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Introduction
It is universally acknowledged that every development project is
meant for the larger good of the people. But no project has
stirred up such widespread controversy as the largest Sardar
Sarovar Project on Narmada River. The humanitarian issue of the
neglect of the poor, displaced and the delayed and half-hearted
efforts made by the Government to rehabilitate them, made the
Narmada Bachoa Andolan activists led by Medha Patkar take their
agitation right to the heart of India, i.e., New Delhi where they
thought they would get the attention of the entire country through
media.
The project was welcomed by
the Governments of beneficiary States- Rajasthan, Gujarat,
Maharashtra and Madhya Pradesh. But controversies arose from the
displacement of thousands of people as a result of submergence of
vast areas, inhabited mostly by Dalits and Adivasis. There is no
doubt that the huge hydro-electric project will benefit all the
four States, providing easy access to drinking water, irrigation
and power on its completion. But when and how long one has to wait
for these benefits. The benefits may be commendable, but the
community and the Governments must take due care of those in these
four States who have lost their homes and livelihood when Narmada
has submerged their sweet homes and surroundings.
The Narmada Bachoa Aandolan
pinpointed that providing alternative means of livelihood along
with houses is more important than distribute money. It also
exposed the chinks of corruption at different stages of
rehabilitation and underlined the rights of the displaced persons
to a decent living. But the Government remained insensitive to the
plight of several hundreds who are uprooted from their homes and
livelihood. Even the Government is turning deaf ear to the cries
of project affected families inspite of their peaceful agitation.
Some critics are of the opinion that the dam will benefit the rich
industrialists instead of poor agriculturists.
According to
Narmada Water
Dispute Tribunal Award, the conditions of the clearance of the
project, and Supreme Court?s judgment of October, 2000 and March,
2005, the construction of the dam is not allowed to outpace
rehabilitation work. The main cry of Narmada Bachoa Aandolan is
that there should be no question of raising the height of the dam
without providing for the corrective measures to meet the failures
and deficiencies in rehabilitation work. The current agitation
against the project is justified if we see that poor, voiceless,
displaced persons are denied justice and human rights. Many of the
project affected families complain that they had not been offered
compensation. Where they got compensation, its amount was so
meager that they could not purchase the area of land to which they
were entitled. Some people had to pay bribes for the receipt of
compensation. More shocking was that income tax was deducted at
source from the amount of compensation paid to the oustees. It is
submitted that compensation packages involving cash payment should
not be subjected to payment of income-tax because compensation is
not the income of the oustees rather it is being paid to them in
lieu of what has been taken from them.
According to Naramada Bachoa
Andolan, more than 35,000 families remained to be rehabilitated in
Madhya Pradesh, Maharashtra and Gujarat at the present height of
the dam at 110 meters. According to Narmada Water Dispute Tribunal
Award, and the Supreme Court orders, project affected families
should be settled at least 6 months in advance of raising the dam
height above 110 meters.
It is, however, submitted that
the Government and authorities cannot ignore the voice of the poor
in a development process. Development need not mean displacement
as has happened in Narmada project. Displaced people?s
participation in the decision making process should be invited in
order to cope with the ground realities which they are facing. We
are witnessing the displacement of families in the wake of
development projects since 1960. But until the anti-dam movement
in the Narmada valley, the displaced persons were treated as
dispensable citizens. The time was opportune for court?s
intervention.
The foundation of Narmada
dispute was laid with the Sardar Sarovar
Project. In order to resolve the Narmada dispute the Government of
India
in exercise of its power conferred upon it under the Inter State
Water
Disputes Act, 1956, Section 4, constituted a tribunal and referred
the
matter to the tribunal. The State of Gujarat made an offer before
the
tribunal that the oustees can be resettled and rehabilitated in
the
State of Gujarat where a rehabilitation package would be granted
if they
opt for the same and if the oustees opt to stay back in their home
state, the entire expenses for the purpose of rehabilitation shall
be
borne by the State of Gujarat.
