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NARMADA BACHAO ANDOLAN VS UNION OF INDIAN AND OTHERS- CASE COMMENT

Author: Shivam Shukla, III year of B.A.,LL.B.(Hons.) from Institute of law, Nirma University


Introduction

Narmada Bachao Andolan is a landmark case in the inter-state water disputes matter and deals with the lives of the affected persons and the outset who had lost their occupation. The construction of the dam at the river Narmada is highly significant as Narmada is the fifth largest river in India. Narmada is the largest west flowing river in India. It flows through the state of Gujarat, Madhya Pradesh and Rajasthan. Thus the Narmada could be used for multiple purposes i.e. generation of hydroelectricity, providing fresh water to the citizens as mandated by article 21 of the Indian constitution, providing water through canals to the arid regions of Rajasthan and Gujarat. Thus a certain controversy concerning the environment clearance given by the prime minister after there was a difference of opinion between the ministry of water resources and the ministry of environment and forest. The clearance given by the prime minister was given after taking due care and attention and after considering the impacts of the studies on the environment. The construction of the dam was challenged by the way of writ petitions where the appellant made several contentions for delaying the construction. Finally, the court using the doctrine of separation of powers and opinion the importance of policy decisions allowed the construction of a dam till 90 meters as clearance given by the environment subgroup with other directions. The importance of water is discussed by the Supreme Court in context with article 21 of the Indian constitution


Explanation of the case

Facts

There was a water dispute regarding the river Narmada between the states of Rajasthan, Madhya Pradesh and Gujarat. The dispute was regarding the control of the waters, use and distribution. By applying section 4 of the interstate disputes act 1956 the government of India constituted a tribunal for that purpose and the matter was referred to it. This tribunal determined the height of the dam. It directed the state of Gujarat to construct the dam. The tribunal gave the award for constituting the interstate administrative authority i.e. Narmada control authority and the review committee that would review the decisions of the NCA. Independent machinery of environment subgroup was also created by NCA. On 23 April 1994 under the decision of the ministry of water resources there was the closure of ten construction sluices. The petitioners of the writ petition requested for the independent judicial authority should review the entire project. The major contention given by the petitioners was of article 21 of the Indian constitution and ILO convention no 107. They also contended the catchment area treatment programme and rehabilitation needed to be done well before the reservoir filling.


The case of Sierra Club Et. Vs Robert Froehlke[1] by the appellants where the construction of the project was halted even though a substantial amount of work was done in the project due to non-compliance of national environmental policy 1969 but since no such act was there in India and the clearance was an administrative function and necessary steps were also taken to improve the ecology and environment hence it is in no way violation of article 21


Tennessee valley authority vs. Hiram g. Hill [2] in which due to the presence of the endangered species in the river on which the dam had been constructing was halted. In India, as there is no endangered species act the case would not be applicable.


The argument of the appellant

  1. The environmental clearance was given without proper application of mind as at that time 1987 the studies were not Present and hence the project should not be allowed to proceed further.

  2. They argued that further submergence should not take place and the height of the dam should be reduced as the work of relief and rehabilitation was hindered.

  3. Sardar Sarovar Project was not in the best national interest as it violated Article 21 of the Indian Constitution read with ILO convention no 107.

  4. Independent agencies should be appointed to the environmental cost and the mitigating steps that could be taken.

  5. The catchment area treatment programme was still incomplete and should have been done before reservoir filling.

The argument of the respondent

  1. The decision is the administrative function and the courts should not review it afresh. The role of the court is to be a sentinel of fundamental rights.

  2. When two or more views are available the government after taking due care and attention takes a decision that should not be challenged in the court of law. The impact on the environment is seen as a whole.

  3. Lowering of height will make the power generation seasonal and that would be loss of power generation.

  4. NCA was an independent authority capable of taking decisions and giving awards and there is no need for any other independent authority.

  5. The government of India was deeply concerned with the environmental aspects as is visible from the letters and documents available.

Issues

  1. Whether the clearance given by the union of India was given without the proper study, surveys and the environmental impact was taken into consideration.

  2. Whether the conditions imposed by the ministry of the environment were not complied with.

  3. Whether the Narmada control authority is biased in giving the award despite being an independent body.

Laws applied (also cases)

  1. Section 4 of interstate water disputes act, 1956

  2. ILO convention no107

  3. Article 21 of the Indian constitution

  4. A.P. pollution control board vs. Prof.M.V.Nayudu (Retd.) & others, 1999[3]

  5. Vellore citizens forum, petitioner v. Union of India and others[4]

  6. Section 3 of environment protection act


Procedural history

The writ petition was filed by the appellants in April 1994 on the ground that the clearance given to the project 1987 was without any proper application of mind and hence the construction of the dam should be stopped even though the clearance given for the construction of the dam was the administrative decision taken after due care and attention by the government. The Supreme Court in the case of Kesavananda Bharati Sripadagalvaru and ors. V. State of Kerala and Anr. [5]Stated about the separation of power between the three organs of the state concerning basic structure doctrine. The precautionary principle as talked about in Vellore citizens welfare forum v union of India[6] by which the burden of proof shifts on the person who wants to change the status quo.


