as Project Affected People entitled to land for land compensation.  It is a pro-government judgment, not in the narrow sense of the "respondents" in the case NBA vs Govt, but the system.  Bharucha too believes it can work, though he knows it hasn't worked and allows for the possibility that it will not work.  He calls upon the government departments to complete the studies of environmental impacts and to implement plans for mitigating them, and to prepare land for rehabilitation according to the provisions of the Narmada Water Disputes Tribunal Award, the same, unrevised 1979  award, which has been violated by every inch added to the dam since the first village Mokhdi was submerged without rehabilitation.  Bharucha believes all these problems can and must be solved, and orders a halt till both environmental and rehabilitation conditions are met.

Overruling Bharucha by the single tie-breaking vote of Chief Justice Anand ist he Majority Judgment, which deals with the issue of environmental clearance by producing everything but the clearance - as if this is some prehistoric time when indirect evidences the best we have.  However Kirpal calls press reports and thank-you notes referring to the clearance as "more than enough evidence" that clearance was given.   The delay in giving the clearance is cited as evidence of "due deliberation and
application of mind" in concern for the environment.

So powerful is that state that it can "recreate" historic monuments and ancient temples, produce land and water, and even happiness.  Hyperbolic claims for the benefits that will be brought by the Sardar Sarovar Project include wonders for the environment and protection of the Pakistan border. Outright false premises ranging from claims that Rajasthan has had a water
shortage "since time immemorial" and that Narmada waters are a "fundamental right" of the state, right onto the famous insistence that 28 million acre feet of water flows annually in the Narmada.  (This was a number "agreed" upon by the Chief Ministers.  When later measurements revealed that only 23 million acre feet of water flowed in the Narmada, appeals were made to revise the project.  The Majority Judgment emphasizes that the figure of 28MAF can NEVER be reviewed.  Transfer of Narmada waters is repeatedly called the "only solution" for the water problems of Gujarat and Rajasthan.  National security is thrown in for good measure:  Recent events, say Their Lordships, have confirmed "the imperative need to encourage sturdy peasants to settle in these border areas.

One wonders how it can be that the peasants are so sturdy when the Court misses no opportunity to disparage village life, especially tribal life. Statements such as "the conditions in the hamlets, where the tribals lived, were not good enough" are rampant throughout the 183 pages of the Majority Judgment.

Thus rehabilitation is a non-issue:  "the re-settlement and rehabilitation of people whose habitat and environment makes living difficult does not pose any problems."  That must be why "Most of the hydrology projects are located in remote and inaccessible areas, where local population is, like in the present case, either illiterate or having marginal means of employment and the per capita income of the families is low."   There is no appreciation of local resource and skill base that has sustained life for generations. (Bola Dahya of Khutavanipada in Domkhedi can tell you his family tree back to twelve generations.  He knows it by heart.)  Rather, it is said to be "not fair" for tribals not to get displaced into the mainstream, even by "compulsion."  This is nothing less than the extermination of a culture, a step back in Indian civilization.

Defying the judgment is a matter of daily life for the people of the Narmada Valley, and indeed for any thinking citizen in India today.  The morning after the verdict was announced, the tribal villagers of Domkhedi who relaxed after harvesting Ambadi leaves and catching fish, were not in "difficulty and desperate hardship" as the verdict described tribal life to be.  Hundreds of children taking exams in the jeevanshalas were not illiterate as Justice Kirpal opined.  Bhil villagers gathered for all manner of social activities such as house-building contrary to evidence accepted by the Supreme Court that they did not live in community since "their houses are far apart."  The oustees of Bhakra Nangal, Pong, and Tehri were not living wonderful lives thanks to displacement, nor was the environment of those regions improved.

23 million acre feet (maf) of water refused to be 28 maf, additional land failed to appear in Madhya Pradesh, Maharashtra, or even in Gujarat. Hapeshwar benchmark remained inaccurate, and flood levels regularly exceed what is outputted by the HEC-II simulator program used by Narmada Valley Development Authority, as the "once in hundred years flood level."  Lakhs
of oustees of Sardar Sarovar Project (of whom only a fraction are recognized as Project Affected People (PAPs) entitled to land) dread the thought of displacement, though the Court says it is good for them and are currently en route to Delhi on a Long March through the tribal and non tribal regions, culminating in a Jan Sunvai (Public Hearing) on 14 November.
 

Scientists continue working to predict annual rainfall water flow, and flood levels though the Learned Justice has declared these "of no significance for all practical purposes" in water resource planning.  Those who take environment seriously are unable to trust a Court which has referred to "so-called environmental problems" that are associated with large dams.  Indeed anyone who has ever doubted that the government functions properly is in contempt, for "there is absolutely no reason to assume that the government will not function properly."  Even the Govt of Gujarat defies the Court's reasoning that Sardar Sarovar is the "only solution" for providing water to Kutch and Saurashtra, as it plans Kalpasar project for the same area.  Though Rajasthan is said to have had a water shortage "from time immemorial" people are working to revive the traditional water systems that served the communities so well and which have fallen into disuse due to the centralized, capital intensive planning ordered by the court.