The Narmada Water Dispute Tribunal gave an award on 16-8-78, by
virtue of Section 5 (2), (4) of the Inter State Water Dispute Act,
1956.
As regards Relief and Rehabilitation, the award inter alia
provides that
no submergence of any area would take place unless the oustees are
rehabilitated. In terms of the award, the tribunal directed
constitution
of an inter state administrative authority known as Narmada
Control
Authority for the purpose of securing compliance and
implementation of
the decision and directions of the tribunal. The Narmada Control
Authority in its turn constituted one or more sub-committees
including
one relating to Relief and Rehabilitation.
Failed Rehabilitation and Continuing Outrage: -
The agitation of Narmada Bachoa Andolan shows that the project
affected families have not been fully rehabilitated. Court
permitted the
height of the dam upto 90 metres. Rise in the height of the dam
means
submergence of more villages and displacement of thousands of more
people from there homes. Since even those displaced earlier had
not been
adequately rehabilitated, what would be the fate of such
additional
displaced persons? The Madhya Pradesh Government has been
indulging in
illegal acts of ex parte land allotments and disbursement of cash
compensation to the oustees in order to displace them. According
to
Narmada Water Dispute Tribunal, the work on the dam could go ahead
only
if the land based resettlement of oustees below the height is
complete
and if any of the State could not resettle the people below the
particular height, it has to stop the project. According to a
survey
conducted by Narmada Bachoa Andolan, it was found that more than
3,500
families are still to be resettled as per Narmada Water Dispute
Tribunal.
Impact of Intervention of the Court: -
Narmada Bachoa Andolan, filed a writ petition before Supreme Court
raising several issues including Relief and Rehabilitation. One of
the
grievances of Narmada Bachoa Aandolan was regarding attitude on
the part
of the State of Madhya Pradesh as it made an attempt to wriggle
out of
its responsibilities to provide rehabilitation facilities to the
oustees
by offering them cash compensation. It was argued before the
Supreme
Court that since offer to oustees affected at the 90 metres of the
height of the dam to be settled in the State of Madhya Pradesh had
not
been made, further construction should not be permitted till one
year
after the resettlement of these project affected families at 90
metres.
Judgment of Supreme Court: -
The court gave its main judgment on 18-10-2000 in Narmada Bachoa
Andolan v. Union of India. The court was of the opinion that -
(1) Displacement of the tribals and other persons would not per se
result in violation of their fundamental or other rights;
(2) On their rehabilitation at new locations, they would be better
of
than what they were;
(3) At the rehabilitation sites they will have more and better
amenities
than those they enjoyed in their tribal hemlets; and
(4) The gradual assimilation in the main stream of society would
lead to
betterment and progress.
The court further observed that the project affected families will
be allotted a house/plot free of cost. The court also noticed that
the
State Governments have liberalized the policy with regard to
resettlement and have offered packages more than what was provided
for
in the Narmada Water Dispute Tribunal award. In the scheme of
liberalization, those project affected families who were even
encroachers, landless/displaced persons, joint holders, tapu
landholders
and major sons having acquired 18 years of age were included.
The Supreme Court also took stock of the situation that although
in terms of the award, those sons of the oustees who had become
major
one year prior to the issue of the notification for land
acquisition
were entitled to the allotment of the land. The State of Gujarat
made a
relaxation thereto so as to cover all those who became major upto
1-1-87. The court noticed that Relief and Rehabilitation group and
the
Grievance Redressal Authority having been established a system had
come
into force for ensuring satisfactory Relief and Rehabilitation of
the
oustees. Court also noticed that at the instance of Grievance
Redressal
Authority, project affected families were being issued sanads or
certificates for the lands allotted to them.