Judgement

The court opined that two things as important as the project should be completed at the earliest. The compliance should be there with the provisions and the directions based on which the clearance was given.


Directions

Dam shall be contracted as according to the award of the tribunal. Construction only up to 90 meters was allowed as per the clearance given by the relief and the realisation subgroup. Beyond 90 meters the clearance of the environment subgroup has to be taken at every stage. The permission to construct above 90 m would be given by the Narmada control authority. The states shall comply with and implement the awards and give rehabilitation to the outset. The environment subgroup will monitor for the improvement of the environment. The NCA will inside about 4 weeks draw up an action plan in connection to advance development the alleviation and restoration work to be embraced. The review committee will meet at whatever point required to do as such in case there is any uncertain question on an issue which is before the NCA. The grievances redressal authorities will be at freedom, on the off chance that the need emerges, to issue proper bearings to the particular states for due usage of the R&R programs and in the event of non-implementation of its bearings, the GRAS will be at freedom to move toward the review panel for proper requests. Meet in any event once in a quarter of a year to supervise the advancement of development of the dam and execution of the R&R programs.


Background

The project for bridling the waterway for the water system and power age in the Narmada basin was started in 1946. Seven tasks including the Bharuch venture were recognized during the underlying survey and 4 ventures Bharuch (Gujarat), Bargi, Tawa and Punasa in Madhya Pradesh were given the top need for examination. After the completion of the examination, the proposed dam at Gora in Gujarat with the full supply level (frl) 161 ft (49.08m) was chosen and the establishment stone was laid by late Prime Minister, Pandit Jawaharlal Nehru on fifth April 1961. In 1964, to determine the debate about sharing of the Narmada waters between the governments of Gujarat and Madhya Pradesh, the government of India named a specialist board of committees under the chairmanship recently Dr. Khosla which suggested a higher dam with frl 500 ft (152.44m) in 1965. Notwithstanding, govt. Of M.P. Was not pleasant to the advancement of Narmada water according to the Khosla committee report and subsequently, the Narmada water dispute tribunal (NWDT) was composed by the government of India in October 1969, under the interstate river water disputes act, 1956. NWDT gave its last grant in December 1979.


Discursive argument

Use of PIL

Public interest litigation is an innovative step to protect human rights including the fundamental rights of all those people who are not able to defend themselves. The ambit of the public interest litigation has increased and it has included within its ambit probity in public life, granting of largesse in the form of licenses, protecting the environment. Public interest litigation is nowadays used to gain publicity and so the appeals are flooded with the public interest litigation. It can rightly nowadays be called publicity interest litigation. During exercising the jurisdictions in the cases of writ petitions, courts have to be sure that they Do not exceed their jurisdiction and they should dispense justice only by law. Only in the case where a respective authority does not do its duty by the law or when any authority does any act in violation of any law, the court can dispense justice. Directions in the appropriate cases can Be given when if the law remains silent then that would result in the violation of the fundamental right of individuals. There is proper separation of power as it is envisaged in the constitution of India and so the courts need to take special care that they do not exceed their jurisdiction. The essence of this that the courts cannot run the government. The constitution provides the higher judiciary to act as a sentinel to fundamental rights. The court can strike down the law which is not by the law. The aforementioned statement concludes that the court is not above the law.


Policy decisions

NCA was constituted in the same ways, various subgroups were formulated. Several grievance redressal committees were also constituted. Then after there was a review committee that will have the checks on the exercise of the NCA. There is no substantive reason to have the opinion that they would not function by the law. In these matters, courts have nothing to do. When certain public projects by the government then the court should not act as an approving authority. Since the government in democracy has been elected by the people, the government has to take into account the needs of all the sections of the society hence it takes decisions after due care and attention. The courts should refrain from reviewing the decisions made by the government that are taken after due care and attention and policy decisions are not in conflict with any law.


Importance of dams

There are limited sources of water available on earth. The groundwater level is depleting day by day. Hence it becomes necessary to store water for future uses. Storing water not only helps in providing during the non-monsoonal season but only provides water for irrigation to the arid areas where there is no rainfall. This water through canals is taken to arid areas for irrigation. Dams can also provide hydroelectric power. The water stored in the dams can be purposefully used for preventing floods. It has been witnessed that the creation of dams has proved fruitful in the past. There have been no instances in the past that show that dams hurt the ecosystem, habitat, monuments, culture etc. The storage capacity in India is 174 cu km that is less than the capacity of the Kariba dam in Zimbabwe. It was contended by the appellants that rainwater harvesting can be used as a substitute for dams. The big dams have percolating tanks to tap the rainwater which is nothing but a rainwater harvesting technique. Thus the contention given by the appellant against the construction dams is Inappropriate according to me. The normal rainwater harvesting systems can never have the benefits of the dams.