L.S. Aravinda

Part 2:  Where were you the Day Democracy Died?

Walking into Khyali's home on the morning of 19 Oct 2000 to warm my toes around the fire, I hardly knew I was entering a different world.  The basket full of fresh Ambadi leaves and the two large fish caught that morning from Khad nadi, (tributary of Narmada) showed no sign of fading into memory.

Her uncle, Bola Dahya started telling me that here people had a remedy for every health problem.   For a deep cut, for a fever, for a headache, for insect bite ... he described various ailments, and various herbs, processes used in treating them.   Months, festivals, gods, goddesses - I couldn't catch all the terms and only wished I had my notebook.  He had never talked of these things with me before.  Little did I know I was hearing an elegy. He started pulling various twigs and shoots out of the corners of the hut in Khutavani pada, a hamlet in Domkhedi (Maharasthra, bordering both MP and Guajrat).  "Doctors come and go," he said, "but we don't need them. "

Then in a low voice he asked me, "bandh ko manjuri mili?"  (Has the dam gotten the go-ahead?)

Exams were going on in the jeevanshalas.  Schoolchildren pedaled a bijli-cycle by day, charging a battery to light their rooms for study at night.  Evening breezes brought the sounds of the dhol (drum) announcing that Dipavali was on the horizon.  Adivasi youth from several villages were training in watershed development under the guidance of noted Sarvodayi worker Madhukar Khadse and his team from Amaravati.  We had noticed the water level dropping but continued our work oblivious to the fate Their Lordships in Delhi had sealed for this valley.  As the news reached, representatives -- two from each village -- held an emergency meeting to decide how to deal with the post-court phase of the Narmada movement.  As villagers came to terms with the Majority Judgement, written by Justice Kirpal and signed by Chief Justice Anand -- which they experienced as a
Death Sentence -- they saw that it not only set them back the 6 years in which the case was in Court, but set the country back a century or more -- in human and natural sciences, and in civilization.

In a decided step backwards from democracy, secularism, and science, the Majority verdict makes non-issues of the major questions raised by the Narmada Bachao Andolan.  For instance:

Where is the required Environmental Clearance for the Sardar Sarovar Project?   As if arguing on behalf of the government, Justice Kirpal cites press notes and letters of thanks referring to this clearance, but no actual document of clearance.   Indeed, it is rendered irrelevant, Kirpal pronounces:  "The project was cleared when Nehru laid the foundation stone..."   What business had Nehru to lay the stone without clearance through the democratic processes?  He may have thought in 1961 that it was
a future "temple," little knowing it that in 2000 it would result in a development fundamentalism that makes mockery of Modern India.

Sorcerer-like, the Court/government, producing land and water by decree, states that large dams upgrade ecology and  displacement is good for people, especially tribals.  Thus they dispense of fundamental questions like the capacity of water flowing in the Narmada, availability of land for rehabilitation, and reliability or competence of the government in keeping
its word.  "It is for the government to decide," thunders Kirpal.  "There is absolutely no reason to assume that it will not function properly."   So powerful is the government, according to the Honourable Court, that it can relocate ancient historical monuments and religious sites.  The sites mentioned are Hapeshwar and Shulpaneshwar temples.  What about so many
hundreds of other shrines?  What about the sacred places of the villagers? What about the traditional healers and medicinal herbs in the forest? Better off without them, says the Honourable court, tribals should join the mainstream of society.  Not even government medical staff could seriously believe that an improvement in health was assured by the following:

"... in the submergence villages, the tribals mostly relied on traditional
healers for their ailments.  Now the current scenario is that at R&R sites,
health centers and sub-centers have been established."

Aside from all the superstitions and supernatural powers the Court invokes, most malicious is its unrelenting disparagement of tribal culture and resource based life.  Statements such as "the conditions in the hamlets, where the tribals lived, were not good enough" are rampant throughout the 183 pages of the Majority Judgement.

Thus rehabilitation is a non-issue:  "the re-settlement and rehabilitation of people whose habitat and environment makes living difficult does not pose any problems."  That must be why "Most of the hydrology projects are located in remote and inaccessible areas, where local population is, like in the present case, either illiterate or having marginal means of employment and the per capita income of the families is low."   There is no appreciation of local resource and skill base that has sustained life for generations. (Bola Dahya can tell you his family tree back to twelve generations.  He knows it by heart.)  Rather, it is said to be "not fair" for tribals not to get displaced into the mainstream, even by "compulsion."  This is nothing less than the extermination of a culture, a step back in Indian civilization.