The Supreme Court revealed the impression of State of Madhya
Pradesh that the main effort of the said State was to try and
convince
project affected families that they should go to Gujarat whose
rehabilitation package and effort is far superior to that of State
of
Madhya Pradesh. Because of better rehabilitation package a vast
majority
of project affected families of Madhya Pradesh have opted to be
resettled in Gujarat. It is submitted that this does not by itself
absolve the State of Madhya Pradesh of its responsibility to take
prompt
steps in accordance with the award relating to Relief and
Rehabilitation. In fact, the State of Madhya Pradesh has been
contending
before the Supreme Court that the height of the dam should be
lowered to
436 feet so that lesser number of people are dislocated. But the
court
found that even with regard to Relief and Rehabilitation of the
oustees
at 436 feet, the Relief and Rehabilitation programme of the State
is
nowhere implemented. Truly speaking, the State of Madhya Pradesh
is
under an obligation to affectively resettle those oustees whose
choice
is not to go to Gujarat. Thus, the court gave appropriate
directions to
ensure that the speed in implementing Relief and Rehabilitation
picks
up.
Directions of the SC: -
a) As the Relief and Rehabilitation subgroup has cleared the
construction upto 90 metres, the same can be undertaken
immediately. Further raising of the height will be only pari passu with the
implementation of the Relief and Rehabilitation measures and on
the
clearance by the Relief and Rehabilitation subgroup. The Relief
and
Rehabilitation subgroup will give clearance for further
construction
after consulting the 3 Grievance Redressal Authorities.
b) The State of Madhya Pradesh, Maharashtra and Gujarat were
directed to
implement the award and give Relief and Rehabilitation to the
oustees in
terms of the packages offered by them. States were also directed
to
comply with the directions of the Narmada Control Authority or the
review committee or the Grievance Redressal Authorities.
c) Naramada Control Authority will within 4 weeks from today draw
up an
action plan in relation to further construction and the Relief and
Rehabilitation work to be undertaken. Such an action plan will fix
a
time frame so as to ensure Relief and Rehabilitation pari passu
with the
increase in the height of the dam and each State shall abide by
the
terms of the action plan so prepared by the Narmada Control
Authority
and in the event of any dispute or difficulty arising,
representation
may be made to the review committee. But each State shall be bound
to
comply with the directions of Narmada Control Authority with
regard to
the acquisition of land for the purposes of Relief and
Rehabilitation to
the extent and within the period specified by Narmada Control
Authority.
It is most respectfully submitted that the directions of the
Supreme Court given in the main judgment of 2000 were not
implemented in
letter and spirit. Thus, further applications were filed by
Narmada
Bachoa Andolan in the Supreme Court for rehabilitation of the
oustees in
accordance with Narmada Water Dispute Tribunal award. They also
prayed
for direction that the orders passed by the Grievance Redressal
Authority be set aside and not acted upon.
The Supreme Court in its main judgment had permitted the
construction of the dam upto 90 metres and held that further
raising of
the height would be only pari passu with the implementation of
Relief
and Rehabilitation measures. This part of the judgment if analyzed
appears to be most important because the expression pari passu
according
to Black's Law dictionary meaning has a direct nexus with the
raising of
the height vis-a-vis implementation of Relief and Rehabilitation
progress both of which must proceed equably or ratably which means
that
Relief and Rehabilitation measures must be undertaken as and when
the
height of the dam is further raised. Thus, it was held that the
applicants are entitled to the benefit of rehabilitation package.
The
court did not agree with decision of Grievance Redressal Authority
in
which a distinction was made between temporary and permanent
affected.
The decision of the Supreme Court in this respect is justified
because
if temporarily affectees were kept out of rehabilitation package
it
would have meant pushing those affectees to a stage of primary
poverty.
The judgments of the Supreme Court in 2000 and 2005 has glaring as
well as darker shades in as much as the project is pushing the
project
affected families to the stage of primary poverty, the Supreme
Court has
given a leverage to the State Government not to adhere to the
directions
of the tribunal because Supreme Court has given a green signal to
work
on the dam to be completed expeditiously. The lack of linkage
between
displacement, development and rehabilitation makes out a case for
comprehensive review of the project, if not it's scaling down.
Otherwise
?tiger-aping? dimension of the project will continue to cause
systematic
subversion of rule of law.
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The
Narmada Dispute
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The
author can be reached at: nidhi@legalserviceindia.com /