Improving society intermingling

The tribe that live in the affected areas are undoubtedly forced to move out of their native land. The tribal are also entitled to use modern facilities like tap water, electricity, convenient medical facilities. Since the land is of uneven terrain and is barren and hence it is dependent on the vagaries of the monsoon. Only single crops are grown in a year. Tribal those who have resettled in Gujarat are satisfied that they have been provided adequate and good quality of the land. It is also the task of the government that the tribal are included in the social milieu and they are no longer kept separated from the civilized world.


Right to clean water under the right to life

In India, the constitutional right to access to clean drinking water can be drawn from the privilege to food, the privilege to clean condition and the privilege to health, all of which have been ensured under the wide rubric of the Right to Life ensured under Article 21 of the constitution. Notwithstanding article 21, Article 39 (b) of the order standards of state approach (DPSP), which the Constitution pronounces to be nonjusticiable, perceives the rule of equivalent access to the material assets of the society.


In AP Pollution Control Board[7], the Supreme Court mentioned that all residents have the basic right to approach clean drinking water, however didn't take that issue forward to investigate whether this incorporates the positive commitment on the State to give clean drinking water to all residents. In this way, we can see that the privilege to clean drinking water, even though not explained as a different right, is under the right of a perfect environment and therefore under the right to life.


Conclusion

The Supreme Court gave directions as to the construction of a dam up to 90 meters .the Subgroup constituted for the particular purpose has given the clearance up to that level. Any further construction shall require the approval of the environment group for any further environmental clearance. Further permission for the construction of the dam shall be given by the NCA. Much importance shall be given to the reports of the grievance redressal authorities. The grievance redressal authority shall approach the review authority for further appropriate orders. One of the major reasons for giving the clearance could be that even after 70 years of freedom water is not available to all its citizens in the appropriate amount. This is a clear violation of article 21 and the human rights resolution of the UNO. The rivers in India do have the potential to change the miserable condition that is prevailing in the arid areas of India where a suitable amount of rainfall is not available. In matters of the policy decision, the government has the description to form the policy and unless that policy decision conflicts with the law the court should not be reviewing the policy decision afresh. The use of PIL should be restricted to certain boundaries and it should not be used as public interest litigation. There has been a need that the diversity in India is brought closer so that those who are outcaste by society should also be included in the social milieu. The government also should provide the basic modern facility, drinking water, adequate electricity, irrigation facilities and rehabilitation facilities. Thus in absence of any adverse circumstances, studies and surveys that prove that the dam is harming the ecosystem the direction was given by the court.


Summary

The Narmada dam as contended by the appellant shall bring environmental degradation in the submergence area. The dam was likely to influence the monuments, habitat, flora, fauna, and traditions. The dam will undoubtedly keep the tribal away from the land they had lived in for quite a long time. Taking into consideration the positive aspects of the construction of the dam the clearance was given. The environmental clearance given by the prime minister was put into question based on a lack of studies and surveys that according can’t be an appropriate rationale. A government in a democracy decides against taking into consideration the viewpoint of all the sections of the society. The policy-making decisions should be left to be decided by the government and unless the law in the policy decision is against constitutional provisions the judiciary should not interfere. The decision given is sound as the court has envisaged the doctrine of separation power of Montesquieu the Supreme Court took notice and was satisfied that the rehabilitation in Gujarat was appropriate and hence and the review committee can also give directions to the states for proper implementation of awards. The writ petition was filed after years of the environment clearance and hence it would not be wise that the crores of money that are spent on the construction should not be utilized. As the construction had already begun it was better to find out ways in which the problems of oustees and the ecological imbalance could be mitigated rather than stopping the construction of the dam. The outsees were given to rehabilitate on their choice of land and the quality of the land was also duly verified by the court. The Case also deals with the principle of the precautionary principle is applied when the actions or issues concerned are uncertain. This principle is used to justify the decision that is taken that would affect the environment in some way. The basis of the principle is that there is a social responsibility to protect the public from harm. Hence when the effects of the decision are known the concept of sustainable development can be invoked so that to know up to what extent development can take place or to be sustained by mitigating steps naturally. Also, the construction of a dam is not like that of the nuclear reactor and though there would be a change in the environment since it does not produce ecological disaster the construction can proceed. The benefits of dams are not unknown.


[1] 350b F Supp 1280(1973)

[2] 437 US 153 :57 L Ed 2d 117:98 S Ct 2279

[3] 1994 (3) SSC 1

[4]6(1996) 5 SSC 647

[5](1973) 4 SCC 225

[6] 6(1996) 5 SSC 647

[7]A.P.Pollution Control Board v.Prof. M.V.Nayudu (1999) 2 SCC 718 and A.P.Pollution Control Board (II) v. Prof. M.V.Nayudu (2001) 2 SCC 62.